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 NUMBER:

5537-2004

DECISION DATE:

September 13, 2004

 

 

REVIEW OF THE WRITTEN RECORD

AND NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

 

 

STATEMENT OF THE CASE

 

On August 16, 2001, you filed a Form EE-1 (Claim for Benefits under the EEOICPA).  You identified the diagnosed condition being claimed as prostate cancer. 

 

The medical documentation of record shows that you were diagnosed with adenocarcinoma of the prostate on April 30, 1998.  A pathology report dated May 2, 1998, signed by Edward C. Poole, M.D., was submitted showing adenocarcinoma, moderately differentiated based on prostate needle core biopsy performed on April 30, 1998.  A narrative medical report from Philip Lepanto M.D., dated June 24, 1998, also gives a diagnosis of carcinoma of the prostate. 

 

You also filed a Form EE-3 (Employment History) indicating that you worked at the International Nickel Plant (Huntington Pilot Plant) in Huntington, West Virginia.  You provided no dates of employment.  On September 24, 2001, the Department of Energy verified that you were employed at the Huntington facility from February 21, 1950 to May 1, 1996.  On December 15, 2003, the corporate verifier verified that you were employed in the Reduction Pilot Plant, from September 22, 1958 to March 23, 1959.  The Huntington Pilot Plant in Huntington,West Virginia is recognized as a Department of Energy facility from 1951 to 1963 and from 1978 to 1979.  See DOE Worker Advocacy Facility List. 

 

To determine the probability of whether you sustained cancer in the performance of duty, the Cleveland district office referred the claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On February 23 , 2004, you signed Form OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction dated March 22, 2004.  Using the information provided in the Report of Dose Reconstruction, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation (PoC) of your cancer and reported in its recommended decision that there was a 1.14% probability that your prostate cancer was caused by radiation exposure at the Huntington Pilot Plant. 

 

On March 25, 2004, the Cleveland district office recommended denial of your claim for compensation finding that your cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Huntington Pilot Plant.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the PoC was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that you do not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

 

The Final Adjudication Branch received your letter on May 6, 2004, in which you object to the recommended decision.   You state that you directly handled radioactive materials but were never tested.  You also question the quality of the dose reconstruction estimates.  

 

 

FINDINGS OF FACT

 

1.  You filed a claim for benefits on August 16, 2001. 

 

2.  You worked at the Huntington Pilot Plant in Huntington, West Virginia, a covered DOE facility, from February 21, 1950 to May 1, 1996.  You worked in the Reduction Pilot Plant, the covered nuclear portion of the Huntington facility from September 22, 1958 to March 23, 1959. 

 

3.  You were diagnosed with prostate cancer on April 30, 1998. 

4.  The NIOSH Interactive RadioEpidemiological Program indicated a 1.14% probability that your prostate cancer was caused by radiation exposure at the Huntington Pilot Plant. 

 

5.  Your cancer was not “at least as likely as not” related to your employment at a DOE facility. 

 

 

CONCLUSIONS OF LAW

 

The regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law in the recommended decision.  See 20 C.F.R. § 30.310.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record, in the absence of a request for a hearing.  See 20 C.F.R. § 30.312.

 

The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  See 20 C.F.R. § 30.313.  Consequently, the Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s).

 

You filed a claim based on prostate cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that you were a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

 

The Department of Energy verified that you worked at the Huntington facility from February 21, 1950 to May 1, 1996 and the corporate verifier for the Huntington facility verified that you worked in the Reduction Pilot Plant, from September 22, 1958 to March 23, 1959.  In addition, the medical documentation shows that you were diagnosed as having prostate cancer on April 30, 1998. 

 

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction under the EEOICPA, dated March 22, 2004.  NIOSH assigned the highest reasonably possible radiation dose using worst-case

assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data, as well as information recorded during the computer-assisted telephone interview. 

 

Using the information provided in the Report of Dose Reconstruction for prostate cancer, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine a 1.14% probability that your cancer was caused by radiation exposure while employed at the Huntington Pilot Plant.  See 42 C.F.R. §§ 81.20, 81.21, and 81.22.  The Final Adjudication Branch also analyzed the information in the NIOSH report, confirming the 1.14% probability. 

 

The Final Adjudication Branch notes that your main technical objection is that you directly handled radioactive materials, but were never tested and that you also question the quality of the dose reconstruction estimates. 

 

No dosimetry or bioassay records were found for you.  For the purposes of this dose reconstruction, NIOSH assigned you the highest reasonably possible radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience, and relevant data. 

 

Doses were calculated to the prostate, using the testes as the surrogate organ, for external exposure from storage containers of process residues, contaminated surfaces, and semi-annual medical X-rays.  Internal doses were calculated to the prostate, using the testes as the surrogate organ, for exposure to enriched uranium.  These assumptions are expected to encompass periodic direct contact with radioactive material.  This approach of using maximizing assumptions is a NIOSH methodology per the provisions of 42 C.F.R. § 82.10 (k)(2).  This is a challenge of the dose reconstruction methodology and cannot be addressed by the FAB per 20 C.F.R. § 30.318(b).

 

The Final Adjudication Branch also notes that the term “covered employee with cancer” is defined by 42 U.S.C. § 7384l(9)(B) as a Department of Energy employee who contracted cancer after beginning employment at a Department of Energy facility if, and only if, that individual is determined to have sustained that cancer in the performance of duty in accordance with 42 U.S.C. § 7384n(b).  That section of the Act provides that such cancer shall be determined to have been sustained in the performance of duty if, and only if, the cancer was at least as likely as not related to employment covered under the EEOICPA, as determined by the guidelines established in 42 U.S.C. § 7384n(c).  The statutory requirements for those guidelines specify that they shall:

 

(A)  be based on the radiation dose received by the employee (or a group of employees performing similar work) at such facility and the upper 99 percent confidence interval of the probability of causation in the radioepidemiological tables published under section 7(b) of the Orphan Drug Act  (42 U.S.C. 241 note), as such tables may be updated under section 7(b)(3) of such Act from time to time;

(B)  incorporate the methods established under subsection (d); and

(C)  take into consideration the type of cancer, past health-related activities (such as smoking), information on the risk of developing a radiation-related cancer from workplace exposure, and other relevant factors.

 

The Act requires that methods for arriving at reasonable estimates of the radiation dose received by an individual at a covered facility be established by regulation to include each of the following employees:

 

(A)  An employee who was not monitored for exposure to radiation at such facility.

(B)  An employee who was monitored inadequately for exposure to radiation at such facility.

(C)  An employee whose records of exposure to radiation at such facility are missing or incomplete.

 

The regulations required to establish the guidelines and dose reconstruction methods are published in 42 C.F.R. Parts 81 and 82, by the Department of Health and Human Services.

 

Objections challenging the dose reconstruction methodology cannot be addressed by the Final Adjudication Branch pursuant to 20 C.F.R. § 30.318(b).  Pursuant to that section, the methodology used by the Department of Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, as established by regulations issued by HHS at 42 C.F.R. Part 82, is binding on the Final Adjudication Branch.  The Final Adjudication Branch has no authority to depart from the guidelines.

 

Therefore, your claim must be denied because the evidence does not establish that you are a “covered employee with cancer,” because your prostate cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Huntington Pilot Plant.  See 42 U.S.C. §§ 7384l(1)(B) and 7384l (9)(B).

 

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

 

Cleveland, Ohio

 

 

 

________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch