|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 884-2002
DECISION DATE: May 31, 2006
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 under Part B of the Act is denied. Adjudication of the claim filed under Part E of the Act is deferred pending further development.
STATEMENT OF THE CASE
On August 7, 2001, you submitted a claim (Form EE-1) for benefits under Part B of EEOICPA, and identified colon cancer as the diagnosed condition on which your claim was based. You submitted an Employment History (Form EE-3) on which you stated that you were employed: by Quadrex , Inc. at the Oak Ridge Gaseous Diffusion Plant (K-25) from January 1981 to January 1987; by Chemical Waste Management, at K-25, from April 1, 1991 to October 30, 1993; by Ferguson Harbour, Inc. at the Portsmouth Gaseous Diffusion Plant (PGDP) from November 1, 1993 to May 30, 1994; by DKM Construction, Inc. from May 1, 1994 to May 17, 1994, and by R & D Development, Inc. from January 1, 1994 to October 30, 1994, both at the Portsmouth GDP; by the Foley Company, at the Oak Ridge National Laboratory (X-10) from November 1, 1994 to December 1, 1996; by FedEx Custom Critical, as a team driver making deliveries across Canada and the United States, including Department of Energy (DOE) facilities, from January 19, 1997 to April 18, 2000; and by Safety and Ecology, Inc., at the Brookhaven National Laboratory(BNL) from May 18, 2000 to March 23, 2001.
As medical evidence, you submitted numerous records, including a pathology report, dated May 15, 2001, from Joseph Eatherly, M.D., which provides a diagnosis of well-differentiated adenocarcinoma of the colon; and an operative report from Francis Cross, M.D., dated May 21, 2001, which provides a diagnosis of carcinoma of the cecum.
You submitted six affidavits (Form EE-4) concerning your employment at K-25, the Portsmouth GDP, and at the BNL. There was an affidavit from Kenneth Burch, who identified himself as a friend. He indicated that you worked for Quadrex at K-25 from January 1, 1981 to January 1, 1987, and that he “lived at the same address for a short period of time.”
Your wife, [Employee’s wife], completed four of the six affidavits, indicating that you worked: for Chemical Waste Management at K-25 from April 1, 1991 to October 30, 1993; at the Portsmouth GDP from November 1, 1993 to October 30, 1994; for the Foley Company at X-10 from November 1, 1994 to December 1, 1996; at the BNL from May 18, 2000 to March 23, 2001. You also submitted copies of an assortment of employment records, which included various certificates regarding training courses, internship records, training attendance reports and sign in sheets, which you contend provides evidence of employment with, or for, the Portsmouth GDP, FedEx, X-10, Quadrex, and the BNL.
In October 2001, you provided the district office with a copy of a letter to you dated June 20, 1992, from the Quadrex Corporation/ Quadrex Recycle Center. The first paragraph of the letter states, “This is to inform you [Employee], Social Security Number [Number], that you were monitored for ionizing radiation for the period indicated and incurred the below listed exposure while performing activities at Quadrex Recycle Center, Oak Ridge, Tennessee.” The letter indicates that the exposure site was the Recycle Center, and it documents exposure dates between October 25, 1982 and June 24, 1984. There are no dates listed for the period between November 24, 1982 and October 21, 1983.
You indicated in an affidavit dated January 19, 2002, that your employment dates with Quadrex, at K-25, were from November 24, 1982 to October 21, 1983. In correspondence dated November 11, 2001, the DOE verified your employment at K-25 for the period of July 7, 1992 to February 4, 1993.
On February 26, 2002, the Jacksonville district office issued a decision on your claim, recommending approval of the claim, after concluding that you were employed for an aggregate of at least 250 work days, at K-25, prior to February 1, 1992.
The Oak Ridge Natural Laboratory, via correspondence dated September 3, 2002, advised that they were unable to locate any records regarding your claimed employment.
A representative of US ECOLOGY, successor company to Quadrex, and operating at the same address as did Quadrex in Oak Ridge, Tennessee, sent a memo to the FAB, dated May 6, 2002, which provided copies of your Quadrex dosimetry records, and indicated that US ECOLOGY was not able to verify your claim that any field assignments were made to K-25 from Quadrex.
On July 15, 2002, the FAB issued a remand order, sending the claim back to the district office to determine if, in fact, you had 250 days of aggregate employment prior to February 1, 1992 at a gaseous diffusion plant.
On December 19, 2002, the district office received a copy of your Social Security records for the time period of January 1987 thru December 2001. In September 2002, the BNL provided information reflecting employment dates of June 5, 2000 to March 9, 2001. On September 16, 2002, the DOE provided confirmation of your work history at the Portsmouth GDP. The DOE was only able to provide your termination date of November 30, 1994.
The district office was unable to establish that Quadrex was a DOE contractor. The district office was also unable to establish that you worked an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992. Therefore, to determine the probability of whether you sustained your colon (cecum) cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in January 2003, in accordance with the EEOICPA implementing regulations. On April 4, 2004, you signed a 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. On April 22, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office.
The dose reconstruction performed by NIOSH was to have been performed using verified dates of covered employment as determined by the district office. NIOSH utilized your verified dates of employment, however, they also added in dates of employment which had not been verified by the district office. NIOSH added unverified employment at K-25 from December 1, 1991 to July 6, 1992; and unverified employment at the Portsmouth GDP from March 3, 1995 to December 31, 1996. The district office used the information provided in the final NIOSH report, including data obtained utilizing the unverified employment dates, to determine that there was a 20.14% probability that your colon (cecum) cancer was caused by radiation exposure at a covered DOE facility.
On March 7, 2005, you filed a Request for Review by Physician Panel, under the EEOICPA, with the Department of Energy, seeking assistance with a claim for state workers’ compensation benefits under Part D (since replaced by Part E) of EEOICPA. You claimed colon cancer and lung scarring as the conditions that you felt were caused by employment at DOE facilities.
On March 7, 2006, the DOE advised the Jacksonville district office that Quadrex was not involved with remediation of sludge ponds at K-25 during the 1980’s.
On March 15, 2006, the Jacksonville district office issued a recommended decision which concluded: that you do not qualify as a member of the Special Exposure Cohort, as you were not employed at a gaseous diffusion plant prior to February 1, 1992; that NIOSH performed dose reconstruction estimates in accordance with applicable statutes and regulations; and that the Department of Labor completed the Probability of Causation calculation in accordance with applicable statutes and regulations. The district office recommended denial of your claim based on its conclusions.
After considering the written record of the claim forwarded by the district office, and after conducting any further development of the claim as was deemed necessary, the Final Adjudication Branch hereby makes the following:
FINDINGS OF FACT
You filed a claim for benefits under Part B of the EEOICPA on August 7, 2001, based on your colon cancer.
You were employed at K-25, a DOE facility, from July 7, 1992 through February 4, 1993; at the Portsmouth GDP, a DOE facility, from June 2, 1994 to November 30, 1994; and at the Brookhaven National Laboratory, a DOE facility, from June 5, 2000 to March 9, 2001.
You were not employed for an aggregate of 250 work days at a gaseous diffusion plant prior to February 1, 1992.
You were diagnosed with cancer of the colon (cecum) on May 15, 2001.
NIOSH reported dose estimates for your cancer for each year of your employment at a DOE facility, through the date that your colon cancer was diagnosed. A summary and explanation of information and methods applied to produce these dose estimates are documented in the “NIOSH Report of Dose Reconstruction under the EEOICPA,” provided to the district office on April 22, 2004.
NIOSH included several periods of unverified DOE employment to produce the dose reconstruction; at K-25, from December 1, 1991 to July 6, 1992; and at the Portsmouth GDP from March 3, 1995 to December 31, 1996. There is no substantive evidence that you were employed at K-25 between December 1, 1991 and July 6, 1992.
On May 26, 2006, the Final Adjudication Branch independently analyzed the information in the NIOSH report and confirmed the 20.14% probability of causation.
You have not filed any objections to the recommended decision.
Based on the above-noted findings of fact in this claim and pursuant to the authority granted by the EEOICPA regulations, the Final Adjudication Branch hereby also makes the following:
CONCLUSIONS OF LAW
Section 30.310(a) of the EEOICPA implementing regulations provides that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. §§ 30.310 and 30.316(a). The allowed time to file an objection has passed, and you have not filed an objection to the recommended decision.
Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the “Special Exposure Cohort” (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee). 42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).
In order for the employee to qualify as a member of the SEC under 42 U.S.C. § 7384l (14) (A) of the Act, the following requirements must be satisfied:
(A) 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, and, during such employment - -
(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or
(ii) worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.
The evidence of record does not establish that you were employed at a gaseous diffusion plant prior to February 1, 1992. The weight of the evidence supports that Quadrex did not have a contractual relationship with K-25 during your claimed employment at K-25 from November 24, 1982 to October 21, 1983. You have asserted that during this period of time you were working onsite at K-25, assisting with the pumping of ponds into underground tanks, and loading mud into drums. The DOE has advised that Quadrex was not involved with the remediation of sludge ponds at K-25 in the 1980’s.
Assuming, for the purposes of argument, that you were employed as a DOE contractor at K-25 for the period of November 24, 1982 to October 21, 1983, this period of time does not satisfy the requirement of being employed at a gaseous diffusion plant for an aggregate of 250 work days before February 1, 1992. Your other alleged employment at a gaseous diffusion plant, prior to February 1, 1992, is with Chemical Waste Management at K-25, for the period of December 1, 1991 to July 6, 1992. Records received from the Social Security Administration do not indicate you were employed in 1991 for Waste Management. The DOE has confirmed your employment at K-25 from July 7, 1992 through February 4, 1993. This period of time is supported by the Social Security Administration records. Therefore, even assuming, for purposes of argument only, that you were employed at K-25 for the period of November 24, 1982 to October 21, 1983, given a lack of affirmative evidence that you were employed at a gaseous diffusion plant at any other time prior to February 1, 1992, your aggregate work days would not amount to 250 prior to February 1, 1992. Accordingly, you do not qualify as a member of the SEC. 42 U.S.C. § 7384l (14)(A).
Inasmuch as you do not qualify as a member of the SEC, to establish eligibility for compensation as a result of cancer, it must first be established that you were a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l (9) and 20 C.F.R. § 30.210.
While EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is. Section 7384l(11) of EEOICPA defines a DOE contractor employee as:
A. An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.
B. an individual who is or was employed at a Department of Energy facility by—
(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or
(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.
The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined in EEOICPA Bulletin No. 03-27 (issued May 28, 2003). The following definitions have been adopted by the DEEOIC:
Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.
Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.
Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance works.
Contract - An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”
Delivery of Goods – The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including construction and maintenance workers.
You have alleged covered employment as a team driver with FedEx Custom Critical. You have also indicated that you actually worked for Tires on Fire Express, which had a contract with FedEx. There is no evidence of record indicating that there was a contract between the DOE and FedEx. The evidence indicates that, irregardless of whether a contract existed between Tires on Fire Express and the DOE, that your job with Tires on Fire did not involve you providing services, producing materials, or managing operations at a DOE facility. Accordingly, your employment at FedEx Custom Critical does not qualify as covered employment under the Act. EEOICPA Bulletin No. 03-27 (issued May 28, 2003).
The balance of the evidence of record does establish that you are a DOE contractor-employee, who contracted colon cancer, after beginning your employment at several DOE facilities. On May 26, 2006, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for your colon cancer with the software program known as NIOSH-IREP. These calculations show that there is a 20.14% probability that your colon cancer was caused by your exposure to radiation during the period of your covered employment.
Because the evidence of record does not establish that your colon cancer was “at least as likely as not” (a 50% or greater probability) caused by your employment at a DOE facility within the meaning of 42 U.S.C. § 7384n of the Act, I find that you are not entitled to benefits under Part B of the Act, and that your claim for compensation must be denied.
Steven A. Levin
Final Adjudication Branch
 Oak Ridge Gaseous Diffusion Plant (K-25) was a Department of Energy facility from 1943 to 1987 and from 1988 to the present in remediation, where radioactive materials were present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).
 The Portsmouth Gaseous Diffusion Plant (PGDP), in Piketon, Ohio, is a covered Department of Energy facility from 1952 to July 28, 1998, where radioactive materials were present, as well as from July 29, 1998 to the present, when the facility has been in remediation, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm).
 The Oak Ridge National Laboratory, also known as X-10, was a DOE facility from 1943 to present, where radioactive materials were present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).
 The Brookhaven National Laboratory was a Department of Energy facility from 1947 to present, where radioactive material was present, according to the Department of Energy Office of Worker Advocacy Facility List. (http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm).