U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH

 

 

EMPLOYEE:

[Name Deleted]

CLAIMANT:

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBER:

10010178-2007

DECISION DATE:

March 25, 2008

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for impairment benefits under Part 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 stated below, the claim for an impairment award under Part E is approved.  A decision on the claim for wage-loss benefits under Part E of EEOICPA is deferred pending further development.

 

STATEMENT OF THE CASE

 

On June 7, 2002, the employee filed claims for benefits under Part B and former Part D of EEOICPA.  On February 23, 2007, the FAB issued a final decision finding that he was employed by a covered Department of Energy (DOE) contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these cancers were at least as likely as not related to radiation exposure during his employment at a DOE facility; and that they were also related to his exposure to toxic substances during his employment at a DOE facility.  As a result, the FAB found that the employee was entitled to benefits under both Parts B and E of EEOICPA.

 

Earlier on January 16, 2007, the district office received the employee’s claim for wage-loss benefits and an impairment award under Part E of EEOICPA.  In support of his claim, the employee submitted a pulmonary function analysis, dated February 28, 2007, from Kennewick General Hospital, which indicated that his FVC was 91% of normal, FEV-1 was 42% of normal,  and DLCO was 56% of predicted.  In a March 5, 2007 medical report, Dr. Arthur Cain identified lowered creatinine levels, post-radiation rectal pain, urinary frequency, and erectile dysfunction. 

 

To determine the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the employee’s covered illness, the case was referred for review to a District Medical Consultant (DMC).  The DMC submitted a medical report, dated June 30, 2007, which indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC opined that the employee had 10% impairment of the whole person due to his kidney cancer, based on the loss of one kidney and satisfactory kidney functions.  For the employee’s prostate cancer, the DMC found that there was a Class 1 impairment due to prostate and seminal vesicle dysfunction signs and symptoms, that the employee had not had surgery, and that he did not require continuous treatment.  The DMC found that there was 5% impairment of the whole person due to dysfunction secondary to radiation treatment for the prostate cancer.  Regarding the employee’s rectal cancer, the DMC found that there was Class 1 impairment based on no need for further treatment, no further complications, no diarrhea and no residual findings.  The DMC found that there was 0% impairment of the whole person due to radiation treatment for the colon cancer.  Finally, as for the employee’s lung cancer, the DMC found that his FVC was 91% of normal and his FEV-1 was 42% of normal, and that that placed him in Class 2 (Table 5-12, page 107 of the Guides).  The DMC found that there was 10% impairment of the whole person due to the lung condition.  However, the DMC indicated that 50% of this last impairment should be attributed to the employee’s smoking and non-covered illness emphysema.  Using the Combined Values Chart on page 604 of the Guides, 10% for kidney cancer, 5% for prostate cancer, 0% for colon cancer, and 5% impairment for the lung cancer equates to a 19% impairment of the whole person. 

 

In a letter dated July 13, 2007, the employee indicated that he had not filed for or received any money from a state workers’ compensation program or related to a tort action for any of his covered illnesses. 

 

On August 4, 2007, the Cleveland district office issued a recommended decision to award the employee Part E benefits for a 19% whole person impairment attributable to his kidney, colon/rectal, lung, and prostate cancers.  The district office recommended that he receive an impairment award in the amount of $47,500.00, and deferred making a recommendation on the employee’s claim for wage-loss pending further development.

 

OBJECTIONS

 

On September 27, 2007, the FAB received the written objections of the employee’s authorized representative and a request for an oral telephonic hearing, which was held on November 27, 2007.  A review of the written objections, an October 4, 2007 impairment evaluation performed by Dr. David P. Suchard, Dr. Suchard’s testimony during the telephonic hearing, and evidence the representative submitted subsequent to the hearing reveals the following:

 

In his October 4, 2007 evaluation and hearing testimony, Dr. Suchard indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the Guides, he found that the employee’s FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted, and placed him in Class 3 (Table 5-12 on page 107 of the Guides).  Dr. Suchard concluded that the employee had a 40% impairment of the whole person based on his lungs.  Dr. Suchard found that based on the loss of one kidney, no evidence of recurrence of cancer, occasional sharp pains associated with the surgical scar, and serum creatine reduction to 46 ml/min, that the employee was in the mid-range of a Class 2 impairment (Table 7-1, page 146), resulting in a 23% whole person impairment based on the employee’s kidneys.  Regarding the employee’s colorectal cancer, Dr. Suchard found that there was a Class 1 impairment based on a condition that required surgery and the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer (Table 6-4, page 128).  Dr. Suchard found that there was a 5% whole person impairment because of dysfunction secondary to radiation and treatment for the colon cancer.

 

For the prostate cancer, Dr. Suchard found that the employee had an anal impairment associated with his radiation-induced proctitis and that this was a Class 2 impairment due to signs and symptoms of organic anal disease or anatomic loss or alteration associated with continual anal symptoms incompletely controlled by treatment (Table 6-5 on page 131).  Dr. Suchard found that there was a 15% whole person impairment related to this anal disease.  Due to lower urinary tract function associated with the employee’s prostate cancer, Dr. Suchard found a Class 1 impairment due to lower urinary symptoms of urinary frequency, nocturia, and urinary hesitancy with decreased force of the urinary stream (Table 7-4 on page 153), resulting in a 5% whole person impairment related to his radiation-induced obstructive urethral disease.  Based on his reduced sexual function, Dr. Suchard also found a Class 1 impairment due to difficulties in maintaining an erection of sufficient rigidity and duration for sexual intercourse (Section 7.7 on page 156), resulting in a 10% whole person impairment related to decreased penile function.  However, because the Guides direct the evaluator to decrease the percentage impairments concerning male reproductive organs by 50% for men over 65, Dr. Suchard found that the employee only had a 5% whole person impairment with regard to his decreased penile function.  Using the Combined Values Chart on page 604 of the Guides, Dr. Suchard concluded that 15% for anal disease, 5% for urethral disease, and 5% for sexual dysfunction equated to a 23% impairment to the whole person for the employee’s prostate cancer.

 

Using the same Combined Values Chart, Dr. Suchard concluded that 40% for the lung cancer, 23% for the kidney cancer, 5% for the colon cancer, and 23% for the prostate cancer equated to a 67% impairment of the whole person due to all of the employee’s covered illnesses.  Subsequent to the hearing, the authorized representative submitted a pulmonary function analysis dated November 29, 2007 and the results of a December 11, 2007 endoscopy.  In an email dated December 21, 2007, Dr. Suchard indicated that the “pulmonary condition remains Class 2, no change in impairment assessment.”  He also indicated that the employee continued to have a 5% whole person impairment with regard to his Class 1 colorectal disorder impairment.

 

On the other hand and as noted above, in his June 30, 2007 report, the DMC noted that the employee’s FVC was 91% of normal and FEV-1 was 42% of normal, and placed him in Class 2.  However, Table 5-12 of the Guides states that if the FEV-1 is between 41% and 59%, this would place an individual in Class 3.  Also, the DMC did not consider the DLCO test results, which were 56% of predicted and would also place an individual in Class 3.  Finally, the FAB notes that the DMC apportioned the impairment of the employee’s lungs to reflect the presence of a non-covered illness (emphysema).  Regarding his kidney cancer, the FAB notes that the DMC did not take into consideration the pain from the surgical site and the lowered serum creatine level.  In addition, he did not consider the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer.  Finally, the FAB notes that the DMC did not consider any impairment that resulted from the employee’s anal problems that were associated with radiation-induced proctitis, lower urinary tract functions associated with prostate cancer, and reduced sexual function.

 

Once a recommended decision on impairment has been issued, an employee may submit new medical evidence or an additional impairment evaluation to challenge the determination of the impairment in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing the probative value of competing impairment evaluations.  While by no means exhaustive, the FAB reviewer considers whether the physician possesses the requisite skills and requirements to provide a rating; whether the evaluation was conducted within 1 year of its receipt by DEEOIC; whether it addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  In general, probative means “believable” and the FAB reviewer considers each competing report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence in the case file.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.10 (February 2006).  As noted above, the employee submitted medical evidence that the FAB concludes is well rationalized and of greater probative value than the DMC’s evaluation that was used by the district office to determine his percentage of permanent impairment.

 

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

 

FINDINGS OF FACT

 

  1. On February 23, 2007, the FAB issued a final decision finding that the employee was employed by a DOE contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these “occupational illnesses” were at least as likely as not related to radiation exposure during employment at a DOE facility; and that they were also “covered illnesses” related to toxic substance exposure during employment at a DOE facility.  Consequently, it was found that he was entitled to benefits under both Parts B and E of EEOICPA. 

 

  1. Based on the Fifth Edition of the Guides, the employee has a 40% impairment based on his lung cancer, 23% based on his kidney cancer, 5% based on his colon cancer, and 23% based on his prostate cancer, for a total whole-body impairment of 67%.

 

  1. The employee has not received any settlement or award from a lawsuit or workers’ compensation claim in connection with his covered illnesses.

 

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

 

CONCLUSIONS OF LAW

 

Section 30.316(b) of the implementing 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 the employee’s objections in this case, and concludes that no further investigation is warranted.

 

If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative.  The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record.  See 20 C.F.R. § 30.908(c).

 

The FAB finds that Dr. Suchard’s impairment evaluation is more probative than the one relied on by the district office to determine the employee’s recommended whole person impairment, and that based on Dr. Suchard’s evaluation, his impairment rating is calculated to be 67%.  The FAB also finds that the employee is entitled to $2,500.00 for each percentage point of the impairment rating attributed to his covered illnesses.  Therefore, the employee is hereby awarded impairment benefits under Part E of EEOICPA in the amount of $167,500.00 ($2,500.00 x 67) pursuant to 42 U.S.C. § 7385s-2(a)(1).

 

Washington, DC

 

 

Tom Daugherty

Hearing Representative

Final Adjudication Branch