Docket Number: 20160111-64123-3

U.S. DEPARTMENT OF LABOR

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

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

CASE ID NUMBER: [Number Deleted]

DOCKET NUMBER: 20160111-64123-3

DECISION DATE: August 26, 2016

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation 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, your claim under Part E of EEOICPA for chronic obstructive pulmonary disease (COPD) is denied.

STATEMENT OF THE CASE

The relevant history of your February 1, 2011 claim under Part E of EEOICPA for COPD up to the date that the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued her October 27, 2015 order vacating the prior denial of your claim is found in that order and need not be repeated here. In her order, the Director noted that the evidence of record established that you were intermittently employed as a “Carpenter, Construction” by a subcontractor at the Department of Energy’s (DOE) X-10, K-25 and Y-12 Plants in Oak Ridge, Tennessee for an aggregate of 27 months from November 5, 1968 through June 6, 1980, and instructed the Cleveland district office of DEEOIC to develop your claim by referring it to an Industrial Hygienist (IH) for an opinion as to the level and intensity of your work-related exposure to toxic substances with a potential health effect of COPD during your 27 months of covered employment, to be followed by a referral to a Contract Medical Consultant (CMC) for a medical opinion on the possible relationship of such exposure to your COPD.

Pursuant to the Director’s instructions, the Cleveland district office performed a search of the U.S. Department of Labor’s Site Exposure Matrices (SEM) on November 15, 2015, which showed that carpenters performing construction work at DOE facilities would have been potentially exposed to asbestos, wood dust and silicon dioxide (crystalline). Based on the results of this search, the district office prepared a statement of accepted facts and referred it to an in-house IH for an opinion on the nature and extent of your potential exposure to these three toxic substances. In a report dated November 19, 2015, and an addendum dated December 7, 2015, the IH evaluated the likely extent and routes of exposure for each of the identified substances, in relation to the duties of a carpenter performing construction activities at the X-10, K-25 and Y-12 Plants. The IH’s conclusions with respect to the identified substances were as follows:

• Asbestos is a mineral silicate material and was present in, and widely used at, all DOE facilities. Historically, many common items such as floor tiles, thermal and electrical insulation, pump packing, gaskets, shingles, filters, fire-proofing materials and cement contained asbestos. The primary route of exposure is through inhalation. There are data that support [Employee], in his capacity as a Carpenter (construction), as having been significantly exposed to asbestos while working at all of the Oak Ridge facilities (K-25, X-10 and Y-12). Such exposures would have been associated with general carpentry tasks (due to the disturbance of asbestos-containing insulation during carpentry activities). In addition, [Employee] notes in his occupational history questionnaire (OHQ), that he installed asbestos panels (i.e., transite) on the outside of buildings at all three locations. This would have been an activity that a Carpenter (construction) would have likely performed. Overall, his exposures would have likely been frequent (i.e., a daily basis) and would have ranged from low to moderate levels.

• Wood dust is the particulate material generated by aggressive actions (i.e., sawing, sanding, drilling, etc.) involving wood-based materials. The primary route of exposure is through inhalation. There is evidence that supports [Employee], in his capacity as a Carpenter (construction) at all of the Oak Ridge facilities, as having been significantly exposed to wood dust. Such exposures would have been associated with general carpentry tasks (i.e., sawing, sanding, drilling, etc.). His exposures would have likely been frequent (i.e., a daily basis) and would have ranged from moderate to high levels.

• Silicon dioxide (crystalline), commonly referred to as silica or sand, is a colorless material in crystalline form. It is commonly used in glass manufacturing, metal casting, sandblasting and the manufacture of refractory compounds which are used for metal furnace liners. The primary route of exposure is through inhalation. There is no evidence that [Employee] engaged in any activities that would have resulted in his being significantly exposed to crystalline silicon dioxide (i.e., sandblasting, mixing and applying drywall compound, mixing dry cement, jackhammering, etc.). It is highly unlikely that he was significantly exposed to this agent. Any exposures that he might have received would have been incidental in nature (occurring in passing only) and not significant.

The district office then updated the statement of accepted facts to include the exposure levels as determined by the IH, and referred this to a CMC, Dr. Akshay Sood, a board-certified specialist in both pulmonary medicine and occupational medicine. In a report dated December 21, 2015, Dr. Sood reviewed your occupational history and medical records in detail, and evaluated the relationship between your exposure to asbestos, silicon dioxide (crystalline) and wood dust and your diagnosed condition of COPD. Dr. Sood concluded that while the latency period between your exposure to all three of these substances and your diagnosis (approximately four decades) was appropriate for them to be significant factors in aggravating, contributing to or causing your COPD, and the intensity level of your exposure specifically to wood dust was appropriate, the duration of your exposure (approximately two years) to all three of these substances was not. As a result, Dr. Sood opined that it was not at least as likely as not that your exposure to asbestos, silicon dioxide (crystalline) and wood dust was a significant factor in causing, contributing to, or aggravating your diagnosed COPD.

Following its receipt of Dr. Sood’s report, the Cleveland district office issued a January 11, 2016 recommended decision to deny your claim under Part E for COPD, concluding that the evidence of record did not establish that it was at least as likely as not that your work-related exposure to toxic substances was a significant factor that caused, contributed to, or aggravated your COPD.

OBJECTIONS

You objected to the recommended decision and requested a hearing, which was held on May 12, 2016. A summary of the evidence and argument presented in support of your objections is outlined below, followed by my review and response to these objections:

Objection 1: Your authorized representative argued that you worked as a carpenter at the Oak Ridge facilities for longer than 27 months of aggregate employment and alleged that the employment records used to arrive at that period were incomplete. He also alleged that you actually began working at the Oak Ridge facilities in 1966 (not 1968), and disagreed with the way the calculation of 27 months of aggregate employment was made, alleging that you worked an aggregate of 40 months between 1968 and 1980.

Response to Objection 1: The contemporaneous employment cards provided by DOE clearly list the dates you were hired at Oak Ridge, along with the corresponding termination dates for each period of intermittent employment. The aggregate period of employment based on these records is approximately 27 months. As for your authorized representative’s belief that the dates in the Oak Ridge Institute for Science and Education (ORISE) actually result in 40 aggregate months of employment, I note that the ORISE database is a secondary source that contains data obtained and transcribed from primary personnel documents, and the hire and termination dates listed in the ORISE database for you do not conform with the hire and termination dates on the employment cards for you that are in the case file. I also note that your authorized representative has not provided any evidence to support the allegation that your subcontractor employment began in 1966. I therefore find no basis to conclude that the period of your covered employment has been incorrectly calculated.

Objection 2: Your authorized representative’s overarching argument is that DEEOIC has “failed to follow its own policies and procedures in the adjudication of this claim” by focusing on your exposure to just three substances—asbestos, silicon dioxide (crystalline) and wood dust—to the exclusion of other toxins linked to COPD. He also argued that DEEOIC erred by considering your exposure to each individual substance in isolation, when it should have evaluated the synergistic effect of all of your exposures taken together.[1] According to your authorized representative, a search of SEM under the labor category of “Carpenter” at the Y-12 Plant (Exhibit 1) shows that you were potentially exposed to the following additional substances linked to COPD, which were not addressed by the district office—asphalt, asphalt oxidized, beryllium, coal tar pitch volatiles, epoxy adhesives, glutaraldehyde, sulfuric acid and synthetic vitreous fibers—and submitted the following exhibits related to these additional substances:

· A Hazardous Substance Fact Sheet for the substance Asphalt, published by the New Jersey Department of Health and Human Services. This includes a Hazard Summary section indicating that breathing asphalt fumes can irritate the lungs and cause coughing, wheezing and shortness of breath. (Exhibit 3)

· A journal abstract and the complete article published in Occupational and Environmental Medicine 61 (4):367-9 (April 2004), titled Respiratory symptoms and airflow limitation in asphalt workers. The one-paragraph article summary states that asphalt workers have an increased risk of “respiratory symptoms, lung function decline, and COPD compared to other construction workers.” (Exhibits 4 and 5)

· An undated “study summary” from the National Institute for Occupational Safety and Health (NIOSH) titled Health concerns for workers who worked around beryllium. This includes a statement that the incidence of COPD among workers exposed to beryllium “was 23% higher than the U.S. Population.” (Exhibit 6)

· A journal abstract from an article titled Increased mortality among construction workers exposed to inorganic dust. Eur. Respir J. 2004. This one-page abstract describes a study of Swedish construction workers determined to have been exposed to inorganic dust (asbestos, man-made mineral fibers, dust from cement, concrete and quartz), gases and irritants (epoxy resins, isocyanates and organic solvents), fumes (asphalt fumes, diesel exhaust and metal fumes), and wood dust. It states that the study noted increased mortality from COPD among the study subjects. (Exhibit 7)

· A meeting abstract from a presentation at a conference of the American Thoracic Society titled Respiratory Symptoms, Spirometry, and Immunologic Sensitivity in Epoxy Resin Workers. (Exhibit 8)

· A printout from what appears to be a law firm web site from the United Kingdom stating that the relationship between epoxy resin fumes and COPD has been recognized under that country’s regulatory scheme for hazardous substances. (Exhibit 9)

· A printout from an environmental consulting firm’s web site (“Welding Fume Health Effects – Acute and Chronic”), which claims that exposure to welding fumes is associated with COPD. (Exhibit 10)

At the May 12, 2016 hearing, you provided testimony concerning your work duties at Oak Ridge and your exposures to several of the substances identified above. You recalled working in proximity to welders while employed at Oak Ridge. Initially, you stated that this happened “off and on,” and that it “wouldn’t be all the time.” Later you testified that this happened “all the time” and “quite often.” In relation to your claimed exposure to hot tar and asphalt, you stated that you worked around roofers using these substances, and that this occurred on “several occasions.” You also testified that at times you worked in areas where insulation was being installed or removed, and built and tore down the scaffolding used by the insulators. With respect to your use of epoxy in performing your duties as a carpenter, you stated that you weren’t aware of the specific substances that included this compound, but that you did use caulking and glues when building door frames.

Response to Objection 2. In response to the arguments, factual testimony and exhibits presented at the hearing in support of this second objection, I have reviewed the relevant statutory provisions governing claims under Part E of EEOICPA, as well as DEEOIC policies and procedural guidance concerning the development and adjudication of such claims.

With respect to claims for COPD, EEOICPA Bulletin No. 16-02 provides a framework for acceptance of this condition as a covered illness for DOE contractor employees who worked an aggregate of 20 years in a labor category known to be associated with significant asbestos exposure, and were diagnosed with COPD at least 20 years after such exposure. But in cases not meeting these criteria, such as yours, it instructs claims staff that development must be undertaken in accordance with existing Part E claims adjudication procedures, which require evidence establishing: (1) the extent and duration of exposure to asbestos or other toxins scientifically linked to COPD; and (2) a medical opinion on the relationship between such exposures and the employee’s diagnosis of COPD.

To establish that an employee was exposed to a toxic substance, the record must contain evidence showing that “such substance was present at the facility where the employee worked, that there was a reasonable likelihood for employee exposure, and that the employee came into contact with such substance.” Federal (EEOICPA) Procedure Manual, Chapter 2-700.2a (November 2015). Chapter 2-700.2b of the Procedure Manual notes that a reasonable likelihood of exposure exists when a substance was used “during the processes involved as part of the employee’s job duties and exposure routes.”

SEM is a web-based tool used by DEEOIC to assist claims examiners when they are evaluating the existence of a causal link between an individual’s covered employment, his exposure to toxic substances during such employment, and the illness arising out of such exposure. To be of value, a SEM search must be based on specific linkages between the claimed illness, potential toxic substance exposures for a specific labor category or work process, and a specific covered facility. Thus, for example, a search of the SEM database that is based only on the presence of a particular substance at a covered facility “generally will not be specific enough without other qualifiers such as work category and/or work process, and may not produce usable information for a causation determination.” Federal (EEOICPA) Procedure Manual, Chapter 2-700.10a.

Your authorized representative has identified additional substances not considered by the district office, argues that each of these additional substances is associated with COPD, and alleges that you had significant exposure to these substances in the course of your employment as a carpenter performing construction work at the X-10, K-25 and Y-12 Plants. To evaluate these substances, I conducted a review of the SEM database and all of the other evidence of record to determine whether there is a reasonable likelihood of exposure during work processes you performed as a construction carpenter at Oak Ridge, and whether there is evidence indicating that any of these additional substances have been scientifically linked to COPD.

A review of the list of substances identified by your authorized representative shows that it is based on SEM search data for the labor category of “Carpenter” at the Y-12 Plant (also known as a “Maintenance Shop Carpenter”). This labor category pertains to carpenters who worked in permanent positions for the DOE contractor that operated the Y-12 Plant and is potentially associated with exposure to 47 separate hazardous chemicals. The duties and exposures associated with this labor category are not, however, equivalent to those of carpenters (such are yourself) who performed construction work for subcontractors. The appropriate SEM labor category for the type of work you performed falls under the classification of “Carpenter, Construction,” which applies to all covered DOE facilities and is associated with a much shorter list of 16 potential hazardous chemical exposures.

A review of the SEM profile for construction carpenters does not reveal the potential for significant exposure to asphalt, beryllium, glutaraldehyde or sulfuric acid. Further, there is no other record evidence confirming that you had any significant exposures to these substances while employed at any of the facilities at Oak Ridge. Even if there were evidence of exposure to these substances, there is no established association in SEM between such exposures and COPD.[2]

You testified that you were occasionally exposed to asphalt or tar fumes while working around roofers. SEM does show the potential for exposure to “coal tar creosote” in the labor category of construction carpenter, but there is no link in SEM between this substance (or asphalt) and COPD. The journal article concerning the incidence of COPD among asphalt workers (Exhibits 4 and 5) does not warrant further review at this time because there is no supporting evidence indicating that you had any significant exposure to these substances as a carpenter. Similarly, while SEM shows the potential for exposure to synthetic vitreous fibers among construction carpenters, there is no established link between such exposure and COPD. You introduced into evidence a journal article to support a potential link between COPD and “inorganic dust” (Exhibit 7), and argued that this was equivalent to “vitreous fibers.” The article you cited concerns a wide array of substances, including arsenic, wood dust and epoxy, that have already been evaluated in the specific circumstances of your claim. There is no indication in this article of a causal relationship between COPD and synthetic vitreous fibers as such.

With respect to welding fumes, SEM does indicate that exposure to this substance is scientifically linked to COPD. The SEM profile for construction carpenters, however, does not show that individuals in this labor category performed the duties of welder or had any other routes of significant exposure to welding fumes. Your testimony that you worked around welders on occasion is not sufficient to establish that you had significant exposure to such fumes during processes that were part of your job duties as a carpenter.

The last substance/exposure you identified concerned epoxy resins. The SEM profile for construction carpenters does indicate the potential for exposure to this substance, and you testified to working with caulking materials and glues (which may contain epoxy resins) in the course of your employment at Oak Ridge. Although SEM does not indicate a specific link between epoxy exposure and COPD, you submitted a meeting abstract from a medical conference indicating the possibility of such a relationship. To further evaluate the scientific evidence concerning epoxy resin fumes and COPD, your case was referred to DEEOIC’s in-house toxicologist for review. In a memorandum dated July 14, 2016, the toxicologist explained that the scientific literature on COPD shows that it has a multifactorial etiology, and that population-based studies attribute a sizable proportion of the incidence of the condition to workplace exposures to irritating dusts, gases, fumes and smoke. She further noted that “varying levels of exposure may aggravate or contribute to COPD and the level of exposure experienced by Construction Carpenters at K-25, X-10 as well as Y-12 and may benefit from review by an occupational health physician within the Department of Labor.” On the issue of the relationship between epoxy fumes and COPD, her conclusion was as follows:

The scientific abstract submitted by the claimant entitled “Respiratory Symptoms, Spirometry and Immunologic Sensitivity In Epoxy Resin Workers” summarized a study that showed workers exposed to epoxy resin were more likely to report ever smoking, cough, wheeze, and work-related symptoms than unexposed workers. The information concluded that preliminary results suggest positive blood lymphocyte proliferation tests (LPT) may be useful as a biomarker of exposure and sensitization to epoxy resin. The results do not conclude occupational exposure to epoxy resin causes the development of COPD.

In summary, I opine with reasonable scientific certainty that there is no causal association between occupational exposure to epoxy resins (at the level of exposure experienced by Construction Carpenters at K-25, X-10 and Y-12 during the period of November 5, 1968 and June 6, 1980 - 27 months) and the development of chronic obstructive pulmonary disease (COPD) diagnosed in December 2010 based on the published population-based occupational epidemiology and biomedical literature.

Although the toxicologist’s review of Exhibit 8 and the scientific literature generally did not support a direct causal relationship between exposure to epoxy and COPD, it did leave open the possibility that such exposure could aggravate or contribute to your condition. To evaluate this possibility, your case was returned to DEEOIC’s in-house IH to determine the nature and extent of your exposure to epoxy resin fumes in the course of your employment as a construction carpenter at the X-10, K-25 and Y-12 facilities. In a memorandum dated July 20, 2016, the IH provided the following assessment of your likely exposure to epoxy:

Epoxy adhesives are used in a variety of industrial applications to bond various materials. Typically, epoxy adhesives consist of a two part system: A resin and a hardening/curing component. The routes of exposure include inhalation and eye/skin contact. There are data that support [Employee], in his capacity as a Carpenter (Construction) at all three of the Oak Ridge Reservation sites (X-10, K-25 and Y-12), as having been exposed to epoxy adhesives at greater than incidental levels. Such exposures would have been associated with floor tile installation activities, the fabrication of specialized components such as gloveboxes, and the use of lumber epoxy putty during various carpentry tasks. His exposures would have likely been occasional (i.e., a weekly basis) and would have ranged from very low to low levels.

Finally, to evaluate the relationship between your epoxy exposure and COPD, as well as any synergistic effect between your COPD and exposure to all four substances identified and substantiated in your claim, the matter was referred to DEEOIC’s Medical Director, Dr. Christopher R. Armstrong. Dr. Armstrong was provided with a statement of accepted facts, the medical evidence of record, as well as the reports of the IH and toxicologist. His conclusions were as follows:

[Employee]’s chronic obstructive pulmonary disease (COPD) was not, at least as likely as not, caused, contributed to, or aggravated by his occupational exposure to epoxy adhesives by themselves, or in combination with exposures to asbestos, wood dust, or silica while working intermittently as a construction carpenter for Rust Engineering, Inc. on the Oak Ridge Reservation for a total of 27.5 months between November 5, 1968 and June 6, 1980.

Asbestos, wood dust, and silica are associated with chronic obstructive pulmonary disease (COPD), but the duration of [Employee]’s exposure to these was insufficient to support a causal relationship between his questionable diagnosis of mild COPD and his employment on the Oak Ridge Reservation. Epoxy adhesives are associated with occupational asthma, a reactive airway disease that [Employee] does not have. Furthermore, there is neither a record of significant irritant exposure resulting in respiratory symptoms during his employment, nor a connecting history of respiratory symptoms between the period of his employment and his initial diagnosis of COPD in December 6, 2010.

After reviewing all of the medical evidence of record, I find that it does not support a finding that your exposure to epoxy, asbestos, silicon dioxide (crystalline) and wood dust while working at Oak Ridge, individually or in combination, was a significant factor that caused, contributed to, or aggravated your COPD. Although the record includes a 2013 report from Dr. Wallace providing a medical opinion in support of such a relationship, his opinion is of diminished probative value because it assumes duration of covered employment (16-years) that far exceeds your actual time as a carpenter at Oak Ridge. Dr. Wallace’s opinion also assumes exposures that are not supported by the record, and also alleges causal connections between COPD and substances that are not confirmed in SEM or elsewhere in the record. By contrast, the medical opinions of Dr. Sood and Dr. Armstrong are based on a full review of the relevant medical and factual evidence, provide an accurate occupational history of your employment at Oak Ridge, and contain rationalized medical opinions addressing the relationship between your documented exposures and COPD. I therefore conclude that the reports of Dr. Sood and Dr. Armstrong represent the weight of the medical evidence in your case.

After consideration of the hearing testimony and review of the record, I hereby make the following:

FINDINGS OF FACT

1. You filed a claim under Part E of EEOICPA based on COPD.

2. You were a DOE subcontractor employee at the X-10, K-25 and Y-12 Plants in Oak Ridge, Tennessee, who worked as a construction carpenter for the following periods: November 5 to December 20, 1968; February 17 to July 18, 1969; May 20, 1974 to March 26, 1975; July 26, 1976 to January 14, 1977; February 21 to July 1, 1977; May 5, 1980 to June 6, 1980.

3. You were diagnosed with COPD on December 6, 2010.

4. The evidence establishes that in the course of your employment, you were exposed to asbestos at low to moderate levels, wood dust at moderate to high levels, epoxy at low to very low levels, and silicon dioxide (crystalline) at incidental levels.

5. The medical evidence of record does not support a finding that your exposure to toxic substance in the course of your employment at the X-10, K-25 and Y-12 Plants was a significant factor that caused, contributed to, or aggravated your COPD.

In light of the above findings of fact, I also hereby make the following:

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision. In reviewing any objections submitted, FAB will review the written record, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. I have reviewed the record in this case, to include the hearing testimony and the written objections submitted, and conclude that no further investigation is warranted.

To establish entitlement under Part E of EEOICPA as a covered DOE contractor or subcontractor employee, the evidence must establish that you contracted a covered illness through exposure to a toxic substance at a DOE facility. To meet this requirement, the evidence must show: (1) that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to or causing the illness; and (2) that it is at least as likely as not that the exposure to such toxic substance was related to employment at a DOE facility. 42 U.S.C. § 7385s-4(c).

Although the evidence in your case shows that you were a DOE subcontractor employee who was exposed to several substances in the course of your employment at Oak Ridge that are associated with the health effect of COPD, the medical evidence does not establish that such exposures were at least as likely as not a significant factor causing, contributing to, or aggravating your COPD. For the reasons discussed above, I have concluded that the reports of the CMC (Dr. Sood) and the DEEOIC Medical Director (Dr. Armstrong) represent the weight of medical evidence in your case, and hold greater probative value than the report of Dr. Wallace. I therefore conclude that the evidence does not establish that your COPD is a covered illness under Part E of EEOICPA, and your claim for compensation based on this condition is hereby denied.

Cleveland, Ohio

Greg Knapp

Hearing Representative

Final Adjudication Branch