Docket Number: 51955-2009

U.S. DEPARTMENT OF LABOR

OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	51955-2009
DECISION DATE:	December 18, 2009

 

NOTICE OF FINAL DECISION FOLLOWING REVIEW

OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB), following a review of the written record, concerning the above claim filed under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for thirty primary cancers under Part B is denied. Adjudication of the claim for these same cancers under Part E of EEOICPA is deferred pending further development.

STATEMENT OF THE CASE

On December 5, 2003, [Employee] filed a claim for benefits under Part B of EEOICPA for cancers of the “skin, facial, squamous, basal cell (10-12)” and the “neck-myoepithelial.” On the same date, [Employee] filed a request for assistance with the Department of Energy (DOE) under former Part D of EEOICPA for the same conditions. Following the repeal of Part D and the enactment of Part E, the request for assistance was considered a claim for benefits under Part E.

On Form EE-3, [Employee] indicated that from 1963 to 1992 he worked for Precision Forge in both Santa Monica and Oxnard, California, and also indicated that 90% of his work was for the Rocky Flats Plant. [Employee] described his work and positions as follows:

Forging operator (10 years); foreman of forge shop (12 years); manufacturing supervisor – forged parts from depleted uranium. Did experimental forging of beryllium.

In a November 12, 2003 document that he submitted with his claim, [Employee] stated the following:

I have worked for a small forging company in California from 1962 until retirement in 1992. Precision Forge was originally a private company, which sub-contracted to Dow Chemical when Rocky Flats started. We became part of Rockwell Corporation around 1985 and then later to EG&G. . . . The last ten years I worked as a facility engineer and finally product development. The period of concern was approximately 1965 thru 1980 when the plant was in Santa Monica, California.

On a Form EE-5 dated January 8, 2004, DOE verified that [Employee] was a DOE contractor employee for Dow Chemical, Rockwell International, and EG&G Rocky Flats, Inc., all DOE contractors, from July 10, 1963 to August 31, 1992 at the Rocky Flats Plant, a DOE facility.[1] The verification did not indicate [Employee]’s specific work location.

To determine the probability that [Employee]’s diagnosed cancers were related to occupational exposure to radiation at a DOE facility, the district office referred the claim for radiation dose reconstruction to the National Institute for Occupational Safety and Health (NIOSH) on April 23, 2004. Based on medical evidence that [Employee] had submitted, the referral specified the diagnosis dates and locations of six basal cell carcinomas (BCC’s), three squamous cell carcinomas (SCC’s), myoepithelioma (right neck), and salivary gland carcinoma. The employment location and dates of employment provided to NIOSH were as follows: Rocky Flats Plant, 7/10/1963 – 8/31/1992.

On June 4, 2004, the district office received medical records establishing diagnoses of two primary BCC’s that were not previously claimed. Therefore, on June 7, 2004, the district office submitted an amended referral to NIOSH, specifying the additional BCC locations and diagnosis dates.

During a June 24, 2004 dose reconstruction interview conducted by NIOSH, [Employee] indicated that his work location was at 2052 Colorado St., Santa Monica, California, not at the Rocky Flats Plant.

On January 28 and January 31, 2005, the district office received medical records that established the diagnosis and treatment of four primary SCC’s that were not previously claimed. As a result, on April 20, 2005, the district office submitted a second amended referral to NIOSH specifying the additional SCC locations and diagnosis dates.

In view of apparent discrepancies between [Employee]’s work locations as provided on his EE-1 claim form, his EE-3 Employment History (Santa Monica and Oxnard, California), and his statement of work location (Santa Monica, California) during the June 24, 2004 NIOSH telephone interview, all of which indicated that he did not work at the Rocky Flats Plant, and the DOE verification of his employment at the Rocky Flats Plant in Golden, Colorado during the same employment period, clarification of [Employee]’s work location and period of covered employment became necessary. On November 28, 2006, during a telephone conversation with the a claims examiner, [Employee] again stated that he worked for Precision Forge in California, which did work for the Rocky Flats Plant. By letter of December 4, 2006, the district office summarized that telephone conversation and informed the employee that Precision Forge and Macrodyne were not covered facilities under EEOICPA.

On March 1, 2007, the district office referred the question of [Employee]’s covered employment period to the Division of Energy Employees Occupational Illness Compensation (DEEOIC), Branch of Policy, Regulation and Procedures (BPRP) for resolution. The question presented was whether in adjudicating [Employee]’s claim, the district office should use the employment verified by the DOE—July 10, 1963 to August 31, 1992 at the Rocky Flats Plant.

In a memorandum dated July 16, 2007, BPRP noted that a review of all of the employment evidence of record revealed that [Employee] did not work at the Rocky Flats Plant. Instead, he worked from 1962 through 1980 for Precision Forge in Santa Monica, California and then for Macrodyne Industries, which purchased Precision Forge and moved the facility to Oxnard, California. BPRP noted that Precision Forge/Macrodyne produced parts for the Rocky Flats Plant and determined that in 1984, DOE purchased the Oxnard plant and transferred employees onto the same contract as those personnel operating the Rocky Flats Plant.

Based on a review of the activities at Precision Forge/Macrodyne prior to its acquisition by DOE in 1984, BPRP determined that prior to the 1984 acquisition, neither the Santa Monica location nor the Oxnard location could be considered a “DOE facility,” as that statutory term is defined in EEOICPA, because DOE had no “proprietary interest” in either location and had not entered into a contract with an entity for management and operation, management and integration, environmental remediation services, construction or maintenance services at either location. Accordingly, BPRP determined that neither [Employee]’s employment at the Santa Monica location nor his employment at the Oxnard location prior to 1984 constituted covered employment under EEOICPA.

However, BPRP further found that upon its acquisition by DOE in 1984, when the facility became known as the High Energy Rate Forging (HERF) Facility, the Oxnard location satisfied the statutory requirements to be regarded as a DOE facility because DOE owned the HERF Facility in Oxnard and used its management and operating contractor to run the plant. Thus, BPRP also concluded that the HERF Facility should be considered a DOE facility for EEOICPA purposes for the period 1984-1997. Based on the above-noted findings, BPRP directed the district office to proceed with adjudication with a finding that [Employee] was an EEOICPA covered employee for the period from 1984 to August 31, 1992.

On August 27, 2007, [Employee] submitted medical records establishing the diagnosis of additional skin cancers. In addition, the district office obtained records from the DOE Case Management System, which included diagnostic evidence of additional unclaimed primary skin cancers: four BCC’s, three SCC’s, myeloepithelial carcinoma of the left cheek, and carcinoma of the face. On September 25, 2007, the district office submitted an amended NIOSH referral summary specifying 26 diagnosed cancers and diagnosis dates. This amendment also identified the employee’s covered employment location as the HERF Facility with a start date of January 1, 1984 and ending date of August 31, 1992.

By letter dated September 26, 2007, [Employee] informed the district office that he had been assigned to oversee the installation and start-up of a new large HERF Hammer at the Hanford facility in Washington. On December 14, 2007, DOE verified that [Employee] had visited the Hanford Site, a DOE facility, from October 28, 1986 to December 13, 1986; from November 27 to 30, 1990; and from February 5, 1991 to March 9, 1991. Because a Department of Labor Health Physicist determined that the additional Hanford employment could affect the dose reconstruction, on January 8, 2008, the district office resubmitted [Employee]’s dose reconstruction referral to NIOSH with the Hanford facility employment included.

On October 2, 2008, [Employee] submitted medical evidence establishing the diagnosis of two primary BCC’s that had not been previously claimed and on October 8, 2008, the district office submitted an amended NIOSH referral including those cancers. On May 27, 2009, the district office submitted yet another amended NIOSH referral summary that included two more BCC’s shown by previously submitted medical records (but not reported to NIOSH), thus increasing the number of reported diagnosed primary cancers to 30. The final amended referral provided the diagnosis dates and locations of the additional cancers.

Altogether, in support of [Employee]’s claim, the district office received medical evidence that established pathological diagnoses of the following 30 primary cancers reported to NIOSH for dose reconstruction:

- SCC of the forehead, diagnosed June 13, 1996.

- BCC of the upper lip, diagnosed July 15, 1996.

- BCC - 3 of the face, diagnosed October 1, 1997.

- BCC - 2 of the face, diagnosed October 1, 1997.

- BCC of the face, diagnosed January 4, 2000.

- BCC -2 of the right shoulder, diagnosed August 18, 2001.

- BCC, of the right cheek, diagnosed October 3, 2001.

- BCC of the forehead, diagnosed October 3, 2001.

- SCC of the nose, diagnosed January 8, 2002.

- Myoepithelial carcinoma of the right cheek, diagnosed February 1, 2002;

- Myoepithelioma of the right neck, diagnosed February 8, 2002.

- Carcinoma of the salivary gland, diagnosed February 20, 2002.

- SCC of the right nasal tissue, diagnosed August 20, 2002.

- SCC of the upper right neck, diagnosed September 10, 2002.

- SCC of the lower right neck, diagnosed September 10, 2002.

- SCC of the right nasal tissue, diagnosed April 7, 2003.

- SCC of the right cheek, diagnosed April 18, 2003.

- BCC of the right posterior ear, diagnosed August 22, 2003.

- SCC of the right eyebrow, diagnosed August 22, 2003.

- SCC of the left check, diagnosed November 8, 2004.

- SCC of the face, diagnosed November 30, 2004.

- Carcinoma of the face, diagnosed June 12, 2007.

- BCC of the right ear, diagnosed August 17, 2007.

- SCC of the right superior pinna, diagnosed August 17, 2007.

- BCC of the forehead, diagnosed March 13, 2008.

- BCC of the left shoulder, diagnosed June 3, 2008.

On July 1, 2009, [Employee] signed Form OCAS-1, indicating that he was not in possession of any additional information that had not already been provided to NIOSH for completing his dose reconstruction.

On July 23, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine that there was a 4.76% probability that [Employee]’s cancers were caused by radiation exposures during employment at a covered facility. On August 21, 2009, the district office issued a recommended decision to deny the claim under Part B, on the ground that it was not “at least as likely as not” that [Employee]’s cancers were caused by employment-related radiation exposures.

The Notice of Recommended Decision was mailed to an incomplete address and was returned undelivered. On August 31, 2009, the Notice of Recommended Decision was reissued and mailed to the correct address of record.

OBJECTIONS

On October 5, 2009, FAB received [Employee]’s September 25, 2009 statement of objections to the recommended decision. [Employee] did not submit additional evidence with his statement of objections. His objections are as follows:

1. The recommended decision was mailed to an incorrect address, which delayed his receipt of the correspondence.

2. Finding of fact # 2 of the recommended decision showed him as visiting the Hanford Site from November 27, 1990 to November 20, 1990.

3. Finding of fact # 3 said that “Mr. Johnson was diagnosed. . . .”

4. The recommendation was based on the last ten years of a 30-year career in the nuclear weapons complex. Ninety percent of all work done in the early years 1964-1980 (by Precision Forge in Santa Monica) were projects initiated by engineers at the Rocky Flats Plant, the Sandia Laboratory, the Lawrence Livermore National Laboratory and involved experimental work on depleted uranium for other organizations.

Objections 1, 2 and 3 pertain to regrettable administrative errors. Although, these errors should not have occurred, they do not affect the outcome of [Employee]’s Part B claim. The recommended decision was mailed to an incorrect address. To preserve [Employee]’s right to object, the recommended decision was reissued with a new date. The correct starting and ending dates for [Employee]’s 1990 Hanford visit, as verified by DOE, are November 27 to 30, 1990. Referring to “November 20, 1990” as the ending date of this visit is an obvious typographical error that should have been caught. However, the dates of [Employee]’s Hanford visits reported to NIOSH for use in dose reconstruction were correct. The reported dates for his Hanford visits are as follows: October 28, 1986 to December 13, 1986; November 27 to 30, 1990; and February 5, 1991 to March 9, 1991. There is no explanation for the appearance of an incorrect name in finding of fact # 3. The information regarding cancer diagnoses and dates were drawn from [Employee]’s medical records. In reviewing [Employee]’s claim, FAB has independently examined each of his medical records and compared the results to the information used by NIOSH in preparing the dose reconstruction. These administrative errors are unfortunate, but do not affect the decision on [Employee]’s claim.

Objection 4 objects to limiting [Employee]’s covered employment to his employment at the HERF Facility in Oxnard from the time the facility was acquired by DOE in 1984 to his retirement in 1992. [Employee] based his objection on his earlier work as a Precision Forge employee, which he stated involved work on projects initiated by engineers at a number of covered facilities, as well as experimental work with depleted uranium for DARPA (Defense Advanced Research Projects Agency). Other than [Employee]’s employment at the HERF Facility from 1984 until his 1992 retirement and his visits to the Hanford facility, neither [Employee]’s objections nor any of the statements made during the development of his claim has indicated that he performed work at any DOE facility as the employee of a DOE contractor or subcontractor. Moreover, [Employee] has not submitted any additional evidence to establish that prior to his covered employment at the HERF Facility and at Hanford, he had covered employment as a contractor or subcontractor employee at other DOE facilities.

DEEOIC has considered the question of whether [Employee]’s employment with Precision Forge prior to the acquisition of the HERF Facility by DOE in 1984 constitutes covered employment under EEOICPA. Based on a thorough review of the evidence, DEEOIC has determined that the Precision Forge facility in Santa Monica was not a covered DOE facility, and that the Macrodyne facility in Oxnard was not a covered DOE facility under EEOICPA until it was acquired by DOE in 1984. In addition, DEEOIC has considered whether the Precision Forge/Macrodyne locations prior to 1984 could be considered Atomic Weapons Employer (AWE) facilities and found that the sites had not been designated as AWE facilities by the Secretary of Energy, as required by the statute, and found no factual basis to support a making a recommendation to DOE that the sites be officially designated as AWE facilities. [Employee]’s objection # 4 does not present any information that has not already been considered by DEEOIC, and no evidence was submitted that warrants further development.

Based on a review of the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On December 5, 2003, [Employee] filed a claim for benefits under EEOICPA.

2. [Employee] was a DOE contractor employee at the HERF Facility, a DOE facility, from January 1, 1984 to August 31, 1992.

3. DEEOIC has determined that the Precision Forge facility in Santa Monica, California, and the Macrodyne facility at Oxnard, California, prior to its acquisition by DOE in 1984, were not DOE facilities, nor had DOE designated them as AWE facilities under EEOICPA.

4. NIOSH reported annual dose estimates for [Employee]’s cancers from the date of initial radiation exposure during covered employment to the dates of diagnosis for each cancer. A summary and explanation of information and methods applied to produce these dose estimates, including his involvement through an interview and review of the dose report, are documented in the final “NIOSH Report of Dose Reconstruction under EEOICPA.”

5. Based on the dose reconstruction performed by NIOSH, FAB calculated the probability of causation (the likelihood that the cancers were caused by radiation exposure incurred while working at a covered facility) for [Employee]’s multiple cancers to be 4.76%, which is less than 50%.

Therefore, based on a review of the aforementioned facts, FAB also makes the following:

CONCLUSIONS OF LAW

Section 30.111(a) of the implementing regulations states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110 [and] the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.” 20 C.F.R. § 30.111(a) (2009). [Employee] did not submit any additional evidence following issuance of the recommended decision.

Part B of EEOICPA provides compensation for DOE employees or DOE contractor employees who contracted cancer after beginning employment at a DOE facility, or Atomic Weapons Employees who contracted cancer after beginning employment at an AWE facility, as a covered employee with cancer, if and only if that individual is determined to have sustained cancer in the performance of duty. 42 U.S.C. § 7384l(9)(B). An employee with cancer shall be determined to have sustained that cancer in the performance of duty if and only if the cancer was at least as likely as not related to employment at the facility. 42 U.S.C. § 7384(n)(b). A cancer is at least as likely as not related to employment if the probability of causation that the cancer was sustained in the performance of duty is 50% or greater. See 20 C.F.R. § 30.213(b).

[Employee] has urged that his entire employment with Precision Forge and Macrodyne beginning in 1963 should be considered as covered employment under EEOICPA. DEEOIC has determined that the Precision Forge facility in Santa Monica and the Oxnard site prior to its acquisition by DOE in 1984 did not meet the requirements for being considered DOE facilities because DOE did not have a proprietary interest in those sites and had not entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services at those locations. See 42 U.S.C. § 7384l(12). However, DEEOIC has determined that from 1984 to 1997, DOE owned the HERF Facility in Oxnard and used its management and operating contractor to run the plant, thereby meeting the legal definition of a DOE facility during that period.

As provided by § 7384n(c) of EEOICPA and the implementing regulations, [Employee]’s periods of covered employment at the HERF Facility and his Hanford visits were reported to NIOSH, together with [Employee]’s 30 cancer diagnoses and diagnosis dates, for radiation dose reconstruction. Pursuant to § 81.20 and § 81.25 of the Health and Human Services (HHS) regulations, FAB used the information provided in the final NIOSH Report of Dose Reconstruction to determine that there was a 4.76% probability that that [Employee]’s cancers were caused by occupational radiation exposure during covered employment at a DOE facility. 42 C.F.R. §§ 81.20, 81.25 (2009). See also 20 C.F.R § 30.213(b).[2]

Pursuant to §§ 7384l(9)(B) and 7384n(b) of EEOICPA, “a covered employee with cancer” is an individual who is determined to have sustained his/her cancer in the performance of duty if that cancer was “at least as likely as not” (a 50% or greater probability) related to employment at a covered facility. Using data from the NIOSH dose reconstruction, FAB has determined that the probability of causation that [Employee]’s cancers are related to covered employment is 4.76%, which is less than 50%. Therefore, the evidence does not establish that [Employee]’s cancers were “at least as likely as not” related to his employment at a covered facility. Accordingly, [Employee]’s claim for benefits for multiple cancers under Part B.

Washington, DC

John P. Davidson

Hearing Representative

Final Adjudication Branch