Sample Recommended Decision

 

EMPLOYEE:                                                             Steven C. Smith

 

CLAIMANT:                                                            Steven C. Smith

 

FILE NUMBER:                                                       XXX-XX-1234

                                               

NOTICE OF RECOMMENDED DECISION

 

This is a Recommended Decision of the Jacksonville District Office concerning your claim for benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or Act)The district office recommends acceptance of your claim for skin cancer under both Part B and Part E of the EEOICPA. The district office further recommends that your claim for fibromyalgia be denied under both Part B and Part E of the Act. Finally, your Part E claim for chronic obstructive pulmonary disease (COPD) is being deferred pending further development.

 

STATEMENT OF THE CASE

 

On June 24, 2006, you filed a claim for benefits under Part B and Part E of the EEOICPA, alleging that you had developed skin cancer and fibromyalgia as a result of your employment at a Department of Energy (DOE) facility. On September 21, 2006, you amended your Part E claim to include the condition of COPD.

 

You stated that you worked as a scientist at the Savannah River Site (SRS) in Aiken, S.C., from September 1, 1974 through April 1, 2004. The Oak Ridge Institute for Science and Education (ORISE) and the DOE were able to confirm your employment at the SRS with E.I. DuPont from September 1, 1974 until June 1, 1989; and with Westinghouse from April 1, 1989 to February 28, 2004. Both E.I. DuPont and Westinghouse are known DOE contractors at the SRS, which is a covered DOE facility.

 

Additionally, you submitted medical evidence in support of your claims, including a pathology report dated November 27, 2001 which confirmed that you were diagnosed with basal cell carcinoma (BCC) of the left arm. Your diagnosis with fibromyalgia was established by a January 14, 2003 medical narrative signed by Dr. Joseph Stein. A series of chest x-rays and a Pulmonary Function Test performed in 2006 indicate that you have also been diagnosed with COPD. On November 12, 2006, you participated in an occupational history interview in which you stated that you worked as a scientist at the SRS. You claimed that you were responsible for collecting and processing water and sediment samples, and that during the course of your employment, you collected materials that were contaminated with heavy metals and organic contaminate.

 

Under Part B, in order for a claim to be adjudicated, it must be forwarded to the National Institute for Occupational Safety and Health (NIOSH) to prepare a radiation dose reconstruction. Your case was forwarded to NIOSH, and on December 18, 2007, the district office received the “NIOSH Report of Dose Reconstruction”, which provided the estimate of radiation dose related to your skin cancer. Using the NIOSH Interactive RadioEpidemiological Program (NIOSH-IREP), the district office calculated the probability that your skin cancer was related to exposure to radiation during your employment at the SRS. In this case, the probability of causation was calculated to be greater than 57.6%; which is higher than the 50% requirement for compensability.

 

With regard to your Part B claim for fibromyalgia, the district office issued a letter dated January 15, 2008 advising you that the condition was not an occupational illness compensable under Part B.  It was explained that occupational illnesses under Part B only include chronic beryllium disease (CBD), beryllium sensitivity, chronic silicosis and radiogenic cancer. This letter also requested that you submit evidence to establish a causal link between occupational toxic substance exposure and fibromyalgia. However, no additional evidence was received.

 

To assist in the development of your fibromyalgia claim under Part E, the district office performed searches of the U. S. Department of Labor Site Exposure Matrices (SEM) to determine the toxic substances that you were potentially exposed to at the SRS. The SEM acts as a repository of information related to toxic substances potentially present at covered DOE sites and has information regarding site investigations and Haz-Map (Occupational Exposure to Hazardous Agents) to assist in evaluating causation.  Based on the SEM search and review of all available evidence, the district office was unable to find a link between toxic exposure and fibromyalgia. Accordingly, a second letter dated February 20, 2008 was issued requesting you submit additional evidence to establish that toxic substances you were exposed to at the SRS are associated with the onset of fibromyalgia. To date, no such evidence has been received.

 

 

EXPLANATION OF FINDINGS

 

Based on the employment verification received from the DOE, it is accepted that you were a DOE contractor employee at the SRS with E.I. DuPont from September 1, 1974 until June 1, 1989; and with Westinghouse from April 1, 1989 to February 28, 2004.   Medical evidence further establishes that you have been diagnosed with skin cancer, fibromyalgia and COPD.

 

With regard to the claim for skin cancer, as is explained in EEOICPA PM 2-0900:

 

Under Part B, a covered employee seeking compensation for cancer, other than as a member of the SEC seeking compensation for a specified cancer, is eligible for compensation only if DOL determines that the cancer was "at least as likely as not" (that is, a 50% or greater probability) caused by radiation doses incurred in the performance of duty while working at a DOE facility and/or an Atomic Weapons Employer (AWE) facility.

 

In this case, the dose reconstruction performed by NIOSH was used to calculate a probability of causation finding of 57.6%.  Therefore, it is accepted that your diagnosed skin cancer is a compensable Part B occupational illness.

 

With regard to your claim for skin cancer under Part E, PM 2-0900.19.a.1 provides guidance explaining that medical conditions approved under Part B are given a presumption of causation under Part E. As you were a DOE contractor employee, and your claim for skin cancer is found compensable under Part B, it is also accepted that you qualify for Part E benefits for that condition. 

 

As is delineated under the EEOICPA, Part B coverage only extends to covered beryllium disease, cancer, and silicosis.  Fibromyalgia is a systemic pain syndrome disorder and is not a compensable occupational illness under Part B, as it does not fall within one of the compensable disease categories.  However, fibromyalgia is a claimable illness under Part E, as that part of the Act provides that any illness may be considered, as long as it results from work-related exposure to a toxic substance.

 

Regulations at 20 C.F.R. § 30.230 state that in order to meet the eligibility criteria under Part E, it must be established that  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 illness. Development was undertaken to ascertain whether fibromyalgia was scientifically known to be linked to exposure to a toxic substance.  However, evidence reviewed in your case failed to show any established link between occupational exposure to a toxic substance and the onset of fibromyalgia.  In addition, you were asked to supply any information in support of your claim; however, we did not receive any evidence to support your claim that this disorder is associated with your employment. Accordingly, there is insufficient probative evidence to establish that occupational exposure to a toxic substance caused, contributed to, or aggravated your diagnosed condition of fibromyalgia.  Therefore, you are not eligible to receive benefits under Part E for this condition.

 

With regard to your claim for COPD, it is noted that development continues with regard to linking the illness to occupational toxic substance exposure.  For this reason, no recommendation can be made with regard to the condition at this time and the matter is deferred. 

 

Finally, as required by 20 C.F.R. § 30.505, the district office has confirmed that you have not filed for or received compensation or medical coverage in connection with the condition of skin cancer; have not filed for state workers’ compensation benefits in connection with this condition; and that you have never pled guilty or been convicted of any charges in connection with an application for or receipt of federal or state workers’ compensation.

 

CONCLUSIONS OF LAW

 

The employee is a covered DOE contractor employee with a covered illness under Part E, as those terms are defined in 42 U.S.C. § 7385s(1) and § 7385s(2). With regard to Part B, the employee is a covered DOE contractor with an occupational injury, as defined in 42 U.S.C. § 7384l(15).

 

It is recommended that your claim for benefits for the condition of skin cancer be accepted under both Part B and Part E of the Act, in accordance with 42 U.S.C. 7384 l (15) and 42 U.S.C. 7385s (2). As such, it is recommended that that you be awarded lump-sum compensation in the amount of $150,000.00 under Part B of the EEOICPA. Additionally, the district office recommends payment of medical benefits for this illness under Part B and Part E, commencing the date of filing, June 24, 2006.

 

The evidence of file fails to establish that toxic substance exposure “at least as likely as not” caused, contributed to, or aggravated your claimed illness of fibromyalgia, in accordance with 42 U.S.C. 7384 l (15) and 42 U.S.C. 7385s (2). As such, the district office recommends that your claims for benefits for fibromyalgia be denied under both Part B and Part E of the Act.

Prepared by:

                       

_____________________________                          ____________  

(Name of Appropriate Signatory)                         Date

 

 

 

Sample Notice of Recommended Decision and Claimant Rights

 

NOTICE OF RECOMMENDED DECISION AND CLAIMANT RIGHTS

 

The district office has issued the attached Recommended Decision on your claim under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  This notice explains how to file objections to the Recommended Decision.  This notice also explains what to do if you agree with the Recommended Decision and want the Final Adjudication Branch (FAB) to issue a Final Decision before the 60-day period to object has ended.  Read the instructions contained in this notice carefully.

 

IF YOU WISH TO OBJECT TO THE RECOMMENDED DECISION:

 

If you disagree with all or part of the Recommended Decision, you MUST file your objections within sixty (60) days from the date of the Recommended Decision by writing to the FAB at:

 

U.S. Department of Labor, DEEOIC

Attn: Final Adjudication Branch

FAB Address

City, State ZIP

Fax #: 

 

If you want an informal oral hearing on your objections, at which time you will be given the opportunity to present both oral testimony and written evidence in support of your claim, you MUST request a hearing when you file your objections.   If you have special needs (e.g., physical handicap, dates unavailable, driving limitations, etc.) relating to the scheduling (time and location) of the hearing, those needs must be identified in your letter to the FAB requesting a hearing.  In the absence of such a special need request, the FAB scheduler will schedule the hearing and you will be notified of the time and place. If you do not include a request for a hearing with your objections, the FAB will consider your objections through a review of the written record, which will also give you the opportunity to present written evidence in support of your claim.  If you fail to file any objections to the Recommended Decision within the 60-day period, the Recommended Decision may be affirmed by the FAB and your right to challenge it will be waived for all purposes.

 

IF YOU AGREE WITH THE RECOMMENDED DECISION:

 

If you agree with the Recommended Decision and wish for it to be affirmed in a Final Decision without change, you may submit a written statement waiving your right to object to it to the FAB at the above address.  This action will allow the FAB to issue a Final Decision on your claim before the end of the 60-day period for filing objections.  If you wish to object to only part of the Recommended Decision and waive any objections to the remaining parts of the decision, you may do so.  In that situation, the FAB may issue a Final Decision affirming the parts of the Recommended Decision to which you do not object.

 

BE SURE TO PRINT YOUR NAME, FILE NUMBER AND DATE OF THE RECOMMENDED DECISION ON ANY CORRESPONDENCE SUBMITTED TO THE FAB.

 

Please be advised that the Final Decision on your claim may be posted on the agency’s website if it contains significant findings of fact or conclusions of law that might be of interest to the public.  If it is posted, your Final Decision will not contain your file number, nor will it identify you or your family members by name.