Docket Number: 20140710-84623-2

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 20140710-84623-2

DECISION DATE: March 19, 2015

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for 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, the request for the issuance of a subpoena in this matter, and the claim for basal cell carcinoma (BCC) of the face under Part B, are both denied.

 

STATEMENT OF THE CASE

 

On March 25, 2013, the employee filed a claim under Part B of EEOICPA and alleged that he had contracted BCC of the face due to his work-related exposure to radiation. In support of that claim, the employee submitted a pathology report showing that he had been diagnosed with BCC of the left cheek on January 22, 2013. The evidence in the case file indicates that the employee worked at the Allied Chemical Corporation’s covered worksite in Metropolis, Illinois, beginning on February 16, 2004. The Metropolis worksite has been designated as an Atomic Weapons Employer (AWE) facility by the Department of Energy (DOE), for the covered period of 1959 through 1976, with a period of residual radioactive contamination of 1977 to March 1, 2011.[1] This employment was accepted as factual by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) through at least January 8, 2014.[2]

 

As part of the development of this claim, the Cleveland district office of DEEOIC referred it to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the employee’s radiation exposure during his employment at the Allied Chemical Corporation’s worksite in Metropolis. After the employee signed the Form OCAS-1, indicating that he had reviewed a draft of NIOSH’s dose reconstruction report and that he had nothing more to submit in connection with his dose reconstruction, NIOSH provided the Cleveland district office with the final dose reconstruction report. Using the data contained in that report, the district office calculated that the probability of causation (PoC) for the employee’s BCC of the face was 21.23%. The district office then issued a July 10, 2014 recommended decision to deny the employee’s Part B claim, on the ground that it was not “at least as likely as not” (a 50% or greater threshold) that his BCC of the face was due to exposure to radiation during his employment at the AWE facility in Metropolis.

 

By facsimile dated August 12, 2014, the employee’s authorized representative objected to the recommended denial of this Part B claim and requested an informal hearing before FAB, which took place on November 18, 2014. On the same date of the hearing, November 18, 2014, the authorized representative also submitted a written request that the FAB hearing representative issue a subpoena for the production of documents.

 

On December 4, 2014, the FAB hearing representative issued a written preliminary denial of the subpoena request on the ground that it was untimely, because it was not filed within 30 days after the date of the August 12, 2014 facsimile. As part of this preliminary denial, the FAB hearing representative notified the authorized representative that the issue of the subpoena request would be addressed again in the final decision on the employee’s Part B claim. By facsimile dated December 11, 2014, the authorized representative requested that the FAB hearing representative reconsider his preliminary denial of the subpoena request; on January 13, 2015, the FAB hearing representative informed the authorized representative that reconsideration of the preliminary denial was not available, and reminded him that the denial of his request would be addressed in the final decision.[3]

 

OBJECTIONS

 

In his August 12, 2014 facsimile objecting to the recommendation to deny the employee’s Part B claim for BCC of the face, the authorized representative made five arguments. As noted above in footnote two, all of these arguments were previously raised by the authorized representative in support of the employee’s denied claims.

First, the authorized representative argued that DEEOIC has wrongly refused to recognize the presence of uranium “daughter” products associated with the processing work that occurred at the Allied Chemical Corporation’s Metropolis worksite. Simply put, this argument involves the amount of radiation to which the employee believes he was exposed and is therefore relevant to his Part B claim for BCC of the face. However, the authorized representative did not raise these allegations before NIOSH, which is the agency tasked by Section 2(b)(iii) of Executive Order 13179 (65 Fed. Reg. 77487, December 11, 2000) to consider this issue. See also 20 C.F.R. § 30.2(b) (2014). Instead, and as noted above, the employee signed the Form OCAS-1 and thereby indicated to NIOSH, and to DEEOIC, that he had nothing more to submit in connection with his dose reconstruction. DEEOIC has no role under Part B of EEOICPA in determining the amount of radiation to which covered employees are exposed. FAB has considered this argument; given that the employee previously signed the Form OCAS-1, FAB concludes that these unsupported allegations are not credible and do not warrant any of the further development described in 20 C.F.R. § 30.318(a).

 

Second, he argued that DEEOIC should determine that the Metropolis worksite meets the statutory definition of a DOE facility because “operations” on behalf of DOE and its predecessor agencies took place there. Since the question of whether the Metropolis worksite meets this definition has nothing to do with the employee’s Part B claim currently under consideration, this argument is clearly irrelevant to that claim. Even if it were relevant, DEEOIC does not dispute that “operations” took place at that worksite, but this fact alone is insufficient to establish that the Metropolis plant is a DOE facility. Neither DOE nor any of its predecessor agencies had a “proprietary interest” in the Metropolis worksite, so the requirement of § 7384l(12)(B)(i) is not met. Also, neither DOE nor any of its predecessor agencies entered into one of the specific types of contracts that are listed in § 7384l(12)(B)(ii) with an entity at the worksite, so that alternate requirement is also not met.

 

Third, the authorized representative argued that DEEOIC’s actions in this claim are inconsistent with the way it decided if the Office of Scientific and Technical Information (OSTI) worksite in Oak Ridge, Tennessee, was a DOE facility, and with EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008). As was the case with the second argument discussed above, the question of whether the Metropolis worksite is a DOE facility is irrelevant to the employee’s Part B claim for BCC of the face. In addition, the determination by DEEOIC that OSTI was a DOE facility was based on the finding that DOE and its predecessor agencies had a “proprietary interest” in that worksite, and neither DOE nor any of its predecessor agencies has ever had such an interest in the Metropolis worksite, which has always been owned by the Allied Chemical Corporation and its corporate successors. And as for EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008), FAB notes that the analysis in that matter is precisely the same analysis that is being used in the employee’s claim; therefore, FAB disagrees with the assertion that DEEOIC is acting in an inconsistent manner here.

 

Fourth, he argued that the Metropolis worksite is or will be eligible to be designated by DOE for remediation under the Formerly Utilized Sites Remedial Action Program, and therefore workers employed there doing clean-up should be covered under Part E. As was the case with the second and third arguments discussed above, the question of whether workers at the Metropolis worksite under this scenario will be covered under Part E of EEOICPA is irrelevant to the employee’s Part B claim for BCC of the face. More importantly, this argument assumes that DOE will make this designation, when in fact no such designation has been made.

 

And fifth, the authorized representative argued that employees of a contractor that had allegedly concealed transuranics at the Metropolis worksite from the Nuclear Regulatory Commission were hired by DEEOIC to compile both Site Exposure Matrices (SEM) information for the Metropolis worksite, and for the site profile used by NIOSH to perform dose reconstructions for workers at that same worksite, and this created an impermissible conflict of interest. However, DEEOIC did not hire the contractors that prepared the site profile used by NIOSH to perform dose reconstructions, NIOSH did. Also, there is no toxic substance exposure profile for the Metropolis worksite in SEM since it is an AWE facility (SEM only contains profiles of worksites that are either DOE facilities or uranium mines and mills covered under Part E). And more importantly, this argument is irrelevant to both the claimant’s Part B claim and his belief that the Allied Chemical Corporation’s Metropolis worksite satisfies the statutory definition of a DOE facility.

 

After carefully considering the entirety of the evidence in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. The employee was diagnosed with BCC of the face on January 22, 2013. He claimed benefits for this cancer under Part B of EEOICPA on March 25, 2013.

 

2. The employee has verified employment as an atomic weapons employee at the Allied Chemical Corporation’s worksite in Metropolis, Illinois from February 16, 2004 through at least January 8, 2014. DOE has designated this worksite as an AWE facility.

 

3. The PoC of the employee’s claimed BCC of the face is 21.23%.

 

4. On August 12, 2014, the employee’s authorized representative objected to the Cleveland district office’s recommended denial of this claim.

 

5. More than 30 days later on November 18, 2014, the authorized representative submitted a written request that the FAB hearing representative issue a subpoena.

 

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

 

CONCLUSIONS OF LAW

 

The first matter to be decided in this final decision concerns the November 18, 2014 request of the authorized representative for the issuance of a subpoena. Section 7384w authorizes the Secretary of Labor to issue subpoenas for the testimony of witnesses and for the production of documentary evidence in connection with claims under Part B of EEOICPA. The Secretary has exercised this discretionary authority by promulgating 20 C.F.R. §§ 30.301 and 30.302. Section 30.301(b) provides the following, in pertinent part:

 

(b) A claimant may also request a subpoena in connection with his or her claim under Part B of the Act, but such request may only be made to a FAB reviewer. No subpoenas will be issued at the request of the claimant under any other portion of the claims process. The decision to grant or deny such request is within the discretion of the FAB reviewer. To request a subpoena under this section, the requestor must:

(1) Submit the request in writing and send it to the FAB reviewer as early as possible, but no later than 30 days (as evidenced by postmark, electronic marker or other objective date mark) after the date of the original hearing request[.]

 

As found above, and as the FAB hearing representative indicated in his December 4, 2014 preliminary denial, the authorized representative’s November 18, 2014 subpoena request was made more than 30 days after his August 12, 2014 facsimile objecting to the district office’s recommended decision in this Part B claim. As a result, the request was clearly untimely under § 30.301(b)(1), and the preliminary denial correctly denied the request on this ground.

 

Turning next to the merits of the employee’s current Part B claim for BCC of the face, in order to be afforded coverage as a “covered employee with cancer” under § 7384l(9), the employee must be a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer after beginning employment at a DOE facility or an AWE facility. Subsection (B) of that section is pertinent to this claim and defines a “covered employee with cancer” as an atomic weapons employee who contracted cancer after beginning employment at an AWE facility if, and only if, that individual is determined to have sustained that cancer in the performance of duty in accordance with 42 U.S.C. § 7384n(b), which requires that the cancer be “at least as likely as not” related to employment covered under EEOICPA.

 

To determine the probability of whether the employee sustained his cancer in the performance of duty, the Cleveland district office referred the claim to NIOSH for reconstruction of his radiation dose. The information and methods utilized to produce the dose reconstruction are summarized and explained in NIOSH’s final report of dose reconstruction in the file. Using the data provided in NIOSH’s report, the district office calculated a 21.23% probability that the employee’s cancer was caused by his radiation exposure while employed at the Allied Chemical Corporation’s worksite in Metropolis, Illinois. The undersigned also analyzed the information in the NIOSH report, confirming the 21.23% PoC.

 

Therefore, the employee’s claim must be denied because the evidence does not establish that he is a “covered employee with cancer,” since his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Metropolis facility. See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

 

For these reasons, FAB concludes that the evidence is insufficient to allow compensation under EEOICPA, and the employee’s Part B claim for BCC of the face is hereby denied.

 

Washington, DC

 

 

 

Lawrence A. Ricci

Hearing Representative

Final Adjudication Branch