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:

10016501-2007

DECISION DATE:

May 7, 2007

 

NOTICE OF FINAL DECISION 

 

This is the final decision of the Final Adjudication Branch (FAB) concerning the above claim 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 FAB reverses the recommended decision of the district office and accepts the claim under Part E of EEOICPA for medical benefits based on the covered illness of brain tumor (meningioma).  

 

STATEMENT OF CASE

 

On December 18, 2002, [Employee] filed a claim for benefits under Part B and the former Part D of EEOICPA claiming he developed a brain tumor, diagnosed in February of 1993, as the result of his work at a Department of Energy (DOE) facility.  On October 28, 2004, Part E of EEOICPA was enacted when Congress repealed Part D.  [Employee] alleged on his Form EE-3 that he was employed as a Hazard Reduction Technician (HRT) from April 14, 1984 to the date of his signature (December 18, 2002) at the Rocky Flats Plant.[1] DOE confirmed his employment at the Rocky Flats Plant from April 16, 1984 to January 15, 2003.

 

[Employee] submitted medical records in support of his claim.  Included in these medical records were several surgical pathology reports, MRI reports and medical narratives, which document he was diagnosed with meningioma (a non-cancerous brain tumor) in February 1993 at the age of 31.  Then, he developed several recurrences of the initial meningioma as well as new lesions in other parts of his brain.  Notably, his tumors were always referred to in these records as being “atypical, aggressive, and skull-based” and have resulted in his loss of hearing and other neurological deficits.     

 

On May 14, 2003, FAB issued a final decision denying [Employee]’s claim under Part B of EEOICPA, because non-cancerous tumors of the brain are not compensable “occupational” illnesses under that Part.

 

In September 2006, the district office initiated development of [Employee]’s claim under Part E.  Under that Part, once the medical evidence substantiates a diagnosis of a claimed condition, the district office proceeds with a causation analysis to make a determination as to whether there is a causal connection between that condition and exposure to a toxic substance or substances at a DOE facility.  The standard by which causation between an illness and employment is established is explained in Federal (EEOICPA) Procedure Manual Chapter E-500.3b:

 

Causation Test for Toxic Exposure.  Evidence must establish that there is a relationship between exposure to a toxic substance and an employee’s illness or death.  The evidence must show that it is “at least as likely as not” that such exposure at a covered DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness or death, and that it is “at least as likely as not” that exposure to a toxic substance(s) was related to employment at a DOE facility.

 

To assist employees in meeting this standard, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) undertakes a variety of steps to collect necessary information to show that a claimed illness is linked to a toxic exposure.   Principally, DEEOIC has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers.  This data has been organized into the Site Exposure Matrices (SEM).  SEM allows DEEOIC claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. 

 

In addition to the SEM data, DEEOIC works directly with DOE to collect individual employee exposure and medical records.  Contact is also made in certain situations to obtain information from Former Worker Screening Programs or trade groups that may have relevant exposure or medical information.   Relevant specialists in the areas of industrial hygiene and toxicology are also utilized in certain situations to evaluate and render opinions on claims made by employees.  DEEOIC also works directly with treating physicians or other medical specialists in an effort to obtain the necessary medical evidence to satisfy the causation standard delineated under EEOICPA. 

 

On September 20, 2006, the district office notified [Employee] that after conducting extensive research, they had been unable to establish a causal connection between the development of his meningioma and exposure to a toxic substance or substances at the Rocky Flats Plant.  He was afforded a period of 30 days to provide factual or medical evidence that established such a link.  

 

On October 17, 2006, the district office received a letter from [Employee]’s authorized representative, in which he indicated that he believed that [Employee]’s exposure to plutonium and his work in the glove boxes where he was exposed to radiation contributed to the development of his brain tumor.  He requested a copy of the file, which was provided by the district office on November 14, 2006.

 

On December 4, 2006, a letter was received from [Employee]’s representative, in which he detailed several instances, based on his review of [Employee]’s exposure records, when he had experienced plutonium contamination.

 

Subsequently, on January 31, 2007, the district office issued a recommended decision to deny the claim under Part E of EEOICPA, finding that the evidence of record was not sufficient to establish a causal relationship between the development of [Employee]’s meningioma and his exposure to toxic substances at the Rocky Flats Plant.  The recommended decision was then forwarded to FAB for review.

 

[Employee]’s representative requested an oral hearing on February 12, 2007, and reiterated his contention that [Employee]’s exposure to radiation had contributed to the development of his meningioma.  By letter dated February 27, 2007, the representative provided results of his research into the relationship between the development of meningioma and exposure to radiation.  He referenced fourteen medical articles that suggested such a relationship existed.

 

Upon review of the record, FAB determined that based on the contamination records in the file; [Employee]’s age at the time of diagnosis; his length of exposure to radiation at the time of diagnosis; the location of his meningiomas, the description of his meningiomas as being atypical, aggressive and skull-based; and the fact that the medical literature appears to support a relationship between exposure to radiation and the development of these types of tumor, that [Employee]’s record should be referred to a DEEOIC toxicologist.   

 

On April 11, 2007, a statement of accepted facts detailing [Employee]’s employment dates, labor categories, the work processes he had been engaged in, the buildings that he worked in, his exposure history, the number of positive contamination events he had experienced with resulting acute intakes of plutonium, as well as his medical and case history was referred to a toxicologist. The toxicologist was asked to provide an opinion as to whether there was current scientific and/or medical evidence supporting a causal link between exposure to radiation and the development of meningioma and, if so, whether based on the specifics of [Employee]’s case, it is as likely as not that his exposure to radiation at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating his meningioma.

 

On April 26, 2007, the toxicologist stated that the scientific and medical literature does support a “causal” relationship between ionizing radiation and meningiomas at levels below 1 siever (SV). Further, she opined with a reasonable degree of scientific certainty “[t]hat it is as likely as not that exposure to a toxic substance at a DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness, and that it is ‘at least as likely as not’ that exposure to a toxic substance was related to employment at a DOE facility.”

 

On May 7, 2007, [Employee] affirmed he had never filed for or received any benefits for meningioma associated with a tort suit or state workers’ compensation claim.  Additionally, he stated that he had never pled guilty to or been convicted of any charges of fraud in connection with a state or federal workers’ compensation claim.

 

After a careful review of the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

  1. On December 18, 2002, [Employee] filed a claim under Part E of EEOICPA for a brain tumor.

 

  1. [Employee] was employed by DOE contractors from April 16, 1984 to January 15, 2003 at the Rocky Flats Plant, a covered DOE facility.

 

  1. During [Employee]’s employment he was exposed to ionizing radiation.

 

  1. [Employee] was diagnosed with meningioma, a non-cancerous tumor of the brain, after he began his employment at the Rocky Flats Plant.

 

  1. The evidence of record supports a causal relationship between the development of [Employee]’s meningioma and exposure to ionizing radiation at the Rocky Flat Plant.

 

  1. Ionizing radiation is as least as likely as not a significant factor in causing, contributing to, or aggravating [Employee]’s meningioma. 

 

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

 

CONCLUSIONS OF LAW

 

Pursuant to the regulations implementing EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

 

FAB received the letter of objection and request for an oral hearing.  A hearing was scheduled, but upon review of the evidence in the case file, FAB determined the claim was not in posture for a final decision and required a review by a toxicologist.  Based on this review, the recommended decision is hereby reversed and [Employee]’s claim for meningioma is accepted.  On May 7, 2007, he submitted a written statement affirming that he agreed with the final decision to reverse the recommended decision and to accept his claim for meningioma.

 

FAB concludes that [Employee] is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c).  Therefore, [Employee]’s claim under Part E is accepted and he is awarded medical benefits for the treatment of meningioma pursuant to 42 U.S.C. § 7385s-8.

 

Denver, CO

 

 

 

Paula Breitling

Hearing Representative

Final Adjudication Branch



[1] According to DOE’s website at:  http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm, the Rocky Flats Plant in Golden, Colorado is a covered DOE facility from 1951 to the present.