Division of Energy Employees Occupational Illness Compensation (DEEOIC)
Below are the head notes for the FAB decisions and orders relating to the topic heading, Cancer, Radiogenic. The head notes are grouped under the following subheadings: Changes in dose reconstruction methodology, Compensable occupational illness, Dose reconstruction, Medical evidence, Part E cancer claims, Probability of causation, and Specified cancers. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.
- DEEOIC directed that all cases potentially affected by the release of OCAS-PEP-013, entitled “Evaluation of the Impact of Changes to the Isotopic Ratios for the Paducah Gaseous Diffusion Plant,” are to be reopened and returned to NIOSH for a new dose reconstruction. EEOICPA Fin. Dec. No. 61433-2006 (Dep’t of Labor, April 25, 2008).
- Under Part B, meningioma is not a compensable occupational illness because it is not a malignant cancer. EEOICPA Fin. Dec. No. 1002-2005 (Dep’t of Labor, January 17, 2006).
- Part B of the Act extends benefits based on cancers that are caused by exposure to radiation. Part B does not extend benefits based on cancers that are caused by exposure to other toxic substances. EEOICPA Fin. Dec. No. 13679-2002 (Dep’t of Labor, January 13, 2005).
- There is no provision under Part B to compensate a claimant for cancer sustained as a result of employment with a beryllium vendor. In order to receive medical benefits and/or compensation, the employee must have been diagnosed with a covered beryllium illness. EEOICPA Fin. Dec. No. 60418-2005 (Dep’t of Labor, June 21, 2005).
- Cancers caused by exposure to non-ionizing radiation are not compensable under Part B. Radiation under Part B is defined to include only ionizing radiation in the form of alpha particles, beta particles, neutrons, gamma rays, x-rays or accelerated ions or subatomic particles from accelerator machines. EEOICPA Fin. Dec. No. 10086042-2010 (Dep’t of Labor, June 22, 2010).
- When claimant is found to be a member of the SEC and to have a “specified” cancer, there is no need for a dose reconstruction by NIOSH. EEOICPA Fin. Dec. No. 2597-2002 (Dep’t of Labor, July 8, 2003).
- If partial dose reconstruction results in compensability, NIOSH will consider a dose reconstruction to be complete. EEOICPA Fin. Dec. No. 3201-2004 (Dep’t of Labor, September 24, 2004).
- When no dosimetry or bioassay records were found for claimant, NIOSH assigned the highest reasonably possible radiation dose using maximizing assumptions related to the radiation exposure and intake, based on current science, documented exposure and recent data. EEOICPA Fin. Dec. No. 5537-2004 (Dep’t of Labor, September 13, 2004); EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004).
- If all primary cancers have not gone through a dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstructions for the remainder of the primary cancers. EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003).
- When calculating an employee’s annual radiation dosage, and all radiation intake for one period occurred near the end of one year, NIOSH will assign that dose intake to the following year. EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003).
- When FAB reviews the dose reconstruction from NIOSH, it may independently analyze the factual information contained therein. EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003).
- NIOSH may add periods of employment that have not been verified by DOE and accepted by OWCP to complete a dose reconstruction. EEOICPA Fin. Dec. No. 16967-2004 (Dep’t of Labor, September 3, 2004).
- A rework of the dose reconstruction was not warranted when the correct employment dates would have resulted in a decrease in the dose and consequently a decrease in the probability of causation. EEOICPA Fin. Dec. No. 16967-2004 (Dep’t of Labor, September 3, 2004).
- A member of the SEC diagnosed with a non-“specified” cancer must have a dose reconstruction. EEOICPA Fin. Dec. No. 23398-2004 (Dep’t of Labor, September 10, 2004).
- Dosimeter and bioassay measurements used by NIOSH to estimate an individual employee’s radiation dose reflect the amount of the employee’s radiation exposure in the work environment, regardless of where he worked in the plant. Factors that may predispose an employee to the carcinogenic effects of radiation to the affected site, such as family history of cancer, exposure to other toxic substances, or effect that radiation dose to other organs or tissues may have on the dose directly to the primary cancer site, are not part of the NIOSH-IREP model. EEOICPA Fin. Dec. No. 28416-2004 (Dep’t of Labor, March 14, 2005).
- NIOSH will only complete dose estimates for the organ or tissue relevant to the primary cancer site(s). EEOICPA Fin. Dec. No. 36328-2004 (Dep’t of Labor, September 27, 2004).
- Medical x-ray doses due to work-related injuries are not included in the dose reconstruction; NIOSH only includes medical x-ray doses that are required as a condition of employment. EEOICPA Fin. Dec. No. 37539-2005 (Dep’t of Labor, November 2, 2005).
- The methodology used by NIOSH in arriving at estimates of radiation doses received by an employee is binding on the FAB. EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004).
- Congress directed the creation of a method of calculating the probability that a radiogenic cancer occurred “in the performance of duty.” The risk models used by NIOSH take into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from the various types of radiation during each year, along with epidemiological studies of cancer rates. EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004).
- Harmless error by NIOSH in dose reconstruction (using ICD-9 code 191 instead of 191.8) is not grounds for NIOSH to rework a dose reconstruction. EEOICPA Fin. Dec. No. 47583-2004 (Dep’t of Labor, February 2, 2005).
- FAB rejected claimant’s argument on petition for reconsideration that NIOSH should have taken into account the employee’s pre-employment and non-employment radiation exposures in its dose reconstruction. Consistent with EEOICPA, which restricts dose to be used to determine probability of causation to radiation exposure occurring solely at a DOE facility, HHS’s regulations governing the dose reconstruction process do not provide for any consideration of pre-employment or non-employment radiation exposures in estimating radiation dose incurred at a DOE facility. EEOICPA Order No. 50245-2004 (Dep’t of Labor, April 14, 2011).
- Even though claim was previously referred to NIOSH for dose reconstruction and denied by the FAB because the resulting probability of causation calculation was less than 50%, claim was subsequently reopened and accepted without a dose reconstruction after HHS designated a new class of employees to be added to the SEC and the employee fell within that class. EEOICPA Fin. Dec. No. 55286-2006 (Dep’t of Labor, August 22, 2008).
- Rework of a dose reconstruction may be necessary if there are significant discrepancies between the dose reconstruction report and the information in the case file. Significant discrepancies may include, for example, the identification of additional cancer(s) or a changed cancer site, changed employment facilities or dates, different ICD-9 codes, or a change in the date of cancer diagnosis. EEOICPA Order No. 62728-2008 (Dep’t of Labor, July 1, 2009).
- Sufficient medical evidence must be presented by the claimant in order to substantiate a diagnosis of cancer. The case record must include medical evidence that lists a cancer diagnosis made by a physician, with tissue examinations described in a pathology report being the most conclusive method of diagnosis. EEOICPA Fin. Dec. No. 13677-2004 (Dep’t of Labor, September 28, 2004).
- A report from a state cancer registry may serve as an alternate to traditional medical evidence of the date of employee’s diagnosis of cancer. EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005).
- A “relapse” of cancer is a recurrence of a previously diagnosed cancer. A relapse that occurs within a covered period of employment will not qualify as a primary cancer under EEOICPA if the initial diagnosis was prior to the start of covered employment. EEOICPA Fin. Dec. No. 51475-2004 (Dep’t of Labor, August 20, 2004).
- Medical evidence submitted by a claimant must include a date of diagnosis because it is needed to determine if a cancer is related to employment at covered facility. EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 2004).
- Employee’s death certificate is sufficient to establish that he was diagnosed with leukemia where the evidence shows that all medical records have been destroyed. EEOICPA Fin. Dec. No. 57599-2005 (Dep’t of Labor, January 4, 2005).
- Survivor who submitted a letter from medical center stating that the employee’s medical records had been destroyed was able to establish the date on which the employee was diagnosed with brain cancer by submitting the physician-signed death certificate, which indicated the date and cause of death (brain tumor), and the interval between the onset of the disease and the employee’s death. EEOICPA Fin. Dec. No. 63258-2005 (Dep’t of Labor, March 11, 2005).
- A Part E cancer claim based on employment at a RECA section 5 facility, for which the employee has not received a section 5 RECA award, will be referred to NIOSH for a dose reconstruction. EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010).
- To establish eligibility for benefits for radiogenic cancer under Part E, an employee must show that he or she: has been diagnosed with cancer; was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and that the cancer was at least as likely as not related to exposure to radiation at a DOE facility or a RECA section 5 facility. EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010).
- If all primary cancers claimed have not gone through dose reconstruction when the 50% threshold has been reached, NIOSH will not complete dose reconstruction for the remainder of the primary cancers. The calculation of additional doses for the remaining primary cancers would only make the final numerical value of the probability of causation larger, and all of the cancers, including those for which NIOSH did not perform a dose calculation, are covered for medical benefits under Part B. EEOICPA Fin. Dec. No. 10522-2004 (Dep’t of Labor, November 14, 2003).
- Relying on a 1978 medical report in which the worker provided a history that he was a “heavy smoker-2ppd x 30 years,” the FAB independently determined the probability of causation using a smoking history parameter of “>40 cig/day (currently).” That parameter was considered to be the most reliable estimate of the employee’s smoking history. EEOICPA Fin. Dec. No. 12659-2004 (Dep’t of Labor, November 6, 2003).
- By definition, a probability of causation of 50% is established using NIOSH-IREP whenever radiation exposure doubles the natural baseline incidence of a particular cancer, regardless of whether the baseline is low or high. EEOICPA Fin. Dec. No. 21570-2005 (Dep’t of Labor, May 26, 2005).
- In determining probability of causation for breast cancer claims, similar doses are required for males and females because the risk coefficient is the same for both sexes. EEOICPA Fin. Dec. No. 21570-2005 (Dep’t of Labor, May 26, 2005).
- Effective February 28, 2006, NIOSH implemented NIOSH-IREP version 5.5, replacing version 5.4. In claim where the first probability of causation calculation was performed by district office using version 5.4 and the second by FAB using version 5.5, but both calculations were more than 50%, there was no change in the outcome of the claim. EEOICPA Fin. Dec. No. 29552-2006 (Dep’t of Labor, April 5, 2006).
- FAB concluded that the effect of the employee’s alleged exposure to radiation prior to her period of covered employment and her non-employment exposure to radiation during her covered employment could not be taken into consideration by DEEOIC as “other relevant factors” in its probability of causation determination under Part B. While EEOICPA directs that the regulatory guidelines for determining the probability of causation for cancer claimed under Part B “shall take into consideration. . .other relevant factors,” the task of devising these guidelines (and taking those “other relevant factors” into account) was assigned by the President to the Secretary of Health and Human Services, not the Secretary of Labor. DEEOIC is required to apply those guidelines, which are incorporated into NIOSH-IREP, and does not have the authority to alter the guidelines to take into account the non-covered employment exposures alleged in this case. EEOICPA Order No. 50245-2004 (Dep’t of Labor, April 14, 2011).
- A medical report that listed a diagnosis of mixed squamous/adenocarcinoma of the lung and stated that the diagnosis was based on the result of a thoracoscopy and nodule removal was sufficient to establish “specified” lung cancer under Part B of the Act. EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002).
- Employee’s liver cancer did not qualify as a “specified” cancer because employee was also found to have cirrhosis of the liver. EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005).
- When medical evidence interchangeably referred to adenocarcinoma of the rectum and the colon but only referenced a single tumor, the claim was considered to be based on a single occurrence of cancer in the rectum. EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 2004).