Docket Number: 38748-2004

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 38748-2004

DECISION DATE: September 13, 2004

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) 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). A claimant who receives a recommended denial from the district office is entitled to file objections to the decision. 20 C.F.R. § 30.310. Since you submitted a written objection to recommended decision but did not specifically request a hearing, a review of the written record was performed. 20 C.F.R. § 30.312.

In reviewing any objections submitted, the FAB 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 for benefits is denied.

STATEMENT OF THE CASE

On November 12, 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 lung cancer. You submitted medical evidence establishing that you were diagnosed with lung cancer on December 7, 2000.[1]

On the Form EE-3, Employment History, you stated you were employed at the Savannah River Site in Aiken, South Carolina from August 1988 through April 1993. The DOE verified your employment at the Savannah River Site as August 23, 1988 through April 29, 1993. In order to be eligible for benefits, the evidence must establish that your cancer was at least as likely as not related to your employment at a Department of Energy (DOE) facility.

To determine the probability of whether you sustained cancer in the performance of duty, 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. The 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 June 21, 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 the NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on June 28, 2004.

The district office used the information provided in this report to determine that there was a 27.04% probability that your cancer was caused by radiation exposure at the Savannah River Site. 42 C.F.R. § 81.20. The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

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. You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision. This 60-day period expired on August 31, 2004.

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the NIOSH’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired. 20 C.F.R. § 30.310(a). The regulations further provide that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the 60 days, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a).

If the claimant objects to the NIOSH dose reconstruction, the 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.

On July 15, 2004, the Final Adjudication Branch received your letter of objection. In your letter, you stated that you believed too many people had worked on your dose reconstruction, and that you did not believe that computers could be used to reconstruct someone’s illness. Your objections have been reviewed.

Congress directed NIOSH to create a method of calculating the probability that a compensable cancer occurred “in the performance of duty.” The risk models used by NIOSH take 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 the various types of radiation during each year, along with epidemiological studies of cancer rates. Some of the data that may be included in the dose reconstruction include, but are not limited to: internal dosimetry (such as results from urinalysis); external dosimetry data (such as film badge readings); workplace monitoring data (such as air sample results); workplace characterization data (such as type and amount of radioactive material processed); and descriptions of the type of work performed at the work location. When dose information is not available, is very limited, or the dose of record is low, NIOSH may use the highest reasonably possible radiation dose, based on reliable science, documented experience, and relevant data, to complete a claimant’s dose reconstruction. The guiding principle in conducting these dose reconstructions is to ensure that the assumptions are fair, consistent, and well-grounded in the best available science, while ensuring uncertainties in the science and data are handled to the advantage, rather than to the detriment, of the claim when feasible. The use of a computer to calculate the probability of causation is required, due to the vast amounts of data involved. Furthermore, the reconstruction is of the probable radiation dose received during employment, and not the diagnosed illness. The issues that you raised concern methodology, and are binding on the FAB.

FINDINGS OF FACT

1) On November 12, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your lung cancer.

2) You were employed at the Savannah River Site from August 23, 1988 through April 29, 1993.

3) You were diagnosed with lung cancer on December 7, 2000.

4) Based on the dose reconstruction performed by the NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for lung cancer. The district office calculated a probability of causation of 27.04% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility. The FAB independently analyzed the information in the NIOSH report, confirming the 27.04% probability.

5) On July 2, 2004, the Denver district office issued a recommended decision denying your claim for compensation, concluding that you are not entitled to compensation since your lung cancer is not “at least as likely as not” related to employment at the covered facility.

6) You submitted a written objection to the recommended decision, and a review of the written record was conducted.

CONCLUSIONS OF LAW

Based on my review of the evidence of record and the recommended decision, I find that the evidence does not establish that your lung cancer was at least as likely as not related to your employment at a covered facility. 42 U.S.C. § 7384n. I also find that the decision of the district office cannot be changed based on the objections submitted. As provided 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).

Under the Act, you are not entitled to benefits and your claim for compensation is denied. 42 U.S.C. § 7384s.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative