ATTENTION *** ATTENTION *** ATTENTION

The FAB decision or order you are about to view is no longer considered to be of precedential value and will not be considered binding on DEEOIC in its adjudication of future claims under the EEOICPA. This could have occurred because a later FAB decision was issued that overturned one or more of the conclusions of law contained in this decision or order, or because a portion of the EEOICPA relevant to this decision was amended by Congress after it was issued by the FAB. Even though the FAB decision or order you are about to view is no longer considered to be of precedential value, it has been retained in the database you are searching to document that there has been a change.

 

 

 

 

 

 

 

 


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]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

11890-2007

11891-2007

10067261-2007

10067262-2007

DECISION DATE:

November 7, 2007

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims 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 claims are accepted for a combined award of $150,000.00 (consisting of two equal shares of $75,000.00 each) in survivor compensation under Part B of EEOICPA, and for a second combined award of $125,000.00 (consisting of two equal shares of $62,500.00 each) in survivor compensation under Part E, based on the employee’s colon cancer and his subsequent death, respectively.  [Claimant #1 and Claimant #2] are each therefore approved for separate awards of $137,500.00 under Parts B and E of EEOICPA.

 

STATEMENT OF THE CASE

 

On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Part B and Part E (formerly Part D) of EEOICPA as the children of the employee.  They identified colon cancer as the condition resulting from the employee’s work at a Department of Energy (DOE) facility.  The file contains a Form EE-3 alleging that the employee was employed as a chemical engineer at the Los Alamos National Laboratory (LANL) for unspecified dates, at Brookhaven National Laboratory from July of 1947 to March of 1951, at North American Aviation from April of 1951 to July of 1952, and at Argonne National Laboratory - East from April 5, 1954 to September 9, 1992.  DOE verified that the employee worked at LANL from August 7, 1944 to March 1, 1946, at Brookhaven National Laboratory from July 22, 1947 to March 29, 1951, at the Downey Facility from April 21, 1951 to June 27, 1952, and at Argonne National Laboratory - East from April 5, 1954 to September 9, 1992.[1]   DOE also verified that the employee present at the Trinity Test Site for the first nuclear test in July of 1945.

 

[Claimant #1 and Claimant #2] submitted the following medical information in support of their claims:  a June 29, 1991 medical report by Dr. E. Dvorak that cites a long history of recurrent adenocarcinoma of the colon; an August 3, 1991 discharge summary by Dr. J. Geraghty that reports a history of colon cancer beginning in 1965; and a July 15, 1991 pathology report of lumbar spine tissue and bone in which Dr. L. Ghosh diagnosed metastatic adenocarcinoma consistent with primary colon cancer.  The employee’s death certificate shows that he died on November 20, 1992 at the age of 74 and that he was widowed at the time of his death.  The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between the onset of the condition and death is listed as “years.” 

 

In support of their survivor claims, [Claimant #1 and Claimant #2] submitted copies of their birth certificates, showing the employee as their father and showing [Claimant #1]’s birth date as August 15, 1976 and [Claimant #2]’s birth date as November 16, 1973.  [Claimant #2] also submitted documentation related to his education showing that he graduated from high school in 1991, at the age of 17.  [Claimant #2] turned 18 on November 16, 1991.  A transcript shows that he entered North Central College as a special student on January 6, 1992, and attended classes there during the winter and spring sessions of the 1991-1992 school year, and a June 19, 1992 letter states he was awarded academic honors for Spring Term of 1991-92.  A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993.  A May 27, 1992 letter from the University of Chicago shows his original admission date as Autumn Quarter of 1992.  In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.”  He also noted in the same letter that during that time he had no earned income and was dependent on the employee.  A copy of a transcript from the University of Chicago showed that [Claimant #2] attended classes there from Autumn 1993 until Spring 1997 and that he was awarded a degree in Summer of 1997.  The transcript also notes that [Claimant #2] attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992. 

 

The district office referred their application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, which was necessary to determine if the employee’s colon cancer was “at least as likely as not” sustained in the performance of duty at a covered DOE facility (known as determining the probability of causation, or “PoC”).

 

On June 22, 2007, a new class of employees was added to the Special Exposure Cohort (SEC).  The new class included employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for an aggregate of 250 work days from March 15, 1943 through December 31, 1975, or in combination with other SEC employment designations.  This designation took effect on July 22, 2007.

 

Thereafter, it was determined that the employee met the requirements for the above addition to the SEC, and the claims of [Claimant #1 and Claimant #2] were returned by NIOSH.  The employee worked as a chemical engineer for more than 250 days at LANL, and his dosimetry badge records and likely job duties show that he would have been in several locations where radioactive materials were present.

 

On August 1 and 9, 2007, FAB received their signed statements that neither they nor the employee had received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

 

On August 18, 2007, the Cleveland district office issued a recommended decision finding that the employee qualified as a member of the SEC as he was diagnosed with colon cancer, which is a “specified” cancer, and he was employed for more than 250 days at LANL during the specified period.  Accordingly, the district office recommended that [Claimant #1 and Claimant #2] be awarded survivor benefits of $150,000.00 (to be shared equally) under Part B of EEOICPA, and $125,000.00 (to be shared equally) under Part E, based on the employee’s colon cancer and his death due to that covered illness.

 

On August 21, 2007, FAB sent [Claimant #2] a letter requesting that he provide additional evidence to establish his eligibility as a covered child under Part E of EEOICPA.  The letter noted that he was 19 years of age at the time of the employee’s death and that he could be considered a covered child if he was a full-time student who had been continuously enrolled in one or more education institutions since attaining that age of 18 years or if he was incapable of self-support.

 

On August 24, 2007 and September 20, 2007, FAB received [Claimant #1 and Claimant #2]’s signed waivers of their right to object to any of the findings of fact or conclusions of law contained in the recommended decision.

 

After a careful review of the evidence in the case file, the undersigned hereby makes the following:

 

FINDINGS OF FACT

 

  1. On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E (formerly Part D) of EEOICPA as the children of the employee.  They identified colon cancer as the condition resulting from the employee’s work at a DOE facility. 

 

  1. The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946.  This is at least 250 days of employment at LANL. 

 

  1. The employee was diagnosed with colon cancer in 1965.  This is at least five years after he began employment at a covered facility.

 

  1. The employee qualifies as a member of the SEC.

 

  1. The employee died on November 20, 1992 at the age of 74, and he was widowed at the time of his death.  The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between onset and death is listed as “years.”

 

  1. [Claimant #1]’s birth date is August 15, 1976, and she was 16 years old at the time of the employee’s death.

 

  1. [Claimant #2]’s birth date is November 16, 1973, and he was 19 years old at the time of the employee’s death.

 

  1. [Claimant #2] turned 18 on November 16, 1991 attended North Central College for the Winter and Spring sessions of the 1991-92 school year.  He attended the University of Chicago beginning with the Autumn Quarter of 1993, after having deferred enrollment for one year due to the employee’s illness.  He attended the University of Chicago from Autumn of 1993 until he was awarded a degree in the Summer of 1997.

 

  1. Neither [Claimant #1 and Claimant #2] nor the employee have received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

 

Based on these facts, the undersigned also 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).  [Claimant #1 and Claimant #2] have waived their rights to file objections to the findings of fact and conclusions of law in the recommended decision.

 

The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946.  The employee’s dosimetry badge records and likely job duties show that he would have been in several locations at LANL where radioactive materials were present.  The employee was diagnosed with colon cancer in 1965.  Provided the onset was at least five years after first exposure, which it was in this case as the employee’s first exposure was in 1944, colon cancer is a “specified” cancer.  See 20 C.F.R. § 30.5(ff)(5)(L).  The totality of evidence therefore demonstrates that the employee qualifies as a member of the new addition to the SEC.  As a member of the SEC who was diagnosed with a specified cancer which constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), the employee qualifies as a “covered employee with cancer.”  42 U.S.C. § 7384l(9).

 

Under Part B of EEOICPA, a covered employee, or the survivors of that employee, shall receive compensation for the employee’s occupational illness in the amount of $150,000.00.  The employee was a widower at the time of his death.  Accordingly, as the employee’s surviving children, [Claimant #1 and Claimant #2] are entitled to $150,000.00 (to be shared equally) in survivor benefits under Part B.

 

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a “covered illness” through exposure at a DOE facility.  The term “covered DOE contractor employee” means any DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s(1).  The term “covered illness” means an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2).

 

A determination under Part B of EEOICPA that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Under Part E, the survivor of a deceased covered Part E employee shall receive $125,000.00, if the employee would have been entitled to compensation for a covered illness, and 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 death of such employee.  See 42 U.S.C. § 7385s-3(a)(1).

 

The employee’s work for the University of California at LANL from August 7, 1944 to March 1, 1946 establishes that the employee was a DOE contractor employee, and he was diagnosed with colon cancer, a “covered illness,” as that term is defined by 42 U.S.C. § 7385s(2).  The employee contracted his “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The employee’s death certificate indicates that the cause of death was “metastatic carcinoma colon.”

 

FAB therefore concludes that the employee would have been entitled to compensation under Part E for his covered illness, and 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 death of the employee. 

 

The term “covered” child means a child of the employee who, at the time of the employee’s death, was under the age of 18, or under the age of 23 and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).  [Claimant #1] was 16 years old at the time of the employee’s death; thus, she is a covered child under Part E.  The evidence of record shows that at the time of the employee’s death, [Claimant #2] was 19 years old.  The eligibility of a child who is between the ages of 18 and 23 at the time of the employee’s death is evaluated under the following guidelines:

 

[T]he child must have been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years and must not have reached the age of 23 years regardless of marital status or dependency on the employee for support.  Enrollment as a full time student consists of a 12-month period, with a break of no more than 4 months, during each year of post-high school education.  The full-time course of study or training at an accredited institution(s) is approximately four years of education beyond the high school level or until the student reaches age 23, whichever comes first.  It is [within the Division of Energy Employees Occupational Illness Compensation (DEEOIC)]’s discretion to determine a period of reasonable duration if the student was prevented by reasons beyond his or her control, such as a brief but incapacitating illness, from continuing in school. 

 

Federal (EEOICPA) Procedure Manual, Chapter E-600.5(b)(3) (September 2005). 

 

The statute requires continuous enrollment since attaining the age of 18 in order for a surviving child to be eligible for survivor benefits under Part E.  The Procedure Manual states that enrollment as a full-time student means a break of no more than four months in a 12-month period, unless prevented from continuing in school for a reason beyond the student’s control.  These criteria necessarily contain some discretion for case-by-case analysis of claims involving surviving children who were between the ages of 18 and 23 when the employee died.  What reasonably qualifies as “a reason beyond the student’s control” will depend on the facts and circumstances surrounding each claim and will involve some judgment on the part of DEEOIC.

 

[Claimant #2] graduated from high school in 1991, at the age of 17.  He turned 18 on November 16, 1991, entered North Central College as a special student on January 6, 1992 and attended classes there full-time during the Winter and Spring sessions of the 1991-1992 school year.  A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993.  A May 27, 1992 letter from the University of Chicago shows his original admission date as the Autumn quarter of 1992.  A copy of a transcript from the University of Chicago shows that [Claimant #2] attended classes there from Autumn of 1993 until Spring of 1997 and that he was awarded a degree in Summer of 1997.  The transcript also notes that he attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992.

 

The employee died on November 20, 1992, during the time between [Claimant #2] attended classes at North Central College (Spring of 1992) and he began classes at the University of Chicago (Fall of 1993).  In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.”  He also noted in the same letter that during that time he had no earned income and was dependent on the employee.  These statements are consistent with the above documentation, in that they both support that [Claimant #2] would have begun classes in the Autumn quarter of 1992 at the University of Chicago but for the employee’s illness.  FAB notes that had he begun classes in the Autumn of 1992 as he had originally planned, there would have been no break of more than 4 months in his continuous education since he attained the age of 18. 

 

[Claimant #2] stated, and there is no evidence in the file to contradict, that he deferred for one year his admission to the University of Chicago, from Autumn 1992 to Autumn of 1993, due to the employee’s illness, and in fact the employee died shortly after the Autumn quarter of 1992 would have begun (November 20, 1992).  Thus, the circumstances surrounding the break in his continuous enrollment since the age of 18 (i.e., between Spring of 1992 and Fall of 1993) were reasonable and beyond [Claimant #2]’s control, such that he qualifies as a “covered child” who was “under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years” under Part E of EEOICPA.

 

Accordingly, [Claimant #1 and Claimant #2] are entitled to survivor compensation of $150,000.00 (to be divided in equal shares of $75,000.00) under Part B as the surviving children of the employee, for the employee’s occupational illness of colon cancer.  They are also entitled to survivor compensation of $125,000.00 (to be divided in equal shares of $62,500.00) under Part E as the covered children of the employee, for the employee’s death due to the covered illness of colon cancer.  Thus, [Claimant #1 and Claimant #2] are each entitled to $137,500.00 in total EEOICPA survivor benefits.

 

Washington, DC

 

 

Carrie A. Rhoads

Hearing Representative,

Final Adjudication Branch



[1]  The University of California is a contractor at LANL, which is a DOE facility beginning in 1942 to the present.  See DOE’s facility listings at:  http://www.hss.energy.gov/healthsafety/ fwsp/advocacy/faclist/findfacility.cfm (visited November 5, 2007).