Docket Number: 17556-2003

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. For the reasons set forth below, the Final Adjudication Branch accepts your claim for the condition of lung cancer under the EEOICPA.

 

 

STATEMENT OF THE CASE

 

On December 13, 2001, you filed a claim, Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employment of your late husband, [Employee] (the employee). You identified an unspecified cancer as the condition being claimed.

 

Medical evidence submitted with the claim included a December 19, 1989 medical report from St. Mary’s Hospital, showing a diagnosis of poorly differentiated large cell carcinoma of the upper lobe of the right lung. You also submitted a copy of a pathology report which diagnosed lung cancer on December 15, 1989.

 

You provided a Form EE-3 (Employment History), indicating that your husband was employed with James Bolt, a subcontractor, while at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio from approximately 1976 to 1985. The Department of Energy (DOE) was unable to verify your husband’s employment. Following appropriate development, on December 11, 2002, the Cleveland district office issued a recommended decision to deny the claim based on the lack of established employment at a facility covered under the Act. On February 20, 2003, the Final Adjudication Branch affirmed the findings of the district office’s recommended decision.

 

On January 13, 2004, you requested that your case be reopened. Along with your request, you submitted additional employment evidence. On April 23, 2004, as a result of the additional employment evidence you submitted, a Director’s Order was issued vacating the February 20, 2003 final decision of the Final Adjudication Branch denying your claim for compensation under the EEOICPA. Your case was then returned to the Cleveland district office for consideration of the new evidence and issuance of a new recommended decision.

 

The Cleveland district office was able to verify that your husband was employed by James Bolt from about 1978 to 1985 based on an itemized statement of earnings provided by the Social Security Administration (SSA). You also provided several letters and Forms EE-4 (Employment History Affidavit) from Pat Spriggs (your husband’s co-worker), Cassandra Bolt-Meredith (the wife of James Bolt, your husband’s employer), and [Name of Employee’s son-in-law] (your husband’s son-in-law) placing your husband on site at the Portsmouth GDP as a part-time subcontractor employee from 1978 to 1985. In addition, a letter from Bruce E. Peterson, General Manager of Ledoux & Company stating that “Mr. James Bolt was an independent subcontractor for Ledoux & Company performing witnessing services for various clients at the Portsmouth Gaseous Diffusion Nuclear Facility in Portsmouth, Ohio” supports that a contract existed between James Bolt, Ledoux & Company, and the Portsmouth GDP during the 1970’s and 1980’s.

 

You provided a copy of your marriage certificate, showing you and your husband were married on October 7, 1947. You provided a copy of your husband’s death certificate showing he was married to you at his time of death on February 14, 1990.

 

On August 23, 2004, the Cleveland district office issued a recommended decision that concluded your husband is a member of the Special Exposure Cohort, as defined by § 7384l(14)(A). The district office further concluded that your husband was diagnosed with lung cancer, which is a specified cancer as defined by § 7384l(17)(A). In addition, the district office concluded that you are the surviving spouse of the employee, as defined by § 7384s, and, as such, you are entitled to compensation in the amount of $150,000.00 pursuant to § 7384s.

 

On August 30, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

 

 

FINDINGS OF FACT

 

1. You filed a claim and presented medical evidence on December 13, 2001, based on your husband’s lung cancer.

 

2. For the purposes of SEC membership, your husband was employed with James Bolt, a DOE subcontractor, at the Portsmouth GDP in Piketon, Ohio, from at least 1978 to 1985

 

3. Your husband was employed for a number of work days aggregating at least 250 work days from September 1, 1954, to February 1, 1992, and during such employment worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

 

4. On December 15, 1989, your husband was diagnosed with lung cancer.

 

5. You are the surviving spouse of the employee and were married to him at least one year prior to his death.

 

 

CONCLUSIONS OF LAW

 

In order to be considered a “member of the Special Exposure Cohort,” your husband must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body; or had exposures comparable to a job that is, or, was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

 

The evidence of record establishes that your husband worked in covered employment at the Portsmouth GDP from at least 1978 to 1985. Consequently, he met the requirement of working more than an aggregate 250 days at a covered facility. Also, the statute requires proof that the covered employee was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body. You indicated that you were not sure whether your husband wore a dosimetry badge. Under provisions of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), employees who worked at the Portsmouth GDP between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3 (June 2002). Thus, your husband met the dosimetry requirements of the Act.

 

The EEOICPA provides coverage for a specified cancer as defined in § 4(b)(2) of the Radiation Exposure Compensation Act (RECA) including cancer of the lung. The medical evidence of record indicates that your husband was diagnosed with lung cancer. Therefore, he is a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the Act. See 42 U.S.C. § 7384l(17)(A).

 

The employee is deceased and you have provided documentation that you are the surviving spouse of the employee, who was married to the employee at least one year immediately before his death. See 42 U.S.C. § 7384s(e)(3)(A).

 

For the foregoing reasons, the undersigned hereby accepts and approves your claim based on cancer of the lung. You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA. See 42 U.S.C. § 7384s(a)(1) and (e)(1)(A).

 

Cleveland, Ohio

 

 

__________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch