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:

57973-2005

DECISION DATE:

January 7, 2005

 

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).  This decision affirms the recommended acceptance issued on November 30, 2004.

 

STATEMENT OF THE CASE

 

On May 28, 2004, you filed a claim for survivor benefits, as the widow of [Employee], Form EE-2, under Part B of the EEOICPA.  You identified ‘breathing problems” and chronic beryllium disease (CBD) as the claimed conditions.  You also filed a Form EE-3 indicating that your husband was employed by F.H. McGraw at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky from 1951 to “I don’t remember.”  The Department of Energy (DOE) was unable to verify employment, however, they did confirm that F.H. McGraw held a number of contracts, during this time, at the Paducah Site. You submitted Social Security records indicating that your husband was employed by F.H. McGraw from the fourth quarter of 1951 to the third quarter of 1954.  Social Security reported maximum reportable earnings ($3600.00) for 1952, 1953 and 1954.  The DOE also submitted a “Personnel Clearance Master Card” from F.H. McGraw and Company that indicated [Employee] was terminated on December 17, 1954 due to a reduction in force; this notice also indicated that a Q Clearance was granted on February 14, 1952.[1]

 

Based upon the DOE response that F.H. McGraw held a number of contracts from 1951 to 1954 and the security Q clearance notification, the district concluded that the DOE had a business or contractual arrangement with F.H. McGraw.  The district office further concluded that your husband worked with F.H. McGraw at the Paducah Gaseous Diffusion Plant for at least one day on December 17, 1954 based upon the reduction in force notice.[2]

 

The death certificate submitted showed that [Employee] died on October 12, 1999, and the immediate cause of death as congestive heart disease.  The death certificate indicated that the surviving spouse was [Claimant].  You submitted a marriage certificate showing that [Employee] and [Claimant] were married on March 23, 1940.

 

You submitted a medical report dated February 23, 1991, from Lowell F. Roberts, M.D., which indicates a history of chronic obstructive pulmonary disease (COPD), shortness of breath, and dyspnea.  A February 23, 1991 X-ray report, from D.R. Hatfield, M.D., indicates a diagnosis of COPD.  A February 25, 1991 CT-scan, from Barry F. Riggs, M.D., indicates abnormal nodular densities of the right lower lobe and a diagnosis of COPD.  A February 26, 1991 medical report from M.Y. Jarfar, M.D. indicated that pulmonary function tests showed mild obstructive defects and mild diffusing lung capacity defects.  You also submitted an X-ray report dated September 6, 1994, from Robert A. Garneau, M.D., that indicated diagnoses of COPD and Interstitial Fibrosis.  A November 27, 1994 medical report from David Saxon, M.D., indicated findings of rales and wheezing.  A December 2, 1994 medical report from Dr. Saxon, indicates hypoxemia to the left lower lung.  A December 2, 1994 medical report from Lowell F. Roberts, M.D., indicated diagnoses of shortness of breath, congestive heart failure, dyspnea and cough, and rales in the lung base.  An August 13, 1995 X-ray report from Charles Bea, M.D., indicates a diagnoses of bibasilar infiltrates.  A December 30, 1996 X-ray report from Sharron Butler, M.D., indicates an increase of lung markings since the September 14, 1992 study.  In the March 1, 1998 X-ray report from Dr. Butler diagnoses of “advanced chronic lung changes, mild interstitial prominence diffusely, and patch density of the posterior right lung” are indicated.  An August 19, 1998 CT-scan from James D. Van Hoose, indicates diagnoses of pleural thickening and pulmonary calcifications.  An August 6, 1999 pulmonary function test from William Culberson, M.D. indicates a diagnosis of moderately severe restrictive disease.  An October 12, 1999 discharge summary from Eric B. Scowden, M.D. indicates diagnoses of progressive shortness of breath, congestive heart disease, COPD, and history of right-sided empyema complicating pneumonia necessitating prolonged chest tube drainage with a continued open sinus tract.”  Based upon these reports the district office concluded that you had CBD prior to January 1, 1993.[3]  

 

On November 30, 2004, the district office issued a recommended decision concluding that your husband was a covered beryllium employee, that he was exposed to beryllium, and that he had symptoms and a clinical history similar to CBD prior to January 1, 1993.  They further concluded that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA. 

 

Section 30.316(a) of the EEOICPA implementing regulations provides that, “if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in 20 C.F.R. § 30.310, or if the claimant waives any objection to all or part of the recommended decision, the Final Adjudication Branch (FAB) will issue a decision accepting the recommendation of the district office, either whole or in part.” 20 C.F.R. § 30.316(a).  On December 1, 2004, the FAB received your signed waiver of any and all objections to the recommended decision.  After considering the evidence of record, your waiver of objection, and the NIOSH report, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1.  You filed a claim for benefits under Part B of the EEOICPA on May 28, 2004.

 

2.  Your husband was employed at the Paducah Gaseous Diffusion Plant for at least one day on December 17, 1954.

 

3.  Medical evidence has been submitted establishing a diagnosis of chronic beryllium disease before January 1, 1993.

 

4.  You were married to the employee from March 23, 1940, until his death on October 12, 1999.

 

Based on these facts, the undersigned makes the following:

 

CONCLUSIONS OF LAW

 

Section 7384s of the Act provides for the payment of benefits to a covered employee, or his survivor, with an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered beryllium illness, cancer. . .or chronic silicosis, as the case may be.”  42 U.S.C. §§ 7384l(15) and 7384s.  42 U.S.C. § 7384l.

 

Pursuant to § 7384l(13)(B) of the EEOICPA, to establish a diagnosis of CBD before January 1, 1993, the employee must have had “an occupational or environmental history, or epidemiologic evidence of beryllium exposure; and (iii) 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 (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13)(B). 

 

The evidence of record establishes that the employee was a covered beryllium employee who had at least three of the five necessary medical criteria to establish pre-1993 CBD under the EEOICPA.  Therefore, you have provided sufficient evidence to establish that your husband was diagnosed with pre-1993 CBD, pursuant to § 7384l(13)(B) of the EEOICPA.

 

The undersigned has reviewed the facts and the district office’s November 30, 2004 recommended decision and finds that you are entitled to $150,000 in compensation.

 

The decision on the claim that you filed under Part E of the EEOICPA is being deferred until issuance of the Interim Final Regulations.

 

 

Washington, DC

 

 

Tom Daugherty

Hearing Representative

Final Adjudication Branch

 



[1] The Paducah Gaseous Diffusion Plant was a DOE facility from 1952 to July 28, 1998 and July 29, 1998 to present (remediation) where radioactive and beryllium material were present, according to the Department of Energy Office of Worker Advocacy Facility List (http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm).

[2] Per Chapter 2-100.3h (January 2002) of the Federal (EEOICPA) Procedure Manual, “The OWCP may receive evidence from other sources such as other state and federal agencies” to support a claim under the EEOICPA.

[3] Per Chapter 2-700.4 (September 2004) of the Federal (EEOICPA) Procedure Manual, “To determine whether to use the Pre or Post 1993 CBD criteria, the medical evidence must demonstrate that the employee was either treated for, tested or diagnosed with a chronic respiratory disorder.  If the earliest dated document is prior to January 1, 1993, the pre-1993 CBD criteria may be used.  Once it is established that the employee had a chronic respiratory disorder prior to 1993, the CE is not limited to use of medical reports prior to 1993 to meet the three of five criteria.”