|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 13679-2002
DECISION DATE: January 13, 2005
NOTICE OF FINAL DECISION AND REMAND ORDER FOLLOWING A HEARING
This is the final decision and remand order of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 based on your cancer and nesidioblastosis is denied. However, the case is remanded to the Jacksonville district office for the reason provided below. Adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.
STATEMENT OF THE CASE
On October 25, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for distal pancreas and spleen nesidioblastosis.
On the Form EE-3, Employment History, you stated you were employed as an electrical worker by Westinghouse at the Savannah River Site (SRS) in Aiken, South Carolina, for the period of May 8, 1989 to April 1, 2001. The DOE verified these employment dates. You submitted medical evidence establishing that you were diagnosed with nesidioblastosis on September 21, 2000, and malignant epithelioid hemangioendothelioma on October 25, 2002.
A modification order of January 21, 2003, vacated the October 24, 2002 decision of the Final Adjudication Branch, which affirmed the recommended denial of benefits dated August 19, 2002.
In order to be eligible for benefits under Part B of the Act, the evidence must establish that your cancer (hemangioendothelioma) was at least as likely as not related to your employment at a covered facility, within the meaning of the Act. 42 U.S.C. § 7384n.
To determine the probability of whether you sustained cancer in the performance of duty, the Jacksonville district office referred the application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with the EEOICPA implementing regulations. 20 C.F.R. § 30.115. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. 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.” On April 8, 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on April 26, 2004.
Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 9.37% probability that your cancer was caused by radiation exposure at the SRS. 42 C.F.R. § 81.20. The Final Adjudication Branch independently analyzed the information in the NIOSH report, confirming the 9.37% probability.
On May 3, 2004, the Denver district office issued a recommended decision concluding that you are not entitled to compensation since your cancer is not covered under Part B of the Act.
The recommended decision informed you that you had sixty days to file any objections, and that period ended on July 2, 2004. On May 13, 2004, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 12, 2004. In this letter, you discussed the progression of your health problems and their effect on your life. You made the following objections:
1) Although you were in perfect health when you began working at the SRS, your health started to deteriorate after working there.
2) The probability of causation was 9.37%; therefore, no one can say conclusively that your present condition was not caused by employment at the SRS.
The hearing was held on August 18, 2004, in North Augusta, South Carolina. During the hearing, you presented the following objections:
3) Before you were trained differently, you used to carry sources very close to your feet. HT page 8, line 17, through page 9, line 3. In addition, you would push contaminated material around with your feet to clear “the huts.” HT page 9, lines 3 through 9, and page 10, line 7, through page 10, line 25. You wore the dosimetry badge on your chest, but your cancer developed in your feet, where you think more radiation was received. In other words, since the dosimetry badge was positioned on your chest, it did not accurately measure the radiation you received to your feet. HT page 9, line 8, through page 10, line 6, and page 10, line 25, through page 11, line 5. Sometimes you wore safety shoes or rubber booties, but when you were sourcing the vamps, often you would just have on tennis shoes. HT page 11, lines 12 through 16. Around 1995, new procedures were instituted, including the placement of the source in a lead box after using it. This causes you to think that the source was contaminated with radiation back when you were carrying it exposed right near your feet. HT page 11, line 17, through page 12, line 17.
4) Besides your hemangioendothelioma, you were also diagnosed with nesidioblastosis, a rare pancreatic condition, after working at the SRS. The fact that you have two rare conditions makes you think you were exposed to a lot of toxic material. HT page 12, line 25, through page 14, line 17.
5) You provided additional information about the tank farms. You are discovering that you were exposed to more chemicals and types and intensity of radiation than you were told originally. HT page 19, line 22, through page 20, line 24.
6) You were often exposed to radon and RADCON would make you sit in a hut for hours until they told you that you were clear and could leave. Most of the time, the monitors would pick up the activity from your shoes. You read some research on a website from N. B. Anderson in Houston that said radon is a possible cause of your cancer. HT 23, line 12, through page 25, line 21.
In accordance with 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), 30.314(f). By letter dated September 15, 2004, the transcript was forwarded to you. No response was received. However, new medical evidence was submitted following the issuance of the recommended decision. Although this new evidence appears to mostly concern previously diagnosed conditions and their sequelae, some conditions mentioned do not appear to have been addressed.
Pursuant to the implementing regulations, if the claimant objects to NIOSH’s dose reconstruction the Final Adjudication Branch (FAB) will evaluate the factual findings upon which NIOSH based the dose reconstruction. However, the methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. 20 C.F.R. § 30.318.
In reference to your first objection, although your cancer occurred after your employment at the SRS, according to Part B of the Act, the connection between your cancer and your employment must be causal, not temporal. In other words, the evidence must show that your cancer was caused in the performance of duty, not that it occurred during or after your employment. 42 U.S.C. § 7384n(b). This is a challenge of fact, specifically a challenge to regulations.
Concerning your second objection, Part B of the Act states that a cancer is shown to have occurred in the performance of duty if the evidence shows that it was “at least as likely than not” caused by radiation exposure at work. 42 U.S.C. § 7384n(b). “At least as likely as not” is defined by a 50% or more probability of causation. 42 C.F.R. § 81.2. “Probability of causation” means the likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty. In statistical terms, it is the cancer risk attributable to radiation exposure divided by the sum of the baseline cancer risk (the risk to the general population) plus the cancer risk attributable to the radiation exposure. 42 C.F.R. § 81.4(n). This is a challenge of fact, specifically a challenge to statutory regulations.
The third objection concerns the correction for the location of the cancer in the foot to the dosimeter worn on the chest. As is noted in the “External Dose” section under the “Radiation Type, Energy, and Exposure Geometry” sub-section of the dose reconstruction report, the distribution of your exposure geometry and radiation energies was selected to maximize dose. Also, to ensure that the estimated dose was maximized, an organ dose conversion factor of 1.0 was used to calculate the dose to the foot for photons per NIOSH’s “Technical Basis Document for the Savannah River Site To Be Used for EEOICPA Dose Reconstructions,” Rev. 1, August 2003. While a specific correction for the badge location on the body is not made, an organ dose correction factor of 1.0, which is claimant-favorable, is used to encompass this issue. During a discussion with a NIOSH health physicist, it was determined that you had 17 mrem recorded deep dose from two positive readings in your dose record. NIOSH assigned 2,574 mrem in this dose reconstruction. This overestimate of the dose to the foot appears to be sufficient to address any uncertainty about inferring dose from the dosimeter on the chest to the foot.
The “Dose from Radiological Incidents” section of your dose reconstruction report addresses the issues you discuss concerning the radioactive cesium source that would hang a few inches from your feet as you carried it. The discussion in this section of the report notes that any external dose received would have been measured or detected by the routine monitoring systems in place. This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b).
In reference to your fourth objection, although you were diagnosed with two rare conditions, NIOSH only considers primary cancers when performing the dose reconstruction and nesidioblastosis is not considered a covered occupational illness under Part B of the Act. While Part B of the Act extends benefits based on cancers which are caused by exposure to radiation, Part B does not consider cancer caused by other toxic materials. This is a challenge of fact, specifically a challenge to the statute.
In your fifth objection, you discuss your concerns that you were exposed to more chemicals and radiation at the tank farms than were considered in the dose reconstruction. Your discussion in the hearing transcript is not specific to any additional radiation or radionuclides that were present at the tank farm. The SRS site profile contains the assumptions used for exposures to workers at the tank farm and these assumptions are considered by NIOSH to result in overestimates of dose based on the energy of the radiation and the radionuclides assumed. In addition, the SRS site profile is a living document and as such will be revised if significant information is found that changes the assumptions and parameters used in dose reconstructions. If these changes require a denied case to be reevaluated, NIOSH will review all affected dose reconstructions to determine if the doses would be significantly increased. As stated above, Part B of the Act only considers exposure to radiation, not chemicals. This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b).
The sixth objection concerns the presence of radon. As stated above, the SRS site profile contains the assumptions used for exposures to workers at the tank farm and these assumptions are considered by NIOSH to result in overestimates of dose based on the energy of the radiation and the radionuclides assumed. Due to the energy of radiation from radon, the leather of the work boot or shoes would significantly attenuate the dose to the foot. This is a challenge of the dose reconstruction methodology, which is binding on the FAB per 20 C.F.R. § 30.318(b).
In reference to your discussion of the research publication by N. B. Anderson, NIOSH is constantly reviewing new scientific evidence that would significantly affect the cancer models used in the dose reconstructions and in NIOSH-IREP. In fact, NIOSH has recently begun a study of occupational exposures at DOE facilities and will apply any significant findings to the cancer models used in the dose reconstructions and in NIOSH-IREP. This is a factual objection and as stated above NIOSH is constantly reviewing new scientific evidence that would significantly affect the cancer models used in the dose reconstructions and in NIOSH-IREP.
In summary, your objections are challenges to NIOSH methodology and challenges of fact with insufficient evidence to warrant a rework by NIOSH.
FINDINGS OF FACT
1) On October 25, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on your distal pancreas and spleen nesidioblastosis.
2) You were employed at the SRS in Aiken, South Carolina, for the period of May 8, 1989 to April 1, 2001.
3) You were diagnosed with nesidioblastosis on September 21, 2000, and malignant epithelioid hemangioendothelioma on October 25, 2002. Nesidioblastosis is not a covered occupational illness under Part B of the Act and implementing regulations. 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.5(z).
4) Based on the dose reconstruction performed by NIOSH, the district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for malignant epithelioid hemangioendothelioma. The district office calculated a probability of causation of 9.37% and determined that this condition was not “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility. The Final Adjudication Branch independently analyzed the information in the NIOSH report, confirming the 9.37% probability.
5) On May 3, 2004, the Denver district office issued a recommended decision concluding that the dose reconstruction estimates were performed in accordance with the Act; that the probability of causation calculation was completed in accordance with the Act and implementing NIOSH regulations; that you did not sustain your hemangioendothelioma in the performance of duty as required by Part B of the Act; and that you are not entitled to compensation in the amount of $150,000 as outlined under Part B of the Act. 42 U.S.C. §§ 7384n(d), 7384n(c)(3), 7384n(b), 7384s(a); 42 C.F.R. §§ 81.0 et seq., 81.21.
6) On May 13, 2004, the Final Adjudication Branch received your letter of objection and request for a hearing dated May 12, 2004.
7) The hearing was held on August 18, 2004, in North Augusta, South Carolina. The objections raised are challenges to NIOSH methodology and challenges of fact with insufficient evidence to warrant a rework by NIOSH.
CONCLUSIONS OF LAW
The undersigned has reviewed the facts and the recommended decision issued by the Denver district office on May 3, 2004, and finds that the evidence submitted before, during, or after the hearing does not establish that your malignant epithelioid hemangioendothelioma was at least as likely as not related to your employment at a covered facility as specified by the Act. 42 U.S.C. § 7384n. The evidence in the record does not establish that you are entitled to compensation under the Act because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that your cancer was caused by radiation exposure received at the SRS in the performance of duty. Therefore, I find that the decision of the Denver district office is supported by the evidence and the law, and cannot be changed based on the objections you submitted.
Your claim for benefits on the basis of your nesidioblastosis is denied since this is not a beryllium illness, cancer, or chronic silicosis, and cannot be considered a covered occupational illness under Part B of the Act and implementing regulations. 42 U.S.C. § 7384l(15);
20 C.F.R. § 30.5(z).
As explained in § 30.110(b) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). The undersigned hereby denies payment of lump-sum compensation and medical benefits under Part B of the Act.
However, the case is remanded to the Jacksonville district office for review of the medical evidence submitted following the issuance of the recommended decision. After reviewing the medical reports in accordance with EEOICPA and the implementing regulations, the district office should issue a new recommended decision.