Docket Number: 60001-2005

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, your claims for benefits are denied.

On July 26, 2004, you each filed a claim for benefits under the EEOICPA listing beryllium sensitivity and severe lung disease as the medical conditions on which your claim is based. You stated on your employment history form (EE-3) that your father worked for Norton Company in Worchester, Massachusetts from April 10, 1943, to June 30, 1978.

With your claim you submitted various treatment records for your father that covered the time period from October 1993 to August 1998. The majority of these records showed treatment for your father’s heart failure. The earliest report is a discharge summary from the Medical Center of Central Massachusetts for the period October 20, 1993 to October 28, 1993, which indicates that your father had a history of coronary artery disease, congestive heart failure, cerebrovascular accident, and chronic obstructive pulmonary disease (COPD). A discharge summary from the Medical Center of Central Massachusetts for the period November 6, 1995 to November 7, 1995, indicates your father had shortness of breath, bilateral pleural effusions, and interstitial edema, and these findings were felt to be compatible with his congestive heart failure. A chest x-ray dated February 26, 1998, identified focal fibrosis in the right lung base. A chest x-ray dated April 9, 1998, showed bibasal infiltrates, and a small nodule in the left lung. You also submitted a copy of the employee’s death certificate showing he died on September 1, 1998, and listed his immediate cause of death as congestive heart failure, and listed diabetes as a contributory cause of death.

On August 9, 2004, and September 10, 2004, the district office informed you that there was insufficient evidence for your claim. You were advised that your claim for beryllium sensitivity is not compensable to survivors, and that the claimed severe lung disease is not an occupational illness covered by the Act. You were advised of the medical evidence required to establish a diagnosis of cancer and chronic beryllium disease under the Act. You were asked to provide medical evidence showing that your father had chronic beryllium disease or cancer. In each letter, the district office requested that you provide such evidence within 30 days.

On September 23, 2004, the district office received a letter from your father’s physician, Dr. Tanquay. Dr. Tanquay indicated in this statement, dated September 15, 2004, that your father had been under his care for multiple myeloma prior to his death, and that your father died from this disease on September 1, 1998.

On September 23, 2004, the district requested that Dr. Tanquay provide copies of your father’s medical reports and pathology reports that form the basis for the diagnosis of multiple myeloma. The district office requested a reply within 30 days of the letter, but no response was received.

On October 28, 2004, and November 29, 2004, the district office requested that you provide medical evidence sufficient to establish that your father had multiple myeloma. You were also advised of the district office’s attempt to obtain the records from Dr. Tanquay, and of his lack of reply. In each letter, you were requested to submit the requested medical evidence within 30 days. There is no evidence in the file to indicate that you responded to the district office’s requests.

On January 7, 2005, the district office issued a recommended decision that concluded you did not submit medical evidence sufficient to demonstrate that your father had been diagnosed with an occupational illness as defined in 42 U.S.C. § 7384l(15), specifically multiple myeloma. The recommended decision also concluded that the claim for severe lung disease does not establish that your father is a covered employee, as this condition is not a compensable occupational illness. The recommended decision also concluded that you, as survivors, are not eligible for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, it was recommended that benefits under the EEOICPA be denied.

The Department of Labor’s regulations provide 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." See 20 C.F.R. § 30.310(a).

I find that you have not filed any objections to the recommended decision within the 60 days allowed by 20 C.F.R. § 30.310(a). Based on my review of your case record, I find that you did not provide sufficient medical evidence to establish that your father had been diagnosed with an occupational illness covered under Part B of the Act; specifically, the medical evidence submitted was not sufficient to establish a diagnosis of multiple myeloma. In addition, I find that as survivors you are not eligible for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, I find that you are not entitled to benefits under Part B of the Act, and that your claims for compensation must be denied.

Cleveland, OH

_______________________________________

Debra A. Benedict

District Manager

Final Adjudication Branch