Docket Number: 37277-2006

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 a decision of the Final Adjudication Branch concerning your claim 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 claim is accepted for $150,000 under Part B of the Act and medical benefits for colon cancer under Part B and Part E of the Act. Your claim for pancreatic cancer is denied under Part B and deferred pending further development under Part E of the Act.

STATEMENT OF THE CASE

On October 17, 2002, you filed a Form EE-1 (Claim for Benefits under EEOICPA) under Part B of the Act and a Form DOE F. 350.2 (Request for Review by Physicians Panel) under Part E (formerly Part D) of the Act. You stated that you were diagnosed with colon cancer and pancreatic cancer. You submitted a November 28, 1995 pathology report (based on a November 27, 1995 biopsy), signed by Janet D. Allen, M.D., providing a diagnosis of colon cancer. You also submitted a March 8, 1988 pathology report, signed by Katherine Tabatowski, M.D., providing diagnoses of chronic pancreatitis and cystadenoma, and a December 6, 1995 discharge summary, signed by Kenneth Miller, M.D., providing a diagnosis of cystadenoma.

You also submitted a Form EE-3, Employment History, in which you stated that you worked as a radiation safety superintendent in criticality and health physics for Tennessee Eastman Corporation and Union Carbide, contractors at the Y-12 Plant in Oak Ridge, Tennessee, from November 5, 1943 to February 29, 1984. On the Form EE-3, you stated that you “provided plant with safety limits and procedures relating to activity with enriched uranium” and “visited production and maintenance areas in my daily of monitoring (sic) enriched uranium—often holding it in my hands.” The Oak Ridge Institute for Science and Education (ORISE) data base confirmed you worked at the Y-12 Plant from November 5, 1943 to February 29, 1984. Your job titles include trainee #1, worked from November 5, 1943 to April 15, 1944; technical assistant from April 16, 1944 to May 13, 1944; process foreman from May 14, 1944 to August 19, 1944; technical supervisor from August 20, 1944 to June 2, 1945; process engineer from June 3, 1945 to March 23, 1946; industrial hygienist from March 24, 1946 to May 3, 1947; and engineer from May 4, 1947 to August 31, 1947.

In a draft summary of the Computer Assisted Telephone Interview (CATI) with the National Institute for Occupational Safety and Health (NIOSH), you described your duties as “Casting, forming, machining, and inspection of large natural uranium parts. Chemical and mechanical operations: conversion to metal—highly enriched uranium. Waste recovery and processing.” You indicated you worked in all locations, including buildings 9212 and 9206.

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 facility in Oak Ridge, Tennessee as members of the Special Exposure Cohort (SEC), based on work performed in uranium enrichment operations, or other radiological activities at the Y-12 Plant, for the period from March 1943 through December 1947.

The district office received your written confirmation dated February 15, 2006, that you had not filed or received any settlement or award from a law suit or workers’ compensation claim in connection with the accepted condition.

On February 22, 2006, the Seattle district office issued a recommended decision to accept your claim concluding that you were entitled to compensation in the amount of $150,000 and medical benefits. On March 8, 2006, the Final Adjudication Branch received your written confirmation that you waived your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

FINDINGS OF FACT

1. On October 17, 2002, you filed a Form EE-1 and a Request for Review by Physicians Panel for colon cancer and pancreatic cancer.

2. You were diagnosed with colon cancer on a November 27, 1995. You also diagnosed with chronic pancreatitis and cystadenoma.

3. You worked at the Y-12 plant in Oak Ridge, Tennessee, for TEC and Union Carbide from November 5, 1943 to February 29, 1984. Your job titles include trainee #1, worked from November 5, 1943 to April 15, 1944; technical assistant from April 16, 1944 to May 13, 1944; process foreman from May 14, 1944 to August 19, 1944; technical supervisor from August 20, 1944 to June 2, 1945; process engineer from June 3, 1945 to March 23, 1946; industrial hygienist from March 24, 1946 to May 3, 1947; and engineer from May 4, 1947 to August 31, 1947.

CONCLUSIONS OF LAW

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 for the Y-12 Plant, March 1943 to December 1947.[1] This directive supplements the guidance provided in EEOICPA Bulletin 06-04 (issued November 21, 2005) for evaluating evidence of uranium enrichment operations or other radiological activities for the Y-12 SEC class.

The DEEOIC accepts that certain positions were affiliated with uranium enrichment operations at Y-12 Plant. While your job titles are not included in the list, the list is not all-inclusive. The DEEOIC notes that certain process descriptions are associated with uranium enrichment operations. EEOICPA Bulletin No. 06-11 (issued June 5, 2006) provides examples of these processes, including uranium processing, chemical conversion, and uranium recovery. Your description of your job duties shows that you were involved in all of these processes. Furthermore, you stated that you performed work in buildings 9212 and 9206, both buildings listed as locations involving uranium enrichment activities (specifically, product processing and uranium recovery). Therefore, there is sufficient evidence linking you to uranium enrichment operations or other radiological activities.

You worked in uranium enrichment activities or other radiological activities at Y-12 for more than 250 work days. Therefore, you qualify as a member of the SEC. As a member of the SEC who was diagnosed with colon cancer, which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(M) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), you qualify for benefits as a “covered employee with cancer.” 42 U.S.C. § 7384l(9). Therefore, you are entitled to $150,000 for your colon cancer. 42 U.S.C. § 7384s(a).

You were an employee of Department of Energy (DOE) contractors 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, you are a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2).

Therefore, you are entitled to medical benefits for colon cancer effective October 17, 2002. 42 U.S.C. §§ 7384t, 7385s-8.

The medical evidence shows that you were diagnosed with chronic pancreatitis and cystadenoma, not pancreatic cancer. Therefore, your claim for benefits for pancreatic cancer is denied since you have submitted insufficient evidence to establish that you were diagnosed with pancreatic cancer. 20 C.F.R. § 30.211.

Jacksonville, Florida

Mark Stewart

Hearing Representative