Docket Number: 55317-2004

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, your claim is denied.

On March 8, 2004, you filed a claim for benefits under the EEOICPA, Form EE-1, wherein you identified emphysema and chronic beryllium disease (CBD) as the medical conditions being claimed. On the EE-3 form, you indicated that you were employed at the Paducah Gaseous Diffusion Plant (PGDP[1] during the early 1950’s. On March 16, 2004, the district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify your claimed employment, but no records were found. On April 6, April 28 and May 6, 2004, the Department of Energy (DOE) advised the district office that they found no evidence to verify your claimed employment. However, DOE did obtain a security clearance card, which indicated that you were given security clearance to work for Slater System, Inc./F.H. McGraw & Company at an unidentified DOE facility between May 22, 1952 and July 2, 1952 and clearance to work for Carbide & Carbon at an unidentified DOE facility between February 25, 1953 and May 11, 1953.

On April 8, 2004, the district office received your itemized statement of earnings from the Social Security Administration (SSA), Form SSA-1826, which covered the time period between January, 1949 and December, 1955. The earnings statement indicated that you received earnings from Slater System Maryland, Inc. during the second quarter of 1952. By letter dated March 24, 2004, the district office advised you of the kinds of employment evidence you would need to establish covered employment under the Act. By letter dated May 25, 2004, the district office requested that you submit an employment history affidavit, Form EE-4, from a co-worker to establish that you worked on-site at the PGDP during a covered time period. No response was received. Nonetheless, the district office erroneously concluded that the combination of your security clearance card and SSA earnings statement was sufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.

Specifically, pursuant to EEOICPA Bulletin No. 03-27 (issued May 28, 2003) Item #22, “if the CE [claims examiner] can verify that the employee worked for a subcontractor during a covered time frame on the premises of a designated DOE or beryllium vendor facility, a finding can be made for covered employment.” Additionally, pursuant to Item #4, “security clearance documents just provide evidence that security clearance was requested but does not establish presence on the facility.” And, finally, pursuant to Item #12, SSA records will not assist in determining the presence of the employee on the premises of the covered facility. Therefore, your security clearance card and SSA earnings statement are insufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.

By letter dated March 24, 2004, the district office advised you of the specific medical evidence necessary to establish CBD under the Act and enclosed a Form EE-7, which listed the specific medical evidence necessary to establish a covered medical condition under the Act. The district office also advised you that emphysema is not a covered medical condition under the Act. On April 2, April 12, May 26, and June 10, 2004, the district office received medical records from the resource center, dated between March 12, 1992 and February 7, 2002, which established that you were diagnosed with sinusitis, hypertension and several other non-covered medical conditions.[2]

The following relevant medical records were included in the aforementioned medical evidence: 5 medical progress notes from Dr. N.L. Still, dated between August 11, 1992 and November 17, 1992, in which you were diagnosed with chronic obstructive pulmonary disease (COPD); a September 15, 1999 medical report by Dr. D. Patel, in which he stated that you saw a pulmonologist and were diagnosed with COPD; a January 18, 2000 medical report by Dr. D. Patel, in which he stated that you had acute bronchitis; a February 4, 2002 medical report by Dr. Hima Alturi in which he stated that you had a persistent cough; an October 30, 2002 medical report by Dr. D. Patel, in which he stated that you had “questionable emphysema;” a March 12,1992 radiology report from Decatur Hospital, in which they found “discoid atelectasis of both bases with minimal increase in the interstitial markings, otherwise negative chest;” a May 27, 1992 radiology report from Decatur Hospital, in which they found “minimal bibasilar discoid atelectasis; an August 12, 1992 radiology report from Decatur Hospital, in which they found “scarring or atelectasis” in the left lung; a December 2, 1994 x-ray report from Decatur Hospital, in which they found “bibasilar linear infiltrates which may represent atelectasis or fibrosis;” a February 11, 1995 x-ray report from Decatur Hospital, in which they found “no acute pulmonary disease;” and a July 28, 1995 radiology report from Decatur Hospital, in which they found “no acute disease of the chest.”

By letter dated May 25, 2004, the district office advised you that the aforementioned medical evidence was insufficient to establish that you were diagnosed with CBD under the Act and listed the specific medical evidence necessary to establish the same. You were afforded 30 days to establish that you were diagnosed with a covered medical condition, but no response was received. A “covered employee,” as defined in § 7384l(1),(3),(7),(9) and (11) and § 7384r of the EEOICPA, includes employees of private companies (an entity “other than the United States,” per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors. 42 U.S.C. §§ 7384l(1),(3),(7),(9) and (11); 7384r.

Additionally, pursuant to § 7384l(13) of the EEOICPA, “The term ‘established chronic beryllium disease’ means chronic beryllium disease as established by the following: (A) For diagnosis on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including-(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise test showing pulmonary deficits consistent with chronic beryllium disease. (B) For diagnosis before January 1, 1993, the presence of-(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13). And, finally, pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).

On June 8, 2004, the district office issued a recommended decision, which concluded that you were a covered beryllium employee, pursuant to § 7384l(7) of the Act, that you were exposed to beryllium in the performance of duty, pursuant to § 7384n(a) of the Act, that you failed to submit sufficient medical evidence to establish that you were diagnosed with CBD, pursuant to § 7384l(13) of the Act and that emphysema is not a covered occupational illness, pursuant to § 7384l(15) of the Act. 42 U.S.C. §§ 7384l(7),(13), and (15); 7384n(a). Therefore, it was recommended that benefits under the EEOICPA be denied.

Section 30.310(a) of the EEOICPA implementing regulations provides that “…Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a).

Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or 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.” 20 C.F.R. § 30.316(a). I find that you have not objected to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations. 20 C.F.R. § 30.310(a).

Based on my review of the case record and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that there is insufficient evidence to establish that you are a covered employee, pursuant to § 7384l of the Act, and that there is insufficient evidence to establish that you were diagnosed with a covered medical condition, pursuant to § 7384l(15) of the Act. Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Washington, DC

Richard Koretz

Hearing Representative