EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	11264-2004 11271-2004 11272-2004
DECISION DATE:	November 4, 2004

 

NOTICE OF FINAL DECISION FOLLOWING DIRECTOR’S ORDER

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under 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 2, 2001, [Claimant 1], spouse of [Employee], and [Claimant 2] and [Claimant 3], children of the employee, filed a claim for survivor benefits under the EEOICPA, based on the condition of pancreatic cancer.  You provided medical documentation showing that the employee was diagnosed with pancreatic cancer on March 10, 1998. 

 

A representative of the Department of Energy (DOE) verified that the employee worked at the Hanford site for Hanford Engineering and Developmental Lab from April 24, 1978 to March 19, 1983; and for United Nuclear Company, Boeing Computer Services Richland, and Lockheed Martin Services Inc., from March 24, 1986 to March 6, 1998.  Further, the DOE confirmed that the employee wore a dosimetry badge.  The Hanford site is recognized as a covered DOE facility from 1942 to the present.  See Department of Energy, Office of Worker Advocacy, Facility List. 

 

The file includes a copy of a death certificate which indicated that the employee passed away on February 3, 1999, due to pancreatic cancer, and she was survived by her spouse [Claimant 1].  Also, the file includes a copy of the birth certificates of [Claimant 2] and [Claimant 3], which indicate they are the children of the employee and the surviving spouse.

 

To determine the probability of whether the employee sustained her cancer in the performance of duty, the district office referred your claim to NIOSH for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA regulations on December 26, 2001.  See 20 C.F.R. § 30.115.  The final NIOSH Report of Dose Reconstruction is dated December 2, 2004. 

 

On February 20, 2004, NIOSH notified [Claimant 1] and [Claimant 3] that it had not yet received their signed Form OCAS-1 (NIOSH Office of Compensation Analysis and Support Form 1), and that their claim would be administratively closed.  The form is used to certify that a claimant has no additional information, agrees with the NIOSH process, and that the record for dose reconstruction should be closed.  On February 25, 2004, the district office notified [Claimant 1] and [Claimant 3] that a written explanation was required to indicate why Form OCAS-1 was not completed, and that the additional information was required within thirty days of the date of the letter. 

 

By letters dated March 1 and March 2, 2004, [Claimant 1] wrote to the district office and to NIOSH and indicated that he could not sign the Form OCAS-1 because he disagreed with the data in the report:  the employee’s primary work locations were in the 300 Area and Federal Building on the Hanford site; and the dosimeters were not accurate resulting in calculations which are questionable, with no mention of how the data was obtained.  Finding that the letters did not provide evidence of additional diagnosis of cancer or additional periods of employment, the district office determined the reasons for not returning Form OCAS-1 were not substantive.

 

Using the information provided in the NIOSH Report of Dose Reconstruction, the district office utilized the Interactive RadioEpidemiological Program (NIOSH-IREP) to determine the probability of causation of cancer and reported in its recommended decision that there was a 19.64% probability that the employee’s pancreatic cancer was caused by occupational radiation exposure at the Hanford site. 

 

On March 30, 2004, the 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 Hanford site.  The district office concluded that the dose reconstruction estimates were performed in accordance with § 7384n(d) of the EEOICPA.  See 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with § 7384n(c)(3) of the EEOICPA, and § 30.213 of the EEOICPA implementing regulations, which references Subpart E of Part 81.  See 42 U.S.C. § 7384n(c)(3); 20 C.F.R. § 30.213; 42 C.F.R. Part 81, Subpart E.  Also, the district office concluded that the employee does not qualify as a covered employee with cancer as defined in § 7384l(9)(B) of the Act.  See 42 U.S.C. § 7384l(9)(B).  In addition, the district office concluded that you are not entitled to compensation, as outlined under § 7384s(a)(1) of the Act.  See 42 U.S.C. § 7384s(a)(1).  Lastly, the district office concluded that [Claimant 2] and [Claimant 3] are not entitled to compensation, as outlined under § 7384s(a)(1) of the Act, because they are not eligible beneficiaries under the Act.  See 42 U.S.C. § 7384s(e)(1)(A).

The Final Adjudication issued a Remand Order on May 4, 2004 that was incorrect.  The Remand Order was because [Claimant 1] and [Claimant 3] did not sign and return the Form OCAS-1.  On September 24, 2004, the Director issued an Order stating that the file includes at least one signed OCAS-1 Form, which is sufficient to render a decision.  The Director’s Order vacated the Remand Order of the Final Adjudication Branch. 

 

On May 5, 2004, the Final Adjudication Branch received [Claimant 1]’s letter requesting that any further adjudication of the case be placed on hold until a revised Hanford Site Profile is completed, which may provide guidance to warrant a new dose reconstruction.

 

FINDINGS OF FACT

 

1.         On October 2, 2001, you filed a claim for survivors benefits under the EEOICPA. 

 

2.         The employee was diagnosed with pancreatic cancer on March 10, 1998. 

 

3.         For the purpose of performing the dose reconstruction, NIOSH considered the period of occupational exposure from employment at the Hanford site from April 24, 1978 to March 19, 1983; and from March 24, 1986 to March 6, 1998.   

 

4.         Based on the dose reconstruction performed by NIOSH, the probability of causation (the likelihood that the employee’s cancer was caused by radiation exposure incurred while working at the Hanford site) was no more than 19.64% and therefore not “at least as likely as not” related to the employee’s work at a Department of Energy facility.

 

5.         [Claimant 1] is the surviving spouse of the employee.

 

6.         [Claimant 2] and [Claimant 3] are children of the employee and [Claimant 1].

 

CONCLUSIONS OF LAW

 

I have carefully reviewed the March 30, 2004 recommended decision, and the Director’s Order, as well as the documentation of record including the May 5, 2004 letter from [Claimant 1].    

 

You filed a claim based on pancreatic cancer.  In order to be afforded coverage under the EEOICPA as a “covered employee with cancer,” you must show that the employee 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); 20 C.F.R. § 30.210(b).  Since the employee worked at the Hanford site, 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 employer facility.  See 42 U.S.C. § 7384n(b); 20 C.F.R. § 30.210(b)(2). 

 

For the purpose of performing the dose reconstruction, NIOSH considered the period of occupational exposure at the Hanford site from April 24, 1978 to March 19, 1983; and from March 24, 1986 to March 6, 1998.  The NIOSH Report of Dose Reconstruction indicates that the employee worked in the 300 Area and the Federal Building during her employment.  In addition, the medical documentation shows the employee was diagnosed with pancreatic cancer on March 10, 1998.   

 

To determine the probability of whether the employee sustained cancer in the performance of duty, NIOSH performed a radiation dose reconstruction.  See 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction under the EEOICPA, dated December 2, 2003. 

 

Using the information provided in the Report of Dose Reconstruction, the Final Adjudication Branch utilized the Interactive RadioEpidemiological Program (NIOSH-IREP), pursuant to §§ 81.20, 81.21, and 81.22 of the implementing NIOSH regulations, to confirm that the probability was no more than 19.64% that the employee’s cancer was caused by radiation exposure while employed at the Hanford site.  See 42 C.F.R. §§ 81.20 (Required use of NIOSH-IREP), 81.21 (Cancers requiring the use of NIOSH-IREP), and 81.22 (General guidelines for use of NIOSH-IREP). 

 

The Dose Reconstruction Report indicates that the employee was given an overestimate of radiation dose using claimant-favorable assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data.  The dose reconstruction was based primarily on dosimetry records provided by the DOE.  In addition, specific dosimetry parameters applicable to the Hanford site were applied to the dosimetry records in order to assign organ dose.  In instances in which specific information was lacking, parameters were selected that maximized the dose estimate.  Also information recorded during the computer-assisted telephone interview was reviewed, as well as technical guidance prepared by the Oak Ridge Associated Universities.  See 42 C.F.R. § 82.10 (NIOSH Dose Reconstruction Process).

 

The Final Adjudication Branch notes that although the record indicates that two Forms OCAS-1 were not returned, one OCAS-1 form was signed and returned, which is sufficient to render a decision.  The Federal (EEOICPA) Procedure Manual provides that the claimant is required to return Form OCAS-1 to NIOSH.    

 

Upon receipt of Form OCAS-1 and completion of any changes in the dose reconstruction resulting from new information provided, NIOSH forwards a final dose reconstruction report, “NIOSH Report of Dose Reconstruction Under EEOICPA,” to DOL (Department of Labor) and to the claimant.

 

NIOSH does not forward the dose reconstruction report to DOL for adjudication without receipt of Form OCAS-1 signed by the claimant or an authorized representative of the claimant.  In the case of multiple survivors/claimants, only one signed form is required to continue processing the claim (emphasis added).

 

See Chapter 2-600 (September 2004) of the Federal (EEOICPA) Procedure Manual.  Since the case involves multiple claimants and one Form OCAS-1 was signed and returned by [Claimant 2], the case is in posture for decision.    

 

I have considered [Claimant 1]’s request received on May 5, 2004, to place this case on hold, pending revision of the Hanford Site Profile, which may provide a basis for rework of the dose reconstruction.  The Final Adjudication Branch notes that no basis exists at the present time to indicate a new dose reconstruction may be warranted.  However, the regulations provide that you may file a written request to the Director for Energy Employees Occupational Illness Compensation to reopen your claim in the future if you provide the required documentation.  You may request reopening for example and submit new evidence of either covered employment or exposure to radiation, or identify either a change in the probability of causation guidelines or a change in the dose reconstruction methods.  See 20 C.F.R. § 30.320.  Consequently, you have the opportunity to request reopening of your claim, in the future, if you provide the requisite evidence. 

 

Therefore, your claim must be denied because the evidence does not establish that the employee is a “covered employee with cancer” under the EEOICPA, because the 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 Hanford site.  See 42 U.S.C. § 7384l(1)(B), (9)(B); 20 C.F.R. § 30.213; 42 C.F.R. § 81.2.

 

In addition, the Final Adjudication Branch concludes that [Claimant 2] and [Claimant 3] are not eligible for compensation.  Under the EEOICPA, a surviving spouse is the first eligible claimant in the case of a deceased spouse.  See 42 U.S.C. § 7384s(e).  Consequently, since the employee is survived by a living spouse, [Claimant 1], the children, [Claimant 2] and [Claimant 3], would not be entitled to compensation. 

 

For above reasons, 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.

 

Seattle, WA

 

 

 

 

________________________________________

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle