Docket Number: 68949-2005

NOTICE OF FINAL DECISION

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). For the reasons set forth below, the Final Adjudication Branch accepts your claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On May 31, 2005, you filed Forms EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as the surviving children of [Employee]. You identified the diagnosed condition being claimed as small cell carcinoma of the lung. The medical documentation of record includes a pathology report based on an endobronchial biopsy performed on March 1, 1995, which shows a diagnosis of small cell carcinoma of the right upper lung lobe. A report of a consultation examination conducted on March 2, 1995, and signed by Dr. Blessilda Liu, confirms that diagnosis.

You submitted a copy of your father’s death certificate showing that he died on April 18, 1996, and identifying [Employee’s Spouse] as his surviving spouse. A copy of their marriage certificate shows that they were wed on August 31, 1953. A copy of a death certificate shows that [Employee’s Spouse] died on December 26, 2004, and names her father as [Employee’s Spouse’s Father].

With the exception of [Claimant #3], you each provided a copy of a birth certificate naming [Employee] as your father. [Claimant #5] provided marriage certificates and a divorce decree establishing the change in her last name to [Claimant #5’s married name].

[Claimant #3’s] birth certificate shows that she was named [Claimant #3’s given name] and that she was born on July 8, 1953, approximately two months prior to the marriage of [Employee] and [Employee’s Spouse]. The certificate was filed with the Pennsylvania Department of Health on July 22, 1953. The birth certificate names [Claimant #3’s biological father] as her father and [Employee’s Spouse] as her mother. She provided a statement indicating that she resided with her mother and [Employee] from infancy until 1974, when she was married. She reports that, after leaving home, she maintained a relationship with [Employee] and cared for him during his illness due to cancer. She further reports that [Employee] and her mother had told her that she was adopted, but that she cannot find any supporting documentation. Finally, she states that she never knew any other father. She provided a copy of a permanent record card for the senior high school in McKeesport, PA, which names [Employee] as her father and [Employee’s Spouse]as her mother. A copy of [Employee’s] last will and testament names [Claimant #3], along with the other claimants, as his children. [Claimant #5] provided a letter in which she states that she has no doubt that [Claimant #3] is her sister and that all five children were raised in the same household. [Claimant #3] also provided marriage certificates and a divorce decree establishing the change in her last name to [Claimant #3’s married name].

You also provided a Form EE-3 (Employment History) in which you stated that your father worked at the U.S. Steel Co., National Tube Division, from 1953 to 1985. U.S. Steel verified that he worked at the U.S. Steel Co., National Tube Division, from August 15, 1953, to July 30, 1985. The U.S. Steel Co., National Tube Division, in McKeesport, PA, is recognized as a covered atomic weapons employer (AWE) facility from 1959 to 1960. See Department of Energy, Office of Worker Advocacy, Facility List.

To determine the probability of whether your father sustained cancer in the performance of duty, the Cleveland district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On July 20, 22, 24, and 27, 2005, you signed Forms OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH. On August 3, 2005, the district office received the final NIOSH Report of Dose Reconstruction. Using the information provided in this report, the district office used the Interactive RadioEpidemiological Program to determine the probability of causation of your father’s cancer and reported in its recommended decision that there was at least a 50% probability that lung cancer was caused by radiation exposure at the U.S. Steel Co., National Tube Division.

On August 11, 2005, the Cleveland district office issued a recommended decision concluding that your father is a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B), whose cancer was at least as likely as not related to his employment at the U.S. Steel Co., National Tube Division, and thus sustained in the performance of duty. For that reason, the district office recommended that you, as his surviving children, are each entitled to compensation in the amount of $30,000 pursuant to 42 U.S.C. § 7384s.

On August 17 and 22, 2005, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision.

FINDINGS OF FACT

1. You filed claims for benefits on May 31, 2005.
2. Your father worked at the U.S. Steel Co., National Tube Division, a covered AWE facility, from August 15, 1953, to July 30, 1985.
3. Your father was diagnosed with small cell carcinoma of the right upper lung lobe on March 1, 1995.
4. The NIOSH Interactive RadioEpidemiological Program determined a 95.91% probability that your father’s lung cancer was caused by radiation exposure at the U.S. Steel Co., National Tube Division.
5. Your father’s cancer was at least as likely as not related to his employment at an AWE facility.
6. You are the surviving children of [Employee].

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision issued by the district office on August 11, 2005.

To determine the probability of whether your father sustained cancer in the performance of duty, the district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115. The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction, dated April 13, 2005. NIOSH determined that the internal dose due to inhalation during your father’s first year of employment was of sufficient magnitude to produce a probability of causation of 50% or greater. See 42 C.F.R. §§ 82.25, 82.26.

Using the information provided in the Report of Dose Reconstruction for small cell carcinoma of the right upper lung lobe, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 95.91% probability that your father’s cancer was caused by radiation exposure while employed at the U.S. Steel Co., National Tube Division. The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 95.91% probability.

The FAB has also reviewed the evidence regarding [Claimant #3’s] status as a stepchild and has determined that she is a stepchild of [Employee] who lived with him in a regular parent-child relationship. For that reason, she meets the definition of “child” in 42 U.S.C. § 7384s(e)(3)(B).

Based on your father’s covered employment at the U.S. Steel Co., National Tube Division, the medical documentation showing a diagnosis of small cell carcinoma of the right upper lung lobe, and the determination that your father’s cancer is at least as likely as not related to his employment at the U.S. Steel Co., National Tube Division, and thus sustained in the performance of duty, he is a “covered employee with cancer”. See 42 U.S.C. §§ 7384l(1)(B), (9)(B).

For those reasons, I find that you are each entitled to $30,000 based on your father’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

_______________________________________

Debra A. Benedict

District Manager

Final Adjudication Branch