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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]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

26618-2006

26619-2006

DECISION DATE:

June 27, 2006

 

NOTICE OF FINAL DECISION

 

This is a decision of the Final Adjudication Branch concerning your claims 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 set forth below, your claims are accepted for $75,000 each, for a total of $150,000.

 

STATEMENT OF THE CASE

 

On November 27, 2001, your late father, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1, Claim for Benefits, for his prostate cancer, kidney cancer, and lung cancer.  Unfortunately, he died on March 12, 2002, prior to the adjudication of his claim.  On April 5, 2002, you both filed a Form EE-2, Claim for Survivor Benefits, for the employee’s prostate cancer, kidney cancer, and lung cancer.

 

An April 22, 1981 pathology report, signed by W. Allen Loy, M.D., establishes that the employee was diagnosed with urothelial carcinoma (bladder cancer).  A June 9, 1995 pathology report (based on a June 6, 1995 biopsy), signed by Rebecca L. Foust, M.D., establishes that the employee was diagnosed with carcinoma of the left renal pelvis.  An October 20, 2001 discharge summary, signed by William Hall, M.D., establishes that the employee was diagnosed with cancer of the right lung.[1] 

 

On the Form EE-3, Employment History, the employee stated he was employed as a development engineer by Tennessee Eastman Corporation (TEC) and Union Carbide Corporation Nuclear Division at the Y-12 plant in Oak Ridge, Tennessee, from 1944 to 1963.  The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12 plant from March 6, 1944 to July 1, 1963.  The Oak Ridge Institute for Science and Education (ORISE) database shows the employee worked as a chemist from March 6, 1944 to August 5, 1944; as a shift foreman from August 6, 1944 to March 22, 1947; and as a chemist from March 23, 1947 to May 31, 1949.

 

The October 20, 2003 draft summary of the Computer Assisted Telephone Interview (CATI) performed by NIOSH provides additional information about the employee’s job duties.  You stated during the CATI that in 1944, he worked in building 9202.  He was involved in uranium preparation and salvage.  He also managed the stable isotope assay laboratory.  It appears that he managed the laboratory starting in 1949. 

 

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort, (SEC) based on work performed in uranium enrichment, or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

 

In support of your claim for survivorship, you submitted the death certificates of the employee, which showed that he died on March 12, 2002, and that he was a widower at the time of his death.  In addition, you both submitted your birth certificates showing that you are the children of the employee, and [Claimant #2] submitted her marriage certificate documenting her name change.

 

On March 21, 2006, the Jacksonville district office issued a recommended decision, concluding that you were each entitled to compensation in the amount of $75,000 under Part B, for a total of $150,000.  The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision. 

 

FINDINGS OF FACT

 

  1. On November 27, 2001, your late father, [Employee], hereinafter referred to as “the employee, filed a Form EE-1, Claim for Benefits, for his prostate cancer, kidney cancer, and lung cancer.  Unfortunately, he died on March 12, 2002, prior to the adjudication of his claim.  On April 5, 2002, you both filed a Form EE-2, Claim for Survivor Benefits, for the employee’s prostate cancer, kidney cancer, and lung cancer.

 

  1. The employee was diagnosed with bladder cancer on April 22, 1981 (more than 5 years after his first exposure); cancer of the renal pelvis on June 6, 1995; and cancer of the right lung on October 20, 2001.  Cancer of the renal pelvis, as a part of the ureter, is considered by our office to be a form of bladder cancer rather than a form of kidney cancer.[2]

 

  1. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant in Oak Ridge, Tennessee, from March 6, 1944 to July 1, 1963.  The employee worked as a chemist from March 6, 1944 to August 5, 1944; as a shift foreman from August 6, 1944 to March 22, 1947; and as a chemist from March 23, 1947 to May 31, 1949.  Given that he worked as a chemist both before and after the period he worked as a shift foreman, it can be assumed that his duties as a shift foreman were similar to those performed as a chemist.

 

  1. You are the employee’s children.  The employee was widowed at the time of his death.

 

CONCLUSIONS OF LAW

 

You each meet the definition of a survivor under Part B of the Act.  42 U.S.C. § 7384s(e)(3)(A).

 

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental guidance for processing claims for the Special Exposure Cohort (SEC) class for the Y-12 plant.  That bulletin establishes that the primary function of Y-12 during 1943 to 1947 was to perform uranium enrichment using a calutron.  The employee’s job duties as a chemist and shift foreman involved processes associated with uranium enrichment operations, including uranium preparation and salvage.  (Although the employee’s work as a manager of the isotope laboratory occurred after 1947, it provides a clearer picture of what his duties may have been as a chemist.)  In addition, building 9202 was a Y-12 plant location involving uranium enrichment operations. [3]

 

The evidence shows that the employee worked at the Y-12 plant from March 6, 1944 through December 31, 1947, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities.[4]  Therefore, the employee qualifies as a member of the SEC.  As a member of the SEC who was diagnosed with lung cancer and bladder cancer, which are “specified cancers” pursuant to the Act and constitute “occupational illnesses” under the Act, the employee or the employee’s survivor(s) qualify for benefits as a “covered employee with cancer.”  42 U.S.C. §§ 7384l(17)(A), 7384l(15), 7384l(9); 20 C.F.R. §§ 30.5(ff)(2), 30.5(ff)(5)(iii)(K) (2005).  Therefore, I conclude that you are entitled to $75,000 each, for a total of $150,000, for the employee’s lung cancer and bladder cancer, pursuant to the Act.  42 U.S.C. § 7384s(a).

 

In addition, since the employee filed the claim for benefits prior to his death, you are entitled to seek reimbursement for out-of-pocket medical expenses and/or payment of any outstanding medical expenses for the employee’s lung cancer, bladder cancer, and cancer of the renal pelvis from November 27, 2001 (the date he filed his claim) to March 12, 2002 (the date of his death).

 

Jacksonville, Florida

 

 

Mark Stewart

Hearing Representative

 



[1] Although a pathology report shows that cancer was discovered in the employee’s prostate on May 27, 1981, it is unclear whether the cancer was a primary cancer or a secondary cancer metastasized from the bladder.  However, further development is not necessary to adjudicate the claim. 

[2] EEOICPA Bulletin No. 02-16 (issued June 12, 2002).

[3] EEOICPA Bulletin No. 06-11 (issued June 5, 2006).

[4] EEOICPA Bulletin No. 06-04 (issued November 21, 2005).