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]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

61108-2004

61109-2004

61111-2004

61112-2004

61113-2004

DECISION DATE:

November 4, 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 stated below, your claims are accepted.

 

STATEMENT OF THE CASE

 

On December 21, 2001, [Employee], (hereinafter referred to as the employee), filed a claim for benefits under the EEOICPA, Form EE-1, in which he indicated that he suffered from ulcers, thyroid problems, a kidney cyst and prostate cancer.  On July 7, 2004, the employee filed a second claim for benefits, Form EE-1, in which he identified lung cancer with brain metastases as the medical condition being claimed.  On the EE-3 form, the employee indicated that he worked at the Oak Ridge Gaseous Diffusion Plant (K-25) from April, 1957 until an unspecified date and that he worked at Y-12 from September of an unspecified year until September, 1995.[1]  The Department of Energy verified that the employee worked at K-25 from May 27, 1957 until September 1, 1985 and at Y-12 from September 2, 1985 until September 29, 1995.  The DOE also verified that the employee was monitored through the use of a dosimetry badge.

 

As part of the medical documentation that the employee submitted was a January 25, 2001 pathology report by Dr. Stephen C. Lawhorn, in which he diagnosed adenocarcinoma of the prostate, and a June 25, 2004 pathology report by Dr. Joseph B. Eatherly, in which he diagnosed large cell carcinoma of the left lung.  On July 28, 2004, the district office issued a recommended decision, which concluded that as a member of the Special Exposure Cohort the employee was entitled to compensation and benefits for his specified lung cancer. 

 

On August 10, 2004, [Claimant 1], and on August 13, 2004, [Claimant 2], [Claimant 3], [Claimant 4] and [Claimant 5] each filed a claim for survivor benefits, Form EE-2.  You each indicated on your EE-2 forms that your late father, the employee, died on August 1, 2004 from lung cancer with brain metastases.  You submitted the following evidence in support of your claims as the employee’s eligible surviving beneficiaries: the employee’s death certificate, which indicated that he was divorced when he died on August 1, 2004; each of your birth certificates; [Claimant 1]’s, [Claimant 3]’s, and [Claimant 4]’s marriage certificates; and [Claimant 5]’s marriage certificates and divorce decrees.   

 

On September 8, 2004, the Final Adjudication Branch (FAB) vacated the July 28, 2004 recommended decision and remanded the employee’s claim to the district office for development of your survivor claims.  On September 28, 2004, the district office issued a new recommended decision, which concluded that the employee suffered from lung cancer, that the employee was a member of the Special Exposure Cohort in that he worked at least 250 aggregate days at K-25 in a job that was monitored through the use of a dosimetry badge and that you were the employee’s surviving beneficiaries.  As such, the district office recommended that you each be entitled to $30,000 in survivor’s compensation, in addition to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for treatment of the employee’s lung cancer.  The district office also concluded in their recommended decision that the employee’s claimed conditions of ulcers, thyroid problems and a kidney cyst are not covered occupational illnesses under the Act.  On October 5, 2004, [Claimant 1], on October 6, 2004, [Claimant 3], and on October 8, 2004, [Claimant 2], [Claimant 4] and [Claimant 5] each submitted their waivers of objection to the recommended decision. 

 

With regard to the employee’s established prostate cancer, as this is not a specified cancer the district office submitted an application package to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction on May 10, 2002, in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  The district office indicated in their new recommended decision that they were awaiting the NIOSH final report of dose reconstruction prior to determining whether or not the employee’s prostate cancer was “at least as likely as not” related to his covered employment. 

 

Therefore, based upon a review of the case file evidence, I make the following:

 

FINDINGS OF FACT

 

1.      On December 21, 2001, and again on July 1, 2004, the employee filed a claim for benefits under the EEOICPA, Form EE-1.

 

2.      The employee’s employment from May 27, 1957 until September 1, 1985 at K-25 and from September 2, 1985 until September 29, 1995 at Y-12 was verified.    

 

3.      The employee provided medical evidence, which established that he was diagnosed with prostate cancer on January 25, 2001 and with lung cancer on June 25, 2004.

 

4.      The employee’s claimed conditions of ulcers, a kidney cyst and thyroid problems are not covered occupational illnesses under the Act.

 

5.      On July 28, 2004, the district office issued a recommended decision, which concluded that the employee was entitled to compensation and medical benefits for lung cancer.

 

6.      On August 10, 2004, [Claimant 1], and on August 13, 2004, [Claimant 2], [Claimant 3], [Claimant 4] and [Claimant 5] each filed a claim for survivor benefits, Form EE-2. 

 

7.      On September 8, 2004, the FAB remanded the employee’s claim to the district office for development of your survivor claims.

 

8.      You established that you are the late employee’s eligible surviving beneficiaries.  

 

9.      The district office issued a recommended decision on September 28, 2004, which concluded that you each were entitled to $30,000 in survivors’ compensation, in addition to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for treatment of the late employee’s lung cancer.

 

Therefore, based upon a review of the case file evidence, I make the following:

 

CONCLUSIONS OF LAW

 

Pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).  The late employee’s claimed conditions of ulcers, a kidney cyst and thyroid problems are not covered occupational illnesses under the Act.

 

Pursuant to § 7384l(14)(A)(i) of the Act, a member of the Special Exposure Cohort (SEC) is defined as a Department of Energy employee, Department of Energy contractor employee, or atomic weapons employee who was employed for at least 250 aggregate workdays before February 1, 1992 at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, “and, during such employment (i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body to radiation.” 42 U.S.C. § 7384l(14)(A)(i).  The evidence of record established that the employee worked at least 250 days during a covered time period at K-25 and that he worked in a job that was monitored through the use of a dosimetry badge.  Therefore, the undersigned finds that the employee was a member of the SEC, pursuant to § 7384l(14)(A)(i) of the Act. Pursuant to § 30.5(dd)(5)(2) of the implementing regulations, lung cancer is considered a specified cancer provided that its onset occurred at least five years after the employee’s first exposure to radiation.  20 C.F.R. § 30.5(dd)(5)(2).  Additionally, pursuant to § 7384l(9)(A) of the Act, a covered employee with cancer is “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a Department of Energy facility (in the case of a Department of Energy employee or Department of Energy contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee).” 42 U.S.C. § 7384l(9)(A).  The evidence of record established that as a member of the SEC the employee was diagnosed with lung cancer more than five years after he began his employment at K-25.  Therefore, the undersigned finds that the employee was a covered employee with cancer, pursuant to § 7384l(9)(A) of the Act.   

 

The undersigned has reviewed the facts and the district office’s September 28, 2004 recommended decision and finds that you each are entitled to $30,000 in survivor’s compensation for the employee’s lung cancer, pursuant to §§ 7384s(a), 7384s(e)(1)(A) of the Act, and that you are entitled to medical benefits for medical bills that were incurred between July 7, 2004 and August 1, 2004 for the treatment of the employee’s left lung cancer, pursuant to § 7384t of the Act.  42 U.S.C. §§ 7384s(a), 7384s(e)(1)(A),7384t.

 

Washington, DC

 

 

Richard Koretz

Hearing Representative

 

 

 

 

 



[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, Y-12 in Oak Ridge, TN is a covered DOE facility from 1942 to the present, and the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, TN is a covered DOE facility from 1943 to the present.