Docket Number: 20772-2006

U.S. DEPARTMENT OF LABOR

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

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning 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 or the Act). For the reasons set forth below, the Final Adjudication Branch accepts your claims for compensation in the amount of $25,000 (one-sixth each of $150,000) under Part B. A decision on your claims under Part E is deferred pending additional development.

STATEMENT OF THE CASE

On January 22 ([Claimant #1]) and April 5, 2002 ([Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], and [Claimant #6]), you each filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act), based on the employee’s ([Employee], your father) condition of metastatic carcinoma of the spinal cord.

The record includes medical summaries and operative reports indicating that the employee was diagnosed with metastatic carcinoma spinal cord tumor. On November 28, 1989, Patrick W. Hitchon, M.D., Professor of Neurosurgery, opined that primary sites of the cancer were likely the kidney and or the lung.

You submitted a Form EE-3 (Employment History) indicating that the employee worked for the Iowa Ordnance Plant, Mason & Hangar, for twenty-eight years, as a truck driver in “all areas of the plant as well as Line One.” A representative of the Department of Energy was only able to verify the employee worked at the Iowa Ordnance Plant from November 19, 1951 to January 16, 1961.

Other evidence of record contains employment information. You provided a statement, based on information you obtained from talking to a foreman and co-workers of the employee. You stated that the employee worked at “Iowa Plant, Army Ammunition Plant, Line one building Middleton, Iowa.” He was a “truck driver” who hauled “people (electricians, sheet metal workers, iron workers and carpenter) to [the] job site.” Also, the employee “hauled materials and helped to upload materials.” In addition, the employee worked at “Firing Site Test Area (FS12)” as he hauled “workers to perform their jobs.”[1] He waited for workers to take them back. Also the employee hauled materials [for] “test bombs.” In addition, you provided numerous medical records relating to the employee’s medical treatment while he was an employee of “Mason & Hanger-Silas Mason Co., Inc.” Specifically, one report, dated July 31, 1969, for a right index finger tip injury included the place of injury or illness on Line 1 noted as “East Gate of Line 1.”

You provided a copy of the employee’s death certificate showing he died on January 4, 1990, due to conditions including metastatic carcinoma with an unknown primary. The employee was survived by a spouse, your mother, who subsequently died on June 22, 1993. In addition, you provided copies of your birth certificates to show that you are a child of the employee, and marriage certificates to show name change ([Claimant #2] and [Claimant #3]).

The file was referred to the National Institute for Occupational Safety and Health for radiation dose reconstruction. Effective June 19, 2005, certain employees of the IAAP were added as members of the Special Exposure Cohort (SEC) based on work performed for the Department of Energy or the Atomic Energy Commission, for the time period March 1949 through 1974. 70 Fed. Reg. 37409 (June 29, 2005).

On November 8, 2005, the Denver district office issued a recommended decision to accept your claims based on the condition of metastatic carcinoma of the spinal cord, with the lung and/or kidney as probable primary sites, concluding that you are a surviving child and each of you are entitled to $25,000 (one-sixth of $150,000).

On November 21 ([Claimant #3]) and December 30, 2005 ([Claimant #1], [Claimant #2], [Claimant #4], [Claimant #5], and [Claimant #6]), the Final Adjudication Branch received written notification from you indicating that you waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision.

FINDINGS OF FACT

1. On January 22 and April 5, 2002, you filed claims for survivor compensation under EEOICPA.
2. The employee worked at the Iowa Ordnance Plant on Line One or Atomic Energy Commission operations at the Firing Site Area in excess of 250 days, between September 14, 1951 and September 8, 1988.
3. The employee was diagnosed with metastatic carcinoma spinal cord tumor, with primary sites noted as likely the kidney and/or the lung on November 28, 1989.
4. The employee contracted the cancer after beginning employment at a DOE facility.
5. The employee died on January 4, 1990 and was survived by a spouse who is now deceased.
6. Each of you is a surviving child of the employee.

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the Final Adjudication Branch may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a). All of you waived your right to file objections to the findings of fact and conclusions of law in the recommended decision.

Pursuant to the authority granted by 42 U.S.C. § 7384q, and effective June 19, 2005, as provided for under 42 U.S.C. § 7384l(14)(C), the following class of employees was added to the Special Exposure Cohort: [e]mployees of the Department of Energy (DOE) or DOE contractors or subcontractors employed by the Iowa Army Ammunition Plant, Line 1, during the period March 1949 through 1974 and who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with workdays within the parameters (excluding aggregate work day requirements) established for other classes of the employees included in the SEC. 70 Fed. Reg. 37409 (June 29, 2005). Because your claim was filed prior to June 20, 2005, the presumption exists that the employee performed Atomic Energy Commission work. See EEOICPA Bulletin No. 05-06 (issued Sept. 6, 2005).

The sum of the employment evidence including information from the Department of Energy, medical records you submitted, and your statement that the employee worked on Line One and at the Firing Test Site (Atomic Energy Commission operations), confirms that the employee worked at the Iowa Ordnance Plant (also known as the IAAP) on Line One or performing Atomic Energy Commission operations, between September 14, 1951 and September 8, 1988. The employee worked in excess of 250 days at the IAAP on Line One or in Atomic Energy Commission activities from September 14, 1951 to September 8, 1988. Such employment qualifies the employee for SEC status.

As a member of the Special Exposure Cohort, who was diagnosed with metastatic carcinoma spinal cord tumor, with primary sites noted as likely the kidney and/or the lung, which qualifies as a specified cancer, 20 C.F.R. § 30.5(ff)(1) and (4), the employee is a “covered employee with cancer.” 42 U.S.C. § 7384l(9)(A). You are each a surviving child of the employee under 42 U.S.C. § 7384s(e)(1)(B).

Accordingly, you are each entitled to compensation in the amount of $25,000 (one-sixth of $150,000.00) pursuant to 42 U.S.C. § 7384s(a)(2).

Washington, DC

__________________________________

Rosanne M. Dummer

Hearing Representative