Docket Number: 62728-2008

U.S. DEPARTMENT OF LABOR

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

REMAND ORDER

This order of the Final Adjudication Branch (FAB) concerns the above-noted claim for survivor benefits under Part B of 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 claim is remanded to the Cleveland district office for additional development to determine if the employee qualifies as a “covered employee with cancer” under Part B of EEOICPA.

On October 20, 2004, [Claimant] filed a claim for survivor benefits under Part B and a request for assistance under former Part D of EEOICPA, as the spouse of [Employee]. [Claimant] identified lung cancer and mouth cancer as the medical conditions of [Employee] resulting from his employment for an atomic weapons employer. Subsequent to [Claimant]’s filing a request for assistance under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E. As part of these amendments, Congress directed that the filing of a request for assistance under former Part D would be treated as a claim for benefits under the new Part E. On August 2, 2005, [Claimant] filed another Part E claim based on the alleged condition of lung disease.

On November 9, 2006, FAB issued a final decision denying [Claimant]’s claim for survivor benefits under Part E because the evidence did not establish that [Employee] was employed by a DOE contractor performing remediation activities at a covered Department of Energy (DOE) facility. On July 31, 2008, FAB also issued a final decision to deny [Claimant]’s claim for survivor benefits under Part B because the evidence did not establish that [Employee] worked for a subsequent owner or operator of an atomic weapons employer facility at that atomic weapons employer facility. On October 16, 2008, [Claimant] submitted an affidavit in which Ronald G. Proffitt indicated that he had worked with [Employee] at the General Steel Industries facility in Granite City , Illinois from 1963 to 1973. Based on this new evidence, the Director issued a January 13, 2009 Order vacating the FAB’s July 31, 2008 final decision and reopening [Claimant]’s claim for survivor benefits under Part B.

On Form EE-3 (employment history), [Claimant] indicated that [Employee] worked for Granite City Steel (General Steel Castings) from April 1963 to December 2000. On November 8, 2004, a representative from DOE verified that [Employee] worked for Granite City Steel from January 14, 1974 to December 19, 2000. Records from St. Elizabeth Medical Center dated March 17, 1980 and December 21, 2000 indicate that [Employee] worked for Granite City Steel located at 20th and Madison and 1520 20th Street, respectively, in Granite City, Illinois. Earnings records from the Social Security Administration (SSA) indicate that [Employee] had earnings from National Roll [EIN deleted] from the second quarter of 1963 to the third quarter of 1973 and in 1978, and from National Steel Corporation [EIN deleted] from the first quarter of 1974 to 2001. The General Steel Industries facility in Granite City, Illinois (also known as Old Betatron Building, General Steel Castings, General Steel Industries, Granite City Steel, and National Steel Company) is covered as an atomic weapons employer facility from 1953 to 1966. This same facility is also covered for employees of subsequent owners and operators of this facility for residual radiation from 1967 to 1992, and also as a DOE facility for remediation activities in 1993.

[Claimant] submitted medical records from [Employee]’s healthcare providers, including a July 12, 2001 pathology report in which Dr. Samir K. El-Mofty diagnosed poorly differentiated squamous cell carcinoma of the floor of the employee’s mouth. These medical records did not establish that [Employee] was diagnosed with lung cancer.

[Claimant] submitted a copy of [Employee]’s death certificate, signed by Dr. M. Bavesik, which listed the employee’s age as 60 as of the date of his death on November 28, 2001. The death certificate indicated that the immediate cause of [Employee]’s death was cancer of the floor of the mouth, and that [Claimant] was [Employee]’s surviving spouse. [Claimant] also submitted a copy of a July 8, 1966 marriage certificate confirming her marriage to [Employee] on that date.

To determine the probability of whether [Employee] contracted cancer in the performance of duty, the district office referred [Claimant]’s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. The district office subsequently received the NIOSH Report of Dose Reconstruction for the employee, dated August 7, 2007. The dose reconstruction was based on [Employee]’s employment at the General Steel Industries facility from January 14, 1974 to December 19, 2000, and calculated the dose to his oral cavity from 1974 to the date his oral cavity cancer was diagnosed in 2001. The district office used the information provided in this NIOSH report to determine that there was a 4.36% probability that [Employee]’s cancer was caused by ionizing radiation exposure at the General Steel Industries facility in Granite City, Illinois.

On April 23, 2009, the district office issued a recommended decision to deny [Claimant]’s claim for survivor benefits under Part B of EEOICPA based on the employee’s lung cancer, lung disease and mouth cancer. In recommending denial of [Claimant]’s claim, the district office found that [Employee] had covered employment at Granite City Steel from January 14, 1974 to December 19, 2000, but did not indicate what weight, if any, that it gave to the affidavit that [Claimant] submitted from Ronald G. Proffitt, or the SSA records indicating that [Employee] had reported earnings from National Roll from the second quarter of 1963 to the third quarter of 1973. I note that evidence in the case file indicates that in 1994, SSA changed the company associated with [EIN deleted] from General Steel Industries to National Roll; this change was shown in all SSA reports printed after 1994. In the absence of evidence to the contrary, SSA records showing wages paid by General Steel Castings Corporation [EIN deleted] or by National Roll [EIN deleted] are considered sufficient proof of employment by General Steel at their covered Granite City location. The November 8, 2004 verification of employment by DOE is limited to employment at this facility by Granite City Steel (a subsequent owner and operator of this facility).

The Federal (EEOICPA) Procedure Manual, Chapter 2-0600.10 (September 2004) requires the claims examiner to compare the dose reconstruction report to the evidence in the file. If there are significant discrepancies between the information in the file and the dose reconstruction report, a new dose reconstruction report may be necessary. The Procedure Manual specifies that changed employment facilities or dates, or a change in the date of diagnosis outside of the month previously used, constitutes a significant discrepancy. NIOSH did not consider [Employee]’s dose prior to January 1974 and thus did not include his dose at the facility from April 1963 to that date in the dose reconstruction. This constitutes a significant discrepancy. A rework of the dose reconstruction is needed to determine if [Employee] qualifies as a covered employee with cancer under Part B based on his exposure to ionizing radiation during the performance of duty at a covered facility during a covered period. This case should be returned to NIOSH for a rework of the dose reconstruction that includes [Employee]’s dose from April 1963.

Because a rework is necessary,[Claimant]’s claim for survivor benefits under Part B is not in posture for a final decision. Pursuant to the authority granted to FAB by 20 C.F.R. § 30.317, [Claimant]’s claim is remanded to the Cleveland district office. On remand, the district office should perform such further development it may deem necessary to determine if [Employee] qualifies as a covered employee with cancer. This should include referring the case to NIOSH for a rework of the dose reconstruction using the correct covered employment dates. After this development, the district office should issue a new recommended decision on [Claimant]’s claim for survivor benefits under Part B of EEOICPA.

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch