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 NUMBERS:

18283-2004

DECISION DATE:

September 17, 2004

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch 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 stated below, this decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment.

 

STATEMENT OF THE CASE

 

On December 28, 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 prostate cancer and asbestosis.  Although you did not file a claim for chronic beryllium disease (CBD), the office developed the case to include this covered condition.

 

On the Form EE-3, Employment History, you stated you were employed as a Pipefitter by B.F. Shaw at the Savannah River Site (SRS).  Your employment was verified from August 1, 1952 to October 31, 1954 and from November 1, 1956 to December 31, 1961. 

 

I have reviewed the medical evidence in this case and I find that it is sufficient to establish that you have chronic beryllium disease.  For diagnoses before January 1, 1993, according to § 7384l(13) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by the presence of occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any three of the following criteria:

 

(1)      Characteristic chest radiographic (or computed tomography (CT)) abnormalities;

(2)      Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;

(3)      Lung pathology consistent with chronic beryllium disease;

(4)      Clinical course consistent with a chronic respiratory disorder;

(5)      Immunologic tests showing beryllium sensitivity. 

 

Applying these specific statutory requirements to this case, the district office determined that the employee had over eight years of potential exposure to beryllium at the Savannah River Site.  They also determined that you established criteria (2) and (4) by submitting an April 17, 1995 spirometry test, which showed mild obstruction, and a medical report showing that you had  been treated for coughing and chronic bronchitis prior to 1993.

 

You had also submitted x-ray reports; however, the district office was unable to determine whether the x-ray results showed abnormalities characteristic of CBD.  Therefore, the x-ray results were referred to the district medical consultant (DMC) for review and opinion.  On October 17, 2003, the DMC opined that the chest x-ray reports were consistent with, but not classic for CBD.  He further opined that the most likely etiology to explain the interstitial markings seen on the chest x-ray is asbestosis, not CBD. 

 

The Act’s statutory requirement is that the x-ray findings only show abnormalities characteristic of CBD.   Therefore the district office accepted the DMC’s opinion that the x-rays were consistent with CBD.  On April 14, 2004, the district office issued a recommended decision to deny the claim for prostate cancer and asbestosis, and to award you compensation in the amount of $150,000 for chronic beryllium disease (CBD) based on the criteria for a diagnosis prior to January 1, 1993.

 

On June 30, 2004, the Final Adjudication Branch (FAB) issued a final decision affirming denial of the claim for prostate cancer and asbestosis.  However, the FAB found that you had only met 2 of the required 3 criteria necessary to establish a diagnosis of pre-January 1, 1993 CBD.  The FAB determined that the medical evidence was sufficient to meet criteria (2) and (4), as noted above, however, they found that the chest x-ray was not consistent with CBD.  Therefore, the case was remanded to the district office for them to review the medical evidence and apply the criteria for CBD as set forth in the Act. 

 

On July 20, 2004, the district office issued a recommended decision finding that you had not provided sufficient evidence to establish that you met the criteria for a diagnosis of chronic beryllium disease (CBD) as defined in 42 U.S.C. § 7384l(13).  In re-evaluating the evidence of record, and without further development, the district office found that the medical evidence did not show you had a chest x-ray consistent with CBD.  This meant you had only met 2 of the required 3 criteria necessary to establish a diagnosis of pre-January 1, 1993 CBD and, consequently, the claim was denied. 

 

The issue in this case is whether the findings on chest x-ray are sufficient to meet the statutory requirement of a characteristic chest x-ray.  For a pre-January 1993 diagnosis, the Act very clearly prescribes that criterion (1) is met if the chest x-ray show abnormalities characteristic of CBD.  The Act does not require that abnormalities be classic for CBD.[1]  The office’s medical consultant clearly opined that the x-ray findings are consistent with CBD.  Therefore, I find that the chest x-ray establishes the third requirement necessary for a pre-1993 CBD diagnosis.

 

FINDINGS OF FACT

 

  1. You filed a Form EE-1, Claim for Benefits under the EEOICPA, on December 28, 2001.

 

  1. The medical evidence is sufficient to establish that you have chronic beryllium disease pursuant to § 7384l(13) of the Act.  42 U.S.C. § 7384l(13).

 

  1. You were employed at the Savannah River Site from August 1, 1952 to October 31, 1954 and from November 1, 1956 to December 31, 1961.  Beryllium was present at this facility during the time you were employed.  Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in § 7384l(7) of the Act.  42 U.S.C. § 7384l(7).

 

  1. The district office issued the recommended denial of benefits on July 20, 2004.

 

  1. This decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment.

 

CONCLUSIONS OF LAW

 

I find that you are a covered beryllium employee, as that term is defined in § 7384l(7) of the Act; and that your chronic beryllium disease is a covered condition under § 7384l(13) of the Act and § 30.207 of the implementing regulations.  42 U.S.C. §§ 7384l(7), 7384l(13), 20 C.F.R. § 30.207. 

 

This decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment.  You are entitled to $150,000 and medical benefits, effective December 28, 2001, for chronic beryllium disease, pursuant to §§ 7384s(a) and 7384t of the EEOICPA.  42 U.S.C. §§ 7384s(a), 7384t.

 

Jacksonville, FL

 

 

 

James Bibeault

Hearing Representative

 



[1] In a policy conference call of October 29, 2003, the Branch of Policies, Regulations, and Procedures has clarified that there is no legal difference between the terms “characteristic of” and “consistent with.”