Docket Number: 61433-2006

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	61433-2006 61436-2006 61438-2006
DECISION DATE:	April 25, 2008

 

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 9, 2004, [Claimant #1] filed a Form EE-2 claiming for survivor benefits under EEOICPA, and on September 7, 2004, [Claimant #2] and [Claimant #3] filed a Form EE-2. [Claimant #2] also filed a Request for Review by Medical Panels form with the Department of Energy (DOE) on that date. On the claim forms, they each identified themselves as the surviving children of [Employee] (hereinafter referred to as “the employee”) and lung cancer as the employee’s condition for which they were claiming benefits. On the EE-2 forms, they each indicated that the employee worked at a Special Exposure Cohort (SEC) location.

In support of their claims for survivorship, they provided a copy of the employee’s death certificate, which shows that the employee died on June 29, 2003, and that he was widowed on his date of death. They each provided a copy of their birth certificate identifying the employee as their father. Where appropriate, they provided the documentation that reflects their surname changes.

On the Form EE-3, they alleged that the employee worked for F.H. McGraw during construction of the gaseous diffusion plant (GDP) in Paducah, Kentucky from 1951 to May 1955. They also indicated that the employee did not wear a dosimetry badge. DOE was unable to verify the alleged employment.

Numerous documents, including Social Security Administration (SSA) Itemized Statements of Earnings, an Employment History Affidavit (Form EE-4), and a security clearance issued by DOE to the employee through F.H. McGraw were reviewed in an effort to reconstruct and verify the employee’s work history and employment by DOE contractors and/or subcontractors at the Paducah GDP. A review of this documentation shows that the employee was employed by F.H. McGraw, a recognized DOE subcontractor, at the Paducah GDP from May 12, 1952 until July 7, 1952.

On April 24, 2006, FAB issued a final decision under Parts B and E of EEOICPA on their claims. The FAB denied their claims under Part E as there was insufficient evidence that any of them were a surviving child of the employee, who, at the time of the employee’s death, was under the age of 18, under the age of 23 and continuously enrolled as a full-time student, or any age and incapable of self-support on the employee’s date of death, which are the criteria that govern whether an employee’s surviving child qualifies as a “covered” child under Part E, and is thereby eligible for benefits under Part E.

With respect to Part B of EEOICPA, FAB found that the medical evidence established that the employee was diagnosed with small cell lung cancer on December 17, 2002. The district office had submitted the case to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction. Based on the dose reconstruction report prepared by NIOSH and the calculated probability of causation (“PoC”)[1], FAB determined that the employee’s lung cancer was not “at least as likely as not” caused by his exposure to radiation at the DOE facility. Accordingly, FAB denied their claims based on the employee’s lung cancer under Part B.

On March 21, 2007, NIOSH released OCAS-PEP-013, entitled “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant.” This release outlined NIOSH’s plan for evaluating the effect on dose reconstructions of changes to multiple Paducah GDP Technical Basis Documents (TBDs) that were made to ensure that the published isotopic ratios for transuranic radionuclides meet the criteria of providing either an accurate or maximum dose estimate. NIOSH determined that the current ratios in the prior TBDs did not meet that goal. As such, the Occupational Internal Dose and Occupational Environmental Dose TBDs were updated to account for the transuranic uranium isotopic ratios (relative to uranium) for estimating dose from these radionuclides. In response to OCAS–PEP-013, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a letter to NIOSH on July 2, 2007 in which it informed NIOSH that all cases potentially affected by the release of OCAS-PEP-013 would be reopened and returned to NIOSH for a new radiation dose reconstruction.[2]

In light of NIOSH’s OCAS-PEP-013, a Director’s Order was issued on October 25, 2007 vacating the FAB’s Final Decision of April 24, 2006 under Part B and reopening these claims under Part B of EEOICPA. The Director ordered that the case be resubmitted to NIOSH so that NIOSH could perform a new dose reconstruction. Thereafter, the district office resubmitted the case to NIOSH.

The purpose of dose reconstruction is to determine the probability of whether an employee sustained his or her cancer in the performance of duty, in order to establish entitlement as required under the relevant portions of Part B. In performing the radiation dose reconstruction, NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. A summary and explanation of information and methods applied to produce these dose estimates, including the involvement of [Claimant #1, Claimant #2 and Claimant #3] through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.” On December 24, 2007, [Claimant #1] and [Claimant #3] signed Form OCAS-1, and on January 28, 2008, [Claimant #2] signed Form OCAS-1, indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they had provided to NIOSH. The district office received the new, final NIOSH Report of Dose Reconstruction on February 1, 2008. Pursuant to the NIOSH regulations, the district office used the information provided in this report to determine that there was a 1.16% probability that the employee’s lung cancer was caused by his radiation exposure at the Paducah GDP.[3]

On February 11, 2008, the Jacksonville district office issued a recommended decision to deny these claims under Part B. Attached to the recommended decision was a notice of claimant rights, which stated that [Claimant #1, Claimant #2 and Claimant #3] had 60 days in which to file an objection to the recommended decision. These 60 days expired on April 11, 2008. They did not submit any objections to the recommended decision.

After considering all of the evidence in the file, the undersigned hereby makes the following:

FINDINGS OF FACT

1. [Claimant #1, Claimant #2 and Claimant #3] each filed a claim for survivor benefits under EEOICPA based on the employee’s cancer.

2. The employee was employed at the GDP in Paducah, Kentucky, from May 12, 1952 until July 7, 1952.

3. The employee was diagnosed with lung cancer on December 17, 2002.

4. The employee, a widower, died on June 29, 2003.

5. [Claimant #1, Claimant #2 and Claimant #3] are the employee’s surviving children.

6. The probability that the employee’s lung cancer was caused by radiation at the Paducah GDP is 1.16%.

Based on the above-noted findings of fact, the undersigned also makes the following:

CONCLUSIONS OF LAW

The implementing 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 and whether a hearing is desired. 20 C.F.R. § 30.310(a) (2006). 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 or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

I conclude that the medical evidence establishes that the employee was diagnosed with lung cancer. Part B of EEOICPA established a compensation program to provide a lump-sum payment of $150,000.00 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 DOE and certain of its vendors, contractors and subcontractors. Additionally, Part B provides for compensation to be paid to the covered employee’s eligible survivors in the event that the covered employee is deceased at the time that compensation is paid under Part B. See 42 U.S.C. § 7284s(e).

In order for an employee to be entitled to compensation for cancer under Part B, he or she must meet the definition of a “covered employee with cancer,” which means an employee who is a “member of the Special Exposure Cohort” with a “specified cancer” or an employee whose cancer is at least as likely as not related to employment at a DOE facility. See 42 U.S.C. § 7384l(9), (14) and (17); 42 U.S.C. § 7384n(b).

As noted above, [Claimant #1, Claimant #2 and Claimant #3] indicated that the employee worked at a SEC location. In pertinent part, EEOICPA defines a SEC member as follows:

The term “member of the Special Exposure Cohort” means a Department of Energy employee, Department of Energy contractor employee, or atomic weapons employee who meets any of the following requirements:

(A) The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at [the] gaseous diffusion plant located in Paducah, Kentucky. . .and, during such employment—

(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation.

42 U.S.C. § 7384l(14)(a)(i). As stated above, DOE was unable to verify that the employee worked at the Paducah GDP. The documents used to establish the employee’s work history at the Paducah GDP show that the employee’s employment there ended on July 7, 1952. [Claimant #1, Claimant #2 and Claimant #3] indicated on their claim forms that the employee did not wear a dosimetry badge. Radioactive materials were not present at the Paducah GDP until July 1952. Since the employee was not exposed to radiation at the Paducah GDP for an aggregate of 250 workdays after July 1952, the employee cannot be considered to be a member of the SEC.[4]

An employee who is not a member of the SEC with a specified cancer will be considered to have sustained his or her cancer in the performance of duty if the cancer was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility. See 42 U.S.C. § 7384n(b). In this case, the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s lung cancer was caused by radiation received at the Paducah GDP in the performance of duty.

Based on my review of the evidence of record and the recommended decision, I conclude that [Claimant #1, Claimant #2 and Claimant #3] are not entitled to compensation under Part B of EEOICPA because the employee is not a “covered employee with cancer.”

Jacksonville, FL

Wendell Perez

Hearing Representative

Final Adjudication Branch