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:

24496-2003

10028128-2006

DECISION DATE:

March 14, 2006

 

NOTICE OF FINAL DECISION

 

This is a 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 stated below, your claim for medical benefits for your diagnosis of chronic beryllium disease pursuant to Part E is approved.  Furthermore, your claim for chronic beryllium disease, bladder cancer and throat cancer for impairment pursuant to Part E is approved. 

 

A decision on [Employee]’s claim for medical benefits for basal cell carcinoma of the upper left lip is pending results from the National Institute for Occupational Safety and Health (NIOSH).

 

The Recommended decision dated December 29, 2005 omitted reference to chronic beryllium disease as being accepted under Part E. Therefore, in addition to addressing impairment, this decision accepts chronic beryllium disease for medical benefits pursuant to Part E.

 

STATEMENT OF THE CASE

 

On March 6, 2002, you filed a claim Form (EE-1) for benefits under EEOICPA with the Department of Labor.  On the EE-1 form you identified vocal cord cancer, lip cancer, chronic beryllium disease and other lung condition as the conditions being claimed.  You also submitted an employment history form (EE-3) on which you stated that you worked at the Iowa Ordnance Plant[1] in Burlington Iowa from March 19, 1951 through March 28,1991. You also indicated that you wore a dosimetry badge while you were employed with each company. 

 

The Department of Energy (DOE) verified your employment with the Iowa Ordnance Plant in Burlington, Iowa, from March 19, 1951 through March 28, 1991. 

 

August 29, 2003, the FAB issued a final decision in which it concluded that you were a covered beryllium employee and you were awarded compensation under Part B of EEOICPA in the amount of $150,000, and medical benefits for the treatment of your chronic beryllium disease.

 

On December 16, 2003, the district office received additional medical evidence, including a pathology report dated August 12, 2003, establishing your bladder cancer diagnosis. Subsequently, additional medical reports, including a pathology report dated September 23, 2005, established that you were diagnosed with throat cancer.

 

On January 24, 2006, the FAB issued a final decision which concluded that you were a covered employee with cancer and you were awarded medical benefits under Part B and Part E for cancer of the throat and cancer of the bladder.

 

On January 19, 2006, the district office received a letter from Dr. Fuortes in which he indicated that you had reached maximum medical improvement, and that using the AMA’s Guides to the Evaluation of Permanent Impairment, 5th Edition, Page 262, Table 11-7, Chapter 11.  You had a 40-60% impairment of the whole person because of the anatomic loss post-surgically of much of the epiglottis and your inability to swallow, and being nutritionally dependent upon a gastronomy and gastric feeding tube.  Dr. Fuortes concluded that you had a 60% impairment of the whole person.

 

Dr. Fuortes further stated that you are significantly impaired on the basis of pulmonary disease. He stated that your impairment from respiratory disease based on a DLCO deficit would be in the Class 4 range using Table 5-12, page 107, with severe dyspnea (Table 5-1, page 89) resulting in an estimated 51-100% range impairment of the whole person.  He stated that given the severity of your symptoms and with hypoxia at rest, your rating would be in the upper range or 85% impairment of the whole person from pulmonary disease.

 

Using the combined values chart for combining impairments, pages 604-606, a combined rating of 94% of the impairment of the whole person was assigned. 

 

On March 1, 2006, the Denver district office issued a recommended decision concluding that you are a covered  employee; that you contracted the covered illnesses, throat cancer, bladder cancer and chronic beryllium disease, due to your exposure to a toxic substance which is related to your employment at a DOE facility; an impairment rating was established representing your permanent impairment; and that you are entitled to impairment compensation of $235,000. 

 

FINDINGS OF FACT

 

  1. You filed a claim for benefits under Part B of the EEOICPA on March 6, 2002.

 

  1. You were diagnosed with chronic beryllium disease, bladder cancer and throat cancer.

 

  1. You were employed with Iowa Ordnance Plant in Burlington Iowa from March 19, 1951 through March 28, 1991.

 

  1. On August 29, 2003, the FAB issued a final decision finding that you were a covered beryllium employee and you were awarded compensation benefits pursuant to Part B of the EEOICPA.

 

  1. On January 24, 2006, the FAB issued a final decision which concluded that you were a covered employee with cancer and you were awarded medical benefits under Part B and Part E for cancer of the throat and cancer of the bladder.

 

  1. You contracted chronic beryllium disease, throat cancer and bladder cancer through exposure to a toxic substance at a DOE facility site, which resulted in whole body impairment. 

 

  1. You have a 94% whole body impairment due to the combination of your chronic beryllium disease, throat cancer and bladder cancer, resulting in impairment compensation totaling $235,000.  

 

  1. You never received any payment from a lawsuit or tort settlement for your diagnoses of chronic beryllium disease, throat cancer and bladder cancer. 

     

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

 

CONCLUSIONS OF LAW

 

Section 30.310(a) of the EEOICPA implementing regulations provides that “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).

 

Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a).  On March 8, 2006, the FAB received written notification from you waiving any and all objections to the recommended decision. 

 

Pursuant to § 7385s-4 of the EEOICPA, “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 Department of Energy facility.”  42 U.S.C. § 7385s-4(a).  You received an award for compensation under Part B for CBD, and it is therefore determined that you are a covered DOE contractor employee who contracted CBD through exposure at a DOE facility. 

 

Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, you have a permanent impairment of 94% determined in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment.  Your gross compensation amount for that impairment rating is $2500 multiplied by 94, or $235,000 pursuant to 42 U.S.C. § 7385s-2 (a)(1), 20 C.F.R. § 30.902. 

 

You are entitled to medical benefits for chronic beryllium disease effective March 6, 2002, pursuant to 42 U.S.C. § 7385s-8 of the Act.

 

Denver, Colorado

 

 

Sandra Vicens-Pecenka

Hearing Representative

Final Adjudication Branch

 

 



[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Iowa Ordnance Plant in Burlington, IA is a covered DOE facility from 1947 to 1974.