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:

23398-2004

DECISION DATE:

September 10, 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 (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

 

STATEMENT OF THE CASE

 

On February 21, 2002, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA), based on uterine carcinoma.  Medical documentation submitted in support of your claim shows that you were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

 

You also provided a Form EE-3 (Employment History) in which you state that you worked for the Carbide and Carbon Chemical Corporation at the Oak Ridge Gaseous Diffusion Plant (GDP) from July 1948 to October 19, 1953, and for the Goodyear Atomic Corporation at the Portsmouth GDP from September 1, 1954 to August 1, 1955.  You also report that you did not wear a dosimetry badge at either facility.  A representative of the Department of Energy (DOE) verified that you worked at the Oak Ridge GDP from April 12, 1948, to October 19, 1953, and at the Portsmouth GDP from September 7, 1954, to September 15, 1955.  The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to the present and the Portsmouth GDP is recognized as a covered DOE facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy, Facility List.

 

Based on covered employment of more than 250 workdays at the Oak Ridge and Portsmouth GDPs, in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges, you meet the requirements for Special Exposure Cohort membership.  See 42 U.S.C. § 7384l(14).  However, because the cancer with which you had been diagnosed, endometrial carcinoma, is not a specified cancer under 42 U.S.C. § 7384l(17), your case was referred to NIOSH in order to further consider your entitlement to compensation under the Act.


To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 20 C.F.R. § 30.115.  On June 16, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On June 23, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the Cleveland district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of your cancer and reported in its recommended decision that there was a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge and Portsmouth GDPs.

 

On June 29, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Oak Ridge and Portsmouth GDPs.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

 

 

FINDINGS OF FACT

 

1.         You filed a claim for benefits on February 21, 2002.

 

2.         You were employed at the Oak Ridge GDP and at the Portsmouth GDP, covered DOE facilities, from April 12, 1948, to October 19, 1953, and September 7, 1954, to September 15, 1955, respectively.

 

3.         You were diagnosed as having endometrial adenocarcinoma on November 27, 2001.

 

4.         The NIOSH Interactive RadioEpidemiological Program indicated a 7.57% probability that your cancer was caused by radiation exposure at the Oak Ridge GDP and at the Portsmouth GDP.

 

5.         Your cancer was not “at least as likely as not” related to your employment at a DOE facility.

 

 

CONCLUSIONS OF LAW

 

I have reviewed the recommended decision issued by the Cleveland district office on June 29, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

 

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction dated June 8, 2004.  NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data, as well as information recorded during the computer-assisted telephone interview.  See 42 C.F.R. §§ 82.25 and 82.26.

 

Using the information provided in the Report of Dose Reconstruction for prostate cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 7.57% probability that your cancer was caused by radiation exposure while employed at the Oak Ridge and Portsmouth GDPs.  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 7.57% probability.

 

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer”, because your cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Oak Ridge and Portsmouth GDPs.  See 42 U.S.C. §§ 7384l(1)(B), 7384l(9)(B).

 

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

 

Cleveland, OH

 

 

 

 

 

_______________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch