Docket Number: 36328-2004

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On September 16, 2002, you filed a claim (Form EE-2) for benefits as the surviving spouse of [Employee]. You identified breast cancer and liver cancer as the diagnosed conditions on which your claim was based. You submitted an employment history form (EE-3) on which you stated that [Employee] was employed at the INEEL site (Idaho National Engineering and Environmental Laboratory) from January 15, 1977 to March 6, 2001 and that she wore a dosimetry badge while employed. As medical evidence, you submitted the following:

1. A copy of a November 7, 2001 hospital summary report which includes the results of the June 12 1998 pathology report in which [Employee] was diagnosed with right breast cancer.

2. A copy of Dr. John H. Ward’s October 28, 1999 medical report in which he stated [Employee] was diagnosed with metastatic breast cancer to the liver.

3. A copy of Dr. William Brant’s February 17, 2000 ultrasound report in which he states [Employee] had multiple masses of metastatic breast carcinoma within the liver.

You submitted a copy of [Employee’s] death certificate that shows she died on March 6, 2001 due to metastatic breast cancer and that you were her spouse at the time of death. You did not submit a copy of your marriage certificate to establish you were married to [Employee] as requested by the district office on September 25, 2002. On October 9, 2002, INEEL representatives Katherine A. Vivian and Lynn E. Rockhold advised the district office by letter that [Employee] was employed at INEEL from March 27, 1978 to February 28, 2001.

To determine the probability of whether [Employee] sustained cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction on November 4, 2002, in accordance with § 30.115 of the implementing regulations. 20 C.F.R. § 30.115. On June 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH. On July 7, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office. Pursuant to § 81.20 of the implementing NIOSH regulations, the district office used the information provided in that report to determine that there was a 30.89% probability that [Employee’s] breast cancer was caused by radiation exposure at the INEEL site. 42 C.F.R. § 81.20.

On July 14, 2004, the district office issued a recommended decision in which it concluded that [Employee] does not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) as she does not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) of the EEOICPA and 42 C.F.R. § 82.10; and that the Department of Labor completed the Probability of Causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. § 81. The district office recommended denial of your claim based on its conclusions.

Section 30.310(a) of the EEOICPA implementing regulations provides that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.”

20 C.F.R. § 30.316(a).

After considering the written record of the claim forwarded by the district office, and after conducting the further development of the claim as was deemed necessary, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits on September 16, 2002.

2. [Employee] was employed at the Idaho National Engineering and Environmental Laboratory, a Department of Energy facility,[1] from August 2, 1976 to December 1, 1981.

3. [Employee] was diagnosed with breast cancer on June 12, 1998.

4. [Employee] died on March 6, 2001 due to metastatic breast cancer.

5. On July 7, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record. On September 14, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 30.89% probability determined by the district office.

6. You did not submit evidence that establishes you are the surviving spouse of [Employee].

7. You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(b) of the EEOICPA regulations.

Based on the above-noted findings of fact in this claim and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that [Employee] was a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. The evidence of record establishes that [Employee] was a DOE employee who contracted breast cancer after beginning her employment at the INEEL. On September 14, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for [Employee’s] breast cancer with the software program known as NIOSH-IREP. These calculations show that there was a 30.89% probability that [Employee’s] breast cancer was caused by her exposure to radiation during the period of her covered employment at the INEEL site. Pursuant to 42 C.F.R. § 82.26, NIOSH will only complete dose estimates for the organ or tissue relevant to the primary cancer site(s). It has been established by the medical evidence of record that [Employee] was diagnosed with multiple masses of metastatic breast carcinoma within the liver. Evidence was not submitted that establishes she was diagnosed with liver cancer; therefore dose estimates were not completed for that organ.

Because the evidence of record does not establish that [Employee’s] cancer was “at least as likely as not” (a 50% or greater probability) caused by her employment at the INEEL site within the meaning of § 7384n of the Act, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Additionally, you did not submit evidence that establishes you are an eligible survivor as defined under the EEOICPA. Pursuant to § 7384s(e)(2) of the EEOICPA, if a covered employee eligible for payment dies before filing a claim under this title, a survivor of that employee may file a claim for such payment. 42 U.S.C. § 7384s(e)(2). Payment may be made to a surviving spouse if it is established that the spouse was married to the employee for at least one year immediately prior to the employee’s death. See 42 U.S.C. § 7384s(e)(3)(A).

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch