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]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

10027260-2006

10046725-2006

10046726-2006

10046727-2006

10046728-2006

10046730-2006

10046731-2006

10046732-2006

10046735-2006

DECISION DATE:

December 6, 2006

 

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

 

This decision of the Final Adjudication Branch (FAB) concerns your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, your claims for benefits are denied. 

 

STATEMENT OF THE CASE

 

In December 2003, you each filed a Form EE-2, Claim for Survivor Benefits under the Act.  [Claimant #1] also submitted a Request for Review by Physicians Panel form, which is considered to be on behalf of all survivors.  On the forms, you listed possible chronic beryllium disease (CBD) and breathing problems as the claimed conditions related to the employment of your late father, [Employee] (hereinafter called the employee). 

 

In support of your claims for survivorship, you submitted birth certificates listing the employee as your father, and the death certificates of the employee and his spouse.  The death certificate lists the causes of death on April 25, 1980 as ischemic heart disease with acute [illegible] myocardial infarction.  Marriage certificates showing legal changes in name were also submitted.

 

On the Form EE-3, Employment History, you stated that the employee was employed by F.H. McGraw as a laborer at the Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, from 1950 to 1954.  The evidence of record, including DOE security clearance records and co-worker affidavits, shows that the employee worked at the Paducah GDP from April 23, 1951 to December 30, 1954.

 

On May 19, 2004, the FAB issued a final decision to deny survivor compensation under Part B of the Act, because an “occupational illness” could not be established.

 

The district office provided you the opportunity to substantiate your claim by sending a development letter dated February 4, 2006, concerning whether any of you met the criteria to be considered a “covered child.”  The district office sent letters on February 6, 2006 and March 24, 2006, requesting medical evidence of a diagnosis and factual evidence to support covered employment.  In response, [Claimant #6] submitted medical records.  These records include psychiatric records noting a history of alcohol abuse/addiction in 1956 (the report states that the employee had no regular employment since December 1954 when he was released from the atomic plant); repeat positive tests for tuberculosis; an upper G.I. series report dated June 25, 1970 showing rugal folds in the stomach “seen in patients with gastritis, Menetrier’s disease and lymphoma”; and a chest x-ray from January 11, 1972 showing “old chronic changes in the chest with no evidence of active disease.” 

 

On May 1, 2006, the Jacksonville district office issued a recommended decision, concluding that the medical evidence was insufficient to establish that the employee was diagnosed with CBD or breathing problems.  Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  That 60-day period expired on June 30, 2006.

 

On June 26, 2006, the FAB received a letter from [Claimant #6], dated June 22, 2006, objecting to the recommended decision and requesting a hearing.  The hearing was held by the undersigned in Paducah, Kentucky, on September 14, 2006.  [Claimant #6] was duly affirmed to provide truthful testimony.

 

The letter of objections stated that you have been unable to obtain medical records because many of them have been destroyed or the facilities no longer exist; that the public should have been informed earlier about this program so records could have been obtained; that the odds of the employee having an occupational illness must be high due to the number of reported cases; that you are a hospice nurse and many of your patients are terminally ill because they worked at the plant or were exposed to loves ones who did; you remember the employee having multiple respiratory problems, including chronic cough with thick secretions and being unable to lie down or play with his children because of shortness of breath; that you believe your mother died of colon cancer from being exposed to the employee’s clothing while washing it and cleaning up his body fluids when he was too ill to do it himself.

 

During the hearing, the objections were discussed in greater detail, and it was explained that survivor compensation under Part E of the Act is payable only when the employee’s death is considered to be related to conditions resulting from toxic exposures at a covered Department of Energy facility.  While several of the employee’s survivors may meet the criteria to be considered a “covered child,” the need for definitive medical evidence or opinion concerning a diagnosis related to the employee’s death was discussed, along with the requirement that a claim be based on employment exposures, and not secondary exposures, such as you claim for your mother.

 

In accordance with § 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e) and (f).  By letter dated September 28, 2006, the transcript was forwarded to you.  No further evidence, changes or corrections were received.

 

Part E of the Act requires that a survivor claim be based on the death of the employee due to a condition relating to toxic exposures encountered during employment at a Department of Energy facility.  The conditions listed on the death certificate are ischemic heart disease and myocardial infarction.  The implementing regulations require that a claim be based on medical evidence and it is the survivor’s responsibility to submit or arrange for the submission of evidence that establishes entitlement for benefits.  20 C.F.R. § 30.111.  There is no diagnosis of CBD or other breathing problems, and it has been previously determined that the employee did not meet the statutory criteria for a diagnosis of CBD under Part B. 

 

After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1.         [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] filed claims for benefits under the Act.

 

2.         The employee worked for F.H. McGraw at the Paducah GDP from April 23, 1951 to December 30, 1954.

 

3.         You are children of the employee and the employee’s spouse is no longer living.

 

4.         The medical evidence is insufficient to establish a diagnosis of CBD or breathing problems.

 

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

 

CONCLUSIONS OF LAW

 

The Federal (EEOICPA) Procedure Manual describes the differences between the requirements for CBD under the two parts of the Act.  Part B requires that the medical evidence meet the statutory criteria; Part E requires a physician’s diagnosis and a review of the medical evidence as a whole.  The statutory requirements that define CBD under Part B do not apply to the evaluation of CBD claims under Part E.[1]  A physician’s report that evaluates the employee’s medical condition and finds that it is “at least as likely as not” that exposure to beryllium was a significant factor in aggravating, contributing to, or causing CBD, given the weight of all the medical evidence of file, may establish causation for CBD under Part E.  A diagnosis provided by a qualified physician is required to establish CBD under Part E.  Breathing problems is a description or symptom, and requires a diagnosis of a specific condition causing the breathing problems in order to be reviewed for compensability.  The required medical evidence is described in § 30.114 of the implementing regulations (physician’s reports, lab reports, hospital records, etc.), and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.  20 C.F.R. § 30.114

 

The medical evidence is insufficient to establish that the employee was diagnosed with the claimed conditions of CBD or breathing problems.  20 C.F.R. § 30.114.  Therefore, you are not entitled to compensation under Part E of the Act.  42 U.S.C. §§ 7385s-2, 7385s-8.

 

Jacksonville, FL

 

 

 

 

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch

 

 



[1] Federal (EEOICPA) Procedure Manual, Chapter E-500.15 (June 2006).