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]

                                                                                    [Name Deleted]

 

FILE NUMBER:                                                       [Number Deleted]

 

DOCKET NUMBERS:                                             56382-2004

56845-2004

56847-2004

56955-2004

 

DECISION DATE:                                                    November 18, 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.[1]

 

STATEMENT OF THE CASE

 

On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.   On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. 

 

The claims were based, in part, on the assertion that your late 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 COPD.  On the Form EE-3, Employment History, you stated the employee was employed by the K-25 gaseous diffusion plant (GDP) at Oak Ridge, Tennessee, for the period of July 7, 1944 through February 15, 1946.  On April 13, 2004, the Jacksonville district office verified this employment using information from the Oak Ridge Institute for Science and Education website database. 

 

The district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD).  On October 15, 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 $37,500 each, for the employee’s chronic beryllium disease.

 

You each submitted 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 the employee had chronic beryllium disease.  According to § 7384l(13) of 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).

 

The employee died on June 19, 1988.  Since all medical evidence in the case file is prior to January 1, 1993, the criteria in § 7384l(13)(B) of the Act are used.  The employee is shown to have had an occupational exposure to beryllium during his verified period of employment at the K-25 GDP.   Three of the five criteria necessary to establish pre-1993 CBD have also been met:  the various chest x-ray reports, dated between September 16, 1974 and May 8, 1983, show opacities which establish that the employee had characteristic chest x-ray abnormalities; the September 16, 1974 pulmonary function test by Dr. Domm, establishes that the employee had an obstructive lung physiology test; and the November 28, 1978 medical report by Dr. William K. Swann, providing a history of seven years of respiratory problems, establishes that the employee had a clinical course consistent with a chronic respiratory condition.  Therefore, the criteria for a diagnosis of CBD under the EEOICPA have been met.

 

FINDINGS OF FACT

 

1.  On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.   On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA. 

 

2.  The medical evidence is sufficient to establish that the employee had chronic beryllium disease pursuant to the Act.  42 U.S.C. § 7384l(13).

 

3.  The employee was employed at the K-25 gaseous diffusion plant in Oak Ridge, TN for the period of July 7, 1944 through February 15, 1946.  Beryllium was present at this facility during the time of employment.  Due to this exposure to beryllium in the performance of duty, the employee meets the criteria of a covered beryllium employee as defined in the Act.  42 U.S.C. § 7384l(7).

 

4.  In proof of survivorship, you submitted copies of birth certificates, documentation of name changes, and death certificates of the employee and the employee’s spouse.  Therefore, you have established that you are survivors as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).

 

5.  The district office issued the recommended decision on October 15, 2004.

 

6.  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 district office on October 15, 2004.  I find that the employee is a covered beryllium employee, as that term is defined in the Act; and that the employee’s chronic beryllium disease is a covered condition under 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, as eligible survivors of the employee as defined by the Act, are each entitled to one fourth of the maximum $150,000 award, in the amount of $37,500 each, pursuant to the Act on the basis of the employee’s chronic beryllium disease.  42 U.S.C. §§ 7384s(e)(1)(B), 7384s(a). 

 

Jacksonville, FL

 

 

 

 

J. Mark Nolan

Hearing Representative

 



[1] This is the second decision by the Final Adjudication Branch.  On September 17, 2004, the case was remanded to the Jacksonville district office for additional development to establish that all claimants were eligible survivors.