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]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

3201-2004

37942-2004

38324-2004

DECISION DATE:

September 24, 2004

 

NOTICE OF FINAL DECISION

 

This is the 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 stated below, three claims for survivor benefits are accepted.

 

STATEMENT OF THE CASE

 

Three claims were filed by the surviving children of [Employee] (the employee) under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  [Claimant 1] filed on August 16, 2001.  [Claimant 2] filed on November 1, 2002.  [Claimant 3] filed on November 15, 2002.  On Form EE-3 (Employment History for Claim under EEOICPA) it was stated that the employee had worked as a machinist for Union Carbide & Carbon Corporation at the Y-12 Plant located in Oak Ridge, Tennessee during the 1970’s. The Department of Energy (DOE) has identified the Y-12 Plant as a DOE facility from 1942 through the present time.  On December 5, 2001, the DOE verified the following employment dates for the employee at the Y-12 Plant from August 24, 1953 until January 13, 1961, May 29, 1961 until January 28, 1965 and March 1, 1971 until January 28, 1972. You each stated that as a result of his employment exposure to radiation at the Y-12 Plant, the employee developed lung cancer on February 17, 2000.  You submitted a death certificate for the employee that indicated he was divorced at the time of his death.  You also provided birth records, and where appropriate, marriage records for the children of the employee. 

 

You submitted medical evidence in support of the claims.  This evidence included the employee’s death certificate that indicated the immediate cause of death on April 23, 2000 was non-small cell carcinoma of the lung (lung cancer).  The evidence also included a pathology report describing a biopsy specimen of a right lung mass that was obtained on April, 10, 2000 and provided a diagnoses for the employee of well-differentiated adenocarcinoma (lung cancer). 

 

The district office evaluated the medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction for the primary cancer.  A copy of the case file and the NIOSH Referral Summary Document were forwarded to NIOSH for dose reconstruction on March 16, 2002.  An amended referral to include a smoking history questionnaire, indicating that at the time of diagnosis the employee was a current smoker consuming 10-19 cigarettes per day, was sent to NIOSH on July 11, 2003. 

 

To expedite this claim, NIOSH used only the internal radiation dose to the lungs.  The cumulative dose to the lungs, including the external dose, was not evaluated for the lung cancer.  Per the provisions in 42 C.F.R. § 82.10(k)(1), it was determined that the reconstructed internal dose was of sufficient magnitude to consider the dose reconstruction complete.  Therefore, NIOSH reported that the dose information is a reasonable underestimate of the total occupational radiation exposure to the employee while he was employed at the Y-12 Plant.   On June 1, 2004, each of the claimants signed Form OCAS-1, indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH and that NIOSH should forward the final dose reconstruction report to the Department of Labor (DOL) to complete adjudication of their claims. 

 

The completed NIOSH Report of Dose Reconstruction under EEOICPA was forwarded to the district office on June 18, 2004.  The report provided radiation dose estimates of 71.440 rem to the employee’s lung.  Based on the dose estimate, the probability of causation calculation was completed by the district office claims examiner using NIOSH-IREP, which is an interactive software program.  Pursuant to §§ 81.21 and 81.22 of the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 56.66% probability that the employee’s cancer was caused by radiation exposure related to his employment at the Y-12 Plant. 

 

On August 19, 2004, the Denver district office issued a recommended decision indicating the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) of EEOICPA and 42 C.F.R § 82.10.  The probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3) of EEOICPA and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.  The recommended decision concluded that each claimant was entitled to compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384s(a). 

 

On August 30, 2004, the Final Adjudication Branch received written notification from each of the three claimants stating that they waived any and all objections to the recommended decision.

 

After reviewing the evidence in the claims, the Final Adjudication Branch makes the following:

 

FINDINGS OF FACT

 

1.      The following individuals filed claims for compensation as the surviving children of the employee on the dates indicated.  [Claimant 1] filed on August 16, 2001.  [Claimant 2] filed on November 1, 2002.  [Claimant 3] filed on November 15, 2002.

 

2.      The Department of Energy (DOE) verified the employment dates of the employee at the Y-12 Plant from August 24, 1953 until

January 13, 1961, May 29, 1961 until January 28, 1965 and March 1, 1971 until January 28, 1972.

 

3.      The employee was diagnosed with lung cancer on April 10, 2000, after he began employment at the Y-12 Plant.

 

4.      NIOSH reported only a partial dose reconstruction to the lung, since it was shown that the employee’s lung cancer met the “at least as likely as not” (a 50% or greater probability) threshold required under the EEOICPA that his cancer was caused by radiation doses incurred while employed at the Y-12 Plant.  A summary and explanation of information and methods applied

to produce this dose estimate, including the claimants’ involvement through interviews and reviews of the dose report, are documented in the NIOSH Report of Dose Reconstruction dated as approved on May 24, 2004.           

 

5.      Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that a cancer was caused by radiation exposure incurred by the employee while working at the Y-12 Plant) was calculated for the employee’s primary cancer.  The calculation was completed by a district office claims examiner and was independently verified by a Final Adjudication Branch claims examiner.  The probability of causation values were determined using the upper 99% credibility limit, which helps minimize the possibility of denying claims to employees with cancers likely to have been caused by occupational radiation exposures.  It was shown that the employee’s lung cancer was 56.66% and met the “at least as likely as not” (a 50% or greater probability) threshold required under the EEOICPA that his cancer was caused by radiation doses incurred while employed at the Y-12 Plant. 

 

Based on the above noted findings of fact in the claims, the Final Adjudication Branch also makes the following:

 

CONCLUSIONS OF LAW

 

1.      The dose reconstruction estimate was performed in accordance with 42 U.S.C. § 7384n(d) of EEOICPA and 42 C.F.R. § 82.10.

 

2.      The probability of causation calculation was completed in accordance with 42 U.S.C. § 7384n(c)(3) of EEOICPA and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.

 

3.      Based on the 56.66% probability of causation it is “at least as likely as not” that the employee’s lung cancer was caused by his employment at a covered facility, the Y-12 Plant, within the meaning of 42 U.S.C. § 7384n(b) of the Act.

 

4.      The evidence establishes that the employee was a covered employee pursuant to 42 U.S.C. § 7384l(1).

 

5.      The employee meets the criteria of a covered employee with cancer, specifically, that his cancer was at least as likely as not related to the employment.  42 U.S.C. §§ 7384l(1)(B) and 7384l(9)(B)(ii)(II).

 

6.      You each have established that you are current eligible survivors of the employee pursuant to 42 U.S.C. § 7384s(e).

 

            7.   You are each entitled to compensation in the amount of $50,000.

 

The undersigned has thoroughly reviewed the case record and finds that three claims are accepted.

 

Denver, Colorado

September 24, 2004

 

 

 

Janet R. Kapsin

Hearing Representative