|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION |
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
October 25, 2004
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch 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). For the reasons set forth below, your claim for benefits is denied.
STATEMENT OF THE CASE
On July 31, 2001, you filed a claim for benefits under the EEOICPA listing endometrial adenocarcinoma, colon carcinoma and another lung condition identified as lung collapsed as the medical conditions on which your claim is based. An operative report dated May 27, 1994 provides a diagnosis of endometrial adenocarcinoma. An operative report dated June 16, 1997 provides a diagnosis of colon carcinoma. The district office informed you that the claimed lung condition is not covered under the Act.
The employment history form, EE-3, states that you were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 1979 to March 1995. DOE verified your employment at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.
You further stated on the EE-3 that you worked for KID Broadcasting, Company from 1954 to 1975 and that while covering news stories, you frequently worked at sites where radiation and contamination were present. You did not however claim that this employment was with the Department of Energy (DOE), one of its contractors or subcontractors or a beryllium vendor. As noted by the district office in the recommended decision, visiting a covered facility is not considered covered employment for the purposes of this benefit program.
To determine the probability that you sustained cancer in the performance of duty, the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Idaho National Engineering and Environmental Laboratory. On June 9, 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 provided to NIOSH.
On July 1, 2004, NIOSH provided the district office with a copy of the dose reconstruction. The report states that NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data. Based on the dose reconstruction, NIOSH estimated that the dose to the uterus was 19.276 rem (roentgen equivalent man) and the dose to the colon was 20.613 rem. According to the dose reconstruction report, the NIOSH reported dose is a significant overestimate of your occupational radiation dose.
Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was a combined total probability of 26.18% that your endometrial adenocarcinoma and your colon carcinoma were caused by radiation exposure at the Idaho National Engineering and Environmental Laboratory.
On August 12, 2004, the Cleveland district office issued a recommended decision to deny your claim for compensation benefits. Based on the evidence contained in the case record, the district office concluded that the claim for another lung condition, identified as “lung collapsed” does not qualify you as a covered employee under 42 U.S.C. § 7384l(1), as this condition is not an occupational illness, per 42 U.S.C. § 7384l(15); you are not a covered employee as defined by 42 U.S.C. § 7384l(9)(B), as you do not meet the requirements shown, 42 U.S.C. § 7384n(b); the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10 and the Probability of Causation was completed 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. Part 81. The calculation was based on multiple primary cancer sites and was completed in accordance with 42 C.F.R. §81.25.
FINDINGS OF FACT
- You filed a claim for benefits under the EEOICPA on July 31, 2001.
- You were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.
- The first diagnosis of endometrial adenocarcinoma was made on May 27, 1994, after you began employment at a covered facility.
- The first diagnosis of colon carcinoma was made on June 16, 1997, after you began employment at a covered facility.
- NIOSH reported annual dose estimates for your cancers from the date of initial radiation exposure during covered employment, to the date of the cancers’ first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 25, 2004.
- The undersigned has verified that there is a combined total of 26.18% probability that the cancers were caused by your occupational radiation exposure during your covered employment at the Idaho National Engineering and Environmental Laboratory (INEEL).
- The probability of causation value is less than 50%, and shows that your endometrial adenocarcinoma and your colon carcinoma are not “at least as likely as not” related to employment at the covered facility.
- You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations.
CONCLUSIONS OF LAW
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 the EEOICPA regulations specifies, if the 60-day period expires and no objections are filed, the Final Adjudication Branch 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).
Based on my review of you case record, I find that the evidence in the record does not establish that you are entitled to compensation under the Act because the calculation of “probability of causation” does not show that there is a 50% or greater chance that your cancers were caused by radiation exposure received at the Idaho National Engineering and Environmental Laboratory (INEEL) in the performance of duty. Pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that the district office’s August 12, 2004 recommended decision is correct and I accept those findings and the recommendation of the district office. 20 C.F.R. § 30.316(a)
Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.
Linda M. Parker