Docket Number: 20858-2006

 

 

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 20858-2006, 10049633-2006

20863-2006, 10049637-2006

20864-2006, 10049638-2006

20876-2006, 10049639-2006

20878-2006, 10049641-2006

20879-2006, 10049645-2006

22193-2006, 10049648-2006

DECISION DATE: June 30, 2006

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, your claims are accepted in part and denied in part.

STATEMENT OF THE CASE

You each filed a Form EE-2, Claim for Survivor Benefits. A claim was also filed by [Claimant #8], but he died on April 21, 2005 before adjudication was complete. You stated on the Forms EE-2 that you were filing for the lung and throat cancer of your late father, [Employee], hereinafter referred to as “the employee.” The death certificate and affidavits establish that the employee was diagnosed with lung cancer in approximately June 1959. The employee’s death certificate shows lung cancer as the cause of death on June 13, 1961. There is no medical evidence supporting a diagnosis of throat cancer.

On the Form EE-3, Employment History, you stated the employee was employed sometime in the 1940s as a machinist with the Manhattan Project in Oak Ridge, Tennessee. The district office verified that the employee worked for Tennessee Eastman Corporation (TEC) at the Y-12 plant[1] for the period of December 27, 1943 to August 29, 1946.

On July 16, 2002, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On September 26, 2005, NIOSH returned your case to the district office. Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

In support of your claims for survivorship, you submitted the death certificate of the employee, and a copy of the death certificate of the employee’s spouse. In addition, you submitted evidence that you are the children of the employee, along with documentation of legal name changes.

On March 20, 2006, the Seattle district office issued a recommended decision, concluding that you are entitled to lump-sum compensation as eligible survivors under Part B of the Act, that [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are eligible survivors under Part E, and [Claimant #2], [Claimant #3], and [Claimant #7] are not eligible survivors under Part E of the Act. The district office also recommended that the claim for throat cancer be denied. On May 27, 2006, the Final Adjudication Branch issued a final decision, denying compensation to [Claimant #2], [Claimant #3], and [Claimant #7] under Part E of the Act.

You each verified that neither you nor the employee filed a lawsuit or a state workers’ compensation claim or received a settlement, award, or benefit for the claimed condition.

The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision.

FINDINGS OF FACT

1. You each filed a Form EE-2, Claim for Survivor Benefits.
2. The employee was diagnosed with lung cancer in approximately June 1959.
3. The employee was employed at the Y-12 plant in Oak Ridge, Tennessee, from December 27, 1943 to Au gust 29, 1946.
4. You are each the employee’s child. [Claimant #1]’s birth date is [Date of Birth]; [Claimant #4]’s birth date is [Date of Birth]; [Claimant #5]’s birth date is [Date of Birth]; and [Claimant #6]’s birth date is [Date of Birth]. The employee’s spouse is no longer living. [Claimant #4] and [Claimant #6] were enrolled in college full-time and continuously from the age of 18 through the date of the employee’s death on June 13, 1961.
5. The employee’s lung cancer caused his death.
6. The employee was 50 years old at the time of his death and died 15 years before his normal retirement age of 65 years.

CONCLUSIONS OF LAW

I have reviewed of the evidence of record and the recommended decision.

On June 5, 2006, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a bulletin establishing supplemental guidance for processing claims for the SEC class at the Y-12 Plant from March 1943 to December 1947.[2] This directive supplements the guidance provided for making a determination that the employee performed work in uranium enrichment operations or other radiological activities for more than 250 days at the Y-12 plant.[3] Attachment 1 of the bulletin lists occupational titles for Y-12 employees involved in Uranium Enrichment Processes. The employment evidence of record, specifically the report from the Oak Ridge Institute for Science and Education (ORISE) database and Department of Energy (DOE) records, indicates that the employee was classified as a “maintenance mechanic” from December 27, 1943 to April 1, 1944; as a “millwright” from April 2, 1944 to December 8, 1945; as a “vacuum service mechanic” from December 9, 1945 to January 12, 1946; and as a “millwright” from January 13, 1946 to August 29, 1946. However, the employee’s job titles are not on the list.[4]

The DEEOIC notes that the Y-12 facility had building locations where uranium enrichment operations or other processes relating to radiological material were conducted. Employees performing non-uranium enrichment duties that were routinely present within the buildings or areas where uranium enrichment operations occurred are also considered part of the SEC class. Department of Energy (DOE) records include a clinical record for the employee listing each time he went to the employee health unit for treatment while employed by the Tennessee Eastman Corporation. Several treatments list a building number (9204-4). Building 9204-4 is acknowledged to be a Beta building where the calutron was located and uranium enrichment occurred. The Final Adjudication Branch performed a search of the U. S. Department of Labor Site Exposure Matrices (SEM). Source documents used to compile the SEM establish that the labor category of “millwright” at Y-12 could potentially be exposed to the toxic substance of uranium tetrafluoride. The SEM contains a list of processes performed by this labor category, which includes uranium recovery, purification, and recycle operations.

The evidence shows that the employee worked at the Y-12 plant in Oak Ridge, Tennessee from December 27, 1943 to August 29, 1946, and as a millwright from April 2, 1944 to December 8, 1945 and from January 13, 1946 to August 29, 1946, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities. Therefore, the employee qualifies as a member of the SEC.

The employee was diagnosed with lung cancer which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(2). You meet the definition of survivors under Part B of the Act. 42 U.S.C. § 7384s(e)(B). Therefore, you are entitled to compensation of $150,000 for the employee’s lung cancer, to be divided equally. 42 U.S.C. § 7384s(a). The exact payment amounts may vary by one penny, as the total compensation may not exceed $150,000.

The employee was an employee of a DOE contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2).

[Claimant #1] was 14 at the time of the employee’s death. [Claimant #4] was 19 at the time of the employee’s death and enrolled full-time in school. [Claimant #5] was 11 at the time of the employee’s death. [Claimant #6] was 21 at the time of the employee’s death and enrolled full-time in school. Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] each meet the definition of a covered child under Part E of the Act. 42 U.S.C. § 7385s-3(d)(2). Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to benefits in the amount of $125,000 for the employee’s death related to lung cancer, to be divided equally. 42 U.S.C. § 7385s-3(a)(1).

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of his death through and including the calendar year in which he would have reached normal retirement age. 20 C.F.R. § 30.815 (2005). This equals 14 years of wage-loss. Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to share an additional $25,000 for the employee’s wage-loss, for a total award of $150,000. 42 U.S.C. § 7385s-3(a)(2).

I also conclude that there was no medical evidence submitted to establish that the employee was diagnosed with the claimed condition of throat cancer, and the claims for that condition must be denied. 20 C.F.R. §§ 30.211, 30.215.

Jacksonville, Florida

Sidne M. Valdivieso

Hearing Representative