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Below are the head notes for the FAB decisions and orders relating to the topic heading, Cancer. The head notes are grouped under the following subheadings: Changes in dose reconstruction methodology, Cancers not compensable under Part B, 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.

Changes in dose reconstruction methodology

  • 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).

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Cancers not compensable under Part B

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Dose reconstruction

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Medical evidence

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Part E cancer claims

  • 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).
  • FAB accepted survivor’s Part E claim based on cancer even though NIOSH’s dose reconstruction report resulted in a probability of causation calculation of less than 50%. In this case, a physician opined that the employee’s combined exposure to radiation (as confirmed in NIOSH’s dose reconstruction report) and other toxic substances contributed to his death due to lung cancer. EEOICPA Fin. Dec. No. 20140930-12000353-2 (Dep’t of Labor, January 11, 2016).
  • Survivor found entitled to lump-sum payment under Part E based on a physician’s opinion that the employee’s combined exposure to ionizing radiation and other toxic substances at DOE facilities was a significant factor contributing to his death due to lung cancer. The physician’s opinion constituted the weight of the medical evidence because it: (1) was based on scientific references showing that a synergistic interaction is known to occur between radiation and other promoting agents; (2) noted NIOSH’s dose reconstruction report, which confirmed that the employee had exposure to ionizing radiation during his employment periods; (3) referenced exposure data from SEM; (4) showed familiarity with the employee’s work history; and (5) was written by a physician with documented expertise in occupational medicine. On the other hand, the CMC’s report was found to have less probative value because the CMC did not consider the role that radiation may have played in the employee’s cancer. EEOICPA Fin. Dec. No. 20140930-12000353-2 (Dep’t of Labor, January 11, 2016).

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Probability of causation

  • 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).
  • 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).
  • 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).
  • 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).
  • 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).

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Specified cancers

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