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2011 Summer

In October 2000, President Clinton signed into law historic legislation recognizing the injustices suffered by generations of atomic weapons employees, many of whom developed cancers after being exposed to radioactive materials. This law, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), and more specifically Part B, was passed after the government fought claims for years brought by men and women employed at numerous locations where uranium was processed for making the Atomic Bomb. These locations and processes were collectively referred to as the “Manhattan Project.”

To qualify for benefits under Part B of EEOICPA, a claimant must be a current or former employee of a designated site or a select surviving family member of a deceased former employee; the afflicted individual must have worked a minimum of 250 days at that site (subject to certain restrictions on the time frame of employment); and the afflicted individual must have been diagnosed with at least one of the twenty-two specifically recognized cancers caused by exposure to radiation. Also, to qualify for benefits, the exposure must have been “at least as likely as not” a significant factor in aggravating, causing or contributing to the employee’s illness or death. Under this standard, the U.S. Department of Labor, utilizing a dose reconstruction model developed by the National Institute for Occupational Safety and Health (NIOSH), determines whether the probability of causation is 50% or greater.

Alternatively, under the EEOICPA, there are classes of employees designated with “Special Exposure Cohort” (SEC) status. Each class worked at the same facility where there was evidence of significant exposure, although not enough evidence remains to conduct a dose reconstruction. SEC status allows for compensation without the individual claimant having to prove case-specific causation, saving the time and expense related to proving individual claims.

Samuel Tornabene was one of thousands of workers around the nation unwittingly exposed to dangerous levels of radiation. He was employed at the former Linde Ceramics plant, an EEOICPA-recognized site in Tonawanda, NY, between September 1962 and September 1993. While working at Linde, Sam and his wife, Eleanor, raised a family in Western New York. Early in his career, Sam worked a variety of jobs that exposed him to high levels of lingering radioactive, alpha-emitting dust particles. In February 1993, he was diagnosed with non-Hodgkins lymphoma, a form of cancer caused by his exposure at Linde. Sam passed away in December 1993 as a result of the disease. Around the time of his passing, representatives from the Oil, Chemical & Atomic Workers Union local at Linde approached attorney John N. Lipsitz to represent the family.

Eleanor Tornabene filed a claim for workers’ compensation benefits for the death of her husband. The claim was filed with the Worker’s Compensation Board. (As noted, there was no federal statute allowing such a claim until President Clinton signed the 2000 bill.) Three highly qualified experts testified in support of Eleanor’s claim: a Harvard-trained oncologist, who was Mr. Tornabene’s treating doctor; a senior pulmonologist in the Western New York medical community; and an industrial hygienist specializing in health physics. The employer, which controverted the claim, spent well over $100,000 on out-of-town experts of its own. After a series of hearings between 1994 and 1998, the Worker’s Compensation Board rejected the family’s claim that exposure to radioactive dust particles was a definitive cause of Sam Tornabene’s cancer. It was undisputed, however, that Sam experienced significant exposure to radioactive dust at the plant.

Because the federal regulations implementing EEOICPA-recognized non-Hodgkin’s lymphoma as a radiogenic cancer, Eleanor Tornabene, whose claim on that score had been rejected by the Worker’s Compensation Board, was able to file her claim for benefits again, this time under the federal law. In 2008, the claim was rejected again. The U.S. Department of Labor rejected the claim after subjecting it to dose reconstruction and finding a less than 50% probability of causation. There ensued numerous attempts to have the government reconsider or reopen the claim, including a lawsuit brought on the family’s behalf by Lipsitz & Ponterio against the Department of Labor, claiming that the government’s denial of the claim was arbitrary and capricious.

In the meantime, Eleanor Tornabene joined a group effort which petitioned to obtain SEC status for a class of former employees from Linde. NIOSH received the petition, and that effort culminated in a recommendation made by the Department of Health and Human Services to Congress in April 2011, that the Linde plant worker claimants who had been employed for at least 250 days between 1954 and 1969 be granted SEC status. In May 2011, the Linde SEC became official, and Sam Tornabene’s claim fits squarely within its definition. Nearly two decades after the Tornabenes began to pursue their claim, success appears to be at hand.