EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	10000947-2006
DECISION DATE:	June 2, 2006

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for medical benefits for the conditions of asbestosis and asbestos-related lung disease (pleural plaques) under Part E of EEOICPA is approved.  A decision regarding any potential impairment or wage-loss under Part E of EEOICPA is deferred pending further development. 

 

STATEMENT OF THE CASE

 

By Final Decision dated May 13, 2003 and Denial of Request for Reconsideration dated August 5, 2003, the Final Adjudication Branch denied your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act because you did not provide proof of an “occupational illness” under Part B of EEOICPA.  On March 15, 2005, the Director of the Division of the Energy Employees Occupational Illness Compensation denied your request for a reopening, as the medical evidence of record was insufficient to establish a claim under Part B of EEOICPA for Chronic Beryllium Disease (CBD) on or after January 1, 1993. 

 

On July 11, 2002, you filed a Form OWAI-7/6/01 (Request for Review by Physicians Panel) with the Department of Energy under Part D (currently Part E of the EEOICPA), based on the conditions of asbestosis-lung condition and possible chronic silicosis. 

             

You also submitted a Form EE-3 (Employment History) stating that you worked at the Fernald Plant[1] in Fernald, Ohio and were employed by George Fuller Construction Company from January 2, 1952 to January 11, 1953; and by National Lead Company of Ohio from August 19, 1954 August 12, 1959.  The Oak Ridge Institute of Science and Education (ORISE) confirmed your employment with National Lead of Ohio at the Fernald Plant from August 19, 1954 to August 12, 1959. 

 

The evidence of record was submitted to the DOE Office of Worker Advocacy’s Physicians Panel for review.  The Panel reported “Physician letters from Dr. Baughman 7/22/02 to 3/24/03 list ‘Diagnosis Asbestos’ in the heading; there is reference to a bronchoalveolar lavage showing asbestos bodies, HRCT with plaques and fibrosis, loss of function (change in vital capacity) ‘suggests worsening fibrosis’.”  The Panel also reported “Dr Balmes’ letter of 9/14/98 refers to a 7/23/96 chest film with changes consistent with bilateral calcified pleural plaques and bilateral diaphragmatic plaques with calcification on the right.  Pulmonary function test (PFT) of 7/23/96 showed % predicted FVC and FEV1 of about 105% and 113% respectively.  Occupational history is included that mentions work at Fernald working with asbestos at least once a day, work around users of asbestos about once a week (1952-54), painting in the power plant, paint shop, and boiler plant (1954-1959).  The Panel further reported evidence of a July 24, 2002 PFT which has a % predicted FVC, FEV1 and adjusted DLCO of 95%, 119%, and 87% respectively; a June 2000 Pulmonary Function Checklist reported that the employee never smoked; a June 2000 chest x-ray report reported an assessment of pleural plaques consistent with a past history of asbestos exposure; a December 2000 chest x-ray report indicated the presence of calcified pleural plaques and an August 5, 2003 chest CT report identified calcified pleural plaques consistent with prior asbestos exposure and evidence of interstitial lung disease.  The Panel noted that “[Employee] has pleural plaques most likely related to his toxic exposure (asbestos) at the DOE facility. . . .”  The Panel determined that exposure to a toxic substance at a DOE site was, on an at least as likely as not basis, a significant factor in causing, contributing to or aggravating the claimed conditions of asbestosis and asbestos-related lung disease (pleural plaques).

 

By letter dated February 23 , 2005, the Secretary of Energy informed you of a positive determination by the Panel regarding your condition of asbestosis and asbestos-related lung disease (pleural plaques).  The Panel concluded that exposure to asbestos at the Fernald Plant was a significant factor in aggravating, contributing to or causing asbestosis and asbestos-related lung disease (pleural plaques).  By letter dated August 19, 2005, the district office notified you that it had accepted the determination of the Physicians Panel. 

 

On your application form for benefits under Part B of EEOICPA, you indicated that you had never filed a civil lawsuit regarding your claimed conditions.  In addition, you did indicate on your Part D application form that you had filed for and received state workers’ compensation for the claimed conditions.  A July 29, 2005 letter from the Ohio State Bureau of Workers’ Compensation confirmed that as of that date, you had received $8,118.53 in medical benefits for your condition of asbestos-related lung disease (pleural plaques).  The letter further indicated that you had not received any additional compensation or indemnity other than medical treatment from the State of Ohio.  The district office did not pursue additional development, as medical benefits from a state workers’ compensation program are not coordinated with a Part E award.[2] 

 

On November 15, 2005, the district office issued a recommended decision which concluded that you are a covered DOE contractor employee with a covered illness; that a panel of physicians under the former Part D determined that you contracted asbestosis and asbestos-related lung disease through exposure at a DOE facility; and that you are entitled to medical benefits for the treatment of asbestosis and asbestos-related disease (pleural plaques) retroactive to July 11, 2002.  The district office further concluded that additional compensation under Part E of EEOICPA is deferred pending further development.  On November 30, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision. 

 

After considering the evidence of record and your waiver of objections, the Final Adjudication Branch hereby makes the following:

 

FINDINGS OF FACT

 

1.      You filed a claim with the Department of Energy on July 11, 2002 under Part D (currently Part E) of the EEOICPA.

 

2.      You were employed with National Lead of Ohio, a DOE contractor, at the Fernald Plant, a DOE facility, from August 19, 1954 to August 12, 1959. 

 

3.      The evidence of record establishes that you were diagnosed with asbestosis on July 23, 1996 and asbestos-related lung disease (pleural plaques) on June 12, 2000.   

 

3.      The DOE Physicians Panel determined that your asbestosis and asbestos-related lung disease (pleural plaques) was due to your exposure to a toxic substance while employed at the Fernald Plant and the Secretary of Energy accepted that determination. 

 

4.      You indicated that you had never filed a civil lawsuit regarding your claimed conditions.

 

5.      You received $8,118.53 in medical benefits for your condition of asbestos-related lung disease (pleural plaques) from the Ohio State Bureau of Workers’ compensation.  Additional development was not pursued, as medical benefits from a state workers’ compensation program are not coordinated with a Part E award.

 

Based on the above-noted findings of fact, the undersigned hereby makes the following:

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the EEOICPA implementing regulations provides that, “if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in 42 U.S.C. § 30.310, or if the claimant waives any objection to all or part of the recommended decision, the Final Adjudication Branch (FAB) will issue a decision accepting the recommendation of the district office, either whole or in part.”  20 C.F.R. § 30.316(a).  On November 30, 2005, you waived any and all objections to the recommended decision. 

 

 

In order to be entitled to medical benefits based on the condition of asbestosis, you must provide medical documentation to show a diagnosis of asbestosis and the date on which the diagnosis was made.  Further, you must show occupational exposure to asbestosis, in general, more than ten years prior to diagnosis.  In addition, you must show more than one year of employment and the verified presence and exposure to asbestos while at the DOE facility.  Federal (EEOICPA) Procedure Manual, Chapter E-500.15(a) and (b) (Sept. 2005).  Based on your employment at the Fernald Plant for more than one year, from August 19, 1954 to August 12, 1959, the presence of asbestos at the Fernald Plant, as noted by the Panel, and a diagnosis of asbestos-related lung disease (pleural plaques), more than ten years later, on July 23, 1996, you have met the evidentiary requirements for causation for the covered illness of asbestosis and asbestos-related lung disease (pleural plaques). 

 

The FAB hereby finds that you are a “covered DOE contractor employee” as that term is defined under 42 U.S.C. § 7385s(1); and that a panel of physicians under the former Part D determined that you contracted asbestosis and asbestos-related lung disease through exposure at a DOE facility and the Secretary of Energy accepted that determination, pursuant to 42 U.S.C. § 7385s-4(b).  Therefore, I find that you are entitled to medical benefits retroactive to July 11, 2002 for the treatment of asbestosis and asbestos-related lung disease (pleural plaques), pursuant to 42 U.S.C. § 7385s-8.

 

Your claim for possible silicosis and additional benefits which may be due to impairment and/or wage-loss is deferred pending further development. 

 

Washington, D.C.

 

 

 

Steven Levin

Hearing Representative

Final Adjudication Branch