Docket Number: 19516-2004

EMPLOYEE: [Name Deleted]

 

CLAIMANT: [Name Deleted]

 

FILE NUMBER: [Number Deleted]

 

DOCKET NUMBER: 19516-2004

 

DECISION DATE: October 15, 2004

 

NOTICE OF FINAL DECISION AND REMAND ORDER

 

This is the 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 January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for chronic obstructive pulmonary disease (COPD).

 

On the Form EE-3, Employment History, you stated you were employed at the Paducah gaseous diffusion plant (PGDP) in Paducah, Kentucky from 1951 to 1954 and 1957 to 1963. The Department of Energy verified this employment as June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963.

 

The district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD). On August 20, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation of $150,000 for chronic beryllium disease and that COPD is a consequential obstructive lung injury of CBD. The district office’s recommended decision also concluded that you are entitled to medical benefits effective January 15, 2002 for chronic beryllium disease and the consequential injury of COPD.

 

On September 20, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

 

I have reviewed the medical evidence and find that it is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease. According to § 7384l(13)(B) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any three of the following criteria:

 

• Characteristic chest radiographic (or computed tomography (CT) abnormalities;
• Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
• Lung pathology consistent with chronic beryllium disease;
• Clinical course consistent with a chronic respiratory disorder;
• Immunologic tests showing beryllium sensitivity.

 

According to the Department of Energy’s Covered Facilities List, exposure to beryllium was possible during your employment at the PGDP. Your verified work for at least one day between 1952 and 1963 is sufficient to establish that you were exposed to beryllium. You have also submitted sufficient evidence to meet 3 of the above criteria: (1) Radiological reports of the chest from 1991, 1993, 1997 and 2001 show lung fibrosis, interstitial markings and chronic inflammatory changes; these findings are characteristic of CBD; (2) a 1993 pulmonary function test report contains a finding of a severe obstructive airway disease; this finding shows obstructive lung physiology testing; (3) medical reports from 1989 to 2001 contain findings of COPD, oxygen dependency and the use of bronchodilators; these findings show a clinical course consistent with a chronic respiratory disorder such as CBD. The evidence of record is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease.

 

I also find that the case must be remanded for a determination regarding the claimed condition of chronic obstructive pulmonary disease (COPD). The district office determined that COPD was a consequential injury of CBD. However, the implementing regulations are clear in stating that an injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease is sufficient in itself to prove a causal relationship.[1] The medical evidence does not contain the required medical opinion.

 

FINDINGS OF FACT

 

1. On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.

 

2. The medical evidence is sufficient to establish that you have chronic beryllium disease. 42 U.S.C. § 7384l(13).

 

3. You were employed at the Paducah gaseous diffusion plant, Paducah, Kentucky, from June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963. Beryllium was present at this facility during the time you were employed. Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).

 

4. The Jacksonville district office issued the recommended decision on August 20, 2004.

 

5. On September 20, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

 

 

CONCLUSIONS OF LAW

 

I find that you are a covered beryllium employee as defined in the Act and that your chronic beryllium disease is a covered condition under the Act and the implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13).

 

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective January 15, 2002, for chronic beryllium disease pursuant to §§ 7384s(a) and 7384t of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384t.

 

Your claimed condition of chronic obstructive pulmonary disease is remanded to the district office for a determination on your eligibility for benefits for this condition. After obtaining the appropriate information and reviewing the facts in accordance with the EEOICPA and the implementing regulations, the district office should issue a new decision in accordance with office procedure.[2]

 

Jacksonville, FL

 

 

 

James Bibeault

Hearing Representative