Docket Number: 82961-2008

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

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Parts B and E 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, FAB accepts and approves the claims for benefits [of Claimant #1, 2, 3, 4 and 5] under Part B for the employee’s epiglottis cancer, and awards compensation to those five persons in the total amount of $150,000.00, to be divided equally.

Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her additional compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease. The record includes a copy of [Employee]’s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.

[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980. DOE verified [Employee]’s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

On October 16, 2005, [Employee’s Spouse] died, and her claim was administratively closed.

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2. Each claimed benefits as the surviving child of [Employee].

[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname. [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname. The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

Medical documentation in the record includes a document from the New Mexico cancer registry that provides a diagnosis of cancer of the epiglottis on April 25, 1989; a January 11, 2005 letter from Dr. Charles McCanna, in which he indicated that [Employee] died from complications of epiglottis (throat) cancer; another letter from Dr. McCanna stating that the employee’s medical records are no longer available; and a letter from St. Vincent Hospital dated January 24, 2005, indicating that their records had been destroyed.

On June 5, 2007, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether the employee’s cancer of the epiglottis was “at least as likely as not” related to his covered employment. However, the case was returned on March 14, 2008 so the district office could review it to determine if the employee was included in the designation by the Secretary of Health and Human Services (HHS) of certain LANL employees as an addition to the Special Exposure Cohort (SEC).

On September 11, 2007, FAB issued a final decision on the Part E claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4], concluding that these claimants are not eligible “covered” children under Part E.

On March 14, 2008, the Seattle district office received information from a Department of Labor Health Physicist (HP) on the question of whether cancer of the epiglottis is a “specified” cancer. The HP stated the following:

Pharynx cancer is a specified cancer for SEC claims. With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx. 20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA. The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus. The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.

On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E. The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer. The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally. Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5] was under the age of 18 at the time of [Employee]’s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.

The claimants each indicated on their respective Forms EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from either a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].

On March 20, 2008, FAB received written notification from [Claimant #1, 2, 4 and 5], indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. On March 24, 2008, FAB received written notification from [Claimant #3], indicating she also waives all rights to file objections to the findings of fact and conclusions of law in the recommended decision.

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

FINDINGS OF FACT

1. On December 13, 2006 [Claimant #1]and [Claimant #2]; and on January 4, 2007 [Claimant #3], [Claimant #4] and [Claimant #5] each filed a claim for survivor benefits under EEOICPA.

2. [Employee] was diagnosed with epiglottis cancer on April 25, 1989.

3. [Employee] died on September 1, 1990, due to acute bronchopneumonitis, with a contributing factor of coronary artery disease; which were complications of his epiglottis (throat) cancer.

4. [Employee] worked at LANL as a security guard with the AEC from May 15, 1972 to January 9, 1981, and with the University of California, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

5. There is a causal connection between the employee’s death due to epiglottis cancer and his exposure to radiation and/or a toxic substance at a DOE facility.

6. [Claimant #1, 2, 3, 4 and 5] are the eligible children of [Employee] under Part B.

7. [Claimant #5] was 17 years of age at the time of [Employee]’s death.

8. All five claimants indicated on their respective Form EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. See 20 C.F.R. § 30.316(a). All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims.

In order for him to be considered a covered Part B employee, the evidence must establish that [Employee] was diagnosed with an occupational illness incurred as the result of his exposure to silica, beryllium, or radiation, and those illnesses are cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, EEOICPA requires that the illness must have been incurred while the employee was “in the performance of duty” for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer. See 42 U.S.C. §§ 7384l(4)-(7), (9), and (11).

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC. The new SEC class became effective on July 22, 2007.

The employment evidence is sufficient to establish that [Employee] was employed at LANL for an aggregate of at least 250 work days, as a security guard, and therefore he is considered to be an eligible member of the class of employees who worked at LANL from March 15, 1943 through December 31, 1975 that was added to the SEC.

[Employee] is a member of the SEC who was diagnosed with epiglottis cancer, which is cancer of a part of the pharynx (a “specified” cancer), more than 5 years after his initial exposure, and therefore he is a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(E). Therefore, as the employee is now deceased, the five claimants are entitled to compensation in the total amount of $150,000.00, divided in equal shares of $30,000.00 each. See 42 U.S.C. § 7384s(a) and (e).

The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility. See 42 U.S.C. § 7385s-4(a). Consequently, [Employee]’s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility. The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]’s death. As the employee would have been entitled to compensation for his covered illness under Part E; and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1). [Claimant #5] was 17 years of age at the time of [Employee]’s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00. See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch