Docket Number: 18528-2006

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	18528-2006
DECISION DATE:	February 8, 2008

 

NOTICE OF FINAL DECISION

This is the Notice of Final Decision of the Final Adjudication Branch (FAB) concerning your claim for survivor benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim for survivor benefits is accepted.

STATEMENT OF THE CASE

On January 3, 2002, you filed a claim for survivor benefits under EEOICPA as a surviving parent of [Employee]. You claimed the employee was employed by Dow Chemical, Rockwell International and EG&G at the Rocky Flats Plant[1] from 1964 to 1966, and from June 1, 1981 to 1993. The Department of Energy verified the employee was employed at the Rocky Flats Plant from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

You claimed the employee was diagnosed with ovarian cancer. The pathology report of the tissue obtained on December 28, 1995 described a diagnosis of moderately differentiated endometrioid-type adenocarcinoma of the left ovary.

The employee’s death certificate showed she was born on March 31, 1946; died on January 25, 2001 at the age of 54; and was widowed. The death certificate also listed [Employee’s Spouse] as her spouse; [Employee’s Father] as her father; and [Claimant] as her mother. The death certificate for [Employee’s Spouse] showed he died on February 15, 2000, and was married to [Employee] (maiden name given). The employee’s birth and hospital certificates showed [Employee] was born on March 31, 1946; to [Employee’s Father]and [Claimant]. [Employee’s Father]’s death certificate showed he died on November 27, 1993.

On December 2, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of her employment at the Rocky Flats Plant. On February 17, 2006, a final decision was issued under Part B of EEOICPA denying your claim for survivor benefits based on a probability of causation of 26.93%, which showed that the employee’s cancer did not meet the 50% “at least likely as not” mandated level for compensability.

On August 6, 2007, the Secretary of the Department of Health and Human Services (HHS) designated the following classes of employees for addition to the Special Exposure Cohort (SEC): Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort. The SEC designations for these classes became effective on September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating 250 days during the SEC period (January 1, 1959 through December 31, 1966); was monitored for neutron exposures, as her name appears on the Neutron Dose Report (NDR)[2]; and was diagnosed with ovarian cancer, a specified cancer, more than five years after her first exposure to radiation at the Rocky Flats Plant. Based on the SEC determinations for certain employees at the Rocky Flats Plant, a Director’s Order was issued on December 28, 2007 that vacated the prior decision issued under Part B.

On December 28, 2007, the district office issued a recommended decision to accept your claim for survivor benefits under Part B of EEOICPA and referred the case to the FAB for an independent assessment of the evidence and a final decision on your claim.

On January 11, 2008, the FAB received your signed statement certifying that neither you nor the employee filed any lawsuits, tort suits, or state workers’ compensation claims; or received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

After considering the recommended decision and all evidence in the case, the FAB hereby makes the following:

FINDINGS OF FACT

1. On January 3, 2002, you filed a claim for survivor benefits as the surviving parent of [Employee].

2. You are the surviving parent of [Employee], as supported by birth and death certificates.

3. The employee was employed at the Rocky Flats Plant, a covered DOE facility, from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

4. Effective September 5, 2007, employees at the Rocky Flats Plant that worked from April 1, 1952 through December 31, 1958, and/or January 1, 1959, through December 31, 1966, and were monitored or should have been monitored for neutron exposure, were added to the SEC.

5. The employee has a period of employment at the Rocky Flats Plant aggregating 250 days during the SEC period, September 17, 1964 through July 25, 1966.

6. The employee was monitored for neutron dose exposure during the period September 17, 1964 to July 25, 1966, as confirmed by the NDR.

7. The employee was diagnosed with ovarian cancer (a specified cancer) on December 28, 1995. This diagnosis occurred more than five years after her first exposure to radiation at the Rocky Flats Plant.

8. The evidence of record contains your signed statement certifying that neither you nor the employee filed a lawsuit, tort suits, or state workers’ compensation claims; received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the FAB. 20 C.F.R § 30.310(a). If an objection is not raised during the 60-day period, the FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision. 20 C.F.R. § 30.316(a). On January 11, 2008, the FAB received your written notification waiving any and all objections to the recommended decision.

Part B of EEOICPA provides benefits for an employee diagnosed with a specified cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility. Such employee is considered “a covered employee with cancer.”

On August 6, 2007, the Secretary of HHS designated the following classes of employees for addition to the SEC: Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the SEC. The SEC designations for these classes became effective September 5, 2007.

The employee is a member of the SEC as designated above and defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act, and has been diagnosed with ovarian cancer, a specified cancer. The FAB concludes that the employee is a “covered employee with cancer” pursuant to the requirements of 42 U.S.C. § 7384l(9)(A).

You have established that you are the employee’s eligible survivor, pursuant to 42 U.S.C. § 7384s(e)(3)(C) of the Act. Therefore, you are entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1) and (e)(1)(C).

Accordingly, your claim for survivor benefits for the employee’s ovarian cancer is approved for compensation under Part B of the Act.

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch