Docket Number: 47856-2005

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 47856-2005

48970-2005

48971-2005

48972-2005

DECISION DATE: July 21, 2005

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (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 claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma.

The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge. A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978.

Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer. A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung. The record does not contain documentation demonstrating the employee was diagnosed with lymphoma.

To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115. The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005. See 42 U.S.C. § 7384n(d). NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978. However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed. NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim. NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete. Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose. See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7.

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer, and reported in its recommended decision that the probability the employee’s lung cancer was caused by his exposure to radiation while employed at NTS was at least 50%.

You provided copies of the death certificates of the employee and his spouse, copies of your birth certificates showing you are the natural children of the employee, and documentation verifying your changes of names, as appropriate.

The record shows that you ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4]) and [Claimant #5] filed claims with the Department of Justice (DOJ) for compensation under the Radiation Exposure Compensation Act (RECA). By letter dated May 20, 2005, a representative of the DOJ reported that an award under § 4 of the RECA was approved for you; however, the award was rejected by [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4].

On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma.

On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 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. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits.

2. Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors.

3. You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act.

4. The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978.

5. The employee was diagnosed with lung cancer on February 1, 1978.

6. The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS.

7. The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility.

CONCLUSIONS OF LAW

The evidence of record indicates that the worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 6, 1978. Medical documentation provided indicated the employee was diagnosed with lung cancer on February 1, 1978; however, there is no evidence showing the employee was diagnosed with lymphoma, and your claims based on lymphoma must be denied.

After establishing that a partial dose reconstruction provided sufficient information to produce a probability of causation of 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction, and the dose reconstruction was considered complete. See 42 C.F.R. § 82.10(k)(1).

The Final Adjudication Branch analyzed the information in the NIOSH Report of Dose Reconstruction and utilized the NIOSH-IREP to confirm the 63.34% probability that the employee’s cancer was caused by his employment at NTS. See 42 C.F.R. § 81.20. (Use of NIOSH-IREP). Thus, the evidence shows that the employee’s cancer was at least as likely as not related to his employment at NTS.

The Final Adjudication Branch notes that, in its Conclusions of Law, the recommended decision erroneously indicates the employee, [Employee], is entitled to compensation in the amount of $150,000.00; therefore, that Conclusion of Law must be vacated as the employee is deceased. See 42 U.S.C. § 7384s(a)(1).

The Final Adjudication Branch notes that the record shows the employee passed away on February 4, 1978. However, his employment history indicates he worked at NTS until February 6, 1978. Consequently, for purposes of administration of the Act, his employment is considered to have ended on February 4, 1978.

Based on the employee’s covered employment at NTS, the medical documentation showing his diagnosis of lung cancer, and the determination that the employee’s lung cancer was “at least as likely as not” related to his occupational exposure at NTS, and thus sustained in the performance of duty, the employee is a “covered employee with cancer,” under 42 U.S.C. § 7384l. See 42 U.S.C. § 7384l(9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2. Further, as the record indicates there is one other potential beneficiary under the EEOICPA, you are each ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) entitled to survivor compensation under 42 U.S.C. § 7384 in the amount of $30,000.00. As there is evidence that another survivor is a child of the employee, and potentially an eligible survivor under the Act, the potential share ($30,000.00) of the compensation must remain in the EEOICPA Fund. See Federal (EEOICPA) Procedure Manual, Chapter 2-200.7c(2) (June 2004).

Seattle, WA

_____________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch