Docket Number: 20131202-48867-1

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 20131202-48867-1

DECISION DATE: July 21, 2014

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim for survivor benefits under Part B of EEOICPA based on the employee’s cancer of the appendix and under Part E based on the employee’s death due to cancer of the appendix is approved. You are awarded compensation in the amount of $150,000.00 under Part B and compensation in the amount of $125,000.00 under Part E, for total compensation in the amount of $275,000.00.

 

A determination on your claim for additional survivor benefits based on the employee’s wage-loss under Part E is deferred, pending completion of additional development.

 

STATEMENT OF THE CASE

 

On July 1, 2013, you filed a claim for survivor benefits as the surviving spouse of the employee. You identified cancer of the appendix as a medical condition resulting from the employee’s work at a Department of Energy (DOE) facility. You previously submitted an employment history (Form EE-3) indicating that the employee worked at the Savannah River Site (SRS) in Aiken, South Carolina, from April 3, 1951 to 1967. A representative of DOE confirmed that the employee worked for E. I. Du Pont de Nemours and Company, a DOE contractor, at the SRS from April 3, 1951 to June 1, 1967.[1]

 

You provided copies of the employee’s medical records that included a medical report, signed by Dr. Henry W. Gibson, documenting that the employee was diagnosed with mucocele of the appendix with subsiding acute inflammation and pseudomyxoma peritonei on October 6, 1964. In addition, you provided a medical report, signed by Dr. John C. Hawk, Jr., confirming a diagnosis of pseudomyxoma peritonei arising from the mucocele of the appendix with intestinal obstruction on June 5, 1967. Moreover, you provided a signed statement, dated July 24, 2013, from Dr. Gibson, the employee’s treating physician from 1951 until the time of his death in 1970, indicating that the employee underwent on operation at Barnwell County Hospital on an unspecified date and was found to have carcinoma of the appendix with wide abdominal spread. Furthermore, on September 19, 2013, a Contract Medical Consultant (CMC) reviewed the medical evidence of record and noted that pseudomyxoma peritonei is a unique condition characterized by diffuse collections of gelatinous material in the abdomen and pelvis and mucinous implants on the peritoneal surfaces. The CMC further noted that the term “pseudomyxoma peritonei” was originally applied to intraperitoneal mucinous spread originating from a tumor of the appendix. The CMC determined that a diagnosis of cancer of the appendix is “consistent with the clinical picture of pseudomyxoma peritonei.”

 

You submitted a copy of a marriage certificate documenting that you married the employee on February 29, 1948. In addition, you provided a copy of the employee’s death certificate showing that the employee died on July 28, 1970 and that you were married to the employee at the time of his death. In addition, the death certificate, certified by Dr. Gibson, identifies pseudomyxoma peritonei with obstruction as the immediate cause of the employee’s death.

 

On December 2, 2013, the Jacksonville district office issued a recommended decision finding that you are the only eligible survivor of the employee under Part B and Part E and that the employee is a member of the Special Exposure Cohort (SEC) who was diagnosed with a specified cancer after beginning covered employment at a DOE facility. Specifically, the district office concluded that as colon cancer is a specified cancer, and the appendix falls within the anatomical structure of the colon, cancer of the appendix is also a specified cancer under EEOICPA. The district office recommended acceptance of your claim for survivor benefits under Part B and Part E, and that you be awarded compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E. In accordance with the procedures governing the administration of the Act, the district office then referred its decision to the FAB for an independent assessment of the sufficiency of the recommendation to accept your claim.

 

After independently reviewing the case evidence, FAB determined that cancer of the appendix is not a specified cancer for purposes of assessing eligibility under the statute’s SEC provisions. As such, FAB did not finalize the December 2, 2013 recommendation of the district office. Rather, FAB issued a remand order on February 25, 2014 returning your case record to the district office for further review and the issuance of a new proposal on your entitlement to benefits.

 

Thereafter, the Medical Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a medical report, dated May 7, 2014, detailing the anatomical descriptions of the colon and the appendix as documented in the relevant medical literature. Specifically, the Medical Director noted that the appendix is a wormlike intestinal diverticulum extending from the blind end of the cecum, that the cecum forms the first part of the large intestine and that the colon includes the large intestine extending from the cecum to the rectum. Based upon these anatomical descriptions, the Medical Director concluded that “the appendix is considered a part of the cecum or large intestine and therefore a part of the colon.”

 

Accordingly, on June 17, 2014, the Director of DEEOIC issued a Director’s Order vacating the remand order issued by FAB on February 25, 2014. Based on the findings in the Medical Director’s report, the Director concluded that cancer of the appendix is a specified cancer under EEOICPA. As such, the Director returned the case file to FAB for the issuance of a final decision.

 

I note that you submitted a signed Form EN-16 declaring that you have neither filed a tort suit nor received any settlement or award from a claim or suit related to an exposure for which you would be eligible to receive compensation under EEOICPA. You declared that you have neither filed for nor received any state workers’ compensation benefits on account of the claimed illness. You also declared that you have neither pled guilty to nor been convicted on any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law. You declared that you know of no other persons who may also be eligible to receive compensation under the Act as a survivor of the employee.

 

Based on an independent review of the evidence of record, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. The employee worked for E. I. Du Pont de Nemours and Company, a DOE contractor, at the SRS, a DOE facility, from April 3, 1951 to June 1, 1967.

 

2. The employee was diagnosed with primary cancer of the appendix more than five years after first exposure at the SRS.

 

3. The employee died on July 28, 1970. Pseudomyxoma peritonei with obstruction resulting from cancer of the appendix was the cause of the employee’s death.

 

4. You were married to the employee from February 29, 1948 until the time of his death on July 28, 1970.

 

5. You are the only eligible survivor of the employee under the Act.

 

Based on these findings of fact, the FAB hereby makes the following:

 

CONCLUSIONS OF LAW

 

In order to establish a compensable Part B claim based on an employee’s cancer diagnosis, the evidence of record must establish that the employee is a “covered employee with cancer” in accordance with 42 U.S.C. § 7384l(9). An individual is a covered employee with cancer if that individual is a member of the SEC who contracted a specified cancer after beginning covered employment at a DOE facility.

 

Pursuant to 42 U.S.C § 7384l(14)(C), the Secretary of the Department of Health and Human Services designated a class consisting of all employees of DOE, its predecessor agencies, and their contractors and subcontractors who worked at the SRS from January 1, 1953 through September 30, 1972 for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more classes of employees included in the SEC, as an addition to the SEC in a report to Congress under 42 U.S.C § 7384q. EEOICPA Circular No. 12-08 (issued March 3, 2012).

 

The employee worked for a DOE contractor at the SRS for a period in excess of 250 work days between January 1, 1953 and September 30, 1972. Therefore, the employee is a member of the SEC.

 

Primary colon cancer is a specified cancer provided the onset of the condition occurred at least five years after first exposure pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(M) (2014). Based on the anatomical descriptions of the colon and the appendix as documented in the relevant medical literature, DEEOIC policy establishes that the appendix is considered part of the colon. Therefore, FAB finds that primary cancer of the appendix is a specified cancer. Moreover, the medical evidence of record establishes that the employee was diagnosed with pseudomyxoma peritonei arising from the mucocele of the appendix on October 6, 1964. In addition, the record includes a signed statement from Dr. Gibson, the employee’s treating physician from 1951 until the time of his death, indicating that the employee was found to have carcinoma of the appendix with wide abdominal spread. Furthermore, a CMC reviewed the medical evidence of record and noted that the term “pseudomyxoma peritonei” was originally applied to intraperitoneal mucinous spread originating from a tumor of the appendix and that a diagnosis of cancer of the appendix is “consistent with the clinical picture of pseudomyxoma peritonei.” Accordingly, after carefully reviewing the case record, FAB finds that the record includes a medical report from a qualified physician that lists a cancer diagnosis in accordance with Federal (EEOICPA) Procedure Manual Chapter 2-0900.3a (January 2010), as well as sufficient corroborating evidence to establish that the employee was diagnosed with primary cancer of the appendix more than five years after first exposure at the SRS. Therefore, the employee was diagnosed with a specified cancer after beginning covered employment at a DOE facility.

 

Accordingly, the employee is a covered employee with cancer under Part B in accordance with 42 U.S.C. § 7384l(9)(A) and the employee’s cancer of the appendix is an “occupational illness” under Part B in accordance with 42 U.S.C. § 7384l(15).

 

If a covered employee with cancer is deceased, and the employee is survived by a spouse who is living at the time of payment, the surviving spouse shall receive compensation in the amount of $150,000.00 under Part B for that employee’s occupational illness unless there is at least one child of the employee who is living and a minor at the time of payment and who is not a recognized natural child or adopted child of the surviving spouse. The surviving spouse of an employee is a wife or husband of that employee who was married to the employee for at least one year immediately before the death of the employee. You are the surviving spouse of the employee. Moreover, you are the only eligible survivor of the employee under Part B. Therefore, your claim for survivor benefits under Part B based on the employee’s cancer of the appendix is approved for compensation in the amount of $150,000.00.

 

Under Part E, an eligible survivor of a deceased covered DOE contractor employee shall receive compensation in the amount of $125,000.00 if the employee would have been entitled to compensation under 42 U.S.C. 7385s-4 for a covered illness and 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. 42 U.S.C. § 7385s-3(a)(1)(A)-(B).

 

A positive determination under Part B is treated for the purposes of Part E as a determination that the employee contracted that illness through work-related exposure to a toxic substance at a DOE facility. 42 U.S.C. § 7385s-4(a). As such, FAB finds that the employee is a “covered DOE contractor employee” under Part E in accordance with 42 U.S.C. § 7385s(1) and that the employee’s cancer of the appendix is a “covered illness” under Part E in accordance with 42 U.S.C. § 7385s(2). Therefore, the employee would have been entitled to compensation under Part E for cancer of the appendix pursuant to 42 U.S.C. § 7385s-4.

 

Pseudomyxoma peritonei with intestinal obstruction was the immediate cause the employee’s death. FAB finds that the totality of the medical evidence establishes that the employee developed pseudomyxoma peritonei with resulting intestinal obstruction as a result of a malignant appendiceal tumor. Thus, FAB concludes that the employee’s cancer of the appendix, which is a covered illness resulting from toxic substance exposure, was a cause of the employee’s death. Therefore, 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 in accordance with 42 U.S.C. § 7385s-3(a)(1)(B).

 

A “covered spouse” is the only eligible survivor of a deceased employee under Part E unless there is at least one covered child of the employee who is living at the time of payment and who is not a recognized natural child or adopted child of the covered spouse. A covered spouse is a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death. You are the covered spouse of the employee. Moreover, you are the only eligible survivor of the employee under Part E. Therefore, your claim for survivor benefits under Part E based on the employee’s death due to cancer of the appendix is approved for compensation in the amount of $125,000.00.

 

Based on the foregoing, your claim for survivor benefits under Part B based on the employee’s cancer of the appendix and under Part E based on the employee’s death due to cancer of the appendix is approved. You are awarded compensation in the amount of $150,000.00 under Part B and compensation in the amount of $125,000.00 under Part E for total compensation in the amount of $275,000.00.

 

Washington, D.C.

 

 

 

Ryan Jansen

Hearing Representative

Final Adjudication Branch