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:

787-2005

DECISION DATE:

June 29, 2005

 

NOTICE OF FINAL DECISION

 

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) concerning your claim for compensation under 42 U.S.C. § 7384 et seq., the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, (EEOICPA or the Act).  For the reasons stated below, your claim for survivor benefits is accepted.  Adjudication of your claim under § 7385s-3 is deferred pending further development.

 

STATEMENT OF THE CASE

 

You filed a claim for compensation as the surviving spouse of [Employee], (the employee), under § 7384s(e) of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) on August 3, 2001.  On Form EE-3 (Employment History for Claim under EEOICPA) you stated that he had been employed as a chemical operator by Mallinckrodt Chemical at the Mallinckrodt Destrehan Street Plant located in St. Louis, Missouri from 1945 until an unknown date.  The Department of Energy (DOE) has identified the Mallinckrodt Destrehan Street Plant as a DOE facility from 1942 through 1962.  On November 5, 2001, the DOE confirmed and verified the employee’s dates of employment at the Mallinckrodt Destrehan Street Plant from 1951 through 1966.  You stated that as a result of his exposure to radiation at the Mallinckrodt Destrehan Street Plant he developed brain cancer first diagnosed in 1983.  The employee died on September 12, 1983.  You submitted a death certificate for the employee and a record of your marriage to the employee.

 

Medical evidence was submitted in support of the claim.  This evidence included the employee’s death certificate that indicated the immediate cause of death on March 9, 1989 was pulmonary embolus and listed other significant conditions as brain tumor.  The evidence also included a pathology report describing a specimen of the employee’s brain tumor obtained on or about August 26, 1983 that provided a diagnosis of grade II astrocytoma, right frontal lobe (brain cancer).  The diagnosis was confirmed by a consultation report of Dr. Walter E. Stevens, MD completed on August 30, 1983.

 

The district office evaluated the employment and medical evidence and determined that the claim required referral to the National Institute for Occupational Safety and Health (NIOSH) to perform a dose reconstruction for the primary brain cancer.  A copy of the case file and the NIOSH Referral Summary Document were forwarded to NIOSH on November 20, 2001.

 

The term “covered employee with cancer” may include 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).  An employee who is a member of the Special Exposure Cohort and has a specified cancer does not require a specific finding of “the cancer is at least 50% as likely as not” related to the employment.

 

EEOICPA authorizes the addition of a class of employees to the Special Exposure Cohort (SEC) if the Secretary of HHS finds:

 

(1)  it is not feasible to estimate with sufficient accuracy the radiation dose that the class received; and (2)  there is a reasonable likelihood that such radiation dose may have endangered the health of members of the class.

 

On April 11, 2005, The Secretary of HHS designated as members of the SEC all employees who worked in the Uranium Division at the Mallinckrodt Destrehan Street facility between 1942-1948 based upon his finding that it was not feasible to estimate the radiation dose that the class received.  This designation became effective May 12, 2005.

 

NIOSH identified your claim as qualifying for inclusion in the SEC.  Therefore, NIOSH discontinued dose reconstruction under EEOICPA and the case file was returned to the district office on May 23, 2005.

 

On May 26, 2005, the Denver district office issued a recommended decision indicating the employee was a member of the Special Exposure Cohort.  The employee was diagnosed with a specified cancer.  As his surviving spouse you are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s(e)(1)(A).

 

On June 3, 2005, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

 

After reviewing the evidence in your claim, the Final Adjudication Branch makes the following:

 

FINDINGS OF FACT

 

1.      The employee died on September 12, 1983.  You filed a claim for compensation, as the eligible surviving spouse of the employee, on August 3, 2001.

 

2.      The Department of Energy (DOE) verified the employment dates for the employee at the Mallinckrodt Destrehan Street Plant from January 1, 1943 until December 31, 1966. 

  

3.      The employee was diagnosed with grade II astrocytoma, right frontal lobe (brain cancer) on or about August 26, 1983.  The initial diagnosis was made after he began employment at the Mallinckrodt Destrehan Street Plant.

 

4.      The employee had employment aggregating to at least 250 work days between 1942 and 1948 in the Uranium Division at the Mallinckrodt Destrehan Street Plant and is eligible for inclusion in the Special Exposure Cohort as he was diagnosed with a specified cancer.

 

Based on the above noted findings of fact in this claim, the Final Adjudication Branch also makes the following:

 

CONCLUSIONS OF LAW

 

1.      The employee qualified as a member of the Special Exposure Cohort (SEC) as he was a DOE employee meeting the requirements pursuant to 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act.

 

2.      The employee had a specified cancer pursuant to § 7384l(17).

 

3.       The evidence establishes that the employee was a covered employee pursuant to 42 U.S.C. § 7384l(1).

 

4.      You have established that you are the current eligible survivor of the employee pursuant to 42 U.S.C. § 7384s.

 

5.      You are entitled to compensation in the amount of $150,000 as outlined under 42 U.S.C. § 7384s(e)(1)(A) of the Act.

 

6.      Pulmonary embolus is not a covered condition under the Act as defined in § 7384l(15).

 

The undersigned has thoroughly reviewed the case record and finds that it is in accordance with the facts and the law in this case.  The evidence of record establishes that that the employee meets the criteria of a covered employee with cancer as a qualified member of the Special Exposure Cohort with a specified cancer.  It is the decision of the Final Adjudication Branch that your claim for survivor benefits is accepted.

 

Denver, Colorado

June 29, 2005

 

 

 

Joyce L. Terry

District Manager