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 NUMBERS:

47148-2006

10060979-2007

DECISION DATE:

May 16, 2008

 

NOTICE OF FINAL DECISION

 

This decision of the Final Adjudication Branch (FAB) concerns the above claim 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, FAB accepts the claim under Part B of EEOICPA in the amount of $150,000.00 and under Part E in the amount of $125,000.00.  Adjudication of the claim for survivor benefits for the conditions of diabetes and hypertension under Part E will not be undertaken, as maximum survivor benefits are being awarded. 

 

STATEMENT OF THE CASE

 

On July 15, 2003, [Claimant] filed a Form EE-2 claiming for survivor benefits under EEOICPA with the Department of Labor as the surviving spouse of [Employee].  She based her claim on the employee’s metastatic renal cell carcinoma.  On December 28, 2006, [Claimant] filed a second Form EE-2 for the conditions of renal cell carcinoma, diabetes, and hypertension. 

 

[Claimant] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Lawrence Livermore National Laboratory (LLNL) as a designer from June 19, 1956 to March 2, 2000.  The district office used the Oak Ridge Institute for Science and Education (ORISE) database to verify that [Employee] worked at LLNL from June 19, 1956 to March 2, 2000.  The Department of Energy (DOE) verified that [Employee] was employed by the University of California Radiation Laboratory (UCRL) at LLNL beginning on June 19, 1956, and that he had dosimetry badges issued in association with his work with UCRL/LLNL at the Nevada Test Site (NTS) on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  Employment records obtained from DOE indicate that [Employee] was employed as a draftsman and designer at LLNL.

 

The record includes a copy of a marriage certificate showing [Claimant] and the employee were married on May 18, 1963, and a copy of [Employee]’s death certificate showing [Claimant] was married to the employee at the time of his death on March 2, 2000.  The death certificate identifies the immediate cause of death as respiratory failure and metastatic renal cell carcinoma, with diabetes mellitus, hypertension and hyperlipidemia listed as conditions that contributed to his death.  The medical evidence of record includes a November 16, 1999 pathology report in which Dr. Lena Scherba diagnosed metastatic renal cell carcinoma with metastases to the left pleura. 

 

On March 15, 2006, FAB issued a final decision under Part B to deny [Claimant]’s claim for benefits, concluding that the employee’s renal cell carcinoma was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at LLNL.  On March 20, 2007, the Seattle district office issued a recommended decision to deny [Claimant]’s claim for benefits under Part E of the Act.  The district office concluded that she did not provide sufficient evidence to show that toxic exposure at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the employee’s metastatic renal cell carcinoma. 

 

On March 29, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued OCAS-PEP-012, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites, and specifically concluded that the existence of highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.  This change went into effect on February 6, 2007 and affected those cases with a dose reconstruction performed prior to that date that resulted in a less than 50% Probability of Causation (PoC) with verified employment at LLNL.

 

On June 18, 2007, FAB remanded [Claimant]’s Part E claim for survivor benefits and instructed the district office to refer the case to NIOSH for rework of the dose reconstruction pursuant to EEOICPA Bulletin No. 07-19 (issued May 16, 2007), which determined that the existence of the highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.

 

On June 26, 2007, the Seattle district office returned the claim to NIOSH for a rework of the dose reconstruction.  On October 23, 2007, the district office received the NIOSH Report of Dose Reconstruction dated September 19, 2007.  Using the information provided in this report, the district office utilized the Interactive Radio Epidemiological Program (IREP) to determine the PoC of the employee’s renal cell carcinoma and reported in its recommended decision that there was a 26.76% probability that the employee’s metastatic renal cell carcinoma was caused by exposure to radiation at LLNL.

 

On November 9, 2007, a Director’s Order was issued vacating the final decision dated March 15, 2006, and reopening [Claimant]’s claim under Part B of EEOICPA.  The Director’s Order directed the district office to reopen her claim under Part B based on EEOICPA Bulletin No. 07-27 (issued August 7, 2007) to reflect the revised dose reconstruction methodology to the calculation of the PoC and provided procedures for processing claims with a final decision to deny that may be affected by NIOSH’s OCAS-PEP-012.    

 

On February 7, 2008, the Seattle district office recommended denial of [Claimant]’s claim for survivor benefits under Part B and Part E, finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the LLNL.  The district office concluded that the employee did not qualify as a “covered employee with cancer” under Part B; that the dose reconstruction estimates and the PoC calculations were properly performed, and that [Claimant] was not entitled to survivor benefits under Part B.  Further, the district office concluded that under Part E, the totality of the evidence did not provide sufficient evidence to show that exposure to a toxic substance at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the claimed conditions of renal cell carcinoma, diabetes or hypertension.

 

In a letter received by FAB on May 15, 2008, [Claimant] indicated that neither she nor [Employee] had filed a lawsuit or received a settlement based on the claimed conditions.  She also indicated that they had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed illnesses, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, she indicated that [Employee] had no minor children or children incapable of self-support, who were not her natural or adopted children, at the time of his death.  

 

On March 3, 2008, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC) in a report to Congress: Employees of DOE, its predecessor agencies and DOE contractors or subcontractors who were monitored for radiation exposure while working at LLNL from January 1, 1950 through December 31, 1973 for a number of work days aggregating at least 250 work days or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  This addition to the SEC became effective April 2, 2008.

 

After considering the evidence of record, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1.      On July 15, 2003 and December 28, 2006, [Claimant] filed a claim for benefits under EEOICPA.

 

2.      [Claimant] is the surviving spouse of the employee and was married to him for at least one year immediately prior to his death.

 

3.      The employee worked at LLNL for an aggregate of at least 250 work days from June 19, 1956 to March 2, 2000, and was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  The employee was monitored for radiation exposure, and qualifies as a member of the SEC.

 

4.      The employee was diagnosed with metastatic renal cell carcinoma, which is a “specified” cancer, on November 16, 1999, after starting work at a DOE facility.   

 

5.      The evidence of record supports a causal connection between the employee’s death due to metastatic renal cell carcinoma and his exposure to radiation and/or a toxic substance at a DOE facility.

 

6.      [Claimant] has not filed or received any money (settlement, compensation, benefits, etc.) from a tort action or from a state workers’ compensation program based on the claimed condition. She has never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any federal or state workers’ compensation law.  The employee had no minor children or children incapable of self-support, who were not [Claimant]’s natural or adopted children, at the time of his death.

 

Based on the above-noted findings of fact, FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

The undersigned has reviewed the recommended decision issued by the district office on February 7, 2008.  [Claimant] has not filed any objections to the recommended decision, and the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).    

 

As noted above, on April 2, 2008 a new addition to the SEC became effective.  The evidence of record indicates that the employee worked in covered employment at LLNL from June 19, 1956 to March 2, 2000, that he was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973, and that he was monitored for radiation exposure during his employment.  The medical evidence shows that [Employee] was diagnosed with metastatic renal cell carcinoma on November 16, 1999, more than 5 years after his initial exposure to radiation. 

 

FAB may reverse a recommended decision to deny a claim if the portion of the claim denied by the district office is in posture for acceptance.  The evidence is sufficient to establish that the employee is a member of the class added to the SEC who was diagnosed with metastatic renal cell carcinoma, a “specified” cancer, more than five years after initial exposure, and is therefore a “covered employee with cancer” under section 7384l(9)(A) of EEOICPA.  Further, [Claimant] is the surviving spouse of the employee, as defined by § 7384s(e)(1)(A), and is entitled to compensation in the amount of $150,000.00 under Part B.

 

Under § 7385s-4(a) of EEOICPA, if an employee has engaged in covered employment at a DOE facility and was determined under Part B to have contracted an “occupational” illness, the employee is presumed to have contracted a covered illness through exposure at that facility.  Further, if the employee would have been entitled to compensation under Part E 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 such employee, an eligible survivor would be entitled to survivor benefits under Part E..  See 42 U.S.C. § 7385s-3(1)(A) and (B).

 

The evidence of record establishes that the employee was a “covered DOE contractor employee” who was diagnosed with a “covered” illness, and therefore he would be eligible for benefits under Part E.  Further, 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.  [Claimant] is the employee’s “covered” spouse as defined by § 7385s-3(d)(1) and is therefore entitled to additional compensation in the amount of $125,000.00 under Part E.      

 

Accordingly, FAB reverses the recommended decision and accepts the claim for survivor benefits under Part B of $150,000.00, and also under Part E for an additional $125,000.00.

 

Seattle, Washington

 

 

 

Keiran Gorny

Hearing Representative

Final Adjudication Branch