Docket Number: 20120308-50279-1

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 20120308-50279-1

DECISION DATE: May 22, 2012

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, this claim for survivor benefits under Part B of EEOICPA based on chronic beryllium disease (CBD) is denied.

 

STATEMENT OF THE CASE

 

On September 13, 2010, the claimant filed a Form EE-2 claiming survivor benefits as the alleged surviving spouse of [Employee], and alleged that the employee had contracted bladder cancer, colon cancer, chronic obstructive pulmonary disease (COPD), chronic renal failure, coronary artery disease, and CBD due to his work. On July 1, 2011, FAB issued a final decision accepting this claim under Part E of EEOICPA as the surviving spouse of [Employee]. In that decision, FAB found that [Employee] was a covered Department of Energy (DOE) contractor employee at the Portsmouth Gaseous Diffusion Plant from March 1, 1954 to September 22, 1954, and awarded the claimant compensation of $125,000.00 under Part E based on the employee’s death due to his covered illnesses of COPD and chronic renal failure. On July 12, 2011, FAB issued a second final decision denying the claim for survivor benefits under Part B for bladder cancer and colon cancer, and under Part E based on coronary artery disease and CBD.

 

The medical evidence submitted in support of the claim included a series of records documenting the employee’s treatment history for COPD and other respiratory problems dating back to 2005. A beryllium lymphocyte proliferation test (BeLPT) performed on May 5, 2005 was negative for beryllium sensitivity. The records also contain a series of chest x-rays, computerized tomography (CT) scans and pulmonary function tests, which formed the basis for his diagnosis of COPD. In a report dated November 6, 2008, Dr. Elie Saab raised the issue of whether the employee may have had beryllium sensitivity, but stated that further test data was necessary. A brief one-page report from Dr. Saab dated January 13, 2009 also provides a “problem list” indicating “chronic berylliosis.” A coronary consultation report dated April 8, 2009 from Dr. Aaron Adams states that the employee “had tested positive per Dr. Saab for berylliosis” but did not otherwise indicate that such a diagnosis had been confirmed, nor did he cite any test results supporting this diagnosis.

 

By letters dated December 5, 2011 and January 20, 2012, the district office advised Dr. Saab of the statutory criteria necessary to support a diagnosis of CBD, and asked him to provide a supplemental report explaining whether the employee was diagnosed with CBD. Specifically, Dr. Saab was advised that for diagnoses on or after January 1, 1993, the record must contain a positive LPT performed on either blood or lung lavage cells, as well as lung pathology results consistent with CBD, which may include: (i) a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; (ii) a computerized axial tomography scan showing changes consistent with CBD; or (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with CBD. The district office received no further medical evidence in response to these requests.

 

On March 8, 2012, the Cleveland district office issued a recommended decision to deny the claim for survivor benefits under Part B based on CBD, concluding that the evidence did not establish a diagnosis of CBD under the post-1993 statutory criteria.

 

FINDINGS OF FACT

 

1. The claimant filed a claim for benefits as the surviving spouse of [Employee] based on CBD.

 

2. On July 1, 2011, FAB issued a final decision accepting the claim under Part E of EEOICPA as the surviving spouse of [Employee], based on the employee’s death due to the covered illnesses of chronic renal failure and COPD.

 

3. [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant from March 1, 1954 to September 22, 1954.

 

4. [Employee] died on August 28, 2010. The claimant is his surviving spouse.

 

CONCLUSIONS OF LAW

 

I have reviewed the evidence of record and the recommended decision issued by the district office on March 8, 2012. I find that no objections to the recommended decision have been filed, and that the 60-day period for filing such objections has expired.

 

To be entitled to survivor compensation under Part B on the basis of CBD, the evidence must establish that the employee was a DOE contractor employee who was exposed to beryllium in the performance of duty while present at a DOE facility during a period when beryllium dust, particles or vapor may have been present at such a facility. The evidence must also show that the employee was diagnosed with “established chronic beryllium disease.” 42 U.S.C. § 7384l(13).

 

Part B of EEOICPA provides two sets of criteria for meeting the definition of “established chronic beryllium disease.” CBD diagnosed after January 1, 1993 is established by abnormal BeLPT results consistent with beryllium sensitivity, together with lung pathology consistent with chronic beryllium disease. Such pathology may be demonstrated by the following: (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease. 42 U.S.C. § 7384l(13)(A). CBD diagnosed before January 1, 1993 is established by evidence satisfying any three of the following diagnostic criteria: (i) characteristic chest radiographic (or CT) abnormalities; (ii) restrictive or obstructive lung physiology testing or diffusing lung capacity defect; (iii) lung pathology consistent with chronic beryllium disease; (iv) a clinical course consistent with a chronic respiratory disorder; or (v) immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred). 42 U.S.C. § 7384l(13)(B).

 

Under the Program’s procedures, the determination as to whether a claim is to be evaluated using the pre-1993 or post-1993 criteria must be based on the totality of the evidence, taking into account when the employee was tested for, diagnosed with or treated for a chronic respiratory disorder. Federal (EEOICPA) Procedure Manual, Chapter 2-1000.6 (October 2009). On review of the evidence in the file, I find that the file lacks any evidence that the employee underwent treatment for a chronic respiratory disorder prior to 1993. Therefore, the post-1993 criteria are applicable to this case. Since the record lacks any abnormal BeLPT results showing that the employee was diagnosed with beryllium sensitivity, it is not sufficient to support a diagnosis of established chronic beryllium disease under Part B.

 

Accordingly, this claim for survivor benefits under Part B based on CBD is denied.

 

Cleveland, OH

 

 

 

Greg Knapp

Hearing Representative

Final Adjudication Branch