U.S. DEPARTMENT OF LABOR 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:

10086042-2010

DECISION DATE:

June 22, 2010

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) on the above-noted 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 claim for medical benefits due to choroid melanoma of the left eye, based on exposure to non-ionizing radiation, is accepted under Part E of EEOICPA.  The claim for choroid melanoma of the left eye under Part B is deferred pending completion of a radiation dose reconstruction. 

 

STATEMENT OF THE CASE

 

On September 9, 2009, the employee filed a Form EE-1 claiming benefits under EEOICPA for choroid melanoma.  On a Form EE-3, Employment History, he indicated he was employed as a welder by Union Carbide at the Oak Ridge Gaseous Diffusion Plant (K-25) from September 1967 to July 1974.  The Oak Ridge Institute for Science and Education (ORISE) database verified his contractor employment as a welder at K-25 from September 18, 1967 to July 5, 1974.  K-25 is a covered Department of Energy (DOE) facility.[1]

 

DOE provided the employee’s available personnel and medical records.  A November 3, 1969 medical report noted conjunctivitis (flash burns) to his eyes after performing his regular welding duties and noted he had suffered previous flash burns.  An incident report, dated December 18, 1969, diagnosed flash burns to his eyes after welding at K-25 and again noted he had previous burns to his eyes.  A September 1, 2009 letter, signed by the employee’s physician, listed a diagnosis of choroidal melanoma of the left eye.

 

On October 5, 2009, the employee completed an Occupational History Questionnaire in which he identified areas in which he worked (K-1401, K-1410, K-1420), his job title (welder), and some of the toxic substances to which he may have been exposed in the course of his employment (including beryllium, cadmium, chromium, lead, manganese, etc.).

 

To determine his exposure to ionizing radiation, the district office referred the employee’s application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction.  The reconstruction is still being completed.

 

The district office reviewed source documents used to compile the U. S. Department of Labor’s Site Exposure Matrices (SEM) to determine whether or not it is possible that, given the employee’s labor category and the work processes engaged in, he was exposed to a toxic substance in the course of employment that corresponds to the claimed medical condition.  The SEM search failed to establish a known causal link between melanoma and exposure to any toxic substance.

 

The district office sent the employee’s records to a district medical consultant (DMC) for review.  In an April 26, 2010 report, the DMC concluded that it was “at least as likely as not” that exposure to toxic substances at the covered facility was a significant factor in causing, contributing to, or aggravating the employee’s choroidal melanoma of the left eye.  The DMC noted that a recognized risk factor for ocular melanoma is ultraviolet light exposure and there is growing scientific literature which includes case-control epidemiologic studies and meta-analysis that supports that work as a welder increases risk for ocular melanoma, particularly if multiple burns of the eyes occur.  The DMC noted that high energy welding processes can generate intense ultraviolet light and the welding-related burns, which can occur in the eyes or skin, are sometimes called flash burns.  The DMC noted that the time between his documented flash burns to the eyes to diagnosis of the eye melanoma is a sufficient latency period for the cancer to occur from worksite exposures.

 

On May 20, 2010, the Jacksonville district office issued a recommended decision recommending acceptance of the claim for medical benefits under Part E for choroid melanoma of the left eye.  The recommended decision informed the employee that he had 60 days to file any objections.  On May 27, 2010, FAB received written notification that the employee waived any and all objections to the recommended decision.  On June 18, 2010, FAB received the employee’s signed statement verifying that he had not received any settlement or award from a lawsuit related to toxic exposure at the covered facility or workers’ compensation claim in connection with choroid melanoma of the left eye, and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

 

In light of the above, the undersigned hereby makes the following:

 

FINDINGS OF FACT

 

1.         On September 9, 2009, the employee filed a claim for benefits under EEOICPA based on choroid melanoma.

 

2.         The employee was initially diagnosed with choroid melanoma of the left eye on September 1, 2009.

 

3.         The employee was a DOE contractor employee at K-25 from September 18, 1967 to July 5, 1974.

 

4.         There is a causal relationship between toxic exposure at K-25 and the employee’s choroid melanoma of the left eye.

 

Based on the above findings of fact, the undersigned hereby makes the following:

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the EEOICPA 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.  20 C.F.R. § 30.316(a) (2010).

 

Under Part E, a “covered illness” means an illness or death resulting from exposure to a toxic substance.  A “toxic substance” means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.  20 C.F.R. § 30.5(ii).  Non-ionizing radiation in the form of radio-frequency radiation, microwaves, visible light, and infrared or ultraviolet light radiation is a toxic substance under Part E.[2] 

 

Under Part B, radiation is defined only as ionizing radiation in the form of alpha particles, beta particles, neutrons, gamma rays, X-rays, or accelerated ions or subatomic particles from accelerator machines.  42 U.S.C. § 7384l(16).  A NIOSH radiation dose reconstruction is required to determine the probability that ionizing radiation exposure during the performance of duty caused an employee’s cancer.  However, EEOICPA does not require a dose reconstruction to determine if non-ionizing radiation exposure caused an employee’s cancer under Part E.  20 C.F.R. § 30.213(c).

 

The evidence establishes that 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 employee’s choroid melanoma of the left eye.  The employee was a DOE contractor employee with choroid melanoma of the left eye due to exposure to a toxic substance at a DOE facility.  Therefore, I hereby conclude that the employee is entitled to medical benefits for choroid melanoma of the left eye, effective September 9, 2009, under Part E of EEOICPA.

 

Jacksonville, FL

 

 

 

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

 



[1]  See DOE’s facility list on the agency website at:  http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (Retrieved June 21, 2010).

 

[2] Federal (EEOICPA) Procedure Manual, Chapter 0-0500.2(ss) (November 2008).