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:                       58229-2004

 

DECISION DATE:                            September 17, 2004

 

 

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.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for beryllium sensitivity.

 

STATEMENT OF THE CASE

 

On June 7, 2004, you submitted Form EE-1, Claim for Employee Benefits under the EEOICPA, based on beryllium sensitivity.  You also submitted Form EE-3, Employment History for Claim under the EEOICPA, based on your employment at the Nevada Test Site (NTS), indicating you worked for EG&G from 1990 to 1991. 

 

A representative of the Department of Energy (DOE) verified your employment at NTS from September 17, 1990 to November 4, 1991.  NTS is recognized as a covered Department of Energy (DOE) facility from 1951 to the present.  Throughout the course of its operations, the potential for beryllium exposure existed at NTS, due to beryllium use, residual contamination, and decontamination activities.  See DOE, Office of Worker Advocacy, Facility List. 

 

You submitted the results of an abnormal beryllium lymphocyte proliferation test performed by National Jewish Medical and Research Center, dated March 27, 2004, which confirms your sensitivity to beryllium. 

 

On August 11, 2004, the Seattle district office issued a recommended decision concluding that you are a covered beryllium employee, as defined in § 7384l(7) of the EEOICPA, who has been diagnosed with beryllium sensitivity, a covered occupational illness as defined by § 7384l(8)(A) of the Act.  See 42 U.S.C. § 7384l(7), (8)(A).  The recommended decision also concluded that, pursuant to § 7384s(c) of the EEOICPA, you are entitled to medical benefits for the treatment and monitoring of beryllium sensitivity retroactive to June 7, 2004.  See 42 U.S.C. § 7384s(c)(1) and (2), 20 C.F.R. §§ 30.506, 30.507.

 

On September 7, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

 

FINDINGS OF FACT

 

1.  You filed a claim for employee benefits on June 7, 2004.  

 

2.  You were employed at NTS, a covered DOE site, from September 17, 1990 to November 4, 1991.

 

3.  You are a covered beryllium employee who was present at NTS during a period when beryllium dust, particles or vapor may have been present.

 

4.  You were diagnosed with beryllium sensitivity on March 27, 2004.

 

5.  The onset of beryllium sensitivity occurred after your initial exposure to beryllium during a period of covered employment.

 

CONCLUSIONS OF LAW

 

In order to be afforded coverage as a “covered beryllium employee,” you must show that you sustained occupational exposure to beryllium while employed at a DOE facility, or under certain circumstances, while present at a DOE facility or a facility owned, operated, or occupied by a beryllium vendor, during a period when beryllium dust, particles or vapor may have been present at such a facility.  See 42 U.S.C. §§ 7384l(7) and 7384n(a)(1).

 

In addition, under § 7384l(8) of the Act, the covered beryllium employee must have medical evidence to show a diagnosis of beryllium sensitivity using an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.  See 42 U.S.C. § 7384l(8); 20 C.F.R. § 30.205(b). 

 

Based on your employment with a DOE contractor or subcontractor at NTS, you are a covered beryllium employee and, in the absence of substantial evidence to the contrary, you are determined to have been exposed to beryllium in the performance of duty.  See 42 U.S.C. §§ 7384l(7), 7384n.

 

You provided the results of a lymphocyte proliferation test conducted on March 27, 2004 showing that you have an abnormal lymphocyte transformation to beryllium sulfate.  Therefore, you have a covered beryllium illness as defined in § 7384l(8)(A) of the EEOICPA.  See 42 U.S.C. § 7684l(8)(A).

 

For the foregoing reasons, the undersigned hereby accepts your claim for beryllium sensitivity.  You are a covered beryllium employee as defined in § 7384l(7) of the EEOICPA, diagnosed as having beryllium sensitivity, which is a covered occupational illness as defined by § 7384l(8)(A) of the Act.  See 42 U.S.C. § 7384l(7), (8)(A).

 

The EEOICPA provides that a covered employee shall receive, in the case of beryllium sensitivity:

 

(1)   A thorough medical examination to confirm the nature and extent of the individual’s established beryllium sensitivity.

 

(2)   Regular medical examinations thereafter to determine whether that individual has developed established chronic beryllium disease.

 

See 42 U.S.C. § 7384s(c)(1) and (2). 

 

No monetary compensation is available for beryllium sensitivity.  See 42 U.S.C. § 7384s(a)(2).  At this time, you are not entitled to any lump sum payment provided under the Act.  See 20 C.F.R. §§ 30.506, 30.507 and 30.508.  

 

The record indicates that you filed your claim for beryllium sensitivity on June 7, 2004.  The date your claim was filed is the date you became eligible for beryllium sensitivity monitoring, as well as medical benefits for the treatment of beryllium sensitivity.  See 42 U.S.C. § 7384t(d).  Therefore, you are entitled to medical monitoring benefits retroactive to June 7, 2004.

 

Seattle, Washington

 

 

 

__________________________________________

James T. Carender

Hearing Representative, Final Adjudication Branch