Docket Number: 72816-2007

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 HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s 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 recommended decision to deny the claims is reversed and both claims for survivor benefits under Part B of EEOICPA are accepted.

STATEMENT OF THE CASE

On October 11, 2005, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA as the children of [Employee], hereinafter referred to as the employee. [Claimant #1 and Claimant #2] identified gall bladder and skin cancers and gastrointestinal hemorrhage as the claimed conditions for the employee. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not covered children as defined under Part E of EEOICPA. Therefore, their claims for survivor benefits under Part E were denied.

[Claimant #1] stated on the Form EE-3 that the employee was employed as a carpenter at the Nevada Test Site[1] from 1940 to 1961. The Department of Energy (DOE) verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953, and from April 30, 1957 to July 19, 1957 at the Nevada Test Site.

[Claimant #1 and Claimant #2] submitted a death certificate, which indicated the employee died on February 5, 1987, that the cause of death was gastrointestinal hemorrhage, and that he was widowed at the time of his death. A death certificate for [Employee’s Child], father’s name was [Employee], was submitted. [Claimant #1] submitted a birth certificate, which indicated the employee was her father. A birth certificate for [Claimant #2] indicated the employee was his father. An Order for Name Change dated May 16, 1979 indicated that [Claimant #2]’s name was changed to [Claimant #2].

A March 10, 1987 autopsy report, from Drs. Stephen Ovanessoff and Roy I. Davis, indicated a final autopsy diagnosis of hepatocellular carcinoma with direct invasion of the gallbladder.

To determine the probability of whether the employee sustained his cancer in the performance of duty, the district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. The dose reconstruction was based on the periods of employment at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957. On July 3, 2007 and August 12, 2007, respectively, [Claimant #1 and 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 that they provided to NIOSH.

The district office received the final NIOSH Report of Dose Reconstruction dated August 24, 2007. The district office used the information provided in this report to determine that there was a 15.57% probability that the employee’s liver cancer was caused by radiation exposure at the Nevada Test Site.

On August 31, 2007, the Seattle district office issued a recommended decision finding that the employee’s cancer was not “at least as likely as not” caused by employment at the Nevada Test Site. Therefore, the district office concluded that [Claimant #1 and Claimant #2] were not entitled to compensation under Part B of EEOICPA.

OBJECTIONS

On October 10, 2007, FAB received [Claimant #2]’s October 10, 2007 objection to the recommended decision and request for an oral hearing. On January 8, 2008, a hearing was held to hear the objections of [Claimant #1 and Claimant #2]. However, the equipment to record the hearing malfunctioned and another hearing was held by telephone on February 20, 2008.

During the January 8, 2008 hearing, [Claimant #2] submitted a four-page letter in support of his objections. This letter was read at both the January 8, 2008 and February 20, 2008 hearings. One of his objections was regarding the finding that [Claimant #1 and Claimant #2] were not “covered” children as that term is defined under Part E of EEOICPA. With reference to this objection, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E. Therefore, their claims for survivor benefits under Part E were denied. After FAB has issued a final decision pursuant to 20 C.F.R. § 30.316, only the Director for Division of Energy Employees Occupational Illness Compensation may reopen a claim and return it to FAB for issuance of new decision. 20 C.F.R. § 30.320. There is no intervening Director’s Order regarding [Claimant #1 and Claimant #2]’s claims for survivor benefits under Part E of EEOICPA. Therefore, no new final decision will be issued on their claims for benefits under Part E.

During the February 20, 2008 hearing, [Claimant #1] indicated that the employee lived on site during his employment at the Nevada Test Site. In support of this statement, she indicated that the employee “made a custom or habit of staying at a camp site near his work place if the distance was too far to travel.” In addition, she indicated that the employee had an old truck and that it was always breaking down.

Effective July 26, 2006, the Secretary of Health and Human Services designated certain employees of the Nevada Test Site in Mercury, Nevada as members of the Special Exposure Cohort (SEC), who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, based on work performed for the period from January 27, 1951 to December 31, 1962.

As noted above, DOE verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957 at the Nevada Test Site. However, in a review of records from DOE a Personnel Action Slip from Reynolds Electrical and Engineering was found that indicated a date of hire of April 3, 1957. A July 19, 1957 Radiation Exposure memo indicated that the employee was exposed to radiation from April 3, 1957 to June 30, 1957. Based upon the foregoing information, the correct periods of employment are March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957. In addition, the following documents were submitted by DOE:

1. A March 12, 1953 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
2. A May 3, 1957 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
3. A June 17, 1957 accident report indicated a mailing address in Mercury, Nevada.

Pursuant to EEOICPA Bulletin No. 06-16 (issued September 12, 2006), if the employee was present (either worked or lived) on site at the Nevada Test Site for a 24-hour period in a day, the claims examiner is to credit the employee with the equivalent of three (8-hour) work days. If there is evidence that the employee was present on site at the Nevada Test Site for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement for the SEC. In addition, the Nevada Test Site includes the town of Mercury, which is located in the southwest corner of the site. 

The preponderance of evidence of record establishes that the employee lived and worked at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957. These periods represent a total of 101 work days. Crediting the employee with three days of exposure for each day worked, the employee would have had 303 days of exposure during the periods from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.

There were other objections to the denial of survivor benefits under Part B of EEOICPA; however, they are not being addressed because the evidence of record is sufficient to accept [Claimant #1 and Claimant #2]’s claims for survivor benefits under Part B of EEOICPA.

On their claims for survivor benefits, [Claimant #1 and Claimant #2] indicated that neither they nor the employee had filed any lawsuits or received any settlements or awards for the employee’s claimed condition. In addition, [Claimant #1 and Claimant #2] indicated that there are no other living children of the employee.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA.
2. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E of EEOICPA.
3. The employee was employed and lived at the Nevada Test Site for at least 250 workdays, by Reynolds Electrical and Engineering, from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957.
4. The employee was first diagnosed liver cancer on February 5, 1987.
5. The employee was widowed on his February 5, 1987 date of death.
6. [Claimant #1 and Claimant #2] are the surviving children of the employee.

Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

Section 30.316(b) of the EEOICPA regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.” 20 C.F.R. § 30.316(b). The undersigned has reviewed the record, including [Claimant #1 and Claimant #2]’s objections, and concludes that no further investigation is warranted.

On July 12, 2006, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC: “Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site in Mercury, Nevada from January 27, 1951 to December 31, 1962 and who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC.” This designation became effective July 26, 2006. See 71 Fed. Reg. 44298 (August 4, 2006).

The evidence of record supports that the employee worked for a DOE contractor and lived at the Nevada Test Site in excess of 250 workdays from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957, which is during the relevant period of the SEC class. This employment qualifies him for inclusion within the SEC. As a member of the SEC who was diagnosed with liver cancer, which is a “specified cancer” pursuant to 20 C.F.R. § 30.5(ff) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), he meets the definition of a “covered employee with cancer.” 42 U.S.C. § 7384l(9). [Claimant #1 and Claimant #2] are the employee’s only eligible surviving beneficiaries, as defined at 42 U.S.C. § 7384s(e)(1)(B). As an eligible survivor of a “covered employee with cancer, I conclude that their claims for survivor benefits should be accepted and that [Claimant #1 and Claimant #2] are each entitled to $75,000.00 for a total of $150,000.00 in compensation benefits under Part B of EEOICPA.

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch