Docket Number: 41341-2005

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 41341-2005

DECISION DATE: May 11, 2005

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000 (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 compensation and benefits, based on multiple myeloma, under Part B of the Act. Your claim under Part E of the Act, and your claim under Part B of the Act for skin and throat cancer, is deferred.

STATEMENT OF THE CASE

On February 6, 2003, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on cancer, specified as multiple myeloma, skin, and throat cancer. You also filed a Form EE-3 (Employment History), in which you indicated that you were employed at Oak Ridge, by “Keagan & Hughes,” from January 1, 1950 to February 10, 1951, at Paducah, Kentucky, from February 15, 1951 to March 23, 1953, and at the Hanford site from April 15, 1954 to January 21, 1955, and that you did not wear a dosimetry badge.

The employment evidence of record consists of affidavits, personnel information from the Atomic Energy Commission, earnings information from the Social Security Administration, and information from the Center to Protect Workers Rights. You provided an employment history affidavit from the business manager of L.U. # 237, Texarkana, TX/AR, who indicated he had been vice-president of local # 237, and therefore knew that you were employed by the following employers: (1) “Keagen & Hughes,” Oak Ridge, Tennessee, “AEC,” from January 1, 1950 to February 10, 1951; (2) M.W. Kellogg, Paducah, Kentucky, from February 15, 1951 to March 23, 1952; and (3) Kaiser Engineers, Hanford site, North Richland, Washington, from April 15, 1954 to January 21, 1955.

An Atomic Energy Commission (AEC), Oak Ridge, Tennessee, Personnel Clearance Master Card shows that you were granted an emergency clearance, on June 26, 1951, as an employee of Kaighin & Hughes, a subcontractor with Maxon Construction Company, and you were terminated on October 9, 1951. A second AEC, Oak Ridge, Personnel Clearance Master Card shows that your security clearance was “reinstated” on October 17, 1951, the name of your employer was “F.H. McGraw & Company M.W. Kellogg,” and that you were terminated on October 29, 1952. The card further shows a transfer to Hanford on April 13, 1954.

A co-worker at the Oak Ridge Gaseous Diffusion Plant (GDP), also known as K-25, provided an employment history affidavit in which he indicated that he worked with you for “Kaighan & Hughes” at the Oak Ridge K-25 Plant from January 1, 1950 to February 10, 1951. A dispatch record from Local No. 237, shows that you were employed by Kaiser from March 31 to May 30, 1954. An Itemized Statement of Earnings obtained from the Social Security Administration (SSA) shows that you had earnings paid by M.W. Kellogg from October through December 1949, October through December 1951, January through June 30 1952, and January through March 1953. In addition, the SSA Itemized Statement of Earnings showed that you were paid earnings by Atlantic Industries, Incorporated, during the period from January through March 1950, and Kaiser Engineers during the period from April through September 1954. A letter provided, by the Business Manager of the Plumbers & Steamfitters Local 184, Paducah, Kentucky shows that the M.W. Kellogg Company was a subcontractor at the Paducah GDP, Paducah, Kentucky from 1951 to 1955. The record also contains a copy of a “Certificate of Amendment to the Articles of Incorporation of Kaighin & Hughes, Inc.” that indicates the shareholders authorized the name of the company to be changed to “Atlantic Industries, Inc.” by resolution dated May 17, 1968.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has contracted with the Center to Protect Workers’ Rights (CPWR) for assistance in obtaining records pertinent to construction and trade employees at DOE, atomic weapons employer (AWE) or beryllium vendor facilities. The CPWR is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). The CPWR concluded that (1) Kaighin & Hughes was a subcontractor to Maxon and, as shown in a report to the President by the Atomic Energy Labor Relations Panel, Kaighin & Hughes was a primary contractor of K29 – K31 of the K25 GDP, and a contractual relationship between Kaighin & Hughes and AEC/DOE was also confirmed by a DOE representative who reported that Kaighin & Hughes, Inc. was a subcontractor to Maxon for construction of the K29, K31, and K33 buildings of the K25 GDP from 1947 to 1956. See Section 2 - CPWR Research Results. The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to 1987 and 1988 to the present (remediation); the Paducah GDP is recognized as a covered DOE facility from 1951 to July 28, 1998 and July 29, 1998 to the present (remediation); and the Hanford site is recognized as a covered DOE facility from 1942 to the present. See DOE, Office of Worker Advocacy, Facility List.

You indicated on your Form EE-3 that you were not monitored, through the use of dosimetry badges, for exposure at either the Oak Ridge GDP or Paducah GDP, and the information above shows that you were employed at the Oak Ridge GDP and Paducah GDP, respectively, from January 1 through October 9, 1951 and January 1 through October 29, 1952. However, the evidence shows that you worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges for your entire period of employment at Oak Ridge and for the period from July 1952 to October 29, 1952 at the Paducah GDP.

In addition to medical documentation showing diagnosis of skin cancer, you provided a narrative medical report by Joyce Feagin, M.D., dated January 11, 2001, that indicated you were diagnosed as having multiple myeloma.

On March 30, 2005, the Seattle district office issued a recommended decision that concluded you are a member of the special exposure cohort under Part B, as defined by 42 U.S.C. § 7384l(14)(A), you were diagnosed with multiple myeloma, a specified cancer under Part B as defined by 42 U.S.C. § 7384l(17), and that you are entitled to compensation under Part B in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that you are entitled to medical benefits under Part B, retroactive to the date you filed you claim for benefits, February 6, 2003, as outlined under 42 U.S.C. § 7384t. The district office deferred adjudication of your claim for skin cancers pending completion of the report of radiation dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

On April 11, 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

1. You filed a claim for benefits under the EEOICPA on February 6, 2003.

2. You were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952.

3. A DOE contractor or subcontractor employed you for a number of work days aggregating at least 250 work days before February 1, 1992, at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky.

4. You were diagnosed as having multiple myeloma, a specified cancer, on January 11, 2001.

5. You contracted multiple myeloma after having begun covered employment with a DOE contractor or subcontractor at the Oak Ridge GDP and Paducah GDP, and the onset of the illness was more than five years after your first exposure at a GDP.

CONCLUSIONS OF LAW

In order for an employee to be afforded coverage under the “special exposure cohort,” the employee must be a DOE employee who was employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – (i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of

[the] employee’s body to radiation; or (ii) worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. See 42 U.S.C. § 7384l(14).

Further, a specified cancer is “A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note),” including multiple myeloma, provided the onset was at least five years after first exposure to radiation. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(i) (multiple myeloma). The medical evidence of record indicates that you were diagnosed with multiple myeloma on January 11, 2001, which was more than five years after you were first exposed to radiation at Oak Ridge.

Your employment history (including employment history affidavits, Social Security records, union dispatch records, security clearance records, and confirmation by the CPWR) shows that you were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952, a period exceeding 250 work days. However, employees who indicate on their Form EE-3 that they were not monitored by dosimetry while employed at the Paducah GDP are determined to have been engaged in covered employment beginning in July 1952. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2)(a) (June 2004). Therefore, your period of employment at the Paducah GDP, for purposes of coverage as a member of the special exposure cohort, must be calculated using a beginning date of July 1, 1952, and an ending date of October 29, 1952. Thus, the evidence shows that you were employed by a DOE contractor or subcontractor for a number of work days aggregating at least 250 work days before February 1, 1992 at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky, “in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges,” and you are a “member of the Special Exposure Cohort.” See 42 U.S.C. § 7384l(14)(A).

You filed a claim based on multiple myeloma, skin, and throat cancer. The Final Adjudication Branch has reviewed the medical reports of record and found that you were diagnosed as having multiple myeloma on January 11, 2001. Consequently, you are a “covered employee with cancer,” and a member of the special exposure cohort who was diagnosed as having a “specified cancer” under the EEOICPA. See 42 U.S.C. §§ 7384l(9)(A), (14)(A), and (17)(A).

For the forgoing reasons, the Final Adjudication Branch hereby accepts and approves your claim for multiple myeloma. You are entitled to compensation under Part B of the Act in the amount of $150,000.00. See 42 U.S.C. § 7384s(a)(1). In addition, you are entitled to medical benefits for multiple myeloma under Part B of the Act, retroactive to February 6, 2003, pursuant to 42 U.S.C. § 7384t. Adjudication of your claim for skin cancers and throat cancer is deferred pending completion of the radiation dose reconstruction by NIOSH, and adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

Seattle, WA

_____________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch