<Date>
PO Box 12345
City, State Zip
Dear Ms. Claimant:
I am writing in reference to your claim for benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
On December 7, 2005, the Final Adjudication Branch (FAB) issued a Final Decision to deny your claim for breast cancer under Part B, because the probability of causation failed to exceed the 50% threshold for compensability. A subsequent Final Decision of October 24, 2006 denied your claim for breast cancer under Part E, finding insufficient evidence to establish that this condition was related to exposure to toxic substances.
The Regulations provide that a claimant may file a written request that the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopen his/her claim. The decision whether or not to reopen a claim under this section is solely within the discretion of the Director.
On December 9, 2008, you requested reopening of your claim for benefits under Parts B and E of the EEOICPA. I have reviewed the objections and the evidence on file and I find that your case is not in posture for reopening at this time. The attached Denial of Reopening Request provides further explanation of why there is insufficient basis to warrant reopening.
Your case file is being returned to the [district office] of DEEOIC. All future correspondence concerning your claim should be directed to:
DOL DEEOIC Central Mail Room Correspondence
P.O. Box 8306
London, KY 40742-8306
If you have any questions about this Denial of Reopening Request, you may contact the [district office] at [district office telephone number].
Sincerely,
Director,
Division of Energy Employees
Occupational Illness Compensation
EMPLOYEE: Jane B. Claimant
CLAIMANT: Jane B. Claimant
CASE ID: 1234
DOCKET NUMBER(S): XXXXX-2005
XXXXXXXX-2006
DENIAL OF REOPENING REQUEST
The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Regulations provide that a claimant may file a written request that the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reopen his/her claim. The Regulations state that in order to support the request to reopen, a claimant must submit evidence of either covered employment or exposure to a toxic substance, or identify either a change in the probability of causation guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort (SEC). The decision whether or not to reopen a claim under this section is solely within the discretion of the Director.
For the reasons set forth below, the December 9, 2008 reopening request is denied. Accordingly, the December 7, 2005 Part B and the October 24, 2006 Part E Final Decisions of the Final Adjudication Branch (FAB) remain in effect. The case is returned to the Jacksonville District Office.
BACKGROUND
The evidence of record shows that on January 5, 2005, you filed a claim for benefits under the EEOICPA. You claimed that you developed breast cancer as a result of your employment at a covered Department of Energy (DOE) facility.
Form EE-3, Employment History, provides information that describes your employment at the Pinellas Plant, located in Largo, FL, from 1975 until 1997. The DOE was able to establish your employment with General Electric, a known DOE contractor at the Pinellas Plant, from March 3, 1975 to June 10, 1997. With regard to the claimed condition, a pathology report of December 3, 2001 established your diagnosis with breast cancer.
In development of your claims for benefits, the assigned Claims Examiner (CE) referred your case to the National Institute for Occupational Safety and Health (NIOSH) to prepare a radiation dose reconstruction. The DEEOIC used the information supplied in the dose reconstruction report to determine whether your breast cancer is “at least as likely as not” related to radiation exposure during your employment at the Pinellas Plant. For a claim to be compensable under Part B, the probability of causation (PoC) must be 50% or greater. In this case, the dose reconstruction estimates resulted in an 18.26% probability.
Accordingly, on August 22, 2005, the CE recommended denial of your claim for benefits under Part B, finding that your breast cancer was not “at least as likely as not” caused by occupational exposure to radiation. After its independent assessment, the FAB Hearing Representative finalized the denial of your claim in a Final Decision of December 7, 2005.
With regard to your claim under Part E, the CE conducted a search of the Site Exposure Matrices (SEM). The SEM acts as a repository of information related to toxic substances potentially present at covered DOE sites and has information regarding site investigations and Haz-Map (Occupational Exposure to Hazardous Agents) to assist in evaluating causation. Based on the results of the SEM search and a review of all other evidence presented in the case, the CE was unable to find a link between toxic exposure and breast cancer.
In addition to the SEM search, the CE requested that you provide additional information in support of your claim under Part E. Specifically, by letter dated June 30, 2006, the CE requested evidence to support a link between your claimed condition and exposure to a toxic substance. However, you did not provide any additional evidence for consideration.
As such, on August 15, 2006, the CE issued a Recommended Decision to deny your claim for breast cancer under Part E; finding insufficient evidence to establish that the claimed condition was “at least as likely as not” caused, contributed to, or aggravated as a result of exposure to toxic substances during your employment. By Final Decision dated October 24, 2006, a FAB CE finalized the recommendation denying your claim for benefits under Part E of the EEOICPA.
You requested a reopening of your claims under both Part B and Part E of the Act by fax received in the district office on December 9, 2008. Due to the nature of the request, the CE sent your case to the Office of the Director for reopening review.
DISCUSSION
After a careful assessment of your case record, I have concluded there is insufficient evidence to warrant reopening your claim. Your request for reopening cites several technical objections challenging NIOSH’s dose reconstruction methodology. Furthermore, you object to the Part E decision by presenting a list of toxic substances, along with excerpts of scientific journals referencing human and non-human epidemiological studies.
To determine the probability of whether you sustained cancer in the performance of duty, the CE referred your case to NIOSH for radiation dose reconstruction. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date you first were diagnosed with cancer. 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.” On July 26, 2005, you signed the OCAS-1, indicating that you reviewed the NIOSH Draft Report of Dose Reconstruction and that you agreed that it identified all of the relevant information provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on August 2, 2005.
In your letter requesting reopening, you raise a number of points of contention with regard to your Part B claim. These objections to the Part B decision denying your claim are challenges to the dose reconstruction methodology. Methodology used by NIOSH in arriving at reasonable estimates of radiation doses received by an employee is binding on the DEEOIC. However, for thoroughness, a DEEOIC Health Physicist conducted a May 20, 2009 reassessment of your case file along with a re-examination of the NIOSH dose reconstruction methodology. After his assessment, he reported that the assessment of your occupational radiation dose was factually accurate. He also noted that the dose reconstruction derived from an accurate application of dose reconstruction science and NIOSH policy. Therefore, the Health Physicist found no basis for a rework of the dose reconstruction, and as such, I do not have reason to support a reopening of your claim.
In addition to the Health Physicist review, a DEEOIC Toxicologist reviewed the objections with regard to the denial of your claim under Part E. In your request for reopening, you presented references pertaining to chemical substances linked to breast cancer, but did not provide any treatment records or other medical evidence that showed you developed breast cancer as a result of a exposure to an occupational toxin. The DEEOIC Toxicologist reviewed the most recent published literature of occupational medicine regarding toxic chemical exposure in the workplace and the potential development of adverse health effects. She opined that review of the occupational desk references used by occupational health physicians and epidemiologists, which were peer reviewed by scientists, and the review of individual published studies that have investigated breast cancer, did not show a causal link between occupational exposures described in your letter and the development of breast cancer. Given the opinion of the DEEOIC Toxicologist and the lack of any medical evidence showing a link between breast cancer and an occupational toxic substance exposure, I have no basis to reopen the Part E portion of your claim.
In summary, I find that the application of the NIOSH dose reconstruction methodology was appropriate, and there is no basis to warrant reopening your claim under Part B of the Act. Additionally, I find no new evidence to establish a link between toxic substance exposure and the claimed illness that necessitates reopening your claim under Part E.
CONCLUSION
Based upon the foregoing discussion, I find there is insufficient basis to warrant reopening the December 7, 2005 Part B and the October 24, 2006 Part E Final Decisions of the FAB. As such, I have to deny your December 9, 2008 request for reopening. However, if you should obtain new and probative evidence that establishes a link between toxic substance exposure and your claimed conditions of breast cancer, the DEEOIC will reconsider its position.
Washington, D.C.
Director
Division of Energy Employees
Occupational Illness Compensation
CERTIFICATE OF SERVICE
I hereby certify that on a copy of the Denial of Reopening Request was sent by regular mail to the following:
Jane B. Claimant
PO Box 12345
City, State 67890
Director
Division of Energy Employees
Occupational Illness Compensation