|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
|FILE NUMBER:||[Number Deleted]|
|DECISION DATE:||April 18, 2005|
FINAL DECISION AFTER A REVIEW OF WRITTEN RECORD
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 (EEOICPA or the Act). 42 U.S.C. § 7384 et seq.
Since you filed a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with 20 C.F.R. § 30.312 of the implementing regulations. A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with 20 C.F.R. § 30.310 of the implementing regulations. The same section of the regulations provides that in filing objections, the claimant must identify his/her objections as specifically as possible. In reviewing any objections submitted, under 20 C.F.R. § 30.313 of the implementing regulations, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.
For the reasons set forth below, the FAB accepts your claim for medical benefits for the conditions of bladder cancer to include the carcinoma in situ of the right distal ureter; and reverses the decision of the district office denying entitlement to medical benefits for prostate cancer. Thus the FAB also accepts your claim for medical benefits for metastatic prostate cancer.
STATEMENT OF THE CASE
You were previously awarded benefits under the EEOICPA which included a lump sum payment of $150,000, and medical benefits effective July 31, 2001, for bladder cancer (specifically papillary transitional cell carcinoma of the left ureter).
You subsequently submitted a new Form EE-1 (Claim for Benefits under the EEOICPA) on July 21, 2004, which identified bladder cancer diagnosed on May 30, 2004, and prostate cancer diagnosed on June 3, 2004. You submitted medical evidence which included a surgical pathology consultation from the Mayo Clinic, dated June 12, 2004, based on a biopsy of the bladder on May 30, 2004, and prostate chips from a transurethral resection, obtained on June 3, 2004, that shows final diagnoses of urothelial carcinoma in situ and non-invasive papillary urothelial carcinoma of the urinary bladder; and invasive grade 3 urothelial carcinoma of the prostate chips. A narrative report from Daniel W. Visscher, M.D., at the Mayo Clinic, dated June 11, 2004, was also submitted in which he discusses that they agree with the assessment that the focus of invasive carcinoma in the prostate chips correspond to a urothelial carcinoma, and the fact that they did not identify any areas of conventional prostatic adenocarcinoma. A narrative report from Dr. Christopher Schmidt, dated October 21, 2004, noted that you underwent a transurethral resection of the prostate on June 3, 2004, and noted that the pathology report revealed a microscopic focus of invasive urothelial carcinoma. He noted that in summary, you now had a transitional cell carcinoma that had spread from the bladder and was now invasive into the prostatic ducts.
You previously had submitted your employment history on Form EE-3, indicating that you worked at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio, from November 1980 to October 1994, and that you did wear a dosimetry badge. On September 21, 2001, the Department of Energy verified your employment at Portsmouth GDP from November 3, 1980 to November 30, 1994. The Portsmouth Gaseous Diffusion Plant in Piketon, Ohio is recognized as a Department of Energy facility from 1954 to July 28, 1998; from July 29, 1998 to present (remediation); and from May 2001 to present (cold standby). See Department of Energy, Office of Worker Advocacy Facilities List.
On December 22, 2004, the Cleveland district office issued a recommended decision that concluded you are a member of the Special Exposure Cohort, as defined 42 U.S.C. § 7384l(14)(A). Further, the district office concluded that you were diagnosed with bladder cancer, which is a specified cancer as defined by 42 U.S.C. § 7384l(17)(A). In addition, the district office concluded that since you were previously compensated in the amount of $150,000, pursuant to 42 U.S.C. § 7384s(a)(1), for left ureter cancer, you are not eligible for an additional payment. The district office concluded that you are entitled to medical benefits for bladder cancer, effective July 21, 2004, pursuant to 42 U.S.C. § 7384t. The district office also concluded that they did not receive evidence, required by 20 C.F.R. §§ 30.211 and 30.214, to establish that you had prostate cancer, and thus you are not established as a covered employee with prostate cancer as shown in 42 U.S.C. § 7384l(9).
On February 2, 2005, the Final Adjudication Branch received your written objection to the recommended decision. You indicated that you disagreed with the conclusion of law in the recommended decision that the district office did not receive evidence that you had prostate cancer. You indicated that the bladder cancer had invaded the prostate and that only option was surgery to remove both the bladder and the prostate due to the bladder cancer. You noted that you had surgery on January 6, 2005, to remove the bladder and the prostate. You indicated that Dr. Hafez, University of Michigan Medical Center, was the doctor who performed your surgery. You stated “We feel [Employee] should have coverage for anything pertaining to his prostate due to the bladder cancer that invaded the prostate”. Dr. Khaled Hafez M.D. signed your objection and stated that he “was in agreement with the above letter and am available for any further information regarding this case.” You also attached additional medical evidence to your objection that included a copy of a surgical pathology report, from biopsies of the bladder and prostate, obtained on November 18, 2004, that shows diagnoses of urothelial carcinoma (CIS) of the bladder; and invasive high grade urolthelial carcinoma, and flat carcinoma in situ of the prostate. You also submitted an operative report that shows you underwent a radical cystoprostatectomy, right pelvic lymph node dissection, and ileal conduit urinary diversion on January 6, 2005. You also submitted the subsequent surgical pathology report, from these procedures performed on January 6, 2005, that shows diagnoses of urothelial carcinoma in situ of the right distal ureter; and invasive urothelial carcinoma and flat carcinoma in situ, of the urinary bladder and prostate.
FINDINGS OF FACT
- You filed a claim for employee benefits under the EEOICPA based on bladder and prostate cancer on July 21, 2004.
- You were employed at the Portsmouth GDP in Piketon, Ohio, from November 3, 1980 to November 30, 1994.
- You were employed at the Portsmouth GDP for a number of work days aggregating at least 250 work days prior to February 1, 1992, and during such employment was monitored through the use of dosimetry badges.
- On May 30, 2004, you were diagnosed with urothelial carcinoma in situ, and non-invasive papillary urothelial carcinoma of the urinary bladder; on June 3, 2004, with invasive urothelial carcinoma of the prostate; and on January 6, 2005, with urothelial carcinoma in situ of the right distal ureter.
CONCLUSIONS OF LAW
In order for you to be considered a “member of the Special Exposure Cohort,” you must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).
The evidence of record establishes that you worked in covered employment at the Portsmouth GDP from November 3, 1980 to November 30, 1994. Portsmouth GDP is a covered facility beginning on September 1, 1954. Consequently, you met the requirement of working more than an aggregate 250 days at a covered facility. See 42 U.S.C. § 7384l(14)(A). On your employment history (Form EE-3) you stated that you did wear a dosimetry badge and DOE confirmed that you wore a dosimetry badge to monitor for radiation exposure while employed at the facility. On that basis, you are found to meet the dosimetry badge requirement.
Bladder cancer (specifically urothelial carcinoma of the bladder diagnosed on May 30, 2004, and urothelial carcinoma in situ of the right distal ureter diagnosed on January 6, 2005) are specified cancers under the Act and the medical evidence of record establishes a diagnosis of these bladder cancers. Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer. See 42 U.S.C. § 7384l(17)(A). Although prostate cancer is not a specified cancer, the medical evidence clearly establishes that you were diagnosed with invasive urothelial carcinoma of the prostate on June 3, 2004, due to the spread of the urothelial carcinoma of the bladder that invaded the prostate. Therefore, based on the additional medical evidence submitted with your objection, and the signed statement from Dr. Dr. Khaled Hafez M.D. contained in your objection, I find that the prostate cancer is a consequential disease under 20 C.F.R. §§ 30.210(c) and 30.214(b), because the evidence shows that it metastasized from your urothelial carcinoma of the bladder.
For the reasons stated above, I accept your claim for benefits based on bladder cancer to include the right distal ureter cancer, and prostate cancer. You are not entitled to any additional payment since you were previously compensated in the amount of $150,000, for your bladder cancer (specifically papillary transitional cell carcinoma of the left ureter previously diagnosed on September 20, 1996) , pursuant to 42 U.S.C. § 7384s. You are entitled to medical benefits for your additional bladder cancers (specifically urothelial carcinoma of the urinary bladder, and urothelial carcinoma in situ of the right distal ureter) and for your prostate cancer that metastasized from your bladder cancer, effective July 21, 2004. See 42 U.S.C. § 7384t.
Debra A. Benedict
Final Adjudication Branch