Docket Number: 72762-2006

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning these claims for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). These claims are accepted in the amount of $25,000 per claimant for a total of $150,000.

STATEMENT OF THE CASE

On June 21, 2002, [Employee’s spouse] filed a claim (Form EE-2) under EEOICPA as the surviving spouse of [Employee]. The file contains the death certificate of [Employee] showing that [Employee] died on January 17, 1994 and identifies [Employee’s spouse] (maiden name) as his surviving spouse. The file also contains the marriage certificate confirming that [Employee’s spouse] married [Employee] on October 13, 1939. In addition, the file contains verification from Diebold, Inc. confirming that [Employee] worked for Diebold (AKA Herring-Hall Marvin Safe Company[1]) from February 13, 1941 through October 1, 1982. The file further contains pathology reports and medical records confirming [Employee]’s diagnosis of basal cell carcinoma of the left sideburn in 1994, basal cell carcinoma of the right nasal ala in 1993 and lung cancer in 1994.

On September 11, 2002, the case record was forwarded to the National Institute for Occupational Safety and Health (NIOSH) to determine the probably that [Employee] sustained cancer in the performance of duty while employed at the AWE/DOE facility. Using the dose estimates provided by NIOSH and the software program NIOSH-IREP, the district office calculated the probability of causation (PoC) for the lung cancer. These calculations show that the probability that [Employee’s] lung cancer was caused by exposure to radiation during his employment with Diebold is 96.55%. Including the basal cell carcinomas in the dose reconstruction would increase the PoC; therefore, these cancers are considered causally related.

On June 21, 2005, the Cleveland district office issued a recommended decision. The district office found [Employee] to be a “covered employee with cancer” and recommended acceptance of [Employee’s spouse]’s claim. The district office’s recommendations were accepted by the Final Adjudication Branch and on July 28, 2005 the FAB issued a final decision which awarded [Employee’s spouse] compensation in the amount of $150,000. On August 19, 2005 payment in the amount of $150,000 was authorized to [Employee’s spouse]. The payment was deposited in her account by electronic funds transfer (EFT) on August 31, 2005. On September 2, 2005, the Fiscal Office received the death certificate of [Employee’s spouse] showing that she died on August 2, 2005. On September 7, 2005, the Fiscal Office received notification that the lump sum payment to [Employee’s spouse] was reversed and returned to the Department of Treasury.

On September 22, 2005, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] filed claims (Form EE-2) as the surviving children of [Employee]. The claimants each submitted their birth certificate showing [Employee’s spouse] and [Employee] as their parents. In addition, [Claimant #1], [Claimant #2] and [Claimant #5] submitted their marriage certificates documenting their surname change.

On October 13, 2005, the Director of the Division of Energy Employee Occupational Illness Compensation issued a Director’s Order which vacated the final decision awarding benefits to [Employee’s spouse]. Since [Employee’s spouse] died prior to payment, the Director found that compensation shall be paid in equal shares to all living children of the employee.

Accordingly, on October 20, 2005, the Cleveland district office issued a recommended decision awarding benefits to [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6]. On November 2, 2005, the FAB received signed waivers of any and all objections to the recommended decision from each claimant. After considering the evidence of record, the waivers of objections, and the NIOSH report, the FAB hereby makes the following:

FINDINGS OF FACT

1. [Employee] worked at a covered facility, Diebold (AKA Herring-Hall Marvin Save Company) during a period of residual contamination and AWE facility designation.

2. [Employee] was diagnosed with lung cancer and multiple basal cell carcinomas after beginning employment at the covered facility.

3. There is at least a 96.55% probability that [Employee’s] cancers were caused by exposure to radiation during his employment at Diebold.

4. [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the surviving children of [Employee] and his eligible beneficiaries.

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

CONCLUSIONS OF LAW

To facilitate a claim for cancer under Part B of EEOICPA, the Act explains that a “covered employee with cancer” is, among other things, an AWE employee who contracted that cancer after beginning employment at an AWE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty. 42 U.S.C. § 7384l(9)(B). To establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs OWCP to forward a complete copy of the case record to NIOSH for dose reconstruction.[2] 20 C.F.R. § 30.115.

The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is at least a 96.55% probability that [Employee]’s cancers were related to his employment at Diebold. Since the probability of causation is greater than 50%, it is determined that [Employee] incurred cancer in the performance of duty at an AWE facility.

Section 7384s of the EEOICPA, which provides the order of payment for compensation payable under Part B of the Act, states that if there is no surviving spouse at the time payment, such payment shall be made in equal shares to all children of the covered employee. The submissions of the employee’s death certificate as well as the death certificate of his surviving spouse and the claimants birth certificates showing the employee as their father is sufficient to establish that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the employee’s surviving children and eligible beneficiaries.

Accordingly, these claims for compensation in the amount of $25,000 each for a total of $150,000 are hereby approved.

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch