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:

41882-2007

10066545-2007

10067351-2007

DECISION DATE:

December 21, 2007

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim filed by [Claimant #1] is accepted under Part B and Part E of EEOICPA.  The claim filed by [Claimant #2] under Part E is denied.

 

STATEMENT OF THE CASE

 

On April 5, 2002, [Claimant #2] filed a Form EE-2 claiming for survivor benefits under EEOICPA as a surviving child of [Employee].  On February 19, 2003, [Claimant #1] filed also filed a Form EE-2 as the surviving spouse of the employee.  They both identified lung cancer as the diagnosed condition of the employee. [Claimant #2] submitted an employment history, Form EE-3, completed on October 25, 2001 by [Individual with same surname as Employee], which indicated that the employee worked for Atomics International, in the Santa Susana Hills, from 1958 to 1964, and for Gulf General Atomics in San Diego, California and Idaho Falls, Idaho, from 1964 to an unknown date.

 

The Department of Energy (DOE) verified that the employee worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.   General Atomics confirmed that the employee worked for General Atomics from October 19, 1964 to September 8, 1972, and that during this period the employee did some work at Gulf in Idaho Falls, Idaho.  The Idaho National Engineering & Environmental Laboratory (INEEL), in Idaho Falls, Idaho, confirmed that INEEL had dosimetry data for the employee, and that he might have worked for General Atomics during 1965, 1966 and 1967. 

 

The General Atomics human resources department provided documentation establishing that the employee was monitored for radiation on 9 separate occasions while working at the General Atomics facility in La Jolla, California, in the LINAC complex and the HTGR-Critical Facility, between January 20, 1967 and November 18, 1969.

 

As medical evidence, [Claimant #1 and Claimant #2] submitted numerous medical records, including the following:

                                               

1.      A medical report dated April 21, 1977 from B.M. Kim, M.D., which provides an assessment of primary bronchial carcinoma.

                                                                                               

2.       A copy of a radiation oncology consultation, dated May 9, 1977, from Charles Campbell, M.D., which provides a diagnosis of bronchogenic, large cell, undifferentiated adenocarcinoma. 

 

In support of her claim, [Claimant #2] provided a copy of her birth certificate, indicating that she was born on March 26, 1958, and that [Employee] was her father.  She provided a copy of the employee’s death certificate, indicating that he died on August 28, 1977 at age 43, due to respiratory failure secondary to bronchogenic carcinoma, and that he was married to [Claimant #1’s maiden name] at the time of death.  [Claimant #1] submitted a copy of her marriage certificate that memorialized her marriage to [Employee] on July 1, 1972.  [Claimant #2] and [Claimant #1] provided copies of marriage certificates that document their surname changes.

 

On December 17, 2002, FAB issued a final decision denying the claim of [Claimant #2] under Part B of EEOICPA, as the evidence of record did not establish that the widow of the employee at the time of his death was no longer alive.

 

In a February 16, 2007 report to Congress, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC):

 

Atomic Weapons Employer (AWE) employees who were monitored or should have been monitored for exposure to ionizing radiation while working at the General Atomics facility in La Jolla, California, at the following locations:  Science Laboratories A,B, and C (Building 2); Experimental Building (Building 9); Maintenance (Building 10); Service Building (Building 11); Buildings 21 and 22: Hot Cell Facility (Building 23); Waste Yard (Buildings 25 and 26); Experimental Area (Building 27 and 27-1); LINAC Complex (Building 30); HTGR-TCF (Building 31); Fusion Building (Building 33); Fusion Doublet III (Building 34); SV-A (Building 37); SV-B (Building 39); and SV-D (no building number) for a number of work days aggregating at least 250 work days from January 1, 1960 through December 31, 1969, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

 

The SEC designation for this class became effective on March 18, 2007.

 

On July 30, 2007, the district office sent a letter to [Claimant #2] advising her of the criteria to establish that she is a “covered” child under Part E of EEOICPA and asked her to provide evidence establishing her eligibility as a covered child.  The record reflects that on September 24, 2007, [Claimant #2] advised the district office via a telephone call that she did not meet the eligibility requirements under Part E. 

 

On September 26, 2007, the Seattle district office issued a  recommended decision concluding that [Claimant #2] is not an eligible survivor of the employee under Part E; that the employee is a member of the SEC; that he developed lung cancer, a “specified” cancer, after beginning his employment at General Atomics; that the occupational exposure was at least as likely as not a significant factor in aggravating, contributing to, or causing the employees’ death; that [Claimant #1] is the surviving spouse of [Employee]; and that [Claimant #1] is entitled to survivor benefits under Part B of EEOICPA in the amount of $150,000.00, and under Part E in the amount of $175,000.00, for a total of $325,000.00.

 

The record contains [Claimant #1]’s correspondence of October 3, 2007, advising that she never filed for, or received, any settlements or awards for the claimed condition of lung cancer, from either a civil lawsuit or a state workers’ compensation claim.  She also advised that the employee did not have any children who were not her natural or adopted children at the time of the employees’ death. 

 

The FAB has received separate correspondence from [Claimant #1 and Claimant #2] waiving any objections to the findings of fact or conclusions of law in the recommended decision.

 

Based upon a review of the evidence in the record, I make the following:

 

FINDINGS OF FACT

 

  1. [Claimant #1 and Claimant #2] filed claims for benefits under EEIOCPA as the survivors of [Employee]

 

  1. [Employee] worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964. 

 

  1. [Employee] was employed by General Atomics, an Atomic Weapons Employer, at their La Jolla, California facility, from October 19, 1964 to September 8, 1972.

 

  1. During the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC, where the employee was monitored or should have been monitored for exposure to ionizing radiation.

 

  1. [Employee] was first diagnosed with lung cancer in April 1977.

 

  1. [Claimant #1] is the surviving spouse of the employee, who died on August 28, 1977 (at the age of 43) due to respiratory failure secondary to bronchogenic carcinoma.

 

  1. [Claimant #2] is a biological child of [Employee], and was 19 years old at the time of her father’s death.

 

  1. There is no evidence that [Claimant #2] was a full-time student or incapable of self-support at the time of her father’s death.

 

Based upon a review of the aforementioned facts, FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the implementing regulations provides that if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objection to all or part of the recommended decision, the FAB reviewer may issue a decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a) (2007).  Both claimants have submitted their written waivers.

 

The term “covered” child means a child of the employee who, at the time of the employee’s death, was:  under the age of 18 years; or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years; or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

 

The record establishes that [Claimant #2] was 19 years old at the time of her father’s death.  There is no evidence showing that she was a full-time student or incapable of self-support at the time of her father’s death.  Therefore, FAB concludes that [Claimant #2]’s claim under Part E of EEOICPA must be denied because she does not meet the definition of a “covered” child set out in 42 U.S.C. § 7385s-3(d)(2). 

 

Eligibility for Part B compensation based on cancer may be established by demonstrating that the employee is a member of the SEC who contracted a “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee).  42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

 

The record establishes that during the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC.  The record also establishes that the employee was diagnosed with lung cancer in 1977, which is more than 2 years after beginning his employment at the General Atomics’ La Jolla, California facility.  Lung cancer is a “specified” cancer as defined by 20 C.F.R. § 30.5(ff)(2) (2007).  The employee was, therefore, a “covered employee with cancer.”  42 U.S.C. § 7384l(9). 

 

The record also establishes that [Claimant #1] is the surviving spouse of the employee.  As the employee’s surviving spouse, she is entitled to compensation benefits under Part B of the Act in the amount of $150,000.00, pursuant to 42 U.S.C. §§ 7384s(a) and (e)(A).

 

Section 7385s-4(a) of EEOICPA states that a determination under Part B that a DOE contractor employee is entitled to compensation under that part for an occupational illness shall serve as a determination under Part E that the employee contracted that illness through exposure at a DOE facility. 

 

In this case, FAB is basing the award of compensation to [Claimant #1] under Part B on [Employee]’s employment at an Atomic Weapons Employer, which qualifies him as a member of the SEC.  [Employee] also had documented employment with Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.  On September 19, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) determined that in a surviving spouse’s claim that is accepted under Part B based on the employee’s status as both an atomic weapons employee and a member of the SEC, if the employee also had any verified employment by a DOE contractor at a DOE facility, then the provisions of 42 U.S.C. § 7385s-4(a) would apply such that the spouse would be entitled to a determination under Part E that the employee’s illness was contracted through exposure to a toxic substance at the DOE facility.  Accordingly, [Claimant #1] is entitled to compensation pursuant to 42 U.S.C. §7385s-3(a)(3), since the employee would have been entitled to compensation under Part B, and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.

 

Therefore, the evidence of record, in conjunction with the September 19, 2007 determination by DEEOIC, establishes that the employee was diagnosed with a “covered illness,” lung cancer, as that term is defined by 42 U.S.C. § 7385s(2), and that the employee contracted that “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The FAB concludes that the evidence of record is also sufficient to establish that the employee’s lung cancer was a significant factor in aggravating, contributing to, or causing his death.  The death certificate, signed by a physician, lists the cause of death as being due to or as a consequence of bronchogenic carcinoma (lung cancer), which is the accepted condition under Part B of EEOICPA.  The record also indicates that there was an aggregate of not less than 20 years between the employee’s death and his normal retirement age (for purposes of the Social Security Act).

 

Accordingly, [Claimant #1] is entitled to compensation under Part E in the amount of $175,000.00 as a covered spouse, pursuant to 42 U.S.C. §7385s-3(a)(3), for a total lump-sum award in the amount of $325,000.00. 

 

Washington, D.C.

 

 

 

 

Susan Price 

Hearing Representative

Final Adjudication Branch