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Stephens & Stephens has obtained over $60 million through the Radiation Exposure Compensation Act and the Energy Employees Occupation Illness Compensation Act for our clients

Dianne HarperDianne Harper
01:02 17 Feb 24
Robert and I are very pleased with Mr. Hugh Stephens and all that he has done for us. From the first moment we spoke, we sensed that though Mr. Stephens exhibits sharp business acumen, he cares deeply about his clients and he has a huge heart.
Diane pontonDiane ponton
17:38 07 Feb 24
I tried to get others to help me with this claim, and it wasn"t until I hired Mr. Stephens that things started happening. I would recommend any one to get in touch with him . I would go to him again, if i ever needed to.
Judy LeonardJudy Leonard
22:26 06 Feb 24
I very much appreciate the successful litigation concerning my husband's Hanford work related illness. Stephens & Stephens LLP were thorough, caring, considerate, and fair during this difficult time.
Kenneth GKenneth G
18:23 03 Feb 24
Mr. Stephens was able to simplify an otherwise complicated lengthy process (DEEOIC) to file an initial claim as well as a claim for impairment benefits.
dave DONAIDdave DONAID
18:08 03 Feb 24
Frankie KnucFrankie Knuc
19:24 08 Jan 24
I had other attorneys hired in Cortez, Colorado and Grand Jct., Colorado to assist me with receiving my uranium claim, but they were not successful. I was advised by an employee of CNS of Stephens & Stephens, LLP good work. I contacted them & they took my case It was settled very quickly. I have been very pleased with this group & would advise others of their prompt service. I would recommend them to others. Respectfully, Frankie Knuckles
Rebecca ConsolRebecca Consol
19:57 22 Dec 23
My family used Stephen’s and Stephen’s for a settlement case. We were extremely pleased with all they did. They were very professional, easy to get a hold of, and invaluable when it came to answering questions and handling complicated Department of Labor issues and forms. They also did everything in a very timely manner. I have already recommended them to other people.
Thomas CliffordThomas Clifford
15:29 21 Dec 23
I have been represented by Hugh Stevens for several years now, He and his staff has made everything so easy for me. I had lung cancer from working in the uranium processing industry, they have opened so many doors for me and made dealing with DOL so much easier. They always answer my questions in a very timely manner. I have referred several other people to him and he has been able to get them through this process also. There are benefits that I was not aware of that he has brought to my attention and been able to lead me through the process of obtaining them. I would most highly recommend him to lead anyone through this process.
Lonnie killingHawkLonnie killingHawk
02:35 14 Dec 23
When I first contacted Stephens & Stephens I was at the end of my rope with DOL. Hough and his staff got me on track and handled everything with DOL and just made this process so easy. Do not know where I'd be with out them. They are able to communicate at a layman's level and understand the client. Would strongly recommend this firm.
Ruthy LyonRuthy Lyon
21:00 28 Sep 23
Our initial conversation with Mr. Stephens was productive & reassuring. His previous experience with similar cases was obvious and very helpful, in both asking us specific questions for clarification & also addressing our own questions. Breanna is also a great asset to their team.
James O'DayJames O'Day
15:07 13 Sep 23
I have referred several friends to Hugh Stephens and they were more satisfied than they ever expected. I would refer him with confidence to anyone in need. I trust when he speaks for me, for example, in court. He is a good communicator and a deep thinker. He is well respected in his profession. He handles environmental law, injury law, and medical malpractice. He is tactful and direct and knows what he is doing. He knows the legal briar patches well.
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Burden of Proof

Burden of Proof

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

Acceptance under former Part D

EEOICPA Fin. Dec. No. 10000216-2005 (Dep’t of Labor, March 4, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns 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).  Your claim for medical benefits under Part E of the Act is hereby accepted.

On February 24, 2005, the Jacksonville district office issued a recommended decision finding that you are a covered employee and were employed at a Department of Energy (DOE) facility by a DOE contractor in accordance with 42 U.S.C. § 7385s(1); and that you are entitled to medical benefits in accordance with 42 U.S.C. § 7385s-8 for the condition of lung scarring related to asbestosis.  Consequently, the district office concluded that you are entitled to medical benefits in accordance with 42 U.S.C. § 7385s-4(b).  On March 3, 2005, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

The evidence of record establishes that your application meets the statutory criteria for compensability for medical benefits as defined in Part E of the EEOICPA.  In this instance, the evidence confirms that you had covered employment with Union Carbide Corporation and Martin Marietta Energy Systems in Oak Ridge, Tennessee at the Y-12 plant from July 13, 1970 to March 30, 1975; at the K-25 gaseous diffusion plant from March 31, 1975 to July 31, 1982; and at the Y-12 plant from August 1, 1982 to September 15, 1994, and supports a causal connection between your condition and your work-related exposure to a toxic substance at a DOE facility.  Specifically, the evidence of record establishes that a Physicians Panel review under former Part D of the EEOICPA has been completed, and that the Secretary of Energy accepted the Panel’s affirmative determination of your covered illness at a DOE facility.  This evidence establishes your entitlement to medical benefits under Part E of the EEOICPA.

The Final Adjudication Branch hereby finds that [Employee] is a covered employee as defined in 42 U.S.C. § 7385s(1), and contracted lung scarring related to asbestosis due to work-related exposure to a toxic substance at a DOE facility.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits effective November 8, 2001 under Part E of the EEOICPA for lung scarring related to asbestosis.  Adjudication of your potential entitlement to additional compensation (based on wage loss and/or impairment) is deferred until after the effective date of the Interim Final Regulations.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch 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.  For the reasons set forth below, your claim is accepted in part and deferred in part.  Since you submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations.  20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations.  20 C.F.R. § 30.310.  In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.

STATEMENT OF THE CASE

On December 16, 2001, according to the Paducah Resource Center, you filed a Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.  On the Form EE-3, Employment History, you stated you were employed as a senior lab analyst by Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  

A previous Final Decision was issued by the Department of Labor on May 29, 2002, denying your claim for compensation because you did not provide medical evidence sufficient to establish a diagnosis of an occupational illness under the Act.  42 U.S.C. § 7384l(15).

You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  42 U.S.C. § 7385s-4(b).  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination. 

On January 31, 2005, you were contacted by the Jacksonville district office and requested to provide additional information.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

On March 7, 2005, the Jacksonville district office issued a recommended decision concluding that you are entitled to medical benefits for bronchitis and pneumonia beginning December 16, 2001. 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  These 60 days expired on May 6, 2005.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.

OBJECTIONS

In the letter of objection, you stated that you agreed with the positive determination for bronchitis and pneumonia but disagreed with the negative determination for brain tumor.  However, the recommended decision did not address your claim for brain tumor and noted that conditions not accepted by the physicians’ panel will be deferred for additional development.  The information you submitted will be included in your case file for future reference during development and adjudication of any additional entitlement.

FINDINGS OF FACT

1.  On December 16, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.

2.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986. 

3.  You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination.

4.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

5.  On March 7, 2005 the Jacksonville district office issued a recommended decision.

6.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.  The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 7, 2005, and the subsequently submitted objections.  I find that the decision of the Jacksonville district office is supported by the evidence and the law, and cannot be changed.

The Final Adjudication Branch has reviewed the record and the recommended decision of March 7, 2005 and concludes that you were a DOE contractor employee with bronchitis and pneumonia due to exposure to a toxic substance at a DOE facility.  42 U.S.C. §§ 7385s(1), 7385s-4.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits for bronchitis and pneumonia effective December 16, 2001.  42 U.S.C. § 7385s-8.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch 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.  For the reasons set forth below, your claim is accepted in part and deferred in part.  Since you submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations.  20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations.  20 C.F.R. § 30.310.  In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.

STATEMENT OF THE CASE

On December 16, 2001, according to the Paducah Resource Center, you filed a Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.  On the Form EE-3, Employment History, you stated you were employed as a senior lab analyst by Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986.  

A previous Final Decision was issued by the Department of Labor on May 29, 2002, denying your claim for compensation because you did not provide medical evidence sufficient to establish a diagnosis of an occupational illness under the Act.  42 U.S.C. § 7384l(15).

You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  42 U.S.C. § 7385s-4(b).  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination. 

On January 31, 2005, you were contacted by the Jacksonville district office and requested to provide additional information.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

On March 7, 2005, the Jacksonville district office issued a recommended decision concluding that you are entitled to medical benefits for bronchitis and pneumonia beginning December 16, 2001. 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  These 60 days expired on May 6, 2005.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.

OBJECTIONS

In the letter of objection, you stated that you agreed with the positive determination for bronchitis and pneumonia but disagreed with the negative determination for brain tumor.  However, the recommended decision did not address your claim for brain tumor and noted that conditions not accepted by the physicians’ panel will be deferred for additional development.  The information you submitted will be included in your case file for future reference during development and adjudication of any additional entitlement.

FINDINGS OF FACT

1.  On December 16, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity, chronic beryllium disease, brain tumor, bronchitis, and pneumonia.

2.  The evidence of record establishes you worked for Union Carbide and Martin Marietta at the gaseous diffusion plant in Paducah, Kentucky, for the period of January 7, 1975 to January 19, 1986. 

3.  You submitted medical evidence establishing you were diagnosed with bronchitis and pneumonia.  A Physicians Panel review under former Part D of the Act has been completed.  The Secretary of Energy accepted the Panel’s affirmative determination that your bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility.  This supports a finding that you contracted your illnesses through your exposure to a toxic substance at the gaseous diffusion plant in Paducah, Kentucky, a DOE facility.  On September 28, 2004, the DOE advised you of the Panel’s affirmative determination.

4.  You indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

5.  On March 7, 2005 the Jacksonville district office issued a recommended decision.

6.  On April 8, 2005, the Final Adjudication Branch received your letter of objection dated March 29, 2005.  The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 7, 2005, and the subsequently submitted objections.  I find that the decision of the Jacksonville district office is supported by the evidence and the law, and cannot be changed.

The Final Adjudication Branch has reviewed the record and the recommended decision of March 7, 2005 and concludes that you were a DOE contractor employee with bronchitis and pneumonia due to exposure to a toxic substance at a DOE facility.  42 U.S.C. §§ 7385s(1), 7385s-4.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to medical benefits for bronchitis and pneumonia effective December 16, 2001.  42 U.S.C. § 7385s-8.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Claimant’s responsibilities

EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

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.  The recommended decision was to deny your claim.  You submitted objections to that recommended decision.  The Final Adjudication Branch carefully considered the objections and completed a review of the written record.  See 20 C.F.R. § 30.312.  The Final Adjudication Branch concludes that the evidence is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

     STATEMENT OF THE CASE

On July 31, 2001, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that you were the daughter of [Employee], who was diagnosed with cancer, chronic silicosis, and emphysema.  You completed a Form EE-3, Employment History for Claim under the EEOICPA, indicating that from December 2, 1944 to May 30, 1975, [Employee] was employed as a heavy mobile and equipment mechanic, for Alaska District, Corps of Engineers, Anchorage, Alaska. 

On August 20, 2001, a representative of the Department of Energy (or DOE) indicated that “none of the employment history listed on the EE-3 form was for an employer/facility which appears on the Department of Energy Covered Facilities List.”  Also, on August 29, 2001, a representative of the DOE stated in Form EE-5 that the employment history contains information that is not accurate.  The information from the DOE lacked indication of covered employment under the EEOICPA.

The record in this case contains other employment evidence for [Employee].  With the claim for benefits, you submitted a “Request and Authorization for TDY Travel of DOD Personnel” Form DD-1610, initiated on November 10, 1971 and approved on November 11, 1971.  [Employee] was approved for TDY travel for three days to perform work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers beginning on November 15, 1971.  He was employed as a Mobile Equipment Mechanic WG-12, and the purpose of the TDY was noted “to examine equipment for potential use on Blair Lake Project.”  The security clearance was noted as “Secret.”  You also submitted numerous personnel documents from [Employee]‘s employment with the Alaska District Corp of Engineers.  Those documents include a “Notification of Personnel Action” Form SF-50 stating that [Employee]‘s service compensation date was December 2, 1944, for his work as a Heavy Mobile Equipment Mechanic; and at a WG-12, Step 5, and that he voluntarily retired on May 30, 1975. 

The medical documentation of record shows that [Employee] was diagnosed with emphysema, small cell carcinoma of the lung, and chronic silicosis.  A copy of [Employee]‘s Death Certificate shows that he died on October 9, 1990, and the cause of death was due to or as a consequence of bronchogenic cancer of the lung, small cell type.

On September 6 and November 5, 2001, the district office wrote to you stating that additional evidence was needed to show that [Employee] engaged in covered employment.  You were requested to submit a Form EE-4, Employment History Affidavit, or other contemporaneous records to show proof of [Employee]‘s employment at the Amchitka Island, Alaska site covered under the EEOICPA.  You did not submit any additional evidence and by recommended decision dated December 12, 2001, the Seattle district office recommended denial of your claim.  The district office concluded that you did not submit employment evidence as proof that [Employee] worked during a period of covered employment as required by § 30.110 of the EEOICPA regulations.  See 20 C.F.R. § 30.110. 

On January 15 and February 6, 2002, you submitted written objections to the recommended denial decision.  The DOE also forwarded additional employment information.  On March 20, 2002, a representative of the DOE provided a Form EE-5 stating that the employment history is accurate and complete.  However, on March 25, 2002, a representative of the DOE submitted a “corrected copy” Form EE-5 that indicated that the employment history provided in support of the claim for benefits “contains information that is not accurate.”  An attachment to Form EE-5 indicated that [Employee] was employed by the Army Corps of Engineers for the period July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska.  Further, the attachment included clarifying information:

Our records show that the Corps of Engineers’ was a prime AEC contractor at Amchitka.  [Employee]‘s Official Personnel Folder (OPF) indicates that he was at Forth Richardson and Elmendorf AFB, both in Alaska.  The OPF provided no indication that [Employee] worked at Amchitka, Alaska.  To the best of our knowledge, Blair Lake Project was not a DOE project.

Also, on April 3, 2002, a representative of the DOE submitted a Form EE-5 indicating that Bechtel Nevada had no information regarding [Employee], but he had a film badge issued at the Amchitka Test Site, on November 15, 1971.  The record includes a copy of Appendix A-7 of a “Manager’s Completion Report” which indicates that the U. S. Army Corps of Engineers was a prime AEC (Atomic Energy Commission) Construction, Operations and Support Contractor, on Amchitka Island, Alaska.

On December 10, 2002, a hearing representative of the Final Adjudication Branch issued a Remand Order.  Noting the above evidence, the hearing representative determined that the “only evidence in the record with regard to the Army Corps of Engineers status as a contractor on Amchitka Island is the DOE verification of its listing as a prime AEC contractor . . . and DOE’s unexplained and unsupported verification [of [Employee]‘s employment, which] are not sufficient to establish that a contractual relationship existed between the AEC, as predecessor to the DOE, and the Army Corps of Engineers.”  The Remand Order requested the district office to further develop the record to determine whether the Army Corps of Engineers had a contract with the Department of Energy for work on Amchitka Island, Alaska, and if the work [Employee] performed was in conjunction with that contract.  Further the Remand Order directed the district office to obtain additional evidence to determine if [Employee] was survived by a spouse, and since it did not appear that you were a natural child of [Employee], if you could establish that you were a stepchild who lived with [Employee] in a regular parent-child relationship.  Thus, the Remand Order requested additional employment evidence and proof of eligibility under the Act.   

On January 9, 2003, the district office wrote to you requesting that you provide proof that the U.S. Army Corps of Engineers had a contract with the AEC for work [Employee] performed on his TDY assignment to Amchitka Island, Alaska for the three days in November 1971.  Further, the district office requested that you provide proof of your mother’s death, as well as evidence to establish your relationship to [Employee] as a survivor.

You submitted a copy of your birth certificate that indicated that you were born [Name of Claimant at Birth] on October 4, 1929, to your natural mother and natural father [Natural Mother] and [Natural Father].  You also submitted a Divorce Decree filed in Boulder County Court, Colorado, Docket No. 10948, which showed that your biological parents were divorced on October 10, 1931, and your mother, [Natural Mother] was awarded sole custody of the minor child, [Name of Claimant at Birth].  In addition, you submitted a marriage certificate that indicated that [Natural Mother] married [Employee] in the State of Colorado on November 10, 1934.  Further, you took the name [Name of Claimant Assuming Employee’s Last Name] at the time of your mother’s marriage in 1934, as indicated by the sworn statement of your mother on March 15, 1943.  You provided a copy of a Marriage Certificate to show that on August 19, 1949, you married [Husband].  In addition, you submitted a copy of the Death Certificate for [Name of Natural Mother Assuming Employee’s Last Name] stating that she died on May 2, 1990.  The record includes a copy of [Employee]‘s Death Certificate showing he died on October 9, 1990. 

You also submitted the following additional documentation on January 20, 2003:  (1) A copy of [Employee’s] Last Will and Testament indicated that you, [Claimant], were the adult daughter and named her as Personal Representative of the Estate; (2) Statements by Jeanne Findler McKinney and Jean M. Peterson acknowledged on January 17, 2003, indicated that you lived in a parent-child relationship with [Employee] since 1945; (3) A copy of an affidavit signed by [Name of Natural Mother Assuming Employee’s Last Name] (duplicate) indicated that at the time of your mother’s marriage to [Employee], you took the name [Name of Claimant Assuming Employee’s Last Name]

You submitted additional employment documentation on January 27, 2003:  (1) A copy of [Employee]‘s TDY travel orders (duplicate); (2) A Memorandum of Appreciation dated February 11, 1972 from the Department of the Air Force commending [Employee] and other employees, for their support of the Blair Lake Project; (3) A letter of appreciation dated February 18, 1972 from the Department of the Army for [Employee]‘s contribution to the Blair Lake Project; and (4) Magazine and newspaper articles containing photographs of [Employee], which mention the work performed by the U.S. Army Corps of Engineers in Anchorage, Alaska.

The record also includes correspondence, dated March 27, 2003, from a DOE representative.  Based on a review of the documents you provided purporting that [Employee] was a Department of Energy contractor employee working for the U.S. Army Corps of Engineers on TDY in November, 1971, the DOE stated that the Blair Lake Project was not a DOE venture, observing that “[i]f Blair Lake Project had been our work, we would have found some reference to it.” 

On April 4, 2003, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that the evidence of record was insufficient to establish that [Employee]  was a covered employee as defined under § 7384l(9)(A).  See 42 U.S.C. § 7384l(9)(A).  Further, [Employee] was not a member of the Special Exposure Cohort, as defined by § 7384l(14)(B).  See 42 U.S. C. § 7384l(14)(B).  Also, [Employee] was not a “covered employee with silicosis” as defined under §§ 7384r(b) and 7384r(c).  See 42 U.S.C. §§ 7384r(b) and (c).  Lastly, the recommended decision found that you are not entitled to compensation under § 7384s.  See 42 U.S.C. § 7384s. 

On April 21, 2003, the Final Adjudication Branch received your letter of objection to the recommended decision and attachments.  First, you contended that the elements of the December 10, 2002 Remand Order were fulfilled because you submitted a copy of your mother’s death certificate and further proof that [Employee] was your stepfather; and that the letter from the district office on April 4, 2003 “cleared that question on page three – quote ‘Our records show that the Corps of Engineers was a prime AEC contractor at Amchitka.’” 

Second, you stated that further clarification was needed as to the condition you were claiming. You submitted a death certificate for [Employee] showing that he died due to bronchogenic cancer of the lung, small cell type, and noted that that was the condition you alleged as the basis of your claim on your first Form, associated with your claim under the EEOICPA.

Third, you alleged that, in [Employee]‘s capacity as a “Mobile Industrial Equipment Mechanic” for the Army Corps of Engineers, “he was required to work not only for the DOD (Blair Lake project) but also for DOE on the Amchitka program.  For example: on March 5, 1968 he was sent to Seward, Alaska to ‘Inspect equipment going to Amchitka.’  He was sent from the Blair Lake project (DOD) to Seward for the specified purpose of inspecting equipment bound for Amchitka (DOE).  Thus, the DOE benefited from my father’s [Corp of Engineers] expertise/service while on ‘loan’ from the DOD.  Since the closure of the Amchitka project (DOE), the island has been restored to its original condition.  . . . Therefore, my dad’s trip to Amchitka to inspect equipment which might have been used at the Blair Lake project benefited not only DOD but also DOE.  In the common law, this is known as the ‘shared Employee’ doctrine, and it subjects both employers to liability for various employment related issues.” 

On May 21, 2003, the Final Adjudication Branch received your letter dated May 21, 2003, along with various attachments.  You indicated that the U.S. Army Corps of Engineers was a contractor to the DOE for the Amchitka Project, based upon page 319 of an unclassified document you had previously submitted in March 2002.  Further, you indicated that [Employee] had traveled to Seward, Alaska to inspect equipment used at on-site operations for use on Amchitka Island by the Corps of Engineers for the DOE project, and referred to the copy of the Corps of Engineers TDY for Seward travel you submitted to the Final Adjudication Branch with your letter of April 18, 2003.  Also, you indicated that [Employee] traveled to Amchitka, Island in November 1972 to inspect the equipment referenced above, which had been shipped from Seward, Alaska.  You indicated that [Employee] was a mobile industrial equipment mechanic, and that his job required him to travel.  You attached the following documents in support of your contention that the equipment [Employee] inspected could have included equipment belonging to the Corps of Engineers:  Job Description, Alaska District, Corps of  Engineers (previously submitted), and an Employee Performance Appraisal. 

In addition, you indicated [Employee] was required to travel to remote sites throughout Alaska in order to perform his job with the Corps of Engineers, and in support of this you referred to your electronic mail sent to the Seattle District Office on January 7, 2003.  You indicated that, since [Employee] was required to travel to Amchitka as a part of his regular duties as a mobile industrial equipment mechanic, it was possible that the equipment he inspected on the November 15, 1971 trip to Amchitka included equipment owned by the Corps as well as inspection of equipment owned by private contractors.  You attached a copy of a document entitled, “Affidavit,” dated May 21, 2003, signed by Erwin L. Long.  Mr. Long stated that he was head of the Foundations Material Branch for the Corps of Engineers at the time of his retirement, and that in 1971 he had been Head of the Rock Design Section.  Mr. Long indicated that he did not spend any time on Amchitka Island, that he had known [Employee] since 1948, and that he “believe[d]” [Employee]‘s travel to Amchitka for his job would have required him to track equipment belonging to the Corps of Engineers, and that [Employee] would also have “performed required maintenance on the equipment before preparing [it] for shipping off Amchitka Island.”  Mr. Long also stated that [Employee] would not talk about his work on Amchitka since it was classified.  Finally, you attached a TDY dated March 4, 1968, as well as a travel voucher/subvoucher dated March 15, 1968, to support that [Employee]‘s mission to Amchitka had been completed. 

FINDINGS OF FACT

1.         On July 31, 2001, [Claimant] filed a claim for survivor benefits under the EEOICPA as the daughter of [Employee].

2.         [Employee] was diagnosed with small cell bronchogenic carcinoma of the lung and chronic silicosis.

3.         [Employee] was employed by the U.S. Army Corps of Engineers for the period from July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska.

4.         [Employee]‘s employment for the U.S. Army Corps of Engineers on TDY assignment at the Amchitka Island, Alaska site in November 1971 was in conjunction with a Department of Defense venture, the Blair Lakes Project.

CONCLUSIONS OF LAW

The EEOCIPA implementing regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law, in the recommended decision.  20 C.F.R. § 30.310.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record.  20 C.F.R. § 30.312.  The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  20 C.F.R. § 30.313.  Consequently, the Final Adjudication Branch will consider the overall evidence of record in reviewing the written record. 

In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  The evidence to show proof of an occupational illness is not in dispute in this case.  The medical evidence establishes that [Employee] was diagnosed with cancer (bronchogenic cancer of the lung, small cell type) and chronic silicosis.  Consequently, [Employee] was diagnosed with two illnesses potentially covered under the Act.

Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility.  42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II).  To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and have been exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  42 U.S.C. § 7384l(14).  To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer”, designated in section 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is.  Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:

(A)  An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

(B)  An individual who is or was employed at a Department of Energy facility by-

(i)  an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii)  a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The question presented in this case is whether [Employee], an employee of the U.S. Army Corps of Engineers was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the Army Corps of Engineers.

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the U.S. Army Corp of Engineers, as a prime contractor for work on Milrow and Cannikin.  The work to be performed under that contract consisted of “engineering, procurement, construction administration and inspection.”

[Employee]‘s “Request and Authorization for TDY Travel of DOD Personnel,” initiated on November 10 and approved on November 11, 1971, was for the purpose of three days work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers.  The purpose of the TDY was to “examine equipment for potential use on Blair Lake Project.”

You submitted the following new documents along with your letter to the Final Adjudication Branch dated May 21, 2003:  Employee Performance Appraisal for the period February 1, 1966 to January 31, 1967; Affidavit of Erwin L. Long dated May 21, 2003; Request and Authorization for Military Personnel TDY Travel and Civilian Personnel TDY and PCS Travel, dated March 4, 1968; and Travel Voucher or Subvoucher, dated March 15, 1968.  None of the documents submitted establish that [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE.

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island in November 1971 for the sole purpose of inspecting equipment to be used by the Department of Defense on its Blair Lake Project.  The documentation of record refers to the Blair Lake Project as a Department of Defense project, and the DOE noted in correspondence dated March 27, 2003, that research was not able to verify that Blair Lake was a DOE project.

While the DOE indicated that [Employee] was issued a dosimetry badge, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee.  Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the Department of Defense, and not pursuant to a contract between the DOE and the U.S. Army Corps of Engineers. 

The evidence is also insufficient to show covered employment under § 7384r(c) and (d) of the EEOICPA for chronic silicosis.  To be a “covered employee with chronic silicosis” it must be established that the employee was:

A DOE employee or a DOE contractor employee, who was present for a number of workdays aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for test or experiments related to an atomic weapon. 

See 42 U.S.C. § 7384r(c) and (d); 20 C.F.R. § 30.220(a).  Consequently, even if the evidence showed DOE employment (which it does not since [Employee] worked for the DOD), he was present only three days on Amchitka, which is not sufficient for the 250 days required under the Act as a covered employee with silicosis.

The undersigned notes that in your objection to the recommended decision, you referred to a “shared employee” doctrine which you believe should be applied to this claim.  You contend that on March 5, 1968, [Employee] was sent to Seward, Alaska to “Inspect equipment going to Amchitka, which might have been used at the Blair Lake project [to benefit] not only DOD but also DOE.”  No provision in the Act refers to a “shared employee” doctrine.  Given the facts of this case, coverage could only be established if [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE, evidence of which is lacking in this case. 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in section 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 regulations, the claimant also bears the burden of providing the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

Although you submitted medical evidence to show covered illnesses due to cancer and chronic silicosis, the evidence of record is insufficient to establish that [Employee] engaged in covered employment.  Therefore, your claim must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 10568-2003 (Dep’t of Labor, June 16, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

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).  On March 29, 2003, you wrote to the FAB and filed an objection to the March 11, 2003 recommended decision of the Cleveland district office.  Your objection has been considered by means of a review of the written record.

STATEMENT OF THE CASE

On September 24, 2002, you filed a claim (Form EE-2), for survivor benefits under the EEOICPA and identified bladder cancer as the diagnosed condition being claimed.  You submitted an employment history form (EE-3) in which you stated that Morrison Knudson Co. employed your husband from September 29, 1974 to February 28, 1976, General Dynamics employed your husband from September 26, 1976 to November 24, 1976, and that Cleveland Wrecking employed your husband until May 31, 1988[1].  You stated that your husband wore a dosimetry badge while employed.  You submitted a copy of your husband’s death certificate which indicates he died on April 9, 1998 due to bladder cancer and renal failure.  You submitted a copy of your marriage certificate which shows that you were married to the deceased employee on June 14, 1956.  You submitted medical evidence which included Dr. Karen Harris’ December 30, 1997 needle aspirate report in which she diagnosed your husband with transitional cell carcinoma.  The medical evidence also included a copy of the Sewickley Valley Hospital discharge summary in which Dr. Scott Piranian diagnosed your husband with transitional cell carcinoma of the bladder with bony metastases and lymphatic metastases. 

On November 14, 2001, Department of Energy (DOE) representative Roger Anders advised the district office via Form EE-5 that the employment history you provided contained information that was not accurate.  In an attachment, Mr. Anders advised that your husband worked at a portion of a facility whose activities came under the auspices of the DOE’s Naval Nuclear Propulsion Program.  The Cleveland district office issued a recommended decision on March 11, 2003, in which it concluded that the evidence of record did not establish that your husband was a covered employee with cancer under § 7384l(9) of the EEOICPA because he was not a DOE employee or contractor employee at a DOE facility, nor an atomic weapons employee at an atomic weapons employer facility as those facilities are defined in §§ 7384l(4) and 7384l(12) of the EEOICPA.  42 U.S.C. §§ 7384l(4), 7384l(9), 7384l(12). 

Objections

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  Section 30.312 of the EEOICPA implementing regulations provides that, “[i]f the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record.”  20 C.F.R. § 30.312.  On March 29, 2003, you wrote to the FAB and advised that you objected to the recommended decision of the Cleveland district office.  You stated that your husband worked as a laborer dismantling the old atomic power plant at Shippingport, PA and he worked side by side with employees that were covered.  You stated that it was discrimination for your husband not to be considered covered under the EEOICPA.  Your objection has been considered by means of review of the written record.

STATEMENT OF THE LAW

The EEOICPA was established to provide compensation benefits to covered employees (or their eligible survivors) that have been diagnosed with designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors.  The EEOICPA, at § 7384l(1), defines the term “covered employee” as (A) a covered beryllium employee, (B) a covered employee with cancer, and (C) to the extent provided in § 7384r, a covered employee with chronic silicosis (as defined in that section).  42 U.S.C. §§ 7384l(1), 7384r.  To establish entitlement to benefits under the EEOICPA due to cancer, you must establish that the deceased employee contracted the cancer after beginning work at a DOE or atomic weapons employer facility.  42 U.S.C. § 73841(9).  The EEOICPA, at § 7384l(12)(A), defines the term DOE facility “as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located…in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. § 7158 note), pertaining to the Naval Nuclear Propulsion Program).”  42 U.S.C. § 7384l(12). 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA.  The EEOICPA regulation at § 30.111(a) states, “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.”   20 C.F.R. §§ 30.110, 30.111(a).

After considering the written record of the claim and after conducting further development of the claim as was deemed necessary, the FAB hereby makes the following:

FINDINGS OF FACT

  1. You filed a claim for survivor benefits under the EEOICPA on September 24, 2001.
  2. Your husband was employed at the Shippingport Atomic Power Plant with the portion of the facility whose activities came under the auspices of the Department of Energy’s Naval Nuclear Propulsion Program.
  3. Dr. Karen Harris diagnosed your husband with transitional cell carcinoma on December 30, 1997.
  4. Your husband died on April 9, 1998, due to bladder cancer and renal failure.
  5. You are the surviving spouse of [Employee].

Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:

CONCLUSION OF LAW

Pursuant to § 7384l(12)(A) of the EEOICPA and § 30.5(v)(1) of the implementing regulations, employees engaged in Naval Nuclear Propulsion Program activities are excluded from coverage under the EEOICPA.  The evidence of record establishes that your husband was a Naval Nuclear Propulsion Program employee; therefore he does not meet the definition of a covered employee with cancer as defined in § 7384l(9) of the EEOICPA and § 30.210 of the implementing regulations.  Because your husband was not a covered employee with cancer, your claim for benefits is denied.

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] The beginning date indicated on the employment history form was distorted during the creation of the claim record.

EEOICPA Fin. Dec. No. 22675-2002 (Dep’t of Labor, April 21, 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.  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 February 19, 2002, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on prostate cancer.  You also filed a Form EE-3 (Employment History) that indicated, from 1944 to 1945, you were “assigned to grade work sites when [the] Hanford project was started,” that you were “a conscientious objector,” and treated as a prisoner at a camp near Hanford.  You indicated that you are unsure if you wore a dosimetry badge. 

You also signed and submitted a Form EE-4 (Employment History Affidavit) that provided additional employment information.  You wrote that you worked, from May 15, 1944 to May 15, 1945, for the “United States Dept. of Corrections, Columbia Road Camp, Hanford Area, WA.”  You continued that you were a “Grader operator in and around all of the atomic energy facilitys and surrounding area.”  A representative of the Department of Energy (DOE) reported that it had searched various employment records, including the records of General Electric (GE), Hanford Environmental Health Foundation (HEHF) and DuPont, and the Hanford Site contractor records contained no employment information regarding you. 

By letters dated March 6, June 18, and August 27, 2002, the Seattle district office advised you that they had completed the initial review of your claim, and that additional employment and medical evidence was needed.  Subsequently, you provided a pathology report dated November 9, 1993, signed by L. K. Hatch, M.D., that indicated a diagnosis of moderately differentiated prostatic adenocarcinoma; and copies of your medical records relating to possible cancer from Spokane Urology were received.

On September 30, 2002, the district office recommended denial of your claim for benefits.  The district office concluded that the DOE did not confirm you worked for a covered facility, subcontractor or vendor and you did not submit employment evidence to support that you are a covered employee.  The district office also concluded that you are not entitled to compensation as outlined in 42 U.S.C. § 7384s.  See 42 U.S.C. § 7384s.

On October 7, 2002, you submitted additional employment information related to your work.  You indicated that Walter J. Hardy worked with you “in irrigation,” for the U.S. Department of Corrections as an irrigation and grader operator, from 1944 to 1945.  An affidavit, signed by Walter J. Hardy, indicated he worked, with you, from late 1944 to late 1945, with the U.S. Department of Corrections at Hanford, Washington, and that your work consisted of irrigation repair and operation of a road grader.  He further affirmed that your work covered most areas of the restricted Hanford project.  Also, an affidavit, by Don Hughart, affirmed that he was acquainted with you at the Hanford camp, called “Columbia Camp,” from sometime in 1944 to late 1945.  He further affirmed that he worked in the orchards with you and that you operated a grader “in and around the Hanford Atomic Bomb Projects.”

On December 20, 2002, the Final Adjudication Branch remanded your claim for further development of the employment evidence, to determine whether you were an employee of the U.S. Department of Corrections in your status as a “prisoner” and if so, whether a contractual agreement existed between the U.S. Department of Corrections and the DOE.

By letter dated December 31, 2002, the district office posed certain questions to you regarding your claimed employment on the Hanford Site.  The questions inquired whether you received earnings from your work, whether you had individual liberty, if you were in a “prisoner status” under the U.S. Department of Corrections, if the Columbia Camp was on the Hanford Site, and if you were on the Hanford Site all the time.  You responded to the questions that you earned nine cents per hour for your labor, that you were followed to the Hanford gate and at night were free to go anywhere in the camp area, that you were in a “prisoner status,” that the Columbia Camp was just outside the Hanford gate, that you were not always on the Hanford Site but were there during the day in order to work, and that you returned to the camp at night. 

On February 17, 2004, the district office again recommended denial of your claim for benefits.  The district office concluded that the evidence of record is insufficient to establish that you were present at a covered facility as defined under § 7384l(12) while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under section 7384l(11) during a covered time period.  See 42 U.S.C. § 7384l(11) and (12)  The district office further concluded that you are not entitled to compensation pursuant to 42 U.S.C. § 7384s.

FINDINGS OF FACT

  1. You filed a claim for employee benefits on February 19, 2002.
  2. You submitted medical documentation adequate to establish a diagnosis of prostate cancer. 
  3. You did not provide sufficient evidence to establish that you engaged in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on February 17, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that you were diagnosed as having a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 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), (11). 

In order to be afforded coverage under § 7384l(9) of the EEOICPA as a “covered employee with cancer,” the claimant must show the employee met any of the following:

(I)                 A Department of Energy employee who contracted that cancer after beginning employment at a Department of Energy facility;

(II)              A Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility;

(III)            An Atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons facility.

42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b).  The record lacks proof that you worked in covered employment under the Act.  Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated (FPI), are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act.  The question of prisoners’ employment status for purposes of EEOICPA is properly resolved by focusing on the nature of the relationship between the prisoner and FPI.  The relationship between an inmate worker and FPI is a compulsory assignment to work rather than a traditional contractual employer-employee relationship in which an employee bargains to provide his labor in return for agreed upon compensation and is free to quit at will.  Not even FPI’s payments to prison laborers are a matter of a contractual right.  Instead, they are remitted to the prisoner solely by congressional grace and governed by the rules and regulations promulgated by the Attorney General.  Prisoners working for prison-run industries are not considered employees.

The record shows that, by letters dated March 16, June 18, and August 27, 2002, you were requested to provide the required information to prove covered employment under the Act.  You did not provide sufficient evidence to prove covered employment.

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a). 

The record in this case shows that although you submitted medical documentation showing a diagnosis of prostate cancer, you did not submit proof of covered employment under the Act.  Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act.  Therefore, your claim must be denied for lack of evidence of proof of covered employment under the EEOICPA. 

For the 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

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act (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 claims for benefits are denied.

STATEMENT OF THE CASE

On April 11, 2002, [Claimant 1] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that he was the son of [Employee], who was diagnosed with pharyngeal cancer.  An additional claim followed thereafter from [Claimant 2] on October 20, 2002.  [Claimant 1] also completed a Form EE-3, Employment History, indicating that [Employee] worked for Standard Oil Company, from 1950 to 1961; the State of Alaska as Deputy Director of Veterans Affairs, from 1961 to 1964; the State of Alaska Department of Military Affairs, Alaska Disaster Office, from 1965 to 1979 (where it was believed he wore a dosimetry badge); and, for the American Legion from 1979 to 1985. 

In correspondence dated June 24, 2002, a representative of the Department of Energy (DOE) indicated that they had no employment information regarding [Employee], but that he had been issued film badges at the Amchitka Test Site on the following dates:  October 28, 1965; September 30, 1969; and, September 21, 1970.  You also submitted a completed Form EE-4 (Employment Affidavit) signed by Don Lowell, your father’s supervisor at the State of Alaska, Department of Public Safety, Division of Civil Defense.  According to Mr. Lowell, your father was a radiological officer for the State of Alaska and accompanied him to Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969, as a representative of the State of Alaska. 

Additional documentation submitted in support of your claim included copies of your birth certificates, a marriage certificate documenting [Name of Claimant 2 at Birth]‘s marriage to [Husband], and the death certificate for [Employee], indicating that he was widowed at the time of his death on May 10, 1993.  In addition, you provided medical documentation reflecting a diagnosis of squamous cell carcinoma of the pharyngeal wall in November 1991.

On November 8, 2002, the Seattle district office issued a recommended decision that concluded that [Employee] was a covered employee as defined in § 7384l(9)(A) of the Act and an eligible member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA, who was diagnosed as having a specified cancer, specifically cancer of the hypopharynx, as defined in § 7384l(17) of the Act.  See 42 U.S.C. 7384l(9)(A), (14)(B), (17).  The district office further concluded that you were eligible survivors of [Employee] as outlined in § 7384s(e)(3) of the Act, and that you were each entitled to compensation in the amount of $75,000 pursuant to § 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. §§ 7384s(a)(1) and (e)(1).

On December 20, 2002, the Final Adjudication Branch issued a Remand Order in this case on the basis that the evidence of record did not establish that [Employee] was a member of the “Special Exposure Cohort,” as required by the Act.  The Seattle district office was specifically directed to determine whether the Department of Energy and the State of Alaska, Department of Public Safety, Division of Civil Defense, had a contractual relationship. 

In correspondence dated January 17, 2003, Don Lowell elaborated further on your father’s employment and his reasons for attending the nuclear testing on Amchitka Island.  According to Mr. Lowell, the Atomic Energy Commission (AEC) invited the governors of Alaska to send representatives to witness all three tests on Amchitka Island (Longshot, Milrow, and Cannikin).  As such, [Employee] attended both the Longshot and Milrow tests as a guest of the Atomic Energy Commission, which provided transportation, housing and food, and assured the safety and security of those representatives. 

On February 4, 2003, the district office received an electronic mail transmission from Karen Hatch, Records Management Program Officer at the National Nuclear Security Agency.  Ms. Hatch indicated that she had been informed by the former senior DOE Operations Manager on Amchitka Island that escorts were not on the site to perform work for the AEC, but were most likely there to provide a service to the officials from the State of Alaska.

In correspondence dated February 11, 2003, a representative of the State of Alaska, Department of Public Safety, Division of Administrative Services, indicated that there was no mention of Amchitka or any sort of agreement with the Department of Energy in [Employee]‘s personnel records, but that the absence of such reference did not mean that he did not go to Amchitka or that a contract did not exist.  He further explained that temporary assignments were not always reflected in these records and suggested that the district office contact the Department of Military and Veterans Affairs to see if they had any record of an agreement between the State of Alaska and the DOE.  By letter dated March 13, 2003, the district office contacted the Department of Military and Veterans Affairs and requested clarification as to [Employee]‘s employment with the State of Alaska and assignment(s) to Amchitka Island.  No response to this request was received.

On April 16, 2003, the S eattle district office recommended denial of your claims.  The district office concluded that you did not submit employment evidence as proof that [Employee] was a member of the “Special Exposure Cohort” as defined by § 7384l(14)(B) of the Act, as the evidence did not establish that he had been present at a covered facility as defined under § 7384l(12) of the Act, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under § 7384l(11) of the Act, during a covered time period.  See 42 U.S.C. § 7384l(11), (12).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s(e)(1) of the Act.  See 42 U.S.C. § 7384s(e)(1). 

FINDINGS OF FACT

1.         On April 11 and October 20, 2002, [Claimant 1] and [Claimant 2], respectively, filed claims for survivor benefits under the EEOICPA as the children of [Employee].

2.         [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.

3.         [Employee] was employed by the State of Alaska, Civil Defense Division, and was present on Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969.   

4.         [Employee]‘s employment with the State of Alaska, Civil Defense Division, on assignment to Amchitka Island, Alaska, was as a representative of the governor of Alaska.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on April 16, 2003.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a). 

In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  The evidence to show proof of an occupational illness is not in dispute in this case.  The medical evidence establishes that [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.  Consequently, [Employee] was diagnosed with an illness covered under the Act.

Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility.  42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II).  To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  42 U.S.C. § 7384l(14).  To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer,” designated in § 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is.  Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:

(A)  An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

(B)  An individual who is or was employed at a Department of Energy facility by-

(i)  an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

 

(ii)  a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The question presented in this case is whether [Employee], an employee of the State of Alaska, was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the State of Alaska.

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the State of Alaska as a prime contractor for work on Milrow and Cannikin.  The work to be performed under that contract consisted of police protection.

According to Don Lowell, [Employee]‘s supervisor at the time of his assignment to Amchitka Island, your father was not an employee of any contractor or the AEC at the time of his visit to Amchitka Island.  Rather, he was an invited guest of the AEC requested to witness the atomic testing as a representative of the governor of Alaska. 

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island for the sole purpose of witnessing the atomic testing as a representative of the governor of Alaska.  While the DOE indicated that [Employee] was issued a dosimetry badge on three occasions, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee.  Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the State of Alaska, as a representative of the governor, and not pursuant to a contract between the DOE and the State of Alaska. 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion 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 regulations, the claimant also bears the burden of providing the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

Although you submitted medical evidence to show a covered illness manifested by squamous cell carcinoma of the hypopharynx, the evidence of record is insufficient to establish that [Employee] engaged in covered employment.  Therefore, your claims must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  On January 22, 2003, Attorney Mike G. Nassios, your authorized representative, wrote to the FAB and filed objections to the November 27, 2002 recommended decision of the Jacksonville district office.  Your objections have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim (Form EE-1) for benefits under the EEOICPA.  You identified lung cancer as the diagnosed condition being claimed.  You stated that Paul Rankin employed you as a pipe layer and laborer at the K-25 and Y-12 Plants at Oak Ridge from 1958 to 1964.  Based upon the evidence of record, the Jacksonville district office issued a recommended decision on November 27, 2002, in which it concluded that you were not employed as a contracted or subcontracted employee at an atomic weapons employer or facility, nor at a Department of Energy facility, as those terms are defined in § 7384l of the EEOICPA and § 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  The district office also concluded that you are not a covered employee as that term is defined in § 7384l(1) of the EEOICPA.  42 U.S.C. § 7384l(1).

Objections

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to § 30.310 of the EEOICPA regulations.  20 C.F.R. § 30.310.  On January 22, 2003, your attorney filed objection to the recommended decision of the district office.  Your attorney stated it was your position that you have proven by a preponderance of the evidence that you were employed as a contracted or subcontracted employee at an atomic weapons employer or facility or a Department of Energy (DOE) facility as those terms are defined in §§ 7384l of the EEOICPA and 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  He also stated it was your position that you had presented more evidence than a self-serving affidavit of yourself, in that you presented the affidavit of other individuals and the DOE cannot legitimately rebut this proof in that the DOE records are not always all inclusive.  On January 30, 2003, your attorney submitted an affidavit from Fay Webb in which she stated that you were employed by Paul Rankin from February 1958 until December 1958 at the Y-12 Plant and from October 1964 to December 1964 at the K-25 plant.  Mrs. Webb identified herself as the wife of your co-worker.

You stated in your employment history (Form EE-3) that Paul Rankin employed you as a pipe layer and laborer from 1958 to 1964 at the K-25 and Y-12 Plants in Oak Ridge, TN.  You submitted a copy of the Social Security Administration (SSA) statement of earnings which show Paul Rankin employed you in the third quarter of 1958 and the fourth quarter of 1964.  Mr. Franklin Whetsell, who identified himself as a work associate, and your wife signed affidavits (Form EE-4) stating that you were employed by Paul Rankin from 1958 to 1964.  On June 7, 2002, you advised the district office in writing that you worked for Paul Rankin at Oak Ridge for two different jobs.  You stated that the first job began around February 1958 and ended December 1958 at Y-12 and the second job at K-25 began and ended in 1964.  On September 5, 2002, Frank Whetsell wrote to the district office in regards to the affidavit he submitted and advised that “his father” worked for Paul Rankin during the years 1958 through 1964.  Mr. Whetsell explained that he was a “kid” at the time so he doesn’t remember specific dates but he does recall his father “talking about working out there.” 

ANALYSIS

The DOE has advised that it has no employment information regarding you.  There has been no evidence submitted that establishes that Paul Rankin, the employer for whom you claim you worked, was a contractor at the Y-12 or K-25 plant.  The employment history (Form EE-3) you submitted conflicts with the SSA earnings statement and the information in your letter of June 7, 2002.  You stated in your employment history that you worked for Paul Rankin at the Y-12 and K-25 plants from 1958 to 1964 but you stated in your June 7, 2002 letter to the district office that you worked at Oak Ridge on two different jobs.  You stated that the first job was at the Y-12 plant and began around February 1958 and ended December 1958.  The second job was at the K-25 plant and it began and ended in 1964.  You also stated in your June 7, 2002 letter that you have no exact recollection of the dates.  The SSA earnings statement only shows earnings for the third quarter in 1958 and the fourth quarter in 1964 which would not total the 250 days required to establish that you are a member of the Special Exposure Cohort.  You submitted an affidavit from Franklin Whetsell in which he identified himself as a “work associate” and in response to the question to describe his knowledge of your employment history, he stated you were employed by Paul Rankin from 1958 to 1964 at the DOE facilities in Oak Ridge, TN (K-25 and Y-12).  However, on September 5, 2002, Mr. Whetsell advised the district office, by letter, that his father worked with you during the years 1958 through 1964.  He also stated that he was a kid at the time and he did not remember specific dates.  Mr. Whetsell’s letter conflicts with the information provided on his affidavit.  Your wife submitted an affidavit in which she stated that you worked for Paul Rankin at the Oak Ridge Facilities from 1958 to 1964 which conflicts with the information that you provided as clarification in your June 7, 2002 letter.  The information provided by Mrs. Webb in her affidavit is in conflict with the SSA earnings statement.

The EEOICPA regulations at § 30.111(c) allows for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility.  Pursuant to the EEOICPA regulations at § 30.111(a), the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion 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.  20 C.F.R. §§ 30.111(a), 30.111(c).  A claimant will not be entitled to any presumption otherwise provided for in the EEOICPA regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption.  See 20 C.F.R. § 30.111(d).  The evidence of record is not sufficient to establish you are a covered employee as defined in the EEOICPA.  See 42 U.S.C. §§ 7384l(1), 7384l(4), 7384l(7), 7384l(9), 7384l(11), 7384l(14).  The evidence of record is not sufficient to establish that Paul Rankin was a contractor for the DOE.

CONCLUSION:

Based on my review of your case record and pursuant to the authority granted by § 30.316(b) of the EEOICPA regulations, I find that the district office’s November 27, 2002 recommended decision is correct and I accept those findings and the recommendation of the district office.

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied. 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  On January 22, 2003, Attorney Mike G. Nassios, your authorized representative, wrote to the FAB and filed objections to the November 27, 2002 recommended decision of the Jacksonville district office.  Your objections have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim (Form EE-1) for benefits under the EEOICPA.  You identified lung cancer as the diagnosed condition being claimed.  You stated that Paul Rankin employed you as a pipe layer and laborer at the K-25 and Y-12 Plants at Oak Ridge from 1958 to 1964.  Based upon the evidence of record, the Jacksonville district office issued a recommended decision on November 27, 2002, in which it concluded that you were not employed as a contracted or subcontracted employee at an atomic weapons employer or facility, nor at a Department of Energy facility, as those terms are defined in § 7384l of the EEOICPA and § 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  The district office also concluded that you are not a covered employee as that term is defined in § 7384l(1) of the EEOICPA.  42 U.S.C. § 7384l(1).

Objections

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to § 30.310 of the EEOICPA regulations.  20 C.F.R. § 30.310.  On January 22, 2003, your attorney filed objection to the recommended decision of the district office.  Your attorney stated it was your position that you have proven by a preponderance of the evidence that you were employed as a contracted or subcontracted employee at an atomic weapons employer or facility or a Department of Energy (DOE) facility as those terms are defined in §§ 7384l of the EEOICPA and 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  He also stated it was your position that you had presented more evidence than a self-serving affidavit of yourself, in that you presented the affidavit of other individuals and the DOE cannot legitimately rebut this proof in that the DOE records are not always all inclusive.  On January 30, 2003, your attorney submitted an affidavit from Fay Webb in which she stated that you were employed by Paul Rankin from February 1958 until December 1958 at the Y-12 Plant and from October 1964 to December 1964 at the K-25 plant.  Mrs. Webb identified herself as the wife of your co-worker.

You stated in your employment history (Form EE-3) that Paul Rankin employed you as a pipe layer and laborer from 1958 to 1964 at the K-25 and Y-12 Plants in Oak Ridge, TN.  You submitted a copy of the Social Security Administration (SSA) statement of earnings which show Paul Rankin employed you in the third quarter of 1958 and the fourth quarter of 1964.  Mr. Franklin Whetsell, who identified himself as a work associate, and your wife signed affidavits (Form EE-4) stating that you were employed by Paul Rankin from 1958 to 1964.  On June 7, 2002, you advised the district office in writing that you worked for Paul Rankin at Oak Ridge for two different jobs.  You stated that the first job began around February 1958 and ended December 1958 at Y-12 and the second job at K-25 began and ended in 1964.  On September 5, 2002, Frank Whetsell wrote to the district office in regards to the affidavit he submitted and advised that “his father” worked for Paul Rankin during the years 1958 through 1964.  Mr. Whetsell explained that he was a “kid” at the time so he doesn’t remember specific dates but he does recall his father “talking about working out there.” 

ANALYSIS

The DOE has advised that it has no employment information regarding you.  There has been no evidence submitted that establishes that Paul Rankin, the employer for whom you claim you worked, was a contractor at the Y-12 or K-25 plant.  The employment history (Form EE-3) you submitted conflicts with the SSA earnings statement and the information in your letter of June 7, 2002.  You stated in your employment history that you worked for Paul Rankin at the Y-12 and K-25 plants from 1958 to 1964 but you stated in your June 7, 2002 letter to the district office that you worked at Oak Ridge on two different jobs.  You stated that the first job was at the Y-12 plant and began around February 1958 and ended December 1958.  The second job was at the K-25 plant and it began and ended in 1964.  You also stated in your June 7, 2002 letter that you have no exact recollection of the dates.  The SSA earnings statement only shows earnings for the third quarter in 1958 and the fourth quarter in 1964 which would not total the 250 days required to establish that you are a member of the Special Exposure Cohort.  You submitted an affidavit from Franklin Whetsell in which he identified himself as a “work associate” and in response to the question to describe his knowledge of your employment history, he stated you were employed by Paul Rankin from 1958 to 1964 at the DOE facilities in Oak Ridge, TN (K-25 and Y-12).  However, on September 5, 2002, Mr. Whetsell advised the district office, by letter, that his father worked with you during the years 1958 through 1964.  He also stated that he was a kid at the time and he did not remember specific dates.  Mr. Whetsell’s letter conflicts with the information provided on his affidavit.  Your wife submitted an affidavit in which she stated that you worked for Paul Rankin at the Oak Ridge Facilities from 1958 to 1964 which conflicts with the information that you provided as clarification in your June 7, 2002 letter.  The information provided by Mrs. Webb in her affidavit is in conflict with the SSA earnings statement.

The EEOICPA regulations at § 30.111(c) allows for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility.  Pursuant to the EEOICPA regulations at § 30.111(a), the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion 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.  20 C.F.R. §§ 30.111(a), 30.111(c).  A claimant will not be entitled to any presumption otherwise provided for in the EEOICPA regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption.  See 20 C.F.R. § 30.111(d).  The evidence of record is not sufficient to establish you are a covered employee as defined in the EEOICPA.  See 42 U.S.C. §§ 7384l(1), 7384l(4), 7384l(7), 7384l(9), 7384l(11), 7384l(14).  The evidence of record is not sufficient to establish that Paul Rankin was a contractor for the DOE.

CONCLUSION:

Based on my review of your case record and pursuant to the authority granted by § 30.316(b) of the EEOICPA regulations, I find that the district office’s November 27, 2002 recommended decision is correct and I accept those findings and the recommendation of the district office.

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied. 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

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

EEOICPA Fin. Dec. No. 10568-2003 (Dep’t of Labor, June 16, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

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).  On March 29, 2003, you wrote to the FAB and filed an objection to the March 11, 2003 recommended decision of the Cleveland district office.  Your objection has been considered by means of a review of the written record.

STATEMENT OF THE CASE

On September 24, 2002, you filed a claim (Form EE-2), for survivor benefits under the EEOICPA and identified bladder cancer as the diagnosed condition being claimed.  You submitted an employment history form (EE-3) in which you stated that Morrison Knudson Co. employed your husband from September 29, 1974 to February 28, 1976, General Dynamics employed your husband from September 26, 1976 to November 24, 1976, and that Cleveland Wrecking employed your husband until May 31, 1988[1].  You stated that your husband wore a dosimetry badge while employed.  You submitted a copy of your husband’s death certificate which indicates he died on April 9, 1998 due to bladder cancer and renal failure.  You submitted a copy of your marriage certificate which shows that you were married to the deceased employee on June 14, 1956.  You submitted medical evidence which included Dr. Karen Harris’ December 30, 1997 needle aspirate report in which she diagnosed your husband with transitional cell carcinoma.  The medical evidence also included a copy of the Sewickley Valley Hospital discharge summary in which Dr. Scott Piranian diagnosed your husband with transitional cell carcinoma of the bladder with bony metastases and lymphatic metastases. 

On November 14, 2001, Department of Energy (DOE) representative Roger Anders advised the district office via Form EE-5 that the employment history you provided contained information that was not accurate.  In an attachment, Mr. Anders advised that your husband worked at a portion of a facility whose activities came under the auspices of the DOE’s Naval Nuclear Propulsion Program.  The Cleveland district office issued a recommended decision on March 11, 2003, in which it concluded that the evidence of record did not establish that your husband was a covered employee with cancer under § 7384l(9) of the EEOICPA because he was not a DOE employee or contractor employee at a DOE facility, nor an atomic weapons employee at an atomic weapons employer facility as those facilities are defined in §§ 7384l(4) and 7384l(12) of the EEOICPA.  42 U.S.C. §§ 7384l(4), 7384l(9), 7384l(12). 

Objections

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  Section 30.312 of the EEOICPA implementing regulations provides that, “[i]f the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record.”  20 C.F.R. § 30.312.  On March 29, 2003, you wrote to the FAB and advised that you objected to the recommended decision of the Cleveland district office.  You stated that your husband worked as a laborer dismantling the old atomic power plant at Shippingport, PA and he worked side by side with employees that were covered.  You stated that it was discrimination for your husband not to be considered covered under the EEOICPA.  Your objection has been considered by means of review of the written record.

STATEMENT OF THE LAW

The EEOICPA was established to provide compensation benefits to covered employees (or their eligible survivors) that have been diagnosed with designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors.  The EEOICPA, at § 7384l(1), defines the term “covered employee” as (A) a covered beryllium employee, (B) a covered employee with cancer, and (C) to the extent provided in § 7384r, a covered employee with chronic silicosis (as defined in that section).  42 U.S.C. §§ 7384l(1), 7384r.  To establish entitlement to benefits under the EEOICPA due to cancer, you must establish that the deceased employee contracted the cancer after beginning work at a DOE or atomic weapons employer facility.  42 U.S.C. § 73841(9).  The EEOICPA, at § 7384l(12)(A), defines the term DOE facility “as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located…in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. § 7158 note), pertaining to the Naval Nuclear Propulsion Program).”  42 U.S.C. § 7384l(12). 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA.  The EEOICPA regulation at § 30.111(a) states, “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.”   20 C.F.R. §§ 30.110, 30.111(a).

After considering the written record of the claim and after conducting further development of the claim as was deemed necessary, the FAB hereby makes the following:

FINDINGS OF FACT

  1. You filed a claim for survivor benefits under the EEOICPA on September 24, 2001.
  2. Your husband was employed at the Shippingport Atomic Power Plant with the portion of the facility whose activities came under the auspices of the Department of Energy’s Naval Nuclear Propulsion Program.
  3. Dr. Karen Harris diagnosed your husband with transitional cell carcinoma on December 30, 1997.
  4. Your husband died on April 9, 1998, due to bladder cancer and renal failure.
  5. You are the surviving spouse of [Employee].

Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:

CONCLUSION OF LAW

Pursuant to § 7384l(12)(A) of the EEOICPA and § 30.5(v)(1) of the implementing regulations, employees engaged in Naval Nuclear Propulsion Program activities are excluded from coverage under the EEOICPA.  The evidence of record establishes that your husband was a Naval Nuclear Propulsion Program employee; therefore he does not meet the definition of a covered employee with cancer as defined in § 7384l(9) of the EEOICPA and § 30.210 of the implementing regulations.  Because your husband was not a covered employee with cancer, your claim for benefits is denied.

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] The beginning date indicated on the employment history form was distorted during the creation of the claim record.

EEOICPA Fin. Dec. No. 13183-2003 (Dep’t of Labor, October 15, 2003)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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 discussed below, your claim for compensation is denied.

STATEMENT OF THE CASE

You filed a claim, Form EE-2, on October 23, 2001, seeking benefits pursuant to the Energy Employees Occupational Illness Compensation Program Act.  You indicated on the claim form that you were filing for your spouse’s cancer, specifically, acute myelogenous leukemia, diagnosed approximately on January 1, 1995.  You also submitted Form EE-3, employment history, indicating that your spouse was employed by Fercleve Corporation, Manhattan Project, Oakridge, Tennessee, as a project technician from 1944 through 1946.  Along with the claim forms, you submitted:

  • your spouse’s death certificate, noting the immediate cause of death as Mucormycosis Brain Abcess(s) due to or as a consequence of acute myelogenous leukemia;
  • your marriage certificate;
  • several listings of prescriptions/medications;
  • several listings of medical expenses;
  • a copy of your spouse’s honorable discharge certificate dated March 14, 1946;
  • a copy of your spouse’s enlisted record and report of separation;
  • a copy of a letter to Senator Bunning from [Authorized Representative] dated February 2, 2001;
  • a copy of a letter to The Christ Hospital from Philip D. Leming, M.D. dated December 5, 1997;
  • a copy of a hematology consultation and admission note signed by Philip D. Leming dated October 2, 1997, noting a diagnosis of acute myelocytic lueukemia with pancytopenia;
  • a copy of a Ohio State University James Cancer Hospital and Research Institute medical document signed by Michael A. Caligiuri dated September 10, 1998;
  • a copy of a letter signed by Philip D. Leming, M.D dated September 24, 2001, noting that it was at least as likely as not that the patient’s acute leukemia was related to the radiation exposure in the past from his work on the atomic bomb project (Manhattan Project) in Oakridge, TN as any additional exposures;
  • a copy of United States of America, War Department Army Service Forces Corps of Engineers Manhattan District certificate that states, “This is to certify that [Employee] Fercleve Corporation has participated in work essential to the production of the Atomic Bomb, thereby contributing to the successful conclusion of World War II.  This certificate is awarded in appreciation of effective service.”  Signed by the Secretary of War, dated August 6, 1945;

On November 15, 2001, the Cleveland, Ohio, district office received a letter from Droder & Miller CO., L.P.A. indicating that on your original application for benefits under the EEOICPA it indicated that your spouse’s diagnosis of cancer was in January of 1995, but Mr. Miller believes the records indicate that the diagnosis was sometime in mid to late 1997.

On February 12, 2002, the Cleveland District Office requested that additional medical evidence be provided within 30 days from the date of the letter.  On February 27, 2002, the District Office received a letter from you dated February 25, 2002, stating that your spouse’s diagnosis was 10/97, not 1/95, and that you received only the February 12, 2002, letter from the District Office.  You also submitted:

  • a duplicate copy of a letter dated September 24, 2001, signed by Philip D. Leming, M.D.;
  • a duplicate copy of the Ohio State University James Cancer Hospital and Research Institute medical document signed by Michael A. Caligiuri dated September 10, 1998;
  • an unsigned December 6, 1999, Christ Hospital progress note indicating that acute myeloid leukemia was initially diagnosed September 30, 1997;
  • an unsigned December 3, 1999, Christ Hospital progress note, a November 29, 1999, follow up note from Cincinnati Hematology – Oncology, INC.;
  • an October 3, 1997, surgical pathology report indicating a diagnosis of Bone marrow, clot section and aspirate smears involved by acute myeloid leukemia, seen microscopic description, signed by Cindy Westermann, M.D. and;
  • a September 30, 1997, bone marrow clinical summary indicating a diagnosis of acute undifferentiated leukemia.

On November 30, 2001, the District Office received information from the Department of Energy regarding your spouse’s claimed employment.  The EE-5 form signed by Roger Holt stated “See Attached.”  The attached information indicated that [Employee]‘s address was [Employee’s address], birthplace Ft. Thomas, Kentucky, date of birth [Date of Birth]; under the clearance status section, the section titled “report rec’d” indicated file Chk. Neg.; the section “restriction removed” on December 14, 1944 and notes at the bottom stated, “Loyalty Ck. Reg. November 24, 1944” and “Ref. Ltrs. November 27, 1944.”

On March 12, 2002, the Cleveland District Office advised you that your case file was transferred to the Jacksonville District Office.

On June 20, 2002, the Jacksonville District Office advised you that they reviewed all the evidence presented with your claim and that the evidence was not sufficient to make a decision.  They indicated that the discharge papers you submitted indicated that your spouse was on active duty service with the U.S. Army from May 3, 1943 to March 14, 1946 and that the EEOICPA does not list the U.S. Army as one of the covered facilities under the Act.  The District Office advised you of the criteria for employment at a covered facility and requested that you provide the name and location of the company and employment dates and any information that shows that your spouse worked at a Department of Energy facility or a Department of Energy contractor/subcontractor and/or atomic weapons facility.  You were requested to provide the employment evidence within 30 days from the date of the letter.

On June 24, 2002, the District Office received a letter from you authorizing your brother in law [Authorized Representative] to act as your authorized representative concerning your claim under the EEOICPA.  On July 18, 2002, the District Office received an employment history affidavit signed by [Authorized Representative], your spouse’s brother.  [Authorized Representative] indicated employment at Fercleve Corp, Manhattan Project, Oak Ridge, TN from November 1944 to February 1946. 

On August 5, 2002, the District Office received another EE-5 form from the Department of Energy stating that the employment history contains information that is not accurate.  An attachment to the form indicated that at the request of the Department of Energy, Bechtel Jacobs Company, LLC performed a search for certain records regarding dates and locations of employment relating to special exposure claimant [Employee].  The document included a statement, “we have searched payroll/radcon records in the possession of BJC to verify whether the claimant was employed at the K-25, Portsmouth or Paducah GDP, as appropriate, for more than 250 days prior to February 1, 1992.  We were unable to locate any records for the claimant.”

On August 26, 2002, the District Office requested you complete the SSA-581 and return it.  On September 11, 2002, your completed SSA form was sent to the Department of Labor.  On November 1, 2002, the District Office received Social Security Administration records regarding your spouse’s employment from January 1942 thru December 1947.  The records indicate that your spouse was employed at Cincinnati Gas and Electric Co. in 1942 and 1943; at PJ Erdal General Merchandise in 1942; at AT&T Corporation, in 1946 and 1947.

On December 27, 2002, the Jacksonville District Office issued a Recommended Decision regarding your claim for compensation under the EEOICPA.  The decision concluded that there is no evidence to support that [Employee] was a covered employee pursuant to 42 U.S.C. § 7384l(1) and 20 C.F.R. § 30.5(u) of the implementing regulations.

Attached to the recommended decision was an explanation of your appeal rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived your right to challenge the decision.

On February 7, 2003, the Final Adjudication Branch received a letter from [Authorized Representative]advising that you object to the recommended decision and your request for an oral hearing.  The letter stated that the reason you disagree with the decision is because the summary of events, most of which are documented in the file, clearly show that [Employee]was a covered employee under the EEOICPA.  [Authorized Representative]stated, “[Employee]and I are brothers.  In 1944 we were attending OhioStateUniversityin Columbus, OHand were involved in an Army Specialized Training Program.  We were both majoring in Electrical Engineering.  While at OhioStateUniversityhe was recruited by representatives of Fercleve Corporation regarding work in Oak Ridge, TN.  He accepted the offer to go to work for them to be on loan from the Army.  In the Fall of 1944 he went to Oak Ridge, TNto work for Fercleve Corporation.  [Employee]s work with Fercleve Corporation turned out to involve nuclear activity on the first atomic bomb program, referred to as the Manhattan Project.  He worked for Fercleve Corporation from 1944 until 1946.  During this time he reported for work everyday for Fercleve.  He worked under Fercleve supervision.  He worked with equipment and tools provided by Fercleve.  He worked in the Gaseous Diffusion Processwhere they pumped nuclear gases through a series of diaphragms over and over until the proper isotope was isolated.  He also worked in the thermal diffusion processwhere they cooked the nuclear solutions, similar to a distilling process, over and over again until the just right isotope was isolated.  He told me that in the gaseous diffusion processthere were leaks where the nuclear gases would contaminate the immediate atmosphere.  They were provided with little or no protection against the effect of these gases.  In the thermal diffusion processthey encountered numerous spills of extremely corrosive liquids.  They would immediately flush these spills with water to minimize the corrosive damage that would otherwise occur on human flesh and equipment.  After the war ended and we were all home, he told me a lot about his activity at Oak Ridge.  In summary, all the time he worked for Fercleve he told me that he worked as a civilian on loan from the Army.  There is no disputing the following facts:  1).Everyday in Oak Ridge, TNhe went to work for Fercleve.  2).He worked with and under Fercleve supervision.  3).He worked with tools furnished for Fercleve.  4).He worked with equipment and processing machinery provided by Fercleve.  5).And most importantly, he received a formal certificate of merit awarded in appreciation of effective service with Fercleve Corporation, signed by Henry L. Stinson, Secretary of War, who was the overall chief of the Manhattan Project.”

On March 4, 2002, the Final Adjudication Branch advised you that your hearing would be held on April 22, 2003, at 2:00pm.  Also, on March 4, 2002, you signed an Authorization for Representation authorizing [Authorized Representative]to serve as your representative in all matters pertaining to the adjudication of your claim under the EEOICPA.

On April 22, 2003, your hearing was held.  Present were yourself, and [Authorized Representative].  You discussed the fact that your spouse went for a physical in September 1997.  You indicated that his blood was taken and they got the test results back and that your spouse was told to see an oncologist immediately.  You indicated that after he saw the oncologist, he told you that he had leukemia.  [Authorized Representative] discussed the history of his brother’s employment and the specifics of the letter filed on February 7, 2003, during the hearing. 

On May 1, 2003, the Final Adjudication Branch sent the hearing transcripts to you for comment.  On May 20, 2003, the Final Adjudication Branch received your comments on the transcript and your comments are included as a part of the record in this case and have been considered. 

FINDINGS OF FACT

  •   You filed a claim for survivor benefits on October 23, 2001.

·        You claimed a diagnosis of your spouse’s acute myelogenous leukemia as a result of occupational exposure during his employment.

·        You claimed that your spouse worked at Fercleve Corporation, in Oak Ridge, TN from 1944 to 1946. 

·        Your spouse served on active duty in the United States Army from May 3, 1943 to March 1946. 

·        The Department of Energy was unable to verify the claimed employment history.

·        Cancer is a covered occupational illness under the EEOICPA.  The medical evidence of record substantiates that your spouse had leukemia.

·        Your spouse was diagnosed with leukemia in 1997.

·        You were advised that you needed to provide employment evidence establishing proof that your spouse was employed at a covered facility during a covered time period.

·        You did not provide employment evidence to substantiate that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility.

·        Social Security Administration Records from 1942 to 1947 list Cincinnati Gas and Electric Company, PJ Erdal General Merchandise and AT&T Corporation as [Employee]s employers. 

·        The Jacksonville, District Office recommended denial of your claim for benefits as you did not provide evidence that your spouse was a covered employee under the EEOICPA.

·        You objected to the recommended denial of your claim.

·        You did not submit additional employment evidence that would substantiate that your spouse was a covered employee under the EEOICPA.

CONCLUSIONS OF LAW

The EEOICPA established a compensation program to provide compensation to covered employees suffering from specifically designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the Department of Energy and certain of its vendors, contractors and subcontractors.  The term “occupational illness” is defined by 42 U.S.C. §7384l(15) and 20 CFR § 30.5(z) as a covered beryllium illness, cancer, or chronic silicosis. You claimed leukemia as your spouse’s diagnosed illness on your claim form. You presented medical evidence that establishes that your spouse has been diagnosed with leukemia. Although leukemia is a covered condition under the EEOICPA, in order to establish entitlement to compensation under the EEOICPA, the evidence must demonstrate the existence of an occupational illness related to a period of employment specified by the Act. While you have provided medical evidence to establish a diagnosis of leukemia, you have not provided sufficient employment evidence to show that your spouse was a covered employee under the EEOICPA.  To be a “covered employee with cancer,” the employee must meet the requirements of 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.  Those provisions of the Act and implementing regulations require that the employee must have been an employee of the Department of Energy (DOE) at a DOE facility, of a DOE contractor at a DOE facility, or of an atomic weapons employer.

The term “covered employee” is defined by 42 U.S.C. § 7384l(1) and means any of the following: (A) A covered beryllium employee; (B) A covered employee with cancer; (C) To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

The term “atomic weapons employee” is defined by 42 U.S.C. § 7384l(3) as an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. 

The term “atomic weapons employer” is defined by 42 U.S.C. § 7384l(4) as any entity, other than the United States that (A) processed or produced, for use by the United States, material that emitted radiation and was used in production of an atomic weapon, excluding uranium mining and milling: and (B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program. 

The term “atomic weapons employer facility” is defined by 42 U.S.C. § 7384l(5) as a facility owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

The term “Department of Energy facility” under 42 U.S.C. § 7384l(12) means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located-

(A)    in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 ( 42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and

(B)     with regard to which the Department of Energy has or had-

(i)                  a proprietary interest; or

(ii)                entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction , or maintenance services.

Section 30.111(a) of the regulations 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.”  20 C.F.R. § 30.111(a).

The record in this case demonstrates that you did not provide the requested employment evidence to show that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12).

You were advised of the deficiencies in your claim.  Based on my review of the evidence in your case record, your objections and pursuant to the authority granted by § 30.316(b) of the EEOCIPA regulations, I find that the district office’s December 27, 2002, recommended decision is correct in the denial of your claim.  The recommended decision denied your claim, because although you had submitted medical evidence showing that your spouse was diagnosed with leukemia, you did not submit the requested employment evidence showing that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12).  Thus the undersigned finds that you were given the opportunity but have not established that your spouse was employed at a covered facility.  You reported on the employment history form that your spouse was employed by the Fercleve Corporation, Manhattan Project in Oak Ridge, TN from 1944 to 1946.  The evidence of record to date does not show that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12).  Therefore you have not established that your spouse is a covered employee with cancer as defined under the EEOICPA.  You objected and indicated that your spouse worked for Fercleve Corporation on loan from the United States Army.  The employment evidence of record does not substantiate that your spouse is a covered employee as defined under the EEOICPA.  In order to be potentially eligible under the EEOICPA, an employee must have had covered employment. The evidence of record does not show that your spouse had covered employment.       

Upon review of the entire case file, I find that you have not submitted evidence to substantiate that your spouse is a covered employee as defined by 42 U.S.C. § 7384l(1) nor a covered employee with cancer as defined under 42 U.S.C. § 7384l(9), as the evidence of record does not substantiate that your spouse was a Department of Energy employee, Department of Energy contractor employee or an atomic weapons employee who contracted the cancer after beginning such employment.  I also find that the district office’s recommended decision is supported by the evidence and the law, and cannot be overturned based on the additional information you submitted.  For the reasons stated above, your claim for benefits for the claimed condition of leukemia is therefore denied.

Cleveland, Ohio

Tracy Smart, Hearing Representative

EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 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.  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 March 22, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of prostate cancer, emphysema and possible lung cancer.  You also provided a Form EE-3 (Employment History), on which you indicated that you worked at the Weldon Spring Plant from 1956 to 1967, and that you wore a dosimetry badge.

Information obtained from a Department of Energy (DOE) representative and the Oak Ridge Institute for Science and Education database indicated that you worked as a contractor employee at the Weldon Spring Plant from July 17, 1956 to June 30, 1966.  The Weldon Spring Plant is recognized as a covered DOE facility from 1957 to 1967 and 1985 to the present (for remediation).  See Department of Energy, Office of Worker Advocacy, Facility List.

By letters dated March 31, May 5, and June 14, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but additional medical evidence was needed in order to establish a claim.  You were requested to provide documentation of a covered occupational illness, specifically, cancer.

You provided medical documentation which indicated that you received treatment for conditions including hypertension, diabetes mellitus, bronchitis and emphysema.  In addition, a hospital discharge summary report from a hospital stay from April 15 to April 16, 1993, indicated that you were admitted to the hospital for a medical procedure following a radical prostatectomy, which was performed “in order to allow the patient to be treated for his cancer of the prostate.”  The date of diagnosis of prostate cancer was not noted.

The record also includes several telephone messages, which indicate that you, with the assistance of your authorized representative, have been trying to obtain the medical records pertaining to your diagnosis of prostate cancer and the date of diagnosis, but that you have not yet received the medical records.

On July 16, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that you did not provide sufficient evidence as proof that you were diagnosed with a covered occupational illness as defined by § 7384l(15) of the Act.  See 42 U.S.C. § 7384l(15).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s of the Act.  See 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.      You filed a claim for employee benefits on March 22, 2004.

2.      You worked at the Weldon Spring Plant, a covered Department of Energy facility, from July 17, 1956 to June 30, 1966.

3.      You did not submit sufficient medical evidence establishing a date of diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 16, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations and that the sixty-day period for filing such objections, as provided for in section 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the EEOICPA, you must establish that you were diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).

You filed a claim based on the condition of emphysema, which is not a compensable illness under Part B of the Act.  You also filed a claim based on prostate cancer and possible lung cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C. F. R. § 30.211. 

The record in this case shows that by letters dated March 31, May 5, and June 14, 2004, you were requested to provide the required information to prove a medical condition.  While a hospital discharge report dated April 16, 1993, contains a reference to your treatment for prostate cancer, the evidence of record does not contain a date of diagnosis of this cancer.  Without the date of prostate cancer diagnosis, it is not possible to determine if this cancer was related to your employment at the Weldon Spring Plant.  In regard to you claim for possible lung cancer, the medical documentation of record does not indicate a diagnosis of lung cancer. 

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by the preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in section 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 regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

The record in this case shows that you did not provide sufficient medical documentation of a covered occupational illness under the Act.  Therefore, your claim must be denied.

For the 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

Seattle District Manager, Final Adjudication Branch

Consequential conditions

EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004)

NOTICE OF FINAL DECISION AND REMAND 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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is accepted.

STATEMENT OF THE CASE

On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.  The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-1 that you were filing for chronic obstructive pulmonary disease (COPD). 

On the Form EE-3, Employment History, you stated you were employed at the Paducah gaseous diffusion plant (PGDP) in Paducah, Kentucky from 1951 to 1954 and 1957 to 1963.  The Department of Energy verified this employment as June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963. 

The district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD).  On August 20, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation of $150,000 for chronic beryllium disease and that COPD is a consequential obstructive lung injury of CBD.  The district office’s recommended decision also concluded that you are entitled to medical benefits effective January 15, 2002 for chronic beryllium disease and the consequential injury of COPD. 

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

I have reviewed the medical evidence and find that it is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease.  According to § 7384l(13)(B) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any three of the following criteria:

  • Characteristic chest radiographic (or computed tomography (CT) abnormalities;
  • Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
  • Lung pathology consistent with chronic beryllium disease;
  • Clinical course consistent with a chronic respiratory disorder;
  • Immunologic tests showing beryllium sensitivity. 

According to the Department of Energy’s Covered Facilities List, exposure to beryllium was possible during your employment at the PGDP.  Your verified work for at least one day between 1952 and 1963 is sufficient to establish that you were exposed to beryllium.  You have also submitted sufficient evidence to meet 3 of the above criteria:  (1) Radiological reports of the chest from 1991, 1993, 1997 and 2001 show lung fibrosis, interstitial markings and chronic inflammatory changes; these findings are characteristic of CBD;  (2) a 1993 pulmonary function test report contains a finding of a severe obstructive airway disease; this finding shows obstructive lung physiology testing; (3) medical reports from 1989 to 2001 contain findings of COPD, oxygen dependency and the use of bronchodilators; these findings show a clinical course consistent with a chronic respiratory disorder such as CBD.  The evidence of record is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease.               

I also find that the case must be remanded for a determination regarding the claimed condition of chronic obstructive pulmonary disease (COPD).  The district office determined that COPD was a consequential injury of CBD.  However, the implementing regulations are clear in stating that an injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease.  Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease is sufficient in itself to prove a causal relationship.[1] The medical evidence does not contain the required medical opinion.    

FINDINGS OF FACT

1.  On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.

2.  The medical evidence is sufficient to establish that you have chronic beryllium disease.  42 U.S.C. § 7384l(13).

3.    You were employed at the Paducah gaseous diffusion plant, Paducah, Kentucky, from June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963.  Beryllium was present at this facility during the time you were employed.  Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in the Act.  42 U.S.C. § 7384l(7).

4.  The Jacksonville district office issued the recommended decision on August 20, 2004.

5.    On September 20, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW

I find that you are a covered beryllium employee as defined in the Act and that your chronic beryllium disease is a covered condition under the Act and the implementing regulations.  42 U.S.C. §§ 7384l(7), 7384l(13). 

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective January 15, 2002, for chronic beryllium disease pursuant to §§ 7384s(a) and 7384t of the EEOICPA.  42 U.S.C. §§ 7384s(a), 7384t.

Your claimed condition of chronic obstructive pulmonary disease is remanded to the district office for a determination on your eligibility for benefits for this condition.  After obtaining the appropriate information and reviewing the facts in accordance with the EEOICPA and the implementing regulations, the district office should issue a new decision in accordance with office procedure.[2] 

Jacksonville, FL

James Bibeault

Hearing Representative

[1]  20 CFR § 30.207(d)

[2] Federal (EEOICPA) Procedure Manual, Chapter 2-1000.5a (June 2002).

EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008)

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 (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E.  You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.

STATEMENT OF THE CASE

On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility.  On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA.  Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B.  On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.

On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer.  You elected to have a physician selected by the Department of Labor perform the impairment rating.  You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.

The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997.  You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS.  The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung.  On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.

To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected  by your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC). 

On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment.  The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment.  Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease.  The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”

You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997.  An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment. 

You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.

On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage-loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00.  From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.

In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001).  This totals $55,000.00 in wage-loss benefits.

On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.

On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled.  The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”

On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB.  The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits. 

Following an independent review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

  1. On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA.  You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility. 
  1. On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.
  1. On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.
  1. Your coronary artery disease is a consequential illness of your lung cancer.
  1. On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.
  1. You last had recorded wages in 1997.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.
  1. You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.
  1. You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.

Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

If the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides.  See 42 U.S.C. § 7385s-2(b).  The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1). 

The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease.  You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.

In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005).  You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.  You last had recorded wages in 1997 and have not had any wages since then.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.  This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.

Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00.  You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001.  This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00.  Therefore, your wage-loss eligibility ends there.

All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses.  See 42 U.S.C. § 7385s-11.  Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.

Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E.  Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

Covered employment

EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002)

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).

On December 12, 2001, the Seattle District Office issued a recommended decision concluding that the deceased covered employee was a member of the Special Exposure Cohort, as that term is defined in § 7384l(14) of the EEOICPA, and that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA as his survivor.  On December 17, 2001, the Final Adjudication Branch received written notification from you waiving any and all objections to the recommended decision.

The undersigned has reviewed the evidence of record and the recommended decision issued by the Seattle district office on December 12, 2001, and finds that:

In a report dated August 20, 1996, Dr. John Mues diagnosed the deceased covered employee with mixed squamous/adenocarcinoma of the lung.  The report states the diagnosis was based on the results of a thoracoscopy and nodule removal. Lung cancer is a specified disease as that term is defined in § 7384l(17)(A) of the EEOICPA and 20 CFR § 30.5(dd)(2) of the EEOICPA regulations.

You stated in the employment history that the deceased covered employee worked for S.S. Mullins on Amchitka Island, Alaska from April 21, 1967 to June 17, 1969.  Nancy Shaw, General Counsel for the Teamsters Local 959 confirmed the employment by affidavit dated November 1, 2001.  The affidavit is acceptable evidence in accordance with § 30.111 (c) of the EEOICPA regulations.

Jeffrey L. Kotch[1], a certified health physicist, has advised it is his professional opinion that radioactivity from the Long Shot underground nuclear test was released to the atmosphere a month after the detonation on October 29, 1965. He further states that as a result of those airborne radioactive releases, SEC members who worked on Amchitka Island, as defined in EEOICPA § 7384l(14)(B), could have been exposed to ionizing radiation from the Long Shot underground nuclear test beginning a month after the detonation, i.e., the exposure period could be from approximately December 1, 1965 through January 1, 1974 (the end date specified in EEOICPA, § 7384l(14)(B)).  He supports his opinion with the Department of Energy study, Linking Legacies, DOE/EM-0319, dated January 1997, which reported that radioactive contamination on Amchitka Island occurred as a result of activities related to the preparation for underground nuclear tests and releases from Long Shot and Cannikin.  Tables 4-4 and C-1, on pages 79 and 207, respectively, list Amchitka Island as a DOE Environmental Management site with thousands of cubic meters of contaminated soil resulting from nuclear testing.

The covered employee was a member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA and §§ 30.210(a)(2) and 30.213(a)(2) of the EEOICPA regulations.  This is supported by evidence that shows hewas working on Amchitka Island for S.S. Mullins during the potential exposure period, December 1, 1965 to January 1, 1974.

The covered employee died February 17, 1999.  Metastatic lung cancer was included as a immediate cause of death on the death certificate.

You were married to the covered employee August 18, 1961 and were his wife at the time of his death.  You are the eligible surviving spouse of the covered employee as defined in § 7384s of the EEOICPA, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012, 1371, December 28, 2001.[2]

The undersigned hereby affirms the award of $150,000.00 to you as recommended by the Seattle District Office.

Washington, DC

Thomasyne L. Hill

Hearing Representative

[1] Jeffrey L. Kotch is a certified health physicist employed with the Department of Labor, EEOICP, Branch of Policies, Regulations and Procedures.  He provided his professional opinion in a December 6, 2001 memorandum to Peter Turcic, Director of EEOICP.

[2] Title XXXI of the National Defense Authorization Act for Fiscal Year 2002 amended the Energy Employees Occupational Illness Compensation Program Act.

EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  On January 22, 2003, Attorney Mike G. Nassios, your authorized representative, wrote to the FAB and filed objections to the November 27, 2002 recommended decision of the Jacksonville district office.  Your objections have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim (Form EE-1) for benefits under the EEOICPA.  You identified lung cancer as the diagnosed condition being claimed.  You stated that Paul Rankin employed you as a pipe layer and laborer at the K-25 and Y-12 Plants at Oak Ridge from 1958 to 1964.  Based upon the evidence of record, the Jacksonville district office issued a recommended decision on November 27, 2002, in which it concluded that you were not employed as a contracted or subcontracted employee at an atomic weapons employer or facility, nor at a Department of Energy facility, as those terms are defined in § 7384l of the EEOICPA and § 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  The district office also concluded that you are not a covered employee as that term is defined in § 7384l(1) of the EEOICPA.  42 U.S.C. § 7384l(1).

Objections

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to § 30.310 of the EEOICPA regulations.  20 C.F.R. § 30.310.  On January 22, 2003, your attorney filed objection to the recommended decision of the district office.  Your attorney stated it was your position that you have proven by a preponderance of the evidence that you were employed as a contracted or subcontracted employee at an atomic weapons employer or facility or a Department of Energy (DOE) facility as those terms are defined in §§ 7384l of the EEOICPA and 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  He also stated it was your position that you had presented more evidence than a self-serving affidavit of yourself, in that you presented the affidavit of other individuals and the DOE cannot legitimately rebut this proof in that the DOE records are not always all inclusive.  On January 30, 2003, your attorney submitted an affidavit from Fay Webb in which she stated that you were employed by Paul Rankin from February 1958 until December 1958 at the Y-12 Plant and from October 1964 to December 1964 at the K-25 plant.  Mrs. Webb identified herself as the wife of your co-worker.

You stated in your employment history (Form EE-3) that Paul Rankin employed you as a pipe layer and laborer from 1958 to 1964 at the K-25 and Y-12 Plants in Oak Ridge, TN.  You submitted a copy of the Social Security Administration (SSA) statement of earnings which show Paul Rankin employed you in the third quarter of 1958 and the fourth quarter of 1964.  Mr. Franklin Whetsell, who identified himself as a work associate, and your wife signed affidavits (Form EE-4) stating that you were employed by Paul Rankin from 1958 to 1964.  On June 7, 2002, you advised the district office in writing that you worked for Paul Rankin at Oak Ridge for two different jobs.  You stated that the first job began around February 1958 and ended December 1958 at Y-12 and the second job at K-25 began and ended in 1964.  On September 5, 2002, Frank Whetsell wrote to the district office in regards to the affidavit he submitted and advised that “his father” worked for Paul Rankin during the years 1958 through 1964.  Mr. Whetsell explained that he was a “kid” at the time so he doesn’t remember specific dates but he does recall his father “talking about working out there.” 

ANALYSIS

The DOE has advised that it has no employment information regarding you.  There has been no evidence submitted that establishes that Paul Rankin, the employer for whom you claim you worked, was a contractor at the Y-12 or K-25 plant.  The employment history (Form EE-3) you submitted conflicts with the SSA earnings statement and the information in your letter of June 7, 2002.  You stated in your employment history that you worked for Paul Rankin at the Y-12 and K-25 plants from 1958 to 1964 but you stated in your June 7, 2002 letter to the district office that you worked at Oak Ridge on two different jobs.  You stated that the first job was at the Y-12 plant and began around February 1958 and ended December 1958.  The second job was at the K-25 plant and it began and ended in 1964.  You also stated in your June 7, 2002 letter that you have no exact recollection of the dates.  The SSA earnings statement only shows earnings for the third quarter in 1958 and the fourth quarter in 1964 which would not total the 250 days required to establish that you are a member of the Special Exposure Cohort.  You submitted an affidavit from Franklin Whetsell in which he identified himself as a “work associate” and in response to the question to describe his knowledge of your employment history, he stated you were employed by Paul Rankin from 1958 to 1964 at the DOE facilities in Oak Ridge, TN (K-25 and Y-12).  However, on September 5, 2002, Mr. Whetsell advised the district office, by letter, that his father worked with you during the years 1958 through 1964.  He also stated that he was a kid at the time and he did not remember specific dates.  Mr. Whetsell’s letter conflicts with the information provided on his affidavit.  Your wife submitted an affidavit in which she stated that you worked for Paul Rankin at the Oak Ridge Facilities from 1958 to 1964 which conflicts with the information that you provided as clarification in your June 7, 2002 letter.  The information provided by Mrs. Webb in her affidavit is in conflict with the SSA earnings statement.

The EEOICPA regulations at § 30.111(c) allows for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility.  Pursuant to the EEOICPA regulations at § 30.111(a), the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion 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.  20 C.F.R. §§ 30.111(a), 30.111(c).  A claimant will not be entitled to any presumption otherwise provided for in the EEOICPA regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption.  See 20 C.F.R. § 30.111(d).  The evidence of record is not sufficient to establish you are a covered employee as defined in the EEOICPA.  See 42 U.S.C. §§ 7384l(1), 7384l(4), 7384l(7), 7384l(9), 7384l(11), 7384l(14).  The evidence of record is not sufficient to establish that Paul Rankin was a contractor for the DOE.

CONCLUSION:

Based on my review of your case record and pursuant to the authority granted by § 30.316(b) of the EEOICPA regulations, I find that the district office’s November 27, 2002 recommended decision is correct and I accept those findings and the recommendation of the district office.

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied. 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10432-2004 (Dep’t of Labor, September 13, 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.  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 September 24, 2001, you filed a claim, Form EE-1, for benefits under the EEOICPA based on prostate cancer, stomach cancer, other lung condition specified as a spot, goiter and an unspecified throat condition. 

Medical evidence submitted in support of your claim included a surgical pathology report dated January 9, 1995 that showed a diagnosis of adenocarcinoma of the stomach and a hospital discharge summary dated January 11, 1995 that showed a diagnosis of gastric carcinoma.  The medical evidence also showed diagnoses of benign prostatic hyperplasia in January 1995; multinodular goiter, status post; right thyroid lobectomy in March 1997; and stable pulmonary nodules in February 2000. 

You provided an employment history on Form EE-3 indicating that you were employed at INCO, Reduction Pilot Plant (RPP) in Huntington, West Virginia from October 11, 1952 to 1986.  The Huntington Pilot Plant in Huntington, West Virginia is recognized as a DOE facility from 1951 to 1963, and from 1978 to 1979.  See Department of Energy Worker Advocacy Facilities List.  

On October 5, 2001, the Cleveland district office notified you that your claims for a goiter, lung and throat conditions were not covered under the Act. 

On January 14, 2002, the Department of Energy (DOE) reported that they had no employment information on you.  On January 29, 2002, the Cleveland district office notified you that DOE does not have any employment record to show that you worked for INCO at the RPP during the period of your employment.  You were advised to furnish any document or documents (copy of security clearance, ID card, SSA records, etc.) that would establish your employment at INCO from 1952 to 1986.  You were also advised that you could ask others to affirm your employment by INCO by completing and returning an Employment History Affidavit (Form EE-4).  You were asked to provide the requested evidence within 30 days of the letter. 

In response on April 8, 2002, you submitted a copy of your Itemized Statement of Earnings from the Social Security Administration (SSA) that showed you received earnings from INCO Alloys International Inc. from 1952 to 1986. 

On December 8, 2003, the Cleveland district office requested the DOE’s corporate verifier for INCO to determine whether you worked in the RPP.  On December 15, 2003, the DOE’s corporate verifier reported that no record was found to establish that you were assigned and/or worked in the RPP while employed by INCO from 1952 to 1986. 

On January 27, 2004, the Cleveland district office explained that while the evidence shows that you worked at INCO in Huntington, West Virginia from 1952 to 1986, there is no evidence showing that you were assigned and/or worked in the RPP, the covered nuclear portion of the facility, while employed by INCO from 1952 to 1986.  The SSA records you submitted merely show that you received earnings from INCO from 1952 to 1986; however they do not place you within the RPP.  They requested that you provide any documents that would show that you were assigned by INCO to work at the RPP, the covered nuclear portion of the facility.  No response to this request was received.  

On July 1, 2004, the district office issued a recommended decision which concluded that you are not entitled to compensation under 42 U.S.C. § 7384s because the evidence failed to establish that the you are a covered employee, as defined by 42 U.S.C. § 7384l(1); and that you did not provide sufficient evidence to show that you were employed at an “atomic weapons employer facility” as defined in 42 U.S.C. § 7384l(5) nor that you were employed at a “Department of Energy facility” as defined by 42 U.S.C. § 7384l(12). 

FINDINGS OF FACT

  1. You filed a claim for benefits under the EEOICPA on September 24, 2001. 
  2. You were employed by INCO Alloys International Inc. in Huntington, West Virginia from 1956 to 1986.  
  3. The DOE’s corporate verifier for INCO confirmed that they have no record that you worked at  the RPP, the covered nuclear portion of that facility.  The Huntington Pilot Plant was a Department of Energy (DOE) facility from 1951 to 1963 and from 1978 to 1979.  INCO was the DOE contractor at that facility from 1951 to 1963. 
  4. You did not provide sufficient employment evidence to establish that you were assigned by INCO to work in the RPP.  
  5. You were advised of the deficiencies in your claim and provided with the opportunity to correct them. 

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on July 1, 2004.  I find that you have not filed any objections to the recommended decision, and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that you have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 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), (11). 

Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that you were 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).  While you did provide evidence of a diagnosis of stomach cancer, the record in its current posture lacks proof that you worked in covered employment under the Act. 

The record shows that by letters dated January 29, 2002 and January 25, 2004, you were requested to provide the required information to prove you had covered employment under the Act. 

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a). 

The record in this case shows that you did not submit proof that you had covered employment under the Act.  Therefore, your claim must be denied for lack of evidence showing that you had covered employment under the EEOICPA. 

For the 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.

Cleveland, Ohio

_______________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 17556-2003 (Dep’t of Labor, September 27, 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 December 13, 2001, you filed a claim, Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employment of your late husband, [Employee] (the employee).  You identified an unspecified cancer as the condition being claimed. 

Medical evidence submitted with the claim included a December 19, 1989 medical report from St. Mary’s Hospital, showing a diagnosis of poorly differentiated large cell carcinoma of the upper lobe of the right lung.  You also submitted a copy of a pathology report which diagnosed lung cancer on December 15, 1989. 

You provided a Form EE-3 (Employment History), indicating that your husband was employed with James Bolt, a subcontractor, while at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio from approximately 1976 to 1985.  The Department of Energy (DOE) was unable to verify your husband’s employment.  Following appropriate development, on December 11, 2002, the Cleveland district office issued a recommended decision to deny the claim based on the lack of established employment at a facility covered under the Act.  On February 20, 2003, the Final Adjudication Branch affirmed the findings of the district office’s recommended decision.

On January 13, 2004, you requested that your case be reopened.  Along with your request, you submitted additional employment evidence.  On April 23, 2004, as a result of the additional employment evidence you submitted, a Director’s Order was issued vacating the February 20, 2003 final decision of the Final Adjudication Branch denying your claim for compensation under the EEOICPA.  Your case was then returned to the Cleveland district office for consideration of the new evidence and issuance of a new recommended decision.

The Cleveland district office was able to verify that your husband was employed by James Bolt from about 1978 to 1985 based on an itemized statement of earnings provided by the Social Security Administration (SSA).  You also provided several letters and Forms EE-4 (Employment History Affidavit) from Pat Spriggs (your husband’s co-worker), Cassandra Bolt-Meredith (the wife of James Bolt, your husband’s employer), and [Name of Employee’s son-in-law] (your husband’s son-in-law) placing your husband on site at the Portsmouth GDP as a part-time subcontractor employee from 1978 to 1985.  In addition, a letter from Bruce E. Peterson, General Manager of Ledoux & Company stating that “Mr. James Bolt was an independent subcontractor for Ledoux & Company performing witnessing services for various clients at the Portsmouth Gaseous Diffusion Nuclear Facility in Portsmouth, Ohio” supports that a contract existed between James Bolt, Ledoux & Company, and the Portsmouth GDP during the 1970’s and 1980’s.

You provided a copy of your marriage certificate, showing you and your husband were married on October 7, 1947.  You provided a copy of your husband’s death certificate showing he was married to you at his time of death on February 14, 1990.

On August 23, 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 surviving spouse 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 30, 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. You filed a claim and presented medical evidence on December 13, 2001, based on your husband’s lung cancer.
  1. For the purposes of SEC membership, your husband was employed with James Bolt, a DOE subcontractor, at the Portsmouth GDP in Piketon, Ohio, from at least 1978 to 1985
  1. 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.
  1. On December 15, 1989, your husband was diagnosed with lung cancer. 
  1. 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 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 1978 to 1985.  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.  You indicated that you were not sure whether your husband 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 2-500.3 (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.  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). 

Cleveland, Ohio

__________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 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 compensation based on rectal cancer.

STATEMENT OF THE CASE

You filed a claim, Form EE-1 (Claim for Employee Benefits under the EEOICPA), on July 7, 2004, based on rectal cancer/colon cancer.  You provided a copy of a histopathology report which diagnosed invasive adenocarcinoma, based on analysis of a rectal polyp obtained during a colonoscopy on February 24, 1997.  An operative report shows that you underwent a low anterior resection due to rectal cancer on March 13, 1997.  The post-surgical pathology report diagnoses moderately differentiated adenocarcinoma of the colon.

You also provided a Form EE-3 (Employment History) in which you state that you worked for Dynamic Industrial (Dycon) at the Portsmouth Gaseous Diffusion Plant (GDP), in Piketon, OH, as a pipefitter from January 1983 to November 1984 and from January 1985 to June 1985.  You also report that you worked for the Marley Cooling Tower Co. at the Portsmouth GDP during March 1985.  You also state that you wore a dosimetry badge while so employed.

The Department of Energy (DOE) was unable to confirm your reported employment.  You provided copies of Forms W-2 which show that you were paid wages by Dynamic Industrial Cons. Inc. during 1983, 1984, and 1985; and by the Marley Cooling Tower Co. in 1985.    A letter from the Financial Secretary Treasurer of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 577, reports that you worked at the Portsmouth GDP for Dynamic Industrial from January 1983 to November 1984 and from January 1985 to June 1985; and for Marley Cooling Tower Co. during March 1985.  A representative of the DOE provided information which establishes that Dycon was a subcontractor at the Portsmouth GDP from 1980 through 1986.  The Portsmouth GDP is recognized as a Department of Energy (DOE) facility from 1954 to 1998.  See Department of Energy, Office of Worker Advocacy Facilities List.

On August 6, 2004, the Cleveland district office issued a recommended decision concluding that you are a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with rectal cancer, which is a specified cancer under 42 U.S.C. § 7384l(17).  In addition the district office concluded that, as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  The district office also concluded that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

On August 19, 2004, the Final Adjudication Branch (FAB) received written notification that you waive any and all objections to the recommended decision.

The FAB received additional evidence subsequent to receipt of your waiver.  The DOE provided a copy of a Personnel Clearance Master Card which shows that you were granted a security clearance with SWEC (Dynamic Indust.) on January 18, 1984.  No termination date is shown.  You submitted additional medical reports regarding your treatment for cancer.  Some of these were duplicates of reports already of record.  The remaining records discuss your treatment following surgery in March 1997.

FINDINGS OF FACT

1.      You filed a claim for benefits on July 7, 2004.

2.      For purposes of SEC membership, you worked at Portsmouth GDP for Dycon during the periods of January 1983 to November 1984 and January 1985 to June 1985.

3.   The evidence of record establishes that Dycon was a subcontractor for the Portsmouth Gaseous Diffusion Plant from 1980 to 1986.

4.      You were employed for a number of work days aggregating at least 250 work days during the period of September 1, 1954, to February 1, 1992, and during such employment performed work that was comparable to a job that is or was monitored through the use of dosimetry badges.

5.      You were diagnosed with rectal cancer on February 24, 1997.

CONCLUSIONS OF LAW

In order to be considered a “member of the Special Exposure Cohort,” you 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 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 you worked in covered employment at the Portsmouth GDP from January 1983 to November 1984 and January 1985 to June 1985.  This meets the requirement of working more than an aggregate 250 days at a covered facility.  See 42 U.S.C. § 7384l(14)(A).  The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 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).  On that basis, you meet the dosimetry badge requirement.

The Final Adjudication Branch notes that you claimed benefits based on rectal cancer/colon cancer.  The medical evidence of record interchangeably refers to adenocarcinoma of the rectum and the colon.  Regardless of the term used, the evidence reveals only a single tumor located in the rectum.  For that reason, your claim is considered to be based on a single occurrence of cancer in your rectum.

Rectal cancer is considered to be colon cancer, which is a specified cancer under the Act, and the medical evidence of record establishes a diagnosis of rectal cancer.  Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer.  See 42 U.S.C. §§ 7384l(14)(A) and (17).

For the reasons stated above, I accept your claim for benefits based on rectal cancer.  You are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  Additionally, I conclude that, pursuant to 42 U.S.C. § 7384s(b), you are entitled to medical benefits, as described in 42 U.S.C. § 7384t, beginning July 7, 2004, for rectal cancer.

Cleveland, Ohio

_______________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 19750-2004 (Dep’t of Labor, November 12, 2004)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §7384 et seq. (EEOICPA).  For the reasons stated below, your claims for benefits are denied.

STATEMENT OF THE CASE

On January 22, 2002, [Claimant 1] filed a claim (Form EE-2) for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which his claim was based.  On May 20, 2002, [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA and identified carcinomatosis and bronchogenic carcinoma as the diagnosed conditions on which their claims were based.  [Claimant 1] submitted an employment history form (EE-3) on which he stated that [Employee] was employed at the International Nickel Company (INCO) from 1951 until the early 1960s.  He also stated that [Employee] wore a dosimetry badge while employed.  As evidence of employment, the claimants submitted the following:

1.      Certificate of Membership in the INCO retirement system dated March 1952 acknowledging that [Employee] had been employed for one year. 

2.      Personnel Dept.-Absentee Record which shows [Employee] was employed by INCO from May 1953 to January 1967 in the refinery department.

3.      Daily Treatment Cards which show [Employee] was hired On March 6, 1952.

4.      INCO personnel interoffice memo which states [Employee] last worked on January 7, 1967.

5.      INCO Personal Record which shows [Employee] was hired in the refinery department on March 6, 1952, worked in the blacksmith and extrusion departments, and was pensioned effective May 8, 1968.

6.      Affidavit from [Co-worker 1] in which he attested that he worked with [Employee] in the refinery and that [Employee] was assigned to pick up contaminated material from the pilot plant, and melt it in the furnace.  [Co-worker 1] also attested that [Employee] volunteered to work in the pilot plant during shut downs sweeping and cleaning.

7.      Affidavit from [Co-worker 2] in which he attested that he worked with [Employee]   in the 1960s.  [Co-worker 2] also attested that he and [Employee] went to the pilot plant to load contaminated material and transport it back to the refinery department for melt down. 

On March 11, 2002, Department of Energy representative Roger M. Anders advised the district office, via Form EE-5, that the employment history provided contained information that was not accurate.  In an attachment, Mr. Anders advised that [Employee] was not employed in the covered portion of the plant.  On April 15, 2002, a representative of the Huntington Pilot Plant advised the district office, by telephone, that a refinery employee worked ½ mile from the reduction plant (old plant) which is the covered part of the plant.  On August 6, 2002, an INCO representative wrote to the district office and advised that [Employee] did not work in the Reduction Pilot Plant.  The district office determined that the preponderance of evidence establishes the employee was employed at the Huntington Pilot Plant for various periods from March 6, 1952 to May 10, 1971.

As medical evidence, the claimants submitted Dr. Donald P. Stacks April 22, 1971 medical report in which he states [Employee] was diagnosed with “bronchogenic carcinoma of the left with mediastinal metastases.”  The claimant submitted correspondence from the Cabell Wayne County Medical Examiner in which he states he had received a request for toxicology, pathology or autopsy reports but he could locate no records concerning [Employee].  The claimants also submitted a letter from St. Mary’s Medical Center which states, “No path report found for 1971.”

The claimants submitted a copy of the employee’s marriage certificate which shows he was married to [Spouse’s Maiden Name] on October 8, 1937.  The claimants submitted copies of their birth certificates which show their parents as [Employee] and [Spouse].  The claimants submitted a copy of the employee’s death certificate which shows he died on May 10, 1971 due to carcinomatosis and bronchogenic carcinoma and a copy of [Spouse]‘s death certificate which shows she died on October 5, 1995. 

On February 12, 2003, the Cleveland district office referred the evidence of record to the National Institute for Occupational Safety and Health (NIOSH) to assist in determining if the employee’s lung cancer was at least as likely as not related to his employment at the Huntington Pilot Plant.  On November 29, 2003, December 2, 2003 and December 3, 2003, [Claimant 2], [Claimant 3] and [Claimant 1], respectively, signed a Form OCAS-1 indicating they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH.  On January 15, 2004, the district office received the Final Report of Dose Reconstruction from NIOSH.  The district office used the information provided in that report to determine that there was a 13.85% probability that the employee’s lung cancer was caused by radiation exposures at the Huntington Pilot Plant. 

Based upon the evidence of record, the Cleveland district office issued a recommended decision on January 26, 2004, in which it concluded that [Employee] did not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) because he did not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10; and that the Department of Labor (DOL) completed the probability of causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. part 81.  The district office recommended denial of the claims based on its conclusions.

On March 16, 2004, [Claimant 3] wrote to the FAB and objected to the recommended decision.  [Claimant 3] stated that she did not believe any computer program could measure the amount of radiation to which her father was exposed.  [Claimant 3] also stated that the recommended decision indicated her father’s degree of contamination was evaluated on the premise that he only worked at the RPP (Reduction Pilot Plant) at shut down, which was not the case as he also worked at various times during the regular work year as well as during shut down.  [Claimant 3] requested a hearing and such was held before the undersigned on June 30, 2004 in Charleston, WV.  [Claimant 3]‘s representative, [Claimant 2] and [Claimant 3] provided testimony at the hearing as to where the employee was employed while at the Huntington Pilot Plant.  They explained the period the employee worked during the shut down, how the employee was directly assigned to the Pilot Plant and the other type of employment assignments the employee was given.  [Claimant 2] testified that he felt the “13% damage” determined by NIOSH was “way out of hand” and that his father’s death was caused by his employment at the plant.  [Claimant 2] also testified that it was his position that his father’s early death at age 51 was due to his employment.  [Claimant 3’s Representative] also raised an issue that it was the claimants’ belief that the dose reconstruction was based on the fact that the employee only worked at the Pilot Plant intermittently during shutdown.  He wanted to clarify that the term shut down meant the period of years the employee was working in and out of the Pilot Plant.  The claimants also objected to the fact that the employee’s work at the refinery was not considered as covered employment.  The claimants submitted audio taped affidavits from [Co-worker 1] and [Co-worker 2] as evidence.  Subsequent to the hearing, the undersigned advised the claimants that in order to accept the testimony contained in the taped affidavits, the tapes would have to be transcribed and signed by the persons providing the testimony.  On August 9, 2004, [Claimant 3] wrote to the FAB and advised of several errors in the transcript.  She also stated that the claimants objected to the use of the term “causally related to his employment” on page 6, paragraph 6 of the transcript because the employee worked directly in the Pilot Plant throughout his career with INCO.  [Claimant 3] reiterated the claimant’s objection that work in the refinery was not included as covered employment and their concern that the term “shut down” was not being applied properly in considering the merits of the claim.  On September 28, 2004, [Claimant 3] submitted a signed affidavit from [Co-worker 2].  In his affidavit, [Co-worker 2] attested that the employee volunteered to work shut down (one month in each year when the plant would shut down) at the Pilot Plant but also worked there various other times during the year.  [Claimant 3] also submitted a statement from [Claimant 1] in which he advised that [Co-worker 1] died on January 26, 2004, but [Co-worker 1’s Spouse] had advised him verbally that [Co-worker 1] would have signed the affidavit.  [Co-worker 1]‘s affidavit reiterates the information he previously provided by affidavit prior to his death.

After considering the written record of the claim, the claimants’ objections and testimony presented at the hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1.      [Claimant 1] filed a claim for survivor benefits under the EEOICPA on January 22, 2002.

2.      [Claimant 2] and [Claimant 3] filed claims for survivor benefits under the EEOICPA on May 20, 2002.

3.      The employee was diagnosed with bronchogenic cancer on April 22, 1971. 

4.      The employee was employed at the Huntington Pilot Plant, a Department of Energy facility,[1] for various periods between March 6, 1952 and 1967.

5.      The employee died on May 10, 1971.

6.      The employee’s [Spouse] died on October 5, 1995.

7.      [Claimant 1], [Claimant 2] and [Claimant 3] are the surviving children of the employee.

8.      On January 14, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record.  On January 29, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 13.85% probability determined by NIOSH. 

Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that the employee was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by the Department of Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment.  42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.  The DOE advised that [Employee] was not employed at the covered site at the Huntington Pilot Plant, however, two of [Employee]‘s co-workers submitted affidavits stating that he volunteered to work at the pilot plant each year during “shut down” and was assigned to work at the pilot plant at various other times during his employment.  [Claimant 3] advised in a letter, dated March 16, 2004, that the reason the employment records did not show the employee’s assignments to the pilot plant was because of a Union agreement which allowed employees to be detailed or loaned to different departments as long as the employee’s pay and job status remained the same.  [Claimant 3] did not submit a copy of the Union agreement with her letter.  The EEOICPA regulations, at § 30.111, provide for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility.  The sworn statements from the employee’s coworkers attesting that he worked at the Pilot Plant during annual shut downs and various periods between 1952 and 1967 are used to establish his employment at the Pilot Plant.  On January 29, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for the employee’s cancer with the software program known as NIOSH-IREP.  These calculations showed that there was a 13.85% probability that the employee’s bronchial cancer was caused by his exposure to radiation during the period of his covered employment at the Huntington Pilot Plant.

The claimants’ objections have been reviewed.  In regards to the claimants’ objection concerning the exposure received by the employee at the pilot plant, because no radiation monitoring records were found, the employee was assigned the highest reasonably possible radiation dose using worst-case assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data.  The dose reconstruction evaluated the employee’s radiation exposure to the bronchi from the potential exposure starting in 1952 until he was diagnosed with cancer in 1971.  The primary data source utilized for the dose reconstruction was the document, “Basis for Development of an Exposure Matrix for Huntington Pilot Plant” which presents the evaluation of information regarding the nickel scrap reprocessing work performed by the Huntington Pilot Plant for the Atomic Energy Commission.  It was assumed that the employee was exposed chronically to the source, the contaminated nickel during nickel scrap reprocessing.  This assumption overestimated the employee’s dose.  Even under these assumptions, NIOSH has determined that further research and analysis will not produce a level of radiation dose resulting in a probability of causation of 50% or greater.[2]  This approach is based on worst-case assumptions, which is a methodology used by NIOSH per the provisions of 42 C.F.R. § 82.10(k)(2).  This is a challenge of the dose reconstruction methodology.

In regards to the claimants’ objection regarding the use of computers to determine the amount of radiation and the percentage of probability determined, scientists evaluate the likelihood that radiation causes cancer in a worker by using medical and scientific knowledge about the relationship between specific types and levels of radiation dose and the frequency of cancers in exposed populations.  Simply explained, if research determines that a specific type of cancer occurs more frequently among a population exposed to a higher level of radiation than a comparable population (a population with less radiation exposure but similar in age, gender, and other factors that have a role in health), and if the radiation exposure levels are known in the two populations, then it is possible to estimate the proportion of cancers in the exposed population that may have been caused by a given level of radiation.  The computer program for calculating probability of causation, named the Interactive RadioEpidemiological Program (IREP), allows the Department of Labor (DOL) to apply the National Cancer Institute’s risk models directly to data about exposure for an individual employee.  IREP estimates the probability that an employee’s cancer was caused by his individual radiation dose.  The model takes into account the employee’s cancer type, year of birth, year of cancer diagnosis, and exposure information such as years of exposure, as well as the dose received from gamma radiation, X-rays, alpha radiation, beta radiation, and neutrons during each year.  None of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens.  In particular, IREP allows the user to take into account uncertainty concerning the information being used to estimate individualized exposure and to calculate the probability of causation (PoC).  Accounting for uncertainty is important because it can have a large effect on the PoC estimates for a specific individual. As required by EEOICPA, DOL uses the upper 99% credibility limit to determine whether the cancers of employees were caused by their radiation doses.  This helps minimize the possibility of denying compensation to claimants under EEOICPA for those employees with cancers likely to have been caused by occupational radiation exposures.[3]  This is a challenge of the probability of causation methodology, which was developed by NIOSH.

Objections challenging the dose reconstruction methodology cannot be addressed by the FAB pursuant to § 30.318(b) of the EEOICPA regulations.  20 C.F.R. § 30.318(b).  Pursuant to that section, the methodology used by Health and Human Services (HHS) in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 C.F.R. part 82, is binding on the FAB. 

In regards to the claimants’ objection regarding the exclusion of the refinery as a covered work site, the DOE has advised that the refinery was not a covered portion of the Huntington Pilot Plant; therefore employment at that site is not considered.

The evidence of record does not establish that the employee’s bronchial cancer was “at least as likely as not” (50% or greater) caused by his employment at the Huntington Pilot Plant, within the meaning of § 7384n of the Act.  42 U.S.C. § 7384n.  The evidence of record is not sufficient to establish that the employee was a covered cancer employee as defined by § 7384l(9) of the EEOICPA; therefore the claims for benefits under the EEOICPA are denied.  42 U.S.C. § 7384l(9). 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] U.S. Department of Energy.  Huntington Pilot Plant.  Time Period:  1951-1963; 1978-1979.  Worker Advocacy Facility List.  Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved June 28, 2004].

[2] NIOSH report of Dose Reconstruction under the EEOICPA (November 24, 2003).

[3] EEOICP Decision 43095-2004–2004-05-19.

EEOICPA Fin. Dec. No. 22675-2002 (Dep’t of Labor, April 21, 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.  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 February 19, 2002, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on prostate cancer.  You also filed a Form EE-3 (Employment History) that indicated, from 1944 to 1945, you were “assigned to grade work sites when [the] Hanford project was started,” that you were “a conscientious objector,” and treated as a prisoner at a camp near Hanford.  You indicated that you are unsure if you wore a dosimetry badge. 

You also signed and submitted a Form EE-4 (Employment History Affidavit) that provided additional employment information.  You wrote that you worked, from May 15, 1944 to May 15, 1945, for the “United States Dept. of Corrections, Columbia Road Camp, Hanford Area, WA.”  You continued that you were a “Grader operator in and around all of the atomic energy facilitys and surrounding area.”  A representative of the Department of Energy (DOE) reported that it had searched various employment records, including the records of General Electric (GE), Hanford Environmental Health Foundation (HEHF) and DuPont, and the Hanford Site contractor records contained no employment information regarding you. 

By letters dated March 6, June 18, and August 27, 2002, the Seattle district office advised you that they had completed the initial review of your claim, and that additional employment and medical evidence was needed.  Subsequently, you provided a pathology report dated November 9, 1993, signed by L. K. Hatch, M.D., that indicated a diagnosis of moderately differentiated prostatic adenocarcinoma; and copies of your medical records relating to possible cancer from Spokane Urology were received.

On September 30, 2002, the district office recommended denial of your claim for benefits.  The district office concluded that the DOE did not confirm you worked for a covered facility, subcontractor or vendor and you did not submit employment evidence to support that you are a covered employee.  The district office also concluded that you are not entitled to compensation as outlined in 42 U.S.C. § 7384s.  See 42 U.S.C. § 7384s.

On October 7, 2002, you submitted additional employment information related to your work.  You indicated that Walter J. Hardy worked with you “in irrigation,” for the U.S. Department of Corrections as an irrigation and grader operator, from 1944 to 1945.  An affidavit, signed by Walter J. Hardy, indicated he worked, with you, from late 1944 to late 1945, with the U.S. Department of Corrections at Hanford, Washington, and that your work consisted of irrigation repair and operation of a road grader.  He further affirmed that your work covered most areas of the restricted Hanford project.  Also, an affidavit, by Don Hughart, affirmed that he was acquainted with you at the Hanford camp, called “Columbia Camp,” from sometime in 1944 to late 1945.  He further affirmed that he worked in the orchards with you and that you operated a grader “in and around the Hanford Atomic Bomb Projects.”

On December 20, 2002, the Final Adjudication Branch remanded your claim for further development of the employment evidence, to determine whether you were an employee of the U.S. Department of Corrections in your status as a “prisoner” and if so, whether a contractual agreement existed between the U.S. Department of Corrections and the DOE.

By letter dated December 31, 2002, the district office posed certain questions to you regarding your claimed employment on the Hanford Site.  The questions inquired whether you received earnings from your work, whether you had individual liberty, if you were in a “prisoner status” under the U.S. Department of Corrections, if the Columbia Camp was on the Hanford Site, and if you were on the Hanford Site all the time.  You responded to the questions that you earned nine cents per hour for your labor, that you were followed to the Hanford gate and at night were free to go anywhere in the camp area, that you were in a “prisoner status,” that the Columbia Camp was just outside the Hanford gate, that you were not always on the Hanford Site but were there during the day in order to work, and that you returned to the camp at night. 

On February 17, 2004, the district office again recommended denial of your claim for benefits.  The district office concluded that the evidence of record is insufficient to establish that you were present at a covered facility as defined under § 7384l(12) while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under section 7384l(11) during a covered time period.  See 42 U.S.C. § 7384l(11) and (12)  The district office further concluded that you are not entitled to compensation pursuant to 42 U.S.C. § 7384s.

FINDINGS OF FACT

  1. You filed a claim for employee benefits on February 19, 2002.
  2. You submitted medical documentation adequate to establish a diagnosis of prostate cancer. 
  3. You did not provide sufficient evidence to establish that you engaged in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on February 17, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that you were diagnosed as having a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 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), (11). 

In order to be afforded coverage under § 7384l(9) of the EEOICPA as a “covered employee with cancer,” the claimant must show the employee met any of the following:

(I)                 A Department of Energy employee who contracted that cancer after beginning employment at a Department of Energy facility;

(II)              A Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility;

(III)            An Atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons facility.

42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b).  The record lacks proof that you worked in covered employment under the Act.  Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated (FPI), are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act.  The question of prisoners’ employment status for purposes of EEOICPA is properly resolved by focusing on the nature of the relationship between the prisoner and FPI.  The relationship between an inmate worker and FPI is a compulsory assignment to work rather than a traditional contractual employer-employee relationship in which an employee bargains to provide his labor in return for agreed upon compensation and is free to quit at will.  Not even FPI’s payments to prison laborers are a matter of a contractual right.  Instead, they are remitted to the prisoner solely by congressional grace and governed by the rules and regulations promulgated by the Attorney General.  Prisoners working for prison-run industries are not considered employees.

The record shows that, by letters dated March 16, June 18, and August 27, 2002, you were requested to provide the required information to prove covered employment under the Act.  You did not provide sufficient evidence to prove covered employment.

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a). 

The record in this case shows that although you submitted medical documentation showing a diagnosis of prostate cancer, you did not submit proof of covered employment under the Act.  Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act.  Therefore, your claim must be denied for lack of evidence of proof of covered employment under the EEOICPA. 

For the 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

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act (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 claims for benefits are denied.

STATEMENT OF THE CASE

On April 11, 2002, [Claimant 1] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that he was the son of [Employee], who was diagnosed with pharyngeal cancer.  An additional claim followed thereafter from [Claimant 2] on October 20, 2002.  [Claimant 1] also completed a Form EE-3, Employment History, indicating that [Employee] worked for Standard Oil Company, from 1950 to 1961; the State of Alaska as Deputy Director of Veterans Affairs, from 1961 to 1964; the State of Alaska Department of Military Affairs, Alaska Disaster Office, from 1965 to 1979 (where it was believed he wore a dosimetry badge); and, for the American Legion from 1979 to 1985. 

In correspondence dated June 24, 2002, a representative of the Department of Energy (DOE) indicated that they had no employment information regarding [Employee], but that he had been issued film badges at the Amchitka Test Site on the following dates:  October 28, 1965; September 30, 1969; and, September 21, 1970.  You also submitted a completed Form EE-4 (Employment Affidavit) signed by Don Lowell, your father’s supervisor at the State of Alaska, Department of Public Safety, Division of Civil Defense.  According to Mr. Lowell, your father was a radiological officer for the State of Alaska and accompanied him to Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969, as a representative of the State of Alaska. 

Additional documentation submitted in support of your claim included copies of your birth certificates, a marriage certificate documenting [Name of Claimant 2 at Birth]‘s marriage to [Husband], and the death certificate for [Employee], indicating that he was widowed at the time of his death on May 10, 1993.  In addition, you provided medical documentation reflecting a diagnosis of squamous cell carcinoma of the pharyngeal wall in November 1991.

On November 8, 2002, the Seattle district office issued a recommended decision that concluded that [Employee] was a covered employee as defined in § 7384l(9)(A) of the Act and an eligible member of the Special Exposure Cohort as defined in § 7384l(14)(B) of the EEOICPA, who was diagnosed as having a specified cancer, specifically cancer of the hypopharynx, as defined in § 7384l(17) of the Act.  See 42 U.S.C. 7384l(9)(A), (14)(B), (17).  The district office further concluded that you were eligible survivors of [Employee] as outlined in § 7384s(e)(3) of the Act, and that you were each entitled to compensation in the amount of $75,000 pursuant to § 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. §§ 7384s(a)(1) and (e)(1).

On December 20, 2002, the Final Adjudication Branch issued a Remand Order in this case on the basis that the evidence of record did not establish that [Employee] was a member of the “Special Exposure Cohort,” as required by the Act.  The Seattle district office was specifically directed to determine whether the Department of Energy and the State of Alaska, Department of Public Safety, Division of Civil Defense, had a contractual relationship. 

In correspondence dated January 17, 2003, Don Lowell elaborated further on your father’s employment and his reasons for attending the nuclear testing on Amchitka Island.  According to Mr. Lowell, the Atomic Energy Commission (AEC) invited the governors of Alaska to send representatives to witness all three tests on Amchitka Island (Longshot, Milrow, and Cannikin).  As such, [Employee] attended both the Longshot and Milrow tests as a guest of the Atomic Energy Commission, which provided transportation, housing and food, and assured the safety and security of those representatives. 

On February 4, 2003, the district office received an electronic mail transmission from Karen Hatch, Records Management Program Officer at the National Nuclear Security Agency.  Ms. Hatch indicated that she had been informed by the former senior DOE Operations Manager on Amchitka Island that escorts were not on the site to perform work for the AEC, but were most likely there to provide a service to the officials from the State of Alaska.

In correspondence dated February 11, 2003, a representative of the State of Alaska, Department of Public Safety, Division of Administrative Services, indicated that there was no mention of Amchitka or any sort of agreement with the Department of Energy in [Employee]‘s personnel records, but that the absence of such reference did not mean that he did not go to Amchitka or that a contract did not exist.  He further explained that temporary assignments were not always reflected in these records and suggested that the district office contact the Department of Military and Veterans Affairs to see if they had any record of an agreement between the State of Alaska and the DOE.  By letter dated March 13, 2003, the district office contacted the Department of Military and Veterans Affairs and requested clarification as to [Employee]‘s employment with the State of Alaska and assignment(s) to Amchitka Island.  No response to this request was received.

On April 16, 2003, the S eattle district office recommended denial of your claims.  The district office concluded that you did not submit employment evidence as proof that [Employee] was a member of the “Special Exposure Cohort” as defined by § 7384l(14)(B) of the Act, as the evidence did not establish that he had been present at a covered facility as defined under § 7384l(12) of the Act, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under § 7384l(11) of the Act, during a covered time period.  See 42 U.S.C. § 7384l(11), (12).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s(e)(1) of the Act.  See 42 U.S.C. § 7384s(e)(1). 

FINDINGS OF FACT

1.         On April 11 and October 20, 2002, [Claimant 1] and [Claimant 2], respectively, filed claims for survivor benefits under the EEOICPA as the children of [Employee].

2.         [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.

3.         [Employee] was employed by the State of Alaska, Civil Defense Division, and was present on Amchitka Island for Project Longshot on November 29, 1965, and the Milrow Test on October 2, 1969.   

4.         [Employee]‘s employment with the State of Alaska, Civil Defense Division, on assignment to Amchitka Island, Alaska, was as a representative of the governor of Alaska.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on April 16, 2003.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the 60-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a). 

In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  The evidence to show proof of an occupational illness is not in dispute in this case.  The medical evidence establishes that [Employee] was diagnosed as having squamous cell carcinoma of the hypopharynx.  Consequently, [Employee] was diagnosed with an illness covered under the Act.

Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility.  42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II).  To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  42 U.S.C. § 7384l(14).  To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer,” designated in § 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is.  Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:

(A)  An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

(B)  An individual who is or was employed at a Department of Energy facility by-

(i)  an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii)  a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The question presented in this case is whether [Employee], an employee of the State of Alaska, was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the State of Alaska.

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the State of Alaska as a prime contractor for work on Milrow and Cannikin.  The work to be performed under that contract consisted of police protection.

According to Don Lowell, [Employee]‘s supervisor at the time of his assignment to Amchitka Island, your father was not an employee of any contractor or the AEC at the time of his visit to Amchitka Island.  Rather, he was an invited guest of the AEC requested to witness the atomic testing as a representative of the governor of Alaska. 

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island for the sole purpose of witnessing the atomic testing as a representative of the governor of Alaska.  While the DOE indicated that [Employee] was issued a dosimetry badge on three occasions, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee.  Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the State of Alaska, as a representative of the governor, and not pursuant to a contract between the DOE and the State of Alaska. 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion 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 regulations, the claimant also bears the burden of providing the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

Although you submitted medical evidence to show a covered illness manifested by squamous cell carcinoma of the hypopharynx, the evidence of record is insufficient to establish that [Employee] engaged in covered employment.  Therefore, your claims must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington

_____________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 30971-2002 (Dep’t of Labor, March 15, 2004)

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for benefits is denied.

STATEMENT OF THE CASE

On June 10, 2002, you filed a Claim for Survivor Benefits under the EEOICPA, form EE-2, with the Denver district office, as the spouse of the employee, for multiple myeloma.  You indicated on the EE-3 form that your husband was employed by the U.S. Coast and Geodetic Survey at various locations, including the Nevada Test Site, from early 1951 to December 1953. 

You also submitted marriage certificate and death certificates establishing that you were married to the employee from March 7, 1953 until his death on November 5, 1999, tax forms confirming his employment with the U.S. Coast and Geodetic Survey in 1951 and 1952 and a document from the Nevada Field Office of the Department of Energy (DOE) indicating that they had records of your husband having been exposed to radiation in 1951 and 1952.  Additionally, you submitted a document stating that your claim under the Radiation Exposure Compensation Act had been approved in the amount of $75,000; you stated that you had declined to accept the award and that was confirmed by a representative of the Department of Justice on August 12, 2002.

On July 1, 2002, you were informed of the medical evidence needed to support that your husband had cancer.  You submitted records of medical treatment, including a pathology report of April 19, 1993, confirming that he was diagnosed with multiple myeloma.   

On July 22, 2002, a DOE official stated that, to her knowledge, your husband’s employers were not Department of Energy contractors or subcontractors.  On July 29, 2002, you were advised of the type of evidence you could submit to support that your husband had employment which would give rise to coverage under the Act, and given 30 days to submit such evidence.  You submitted statements from co-workers confirming that he did work at the Nevada Test Site for a period from October to December 1951 and again for a few weeks in the spring of 1952. 

On August 29, 2002, the district office issued a recommended decision that concluded that you were not entitled to compensation benefits because the evidence did not establish that your husband was a covered employee.

By letter dated September 20, 2002, your representative objected to the recommended decision, stating that your husband was a covered employee in that he worked at the Test Site while employed by the U.S. Coast and Geodetic Survey, which was a contractor of the Atomic Energy Commission (AEC), a predecessor agency of the DOE.  The representative also submitted documents which indicated that the U.S. Coast and Geodetic Survey performed work, including offering technical advice and conducting surveys, for other government agencies, including the AEC and the military, and that it was covered by a cooperative agreement between the Secretary of Commerce and the Secretary of the Army.  On April 1, 2003, the case was remanded to the district office for the purpose of determining whether your husband’s work at the Nevada Test Site was performed under a “contract” between the DOE and the U.S. Coast and Geodetic Survey.

The documents submitted by your representative were forwarded to the DOE, which responded on May 28, 2003 that dosimetry records existed for your husband “showing that he was with the USC&GS but after further research it was established that the USC&GS was in fact not a contractor or subcontractor of the AEC during those years.”  The documents were also reviewed by the Branch of Policy, Regulations and Procedures in our National Office.  On November 7, 2003, the district office issued a recommended decision to deny your claim.  The decision stated that the evidence submitted did not support that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the Nevada Test Site, and, concluded that you were not entitled to benefits under § 7384s of the EEOICPA as your husband was not a covered employee under § 7384l.  42 U.S.C. §§ 7384l and 7384s.

In a letter dated January 7, 2004, your representative objected to the recommended decision.  He did not submit additional evidence but did explain why he believes the evidence already submitted was sufficient to support that your husband was a covered employee under the Act.  Specifically, he stated that the evidence supported that your husband worked at the Nevada Test Site in 1951 and 1952 in the course of his employment with the U.S. Coast and Geodetic Survey, an agency which was performing a survey at the request of the AEC, and that the latter agency issued him a badge which established that he was exposed to radiation while working there.  He argued that one must reasonably conclude from these facts that his work at the Nevada Test Site did constitute covered employment under the EEOICPA. 

FINDINGS OF FACT

You filed a claim for survivor benefits under the EEOICPA on June 10, 2002.

You were married to the employee from March 7, 1953 until his death on November 5, 1999.

Medical records, including a pathology report, confirmed he was diagnosed with multiple myeloma in April 1993.

In the course of his employment by the U.S. Coast and Geodetic Survey, your husband worked, and was exposed to radiation, at the Nevada Test Site, a DOE facility. 

The evidence does not support, and the Department of Energy has denied, that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the time your husband worked at the Nevada Test Site.

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  The same section of the regulations provides that in filing objections, the claimant must identify his objections as specifically as possible.  In reviewing any objections submitted, under 20 C.F.R. § 30.313, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case and your representative’s letter of January 2, 2004 and must conclude that no further investigation is warranted.

The purpose of the EEOICPA, as stated in its § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.”  42 U.S.C. § 7384d(b).  

A “covered employee with cancer” includes, pursuant to § 7384l(9)(B) of the Act, an individual who is a “Department of Energy contractor employee who contracted…cancer after beginning employment at a Department of Energy facility.”  Under § 7384l(11), a “Department of Energy contractor employee” may be an individual who “was employed at a Department of energy facility by…an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or…a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”  42 U.S.C. § 7384l(9)(B),(11).

EEOICPA Bulletin NO. 03-26 states that “a civilian employee of a state or federal government agency can be considered a ‘DOE contractor employee’ if the government agency employing that individual is (1) found to have entered into a contract with DOE for the accomplishment of…services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.”  The same Bulletin goes on to define a “contract” as “an agreement that something specific is to be done in return for some payment or consideration.”    

Section 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.”  20 C.F.R.  § 30.111(a).

As noted above, the evidence supports that your husband was exposed to radiation while working for the U.S. Coast and Geodetic Survey at the Nevada Test Site in late 1951 and early 1952, that he was diagnosed with multiple myeloma in April 1993, and that you were married to him from March 7, 1953 until his death on November 5, 1999. 

It does not reasonably follow from the evidence in the file that his work at the Nevada Test Site must have been performed under a “contract” between the U.S. Coast and Geodetic Survey and the AEC.  Government agencies are not private companies and often cooperate with and provide services for other agencies without reimbursement.  The DOE issued radiation badges to military personnel, civilian employees of other government agencies, and visitors, who were authorized to be on a site but were not DOE employees or DOE contractor employees.  No evidence has been submitted that your husband’s work at the Nevada Test Site was pursuant to a “contract” between the U.S. Coast and Geodetic Survey and the AEC and the DOE has specifically denied that his employing agency was a contractor or subcontractor at that time.  Therefore, there is no basis under the Act to pay compensation benefits for his cancer.

For the foregoing reasons, the undersigned must find that you have not established your claim for compensation under the EEOICPA and hereby denies that claim.

Washington, DC

Richard Koretz

Hearing Representative

EEOICPA Fin. Dec. No. 34771-2003 (Dep’t of Labor, July 21, 2003)

REVIEW OF THE WRITTEN RECORD AND 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 of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim for benefits is denied. 

STATEMENT OF THE CASE

On August 14, 2002, you filed a Form EE-2 (Survivor’s Claim for Benefits under EEOICPA) seeking compensation as the eligible surviving beneficiary of your husband, [Employee].  On the EE-2 form, you indicated that he had been diagnosed with colon cancer.  In support of your claim, you submitted medical evidence that confirmed the diagnosis of the claimed condition.  You also indicated that [Employee] was a member of the Special Exposure Cohort having been employed at the West Kentucky Wildlife Management area near the Paducah Gaseous Diffusion Plant.

On September 10, 2002, the district office advised you that the corporate verifier, Oak Ridge Institute for Science and Education, had sent notice to the district office that it had no employment records for [Employee], and that the Social Security Earnings statement and affidavits submitted detail employment for the Department of Fish and Wildlife for the State of Kentucky.  The district office requested that you provide proof of employment with a contractor or subcontractor for the Department of Energy (DOE) within thirty days.  You did not respond to this request.  

The district office reviewed the record and found that you submitted a claim for compensation under the EEOICPA.  It was further found that no evidence was submitted that supported the claim that [Employee] had been employed at a facility covered under the Act.  Therefore, on October 30, 2002, the district office recommended the denial of your claim.

Section 30.316(b) of the EEOICPA implementing regulations states that if the claimant files objections to all or part of the recommended decision, the FAB reviewer will issue a decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.   20 C.F.R. § 30.316(b).  On November 19, 2002, the Final Adjudication Branch received your letter of appeal.  In your statement of appeal, you objected to the conclusion that you did not submit evidence establishing employment at a covered facility for [Employee].  On May 21, 2003, you submitted additional evidence regarding employment for [Employee].  This additional evidence consisted of a licensing agreement between the Commonwealth of Kentucky and the U.S. Atomic Energy Commission dated October 22, 1959, and a 1989 wildlife compliance inspection of the area conducted by the General Services Administration.

FINDINGS OF FACT

  1. You filed a claim for compensation as an eligible surviving beneficiary of [Employee].
  2. [Employee] was employed by the Kentucky Department of Fish and Wildlife Resources.
  3. The Department of Energy indicated that there was no record of [Employee]‘s employment at the Paducah Gaseous Diffusion Plant.
  4. You did not establish that there was a contractual relationship between the State of Kentucky, Department of Fish and Wildlife Resources and the Department of Energy. 

CONCLUSIONS OF LAW

In determining whether [Employee] was employed by a Department of Energy contractor due to services being rendered pursuant to a contract, the Final Adjudication Branch must examine two critical issues.  Firstly, we must establish how a DOE contactor is defined under the Act.  Secondly, we must determine the nature of the agreement between the parties, and if that agreement contains the essential elements of a contract, i.e., mutual intent to contract and the exchange of consideration or payment. 

I conclude that the employee was not a DOE contractor employee.  The EEOICPA program has established how a DOE contractor and subcontractor are to be defined.  Program bulletin 03-27 sets forth the following definitions:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility. 

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.  EEOICPA Bulletin No. 03-27,  2003.

Therefore, an entity must be engaged in a contractual business arrangement to provide services to the DOE in order to be a contractor or subcontractor.  

The evidence submitted does not support the claim that [Employee]‘s employer, the Kentucky Department of Fish and Wildlife Resources, had contracted with the Atomic Energy Commission or DOE to provide management and operating, management and integration, or environmental remediation at the facility.  Consequently, [Employee]‘s employer does not meet the definition of a DOE contractor.  Furthermore, the mere existence of a formal written document authorizing a state or federal entity to perform work for DOE does not automatically make the entity a DOE contractor if the document and arrangement lack the elements necessary to constitute a contract.  The license in this case permitted the state of Kentucky, Department of Fish and Wildlife Resources to utilize DOE land as a field trial area.

The Act is clear that its provisions extend compensation only to certain employees.  These “covered employees” are defined as covered employees with cancer, covered beryllium employees, and covered employees with silicosis.   The definition of a covered employee with cancer (who is a member of the Special Exposure Cohort[1]) is found in § 7384l(9)(A) of the Act.  That section states that in order to be considered a covered employee with cancer one must have been a Department of Energy employee or contractor employee who contracted the cancer after beginning employment at a Department of Energy facility, or an atomic weapons employee who contracted cancer after beginning employment at an atomic weapons facility.   42 U.S.C. § 7384l(9)(A). 

Based on the review of the record, the undersigned hereby concludes that the record supports the finding that [Employee] did not have covered employment as defined under the Act.  Because you have not established, with the required evidence, employment covered under the EEOICPA, your claim for compensation must be denied.

Washington, DC

David E. Benedict        

Hearing Representative

 

[1] The Special Exposure Cohort differs from other Department of Energy and atomic weapon employees in that is comprised of individuals who were 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 were monitored through the use of dosimetry badges; or worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  The Cohort also includes employees that were employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  Individuals designated as a member of the Special Exposure Cohort by the President for purposes of the compensation program under section 7384q of this title are also included.  42 U.S.C. § 7384l(9)(A); 42 U.S.C. § 7384l(14).

EEOICPA Fin. Dec. No. 75271-2007 (Dep’t of Labor, August 29, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the claimants’ claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, FAB accepts and approves the claims for compensation under Part B of EEOICPA.  

STATEMENT OF THE CASE

On January 26, 2006, the claimants each filed a Form EE-2 claiming for survivor benefits under EEOICPA as surviving children of [Employee], based on the condition of chondrosarcoma (bone cancer).   They submitted a copy of [Employee]‘s death certificate, which indicates his marital status was “divorced” at the time of his death on January 29, 2002 due to chondrosarcoma with lung metastases.  They also provided copies of their birth certificates showing that they are children of [Employee][Claimant #1] also provided copies of her marriage certificates documenting her changes of name.

[Claimant #1 and Claimant #2] submitted medical evidence including a pathology report showing [Employee] had a diagnosis of metastatic high grade chondrosarcoma on December 19, 2001. 

A representative of the Department of Energy (DOE) verified that [Employee] was employed by the U.S. Geological Survey (USGS) at the Grand Junction Field Office from August 8, 1951 to March 8, 1978, and stated that he was issued dosimetry badges associated with USGS at the Nevada Test Site on 66 separate occasions between November 5, 1958 and July 11, 1966.  Additionally, other official government records including security clearances, applications for federal employment, and personnel actions were submitted, indicating that [Employee] was employed by USGS and resided in Mercury, Nevada from September 25, 1958 to June 11, 1962.   Mercury, Nevada was a town that was within the perimeter of the Nevada Test Site and housed those who worked at the site.

On May 18, 2007, the Seattle district office issued a recommended decision to accept [Claimant #1 and Claimant #2]‘s claims based on the employee’s condition of chondrosarcoma.  The district office concluded that the employee was a member of the Special Exposure Cohort (SEC), and was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA.  The district office therefore concluded that [Claimant #1 and Claimant #2] were entitled to compensation in equal shares in the total amount of $150,000.00 under Part B. 

The evidence of record includes letters received by FAB on May 23 and June 1, 2007, signed by [Claimant #2 and Claimant #1, respectively, whereby they both indicated that they have never filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim, or state workers’ compensation program, based on the employee’s condition.  Further, they confirmed that they have never pled guilty to or been convicted of fraud in connection with an application for, or receipt of, federal or state workers’ compensation.   

On May 26 and June 6, 2007, FAB received written notification from [Claimant #2 and Claimant #1], respectively, indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. 

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1.      On January 26, 2006, [Claimant #1 and Claimant #2] filed claims for survivor benefits under EEOICPA.

2.      [Claimant #1 and Claimant #2] provided sufficient documentation establishing that they are the eligible surviving children of [Employee].

3.      A representative of DOE verified that [Employee] was issued dosimetry badges for his employment at the Nevada Test Site, a covered DOE facility, in association with USGS, a DOE contractor, from November 5, 1958 to July 11, 1966. 

4.      [Employee] was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA, on December 19, 2001, after beginning employment at a DOE facility.   

5.      The evidence of record supports a causal connection between the employee’s cancer and his exposure to radiation and/or a toxic substance at a DOE facility while employed in covered employment under EEOICPA. 

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  [Claimant #1 and Claimant #2] waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims for survivor benefits under EEOICPA.   

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC:  DOE employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This addition to the SEC became effective July 26, 2006.

The employment evidence in this case is sufficient to establish that the employee was present at the Nevada Test Site for an aggregate of at least 250 work days, from September 1958 through at least November 2, 1962, and qualifies him as a member of the SEC.  However, for this employment to be considered covered employment, it must also be determined that the employee was employed at a DOE facility by DOE, a DOE contractor, subcontractor or vendor.  In this regard, the case was referred to the Branch of Policies, Regulations and Procedures (BPRP) for review and determination.

In its written determination dated August 6, 2007, BPRP indicated that a civilian employee of a state or federal government agency can be considered a “DOE contractor employee” if the government agency employing that individual is:  (1) found to have entered into a contract with DOE for the accomplishment of services it was not statutorily obligated to perform; and (2) DOE compensated that agency for that activity. See EEOICPA Bulletin No. 03-26 (issued June 3, 2003).   BPRP evaluated the evidence of record including the following pertinent documents:

  • An October 5, 1956 letter from the Acting Director for USGS to the Director of Finance of the AEC’s Albuquerque Operations Office, which states:

In accordance with an agreement between our respective agencies, an advance of funds $56,400 is requested to finance the 1957 fiscal year program to be performed by the Geological Survey for the Division of Military Application (DMA).[1]

  • AEC Staff Paper 944/33.  This September 1957 document shows clearly that it was the AEC’s DMA that had oversight over the USGS geological work at the NTS.
  • A document dated March 23, 1959, from the United States Department of the Interior Geological Survey summarizing a letter to the AEC Albuquerque Operations Office.  The summary states in part:

Advised that your draft rewrite of Memorandum of Understanding No. AT(29-2)-474, has been reviewed and is acceptable to the GS except for following changes in Article IV, Budgeting & Finance.  Also request that the amount available for NTS work in fiscal year 1959 be increased from $750,000 to 837,000 and that available for the GNOME program be increased from $85,000 to $91,000.

  • A June 26, 1959 letter from the Director of USGS to [Employee], complimenting him on his efforts at the NTS and forwarding to him a letter from the AEC’s Albuquerque Operations Office in which the AEC provides general compliments to USGS for their work at NTS during 1958.
  • A technical report entitled, “A Summary Interpretation of Geologic, Hydrologic, and Geophysical Data for Yucca Valley, Nevada Test Site, Nye County, NV,” detailing the work and outcome of  the work performed by USGS at the Nevada Test Site.  The report states that the work was undertaken at the behest of the AEC and also states, “Compilation of data, preparation of illustration, and writing of the report were completed during the period of December 26, 1958 to January 10, 1959.  Some of the general conclusions must be considered as tentative until more data are available.”
  • Correspondence from 1957 between USGS and the AEC Raw Materials Division (not the Division of Military Application).  These letters show that USGS provided assistance to the AEC in prospecting for uranium on the Colorado Plateau and other locations. 

These documents clearly show that there was an agreement for payment, by which USGS performed work for the AEC at the Nevada Test Site.

BPRP then turned to the final issue to be addressed, which was whether the work performed by  USGS at the Nevada Test Site was work that USGS was not statutorily obligated to perform.  A review of the USGS website[2] showed that since being founded in 1879, its statutory obligations have changed.  Primarily, its function has been topographical mapping and gathering information pertaining to soil and water resources.  Also, with advances in science, USGS has similarly evolved to meet these changes.  The USGS website makes it clear that in the post-war era, USGS was grappling to keep up its scientific pace and that it did so, in part, with money from the Defense Department, the AEC, and from the states.  Further, BPRP noted that since the formation of USGS, legislation has changed its statutory obligations over the years, whereby seven legal changes to the USGS statutory obligations pertain in some way to DOE or its predecessor agencies.  These changes include:  geothermal energy; gathering information on energy and mineral potential; geological mapping of potential nuclear reactor sites and geothermal mapping; working with the Energy Research and Development Administration, a DOE predecessor, on coal hydrology; consulting with DOE on locating a suitable geological repository for the storage of high-level radioactive waste and a retrievable storage option; monitoring the domestic uranium industry; and to cooperate with DOE and other federal agencies on “continental scientific drilling”.   

Today, USGS describes itself in the following manner:

As the Nation’s largest water, earth, and biological science and civilian mapping agency, the U.S. Geological Survey (USGS) collects, monitors, analyzes, and provides scientific understanding about natural resource conditions, issues, and problems.  The diversity of our scientific expertise enables us to carry out large-scale, multi-disciplinary investigations and provide impartial scientific information to resource managers, planners, and other customers.

As described, while providing geological support to DOE may be part of what USGS is statutorily obligated to perform in 2007, the totality of the evidence suggests this was not always true.  Therefore, BPRP concluded that the Memorandum of Understanding between USGS and the AEC constituted a contract by which USGS provided services to the AEC that USGS was not statutorily obligated to perform through at least 1961, the last year of which their analysis pertained.

In considering the above analysis and determination, FAB concludes that [Employee] is a member of the SEC and was diagnosed with chondrosarcoma, which is a “specified” cancer (bone), and is, therefore, a “covered employee with cancer.”  See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A).  [Claimant #1 and Claimant #2] are the eligible survivors of [Employee] as defined under EEOICPA, and are entitled to equal shares of the total compensation amount of $150,000.00.  See 42 U.S.C. §§ 7384s(e) and 7384s(a)(1).

Accordingly, [Claimant #1 and Claimant #2] are each entitled to compensation in the amount of $75,000.00.

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

 

[1]  The AEC’s Division of Military Application (DMA) was the division responsible for nuclear weapons testing.

[2]  Http://www.usgs.gov/aboutusgs/.

EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under 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 set forth below, the employee’s claim is denied.

 

STATEMENT OF THE CASE

On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted beryllium sensitivity, chronic beryllium disease (CBD) and pulmonary insufficiency due to occupational exposure to beryllium as a mechanical engineer at the Massachusetts Institute of Technology campus in Cambridge, Massachusetts (MIT).  In support of his claim, he filed a Form EE-3 on which he alleged that he had been employed by “U.S. Army, (T-4) Special Engineering Detachment, Manhattan District, Corps of Engineers, assigned to Metallurgical Project, U of Chicago, Mass. Inst. of Tech Location,” at Oak Ridge, Tennessee, and as a radiation monitor at Bikini Atoll from May through August 1946.  On that form, the employee alleged that he was assigned to the “Beryllium Group” at MIT from November 1945 to May 1946.

By letter dated June 10, 2002, the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) confirmed receipt of the employee’s claim and informed him that coverage under EEOICPA is limited to civilian employees of the Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors, and that military personnel are not similarly covered.  The employee then submitted several documents regarding his employment, including a June 17, 2002 letter in which he clarified that:  (1) he joined the Army in 1942; (2) he was called to active duty in May 1943; and (3) he was assigned to the K-25 Gaseous Diffusion Plant in Oak Ridge in September 1944.  He stated that shortly afterward, he was transferred to the “Metallurgical Project” at MIT, still as an enlisted member of the Army, and worked there until May 1946 when he was transferred back to Oak Ridge and trained for his subsequent job at Operation Crossroads in the Pacific.

Employment records provided by MIT on April 24, 2003 indicate:  (1) that the employee was initially assigned to work at MIT as an enlisted member of the U.S. Army on December 1, 1944; (2) that on January 26, 1945, a change in his Army status allowed MIT to hire him directly as a civilian employee on the same project; and (3) that he was recalled to active military duty in the Army on October 22, 1945, but continued to work on the project at MIT until May 2, 1946.  In a letter dated May 10, 2003, the employee provided a detailed work history, with supporting documents, that was consistent with the information provided by MIT and confirmed that he was a civilian employee of MIT at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945.  Neither DOE nor its Oak Ridge Operations Office was able to verify the employee’s alleged employment at Oak Ridge or at Bikini Atoll, but the enlistment records in his case file are consistent with his claim of military employment at these two locations. 

On May 15, 2003, the Denver district office issued a recommended decision to accept the employee’s claim for beryllium sensitivity, and on May 30, 2003 the FAB issued a final decision consistent with the district office’s recommendation.  In that decision, the FAB awarded the employee medical benefits and monitoring for his beryllium sensitivity, retroactive to his filing date of May 31, 2002.  Thereafter, on September 11, 2003, the Denver district office issued a recommended decision to accept the employee’s Part B claim for CBD, based on the recommended findings that he had covered civilian employment at MIT from January 26, 1945 to October 22, 1945, and that he had been diagnosed with CBD on July 2, 2003.  On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump-sum of $150,000.00 plus medical benefits for his CBD, retroactive to May 31, 2002.  In this final decision, the FAB concluded that the employee was a “covered beryllium employee” and that he had been diagnosed with CBD consistent with the criteria set out in EEOICPA.

Following the 2004 amendments to EEOICPA that included the enactment of new Part E[1], the employee filed a claim based on his CBD under Part E of EEOICPA on November 25 , 2005.  Shortly thereafter, the employee’s new Part E claim was transferred to the Cleveland district office of DEEOIC for adjudication.  By letter dated March 9, 2006, the Cleveland district office informed the employee that he did not meet the eligibility requirements under Part E of EEOICPA.  The district office explained that Part E differs from Part B in that Part E only provides benefits for civilian employees of DOE contractors and subcontractors (or their eligible survivors), but does not provide benefits for employees of the other types of employers that are covered under Part B, i.e., atomic weapons employers or beryllium vendors.  The letter provided the employee with an opportunity to submit additional evidence “[i]f you intend to claim additional employment or intend to provide evidence that MIT should be designated as a DOE facility. . . .”  Included with the letter was a print-out of the Department of Energy (DOE) Facility List entry for MIT, which indicated that at that time, MIT’s Cambridge campus was designated only as an atomic weapons employer (AWE) facility and a beryllium vendor facility, but not a DOE facility.[2]

On April 17, 2006, the Cleveland district office issued a recommended decision to deny the employee’s Part E claim for his CBD, based on their recommended finding that the evidence in the file was insufficient to establish that he was a “covered DOE contractor employee,” as that term is defined in § 7384l(11) of EEOICPA, because it failed to establish that his civilian employment at MIT was at a “Department of Energy facility,” as that second term is defined in § 7384l(12) of EEOICPA.  The employee filed objections to the recommended decision in letters to the FAB dated May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, and submitted several affidavits, exhibits and other factual evidence in support of his objections.  All of the employee’s objections were made in support of his position on one point–that DEEOIC should determine that MIT’s Cambridge campus, or a portion thereof, is a “DOE facility” for the purposes of his Part E claim.

On June 6, 2006, the FAB referred the employee’s Part E claim to DEEOIC’s Branch of Policy, Regulations and Procedures (BPRP) for guidance on the issue of whether the evidence submitted by the employee warranted the requested determination regarding MIT’s Cambridge campus.  On December 21, 2006, BPRP referred the issue to the Office of the Solicitor of Labor (SOL).  On March 14, 2007, SOL issued an opinion in which it concluded that the evidence in the case file was insufficient to establish that MIT’s campus meets the statutory definition of a “Department of Energy facility.”  Based on that conclusion, SOL advised BPRP that DEEOIC could reasonably determine that the employee was ineligible for benefits under Part E as he was not a “covered Department of Energy contractor employee.”

On May 4, 2007, the FAB issued a final decision denying the employee’s Part E claim.  In its final decision, the FAB restated both the employee’s objections and the opinion of SOL.  The FAB found that while MIT’s Cambridge campus was recognized as both an AWE facility and a beryllium vendor facility during the period of the employee’s civilian employment there, the evidence was insufficient to establish that it also satisfied the statutory definition of a “DOE facility” during that time period.  Thus, the FAB concluded that the employee was not a “covered DOE contractor employee,” as that term is defined in EEOICPA.

By letter dated May 24, 2007, the employee filed a request for reconsideration of the FAB’s final decision and on July 17, 2007, the FAB issued a denial of the employee’s request.  In its denial, the FAB restated the employee’s objections and based its denial on the conclusion that he had not submitted any new evidence or arguments that would justify reconsidering the May 4, 2007 final decision.  On January 25, 2008, the Director of DEEOIC issued an Order vacating both the FAB’s May 4, 2007 final decision on the employee’s Part E claim and its July 17, 2007 denial of the employee’s request for reconsideration.  In his Order, the Director indicated that while the FAB had restated the employee’s objections in its final decision, it had not explicitly analyzed each of those objections.  Because of this, the Director vacated the FAB’s decisions and returned the employee’s Part E claim to the FAB “for issuance of a new final decision that gives appropriate consideration to the employee’s objections to the Cleveland district office of DEEOIC’s recommended denial of his Part E claim.”   

OBJECTIONS

As noted above, the employee objected to the recommended denial of his Part E claim in a letter dated May 4, 2006 and urged that MIT’s Cambridge campus was misclassified and should be determined to be a DOE facility.  The employee’s first argument urged that the work of the Metallurgical Project at MIT was “nuclear weapons related.”  The evidence supports this argument.  The DOE Facility List entry for MIT describes the uranium metallurgical work and beryllium work performed at MIT in support of the U.S. Army Corps of Engineers Manhattan Engineer District (MED) during the period 1942 through 1946.[3]   This work–a portion of which was performed by the employee–supports the determination that MIT’s Cambridge campus is both an AWE facility from 1942 through 1946, and a beryllium vendor facility from 1943 through 1946.

The employee’s second argument was that DEEOIC previously determined that MIT’s Cambridge campus was a DOE facility.  In support of this position, the employee correctly pointed out that in its May 15, 2003 recommended decision on his Part B claim, the Denver district office stated that “Massachusetts Institute of Technology initially became a DOE facility in 1942.”  The FAB acknowledges that the Denver district office made that erroneous historical statement in its recommended decision on the employee’s Part B claim; however, that error was not carried forward in any of the subsequent recommended decisions on the employee’s several claims, nor was it repeated in any finding of fact or conclusion of law in any of the FAB’s final decisions issued on the employee’s several claims.  In issuing a final agency decision on a claim under EEOICPA, the FAB is not bound by a historical inaccuracy contained in a recommended decision issued by a DEEOIC district office.  See EEOICPA Fin. Dec. No. 10028664-2006 (Dep’t of Labor, August 24, 2006).   

The employee also argued that the MED was a predecessor agency of DOE.  The FAB agrees with this historical point.  42 U.S.C. § 7384l(10).

The employee argued that “beryllium work was done at MIT and that acute beryllium disease resulted.”  The FAB agrees.  The DOE Facility List description of the work that was performed at MIT describes beryllium work performed at the MIT Cambridge campus, and that work supports the designation of MIT as a beryllium vendor during the period 1943 through 1946.  That description also refers to “a number of cases of beryllium disease at MIT” prior to the fall of 1946.[4] 

The employee submitted evidence that the Metallurgical Laboratory (Met Lab) in Chicago, Illinois, is classified as an AWE facility, a beryllium vendor facility and a DOE facility, and argued that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed under Dr. Arthur Compton at the Met Lab.  The FAB agrees that the Met Lab was designated as an AWE facility (1942-1952), a beryllium vendor facility (1942-1946) and a DOE facility (1982-1983, 1987).[5]  The FAB notes, however, that like MIT’s Cambridge campus, the Met Lab is classified only as an AWE facility and a beryllium vendor facility during the time of their early uranium and metallurgical work in the 1940s.  The Met Lab is classified as a DOE facility only during the periods of remediation work that was performed there in the 1980s.  These classifications are consistent with those for MIT’s Cambridge campus.  The FAB concludes that the evidence in the file is insufficient to establish that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed at the Met Lab.  The work performed at MIT’s Cambridge campus was performed pursuant to a contract between the MED and MIT, and there is no evidence in the file to corroborate the employee’s claim that the Met Lab directed or controlled the MIT Metallurgical Project. 

The employee also submitted evidence showing that the Ames Laboratory in Ames, Iowa, is classified as a DOE facility, but made no argument in his May 4, 2006 letter as to the relevance of this information.  In a letter dated February 7, 2008, the employee clarified his argument regarding the Ames Laboratory by asserting that the Met Lab and the Ames Laboratory “were both classified as DOE Employers while MIT was not, even though the work was analogous and facilities in all cases were owned by the universities. . . .  The precedents established by these classifications seems not to have been considered.”  The FAB acknowledges that the Ames Laboratory is designated as a DOE facility (1942-present),[6] but points out that there is no probative evidence in the case file that corroborates the employee’s argument that the work performed at the Ames Laboratory was analogous to the work that was performed at MIT’s Cambridge campus, or that the contracts for such work were similar in type to the pertinent MED contract with MIT, or that the buildings used at the Ames Laboratory were owned by the associated university.[7]  The regulations governing EEOICPA place upon the claimant the burden to produce evidence necessary to establish all criteria for benefits and to prove the existence of all elements necessary to establish eligibility for benefits.  20 C.F.R. § 30.111(a).  The employee’s bare assertions regarding the Met Lab and the Ames Laboratory are not, without supporting factual evidence, sufficient to establish his precedent argument and, thus, do not provide probative support for his claim.      

The employee also argued that his work was recognized by the Secretary of War as “essential to the production of the Atomic Bomb.”  The FAB does not dispute this point.

In his letter dated June 26, 2006, the employee modified his objection to the recommended decision by stating that the MIT Metallurgical Project (MMP), not the entire MIT Cambridge campus, should be classified as a DOE facility.  In support of that objection, he argued that “if the MMP was reclassified to meet the requirements of ‘Department of Energy’ Facility,’” then he would satisfy the statutory requirements of a “Department of Energy contractor employee.”  Based on the totality of the evidence in the case file, the FAB concludes that the evidence does not provide sufficient support for this argument.  Even if the MMP were to be classified as a DOE facility during the employee’s period of civilian employment there, he would still have to submit factual evidence sufficient to establish that he was employed by “(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”  42 U.S.C. § 7384l(11)(B).  The evidence does not support a conclusion that he was so employed, because it does not establish that his employer, MIT, contracted with DOE (or any of its predecessor agencies) “to provide management and operating, management and integration, [] environmental remediation, [or] services, including construction and maintenance, at the facility.”

The employee also argued that the MMP meets the first part of the two-part statutory definition of a “DOE facility.”  In support of this argument, he asserted that the evidence in the file proves that the MMP is a building, structure or premise “in which operations are, or have been, conducted by, or on behalf of, the Department of Energy,” pursuant to 42 U.S.C. § 7384l(12)(A).  The FAB agrees that the evidence supports this conclusion.  During the development of the employee’s Part E claim, his file was referred to the SOL, and on March 14, 2007, that office issued a memorandum in which it found that the evidence supports a conclusion that the employee’s “work on the Metallurgical Project was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, thus meeting the test of § 7384l(12)(A).”  The FAB agrees with that conclusion.  

The employee then argued that the MMP also meets the second part of the two-part statutory definition of a “DOE facility,” in that the MED had “a proprietary interest” in the MMP, as required by subsection (i) of 42 U.S.C. § 7384l(12)(B).  In support of this position, the employee alleged that “The MED paid all bills, provided all priorities, met all needs for civilian or military personnel, which would indicate a clear proprietary interest in the MMP.”  As set forth more fully in the Conclusions of Law section of this final decision, the evidence in the file does not provide sufficient support for the employee’s argument that the MED had “a proprietary interest” in the MMP.  In their March 14, 2007 memorandum, SOL concluded that there is no evidence in the employee’s case file that the MED had “a proprietary interest” in any of the buildings, structures or premises in which he worked as a civilian employee at MIT’s Cambridge campus.  That conclusion is part of the totality of the evidence that FAB has considered in this case, and FAB agrees with that conclusion. 

That conclusion is also supported by the employee’s own statements regarding ownership of the buildings in which he worked at MIT’s Cambridge campus.  His first identification of the buildings in which he worked during his civilian employment at MIT’s Cambridge campus was more than two years after he filed his Part E claim.  In a letter dated February 7, 2008, submitted after his claim was reopened by order of the Director of DEEOIC, the employee stated that all of his work for the MMP was performed in Buildings 4, 8 and 16 on MIT’s Cambridge campus.  He also asserted that those buildings were analogous to the buildings used at the Met Lab and the Ames Laboratory for MED work during that same time period and argued that the classification of all three facilities should be the same because “facilities in all cases were owned by the universities.”  Consistent with the employee’s assertion that MIT owned the buildings and laboratories in which MMP research was performed, there is no probative evidence in the file establishing that the MED had a proprietary interest in any of these three buildings.

Alternatively, the employee argued that the MMP meets the second part of the two-part statutory definition of a “DOE facility” because the MED “entered into a contract with [MIT] to provide management and operation,” as required by subsection (ii) of 42 U.S.C. § 7384l(12)(B).  In support of this position, he argued that:

The MED clearly entered into a contract with MIT to provide management and scientific operations.  I have never seen this contract. . . .  However, the Division of Industrial Cooperation at MIT did not do pro bono work.  A contract is certainly implied by analogy to other universities such as Chicago’s MetLab and Iowa State’s Ames Lab, both of which, by the way, have DOE classifications.

However, the employee did not submit a contract or any other evidence that establishes that a “management and operation” contract was entered into between the MED and MIT for the work performed by the MMP.  As noted above, SOL concluded in their March 14, 2007 memorandum that the work of the MIT Metallurgical Project was performed pursuant to a contract between MIT and the MED–Contract No. W-7405-eng-175.  The employee’s case file does not include a copy of the actual contract and FAB has not been able to locate a copy of that contract.[8]  However, the SOL memorandum cites a page from Book VII, Volume I, Appendix K of the Manhattan District History, which describes the contract as follows: “Contract W-7405 eng-175 with Massachusetts Institute of Technology is a research and development contract involving work with Be as well as other metals and compounds.”[9]  Thus, based on available evidence, SOL concluded that the contract was not a contract “to provide management and operation,” but was, rather, a “research and development contract.”  This conclusion is consistent with DOE’s description of the facility at MIT’s Cambridge campus in the DOE Facility List.  That description references contract W-7405-eng-175 and the beryllium-related research that was conducted at MIT’s Cambridge campus pursuant to the contract.[10]  There is no probative evidence in the file that the MIT-MED contract under which the employee worked was a “management or operation” contract, as asserted by the employee.  Thus, based on the totality of the evidence, the FAB concludes that the evidence is insufficient to establish that MIT’s Cambridge campus satisfies the statutory requirements of § 7384l(12)(B)(ii).           

By letter dated September 17, 2006, the employee supplemented his objection concerning the “proprietary interest” test of 42 U.S.C. § 7384l(11)(B)(i).  In that letter, the employee argued that Roget’s Thesaurus lists several synonyms for the term “proprietary interest,” including “vested interest” and “beneficiary interest,” and that by these broader definitions, the MED had a “proprietary interest” in the MMP.  The employee argued that since “all work of the MIT project was paid for by and directly benefited the MED,” the MED had a “proprietary interest” in the buildings in which the MMP work was performed. 

The FAB finds that the evidence supports the employee’s statement that the work on the MMP project was paid for by and directly benefited the MED.  Both the SOL memorandum and the DOE Facilities List support a finding that the MMP work was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, and FAB will assume that the MED met its payment obligations to MIT under the contract.  However, payment for work performed under the contract and receipt of benefits from the performance of the contract do not establish that the MED had a proprietary interest in the buildings in which the contract’s work was performed.  The structure of the statutory definition of a “Department of Energy facility” supports this conclusion.  The Act defines the term “Department of Energy facility” as:

[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had–

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. § 7384l(12).  Thus, in order to satisfy the requirements of subsection (B) of the statutory definition, it must be established that DOE (or its predecessors, including the MED) either (i) had a proprietary interest in the buildings in which [Employee] worked, or (ii) had a contract with MIT to provide at least one of the specific types of services listed in the definition.  Thus, the “proprietary interest” test of subsection (B)(i) is an alternative to the “contract” test of subsection (B)(ii).  If evidence of payment and receipt of benefits under a type (B)(ii) contract was sufficient to meet the “proprietary interest” test of (B)(i), as the employee urged, there would be no need to have the alternative subsection (B)(i) test.  Thus, the meaning of “proprietary interest” proffered by the employee would render subsection (B)(i) superfluous. 

Additionally, as set forth more fully in the Conclusions of Law section of this decision, the employee’s alternative definitions of the phrase “proprietary interest” are not consistent with its ordinary meaning, that is, an interest characterized by ownership, use and control.  The employee has made no allegation, nor proffered any evidence, that the buildings in which he worked on MIT’s Cambridge campus during his civilian employment from January 26, 1945 to October 22, 1945, i.e., Buildings 4, 8 and 16, were owned, rented, or controlled by the MED for use by the MMP.  In fact, he repeatedly refers to those buildings as labs of the MIT Metallurgical Department owned by MIT, not labs owned by the MED.[11]    

Finally, under cover letter dated October 26, 2006, the employee supplied additional factual evidence in support of his argument that there was a contract between the MED and MIT for the MMP, and therefore the “contract” test of 42 U.S.C. § 7384l(11)(B)(ii) is satisfied and the MMP should be classified as a DOE facility.  As described above, FAB acknowledges that the employee’s civilian work at MIT was performed pursuant to a contract between MIT and the MED, but concludes that there is insufficient evidence to establish that the contract in question meets the requirements of 42 U.S.C. § 7384l(12)(B)(ii), and therefore the buildings used for the MMP do not satisfy the statutory definition of a “DOE facility.”     

After reviewing the written record of the case file and the employee’s objections described above, the FAB hereby makes the following:

FINDINGS OF FACT

  1. On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA based on the allegation that he had contracted beryllium sensitivity, CBD and pulmonary insufficiency due to his occupational exposure to beryllium as a mechanical engineer at MIT’s campus in Cambridge, Massachusetts.
  1. The employee was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and worked on the MMP during that time period.
  1. During his period of civilian employment by MIT, the employee worked in Buildings 4, 8 and 16 on MIT’s Cambridge campus.  The MED did not have a “proprietary interest” in any of those three buildings, which were instead owned by MIT.
  1. The employee’s work on the MMP was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED (a predecessor agency of DOE).
  1. During the period of the employee’s civilian employment by MIT, Contract No. W-7405-eng-175 was a research and development contract and was not a contract to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services at MIT’s Cambridge campus.
  1. Prior to January 26, 1945 and after October 22, 1945, the employee was an active enlisted member of the U.S. Army.
  1. On May 30, 2003, the FAB issued a final decision accepting the employee’s Part B claim for beryllium sensitivity and awarding him medical benefits and sensitivity monitoring retroactive to his filing date of May 31, 2002.
  1. The employee was diagnosed with CBD on July 2, 2003.
  1. On August 5, 2003, the employee filed a second claim under Part B of EEOICPA for his CBD.
  1. On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump sum of $150,000.00, plus medical benefits for his CBD retroactive to May 31, 2002.
  1. On November 25, 2005, the employee filed a claim under Part E of EEOICPA based on his CBD.
  1. For purposes of EEOICPA, MIT’s Cambridge campus is classified as an AWE facility for the time period 1942 through 1946, and as a beryllium vendor facility for the time period 1943 through 1946.  While MIT’s Cambridge campus is not classified as a DOE facility, the Hood Building, which was located adjacent to MIT’s Cambridge campus prior to its demolition, is classified as a DOE facility for the time period 1946 through 1963.

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

CONCLUSIONS OF LAW

Regulations governing the implementation of EEOICPA allow claimants 60 days from the date of the district office’s recommended decision to submit to the FAB any written objections to the recommended decision, or a written request for a hearing.  See 20 C.F.R. §§ 30.310 and 30.311.  On May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, the employee filed written objections to the recommended decision, but did not request a hearing.  Pursuant to 20 C.F.R. §§ 30.312 and 30.313, the FAB has considered the objections by means of a review of the written record of this case.  After a thorough review of the record in this case, the FAB concludes that no further investigation of the employee’s objections is warranted, and the FAB now issues a final decision on the employee’s Part E claim.   

In order to be afforded coverage under Part E of EEOICPA, a claimant must establish that, among other things, he is a “covered DOE contractor employee.”  42 U.S.C. §§ 7385s(1), 7385s-1, 7385s-8.  To prove that he is a “covered DOE contractor employee” for purposes of Part E eligibility, the employee must establish:  (1) that he was a “DOE contractor employee” and (2) that he “contracted a covered illness through exposure at a Department of Energy facility.”  42 U.S.C. § 7385s(1).  As a result of this statutory scheme, only DOE contractor employees are eligible for benefits under Part E, whereas employees of an AWE or a beryllium vendor are excluded from such coverage.[12] 

The Act defines the term “Department of Energy contractor employee,” in pertinent part, as follows: “An individual who is or was employed at a Department of Energy facility by–(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance at the facility.”  42 U.S.C. § 7384l(11)(B) (emphasis added).  Thus, in order to be considered a “Department of Energy contractor employee,” a claimant must have been employed at a DOE facility.  The statutory definition of a “Department of Energy facility” is:

[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had–

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. § 7384l(12).  Therefore, in order to be eligible for benefits under Part E, a claimant must prove that he is or was employed as a civilian employee of a DOE contractor or subcontractor at a facility that meets the requirements of both subsection (A) and subsection (B) of § 7384l(12).

The FAB concludes that the employee has established that he was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and that he worked in various laboratories in Buildings 4, 8 and 16 on the MIT campus in Cambridge, Massachusetts, during that time period.  The evidence further establishes that the employee’s work for the MMP during that period was performed pursuant to a contract that MIT entered into with the MED to perform research and development on beryllium and other metals and compounds in support of the Manhattan Project.  Based on the totality of the evidence, FAB concludes that MIT’s Cambridge campus satisfies subsection (A) of the statutory definition of a “Department of Energy facility.” 42 U.S.C. § 7384l(12)(A).  

The evidence in support of subsection (B) of § 7384l(12), however, is lacking.  Subsection (B) requires that in order for a building, structure or premise to be deemed a “Department of Energy facility,” the evidence must establish that it is a building, structure, or premise “with regard to which the Department of Energy has or had–(i) a proprietary interest, or (ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.”  Neither the “proprietary interest” test nor the alternative “contract” test has been satisfied by a preponderance of the evidence in this claim.   

The statute and the governing regulations do not define the term “proprietary interest,” as that term is used in subsection (B)(i) of § 7384l(12).  Black’s Law Dictionary defines the term as:  “The interest of an owner of property together with all rights appurtenant thereto such as the right to vote shares of stock and right to participate in managing if the person has a proprietary interest in the shares.”  Black’s Law Dictionary, p.1098 (5th ed. 1979).  See also Evans v. U. S., 349 F.2d 653, 658 (5th Cir. 1965) (holding that the phrase “proprietary interest” is “not so technical, or ambiguous, as to require a specific definition” and assuming that the jury in that case gave the phrase “its common ordinary meaning, such as ‘one who has an interest in, control of, or present use of certain property.’”)  Employing the common accepted definition of the term, in order to meet the “proprietary interest” test, the evidence must establish that the MED had rights of ownership, use, or control in the buildings in which the employee worked at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945.  The employee has proffered no such evidence.  To the contrary, in a letter dated February 7, 2008, he asserted that those buildings were owned by MIT, and in a May 30, 2006 email he referred to the laboratories in those buildings as “Metallurgical Dept labs.”  He has likewise offered no probative evidence that the MED controlled the buildings in question or rented space in them.         

With regard to the “contract” test of subsection (B)(ii) of § 7384l(12), there is evidence of the existence of a contract between MIT and the MED for the work that was performed by the employee’s group on the MMP; specifically, Contract No. W-7405-eng-175.  However, based on the totality of the evidence, the FAB concludes that that contract was not entered into “to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services”; rather, it was a much narrower “research and development contract involving work with Be [beryllium] as well as other metals and compounds.”  Since the contract was not one of the limited types enumerated by Congress in its statutory definition of “Department of Energy facility,” the FAB concludes that Congress did not intend buildings such as those in which the employee worked to be designated as DOE facilities for purposes of EEOICPA.             

The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving “by a preponderance of the evidence” the existence of every criterion under any compensable claim category set forth in § 30.110.  “Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.”  20 C.F.R. § 30.111(a).  The FAB concludes that the totality of the evidence in the case file is insufficient to establish by a preponderance of the evidence that the employee meets the statutory definition of a “Department of Energy contractor employee” because the evidence is insufficient to establish that he was employed at a “Department of Energy facility” during his civilian employment at MIT’s Cambridge campus.  Accord EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006).  Therefore, the employee has not established that he is a “covered DOE contractor employee” and he is not entitled to benefits under Part E of EEOICPA.   As a result, the FAB hereby denies the employee’s claim under Part E. 

Washington, DC

Thomas R. Daugherty

Hearing Representative

Final Adjudication Branch

[1]  Pub. Law 108-375, § 3161 (October 28, 2004).

[2]  As of the date of the March 9, 2006 letter, MIT’s campus was designated as an AWE facility and a beryllium vendor facility for the time period 1942 through 1963.  On October 10, 2007, the designation of MIT’s campus was modified in two ways; first, the dates of the AWE facility and beryllium vendor facility designations were changed such that MIT’s Cambridge campus is now designated as an AWE facility from 1942 through 1946 and as a beryllium vendor facility from 1943 through 1946; second, the Hood Building, which was adjacent to MIT’s campus, was determined to be a DOE facility for the period 1946 through 1963.  See EEOICPA Circular No. 08-01 (issued October 10, 2007) and the entry for MIT on the DOE Facility List at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm.

[3]  See the entry for MIT on the DOE Facility List at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm.

[4]  Id. 

[5]  See the entry for the Metallurgical Laboratory on the DOE Facility List at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm.

[6]  See the entry for the Ames Laboratory on the DOE Facility List at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm. 

[7]  The Ames Laboratory was established at Iowa State College in Ames, Iowa, on May 17, 1947.  The college was subsequently renamed Iowa State University.  Work done for the MED at Iowa State College between 1942 and May 16, 1947 is covered under the DOE facility designation, as is all work done in the Ames Laboratory facilities since that date.  See http://www.external.ameslab.gov/final/About/Aboutindex.htm.

[8]The FAB notes that it is the claimant’s responsibility to establish entitlement to benefits under the Act.  Subject to certain limited exceptions expressly provided in the Act and regulations, the claimant bears the burden of providing “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.”  20 C.F.R. § 30.111(a).  See also EEOICPA Fin Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004). 

[9]  A copy of this page has been placed in the case file and a copy has been forwarded to the employee with this decision.

[10]  See the entry for MIT on the DOE Facility List at http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm.  

[11]  See the employee’s email to the EEOICPA Ombudsman dated May 30, 2006, and his letter to FAB dated February 7, 2008.

[12]  Although they are not covered under Part E of EEOICPA, atomic weapons employees and beryllium vendor employees are covered under Part B of EEOICPA.  Additionally, Congress has stated that EEOICPA was established to compensate “civilian” men and women who performed duties uniquely related to nuclear weapons production and testing.  See 42 U.S.C. § 7384(a)(8).  Consequently, members of the military are not covered by EEOICPA.  See EEOICPA Fin. Dec. No. 57276-2004 (Dep’t of Labor, October 26, 2004). 

EEOICPA Fin. Dec. No. 20121219-81137-1 (Dep’t of Labor, March 13, 2013)

EMPLOYEE: [Name Deleted]
CLAIMANTS: [Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 20121219-81137-1
DECISION DATE: March 13, 2013

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claims under Parts B and E of EEOICPA are denied.

STATEMENT OF THE CASE

On October 7, 2009, [Employee’s son] filed a Form EE-2 claiming survivor benefits under Parts B and E of EEOICPA as a surviving child of [Employee] for his alleged stomach cancer and for his death on September 7, 1978, respectively.  On October 14, 2009, [Employee’s spouse] also filed a Form EE-2 claiming benefits as the surviving spouse of the employee.

The evidence of record includes a copy of the employee’s death certificate, which indicated that he died on September 7, 1978 due to carcinomatosis resulting from adenocarcinoma of the stomach.  [Employee’s spouse] submitted a copy of a marriage certificate indicating the she married the employee on June 10, 1972.  The employee’s death certificate identified [Employee’s spouse] as the employee’s surviving spouse.  [Employee’s spouse] documented her changes in surname.  [Employee’s son] submitted a copy of his birth certificate, which indicated that he was born on August 10, 1937 and that the employee was his father.  He also submitted a statement that he was capable of self-support at the time of the employee’s death.

[Employee’s son] submitted a Form EE-3 in which he alleged that the employee worked in Area IV of the Santa Susana Field Laboratory (SSFL) as an electrician for North American Aviation and Rockwell/Rocketdyne from 1973 to 1988.[1]  The current operator of the SSFL, the Boeing Company, submitted employment information indicating that the employee worked for Rocketdyne in Area II of the SSFL intermittently between November 7, 1955 and September 30, 1969.  However, Area II of the SSFL is not a Department of Energy (DOE) facility and employment in Area II is not covered DOE facility employment.  DOE was asked and was unable to confirm that the employee worked in Area IV of the SSFL.

On February 16, 2010, the Seattle district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) received a signed and notarized letter dated February 7, 2010 from [Affiant], who indicated:

  • That he had worked at the SSFL and often visited Area IV to service pump systems;
  • That the employee had worked as a maintenance electrician on the third shift;
  • That he knew “for a fact” that the employee was often in Area IV in pursuit of his duties; and
  • That the employee worked at the SSFL for twenty years or more.

[Affiant] later submitted a signed and notarized Form EE-4 dated April 5, 2010, in which he indicated that he had worked with the employee and knew that the employee worked as a maintenance electrician in all areas of the SSFL, including Area IV, and specified that the employee had worked in Area IV from February 16, 1956 through July 29, 1957.

On April 15, 2010, the district office issued a recommended decision to accept [Employee’s spouse]‘s Part B and Part E claim, based on the recommended findings that the employee qualified as a member of a Special Exposure Cohort (SEC) class at Area IV of the SSFL (based on [Affiant]‘s statements), and that he was diagnosed with a “specified” cancer.  In that same decision, the district office recommended denial of [Employee’s son]‘s Part B and Part E claim on the ground that he was not an eligible survivor.  On May 26, 2010, FAB issued a final decision consistent with the district office’s recommendation and awarded [Employee’s spouse] $150,000.00 under Part B and $125,000.00 under Part E, for a total award of $275,000.00.

[Employee’s spouse] received payment of $275,000.00 on or about June 17, 2010.

On March 28, 2011, the Seattle district office received a signed and notarized letter dated March 21, 2011 from [Affiant], in which he stated:

  • That his EE-4 was false as he had never worked with the employee;
  • That the employee, on his deathbed, asked him to take care of [Employee’s spouse];
  • That he was called several times by [Employee’s spouse] who requested that he verify that the employee had worked in Area IV in support of her EEOICPA claim;
  • That in an effort to help [Employee’s spouse] with her EEOICPA claim he had executed a false affidavit;
  • That he had advised [Employee’s spouse] that they were committing fraud; and
  • That he wanted $50,000.00 from her EEOICPA award to spread among the employee’s grandchildren.

[Affiant] died in June 2011.  Thereafter, this matter was referred to the Las Vegas field office of the Office of Labor Racketeering and Fraud Investigations (OLRFI) within the Department of Labor’s Office of Inspector General.  In the course of OLRFI’s investigation, [Employee’s son] provided OLRFI with copies of three letters from [Affiant], as follows:

  • A January 3, 2010 letter addressed to [Employee’s son], in which [Affiant] admitted that he was “stretching things” when he had previously emailed him about where the employee worked at the SSFL.
  • A January 7, 2011 letter addressed to [Employee’s spouse], in which [Affiant] stated that he had:  (1) taped their previous discussions when he told her that they were committing fraud against the government and that the penalties were severe; and (2) agreed to lie about the employee’s employment record so that she would be eligible to receive $150,000.00 under EEOICPA (of which he would receive $50,000.00).
  • A January 20, 2011 letter addressed to [Employee’s spouse], in which [Affiant] stated that he “came up with the idea that I would ask for $50k for misrepresenting the truth” to “spread it among the children and at the same time I would be helping [Employee’s spouse],” and advised her that there was “quite a penalty for defrauding the Federal Government. . . .”

On September 24, 2012, the Director of DEEOIC issued an order vacating the May 26, 2010 final decision and returned the case file to the district office for further development and issuance of a new recommended decision regarding the eligibility of the claimants to receive survivor benefits under Part B and Part E.

On October 11, 2012, the district office sent letters to the claimants to notify them that it was unable to verify the employee’s employment in Area IV of the SSFL and requested that they submit evidence that the employee had worked for a DOE contractor or subcontractor at a DOE facility during a covered time period.  On October 23, 2012, the district office received a response from [Employee’s spouse], in which she indicated that she was not married to the employee at the time that he worked at the SSFL, that she could not send any information to the district office because she does not have the employee’s work records, and she was “introduced to” [Affiant] and was told that he and her husband had worked together.  [Employee’s son] did not respond to the October 11, 2012 letter.

On December 19, 2012, the district office issued a recommended decision to deny the claimants’ survivor claims under Part B and Part E on the ground that neither claimant had met their burden of proof to establish that the employee worked in Area IV of the SSFL, as alleged.  On January 14, 2013, [Employee’s son] submitted a signed waiver of his right to object to the findings of fact and conclusions of law of the recommended decision.

After considering the evidence of record, FAB makes the following:

FINDINGS OF FACT

  1. [Employee’s son] and [Employee’s spouse] filed claims for survivor benefits on October 7 and 14, 2009, respectively.
  2. The evidence of record is insufficient to establish that the employee worked in Area IV of the SSFL during the time period of February 16, 1956 through July 29, 1957, as alleged.
  3. The employee died on September 7, 1978.
  4. [Employee’s son] is a child of the employee.
  5. [Employee’s spouse] is the surviving spouse of the employee, and was paid $275,000.00 pursuant to a prior final decision dated May 26, 2010.

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

CONCLUSIONS OF LAW

If a claimant waives any objections to all or part of a recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a) (2012).  [Employee’s son] waived his right to object to the findings of fact and conclusions of law in the recommended decision.  [Employee’s spouse] did not object to the recommended decision within the 60-day period for filing an objection.

The regulations provide that the claimant bears the burden of providing the evidence necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion” required for eligibility.  The regulations also provide that “[p]roof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.”  20 C.F.R. § 30.111(a).

To qualify for benefits as a survivor of a “covered employee with cancer” under Part B of EEOICPA, a claimant must show that they are a qualified survivor of an employee who was either a DOE employee, or a DOE contractor employee, or an employee of an atomic weapons employer who contracted cancer in the performance of duty after beginning employment at a DOE facility or an AWE facility.  To qualify for survivor benefits under Part E, a claimant must establish that they are a survivor of a “covered DOE contractor employee” who was engaged in covered employment at a DOE facility and that the employee was determined to have contracted a covered illness through exposure at that facility.

However, as found above, the evidence of record does not establish that the employee worked at a DOE facility–Area IV of the SSFL–as alleged.  Thus, the claimants have not established the necessary criteria for eligibility under EEOICPA and their claims for survivor benefits under Parts B and E are denied.

Compensation received by [Employee’s spouse] under the vacated May 26, 2010 final decision now appears to have resulted in an overpayment.  The national office of DEEOIC will provide [Employee’s spouse] with written notification regarding the overpayment and its overpayment procedures at a later date.

Seattle, WA

Keiran Gorny

Hearing Representative

Final Adjudication Branch

[1]  Area IV of the SSFL is a covered DOE facility from 1955 to 1988 and from 1988 to the present for remediation. See http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (retrieved on February 27, 2013).

EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013)

EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 20130111-12000242-2
DECISION DATE: June 13, 2013

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under Parts B and 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 set forth below, the claim for chronic beryllium disease (CBD) under Parts B and E, and for hearing loss, hypertension and chronic obstructive pulmonary disease (COPD)/emphysema under Part E, are hereby denied.

STATEMENT OF THE CASE

On January 30, 2012, the employee’s authorized representative filed a claim on behalf of her client under both Parts B and E of EEOICPA for the illnesses noted above.  In support of that claim, the representative argued that the Department of Energy (DOE) and its predecessors had leased the Kansas City Plant[1] from the General Services Administration (GSA), and that as part of such lease, GSA maintenance workers (such as the employee) performed maintenance work on utilities located within the boundaries of the Kansas City Plant.  Although the representative did not submit a copy of the alleged “lease agreement” to the district office, she did submit a copy of a Memorandum of Agreement (MOA) signed in July of 1993 by representatives of GSA, DOE and the Department of Defense for “environmental investigatory work at the Bannister Federal Complex.”  The representative also provided the following:  a GSA form completed on July 12, 1988 regarding the employee’s medical examination on that date; respirator use forms dated 1990-1994; and a June 14, 1993 health unit history form completed by the employee in which he stated that he began working for GSA on July 3, 1961 as an A/C Operator and Plumber/Pipefitter.

On February 2, 2012 and March 2, 2012, a claims examiner sent the employee letters requesting that he submit a Form EE-3 and a copy of the “lease agreement” that his representative referred to in her argument.  These letters also asked the employee to submit medical evidence in support of his alleged illnesses.  In response, the employee submitted a completed Form EE-3 in which he indicated that he worked at the “Kansas City Plant/Bendix” for “GSA-PBS-R6” as a “pipe fitter/plumbing/ maintenance” from July 3, 1961 to December 30, 1994, and that he had “[f]requent assignments with security Personnel to Bendix steam pits.”  The employee did not provide the requested copy of the “lease agreement” to the district office, but his representative submitted a March 16, 2012 statement signed by a GSA buildings manager supervisor who alleged that GSA maintenance employees were required to enter DOE space at the Bannister Federal Complex to perform work on mechanical systems and operations that were intertwined or shared between DOE and GSA.

The employee also submitted medical evidence consisting of health unit and employment screening evaluations conducted intermittently between June 13, 1988 and June 21, 1994.  Most of these evaluations took the form of x-rays read by B-readers who found evidence of pleural changes consistent with asbestos exposure, but Dr. David F. Hazuka opined that the employee’s July 25, 1991 chest x-ray showed a few benign calcifications appearing in the employee’s lower right lung field, and Dr. Kenneth M. Jacob noted a few bilateral calcified granulomas after review of the employee’s June 21, 1994 chest x-ray.  The employee also submitted an August 12, 1994 report indicated that the employee’s pulmonary function tests showed some abnormalities that were below the normal range but were mild and did not require follow-up medical attention.

On March 14, 2012 and on April 17, 2012, the claims examiner sent a request to Honeywell, the DOE contractor at the Kansas City Plant, for verification of the employee’s alleged work at that location as a GSA employee, and a document acquisition request.  On May 17, 2012, Honeywell responded that it did not have any evidence regarding the employee’s alleged work.

At the same time that the representative filed the employee’s claim with the district office, she also faxed a copy of the 1993 MOA noted above, her argument in support of the claim and other documents to the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in Washington, D.C.  After considering her argument, the Director wrote to the Denver district office on August 7, 2012 and noted that there was no evidence that GSA was a subcontractor of the DOE contractor at the Kansas City Plant.  The district office then issued a recommended decision on August 23, 2012 to deny both aspects of the employee’s claim on the ground that there was insufficient evidence to establish that he had any covered employment at a DOE facility.

On August 30, 2012, FAB received an August 27, 2012 statement from the representative in which she objected to the recommended decision and requested an oral hearing.  In light of this request, the national office of DEEOIC forwarded several documents regarding the Bannister Federal Complex to FAB, as follows:

  • A May 7, 1963 “Space Permit and Service Agreement,” identified as Contract No. AT(23-3)-14, between the Atomic Energy Commission (AEC) and GSA that was made retroactive to July 1, 1962.
  • A September 26, 1974 memorandum to the AEC setting out the chronology of the Kansas City Plant from 1943 through 1963.
  • A February 17, 1977 letter in which GSA notified the Energy Research and Development Administration (ERDA) that it had transferred ownership of 122.05 acres at the Bannister Federal Complex to ERDA, effective September 30, 1976, and included a provision that the property would be transferred back to GSA whenever ERDA no longer had use for it.
  • Modification No. M085 to Management and Operations (M&O) Contract No. EY-76-C-04-0613 between ERDA and Bendix, effective January 1, 1977.
  • Modification No. M107 to M&O Contract No. DE-AC04-76DP00613 between DOE and Bendix, effective January 1, 1982.
  • A Memorandum of Understanding (MOU) between DOE and GSA, No. DE-GM33-89AL53604, effective March 1, 1989.

After it received the above-noted evidence, FAB issued a September 21, 2012 order remanding the employee’s claim under Parts B and E to the district office.  With respect to the employee’s Part B claim, FAB noted that the district office did not make any findings in the recommended decision on the employee’s allegation that he worked for GSA at the Bannister Federal Complex, and, if this was true, whether he was eligible for Part B benefits for his alleged CBD pursuant to 42 U.S.C. § 7384l(7)(A).  As for the employee’s Part E claim, FAB also noted that the same recommended decision did not address whether he met the definition of a “Department of Energy contractor employee” under Part E.  Accordingly, FAB returned the file to the district office for further development.

Upon return of the case file, the district office wrote to the employee on September 25, 2012 and asked him to submit a copy of the alleged lease his representative had referred to earlier.  The employee did not respond to this request within the period of time allotted; however, the Denver district office obtained copies of additional documents that the employee’s representative had faxed to DEEOIC’s Director about the Kansas City Plant before she filed the employee’s claim.  In a cover letter that she had faxed to the Director on January 12, 2012, the representative argued that the following documents proved that the War Assets Administration (WAA) and then GSA “owned the Kansas City property and leased it to various AEC contractors. . .(Westinghouse, Bendix, Allied Signal, Honeywell)”:

  • A January 31, 1947 memorandum from the WAA to the Real Property Review Board regarding a “[p]roposal to lease for multiple tenancy plan together with proposed rental rates” for Plancor 1213 [i.e., the Bannister Federal Complex] in Kansas City, Missouri.
  • A July 3, 1947 WAA internal memorandum concerning revision of rental rates at Plancor 1213.
  • A July 2, 1952 letter wherein the Navy informed GSA that it could not release 32 acres of property included in the lease agreement between the Navy and Westinghouse to GSA, and indicated that part of the main plant was “turned over to Bendix” for use on an AEC project.

The district office also wrote to the employee on December 5, 2012 and requested that he submit additional medical evidence in support of his claim for CBD under Part B of EEOICPA.  The district office did not receive any response to that letter from the employee.  Thus, on January 11, 2013, the district office issued a recommended decision to deny the employee’s claim for CBD under Part B on the ground that the evidence of record did not establish that he developed that condition, and to deny his claim for CBD, hypertension, hearing loss and COPD/emphysema under Part E on the ground that he was not a “covered DOE contractor employee.”

On January 16, 2013, the employee’s representative objected to the recommended decision and requested an oral hearing.  She also asked FAB to issue a subpoena for “correspondence” she believed had occurred in connection with the employee’s claim.  In a letter dated January 28, 2013, FAB denied the representative’s subpoena request in connection with the employee’s Part E claim, and informed her of the criteria she would have to meet before it could consider issuing a subpoena in connection with her client’s Part B claim.  Since the representative did not address either of those requirements in her January 16, 2013 request, FAB provided her 30 days from the date of the letter to submit a response, but no response was received.  The undersigned hearing representative held the requested hearing in Kansas City, Missouri on March 28, 2013.

OBJECTIONS

At the hearing, the employee and other witnesses provided oral testimony in support of the claim under both Parts B and E.  The representative also provided a number of arguments, as described below.

First, the representative argued that the employee had met his burden to establish a diagnosis of CBD under Part B, using the pre-1993 statutory criteria.  However, the medical evidence in the file does not satisfy at least three out of those five criteria, because while it is arguable that the employee may have submitted evidence of characteristic chest radiographic abnormalities and either a restrictive or obstructive lung physiology testing (or diffusing lung capacity) defect, the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity.  Therefore, he had not met his burden to proof to establish that he has CBD under Part B of EEOICPA.

Second, the representative argued that the 1993 MOA discussed above is a contract for services by which GSA agreed to clean up hazardous substances at the Kansas City Plant in exchange for compensation from DOE, and therefore GSA is a subcontractor at the Kansas City Plant and her client is a subcontractor employee eligible for Part E benefits.  However, this is not a correct interpretation of this document.  While the 1993 MOA was an agreement between GSA, DOE and the Department of Defense, it only concerned the environmental investigatory work these three agencies undertook at the Bannister Federal Complex pursuant to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act.  Also, while the MOA provided that each party could seek reimbursement from the others for investigatory and cleanup costs, the 1993 MOA is not a contract in which GSA agreed to perform services it was not statutorily obligated to perform in exchange for compensation from DOE.  Therefore, this document does not establish the employee’s entitlement to any Part E benefits.

Thirdly, the representative argued that her timely request for the issuance of a subpoena related to the employee’s Part E claim was wrongly denied on January 28, 2013.  However, DEEOIC’s authority to issue subpoenas in connection with claims filed under EEOICPA is limited by the express terms of 42 U.S.C. § 7384w, which strictly limits that authority to Part B claims.  Since this objection concerns a request for a subpoena in connection with a Part E claim, there is no basis for this objection.

Fourth, the representative suggested that the Policy Branch within the national office of DEEOIC somehow lacked the authority to provide guidance regarding the employee’s alleged entitlement to benefits under Part E of EEOICPA to the Denver district office of DEEOIC.  However, there is no apparent legal or factual basis for this suggestion, and more importantly, the Policy Branch was providing guidance to the district office on a question of entitlement, not deciding to either accept or deny the employee’s Part E claim.  Consistent with 20 C.F.R. § 30.300 (2012), all final agency decisions issued on claims of entitlement under EEOICPA are issued by FAB, not the Policy Branch of DEEOIC.

And finally, the representative’s main argument in support of the employee’s Part E claim was that there was a lease agreement showing that the WAA was the “landlord” for the Kansas City Plant (this location was part of the larger location called “Plancor 1213” in WAA documents) beginning in the 1940s, and that as the landlord, the WAA (and then GSA) had a duty to perform certain services for the DOE contractors at the Kansas City Plant for which the WAA/GSA was paid under the terms of this alleged lease agreement.

In order to address these final contentions, it is first necessary to set out some of the pertinent history of the Bannister Federal Complex, of which the Kansas City Plant is a part, as established by the documents in the case file.  Those documents indicate that in 1942, a large manufacturing building was built at the site of the present-day Bannister Federal Complex for the Department of the Navy, and that Pratt & Whitney assembled engines for Navy fighter planes in that building from 1943 to 1945.  They also indicate that the Defense Plant Corporation (a wartime subsidiary of the Reconstruction Finance Corporation, which was then an independent agency of the U.S. government) owned the property from at least 1943 through 1947.  On December 31, 1947, the Navy acquired the land by a Quitclaim Deed from the Reconstruction Finance Corporation, acting through the War Assets Administrator, and immediately leased the “old Pratt & Whitney plant,” i.e., the large manufacturing building in question, to the Westinghouse Electric Company, who continued to build Navy jet engines at the plant from 1948 through 1961.

The evidence in the file establishes that during the period of its lease, Westinghouse subleased portions of the “old Pratt & Whitney plant” to various government agencies and private entities.  One of those subleases was executed in 1948, when Westinghouse sublet the warehouse portion of the “old Pratt & Whitney plant” to the Bendix Corporation, with the AEC’s approval, after the AEC had entered into Contract No. AT(29-1)-613 with Bendix on November 5, 1948 “for the performance by the Contractor of certain work involving management and operation of Government-owned facilities.”  This event marks the historical beginning of the worksite known as the Kansas City Plant.  Bendix actually began its work for the AEC at this subleased location in 1949 and continued working there even after the Navy terminated its lease with Westinghouse on June 30, 1961; shortly thereafter, the Navy transferred ownership of all 300 acres comprising the Bannister Federal Complex to GSA.  The Westinghouse-to-Bendix sublease also presumably ended in 1961, although there is no documentation available on this point.

Based on the above, the representative’s assertion that the AEC began leasing space for the Kansas City Plant at the Bannister Federal Complex from the WAA in the 1940s is factually incorrect.  The January 31, 1947 and July 3, 1947 memoranda discussed earlier are not evidence of a lease agreement between the WAA and either the AEC or Bendix, because they were both dated more than one year before Bendix contracted with the AEC to perform work for it at the Kansas City Plant in November of 1948.  Instead, the evidence shows that Bendix subleased a portion of the complex from Westinghouse (not GSA) from 1948 through 1961.

After that sublease ended, both GSA and the AEC entered into a “Space Permit and Service Agreement,” effective July 1, 1962, through which GSA granted the AEC and its contractors a permit for “possession and use” of the Kansas City Plant.  In return, the AEC agreed to pay GSA an “unfunded users charge.”  Under this Space Permit and Service Agreement, the AEC was responsible for its own day-to-day and long-term maintenance of the interior of the buildings in its area, its adjacent areas and border fences, and all installed utilities and/or mechanical systems within its area.  GSA was denied general access to the Kansas City Plant, and was granted access only upon approval by the AEC for the purpose of making periodic inspections and for any other reasonable and legitimate purposes, and subject to clearance in accordance with the AEC’s security procedures.  The terms of the Space Permit and Service Agreement obligated the AEC to supply certain utility services to the entire Bannister Federal Complex for GSA, and to operate and maintain (excluding long-term maintenance) utility systems within the Service Area.[2]  In return, GSA agreed to pay the AEC for the cost of utility services that the contractor provided to the Service Area.  GSA was to provide long-term maintenance for its own area and the Service Area, and was specifically excluded from providing such services in the designated AEC areas.

On its face, the Space Permit and Service Agreement obviously has many characteristics of a real estate lease.  It is contractual in nature, since it granted the AEC long-term authority to use the Kansas City Plant in return for a “users charge,” and it also gave the AEC exclusive control and possession of the Kansas City Plant against all others, including the owner, GSA.  However, even assuming that this is the “lease agreement” referred to by the employee’s representative, a close reading of the document does not support the representative’s allegations regarding the terms of the “lease agreement.”  Specifically, there is nothing within the four corners of the Space Permit and Service Agreement that obligated the GSA to provide any services to the AEC at the Kansas City Plant in return for any payment or compensation, as the representative alleges.

Returning to the history of the Kansas City Plant, the file contains a February 17, 1977 letter in which GSA indicated it had transferred ownership of “122.05 acres of land. . .with improvements thereon” at the Bannister Federal Complex to ERDA, effective September 30, 1976.  Clearly, from this point in time forward, any question of a “lease agreement” regarding the Kansas City Plant between GSA and another entity is foreclosed.  Under the 1989 MOU in the case file, the GSA agreed to pay DOE for the utilities it provided at an agreed upon rate, and the two parties agreed to share responsibility and reimburse each other for the cost of maintaining the shared utility service distribution systems, flood control functions and joint use areas at the Bannister Federal Complex.  The requirement that DOE share the cost in maintaining areas that it shared with GSA, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), since it did not obligate the GSA to provide any specific services for DOE or its contractors in exchange for compensation.

After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. The employee filed a Form EE-1 on January 30, 2012, claiming benefits for CBD under Parts B and E, and for hypertension, hearing loss and COPD/emphysema under Part E of EEOICPA.
  2. The employee is a federal worker employed by GSA at the Bannister Federal Complex as an A/C Operator and Plumber/Pipefitter.
  3. The employee’s representative did not respond to FAB’s January 28, 2013 request that she submit a response satisfying the criteria for issuing a subpoena in connection with her client’s Part B claim.
  4. The medical evidence is not sufficient to establish a statutory diagnosis of CBD under Part B using either the pre-1993 or post-1993 statutory criteria.
  5. There is no evidence to show that either GSA or its predecessors entered into a contract with Honeywell or its predecessors in which it agreed to perform any specific services for the DOE contractor at the Kansas City Plant in exchange for compensation.

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

CONCLUSIONS OF LAW

The benefits available under Parts B and E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute.  Pursuant to 20 C.F.R. § 30.111(a), the claimant has the burden of providing all documentation necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion,” except as provided in the regulations or the statute, required for eligibility.  That same section also notes that “Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved it true.”

With respect to the employee’s claim under Part B, a “covered beryllium employee” is defined in § 7384l(7)(A) of EEOICPA as a federal employee “who may have been exposed to beryllium at a Department of Energy facility.”  Because the employee here is presumed to have been exposed to beryllium at the Kansas City Plant, a DOE facility, he meets the test of a covered beryllium employee.   Despite this, the medical evidence of record fails to meet three of the five criteria for diagnosing CBD prior to January 1, 1993 as set out at § 7384l(13)(B), because the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity.  Also, the employee did not submit any evidence of an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells, as is required to establish a diagnosis of CBD on or after January 1, 1993 pursuant to § 7384l(13)(A).  Therefore, he has not met his burden to proof to establish that he has the alleged illness of CBD under Part B of EEOICPA.

As for the representative’s timely request for the issuance of a subpoena in connection with the March 28, 2013 hearing in this matter, the record establishes that the representative was properly informed of the criteria in 20 C.F.R. § 30.301(b) for issuing a subpoena relating to her client’s Part B claim, and that she failed to respond within the period of time allotted.  In addition, and as noted above, DEEOIC’s authority to issue subpoenas is strictly limited by the terms of 42 U.S.C. § 7384w to claims under Part B.  Therefore, the January 28, 2013 letter that preliminarily denied the representative’s request for a subpoena under Part E was correct, and the record also shows that she did not respond to the January 28, 2013 request that she fulfill the regulatory criteria for issuing a subpoena under Part B.

And with regard to his Part E claim, the employee’s representative alleged that the employee qualifies as a DOE contractor employee because he performed maintenance work on the grounds of the Kansas City Plant pursuant to contracts between GSA and DOE (and their predecessors), for which GSA and its predecessors were paid.  However, FAB concludes otherwise.  As set out at length above, there is no evidence of a contract between GSA and DOE (or their predecessors) for GSA to provide services for DOE or its contractor at the Kansas City Plant in return for compensation, as alleged.  Neither the 1962 Space Permit and Service Agreement nor the 1989 MOU obligated GSA to provide any specific services at the Kansas City Plant in exchange for compensation.  The mere requirement that DOE share the cost of maintaining areas that it shared with GSA at the Bannister Federal Complex, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), because it did not obligate the GSA to provide any specific services to DOE or its contractors in exchange for compensation.  Moreover, the agencies’ environmental investigation work described in the 1993 MOA was due to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act and not pursuant to a contract between the agencies.  See Chapter 2-500.16 (January 2010), Federal (EEOICPA) Procedure Manual.  Thus, because the evidence in the case file does not prove the existence of the alleged contract, the employee has failed to meet his burden of proof to establish that he is a DOE contractor employee under Part E of EEOICPA.  Under these circumstances, he is not entitled to any Part E benefits.

Accordingly, FAB hereby denies the employee’s claim under both Parts B and E of EEOICPA, and confirms the January 28, 2013 preliminary denial of his representative’s subpoena request.

Denver, CO

William Elsenbrock

Final Adjudication Branch

Hearing Representative

[1]  The Kansas City Plant is a government-owned, contractor-operated installation listed as a DOE facility from November 5, 1948 to the present in the latest Federal Register notice.  78 Fed. Reg. 20950 at 20952 (April 8, 2013).  The facility comprises approximately two-thirds of the 300-acre Bannister Federal Complex, and currently consists of a large manufacturing building and 36 other buildings.  The remaining one-third of the Bannister Federal Complex is owned by GSA.

[2]  For example, at the March 28, 2013 oral hearing, a former GSA General Foreman at the Bannister Federal Complex testified that “Bendix provided the Federal Building at 2306 Bannister Road, steam from their power plants” and that “DOE, Bendix, operated the powerhouses with their people.”

 

 

Exposure

EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims 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 set forth below, your claims are accepted in part and denied in part. 

STATEMENT OF THE CASE

You each filed a Form EE-2, Claim for Survivor Benefits.  A claim was also filed by [Claimant #8], but he died on April 21, 2005 before adjudication was complete.  You stated on the Forms EE-2 that you were filing for the lung and throat cancer of your late father, [Employee], hereinafter referred to as “the employee.”  The death certificate and affidavits establish that the employee was diagnosed with lung cancer in approximately June 1959.  The employee’s death certificate shows lung cancer as the cause of death on June 13, 1961.  There is no medical evidence supporting a diagnosis of throat cancer.

On the Form EE-3, Employment History, you stated the employee was employed sometime in the 1940s as a machinist with the Manhattan Project in Oak Ridge, Tennessee.  The district office verified that the employee worked for Tennessee Eastman Corporation (TEC) at the Y-12 plant[1] for the period of December 27, 1943 to August 29, 1946. 

On July 16, 2002, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  On September 26, 2005, NIOSH returned your case to the district office.  Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947. 

In support of your claims for survivorship, you submitted the death certificate of the employee, and a copy of the death certificate of the employee’s spouse.  In addition, you submitted evidence that you are the children of the employee, along with documentation of legal name changes.

On March 20, 2006, the Seattle district office issued a recommended decision, concluding that you are entitled to lump-sum compensation as eligible survivors under Part B of the Act, that [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are eligible survivors under Part E, and [Claimant #2], [Claimant #3], and [Claimant #7] are not eligible survivors under Part E of the Act.  The district office also recommended that the claim for throat cancer be denied.  On May 27, 2006, the Final Adjudication Branch issued a final decision, denying compensation to [Claimant #2], [Claimant #3], and [Claimant #7] under Part E of the Act. 

You each verified that neither you nor the employee filed a lawsuit or a state workers’ compensation claim or received a settlement, award, or benefit for the claimed condition.

The Final Adjudication Branch received written notification that you each waived any and all objections to the recommended decision. 

FINDINGS OF FACT

  1. You each filed a Form EE-2, Claim for Survivor Benefits.
  2. The employee was diagnosed with lung cancer in approximately June 1959.
  3. The employee was employed at the Y-12 plant in Oak Ridge, Tennessee, from December 27, 1943 to Au gust 29, 1946.
  4. You are each the employee’s child.  [Claimant #1]‘s birth date is [Date of Birth]; [Claimant #4]‘s birth date is [Date of Birth]; [Claimant #5]‘s birth date is [Date of Birth]; and [Claimant #6]‘s birth date is [Date of Birth].  The employee’s spouse is no longer living.  [Claimant #4] and [Claimant #6] were enrolled in college full-time and continuously from the age of 18 through the date of the employee’s death on June 13, 1961.
  5. The employee’s lung cancer caused his death.
  6. The employee was 50 years old at the time of his death and died 15 years before his normal retirement age of 65 years.

CONCLUSIONS OF LAW

I have reviewed of the evidence of record and the recommended decision.

On June 5, 2006, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a bulletin establishing supplemental guidance for processing claims for the SEC class at the Y-12 Plant from March 1943 to December 1947.[2]  This directive supplements the guidance provided for making a determination that the employee performed work in uranium enrichment operations or other radiological activities for more than 250 days at the Y-12 plant.[3]  Attachment 1 of the bulletin lists occupational titles for Y-12 employees involved in Uranium Enrichment Processes.  The employment evidence of record, specifically the report from the Oak Ridge Institute for Science and Education (ORISE) database and Department of Energy (DOE) records, indicates that the employee was classified as a “maintenance mechanic” from December 27, 1943 to April 1, 1944; as a “millwright” from April 2, 1944 to December 8, 1945; as a “vacuum service mechanic” from December 9, 1945 to January 12, 1946; and as a “millwright” from January 13, 1946 to August 29, 1946.  However, the employee’s job titles are not on the list.[4] 

The DEEOIC notes that the Y-12 facility had building locations where uranium enrichment operations or other processes relating to radiological material were conducted.  Employees performing non-uranium enrichment duties that were routinely present within the buildings or areas where uranium enrichment operations occurred are also considered part of the SEC class.  Department of Energy (DOE) records include a clinical record for the employee listing each time he went to the employee health unit for treatment while employed by the Tennessee Eastman Corporation.  Several treatments list a building number (9204-4).  Building 9204-4 is acknowledged to be a Beta building where the calutron was located and uranium enrichment occurred.  The Final Adjudication Branch performed a search of the U. S. Department of Labor Site Exposure Matrices (SEM).  Source documents used to compile the SEM establish that the labor category of “millwright” at Y-12 could potentially be exposed to the toxic substance of uranium tetrafluoride.  The SEM contains a list of processes performed by this labor category, which includes uranium recovery, purification, and recycle operations.

The evidence shows that the employee worked at the Y-12 plant in Oak Ridge, Tennessee from December 27, 1943 to August 29, 1946, and as a millwright from April 2, 1944 to December 8, 1945 and from January 13, 1946 to August 29, 1946, which equals more than 250 days during the SEC class period, and that he was involved in uranium enrichment operations and other radiological activities.  Therefore, the employee qualifies as a member of the SEC.

The employee was diagnosed with lung cancer which is a “specified cancer” pursuant to 42 U.S.C. § 7384l(17)(A) and 20 C.F.R. § 30.5(ff)(2).  You meet the definition of survivors under Part B of the Act.  42 U.S.C. § 7384s(e)(B).  Therefore, you are entitled to compensation of $150,000 for the employee’s lung cancer, to be divided equally.  42 U.S.C. § 7384s(a).  The exact payment amounts may vary by one penny, as the total compensation may not exceed $150,000.

The employee was an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2). 

[Claimant #1] was 14 at the time of the employee’s death.  [Claimant #4] was 19 at the time of the employee’s death and enrolled full-time in school.  [Claimant #5] was 11 at the time of the employee’s death.  [Claimant #6] was 21 at the time of the employee’s death and enrolled full-time in school.  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] each meet the definition of a covered child under Part E of the Act.  42 U.S.C. § 7385s-3(d)(2).  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to benefits in the amount of $125,000 for the employee’s death related to lung cancer, to be divided equally.  42 U.S.C. § 7385s-3(a)(1).

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of his death through and including the calendar year in which he would have reached normal retirement age.  20 C.F.R. § 30.815 (2005).  This equals 14 years of wage-loss.  Therefore, [Claimant #1], [Claimant #4], [Claimant #5], and [Claimant #6] are also entitled to share an additional $25,000 for the employee’s wage-loss, for a total award of $150,000.  42 U.S.C. § 7385s-3(a)(2).

I also conclude that there was no medical evidence submitted to establish that the employee was diagnosed with the claimed condition of throat cancer, and the claims for that condition must be denied.  20 C.F.R. §§ 30.211, 30.215.

Jacksonville, Florida

Sidne M. Valdivieso

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at: http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm., the Y-12 plant is a covered DOE facility from 1942 to the present.  Tennessee Eastman Corporation (TEC) was a DOE contractor at this facility from 1943 to 1947.  (Retrieved June 30, 2006).

[2] EEOICPA Bulletin No. 06-11 (issued June 5, 2006). 

[3] EEOICPA Bulletin No. 06-04 (issued November 21, 2005).

[4] EEOICPA Bulletin No. 06-11 (issued June 5, 2006).

EEOICPA Fin. Dec. No. 60165-2005 (Dep’t of Labor, May 10, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for the condition of chronic beryllium disease, and denies your claims for the condition of chronic silicosis, under Part B of the Act.

STATEMENT OF THE CASE

On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), claiming compensation based on chronic beryllium disease and chronic silicosis.  [Claimant #1] also filed a Form EE-3 (Employment History) indicating that your father was employed various times at the Nevada Test Site from 1961 through 1969.  A Department of Energy (DOE) representative verified that your father worked at the Nevada Test Site with the Reynolds Electrical and Engineering Company, Inc., from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967.  The Nevada Test Site is recognized as a covered DOE facility from 1951 to the present.  See DOE, Office of Worker Advocacy, Facility List.

You provided medical records including chest x-rays from 1992, 1993 and 1994; a pulmonary function test (PFT) dated June 21, 1994; and a narrative report dated February 5, 1993.  The medical records did not provide a diagnosis of chronic beryllium disease (CBD) or chronic silicosis, but the evidence of record was indicative of a possible diagnosis of chronic beryllium disease, in reference to the medical evidence required for a diagnosis of CBD prior to January 1, 1993, as defined under the Act.

On December 17, 2004, the Seattle district office sent a copy of your case file to Milton D. Rossman, M.D., a District Medical Consultant (DMC).  By report dated February 17, 2005, Dr. Rossman indicated that the chest x-rays of February 6, 1993 and April 20, 1992, showed hilar calcifications and a left lower lobe granuloma sufficient to be consistent with CBD.  Secondly, Dr. Rossman stated that the PFT on June 21, 1994, indicated a reduced FVC at 36%, a reduced FEV1.0 at 15%, for a combined FEV1.0/FVC of 31.25, showing evidence of severe obstruction, which could be consistent with CBD.  Lastly, Dr. Rossman indicated that the history and physical dated February 5, 1993, showed that the employee was already on four drugs for his chronic respiratory disease, and there is no question that the employee had a clinical course consistent with a chronic respiratory disorder prior to January 1993.

You submitted a copy of your father’s death certificate, which indicates he was married to your mother, [Employee’s Spouse], at the time he passed away on September 15, 1994.  You also provided a copy of your mother’s death certificate, which shows she passed away on July 7, 1997, and copies of your birth certificates showing that you are the surviving children of the employee.  In addition, you each provided copies of your marriage certificates and other evidence to document your changes of name.

On April 11, 2005, the Seattle district office recommended acceptance of your claims for survivor benefits for the condition of chronic beryllium disease, concluding that you are survivors of a covered beryllium employee as defined by § 42 U.S.C. § 7384l(7).  The district office also concluded that chronic beryllium disease is a compensable occupational illness pursuant to § 42 U.S.C. § 7384l(8)(B) and that the evidence you submitted met the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 42 U.S.C. § 7384l(13).  The district office further concluded that you are each entitled to compensation in the amount of $50,000.00, pursuant to § 42 U.S.C. § 7384s(a)(1) and (e)(1).  In addition, the district office concluded that the medical evidence of record was insufficient for a diagnosis of chronic silicosis, as defined under section 42 U.S.C. § 7384l(15), and recommended denial of your claims for chronic silicosis.

On April 15, 2005 ([Claimant #3]), April 18, 2005 ([Claimant #2]), and April 19, 2005 ([Claimant #1]), the Final Adjudication Branch received your written notification that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

1.      On August 4, 2004 ([Claimant #1]), August 31, 2004 ([Claimant #2]), and September 13, 2004 ([Claimant #3]), you each filed a claim for survivor benefits under Part B of the EEOICPA for chronic beryllium disease (CBD) and chronic silicosis. 

2.      Your father was employed at the Nevada Test Site, a covered DOE facility, from November 8, 1961 to January 17, 1963; January 30, 1963 to June 16, 1966; and February 15, 1967 to August 24, 1967.   

3.      Your father is a covered beryllium employee who worked at the Nevada Test Site during a period when beryllium dust, particles or vapor may have been present. 

4.      Your father’s chest x-rays, pulmonary function test, and the physician’s history and physical report describing the clinical course of his chronic respiratory disease, are consistent with a diagnosis of chronic beryllium disease on April 20, 1992.

5.      The onset of chronic beryllium disease occurred after your father’s exposure to beryllium in the performance of duty. 

6.      The medical evidence of record is insufficient for a diagnosis of chronic silicosis.

7.      You submitted birth certificates establishing that you are the surviving children of the employee.

CONCLUSIONS OF LAW

In the absence of substantial evidence to the contrary, a covered beryllium employee shall be presumed to have been exposed to beryllium in the performance of duty if, and only if, the employee was employed at a Department of Energy facility, or present at a Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy during a period when beryllium dust, particles, or vapor may have been present at such a facility.  See 42 U.S.C. § 7384n(a)(1) and (2); 20 C.F.R. § 30.205(1), (2), (3). 

In addition, in order to establish entitlement to benefits based on chronic beryllium disease, you must provide medical documentation in accordance with the following:  

(B)   For diagnoses before January 1, 1993, the presence of–

(i)                  Occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(ii)                Any three of the following criteria:

(I)    Characteristic chest radiographic (or computed axial tomography (CT)) abnormalities.

(II)   Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.

(III)  Lung pathology consistent with chronic beryllium disease.

(IV) Clinical course consistent with a chronic respiratory disorder.

(V)   Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13)(B).

Based on the employee’s covered employment at the Nevada Test Site, a DOE facility, during a period when beryllium dust, particles, or vapor may have been present, the employee was exposed to beryllium in the performance of duty. 

The record contains medical documentation satisfying the criteria set forth under the EEOICPA for a diagnosis of chronic beryllium disease prior to January 1, 1993.  Dr. Rossman’s report of February 17, 2005, provides a well-reasoned opinion regarding the chest x-rays, pulmonary function test, and narrative report describing the clinical course of your father’s chronic respiratory disease, concluding that the medical evidence is consistent with chronic beryllium disease. 

Your father is a “covered beryllium employee” and he was exposed to beryllium in the performance of duty.  See 42 U.S.C. § 7384l(7).  In light of these findings, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for the condition of chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease prior to January 1, 1993.  See 42 U.S.C. § 7384l(13)(B).

You also filed a claim based on chronic silicosis.  The medical evidence of record is insufficient for a diagnosis of chronic silicosis, as defined under 42 U.S.C. § 7384r(c)(d) and (e).  Therefore, your claim based on the condition of chronic silicosis is denied.

For the foregoing reasons, the undersigned hereby accepts your claims under Part B of the Act for survivor benefits for the condition of chronic beryllium disease, and denies your claims for benefits for the condition of chronic silicosis.  You are each entitled to compensation in the amount of $50,000.00.  See 42 U.S.C. § 7384s(a)(1).   

Seattle, WA

Kelly Lindlief, Hearing Representative

Final Adjudication Branch

Medical evidence of covered illness under Part E

EEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  Your claim for survivor benefits under Part E is accepted and you are awarded compensation in the amount of $125,000.00 for the death due to non-Hodgkin’s lymphoma with metastases to the spine, brain, and lung.  Your claim for survivor benefits under Part B of EEOICPA is denied.

STATEMENT OF THE CASE

On October 30, 2006, you filed a Form EE-2 claiming survivor benefits under EEOICPA as a surviving child of [Employee], hereinafter referred to as “the employee,” due to the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors.  You indicated your belief on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC).  You submitted a child support order establishing that your date of birth was May 2, 1991, and that the employee was your father. 

A November 14, 2003 pathology report diagnosed the employee with non-Hodgkin’s lymphoma.  The employee’s death certificate established the date of death as June 11, 2006, that the cause of death was cardiopulmonary arrest with another significant condition of lymphoma, and that there is no surviving spouse.  Also submitted was medical evidence supporting the diagnoses of metastatic lung, brain and spine cancer.

On Form EE-3, you alleged that the employee worked as a laboratory technician at the Savannah River Site (SRS) in Aiken, South Carolina, in 1990 or 1991, and that he wore a dosimetry badge.  The Department of Energy (DOE) confirmed that the employee worked at the SRS from January 24, 1991 to March 18, 1992.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers.  These data have been organized into a Site Exposure Matrix (SEM), which allows claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data.  Data retrieved from SEM was examined to determine if there was any identified toxic substance that had a health effect relating to the claimed illnesses.  The district office examined data from SEM but was unable to identify any toxic substance for the employee’s labor category that had a health effect relating to the claimed illnesses. 

In a letter dated April 12, 2007, the Jacksonville district office advised you of the requirement under Part E to establish that it is at least as likely as not that exposure to toxic substances at a DOE facility was a significant factor in causing, aggravating, or contributing to the claimed illness and the employee’s death from the claimed illness.  You were also asked to submit additional employment information regarding the employee’s job title.  You were given time to respond.  No other medical evidence was received.

To determine the probability of whether the employee sustained his cancer in the performance of duty, as required to establish entitlement under Part B of EEOICPA, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.” 

You signed Form OCAS-1 on March 19, 2008, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on April 10, 2008.  Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 13.22% probability that the employee’s cancer was caused by his radiation exposure at the SRS.

On April 25, 2008, the district office issued a decision recommending denial of your claim for survivor benefits under both Part B and Part E of EEOICPA because the probability of causation was less than 50% and because it was not at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma and death.  An addendum advised you of your right to file objections and/or request a hearing within sixty days of issuance.  That period ended on June 24, 2008.  To date, no objection or request for hearing has been received.

The FAB conducted an independent SEM search and found several toxic substances to which the employee may have been exposed in the course of his employment at the SRS.  The case was then referred to a District Medical Consultant (DMC) for review and an opinion on the possible relationship between the employee’s illnesses and his occupational exposure to toxic substances.  In a report dated May 1, 2008, the DMC opined that exposure to toxic substances at the SRS (including solvents, pesticides and benzene) was at least as likely as not a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma with lung, brain, and spinal metastases and that “the metastases to the spine, brain, and elsewhere significantly contributed to the employee’s death.”

The FAB performed an independent analysis of the NIOSH radiation dose reconstruction, confirmed the 13.22% probability of causation calculation, and hereby makes the following:

FINDINGS OF FACT

  1. On October 30, 2006, you filed a claim for survivor benefits under EEOICPA based on the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors.
  1. The employee was diagnosed with non-Hodgkin’s lymphoma on November 13 , 2003.
  1. The employee worked for Westinghouse Savannah River Company at the SRS from January 24, 1991 to March 18, 1992.
  1. The employee died on June 11, 2006 from cardiopulmonary arrest and lymphoma and was never married.
  1. You are the biological child of the employee and you were 15 years old at the time of the employee’s death.
  1. The probability that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure at the SRS was less than 50%.
  1. There is sufficient evidence in the file to establish that exposure to toxic substances at the SRS was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma with metastases and that the metastases to the brain and spine significantly contributed to the employee’s death.

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

CONCLUSIONS OF LAW

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired.  20 C.F.R. § 30.310(a) (2008).  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 or if the claimant waives any objections to the recommended decision, the FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

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” and providing “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.”  20 C.F.R. § 30.111.  Any claim that “does not meet all the criteria for at least one of the categories, set forth in the regulations, must be denied.”  20 C.F.R. § 30.110(b), (c).

Under Part B of EEOICPA, you meet the definition of a “child” and a “covered employee with cancer” is an individual with a “specified” cancer who is a member of the SEC, if and only if that individual contracted that “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee).  42 U.S.C. § 7384l(9)(A).  The employee was not a member of the SEC.

Part B of the Act established a compensation program to provide a lump-sum payment and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium or silica while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors.  A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility.  42 U.S.C. § 7384n(b).

Based on my review of the evidence of record and the recommended decision, I conclude that you are not entitled to compensation under Part B because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure received at a DOE worksite in the performance of duty.  Therefore, your claim for benefits under Part B is denied.

You also meet the definition of a “covered” child under Part E of EEOICPA, 42 U.S.C. § 7385s-3(d)(2).  Under Part E, specific criteria must be met to establish that the employee contracted an illness through exposure at a DOE facility.  Under Part E, a “covered illness” means an illness or death that resulted from exposure to a toxic substance at a DOE facility.  See 42 U.S.C. § 7385s(2).

The evidence of record establishes that it is “at least as likely as not” that exposure to toxic substances at a DOE facility during a covered time period was a significant factor in causing the employee’s claimed illnesses of non-Hodgkin’s lymphoma with metastases to the brain and spine.  I conclude that there is sufficient evidence to prove that toxic exposure at a DOE facility was at least as likely as not a significant factor in causing, aggravating, or contributing to the claimed condition(s) and to the employee’s death.  Therefore, you are entitled to survivor benefits in the amount of $125,000.00 under Part E of EEOICPA.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10006745-2006 (Dep’t of Labor, July 27, 2006)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch concerns 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 set forth below, your claim is accepted. 

STATEMENT OF THE CASE

You filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, and a Request for Review by Physicians Panel, for the lung cancer and heart problems of your late spouse, [Employee], hereinafter referred to as “the employee.” 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on March 20, 1953, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, June 22, 2001.  The death certificate stated the cause of death was cardiogenic shock and coronary artery disease (CAD). 

A previous Final Decision was issued by the Department of Labor under Part B of the Act on June 5, 2002, concluding that you were entitled to compensation due to the employee’s lung cancer, based on employment by Union Carbide at the gaseous diffusion plant in Oak Ridge, Tennessee, from November 1, 1973 to March 31, 1982.

On February 22, 2006, the district office received your written confirmation that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition, and that the employee, at the time of death, had no minor children or children incapable of self-support, who were not your natural or adopted children.

On May 18, 2006, the Jacksonville district office issued a recommended decision, concluding you were entitled to compensation in the amount of $125,000.

On May 30, 2006, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.

FINDINGS OF FACT

1.  You filed a Claim for Survivor Benefits under EEOICPA.

2.  The employee was diagnosed with lung cancer.

3.  A previous Final Decision was issued by the Department of Labor under Part B on June 5, 2002, concluding that you were entitled to compensation on the basis of the employee’s lung cancer.

4.  You were the employee’s spouse at the time of his death and at least a year prior.

5.  The employee’s lung cancer contributed to his death.

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision.

The district office submitted the evidence of record to the district medical consultant (DMC) for review.  In her report of October 26, 2005, Dr. Sylvie I. Cohen stated that the employee’s lung cancer did not contribute to the causes of the employee’s death as listed on the death certificate.  The employee’s attending physician, Dr. Charles W. Bruton, stated in a report dated November 15, 2005 that the irradiation treatment prescribed for the employee’s lung cancer contributed to the employee’s heart disease and caused heart damage.  The district office made a second referral to a DMC, to consider the November 15, 2005 report from the attending physician.  In his report of March 8, 2006, Dr. John Ellis also opined that the radiation effects did not contribute in any significant way to the employee’s death.  Dr. Frederick J. Barry then submitted a report, dated April 13, 2006, in which he asserted that the radiation therapy received by the employee in 1987 contributed to his heart disease and death with chronic congestive heart failure, since radiation therapy is “well known to cause coronary atherosclerosis as well as cardiac muscle damage leading to cardiomyopathy.”  The weight of the medical evidence rests with the opinions of the treating physician, who actually examined the employee, and Dr. Frederick J. Berry, a Fellow in the American College of Chest Physicians, who provided well-rationalized, probative opinions concerning the causal relationship between the employee’s lung cancer treatment and his subsequent death from cardiogenic shock and coronary artery disease.  Therefore, the employee’s lung cancer contributed to his death.

The employee was an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2). 

You meet the definition of a survivor under Part E.  42 U.S.C. § 7385s-3(d)(1).  Therefore, you are entitled to benefits in the amount of $125,000 for the employee’s death as a consequence of the treatment of lung cancer.  42 U.S.C. § 7385s-3.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 10016501-2007 (Dep’t of Labor, May 7, 2007)

NOTICE OF FINAL DECISION 

This is the final decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB reverses the recommended decision of the district office and accepts the claim under Part E of EEOICPA for medical benefits based on the covered illness of brain tumor (meningioma).  

STATEMENT OF CASE

On December 18, 2002, [Employee] filed a claim for benefits under Part B and the former Part D of EEOICPA claiming he developed a brain tumor, diagnosed in February of 1993, as the result of his work at a Department of Energy (DOE) facility.  On October 28, 2004, Part E of EEOICPA was enacted when Congress repealed Part D.  [Employee] alleged on his Form EE-3 that he was employed as a Hazard Reduction Technician (HRT) from April 14, 1984 to the date of his signature (December 18, 2002) at the Rocky Flats Plant.[1] DOE confirmed his employment at the Rocky Flats Plant from April 16, 1984 to January 15, 2003.

[Employee] submitted medical records in support of his claim.  Included in these medical records were several surgical pathology reports, MRI reports and medical narratives, which document he was diagnosed with meningioma (a non-cancerous brain tumor) in February 1993 at the age of 31.  Then, he developed several recurrences of the initial meningioma as well as new lesions in other parts of his brain.  Notably, his tumors were always referred to in these records as being “atypical, aggressive, and skull-based” and have resulted in his loss of hearing and other neurological deficits.     

On May 14, 2003, FAB issued a final decision denying [Employee]‘s claim under Part B of EEOICPA, because non-cancerous tumors of the brain are not compensable “occupational” illnesses under that Part.

In September 2006, the district office initiated development of [Employee]‘s claim under Part E.  Under that Part, once the medical evidence substantiates a diagnosis of a claimed condition, the district office proceeds with a causation analysis to make a determination as to whether there is a causal connection between that condition and exposure to a toxic substance or substances at a DOE facility.  The standard by which causation between an illness and employment is established is explained in Federal (EEOICPA) Procedure Manual Chapter E-500.3b:

Causation Test for Toxic Exposure.  Evidence must establish that there is a relationship between exposure to a toxic substance and an employee’s illness or death.  The evidence must show that it is “at least as likely as not” that such exposure at a covered DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness or death, and that it is “at least as likely as not” that exposure to a toxic substance(s) was related to employment at a DOE facility.

To assist employees in meeting this standard, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) undertakes a variety of steps to collect necessary information to show that a claimed illness is linked to a toxic exposure.   Principally, DEEOIC has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers.  This data has been organized into the Site Exposure Matrices (SEM).  SEM allows DEEOIC claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. 

In addition to the SEM data, DEEOIC works directly with DOE to collect individual employee exposure and medical records.  Contact is also made in certain situations to obtain information from Former Worker Screening Programs or trade groups that may have relevant exposure or medical information.   Relevant specialists in the areas of industrial hygiene and toxicology are also utilized in certain situations to evaluate and render opinions on claims made by employees.  DEEOIC also works directly with treating physicians or other medical specialists in an effort to obtain the necessary medical evidence to satisfy the causation standard delineated under EEOICPA. 

On September 20, 2006, the district office notified [Employee] that after conducting extensive research, they had been unable to establish a causal connection between the development of his meningioma and exposure to a toxic substance or substances at the Rocky Flats Plant.  He was afforded a period of 30 days to provide factual or medical evidence that established such a link.  

On October 17, 2006, the district office received a letter from [Employee]‘s authorized representative, in which he indicated that he believed that [Employee]‘s exposure to plutonium and his work in the glove boxes where he was exposed to radiation contributed to the development of his brain tumor.  He requested a copy of the file, which was provided by the district office on November 14, 2006.

On December 4, 2006, a letter was received from [Employee]‘s representative, in which he detailed several instances, based on his review of [Employee]‘s exposure records, when he had experienced plutonium contamination.

Subsequently, on January 31, 2007, the district office issued a recommended decision to deny the claim under Part E of EEOICPA, finding that the evidence of record was not sufficient to establish a causal relationship between the development of [Employee]‘s meningioma and his exposure to toxic substances at the Rocky Flats Plant.  The recommended decision was then forwarded to FAB for review.

[Employee]‘s representative requested an oral hearing on February 12, 2007, and reiterated his contention that [Employee]‘s exposure to radiation had contributed to the development of his meningioma.  By letter dated February 27, 2007, the representative provided results of his research into the relationship between the development of meningioma and exposure to radiation.  He referenced fourteen medical articles that suggested such a relationship existed.

Upon review of the record, FAB determined that based on the contamination records in the file; [Employee]‘s age at the time of diagnosis; his length of exposure to radiation at the time of diagnosis; the location of his meningiomas, the description of his meningiomas as being atypical, aggressive and skull-based; and the fact that the medical literature appears to support a relationship between exposure to radiation and the development of these types of tumor, that [Employee]‘s record should be referred to a DEEOIC toxicologist.   

On April 11, 2007, a statement of accepted facts detailing [Employee]‘s employment dates, labor categories, the work processes he had been engaged in, the buildings that he worked in, his exposure history, the number of positive contamination events he had experienced with resulting acute intakes of plutonium, as well as his medical and case history was referred to a toxicologist. The toxicologist was asked to provide an opinion as to whether there was current scientific and/or medical evidence supporting a causal link between exposure to radiation and the development of meningioma and, if so, whether based on the specifics of [Employee]‘s case, it is as likely as not that his exposure to radiation at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating his meningioma.

On April 26, 2007, the toxicologist stated that the scientific and medical literature does support a “causal” relationship between ionizing radiation and meningiomas at levels below 1 siever (SV). Further, she opined with a reasonable degree of scientific certainty “[t]hat it is as likely as not that exposure to a toxic substance at a DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness, and that it is ‘at least as likely as not’ that exposure to a toxic substance was related to employment at a DOE facility.”

On May 7, 2007, [Employee] affirmed he had never filed for or received any benefits for meningioma associated with a tort suit or state workers’ compensation claim.  Additionally, he stated that he had never pled guilty to or been convicted of any charges of fraud in connection with a state or federal workers’ compensation claim.

After a careful review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. On December 18, 2002, [Employee] filed a claim under Part E of EEOICPA for a brain tumor.
  1. [Employee] was employed by DOE contractors from April 16, 1984 to January 15, 2003 at the Rocky Flats Plant, a covered DOE facility.
  1. During [Employee]‘s employment he was exposed to ionizing radiation.
  1. [Employee] was diagnosed with meningioma, a non-cancerous tumor of the brain, after he began his employment at the Rocky Flats Plant.
  1. The evidence of record supports a causal relationship between the development of [Employee]‘s meningioma and exposure to ionizing radiation at the Rocky Flat Plant.
  1. Ionizing radiation is as least as likely as not a significant factor in causing, contributing to, or aggravating [Employee]‘s meningioma. 

Based on the above-noted findings of fact in this claim, FAB hereby also makes the following:

CONCLUSIONS OF LAW

Pursuant to the regulations implementing EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

FAB received the letter of objection and request for an oral hearing.  A hearing was scheduled, but upon review of the evidence in the case file, FAB determined the claim was not in posture for a final decision and required a review by a toxicologist.  Based on this review, the recommended decision is hereby reversed and [Employee]’s claim for meningioma is accepted.  On May 7, 2007, he submitted a written statement affirming that he agreed with the final decision to reverse the recommended decision and to accept his claim for meningioma.

FAB concludes that [Employee] is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c).  Therefore, [Employee]‘s claim under Part E is accepted and he is awarded medical benefits for the treatment of meningioma pursuant to 42 U.S.C. § 7385s-8.

Denver, CO

Paula Breitling

Hearing Representative

Final Adjudication Branch

 

[1] According to DOE’s website at:  http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm, the Rocky Flats Plant in Golden, Colorado is a covered DOE facility from 1951 to the present.

EEOICPA Fin. Dec. No. 10027260-2006 (Dep’t of Labor, December 6, 2006)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, your claims for benefits are denied. 

STATEMENT OF THE CASE

In December 2003, you each filed a Form EE-2, Claim for Survivor Benefits under the Act.  [Claimant #1] also submitted a Request for Review by Physicians Panel form, which is considered to be on behalf of all survivors.  On the forms, you listed possible chronic beryllium disease (CBD) and breathing problems as the claimed conditions related to the employment of your late father, [Employee] (hereinafter called the employee). 

In support of your claims for survivorship, you submitted birth certificates listing the employee as your father, and the death certificates of the employee and his spouse.  The death certificate lists the causes of death on April 25, 1980 as ischemic heart disease with acute [illegible] myocardial infarction.  Marriage certificates showing legal changes in name were also submitted.

On the Form EE-3, Employment History, you stated that the employee was employed by F.H. McGraw as a laborer at the Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, from 1950 to 1954.  The evidence of record, including DOE security clearance records and co-worker affidavits, shows that the employee worked at the Paducah GDP from April 23, 1951 to December 30, 1954.

On May 19, 2004, the FAB issued a final decision to deny survivor compensation under Part B of the Act, because an “occupational illness” could not be established.

The district office provided you the opportunity to substantiate your claim by sending a development letter dated February 4, 2006, concerning whether any of you met the criteria to be considered a “covered child.”  The district office sent letters on February 6, 2006 and March 24, 2006, requesting medical evidence of a diagnosis and factual evidence to support covered employment.  In response, [Claimant #6] submitted medical records.  These records include psychiatric records noting a history of alcohol abuse/addiction in 1956 (the report states that the employee had no regular employment since December 1954 when he was released from the atomic plant); repeat positive tests for tuberculosis; an upper G.I. series report dated June 25, 1970 showing rugal folds in the stomach “seen in patients with gastritis, Menetrier’s disease and lymphoma”; and a chest x-ray from January 11, 1972 showing “old chronic changes in the chest with no evidence of active disease.” 

On May 1, 2006, the Jacksonville district office issued a recommended decision, concluding that the medical evidence was insufficient to establish that the employee was diagnosed with CBD or breathing problems.  Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  That 60-day period expired on June 30, 2006.

On June 26, 2006, the FAB received a letter from [Claimant #6], dated June 22, 2006, objecting to the recommended decision and requesting a hearing.  The hearing was held by the undersigned in Paducah, Kentucky, on September 14, 2006.  [Claimant #6] was duly affirmed to provide truthful testimony.

The letter of objections stated that you have been unable to obtain medical records because many of them have been destroyed or the facilities no longer exist; that the public should have been informed earlier about this program so records could have been obtained; that the odds of the employee having an occupational illness must be high due to the number of reported cases; that you are a hospice nurse and many of your patients are terminally ill because they worked at the plant or were exposed to loves ones who did; you remember the employee having multiple respiratory problems, including chronic cough with thick secretions and being unable to lie down or play with his children because of shortness of breath; that you believe your mother died of colon cancer from being exposed to the employee’s clothing while washing it and cleaning up his body fluids when he was too ill to do it himself.

During the hearing, the objections were discussed in greater detail, and it was explained that survivor compensation under Part E of the Act is payable only when the employee’s death is considered to be related to conditions resulting from toxic exposures at a covered Department of Energy facility.  While several of the employee’s survivors may meet the criteria to be considered a “covered child,” the need for definitive medical evidence or opinion concerning a diagnosis related to the employee’s death was discussed, along with the requirement that a claim be based on employment exposures, and not secondary exposures, such as you claim for your mother.

In accordance with § 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e) and (f).  By letter dated September 28, 2006, the transcript was forwarded to you.  No further evidence, changes or corrections were received.

Part E of the Act requires that a survivor claim be based on the death of the employee due to a condition relating to toxic exposures encountered during employment at a Department of Energy facility.  The conditions listed on the death certificate are ischemic heart disease and myocardial infarction.  The implementing regulations require that a claim be based on medical evidence and it is the survivor’s responsibility to submit or arrange for the submission of evidence that establishes entitlement for benefits.  20 C.F.R. § 30.111.  There is no diagnosis of CBD or other breathing problems, and it has been previously determined that the employee did not meet the statutory criteria for a diagnosis of CBD under Part B. 

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

FINDINGS OF FACT

1.         [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] filed claims for benefits under the Act.

2.         The employee worked for F.H. McGraw at the Paducah GDP from April 23, 1951 to December 30, 1954.

3.         You are children of the employee and the employee’s spouse is no longer living.

4.         The medical evidence is insufficient to establish a diagnosis of CBD or breathing problems.

Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

The Federal (EEOICPA) Procedure Manual describes the differences between the requirements for CBD under the two parts of the Act.  Part B requires that the medical evidence meet the statutory criteria; Part E requires a physician’s diagnosis and a review of the medical evidence as a whole.  The statutory requirements that define CBD under Part B do not apply to the evaluation of CBD claims under Part E.[1]  A physician’s report that evaluates the employee’s medical condition and finds that it is “at least as likely as not” that exposure to beryllium was a significant factor in aggravating, contributing to, or causing CBD, given the weight of all the medical evidence of file, may establish causation for CBD under Part E.  A diagnosis provided by a qualified physician is required to establish CBD under Part E.  Breathing problems is a description or symptom, and requires a diagnosis of a specific condition causing the breathing problems in order to be reviewed for compensability.  The required medical evidence is described in § 30.114 of the implementing regulations (physician’s reports, lab reports, hospital records, etc.), and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.  20 C.F.R. § 30.114

The medical evidence is insufficient to establish that the employee was diagnosed with the claimed conditions of CBD or breathing problems.  20 C.F.R. § 30.114.  Therefore, you are not entitled to compensation under Part E of the Act.  42 U.S.C. §§ 7385s-2, 7385s-8.

Jacksonville, FL

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch

[1] Federal (EEOICPA) Procedure Manual, Chapter E-500.15 (June 2006).

EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim under 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 set forth below, the claim for skin lesions, skin cancer, an abdominal aortic aneurism, congestive heart failure, chronic obstructive pulmonary disease and interstitial basilar pleural parenchymal disease is accepted for medical benefits.  However, the claim for blindness and atherosclerotic peripheral vascular disease under Part E is denied. 

STATEMENT OF THE CASE

On July 15, 2008, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for blindness, emphysema, skin lesions, chronic obstructive pulmonary disease (COPD), congestive heart failure and an abdominal aortic aneurism.  On August 21, 2008, [Employee] filed a second Form EE-1 for the additional conditions of interstitial and right basilar pleural parenchymal disease and atherosclerotic peripheral vascular disease.  On the claim forms, [Employee] indicated that he had not received any settlement or award from a tort suit or state workers’ compensation claim in connection with the claimed conditions and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

On a Form EE-3, [Employee] stated that he was employed as an electrician, video technician and assistant estimator by E.I. Dupont at the Savannah River Site (SRS) for the period of January 1, 1952 to December 30, 1987.  The Oak Ridge Institute for Science and Education (ORISE) database was checked and verified his SRS employment from June 18, 1952 to December 31, 1986, and Department of Energy (DOE) records identify [Employee]‘s labor categories as instrument mechanic and project assistant.

The district office performed a search of the U.S. Department of Labor Site Exposure Matrices (SEM).  Source documents used to compilethe SEM establish that the labor category of “instrument mechanic” at the SRS could potentially be exposed to the toxic substances arsenic, asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.  The SEM lists skin cancer as a possible specific health effect of exposure to arsenic, and COPD as a possible specific health effect of asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.

The district office sent [Employee]‘s medical records to a District Medical Consultant (DMC) for review.  In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses.  The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis.  The DMC therefore concluded that [Employee]‘s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands. 

The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure.  The DMC determined that it is at least as likely as not that [Employee]‘s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease. 

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances.  However, the DMC noted that the medical notes stated that [Employee]‘s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD.  As a result, the DMC concluded that it was at least as likely as not that [Employee]‘s COPD and emphysema were a significant factor in aggravating his aneurism. 

With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease and certainly contributes to congestive heart failure (CHF).  Therefore, the DMC concluded that it was at least as likely as not that [Employee]‘s COPD and emphysema were significant contributing factors in the development of his CHF. 

The DMC noted, however, that ophthalmic notes diagnosed [Employee] with Fuch’s dystrophy, an inherited genetic eye disorder, as well as relatively common eye conditions, particularly common in people his age.  As such, the DMC concluded that it is not at least as likely as not that [Employee]‘s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his blindness.

And finally, the DMC noted that atherosclerotic peripheral vascular disease is generally not considered to be an occupational illness and that there are no accepted toxic substances that are known to cause, contribute to, or aggravate the condition.  Accordingly, the DMC concluded that it was not at least as likely as not that [Employee]‘s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his atherosclerotic peripheral vascular disease.

On October 16, 2008, the Jacksonville district office issued a recommended decision to accept [Employee]‘s claim under Part E of EEOICPA for the conditions of skin lesions, skin cancer, an abdominal aortic aneurism, CHF and interstitial basilar pleural parenchymal disease, and to deny his claim for blindness and atherosclerotic peripheral vascular disease. 

On October 24, 2008, FAB received written notification that [Employee] waived any and all objections to the recommended decision.  FAB has performed a search of the SEM, which confirmed the findings of the district office.  After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. [Employee] was employed at the SRS from June 18, 1952 to December 31, 1986.
  1. [Employee] was diagnosed with interstitial and right basilar pleural parenchymal disease, atherosclerotic peripheral vascular disease, blindness, emphysema, skin lesions, COPD, CHF and an abdominal aortic aneurism following exposure to toxic substances during covered employment at a DOE facility.
  1. The medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s COPD, emphysema, interstitial basilar pleural parenchymal disease, skin cancer, and skin lesions. 
  1. [Employee]‘s COPD and emphysema were significant factors in aggravating his aneurism and contributing to his CHF.
  1. There is no link between [Employee]‘s blindness or atherosclerotic peripheral vascular disease and exposure to toxic substances at the SRS.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a) (2009).

Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2).  As found above, the medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s skin cancers, skin lesions, CHF, abdominal aortic aneurism, interstitial basilar pleural parenchymal disease and COPD.  That same evidence does not establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s blindness or atherosclerotic peripheral vascular disease.

Since the evidence does not establish that [Employee] has contracted blindness or atherosclerotic peripheral vascular disease through exposure to a toxic substance at a DOE facility, they cannot be considered  covered illnesses under Part E.  I hereby deny payment of medical benefits under Part E for the claimed blindness and atherosclerotic peripheral vascular disease.  However, [Employee] is entitled to medical benefits for skin lesions, skin cancer, an abdominal aortic aneurism, CHR, COPD and interstitial basilar pleural parenchymal disease, effective July 15, 2008, under Part E of EEOICPA.  See 42 U.S.C. § 7385s-8.

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim under 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 set forth below, the claim for skin lesions, skin cancer, an abdominal aortic aneurism, congestive heart failure, chronic obstructive pulmonary disease and interstitial basilar pleural parenchymal disease is accepted for medical benefits.  However, the claim for blindness and atherosclerotic peripheral vascular disease under Part E is denied. 

STATEMENT OF THE CASE

On July 15, 2008, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for blindness, emphysema, skin lesions, chronic obstructive pulmonary disease (COPD), congestive heart failure and an abdominal aortic aneurism.  On August 21, 2008, [Employee] filed a second Form EE-1 for the additional conditions of interstitial and right basilar pleural parenchymal disease and atherosclerotic peripheral vascular disease.  On the claim forms, [Employee] indicated that he had not received any settlement or award from a tort suit or state workers’ compensation claim in connection with the claimed conditions and that he had neither pled guilty to nor been convicted of workers’ compensation fraud.

On a Form EE-3, [Employee] stated that he was employed as an electrician, video technician and assistant estimator by E.I. Dupont at the Savannah River Site (SRS) for the period of January 1, 1952 to December 30, 1987.  The Oak Ridge Institute for Science and Education (ORISE) database was checked and verified his SRS employment from June 18, 1952 to December 31, 1986, and Department of Energy (DOE) records identify [Employee]‘s labor categories as instrument mechanic and project assistant.

The district office performed a search of the U.S. Department of Labor Site Exposure Matrices (SEM).  Source documents used to compilethe SEM establish that the labor category of “instrument mechanic” at the SRS could potentially be exposed to the toxic substances arsenic, asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.  The SEM lists skin cancer as a possible specific health effect of exposure to arsenic, and COPD as a possible specific health effect of asbestos, cadmium, coal ash, nitrogen dioxide, phosgene and silicon dioxide.

The district office sent [Employee]‘s medical records to a District Medical Consultant (DMC) for review.  In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and seven actinic keratoses.  The DMC noted that the final pathology diagnosis of the keratosis of the index finger was consistent with an arsenical keratosis.  The DMC therefore concluded that [Employee]‘s exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin lesions of keratoses of his hands. 

The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found in cases of asbestos exposure.  The DMC determined that it is at least as likely as not that [Employee]‘s exposure to toxic substances while working at the SRS was a significant factor in contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal disease. 

As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic substances.  However, the DMC noted that the medical notes stated that [Employee]‘s aneurism was unable to be surgically corrected as a result of other significant medical problems, one of which was his moderately severe COPD.  As a result, the DMC concluded that it was at least as likely as not that [Employee]‘s COPD and emphysema were a significant factor in aggravating his aneurism. 

With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease and certainly contributes to congestive heart failure (CHF).  Therefore, the DMC concluded that it was at least as likely as not that [Employee]‘s COPD and emphysema were significant contributing factors in the development of his CHF. 

The DMC noted, however, that ophthalmic notes diagnosed [Employee] with Fuch’s dystrophy, an inherited genetic eye disorder, as well as relatively common eye conditions, particularly common in people his age.  As such, the DMC concluded that it is not at least as likely as not that [Employee]‘s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his blindness.

And finally, the DMC noted that atherosclerotic peripheral vascular disease is generally not considered to be an occupational illness and that there are no accepted toxic substances that are known to cause, contribute to, or aggravate the condition.  Accordingly, the DMC concluded that it was not at least as likely as not that [Employee]‘s exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or aggravating his atherosclerotic peripheral vascular disease.

On October 16, 2008, the Jacksonville district office issued a recommended decision to accept [Employee]‘s claim under Part E of EEOICPA for the conditions of skin lesions, skin cancer, an abdominal aortic aneurism, CHF and interstitial basilar pleural parenchymal disease, and to deny his claim for blindness and atherosclerotic peripheral vascular disease. 

On October 24, 2008, FAB received written notification that [Employee] waived any and all objections to the recommended decision.  FAB has performed a search of the SEM, which confirmed the findings of the district office.  After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. [Employee] was employed at the SRS from June 18, 1952 to December 31, 1986.
  1. [Employee] was diagnosed with interstitial and right basilar pleural parenchymal disease, atherosclerotic peripheral vascular disease, blindness, emphysema, skin lesions, COPD, CHF and an abdominal aortic aneurism following exposure to toxic substances during covered employment at a DOE facility.
  1. The medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s COPD, emphysema, interstitial basilar pleural parenchymal disease, skin cancer, and skin lesions. 
  1. [Employee]‘s COPD and emphysema were significant factors in aggravating his aneurism and contributing to his CHF.
  1. There is no link between [Employee]‘s blindness or atherosclerotic peripheral vascular disease and exposure to toxic substances at the SRS.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a) (2009).

Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2).  As found above, the medical evidence establishes that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s skin cancers, skin lesions, CHF, abdominal aortic aneurism, interstitial basilar pleural parenchymal disease and COPD.  That same evidence does not establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing [Employee]‘s blindness or atherosclerotic peripheral vascular disease.

Since the evidence does not establish that [Employee] has contracted blindness or atherosclerotic peripheral vascular disease through exposure to a toxic substance at a DOE facility, they cannot be considered  covered illnesses under Part E.  I hereby deny payment of medical benefits under Part E for the claimed blindness and atherosclerotic peripheral vascular disease.  However, [Employee] is entitled to medical benefits for skin lesions, skin cancer, an abdominal aortic aneurism, CHR, COPD and interstitial basilar pleural parenchymal disease, effective July 15, 2008, under Part E of EEOICPA.  See 42 U.S.C. § 7385s-8.

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch

Medical evidence of occupational illness under Part B

EEOICPA Fin. Dec. No. 14718-2003 (Dep’t of Labor, September 30, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claims 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 claims for survivor benefits are accepted.

No decision has yet been made on your claims for benefits under Subpart E of the Act.  The adjudication of your Subpart E claims are deferred until issuance of the Interim Final Regulations.  Once a decision has been made on your claims for benefits under Subpart E, you will receive a separate decision notice.

STATEMENT OF THE CASE

On November 13, 2001, [Spouse] and [Claimant 1] each filed a Form EE-2 as the surviving spouse and surviving child of the [Employee] for benefits under Part B of the EEOICPA for COPD.   It was subsequently claimed that the employee developed chronic beryllium disease due as a result of his employment exposure at the Los Alamos National Laboratory.    

In support of the claim, the employee’s death certificate was submitted, which establishes the date of death as December 28, 1990 and [Spouse] as his surviving spouse and a birth certificate for [Claimant 1], which establishes her as a surviving child.  The employee’s medical records were also submitted, which included several chest radiograph reports, clinical medical notes demonstrating a history of a chronic respiratory disorder and an arterial blood gas report.

However, [Spouse] died prior to the completion of processing of the claim.  [Claimant 1] provided the district office with information regarding two other surviving children of the employee.

On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3] each filed a Form EE-2, seeking compensation under the Act as surviving children of the [Employee].  You claimed that the employee developed chronic beryllium disease from COPD as a result of his employment exposure at the Los Alamos National Laboratory.  You also submitted your birth certificates to establish that you are surviving children of the employee.

The Department of Energy and the Oak Ridge Institute for Science and Education (ORISE) was unable to verify the employee’s employment history. However, based upon employment evidence submitted, the Denver district office determined that the employee was employed by E.F. Olds Plumbing & Heating Company, a subcontractor for the War Department Corps of Engineers, Manhattan District.  Under the EEOICPA, the Manhattan Engineering district is considered a predecessor agency of the Department of Energy.  The district office obtained the employee’s social security earnings record, which indicated he was employed by M.M. Sundt Corporation in 1942 and E.F. Olds Plumbing & Heating Company from 1944-1945.  They also confirmed that M.M. Sundt Corporation was a subcontractor at Los Alamos National Laboratory and therefore determined that the employee did work at Los Alamos National Laboratory in 1942.

To establish a diagnosis of chronic beryllium disease prior to 1993, the record must establish an occupational or environmental history or epidemiologic evidence of beryllium in conjunction with medical evidence that contains at least three out of the five following test results:

·  Characteristic chest radiograph or computed tomography denoting abnormalities

·  A restrictive or obstructive lung physiology test or diffusion lung capacity defect

·  Lung pathology consistent with chronic beryllium disease

·  Clinical course consistent with chronic beryllium disease

·  Immunological tests showing beryllium sensitivity (skin patch or beryllium test)

The Denver district office issued a recommended decision on September 22, 2003 to deny the three surviving children claims because the medical evidence failed to support at least three out of five criteria required to establish a diagnosis of chronic beryllium disease prior to 1993.  They concluded that you had established the required clinical course consistent with chronic beryllium disease and chest radiograph   denoting abnormalities consistent with CDB.  The Final Adjudication Branch received a letter of objection from two of the claimants, requesting hearing.  On November 12, 2003, the Final Adjudication Branch issued a remand order, for consideration of the arterial blood gas report as medical evidence to establish a diagnosis of CBD.

The district office referred the case to the District Medical Consultant, who opined on January 9, 2004 that the arterial blood gas report alone was not sufficient to determine a clinical course consistent with CDB prior to 1993.  The district medical consultant also stated that the chest x-ray reports may be supportive of CBD but the findings are nonspecific.  Based upon the consultative report, the district office issued a second recommended decision to deny the claims on January 12, 2004.

You each submitted a letter of objection to the second recommended decision and requested hearing.  The hearing was held by the Final Adjudication Branch on March 24, 2004.  During the hearing, you submitted additional medical evidence from Louis M. Benevento, M.D., who stated by affidavit that he treated the employee for many years for advance COPD and emphysema, which was confirmed by pulmonary function testing.  The Final Adjudication Branch remanded the case to the district office for additional development of new medical evidence. 

The district office contacted Dr. Benevento by letter on October 20, 2004 and November 29, 2004 to request the pulmonary function reports he mentioned in his affidavit, but the doctor did not respond.  The district office determined that the affidavit by Dr. Benevento was sufficient to establish a third requirement required to establish CBD prior to 1993, a restrictive or obstructive lung physiology test or diffusion lung capacity defect.  On January 4, 2005, the Denver district office issued a recommended decision concluding that the employee was a beryllium employee, as that term is defined in 42 U.S.C. § 7384l(7), that he contracted chronic beryllium disease as a result of employment exposure.  As the eligible survivors, you are each entitled to compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384s(a).

On the dates listed below, the Final Adjudication Branch received written notification that the claimants waive any and all objections to the recommended decision:

[Claimant 1]                            January 20, 2005

[Claimant 2]                            January 20, 2005

[Claimant 3]                            January 20, 2005

After a thorough review of the case file forwarded by the Denver district office, the FAB hereby makes the following:

FINDINGS OF FACT

1.      On November 13, 2001, [Spouse] and [Claimant 1] each filed a claim as the surviving spouse and surviving child, respectively, of the employee who had COPD and CBD as a result of his employment at Los Alamos National Laboratory.

2.      The surviving spouse of the employee passed away on May 28, 2002, before her claim completed processing.

3.      On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3] each filed a Form EE-2, seeking compensation under the Act as surviving children of the employee.

4.   You have established that you are the three surviving children of the employee.

5.   You were issued recommended decisions to deny your claim on September 22, 2003 and January 12, 2004, which you  subsequently filed objections and requested hearing.

6.   The Final Adjudication Branch issued remand orders on November 12, 2003 and September 30, 2004. 

7.   You have established that the employee worked at Los Alamos National Laboratory in 1942.

8.   The potential for beryllium exposure existed at Los Alamos National Laboratory due to historical beryllium use, residual contamination and decontamination activities.

9.   The employee’s medical evidence was sufficient to establish that he suffered from a respiratory disorder consistent with chronic beryllium disease prior to 1993.  The employee medical records included chest radiograph reports with abnormalities consistent with chronic beryllium disease, medical reports demonstrating a clinical course consistent with CDB and a restrictive or obstructive lung physiology test consistent with CDB.

Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

1.      The employee was a covered beryllium employee pursuant to 42 U.S.C. § 7384l(7).

2.      Prior to his death, the employee contracted chronic beryllium disease in accordance with the criteria set forth in 42 U.S.C. §7384l(13)(B) under Part B of the EEOICPA.

3.   You have established that you are the three eligible survivors of the employee pursuant to the criteria of 42 U.S.C. §7384s(3) under Part B of the EEOICPA.

4.   You are entitled to compensation in the amount of $150,000 which is to be divided among the eligible survivors pursuant to 42 U.S.C. § 7384s(a).  Therefore, you are each entitled to compensation in the amount of $50,000.

The undersigned has thoroughly reviewed the case record and the recommended decision issued by the district office on May 13, 2004 and finds that the employee was a covered beryllium employee, as that term is defined in 42 U.S.C. § 7384l(7), that he was diagnosed with chronic beryllium disease, a specified disease under 42 U.S.C. § 7384l(8), and that the diagnosis was pursuant to 42 U.S.C. § 7384l(13).  It is the decision of the Final Adjudication Branch that the three survivor claims under Part B of the Act are accepted.

Denver, CO

Joyce L. Terry

District Manager

EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for compensation under 42 U.S.C. § 7384. 

STATEMENT OF THE CASE

On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed.  On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma. 

The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge.  A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978. 

Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer.  A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung.  The record does not contain documentation demonstrating the employee was diagnosed with lymphoma. 

To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005.  See 42 U.S.C. § 7384n(d).  NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978.  However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed.  NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim.  NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete.  Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose.  See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7. 

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer, and reported in its recommended decision that the probability the employee’s lung cancer was caused by his exposure to radiation while employed at NTS was at least 50%. 

You provided copies of the death certificates of the employee and his spouse, copies of your birth certificates showing you are the natural children of the employee, and documentation verifying your changes of names, as appropriate. 

The record shows that you ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4]) and [Claimant #5] filed claims with the Department of Justice (DOJ) for compensation under the Radiation Exposure Compensation Act (RECA).  By letter dated May 20, 2005, a representative of the DOJ reported that an award under § 4 of the RECA was approved for you; however, the award was rejected by [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]

On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma. 

On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

  1. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits. 
  1. Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors. 
  1. You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act. 
  1. The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978. 
  1. The employee was diagnosed with lung cancer on February 1, 1978. 
  1. The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS. 
  1. The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility. 

CONCLUSIONS OF LAW

The evidence of record indicates that the worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 6, 1978.  Medical documentation provided indicated the employee was diagnosed with lung cancer on February 1, 1978; however, there is no evidence showing the employee was diagnosed with lymphoma, and your claims based on lymphoma must be denied. 

After establishing that a partial dose reconstruction provided sufficient information to produce a probability of causation of 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction, and the dose reconstruction was considered complete.  See 42 C.F.R. § 82.10(k)(1). 

The Final Adjudication Branch analyzed the information in the NIOSH Report of Dose Reconstruction and utilized the NIOSH-IREP to confirm the 63.34% probability that the employee’s cancer was caused by his employment at NTS.  See 42 C.F.R. § 81.20. (Use of NIOSH-IREP).  Thus, the evidence shows that the employee’s cancer was at least as likely as not related to his employment at NTS. 

The Final Adjudication Branch notes that, in its Conclusions of Law, the recommended decision erroneously indicates the employee, [Employee], is entitled to compensation in the amount of $150,000.00; therefore, that Conclusion of Law must be vacated as the employee is deceased.  See 42 U.S.C. § 7384s(a)(1). 

The Final Adjudication Branch notes that the record shows the employee passed away on February 4, 1978.  However, his employment history indicates he worked at NTS until February 6, 1978.  Consequently, for purposes of administration of the Act, his employment is considered to have ended on February 4, 1978. 

Based on the employee’s covered employment at NTS, the medical documentation showing his diagnosis of lung cancer, and the determination that the employee’s lung cancer was “at least as likely as not” related to his occupational exposure at NTS, and thus sustained in the performance of duty, the employee is a “covered employee with cancer,” under 42 U.S.C. § 7384l.  See 42 U.S.C. § 7384l(9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2.  Further, as the record indicates there is one other potential beneficiary under the EEOICPA, you are each ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) entitled to survivor compensation under 42 U.S.C. § 7384 in the amount of $30,000.00.  As there is evidence that another survivor is a child of the employee, and potentially an eligible survivor under the Act, the potential share ($30,000.00) of the compensation must remain in the EEOICPA Fund.  See Federal (EEOICPA) Procedure Manual, Chapter 2-200.7c(2) (June 2004). 

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 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.  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 March 22, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on the conditions of prostate cancer, emphysema and possible lung cancer.  You also provided a Form EE-3 (Employment History), on which you indicated that you worked at the Weldon Spring Plant from 1956 to 1967, and that you wore a dosimetry badge.

Information obtained from a Department of Energy (DOE) representative and the Oak Ridge Institute for Science and Education database indicated that you worked as a contractor employee at the Weldon Spring Plant from July 17, 1956 to June 30, 1966.  The Weldon Spring Plant is recognized as a covered DOE facility from 1957 to 1967 and 1985 to the present (for remediation).  See Department of Energy, Office of Worker Advocacy, Facility List.

By letters dated March 31, May 5, and June 14, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but additional medical evidence was needed in order to establish a claim.  You were requested to provide documentation of a covered occupational illness, specifically, cancer.

You provided medical documentation which indicated that you received treatment for conditions including hypertension, diabetes mellitus, bronchitis and emphysema.  In addition, a hospital discharge summary report from a hospital stay from April 15 to April 16, 1993, indicated that you were admitted to the hospital for a medical procedure following a radical prostatectomy, which was performed “in order to allow the patient to be treated for his cancer of the prostate.”  The date of diagnosis of prostate cancer was not noted.

The record also includes several telephone messages, which indicate that you, with the assistance of your authorized representative, have been trying to obtain the medical records pertaining to your diagnosis of prostate cancer and the date of diagnosis, but that you have not yet received the medical records.

On July 16, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that you did not provide sufficient evidence as proof that you were diagnosed with a covered occupational illness as defined by § 7384l(15) of the Act.  See 42 U.S.C. § 7384l(15).  The district office further concluded that you were not entitled to compensation as outlined under § 7384s of the Act.  See 42 U.S.C. § 7384s.

FINDINGS OF FACT

1.      You filed a claim for employee benefits on March 22, 2004.

2.      You worked at the Weldon Spring Plant, a covered Department of Energy facility, from July 17, 1956 to June 30, 1966.

3.      You did not submit sufficient medical evidence establishing a date of diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 16, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations and that the sixty-day period for filing such objections, as provided for in section 30.310(a) has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the EEOICPA, you must establish that you were diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).

You filed a claim based on the condition of emphysema, which is not a compensable illness under Part B of the Act.  You also filed a claim based on prostate cancer and possible lung cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C. F. R. § 30.211. 

The record in this case shows that by letters dated March 31, May 5, and June 14, 2004, you were requested to provide the required information to prove a medical condition.  While a hospital discharge report dated April 16, 1993, contains a reference to your treatment for prostate cancer, the evidence of record does not contain a date of diagnosis of this cancer.  Without the date of prostate cancer diagnosis, it is not possible to determine if this cancer was related to your employment at the Weldon Spring Plant.  In regard to you claim for possible lung cancer, the medical documentation of record does not indicate a diagnosis of lung cancer. 

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by the preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in section 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 regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

The record in this case shows that you did not provide sufficient medical documentation of a covered occupational illness under the Act.  Therefore, your claim must be denied.

For the 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

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 55834-2004 (Dep’t of Labor, September 21, 2004)

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.  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 March 25, 2004, you filed a Form EE-1 (Claim for Benefits under EEOICPA), seeking compensation based on beryllium sensitivity and chronic silicosis.  You indicated on Form EE-3 (Employment History) that you worked at the Beryllium Co., in Hazleton, PA, from 1970 to 1971, and at the Avco Corp. (Trexton) in Stratford, CT, from 1960 to 1970.  The Beryllium Corporation of America (Hazleton) is recognized as a beryllium vendor from 1957 to 1979.  See Department of Energy, Office of Worker Advocacy Facilities List.

By letters dated March 30, and April 30, 2004, the Cleveland district office notified you of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis.  You were also advised that, to be considered for entitlement to compensation based on chronic silicosis, you would have to provide evidence that you had worked during the mining of tunnels at Department of Energy facilities in Nevada or Alaska for tests or experiments related to an atomic weapon.  By letter dated May 28, 2004, you were again advised of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity.  No medical or employment evidence was received.

On July 8, 2004, the district office recommended denial of your claim for benefits, concluding that you are not a covered employee with chronic silicosis because you were not exposed to silica in the performance of duty as required by 42 U.S.C. § 7384r(c).  The district office also recommended denial of your claim because you did not submit sufficient medical evidence that you had been diagnosed with a covered occupational illness as defined 42 U.S.C. § 7384l(15).  The district office further concluded that you were not entitled to compensation as set forth in 42 U.S.C. § 7384s.

FINDINGS OF FACT

  1. On March 25, 2004, you filed a claim for benefits.
  2. You did not provide the medical evidence required to establish a diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision issued by the district office on July 8, 2004.  I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, the 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/or silicosisSee 42 U.S.C. § 7384l(15).  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).

You filed a claim based on beryllium sensitivity and chronic silicosis.  The regulations provide that a claim based on beryllium sensitivity must include an abnormal Lymphocyte Proliferation Test performed on either blood or lung lavage cells.  See 20 C.F.R. § 30.207(b).  Similarly, a claim based on chronic silicosis must include a written diagnosis of that condition, signed by a medical doctor, and must be accompanied by either a chest x-ray interpreted by a B reader, or the result of a CAT or other imaging technique, or a lung biopsy, consistent with silicosis.  Although you were advised to provide the medical documentation required to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis, no such evidence was received.

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The regulations state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category.  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 regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Program all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).

Therefore, your claim must be denied because you did not submit evidence sufficient to establish that you had been diagnosed with a covered occupational illness as defined by 42 U.S.C. § 7384l(15).

For the 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.

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 57599-2005 (Dep’t of Labor, January 4, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under Part B of 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 set forth below, your claims are accepted.

STATEMENT OF THE CASE

On May 17, 2004, [Claimant 1] and [Claimant 2] each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  Your claims were based, in part, on the assertion that your father was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Forms EE-2 that you were filing for the employee’s acute myelomonocytic leukemia (AML).  The evidence shows that all medical records have been destroyed; therefore, per office procedure, the employee’s death certificate is sufficient to establish that he was diagnosed with AML.

On the Form EE-3, Employment History, you stated the employee was employed by A. S. Shulman Electric, a subcontractor of C. P. Schwartz, at the gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of June 1951 to 1955.  Department of Energy records, Social Security records, and employment affidavits confirm employment by C. P. Schwartz and F. H. McGraw from at least October 1, 1952 to December 31, 1953. 

On November 17, 2004, the Jacksonville district office issued a decision recommending that you, as eligible survivors of the employee, are entitled to compensation in the amount of $75,000 each, for the employee’s AML.  You each submitted written notification that you waive any and all objections to the recommended decision. 

In order for the employee to qualify as a member of the Special Exposure Cohort (SEC) under § 7384l(14)(A) of the Act, the following requirements must be satisfied:

(A)     The employee 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 – –

(i)                  was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii)                worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  42 U.S.C. § 7384l(14)(A).

Department of Energy records, Social Security records, and employment affidavits confirm employment for at least 250 days from at least October 1, 1952 to December 31, 1953 at the Paducah GDP.  You indicated on the Form EE-3 (Employment History) that you did not know whether your father wore a dosimetry badge.  According to the Department of Energy sponsored report entitled Exposure Assessment Project at Paducah Gaseous Diffusion Plant, released in December 2000, Section 4.2.1.1 External Dosimeters states:   “Prior to 1961, select groups of employees considered to have the potential for radiation exposures were issued film badges.  After [July 1] 1960, all employees were issued two combination security/film badges.”  Because the period of your father’s employment fell within the time that some or all employees at the Paducah GDP were issued dosimetry badges, I find that the employee’s employment at the Paducah GDP satisfies the requirements under § 7384l(14)(A) of the Act.  42 U.S.C. §7384l(14)(A).

FINDINGS OF FACT

1.  On May 17, 2004, [Claimant 1] and [Claimant 2] each filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  

2.  The evidence is sufficient to establish that the employee was diagnosed with acute myelomonocytic leukemia (AML).

3.  Acute myelomonocytic leukemia (AML) is a specified cancer under Part B of the Act and the implementing regulations.  42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(1).

4.  The employee was employed at the gaseous diffusion plant in Paducah, Kentucky for the period of at least October 1, 1952 to December 31, 1953.  The employee is a covered employee as defined in the Act.  42 U.S.C. § 7384l(1).

5.  The employee is a member of the Special Exposure Cohort, as defined in the Act.  42 U.S.C. § 7384l(14)(A).

6.  In proof of survivorship, you submitted birth certificates, documentation of name changes, and the death certificates of the employee and his spouse.   Therefore, you have established that you are survivors as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).

7.  The district office issued the recommended decision on November 17, 2004.

8.  You each submitted written notification that you waive any and all objections to the recommended decision. 

CONCLUSIONS OF LAW

I have reviewed the record on this claim and the recommended decision issued by the district office on November 17, 2004.  I find that the employee is a member of the Special Exposure Cohort, as that term is defined in the Act, and that the employee’s acute myelomonocytic leukemia (AML) is a specified cancer under Part B of the Act and the implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A); 20 C.F.R. § 30.5(dd)(1).

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are each entitled to one-half of the maximum $150,000 award, in the amount of $75,000 each, pursuant to Part B of the EEOICPA.  42 U.S.C. §§ 7384s(a), 7384s(e)(1)(B). 

Jacksonville, FL

Mark Stewart

Hearing Representative