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:                  62339-2005

 

DECISION DATE:                      November 18, 2005

 

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claim 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 set forth below, your claim is accepted. 

 

STATEMENT OF THE CASE

 

On October 4, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity.  A review of the medical evidence revealed that along with beryllium sensitivity you were diagnosed with multiple skin cancers: basal cell carcinoma (BCC) of the right temple, diagnosed July 25, 1995; BCC of the left face, diagnosed April 11, 2000; BCC of the right face, diagnosed March 12, 2001[1], and BCCs of the upper and lower face, diagnosed August 2, 2004.[2]

 

On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954.  The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

 

On February 1, 2005, a final decision and remand order was issued by the FAB accepting your claim for beryllium sensitivity and remanding your case for further development of chronic beryllium disease (CBD).  The district office referred your claim to a district medical consultant (DMC) for review on September 14, 2005.

 

On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC).  You established that you were diagnosed with multiple skin cancers.  To determine the probability of whether you sustained your cancer in the performance of duty, as required to establish entitlement under Part B of the Act, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On August 24, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on August 29, 2005.

 

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 55.97% combined probability that your cancers[3] were caused by radiation exposure at the Paducah GDP.  42 C.F.R. § 81.20.  The Final Adjudication Branch confirmed the 55.97% combined probability.

 

On September 14, 2005, the Jacksonville district office issued a recommended decision finding that your skin cancer(s) were at least as likely as not caused by your employment at a Department of Energy (DOE) facility and concluding that that you are entitled to compensation in the amount of $150,000.  The district office’s recommended decision also concluded that you are entitled to medical benefits beginning October 4, 2004 for skin cancer.

 

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  

 

The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.  On October 6, 2005, the FAB received the October 2, 2005 report from Dr. Robert E. Sandblom.  Dr. Sandblom verified that the pulmonary function tests on record were consistent with chronic beryllium disease.

 

FINDINGS OF FACT

 

1.      You filed a Form EE-1, for beryllium sensitivity and review of the medical records revealed evidence of skin cancer and possible chronic beryllium disease.

 

2.      You were diagnosed with skin cancer (BCC) on July 25, 1995, April 11, 2000, and August 2, 2004 (x2).

 

3.      You were employed at the Paducah GDP from January 1, 1951 to December 25, 1954.

 

4.      The probability that your cancer was caused by radiation at the Paducah GDP is 55.97%. 

 

5.      On September 14, 2005, the Jacksonville district office issued a recommended decision.

 

6.      On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  

 

7.      On October 6, 2005, the FAB received a report from the DMC, confirming a statutory diagnosis of CBD.

 

CONCLUSIONS OF LAW

 

I have reviewed the evidence of record and the recommended decision. 

 

To qualify as a member of the SEC under the Act, the following requirements must be satisfied:

 

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee. . . .  42 U.S.C. § 7384l(14)(A).

 

The evidence shows that you worked at the Paducah GDP from January 1, 1951 to December 25, 1954, which equals more than 250 days prior to February 1, 1992.  Therefore, you qualify as a member of the SEC.

 

However, in order to be entitled to benefits as a member of the SEC, you must have been diagnosed with a specified cancer as defined by the Act and implementing regulations.  42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005).  Skin cancers are not a specified cancer.

 

A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility.  42 U.S.C. § 7384n(b); 42 C.F.R. Part 81.  I conclude that your skin cancers were at least as likely as not caused by your employment at a Department of Energy (DOE) facility.  42 U.S.C. § 7384n(b).  Therefore, you are a covered employee with cancer.  42 U.S.C. § 7384l(9)(B). 

 

The medical evidence is sufficient to establish that you have CBD.  Under Part B of the Act, CBD may be established by the following:

(A)  For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

42 U.S.C. § 7384l(13).

 

The beryllium lymphocyte proliferation test (BeLPT) of July 28, 2004 was positive.  Therefore, you have beryllium sensitivity, as previously established by final decision dated February 1, 2005.  42 U.S.C. § 7384l(8). 

 

The DMC verified in his report of October 2, 2005 that pulmonary function tests on record were consistent with chronic beryllium disease, meeting criterion iii.  Office policy allows the FAB to accept a claimed medical condition based on new evidence, if the case was in posture for acceptance of benefits for another condition.[4]  Therefore, I conclude that you are a covered beryllium employee and that your chronic beryllium disease is a covered occupational illness.  42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207. 

 

In accordance with Part B of the Act, you are entitled to $150,000 and medical benefits beginning October 4, 2004 for skin cancer and chronic beryllium disease.  42 U.S.C. §§ 7384s(a), 7384t.

 

Jacksonville, FL

 

 

Sidne Valdivieso
Hearing Representative

 

 



[1] Review of the pathology report shows this was not a BCC but rather a pilomatricoma, which may be either benign or malignant.  The pathology report did not specify which.  Therefore, this should not have been utilized in the dose reconstruction.  However, you had an additional cancer that was not utilized by NIOSH in the dose reconstruction, the BCC of the right lower face, diagnosed August 2, 2004, that the DOL health physicist has determined could be substituted for the pilomatricoma without negatively impacting the combined probability of causation.

[2] You did not file a Form EE-1 for skin cancer or chronic beryllium disease, but any written communication that requests benefits under the Act will be considered a claim, including the submission of new medical evidence for review.

[3] NIOSH computed the percentage of causation for four BCCs to arrive at 55.97%.  When the percentage of causation is over 50% establishing that those cancers were at least as likely as not related to employment at a covered facility, calculation of the percentage of causation for the remaining cancers is not necessary.

[4] EEOICPA Bulletin No. 03-29 (issued June 30, 2003).