Docket Number: 47583-2004

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under Part B of 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 stated below, your claim is denied.

STATEMENT OF THE CASE

On July 25, 2003, you filed a claim (Form EE-1) for benefits under Part B of the EEOICPA. On the Form EE-1, you identified brain cancer, oligodendroglioma, as the diagnosed condition for which you sought compensation. In support of your claim, you submitted medical records that discuss an April 3, 2003 biopsy of the brain tumor which revealed an anaplastic oligodendroglioma. The Department of Energy (DOE) verified that you were employed by various contractors at the Hanford[1] site intermittently from 1964 thorugh 1998.[2] The medical and employment evidence submitted show that you were diagnosed with brain cancer after beginning employment at a DOE facility.

To determine the probability that you sustained cancer in the performance of duty while employed at the Hanford site, on September 10, 2003 the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction. On April 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 May 5, 2004, NIOSH provided the district office with a copy of the dose reconstruction report in which you were given an overestimate of radiation dose using claimant-favorable assumptions related to radiation exposure and intake. NIOSH considered the internal and external radiation doses based on dosimetry records from the DOE, dosimetry parameters applicable to the Hanford site, current science, and information obtained in the computer assisted telephone interview (CATI). Using the dose estimates provided by NIOSH and the software program NIOSH-IREP, the district office calculated the probability of causation for the brain cancer. These calculations show that the probability that your cancer was caused by exposure to radiation during your employment at the Hanford site is 25.05%.

In review of your case file, the district office noticed that NIOSH performed the dose reconstruction based on ICD-9 code 191 instead of the correct ICD-9 code 191.8. However, NIOSH procedure indicates that the models used in the external and internal dose reconstruction and the IREP model are the same for all ICD-9 codes under 191. The dose reconstruction as performed is appropriate and is not affected by the fourth digit (in this case). Accordingly, on June 1, 2004, the district office issued a recommended decision to deny your claim for benefits. The district office found that you filed a claim under Part B of the EEOICPA on July 25, 2003 but that your brain cancer is not “at least as likely as not” caused by your employment at a covered facility, within the meaning of 42 U.S.C. § 7384n(b). As such, the district office concluded that you are not a “covered employee with cancer” as defined by 42 U.S.C. § 7384l(9)(B)(i) and that you are not entitled to compensation under Part B of the EEOICPA.

On July 23, 2004, the FAB received your written objections to the recommended decision. In your letter of objection you specifically objected to the fact that the NIOSH dose reconstruction failed to show that your cancer was “at least as likely as not related” to your employment at the Hanford site. On September 8, 2004, a hearing was held via telephone attended by your authorized representative, [Name of Representative]. Throughout the hearing testimony and in your letter of objection, it was stated that the use of the wrong ICD-9 code and the incorrect location of the tumor (left versus right) in the dose reconstruction needs further investigation. You did not submit any additional evidence to support your objections.

After considering the evidence of record, the NIOSH report, your objections to the recommended decision, and after conducting a hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1. You were employed at a covered DOE facility, the Hanford site, during a covered period.

2. You were diagnosed with a covered occupational illness, brain cancer, after beginning employment at a DOE facility.

3. There is a 25.05% probability that the brain cancer was caused by exposure to radiation during your employment at the Hanford site.

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

CONCLUSIONS OF LAW

The purpose of the EEOICPA is to provide “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d(b). In order to be afforded coverage, the claimant must first establish that the employee had been diagnosed with an “occupational illness,” defined by the Act as “a covered beryllium illness, cancer referred to in § 7384l(9)(B). . .or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). You identified and submitted medical documentation consistent with the diagnosis of brain cancer, which is a cancer covered under the EEOICPA.

The Act explains that a “covered employee with cancer” is, among other things, a DOE or AWE employee who contracted that cancer after beginning employment at a DOE or AWE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty. 42 U.S.C. § 7384l(9)(B). In order to establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs the district office to forward a complete copy of your case record to NIOSH for dose reconstruction. 20 C.F.R. § 30.115. NIOSH attempts to determine how high the exposures could possibly be for someone who worked at the Hanford site during the covered period, given what is known about the exposures of the workers. This approach forms the basis for the NIOSH dose reconstruction using a series of the highest exposures for various exposure modes (internal vs. external) at different times during the duration of the entire project.

NIOSH’s approach to conclude the dose reconstruction process based on claimant-favorable assumptions, which includes using the same model for ICD-9 code 191 and ICD-9 code 191.8, is consistent with its methodology. Section 30.318 of the regulations states that “The methodology used by HHS in arriving at reasonable estimates of the radiation doses received. . .is binding on the FAB.” 20 C.F.R. § 30.318. Therefore, your request for a re-work to consider the location of the brain tumor and the correct ICD-9 code is a challenge to the methodology utilized by NIOSH and will not be addressed by the FAB.

Based on NIOSH’s findings, the district office determined that the probability that your brain cancer was caused by exposure to radiation during your employment at the Hanford site is 25.05%. The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is a 25.05% probability that your cancer is related to your employment at the Hanford site. Since your probability of causation is less than 50%, it is determined that you did not incur cancer in the performance of duty for an AWE or DOE facility. Accordingly, you do not meet the statutory definition of a “covered employee with cancer” and your claim for compensation must be denied.

I find that the district office’s June 1, 2004 recommended decision is correct and I accept those findings and the recommendations of the district office. Accordingly, your claim for compensation under Part B of the EEOICPA is hereby denied.

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch