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:

13677-2004

DECISION DATE:

September 28, 2004

 

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim for benefits is accepted. 

 

STATEMENT OF THE CASE

 

On October 26, 2001, you filed a claim for survivor benefits under the EEOICPA, Form EE-2, wherein you indicated that your late husband, [Employee] (hereinafter referred to as the employee), was diagnosed with “chronic lung disease,” throat cancer and left and right kidney cancer.  On Form EE-3 (Employment History), you indicated that the employee was employed by E.I. Dupont at the Savannah River Site (SRS)[1] from 1952 until December 31, 1980.  In November, 2001, the Department of Energy (DOE) verified that the employee worked at the SRS from June 23, 1952 until December 31, 1980.  You also submitted the employee’s death certificate and your marriage certificate in support of your claim as his only eligible surviving beneficiary.

 

You submitted medical evidence dated between October, 1984 and December, 1997.  As part of the medical evidence that you submitted was an October 31, 1984 pathology report by Dr. James V. Kasin, in which he diagnosed adenocarcinoma of the right kidney, and a May 20, 1986 pathology report by Dr. Denyse N. Parnell, in which she diagnosed adenocarcinoma of the left kidney. 

 

In regard to the claimed condition of throat cancer, a December 3, 1997 discharge summary by Dr. Jack L. Ratliff indicated that the employee had a “HX [history] of ENT [ear, nose and throat] cancer” and “bilateral neck resections for cancer of the base of his ‘nostril’.” However, the medical evidence of record is devoid of a pathology report to confirm the diagnosis of cancer to the ear, nose or throat.  In regard to the claimed condition of “chronic lung disease,” this is a non-covered condition under the Act.

 

In order for you to be eligible for benefits relating to the employee’s right and left kidney cancers, the evidence must establish that these two primary cancers were “at least as likely as not” related to the employee’s employment at a covered facility, pursuant to § 7384n(b) of the Act and § 30.210(b) of the implementing regulations.  42 U.S.C. § 7384n(b), 20 C.F.R. § 30.210(b).  To determine the probability of whether the employee sustained his cancers in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction on August 22, 2002 in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  The district office submitted an amended application to NIOSH for dose reconstruction on May 17, 2004.

 

On June 26, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on July 1, 2004.[2] Pursuant to §§ 81.20 and 81.25 of the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 63.16% probability that the employee’s right and left kidney cancers were caused by radiation exposure at the SRS.  42 C.F.R. §§ 81.20, 81.25.

 

On August 20, 2004, the district office issued a recommended decision that concluded that you are the surviving spouse of the employee and that the employee’s right and left kidney cancers were “at least as likely as not” caused by his employment at the SRS.  It was therefore recommended that you receive compensation in the amount of $150,000.  The district office also concluded that you did not submit sufficient medical evidence to establish the claimed conditions of throat cancer and “chronic lung disease” under the Act.

 

Therefore, based on a review of the case file evidence, I make the following,

 

FINDINGS OF FACT

 

  1. You filed a claim for survivor benefits on October 26, 2001.

 

  1. You submitted evidence which established that the employee worked at the SRS from June 23, 1952 until December 31, 1980.

 

  1. You submitted evidence which established that the employee was diagnosed with right kidney cancer on October 31, 1984 and left kidney cancer on May 20, 1986.

 

  1. You submitted evidence which established that you are the employee’s surviving spouse.

 

  1. You did not submit sufficient medical evidence to establish that the employee was diagnosed with throat cancer.

 

  1. The claimed condition of “chronic lung disease” is not a covered occupational illness under the Act.

 

  1. NIOSH reported annual dose estimates for the employee’s two primary kidney cancers from the date of initial radiation exposure during covered employment to the date of the cancers’ first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated June 18, 2004.  

 

  1. Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s right and left kidney cancers were “at least as likely as not” (a 50% or greater probability) related to his employment at a covered facility, as required by the EEOICPA.

 

Therefore, based on a review of the case file evidence, I make the following:

 

CONCLUSIONS OF LAW

 

Pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in section 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).  The claimed condition of “chronic lung disease” is not a covered occupational illness under Part B of the EEOICPA.

 

Pursuant to § 30.211 of the implementing regulations, “a claimant establishes that the employee has or had contracted cancer with medical evidence that sets forth the diagnosis of cancer and the date on which that diagnosis was made.” 20 C.F.R. § 30.211.  Additionally, according to Chapter 2-600.3 (September 2004) of the Federal (EEOICPA) Procedure Manual, sufficient medical evidence must be presented by the claimant in order to substantiate a diagnosis of cancer.  The case record must include medical evidence that lists a cancer diagnosis made by a qualified physician with tissue examinations described in a pathology report being the most conclusive method of diagnosis.  You did not submit sufficient medical evidence to establish that the employee was diagnosed with throat cancer under the EEOICPA.

 

The FAB independently analyzed the information in the NIOSH report, confirming the 63.16% probability of causation for the employee’s left and right kidney cancers.  I find that the evidence establishes that the employee’s left and right kidney cancers were “at least as likely as not” related to his employment at a covered facility, pursuant to § 7384n(b) of the Act and § 30.210(b) of the EEOICPA regulations.  42 U.S.C. § 7384n(b), 20 C.F.R. § 30.210(b).

 

On August 30, 2004, the FAB received written notification that you waived any and all objections to the recommended decision.  The undersigned has reviewed the facts and the recommended decision issued by the district office on August 20, 2004 and finds that the employee’s right and left kidney cancers were “at least as likely as not” caused by his employment at a covered facility pursuant to § 7384n(b) of the Act, that he was a covered employee with cancer pursuant to § 7384l(9)(B)(i) of the Act, that you are the only eligible survivor of the covered employee pursuant to § 7384s(e)(2)(3)(A) of Act and that you are entitled to the sum of $150,000 pursuant to §§ 7384s(a), 7384s(e)(A) of the Act.  42 U.S.C. §§ 7384n(b), 7384l(9)(B)(i), 7384s(a), 7384s(e)(A)(2)(3)(A).

  

Washington, DC

 

 

Richard Koretz

Hearing Representative

 



[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Savannah River Site (SRS) in Aiken, SC is a covered DOE facility from 1950 to the present.


[2] NIOSH originally submitted a “NIOSH Report of Dose Reconstruction” to the district office on March 31, 2004.  However, after further review of the evidence and consultation with the EEOICPA senior health physicist, the district office determined that a re-work of the dose reconstruction was necessary in that the employee’s claimed throat cancer was erroneously included in the NIOSH dose reconstruction and that one of the employee’s two primary kidney cancers was erroneously omitted from the NIOSH dose reconstruction.  Therefore, on May 17, 2004 the district office submitted an amended application to NIOSH for dose reconstruction.