Docket Number: 71273-2006

U.S. DEPARTMENT OF LABOR

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

NOTICE OF FINAL DECISION

FOLLOWING A DIRECTOR’S ORDER

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. Your claim is approved under Part B in the amount of $150,000.00 and under Parts B and E for medical benefits.

STATEMENT OF THE CASE

On August 18, 2005, you filed a claim (Form EE-1) for benefits under EEOICPA with the Paducah resource center. On the EE-1, you identified cancer of the parotid gland as the diagnosed condition for which you sought compensation. A pathology report, dated January 7, 1993, and a consultation report, dated January 18, 1993 confirm your diagnosis of adenocarcinoma of the salivary gland, left parotid.

On the Employment History (Form EE-3), you stated that you worked at the Mallinckrodt Destrehan Street Plant (MCW)[1] from April 15, 1950 through December 1, 1989. During your occupational history interview, you stated that you worked at MCW’s Destrehan Street Facility in the Uranium Division from 1953 through 1954 and in the Chemical Division from 1950 through 1953 then again from 1954 through 1989.

Mallinckrodt was unable to locate your employment file, but verified your dates of employment from April 15, 1951 through November 30, 1989. In particular, MCW verified your employment as a Section Supervisor in the Technical Banch of Mallinckrodt’s Uranium Division at the Weldon Spring Plant[2] from April 15, 1951 until 1966 and then in areas unrelated to uranium activites until your retirement from the company.

The Oak Ridge Institue for Science and Education (ORISE) verified your employment at MCW from March 5, 1953 through February 11, 1954. Employment and dosimetry records provided by the Department of Energy (DOE) show your employment at MCW’s Destrehan Street Facility from March 5, 1953 through February 17, 1954.

The district office accepted your dates of employment with MCW, from April 15, 1951 through November 30, 1989, to establish that you worked at least 250 work days in the Uranium Division of Mallinckrodt’s Destrehan Street facility. As such, and based on your diagnosis of a specified cancer, on January 3, 2006 the Denver district office issued a recommended decision to accept your claim pursuant to 42 U.S.C. §§ 7384s(a), 7384t and 7385s-8. On January 17, 2006, the FAB received written notification that you waive any and all objections to the January 3, 2006 recommended decision.

On February 16, 2006, the FAB issued a remand order concluding that the evidence of record establishes your employment with Mallinckrodt from April 15, 1951 through November 30, 1989 and that during the period from March 5, 1953 through February 17, 1954 you worked in the Uranium Division of MCW’s Destrehan Street Facility which is less than the 250 work days required to establish membership in the Special Exposure Cohort (SEC). As such, the FAB remanded your claim to the district office for further employment development to ascertain whether the duration of your employment with MCW occurred in the Uranium Division of MCW’s Destrehan Street Facility or occurred at the Weldon Spring Plant, as verified by Mallinckrodt.

On June 29, 2006, the Director of DEEOIC issued a Director’s Order vacating the February 6, 2006 remand order. The Director’s Order concluded that the AEC did not enter into a contract with MCW to operate the Weldon Spring Plant until June of 1957; therefore, any reference to uranium work performed by Mallinckrodt prior to June 1957 would have occurred at the Destrehan site. Accordingly, the Director’s Order further concluded that you were employed in Mallinckrodt’s Uranium Division for the period of at least 1951 through 1957. As such, your case file was returned to the FAB with instructions to issue a new final decision.

After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim under the EEOICPA on August 15, 2005.

2. You worked for a covered contractor, Mallinckrodt, at a covered facility, the Destrehan Street Plant, during a covered period, from April 15, 1951 through November 30, 1989.

3. You are a member of the SEC for having worked for at least 250 days in the Uranium Division of Mallinckrodt’s Destrehan Street Plant from 1951 through 1957.

4. You were diagnosed with a specified cancer, adenocarcinoma of the salivary gland on January 7, 1993.

Based on the above noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

By the authority granted under 42 U.S.C. § 7384l(14)(C) effective November 13, 2005, employees of the DOE or DOE contractors or subcontractors employed by the Uranium Division of Mallinckrodt Chemical Works, Destrehan Street Facility, were added to the SEC providing that the employee worked between 1949 and 1957 and was employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC. EEOICPA Bulletin No. 06-05 (issued December 27, 2005). Based on your confirmed employment in the Uranium Division at the Mallinckrodt Chemical Works, Destrehan Street Facility during the specified period, the evidence is sufficient to establish that you are a member of the SEC.

To facilitate a claim for cancer under Part B, the Act explains that a “covered employee with cancer” is, among other things, “An individual with a specified cancer who is a member of the SEC, if and only if that individual contracted that specified cancer after beginning employment at a DOE facility. . . .” 42 U.S.C. § 7384l(9)(A). Primary cancer of the salivary gland is identified as a specified cancer pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(J) of the implementing regulations providing that the onset was at least 5 years after first exposure. The medical evidence shows that you were diagnosed with adenocarcinoma of the salivary gland over five years after your first exposure to radiation at Mallinckrodt’s Destrehan Street Facility Uranium Division. As such, the evidence of record establishes you are a “covered employee with cancer” as defined above entitled to compensation payable under Part B.

To facilitate a claim under Part E, the Act defines a “covered DOE contractor employee” as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility. 42 U.S.C. § 7385s(1). In order to establish that the employee contracted an illness through toxic exposure, § 7385s-4 provides that “A determination under part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a DOE facility.” 42 U.S.C. § 7385s-4(a). Based on your employment with a covered contractor and the acceptance of your claim for adenocarcinoma of the salivary gland under Part B of the EEOICPA in this decision, it is further determined that you contracted cancer of the salivary gland due to exposure to a toxic substance at a DOE facility. As such, you meet the statutory definition of a “covered DOE contractor employee,” as defined above and are entitled to compensation payable under Part E.

Accordingly, your claim for compensation under EEOICPA in the amount of $150,000.00 under 42 U.S.C. § 7384s and medical benefits under 42 U.S.C. §§ 7384t and 7385s-8 is hereby approved.

Washington, DC

Vawndalyn B. Feagins, Hearing Representative

Final Adjudication Branch