On This Page
Below are the head notes for the FAB decisions and orders relating to the topic heading, Toxic Substances. The head notes are grouped under the following subheadings: Acceptance under former Part D, Claim for cancer under Part E, Exposure to, and Presumption of causation. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.
Acceptance under former Part D
- Survivor found entitled to lump-sum payment under Part E based on Secretary of Energy’s acceptance of former Part D Physicians Panel determination that employee’s pulmonary fibrosis was due to exposure to a toxic substance at a DOE facility and medical evidence in the case record that this exposure contributed to the employee’s death. While the causes of death listed on the employee’s death certificate were carcinogenic shock and pneumonia, record included medical report finding that pulmonary fibrosis contributed to the employee’s death. EEOICPA Fin. Dec. No. 2029-2002 (Dep’t of Labor, January 10, 2005).
- Where DEEOIC referred a Part E claim for lymphoma to NIOSH for a dose reconstruction and thereafter determined that there was a less than 50% probability that the claimant’s cancer was caused by exposure to radiation at a DOE facility or a RECA section 5 facility, and in the absence of further evidence to support that it was at least as likely as not that exposure to any other toxic substance at a DOE facility or a RECA section 5 facility was a significant factor in aggravating, contributing to, or causing the employee’s lymphoma, FAB concluded that the employee had failed to establish that he contracted the “covered illness” of lymphoma, and his claim under Part E was denied. EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010).
- Survivor found entitled to lump-sum payment under Part E based on a physician’s opinion that the employee’s combined exposure to ionizing radiation and other toxic substances at DOE facilities was a significant factor contributing to his death due to lung cancer. The physician’s opinion constituted the weight of the medical evidence because it: (1) was based on scientific references showing that a synergistic interaction is known to occur between radiation and other promoting agents; (2) noted NIOSH’s dose reconstruction report, which confirmed that the employee had exposure to ionizing radiation during his employment periods; (3) referenced exposure data from SEM; (4) showed familiarity with the employee’s work history; and (5) was written by a physician with documented expertise in occupational medicine. On the other hand, the CMC’s report was found to have less probative value because the CMC did not consider the role that radiation may have played in the employee’s cancer. EEOICPA Fin. Dec. No. 20140930-12000353-2 (Dep’t of Labor, January 11, 2016).
- As part of its adjudication process, OWCP may perform a search through the Department of Labor’s Site Exposure Matrices (SEM) to ascertain whether a particular labor category could potentially have been exposed to toxic substances. The SEM contains a list of processes performed by different labor categories including uranium recovery, purification and recycle operations. EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006).
- Based on the totality of the evidence, FAB concluded that it was at least as likely as not that physicist’s occupational exposure to carbon disulfides at Lawrence Livermore National Laboratory was a significant factor in aggravating, contributing to, or causing his coronary artery disease, myocardial infarction and death. EEOICPA Fin. Dec. No. 10036412-2006 (Dep’t of Labor, June 13, 2007).
- Evidence was sufficient to establish that it was at least as likely as not that employee’s exposure to toxic substances (organic solvent mixtures) at a DOE facility was a significant factor in aggravating, contributing to, or causing his sensorineural hearing loss (as opposed to conductive hearing loss, which is not linked to exposure to toxic substances). EEOICPA Fin. Dec. No. 10059726-2007 (Dep’t of Labor, December 12, 2007).
- The SEM contains toxic substance exposure profiles for worksites that are either DOE facilities or uranium mines and mills covered under Part E. Thus, it contains no information on toxic substance exposures at AWE facilities, which are only covered under Part B. EEOICPA Fin. Dec. No. 20121127-84623-1 (Dep’t of Labor, April 30, 2013).
- FAB concluded that the weight of the medical evidence established that it was at least as likely as not that occupational exposure to ionizing radiation and other toxic substances at DOE facilities was a significant factor in aggravating, contributing to, or causing the employee’s lung cancer and his subsequent death. EEOICPA Fin. Dec. No. 20140930-12000353-2 (Dep’t of Labor, January 11, 2016).
- While the record included a medical opinion in support of employee’s claim, that opinion assumed a duration of covered employment that far exceeded the employee’s actual time as a carpenter at the Oak Ridge plants, and assumed exposures that were not supported by the record. FAB determined that medical opinions by a contract medical consultant and DEEOIC’s Medical Director were based on a full review of the relevant medical and factual evidence regarding exposure, provided an accurate history of the employee’s occupational history and contained rationalized medical opinions addressing the causal relationship between the employee’s documented exposures and chronic obstructive pulmonary disease. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
- With respect to claims for chronic obstructive pulmonary disease (COPD) as a covered illness for DOE contractor employees who do not meet the criteria of both having worked for an aggregate period of 20 years in a labor category known to be associated with significant asbestos exposure and being diagnosed with COPD at least 20 years after such exposure, adjudication of the Part E claim requires evidence establishing: (1) the extent and duration of exposure to asbestos or other toxins scientifically linked to COPD; and (2) a medical opinion on the relationship between such exposures and the employee’s diagnosis of COPD. The SEM profile for construction carpenters did not reveal the potential for significant exposure to substances the employee was allegedly exposed to. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
- To establish that an employee was exposed to a toxic substance, the record must contain evidence showing that such substance was present at the facility where the employee worked, that there was a reasonable likelihood for employee exposure, and that the employee came into contact with such substance. A reasonable likelihood of exposure exists when a substance was used during the processes involved as part of the employee’s job duties and exposure routes. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
- DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E for asbestosis. If the evidence in the claim file is sufficient to establish that the employee was diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the presence of asbestos has been confirmed, and that there was a latency period of at least 10 years between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant factor in aggravating, contributing to or causing his or her asbestosis. EEOICPA Fin. Dec. No. 10039710-2007 (Dep’t of Labor, November 30, 2007); EEOICPA Fin. Dec. No. 10068242-2008 (Dep’t of Labor, July 25, 2008).