Docket Number: 37539-2005

 

 

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 37539-2005

DECISION DATE: November 2, 2005

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the 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 for benefits under § 7384 of the Act is denied.

STATEMENT OF THE CASE

On October 23, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for esophageal cancer. You submitted medical evidence establishing that you were diagnosed with esophageal cancer on April 12, 2002.

On the Form EE-3, Employment History, you stated you were employed as a sheet metal worker at the Y-12 plant in Oak Ridge, Tennessee, for the period of April 1, 1974 to February 12, 2002. You stated that during this employment, you visited the Oak Ridge, Portsmouth, and Paducah gaseous diffusion plants several times a year, as well as X-10 (the Oak Ridge National Laboratory, or ORNL). In addition you visited the Idaho National Engineering and Environmental Laboratory (INEEL) in Scoville, Idaho. The district office verified this employment as April 1, 1974 to February 11, 2002, including a period of temporary duty at INEEL from April 10, 1992 to May 18, 1992.

To determine the probability of whether you sustained cancer in the performance of duty, as required to determine eligibility for benefits under § 7384 of the Act, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. 20 C.F.R. § 30.115. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.” On March 27, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on June 1, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 28.1% probability that your cancer was caused by radiation exposure at the DOE facilities in which you worked. 42 C.F.R. § 81.20. The Final Adjudication Branch independently confirmed the 28.1% probability.

On March 4, 2005, the Denver district office issued a recommended decision concluding that you are not entitled to compensation since your cancer is not covered under § 7384 of the Act.

The recommended decision informed you that you had sixty days to file any objections, and that period ended on May 3, 2005. On May 6, 2005, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 6, 2005. The hearing was held on July 20, 2005, in Oak Ridge, Tennessee.

In accordance with the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. 20 C.F.R. §§ 30.314(e), 30.314(f). By letter dated August 8, 2005, the transcript was forwarded to you. No response was received.

OBJECTIONS

Pursuant to the implementing regulations, if the claimant objects to NIOSH’s dose reconstruction the Final Adjudication Branch (FAB) will evaluate the factual findings upon which NIOSH based the dose reconstruction. However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. 20 C.F.R. § 30.318(b).

1. The dose reconstruction did not take into account the multitude of x-rays you had to take on account of your work-related injuries (mostly back injuries). You estimate you had several hundred of these x-rays. You would not have been hurt if it had not been for your work, and these x-rays were required under workers’ compensation in order to receive benefits. (Hearing Transcript (HT) pages 7 through 8.)

NIOSH procedures do not consider doses from medical x-ray procedures as applicable to include in an employee’s dose reconstruction other than those required as a condition of employment. This is both a factual objection and an objection to NIOSH methodology, since medical x-ray doses due to work-related injuries are not covered under NIOSH procedures. NIOSH methodology is binding on the FAB.

2. You stated that at Y-12 the main radiation was alpha radiation and there is no way to reconstruct an alpha dose. DOE painted over the alpha radiation on the walls, but over time the paint flecked off. (HT pages 8 through 11.)

3. You were exposed to quite bit of the alpha radiation through ingestion and breathing. Their shop did a lot of grinding and modification of equipment from other parts of the plant, including process areas. They also worked on amphibious landing craft that was armored with a mixture of depleted uranium and other metals. Therefore, you think the majority of your radiation exposure was internal rather than external. However, you were not involved in any bioassay monitoring. (HT pages 8 through 11, and pages 15 through 17)

The second and third objections concern the accuracy of the dose reconstruction. The main issue concerns your exposure to alpha radiation through ingestion and breathing and the fact that you did not participate in a bioassay monitoring program. The basic principle of dose reconstruction is to characterize the occupational radiation environment to which a worker was exposed using available worker and/or workplace monitoring information. In cases where radiation exposures in the workplace environment cannot be fully characterized based on available data, default values based on reasonable scientific assumptions are used as substitutes. The approaches for determining your external and internal dose are discussed in detail in NIOSH’s dose reconstruction report. Since your concerns focus on internal dose, the discussion below will also focus on this area of the dose reconstruction.

NIOSH reviewed your employment records and no records of bioassay monitoring results were found. NIOSH notes that internal monitoring programs are applied to individuals who are likely to be exposed to radiation from internally-deposited radioactive material. Personnel who are not selected for internal dose monitoring programs are less likely to be exposed. However, to account for any incidental dose that may have been received but not documented, NIOSH assigned internal dose based on a hypothetical intake assuming an intake of 28 radionuclides. NIOSH considered that this resulted in an intake that greatly exceeds any possible actual intake by you because this level of activity would be expected to be detectable by workplace indicators. Additionally, these nuclides would not all be found in a single location on site.

In the “Dose from Radiological Incidents” section of the dose reconstruction report NIOSH indicated that you worked with contaminated parts and equipment. In the course of this work you may have received external radiation exposures from the contamination or internal radiation exposures during grinding, cutting, or welding activities if protective measures such as enclosures or ventilation were not adequate. However, NIOSH considered that these potential exposures were accounted for in this dose reconstruction by the claimant-favorable assumptions applied in the calculation of both external and internal doses.

For the purposes of the dose reconstruction, NIOSH believes they assigned you the highest reasonably possible radiation dose related to radiation exposure and intake using available dosimetry data, when available, and maximizing assumptions in the absence of documented exposures. The NIOSH approach is based on current science, documented experience and relevant data. These objections are challenges of the dose reconstruction methodology, which is binding on the FAB.

4. Your physician linked your cancer to radiation. You have no family history of cancer and no unhealthy habits (smoking or drinking). (HT pages 9 through 10)

5. Out of a group of 60-70 co-workers, you believe a much higher amount died of cancer than would have died in a similar size group involved in non-radiation work. (HT pages 17 through 19)

The fourth and fifth objections concern statements that your cancer was caused by occupational radiation exposure and that there is no family history of cancer and no unhealthy habits. You also noted that a much higher number of co-workers died of cancer than would have died in a similar size group involved in non-radiation work. It is a scientific fact that ionizing radiation may cause some cancers, but no one can be certain in any specific case. The software program, named the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP), is based on NIOSH regulations found at 42 C.F.R. part 81 and uses the updated version of radioepidemiological tables developed by the National Institutes of Health as a basis for determining probability of causation for employees covered under EEOICPA. NIOSH-IREP allows claims examiners to apply the National Cancer Institute risk models directly to data for an individual claimant.

Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations. If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation.

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty. The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population. 42 C.F.R. § 81.4(n). DOL uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his/her individual radiation dose. The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year. None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens.

NIOSH-IREP allows DOL to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the PoC. Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual. As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses. This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.

Factors which may or may not potentially predispose an employee to the carcinogenic effects of radiation to the affected site, such as family history of cancer, exposure to other toxic substances, or the effect that radiation dose to other organs/tissues may have on the dose directly to the primary cancer site, are not part of the NIOSH-IREP model.

These objections are challenges of the methodology that OWCP uses to determine if a claimed cancer was at least as likely as not related to covered employment (i.e., the probability of causation methodology). This methodology is binding on the FAB.

In summary, your objections are challenges of fact which do not require a rework by NIOSH, challenges of NIOSH methodology, which is binding on the FAB, and challenges of the OWCP’s probability of causation methodology, which is binding on the FAB.

FINDINGS OF FACT

1) You filed a Form EE-1 on October 23, 2002, based on your esophageal cancer.

2) You were diagnosed with esophageal cancer on April 12, 2002.

3) You were employed at the Y-12 plant in Oak Ridge, Tennessee, for the period of April 1, 1974 to February 11, 2002.

4) The probability that your cancer was due to radiation exposure at the DOE facilities in which you worked is 28.1%.

5) On March 4, 2005, the Denver district office issued a recommended decision concluding that you are not entitled to compensation in the amount of $150,000 since your cancer is not covered under § 7384 of the Act.

6) You requested a hearing, which was held on July 20, 2005, in Oak Ridge, Tennessee. The objections raised are challenges of fact which do not require a change in the dose reconstruction or challenges of NIOSH methodology, which is binding on the FAB. 20 C.F.R. § 30.318(b).

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on March 4, 2005, and finds that the evidence submitted before and during the hearing does not establish that your esophageal cancer was at least as likely as not related to your employment at the covered facilities in which you worked as specified by § 7384 of the Act. 42 U.S.C. § 7384n. The evidence in the record does not establish that you are entitled to compensation under § 7384 of the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that your cancer was caused by radiation exposure received at DOE facilities in the performance of duty. Therefore, I find that the decision of the Denver district office is supported by the evidence and the law and cannot be changed based on the objections you submitted.

As explained in § 30.110(c) of 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(c). The undersigned hereby denies payment of lump sum compensation and medical benefits under § 7384 of the Act.

Jacksonville, FL

Mark Stewart

Hearing Representative