Docket Number: 16967-2004

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. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

 

STATEMENT OF THE CASE

 

On May 3, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on prostate cancer. Medical documentation submitted in support of your claim shows that you were diagnosed as having prostate cancer on February 15, 1999.

 

You also provided a Form EE-3 (Employment History) in which you stated that you worked for the GAT, Martin Marrieta at the Portsmouth Plant, in Piketon, OH, from November 15, 1954, to June 15, 1992, and that you wore a dosimetry badge. The Department of Energy (DOE) verified that you worked at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH, from November 15 , 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992. The Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998. See Department of Energy, Office of Worker Advocacy, Facility List.

 

To determine the probability of whether you sustained cancer in the performance of duty, the 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. The district office advised NIOSH that you had been employed at the Portsmouth GDP from November 15, 1954, to June 15, 1992. NIOSH used that continuous period of employment in reconstructing your radiation dose. The district office received the final NIOSH Report of Dose Reconstruction which is dated May 17, 2004. On May 24, 2004 you signed Form OCAS-1 indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH. Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

 

On June 22, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP. The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d). Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3). The district office also concluded that you do not qualify as a covered employee as defined in 42 U.S.C. § 7384l(9)(B). Lastly, the district office concluded that you are not entitled to compensation, as outlined in 42 U.S.C. § 7384s.

 

 

FINDINGS OF FACT

 

1. You filed a claim for benefits on December 10, 2001.

 

2. You were employed at the Portsmouth GDP, a covered DOE facility, from November 15 , 1954, to August 31, 1961, and from January 26, 1970, to June 14, 1992.

 

3. You were diagnosed as having prostate cancer on February 15, 1999.

 

4. The NIOSH Interactive RadioEpidemiological Program indicated a 35.65% probability that your cancer was caused by radiation exposure at the Portsmouth GDP.

 

5. Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

 

 

 

CONCLUSIONS OF LAW

 

I have reviewed the recommended decision issued by the Cleveland district office on June 22, 2004. I find that you have not filed any objections to the recommended decision, and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

 

The Final Adjudication Branch analyzed the information in the NIOSH report, confirming the 35.65% probability that your cancer was related to your employment at the Portsmouth GDP. That probability is based on your having continuously received radiation dose for the period November 15 , 1954 to June 14, 1992. Because NIOSH assigned occupational radiation dose for the period September 1, 1961, to January 25, 1970, a period during which you did not work at the Portsmouth GDP, the total dose assigned is a significant overestimate of your actual occupational radiation dose at that facility.

 

The Final Adjudication Branch notes that regardless of whether the occupational radiation dose provided in the NIOSH Report of Dose Reconstruction is based on exposure for the period November 15, 1954 to June 15, 1992, or the correct dates of November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the resulting decision would be unchanged. The probability that prostate cancer resulted from radiation received at the Portsmouth GDP, based on the period of November 15, 1954 to June 15, 1992, is 35.65%. Because your occupational radiation dose from November 15, 1954, to August 31, 1961, and January 26, 1970, to June 14, 1992, the correct (shorter) time period, would result in a decrease in the dose and, consequently, a decrease in the probability of causation, no rework of the dose reconstruction and probability of causation is warranted. See EEOICPA Bulletin No. 04-01 (issued October 31, 2003).

 

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer” under the EEOICPA, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP. See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

 

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

 

Cleveland, OH

 

 

 

 

_______________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch