EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	58478-2004
DECISION DATE:	September 15, 2004

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts your claim for the condition of lung cancer under the EEOICPA. 

 

 

STATEMENT OF THE CASE

 

On January 20, 2004, [Employee] (the employee) filed a claim, Form EE-1, for benefits under the EEOICPA.  He identified the claimed conditions as cancer of the lungs, brain, bone, liver, and kidney.  On February 7, 2004, your husband, (the employee) expired.  On February 24, 2004, you filed a claim, Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employment of your late husband.  You identified the claimed conditions present at date of death as cancer of the lungs, brain, bone, liver, and kidney.

 

Medical evidence submitted with the claim included a June 11, 2004 letter from David B. Hanzel, M.D., indicating the primary cancer was most probable small cell cancer of the lung with metastasis to the liver and brain.  He referenced and attached a copy of a January 7, 2004 surgical pathology report of the liver that provides a diagnosis of metastatic carcinoma with neuroendocrine features most consistent with neuroendocrine carcinoma stage 2.  The report states in comment that neuroendocrine carcinoma is a spectrum ranging from typical carcinoid (grade 1) to small cell carcinoma (grade 3).  Additional medical evidence included a February 11, 2004 completion summary report by Prakash B. Patel, M.D. that provides histology of extensive stage IV small cell lung cancer as the primary illness.  The report further states that [Employee] had brain, liver, and diffuse metastatic disease of the bone from small cell lung cancer. A whole body bone scan dated January 13, 2004 indicates the presence of diffuse bony metastatic disease.  A January 12, 2004 report from Dr. Patel indicated your husband also bilateral renal metastases also.  CT scans dated January 2, 2004, January 7, 2004, and January 8, 2004 showed extensive metastatic disease in the abdomen, chest, lung, bone, and brain.  Your husband initially provided a Form EE-3 (Employment History for Claim Under EEOICPA), indicating that he was employed with General Telephone, a subcontractor, while at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio during the 1970’s.

 

The Department of Energy (DOE) was unable to verify your husband’s employment.  However, the Cleveland district office was able to verify that he worked for the General Telephone Company of Ohio from about January 1970 to approximately December 1985 based on an itemized statement of earnings provided by the Social Security Administration (SSA).  Also, several Forms EE-4 (Employment History Affidavit for Claim under EEOICPA) were provided by co-workers, placing your husband on site at the Portsmouth GDP from January 1, 1975 to December 30, 1985.  In addition, a security clearance card indicates that your husband had clearance from April 18, 1975 to June 25, 1980.  This is evidence that a contract existed between General Telephone and the Portsmouth GDP during this time period.

 

You provided a copy of your marriage certificate, showing you and your husband were married on July 25, 1959.  You provided a copy of your husband’s death certificate showing he was married to you at his time of death.

 

On August 12, 2004, the Cleveland district office issued a recommended decision that concluded your husband is a member of the Special Exposure Cohort, as defined by § 7384l(14)(A).  The district office further concluded that your husband was diagnosed with lung cancer, which is a specified cancer as defined by § 7384l(17)(A).  In addition, the district office concluded that you are the survivor of the employee, as defined by § 7384s, and, as such, you are entitled to compensation in the amount of $150,000.00 pursuant to § 7384s. 

 

On August 20, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

 

 

FINDINGS OF FACT 

 

1. Your husband filed a claim for benefits on January 20, 2004, based on cancer of the lungs, brain, bone, liver, and kidney.  He expired on February 7, 2004.  You filed a claim and presented medical evidence on February 24, 2004, based on your husband’s cancer of the lungs, brain, bone, liver, and kidney.

 

2. For the purposes of SEC membership, your husband was employed with General Telephone, a DOE subcontractor, at the Portsmouth GDP in Piketon, Ohio, from at least April 18, 1975 to June 25, 1980.

 

3. Your husband was employed for a number of work days aggregating at least 250 work days from September 1, 1954, to February 1, 1992, and during such employment worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

 

4. On January 7, your husband was diagnosed with neuroendocrine carcinoma, which was later confirmed as lung cancer, with metastasis to the bone, liver, brain, adrenal and abdomen. 

 

5. You are the surviving spouse of the employee and were married to him at least one year prior to his death.

 

 

CONCLUSIONS OF LAW

 

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, the covered employees (or their eligible survivors), must establish that they have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. § 7384l(4)-(7), (9) and (11). 

 

In order to be considered a “member of the Special Exposure Cohort,” your husband must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee’s body; or had exposures comparable to a job that is, or, was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A). 

 

The evidence of record establishes that your husband worked in covered employment at the Portsmouth GDP from at least April 18, 1975 to June 25, 1980.  Consequently, he met the requirement of working more than an aggregate 250 days at a covered facility.  Also, the statute requires proof that the covered employee was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body.  Although your husband indicated that he wore a dosimetry badge, the DOE did not verify whether he wore a dosimetry badge.  Under provisions of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), employees who worked at the Portsmouth GDP between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges.  See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a (June 2002).  Thus, your husband met the dosimetry requirements of the Act.

 

The EEOICPA provides coverage for a specified cancer as defined in § 4(b)(2) of the Radiation Exposure Compensation Act (RECA) including cancer of the lung.  The medical evidence of record indicates that your husband was diagnosed with lung cancer with metastasis to the bone, liver, brain, adrenal and abdomen.  Therefore, he is a member of the Special Exposure Cohort, who was diagnosed with a specified cancer under the Act.  See 42 U.S.C. § 7384l(17)(A).

 

The employee is deceased and you have provided documentation that you are the surviving spouse of the employee, who was married to the employee at least one year immediately before his death.  See 42 U.S.C. § 7384s(e)(3)(A). 

 

For the foregoing reasons, the undersigned hereby accepts and approves your claim based on cancer of the lung.  You are entitled to compensation in the amount of $150,000, pursuant to § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s(a)(1) and (e)(1)(A).  In addition, entitlement to medical benefits are also granted for primary lung cancer with metastasis to the bone, liver, brain, adrenal and abdomen, from the effective filing date, January 20, 2004, until your husband’s date of death on February 7, 2004, pursuant to the EEOICPA and the implementing regulations.  See 42 U.S.C. §§ 7384s(a)(1) and 7384t; 20 C.F.R. § 30.400.

 

 

Cleveland, Ohio

 

 

 

__________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch