<Date>

 

Jane B. Claimant

PO Box 12345

City, State Zip

 

Dear Ms. Claimant:

 

I am writing in reference to your claim for benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). 

 

On December 7, 2005, the Final Adjudication Branch (FAB) issued a final decision to deny your claim for breast cancer under Part B, because the probability of causation failed to exceed the 50% threshold for compensability.  A subsequent final decision of October 24, 2006 denied your claim for breast cancer under Part E, finding insufficient evidence to establish that this condition was related to exposure to toxic substances. 

 

The Regulations provide that a claimant may file a written request that the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopen his/her claim.  The decision whether or not to reopen a claim under this section is solely within the discretion of the Director.

 

On December 9, 2008, you requested reopening of your claim for benefits under Parts B and E of the EEOICPA.  I have reviewed the objections and the evidence on file and find that your case is not in posture for reopening at this time.  The attached Denial of Reopening Request provides further explanation of why there is insufficient basis to warrant reopening. 

 

Your case file is being returned to:

 

U.S. Department of Labor, DEEOIC

Jacksonville District Office

400 West Bay Street, Room 722

Jacksonville, Florida 32202

 

If you have any questions about this Denial of Reopening Request, you may contact the Unit of Policies, Regulations and Procedures at 202-693-0081.

 

Sincerely,

 

 

 

Director,

Division of Energy Employees

Occupational Illness Compensation

 

 


EMPLOYEE:                                                             Jane B. Claimant

 

CLAIMANT:                                                            Jane B. Claimant

 

FILE NUMBER:                                                       XXX-XX-1234

 

DOCKET NUMBER(S):                                         XXXXX-2005

                                                                                    XXXXXXXX-2006

           

DENIAL OF REOPENING REQUEST

 

The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Regulations provide that a claimant may file a written request that the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopen his/her claim.  The Regulations state that in order to support the request to reopen, a claimant must submit evidence of either covered employment or exposure to a toxic substance, or identify either a change in the probability of causation guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort (SEC).  The decision whether or not to reopen a claim under this section is solely within the discretion of the Director. 

 

For the reasons set forth below, the December 9, 2008 reopening request is denied. Accordingly, the December 7, 2005 Part B and the October 24, 2006 Part E final decisions of the Final Adjudication Branch (FAB) remain in effect.  The case is returned to the Jacksonville District Office.

 

BACKGROUND

 

The evidence of record shows that on January 5, 2005, you filed a claim for benefits under the EEOICPA.  You claimed that you had developed breast cancer as a result of your employment at a covered Department of Energy (DOE) facility. 

 

Form EE-3, Employment History, indicates that you were employed at the Pinellas Plant, located in Largo, FL, from 1975 until 1997. The DOE was able to establish your employment with General Electric, a known DOE contractor at the Pinellas Plant, from March, 3 1975 to June 10, 1997.  With regard to the claimed condition, a pathology report of December 3, 2001 established you have been diagnosed with breast cancer.

 

In development of your claims for benefits, your case was referred to the National Institute for Occupational Safety and Health (NIOSH) to prepare a radiation dose reconstruction.  The DEEOIC used the information supplied in the dose reconstruction report to determine whether your breast cancer is “at least as likely as not” related to radiation exposure during your employment at the Pinellas Plant.  For a claim to be compensable under Part B, the probability of causation (PoC) must be 50% or greater. In this case, the dose reconstruction estimates resulted in an 18.26% probability.

 

Accordingly, on August 22, 2005, the district office recommended denial of your claim for benefits under Part B, finding that your breast cancer was not “at least as likely as not” caused by occupational exposure to radiation.  The findings of the district office were subsequently affirmed by the FAB in a final decision of December 7, 2005.

 

With regard to your claim under Part E, the district office conducted a search of the Site Exposure Matrices (SEM). 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 results of the SEM search and a review of all other evidence presented in the case, the district office was unable to find a link between toxic exposure and breast cancer.

 

In addition to the SEM search, the district office requested that you provide additional information in support of your claim under Part E.  Specifically, by letter dated June 30, 2006, the district office requested evidence to support a link between your claimed condition and exposure to a toxic substance.  No additional documentation was received.

 

As such, on August 15, 2006, the district office issued a recommended decision to deny your claim for breast cancer under Part E; finding insufficient evidence to establish that the claimed condition was “at least as likely as not” caused, contributed to, or aggravated as a result of exposure to toxic substances during your employment.  By final decision dated October 24, 2006, the FAB affirmed the findings of the district office, denying your claim for benefits under Part E of the EEOICPA.

 

By fax received on December 9, 2008, you requested reopening of your claims under Both Part B and Part E of the Act.  Due to the nature of the request, your case file was transferred to the Office of the Director for review and consideration of reopening.  

 

DISCUSSION

 

After a careful assessment of your case record, I have concluded there is insufficient evidence to warrant reopening your claim.  The request for reopening cited several technical objections challenging NIOSH’s dose reconstruction methodology.  Furthermore, it challenged the Part E decision by presenting a list of toxic substances, along with human and non-human toxicity excerpts. 

 

To determine the probability of whether you sustained cancer in the performance of duty, the district office referred your case to NIOSH for radiation dose reconstruction.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On July 26, 2005, you signed the OCAS-1, indicating the NIOSH Draft Report of Dose Reconstruction had been reviewed and agreeing that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on August 2, 2005.

 

However, in your letter requesting reopening, you raised a number of points of contention with regard to your Part B claim. These objections to the Part B decision denying your claim are challenges to the dose reconstruction methodology. Methodology used by NIOSH in arriving at reasonable estimates of radiation doses received by an employee is binding on the DEEOIC.  However, the application of this methodology was reviewed by a DEEOIC Health Physicist on May 20, 2009, and found to be based on current science and in keeping with NIOSH policies and procedures. Therefore, there is no basis for a rework of the dose reconstruction, and as such, the Health Physicist found no rationale to support reopening your claim.

 

In addition to the Health Physicist review, a DEEOIC Toxicologist reviewed the objections with regard to the denial of your claim under Part E.  In your request for reopening, you presented references pertaining to chemical substances linked to breast cancer, but did not provide any treatment records or other medical evidence that showed you developed breast cancer as a result of a exposure to an occupational toxin.  The DEEOIC Toxicologist reviewed the most recent published literature of occupational medicine regarding toxic chemical exposure in the workplace and the potential development of adverse health effects.  Review of the occupational desk references used by occupational health physicians and epidemiologists, which were peer reviewed by scientists, and the review of individual published studies that have investigated breast cancer, did not show a causal link between occupational exposures described in your letter and the development of breast cancer.   Given the opinion of the DEEOIC Toxicologist and the lack of any medical evidence showing a link between breast cancer and an occupational toxic substance exposure, there is no reason to reopen the Part E portion of your claim.

 

In summary, I find that the application of the NIOSH dose reconstruction methodology was appropriate, and there is no basis to warrant reopening your claim under Part B of the Act. Additionally, I find no new evidence to establish a link between toxic substance exposure and the claimed illness which necessitates reopening your claim under Part E. 

 

CONCLUSION

 

Based upon the foregoing discussion, I find there is insufficient basis to warrant reopening the December 7, 2005 Part B and the October 24, 2006 Part E final decisions of the FAB.  As such, your December 9, 2008 request for reopening is denied. However, if you should obtain new and probative evidence that establishes a link between toxic substance exposure and your claimed conditions of breast cancer, the DEEOIC will reconsider its position.

 

Washington, D.C.

 

 

 

                                                                        Director

                                                                        Division of Energy Employees

                                                                        Occupational Illness Compensation

 


CERTIFICATE OF SERVICE

 

I hereby certify that on                                a copy of the Denial of Reopening Request was sent by regular mail to the following:

 

Jane B. Claimant

PO Box 12345

City, State 67890

                                   

 

 

Director

Division of Energy Employees

                                                                        Occupational Illness Compensation