Docket Number: 25854-2006

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION         OFFICE OF WORKERS' COMPENSATION PROGRAMS          DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL         ILLNESS COMPENSATION         FINAL ADJUDICATION BRANCH

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for survivor benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim is hereby accepted.

STATEMENT OF THE CASE

On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA as the surviving spouse of [Employee]. She reported that the employee was employed as a metallurgical operator/scheduler and general clerk at the Rocky Flats Plant[1] from February 1963 to February 1972. The Department of Energy (DOE) verified that the employee was employed at the Rocky Flats Plant from February 25, 1963 to February 3, 1972. Additional records received from DOE documented that the employee by employed by Dow Chemical, a DOE contractor, during his employment at Rocky Flats.

In support of her claim, [Claimant] alleged that the employee was diagnosed with metastatic kidney cancer. A pathology report of the tissue obtained on January 17, 1972 described a diagnosis of clear cell adenocarcinoma of the left kidney. An autopsy report dated February 22, 1972 also provided a diagnosis of adenocarcinoma of the left kidney with metastatic carcinoma to the right adrenal gland, both lungs, pancreatic lymph nodes, and right paravertebral lymph nodes.

The employee’s death certificate reported that he was born on February 22, 1925, that he died on February 2, 1972 at the age of 46, that he was married to [Claimant’s maiden name], and the cause of death was cardiorespiratory arrest due to massive gastrointestinal bleeding and metastatic adenocarcinoma of the left kidney. [Claimant]’s marriage certificate showed that [Employee] and [Claimant’s maiden name] married on October 1, 1939.

On September 10, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of his employment at the Rocky Flats Plant. On October 2, 2006, FAB issued a final decision denying the claim under Part B of EEOICPA for survivor benefits on the ground that the probability of causation was only 30.40%, based on NIOSH’s dose reconstruction.

On August 6, 2007, the Secretary of Health and Human Services (HHS) designated the following classes for addition to the Special Exposure Cohort (SEC): employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort. The SEC designations for these classes became effective September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating at least 250 days during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966, and his name appears on the report of the Neutron Dosimetry Reconstruction Project Report (NDRP).[2] The employee was diagnosed with kidney cancer, a “specified” cancer, more than five years after his first exposure to radiation at the Rocky Flats Plant.

Based on the new designation of two classes of employees at the Rocky Flats Plant as members of the SEC, a Director’s Order was issued on December 4, 2007 that vacated the prior decision on this claim under Part B. On December 12, 2007, the district office issued a recommended decision to accept the claim for survivor benefits under Parts B and E of EEOICPA for kidney cancer and referred the case to FAB for the issuance of a final decision.

On December 13, 2007, FAB received [Claimant]’s signed statement certifying that neither she nor the employee had filed any tort suits or state workers’ compensation claims, that they had not received any awards or benefits related to kidney cancer, that they had not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of his death, had no minor children or children incapable of self support, who were not [Claimant]’s natural or adopted children.

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

FINDINGS OF FACT

1. On March 25, 2002, [Claimant] filed a claim for survivor benefits under EEOICPA.
2. [Claimant] is the employee’s surviving spouse as supported by death and marriage certificates.
3. The employee worked for Dow Chemical, a DOE contractor, at the Rocky Flats Plant, a DOE facility, from February 25, 1963 to February 3, 1972, which is more than 250 days, and the employee’s name appears on the report of the NDRP.
4. The employee was diagnosed with kidney cancer on January 17, 1972, which was at least five years after he first began employment at a DOE facility.
5. Based on the employee’s reported date of birth of February 22, 1925, his normal retirement age (for purposes of the Social Security Act) would have been 65.
6. Neither [Claimant] nor the employee filed a tort suit or a state workers’ compensation claim, received any awards or benefits related to kidney cancer, have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and the employee, at the time of death, had no minor children or children incapable of self support, who were not [Claimant]’s natural or adopted children.

Based on the above-noted findings of fact in this claim, FAB hereby makes the following:

CONCLUSIONS OF LAW

A claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB. 20 C.F.R § 30.310(a) (2008). If an objection is not raised during the 60-day period, FAB may issue a final decision accepting the district office’s recommended decision. 20 C.F.R. § 30.316(a). On December 20, 2007, FAB received written notification from [Claimant] waiving any and all objections to the recommended decision.

As found above, the employee worked at the Rocky Flats Plant for a period of at least 250 work days, during the SEC periods of April 1, 1952 through December 31, 1958, and January 1, 1959 through December 31, 1966. Part B of EEOICPA provides benefits for an employee diagnosed with a “specified” cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility. Such employee is considered “a covered employee with cancer.”

FAB concludes that the employee is a member of the SEC, and because he was diagnosed with kidney cancer, a “specified” cancer. Therefore, FAB also concludes that the employee is a “covered employee with cancer” under Part B since he satisfies the requirements of 42 U.S.C. § 7384l(9)(A).

Under 42 U.S.C. § 7385s-4(a), 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 employee’s death. As used in Part E, the term “covered illness” means an illness or death resulting from exposure to a toxic substance.

Pursuant to 20 C.F.R. § 30.800, years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a DOE facility may be compensable under Part E. In this case, the evidence of record supports that employee experienced wage-loss for the years 1972 through 1990 (when he would have attained his normal Social Security retirement age); thus, additional compensation in the amount of $25,000.00 is payable in addition to the basic survivor award under Part E of $125,000.00.

[Claimant] has established that she is the surviving spouse of the employee as defined by Parts B and E of EEOICPA. Accordingly, she is entitled to compensation under Part B in the amount of $150,000.00, as outlined in 42 U.S.C. § 7384s(a)(1). She is also entitled to compensation under Part E in the amount of $150,000.00 pursuant to 42 U.S.C. §7385s-3(a)(2).

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch