Docket Number: 59055-2004

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 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on rectal cancer.

STATEMENT OF THE CASE

You filed a claim, Form EE-1 (Claim for Employee Benefits under the EEOICPA), on July 7, 2004, based on rectal cancer/colon cancer. You provided a copy of a histopathology report which diagnosed invasive adenocarcinoma, based on analysis of a rectal polyp obtained during a colonoscopy on February 24, 1997. An operative report shows that you underwent a low anterior resection due to rectal cancer on March 13, 1997. The post-surgical pathology report diagnoses moderately differentiated adenocarcinoma of the colon.

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985. You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985. You also state that you wore a dosimetry badge while so employed.

The Department of Energy (DOE) was unable to confirm your reported employment. You provided copies of Forms W-2 which show that you were paid wages by Dynamic Industrial Cons. Inc. during 1983, 1984, and 1985; and by the Marley Cooling Tower Co. in 1985. A letter from the Financial Secretary Treasurer of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 577, reports that you worked at the Portsmouth GDP for Dynamic Industrial from January 1983 to November 1984 and from January 1985 to June 1985; and for Marley Cooling Tower Co. during March 1985. A representative of the DOE provided information which establishes that Dycon was a subcontractor at the Portsmouth GDP from 1980 through 1986. The Portsmouth GDP is recognized as a Department of Energy (DOE) facility from 1954 to 1998. See Department of Energy, Office of Worker Advocacy Facilities List.

On August 6, 2004, the Cleveland district office issued a recommended decision concluding that you are a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with rectal cancer, which is a specified cancer under 42 U.S.C. § 7384l(17). In addition the district office concluded that, as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. The district office also concluded that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

On August 19, 2004, the Final Adjudication Branch (FAB) received written notification that you waive any and all objections to the recommended decision.

The FAB received additional evidence subsequent to receipt of your waiver. The DOE provided a copy of a Personnel Clearance Master Card which shows that you were granted a security clearance with SWEC (Dynamic Indust.) on January 18, 1984. No termination date is shown. You submitted additional medical reports regarding your treatment for cancer. Some of these were duplicates of reports already of record. The remaining records discuss your treatment following surgery in March 1997.

FINDINGS OF FACT

1. You filed a claim for benefits on July 7, 2004.

2. For purposes of SEC membership, you worked at Portsmouth GDP for Dycon during the periods of January 1983 to November 1984 and January 1985 to June 1985.

3. The evidence of record establishes that Dycon was a subcontractor for the Portsmouth Gaseous Diffusion Plant from 1980 to 1986.

4. You were employed for a number of work days aggregating at least 250 work days during the period of September 1, 1954, to February 1, 1992, and during such employment performed work that was comparable to a job that is or was monitored through the use of dosimetry badges.

5. You were diagnosed with rectal cancer on February 24, 1997.

CONCLUSIONS OF LAW

In order to be considered a “member of the Special Exposure Cohort,” you must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

The evidence of record establishes that you worked in covered employment at the Portsmouth GDP from January 1983 to November 1984 and January 1985 to June 1985. This meets the requirement of working more than an aggregate 250 days at a covered facility. See 42 U.S.C. § 7384l(14)(A). The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a (June 2002). On that basis, you meet the dosimetry badge requirement.

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer. The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon. Regardless of the term used, the evidence reveals only a single tumor located in the rectum. For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum.

Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer. Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer. See 42 U.S.C. §§ 7384l(14)(A) and (17).

For the reasons stated above, I accept your claim for benefits based on rectal cancer. You are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. Additionally, I conclude that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

Cleveland, Ohio

_______________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch