|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
April 5, 2006
NOTICE OF FINAL DECISION AND REMAND ORDER
This is the 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 set forth below, your claim for compensation and medical benefits under Part B of the Act is accepted for the condition of lung cancer. Your claim for benefits for the conditions of skin lesions, and loss of sensation in fingertips are denied under Part B of the Act. Your claim for additional benefits under Part E of the Act is remanded to the district office for further development.
STATEMENT OF THE CASE
On May 10, 2002, you filed a claim for compensation (Form EE-1) under Part B and a request for review by medical panels (OWA1-7/6/01) under Part D of the EEOICPA. Your claims identified lung cancer, skin lesions, and loss of sensation in fingertips as the claimed conditions resulting from your employment at a Department of Energy (DOE) facility. You filed an Employment History (Form EE-3) claiming employment as a laborer for roads and grounds at the Paducah Gaseous Diffusion Plant (GDP) from June 1962 to August 1962 and again from June 1963 to August 1963.
The Department of Energy (DOE) verified your employment from June 11, 1962, to August 31, 1962, and again from June 10, 1963, to August 30, 1963. The Paducah GDP is a covered DOE facility from 1951 to July 28, 1998, and in remediation from July 29, 1998 to the present (See the Department of Energy’s worker’s advocacy facility listings at: http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm; verified by the FAB on April 4, 2006).
On June 3, 2002, the district office sent you a letter acknowledging your claim and advising you that skin lesions and loss of sensation in fingertips were not occupational illnesses under Part B of the Act. That letter requested medical records to substantiate a covered condition under the Act.
In support of your claim you submitted medical records including a copy of an October 30, 1997 pathology report signed by Moacyr Da Silva, M.D., providing a diagnosis of “small cell neuroendocrine carcinoma of lung intermediate cell type.”
To determine if your cancer was “at least as likely as not” sustained in the performance of your duty at a covered facility, (known as determining the probability of causation or “PoC”), on January 14, 2003, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.
On September 20, 2005, NIOSH completed the dose reconstruction and sent a draft copy of the report to you to review. On September 30, 2005, NIOSH received your signed Form OCAS-1, indicating that you had received the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you had provided. On that same date, NIOSH forwarded a copy of the completed dose reconstruction report to the district office.
Based on the dose estimate, the probability of causation for your cancer was calculated by the district office claims examiner using NIOSH-IREP (Interactive RadioEpidemiological Program). NIOSH-IREP is a computer software application developed by NIOSH in collaboration with the National Cancer Institute. This computer software is a science-based tool that allows the DOL to determine the probability that a cancer was caused by a person's radiation dose. The district office determined that the probability that your cancer was related to your employment was 53.72%.
On October 28, 2004, the President signed into law an amendment abolishing Part D of EEOICPA and replacing it with a new program called Part E. The law gave the Department of Labor the responsibility for administering the new program. As a result, Part D of your claim was developed under the new Part E provisions by the Jacksonville district office.
On February 22, 2006, the Jacksonville district office issued a recommended decision finding in pertinent part that you were a covered DOE employee at the Paducah GDP from June 11, 1962, to August 31, 1962, and again from June 10, 1963 to August 30, 1963; that you were diagnosed with neuroendocrine carcinoma of lung after you began covered employment; that based on the NIOSH dose reconstruction, the probability of causation (PoC) revealed that your cancer was at least as likely as not caused by your employment at a DOE facility. The decision concluded that you were entitled to $150,000 compensation under Part B as well as medical benefits under Parts B and E of the EEOICPA for your lung cancer effective May 10, 2002.
On March 6, 2006, the FAB received your signed waiver of your right to object to any of the findings of fact or conclusions of law contained in the recommended decision.
On April 4, 2006, you stated that you have not filed a tort suit in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA and that you have not received any settlement or award from a claim or suit against a third party in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA.
Following an independent review of the evidence of record, the undersigned hereby makes the following:
FINDINGS OF FACT
Based on these facts, the undersigned makes the following:
CONCLUSIONS OF LAW
Section 30.316(a) of EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the Final Adjudication Branch may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a). You have waived your rights to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision.
The EEOICPA was established to provide compensation benefits to covered employees that have been diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors. Part B of EEOICPA, defines an occupational illness as a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be. 42 U.S.C. §§ 7384l(15), 7384l(9)(B). As you worked for the Department of Energy at a covered DOE facility when radiation may have been present, you are a covered DOE employee pursuant to 42 U.S.C. §§ 7384l(9)(B) and 7384n(b).
Compensation may be paid to a covered employee which, under 42 U.S.C. § 7384l(1), includes a “covered employee with cancer.” Since your employment was less than 250 days and you did not qualify for Special Exposure Cohort (SEC) status, a “covered employee with cancer” employed at a DOE facility is eligible for compensation “if and only if, that individual is determined to have sustained that cancer in the performance of duty,” which means “if, and only if,” the cancer was “at least as likely as not” related to employment. 42 U.S.C. §§ 7384l(9)(B) and 7384n.
On April 4, 2006 the FAB calculated the PoC of your lung cancer and determined the PoC was 59.77%.
I have independently reviewed the facts of your case and the recommended decision issued by the Jacksonville district office, and conclude that your lung cancer was “at least as likely as not” sustained in the performance of your duty at a DOE facility as specified by 42 U.S.C. § 7384n (b) of the Act and § 30.210(b) of the EEOICP implementing regulations. 42 U.S.C. § 7384n(b); 20 C.F.R § 30.210(a)(2). You are therefore a “covered employee with cancer” as that term is defined by Part B, 42 U.S.C. § 7384l(9)(B). A covered employee shall receive compensation for the disability in the amount of $150,000. See 42 U.S.C. § 7384s(a).
A covered employee shall receive medical benefits under the EEOICPA for that employee’s occupational illness. 42 U.S.C. § 7384s(b). An individual receiving medical benefits for a covered illness is entitled to the services, appliances, and supplies prescribed or recommended by a qualified physician for that illness, which are likely to cure, give relief, or reduce the degree or the period of that illness. 42 U.S.C. § 7384t(a); 20 C.F.R. § 30.400(a). An individual receiving benefits shall be furnished those benefits as of the date on which that individual submitted the claim for those benefits. 42 U.S.C. § 7384t(d).
Accordingly, you are entitled to compensation in the amount of $150,000 as provided in § 7384s(a) and medical benefits for lung cancer retroactive to the date of your initial filing on May 10, 2002, pursuant to Part B.
Skin lesions and loss of sensation in fingertips are not covered occupational illnesses under Part B of the Act. Therefore, your claim based skin lesions and loss of sensation in fingertips under Part B of EEOICPA is denied.
Part E of EEOICPA provides additional compensation to Department of Energy contractor employees determined to have contracted a covered illness through exposure at a Department of Energy facility. See 42 U.S.C. §§ 7385s, 7385s(1) and 20 C.F.R. § 30.5(p). The evidence of record does not establish that you are a DOE contractor employee of the AEC/DOE, a requirement for eligibility under Part E to qualify for compensation. 42 U.S.C. § 7385s(1). Additional development of the employment evidence may be required to determine if you worked for a contractor of the DOE.
Pursuant to 20 C.F.R. § 30.317, the portion of the recommended decision pertaining to your claim for benefits under Part E of EEOICPA is vacated and remanded to the Jacksonville district office for further development consistent with this order, to be followed by a new recommended decision on your eligibility under Part E of the Act.
Edward W. Feeny
Final Adjudication Branch
 On September 20, 2005, the district office calculated the probability of causation using NIOSH-IREP, version 5.4. Effective February 28, 2006, NIOSH implemented NIOSP-IREP version 5.5. The increased PoC does not change the outcome of your claim, since the result from each version is more than 50%.