Docket Number: 59466-2007

U.S. DEPARTMENT OF LABOR

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

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 59466-2007

100008312-2007

DECISION DATE: December 15, 2006

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under Part B and Part E of 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 stated below, your claim is approved.

STATEMENT OF THE CASE

On July 12, 2004, you filed a claim for survivor benefits under EEOICPA, Form EE-2, and DOE F 350.3, as the surviving beneficiary of [Employee] (hereinafter referred to as the employee). The condition you claimed the employee developed as a result of his employment at a DOE facility was lung cancer. On Form EE-3 (Employment History), you indicated that the employee was employed from June 1, 1950 to May 31, 1986 at the Ames Laboratory, in Ames, Iowa. You stated he worked in production maintenance. The Department of Energy verified the employee was employed by Ames Laboratory[1] from May 15, 1951 to July 31, 1986.

In support of your claim as the eligible surviving beneficiary you submitted the employee’s death certificate that showed he died as a result of lung cancer on July 23, 1998 at the age of 76. [Employee’s wife] was noted as the surviving spouse. You submitted a marriage certificate showing [Employee’s wife] married [Employee] on August 10, 1943. You also submitted a medical report dated November 4, 1996 that provided a diagnosis of lung cancer with metastases to the nodes, liver and adrenal.

The district office evaluated the medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction. On November 12, 2004, the district office forwarded a copy of the case file and referral summary to NIOSH to perform a dose reconstruction.

On August 8, 2006, the Secretary of HHS designated the following class for addition to the Special Exposure Cohort (SEC) in a report to Congress:

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Ames Laboratory in one or more of the following facilities/locations: Chemistry Annex 1(also known as “the old women’s gymnasium” and “Little Ankeny”), Chemistry Annex 2, Chemistry Building (also known as “Gilman Hall”), Research Building, or the Metallurgical Building (also known as “Harley Wilhelm Hall”) from January 1, 1942 through December 31, 1954 for a number of work days aggregating at least 250 work days, or in combination with work days within the parameters (excluding aggregate work day requirements) established for one or more classes of employees in the SEC, and who were monitored or should have been monitored.

On November 11, 2006, the Denver district office issued a recommended decision finding that the employee is a member of the SEC, that he was diagnosed with a specified cancer (lung cancer), and you are the only eligible survivor of the employee entitled to compensation in the amount of $150,000.00 under Part B of the Act. Additionally the decision found you are entitled to an additional $125,000.00 in compensation benefits under Part E. The case was transferred to the FAB on the same day.

After considering all evidence in the case, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits under EEOICPA.
2. The employee had covered employment at the Ames Laboratory from May 15, 1951 to July 31, 1986.
3. The employee was diagnosed with lung cancer, a specified cancer under the SEC provisions of the Act.
4. The employee worked at the Ames Laboratory for more the 250 days and his cancer was diagnosed more than 5 years after his first employment exposure.
5. The file also contains your signed statement that neither you nor the employee filed for or received any state workers’ compensation benefits or filed any lawsuits for the claimed illness or exposure to radiation. The employee did not have any minor children or children incapable of self-support who were not recognized as your natural or adopted children at the time of his death.

Based on the above noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

Pursuant to 20 C.F.R. § 30.316(a) of the EEOICPA regulations, “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 20 C.F.R. § 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). On November 22, 2006, the FAB received written notification you waiving any and all objections to the recommended decision.

On August 8, 2006, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:

Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Ames Laboratory in one or more of the following facilities/locations: Chemistry Annex 1(also known as “the old women’s gymnasium” and “Little Ankeny”), Chemistry Annex 2, Chemistry Building (also known as “Gilman Hall”), Research Building, or the Metallurgical Building (also known as “Harley Wilhelm Hall”) from January 1, 1942 through December 31, 1954 for a number of work days aggregating at least 250 work days, or in combination with work days within the parameters (excluding aggregate work day requirements) established for one or more classes of employees in the SEC, and who were monitored or should have been monitored.

The employee is a member of the SEC as defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q and was diagnosed with a specified cancer, lung cancer. The employee is a “covered employee with cancer” as defined in 42 U.S.C. § 7384l(9)(A).

The FAB hereby finds the employee was a covered DOE contractor employee with a covered illness who contracted that illness through exposure at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).

You have established that you are the eligible survivor of the employee as defined by 42 U.S.C. § 7384s(e)(1)(A) and are entitled to $150,000.00. You are also entitled to $125,000.00 under § 7385s-3(a)(1). You are entitled to $275,000.00 in total compensation.

The evidence in the record establishes that the employee met the criteria of a covered employee with cancer. You have established that you are the eligible survivor of the employee. It is the decision of the FAB to accept your claim.

Denver, Colorado

Sandra Vicens-Pecenka, Hearing Representative

Final Adjudication Branch