|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION |
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
July 30, 2008
NOTICE OF FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. Your claim for survivor benefits under Part E is accepted and you are awarded compensation in the amount of $125,000.00 for the death due to non-Hodgkin’s lymphoma with metastases to the spine, brain, and lung. Your claim for survivor benefits under Part B of EEOICPA is denied.
STATEMENT OF THE CASE
On October 30, 2006, you filed a Form EE-2 claiming survivor benefits under EEOICPA as a surviving child of [Employee], hereinafter referred to as “the employee,” due to the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors. You indicated your belief on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC). You submitted a child support order establishing that your date of birth was May 2, 1991, and that the employee was your father.
A November 14, 2003 pathology report diagnosed the employee with non-Hodgkin’s lymphoma. The employee’s death certificate established the date of death as June 11, 2006, that the cause of death was cardiopulmonary arrest with another significant condition of lymphoma, and that there is no surviving spouse. Also submitted was medical evidence supporting the diagnoses of metastatic lung, brain and spine cancer.
On Form EE-3, you alleged that the employee worked as a laboratory technician at the Savannah River Site (SRS) in Aiken, South Carolina, in 1990 or 1991, and that he wore a dosimetry badge. The Department of Energy (DOE) confirmed that the employee worked at the SRS from January 24, 1991 to March 18, 1992.
The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers. These data have been organized into a Site Exposure Matrix (SEM), which allows claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. Data retrieved from SEM was examined to determine if there was any identified toxic substance that had a health effect relating to the claimed illnesses. The district office examined data from SEM but was unable to identify any toxic substance for the employee’s labor category that had a health effect relating to the claimed illnesses.
In a letter dated April 12, 2007, the Jacksonville district office advised you of the requirement under Part E to establish that it is at least as likely as not that exposure to toxic substances at a DOE facility was a significant factor in causing, aggravating, or contributing to the claimed illness and the employee’s death from the claimed illness. You were also asked to submit additional employment information regarding the employee’s job title. You were given time to respond. No other medical evidence was received.
To determine the probability of whether the employee sustained his cancer in the performance of duty, as required to establish entitlement under Part B of EEOICPA, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”
You signed Form OCAS-1 on March 19, 2008, 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. The district office received the final NIOSH Report of Dose Reconstruction on April 10, 2008. Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 13.22% probability that the employee’s cancer was caused by his radiation exposure at the SRS.
On April 25, 2008, the district office issued a decision recommending denial of your claim for survivor benefits under both Part B and Part E of EEOICPA because the probability of causation was less than 50% and because it was not at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma and death. An addendum advised you of your right to file objections and/or request a hearing within sixty days of issuance. That period ended on June 24, 2008. To date, no objection or request for hearing has been received.
The FAB conducted an independent SEM search and found several toxic substances to which the employee may have been exposed in the course of his employment at the SRS. The case was then referred to a District Medical Consultant (DMC) for review and an opinion on the possible relationship between the employee’s illnesses and his occupational exposure to toxic substances. In a report dated May 1, 2008, the DMC opined that exposure to toxic substances at the SRS (including solvents, pesticides and benzene) was at least as likely as not a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma with lung, brain, and spinal metastases and that “the metastases to the spine, brain, and elsewhere significantly contributed to the employee’s death.”
The FAB performed an independent analysis of the NIOSH radiation dose reconstruction, confirmed the 13.22% probability of causation calculation, and hereby makes the following:
FINDINGS OF FACT
- On October 30, 2006, you filed a claim for survivor benefits under EEOICPA based on the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors.
- The employee was diagnosed with non-Hodgkin’s lymphoma on November 13 , 2003.
- The employee worked for Westinghouse Savannah River Company at the SRS from January 24, 1991 to March 18, 1992.
- The employee died on June 11, 2006 from cardiopulmonary arrest and lymphoma and was never married.
- You are the biological child of the employee and you were 15 years old at the time of the employee’s death.
- The probability that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure at the SRS was less than 50%.
- There is sufficient evidence in the file to establish that exposure to toxic substances at the SRS was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma with metastases and that the metastases to the brain and spine significantly contributed to the employee’s death.
Based on the above findings of fact, the undersigned hereby makes the following:
CONCLUSIONS OF LAW
The implementing regulations provide 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 and whether a hearing is desired. 20 C.F.R. § 30.310(a) (2008). 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 or if the claimant waives any objections to the recommended decision, the FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).
The “claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category” and providing “all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.” 20 C.F.R. § 30.111. Any claim that “does not meet all the criteria for at least one of the categories, set forth in the regulations, must be denied.” 20 C.F.R. § 30.110(b), (c).
Under Part B of EEOICPA, you meet the definition of a “child” and a “covered employee with cancer” is an individual with a “specified” cancer who is a member of the SEC, if and only if that individual contracted that “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee). 42 U.S.C. § 7384l(9)(A). The employee was not a member of the SEC.
Part B of the Act established a compensation program to provide a lump-sum payment and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium or silica while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors. A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility. 42 U.S.C. § 7384n(b).
Based on my review of the evidence of record and the recommended decision, I conclude that you are not entitled to compensation under Part B because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure received at a DOE worksite in the performance of duty. Therefore, your claim for benefits under Part B is denied.
You also meet the definition of a “covered” child under Part E of EEOICPA, 42 U.S.C. § 7385s-3(d)(2). Under Part E, specific criteria must be met to establish that the employee contracted an illness through exposure at a DOE facility. Under Part E, a “covered illness” means an illness or death that resulted from exposure to a toxic substance at a DOE facility. See 42 U.S.C. § 7385s(2).
The evidence of record establishes that it is “at least as likely as not” that exposure to toxic substances at a DOE facility during a covered time period was a significant factor in causing the employee’s claimed illnesses of non-Hodgkin’s lymphoma with metastases to the brain and spine. I conclude that there is sufficient evidence to prove that toxic exposure at a DOE facility was at least as likely as not a significant factor in causing, aggravating, or contributing to the claimed condition(s) and to the employee’s death. Therefore, you are entitled to survivor benefits in the amount of $125,000.00 under Part E of EEOICPA.
Sidne M. Valdivieso
Final Adjudication Branch