Docket Number: 60418-2005

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 60418-2005

60419-2005

DECISION DATE: June 21, 2005

NOTICE OF FINAL DECISION

FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claims 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). Since [Claimant #2] requested a hearing, but then did not attend the scheduled hearing, a review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

For the reasons set forth below, your claims for benefits are denied.

STATEMENT OF THE CASE

On August 3, 2004, [Claimant #2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, and on August 11, 2004, [Claimant #1] filed a Form EE-2. The claims were based, in part, on the assertion that your late mother was an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Forms EE-2 that you were filing for lung cancer, hypoxia, obstructive jaundice, beryllium sensitivity, and chronic beryllium disease.

On the Form EE-3, Employment History, you stated that the employee was employed at the American Beryllium Company in Tallevast, Florida, from September 1982 to June 1992. The district office verified this employment as September 1, 1982 to June 1, 1992 through Social Security earnings records and other employment records.

To support your claim that the employee had a condition that was covered by § 7384 of the EEOICPA, you initially submitted medical evidence consisting of records of the employee’s diagnosis and treatment for lung cancer in 2000. All of the medical evidence of the employee’s treatment for a chronic lung condition was dated after January 1, 1993. There is no provision for coverage of cancer as a result of employment with a designated beryllium vendor.[1]

Because the medical evidence submitted did not diagnose a compensable occupational illness, the district office provided you the opportunity to substantiate your claims by sending development letters dated August 30, 2004; November 17, 2004; and January 7, 2005. Those letters explained the needed information, requested additional medical evidence, and allowed time for response. No additional medical evidence was received.

Because the necessary elements to establish a diagnosis of a compensable occupational illness under the Act were not met, the Jacksonville district office issued a recommended denial on February 11, 2005. The recommended decision found that the evidence does not establish that the employee was diagnosed with chronic beryllium disease or beryllium sensitivity. 42 U.S.C. § 7384l(8). The recommended decision also found that hypoxia, obstructive jaundice, and lung cancer are not compensable occupational illnesses as described in the Act. 42 U.S.C. § 7384.

Section 7384 of the Energy Employees Occupational Illness Compensation Program Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the DOE and certain of its vendors, contractors, and subcontractors. 42 U.S.C. § 7384. Eligible survivors may receive lump sum compensation, if applicable. Those “occupational illnesses” covered by the EEOICPA are specifically described in § 7384 of the Act as “covered beryllium illness, cancer referred to in § 7384l(9)(B)[2] of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). There are no provisions under § 7384 of the EEOICPA to cover any other illnesses, even if that illness may be related to employment at a covered facility.

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act. 42 U.S.C. § 7384l(7). Due to confirmation of the employee’s employment in a facility where beryllium was present, the employee is considered to be a “covered beryllium employee.” However, in order to receive medical benefits and/or compensation, the employee must have been diagnosed with a covered beryllium illness, in accordance with the Act and implementing regulations. 42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205. “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease. 42 U.S.C. § 7384l(8).

You claimed that the employee was diagnosed with beryllium sensitivity and chronic beryllium disease. According to the Act, chronic beryllium disease is established by the following:

(A) For diagnoses 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 testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses 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).

Given that all of the medical documentation that was submitted for the employee’s treatment for a chronic lung disease was dated post-1993, the criteria for a diagnosis of chronic beryllium disease diagnosed after January 1, 1993 was applied to the submitted medical evidence. Without an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells or a pathology report from a lung tissue biopsy that confirms the presence of granulomas, the criteria for a diagnosis of chronic beryllium disease post-1993 can not be established. There is no evidence of record that the employee was tested for beryllium sensitivity or that the employee had a lung tissue biopsy that confirmed the presence of granulomas.

The EEOICPA implementing regulations are clear as to the burden of proof placed on every claimant under the Act. Submitting medical evidence in support of a claim is ultimately the claimant’s responsibility, as explained in the implementing regulations. 20 C.F.R. § 30.111. This section states that “the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category. . .the claimant also bears the burden of providing to the OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”

OBJECTIONS

The recommended decision informed you that you had 60 days to file any objections, and that period ended on April 12, 2005. On February 22, 2005, the Final Adjudication Branch received [Claimant #2’s] letter of objection dated February 16, 2005. In the letter, you stated that you disagreed with the recommended decision; that your mother was employed at American Beryllium for 10 years and her job was to deburr the beryllium, which released beryllium dust into the air; that the records of company annual physicals have disappeared; that she died before tests for beryllium sensitivity were available; that you could not obtain medical records because of the time that has passed; that she took many over-the-counter drugs for sinusitis and bronchitis and allergies; that she died of the same symptoms as the disease of CBD; and that negligence was the reason for her death. You requested an oral hearing, which was scheduled for

April 20, 2005 in St. Petersburg, Florida.

When you did not appear for the hearing at the scheduled time, you were contacted by telephone. You stated that you were in the process of moving and would not be able to attend. Therefore, the request for a hearing was converted to a review of the written record.

The district office verified that your mother worked at American Beryllium for at least 10 years. However, neither the district office nor the FAB is granted flexibility in relaxing the statutory requirements for a diagnosis of beryllium sensitivity or chronic beryllium disease. Without an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells or a pathology report from a lung tissue biopsy that confirms the presence of granulomas, the criteria for a diagnosis of chronic beryllium disease post-1993 can not be established.

FINDINGS OF FACT

1. You each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.

2. You claimed the employee’s conditions of chronic beryllium disease, beryllium sensitivity, hypoxia, lung cancer, and obstructive jaundice.

3. The employee was employed at the American Beryllium Company. Since beryllium was present at the American Beryllium Company during the time of the employee’s employment, the employee is considered a “covered beryllium employee,” as defined in the Act.

4. The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

5. You also claimed the employee’s other lung conditions of hypoxia and lung cancer. Hypoxia is a symptom, and is not a beryllium illness, cancer or silicosis, and, therefore, cannot be considered a compensable occupational illness as defined by the Act and implementing regulations. Lung cancer, while a compensable occupational illness in certain situations, is not considered as such for employees of beryllium vendors.

6. The Jacksonville district office issued the recommended decision on February 11, 2005.

7. On March 21, 2005, the Final Adjudication Branch received [Claimant #2’s] letter of objection dated March 10, 2005, and a review of the written record was conducted.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on February 11, 2005, and finds that the evidence submitted does not establish that the employee was diagnosed with chronic beryllium disease, as defined in the Act, or any other compensable occupational illness, as defined in the Act and implementing regulations. 42 U.S.C. §§ 7384l(13), 7384l(15); 20 C.F.R. § 30.5(z). I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted. As explained in the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). The undersigned hereby denies payment of lump sum compensation and medical benefits under § 7384 of the Act.

42 U.S.C. § 7384.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative