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:

28416-2004

DECISION DATE:

March 14, 2005

 

 

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  For the reasons stated below, your claim for benefits is denied.

 

STATEMENT OF THE CASE

 

On April 29, 2002, you filed a claim for benefits under Part B of the Act.  You listed bladder cancer as the medical condition on which your claim is based.  You provided medical evidence to support the claimed medical condition.  The first date of diagnosis of the cancer is November 19, 2001, as shown on the pathology report.

 

Your employment history Form, EE-3, states that you were employed at the Y-12 plant in Oak Ridge, TN, from July 1970 to March 2000.  The Department of Energy (DOE) confirmed your employment dates as July 13, 1970 to March 27, 2000. 

 

To determine the probability that you sustained cancer in the performance of duty, the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Y-12 plant.  On May 3, 2004, 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 May 10, 2004, NIOSH provided the district office with a copy of the dose reconstruction.  The report states that 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.

 

Pursuant to Subpart E of the Department of Health and Human Services’ regulations, 42 C.F.R part 81, the district office used the information provided in this report to determine that there was a 22.18% probability that your bladder cancer was caused by radiation exposure at the Y-12 plant. 

 

On May 18, 2004, the Denver district office issued a recommended decision to deny your claim for compensation benefits.  Based on the evidence contained in the case record, the district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.26; the probability of causation calculation was completed in accordance with 42 U.S.C. § 7384n(c)(3) and 42 C.F.R. part 81; and you are not entitled to compensation as outlined under 42 U.S.C. § 7384n(b).

 

OBJECTIONS

 

On July 19, 2004, the Final Adjudication Branch received your letter of objection which was postmarked on July 17, 2004.  You objected to the recommended decision and requested an oral hearing to present your objections.  You stated your objection as:  “I worked over all of Y-12. Contact with different substances, materials, etc.  I ate my lunch, took breaks, smoked cigarettes in areas in the 1970 – 80s, which now you have to have training and pass a test, plus wear specific EGP to enter the areas.”  An oral hearing was held on October 13, 2004, in Oak Ridge, TN. 

 

At the hearing, you reiterated the original stated objection (See Hearing Transcript (HT) pages 13-15); you testified that you have had recurrences of the bladder cancer (See HT pages 9 and 10); you testified that there is no history in your family of cancer (See HT page 11.); you described areas in which you worked, specifically with the roof crews and in the biology department at the “mouse house.” (See HT pages 12 and 13).  The objections to be addressed are:   

  1. “I worked over all of Y-12.  Contact with different substances, materials, etc.  I ate my lunch, took breaks, smoked cigarettes in areas in the 1970 – 80s, which now you have to have training and pass a test, plus wear specific EGP to enter the areas.”
  2.  

  3. You have had recurrences of bladder cancer.
  4.  

  5. There is no family history of bladder cancer.
  6.  

  7. You discussed working on roof crews at Oak Ridge.  Also, mentioned working in the biology department at the “mouse house.” 

 

Additionally, you testified that you had been diagnosed with skin cancer in the past and you were attempting to obtain the documentation which reflects that you had skin cancer (See HT pages 10-11).  

 

Your first and fourth objections concern the accuracy of the dose reconstruction and its consideration of the workplace environment.  A review of the dose reconstruction report shows that DOE dosimetry records were used as a starting point in determining your external and internal doses.  In addition, the dosimetry records provide information relating to where the claimant worked.  These records provide an indication of your dose since the dosimeter and bioassay measurements detect radiation in the work environment, i.e., your dose is recorded regardless of where you worked at the Y-12 plant.  NIOSH assigned you maximized missed doses.  For dose reconstruction purposes, the term “missed dose” represents the dose that could have been received, but may not have been recorded due to the dosimeter detection limits or site reporting practices.  In addition, the dose received from diagnostic medical X-ray procedures that were required as a condition of employment was included in the overall estimate of the dose to the prostate and the colon.  Maximizing dose conversion factors were used to convert potential whole body exposure dose to dose to the bladder. (See dose reconstruction report (DR) pages 5 through 7.)

 

The dose reconstruction report shows that NIOSH reviewed internal dose monitoring records. NIOSH states that there were no bioassay results greater than the minimum detectable activity for the bioassay methods used were recorded in the DOE record. To ensure that your internal dose was overestimated, internal dose from an assumed hypothetical intake was assigned by NIOSH based on the Technical Information Bulletin: Maximum Internal Dose Estimates for Certain DOE Complex Claims.  The hypothetical intake is composed of 28 radionuclides and exceeds any possible actual intake, as the level of activity necessary to generate such an intake is likely to have been detectable by workplace indicators. Additionally, these nuclides would not all be found in a single location on site.  (See DR page 6)

 

A review of the dose reconstruction report shows that for the purposes of the dose reconstruction, NIOSH assigned you the highest reasonably possible radiation dose to the bladder related to radiation exposure and intake using available dosimetry data, when available, and maximizing assumptions in the absence of documented exposures.  As noted above, dosimeter and bioassay measurements detect his radiological exposure in the work environment, i.e., measurements are made and recorded regardless of where he worked at the Y-12 plant, and this addresses the issues in these two objections.  The NIOSH approach is based on current science, documented experience and relevant data.  Objections 1 and 3 relate to the methodology used by NIOSH to complete the dose reconstruction.

 

The second objection relates to three recurrences of the bladder cancer.  The file indicates that the district office initially reported to NIOSH that you had been diagnosed with two primary bladder cancers: one in November 2001 and the other in September 2002.  The pathology report dated September 18, 2002, states that you were diagnosed with “recurrent” bladder cancer.  At the hearing you provided a letter from Dr. Jeff E. Flickinger dated August 26, 2004 which states that you have been diagnosed with “superficial bladder cancer, originally in 2001.  The last recurrence he had was on May 2002.”  On November 17, 2004, the undersigned received the packet of medical reports you sent on November 12, 2004.  The packet includes the previously submitted and considered pathology reports dated November 19, 2001 and September 18, 2002.  You also provided copies of pathology reports which were not previously in the file, as follows:

 

Pathology report as a result of a colon screen dated December 6, 2002, provides a diagnosis of hyperplastic polyp.   

 

Pathology report dated May 7, 2003, shows a diagnosis of recurrent bladder tumor.

 

Pathology report resulting from a urine sample dated December 4, 2003, states that there were no malignant cells identified.

 

Your fourth objection concerns your statement that there is no family history of bladder cancer.  It is a scientific fact that ionizing radiation may cause some cancers, but no one can be certain in any specific case.  The software program, named the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP), is based on NIOSH regulations found at 42 C.F.R. part 81 and uses the updated version of radioepidemiological tables developed by the National Institutes of Health as a basis for determining probability of causation for employees covered under EEOICPA.  NIOSH-IREP allows claims examiners to apply the National Cancer Institute risk models directly to data for an individual claimant. 

 

 Scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  If research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation. 

 

The probability of causation (PoC) means the probability or likelihood that a cancer was caused by radiation exposure incurred by a covered employee in the performance of duty.  The PoC is calculated as the risk of cancer attributable to radiation exposure (RadRisk) divided by the sum of the baseline risk of cancer to the general population 42 C.F.R. § 81.4(n).  The Department of Labor (DOL) uses NIOSH-IREP to estimate the probability that an employee’s cancer was caused by his/her individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens.   

 

NIOSH-IREP allows DOL to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the PoC.  Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual.  As required by the EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses.  This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.   

 

Factors which may or may not potentially predispose an employee to the carcinogenic effects of radiation to the affected site, such as family history of cancer, exposure to other toxic substances, or the effect that radiation dose to other organs/tissues may have on the dose directly to the primary cancer site, are not part of the NIOSH-IREP model.  Objection three relates to the probability of causation portion of the dose reconstruction methodology.

 

FINDINGS OF FACT

 

  1. You filed a claim for benefits under Part B of the EEOICPA on April 29, 2002.

 

  1. You were employed at the Y-12 plant from July 13, 1970 to March 27, 2000. 

 

  1. The first diagnosis of bladder cancer was made on November 19, 2001, after you began employment at a covered facility.

 

  1. The medical evidence in the file establishes that you have been diagnosed with one primary cancer, bladder cancer.

 

  1. NIOSH reported annual dose estimates for your bladder cancer from the date of initial radiation exposure during covered employment, to the date of the cancer’s first diagnosis.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated January 30, 2004.

 

  1. The undersigned has verified that there is a 22.18% probability that the bladder cancer was caused by your occupational radiation exposure during your covered employment at the Y-12 plant.

 

  1. The probability of causation value is less than 50%, and shows that your cancer is not “at least as likely as not” related to employment at the covered facility.

 

  1. You submitted additional evidence after the hearing.

 

  1. You have not submitted any comments to the hearing transcript, a copy of which was sent to you on November 1, 2004.

 

  1. You have not submitted any evidence relating to skin cancer.

 

CONCLUSIONS OF LAW

 

The record contains sufficient evidence to support that you have been diagnosed with bladder cancer.  Therefore, to determine the probability of whether you sustained cancer in the performance of duty, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Y-12 plant, in Oak Ridge, TN.  The dose reconstruction is used by the Department of Labor to determine the probability that the claimed cancer is related to employment at a covered facility.  

 

The National Institute for Occupational Safety and Health (NIOSH) has full authority under the regulations to complete the dose reconstruction as prescribed in its rules.  If a claimant objects to the dose reconstruction, the Final Adjudication Branch will evaluate the factual findings upon which NIOSH based the dose reconstruction.  See 20 C.F.R. § 30.318(a). 

 

Objection two relates to district office’s use of the first date of the diagnosis of bladder cancer to calculate the probability that your bladder cancer was caused by radiation exposure during your employment at the Y-12 plant.  I find that the district office’s calculation of the probability of causation for the primary bladder cancer diagnosed on November 19, 2001 is in accordance with current policy and procedures. 

 

Objections one, three and four relate to the choice by NIOSH of the dose reconstruction methodology.  The regulations promulgated by the Department of Health and Human Services (DHHS) leave the determination of methodology to NIOSH.  In accordance with 20 C.F.R. § 30.318(b), these objections can not be addressed by the Final Adjudication Branch.  

 

I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on your objections.  As explained in § 30.110(b) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). 

 

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

 

Washington, DC

 

 

 

Linda M. Parker

Hearing Representative