Office of Workers' Compensation Programs (OWCP)

Division of Energy Employees Occupational Illness Compensation (DEEOIC)

On This Page Compensable Occupational Illness Dose Reconstruction Medical Evidence Probability of Causation Specified Cancers

Cancer, Radiogenic

Below are the head notes for the final FAB decisions relating to the topic heading, Cancer, Radiogenic. The head notes are grouped under the following subheadings: Compensable occupational illness, Dose reconstruction, Medical evidence, Probability of causation, and Specified cancers. In order to view a particular decision in its entirety, click on the hyperlink for that decision at the end of the head note.

Compensable Occupational Illness

• 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).
• Pursuant to EEOICPA Bulletin No. 03-08 (issued December 16, 2002), 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. 60257-2004 (Dep’t of Labor, November 4, 2004); EEOICPA Fin. Dec. No. 60418-2005 (Dep’t of Labor, June 21, 2005).

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Dose Reconstruction

• NIOSH may add periods of employment that have not been verified by DOE and accepted by OWCP to complete a dose reconstruction. The FAB may accept these dates when determining if the employee meets a 250-workday SEC requirement. EEOICPA Fin. Dec. No. 884-2002 (Dep’t of Labor, May 31, 2006).
• NIOSH may assign “missed dose” in calculating an employee’s radiation dose estimate, which represents the dose that could have been received but may not have been recorded due to the dosimeter detection limits or site reporting practices. EEOICPA Fin. Dec. No. 966-2004 (Dep’t of Labor, November 10, 2004); EEOICPA Fin. Dec. No. 11188-2005 (Dep’t of Labor, March 7, 2005).
• 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. 966-2004 (Dep’t of Labor, November 10, 2004); 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. 966-2004 (Dep’t of Labor, November 10, 2004); EEOICPA Fin. Dec. No. 23398-2004 (Dep’t of Labor, September 10, 2004).
• 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. 966-2004 (Dep’t of Labor, November 10, 2004); EEOICPA Fin. Dec. No. 38748-2004 (Dep’t of Labor, September 13, 2004).
• 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).
• The “total effective dose equivalent” (TEDE) reflects an individual’s total whole body dose incurred over a 50-year period, from all internal and external exposures received during that period. The radiation dose estimated by NIOSH for purposes of EEOICPA, however, is the dose incurred during covered employment up until the date of cancer diagnosis. That NIOSH’s estimated dose was nearly seven times higher than the individual’s TEDE is indicative of NIOSH’s maximizing dose assumptions. EEOICPA Fin. Dec. No. 2939-2005 (Dep’t of Labor, October 31, 2005).
• Should new scientific evidence emerge that significantly affects the cancer models used in NIOSH-IREP, NIOSH will evaluate the dose reconstruction of any employee affected by the change and will perform a new dose reconstruction if warranted. EEOICPA Fin. Dec. No. 2939-2005 (Dep’t of Labor, October 31, 2005).
• 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).
• In cases where radiation exposures in the workplace environment cannot be fully characterized based on available data, default values based on reasonable scientific assumptions are used by NIOSH as substitutes. EEOICPA Fin. Dec. No. 9997-2004 (Dep't of Labor, September 22, 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).
• Because the correct date of diagnosis was within the same calendar year as the date used for the dose reconstruction, the difference in dates did not affect the dose reconstruction and a rework was not required. EEOICPA Fin. Dec. No. 11188-2005 (Dep’t of Labor, March 7, 2005).
• Pursuant to Chapter 2-600 (September 2004) of the Federal (EEOICPA) Procedure Manual, in the case of multiple claimants, only one signed OCAS-1 form is necessary in order for NIOSH to forward a final dose reconstruction report to OWCP, which will then continue processing the claim. EEOICPA Fin. Dec. No. 11264-2004 (Dep’t of Labor, November 4, 2004); EEOICPA Fin. Dec. No. 42834-2004 (Dep’t of Labor, September 17, 2004).
• The FAB rejected the claimant’s argument that adjudication of the case should be suspended pending revisions to the NIOSH site profile document that might support a new dose reconstruction, finding that pursuant to the EEOICPA regulations at § 30.320, the claimant can request reopening of the claim in that situation. EEOICPA Fin. Dec. No. 11264-2004 (Dep’t of Labor, November 4, 2004).
• 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).
• 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).
• NIOSH reports annual dose estimates from the date of initial radiation exposure during covered employment to the date the cancer was first diagnosed. EEOICPA Fin. Dec. No. 22269-2004 (Dep’t of Labor, September 17, 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. 28146-2004 (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).
• 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).
• If a claimant objects to a dose reconstruction, the FAB will evaluate the factual findings upon which NIOSH based the dose reconstruction. Because the objections raised concerning the information, assumptions and estimates used in the dose reconstruction relate to NIOSH dose reconstruction methodology, they cannot be addressed by the FAB. EEOICPA Fin. Dec. No. 45201-2004 (Dep’t of Labor, October 12, 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).

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Medical Evidence

• 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 qualified 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 which 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).

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Probability of Causation

• The methodology that OWCP uses to determine if a claimed cancer was at least as likely as not related to employment, established by regulations issued by HHS, is also binding on the FAB. However, since OWCP applies this methodology when it makes these determinations, the FAB may consider objections to the manner in which OWCP applied HHS’s regulatory guidelines. EEOICPA Fin. Dec. No. 5156-2005 (Dep’t of Labor, August 25, 2005).
• OWCP has no authority to either waive the application of HHS’s regulatory guidelines for determining the probability of causation or to increase the probability of causation calculated using NIOSH-IREP in a particular case. EEOICPA Fin. Dec. No. 5156-2005 (Dep’t of Labor, August 25, 2005).
• "Probability of causation" is a technical term generally meaning an estimate of the percentage of cases of illness caused by a health hazard among a group of persons exposed to the hazard. EEOICPA Fin. Dec. No. 6120-2004 (Dep’t of Labor, September 14, 2004).
• Scientists evaluate the likelihood that radiation caused cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation and the frequency of cancers in exposed populations. EEOICPA Fin. Dec. No. 6120-2004 (Dep’t of Labor, September 14, 2004).
• A part of the probability of causation also depends on the latency period, which is the time delay between the radiation exposures and the diagnosis of clinical cancer. EEOICPA Fin. Dec. No. 6120-2004 (Dep’t of Labor, September 14, 2004).
• 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).
• Section 81.30 of the NIOSH regulations states that chronic lymphocytic leukemia (CLL) is non-radiogenic for the purposes of EEOICPA and directs OWCP to assign a probability of causation of zero. EEOICPA Fin. Dec. No. 61750-2005 (Dep’t of Labor, May 23, 2005).

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Specified Cancers

• 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).
• The time of onset for a diagnosis of lymphoma to be considered a specified cancer is at least five years after the date of initial exposure to radiation, which is the first day of employment at the relevant facility. If less than five years have elapsed, the case must be referred to NIOSH for dose reconstruction. EEOICPA Fin. Dec. No. 44116-2004 (Dep’t of Labor, January 7, 2005).
• 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).
• Myelodysplastic syndrome is classified as cancer of the bone and, thus, is a specified cancer under EEOICPA. EEOICPA Fin. Dec. No. 55326-2004 (Dep’t of Labor, November 2, 2004).
• 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).