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:

55006-2005

DECISION DATE:

December 7, 2004

 

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 claim is accepted in part and deferred in part.

 

STATEMENT OF THE CASE

 

On March 3, 2004, you filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for lung cancer.  On the Form EE-3, Employment History, you stated you were employed at the K-25 gaseous diffusion plant (GDP) in Oak Ridge, Tennessee, for the period of February 24, 1992 to present.  The Department of Energy verified this employment as February 24, 1992 and continuing. 

 

Although you did not claim that condition, the district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD).  On November 3, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for chronic beryllium disease.  The district office’s recommended decision also concluded that you are entitled to medical benefits effective March 3, 2004 for chronic beryllium disease.  The district office deferred a recommendation on the claimed lung cancer, pending dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).  On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

 

I have reviewed the medical evidence and find that it is sufficient to establish that you have chronic beryllium disease.  According to the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by the following:

(A)  For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B)  For diagnoses before January 1, 1993, the presence of—

(i)                  occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(ii)                any three of the following criteria:

(I)                 Characteristic chest radiographic (or computed tomography (CT) abnormalities;

(II)              Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;

(III)            Lung pathology consistent with chronic beryllium disease;

(IV)           Clinical course consistent with a chronic respiratory disorder;

(V)              Immunologic tests showing beryllium sensitivity.  42 U.S.C. § 7384l(13).

 

A pathology report dated October 1, 2001, reporting results of a lung biopsy performed on September 28, 2001, revealed focal non-caseating granuloma.  Three beryllium lymphocyte proliferation tests (LPT) from mid-2004 were interpreted as being normal.  However, Dr. Charles Bruton opined on August 10, 2004 that, even though your LPTs were normal, your open lung biopsy with noncaseating granulomas was consistent with chronic beryllium disease.  Based on the post-1993 criteria, the medical evidence supports a finding of chronic beryllium disease.[1]

 

FINDINGS OF FACT

 

1.  You filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA, on March 3, 2004.

 

2.  The medical evidence is sufficient to establish that you have chronic beryllium disease pursuant to Part B of the Act.  42 U.S.C. § 7384l(13).

 

3.  You were employed at the K-25 GDP for the period of February 24, 1992 and continuing.  Beryllium was present at this facility during the time you were employed.  Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in Part B of the Act.  42 U.S.C. § 7384l(7).

 

4.  The Jacksonville district office issued the recommended decision on November 3, 2004.

 

5.  On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

 

CONCLUSIONS OF LAW

 

I find that you are a covered beryllium employee, as that term is defined in Part B of the Act; and that your chronic beryllium disease is a covered condition under Part B of the Act and implementing regulations.  42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207. 

 

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective March 3, 2004, for chronic beryllium disease, pursuant to Part B of the Act.  42 U.S.C. §§ 7384s(a), 7384t.

 

Jacksonville, FL

 

 

 

 

Sidne M. Valdivieso

Hearing Representative



[1] Federal (EEOICPA) Procedure Manual, Chapter 2-700.4b(2) (September 2004) states that in claims that contain a normal or borderline LPT and the lung tissue biopsy confirms the presence of granulomas consistent with CBD, the CE may accept the claim for CBD if the treating physician provides a detailed narrative report detailing the history of the claimant’s LPT results and steroid use.