Docket Number: 15100-2006

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION    OFFICE OF WORKERS' COMPENSATION PROGRAMS     DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL    ILLNESS COMPENSATION    FINAL ADJUDICATION BRANCH

NOTICE OF FINAL DECISION

This is a decision of the Final Adjudication Branch concerning your claim 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 set forth below, your claim is accepted.

STATEMENT OF THE CASE

On November 15, 2001, you filed a Form EE-2, Claim for Survivor Benefits, for cancer of the breast with metastases to the bone of your late mother, [Employee], hereinafter referred to as “the employee.” A pathology report establishes that the employee was diagnosed with infiltrting adenocarcinoma of the breast on June 8, 1953. Medical reports indicate that the employee was diagnosed with secondary bone cancer as early as November 5, 1957.

In support of your claim for survivor benefits you submitted a copy of your birth certificate showing the employee as your mother and indicating that you were born on [Claimant’s date of birth]. You also submitted a copy of the employee’s death certificate showing that she was born on [Employee’s date of birth], that she died on May 10, 1959, and that she was married to [Employee’s spouse] at the time of her death. The death certificate showed the employee died as a result of her carcinoma of the breast with metastasis. Also submitted was a copy of [Employee’s spouse’s] death certificate. The above evidence indicates that you were eleven (11) years old at the time of the employee’s death.

The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12 plant in Oak Ridge, Tennessee, from October 28, 1944 to October 30, 1945. The Oak Ridge Institute for Science and Education (ORISE) database and plant records confirmed that she worked at theY-12 plant as a laboratory assistant and analyst.

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment, or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

On February 1, 2006, the Jacksonville district office issued a recommended decision, concluding that you are entitled to compensation of $325,000 under Parts B and E of the Act.

The Final Adjudication Branch (FAB) received your written confirmation dated February 3, 2006, that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition. You also indicated that at the time of the employee’s death you were the employee’s only child. On April 3, 2006, the FAB received your written confirmation that you waived your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

FINDINGS OF FACT

1. On November 15, 2001, you filed a claim for survivor benefits under the Act.
2. You were the employee’s child and under the age of 18 years old at the time of her death. Her spouse at the time of her death is no longer living.
3. The employee was diagnosed with breast cancer on June 8, 1953, which metastasized to the bone. The bone metastasis was diagnosed as early as November 5, 1957.
4. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant as a laboratory assistant and analyst from October 28, 1944 to October 30, 1945.
5. The employee’s breast cancer with metastasis to the bone caused her death.

CONCLUSIONS OF LAW

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental guidance for processing claims for the SEC class for the Y-12 plant. That bulletin establishes that the primary function of the Y-12 plant during 1943 to 1947 was to perform uranium enrichment using a calutron. Attachment 4 of the bulletin lists occupational titles for the Y-12 plant employees involved in “Other Radiological Activities.”[1] The employee’s job titles of laboratory assistant and analyst are not on the list as a likely employee title; however, the job title of laboratory technician was listed. An employee change form dated October 30, 1945, shows that her department was “Beta Production Analysis.” The beta building was 9204, and calutron production was performed there. While there is no evidence that the employee worked in that building, her work most likely involved research/analysis for the beta building, which lends support to a finding that she was involved in “other radiological activities.” Therefore, it is reasonable to conclude that the job titles of laboratory assistant and analyst should be considered as job titles involved in “other radiological activities.” The evidence shows that the employee worked with Tennessee Eastman Corporation at the Y-12 plant in other radiological activities from October 28, 1944 to October 30, 1945. This period of employment was during the time frame the Y-12 plant was designated as a SEC facility.[2]

The employee worked in uranium enrichment activities or other radiological activities at Y-12 for more than 250 work days. Therefore, the employee qualifies as a member of the SEC. As a member of the SEC who was diagnosed with breast cancer and secondary bone cancer, which are “specified cancers” pursuant to 42 U.S.C. § 7384l(17)(A) and (B) and 20 C.F.R. § 30.5(ff)(3) and (5)(iii)(B) and constitute “occupational” illnesses under 42 U.S.C. § 7384l(15), the employee or the employee’s survivor(s) qualify for benefits as a “covered employee with cancer.” 42 U.S.C. § 7384l(9). You meet the definition of a survivor under Part B of the Act. 42 U.S.C. § 7384s(e)(3)(B). Therefore, you are entitled to $150,000 for the employee’s breast cancer and secondary bone cancer. 42 U.S.C. §§ 7384s(a).

The employee was an employee of a Department of Energy (DOE) contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2). You meet the definition of survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(2). Therefore, you are also entitled to benefits in the amount of $125,000 for the employee’s death due to breast cancer. 42 U.S.C. § 7385s-3.

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of her death through and including the calendar year in which she would have reached normal retirement age. 20 C.F.R. § 30.815 (2005). This equals 21 years of wage-loss. Therefore, you are entitled to wage-loss compensation in the amount of $50,000. 42 U.S.C. § 7385s-3(a)(3).

Jacksonville, FL

Mark Stewart

Hearing Representative