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:

59062-2004

59096-2004

59097-2004

59098-2004

DECISION DATE:

September 13, 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 (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seqFor the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for survivor compensation for the condition of chronic beryllium disease. 

 

STATEMENT OF THE CASE

 

On June 2, 2003, the employee filed a claim for compensation under the EEOICPA based on asbestosis and other lung condition.  That claim was recommended for denial by the Seattle district office; however, additional medical documentation was received by the Final Adjudication Branch, who vacated the recommended decision by Remand Order dated September 8, 2003.  The district office performed additional development of the medical evidence and recommended acceptance of the claim and medical benefits for chronic beryllium disease and denial of the claim for asbestosis, which was affirmed by Final Decision of the Final Adjudication Branch on July 6, 2004.  Before payment could be issued, however, the employee passed away on June 12, 2004, and the claim was administratively closed.  On June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004, you filed claims for survivor benefits under the EEOICPA based on chronic beryllium disease (CBD).  A Form EE-3 (Employment History) previously filed by the employee indicated he worked at the Idaho National Environmental and Engineering Laboratory (INEEL) for Keiser Construction from January 1, 1954 to August 30, 1954 and for  Phillips Petroleum, Idaho Nuclear, Aerojet General, and EG&G Idaho from October 1, 1954 to March 1, 1992.  A representative of the Department of Energy (DOE) verified the worker’s employment at INEEL from October 7, 1957 to March 2, 1992.  INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.  See DOE, Office of Worker Advocacy, Facility List. 

 

Medical evidence of record includes a chest x-ray and a CT scan, both dated October 13, 1992, that indicated the employee had multiple pleural plaques, and a chest x-ray, dated May 1, 2002, that indicated emphysematous changes within his lungs, densely calcified pleural plaques on the left lung, and scarring and associated bullous changes within the right lung base.  In addition, the record includes a history of a clinical course of treatment of the employee for asbestosis and chronic obstructive pulmonary disease (COPD) dating from October 1992 to March 2003.  The employee’s pulmonary function test results, from October 13, 1992, showed an FVC of 3.62 and an FEV1 of 1.57, with an FEV1/FVC ratio of 43% before bronchodilators, and an FVC of 4.6 and FEV1 of 1.59 after bronchodilators.  The employee’s DLCO was markedly diminished at 11.77 or 35% of predicted. 

 

District Medical Consultant Robert E. Sandblom, M.D., reviewed the employee’s medical records, in a report dated January 5, 2004, and indicated the claimant had chest radiographic (or CT) abnormalities characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder. 

 

You provided copies of your birth certificates that indicate each of you is the natural child of the employee, and copies of the certificates of marriage of [Claimant 1] and [Claimant 4] documenting your name changes.  The file also contains a copy of the employee’s certificate of death that indicates the employee was widowed when he passed away on June 12, 2004.  

 

The Seattle district office determined that the employee was a covered beryllium employee as defined in § 7384l(7) of the EEOICPA.  See 42 U.S.C. § 7384l(7).  Further, the Seattle district office determined that the evidence submitted meets the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 7384l(13), a covered occupational illness as defined by § 7384l(8)(B).  See 42 U.S.C. § 7384l(8)(B) and (13).  Also, the district office determined that you are the survivors of the employee, as defined by § 7384s(e)(3), and that you are entitled to compensation in the amount of $37,500.00 each pursuant to §§ 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. § §7384s(a)(1) and (e)(1).  In addition, the district office concluded that you are entitled to reimbursement of medical expenses for the employee’s chronic beryllium disease, retroactive to the date he filed his claim, June 2, 2003, through June 12, 2004, the date he passed away. 

 

FINDINGS OF FACT

 

  1. The employee filed a claim for asbestosis and other lung condition, on June 2, 2003.
 

 

  1. You filed claims for survivor benefits for chronic beryllium disease on June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004. 

 

  1. The employee was employed at INEEL, a covered DOE facility, from October 7, 1957 to March 2, 1992.

 

  1. INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.

 

  1. The employee is a covered beryllium employee who worked at INEEL during a period when beryllium dust, particles or vapor may have been present.

 

  1. The findings in the medical evidence are consistent with a diagnosis of chronic beryllium disease based on the statutory criteria for a  diagnosis before January 1, 1993.

 

  1. The onset of the employee’s chronic beryllium disease on October 13, 1992, occurred after his exposure to beryllium in the performance of duty.

 

  1. The employee passed away on June 12, 2004, and was not survived by a spouse.

 

  1. You are the natural children and survivors of the employee.

 

CONCLUSIONS OF LAW

 

On August 20 ([Claimant 4]), August 23 ([Claimant 2 and Claimant 1]), and September 1 ([Claimant 3]), 2004, the Final Adjudication Branch received your written notifications that you waive any and all rights to file objections to the recommended decision.  

 

In order to be afforded coverage under § 7384n(a) of the EEOICPA as a “covered beryllium employee,” the employee must have worked for a beryllium vendor and sustained occupational exposure to beryllium while:

 

(1)   employed at a Department of Energy facility; or

 

(2)   present at Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy;

 

during a period when beryllium dust, particles, or vapor may have been present at such a facility.  Further, the requisite exposure must be shown to have been “in the performance of duty,” which is presumed, absent substantial evidence to the contrary.  See 42 U.S.C. § 7384n(a); 20 C.F.R. § 30.205(1), (2) and (3). 

 

In addition, there must be medical documentation of the condition in order to be eligible for survivor’s benefits based on 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 radiograph (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 chronic respiratory disorder.

 

(V)        Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

 

See 42 U.S.C. § 7384l(13)(B).  Based on the employee’s covered employment at a DOE facility, he was exposed to beryllium in the performance of duty.  See 42 U.S.C. § 7384n(a). 

 

The record contains medical evidence to show a diagnosis of CBD.  Medical reports include a chest x-ray and a CT scan that are characteristic of chronic beryllium disease showing that the employee had multiple pleural plaques.  The employee also had an abnormal pulmonary function test, and he was treated for lung disease over a period of years.  A review of the employee’s medical records by District Medical Consultant Robert E. Sandblom, M.D., dated January 5, 2004, indicated the claimant had abnormal chest radiographs characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder.  This evidence satisfies a required three of five criteria for a diagnosis of chronic beryllium disease before January 1, 1993.  See 42 U.S.C. § 7384l(13)(B).  The medical evidence indicates that a diagnosis of chronic beryllium disease existed at least by October 13, 1992.  Consequently, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease before January 1, 1993.

 

The record includes copies of each of your birth certificates indicating you are each a natural child of the employee, documentation showing the legal change of names of [Claimant 1] and [Claimant 4], and a copy of the employee’s death certificate that indicates he was widowed at the time of his death. 

 

The employee was a “covered beryllium employee” as defined in § 7384l(7) of the Act, and was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA.  See 42 U.S.C. §§ 7384l(7); 7384n(a).  Further, the medical evidence shows the presence of chronic beryllium disease, as provided for in § 7384l(13)(B) of the Act.  See 42 U.S.C. § 7384l(13)(B). 

 

For the foregoing reasons, the undersigned hereby accepts your claims for chronic beryllium disease.  You are each entitled to compensation in the amount of $37,500.00 pursuant to § 7384s(e)(A) of the Act.  See 42 U.S.C. § 7384s(e)(A).  Further, you are entitled to reimbursement of medical expenses the employee may have incurred, retroactive to the date of his application on June 2, 2003, for the condition of chronic beryllium disease.  See 42 U.S.C. § 7384t.

 

Seattle, Washington

 

 

 

__________________________________________

James T. Carender

Hearing Representative, Final Adjudication Branch