Docket Number: 19750-2004

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

This decision of the Final Adjudication Branch (FAB) concerns your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §7384 et seq. (EEOICPA). For the reasons stated below, your claims for benefits are denied.

 

STATEMENT OF THE CASE

 

On January 22, 2002, [Claimant 1] filed a claim (Form EE-2) for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which his claim was based. On May 20, 2002, [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which their claims were based. [Claimant 1] submitted an employment history form (EE-3) on which he stated that [Employee] was employed at the International Nickel Company (INCO) from 1951 until the early 1960s. He also stated that [Employee] wore a dosimetry badge while employed. As evidence of employment, the claimants submitted the following:

 

1. Certificate of Membership in the INCO retirement system dated March 1952 acknowledging that [Employee] had been employed for one year.

 

2. Personnel Dept.-Absentee Record which shows [Employee] was employed by INCO from May 1953 to January 1967 in the refinery department.

 

3. Daily Treatment Cards which show [Employee] was hired On March 6, 1952.

 

4. INCO personnel interoffice memo which states [Employee] last worked on January 7, 1967.

 

5. INCO Personal Record which shows [Employee] was hired in the refinery department on March 6, 1952, worked in the blacksmith and extrusion departments, and was pensioned effective May 8, 1968.

 

6. Affidavit from [Co-worker 1] in which he attested that he worked with [Employee] in the refinery and that [Employee] was assigned to pick up contaminated material from the pilot plant, and melt it in the furnace. [Co-worker 1] also attested that [Employee] volunteered to work in the pilot plant during shut downs sweeping and cleaning.

 

7. Affidavit from [Co-worker 2] in which he attested that he worked with [Employee] in the 1960s. [Co-worker 2] also attested that he and [Employee] went to the pilot plant to load contaminated material and transport it back to the refinery department for melt down.

 

On March 11, 2002, Department of Energy representative Roger M. Anders advised the district office, via Form EE-5, that the employment history provided contained information that was not accurate. In an attachment, Mr. Anders advised that [Employee] was not employed in the covered portion of the plant. On April 15, 2002, a representative of the Huntington Pilot Plant advised the district office, by telephone, that a refinery employee worked ½ mile from the reduction plant (old plant) which is the covered part of the plant. On August 6, 2002, an INCO representative wrote to the district office and advised that [Employee] did not work in the Reduction Pilot Plant. The district office determined that the preponderance of evidence establishes the employee was employed at the Huntington Pilot Plant for various periods from March 6, 1952 to May 10, 1971.

 

As medical evidence, the claimants submitted Dr. Donald P. Stacks April 22, 1971 medical report in which he states [Employee] was diagnosed with “bronchogenic carcinoma of the left with mediastinal metastases.” The claimant submitted correspondence from the Cabell Wayne County Medical Examiner in which he states he had received a request for toxicology, pathology or autopsy reports but he could locate no records concerning [Employee]. The claimants also submitted a letter from St. Mary’s Medical Center which states, “No path report found for 1971.”

 

The claimants submitted a copy of the employee’s marriage certificate which shows he was married to [Spouse’s Maiden Name] on October 8, 1937. The claimants submitted copies of their birth certificates which show their parents as [Employee] and [Spouse]. The claimants submitted a copy of the employee’s death certificate which shows he died on May 10, 1971 due to carcinomatosis and bronchogenic carcinoma and a copy of [Spouse]’s death certificate which shows she died on October 5, 1995.

 

On February 12, 2003, the Cleveland district office referred the evidence of record to the National Institute for Occupational Safety and Health (NIOSH) to assist in determining if the employee’s lung cancer was at least as likely as not related to his employment at the Huntington Pilot Plant. On November 29, 2003, December 2, 2003 and December 3, 2003, [Claimant 2], [Claimant 3] and [Claimant 1], respectively, signed a Form OCAS-1 indicating they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH. On January 15, 2004, the district office received the Final Report of Dose Reconstruction from NIOSH. The district office used the information provided in that report to determine that there was a 13.85% probability that the employee’s lung cancer was caused by radiation exposures at the Huntington Pilot Plant.

 

Based upon the evidence of record, the Cleveland district office issued a recommended decision on January 26, 2004, in which it concluded that [Employee] did not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) because he did not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10; and that the Department of Labor (DOL) completed the probability of causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. part 81. The district office recommended denial of the claims based on its conclusions.

 

On March 16, 2004, [Claimant 3] wrote to the FAB and objected to the recommended decision. [Claimant 3] stated that she did not believe any computer program could measure the amount of radiation to which her father was exposed. [Claimant 3] also stated that the recommended decision indicated her father’s degree of contamination was evaluated on the premise that he only worked at the RPP (Reduction Pilot Plant) at shut down, which was not the case as he also worked at various times during the regular work year as well as during shut down. [Claimant 3] requested a hearing and such was held before the undersigned on June 30, 2004 in Charleston, WV. [Claimant 3]’s representative, [Claimant 2] and [Claimant 3] provided testimony at the hearing as to where the employee was employed while at the Huntington Pilot Plant. They explained the period the employee worked during the shut down, how the employee was directly assigned to the Pilot Plant and the other type of employment assignments the employee was given. [Claimant 2] testified that he felt the “13% damage” determined by NIOSH was “way out of hand” and that his father’s death was caused by his employment at the plant. [Claimant 2] also testified that it was his position that his father’s early death at age 51 was due to his employment. [Claimant 3’s Representative] also raised an issue that it was the claimants’ belief that the dose reconstruction was based on the fact that the employee only worked at the Pilot Plant intermittently during shutdown. He wanted to clarify that the term shut down meant the period of years the employee was working in and out of the Pilot Plant. The claimants also objected to the fact that the employee’s work at the refinery was not considered as covered employment. The claimants submitted audio taped affidavits from [Co-worker 1] and [Co-worker 2] as evidence. Subsequent to the hearing, the undersigned advised the claimants that in order to accept the testimony contained in the taped affidavits, the tapes would have to be transcribed and signed by the persons providing the testimony. On August 9, 2004, [Claimant 3] wrote to the FAB and advised of several errors in the transcript. She also stated that the claimants objected to the use of the term “causally related to his employment” on page 6, paragraph 6 of the transcript because the employee worked directly in the Pilot Plant throughout his career with INCO. [Claimant 3] reiterated the claimant’s objection that work in the refinery was not included as covered employment and their concern that the term “shut down” was not being applied properly in considering the merits of the claim. On September 28, 2004, [Claimant 3] submitted a signed affidavit from [Co-worker 2]. In his affidavit, [Co-worker 2] attested that the employee volunteered to work shut down (one month in each year when the plant would shut down) at the Pilot Plant but also worked there various other times during the year. [Claimant 3] also submitted a statement from [Claimant 1] in which he advised that [Co-worker 1] died on January 26, 2004, but [Co-worker 1’s Spouse] had advised him verbally that [Co-worker 1] would have signed the affidavit. [Co-worker 1]’s affidavit reiterates the information he previously provided by affidavit prior to his death.

 

After considering the written record of the claim, the claimants’ objections and testimony presented at the hearing, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. [Claimant 1] filed a claim for survivor benefits under the EEOICPA on January 22, 2002.

 

2. [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA on May 20, 2002.

 

3. The employee was diagnosed with bronchogenic cancer on April 22, 1971.

 

4. The employee was employed at the Huntington Pilot Plant, a Department of Energy facility,[1] for various periods between March 6, 1952 and 1967.

 

5. The employee died on May 10, 1971.

 

6. The employee’s [Spouse] died on October 5, 1995.

 

7. [Claimant 1], [Claimant 2] and [Claimant 3] are the surviving children of the employee.

 

8. On January 14, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record. On January 29, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 13.85% probability determined by NIOSH.

 

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

 

CONCLUSIONS OF LAW

 

To establish eligibility for compensation as a result of cancer, it must first be established that the employee was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by the Department of Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. The DOE advised that [Employee] was not employed at the covered site at the Huntington Pilot Plant, however, two of [Employee]’s co-workers submitted affidavits stating that he volunteered to work at the pilot plant each year during “shut down” and was assigned to work at the pilot plant at various other times during his employment. [Claimant 3] advised in a letter, dated March 16, 2004, that the reason the employment records did not show the employee’s assignments to the pilot plant was because of a Union agreement which allowed employees to be detailed or loaned to different departments as long as the employee’s pay and job status remained the same. [Claimant 3] did not submit a copy of the Union agreement with her letter. The EEOICPA regulations, at § 30.111, provide for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility. The sworn statements from the employee’s coworkers attesting that he worked at the Pilot Plant during annual shut downs and various periods between 1952 and 1967 are used to establish his employment at the Pilot Plant. On January 29, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for the employee’s cancer with the software program known as NIOSH-IREP. These calculations showed that there was a 13.85% probability that the employee’s bronchial cancer was caused by his exposure to radiation during the period of his covered employment at the Huntington Pilot Plant.

 

The claimants’ objections have been reviewed. In regards to the claimants’ objection concerning the exposure received by the employee at the pilot plant, because no radiation monitoring records were found, the employee was assigned the highest reasonably possible radiation dose using worst-case assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data. The dose reconstruction evaluated the employee’s radiation exposure to the bronchi from the potential exposure starting in 1952 until he was diagnosed with cancer in 1971. The primary data source utilized for the dose reconstruction was the document, “Basis for Development of an Exposure Matrix for Huntington Pilot Plant” which presents the evaluation of information regarding the nickel scrap reprocessing work performed by the Huntington Pilot Plant for the Atomic Energy Commission. It was assumed that the employee was exposed chronically to the source, the contaminated nickel during nickel scrap reprocessing. This assumption overestimated the employee’s dose. Even under these assumptions, NIOSH has determined that further research and analysis will not produce a level of radiation dose resulting in a probability of causation of 50% or greater.[2] This approach is based on worst-case assumptions, which is a methodology used by NIOSH per the provisions of 42 C.F.R. § 82.10(k)(2). This is a challenge of the dose reconstruction methodology.

 

In regards to the claimants’ objection regarding the use of computers to determine the amount of radiation and the percentage of probability determined, scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations. Simply explained, if research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation. The computer program for calculating probability of causation, named the Interactive RadioEpidemiological Program (IREP), allows the Department of Labor (DOL) to apply the National Cancer Institute’s risk models directly to data about exposure for an individual employee. IREP estimates the probability that an employee’s cancer was caused by his individual radiation dose. The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year. None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens. In particular, IREP allows the user to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the probability of causation (PoC). Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual. As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses. This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.[3] This is a challenge of the probability of causation methodology, which was developed by NIOSH.

 

Objections challenging the dose reconstruction methodology cannot be addressed by the FAB pursuant to § 30.318(b) of the EEOICPA regulations. 20 C.F.R. § 30.318(b). Pursuant to that section, the methodology used by Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 C.F.R. part 82, is binding on the FAB.

 

In regards to the claimants’ objection regarding the exclusion of the refinery as a covered work site, the DOE has advised that the refinery was not a covered portion of the Huntington Pilot Plant; therefore employment at that site is not considered.

 

The evidence of record does not establish that the employee’s bronchial cancer was “at least as likely as not” (50% or greater) caused by his employment at the Huntington Pilot Plant, within the meaning of § 7384n of the Act. 42 U.S.C. § 7384n. The evidence of record is not sufficient to establish that the employee was a covered cancer employee as defined by § 7384l(9) of the EEOICPA; therefore the claims for benefits under the EEOICPA are denied. 42 U.S.C. § 7384l(9).

 

Washington, DC

 

 

 

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch