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:                                             54503-2004

55494-2004

 

DECISION DATE:                                                    September 23, 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 set forth below, your claims are accepted.

 

Statement of the Case

 

On February 20, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  On March 12, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  Your claims were based, in part, on the assertion that your father was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Forms EE-2 that you were filing for the employee’s colon cancer. 

 

On the Form EE-3, Employment History, you stated the employee was employed by F. H. McGraw at the gaseous diffusion plant (PGDP) in Paducah, Kentucky for the period of 1951 to 1953. The district office verified this employment as July 1, 1952 through December 22, 1953.  The medical evidence established that the employee was diagnosed with colon cancer on

January 29, 1985.

 

On August 17, 2004, the Jacksonville district office issued a decision recommending that you, as eligible survivors of the employee, are entitled to compensation in the amount of $75,000 each, for the employee’s colon cancer.  You each submitted written notification that you waive any and all objections to the recommended decision.  [Claimant 2] also submitted comments about the recommended decision, concerning M.W. Kellogg.  F.H. McGraw was the prime contractor at the PGDP, while Kellogg would have held subcontractor status.  Both companies held contracts with the Department of Energy, and sufficient employment with either of the companies qualifies the employee for SEC membership.

 

In order for the employee to qualify as a member of the Special Exposure Cohort (SEC) under § 7384l(14)(A) of the Act, the following requirements must be satisfied:

(A)     The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment - -

(i)                  was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii)                worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

 

By way of social security records, employment records, and affidavits, the Final Adjudication Branch confirmed the employee was employed at the PGDP from at least July 1, 1952[1] to December 22, 1953.  This fulfills the requirement of 250 work days prior to February 1, 1992.

 

You indicated on the EE-3 (Employment History) that you did not know whether your father wore a dosimetry badge.  According to the Department of Energy sponsored report entitled Exposure Assessment Project at Paducah Gaseous Diffusion Plant, released in December 2000, Section 4.2.1.1 External Dosimeters states:   “Prior to 1961, select groups of employees considered to have the potential for radiation exposures were issued film badges.  After [July 1] 1960, all employees were issued two combination security/film badges.”  Because the period of your father’s employment fell within the time that some or all employees at the Paducah GDP were issued dosimetry badges, I find that the employee’s employment at the Paducah GDP satisfies the requirements under § 7384l(14)(A) of the Act.  42 U.S.C. §7384l(14)(A).

 

Findings of Fact

 

1.  On February 20, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  On March 12, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. 

 

2.  The medical evidence is sufficient to establish that the employee was diagnosed with colon cancer on January 29, 1985, more than five years after the first exposure to occupational radiation.

 

3.  Colon cancer is a specified cancer under § 7384l(17)(A) of the Act and § 30.5(dd)(5)(iii)(M) of the implementing regulations.  42 U.S.C. § 7384l(17)(A),

20 C.F.R. § 30.5(dd)(5)(iii)(M).

 

4.  The employee was employed at the PGDP from at least July 1, 1952 through December 22, 1953.  The employee is a covered employee as defined in § 7384l(1) of the Act.  42 U.S.C. § 7384l(1).

 

5.  In proof of survivorship, you submitted death certificates, a divorce decree, birth certificates and documentation of name changes.  Therefore, you have established that you are survivors as defined by § 30.5(ee) of the implementing regulations.  20 C.F.R. § 30.5(ee).

 

6.  The employee is a member of the Special Exposure Cohort, as defined in § 7384l(14)(A) of the Act.  42 U.S.C. § 7384l(14)(A).

 

7.  The Jacksonville district office issued the recommended decision on August 17, 2004.

 

8.  You each submitted written notification that you waive any and all objections to the recommended decision. 

 

Conclusions of Law

 

I have reviewed the record on this claim and the recommended decision issued by the Jacksonville district office on August 17, 2004.  I find that the employee is a member of the Special Exposure Cohort, as that term is defined in the Act; and that the employee’s colon cancer is a specified cancer under the Act.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A)

 

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are each entitled to one-half of the maximum $150,000 award, in the amount of $75,000 each, pursuant to the Act.  42 U.S.C. §§ 7384s(a), 7384s(e)(1)(B). 

 

Jacksonville, FL

 

 

 

 

Sidne M. Valdivieso

Hearing Representative

 

 



[1] In accordance with the Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2) (June 2002), if the claimant qualifies for inclusion in the SEC on the basis of working at a GDP, but has not indicated having worn a dosimeter on the EE-3 form, the DOL will be required to determine whether the claimant had exposure within a time period during which his/her exposure was comparable to a job that is or was monitored through the use of dosimetry badges.  For the PGDP, the comparison dates of employment are 7/52 through 2/1/92.  Therefore, the accepted beginning date of employment in this case is 7/1/52.