EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	50245-2004 10031393-2007
DECISION DATE:	April 14, 2011

 

ORDER DENYING REQUEST

FOR RECONSIDERATION

 

This is the response to the claimant’s December 28, 2010 request for reconsideration of the November 30, 2010 decision of the Final Adjudication Branch (FAB) on his survivor claim under both Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  In that decision, FAB concluded that with respect to Part B, the employee’s pancreatic cancer was not sustained “in the performance of duty,” as that term is defined in § 7384n(b), because it is not “at least as likely as not” (a 50% or greater probability) that such cancer was related to the radiation doses she received during her covered employment at a Department of Energy (DOE) facility—Hangar 481, Kirtland Air Force Base (AFB)—from March 1, 1989 through June 30, 1994.  FAB also concluded that with respect to Part E of EEOICPA, the employee was not a “covered DOE contractor employee,” as that term is defined in § 7385s(1), because it is also not at least as likely as not that her exposure to toxic substances at Hangar 481 was a significant factor in aggravating, contributing to, or causing her pancreatic cancer.  It was because of these two conclusions that the claim for survivor benefits due to the employee’s pancreatic cancer under Part B, and for her death due to pancreatic cancer under E, was denied.  A decision on the Part E claim for the employee’s death due to acoustic neuroma, however, was deferred pending further development.

 

In support of his December 28, 2010 reconsideration request, the claimant raised a number of interwoven and somewhat confusing arguments.  To the extent that I can discern what they are, his arguments in support of his request are as follows.

 

1.  FAB should have found that the period of the employee’s covered employment began when she started work for Ross Aviation at Hangar 481, Kirtland AFB, on December 9, 1985, rather than when Hangar 481 became a covered DOE facility on March 1, 1989, because Ross Aviation had contracts with DOE and its predecessor agencies starting in 1970, and because those contracts show that Ross Aviation began working at Hangar 481 in 1984.  In conjunction with this argument, which the claimant raised earlier in the adjudication of his claim, he asserts that copies of the contracts in question that he submitted have either never been considered, or were not considered by the appropriate agency of the Department of Labor.

 

2.  FAB wrongly found that the employee’s diagnosed acoustic neuroma was not an “occupational illness” that is compensable under Part B that should have been taken into account during the dose reconstruction process and the determination of the probability of causation for the Part B claim.

 

3.  FAB wrongly concluded that the effect of the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation on December 9, 1985, as well as her alleged “non-employment” exposure during her accepted covered employment, could not be taken into account when it determined the probability of causation for her pancreatic cancer.  The claimant contends that these alleged exposures to radiation can be inferred from evidence in the file and must be taken into account, because 42 U.S.C. § 7384n(c)(3)(C) provides that the regulatory guidelines for determining the probability of causation for cancer under Part B “shall take into consideration. . .other relevant factors.”  As was the case with the claimant’s first argument noted above, he made this particular argument previously in the adjudication of his claim.

 

4.  FAB wrongly concluded that the alleged radiation exposure of the employee “in other employments” was not covered under EEOICPA.  The claimant contends that this alleged radiation exposure should have been taken into account and “added to the worker’s total exposure. . . .”  While he acknowledges that the dose reconstruction methodology that the National Institute for Occupational Safety and Health (NIOSH) used to estimate the radiation dose of the employee is binding on FAB, he believes that FAB should have determined that his objections concerning the application of that methodology, as it related to the alleged exposures in question, needed to be considered by NIOSH and therefore should have returned the Part B claim to the district office for referral to NIOSH for such consideration.  To support this argument regarding the employee’s radiation dose, he asserts that:

 

[G]eneral principles of workers [sic] compensation law contemplate that a worker who was exposed to radiation in multiple employments, like the worker in this case, is not limited to an analysis of exposure during the last term of injurious employment.  Rather, in such cases the sum total of the worker’s exposure during successive employments should be taken into account in assessing the effect of the worker’s last injurious exposure to radiation, and in so doing the exposure with the last employer. . .is given its due weight in contributing to the onset of a subsequently occurring cancer. 

 

Similar to the first and third arguments listed above, the claimant raised this argument previously in the adjudication of his EEOICPA claim.

 

5.  The claimant was not afforded the opportunity to present his objections regarding the dose reconstruction for the employee to NIOSH, which he acknowledges is “the agency which most logically has the expertise to evaluate the merits” of his position.  Therefore, the claimant believes that FAB should have returned his Part B claim to the district office for referral to NIOSH so it could consider his contention that the dose reconstruction for the employee should have included her non-employment and “other employments” exposures.

 

After careful consideration of these arguments, and for the reasons set forth below, the request for reconsideration is hereby denied.

 

With regard to the first argument noted above, and as set out in FAB’s November 30, 2010 decision, there is no dispute that Ross Aviation performed work under contracts it had with DOE and its predecessor agencies as early as February of 1970, and that the evidence establishes that the employee started working for Ross Aviation on December 9, 1985.  The pertinent question for the purposes of the claimant’s survivor claim, however, concerns where Ross Aviation did its work under its contracts with DOE that covered the period of the employee’s employment from December 9, 1985 through June 30, 1994.  Contrary to the claimant’s allegations noted above, the contracts at issue have, in fact, been previously reviewed by the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), which is the division of the Office of Workers’ Compensation Programs that administers EEOICPA[1], when NIOSH provided her with copies of them and asked, in a September 30, 2009 letter regarding the petition to add a class of employees at Hangar 481 to the Special Exposure Cohort the claimant filed with NIOSH, whether those contracts were sufficient to expand the “covered” period of Hangar 481 as a DOE facility.  In her February 2, 2010 response, the Director noted that after carefully reviewing those contracts, it was her conclusion that they did not support changing the determination that Ross Aviation was a DOE contractor at Hangar 481, Kirtland AFB, for the period March 1, 1989 through February 29, 1996.  Those same contracts were also carefully considered yet again when the claimant submitted copies of them to the case file in support of his claim, and are briefly described below:

 

• Contract No. AT(29-2)-2859 (covering February 1, 1970 through January 31, 1973) states that Ross Aviation would be performing air transport services for the Atomic Energy Commission (AEC) “at the Albuquerque Sunport, Albuquerque, New Mexico.”  There is no mention in this contract that any of the work being done by Ross Aviation will be done at Kirtland AFB.

 

• Contract No. AT(29-2)-3276 (covering February 1, 1973 through January 31, 1974, with multiple modifications that extended the coverage to February 28, 1979 and changed the contract number to E(29-2)-3276 when the AEC was replaced by the Energy Research and Development Administration (ERDA)) states that the “main operations base shall be maintained at the Contractor’s facility at the Albuquerque International Airport. . . .”  Again, there is no mention in this contract or its modifications that any of the work being done by Ross Aviation will be done at Kirtland AFB.

 

• Modification number A011 to Contract No. EY-76-C-04-3276 (extending the coverage of that contract from March 1, 1979 through February 29, 1984 and changing the contract number to DE-AC04-76DP03276 when ERDA was replaced by DOE) states that the “main operations base shall be maintained at the Government’s existing facility at the Albuquerque International Airport. . . .”  This modification also fails to state that any of the work being done by Ross Aviation will be done at Kirtland AFB.

 

• Modification number M016 to Contract No. DE-AC04-76DP03276 (covering the period of March 1, 1980 to February 28, 1981) states that the location at which Ross Aviation is maintaining and flying Government-furnished aircraft is “the Main Base - Albuquerque International Airport.”[2]  Once again, there is no mention in this modification that any of the work being done by Ross Aviation will be done at Kirtland AFB.

 

• Contract No. DE-AC04-89AL52318 (covering March 1, 1989 through February 28, 1990, with extensions through February 29, 1996) is the earliest contract that describes the location at which Ross Aviation is working as “Government-owned facilities located on Kirtland Air Force Base, New Mexico.”  Because Contract No. DE-AC04-89AL52318 is a “Management and Operations” contract, this also means that Ross Aviation became a DOE contractor at that time within the meaning of 42 U.S.C. § 7384l(12)(B)(ii), because it was an “entity” that entered into a “management and operations” contract with DOE at a DOE facility, i.e., Hangar 481, Kirtland AFB.

 

As noted above, and as previously stated in FAB’s November 30, 2010 decision, there is no probative and persuasive evidence specifying that Ross Aviation performed its work under a contract with DOE at Hangar 481, Kirtland AFB, prior to March 1, 1989.  In this regard, and again as pointed out by FAB in the November 30, 2010 decision, the non-contractual evidence the claimant submitted in support of this argument is of diminished probative value when compared to the actual contracts described above.  Accordingly, there is no basis for extending the covered period for that facility to include the earlier period that the employee worked there beginning on December 9, 1985, and this argument does not warrant reconsideration of FAB’s November 30, 2010 decision.

 

As for the second argument described above, FAB’s November 30, 2010 decision specifically informed the claimant that acoustic neuroma is not an “occupational illness,” as that term is defined in § 7384l(15), and therefore is not compensable under Part B.  While he contends that acoustic neuroma is a cancer and therefore it should have been taken into account by NIOSH when it reconstructed the employee’s radiation dose and by DEEOIC when it determined the probability of causation based on that dose reconstruction, acoustic neuroma is actually a benign tumor of the eighth cranial nerve.  The only reference to that illness in the medical evidence is in an August 11, 2000 report by Dr. Jorge Sedas, in which Dr. Sedas related the employee’s history of a “right-sided acoustic tumor – stable”; there is no medical evidence in the file showing that the reported tumor was malignant (cancer).  The provisions of 42 U.S.C. § 7384n(b), (c), and (d) regarding the dose reconstruction process and the determination of probability of causation are applicable only for the purpose of determining whether cancer was sustained in the performance of duty.  For those reasons, this second argument also does not warrant reconsideration of the November 30, 2010 decision of FAB.

 

In the third argument described above, the claimant contends that FAB should have taken the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation and her alleged non-employment exposure during her accepted covered employment, which he asserts can be inferred from the evidence in the file, into account as “other relevant factors” when it determined the probability of causation for the employee’s pancreatic cancer under Part B.  While he is correct that § 7384n(c)(3)(C) of EEOICPA directs that the regulatory guidelines for determining the probability of causation for cancer claimed under Part B “shall take into consideration. . .other relevant factors,” the task of devising these guidelines (and taking those “other relevant factors” into account) pursuant to that statutory directive was assigned to the Secretary of Health and Human Services (HHS), not the Secretary of Labor, by the President in Sec. 2(b)(i)(A) of Executive Order 13179 of December 7, 2000.  65 Fed. Reg. 77487 (December 11, 2000).[3]  While DEEOIC is required by 42 C.F.R. § 81.20(b) to apply the HHS regulatory guidelines, which have been incorporated into the NIOSH Interactive RadioEpidemiological Program (NIOSH-IREP), DEEOIC does not have the authority to alter the guidelines to take into account the particular non-covered employment exposures the claimant alleges that the employee experienced both prior to and away from her covered employment at Hangar 481 as “other relevant factors” when determining the probability of causation for her pancreatic cancer under Part B.  On the contrary, as Paragraph 2.0 of the User’s Guide the for the Interactive RadioEpidemiological Program (NIOSH-IREP) states:

 

The NIOSH-IREP computer code is a web-based program that estimates the probability that an employee’s cancer was caused by his or her individual radiation dose.  Personal information (e.g., birth year, year of cancer diagnosis, gender) and exposure information (e.g., exposure year, dose) may be entered manually or through the use of an input file.  For application by the U.S. Department of Labor (DOL), the input file option is used to preset all personal information, exposure information, and system variables.  These input files are created by NIOSH for each individual claim and transmitted to the appropriate DOL district office for processing.[4] (emphasis added)

 

Accordingly, the claimant’s third argument also does not warrant granting his request to reconsider FAB’s November 30, 2010 decision.

 

In the fourth argument in support of the claimant’s request, he contends that the employee’s alleged radiation exposures “in other employments” should have been taken into account and “added to the worker’s total exposure” as “other relevant factors.”  As FAB’s November 30, 2010 decision noted, the issue of what radiation dose to include is exclusively under the control of NIOSH, pursuant to the President’s assignment of the task of performing dose reconstructions to the Secretary of HHS (which then re-delegated it to NIOSH) in Sec. 2(b)(iii) of Executive Order 13179.  Also, the statute itself, at § 7384n(d)(1), restricts the dose to be used to determine probability of causation to radiation exposure that occurred solely “at a facility,” which in the employee’s case, means the dose she received when Hangar 481 was a DOE facility—March 1, 1989 through June 30, 1994.  HHS has issued regulations governing the dose reconstruction process at 42 C.F.R. part 82, and those regulations do not provide for any consideration of pre-employment and non-employment radiation exposures in estimating radiation dose incurred at a DOE facility, regardless of the claimant’s belief that principles of workers’ compensation require such consideration.  Because consideration of the “other relevant factors” referred to in 42 U.S.C. § 7384n(c)(3)(C), which as noted above, refers solely to the determination of probability of causation, this fourth argument also does not warrant reconsideration of the November 30, 2010 FAB decision on the claim.

 

Finally, in the fifth argument, the claimant asserts that FAB should have returned his Part B claim to the district office for referral to NIOSH, so NIOSH could consider his contention that the dose reconstruction for the employee should have included non-employment and “other employments” exposures.  While there is no dispute that NIOSH is “the agency which most logically has the expertise to evaluate the merits” of his position, the fact remains that the claimant was provided with the opportunity, at multiple points during the dose reconstruction process at NIOSH, to submit whatever evidence he had regarding the employee’s radiation exposures for consideration by NIOSH.  Further, as discussed above, the types of exposures at issue here are simply not covered under EEOICPA.  Therefore, there was no reason for FAB to return the Part B claim to the district office for referral to NIOSH, and this final argument, like the preceding four, does not provide a sufficient basis for reconsidering FAB’s November 30, 2010 decision.

 

I must deny the request for reconsideration because the claimant has not submitted any argument or evidence which justifies reconsideration of the November 30, 2010 final decision.  That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration.  See 20 C.F.R. § 30.319(c)(2).

 

Cleveland, OH

 

 

 

Tracy Smart

Hearing Representative

Final Adjudication Branch