Docket Number: 28766-2003

 

Case Information

COVERED EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	28766-2003
DECISION DATE:	June 20, 2003

 

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for bladder cancer. Your claim for the condition of prostate cancer is deferred pending further adjudication.

STATEMENT OF THE CASE

On May 6, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), claiming compensation due to prostate cancer. Medical documentation submitted in support of your claim shows that you were diagnosed as having prostate cancer on November 13, 2000. You later submitted a pathology report indicating that you were diagnosed as having bladder cancer on May 9, 2003.

You also completed a Form EE-3, Employment History, in which you indicated that you had worked as a helicopter pilot on Amchitka Island for Anchorage Helicopter Service from June 25, 1971 to December 1, 1971, and from May 1974 to June 1974; and, for Evergreen Helicopters from May 13, 1972 to November 17, 1972. You also submitted a narrative report of your experiences on Amchitka Island; a commendation letter from the resident manager, of Holmes & Narver, Incorporated, dated November 20, 1971, recognizing your work under hazardous conditions on Amchitka Island on November 6, 1971; and, a copy of a letter outlining the start of the operational period for Project Cannikin, which included attachments describing security procedures and issuance of film badges. The record also includes a completed Form EE-4 from your friend and work associate, Ian Mercier, in which he averred that you had worked as chief helicopter pilot for Anchorage Helicopter Service and Evergreen Helicopters, under contract to Holmes & Narver, prime contractor to the Atomic Energy Commission on Amchitka Island, Alaska, from June 24, 1971 to June 1, 1974.

In correspondence dated May 16, 2002 and August 29, 2002, representatives of the Department of Energy (DOE) indicated that they had no employment information pertaining to you; however, they were able to verify that you had been issued a film badge at the Amchitka Test Site on August 2, September 3, September 30 and October 29, 1971, and attached an employment affidavit from a work associate, Paul J. Mudra, who indicated that you had worked for Anchorage Helicopter Service from June to December 1971 and that he had had direct contact with you during the Cannikin underground testing on Amchitka Island, Alaska, during several months in the fall of 1971. The Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin, recognizes Anchorage Helicopter, as a covered subcontractor for a prime Atomic Energy Commission contractor, Holmes & Narver, Incorporated, on Amchitka Island from June to December 1971, for purposes of providing helicopter service. See Atomic Energy Commission’s Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin (January 1973).

On June 16, 2003, the Seattle district office issued a recommended decision that concluded that you were a covered employee as defined in § 7384l(9)(A) of the Act and an eligible member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA, who was diagnosed as having a specified cancer, specifically bladder cancer, as defined in § 7384l(17) of the Act. See 42 U.S.C. 7384l(9)(A), (14)(B), (17). The district office further concluded that you were entitled to compensation in the amount of $150,000 pursuant to § 7384s(a)(1) of the EEOICPA. See 42 U.S.C. § 7384s(a)(1). The district office’s recommended decision also concluded that, pursuant to § 7384t of the EEOICPA, you were entitled to medical benefits for bladder cancer retroactive to May 6, 2002. See 42 U.S.C. § 7384t.

On June 18, 2003, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

CONCLUSIONS OF LAW

In order for an employee to be afforded coverage under the “Special Exposure Cohort,” the employee must be a “covered employee,” which is defined in § 7384l(14)(B) of the EEOICPA, in relevant part as follows:

The employee must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed before January 1, 1974, by DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

See 42 U.S.C. § 7384l(14)(B); 20 C.F.R. § 30.214(a)(2). Further, in order to be entitled to benefits for specified cancer, § 7384l(17) of the EEOICPA indicates that the covered employee must have any of the following:

A. A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note).

B. Bone cancer.

C. Renal cancers.

D. Leukemia (other than chronic lymphocytic leukemia) if initial occupational exposure occurred before 21 years of age and onset occurred more than two years after initial occupational exposure.

See 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(dd).

The employment evidence of record demonstrates that you were an employee of Anchorage Helicopters, a covered subcontractor for a prime Atomic Energy Commission contractor, Holmes & Narver, Incorporated, located on Amchitka Island, Alaska, from June to December 1971, and that your employment was consistent with the type and kind of work performed by this subcontractor for the Department of Energy (DOE) at this site. See Atomic Energy Commission’s Manager’s Completion Report, Amchitka Island, Alaska, Milrow and Cannikin (January 1973). Consequently, this evidence establishes that you were “employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska.” See 42 U.S.C. § 7384l(14)(B).

The Act requires that the covered employee must show that they were exposed to ionizing radiation in the performance of duty related to the underground tests on Amchitka. See 42 U.S.C. § 7384l(14)(B). In a memorandum to the Director, Division of Energy Employees Occupational Illness Compensation Program, a Certified Health Physicist, Branch of Policies, Regulations and Procedures, concluded that, in his professional opinion, radioactivity from the Long Shot nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. Therefore, as a result of the releases, employees who worked on Amchitka Island were exposed to ionizing radiation from the nuclear tests beginning a month after the detonation.

The record indicates that you were present on Amchitka Island, Alaska, from at least June to December 1971. The undersigned acknowledges that such evidence shows that you have met the requirement of being exposed to ionizing radiation in the performance of duty, before January 1, 1974. See 42 U.S.C. § 7384l(14)(B).

You filed a claim based on bladder cancer. A pathology report from the Northwest Urology Clinic shows that you were diagnosed as having bladder cancer in May 2003. Consequently, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the EEOICPA. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R.§ 30.5(dd)(5)(iii)(K).

You are a covered “Special Exposure Cohort” employee which is defined in § 7384l(14)(B) of the EEOICPA. See 42 U.S.C. § 7384l(14)(B). Bladder cancer is a “specified cancer” as that term is defined in § 7384l(17) of the Act and § 30.5(dd)(5)(iii)(K) of the EEOICPA regulations. See 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(dd)(5)(iii)(K).

For the foregoing reasons, the undersigned hereby accepts your claim for bladder cancer. You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA. See 42 U.S.C. § 7384s. Further, you are entitled to medical benefits related to bladder cancer, retroactive to May 6, 2002, the date your claim was filed, pursuant to § 7384t of the Act. See 42 U.S.C. § 7384t; 20 C.F.R. § 30.400(a).

Your claim for prostate cancer is deferred pending further adjudication.

Seattle, Washington

_____________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch