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:

1861-2006

10029888-2006

DECISION DATE:

 March 7, 2006

 

NOTICE OF FINAL DECISION

 

This decision of the Final Adjudication Branch (FAB) concerns your claim for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim is approved for compensation in the amount of $275,000. 

 

STATEMENT OF THE CASE

 

On August 2, 2001, you filed a claim (Form EE-2) for survivor benefits under EEOICPA with the Department of Labor (Part B) as the surviving spouse of [Employee].  The file contains a marriage certificate documenting [Employee]’s marriage to [Employee’s spouse] on January 26, 1948 and the death certificate of [Employee] stating that he was married to [Employee’s spouse] (maiden name) at the time of his death on July 4, 1991.

 

On October 27, 2003, you also filed a claim (Form DOE 350.3) for assistance under EEOICPA with the Department of Energy (former Part D).  On October 28, 2004, the President signed into law an amendment that replaces the former Part D program with a new program called Part E.  Accordingly, the Part D claim you filed with the Department of Energy (DOE) was transferred to the Department of Labor for adjudication under Part E. 

 

On the claim forms, you identified lung cancer as [Employee]’s diagnosed condition for which you sought compensation.  A pathology report, dated November 26, 1990, shows [Employee]’s diagnosis of undifferentiated carcinoma, bronchial tissue and an operative note, signed by Vijay R. Patil, M.D., provides [Employee]’s pre and post operative diagnosis as non-small cell carcinoma, right upper lobe.  In addition, [Employee]’s death certificate identifies “carcinoma - right lung” as “other significant condition” contributing to his death. 

 

On the Employment History Form (EE-3), you stated that [Employee] worked for Union Carbide at the Y-12 and X-10 plants from 1950 through 1969.  The Department of Energy (DOE) verified [Employee]’s employment with Union Carbide at the X-10 plant from March 15, 1948 through November 20, 1953 and again from October 6, 1958 through August 1, 1969 and at the Y-12 plant from May 25, 1954 through January 27, 1956 and November 12, 1956 through July 11, 1958[1].  

 

To determine the probability of whether [Employee] sustained lung cancer due to exposure to radiation during his employment at the Y-12 and X-10 plants, on November 19, 2002 the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction.  On December 6, 2005, 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 provided to NIOSH.  On December 12, 2005, NIOSH provided the district office with a copy of the dose reconstruction report.  Using the dose estimates provided by NIOSH and the software program NIOSH-IREP version 5.4, the district office calculated the probability of causation for your spouse’s lung cancer as 69.72%.[2] 

 

On January 17, 2006, the district office received your written confirmation that neither you nor the employee had received state workers’ compensation benefits in connection with the accepted condition, and that you do not believe the employee experienced wage-loss due to this illness.  You also stated that the employee, at the time of death, had no minor children or children incapable of self support, who were not your natural or adopted children.

 

In addition, you stated that you received a settlement in the amount of $119,933.15 (less 1/3 attorney’s fee and $2,430.52 in expenses) in connection with a third party asbestos exposure personal injury lawsuit.  The file contains a copy of the short form complaint you filed in the circuit court for Knox County, TN, which shows the cause of action taken against various employers for [Employee]’s lung cancer due to asbestos exposure.    

 

On January 26, 2006, the Jacksonville district office issued a recommended decision finding that you are entitled to compensation under EEOICPA in the amount of $275,000.  On February 6, 2006, the FAB received written notification that you waive any and all objections to the January 26, 2006 recommended decision. 

 

After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:

 

 

FINDINGS OF FACT

 

1.         [Employee] worked for a covered contractor, Union Carbide, at covered DOE facilities, the Y-12 and X-10 plants, during a covered period intermittently from March 15, 1948 through August 1, 1969.   

 

2.         [Employee] was diagnosed with a lung cancer after beginning employment at the Y-12 and X-10 plants.     

 

3.         The probability of whether [Employee]’s lung cancer was caused by exposure to radiation during his employment at the Y-12 and X-10 plants was computed to be 74.89%. 

 

4.         You are the surviving spouse of [Employee].

 

5.         You confirmed in writing that neither you nor the employee had received state workers’ compensation benefits in connection with the accepted condition, and that the employee, at the time of death, had no minor children or children incapable of self-support, who were not your natural or adopted children.

 

6.         You confirmed in writing, and provided supporting documentation, that the settlement you received from a lawsuit due to your spouse’s lung cancer was based on his exposure to asbestos.

 

Based on the above noted findings of fact, the FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

To facilitate a claim for cancer under Part B, the Act defines a “covered employee with cancer” as, among other things, a DOE or DOE contractor employee who contracted that cancer after beginning employment at a DOE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty.  42 U.S.C. § 7384l(9)(B).  To establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs OWCP to forward a complete copy of the case record to NIOSH for dose reconstruction to determine whether the cancer was “at least as likely as not” (50% probability or higher) caused by exposure to radiation while employed at a DOE facility.  20 C.F.R. § 30.115.

 

The dose reconstruction was performed in accordance with 42 C.F.R. Part 82, Methods for Radiation Dose Reconstruction under the EEOICPA and the probability of causation was computed in accordance with 42 C.F.R. Part 81, Guidelines for Determining the Probability of Causation Under the EEOICPA.  The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is a 74.89% probability that [Employee]’s cancer was related to his employment at the Y-12 and X-10 plants.  Since the probability of causation is greater than 50%, it is determined that your spouse incurred cancer in the performance of duty at a DOE facility.  Therefore, the evidence of record establishes your spouse as a “covered employee with cancer” as defined above. 

 

The evidence of records further establishes that you are the employee’s “spouse,” as defined by 42 U.S.C. § 7384s(e)(3), and his sole eligible beneficiary.  As such, the FAB hereby finds that you are entitled to compensation under Part B of EEOICPA in the amount of $150,000 pursuant to 42 U.S.C. § 7384s(e)(1)(A). 

 

To facilitate a claim under Part E, the Act defines a “covered DOE contractor employee” as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility.  42 U.S.C. § 7385s(1).  To establish that the employee contracted an illness through toxic exposure, § 7385s-4 provides that “A determination under part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a DOE facility.”  42 U.S.C. § 7385s-4(a).  Moreover, in order to receive the basic survivor benefits payable under Part E, which provides additional compensation for DOE contractor employees, the evidence must further show that the accepted condition was a significant factor in aggravating, contributing to or causing the employee’s death. 

 

Based on the acceptance of your claim for the employee’s lung cancer under Part B of EEOICPA in this decision, it is further determined that your spouse contracted lung cancer due to exposure to a toxic substance, radiation, at a DOE facility.  Therefore, the evidence of record establishes your spouse as a “covered DOE contractor employee,” as defined above, with a covered illness which aggravated, contributed to, or caused his death.  42 U.S.C. §§ 7385s-4(a) and 7385s-3(a). 

 

The evidence of record further establishes that you are the employee’s “covered spouse,” as defined by 42 U.S.C. § 7385s-3(d), and his sole eligible beneficiary.  As such, the Final Adjudication Branch further finds that you are entitled to compensation under Part E of EEOICPA in the amount of $125,000 pursuant to 42 U.S.C. § 7385s-3(a)(1).

 

Section 7385 of the Act states that compensation under EEOICPA shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for workers’ compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under this subchapter.  42 U.S.C. § 7385.  The evidence of file shows that you received a settlement award based on your spouse’s exposure to asbestos.  Since compensation awarded to you in this decision is based on exposure to radiation, the FAB concludes that an offset is not required.

 

Accordingly, your claim for compensation under EEOICPA in the amount of $275,000, as provided for under 42 U.S.C. §§ 7384s and 7385s-3(a)(1), is hereby approved.

 

Washington, DC

 

 

 

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch



[1] The Y-12 plant is identified on the DOE Covered Facility List as a DOE facility with Union Carbide listed as a covered contractor from 1947 through 1984.  The X-10 plant is identified as a DOE facility with Union Carbide listed a covered contractor from 1948 through 1984.  http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (As of March 1, 2006)

 

[2] Effective February 28, 2006, NIOSH-IREP lung model version 5.5 replaced version 5.4 which increased [Employee]’s PoC to 74.89%.