Docket Number: 30568-2005

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 30568-2005

DECISION DATE: September 16, 2005

FINAL DECISION FOLLOWING

A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000. 42 U.S.C. § 7384 et seq. Since your attorney-in-fact submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958. On the Form EE-3, Employment History, you stated you were employed in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant with Maxon Construction as an ironworker from 1950/51 to 1954; at the Y-12 plant as a machinist from December 1954 to mid-1955; and at the Oak Ridge National Laboratory (X-10) as a chemical operator from mid 1955 to June 1982.

The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

On December 2, 2004, the Jacksonville district office recommended acceptance of the claim for CBD based on the statutory criteria for a pre-1993 diagnosis and recommended denial of the claimed emphysema. On January 3, 2005, the Final Adjudication Branch (FAB) issued a remand order, which returned the case to the district office for further development.

In accordance with the remand order, the district office obtained a copy of a lymphocyte proliferation test (LPT) verbally reported to have been normal, and forwarded the evidence of record to a district medical consultant for an opinion whether a finding of pulmonary fibrosis was a characteristic abnormality of CBD on a chest x-ray.

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act. 42 U.S.C. § 7384l(7). Due to confirmation of your employment in a facility where beryllium was present, you are considered to be a “covered beryllium employee.” However, in order for you to receive compensation, you must be diagnosed with a covered beryllium illness, in accordance with § 7384 of the Act and implementing regulations. 42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205. “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease. 42 U.S.C. § 7384l(8).

According to § 7384 of the Act, chronic beryllium disease is established by the following:

(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(iii) any three of the following criteria:

(I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.

(II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.

(III) Lung pathology consistent with chronic beryllium disease.

(IV) Clinical course consistent with a chronic respiratory disorder.

(V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

42 U.S.C. § 7384l(13).

On April 29, 2005, the district office received a copy of the lymphocyte proliferation test conducted on January 23, 2003, which contained a finding of a normal response to beryllium sulfate. In light of the report from your physician stating that your steroid use could affect the outcome of the testing, the district office noted that the only situation where a normal LPT could be overridden for acceptance of a post-1993 CBD diagnosis was when a lung tissue biopsy revealed the presence of granulomas consistent with CBD. The lung biopsy on file, from 1958, did not include a finding of granulomas.

Therefore, the claim was also considered under the pre-1993 criteria. The evidence consisted of x-rays denoting abnormalities, obstructive lung physiology testing, and a medical history showing a clinical course consistent with a chronic respiratory condition. However, the chest x-rays which revealed abnormalities were referred to a district medical consultant (DMC), in accordance with policy, to determine if they were characteristic of CBD. In his report of

March 26, 2005, Dr. Robert Sandblom opined that the x-ray reports on file did not show any abnormalities consistent with CBD.

On May 9, 2005, the Jacksonville district office issued a recommended decision to deny the claim for CBD, emphysema, and a lung abscess, since there was insufficient medical evidence to establish a diagnosis of a covered occupational illness under § 7384 of the Act.

42 U.S.C. § 7384l(15).

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. These 60 days expired on July 8, 2005. On July 5, 2005, the Final Adjudication Branch received a letter of objection, dated June 30, 2005, from your attorney-in-fact.

OBJECTIONS

In the objection letter, the attorney-in-fact stated that she disagreed with the office procedures which allowed pulmonary fibrosis to be considered characteristic and then not characteristic. She stated that changes such as this should not be implemented in a retroactive manner, since the clarifications of policy appeared to be more restrictive in order to deny claims. She questioned whether the LPT on record would be investigated further since your physician said that your steroid use could alter the results. She said a phone call to the FAB had not been returned; however, there are no records of any telephone calls after the recommended decision was issued.

The district office and Final Adjudication Branch are bound by the policies and procedures in place at the time a claim is adjudicated and are required to review such a claim in light of those current policies. The issue for determination is whether the chest x-rays meet the pre-1993 criteria for a statutory diagnosis of CBD. Since Dr. Sandblom did not specifically mention the chest x-ray report of February 13, 1967 (which the district office used as support for their recommended acceptance in the original decision) in his earlier response, the Final Adjudication Branch requested clarification. In an addendum dated September 15, 2005, Dr. Sandblom explained that the pulmonary fibrosis noted in February 1967 was due to localized scarring “consistent with the prior lobectomy for lung abscess” and stated that “these changes are definitely not consistent with CBD.”

Furthermore, the procedures address the use of a normal LPT in a living claimant: a lung biopsy that confirms the presence of granulomas may override a normal LPT. The district office thoroughly addressed this requirement in the recommended decision, as discussed above. Telephone records in the case file indicate a test kit was to be forwarded to you in May by ORISE. The results of that testing have not been received.

FINDINGS OF FACT

1. On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958

2. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

3. The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

4. On May 9, 2005, the Jacksonville district office issued a recommended decision to deny compensation and medical benefits for chronic beryllium disease, emphysema, and a lung abscess.

5. On July 5, 2005, the Final Adjudication Branch received a letter of objection from your attorney-in-fact, dated June 30, 2005, and conducted a review of the written record. The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on May 9, 2005, and finds that the evidence submitted does not establish that you meet the statutory criteria for a diagnosis of chronic beryllium disease, as defined in the Act, or any other covered occupational illness, as defined in the Act and implementing regulations. 42 U.S.C. §§ 7384l(13), 7384l(15), 20 C.F.R. § 30.5(z). I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections submitted. As explained in the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). Therefore, I find that you are not entitled to compensation or medical benefits under the Act, and that your claim for compensation must be denied.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative