Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of EEOICPA.  We hope these decisions are helpful.  Please add your experiences in the comments section.

 

EEOICPA

Amendments to

EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002)

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 benefits is denied.

On September 20, 2001, you filed Form EE-2, Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program, with the Denver district office.  You stated that your husband, [Employee], had died on May 15, 1991 as a result of adenocarcinoma in the liver, and that he was employed at a Department of Energy facility. You included with your application, a copy of your marriage certificate, [Employee]‘s resume/biography, and his death certificate.  You submitted a letter dated January 5, 2000, from Allen M. Goldman, Institute of Technology, School of Physics and Astronomy, and a packet of information which included the university’s files relating to your husband based on your request for his personnel, employee exposure, and medical records.  Also submitted was a significant amount of medical records that did establish your husband had been diagnosed with adenocarcinoma in the liver. 

On March 1, 2002, Loretta from the Española Resource Center telephoned the Denver district office to request the status of your claim.  The claims examiner returned her telephone call on the same date and explained the provision in the Act which states that in order to be eligible for compensation, the spouse must have been married to the worker for at least one year prior to the date of his death.  Your marriage certificate establishes you were married on, May 30, 1990.  [Employee]‘s death certificate establishes he died on May 15, 1991.

On March 5, 2002, the Denver district office issued a recommended decision finding that the evidence of record had not established that you were married for one year prior to your husband’s death, and therefore you were not entitled to compensation benefits under the EEOICPA. 

Pursuant to § 30.316(a) of the implementing regulations, a claimant has 60 days in which to file objections to the recommended decision, as allowed under § 30.310(b) of the implementing regulations (20 C.F.R. § 30.310(b)). 

On April 12, 2002, the Final Adjudication Branch received a letter from you that stated you objected to the findings of the recommended decision.  You requested a hearing and a review of the written record.  You stated that the original law signed by President Clinton provided you with coverage, but when the law changed to include children under 18, the change in the law adversely affected you.  You stated that you had documents that demonstrated you had a 10-year courtship with your spouse.  You also stated you presented testimony as an advocate in Española.  Included with your letter of objection were the following documents:

·        a copy of Congressman Tom Udall’s “Floor Statement on the Atomic Workers Compensation Act”;

·        an e-mail from Bob Simon regarding the inclusion of Los Alamos National Laboratory workers in the Senate Bill dated July 5, 2000;

·        an e-mail from Louis Schrank regarding the Resource Center in Española;

·         a “Volunteer Experience Verification Form”, establishing you volunteered as a “Policy Advisor and Volunteer Consultant to the Department of Energy, Members of Congress, Congressional Committees, and many organizations on critical health issues effecting nuclear weapons workers with occupational illnesses”;

·        a transcript of proceedings from the March 18, 2000 Public Hearing in Española , New Mexico;

·         a letter from you to John Puckett, HSE Division Leader, Chairperson, “Working Group Formed to Address Issues Raised by Recent Reports of Excess Brain Tumors in the Community of Los Alamos” and dated June 27, 1991;

·        a letter to you from Terry L. Thomas, Ph.D., dated July 31, 1991, regarding the epidemiologic studies planned for workers at Los Alamos National Laboratory; a memorandum entitled “LANL Employee Representative for Cancer Steering Committee”, dated September 25, 1991;

·         a copy of the “Draft Charter of the Working Group to Address Los Alamos Community Health Concerns”, dated June 27, 1991;

·        an article entitled “Register of the Repressed: Women’s Voice and Body in the Nuclear Weapons Organization”; and

·        a psychological report from Dr. Anne B. Warren; which mentions you and [Employee] had a “10 or 11 year courtship”.

On May 20, 2002, you submitted a copy of the Last Will and Testament of [Employee], wherein he “devises to you, his wife, the remainder of his estate if you survive him for a period of seven hundred twenty (720) hours.” You stated you believed this provided you with common law marriage rights for the 720 hours mentioned in the will.

An oral hearing was held on June 18, 2002 at the One-Stop Career Center in Española, New Mexico. You presented additional evidence for consideration that included:  a copy of a house “Inspection Report” by Architect Steven G. Shaw, addressed to both you and [Employee], dated August 11, 1989 (exhibit one); a copy of a Quitclaim Deed (Joint Tenants) for you and [Employee], dated October 27, 1989 (exhibit two); a Los Alamos County Assessor Notice of Valuation or Tentative Notice of Value (undated), for a home on Walnut Street, and addressed to both you and [Employee] (exhibit three); and a Power of Attorney dated August 5, 1989, between you and [Employee] (exhibit four).

Pursuant to § 30.314(f) of the implementing regulations, a claimant has 30 days after the hearing is held to submit additional evidence or argument. 

No further evidence was submitted for consideration within that time period.

Section 30.111(a) of the regulations (20 C.F.R. § 30.111(a)) states that, “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and these regulations, the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”  

The undersigned has carefully reviewed the hearing transcript and additional evidence received at the hearing, as well as the evidence of record and the recommended decision issued on March 5, 2002.

The record fails to establish that you were married to [Employee] one year prior to his death, as required by the EEOICPA. The entire record and the exhibits were thoroughly reviewed.  Included in Exhibit One, was the August 11, 1989 inspection report of the home located on Walnut Street, a copy of a bill addressed to both you and [Employee] for the inspection service, and an invoice from A-1 Plumbing, Piping & Heat dated August 14, 1989.  Although some of these items were addressed to both you and [Employee], none of the records submitted are sufficient to establish that you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

The evidence entered into the record as Exhibit Two, consists of a Quitclaim Deed dated October 27, 1989, showing [Employee], a single man, and [Claimant], a single woman living at the same address on Walnut Street as joint tenants. Exhibit Three consists of a Notice of Valuation of the property on Walnut Street in Los Alamos County and is addressed to both you and [Employee]. Although this evidence establishes you were living together in 1989 in Los Alamos County, New Mexico, it is not sufficient evidence to establish you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

Exhibit Four consists of a copy of a Power of Attorney between you and [Employee] regarding the real estate located on Walnut Street. This evidence is not sufficient to establish you were married for one year prior to his death. 42 U.S.C. § 7384s(e)(3)(A).

The Act is clear in that it states, “the “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.” 

During the hearing you stated that there is a federal law, the Violence Against Women Act, that acknowledges significant other relationships and provides protection for a woman regardless of whether she is married to her husband one year or not.  You also stated that you believed there was “a lack of dialogue” between the RECA program and the EEOICP concerning issues such as yours.  Additionally, on August 15, 2002, you sent an email to the Final Adjudication Branch.  The hearing transcript was mailed out on July 23, 2002.  Pursuant to § 30.314(e) of the implementing regulations, a claimant is allotted 20 days from the date it is sent to the claimant to submit any comments to the reviewer.  Although your email was beyond the 20-day period, it was reviewed and considered in this decision.  In your email you stated the issue of potential common law marriage was raised.  You stated that you presented the appropriate documentation that may support a common law marriage to the extent permitted by New Mexican law.  You stated that the one-year requirement was adopted from the RECA and that you have not been able to determine how DOJ has interpreted this provision.  Also, you stated that the amendments of December 28, 2001 should not apply to your case because you filed your claim prior to the enactment of the amendments.  You stated you did not believe the amendments should be applied retroactively.

Section 7384s (e)(3)(A), Compensation and benefits to be provided, states:

The “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.”

Section 7384s(f) states:

EFFECTIVE DATE–This section shall take effect on July 31, 2001, unless Congress otherwise provides in an Act enacted before that date.

There is no previous enacted law that relates to compensation under the EEOICPA.  Therefore, the amendments apply retroactively to all claimants.

A couple cannot become legally married in New Mexico by living together as man and wife under New Mexico’s laws.  However, a couple legally married via common law in another state is regarded as married in all states.  The evidence of record does not establish you lived with [Employee] in a common law state.  Because New Mexico does not recognize common law marriages, the time you lived with [Employee] prior to your marriage is insufficient to establish you were married to him for one year prior to his death.

Regarding your reference to the difference between how Native American widows are treated and recognized in their marriages, and how you are recognized in your marriage, Indian Law refers primarily to that body of law dealing with the status of the Indian tribes and their special relationship to the federal government.  The existing federal-tribal government-to-government relationship is significant given that the United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection and has affirmed the Navajo Nation’s sovereignty.  The laws that apply to the Native Americans do not apply in your case.

The undersigned finds that you have not established you are an eligible survivor as defined in 42 U.S.C. § 7384s(e)(3)(A).  It is the decision of the Final Adjudication Branch that your claim is denied.

August 26, 2002

Denver, CO

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

In general

EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, [Claimant #1]‘s claim for survivor benefits under Part B and Part E are denied.  [Claimant #2]‘s claim for survivor benefits under Part B is accepted, but his claim under Part E is denied.

STATEMENT OF THE CASE

On October 15, 2002, [Claimant #1] filed a Form EE-2 with the Seattle district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in which he claimed survivor benefits under Part B of EEOICPA as a child of [Employee].  In support of his claim, he alleged that [Employee] had been employed by J.A. Jones Construction, a Department of Energy (DOE) subcontractor at the Hanford site, and that [Employee] had been diagnosed with lung cancer in 1999.  [Claimant #1] submitted a large number of documents in support of his claim that included, among other things:  copies of a September 24, 1992 court order documenting the legal change of his name from “[Claimant #1’s former name]” to “[Claimant #1]” and his October 6, 1992 amended birth certificate with this new name[1]; medical evidence of [Employee]‘s lung cancer; copies of the death certificates for both [Employee] and [Employee’s Spouse]; a copy of “Letters Testamentary” documenting that [Claimant #1] was an executor of [Employee]‘s estate; a U.S. Marine Corps Form D-214 noting [Claimant #1]‘s use of the name “[Claimant #1]” when he was transferred to the Marine Corps Reserve on September 4, 1964; and a September 21, 2001 statement in which [Claimant #1] related the following about his childhood:

As my real dad was unknown.  My mother died when I was 6.  [Claimant #1’s Father as listed on his birth certificate] was a family friend of my mom’s.  Just to give me a last name as she was unwed & pregnant with me.  My Dad [Employee] & My Mom [Employee’s Spouse] actually was my uncle & aunt but I lived with them from the time I was 3 years old.  So I consider them my Dad & Mom.  As I joined the USMC with the [Employee’s Surname] name. . . . 

On December 16, 2002, the Seattle district office verified [Employee]‘s employment by consulting the ORISE database and on December 17, 2002, it issued a recommended decision to deny [Claimant #1]‘s Part B claim.  The recommendation to deny was based on the conclusion that [Claimant #1] had failed to submit sufficient evidence to establish his eligibility as a surviving child of [Employee].  On January 29, 2003, FAB issued an order remanding the claim to the Seattle district office for further development on the issue of whether [Claimant #1] was [Employee]‘s stepchild.  In that order, FAB noted that new procedures had gone into effect shortly after the recommended decision had been issued that required all claims in which claimants were alleging to be stepchildren of deceased covered workers to be forwarded to the National Office of DEEOIC for referral to the Office of the Solicitor, and directed the Seattle district office to comply with those procedures upon completion of further development on the question of whether [Claimant #1] was [Employee]‘s stepchild.

By letter dated February 11, 2003, [Claimant #1]‘s representative submitted a February 6, 2003 statement from [Employee’s Sister], who stated the following:

[Claimant #1] came to live with [Employee] and [Employee’s Spouse] in 1946 and he was three years old at the time.  He lived with them until he was 18 or 19.  At that time he joined the Marines.  [Employee] was his soul [sic] provider during those years and loved him as his son.  Their relationship has always been that of a father and son and continued until [Employee] passed away a few years ago.

[Claimant #1]‘s representative also submitted copies of [Claimant #1]‘s “Pupil Health Card” and “Pupil’s Cumulative Record” from the Kiona-Benton School District, both of which listed [Claimant #1]‘s last name as “[Claimant #1’s Stepfather’s surname]” (crossed out and replaced with “[Employee’s surname]”) and noted that he lived with his “Uncle.”  The “Pupil’s Cumulative Record” also listed “[Claimant #1’s Stepfather]” as [Claimant #1]‘s father.  Shortly thereafter, [Claimant #2] filed a claim for survivor benefits on March 31, 2003 and alleged that he was the stepson of [Employee].

In an April 10, 2003 inquiry, the Seattle district office asked [Claimant #1] who [Claimant #1’s Stepfather] was (his father on the “Pupil’s Cumulative Record”).  In an April 12, 2003 reply, [Claimant #1] stated the following:

My mother [Claimant #1’s Mother] married [Claimant #1’s Stepfather] [in] 1945[.]  They had (2) girls [Claimant #1’s Stepsisters]. . . [Claimant #1’s Stepfather] was my stepfather until [Claimant #1’s Mother]‘s death in 1949 at which time the girls & I were separated as [Claimant #1’s Stepfather] didn’t like me as I wasn’t his child.  The girls were adopted out and I went with my parents [Employee] & [Employee’s Spouse].

* * *

[I lived with [Employee and Employee’s Spouse] in] 1943-1944 as [Claimant #1’s Mother] was unwed.  Then my mother [] passed away [January] 23, 1949.  I lived with [Employee] & [Employee’s Spouse] from 1949-1960.  They were my sole survivorship [sic].  Then I went in USMC 1960.

In a response to a separate April 10, 2003 inquiry that was received by the Seattle district office on April 23, 2003, [Claimant #2] indicated that his mother [Employee’s Spouse] had married [Employee] (his alleged step-parent) on October 24, 1940 when he was five years old, and that he had resided in their household for the next 15 years.  [Claimant #2] also submitted a copy of his birth certificate, which showed that his mother was “[Employee’s Spouse],” and his father was “[Claimant #2’s Father].”

By letters dated May 1, 2003, the district office notified both [Claimant #1] and [Claimant #2] that the case had been referred to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of [Employee]‘s radiation dose.  Thereafter, on June 19, 2003, the district office transferred the case to the National Office of DEEOIC for referral to the Office of the Solicitor as directed in the January 29, 2003 remand order of the FAB.  However, rather than taking this action[2], the National Office returned the case to the district office on September 29, 2003 with a memorandum from the Chief of the Branch of Policies, Regulations and Procedures (BPRP) of the same date.  In that memorandum, the Chief reviewed the evidence then in the case file and concluded that while [Claimant #2] met the statutory definition of [Employee]‘s “child,” [Claimant #1] would not absent the submission of additional evidence showing that he had been legally adopted by [Employee].  Upon return of the file, the Seattle district office wrote to [Claimant #1] on October 3 and 21, 2003 and requested that he submit any evidence in his possession that would establish that he had been legally adopted by [Employee].  No response was received to these requests.

No further action took place with respect to this matter pending receipt of NIOSH’s dose reconstruction report until June 9, 2005, on which date [Claimant #1]‘s representative informed the district office that his client wished to expand his Part B claim to include a claim under the recently enacted Part E of EEOICPA.  On October 27, 2005, the district office sent a third letter to [Claimant #1] stating that while he had provided sufficient evidence to show that he had lived as a dependent in his uncle and aunt’s household, no documentation had been provided showing that he had ever been adopted by his uncle.  In a November 3, 2005 response to that letter, [Claimant #1]‘s representative argued that because the definition of “child” in EEOICPA is inclusive rather than exclusive, [Claimant #1] met the definition of “child” by being the “de facto child” of [Employee], based on a recent state court decision in a Washington child visitation case (issued that same day) that adopted an equitable theory of de facto parentage.  In the visitation case cited, the court created a four-part test for an individual to be a considered a “de facto parent” and to be granted the rights and privileges of a parent.[3]

[Claimant #1]‘s representative also argued that [Claimant #1] should be considered a child of [Employee] under the definition of the term “child” that appears in Title 51 of the Washington Revised Code, which codifies that state’s industrial insurance law.[4]  The term “child” is defined therein as, among other things, a “dependent child that is in legal custody and control of the worker.”  The term “dependent” under that title is defined as including relatives of the worker who at the time of the accident are actually and necessarily dependent on the worker.  Through a letter dated November 10, 2005, [Claimant #1]‘s representative added to his prior argument by alleging that “[Employee] would have adopted [Claimant #1] , but it wasn’t necessary at the time because the schools he attended and the military accepted [Employee] as [Claimant #1]‘s father and allowed [Employee] to sign legal documents on [Claimant #1]‘s behalf when he was still a minor.” 

On October 18, 2005, the Seattle district office received the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated September 29, 2005, which provided estimated doses of radiation to the primary cancer site of the lung.  Based on these dose estimates, the district office calculated the probability of causation (PoC) for [Employee]‘s lung cancer by entering his specific information into a computer program developed by NIOSH called NIOSH-IREP.  The PoC was determined using the “upper 99% credibility limit,” which helps minimize the possibility of denying claims of employees with cancers that are likely to have been caused by occupational radiation exposures.  The PoC for the primary cancer of the lung was determined to be 52.89% using NIOSH-IREP.  Based on this PoC, the Seattle district office issued a November 16, 2005 recommended decision to accept [Claimant #2]‘s Part B claim.  However, it recommended denial of [Claimant #2]‘s Part E claim on the ground that he was not a “covered child” under that other Part.  It also recommended denying [Claimant #1]‘s Part B and E claims on the ground that he had failed to establish that he was a surviving child of [Employee].  The recommended decision, however, did not fully discuss the legal arguments for the expansion of the term “child” made by [Claimant #1]‘s representative.  In a January 12, 2006 letter that was received on January 17, 2006, [Claimant #1]‘s representative objected to this recommended decision and requested an oral hearing before FAB, which took place on March 30, 2006.  At the hearing, [Claimant #1]‘s representative made the same arguments he had made in his written objections. 

On July 15, 2006, FAB returned the case to BPRP for guidance on the legal arguments raised by [Claimant #1]‘s representative at the March 30, 2006 hearing.  On December 12, 2006[5], BPRP requested a legal opinion on the matter from the Office of the Solicitor and on February 26, 2007, the Office of the Solicitor provided BPRP with a legal opinion that evaluated the arguments raised by [Claimant #1]‘s representative.  On March 1, 2007, BPRP contacted FAB and advised it of the guidance it had received.  However, by that point in time, the November 16, 2005 recommended decision had automatically become a “final” decision of the FAB on January 17, 2007 pursuant to 20 C.F.R. § 30.316(c), the one-year anniversary of the date the representative’s objections to the recommended decision were received by FAB.

On March 9, 2007, [Claimant #1] filed a petition in the United States District Court for the Eastern District of Washington seeking review of the January 17, 2007 “final decision” on his claim under Parts B and E of EEOICPA (Civil Action No. CV-07-5011-EFS).  Shortly thereafter, the Director of DEEOIC issued an order on April 30, 2007 vacating that same “final decision” on the claims of both [Claimant #1] and [Claimant #2] and returning them to the Seattle district office for further development and consideration of the Office of the Solicitor’s February 26, 2007 opinion, to be followed by the issuance of new recommended and final decisions.  The case was subsequently transferred to the national office of DEEOIC for further action in light of the filing of the above-noted petition.

On September 14, 2007, the national office of DEEOIC issued a recommended decision:  (1) to deny [Claimant #1]‘s claim for survivor benefits under Parts B and E on the ground that he was not a surviving “child” of [Employee], as that statutory term is defined in §§ 7384s(e)(3) and 7385s-3(d)(3) of EEOICPA; (2) to accept [Claimant #2]‘s claim for survivor benefits under Part B on the ground that as [Employee]‘s stepchild, he was a surviving “child” of [Employee] under § 7384s(e)(3); and (3) to deny [Claimant #2]‘s claim for survivor benefits under Part E on the ground that although he was a “child” of [Employee] under § 7385s-3(d)(3), he did not meet the definition of a “covered child” in § 7385s-3(d)(2).  The case was transferred to FAB and on October 3, 2007, it received [Claimant #2]‘s signed, written waiver of all objections to the September 14, 2007 recommended decision.  On October 17, 2007, [Claimant #2] also submitted a signed statement indicating that had not received any money from a tort suit for [Employee]‘s radiation exposure, and that he had not been convicted of fraud in connection with any application for or receipt of EEOICPA benefits or any other state or federal workers’ compensation benefits.  On September 27, 2007, FAB received written objections to the September 14, 2007 recommended decision and a request for review of the written record from [Claimant #1]‘s representative, dated September 26, 2007.

OBJECTIONS

In his September 26, 2007 submission, [Claimant #1]‘s representative objected to the seventh “Conclusion of Law” in the recommended decision, which is the one that concluded that [Claimant #1] was not a surviving “child” of [Employee] under either Part B or Part E of EEOICPA and rejected the representative’s contentions that Washington workers’ compensation law and a child visitation decision supported [Claimant #1]‘s claim.  The representative repeated his earlier argument regarding the non-exhaustive nature of the definition of “child” under EEOICPA and alleged that DEEOIC had ignored this point when it “made its recommended decision of denial on the basis that [Claimant #1] does not qualify as a surviving child of [Employee] since [Claimant #1] was neither a recognized natural child, a stepchild or an adopted child [of [Employee].”[6]

[Claimant #1]‘s representative also repeated his argument that Washington workers’ compensation law should apply in [Claimant #1]‘s EEOICPA claim because EEOICPA is a “federal worker’s [sic] compensation statute.”  Based on this premise, the representative asserted that the concept of dependence alone should be determinative of [Claimant #1]‘s status as [Employee]‘s child.

Finally, the representative argued that the “general rule of law” pronounced in the child visitation case was “not limited to the facts in the particular case.”  Rather, he asserted, “the application of the de facto concept is broadly [sic] subject only to the factors enumerated in the general rule developed in the decision.”  The representative then quoted from the portion of the decision in which the court set out four criteria that an individual would have to meet in order to have “standing as a de facto parent” in a child visitation proceeding, and asserted that [Claimant #1] was [Employee]‘s “de facto child.”

After considering the recommended decision and all of the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1.         [Claimant #1] and [Claimant #2] filed claims for survivor benefits under Part B of EEOICPA on October 15, 2002 and March 31, 2003, respectively, and both later expanded their claims to include Part E.

2.         [Employee] was employed at the Hanford facility by DOE subcontractors from January 1, 1950 to April 15, 19 55, from September 14, 1956 to March 15, 1957, from March 22, 1957 to April 26, 1957, from March 3 to 4, 1960, and from September 14, 1960 to March 4, 1977.

3.         On July 1, 1999, [Employee] was diagnosed with lung cancer.  The date of this diagnosis was after he had begun covered employment.

4.         NIOSH reported annual dose estimates for the lung from the date of initial radiation exposure during covered employment to the date of the cancer’s first diagnosis.  A summary and explanation of the information and methods applied to produce these dose estimates, including [Claimant #1]‘s and [Claimant #2]‘s involvement through their interviews and reviews of the draft dose reconstruction report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA” dated September 29, 2005.

5.         Using the dose estimates from NIOSH’s September 29, 2005 report, DEEOIC determined that the probability of causation (PoC) was 52.89% and established that it was “at least as likely as not” that [Employee]‘s lung cancer was sustained in the performance of duty.

6.         [Claimant #1] was born on June 14, 1942 and is the child of [Claimant #1’s Mother] and an unknown father.  From 1943 to 1944, he lived with his uncle and aunt, [Employee and Employee’s Spouse] ([Sister of Claimant #1’s Mother]).  In 1945, [Claimant #1’s Mother] married [Claimant #1’s Stepfather], and [Claimant #1] was reunited with his mother and lived with her and [Claimant #1’s Stepfather].  [Claimant #1’s Mother] died on January 23, 1949, after which [Claimant #1] was again sent to live with his aunt and uncle.  [Claimant #1]‘s stepfather died in 1952.  [Claimant #1] lived with his uncle the employee, his aunt and his cousin [Claimant #2] from 1949 until he enlisted in the U.S. Marine Corps in 1960.

7.         [Claimant #2] is the stepchild of [Employee] as established by his birth certificate, his school records, and the marriage of his mother [Employee’s Spouse] to [Employee].

8.         At the time of [Employee]‘s death, [Claimant #2] was not under the age of 18, or under the age of 23 and continuously enrolled as a full-time student in an institution of higher learning, or any age and incapable of self-support.

Based on the above-noted findings of fact, and after considering the objections to the recommended decision in this case, FAB hereby makes the following:

CONCLUSIONS OF LAW

The first issue in this case is whether [Employee] qualifies as a “covered employee with cancer” for the purposes of Part B of EEOICPA.  For this case, the relevant portion of the definition of a “covered employee with cancer” is “[a] Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility, [] if and only if that individual is determined to have sustained that cancer in the performance of duty in accordance with section 7384n(b) of this title.”  42 U.S.C. § 7384l(9)(B).  As found above, [Employee] was employed at the Hanford facility by DOE subcontractors for intermittent periods from January 1, 1950 to March 4, 1977, and was first diagnosed with lung cancer after he had begun working at the Hanford facility.

In accordance with 42 U.S.C. § 7384n(d), NIOSH produced dose estimates of the annual radiation exposures to [Employee]‘s lungs, and DEEOIC calculated the PoC for his lung cancer based on those estimates consistent with § 7384n(c)(3).  Since the PoC was calculated to be 52.89%, it established that it was “at least as likely as not” that [Employee]‘s lung cancer was sustained in the performance of duty under § 7384n(b).  Therefore, [Employee] qualifies as a “covered employee with cancer” under Part B, as that term is defined by § 7384l(9)(B), because he was employed at a DOE facility by DOE subcontractors and sustained cancer in the performance of duty.  As a result, his cancer is an “occupational illness” under Part B, as defined by § 7384l(15), and he is also a “covered employee,” as that term is defined by § 7384l(1)(B).  Pursuant to 42 U.S.C. § 7385s-4(a), this conclusion also constitutes a determination under Part E of EEOICPA that [Employee] contracted his lung cancer through exposure to a toxic substance at a DOE facility.  However, because he is a deceased covered employee, only his eligible survivors are entitled to share in the compensation payable under Part B and Part E of EEOICPA.

The second issue in this case is whether [Claimant #1] or [Claimant #2] is a “child” of [Employee] under both Parts B and E of EEOICPA.  The statutory term “child,” which has the same definition in both Parts B and E, “includes a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.”  42 U.S.C. §§ 7384s(e)(3)(B), 7385s-3(d)(3).  Both of these definitions use the non-exhaustive term “includes” and identify three classes of persons that are considered to be children of an individual for purposes of paying survivor benefits under Parts B and E of EEOICPA.

There are well-established definitions for the three classes of persons included in the two statutory provisions at issue:  (1) a “recognized natural child” is an illegitimate child of an individual, who has been recognized or acknowledged as a child by that individual; (2) a “stepchild” is someone who meets the criteria currently described in Chapter 2-200.5c (September 2004) of the Federal (EEOICPA) Procedure Manual; and (3) an “adopted child” is someone who satisfies the legal criteria for that status under state law.

The use of the term “includes” in both § 7384s(e)(3) and § 7385s-3(d)(3) is evidence that Congress intended the term “child” to refer to more than just the three classes of persons noted above, as is the fact that those three specified classes do not include legitimate issue (and posthumously born legitimate issue).  Thus, the definition of the term “child” is properly left to DEEOIC as the agency that is charged with the administration of the compensation programs established by EEOICPA.  See 20 C.F.R. § 30.1 (2007).  As an exercise of that authority, DEEOIC concludes that there is no dispute that legitimate issue are children of an individual.  Furthermore, unrecognized or unacknowledged illegitimate issue (and posthumously born illegitimate issue) also fall within the definition of “child” since denying EEOICPA survivor benefits to these other illegitimate children would violate the Constitution.[7]  For brevity’s sake, DEEOIC will use the term “biological” children to mean all issue of an individual (including posthumously born issue), whether  legitimate or illegitimate.  Under this terminology, a “recognized natural child” is one type of biological child.  Accordingly, DEEOIC concludes that a “child” of an individual under both Part B and Part E of EEOICPA can only be a biological child, a stepchild, or an adopted child of that individual.

As noted above in the “Objections” section of this decision, [Claimant #1]‘s representative argues that Washington workers’ compensation law should apply in [Claimant #1]‘s EEOICPA claim because EEOICPA is a “federal worker’s [sic] compensation statute.”  In his view, [Claimant #1] should be found to be a “child” under EEOICPA because he meets the definition of a “child” in Title 51 of Washington’s Revised Code, which defines a “child” as “every natural born child, posthumous child, stepchild, child legally adopted prior to the injury, child born after the injury. . .and dependent child in the legal custody and control of the worker. . . .”(emphasis added).[8]  However, there is no evidence in the case file that [Claimant #1] is the natural born child, posthumous child, stepchild, child legally adopted prior to the injury or child born after the injury of [Employee].

There is also no allegation or evidence in the case file that [Employee or Employee’s Spouse] ever had legal custody of [Claimant #1].  Instead, it appears that after the death of his mother, [Claimant #1] merely lived with his aunt and uncle who had, at most, physical custody of their nephew.  Even assuming that [Employee] had “legal custody” of [Claimant #1] (a prerequisite of the definitional phrase at issue), there is nothing in either § 7384s(e)(3) or § 7385s-3(d)(3), or in EEOICPA as a whole, that suggests that a person claiming to be a “child” of a deceased covered employee should be able to establish that status by proving merely that they are or were “dependant” on that individual.  Therefore, DEEOIC has concluded that persons who are or were only “dependant” on an individual are not “children” of that individual under EEOICPA, which is not a “federal worker’s [sic] compensation statute” (those types of statutes are “wage-replacement” statutes[9]), as [Claimant #1]‘s representative believes, where issues of dependency are often relevant to questions of survivor eligibility.[10]

[Claimant #1]‘s representative also argues that [Claimant #1] should be considered a “de facto child” of [Employee] based on a recent decision in a visitation dispute in Washington.  The dispute involved two parties who could not legally marry one another but had agreed to raise a biological child of one of the parties together.  When the party who had no biological or legal relationship to the child sued to obtain visitation rights after the parties had terminated their agreement, the court considered whether the party was a “de facto parent.”[11]  [Claimant #1]‘s representative argues that [Employee] would have met the court’s four-part test[12] to be his client’s “de facto parent” and as a consequence, [Claimant #1] should be considered to be the “de facto child” of [Employee].  There are, however, two flaws in this argument.  First, both the decision at issue and subsequent cases that have relied upon it are clearly within the state law realm of child custody and/or parental rights.  State courts in these types of cases are primarily concerned with the “best interests of the child,” which is an equitable concern that does not enter into EEOICPA’s definitions of “child,” and involve the creation or definition of rights and obligations of parents, not children.  Secondly, the decision cited by [Claimant #1]‘s representative only contains a discussion of who can be considered a “de facto parent,” not a “de facto child.”  Therefore, the representative’s reliance on this decision is flawed not only because it is not controlling in the EEOICPA claims adjudication process, but also because it is based on an overly expansive reading of what the court actually stated.

Returning to the second issue in this case, DEEOIC concludes that [Claimant #2] is a “child” of [Employee] under Part B, as that term is defined in § 7384s(e)(3)(B), because he is [Employee]‘s stepchild.  [Claimant #2] is also a “child” of [Employee] under Part E, as that term is defined in § 7385s-3(d)(3), for the same reason–because he is [Employee]‘s stepchild.  However, DEEOIC concludes that [Claimant #1] is not a “child” of [Employee] under either Part B or Part E because he is not a biological child of [Employee], or a stepchild of [Employee], or an adopted child of [Employee].

The third issue in this case is whether [Claimant #1] or [Claimant #2] is a “covered child” of [Employee] under Part E of EEOICPA.  In order to be eligible to receive a payment as a “child” of a deceased covered employee under Part E, a child of that employee must be a “covered child,” which is defined as “a child of the employee who, as of the employee’s death–(A) had not attained the age of 18 years; (B) had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years; or (C) had been incapable of self-support.”  42 U.S.C. § 7385s-3(d)(2). 

In this case, while [Claimant #2] is a “child” of [Employee] under Part E, he is not a “covered child,” as that term is defined in § 7385s-3(d)(2), because at the time of [Employee]‘s death on February 21, 2000, he was not under the age of 18, or under the age of 23 and continuously enrolled as a full-time student in an institution of higher learning, or any age and incapable of self-support.  As for [Claimant #1], since he is not a “child” of [Employee], as that term is defined in § 7385s-3(d)(3), because he is not a biological child, a stepchild or an adopted child of [Employee], he cannot be a “covered child” of [Employee] under Part E because an individual alleging that status must also be a “child” in order to be a “covered child” under the terms  of § 7385s-3(d)(2).

Accordingly, [Claimant #2] is entitled to survivor benefits for [Employee]‘s lung cancer under Part B, as outlined in 42 U.S.C. § 7384s(a)(1), and the FAB hereby awards him lump-sum benefits of $150,000.00 for that occupational illness under Part B.  [Claimant #2]‘s claim for survivor benefits under Part E for [Employee]‘s death due to lung cancer is denied.  [Claimant #1]‘s claim for survivor benefits under Parts B and E of EEOICPA for [Employee]‘s condition of lung cancer and his death due to lung cancer, respectively, is denied.

Washington, D.C.

Carrie Rhodes

Hearing Representative

Final Adjudication Branch

[12]  Without conceding that the court’s four-part test is applicable in this matter, DEEOIC notes that there is no evidence in the file that [Claimant #1’s Mother] gave her consent to have her son live with [Employee and Employee’s Spouse] after her death in 1949.