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:

100053690-2005

3831-2005

DECISION DATE:

August 10, 2005

 

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch 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, the Final Adjudication Branch accepts and approves your claim for compensation. 

 

STATEMENT OF THE CASE

 

On August 16, 2001, you ([Claimant #1/Employee’s Spouse] and [Claimant #2]) filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employee’s condition of acute myelomonocytic leukemia.  Also, on January 26, 2005, you (Employee’s Spouse) filed a Form DOE F 350.3 (Claim Under EEOICPA, Part D-DOE State Workers’ Compensation Assistance Program), as the surviving spouse of the employee, based on the condition of acute myelomonocytic leukemia.  Your claim form is considered an application for survivor compensation under Part E, 42 U.S.C. § 7385s, as a covered spouse of the employee.

 

Also submitted was a Form EE-3 (Employment History) indicating that the employee worked at the Los Alamos National Laboratory from February 24, 1959 to December 1, 1975, and at the Hanford site from December 8, 1975 to May, 1981.  A representative of the Department of Energy (DOE) verified that the employee was employed by the University of California, a DOE contractor, at the Los Alamos National Laboratory from February 24, 1959 to December 1, 1975; and by Vitro Engineering Corp. and Exxon Nuclear, DOE contractors, at the Hanford site from December 8, 1975 to May 1, 1981.

 

Medical documentation was submitted including a pathology report dated May 1, 1982, which indicated a diagnosis of acute myelomonocytic leukemia.  

 

The record includes a copy of a marriage certificate showing [Employee’s Spouse] and the employee were married on December 18, 1968, and a copy of [Employee’s] death certificate showing they were married at the time of his death on December 10, 1982.  The death certificate listed his cause of death as pseudomonas pneumonia due to chemotherapy-induced neutropenia as a consequence of acute myelomonocytic leukemia (AMML).

 

You ([Claimant #2]) submitted a copy of your birth certificate, dated March 4, 1973, showing that [Employee] was your father.  You also submitted a marriage certificate documenting your most recent last name change to [Claimant #2’s new surname]

 

To determine the probability of whether [Employee] sustained acute myelomonocytic leukemia in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA  regulations.  See 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated May 6, 2005.  See 42 U.S.C. § 7384n(d).  The radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction.  NIOSH determined that the internal dose was of sufficient magnitude to consider the dose reconstruction complete.  That is, the calculated dose produced a probability of causation of 50% or greater.  The doses reported are an “underestimate” of the employee’s total occupational radiation dose.  NIOSH Report of Dose Reconstruction, p. 4.

 

Using the information provided in this report, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer and reported in its recommended decision that there was an 89.18% probability that [Employee’s] cancer was caused by his radiation exposure at the Los Alamos National Laboratory.

 

The evidence of record includes a letter dated June 17, 2005, in which you ([Employee’s Spouse]) indicated that neither you nor your spouse had filed a lawsuit or received state workers’ compensation based on the claimed conditions.  Further you indicated that you and your spouse had no minor children or children incapable of self-support, who were not your natural or adopted children, at the time of his death.  

 

On July 12, 2005, the Seattle district office issued a recommended decision to accept your claim based on the condition of acute myelomonocytic leukemia and to award you ([Employee’s Spouse]) compensation in the amount of $300,000.00.  The district office concluded that the employee is a covered employee under 42 U.S.C. § 7384l(1)(B); and was a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(B).  Further, the National Institute for Occupational Safety and Health performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10; and the Department of Labor completed the probability of causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.  In addition, the employee is a covered employee under 42 U.S.C. § 7385s(1), and is a covered employee with a covered illness as that term is defined by 42 U.S.C. § 7384s(2).

 

The district office determined that [Employee’s Spouse] is entitled to compensation in the amount of $150,000.00 per 42 U.S.C. § 7384s(a)(1), as [Employee’s Spouse] is the spouse of the employee per 42 U.S.C. § 7384s(e)(3)(A) and 42 U.S.C. § 7385s-3(d)(1); and [Employee’s Spouse] is entitled to compensation in the amount of $150,000 in accordance with 42 U.S.C. § 7385s-3(a)(1), for a total amount of $300,000.00.  Lastly, the District Office concluded that [Claimant #2] is not entitled to compensation under 42 U.S.C. § 7384 or  42 U.S.C. § 7385s as she is the child of [Employee’s Spouse] and the employee.

 

On July 19, 2005, the Final Adjudication Branch received written notification from you ([Employee’s Spouse] and [Claimant #2]) indicating that you waive all rights to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision. 

 

FINDINGS OF FACT

 

1.         On August 16, 2001, you ([Employee’s Spouse] and [Claimant #2]) filed a claim for survivor benefits with the Department of Labor.

 

2.         On January 26, 2005, you ([Employee’s Spouse]) filed a claim for survivor benefits with the Department of Energy.

 

3.         The employee worked for University of California at Los Alamos National Laboratory, a covered DOE facility, from February 24, 1959 to December 1, 1975; and for Vitro Engineering Corp. and Exxon Nuclear at the Hanford facility from December 8, 1975 to May 1, 1981

 

4.         The employee was diagnosed with acute myelomonocytic leukemia on May 1, 1982, after starting work at a DOE facility. 

 

5.         The NIOSH Interactive RadioEpidemiological Program indicated an 89.18% probability that the employee’s cancer was caused by radiation exposure at the Los Alamos National Laboratory.

 

6.         The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility.

 

7.         You ([Employee’s Spouse]) were married to the employee on December 18, 1968, and you were the employee’s spouse at the time of his death. 

 

8.         You ([Claimant #2]) are a child of the employee and were an adult at the time of his death.

 

9.         The death certificate lists the cause of [Employee’s] death as pseudomonas pneumonia due to chemotherapy-induced neutropenia as a consequence of acute myelomonocytic leukemia (AMML).

 

10.       The evidence of record supports a causal connection between the employee’s death due to lung cancer and his exposure to radiation and/or a toxic substance at a DOE facility. 

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the 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 waived your right to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision. 

 

The Final Adjudication Branch calculated the probability of causation for the employee’s acute myelomonocytic leukemia using the NIOSH IREP software program, confirming that there is an 89.18% probability that the employee’s cancer was caused by radiation exposure while employed at the Los Alamos National Laboratory.  See 42 C.F.R. § 81.20 et seq.  Thus, the evidence shows that the employee’s acute myelomonocytic leukemia was at least as likely as not related to his employment at the Los Alamos National Laboratory.

 

Under the EEOICPA, eligibility is based on survivorship status.  If an employee is survived by a spouse, children are not eligible under Part B.  See 42 U.S.C. §§ 7384s(e)(1)(A), (3)(A).  Further, if the child is an adult child of the employee at the time of death, the child is not eligible for compensation under Part E.  See 42 U.S.C. § 7385s-3(c).  The evidence of record indicates the employee was survived by a spouse ([Employee’s Spouse]); therefore, [Claimant #2] is not an eligible survivor.

 

The evidence of record establishes that the employee was diagnosed with acute myelomonocytic leukemia, an “occupational illness” as defined by 42 U.S.C. § 7384l(15).  The employee was a covered employee under 42 U.S.C. § 7384l(1)(B), and was a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(B).  You ([Employee’s Spouse]) are the employee’s eligible surviving spouse as defined by 42 U.S.C. § 7384s(e)(3)(A) and you are entitled to compensation benefits in the amount of $150,000.00 pursuant to 42 U.S.C. § 7384s(a)(1). 

 

Further, the evidence of record also establishes that the employee was diagnosed with a “covered illness,” acute myelomonocytic leukemia, as defined by 42 U.S.C. § 7385s(2).  The employee contracted that “covered illness” through exposure to radiation at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The employee was a DOE contractor employee as defined by 42 U.S.C. § 7385s(1).  

 

The employee had wage-loss for a period of more than 10 calendar years, but less than 20 calendar years.  He passed away at age 49, 16 years prior to his normal retirement age of 65, and there was an aggregate period of not less than 10 years before the employee attained normal retirement age (for purposes of the Social Security Act) that he died, and the employee did not have an annual wage.  You are the employee’s eligible surviving spouse as defined by 42 U.S.C. § 7385s-3(d)(1), and you are entitled to compensation benefits in the amount of $150,000.00 pursuant to 42 U.S.C. § 7385s-3(a)(2) (Category Two).  Accordingly, you are entitled to compensation in the full amount of $300,000.00.

 

 

 

Seattle, Washington,

 

 

 

 

____________________________________________________

Rosanne M. Dummer, District Manager

Final Adjudication Branch