|U.S. DEPARTMENT OF LABOR||OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
|FILE NUMBER:||[Number Deleted]|
|DECISION DATE:||January 11, 2016|
NOTICE OF FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for survivor benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. After conducting a thorough review of the evidence of record, FAB reverses the portion of the September 30, 2014 recommended decision that denied your Part E survivor claim, accepts it, and awards you lump-sum compensation in the amount of $125,000.00 for the employee’s death due to lung cancer.
STATEMENT OF THE CASE
The evidence of record shows that you have filed a claim for benefits as the surviving spouse of [Employee] under Part B and Part E of EEOICPA. You claimed that because of his employment at Department of Energy (DOE) facilities, the employee developed lung cancer, brain cancer, abdominal cancer, lymphoma, adenocarcinoma, interstitial lung disease and adrenal metastatic disease.
During development, the district office handling your claim confirmed that the employee worked at the Feed Materials Production Center (FMPC) from September 10, 1990 to June 3, 2003; the Portsmouth Gaseous Diffusion Plant (GDP) from August 25, 2004 to June 24, 2005; the Paducah GDP from June 29, 2005 to January 15, 2006, and again from January 24, 2011 to July 15, 2011; the Oak Ridge GDP from January 16, 2006 to September 24, 2009; and at Argonne National Laboratory – East from October 5, 2009 to October 4, 2010.
With regard to your relationship to the employee, you submitted a copy of your marriage certificate documenting your marriage to the employee on March 17, 1973. A copy of the employee’s death certificate shows that you were married through the date of his death on July 16, 2011. Information listed on the death certificate gives the employee’s cause of death as lung cancer.
After undertaking medical development, the district office proposed denying your claim for survivor benefits on September 30, 2014. The district office recommended the denial of your Part B survivor claim because medical evidence was only available to support that the employee had lung cancer prior to his death, and the probability that his lung cancer was work-related did not exceed the 50% or greater threshold for compensability (the probability of causation was determined to be 39.84%). The district office also proposed denying your Part E survivor claim because review of the employee’s medical records by a Contract Medical Consultant (CMC) did not result in a finding that the employee’s occupational exposure to a toxic substance was “at least as likely as not” a significant factor in causing, aggravating, or contributing to his lung cancer and death.
FAB then reviewed the sufficiency of the recommendation to deny your survivor claims. In a final decision dated July 22, 2015, FAB concluded that the evidence of file supported finalizing the district office’s recommendations on your survivor claims under both Parts B and E. You then challenged the final decision asking for a reconsideration of FAB’s final decision. In support of your request for reconsideration, you submitted an August 18, 2015 medical report by Dr. Karen B. Mulloy. In this report, Dr. Mulloy presented her opinion that the employee’s lung cancer was connected to his occupational toxic substance and radiation exposures. After considering the new evidence, FAB denied your reconsideration request on September 25, 2015.
Ultimately, your Part E survivor claim was brought to the attention of the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) for consideration of whether FAB had properly determined the probative value of the opinion presented by Dr. Mulloy. After a careful assessment of the case file, the Director issued a December 22, 2015 order vacating the portions of FAB’s July 22, 2015 final decision and September 25, 2015 reconsideration denial that related to your Part E survivor claim. The Director did not take any action with regard to your Part B claim or any other illnesses addressed in the final decision issued by FAB.
In issuing her Order, the Director stated several reasons for her action, including that the rules by which DEEOIC evaluates medical opinions require a comparative analysis of the competing opinions to see if one opinion can be assigned greater weight based on several factors, such as familiarity with the patient’s medical history, knowledge of available medical records, application of viable scientific data, and the overall rationale supporting a particular position. The Director’s analysis of the case evidence revealed shortcomings in FAB’s September 25, 2015 reconsideration denial, because it did not contain any reference to the assessment of the weight of medical evidence. Moreover, the Director concluded that a comparative analysis of the competing positions taken by the CMC versus Dr. Mulloy supported assigning the weight of medical opinion to Dr. Mulloy.
The Director noted that the CMC based his position on the fact that the toxic substance exposures sustained by the employee in his administrative position alone would not have been sufficient to cross the threshold of being a significant factor in aggravating, contributing to or causing lung cancer. While the Director noted that this position was reasonable, the analysis was limited solely to the biological and chemical exposures sustained by the employee. The CMC did not consider other factors, namely radiation, that may have played a role in the initiation of cancer.
Comparatively, Dr. Mulloy opined that a work-related promotion of lung cancer existed due to the cumulative effective of ionizing radiation and various chemicals the employee had contact with during the performance of duty. Dr. Mulloy correctly noted that the National Institute for Occupational Safety and Health (NIOSH) had performed a radiation dose reconstruction, which confirmed a whole-body deep dose for all employment periods. She also referenced chemical exposure data derived from the program’s Site Exposure Matrices. As part of her analysis, Dr. Mulloy identified scientific references supporting her position that a synergistic interaction between initiating effects of radiation and promoting agents is known to occur. In addition to the comprehensive nature of her evidentiary analysis, the Director noted that Dr. Mulloy’s report documented her familiarity with the employee’s work history. Finally, the Director noted that Dr. Mulloy had a high level of expertise as an Associate Professor at the Case Western Reserve University Occupational and Environmental Health Clinic.
The Director concluded that Dr. Mulloy presented a more comprehensive assessment of the employee’s exposure to radiogenic and non-radiogenic factors to which the employee was exposed, and that she used this information to come up with a clear and unspeculative opinion that there was a reasonable likelihood the employee’s cancer was work-related. In the absence of any contrary opinion from the CMC on the matter of the synergistic effect of radiation and other toxic substances on the diagnosed cancer, the Director viewed the CMC’s analysis as incomplete and therefore of lesser probative value.
Having carefully considered all of the evidence in the case file, as discussed above, FAB hereby makes the following:
FINDINGS OF FACT
1. You filed a claim for survivor benefits based on the claimed condition of lung cancer.
2. The employee was employed by DOE contractors and worked at: the FMPC from September 10, 1990 to June 3, 2003; the Portsmouth GDP from August 25, 2003 to June 24, 2005; the Paducah GDP from June 29, 2005 to January 15, 2006; the Oak Ridge GDP from January 16, 2006 to September 24, 2009; the Argonne National Laboratory – East from October 5, 2009 to October 4, 2010; and the Paducah GDP from January 24, 2011 to July 15, 2011.
3. The above facilities were covered DOE facilities during the employee’s work at those facilities.
4. During the course of his employment at those DOE facilities, the employee was occupationally exposed to ionizing radiation, arsenic, asbestos, beryllium, cadmium, chromium, diesel exhaust, nickel and crystalline silicon dioxide
5. The employee was diagnosed with lung cancer after his initial exposure to radiation and other toxic substances at a DOE facility.
6. The employee died on July 16, 2011.
7. You were married to the employee at the time of his death and for at least one year immediately prior to his death.
8. Dr. Mulloy opined that it is at least as likely than not that the employee’s exposure to ionizing radiation combined with his exposure to numerous hazardous materials during his employment at multiple DOE facilities was a significant factor that contributed to his lung cancer and his death. The opinion of Dr. Mulloy carries the weight of medical evidence.
9. You certified that you are unaware of any other person(s) who would also qualify for benefits under EEOICPA as a survivor of the employee.
Based on these findings of fact, FAB also makes the following:
CONCLUSIONS OF LAW
The issue for determination before FAB is whether you are eligible for Part E survivor benefits. Given the order of Director, FAB concludes that the evidence is sufficient to support a reversal of the district office’s recommendation to deny that claim and for FAB to conclude that you are an eligible survivor under Part E who is entitled to $125,000.00.
In order to obtain survivor benefits under Part E of EEOICPA, you must first establish that the employee qualifies as a “DOE contractor employee” and that he contracted a “covered illness” (with a specific medical diagnosis and initial diagnosis date) through exposure to a toxic substance at a DOE facility and died as a result of that exposure. This means that you must establish that it is at least as likely as not that his exposure to toxic substances at the FMPC, Portsmouth GDP, Paducah GDP, Oak Ridge GDP and the Argonne National Laboratory – East was a significant factor in aggravating, contributing to, or causing the employee’s lung cancer and his death; and that such toxic substance exposure was related to employment by a contractor at those facilities. EEOICPA defines a “covered illness” as an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2).
The employment findings from the July 22, 2015 final decision establish that the employee worked for DOE contractors at multiple DOE facilities, and therefore he qualifies as a “DOE contractor employee.” The medical evidence discussed in that decision also establishes that he was diagnosed with lung cancer. The employment evidence, including exposure evidence from the DOE facilities where he worked, the NIOSH dose reconstruction and the information from SEM, establishes that he was exposed to numerous toxic substances, including radiation, during his employment at those DOE facilities. The August 18, 2015 report by Dr. Mulloy constitutes the weight of the medical evidence in your Part E claim and establishes that it is at least as likely as not that the employee’s occupational exposure to radiation and other toxic substances at the DOE facilities where he worked was a significant factor in contributing to his lung cancer; therefore, that condition is a “covered illness” under Part E. This finding, coupled with the employee’s death certificate and the report from Dr. Mulloy, also establishes that his lung cancer was a significant factor contributing to his death.
Part E provides that the survivor benefit of $125,000.00 shall be paid to the eligible survivor(s) of a “covered DOE contractor employee” whose death resulted from a “covered illness.” You were married to the employee at the time of his death and for at least one year immediately prior to his death, and you therefore qualify as a “covered spouse” under Part E. On your signed Form EN-16, you certified that you were unaware of any other persons who may also be eligible to receive compensation as a survivor of the employee; therefore, you are the only survivor of the employee eligible to receive survivor benefits under Part E.
As the covered spouse of a “covered DOE contractor employee” who died as a result of a “covered illness,” you are entitled to survivor benefits of $125,000.00 under Part E. Your claim for survivor benefits based on the employee’s death due to lung cancer under Part E is therefore approved for $125,000.00.
William J. Elsenbrock
Final Adjudication Branch