Docket Number: 50214-2005

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee]. You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma). The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003. Those records also show findings of cirrhosis of the liver. You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000. You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse. The death certificate shows the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003. You did not indicate the location of your husband’s employment. The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003. The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status. See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115. On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH. On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction. Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP. The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d). Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3). The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B). The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record. Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

FINDINGS OF FACT

1. You filed a claim for benefits on October 16, 2003.

2. Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3. Your husband was diagnosed with liver cancer on September 15, 2003. The medical evidence also indicated findings of cirrhosis.

4. The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5. Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

6. You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on December 20, 2004. I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

You filed a claim based on liver cancer. Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made. See 20 C.F.R. § 30.211. Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility. See 42 U.S.C. § 7384l(9). The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility. See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP. The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC. The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver. Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A). For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP. Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record. See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under Part B of the Act. Accordingly, your claim for benefits is denied.

Cleveland, OH

_______________________________________

Tracy Smart

Acting FAB Manager

Final Adjudication Branch