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 NUMBERS:

9813-2007

10053825-2007

DECISION DATE:

January 25, 2007

 

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 (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB accepts and approves your claim for compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E, with an additional $25,000.00 awarded under Part E for wage-loss.

 

STATEMENT OF THE CASE

 

On September 10, 2001, you filed a Form EE-2 under Part B as the surviving spouse of [Employee], indicating that he was diagnosed with kidney cancer as the result of his employment at a Department of Energy (DOE) facility.  You filed a new Form EE-2 on May 24, 2006, under Part B and Part E of the EEOICPA, based on the conditions of renal, bone, lung and brain cancers.

 

You submitted a Form EE-3 (Employment History), indicating that [Employee] was employed at the Nevada Test Site (NTS) from 1961 to 1976.  The DOE confirmed that [Employee] was employed at the NTS by Reynolds Electrical & Engineering Company, Inc. (REECo), a DOE contractor, from December 4, 1961 to January 21, 1963, from February 19, 1965 to June 3, 1970, and from April 19, 1971 to July 14, 1972.

 

You submitted medical evidence in support of your claim, including a pathology report concerning tissue from a left upper lung lobectomy performed on January 9, 1974, in which Dr. F. Ali and Dr. J. Mirra diagnosed clear cell carcinoma, with the origin most likely from a kidney primary.  In a pathology report concerning the right kidney which was excised on March 4, 1974, Dr. M. Janssen and Dr. Mirra confirmed a diagnosis of well-differentiated metastatic renal cell carcinoma.

 

You submitted a copy of a marriage certificate showing that [Employee] and you ([Employee’s wife]) were married on March 12, 1945.  A copy of [Employee]’s death certificate showed that his date of birth was August 26, 1922, and that you were married to him at the time of his death on March 17, 1977.  The death certificate, signed by Dr. Russell Miller, listed [Employee]’s cause of death as hypernephroma of the kidney with metastases.  You also submitted documentation evidencing your name change from [Employee’s last name] to [Employee’s wife’s current last name].

 

On January 10, 2002, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether [Employee]’s renal cancer was “at least as likely as not” related to his covered employment.  However, the case was returned on August 7, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS) of certain NTS employees as an addition to the Special Exposure Cohort (SEC).

 

On October 31, 2006, the Seattle district office recommended that your claim for survivor benefits be accepted.  The district office concluded that under Part B, [Employee] is a member of the SEC and he was diagnosed with renal cell carcinoma, which is a specified cancer under the Act.  The district office further concluded that a DOE contractor employee that is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  The district office concluded that, as [Employee] is now deceased as a result of the accepted condition of renal cancer, you, as his eligible survivor, are entitled to receive the basic survivor benefit of $150,000.00 under Part B, $125,000.00 under Part E, plus an additional $25,000.00 under Part E because [Employee] died not less than 10 years before attaining his normal retirement age of 65, for total compensation in the amount of $300,000.00.  The district office noted that no determination on your claim for survivor benefits for the conditions of bone, lung, and brain cancers would be made since you were being awarded the maximum possible survivor benefits under the Act.

 

On October 31, 2006, the Seattle district office received a signed, dated statement from you indicating that neither you nor [Employee] had ever filed for or received any settlement or award from a tort suit related to the claimed exposure to radiation; that neither you nor [Employee] had ever filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to any of the claimed conditions; that neither you nor [Employee] had ever pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and that [Employee] did not have children under the age of 18 or under the age of 23 and enrolled in school full-time from age 18, or children incapable of self-support, at the time of his death.  

 

On November 7, 2006, the FAB received written notification from you indicating that you waive all rights to file objections to the findings of fact and conclusions of law contained in the recommended decision.

 

After considering the evidence of record, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

1.         You filed a claim for survivor benefits under Part B of EEOICPA on September 10, 2001, and under Parts B and E on May 24, 2006.

 

2.         You are the surviving spouse of the employee, [Employee], and were married to him for at least one year immediately prior to his death.

 

3.         [Employee] was employed at the NTS, a covered DOE facility, with REECo, a DOE contractor, for an aggregate of at least 250 work days, between the dates of January 27, 1951 and December 31, 1962; specifically, from December 4, 1961 to January 21, 1963; as well as from February 19, 1965 to June 3, 1970; and from April 19, 1971 to July 14, 1972.  This employment qualifies [Employee] as a member of the SEC.

 

4.         [Employee] was diagnosed with renal cancer, which is a specified cancer under EEOICPA, on January 9, 1974, after starting work at a DOE facility.

 

5.         [Employee] was born on August 26, 1922, and his normal retirement would have been at age 65.  He died on March 17, 1977, at the age of 54, not less than 10 years prior to his normal retirement age.

 

6.         The evidence of record supports a causal connection between the employee’s death due to metastatic renal cancer and his exposure to radiation at a DOE facility. 

 

7.         Neither you nor [Employee] had ever filed for or received any settlement or award from a tort suit related to the claimed exposure to radiation; neither you nor [Employee] had ever filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to any of the claimed conditions; neither you nor [Employee] had ever pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and [Employee] did not have any children under the age of 18 or under the age of 23 and enrolled in school full-time from age 18, or children incapable of self-support, at the time of his death.  

 

Based on the above noted findings of fact, the FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the EEOICPA regulations provides that, 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.  See 20 C.F.R. § 30.316(a).  You waived your right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on your claim for compensation benefits under the EEOICPA.   

 

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the NTS from January 27, 1951 through December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This SEC became effective July 26, 2006. 

 

The employment evidence is sufficient to establish that the employee was employed at the NTS for an aggregate of at least 250 work days of covered SEC employment, specifically, from December 4, 1961 to January 21, 1963; as well as from February 19, 1965 to June 3, 1970; and from April 19, 1971 to July 14, 1972. 

 

The employee was a member of the SEC pursuant to § 7384l(14) of the Act, who was diagnosed with renal cancer, which is a specified cancer under 20 C.F.R. § 30.5(ff)(4); and is, therefore, a “covered employee with cancer” under § 7384l(9)(A) of the Act.  See 42 U.S.C. §§ 7384l(14) and 7384l(9)(A); 20 C.F.R. § 30.5(ff)(4).  Further, you are the surviving spouse of the employee under 42 U.S.C. § 7384s(e)(1)(A) and you are entitled to compensation in the amount of $150,000.00.  See 42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a)(2).

 

The determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a). 

 

The evidence of record establishes that the employee was a “covered DOE contractor employee” as defined by § 7385s(1) in accordance with § 7385s-4(a); and the employee was diagnosed with a “covered illness,” metastatic bone cancer, as defined by § 7385s(2).  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  You are the employee’s covered spouse as defined by § 7385s-3(d)(1).  As your spouse died at the age of 54, which is not less than at least 10 years before his normal retirement age of 65, you are then entitled, pursuant to 42 U.S.C. § 7385s-3(a)(2), to compensation in the amount of $150,000.00.  See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(a), 7385s-3(d)(1) and 7385s-3(a)(2).      

 

Accordingly, you are entitled to total compensation in the amount of $300,000.00.  No adjudication of your claim for survivor benefits for the conditions of bone, lung, and brain cancers will be rendered, as you are being awarded the maximum possible survivor benefits under the Act.  See 20 C.F.R. § 30.506(b); 42 U.S.C. § 7385s-3(b).

 

Seattle, WA

 

 

 

Keith Klose, Hearing Representative

Final Adjudication Branch