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:

63258-2005

DECISION DATE:

March 11, 2005

 

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under Part B of 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 for benefits is accepted. 

 

STATEMENT OF THE CASE

 

On November 9, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, wherein you indicated that your late husband, [Employee] (hereinafter referred to as the employee), suffered from a “Brain tumor-Oligodendroglioma” (brain cancer) and worked prior to January 1, 1974 on Amchitka Island.[1] On the EE-3 form (Employment History), you indicated that the employee was employed by the U.S. Geological Survey (USGS) from October 10, 1960 until February 13, 1980 and that the employee was involved in geological studies and the mapping of Amchitka Island.  You submitted the employee’s death certificate and your marriage certificate in support of your claim as the employee’s eligible surviving beneficiary.

 

You submitted an October 11, 2004 letter from AMC Cancer Research Center, and an October 12, 2004 letter from Exempla Lutheran Medical Center, which indicated that the employee’s medical records had been destroyed.  You also submitted the employee’s physician-signed death certificate, which indicated that the employee died on April 30, 1982 from “Brain tumor- Oligodendroglioma” at the AMC Cancer Research Center and that 6 years and 2 months was the interval between the onset of the disease and the employee’s death.  The district office concluded that the employee’s death certificate was sufficient to establish that the employee was diagnosed with brain cancer on March 2, 1976.   

 

The district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify the employment claimed, but no records were found.  The Department of Energy (DOE) was also not able to verify the employment claimed.  In response to the district office’s request for employment evidence, you submitted various employment documents.  As part of the documentation that you submitted were the following:

 

1)      A technical letter prepared by the USGS for the U.S. Atomic Energy Commission (AEC) entitled, “Amchitka-3 Geologic Reconnaissance of Amchitka Island, December 1966,” which indicated that the employee and W. J. Carr were part of a reconnaissance team that was on Amchitka Island between November 30 and December 16, 1966 for the purpose of selecting drilling sites.

 

2)      A USGS professional paper prepared on behalf of the AEC entitled, “Interpretation of Aeromagnetic Survey of Amchitka Island Area, Alaska,” which indicated that the employee and W. J. Carr were involved in reconnaissance mapping on Amchitka in 1966 and 1967.

 

3)      A January 10, 1967 letter of appreciation from the AEC to the USGS, which indicated that the employee was part of a reconnaissance team on Amchitka Island.   

 

4)      An employment history affidavit, Form EE-4, from [Co-Worker #1] and [Co-Worker #2], in which they attested that they were the employee’s co-workers at the USGS during 1960’s and 1970’s.

 

5)      Entries from the employee’s field notebook, dated between November 29 and December 17, 1966 and April 28 to May 3, 1967, relative to his work on Amchitka Island.

 

According to Appendix A-7 of the Atomic Energy’s Manager’s Completion Report, dated January, 1973, the USGS was designated an Amchitka prime contractor.  Therefore, the district office concluded that the USGS was a DOE contractor, in accordance with EEOICPA Bulletin No. 03-26 (issued June 3, 2003).  Altogether, the district office concluded that the aforementioned employment evidence was sufficient to establish that the employee was a DOE contractor employee on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.

 

On February 8, 2005, the district office issued a recommended decision, which concluded that the employee was a member of the special exposure cohort (SEC), that he suffered from brain cancer and that you are entitled to $150,000 dollars in survivor’s compensation under Part B of the Act.

 

On February 15, 2005, the FAB received your written notification that you waived any and all objections to the recommended decision.  Therefore, based upon a review of the case file evidence, the undersigned makes the following:

 

FINDINGS OF FACT

 

1)     You filed a claim for survivor benefits under Part B of the EEOICPA on November 9, 2004.

 

2)      You established that the employee was employed by a DOE contractor on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  

 

3)      You established that the employee was diagnosed with brain cancer on March 2, 1976.              

 

4)      The district office issued a recommended decision on February 8, 2005, which concluded that you are entitled to $150,000 dollars in survivor’s compensation.

 

Therefore, based upon a review of the case file evidence, the undersigned makes the following:

 

CONCLUSIONS OF LAW

 

Pursuant to § 7384l(14)(B) of the Act, a member of the SEC is defined as an employee that was “employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.” 42 U.S.C. § 7384l(14)(B).  The evidence of record established that the employee was employed by a DOE contractor on Amchitka Island during a covered time period: November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  Therefore, the undersigned finds that the employee was a member of the SEC pursuant to § 7384l(14)(B) of the Act.

 

Pursuant to § 30.5(dd) of the implementing regulations, brain 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).  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 brain cancer more than five years after he began his covered employment on Amchitka Island.  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 February 8, 2005 recommended decision and finds that you are entitled to $150,000 dollars in compensation for the employee’s brain cancer, pursuant to § 7384s(a),(e)(1)(A) of the Act. 

 

 

 

 

Washington, DC

Mark D. Langowski

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, the Amchitka Island Test Site on Amchitka Island, AK is a covered DOE facility from 1965 to 1972 and from 1995 to the present.