Docket Number: 50784-2007

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 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 (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the FAB accepts and approves your claim for compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E, as well as medical benefits under Part B and E.

STATEMENT OF THE CASE

On October 28, 2002, [Employee] filed a Form EE-1 (Claim for Benefits under the EEOICPA) with the Department of Labor (DOL), based on the condition of hepatocellular carcinoma (liver cancer). He submitted medical evidence, including a pathology report dated July 22, 2002, indicating a diagnosis of well-differentiated hepatocellular carcinoma.

[Employee] also submitted a Form EE-3 indicating that he worked at the Nevada Test Site (NTS) for EG&G from June 1956 to an unspecified date in 1965, and at the Pacific Proving Grounds (PPG) from April 1958 to July 1958. A representative of the Department of Energy (DOE) verified that the employee worked at the NTS for EG&G from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965. [Employee] died on May 31, 2003, and his claim was administratively closed.

On October 21, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as the surviving spouse of the employee, based on the condition of liver cancer. The record includes a copy of your marriage certificate showing you and the employee were married on September 27, 1996, and a copy of your spouse’s death certificate showing you were married to the employee at the time of his death on May 31, 2003. The death certificate identifies the immediate cause of death as renal failure, liver failure and hepatocellular carcinoma.

On November 10, 2003, the Seattle district office referred the case to the National Institute for Occupational Safety and Health to determine whether the employee’s lung cancer was “at least as likely as not” related to his covered employment. However, the case was returned on July 26, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS), of certain NTS employees as an addition to the Special Exposure Cohort (SEC).

On October 26, 2006, the Seattle district office issued a recommended decision to accept your claim based on the condition of liver cancer. The district office concluded that under Part B, the employee is a member of the SEC, and he was diagnosed with liver cancer which is a specified cancer under the Act. The district office further concluded that a determination that a DOE contractor employee is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility. The district office also concluded that you are the surviving spouse of the employee, and you are entitled to compensation in the amount of $150,000.00 under Part B, and $125,000.00 under Part E, for a total amount of $275,000.00. Further, the district office concluded that you are entitled to reimbursement of [Employee]’s medical expenses under Part B and E, from October 28, 2002 (the date he filed his claim) until his date of death.

The evidence of record also includes a letter you signed on October 20, 2006, in which you indicated that neither you nor your spouse have filed a lawsuit or received a settlement based on the claimed exposure to radiation. You also indicated that you and your spouse have never filed for or received any payments, awards or benefits from a state workers’ compensation claim for the claimed illness, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation. Further, you indicated that your spouse had no minor children or children incapable of self-support who were not your natural or adopted children at the time of his death.

On October 30, 2006, the FAB received written notification from you indicating that you waived all rights to file objections to the findings of fact and conclusions of law in the recommended decision. After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

1. On October 28, 2002, [Employee] filed a claim for benefits under EEOICPA. [Employee] died on May 31, 2003, and his claim was administratively closed.

2. On October 21, 2003, you filed a claim for survivor benefits under EEOICPA.

3. You are the surviving spouse of the employee.

4. The employee worked at the NTS, a covered DOE facility, for an aggregate of 250 work days, from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; from May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965. This employment qualifies [Employee] as a member of the SEC.

5. The employee was diagnosed with hepatocellular carcinoma (liver cancer), which is a specified cancer, on July 22, 2002, after starting work at a DOE facility.

6. The evidence of record supports a causal connection between the employee’s death due to renal failure, liver failure and hepatocellular carcinoma and his exposure to radiation at a DOE facility.

Based on the above-noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, 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. See 20 C.F.R. § 30.316(a). You waived your right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on your claim for compensation benefits under EEOICPA.

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the NTS from January 27, 1951 through December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored. This addition to the SEC became effective July 26, 2006.

The employment evidence is sufficient to establish that the employee was employed at the NTS for an aggregate of at least 250 work days of covered SEC employment, as he worked from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962.

The employee was a member of the NTS addition to the SEC pursuant to § 7384l(14) of the Act, who was diagnosed with liver cancer, which is a specified cancer under § 7384l(17)(A) of the Act, and is therefore a “covered employee with cancer” under § 7384l(9)(A) of the Act. See 42 U.S.C. §§ 7384l(14), 7384l(17)(A) and 7384l(9)(A). Further, you are the surviving spouse of the employee under § 7384s(e)(1)(A) and you are entitled to compensation in the amount of $150,000.00. 42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a)(2).

The determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E that the employee contracted that illness through exposure at a DOE facility. See 42 U.S.C. § 7385s-4(a).

The evidence of record establishes that the employee was a “covered DOE contractor employee” as defined by § 7385s(1) in accordance with § 7385s-4(a); and the employee was diagnosed with a “covered illness,” liver cancer, as defined by § 7385s(2). Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee. You are the employee’s covered spouse as defined by § 7385s-3(d)(1) and you are entitled to compensation in the amount of $125,000.00 pursuant to § 7385s-3(a)(1). See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(a), 7385s-3(d)(1) and 7385s-3(a)(1).

Accordingly, you are entitled to compensation in the total amount of $275,000.00.

In addition, you are entitled to medical benefits related to the employee’s cancer under Parts B and E of EEOICPA, retroactive to the employee’s application date of October 28, 2002, and up to May 31, 2003, the date the employee died. See 42 U.S.C. §§ 7384s(b) and 7385s-8.

Seattle, Washington

Kelly Lindief, Hearing Representative

Final Adjudication Branch