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]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

55286-2006

56190-2006

56192-2006

DECISION DATE:

August 22, 2008

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your 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 FAB accepts the claims of [Claimant #1], [Claimant #2], and [Claimant #3] for compensation under Part B of EEOICPA in the amount of $150,000.00 ($50,000.00 payable to each) for the employee’s occupational illness of prostate cancer metastasized to the bone.

 

STATEMENT OF THE CASE

 

On September 20, 2002, [Employee’s spouse] filed a Form EE-2 with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) and a Form DOE F 350.3 with the Department of Energy (DOE), seeking benefits as the surviving spouse of [Employee][Employee’s spouse] identified the claimed conditions of prostate cancer and bone cancer.  On May 8, 2003, [Employee’s spouse] died and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

 

[Claimant #1] (on March 10, 2004), [Claimant #2] (on April 5, 2004), and [Claimant #3] (on April 5, 2004) each submitted a Form EE-2 with DEEOIC as the surviving children of [Employee].  They claimed [Employee] developed prostate cancer and bone cancer as a result of his employment at the Hanford site.  

 

[Employee’s spouse] had submitted a Form EE-3 in which she alleged that [Employee] was employed at the Hanford site as a truck driver with E.I. DuPont Nemours & Company (Du Pont) from December 1943 to December 1944, with General Electric Company (GE) as a millwright from July 6, 1954 to January 3, 1965, and as a millwright with Battelle-Northwest (Battelle) at the Pacific Northwest National Laboratory (PNNL) from January 4, 1965 to July 8, 1983.  A representative of DOE verified that [Employee] was employed at the Hanford site, a DOE facility, by DuPont, a DOE contractor, from December 14, 1943 to December, 1944, and by GE, another DOE contractor, as a millwright from July 6, 1954 to December 31, 1964, and with Battelle at PNNL, a second DOE facility, from January 4, 1965 to July 29, 1983.  The Oak Ridge Institute for Science and Education (ORISE) database contained information verifying that [Employee] was employed at the Hanford site starting on July 6, 1954.  DOE records establish that [Employee] had worked in Area 200 West during his employment at the Hanford site.

 

The medical evidence of record includes a pathology report, dated October 3, 1988, in which Dr. Thomas D. Mahony diagnosed prostate cancer.  The medical evidence of record also includes a whole body bone scan conducted on September 27, 1988, which noted the metastases of the prostate cancer to the bone of the skull, ribs, thoracic vertebra, pelvis and right femur.

 

The evidence of record includes a copy of the employee’s death certificate, which indicates that [Employee] was married at the time of his death on October 4, 1991 to [Employee’s spouse].  You also submitted a copy of [Employee’s spouse]’s death certificate.  [Employee]’s death certificate lists the cause of his death on October 4, 1991 as arrhythmia due to myocardial infarction, coronary heart disease, and cancer of the prostate metastases.  In support of your claims, you each submitted a copy of your birth certificate showing that you are the biological children of [Employee] and that [Claimant #1] was born on May 26, 1957, [Claimant #2] was born on October 4, 1941, and that [Claimant #3] was born on March 3, 1950.  At the time of the employee’s death on October 4, 1991, [Claimant #1] was 34 years old, [Claimant #2] was 50 years old, and [Claimant #3] was 41years old.  [Claimant #1] produced sufficient evidence to show the change in her surname.  

 

To determine the probability that [Employee]’s prostate cancer was sustained in the performance of duty, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  In a prior final decision dated May 8, 2006, the FAB denied the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] because there was only a 24.78% probability that the employee’s prostate cancer was caused by radiation exposure at the Hanford site.  The FAB concluded that [Employee] did not qualify as a covered employee with cancer under Part B, that the dose reconstruction estimates and the probability of causation calculations were performed according to EEOICPA and its regulations, and that [Claimant #1], [Claimant #2], and [Claimant #3] were not entitled to survivor benefits under Part B of EEOICPA.   

 

On March 29, 2007, NIOSH issued OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  It was NIOSH’s determination that the existence of the highly insoluble plutonium compound at the Hanford site should be considered Type Super S plutonium in dose reconstructions for employees at that site.  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.  The change went into effect on February 6, 2007.  See EEOICPA Bulletin No. 07-19 (issued May 16, 2007).

 

On April 2, 2008, a Director’s Order was issued vacating the FAB’s May 8, 2006 final decision and reopening the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] for further development.  The Director’s Order instructed the Seattle district office to forward the case to NIOSH for rework of the employee’s dose reconstruction pursuant to EEOICPA Bulletin No. 07-27 (issued August 8, 2007). 

 

On April 7, 2008, your claims were returned to NIOSH for rework of the employee’s radiation dose reconstruction; however the dose reconstruction was not completed following the addition of a particular class of Hanford employees to the Special Exposure Cohort (SEC).

 

On May 30, 2008, the Secretary of Health and Human Services (HHS) designated a class of employees at the Hanford site for inclusion in the SEC.  This designation went into effect on June 29, 2008.  The class consists of all employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who worked from:  (1)  September 1, 1946 though December 31, 1961 in the 300 area; or (2) January 1, 1949 through December 31, 1968 in the 200 areas (East and West) at the Hanford Nuclear Reservation in Richland, Washington for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC. 

 

On July 18, 2008, the Seattle district office recommended acceptance of your claims for survivor benefits under Part B, concluding that the employee is a member of the above-noted addition to the SEC, since he was employed at Hanford for an aggregate of 250 days or more during the SEC period and was diagnosed with prostate cancer that metastasized to the bone.  Secondary (metastatic) bone cancer is a “specified” cancer under EEOICPA.  The district office concluded that [Claimant #1], [Claimant #2], and [Claimant #3] are the surviving children of the employee and entitled to survivor benefits under Part B of the Act, in the amount of $150,000.00, to be divided equally among them in the amount of $50,000.00 each.  

                                                               

On July 21, 2008, the FAB received written notification from [Claimant #2] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third-party claim or state workers’ compensation claim in relation to [Employee]’s cancer.  [Claimant #2] stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he averred that other than [Claimant #1] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 21, 2008, the FAB also received [Claimant #2]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

 

On July 22, 2008, the FAB received written notification from [Claimant #1] indicating that neither she, nor anyone in her family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer.  [Claimant #1] further stated that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, she averred that other than [Claimant #2] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee].  On July 22, 2008, the FAB also received [Claimant #1]’s written notification indicating that she waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

 

On July 24, 2008, the FAB received written notification from [Claimant #3] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer.  [Claimant #3] further stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation.  Further, he indicated that other than [Claimant #2] and [Claimant #1], there were no other individuals who might qualify as a survivor of [Employee].  On July 24, 2008, the FAB also received [Claimant #3]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision. 

 

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

 

FINDINGS OF FACT

 

1.      On September 20, 2002, [Employee’s spouse] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee][Employee’s spouse] died on May 8, 2003, and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

 

2.      [Claimant #1], [Claimant #2] and [Claimant #3] each submitted claims for survivor benefits under EEOICPA, as the surviving children of [Employee].

 

3.      [Claimant #1], [Claimant #2] and [Claimant #3] are the biological children of [Employee].   [Claimant #1], [Claimant #2] and [Claimant #3] are the only children and eligible survivors of the employee.

 

4.      The employee worked at the Hanford site, with DuPont from December 14, 1943 to December 31, 1944, with GE from July 6, 1954 to December 31, 1964, and at PNNL with Battelle from January 4, 1965 to July 29, 1983.  The employee was monitored for radiation exposures and worked in Area 200 West during his employment at the Hanford site.  This employment met or exceeded 250 aggregate work days, and qualifies [Employee] as a member of the SEC.  

 

5.      The employee was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis, and right femur, which is a “specified” cancer, on September 27, 1988, after starting work at a DOE facility. 

 

6.      [Claimant #1], [Claimant #2] and [Claimant #3] each stated that they, or anyone in their family, had never filed for or received any settlement or award from a lawsuit, tort suit, or third-party claim in relation to the illnesses claimed.  [Claimant #1], [Claimant #2] and [Claimant #3] have never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, nor have they or anyone in their family ever filed for or received any payments, awards, or benefits for a state workers’ compensation claim in relation to [Employee]’s cancer. 

 

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

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  [Claimant #1], [Claimant #2] and [Claimant #3] waived their right to file objections to the findings of fact and conclusions of law contained in the July 18, 2008 recommended decision issued on their claims for benefits under EEOICPA.   

 

In order to be afforded coverage under Part B of EEOICPA, you must establish that [Employee] has been diagnosed with an occupational illness incurred as a result of his exposure to silica, beryllium, and/or radiation.  Further, the illness must have been incurred while he was in the performance of duty for DOE or certain of its contractors.  The evidence of record indicates that the employee worked in covered employment at Hanford from December 14, 1943 to December 31, 1944, and from July 6, 1954 to December 31, 1964, and at PNNL from January 4, 1965 to July 29, 1983 in Area 200 West.  The period of employment from July 6, 1954 to December 31, 1961 exceeds the 250-day requirement as set forth in the SEC designation.  The medical evidence submitted in support of the claim shows that [Employee] was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis and right femur, which is a “specified” cancer, on September 27, 1988, which was more than 5 years after his initial exposure to radiation. 

 

Accordingly, the employee is a member of the SEC and is a “covered employee with cancer” under § 7384l(9)(A) of EEOICPA.  See EEOICPA Bulletin No. 08-33 (issued June 30, 2008).  Further, [Claimant #1], [Claimant #2] and [Claimant #3] are the surviving children of the employee as defined by § 7384s(e)(1)(B) and are entitled to compensation in the amount of $150,000.00, to be divided equally.

 

Seattle, Washington

 

 

 

 

Keiran Gorny

Hearing Representative

Final Adjudication Branch