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]

 

FILE NUMBER:                               [Number Deleted]

 

DOCKET NUMBERS:                     60165-2005

                                                            61184-2005

                                                            61592-2005

 

DECISION DATE:                            May 10, 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 (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 claims for the condition of chronic beryllium disease, and denies your claims for the condition of chronic silicosis, under Part B of the Act.

 

STATEMENT OF THE CASE

 

On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), claiming compensation based on chronic beryllium disease and chronic silicosis.  [Claimant #1] also filed a Form EE-3 (Employment History) indicating that your father was employed various times at the Nevada Test Site from 1961 through 1969.  A Department of Energy (DOE) representative verified that your father worked at the Nevada Test Site with the Reynolds Electrical and Engineering Company, Inc., from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967.  The Nevada Test Site is recognized as a covered DOE facility from 1951 to the present.  See DOE, Office of Worker Advocacy, Facility List.

 

You provided medical records including chest x-rays from 1992, 1993 and 1994; a pulmonary function test (PFT) dated June 21, 1994; and a narrative report dated February 5, 1993.  The medical records did not provide a diagnosis of chronic beryllium disease (CBD) or chronic silicosis, but the evidence of record was indicative of a possible diagnosis of chronic beryllium disease, in reference to the medical evidence required for a diagnosis of CBD prior to January 1, 1993, as defined under the Act.

 

On December 17, 2004, the Seattle district office sent a copy of your case file to Milton D. Rossman, M.D., a District Medical Consultant (DMC).  By report dated February 17, 2005, Dr. Rossman indicated that the chest x-rays of February 6, 1993 and April 20, 1992, showed hilar calcifications and a left lower lobe granuloma sufficient to be consistent with CBD.  Secondly, Dr. Rossman stated that the PFT on June 21, 1994, indicated a reduced FVC at 36%, a reduced FEV1.0 at 15%, for a combined FEV1.0/FVC of 31.25, showing evidence of severe obstruction, which could be consistent with CBD.  Lastly, Dr. Rossman indicated that the history and physical dated February 5, 1993, showed that the employee was already on four drugs for his chronic respiratory disease, and there is no question that the employee had a clinical course consistent with a chronic respiratory disorder prior to January 1993.

 

You submitted a copy of your father’s death certificate, which indicates he was married to your mother, [Employee’s Spouse], at the time he passed away on September 15, 1994.  You also provided a copy of your mother’s death certificate, which shows she passed away on July 7, 1997, and copies of your birth certificates showing that you are the surviving children of the employee.  In addition, you each provided copies of your marriage certificates and other evidence to document your changes of name.

 

On April 11, 2005, the Seattle district office recommended acceptance of your claims for survivor benefits for the condition of chronic beryllium disease, concluding that you are survivors of a covered beryllium employee as defined by § 42 U.S.C. § 7384l(7).  The district office also concluded that chronic beryllium disease is a compensable occupational illness pursuant to § 42 U.S.C. § 7384l(8)(B) and that the evidence you submitted met the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 42 U.S.C. § 7384l(13).  The district office further concluded that you are each entitled to compensation in the amount of $50,000.00, pursuant to § 42 U.S.C. § 7384s(a)(1) and (e)(1).  In addition, the district office concluded that the medical evidence of record was insufficient for a diagnosis of chronic silicosis, as defined under section 42 U.S.C. § 7384l(15), and recommended denial of your claims for chronic silicosis.

 

On April 15, 2005 ([Claimant #3]), April 18, 2005 ([Claimant #2]), and April 19, 2005 ([Claimant #1]), the Final Adjudication Branch received your written notification that you waive any and all rights to file objections to the recommended decision.

 

FINDINGS OF FACT

 

1.      On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a claim for survivor benefits under Part B of the EEOICPA for chronic beryllium disease (CBD) and chronic silicosis. 

 

2.      Your father was employed at the Nevada Test Site, a covered DOE facility, from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967.   

 

3.      Your father is a covered beryllium employee who worked at the Nevada Test Site during a period when beryllium dust, particles or vapor may have been present. 

 

4.      Your father’s chest x-rays, pulmonary function test, and the physician’s history and physical report describing the clinical course of his chronic respiratory disease, are consistent with a diagnosis of chronic beryllium disease on April 20, 1992.

 

5.      The onset of chronic beryllium disease occurred after your father’s exposure to beryllium in the performance of duty. 

 

6.      The medical evidence of record is insufficient for a diagnosis of chronic silicosis.

 

7.      You submitted birth certificates establishing that you are the surviving children of the employee.

 

CONCLUSIONS OF LAW

 

In the absence of substantial evidence to the contrary, a covered beryllium employee shall be presumed to have been exposed to beryllium in the performance of duty if, and only if, the employee was employed at a Department of Energy facility, or present at a 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.  See 42 U.S.C. § 7384n(a)(1) and (2); 20 C.F.R. § 30.205(1), (2), (3). 

 

In addition, in order to establish entitlement to benefits based on chronic beryllium disease, you must provide medical documentation in accordance with the following:  

 

(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 axial 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).

 

See 42 U.S.C. § 7384l(13)(B).

 

Based on the employee’s covered employment at the Nevada Test Site, a DOE facility, during a period when beryllium dust, particles, or vapor may have been present, the employee was exposed to beryllium in the performance of duty. 

 

The record contains medical documentation satisfying the criteria set forth under the EEOICPA for a diagnosis of chronic beryllium disease prior to January 1, 1993.  Dr. Rossman’s report of February 17, 2005, provides a well-reasoned opinion regarding the chest x-rays, pulmonary function test, and narrative report describing the clinical course of your father’s chronic respiratory disease, concluding that the medical evidence is consistent with chronic beryllium disease. 

 

Your father is a “covered beryllium employee” and he was exposed to beryllium in the performance of duty.  See 42 U.S.C. § 7384l(7).  In light of these findings, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for the condition of chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease prior to January 1, 1993.  See 42 U.S.C. § 7384l(13)(B).

 

You also filed a claim based on chronic silicosis.  The medical evidence of record is insufficient for a diagnosis of chronic silicosis, as defined under 42 U.S.C. § 7384r(c)(d) and (e).  Therefore, your claim based on the condition of chronic silicosis is denied.

 

For the foregoing reasons, the undersigned hereby accepts your claims under Part B of the Act for survivor benefits for the condition of chronic beryllium disease, and denies your claims for benefits for the condition of chronic silicosis.  You are each entitled to compensation in the amount of $50,000.00.  See 42 U.S.C. § 7384s(a)(1).   

 

Seattle, WA

 

 

 

__________________________________________

Kelly Lindlief, Hearing Representative

Final Adjudication Branch