Docket Number: 53489-2006

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 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). For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for compensation in the amount of $150,000 under Part B and $150,000 under Part E.

STATEMENT OF THE CASE

On January 16, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act) with the Department of Labor and Request for Review by Medical Panels with the Department of Energy, based on [Employee]’s (the employee your spouse) condition of acute promyelocytic leukemia. This is considered an application for survivor compensation under Part B as a surviving spouse, and under Part E as a covered spouse of the employee.

You submitted a Form EE-3 (Employment History) indicating that the employee worked at the Feed Materials Production Center in Fernald, Ohio from 1953 to 1978. Based on information from the database of the Oak Ridge Institute for Science and Education the employee worked for National Lead of Ohio, which is a DOE contractor, at the Feed Materials Production Center (FMPC), Fernald, Ohio from December 7, 1953 to January 10, 1978. The FMPC is recognized as a covered DOE facility site from 1951 to the present. See DOE, Office of Worker Advocacy Facility List, http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (retrieved December 14, 2005).

The medical documentation you submitted included a December 14, 1977 pathology report showing a diagnosis of acute promyelocytic leukemia.

To determine the probability of whether the employee sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. The district office received the final NIOSH Report of Dose Reconstruction dated September 9, 2005.

The NIOSH radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction. Only the partially reconstructed external dose was used. The dose reconstruction was 8.036 rem to the red bone marrow. NIOSH Report of Dose Reconstruction, p. 4. Thus the dose reported is an “underestimate” of the employee’s total occupational radiation dose. NIOSH Report of Dose Reconstruction, p. 7.

Using the information provided in the Report of Dose Reconstruction, the Cleveland district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of acute promyelocytic leukemia and reported in its recommended decision that there was a greater than 50% probability that the employee’s cancer was caused by radiation exposure at the FMPC.

The record includes a copy of your marriage certificate showing you and the employee were married on October 1, 1955, and a copy of the employee’s death certificate showing you were married to him at the time of his death on January 10, 1978. The death certificate indicates that he passed away due to conditions including acute promyelocytic leukemia. The employee was born on July 6, 1931 and was age 46 at the time of his death.

You provided a letter that you signed on September 27, 2005 and attached documentation, indicating the employee had filed a State of Ohio Workers’ Compensation claim which was approved for medical expenses. 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. You further wrote on November 2, 2005 that you never received any money as a result of the employee’s workers’ compensation claim.

On November 9, 2005, the Cleveland district office issued a recommended decision to accept your claim based on the condition of acute promyelocytic leukemia, and to award you compensation in the amount of $150,000 per 42 U.S.C. § 7384s(a), and $150,000 per 42 U.S.C. § 7385s-3(a), for a total amount of $300,000.00.

On November 16, 2005, the Final Adjudication Branch received written notification from you indicating that you agree with the recommended decision.

FINDINGS OF FACT

1. On January 16, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employee’s Occupational Illness Compensation Program Act) with the Department of Labor under Part B and Request for Review by Medical Panels with the Department of Energy, which is accepted as a claim for benefits under Part E.

2. The employee worked for a Department of Energy contractor, at the Feed Materials Production Plant from December 7, 1953 to January 10, 1978.

3. The employee was diagnosed with acute promyelocytic leukemia on December 14, 1977, after starting work for the Department of Energy.

4. The NIOSH Interactive RadioEpidemiological Program indicated a 53.59% probability that the employee’s cancer was caused by radiation exposure at the FMPC.

5. The employee was born on March 6, 1931, and he passed away on January 10, 1978, at the age of 46, which was 18 years and some months prior to his normal retirement age of 65.

6. You were married to the employee on October 1, 1955, and you were his spouse on the date of his death.

7. The death certificate indicates the employee died due to conditions including acute promyelocytic leukemia.

8. The evidence of record supports a causal connection between the employee’s death due to acute promyelocytic leukemia, and his exposure to radiation and/or a toxic substance at a DOE facility.

9. You never received any money for the employee’s cancer from a state workers’ compensation claim for the same condition being accepted. 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.

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 Final Adjudication Branch 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). You waived your right to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision.

The Final Adjudication Branch calculated the probability of causation for acute promyelocytic leukemia using the NIOSH-IREP software program. These calculations confirmed the 53.59% probability of causation that the employee’s cancer was “at least as likely as not” (a 50% or greater probability) caused by radiation exposure the employee incurred while employed at the FMPC.

Based on the employee’s covered employment at a covered DOE facility site and the medical documentation showing a diagnosis of cancer, and the determination that the cancer was at least as likely as not related to the employee’s occupational exposure at the FMPC, and thus sustained in the performance of duty, the employee is a “covered employee with cancer” under EEOICPA. See 42 U.S.C. § 7384l(1)(B), (9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2.

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

The evidence of record establishes that the employee was a DOE contractor employee as defined by 42 U.S.C. § 7385s-1. The employee was diagnosed with a “covered illness,” as defined by 42 U.S.C. § 7385s(2). The employee contracted that “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).

You are entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1) since the employee would have been entitled to compensation for contracting of a covered illness under Part E; and it is as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the death of the employee. 42 U.S.C. § 7385s-3(a)(1).

The employee received medical benefits under a state workers’ compensation program for the conditions of acute promyelogytic leukemia and strep sepsis. No coordination of benefits is required under Part E because you are a spouse of the employee and you reported you did not receive any state workers’ compensation due to the death of the employee. Federal (EEOICPA) Procedure Manual, Chapter E-1000.4 (Sept. 2005).

The employee had presumed wage-loss for a period of more than 10 years, but less than 20 years. He passed away at age 46. Based on the Social Security Act, the normal retirement age is the age at which an employee may receive unreduced Social Security retirement benefits. For an employee born on July 6, 1931 (January 1, 1938 or earlier), the normal retirement age is age 65. Federal (EEOICPA) Procedure Manual, Chapter E-800.3d (Sept. 2005). Since the employee was age 46, 18 years and some months prior to his full retirement age of 65, there was an aggregate period of not less than 10 years, before the employee attained normal retirement age that he died, and the employee did not have an annual wage. This amount is determined to be $150,000 under 42 U.S.C. § 7385s-3(a)(2).

You are the surviving spouse of the employee pursuant to 42 U.S.C. § 7384s(e)(3)(A) and entitled to compensation in the amount of $150,000; and the covered spouse of the employee pursuant to 42 U.S.C. § 7385s-3(d)(1) and entitled to additional compensation in the amount of $150,000.

Accordingly, you are entitled to compensation in the total amount of $300,000.00.

Washington, DC

____________________________________________________

Rosanne M. Dummer

Hearing Representative