Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Covered Employment. We hope these decisions are helpful. Please add your experiences in the comments section.
Covered Employment
EEOICPA Fin. Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning your claim for survivor benefits under Part B 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, your claim for survivor benefits based on acute myelocytic leukemia (acute myelomonocytic leukemia) is denied.
STATEMENT OF THE CASE
On August 7, 2001, you filed a claim for survivor benefits under Part B of EEOICPA, Form EE-2, as the spouse of [Employee], hereinafter referred to as the employee. On July 31, 2002, you also filed a claim for assistance under Part D of EEOICPA with the Department of Energy (DOE). You identified acute myelocytic leukemia (acute myelomonocytic leukemia) as the medical condition of the employee resulting from his employment at an atomic weapons facility.
On Form EE-3 you indicated that the employee worked as a laboratory technician for Lucius Pitkin at the Allied Chemical facility in Metropolis, Illinois from July 1978 to July 1985. The Allied Chemical Corporation Plant in Metropolis, Illinois is a covered atomic weapons employer (AWE) facility from 1959 to 1976 and covered for residual radiation contamination from 1977 to July 2006.[1]
On February 28, 2003, DOE denied your claim for assistance under Part D, because the employee’s work at the Allied Chemical Corporation Plant was at an AWE rather than a DOE facility. On April 14, 2003, the FAB issued a final decision denying your claim for survivor benefits under Part B because the employee did not have covered employment under the EEOICPA. The FAB found that the employee’s period of employment at the Allied Chemical Corporation Plant was outside the covered years for that facility.
Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E. Because of this, DEEOIC proceeded to adjudicate your Part D claim under Part E and on May 17, 2006, the FAB issued a final decision denying your claim for survivor benefits under Part E because the employee was not employed by a DOE contractor at a DOE facility. As part of the 2004 amendments to EEOICPA, Congress amended the definition of an “atomic weapons employee” to include employees of subsequent owners or operators of an AWE facility beyond the time period during which weapons-related work occurred, provided that the National Institute for Occupational Safety and Health (NIOSH) had found that there was the potential for residual radiation contamination at the facility. NIOSH subsequently determined that the Allied Chemical Corporation facility had the potential for residual radiation contamination from 1977 to July 2006. This period of residual contamination resulted in the covered period at this particular facility being expanded.
On June 5, 2007, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a Director’s Order vacating the FAB’s April 14, 2003 final decision and reopening your claim for benefits under Part B. This order instructed the district office to determine if the employee’s employment by Lucius Pitkin at the Allied Chemical Corporation facility qualified as employment by a “subsequent owner or operator” at that AWE facility under Part B of EEOICPA. As part of this further development, the district office received a June 20, 2007 letter from I. Boyarsky, the controller of Lucius Pitkin, Inc., in which he indicated that Lucius Pitkin, Inc. was hired as an independent observer at the facility to weigh and sample ore and was never a co-owner nor operator of the Allied Chemical Corporation facility.
On July 17, 2007, the district office issued a recommended decision to deny your claim for benefits under Part B because the employee was not employed by Allied Chemical or by a subsequent owner or operator of the Allied Chemical Corporation facility, and thus his employment was not covered under EEOICPA. On August 6, 2007, you objected to the recommended decision and attached a copy of the Director’s Order. On August 20, 2007, the FAB issued a remand order returning your claim to the district office with instructions to refer the case file to the Branch of Policies, Regulations and Procedures (BPRP) within DEEOIC for a determination on whether the employee’s work with Lucius Pitkin, Inc. at the Allied Chemical Corporation facility qualified him as an atomic weapons employee under Part B of EEOICPA. Pursuant to that remand order, the district office referred your case file to the BPRP. On November 26, 2007, the BPRP determined that the employee’s employment with Lucius Pitkin, Inc. at the Allied Chemical Corporation facility did not qualify him as an atomic weapons employee because Lucius Pitkin, Inc. was not a subsequent owner or operator of that AWE facility.
On December 13, 2007, the district office issued another recommended decision to deny your claim for survivor benefits under Part B of EEOICPA, on the ground that the employee’s employment by Lucius Pitkin, Inc. at the Allied Chemical Corporation facility did not qualify him as an “atomic weapons employee,” as that term is defined in EEOICPA. Accompanying the recommended decision was a letter explaining your rights and responsibilities in regard to the recommended decision.
OBJECTIONS
On January 14, 2008, the FAB received your January 8, 2008 letter objecting to the recommended decision and requesting a hearing to air your objections, which was held on March 19, 2008 in Mount Vernon , Illinois. You and Virginia Griffey were present at this hearing and presented testimony. Your objections to the recommended decision are summarized below:
Objection No. 1: You indicated that the employee worked for Lucius Pitkin, Inc. but worked at the Allied Chemical Corporation facility, and because he was checking the moisture content of the dry uranium, which was an activity that was vital to the operation of the plant, then his employment should be covered because he should be considered an operator of the facility.
Objection No. 2: You indicated that Allied Chemical supplied the employees of Lucius Pitkin, Inc. with clothing, gloves, hard-hats and shoes, laundered their clothing and provided and maintained the respirators used by both Allied Chemical and Lucius Pitkin, Inc. employees.
Objection No. 3: You indicated that the employee’s doctors advised that the employee’s cancer was caused by him handling raw uranium.
Objection No. 4: You indicated that it is unfair to compensate employees of the United States Enrichment Corporation (USEC) who worked at the Paducah Gaseous Diffusion Plant or Allied Chemical Company employees who worked in the same building as the employee, had the same exposures as the employee and who also contracted cancer, but not to compensate the employee merely because he was not working for a covered employer.
Your first objection concerns whether the employee’s work duties qualified him as an operator of this facility. The EEOICPA provides that an “atomic weapons employee” includes an individual who was employed by an AWE 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. It also includes an individual employed by an AWE or subsequent owners or operators of an AWE facility during a period of significant residual radiation contamination outside of the period in which weapons-related production occurred. See 42 U.S.C. § 7384l(3).
The period of the employee’s employment at this AWE facility is not during the period when weapons-related production occurred; however, it was during the residual radiation period when employees of the AWE, or subsequent owners or operators of the facility, are covered. There is no evidence that the employee was employed by the Allied Chemical Corporation or a subsequent owner or operation of this AWE facility. The employee was working for Lucius Pitkin, Inc. and his duties at the Allied Chemical Corporation facility were performed pursuant to a contract between the Allied Chemical Corporation and Lucius Pitkin, Inc. The controller of Lucius Pitkin, Inc. has confirmed that Lucius Pitkin, Inc. was not an operator or subsequent owner of the Allied Chemical Corporation facility. The determination of whether a contractor of an AWE is an owner or operator of an AWE facility is not based on the duties performed by an individual employee, but rather by the nature of the contract. The evidence of record does not establish that the employee worked for an AWE, a subsequent owner of the AWE facility or for a company that was contracted to operate this facility.
Your second objection concerns whether the employee should be considered an employee of Allied Chemical Corporation for purposes of EEOICPA. When it enacted EEOICPA, Congress provided specific criteria that must be met to establish that an individual qualifies as an “atomic weapons employee” in § 7384l(3). Those criteria do not include employees of contractors or subcontractors of an AWE, employees of wholly-owned subsidiaries of an AWE, or employees who are considered “shared,” “on loan,” “borrowed servants,” or “statutory employees.” See EEOICPA Fin. Dec. No. 4894-2004 (Dep’t of Labor, March 8, 2005); EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003); EEOICPA Fin. Dec. No. 13183-2003 (Dep’t of Labor, October 14, 2003). The evidence of record simply does not establish that the employee worked for an AWE. The Department of Labor must administer EEOICPA as enacted by Congress and cannot alter the necessary criteria to qualify as an atomic weapons employee under EEOICPA.
Your third objection concerns the cause of the employee’s cancer. EEOICPA provides benefits for specific occupational illnesses like cancer for an employee (or his survivors) who is considered to be a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(9), 7384n. The cause of an employee’s cancer does not determine if that employee has covered employment. The evidence of record does not establish that the employee had any employment that was covered under EEOICPA.
Your fourth objection concerns the distinguishing criteria set out by Congress that are prerequisites to qualify for benefits based on cancer for atomic weapons employees, DOE employees working at covered DOE facilities, or DOE contractor or subcontractor employees working at covered facilities under EEOICPA. The Department of Labor has no authority to alter those statutory criteria. EEOICPA regulations place the burden of establishing covered employment upon the claimant. You have not submitted evidence that establishes that the employee has covered employment under EEOICPA.
After reviewing the evidence of record in your claim file forwarded by the district office, I hereby make the following:
FINDINGS OF FACT
- You filed a claim for survivor benefits under Part B of EEOICPA on August 7, 2001 as the spouse of the employee.
- You alleged that the employee worked for Lucius Pitkin, Inc. at the Allied Chemical Corporation facility from July 1978 to July 1985.
- The Allied Chemical Corporation facility is an AWE facility from 1959 to 1976, and also covered for residual radiation contamination from 1977 to July 2006.
- Lucius Pitkin, Inc. is not an AWE, a subsequent owner of the Allied Chemical Corporation facility, or a subsequent operator of that AWE facility.
- You have not submitted evidence that the employee was employed by an AWE at an AWE facility, or that the employee worked for DOE or for a DOE contractor or subcontractor at a DOE facility.
Based upon these facts, the undersigned makes the following:
CONCLUSIONS OF LAW
Part B of EEOICPA provides benefits to covered employees working at covered facilities who sustain an “occupational illness” as a result of exposure during the performance of duty at those facilities. See 42 U.S.C. §§ 7384l(1), 7384n and 7384s. In order to claim benefits under Part B of EEOICPA for cancer, the evidence must establish that the employee was either a DOE employee or a DOE contractor employee working at a DOE facility, or an atomic weapons employee working at an AWE facility who contracted cancer due to exposure to radiation in the performance of duty. See 42 U.S.C. §§ 7384l(9), 7384n and 7384s.
You claimed that the employee contracted cancer as a result of his employment at the Allied Chemical Corporation facility. However, EEOICPA sets out specific criteria for an employee to qualify as an “atomic weapons employee.” An “atomic weapons employee” is defined an individual who was employed by an AWE 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. It is also defined as an individual employed by an AWE or a subsequent owner or operator of an AWE facility during a period of significant residual radiation contamination outside of the period in which weapons-related production occurred. 42 U.S.C. § 7384l(3). Further, EEOICPA defines an “an atomic weapons employer” as an entity (other than the United States) that processed or produced for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling, and is designated by the Secretary of Energy as an AWE for the purposes of EEOICPA. 42 U.S.C. § 7384l(4). The term “atomic weapons employer facility” means a facility owned by an AWE 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. 42 U.S.C. § 7384l(5).
A determination regarding your entitlement to benefits must be based on the totality of the evidence. You indicated that the employee worked at the Allied Chemical Corporation facility. That facility is a covered “atomic weapons employer facility” as defined by 42 U.S.C. § 7384l(5). You claimed that the employee worked for Lucius Pitkin, Inc. However, Lucius Pitkin, Inc is not an AWE because it has not been designated as such by the Secretary of Energy, nor is it a subsequent owner or operator of the Allied Chemical Corporation facility. Therefore, the employee does not qualify as an “atomic weapons employee” because he was not employed by an AWE during a period when that employer was processing or producing, for the use by the U.S., material that emitted radiation and was used in the production of an atomic weapon, nor was he employed by a subsequent owner or operator of the AWE facility during a period of residual radiation contamination. I have reviewed the evidence of record and it does not establish that the employee has employment covered under EEOICPA.
Section 30.110(c) of the EEOICPA regulations provides that any claim that does not meet all of the criteria for at least one of the categories including a “covered Part B employee” (as defined in § 30.5(p)) set forth in the regulations must be denied. See 20 C.F.R. §§ 30.5(p), 30.110(b), and 30.110(c). As you have not established that the employee is a covered Part B employee (because the evidence does not establish that the employee worked for an AWE), your claim for survivor benefits based on the employee’s acute myelocytic leukemia (acute myelomonocytic leukemia) under Part B of EEOICPA must be denied.
Washington D.C.
William J. Elsenbrock
Hearing Representative
Final Adjudication Branch
[1] See DOE’s Office of Health, Safety & Security facility list on the agency website at: http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm. (retrieved July 11, 2008).
EEOICPA Fin. Dec. No. 4898-2004 (Dep’t of Labor, March 8, 2005)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This decision of the Final Adjudication Branch (FAB) concerns your claim 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). For the reasons stated below, your claim for benefits is denied.
STATEMENT OF THE CASE
On August 9, 2001, you filed a claim for benefits under Part B of the EEOICPA as the surviving spouse of [Employee] and identified malignant melanoma as the diagnosed condition being claimed. You submitted an Employment History Form (EE-3) on which you stated that your husband was employed by Allegheny Ludlow Steel from March 27, 1966 to June 1, 1985, by Nuclear Materials and Equipment Corp. in February 1966, by Wilson Rearich Hauling from 1963 to 1964 and by MESLA Machine Co. (you did not provide dates or the name of a covered facility in regards to this employment). You stated that you did not know if your husband wore a dosimetry badge while employed by Nuclear Materials and Equipment Corp. and you stated that your husband did not wear a dosimetry badge while employed by the other employers. As medical evidence you submitted the following:
A copy of Dr. Harry Gerstbrein’s final autopsy report in which he diagnosed your husband with “malignant melanoma arising in right middle lobe of lung, metastatic melanoma to upper lobes of both lungs, and metastatic melanoma to terminal ileum and perirectal area (history).”
A copy of Dr. Allen T. Lefor’s July 4, 1985 hospital admission report in which he states your husband was diagnosed with malignant melanoma by biopsy on May 24, 1985.
You submitted a copy of your marriage certificate which shows that you were married to [Employee] on October 27, 1964 and a copy of your husband’s death certificate which shows that he died on January 16, 1986. As evidence of employment, you submitted a copy of your husband’s 1966 W2 from Nuclear Decontamination Corp. On February 19, 2002, Department of Energy (DOE) representative Roger Anders advised the district office, via Form EE-5, that the DOE did not have employment information regarding your husband. On August 30, 2003, the district office obtained a copy of your husband’s Social Security Administration statement of earnings which indicate that he received earnings from Nuclear Decontamination Corp. in the first quarter of 1966 and earnings from Allegheny Ludlum Corporation from 1979 to 1985.
Based upon the evidence of record, the district office issued a recommended decision on June 30, 2004, in which it concluded that you did not establish that [Employee] was a covered employee under 42 U.S.C. § 7384l(1), as 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 42 U.S.C. §§ 7384l(4), 7384l(11) and 7384l(12), respectively. It was the district office’s recommendation that your claim be denied based on its conclusions.
OBJECTIONS
On August 13, 2004, you wrote to the FAB, advised that you disagreed with the recommended decision and requested a hearing. You stated in your letter that it was your position that Nuclear Decontamination Corp. was a covered facility because it merged with Nuclear Materials and Equipment Corp. on May 13, 1974. You stated that the merger was more than sufficient to show that “the two companies were initially operating out of the same Apollo facility and eventually became one and the same.” You also stated that at the time your husband began work at Nuclear Decontamination Corp. the same person was doing the hiring for both companies.
A hearing was held on November 10, 2004 in Pittsburgh, PA. You testified at the hearing that Nuclear Decontamination Corp. and Nuclear Material Equipment Corp. (NUMEC) had the same address in Apollo, PA, worked on the same parcel of land, and used the same employment office. Hearing Transcript (HT)-8. You also testified that the merger documents between Decontamination Corp. and NUMEC show that the same person owned both companies because the same person signed as president of both companies in the merger documents. HT-10. You submitted the following exhibits as evidence to support your claim:
Exhibit 1 Commonwealth of Pennsylvania Department of State Corporation Bureau Articles of Merger which document the April 26, 1974 merger between NUMEC and Nuclear Decontamination Corp., June 23, 1959 Nuclear Decontamination Corp. Articles of Incorporation and Certificate of Incorporation.
Exhibit 2 Commonwealth of Pennsylvania Department of State Corporation Bureau Articles of Merger which document the January 9, 1975 merger between NUMEC and the Babcock & Wilcox Company, January 9, 1975 NUMEC Certificate of Withdrawal from doing business in PA, April 12, 1967 NUMEC application for Certificate of Authority, and April 12, 1967 Certificate of Authority issued to NUMEC to transact business in PA.
Exhibit 3 Copy of Pennsylvania Department of State microfilm document showing that Nuclear Decontamination Corp. merged with NUMEC.
The merger documents you submitted indicate that Nuclear Decontamination Corp. (NDC) was a wholly-owned subsidiary of NUMEC. (The merger documents show that at the time of the merger, NUMEC owned all of NDC’s outstanding shares of Common Stock.) Wholly-owned subsidiaries are companies in their own right that share an affiliation with a parent company, but operate as a separate functional entity and provide for employees in accordance with their own distinct corporate administrative policies and regulations. Due to the separate and distinct nature of a wholly-owned subsidiary and the strict regulatory and statutory definition of an Atomic Weapons Employer (AWE) facility, a wholly owned subsidiary of a DOE-designated AWE that is not itself designated as an AWE by the DOE can not be considered an AWE.[1]
After considering the written record of the claim, your letter of objection and the testimony presented at the hearing, the FAB hereby makes the following:
FINDINGS OF FACT
1. You filed a claim for survivor benefits under Part B of the EEOICPA on August 9, 2001.
2. Your husband was employed at Nuclear Decontamination Corp. in the first quarter of 1966 and at Allegheny Ludlum Corporation from 1979 to 1985.
3. Your husband was employed at Allegheny Ludlum Steel subsequent to the period it was a designated covered atomic weapons employer. In its June 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, the National Institute for Occupational Safety and Health (NIOSH) determined that there was little potential for significant residual contamination outside of the period in which weapons-related production occurred.
4. Nuclear Decontamination Corp. is not a covered facility under the EEOICPA. While NDC may have been a wholly-owned subsidiary of NUMEC, it was a separate, distinct corporation at the time of your husband’s employment.
5. Your husband was diagnosed with malignant melanoma on May 24, 1985.
6. Your husband died on January 16, 1986 due to malignant melanoma.
7. You are the surviving spouse of [Employee].
Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:
CONCLUSIONS OF LAW
Section 30.310(a) of the EEOICPA 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, including the Health and Human Service’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). At your request a hearing was held on November 10, 2004.
Part B of the Energy Employees Occupational Illness Compensation Program Act was established to provide compensation benefits to covered employees (or their eligible survivors) who have been diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for Department of Energy and certain of its vendors, contractors and subcontractors. “Occupational illness” is defined in § 7384l(15) of the EEOICPA, as a covered beryllium illness, cancer referred to in section 7384l(9)(B)[2] of this title, specified cancer, or chronic silicosis, as the case may. 42 U.S.C. §§ 7384l(15), 7384l(9)(B). To be eligible for compensation for cancer under Part B of the EEOICPA, an employee either must be: a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as like as not related to such employment”), after beginning such employment. See 42 U.S.C. § 7384l(9)(2); 20 C.F.R. § 30.210.
The evidence of record establishes that your husband was employed by Allegheny-Ludlum Steel from 1979 to 1985. Allegheny-Ludlum Steel was a covered Atomic Weapons Employer from 1950 to 1952.[3] Pursuant to 42 U.S.C. § 7384l(3), an “atomic weapons employee” is defined as:
(A) 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.
(B) An individual employed–
(i) at a facility with respect to which the National Institute for Occupational Safety and Health, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”, or any update to that report, found that there is a potential for significant residual contamination outside of the period in which weapons-related production occurred;
(ii) by an atomic weapons employer or subsequent owner or operators of a facility described in clause (i); and
(iii) during a period, as specified in such report or any update to such report, of potential for significant residual radioactive contamination at such facility.
The June 2004 NIOSH Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, does not support a period for potential significant residual contamination at Allegheny Ludlum Steel subsequent to the covered period; therefore your husband’s employment at that facility is not covered employment under the EEOICPA. Any work performed by NDC for NUMEC during the period your husband was employed, by NDC, would be viewed as work performed by a contractor of a designated AWE.[4] AWE contractor employees are not covered under the EEOICPA. See 42 U.S.C. §§ 7384l(1), 7384l(3), 7384l(4) and 7384l(5).
Because you did not submit evidence that establishes your husband was a “covered employee with cancer” as defined at § 7384l(9) of the EEOICPA, your claim for benefits is denied. 42 U.S.C. § 7384l(9).
Washington, DC
Thomasyne L. Hill
Hearing Representative
Final Adjudication Branch
[2] §7384l(9)(B). An individual with cancer specified in subclause (I), (II), or (III) of clause (ii), if and only if that individual is determined to have sustained that cancer in the performance of duty in accordance with section 7384n(b). Clause (ii) references DOE employees, DOE contractor employees and atomic weapons employees who contract cancer after beginning employee at the required facility.
[3] U.S. Department of Energy. Allegheny-Ludlum Steel. Time period: 1950-1952. Worker Advocacy Facility List. Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm. [retrieved November 9, 2004].
[4] EEOICPA Bulletin No. 04-12 (issued September 16, 2004).
EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006)
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 or the Act), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim for benefits under Part E of the Act is denied.
STATEMENT OF THE CASE
On August 1, 2003, you filed a Form EE-2, Claim for Survivor Benefits, and a Request for Review by a Physicians Panel for the brain cancer of your late father, [Employee], hereinafter referred to as “the employee.” The death certificate lists the cause of death on July 25, 2001 as malignant brain tumor with metastases. In support of your claim for survivorship, you did not submit a birth certificate. The death certificate indicates that the employee was divorced at the time of death.
On the form EE-3, Employment History, you stated the employee was employed by Gardinier, Inc. and Cargill Fertilizer, Inc. in Bartow, Florida, from 1970 to March 2000. The district office verified employment with Gardinier and Cargill from December 1969 to March 2000. The U.S. Phosphoric Plant Uranium Recovery Unit[1] in Tampa, Florida, was a covered atomic weapons employer from 1951 to 1954 and from 1956 to 1961, prior to the employee’s employment there.
On February 9, 2004, the FAB issued a final decision to deny compensation to you under Part B of the Act, because you did not establish covered employment. A request for reopening was denied on June 13, 2005. March 23, 2006, the Jacksonville district office issued a recommended decision concluding that your claim for benefits under Part E of the Act should be denied. The recommended decision was returned by the U.S. Postal Service as undeliverable. The recommended decision was reissued to the correct address on April 13, 2006. The recommended decision informed you that you had sixty days to file any objections, and that period ended on June 12, 2006. You have not filed an objection to the recommended decision. After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:
FINDINGS OF FACT
1. You filed a claim for survivor benefits under the Act based on the brain cancer of the employee.
2. You have not submitted evidence to establish you are a child of the employee.
3. Employment at a covered DOE facility has not been verified.
Based on the above-noted findings of fact in this claim, the FAB 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) (2005). If the claimant does not file a written statement that objects to the recommended decision 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 eligibility criteria for claims under Part E of EEOICPA are discussed in § 30.230 of the regulations, which state that “the employee is a Department of Energy contractor employee as defined in § 30.5(w). . . .” 20 C.F.R. § 30.230(a). Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by: (i) an entity that contracted with the DOE 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. 20 C.F.R. § 30.5(w); 42 U.S.C. § 7384l(11).
I have reviewed the evidence of file and the recommended decision of the Jacksonville district office. Based upon a review of the case file materials, there is insufficient evidence to establish employment at a covered facility during a covered period. Furthermore, employees of atomic weapons employers are not DOE contractor employees.
Since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under the Act, and the claim for compensation is denied. 42 U.S.C. §§ 7385s-4(c) and 7385s-3(a).
Jacksonville, FL
Sidne M. Valdivieso, Hearing Representative
Final Adjudication Branch
[1] Other names for the plant were Gardinier, Inc.; Cargill Fertilizer, Inc.; and U.S. Phosphoric Products Division of The Tennessee Corp.
Beryllium vendors
EEOICPA Fin. Dec. No. 23005-2002 (Dep’t of Labor, July 31, 2007)
NOTICE OF FINAL DECISION FOLLOWING
REVIEW OF THE WRITTEN RECORD
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for benefits under Part B for chronic beryllium disease (CBD) is accepted. A copy of this decision is being sent to the authorized representative.
STATEMENT OF THE CASE
On February 19, 2002, the employee filed a Form EE-1 claiming benefits for CBD under Part B of EEOICPA with the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC). In an accompanying employment history, the employee indicated that he had worked for the Coors Porcelain Company (a beryllium vendor that is now known as CoorsTek, Inc.) in Golden, Colorado from June of 1983 through 1995, and alleged that he had been exposed to residual beryllium oxide contamination during the period that he worked in Building 16. The employee also submitted a number of medical reports in which he was diagnosed with CBD, including a February 6, 1990 report that related the employee’s history of working as a punch press operator in Building 16 for the first six months of his employment (June through December of 1983), and that his regular daily duties included sweeping up throughout all of Building 16.
By letter dated March 1, 2002, the Denver district office informed the employee that the entire period of his alleged employment with the Coors Porcelain Company took place after that beryllium vendor had ceased processing or producing beryllium for the Atomic Energy Commission (AEC) in 1975, and asked him to submit any evidence he had that might enable it to conclude that the beryllium vendor had continued to process or produce beryllium for the AEC (or any of its successor agencies) after 1975. In a March 21, 2002 response, the employee’s representative disagreed with the suggestion in the district office’s letter that the scope of coverage for beryllium vendor employees was limited to the period during which the vendor was producing or processing beryllium for sale to, or use by, the Department of Energy (DOE) or its predecessor agencies, and argued that the employee should be considered a “covered beryllium employee” under § 7384l(7)(C) of EEOICPA because he was apparently exposed to beryllium in Building 16 while he was cleaning up residual beryllium contamination from its AEC work. In support of this argument, the representative submitted additional medical evidence and a number of documents from the employee’s prior litigation in the District Court for Jefferson County, Colorado, Civil Action No. 96-CV-2532 (Division 5), against both the Coors Porcelain Company and Brush Wellman, Inc.: (1) a deposition exhibit identifying the time periods between 1960 and 1985 during which different work projects and/or departments of the Coors Porcelain Company had been located in Building 16; (2) excerpts from a deposition transcript in which another employee of the Coors Porcelain Company described working in Building 16; (3) Coors Porcelain Company documents concerning beryllium work that was done in Building 16 and the potential for exposure to residual beryllium, as well as both internal and external communications regarding the remediation and demolition of Building 16 by Morrison-Knudson Engineers, Inc. during 1985; and (4) a May 28, 1985 report of a sampling study of beryllium residues in Building 16 performed by Morrison-Knudson Engineers, Inc.
On May 3, 2002, the Denver district office acknowledged receipt of the representative’s March 21, 2002 response and repeated its earlier request that he submit any evidence in his possession demonstrating that the beryllium vendor in question had continued to process or produce beryllium for the AEC (or DOE) beyond 1975. In a June 17, 2002 reply, an associate of the employee’s representative noted that the scope of coverage under EEOICPA extended to “a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy.” (emphasis in original) On June 28, 2002, the Denver district office received additional factual evidence from the employee’s representative, including a number of complaints that had been filed in the employee’s state court litigation[1], an undated order that dismissed the Coors Porcelain Company from that suit, and a June 20, 2002 order that subsequently dismissed the suit against the remaining defendant, Brush Wellman, Inc.
On September 12, 2002, the Denver district office issued a recommended decision to deny the employee’s claim on the ground that he was not a “covered beryllium employee” because he was employed at the Coors Porcelain Company after 1975, and therefore he was not employed during “a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy” or any of its predecessor agencies.
Neither the employee nor his representative filed any objections to the September 12, 2002 recommended decision, and on February 20, 2003 the FAB issued a final decision denying the claim. In that decision, the FAB noted that the employee had not filed any objections to the recommended decision as permitted under 20 C.F.R. § 30.310 and affirmed the Denver district office’s finding that the employee was not a “covered beryllium employee” pursuant to 42 U.S.C. § 7384l(7)(C) because he was not employed by a beryllium vendor at a beryllium vendor facility during “a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy.”
On March 27, 2003, the employee’s representative filed a request for reconsideration of the FAB’s February 20, 2003 final decision. In support of his request, the representative argued that while the employee did not work at a beryllium vendor facility “during a period of time in which ongoing production and processing of beryllium occurred,” he did “work at such a facility (Coors Porcelain) while there was ongoing remediation of residual beryllium contamination resulting from processing of beryllium for the DOE.” Therefore, argued the representative, the employee should “be considered a ‘covered beryllium employee’ pursuant to 42 U.S.C. § 7384l(7)(C).” On May 20, 2003, the FAB issued an order denying the request for reconsideration of its February 20, 2003 final decision on the ground that “no evidence of a contractual relationship during the claimed period of employment was submitted.”
On February 15, 2005, the employee filed a petition in the United States District Court for the District of Columbia, seeking review of the FAB’s final decision on his Part B claim (Civil Action No. 1:05-CV-325). Shortly thereafter, on April 8, 2005, the Director of DEEOIC issued an order that vacated the FAB’s February 20, 2003 final decision and reopened the employee’s claim for both further development and the issuance of new recommended and final decisions. That order specifically directed the Denver district office to consider whether the employee was a “covered beryllium employee,” as that term is defined in EEOICPA, because he had worked at the Coors Porcelain Company during a period of environmental remediation. Shortly after the Director issued his order, the employee voluntarily dismissed his petition.
In an August 5, 2005 response to a request for information from the Denver district office, CoorsTek, Inc. submitted a number of documents that it had obtained from DOE through a Freedom of Information Act request. These documents related to the environmental remediation of Building 16, as well as the beryllium work that the Coors Porcelain Company performed for the AEC. They established that the former site of Building 16 was now the location of a parking lot, and generally described the history of nuclear and beryllium work that was carried out in Building 16 from its construction in 1960 through its remediation and demolition by Morrison-Knudson Engineers, Inc. in 1985.
On September 28, 2005, the Denver district office issued a new recommended decision denying the employee’s Part B claim on the ground that he was not a “covered beryllium employee” under EEOICPA. The recommended decision found that the employee was not employed by a beryllium vendor at a beryllium vendor facility during a time when the facility was engaged in activities related to production or processing of beryllium for sale to, or use by, DOE, “including [under the Secretary’s regulations] periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE.”
On November 21, 2005, the employee’s representative filed objections to the September 28, 2005 recommended decision with the FAB and argued that the employee’s work at the beryllium vendor’s facility during a period of environmental remediation was related to the production or processing of beryllium for sale to, or use by, DOE. On April 18, 2006, the FAB issued another final decision in which it denied the employee’s claim on the ground that, pursuant to 20 C.F.R. § 30.205(a)(2)(iii) (2005)[2], only environmental remediation of a beryllium vendor’s facility that is undertaken pursuant to a contract between that vendor and DOE is considered to be an activity “related to the production or processing of beryllium” for the purpose of meeting the definition of “covered beryllium employee.”
On May 23, 2006, the employee filed a second petition in the United States District Court for the District of Columbia seeking review of the FAB’s latest final decision on his Part B claim (Civil Action No. 1:06-CV-958). In a “Memorandum Order” dated March 14, 2007[3], District Judge Robertson ruled that 20 C.F.R. § 30.205(a)(2)(iii) did not describe the only beryllium vendor activities that were related to production or processing and found that the administrative record in the employee’s EEOICPA claim would require further development before he could determine whether the employee was a “covered beryllium employee.” Thereafter, on April 20, 2007 the parties filed a “Joint Motion for Remand Order” that proposed a method for undertaking the further development of the claim that was described in the March 14, 2007 Memorandum Order, and on April 26, 2007, the judge signed the “Order for Remand” that had been prepared by the parties. Pursuant to that Order, the judge retained jurisdiction over the employee’s claim while it was undergoing further development.
On remand, the Director of DEEOIC served a May 18, 2007 administrative subpoena on CoorsTek, Inc. by certified mail, which was received by CoorsTek, Inc. on May 22, 2007. The subpoena directed CoorsTek, Inc. to provide DEEOIC with copies of records in its possession relating to the processing or producing of beryllium at its Golden, Colorado facility from 1960 through 1995, whether for the AEC/DOE or other entities, and to the contract or agreement entered into between the Coors Porcelain Company and Morrison-Knudson Engineers, Inc. for the remediation and demolition of Building 16. In a submission that was received by DEEOIC on June 22, 2007, CoorsTek, Inc. submitted a CD containing 315 electronic files of scanned documents totaling 1,807 pages, consisting of the following, in pertinent part:
- A memorandum of a May 3, 1960 meeting between officials of the Lawrence Radiation Laboratory (now known as the Lawrence Livermore National Laboratory) and the Coors Porcelain Company held during negotiations that led to the execution of Subcontract No. 165, during which officials of the Coors Porcelain Company stated they would construct, at their expense, the separate building that would be needed to perform the contemplated production work.
- Subcontract No. 165 to Contract W-7405-eng-48, between the Regents of the University of California (the DOE contractor for the Lawrence Radiation Laboratory) and the Coors Porcelain Company, which was executed on September 9, 1960. This subcontract called for the Coors Porcelain Company to fabricate the fuel elements needed by the Lawrence Radiation Laboratory for its “Pluto Project,” an effort to develop a nuclear ramjet engine. Appendix A noted that the Coors Porcelain Company would build a facility to perform the work under the contract, and that the University would furnish government-owned BeO to produce the fuel elements; Appendix B stated that title in the land and building remained in the Coors Porcelain Company.
- A letter from the Lawrence Radiation Laboratory to the Coors Porcelain Company, dated September 27, 1960, memorializing the understandings of the parties to Subcontract No. 165, which included the understanding that the Coors Porcelain Company would need about 20,000 kilograms of BeO.
- Subcontract No. 256 to Contract W-7405-eng-48, between the Regents of the University of California and the Coors Porcelain Company, which was executed on September 25, 1963. This subcontract was an extension of Subcontract No. 165 and provided for the shut-down of the Fuel Element Project at the Coors Porcelain Company on or before June 30, 1964. Appendix B noted that one purpose of Subcontract No.256 was to maintain the capability of the Coors Porcelain Company to perform research and development work on beryllium tubes using government-owned BeO.
- The Coors Porcelain Company’s “Final Progress Report for Research and Development Program” under the Pluto Project covering the period October 1, 1963 through June 30, 1964. Among other things, this report described the arrival of government-owned BeO at the Coors Porcelain Company from Brush Wellman, Inc. in powder form.
- An August 7, 1986 Rocky Flats Plant Report entitled “Pluto Program Overview, Fuel Element Fabrication for Tory II-C Reactor,” tracing the history of the Coors Porcelain Company entering into Subcontract No. 165 on September 9, 1960 to fabricate 756,000 fuel elements (4.5-inch long hexagonal tubes) for this AEC program, and an extension known as Subcontract No. 256. The report included Table III (Materials Balances) on page 5 showing how 18,681.5 kilograms of beryllium were used in this project to actually fabricate approximately 500,000 beryllium and beryllium-uranium fuel elements.
- An April 5, 1965 letter from the Argonne National Laboratory to the Coors Porcelain Company that requested a quote for the fabrication of six nuclear fuel specimens.
- Portions of a February 21, 2000 deposition of [Employee’s co-worker] from the employee’s state court litigation, which established that the “Fuel Element Building” was later known as “Building 16.”
- A “Further Study of Beryllium Controls, Coors Porcelain Company,” dated November 6, 1969, in which an industrial hygienist noted the imminent move of the Coors Porcelain Company’s BeO Department into Building 16 from another location within the facility.
- An internal Coors Porcelain Company research project report entitled “BeO Tape Status,” dated January 1970, which memorialized recent research efforts into solving production problems involving this product during the period February 2, 1969 through January 30, 1970, recommended that future raw material (BeO) be obtained from Kawecki-Berylco, Inc. rather than Brush Wellman, Inc., and noted that “four small orders have been shipped to date” to non-AEC entities as part of a pilot project designed to develop a profitable industrial process.
- An internal Coors Porcelain Company research project report entitled “BeO Extrusion Status,” also dated January 1970, which memorialized recent research efforts into solving production problems involving this product during the period February 2, 1969 through January 30, 1970, and noted that “[t]he extrusion is done in the Erie Press in Building 16.”
- An internal Coors Porcelain Company research project report entitled “KBI BeO Conversion,” dated February 1970, which listed many reasons why the Coors Porcelain Company should obtain raw material (BeO) from Kawecki-Berylco, Inc., instead of from Brush Wellman, Inc.
- Minutes of the Toxic Material Board Meeting at the Coors Porcelain Company, dated July 28, 1970, which noted that the BeO Department had moved into Building 16.
- An internal Coors Porcelain Company memorandum, dated May 29, 1985, which noted that BeO was used in Building 16 from 1970 to 1975 in non-AEC ceramics work, and stated that employees would be evacuated from the building before clean-up work began.
- An August 19, 1985 letter from Morrison-Knudson Engineers, Inc. to the Coors Porcelain Company, which referred to “deactivation” of Building 16 pursuant to Contract No. 5083 between the two parties.
- A report entitled “Production of Beryllia Ceramics and the 1989-90 Beryllium Disease Surveillance Project at Coors Ceramics Company,” dated July 5, 1991, which contained a detailed history of BeO use in production activities from 1958 through 1975 by the BeO Department and for the Fuel Cell Project, and beryllium substrates after 1975. It confirmed that Building 16 was built for the AEC work on the Fuel Element Project, and then used by the Beryllium Ceramics Department from 1970 through the end of 1975.
On July 12, 2007, the national office of DEEOIC issued a recommended decision to accept the employee’s Part B claim for benefits, finding that the evidence of record established that he was a “covered beryllium employee” since he was employed at a beryllium vendor during a period when that vendor was engaged in “activities related to” the production or processing of beryllium for sale to, or use by, DOE or its predecessor agencies, i.e., remediation during calendar year 1985. The case was transferred to the FAB and on July 30, 2007, it received the employee’s signed, written waiver of all objections to the July 12, 2007 recommended decision. The employee also submitted a signed statement indicating that he had not received any money from a tort action for his beryllium exposure, and that he had not been convicted of fraud in connection with any application for or receipt of EEOICPA benefits or any other state or federal workers’ compensation benefits.
After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for benefits under Part B of EEOICPA on February 19, 2002.
2. The employee was employed as a punch press operator by a beryllium vendor, the Coors Porcelain Company (or its corporate successors), from June of 1983 through 1995. The employee worked in Building 16 for approximately six months between June and December of 1983, after which time he worked in other buildings at the beryllium vendor’s facility through 1995.
3. The beryllium vendor had processed or produced beryllium for DOE and its predecessor agencies in Building 16 from 1947 through 1975.
4. The National Institute for Occupational Safety and Health has determined that there is “potential for significant residual contamination outside of the period in which weapons-related production occurred” at the beryllium vendor’s facility in its revised June 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, at Appendix B-2, page 4.
5. Management of the beryllium vendor made a conscious determination to address this residual beryllium contamination by hiring Morrison-Knudson Engineers, Inc., pursuant to Contract No. 5083, to remediate and demolish Building 16 in early 1985.
6. The remediation work at the facility required removal or other remediation of residual beryllium contamination that consisted of more than a de minimus amount of beryllium dust, particles or vapors attributable to work that the beryllium vendor had done for the AEC/DOE.
7. The employee worked for the beryllium vendor during a period when it was engaged in activity pursuant to a conscious determination to remediate more than a de minimus amount of residual beryllium contamination that was attributable to work the vendor had done for the AEC/DOE.
8. Building 16 was remediated and demolished by the end of 1985 by Morrison-Knudson Engineers, Inc.
9. The employee was diagnosed with CBD on May 8, 1990.
10. The employee filed a tort action in 1996 against the beryllium vendor and a second defendant that contained an allegation that he had experienced work-related exposure to beryllium. This tort action was dismissed with respect to all defendants no later than June 20, 2002.
Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:
CONCLUSIONS OF LAW
The first issue in this claim is whether the employee is a “covered beryllium employee” for the purpose of EEOICPA. For the purpose of this claim, a “covered beryllium employee” is defined as:
A current of former employee of a beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy.
42 U.S.C. § 7384l(7)(C). There is no dispute that the beryllium vendor in question ceased all “production or processing of beryllium for sale to, or use by, the” AEC no later than 1975, eight years before the employee began working for the vendor at its Golden, Colorado facility in June of 1983. Accordingly, the compensability of the employee’s claim turns on whether the beryllium vendor was “engaged in activities related to” that production or processing at any time during the period of his employment from June of 1983 through 1995.
The scope of what Congress intended by the phrase “activities related to” is broad and not otherwise defined in either EEOICPA or its legislative history. Therefore, the definition of the phrase is properly left to DEEOIC as the agency charged with the administration of the compensation program established as Part B of EEOICPA. See 20 C.F.R. § 30.2(a). As an exercise of that authority, § 30.205(a)(2)(iii) of the regulations implementing EEOICPA provides some guidance regarding the scope of the phrase “activities related to” by indicating that it includes “periods during which environmental remediation of a vendor’s facility was undertaken pursuant to a contract between the vendor and DOE. . . .” However, as noted by District Judge Robertson in his March 14, 2007 Memorandum Order, § 30.205(a)(2)(iii) only describes one type of activity “related to” a beryllium vendor’s production or processing of beryllium for sale to, or use by, DOE for the purpose of defining what a “covered beryllium employee” is under EEOICPA.
Accordingly, DEEOIC will consider whether additional activities of beryllium vendors are “activities related to” production or processing beryllium as claims present additional factual scenarios for its evaluation. In light of the findings of fact for the employee’s claim set out above, DEEOIC concludes that the Coors Porcelain Company “was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy” or its predecessor agencies in 1985 when its management took conscious action to remediate the more than de minimus residual beryllium contamination in Building 16 that was attributable to work it had done for the AEC. This is another type of activity “related to” the production or processing of beryllium for sale to, or use by, DOE in addition to the activity described in § 30.205(a)(2)(iii); there will likely be others presented in future claims yet to be adjudicated.
In light of the above conclusion of law, and because the employee was exposed to beryllium in the “performance of duty” under 42 U.S.C. § 7384n(a)(2) since he was present at the beryllium vendor’s facility due to his employment by that beryllium vendor during a period when beryllium dust, particles, or vapor may have been present at such facility, DEEOIC also concludes that the employee qualifies as a “covered beryllium employee” under Part B, as that term is defined by 42 U.S.C. § 7384l(7)(C), because he was employed by a beryllium vendor “during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the Department of Energy” or its predecessor agencies.
Because the employee qualifies as a “covered beryllium employee” under Part B, he is therefore also a “covered employee,” as that term is defined by 42 U.S.C. § 7384l(1)(A), and has been diagnosed with a “covered beryllium illness,” as that term is defined by 42 U.S.C. § 7384l(8)(B).
The second issue in this claim is whether the employee has complied with the dismissal requirements of 20 C.F.R. § 30.616(b) in connection with his tort suit against the beryllium vendor. As set out in the above findings of fact, the employee was one of a group of plaintiffs that filed a tort action against the beryllium vendor and another defendant in 1996, alleging (among other things) that he was exposed to beryllium while working for the beryllium vendor. Thus, this tort action fell squarely within the definition contained in 20 C.F.R. § 30.615(a), and was subject to the dismissal requirements set out in § 30.616(b) since it was filed before October 30, 2000 and was still pending on December 28, 2001. However, the evidence in the case file establishes that the employee timely elected to receive benefits due to his exposure to beryllium under EEOICPA by dismissing his suit against the beryllium vendor within the time period set out in 20 C.F.R. § 30.616(b), which mandates that all such tort actions must be dismissed prior to December 31, 2003.
Accordingly, the employee is entitled to compensation for CBD under Part B, as outlined in 42 U.S.C. §§ 7384s(a)(1) and 7384s(b), and the FAB hereby awards him lump-sum benefits of $150,000 and medical benefits for that occupational illness under Part B, retroactive to the date he filed his claim on February 19, 2002.
Washington, DC
Alan Kelly
Hearing Representative
Final Adjudication Branch
[1] This litigation, which was filed in 1996, included allegations that some of the plaintiffs had been exposed to beryllium at work, and contained a specific allegation that the employee in this matter had been exposed while working for the Coors Porcelain Company.
[2] This provision of the interim final regulations did not change when the final regulations were issued. See 71 Fed. Reg. 78520, 78543-44 (Dec. 29, 2006).
EEOICPA Fin. Dec. No. 10015106-2006 (Dep’t of Labor, July 25, 2006)
NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD
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 denied.
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 arguments submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.
STATEMENT OF THE CASE
On December 9, 2002, you filed a Form EE-2, Claim for Survivor Benefits, and a Request for Review by Physicians Panel for the esophageal cancer of your late spouse, [Employee], hereinafter referred to as “the employee.” The death certificate states the employee died of interstitial lung disease (illegible word), acute ARDS due to infection, congestive heart failure, and myocardial infarction.
On the Form EE-3, Employment History, you stated the employee was employed as lead maintenance man for Lithium Corporation of American/FMC from October 3, 1955 to January 31, 1992. The district office verified the employee worked for Lithium Corporation, a joint venture with Beryllium Metal and Chemical Corporation (BERMET), in Bessemer City, North Carolina, from October 3, 1955 to January 31, 1992.
In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on May 22, 1948, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, December 3, 1992.
On March 22, 2006, the Jacksonville district office issued a recommended decision, concluding that you are not entitled to lump-sum survivor compensation under Part E of the Act, because the employee was not a Department of Energy (DOE) contractor employee.
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. On May 15, 2006, the Final Adjudication Branch (FAB) received your letter of objection dated May 12, 2006.
OBJECTIONS
In the letter of objection, you stated that the employee qualified as a covered beryllium employee under the law, and therefore, should be covered under Part E. You quoted the Federal Regulations in § 30.205, which establishes the criteria for an employee to be considered a covered beryllium employee. 20 C.F.R. § 30.205 (2005). However, the heading for that section of the regulations states that the eligibility criteria are for “Claims Relating to Covered Beryllium Illness under Part B of EEOICPA” [emphasis added], not Part E of the EEOICPA.
On October 28, 2004, Congress abolished Part D of the Act, which had been administered by the Department of Energy, and created Part E of the Act to be administered by the Department of Labor. Congress established the criteria for a “covered DOE contractor employee” under Part E. The Department of Labor must apply those criteria as written.
FINDINGS OF FACT
1. On December 9, 2002, you filed a Form EE-2, Claim for Survivor Benefits.
2. The employee was diagnosed with interstitial lung disease, acute ARDS due to infection, congestive heart failure, and myocardial infarction.
3. The employee was employed at Lithium Corporation, a joint venture with Beryllium Metal and Chemical Corporation (BERMET), an acknowledged beryllium vendor, from October 3, 1955 to January 31, 1992.
4. You were the employee’s spouse at the time of his death and at least a year prior.
CONCLUSIONS OF LAW
The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 22, 2006 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 eligibility criteria for your claim under Part E of EEOICPA are discussed in § 30.230 of the regulations, which state that “the employee is a Department of Energy contractor employee as defined in § 30.5(w). . . .” 20 C.F.R. § 30.230(a). Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by: (i) an entity that contracted with the DOE to provide management and operation, 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. 20 C.F.R. § 30.5(w), 42 U.S.C. § 7384l(11). The employee was a covered beryllium employee, employed by a beryllium vendor, with no indication of employment at any DOE facility.
You meet the definition of a survivor. 42 U.S.C. § 7385s-3(d)(1). However, since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under Part E of the Act, and the claim for compensation is denied. 42 U.S.C. §§ 7385s-4(c)(1)(A), 7385s-3(a)(1)(B).
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
EEOICPA Order No. 20120912-81095-1 (Dep’t of Labor, May 30, 2013)
EMPLOYEE: | [Name Deleted] |
CLAIMANT: | [Name Deleted] |
FILE NUMBER: | [Number Deleted] |
DOCKET NUMBER: | 20120912-81095-1 |
DECISION DATE: | May 30, 2013 |
NOTICE OF DENIAL OF
REQUEST FOR RECONSIDERATION
This is the response to the May 9, 2013 request for reconsideration of the April 10, 2013 decision of the Final Adjudication Branch (FAB) on this claim for chronic beryllium disease (CBD) under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. In that decision, FAB concluded that while the employee worked for the Allied Chemical Corporation from January 15, 1959 to June 29, 1964 at its facility in Metropolis, Illinois, he was nevertheless not entitled to benefits under Part B for CBD because the Allied Chemical Corporation is an Atomic Weapons Employer (AWE), and employees of AWEs are only potentially eligible to receive Part B benefits for radiogenic cancer.
In support of the May 9, 2013 reconsideration request, the employee’s representative raised a number of interwoven and somewhat confusing arguments, all of which he raised previously in the adjudication of this claim for CBD. To the extent I can discern what they are, those arguments are as follows:
1. Because the Division of Energy Employees Occupational Illness Compensation (DEEOIC) does not dispute that “operations” on behalf of the Atomic Energy Commission (AEC) and the Energy Research and Development Administration (ERDA) took place at the Metropolis plant, FAB should have concluded that there was a contractual relationship between the AEC, and also ERDA, and the Allied Chemical Corporation such that the Metropolis plant meets the definition of a “DOE facility” set out in § 7384l(12) of EEOICPA.[1]
2. DEEOIC has wrongly refused to acknowledge that there are suggestions that beryllium was present at the Allied Chemical Corporation’s Metropolis plant.
3. DEEOIC has wrongly refused to recognize the presence of uranium “daughter” products that were associated with the processing work that occurred at the Allied Chemical Corporation’s Metropolis worksite.
4. The Metropolis worksite will be designated for remediation under the Formerly Utilized Sites Remedial Action Program (FUSRAP), and therefore workers employed there doing clean-up will be covered under Part E.
5. DEEOIC failed to follow prior FAB decisions regarding atomic weapons employees, as well as EEOICPA Circular No. 08-05 (issued May 2, 2008) on the status of the Office of Scientific and Technical Information (OSTI) worksite in Oak Ridge, Tennessee as a DOE facility and EEOICPA Bulletin No. 07-15 (issued May 9, 2007) on the class of Allied Chemical Corporation employees added to the Special Exposure Cohort (SEC), in its adjudication of the employee’s Part B claim for CBD.
6. Employees of a contractor that had allegedly concealed transuranics at the Metropolis worksite from the NRC were hired by DEEOIC to compile both Site Exposure Matrices (SEM) information for the Metropolis worksite, as well as for the site profile used by NIOSH to perform dose reconstructions for workers at that same worksite, and this created an impermissible conflict of interest.
In support of the above arguments on reconsideration, the representative submitted additional copies of the following evidence that was already in the employee’s file: (1) copies of 5 U.S.C. §§ 702 and 706; (2) a report of a June 22, 2006 public meeting that NIOSH held on the site profile used for performing dose reconstructions for workers at the Metropolis worksite; (3) a partial copy (provenance unknown) of an agreement by which the Allied Chemical Corporation undertook to covert natural uranium concentrates owned by an unidentified entity into uranium hexafluoride[2]; (4) a partial manifest (provenance also unknown) purporting to list chemicals that the Allied Chemical Corporation stored at an unspecified location for DOE; (5) extracts from EEOICPA Circular No. 08-05; (6) extracts from EEOICPA Bulletin No. 07-15; (7) extracts of general information from the FUSRAP website; (8) extracts from November 5, 2012 DOE memoranda on allegations of conflicts of interest among contractors performing remediation work for DOE at the Portsmouth Gaseous Diffusion Plant and at the Oak Ridge Reservation; (9) a copy of a September 1, 2010 medical report already in the case file; (10) a copy of the employee’s August 13, 2012 statement already in the case file; and (11) extracts from EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008). In addition, the employee’s representative also submitted new evidence consisting of extracts from EEOICPA Fin Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008), EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004), and EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004).
After careful consideration of the above arguments and evidence, and for the reasons set forth below, the employee’s request for reconsideration is hereby denied.
With regard to the first argument, the benefits available under Part B of EEOICPA are only payable to claimants who meet their burden of proof to satisfy the eligibility requirements set out in the statute. In this Part B claim for CBD, the employee alleges that he qualifies as a DOE contractor employee because he worked at the Allied Chemical Corporation’s Metropolis plant, which he asserts fits within the statutory definition of a DOE facility set out in § 7384l(12). However, even though DEEOIC does not dispute that “operations” occurred at the Metropolis plant, since there is ample evidence showing that the Allied Chemical Corporation processed natural uranium concentrates into uranium hexafluoride for the AEC at that location, first under a processing contract with the AEC that ran from 1959 through June 30, 1964[3], and thereafter for both the AEC and ERDA on an “as needed” basis through 1976[4], it is not enough to merely establish that “operations” occurred at a worksite. The representative contends that the Allied Chemical Corporation’s Metropolis plant meets the statutory definition of a DOE facility because DOE or one of its predecessor agencies “entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services” as required by § 7384l(12)(B)(ii). However, FAB concludes that none of the submissions from the representative contained any persuasive arguments or factual evidence in support of the assertion that the contractual relationship between the Allied Chemical Corporation and the AEC/ERDA satisfies the statutory requirements of § 7384l(12)(B)(ii) of EEOICPA. Therefore, the employee has not met his burden of proof to establish this crucial point.
In response to the second argument listed above, the question of whether or not beryllium was present at the Metropolis plant is irrelevant to the employee’s claim for CBD under Part B, because atomic weapons employees are not eligible for benefits due to that particular “occupational illness.” Under § 7384l(7) of EEOICPA, the term “covered beryllium employee” only refers to employees who worked at either DOE facilities or beryllium vendor facilities, while the employee here worked at an AWE facility.
As for the third argument, this concerns the amount of radiation to which the employee was exposed while working at the Allied Chemical Corporation’s Metropolis plant, and that question is within the exclusive jurisdiction of the National Institute for Occupational Safety and Health (NIOSH), not DEEOIC, as noted in 20 C.F.R. § 30.2(b) (2013). In addition, the radiation to which he was exposed is irrelevant to his Part B claim for CBD, which was the only claim of the employee that was addressed by FAB on April 10, 2013.
With respect to the fourth argument, the assertion that the Allied Chemical Corporation’s Metropolis plant will be designated for remediation is based on a belief that such designation will be made in the future. However, as of the present time, the Metropolis plant has not been so designated under FUSRAP.[5] Furthermore, even if the Metropolis plant had been designated for remediation under FUSRAP, such designation would be irrelevant to the employee’s Part B claim for CBD.
As for the fifth argument set out above, the FAB decisions in question are irrelevant to this CBD claim because they provide no support for the argument that the Metropolis plant is a DOE facility. Also, the reason why DEEOIC determined in EEOICPA Circular No. 08-05 that OSTI was a DOE facility was based, in part, on the fact that DOE and its predecessor agencies had a “proprietary interest” in that worksite under 42 U.S.C. § 7384l(12)(B)(i), and neither DOE nor any of its predecessor agencies has ever had such an interest in the Metropolis plant, which has always been owned by the Allied Chemical Corporation and its corporate successors. In addition, EEOICPA Bulletin No. 07-15 only concerns the class of Allied Chemical Corporation employees, all of whom are atomic weapons employees, that was added to the SEC and does not support the employee’s belief that the Metropolis plant is a DOE facility.
And finally, with respect to the sixth argument, DEEOIC did not hire the contractors that prepared the site profile used by NIOSH to perform dose reconstructions for workers at the Allied Chemical Corporation’s Metropolis plant, NIOSH did. Also, there is no toxic substance exposure profile for the Metropolis plant in SEM because it is an AWE facility, and SEM only contains profiles of worksites that are either DOE facilities or uranium mines and mills covered under Part E. And more importantly, this argument is irrelevant to both the employee’s Part B claim and his representative’s assertion that the Metropolis plant satisfies the statutory definition of a DOE facility.
Therefore, I must deny the employee’s request for reconsideration because he has not submitted any arguments or evidence that would justify reconsideration of the April 10, 2013 final decision on his Part B claim for CBD. That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration. See 20 C.F.R. § 30.319(c)(2).
Washington, DC
David F. Howell
Hearing Representative
Final Adjudication Branch
[1] The representative apparently believes that the Nuclear Regulatory Commission (NRC) is a predecessor agency of DOE. This is incorrect, since the NRC and DOE were created simultaneously when ERDA was split into two agencies on October 1, 1977 by the “Department of Energy Organization Act,” Pub. L. 95-91, 91 Stat. 565.
[2] While the representative may believe that this agreement is a contract between DOE (or one of its predecessor agencies) and the Allied Chemical Corporation, the language used in the part of the agreement in the file suggests that it was actually an example of the type of agreement that the Allied Chemical Corporation entered into to process uranium concentrates owned by private nuclear power plants. These agreements became possible following passage of the Private Ownership of Special Nuclear Materials Act, Pub. L. No. 88-489, 73 Stat. 602 (August 26, 1964). See 42 U.S.C. § 2011 note. See also Opinion No. B-207463 (Comp. Gen. December 27, 1984), 1984 WL 47145.
[3] See http://www.converdyn.com/metropolis/mtwhistory.html and http://www.Honeywell-metropolisworks.com/about-metropolis.php (both sites last visited on March 26, 2013). See also “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48.
[4] E.g., “Annual Report to Congress of the Atomic Energy Commission for 1959” (January 1960), p. 63; “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48; “Annual Report to Congress of the Atomic Energy Commission for 1965” (January 1966), p. 37; “Annual Report to Congress of the Atomic Energy Commission for 1966” (January 1967), p. 362; “Annual Report to Congress of the Atomic Energy Commission for 1967” (January 1968), p. 274.
[5] A comprehensive listing of all covered worksites designated for remediation under FUSRAP can be found at the following DOE website: http://energy.gov/lm/sites/lm-sites/considered-sites (last visited May 21, 2013). A review of the website reveals that the Allied Chemical Corporation’s Metropolis plant is not listed as a covered worksite under FUSRAP.
EEOICPA Fin. Dec. No. 20121127-84623-1 (Dep’t of Labor, April 30, 2013)
EMPLOYEE: |
[Name Deleted] |
CLAIMANT: | [Name Deleted] |
FILE NUMBER: | [Number Deleted] |
DOCKET NUMBER: | 20121127-84623-1 |
DECISION DATE: | April 30, 2013 |
NOTICE OF FINAL DECISIONFOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted 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 claim for liver cancer, a liver transplant, liver disease, diabetes and hypertension under Part E is hereby denied.
STATEMENT OF THE CASE
On April 30, 2010, the claimant filed a Form EE-1, claiming benefits under Part B of EEOICPA for liver cancer. In support of that claim, the claimant submitted an employment history stating that he worked at the Allied Chemical Corporation’s worksite in Metropolis, Illinois, beginning on February 16, 2004. The Metropolis worksite has been designated as an Atomic Weapons Employer (AWE) facility by the Department of Energy (DOE), for the covered period of 1959 through 1976, with a period of residual radioactive contamination of 1977 to March 1, 2011.[1] This claimed employment was accepted by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) as factual through at least May 22, 2010, which is the date that the claimant’s employer verified he was still employed.
During the adjudication of the claimant’s Part B claim, which included a referral to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction, his authorized representative submitted a facsimile on March 26, 2011 in which he contended that DEEOIC should either designate the Metropolis worksite as a DOE facility, or in the alternative, that it should find that the corporate successor to the Allied Chemical Corporation–Honeywell International–was a subcontractor to the DOE contractor at the Paducah Gaseous Diffusion Plant, and also award the claimant benefits under Part E of EEOICPA. The representative’s arguments were considered and rejected in an April 12, 2011 memorandum from DEEOIC’s Policy Branch, which concluded that there was no evidence in support of either contention, after which FAB issued an April 14, 2011 final decision denying the claimant’s Part B claim. FAB’s denial of the claimant’s Part B claim was based on NIOSH’s dose reconstruction, and the finding that it was not “at least as likely as not” (a 50% or greater threshold for compensability) that his liver cancer was due to the radiation doses he had received while working at the Allied Chemical Corporation’s Metropolis worksite. FAB did not, however, make any determination on the claimant’s eligibility under Part E of EEOICPA it its April 14, 2011 final decision.
By facsimile dated May 14, 2011, the representative requested reconsideration of FAB’s April 14, 2011 final decision and repeated his earlier arguments in support of his contention that the Metropolis worksite should be determined to meet the statutory definition of a DOE facility set out in § 7384l(12) of EEOICPA. However, FAB denied this request on June 21, 2011, on the ground that the April 14, 2011 final decision only addressed the claimant’s Part B claim, and therefore his authorized representative’s contentions regarding his eligibility under Part E were irrelevant to that determination.
By letter dated October 2, 2012, the Cleveland district office of DEEOIC acknowledged that the claimant’s authorized representative had made a claim for benefits under Part E of EEOICPA on his behalf during the adjudication of his Part B claim, and asked the claimant to submit another Form EE-1 so it could properly develop his Part E claim. As part of this letter, the district office reminded him of the following:
As you are also aware, the evidence submitted by your authorized representative in regard to changing the designation of the Allied Chemical facility to a DOE facility was submitted to [DEEOIC’s Policy Branch]. The policy branch evaluated the evidence presented and determined that the Allied Chemical Plant in Metropolis, IL does not meet the definition of a DOE facility and cannot be considered as such for administration of the EEOICPA.
The district office enclosed a copy of the Policy Branch’s April 12, 2011 determination with its October 2, 2012 letter, and informed the claimant that it was his burden of proof to establish that he had covered employment at a DOE facility in support of his claim for benefits under Part E of EEOICPA.
On October 19, 2012, the claimant filed the requested Form EE-1, in which he claimed benefits under Part E for liver cancer, a liver transplant, liver disease, diabetes and hypertension due to his verified employment at the Metropolis worksite. In a development letter dated October 24, 2012, the district office repeated the substance of its October 2, 2012 letter, and asked again that he submit evidence that could support designating the Metropolis worksite as a DOE facility.
No new evidence was received in response to the October 24, 2012 letters. Thus, on November 27, 2012, the Cleveland district office issued a recommended decision to deny the claimant’s Part E claim, on the ground that the evidence of record failed to establish that he had worked at a DOE facility. The claimant’s representative thereafter submitted a timely facsimile in which he objected to the November 27, 2012 recommended decision and requested an oral hearing, which was held in Paducah, Kentucky, on January 16, 2013.
OBJECTIONS
In his December 4, 2012 facsimile objecting to the recommendation to deny the claimant’s Part E claim, the representative made the following five arguments (which are each followed by a response):
- DEEOIC has wrongly refused to recognize the presence of uranium “daughter” products associated with the processing work that occurred at the Allied Chemical Corporation’s Metropolis worksite. RESPONSE: This argument involves the amount of radiation to which the claimant was exposed, and this issue is within the exclusive jurisdiction of NIOSH, not DEEOIC, as noted in 20 C.F.R. § 30.2(b) (2013).
- The Metropolis worksite is a DOE facility because “operations” on behalf of DOE and its predecessor agencies took place there. RESPONSE: While DEEOIC does not dispute that “operations” took place at the worksite, this fact alone is insufficient to support the requested determination that the Metropolis plant is a DOE facility, as that statutory term is defined in § 7384l(12) of EEOICPA.
- DEEOIC determined that the Office of Scientific and Technical Information (OSTI) worksite in Oak Ridge, Tennessee, was a DOE facility when a Part E claim was filed by a worker at that location, and it should do the same in connection with the Allied Chemical Corporation’s Metropolis worksite. RESPONSE: The determination by DEEOIC that OSTI was a DOE facility was based, in part, on the fact that DOE and its predecessor agencies had a “proprietary interest” in that worksite under 42 U.S.C. § 7384l(12)(B)(i), and neither DOE nor any of its predecessor agencies has ever had such an interest in the Metropolis worksite, which has always been owned by the Allied Chemical Corporation and its corporate successors.
- The Metropolis worksite was designated for remediation under the Formerly Utilized Sites Remedial Action Program (FUSRAP), and therefore workers employed there doing clean-up are covered under Part E. RESPONSE: This assertion is not correct, because the Metropolis worksite has not been designated for remediation under FUSRAP.[2]
- Employees of a contractor that had allegedly concealed transuranics at the Metropolis worksite from the Nuclear Regulatory Commission were hired by DEEOIC to compile both Site Exposure Matrices (SEM) information for the Metropolis worksite, as well as for the site profile used by NIOSH to perform dose reconstructions for workers at that same worksite, and this created an impermissible conflict of interest. RESPONSE: DEEOIC did not hire the contractors that prepared the site profile used by NIOSH to perform dose reconstructions, NIOSH did. Also, there is no toxic substance exposure profile for the Metropolis worksite in SEM because it is an AWE facility (SEM only contains profiles of worksites that are either DOE facilities or uranium mines and mills covered under Part E). And more importantly, this argument is irrelevant to both the claimant’s Part E claim and his belief that the Allied Chemical Corporation’s Metropolis worksite satisfies the statutory definition of a DOE facility.
At the January 16, 2013 oral hearing, the claimant, his wife and a former worker at the Paducah Gaseous Diffusion Plant provided testimony in support of the claim. However, this testimony (most of which involved the United States Enrichment Corporation, which has both owned and operated the Paducah Gaseous Diffusion Plant[3] since July 28, 1998, rather than either DOE or the Allied Chemical Corporation) was entirely irrelevant to, and provided no support for, the argument that the Allied Chemical Corporation’s Metropolis worksite meets the definition of a DOE facility, because it failed to establish that DOE (or its predecessor agencies) either had a “proprietary interest” in the worksite, or had entered into one of the specific types of contracts that are listed in § 7384l(12)(B)(ii) with an entity at the worksite.
The representative also submitted a “hearing brief” on that date that repeated his prior arguments and included copies of: (1) Executive Order 13179; (2) 5 U.S.C. §§ 702 and 706; (3) a report of a June 22, 2006 public meeting that NIOSH held concerning the site profile for performing dose reconstructions for workers at the Metropolis worksite; (4) a partial copy (provenance unknown) of an agreement by which the Allied Chemical Corporation undertook to covert natural uranium concentrates owned by an unidentified entity into uranium hexafluoride[4]; (5) a partial manifest (provenance also unknown) purporting to list chemicals that the Allied Chemical Corporation stored at an unspecified location for DOE; (6) extracts from EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008); (7) extracts from EEOICPA Circular No. 08-05 (issued May 2, 2008); (8) extracts from EEOICPA Bulletin No. 07-15 (issued May 9, 2007); (9) extracts of general information from the FUSRAP website; (10) extracts from a November 5, 2012 DOE memorandum on allegations of conflicts of interest among contractors performing remediation work for DOE at the Portsmouth Gaseous Diffusion Plant and at the Oak Ridge Reservation; and (11) extracts from multiple documents and databases posted on both DOE and DEEOIC websites relating to SEM, notices published in the Federal Register, § 7384 of EEOICPA and the regulations implementing EEOICPA. However, as was the case with his arguments discussed above, the copies submitted as part of the representative’s “hearing brief” are entirely irrelevant to the claimant’s Part E claim and fail to establish, or even suggest, that the Allied Chemical Corporation’s Metropolis worksite meets the statutory definition of a DOE facility.
Following the hearing, the claimant’s representative submitted a February 12, 2013 facsimile containing: (1) copies of items already in the case file; (2) a complaint alleging employment discrimination from the former Paducah employee who had testified at the January 13, 2013 oral hearing; (3) emails from that same former Paducah employee; (4) a January 30, 2013 interim response from DEEOIC to a Freedom of Information Act request filed by the representative; (5) additional extracts from the FUSRAP and DEEOIC websites; and (6) factual allegations made by another purported Part E claimant (not the claimant involved in this decision) regarding the work performed at the Allied Chemical Corporation’s Metropolis worksite. Once again, however, this evidence has been reviewed and fails to provide any support for the claimant’s assertion that the Metropolis worksite is a DOE facility.
And finally on March 4, 2013, the representative sent yet another facsimile; this one forwarded copies of three FAB decisions the representative believed supported the claimant’s Part E claim: (1) EEOICPA Fin Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008); (2) EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004); and (3) EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004). However, all of these FAB decisions are factually distinguishable from the Part E claim at issue in this final decision and fail to establish that the Allied Chemical Corporation’s Metropolis worksite is a DOE facility.
After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the following:
FINDINGS OF FACT
1. The claimant filed a Form EE-1, claiming benefits for multiple alleged conditions under Part E of EEOICPA, on October 19, 2012.
2. The claimant has verified employment at the Allied Chemical Corporation’s Metropolis, Illinois, worksite from February 16, 2004 through at least May 22, 2010.
3. The Allied Chemical Corporation’s Metropolis worksite has been designated as an AWE facility for the covered period from 1959 through 1976 by DOE. In addition, NIOSH has also identified a period of residual radioactive contamination at the worksite from 1977 through March 1, 2011.
4. While the case file contains evidence establishing that “operations” by or on behalf of two of DOE’s predecessor agencies were conducted at the Allied Chemical Corporation’s Metropolis worksite, which processed uranium concentrates into uranium hexafluoride for the Atomic Energy Commission (AEC), and the Energy Research and Development Administration (ERDA) after the AEC was abolished, from 1959 through 1976, there is no evidence that these two predecessor agencies either had a “proprietary interest” in the Metropolis worksite, or had entered into one of the enumerated types of contracts listed in 42 U.S.C. § 7384l(12)(B)(ii) with an entity at the worksite.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
The benefits available under Part E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute. In this Part E claim, the claimant alleges that he qualifies as a DOE contractor employee because he worked at the Allied Chemical Corporation’s Metropolis worksite, which he believes fits within the statutory definition of a DOE facility set out in § 7384l(12). However, FAB concludes otherwise, and accordingly the claimant is not entitled to Part E benefits, as alleged.
As noted above, DEEOIC does not dispute that “operations” occurred at the Metropolis worksite, because there is ample evidence showing that the Allied Chemical Corporation processed natural uranium concentrates into uranium hexafluoride for the AEC at that location, first pursuant to a processing contract with the AEC that ran from 1959 through June 30, 1964[5], and thereafter for both the AEC and ERDA on an “as needed” basis through 1976.[6] Therefore, this final decision need not address the bulk of the arguments put forward by the claimant’s representative, because they were made to prove this already accepted requirement of § 7384l(12)(A) of EEOICPA.[7]
However, it is not enough to merely establish that “operations” occurred at a worksite. Before DEEOIC can determine that the Allied Chemical Corporation’s Metropolis worksite meets the statutory definition of a DOE facility, the claimant must also prove either that DOE or one of its predecessor agencies had a “proprietary interest” in the Metropolis worksite as required by § 7384l(12)(B)(i), or that DOE or one of its predecessor agencies “entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services” as required by § 7384l(12)(B)(ii). Pursuant to 20 C.F.R. § 30.111(a), the claimant has the burden of proving at least one of these two statutory requirements “by a preponderance of the evidence.” 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.” However, and as discussed above, FAB concludes none of the submissions from the claimant’s representative contained any persuasive arguments or factual evidence in support of either of these statutory requirements.
Thus, FAB concludes that the claimant has failed to prove that the Allied Chemical Corporation worksite in Metropolis, Illinois meets the statutory definition of a DOE facility, and that he has also failed to prove that he is a DOE contractor employee who worked at a DOE facility under Part E of EEOICPA. Accordingly, FAB hereby denies his Part E claim.
Jacksonville, FL
Wendell Perez
Hearing Representative
Final Adjudication Branch
[1] See http://www.hss.enery.gov/HealthSafety/fwsp/advocacy/faclist/showfacility.cfm (last visited April 17, 2013).
[2] A comprehensive listing of all covered worksites designated for remediation under FUSRAP can be found at the following DOE website: http://energy.gov/lm/sites/lm-sites/considered-sites (last visited April 16, 2013). A review of the website reveals that the Allied Chemical Corporation’s Metropolis worksite is not listed as a covered worksite under FUSRAP.
[3] See http://www.usec.com/gaseous-diffusion/paducah-gdp/paducah-history (last visited on March 26, 2013).
[4] While the representative may believe that this agreement is a contract between DOE (or one of its predecessor agencies) and the Allied Chemical Corporation, the language used in the part of the agreement in the file suggests that it was actually an example of the type of agreement that the Allied Chemical Corporation entered into to process uranium concentrates owned by private nuclear power plants. These agreements became possible following passage of the Private Ownership of Special Nuclear Materials Act, Pub. L. No. 88-489, 73 Stat. 602 (August 26, 1964). See 42 U.S.C. § 2011 note. See also Opinion No. B-207463 (Comp. Gen. December 27, 1984), 1984 WL 47145.
[5] See http://www.converdyn.com/metropolis/mtwhistory.html and http://www.Honeywell-metropolisworks.com/about-metropolis.php (both sites last visited on March 26, 2013). See also “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48.
[6] E.g., “Annual Report to Congress of the Atomic Energy Commission for 1959” (January 1960), p. 63; “Annual Report to Congress of the Atomic Energy Commission for 1964” (January 1965), p. 48; “Annual Report to Congress of the Atomic Energy Commission for 1965” (January 1966), p. 37; “Annual Report to Congress of the Atomic Energy Commission for 1966” (January 1967), p. 362; “Annual Report to Congress of the Atomic Energy Commission for 1967” (January 1968), p. 274.
[7] During the development of this Part E claim, the representative seemed to be confusing the term “operations” in subsection (A) of § 7384l(12) with the “management and operations” type of contract in subsection (B)(ii). They are clearly not the same thing. A history of DOE’s use of “management and operations” contracts, and a description of their features, is in Chapter 17.6 (October 2007) of DOE’s Acquisition Guide at http://energy.gov/sites/prod/files/17.6_Origin%2C_Characteristics%2C_and_Significance_of_the_DOE%27s_Management_and_Operating_0.pdf.
EEOICPA Fin. Dec. No. 10038639-2007 (Dep’t of Labor, Nov. 12, 2008)
NOTICE OF FINAL DECISION FOLLOWINGREVIEW OF THE WRITTEN RECORD
This is the 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 stated below, the claim for chronic obstructive pulmonary disease (COPD) under Part E of EEOICPA is denied.
STATEMENT OF THE CASE
On August 9, 2005, the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had contracted COPD. In support of his claim, he submitted an employment history stating that he was employed as a security officer by EG&G Special Projects at the Nevada Test Site (NTS) from January 1981 to October 1990, and that he wore a dosimetry badge while employed. The Oak Ridge Institute for Science and Education (ORISE) database did not contain information to verify this employment. The Department of Energy (DOE) verified the employee’s employment with Edgerton, Germeshausen, and Grier Special Projects and stated, “This was not a DOE-funded project and was not associated with the DOE Nevada Test Site work.”
On June 15, 2007, the district office issued a recommended decision to deny the claim on the ground that the medical evidence of record was insufficient to establish the diagnosis of COPD. However, on December 20, 2007, FAB issued an order remanding the case for further development after the employee submitted medical evidence that supported the diagnosis of COPD. As a result, the claim was returned to the district office for further development and the issuance of a new recommended decision.
By letter dated January 25, 2008, the Seattle district office informed the employee that under Part E of EEOICPA, an employee must have worked for a DOE contractor or subcontractor at a DOE facility during a covered time period, and that to date, DOE had verified his employment by EG&G Special Projects at the Nevada Test Site from January 1, 1981 to October 31, 1990. He was informed that DOE had indicated that EG&G Special Projects was not a DOE funded project and that any employment for these projects took place outside the borders of the NTS, and therefore was not covered employment under EEOICPA. The district office asked him to submit evidence to establish that EG&G Special Projects was involved in operations for DOE or on behalf of DOE at the NTS.
In a response received by the district office on February 14, 2008, the employee submitted an affidavit on Form EE-4 from a work associate, who asserted that the employee was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990. The employee also submitted an affidavit from his wife, who asserted that he was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990.
On February 29, 2008, the district office issued a new recommended decision to deny the employee’s claim for COPD under Part E, on the ground that the evidence was insufficient to establish that he was present at a covered facility while working for DOE or any of its covered contractors, subcontractors, or vendors during a covered time period.
OBJECTIONS
On March 12, 2008, FAB received the employee’s written objections to the recommended decision. In his objection letter, he stated the following:
I am submitting a copyrighted article from the Las Vegas Review Journal dated Thursday, December 16, 1999. In this article there is a discussion of President Clinton signing into law, under the military lands withdrawal act of 1999. The document in question was signed on , and the Department of Energy released the article to the press approximately two months later. In the document President Clinton signed over to the Air Force control over Department of Energy property in the rectangle around Groom Lake which is the northeastern corner of the test site this land was previously used by the Air Force under an agreement with the Atomic Energy Commission that dates back to 1958, the location is commonly known as Area 51. This article makes perfectly clear, prior to the property was under the control of the Department of Energy. As to the funding of EG&G Special Projects, their funding came directly from the Department of Energy in the form of laundered money that was approved for projects approved by Congress for the Nevada Test Site. The cost overruns were then used to fund the black projects at Area 51. By using approved monies in this manner, further protected the activities that occurred at Area 51 (projects that cannot be investigated by Congress). Also the general manager for all projects at Area 51, that person’s name is was [General Manager], who was in charge of all subcontractors at Area 51. [General Manager] was an employee of Reynolds Electrical & Engineering the prime contractor at the NTS, a company owned by EG&G.
On August 5, 2008, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Circular No. 08-06 which states the following:
The Nevada Test Site is a covered DOE facility for the period 1951-present. The DEEOIC considers Area 51 part of NTS for the period 1958-1999. The DOE categorizes Reynolds Electrical and Engineering Company (REECo) and Bechtel , Inc. as “captive contractors,” for the DOE and its predecessors, including both the Atomic Energy Commission (AEC) and the Energy Research and Development Agency (ERDA). This means that employees of REECo and Bechtel who worked at the NTS, including Area 51, are DOE contractor employees, regardless of what information may previously have been received from DOE.
By letter dated October 17, 2008, DOE confirmed for FAB that EG&G Special Projects was not a DOE contractor at the Nevada Test Site.
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee was employed by EG&G Special Projects from January 5, 1981 to October 15, 1990.
2. The case file does not contain sufficient evidence to establish that the employee worked for a DOE contractor or subcontractor at the NTS.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
The term “covered DOE contractor employee” used in Part E is defined as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility. See 42 U.S.C. § 7385s(1). The term “covered illness” means an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2).
DEEOIC has researched the issue of claimed employment at Area 51 of NTS, and considers Area 51 to be part of NTS for the period 1958-1999. As noted above, DOE categorizes REECo and Bechtel Nevada, Inc. as “captive contractors” for DOE and its predecessors; this means that employees of REECo and Bechtel who worked at NTS (including Area 51 during the period 1958-1999) are DOE contractor employees. Also as noted above, DOE has confirmed that EG&G Special Projects was not a DOE contractor at NTS.
It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA. The regulations at 20 C.F.R. § 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. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. See 20 C.F.R. § 30.111(a) (2008).
As found above, the evidence of record establishes that the employee worked for EG&G Special Projects, but does not establish that he is a “covered DOE contractor employee” as defined by 42 U.S.C. § 7385s(1), because he did not work for a DOE contractor or subcontractor. Therefore, the claim must be denied for lack of covered employment under Part E of EEOICPA.
Washington,
Amanda M. Fallon
Hearing Representative
Final Adjudication Branch
EEOICPA Fin. Dec. No. 87969-2008 (Dep’t of Labor, November 19, 2008)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the 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 claim for survivor benefits under Part B and Part E of EEOICPA is denied.
STATEMENT OF THE CASE
On June 22, 2007, [Claimant] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee]. [Claimant] identified kidney cancer and a “lung condition” as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility. On the claim form, [Claimant] indicated that the employee had worked at a location with a class of employees in the Special Exposure Cohort (SEC).
[Claimant] submitted an Employment History (Form EE-3) stating that the employee was employed by the Department of the Army and/or the Atomic Energy Commission (AEC) at the Iowa Ordnance Plant (IOP) in Burlington, Iowa (also known as the Iowa Army Ammunition Plant (IAAP)) from 1936 to 1976. [Claimant] indicated that the employee worked on Line 1 and on other lines and facilities on site as a Laborer in 1936, a Security Guard from 1936-1939, a Quality Control Supervisor from 1944-1952, and a Quality Control Supervisor from 1952-1976. The portion of the IAAP considered a DOE facility includes the buildings and property/grounds of the IAAP identified as “Line 1.” Line 1 of the IAAP encompasses a cluster of several buildings that were utilized for AEC activities. On July 26, 2007, DOE indicated that the employee worked for the Department of Defense (DOD) at the IAAP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961. DOE indicated that it could find no evidence that the employee worked for the AEC at the AEC part of the plant.
[Claimant] submitted a marriage certificate confirming that she married the employee on January 25, 1935. [Claimant] also submitted the employee’s death certificate, signed by Dr. Sherman Williams, which indicated that the employee died on May 21, 1996 at the age of 84. The death certificate listed the cause of death as congestive heart failure due to pneumonia, and listed [Claimant] as the employee’s surviving spouse. [Claimant] also submitted medical information in support of her claim. A July 2, 1992 pathology report by Dr. J.G. Lyday noted that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.
The evidence of record includes information from the U. S. Department of Labor’s Site Exposure Matrices (SEM) database. The SEM database provides information regarding occupational categories, process operations, building and area locations, toxic substances, incidents, and the locations at the facility where the occupational categories performed their job duties, the locations of the toxic substances, and the locations of various incidents of exposure. The SEM database includes the occupational category of security guard. The SEM database identifies Buildings AX-1, and AX-2, both on Line 1, as locations where a security guard would work. SEM identifies Line 1, Building 1-62 as a location where a fireman would work, and identifies Line 1 Building 1-70 and Building 1-99 as locations where a Foreman for Explosives Storage would work. This was independently verified by the undersigned on October 20, 2008. A needs assessment from the Burlington AEC Plant Former Worker Program also confirms that these labor categories were associated with Line 1.
The evidence of record also includes a Department of the Army document dated October 1, 1963, entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.” The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost for “producing and supplying any utilities and other services furnished” for the AEC’s use.
On November 30, 2007, the Cleveland district office issued a decision recommending denial of [Claimant]‘s claim under both Parts B and E of EEOICPA because the evidence did not show that the employee was a “DOE contractor employee” as defined at 42 U.S.C. § 7384l(11).
OBJECTIONS
On January 7, 2008, FAB received [Claimant]‘s objections to the November 30, 2007 recommended decision. Along with her letter, [Claimant] submitted new factual evidence. [Claimant]‘s letter also explained that since her authorized representative had not been copied on the district office’s correspondence, the evidence had not been submitted earlier. On June 14, 2008, [Claimant] submitted the following relevant evidence to FAB with her objection letter in support of her claim: an April 19, 1974 letter from Lieutenant Colonel C. Frederick Kleis of the Department of the Army to the employee expressing appreciation for his service at the IAAP; an April 19, 1974 certificate of retirement, signed by Lieutenant Colonel Kleis, recognizing the employee’s retirement from the federal service; a June 1, 1942 certificate from the IOP that recognized the employee’s completion of training as a Plant Guard; a December 19, 1967 certificate issued to the employee (as an employee at the IAAP) by the AMC Ammunition School, Savanna Army Depot upon his completion of a Quality Assurance Course; a Department of the Army Certificate of Service presented to the employee on May 29, 1963 for 20 years of federal service; a copy of Day & Zimmerman, Inc., IOP, Retired Employees Reunion badge dated May 17, 1986; and a Form DA-2496, dated April 1, 1974, that provided the employee’s AMC career record maintained at the Tobyhanna Army Depot. The form indicated that the employee was employed by the Department of Army at the IAAP in Burlington, Iowa beginning June 29, 1943.
In summary, [Claimant] stated the following objection
Objection 1: [Claimant] objected that the Findings of Fact numbered 4, 5, 6 and 7 in the November 30, 2007 recommended decision were incorrect. Finding of Fact No. 4 stated that “DOE verified [Employee] worked at the DOD part of the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961.” Finding of Fact No. 5 stated that “[t]he district office did not receive sufficient employment evidence to establish that the employee worked on Line 1 at the IOP during the SEC period.” Finding of Fact No. 6 stated that “[t]he district office has not received evidence establishing entitlement to compensation on the basis of qualifying employment and a specified cancer for purposes of the SEC.” Finding of Fact No. 7 stated that the district office advised [Claimant] of the deficiencies in her claim and provided her the opportunity to correct them.
[Claimant] requested an oral hearing to express her objections to the recommended decision and to review the records of the employee’s work history. A hearing on her objections to the recommended decision was held before a FAB Hearing Representative on March 11, 2008 in Burlington, Iowa, with [Claimant], [Claimant]‘s son and authorized representative, another of [Claimant]‘s sons, and her daughter-in-law in attendance. At the hearing, [Claimant]‘s son and authorized representative testified that the employee’s computation date for his employment at the IOP was 1943 but that he actually started working at the IOP in 1942 as a guard, and that the employee retired from the IOP in 1974. [Claimant]‘s son also testified that [Claimant] was employed at the hospital as head nurse, that [Claimant] rode to work with the employee, and that [Claimant] knew that there was a time that the employee worked on Line 1. He stated that the documents indicate that the employee worked at the plant for 10,800 days and noted that the SEC requirement is 250 days. He stated that the employee’s pay increase records, which he submitted after the hearing, prove the employee’s length of employment. He explained that the DOE evidence indicating that the employee worked at the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961 was erroneous and reflected his own employment at the plant. He explained that the mix-up by DOE occurred due to the fact that he and the employee have the same name. [Claimant]‘s son testified that he obtained and reviewed the employee’s employment records at the plant from 1942 through 1974. He submitted an email dated February 25, 2008, marked as Exhibit 1, from Marek Mikulski of the Burlington AEC Plant Former Workers Program, which confirms that DOE incorrectly verified the employee’s employment at the Plant, by providing the employment dates of the employee’s son, who also worked at the plant.
[Claimant]‘s son testified that the employee worked at the fire department at the plant, and thus had access to Line 1. He testified that he lunched with the employee at Line 1. He stated that [Claimant] drove the employee to work every day and dropped him off at the guard gate at Line 1. He stated that the records submitted, including the employee’s job descriptions, have numerous references to the employee having access to all lines at the IOP. [Claimant]‘s son also read information from several affidavits into the record, noting that the actual affidavits would be submitted immediately after the hearing. He identified a photograph, submitted with the objection letter, of the employee wearing a badge that stated “all areas.”
At the hearing, [Claimant] presented the following documents as evidence: a Department of the Army job description for an “Ammunition Loading Inspector, Leader,” dated April 20, 1960; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated February 15, 1965; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated July 19, 1955; a Department of the Army Certificate of Training for “One Year Firefighter-Guard Training” given at the IOP dated May 29, 1950; a Department of Army Form 873, Certificate of Clearance dated May 29, 1957 from IOP; a Department of the Army Notification of Personnel Action dated October 30, 1950, which reflects the promotion of [Employee] from Guard (Crew Chief) to Guard (Captain); an affidavit by a friend of the employee who attested that the employee worked all over the IOP as a guard-quality control; an affidavit by a work associate of the employee who attested that he worked at the IOP on Line 1 as a guard and quality control from 1960 to April 1974, and that she and the employee had lunch and worked together on Line 1; an affidavit of a work associate of the employee who attested that she worked for the employee in the Quality Assurance Department on all lines; an affidavit by [Claimant]‘s son and authorized representative, who identified himself as a work associate and son of the employee. In this affidavit, [Claimant]‘s son and authorized representative attested that the employee worked in Quality Assurance and as a Guard at the IAAP as a federal employee. He stated that he knew this because he was employed to cut grass on Line 1 and that he had lunch with the employee there. He stated that the employee had clearance to be on Line 1 because he was not required to be accompanied by a guard. [Claimant] also submitted an affidavit by [Claimant]‘s other son, who attested that his father worked at the AEC at IOP from December 1942 to April 1974 as a Guard and Quality Control supervisor; and her own affidavit, in which she attested that the employee worked at the IOP on Line 1. [Claimant] also attested that the employee was a Guard and Quality Control Supervisor working throughout the plant with access to all Lines. [Claimant] further stated that she rode to work with the employee and often let him off at Line 1 while she continued on to her job at the hospital.
A copy of the hearing transcript was sent to [Claimant] on March 24, 2008, who provided additional comments on the hearing transcript. On April 11, 2008, FAB received [Claimant]‘s son and authorized representative’s letter expressing his disappointment in the hearing because [Claimant] was not provided an opportunity to discover evidence from the Department of Labor indicating that the employee did not work on Line 1 for at least 250 days. [Claimant]‘s son also provided a copy of Congressman Dave Loebsack’s March 19, 2008 inquiry to the Department of Labor regarding the status of [Claimant]‘s claim. The letter also referred to the FAB Hearing Representative’s March 25, 2008 call confirming that kidney cancer is a “specified cancer.” He stated his concern that the exhibits submitted at the hearing were not reproduced in the hearing transcript, and emphasized that the exhibits were more probative than the hearing testimony. He provided a summary of the content of the six affidavits and personnel records submitted at the hearing and expressed concern whether the documentation would be reviewed and considered.
Response: The additional documents [Claimant] submitted with her objections and at the hearing establish that the employment dates provided for the employee by DOE were incorrect and, in fact, reflected the employment dates of the employee’s son, who also worked at the plant. Based on the new evidence [Claimant] submitted, a new finding has been made below that the employee was employed by the Department of the Army at the IAAP in Burlington, Iowa from June 29, 1943 to April 1, 1974.
The documents [Claimant] submitted with her objections include a copy of a June 1, 1942 certificate from the Iowa Ordnance Plant recognizing the employee’s completion of training as a Plant Guard. At the hearing, [Claimant] submitted a June 20, 1959 Federal Government/Civil Service Experience and Qualification Statement (SG-55) for the employee, which indicated that he was employed at the IAAP from February 11, 1952 to at least June 20, 1959 as an ammunition loading inspector in the Inspection Division; from August 6, 1950 to February 10, 1952 as a Captain in the Guard Department; and from June 29, 1947 to May 27, 1949 as an Ammunition & Equipment Storage Foreman in the Transportation & Storage Division. [Claimant] submitted, with her objection, a June 20, 1959 Government employment application with a handwritten resume, signed by the employee. The application states he was employed at the IOP from June 29, 1947 to May 27, 1949 as an Ammo & Equipment Storage Foreman in the Transportation and Storage Division. A May 27, 1948 Application for Federal Employment, signed by the employee, states he was employed at the IOP as a Munitions Handler Foreman beginning June 1947; a Material Receiver and Checker from January 1947 to June 1947; a Guard from May 1946 to January 1947; and a Guard from December 1942 to May 1944 (shell and bomb loading). An October 30, 1950 Department of the Army Notification of Personnel Action reflects the promotion of the employee from Guard (Crew Chief) to Guard (Captain).
[Claimant] provided additional documentation, including EE-4 affidavits, work records for the employee, and testimony at the hearing indicating that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974 and that the employee worked on Line 1 for at least 250 days during March 1949 through 1974. The evidence reflects that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992. All of the evidence [Claimant] submitted with her objections and at the hearing has been reviewed and considered by FAB.
Objection 2: [Claimant] stated that the claim adjudication process was frustrating and difficult. She expressed her dissatisfaction with the way some of the claims examiners handled her claim.
Response: It is regrettable that [Claimant] experienced some difficulty during the processing of her claim. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) customer service policy affirms DEEOIC’s commitment to serving its customers with excellence. It is DEEOIC’s responsibility to work with its customers to improve the practical value of the information, services, products, and distribution mechanisms it provides and the importance of interacting proactively with customers, identifying their needs, and integrating these needs into DEEOIC program planning and implementation. The highest level of customer service is expected in all dealings with individuals conducting business with DEEOIC. As representatives of DEEOIC, all staff members are expected to be courteous, professional, flexible, honest and helpful.
After considering the written record of the claim, [Claimant]‘s letters of objection, along with the testimony and objections presented at the hearing, FAB hereby makes the following:
FINDINGS OF FACT
- [Claimant] filed a claim for survivor benefits under EEOICPA on June 12, 2007.
- The employee was employed by the Department of the Army at the IOP from June 29, 1943 to April 1, 1974. The employee worked for at least 250 work days on Line 1 during the period March 1949 through 1974.
- The employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.
- The employee died on May 21, 1996 as a consequence of congestive heart failure due to pneumonia. [Claimant] is the surviving spouse of the employee.
- An October 1, 1963 permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use. The permit did not obligate the Army to provide any specific services to the AEC, and does not in itself constitute a contract for the provision of services between the Army and the AEC by which the AEC paid the U.S. Army to provide services on Line 1.
Based on the above-noted findings of fact in this claim, FAB hereby makes the following:
CONCLUSIONS OF LAW
The undersigned has carefully reviewed the testimony, the evidence of record, and the November 30, 2007 recommended decision issued by the Cleveland district office. Based on [Claimant]‘s objections, testimony at the hearing, and the evidence of record, [Claimant]‘s survivor claim for benefits under Parts B and E for the employee’s kidney cancer and “lung condition” is denied.
Part B of EEOICPA provides benefits to eligible current or former employees of DOE, and certain of its vendors, contractors and subcontractors, and to survivors of such individuals. To be eligible, an employee must have sustained cancer, chronic silicosis, beryllium sensitivity or chronic beryllium disease while in the performance of duty at a covered DOE facility, atomic weapons employer facility, or a beryllium vendor facility during a specified period of time.
With respect to claims for cancer arising out of work-related exposure to radiation under Part B, the SEC was established by Congress to allow the adjudication of certain claims without the completion of a radiation dose reconstruction. See 42 C.F.R. § 83.5 (2007). The Department of Labor (DOL) can move directly to a decision on cases involving a “specified cancer” contracted by a member of the SEC because the statute provides a presumption that specified cancers contracted by a member were caused by the worker’s exposure to radiation at a covered facility. A “specified cancer” is any cancer described in the list appearing at 20 C.F.R. § 30.5(ff) (2007).
On June 19, 2005, employees of DOE or DOE contractors or subcontractors employed at the IOP/IAAP (Line 1) during the period March 1949 through 1974 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 within the parameters (excluding aggregate work day requirements) established for other classes of employees in the SEC were added to the SEC. 70 Fed. Reg. 37409 (June 29, 2005).
In order for an employee to be afforded coverage under EEOICPA, the employee must be a “covered employee.” 42 U.S.C. § 7384l(11)(B). The evidence of record demonstrates that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974, and that he worked for at least 250 work days on Line 1 during the period March 1949 through 1974. He was diagnosed with kidney cancer on June 29, 1992, and kidney cancer is a specified cancer. However, the evidence is insufficient to show that the Department of the Army was a DOE contractor or subcontractor. Consequently, the employee does not qualify as a “covered employee with cancer,” under EEOICPA. See 42 U.S.C. § 7384l(9)(A).
Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility. See 42 U.S.C. § 7385s(2); 20 C.F.R. § 30.5(p).
The term “Department of Energy contractor employee” means any of the following:
(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.
42 U.S.C. § 7384l(11).
On June 3, 2003, DEEOIC issued EEOICPA Bulletin No. 03-26, which provides guidance to its staff with respect to the adjudication of EEOICPA claims filed by current or former employees of state or federal government agencies seeking coverage as a “DOE contractor employee.” The policy and procedures outlined in this Bulletin only apply to state and federal agencies that have/had a contract or an agreement with DOE. The Bulletin 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 one or more services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity. Thus, a civilian employee of DOD who meets the criteria required to be considered a DOE contractor employee is not excluded from EEOICPA coverage solely because they were employed by DOD.
The evidence of record includes an October 1, 1963 Department of the Army document entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.” The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IAAP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use. Because the condition did not obligate the Army to provide any specific services to the AEC, it is insufficient to establish that a contract for the provision of services between the Army and the AEC existed by which the AEC paid the U.S. Army to provide services on Line 1 that the Army was not otherwise statutorily obligated to perform.
Section 30.110(c) of the regulations provides that any claim that does not meet all of the criteria for at least one of the categories including a “covered employee” (as defined in § 30.5(p)) as set forth in the regulations must be denied. See 20 C.F.R. §§ 30.5(p), 30.110(b) and (c).
The evidence of record does not show that the employee was employed by a DOE contractor or subcontractor as required by 42 U.S.C. § 7384l(11). Accordingly, [Claimant]‘s claim under EEOICPA is denied.
Washington, D.C.
Susan von Struensee
Hearing Representative
Final Adjudication Branch
EEOICPA Fin. Dec. No. 10024820-2006 (Dep’t of Labor, April 17, 2006)
NOTICE OF FINAL DECISION
This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on 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 under Part E is denied.
STATEMENT OF THE CASE
On October 1, 2001, you filed Form EE-1, Claim for Benefits under the Energy Employees Occupational Illness Compensation Program Act indicating that you were diagnosed with beryllium sensitivity and that you worked at a Department of Energy (DOE) facility.
On Form EE-3, Employment History, you stated that you were employed at the U.S. Department of Energy, Albuquerque Operations Office, assigned to the Rocky Flats Area Office in Golden, CO from 1958 to May 5, 1978. Kaiser-Hill, the Rocky Flats Plant operator, stated that there were no records to support you were employed directly by the plant operator, however; you were issued a radiation monitoring badge from September 29, 1958 to May 5, 1978.
A beryllium lymphocyte transformation test from blood drawn on March 24, 1997, revealed an abnormal response to beryllium sulfate.
On March 10, 2003, the Final Adjudication Branch accepted your claim for the medical monitoring of beryllium sensitivity.
On October 25, 2001, you filed Form KK-1, Request for Review by Medical Panels, with the Department of Energy (DOE) under Part D of the Act. On October 28, 2004, Part E of EEOICPA was created when Congress repealed Part D of EEOICPA, and your claim is now being processed under Part E.
The Denver district office confirmed that you were a federal employee employed by the Atomic Energy Commission at Rocky Flats from September 29, 1958 to May 5, 1978.
On March 21, 2006, the Denver district office issued a recommended decision denying your claim for benefits under Part E of the Act, as you were not a “covered DOE contractor employee.” After reviewing the evidence in your claim, the Final Adjudication Branch makes the following:
FINDINGS OF FACT
- You filed a claim for compensation under the former Part D of the Act on October 25, 2001.
- You were a federal employee directly employed by the Atomic Energy Commission at the Rocky Flats Plant, from September 29, 1958 to May 5, 1978; therefore, you cannot be considered a DOE contractor employee.
- You were diagnosed with beryllium sensitivity on March 24, 1997.
Based on the above noted findings of fact in this claim, the Final Adjudication Branch makes the following:
CONCLUSIONS OF LAW
Pursuant to the regulations implementing of EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence in the record and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R. § 30.316(a). On March 31, 2006, the Final Adjudication Branch received your written notification waiving any and all objections to the recommended decision.
A “covered Part E employee” means, under Part E of the Act, a Department of Energy contractor employee or RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness through exposure at Department of Energy facility or a RECA section 5 facility, as appropriate. See 20 C.F.R. § 30.5(p).
You have not established that you were a DOE contractor employee pursuant to 42 U.S.C. § 7385s(1) of the EEOICPA.
You are not entitled to compensation pursuant to Part E.
The undersigned has thoroughly reviewed the case record and finds that it is in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claim under Part E is denied.
Denver, Colorado
Anna Navarro
Hearing Representative
EEOICPA Fin. Dec. No. 10028664-2006 (Dep’t of Labor, August 24, 2006)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This decision of the Final Adjudication Branch concerns the above 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. A copy of this decision will be provided to your authorized representative.
STATEMENT OF THE CASE
On August 27, 2001, you filed Form EE-2, Claim for Survivor’s Benefits and a Request for Review by Medical Panels under EEOICPA. You stated on the Form EE-2 that you were filing for the aplastic anemia of your late spouse, [Employee], hereinafter referred to as “the employee.” The death certificate shows the employee died on March 5, 1997 from intracerebral hemorrhage, severe thrombocytopenia, and myelodysplastic syndrome.
On the Form EE-3, Employment History, you stated that the employee was employed in Oak Ridge, Tennessee as a quality assurance inspector by Union Carbide Corporation, Nuclear Division, at the K-25 gaseous diffusion plant from 1952 to June 30, 1974. In a letter dated June 1, 2001, you stated that the employee worked at the Y-12 plant from June 30, 1952 to June 28, 1974. The district office verified the employee was actually an employee of the Atomic Energy Commission (AEC) (which became the Department of Energy (DOE)) who worked at K-25 for at least 250 days from 1963 to June 30, 1974, as a quality assurance specialist.
In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on February 3, 1945, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death.
Because there are no requirements under Part B of the Act that an employee who qualifies for membership in the Special Exposure Cohort (SEC) with a specified cancer be a “contractor employee,” your claim under that portion of the Act was approved by final decision dated March 12, 2002.
However, because the necessary elements to establish covered employment were not met under Part E of the Act, the Jacksonville district office issued a recommended denial on April 4, 2006. The decision found that the employee did not qualify as a “DOE contractor employee” as described under the Act. The recommended decision informed you that you had sixty days to file any objections, in accordance with § 30.310(b) of the implementing regulations, and that period ended on June 3, 2006. 20 C.F.R. § 30.310(b).
OBJECTIONS
On April 14, 2006, the Final Adjudication Branch (FAB) received a letter from Congressman John J. Duncan, Jr. The letter from Congressman Duncan included a letter from you, dated April 7, 2006, objecting to the recommended decision and requesting an oral hearing. The hearing was held by the undersigned in Oak Ridge, Tennessee, on July 12, 2006. You and your attorney were both duly affirmed to provide truthful testimony.
In the letter of objection, you stated that written evidence was included, but there were no enclosures. At the hearing, your attorney submitted copies of the employee’s job description and specific objections to the recommended decision. He stated that the recommended decision issued in 2002 found that the employee was an employee of Union Carbide and this should be binding on any future decisions. He noted that a Physicians Panel review under former Part D of the Act was completed and the Secretary of Energy accepted the Panel’s affirmative determination that the employee’s myelodysplastic syndrome was due to exposure to a toxic substance at a DOE facility. He stated that the physicians on the panel ruled that the employee was a DOE contractor employee and that should be binding on the Department of Labor (DOL). He stated that the Part E procedures required acceptance of these types of claims. He also argued that the employee should be considered a “researcher” under the Act, since Congress did not provide a definition of a researcher, and the job duties of the employee “would constitute nuclear materials research done on behalf of the AEC in the area of quality assurance.”
One of the documents submitted shows that the employee also performed his job duties for the AEC at other facilities, such as the Kerr McGee facility in Guthrie, Oklahoma[1], and the Union Carbide facility in Wood River Junction, Rhode Island.[2] The employee’s resume states he worked for the AEC in Oak Ridge from 1952 to June 30, 1974, verifying that contractors followed building codes and specifications to meet the contracts issued by the AEC and inspected the manufacturing of equipment made of various types of metal. He also stated that he worked for the AEC from 1946 to 1952 as a security inspector at various AEC installations throughout the United States. The periods from 1940 to 1946 and from 1950 to 1952 were military service.
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), 30.314(f). On July 21, 2006, the transcript was forwarded to you and your attorney. You did not provide any corrections or changes to the transcript.
On July 26, 2006, the Final Adjudication Branch received a submission from your attorney, reiterating the objections and arguments set forth during the hearing.
FINDINGS OF FACT
1. You filed a claim for survivor’s benefits under the Act.
2. The employee was diagnosed with myelodysplastic syndrome on April 19, 1996 and his death on March 5, 1997 resulted from that condition.
3. The employee worked for the Department of Energy at the Y-12 plant and the K-25 gaseous diffusion plant from at least 1963 to June 30, 1974, with intermittent periods at other facilities.
4. You were the employee’s spouse at the time of his death and at least a year prior.
CONCLUSIONS OF LAW
The undersigned has reviewed the facts, the recommended decision issued by the Jacksonville district office on April 4, 2006, and the information received before, during, and after the hearing.
The eligibility criteria for claims under Part E of EEOICPA are discussed in the regulations, which require that the employee be a Department of Energy contractor employee as defined in § 30.5(w). Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by: (i) an entity that contracted with the DOE to provide management and operation, 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. 20 C.F.R. § 30.5(w); 42 U.S.C. § 7384l(11).
The finding in a recommended decision that the employee was employed by Union Carbide is not legally binding, since only final decisions can be considered the legal determination of the Department of Labor. The Physicians Panel review finding of covered employment is also not binding on the Department of Labor. Under Part D, the DOE was to serve as a liaison with the various state workers’ compensation authorities, and as the letter from the DOE states, a filing under the appropriate state system would have been necessary. A finding that the employee was a federal government employee would likely have resulted in a negative decision from the state workers’ compensation authority.
The evidence submitted does not establish that the employee meets the definition of a DOE contractor employee or a researcher. An employee of the federal government cannot be considered an employee of a government contractor or subcontractor, unless the government agency by which they were/are employed had/has a contract with the DOE to provide services that meet the criteria established by the Act. 42 U.S.C. § 7384l(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.”[3] The qualification of a researcher in the Act requires “residence” at a DOE facility, which leads to the interpretation that the researcher is likely affiliated with a university or scientific body, and would logically have the word “researcher” or “research” in their job title or job description. A review of the employee’s job descriptions does not show the use of the word “research” or “researcher.”
The Act does state that a determination under Part B that a Department of Energy contractor [emphasis added] employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part [Part E] as a determination that the employee contracted that illness through exposure at a Department of Energy facility. 42 U.S.C. § 7385s-4. If an employee does not fall into the category of a contractor employee, then this section of the law does not apply.
You meet the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(1). However, since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under Part E of the Act, and the claim for compensation is denied. 42 U.S.C. §§ 7385s-4(c)(1)(A), 7385s-3(a)(1)(B).
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
[1] There is no facility in Guthrie, Oklahoma listed on the DOE’s Office of Worker Advocacy (OWA) website as a covered facility. The only facility in Oklahoma on the website associated with Kerr-McGee is listed as being in Crescent, Oklahoma, and is described as an atomic weapons employer (AWE).
[2] There is no facility in Wood River Junction, Rhode Island listed on the DOE OWA website as a covered facility. The only facility in Rhode Island listed on the website is listed as being in Cranston, Rhode Island, and is described as an AWE.
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
- You filed a claim for employee benefits on February 19, 2002.
- You submitted medical documentation adequate to establish a diagnosis of prostate cancer.
- 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 silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility. See 42 U.S.C. § 7384l(4)-(7), (9), (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. 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
- You filed a claim for employee benefits on February 19, 2002.
- You submitted medical documentation adequate to establish a diagnosis of prostate cancer.
- 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 silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility. See 42 U.S.C. § 7384l(4)-(7), (9), (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. 51813-2004 (Dep’t of Labor, December 27, 2004)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch concerning the 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). For the reasons stated below, the claims for survivor benefits are denied.
STATEMENT OF THE CASE
On December 2, 2003, [Claimant 1] filed a claim for survivor benefits under Part B of the EEOICPA. On February 4, 2004, [Claimant 2] filed for survivor benefits under Part B of the EEOICPA. On March 16, 2004, [Claimant 3] and [Claimant 4] filed claims for survivor benefits under Part B of the EEOICPA. Each claimant filed as a surviving grandchild of Employee]. [Employee] passed away on December 7, 1955. The claimants listed multiple myeloma and uremia amyloidosis as the medical conditions on which their claims are based. The evidence of record is sufficient to establish that [Employee] was diagnosed with multiple myeloma, a condition covered under Part B of the Act, in March 1955, as evidenced by information on his December 7, 1955 death certificate.
Social Security Earnings statements as well as the work history provided by the claimants, indicate that [Employee] was employed by various employers in Weldon Spring, MO, in approximately 1945. The record contains social security earnings records for the claimed period of time
The district office informed each claimant that the Weldon Spring Plant was not a covered facility until 1957. The district office afforded each claimant the opportunity to provide evidence to support that [Employee] had employment covered under the Act. The record fails to establish that the claimants provided additional employment evidence to the district office for review.
By recommended decision dated April 28, 2004, the Seattle district office recommended denial of each of the claims based on its findings that [Employee] is not a covered employee as defined under 42 U.S.C. § 7384l; and the evidence of record is insufficient to establish that [Employee] was present at a covered facility as defined under 42 U.S.C. § 7384l (12) while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under 42 U.S.C. § 7384l(11) during a covered time period.
On May 17, 2004, the Final Adjudication Branch received [Claimant 2]‘s letter of objection and request for an oral hearing. [Claimant 2] objected to the Seattle district office’s recommended decision on the basis of the covered time period which began in 1957. On June 16, 2004, a hearing was held in St. Louis, MO at the request of [Claimant 2]. It is noted that [Claimant 1] filed an objection to the recommended decision but did not request a hearing. [Claimant 1] participated in the June 16, 2004 hearing. On June 22, 2004, the Final Adjudication Branch received the June 15, 2004 letter from [Claimant 3] and [Claimant 4] objecting to the April 28, 2004, recommended decision. [Claimant 3] and [Claimant 4] object to the Seattle district office’s recommended decision on the basis of the covered time period which began in 1957.
On June 28, 2004, the undersigned contacted [Claimant 3] and explained that the letter of objection was received after the hearing had been held, but within the 60 day period in which objections could be filed. [Claimant 3] was informed that an oral hearing could be scheduled or they could be added to an existing hearing docket. After conferring with [Claimant 4], [Claimant 3] notified this office that they would like to be added to the July 27, 2004 docket of hearings. By letter dated July 6, 2004, each of the claimants were notified that a hearing at the request of [Claimant 3] and [Claimant 4] was to be conducted July 27, 2004 via telephone. By letters dated June 28, 2004, and September 1, 2004, each of the claimants were provided a copy of the transcripts from the June 16, 2004 and July 27, 2004 hearings respectively.
At the June 16, 2004 hearing, [Claimant 2] testified that when she was young, the family talked about the chemicals her grandfather, [Employee], worked with; he worked unprotected; that [Employee] became very ill and the family felt that it was a result of his work. [Claimant 2] provided testimony regarding information found on the internet (Exhibit A) which she felt showed that Weldon Springs was opened in 1940 and that the time frame established as the covered periods should be expanded. See hearing transcript pages 8 and 10. [Claimant 2] further testified that her mother talked about experiments conducted on [Employee] for “multiple myeloma, for the Japanese, for radiation poisoning, investigating on how – what caused it, how the body acts, what to do about it.” [Claimant 2] stated that she is researching this issue further. See hearing transcript page 15. The records provided by the Social Security Administration (Exhibit B) indicate that [Employee] worked in Kansas City in 1942 and 1943. [Claimant 2] testified that this may indicate that [Employee] worked at the Kansas City Plant and is attempting to confirm this. See hearing transcript page 10. [Claimant 2] also stated that one of her grandfather’s employers, T.A. Rick (Exhibit C), was a subcontractor to Mallinckrodt.
[Claimant 1] testified that his grandfather, [Employee], worked at Weldon Springs and at Kansas City and that during this timeframe, [Employee] was exposed to “things that he just did not know about.” [Claimant 1] testified that exposure to chemicals resulted in his grandfather’s death. See hearing transcript page 16. On July 9, 2004, [Claimant 2] requested a 30 day extension in which to provide additional evidence.
The hearing conducted on July 27, 2004, was attended by [Claimant 3]. [Claimant 3] testified that she recalled her grandmother stating that her grandfather, [Employee] “wouldn’t have gotten sick if it had not been for the plant.” During the hearing, [Claimant 3] questioned the provisions of the Act. On September 1, 2004, the undersigned provided [Claimant 3] with a copy of the Act along with the hearing transcript for her review.
The claimants have not provided any additional evidence or comments to the hearing transcripts.
FINDINGS OF FACT
1. Each claimant filed a claim for survivor benefits as a grandchild of the employee.
2. The claimants listed multiple myeloma and uremia amyloidosis as the medical conditions on which their claims are based. [Employee] was diagnosed with multiple myeloma in March 1955. Uremia amyloidosis is not a condition covered under Part B of the Act.
3. The Atomic Energy Commission (AEC) constructed the Weldon Spring Uranium Feed Materials Plant and contracted with the Mallinckrodt Chemical Company to operate the plant starting in June 1957. The claimants stated that the employee worked for various employers at the Weldon Spring Plant in approximately 1945.
4. On April 28, 2004, the Seattle district office issued a recommended decision to deny the claims for survivor benefits because the evidence of record is insufficient to establish that [Employee] was present at a covered facility while working for the Department of Energy or any of its covered contractors, subcontractors or vendors.
5. The claimants objected to the recommended decision. [Claimant 2], [Claimant 3], and [Claimant 4] each requested a hearing. [Claimant 1] objected to the recommended decision, but did not request a hearing.
6. The hearings were held on June 16, 2004 and July 27, 2004. The claimants have not submitted any additional evidence or comments on the hearing transcripts, copies of which were sent to the claimants on June 28, 2004 and September 1, 2004.
CONCLUSIONS OF LAW
The issue to be decided is whether [Employee] is a covered employee as defined under the Act based on the claimed employment in Weldon Spring, MO, in 1945. According to the updated Department of Energy’s facility list, reviewed by the undersigned on December 15, 2004, the Weldon Springs Plant is designated as a Department of Energy facility for the period of 1957 to 1967 and again from 1975 through the present for remediation.[1] The DOE facility list states in part: “In 1955 the Army transferred 205 acres of what had been the Weldon Springs Ordnance Works to the AEC for construction of a uranium feed materials plant. The AEC constructed the Weldon Spring Uranium Feed Materials Plantat this location and contracted with the Mallinckrodt Chemical Company to operate the plant starting in June 1957. The plant was used for uranium refining activities in support of the national defense program. The AEC closed down the plant in December 1966 after deciding it was obsolete.”
At the June 16, 2004 hearing, [Claimant 2]provided as Exhibit A, information from the internet[2] which states in part: “The Weldon Springs Uranium Feed Materials Plant is on 220 acres of land between the Missouri and Mississippi Rivers near St. Louis, Missouri. Weldon Springs Site is located at 7295 Highway 94 South in St. Charles, Missouri, on a portion of the former Weldon Springs Ordinance Works, a 17,000 acre Army facility operated from 1941-45 which produced explosives. A quarry located on the site was used by the Army for limestone to construct the Ordinance Works and then as a dump for TNT and DNT contaminated waste and rubble which they burned. In 1955 the Army transferred some of the property to the AEC who built the Uranium Feed Materials Plant. . . .” According to both the DOE facility list and Exhibit A, the Army transferred land to the AEC in 1955. The claim is based on employment in 1945. The established covered time period for the Weldon Spring Plant is 1957 to 1967 and from 1975 to the present. [Employee] passed away in 1955, prior to the covered time period.
To date, the claimants have not provided any evidence in support of their belief that [Employee] may have worked at the Kansas City Plant during the covered time period.
For the foregoing reasons, the undersigned must find that the claimants have not established their claims for compensation under Part B of the EEOICPA and that the Recommended Decision of the district office is correct. Therefore, the undersigned hereby affirms the denial of the claims for compensation under Part B of the EEOICPA.
Washington, DC
Linda M. Parker
Hearing Representative
[1] http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm.
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. 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. 34291-2003 (Dep’t of Labor, August 1, 2003)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
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 August 2, 2002, you filed a Claim for Benefits under the EEOICPA, form EE-1, through the Paducah Resource Center. On the EE-1 form, you indicated that the condition for which you filed your claim was kidney cancer. You submitted medical records from 1993 to 2001 that showed you had a nephrectomy in April of 1996. Medical records from Western Baptist Hospital from April of 1996 included an operative report for a right radical nephrectomy and a pathology report that confirmed the diagnosis of large renal cell carcinoma.
You also submitted a Form EE-3 indicating that you were employed as a conservation office for the Kentucky Department of Fish and Wildlife at the Paducah Gaseous Diffusion Plant (GDP) from 1969 to 1973. You submitted a Department of Energy (DOE) License for Non-Federal Use of Property for the purpose of wildlife development beginning September 4, 1953 and continuing indefinitely. You also submitted a DOE License for Non-Federal Use of Property for the period January 1, 1990 to December 31, 1995, and you submitted a DOE License for Non-Federal Use of Property for bow deer hunts for the period January 1, 1996 to December 31, 2000.
In addition, you submitted a copy of the five year plan and budget for the West Kentucky Wildlife Management Area for the period July 1, 1985 to June 30, 1990. You submitted an April 4, 1958 letter from the “Assistant General Counsel” noting that a corrected Quitclaim Deed from the United States of America to the State of Kentucky had been prepared and an August 21, 1989 report from the General Services Administration concluding that the State of Kentucky, Fish and Wildlife Division, was in compliance with the terms of the conveyance of these lands. You submitted an October 6, 1959 letter from Atomic Energy Commission (AEC) referencing a grant to the Commonwealth of Kentucky and the Department of Fish and Wildlife Resources of a license and permission to enter a portion of the AEC’s lands for the purpose of developing the wildlife on the property and conducting bird dog field trials. This letter extended the license and permission to additional lands. In an October 14, 1959 letter, the Director of the Division of Game recommended to the Governor of Kentucky that the license and permission to use the AEC lands be accepted. He noted that the Division would have no pecuniary obligation for use of the land, apart from patrolling, posting and protecting the land licensed for use by the Division of Fish and Wildlife Resources.
You submitted forms EE-4 from Shirley Beauchamp and Phillip Scott Beauchamp stating you worked for the Department of Fish and Wildlife at the Paducah GDP from 1968 to 1973. Social Security Earnings records were submitted showing employment with the state of Kentucky from 1971 to 1973. The Department of Energy advised the district office, however, that DOE had no information regarding your employment.
On November 15, 2002, the district office issued a recommended decision concluding that you were not employed by an entity that contracted with the DOE to provide “management and operating, management and integration, or environmental remediation” as set forth in 42 U.S.C. § 7384l(11)(B)(i) and (ii) and that, accordingly, you were not a covered DOE contractor. The district office therefore recommended that benefits be denied.
On December 23, 2002, you filed an objection to the recommended decision and requested a hearing. An oral hearing was held on February 26, 2003. At the hearing, you testified that you worked for the Kentucky Department of Fish and Wildlife from 1971 to 1973 and that you worked at the Paducah GDP and its surrounding grounds. You testified that your duties included patrolling the perimeter of the fenced portion of the plant and building two bridges and that you entered the plant through the main gate on a regular basis to remove animals that got into the GDP. You testified that you did not enter any of the buildings inside the fenced area of the GDP. You described other duties you performed during this period of employment, and you testified that you checked hunting and fishing licenses and controlled hunting at the reserve. You testified also that you participated in game sampling in conjunction with the DOE prior to the hunting season and that DOE would collect specific body parts provided by the Department of Fish and Wildlife and ship them for sampling.
FINDINGS OF FACT
You filed a claim for benefits under the EEOICPA on August 2, 2002. You were employed by the State of Kentucky, Department of Fish and Wildlife from 1971 to 1973. You were diagnosed with kidney cancer on or about April 13, 1996. You have not established that you worked in employment covered under the EEOICPA.
CONCLUSIONS OF LAW
A covered employee is eligible for compensation under the EEOICPA for an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). A “covered employee” is eligible for compensation under EEOICPA for a specified “occupational illness.” A “covered employee,” as defined in §§ 7384l(1),7384l(3),7384l(7),7384l(9), 7384l(11) and § 7384r of the EEOICPA, includes employees of private companies (an entity “other than the United States”, per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors. 42 U.S.C. §§ 7384l(1),(3),(7),(9), (11); 7384r. Section 7384(l)(11)(B)(I and ii) defines a “Department of Energy contractor employee” to include
“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 DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined, as well as whether employees of state or federal governments may be considered DOE contractor employees, in EEOICPA Bulletins No. 03-27 (issued May 28, 2003) and No. 03-26 (issued June 3, 2003). The following definitions have been adopted by the DEEOIC:
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.
Contract – An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”
For a civilian employee of a state or federal government agency to be considered a DOE contractor employee, it must be shown that the government agency employing that individual entered into a contract with the DOE for the accomplishment of one or more services it was not statutorily obligated to perform and that the DOE compensated the agency for that activity.
There is no evidence that the DOE compensated the State of Kentucky, Department of Fish and Wildlife Resources, for any services on behalf of the Department of Energy. The State of Kentucky was simply given permission to use federal land. The fact that the State of Kentucky was not required to provide any fees for use of federal property does not, conversely, show that the Department of Energy compensated the State of Kentucky for services provided by the State. The evidence of record shows simply that the Department of Energy or AEC gave permission for the State of Kentucky to use certain of its lands in order to conduct bird dog trials or hunting or fishing or similar activities. The Fish and Wildlife division was responsible for the activities that it would otherwise be responsible for under state law. The quitclaim deed to certain lands was not compensation to the State of Kentucky for any services performed for the Department of Energy, but was conveyed to the State of Kentucky for the purpose of management for wildlife purposes. The mere presence of an individual on DOE-owned property does not confer covered employment status.
For the foregoing reasons, the undersigned must find that you have not established your claim for compensation under the EEOICPA and hereby denies your claim for compensation.
Cleveland, Ohio
Anthony Zona
Hearing Representative
EEOICPA Fin. Dec. No. 559-2004 (Dep’t of Labor, October 25, 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 of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, your claim for benefits is denied.
STATEMENT OF THE CASE
On July 31, 2001, you filed a claim for benefits under the EEOICPA listing endometrial adenocarcinoma, colon carcinoma and another lung condition identified as lung collapsed as the medical conditions on which your claim is based. An operative report dated May 27, 1994 provides a diagnosis of endometrial adenocarcinoma. An operative report dated June 16, 1997 provides a diagnosis of colon carcinoma. The district office informed you that the claimed lung condition is not covered under the Act.
The employment history form, EE-3, states that you were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 1979 to March 1995. DOE verified your employment at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.
You further stated on the EE-3 that you worked for KID Broadcasting, Company from 1954 to 1975 and that while covering news stories, you frequently worked at sites where radiation and contamination were present. You did not however claim that this employment was with the Department of Energy (DOE), one of its contractors or subcontractors or a beryllium vendor. As noted by the district office in the recommended decision, visiting a covered facility is not considered covered employment for the purposes of this benefit program.
To determine the probability that you sustained cancer in the performance of duty, the district office forwarded a complete copy of your case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose you had received in the course of your employment at the Idaho National Engineering and Environmental Laboratory. On June 9, 2004, you signed Form OCAS-1, 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.
On July 1, 2004, NIOSH provided the district office with a copy of the dose reconstruction. The report states that NIOSH assigned an overestimate of radiation dose using maximizing assumptions related to radiation exposure and intake, based on current science, documented experience and relevant data. Based on the dose reconstruction, NIOSH estimated that the dose to the uterus was 19.276 rem (roentgen equivalent man) and the dose to the colon was 20.613 rem. According to the dose reconstruction report, the NIOSH reported dose is a significant overestimate of your occupational radiation dose.
Pursuant to 42 C.F.R. § 81.20 of the Department of Health and Human Services’ regulations, the district office used the information provided in this report to determine that there was a combined total probability of 26.18% that your endometrial adenocarcinoma and your colon carcinoma were caused by radiation exposure at the Idaho National Engineering and Environmental Laboratory.
On August 12, 2004, the Cleveland district office issued a recommended decision to deny your claim for compensation benefits. Based on the evidence contained in the case record, the district office concluded that the claim for another lung condition, identified as “lung collapsed” does not qualify you as a covered employee under 42 U.S.C. § 7384l(1), as this condition is not an occupational illness, per 42 U.S.C. § 7384l(15); you are not a covered employee as defined by 42 U.S.C. § 7384l(9)(B), as you do not meet the requirements shown, 42 U.S.C. § 7384n(b); the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10 and the Probability of Causation was completed 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 calculation was based on multiple primary cancer sites and was completed in accordance with 42 C.F.R. §81.25.
FINDINGS OF FACT
- You filed a claim for benefits under the EEOICPA on July 31, 2001.
- You were employed at the Idaho National Engineering and Environmental Laboratory (INEEL) from March 26, 1979 through January 31, 1995.
- The first diagnosis of endometrial adenocarcinoma was made on May 27, 1994, after you began employment at a covered facility.
- The first diagnosis of colon carcinoma was made on June 16, 1997, after you began employment at a covered facility.
- NIOSH reported annual dose estimates for your cancers from the date of initial radiation exposure during covered employment, to the date of the cancers’ first diagnosis. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 25, 2004.
- The undersigned has verified that there is a combined total of 26.18% probability that the cancers were caused by your occupational radiation exposure during your covered employment at the Idaho National Engineering and Environmental Laboratory (INEEL).
- The probability of causation value is less than 50%, and shows that your endometrial adenocarcinoma and your colon carcinoma are not “at least as likely as not” related to employment at the covered facility.
- You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations.
CONCLUSIONS OF LAW
Section 30.310(a) of the EEOICPA implementing regulations provides 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, 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 30.316(a) of the EEOICPA regulations specifies, if the 60-day period expires and no objections are filed, the Final Adjudication Branch 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).
Based on my review of you case record, I find that the evidence in the record does not establish that you are entitled to compensation under the Act because the calculation of “probability of causation” does not show that there is a 50% or greater chance that your cancers were caused by radiation exposure received at the Idaho National Engineering and Environmental Laboratory (INEEL) in the performance of duty. Pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that the district office’s August 12, 2004 recommended decision is correct and I accept those findings and the recommendation of the district office. 20 C.F.R. § 30.316(a)
Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.
Washington, DC
Linda M. Parker
Hearing Representative
EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, December 1, 2004)
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 (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 July 25, 2001, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA). You identified beryllium sensitivity and tuberculosis as the conditions being claimed. As the claim was submitted prior to the start of the program, the date of filing is considered to be July 31, 2001, the effective date of the Act.
You also provided a Form EE-3 (Employment History) in which you stated that you were employed at a Beryllium Plant in Reading, Pennsylvania sometime between 1943 and 1945. On April 29, 2003, the corporate verifier for NGK Metals Corporation/Beryllium Corporation (Berylco) verified that you were employed at Berylco from February 6, 1945 to October 23, 1945. Berylco is recognized by the Department of Energy (DOE) as a covered beryllium vendor from 1943 to 1979. See DOE, Office of Worker Advocacy Facility List.
You submitted medical records in support of your claim including three reports of abnormal beryllium lymphocyte proliferation tests (BeLPT’s) performed on January 23, March 1, and May 11, 2001; as well as, a report of pulmonary testing performed on May 10, 2001. Also submitted was a letter from Milton D. Rossman, M.D., dated May 29, 2001, stating that you were referred for beryllium evaluation as a result of abnormal BeLPTs and slightly reduced pulmonary function test (PFT) results. The letter further stated that the PFTs exhibited reduced lung capacity and that a fiber-optic bronchoscopy yielded 19.8 percent lymphocytes. Dr. Rossman also identified abnormal findings in you chest x-rays. However, Dr. Rossman could not definitively state whether or not your symptoms were due to interstitial lung disease or congestive heart failure.
Based on the information submitted, the Cleveland district office determined that sufficient medical evidence existed to award medical benefits for beryllium sensitivity monitoring. Prior to issuing a decision awarding benefits, the district office on March 4, 2002, sent you Form EE/EN-15, and requested that you sign, complete, and return the documents, as they were required to determine whether or not you were a party to any litigation against a covered “beryllium vendor” or had received a settlement or court judgment arising out of litigation against a “beryllium vendor.”
On April 2, 2002, you via legal counsel, requested withdrawal of your claim. Subsequently, on April 3, 2003, you via legal counsel, later verified as your authorized representative, requested a reopening of your claim. On May 8, 2003, the district office again sent you Form EE/EN-15, and requested that you sign, complete, and return the documents. On June 9, 2003, the district office received a completed Form EN-15 signed by your authorized representative. In addition, your authorized representative indicated that you had not filed a tort suit against a beryllium vendor or atomic weapons employer in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA. He listed the tort suit [Employee], et al. v. Cabot Corporation, et al. and attached a copy of the complaint. The complaint seeks relief for damages allegedly sustained as a result of your alleged exposure to beryllium as “down-winders” living within six miles of the defendants’ facility in Reading, Pennsylvania. Also, the complaint includes allegations that were based on your employment at the defendant’s Reading, Pennsylvania facility. On June 10, 2003, the district office again sent you Form EE/EN-15, and requested that you sign, complete, and return the documents, as your authorized representative does not have the authority to sign on your behalf. See Federal (EEOICPA) Procedure Manual, Chapter 2-1200 (January 2002).
On June 30, 2003, the district office received a completed Form EN-15 signed by you, indicating the same effects initially indicated by your authorized representative. You also provided additional medical evidence in support of chronic beryllium disease (CBD) including a narrative report and pulmonary function studies from Milton D. Rossman, M.D., dated March 14, 2002, indicating a condition consistent with CBD. You submitted a computerized axial tomography (CT) scan of the chest dated April 11, 2002, showing scattered bilateral calcified and non-calcified lung nodules indicative of granulomas. Further, you provided a narrative report and pulmonary function studies from Dr. Rossman, dated August 5, 2002, indicating a condition consistent with CBD.
On July 7, 2003, the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD; however, it appeared that your lawsuit’s cause of action was in part based on your covered employment, as well as, your beryllium illness, and thus could have an adverse affect on your claim for compensation. You were also notified that your complaint would be forwarded to our National Office, as well as, the Department of Labor’s Solicitor’s Office, to determine if the district office’s interpretation of your lawsuit’s cause of action was accurate. In addition, you were notified that according to the district office’s present interpretation of your lawsuit’s cause of action, as well as, the governing statute and regulations, you would not be eligible for compensation benefits. Further, the district office informed you that based on the medical evidence submitted you would have to dismiss your lawsuit by September 1, 2003, to not be disqualified for compensation.
On July 30, 2003, the district office received a statement from your authorized representative that “any reasonable interpretation of the Complaint, particularly viewing Paragraphs 16 through 20 inclusive of the Complaint, makes clear that [Employee]‘s lawsuit is based upon his exposure as a resident near the Reading plant and nothing more.” It is further indicated that the facts the district office is considering are “incidental to the main cause of action which is one for environmental harm.”
In order to resolve the issue of whether or not your complaint against Cabot Corporation constituted a tort claim your case was forwarded to the Office of the Solicitor (SOL) for review and opinion. On January 15, 2004, the SOL concluded that, “since the date that [Employee] was required by § 7385d(c) to dismiss the portion of his tort suit that involved his employment-related exposure to beryllium passed before he did so, he is no longer potentially entitled to any EEOICPA benefits.” Thus, you were required to and did not dismiss any parts of the complaint falling within that description on or before April 30, 2003, also because more than 30 months elapsed before your tort suit was dismissed your potential entitlement to EEOICPA benefits were barred by operation of law. See 42 U.S.C. § 7385d(c)(2).
On July 30, 2004, the Branch Chief of Policies, Regulations & Procedures, DEEOIC, sent a letter to the district office noting that, “§ 7385d of the Act states that the tort suit must be dismissed before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by subtitle B of a covered employee may be connected to the exposure of the covered employee in the performance of duty under section 3623. In this instance, a review of the medical evidence of file (and of the Form EE-1) reveals that the date you first became aware that your beryllium illness was related to employment was no later than May 29, 2001 (the date of Dr. Rossman’s report indicated that you exhibited an abnormal proliferative response to beryllium, showed reduced lung capacity, and underwent a bronchoscopy yielding 19.8 percent lymphocytes, which serves as evidence that you had been diagnosed with a beryllium illness). While there are indications that you were made “aware” of your beryllium illness as early as January 23, 2001, the date of the first abnormal BeLPT, a full review of the medical evidence indicates that you became fully “aware” of your condition on May 29, 2001.
On July 28, 2004, the district office issued a recommended decision which concluded that you are a covered beryllium employee as defined by 42 U.S.C. § 7384l(7) and were exposed to beryllium in the performance of duty under 42 U.S.C. § 7384n. You were diagnosed with a beryllium illness, which is a covered occupational illness as defined by 42 U.S.C. § 7384l(8). The recommended decision further concluded that 42 U.S.C. § 7385d establishes different deadlines, varying according to the date of the filing of a lawsuit, by which an EEOICPA claimant must make the election of remedy. Because your lawsuit was filed on April 17, 2002, subsection 7385d(c) governs this date. That provision states, in subsection (c)(2), that “an otherwise eligible individual” must “dismiss” the “covered tort suit” on or before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by Part B may be connected to the exposure of the covered employee in the performance of duty under § 3623. In this instance, the 30 month date was November 29, 2003. Therefore, the recommended decision also concluded that, since the lawsuit was not dismissed until December 17, 2003, you are not eligible for compensation under the Act. Further, the district office concluded that tuberculosis is not an occupational illness as defined by § 7384l(15) of the EEOICPA.
On September 17, 2004, an objection to the recommended decision was received via fax from your authorized representative. The objections were based on issues related to your lawsuit, as well as, evidence in support of CBD.
FINDINGS OF FACT
1. You filed a claim for benefits effective July 31, 2001 based on beryllium sensitivity and tuberculosis.
2. You were employed with Berylco, from February 6, 1945 to October 23, 1945.
3. Berylco is a beryllium vendor.
4. You are a covered beryllium employee, working at Berylco during a covered time period when beryllium was present.
5. You were diagnosed with beryllium sensitivity and submitted medical evidence in support of the post-January 1, 1993 requirements for CBD, both considered occupational illnesses under the EEOICPA.
6. Tuberculosis is not an occupational illness covered under the EEOICPA.
7. Your lawsuit against Cabot Corporation alleges a claim against a beryllium vendor arising out of a covered beryllium employee’s employment-related exposure to beryllium.
8. You did not dismiss your lawsuit by November 29 , 2003.
CONCLUSIONS OF LAW
The regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law in the recommended decision. See 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, in the absence of a request for a hearing. See 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. See 20 C.F.R. § 30.313. Consequently, the Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s).
In order to be afforded coverage under the EEOICPA, you must establish that you had been diagnosed with a designated occupational illness resulting from the 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). 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. See 42 U.S.C. § 7384l(4)-(7), (9), (11).
The Final Adjudication Branch considered your objections to the recommended decision. First, you indicate that your claim is not merely for beryllium sensitivity under the Act, but for CBD, which was diagnosed in your favor as of August 2002. In addition, you submitted several duplicate copies of Dr. Rossman’s diagnostic report dated August 5, 2002. On June 30, 2003, the district office received medical evidence in support of CBD. You submitted a narrative report and pulmonary function studies from Dr. Rossman, dated March 14, 2002, indicating a condition consistent with CBD. You submitted a CT scan of the chest dated April 11, 2002, showing scattered bilateral calcified and non-calcified lung nodules indicative of granulomas. Further, you provided narrative report and pulmonary function studies from Dr. Rossman, dated August 5, 2002, indicating a condition consistent with CBD.
The Final Adjudication Branch notes that all medical evidence submitted to date is post-1993, and thus the statutory criteria on or after January 1, 1993, would apply. For diagnoses on or after January 1, 1993, beryllium sensitivity [based on an abnormal BeLPT], together with lung pathology consistent with CBD, including one of the following: 1) a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; 2) a CT scan showing changes consistent with CBD; or 3) pulmonary function or exercise testing showing pulmonary deficits consistent with CBD. See 42 U.S.C. § 7384l(13)(A). One of the three reports of abnormal BeLPT’s performed on January 23, March 1, and May 11, 2001, respectively, in combination with the results of Dr. Rossman’s pulmonary function study, dated March 14, 2002, are consistent with a diagnosis of CBD after January 1, 1993. However, the condition of CBD is not in dispute, as the July 7, 2003 letter from the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD.
Second, you indicate that, although you did bring a tort claim against a beryllium vendor, it proceeded solely on the basis of long-standing, non-occupational exposure based upon nearby residency and employment outside of the beryllium vendor’s plant, not occupational exposure while employed by a beryllium vendor. The SOL opined that six counts set forth in your April 17, 2002 complaint, rely, at least in part, upon your exposure to beryllium while working for the defendant beryllium vendor, including one count brought by your spouse for loss of consortium. Specifically, paragraphs 6 and 21 of the complaint alleged that you had also been exposed to beryllium in the course of your employment at the defendants’ Reading plant in the early 1940’s. In addition, paragraph 24 of the complaint alleged that you had sustained CBD due to the above exposures, and paragraph 48 alleged that your spouse “has and will in the future be deprived of her husband’s services, companionship and society and hereby claims loss of consortium to her great detriment and loss.” The SOL concluded that paragraph 6 and 21 of the complaint alleged that you had been exposed to beryllium while working at the defendants’ Reading plant, and these paragraphs were incorporated into all six of the claims raised in the complaint.
Third, you indicate that based on an expert medical report prepared in connection with your legal claim concludes that your exposures from residing and working within the community was the medical cause of your CBD. In addition, you submitted several duplicate copies of the expert medical report from Lisa Maier, M.D., M.S.P.H. You specifically refer to page 17 of the report for conclusion on causation. On page 17 of the report, Dr. Maier states that “it is my medical opinion that his exposures primarily from residing and working with the community surrounding the beryllium facility caused or contributed substantially to his development of chronic beryllium disease.” In addition, on page 16 of the report, Dr. Maier states that “he may have also had some exposure while working for a very limited time in the Reading beryllium facility.” This report is in further support of your beryllium illness, which, as previously discussed, is not in dispute. Further, issues related to environmental exposure are not issues covered under the EEOICPA, as there is no provision under the EEOICPA for conditions that are not occupationally related.
The Final Adjudication Branch notes that issues related to environmental exposure will not be considered as it has no bearing on the outcome of the decision.
In the fourth, fifth, sixth, and seventh parts of your objection, you indicate the following: 1) “The Department of Labor, through its solicitor’s office, has clearly ruled in previous claims that a claimant may bring an action for his environment or non-occupational exposure to beryllium and simultaneously maintain a claim under the Act;” 2) As you are not a plaintiff in any lawsuit which requires dismissal under the Act, there is therefore, no obligation to dismiss such a lawsuit as contemplated under 42 U.S.C. § 7385d(c); 3) Notwithstanding that you did not have an obligation to dismiss a lawsuit, your lawsuit, “was marked dismissed upon the dockets, as noted by the recommended decision of July 28, 2004, on December 17, 2003;” and 4) “As the claim herein one for CBD, of which the claimant was made “aware” as defined under 20 C.F.R § 30.618(c)(2), a dismissal of a lawsuit occurred within 30 months after the date of the claimant’s diagnosis for CBD on August 5, 2002.” Based on these objections you demanded that your claim for benefits be approved.
As noted by the SOL, each of the six counts were based at least in part, upon your exposure to beryllium while working for the defendant beryllium vendor and you were required to dismiss any parts of your complaint arising out of your employment-related exposure to beryllium at the Reading facility. While as you indicated that the SOL has previously opined that an eligible claimant can maintain a lawsuit without the need for dismissal of an environmental claim and simultaneous present a claim under the EEOICPA, your complaint is not solely an environmental claim, as your environmental claim is not an issue in dispute. As discussed in the SOL’s opinion you were required to dismiss any parts of your complaint arising out of your employment-related exposure to beryllium at the Reading facility and did not do so by the date required under the Act.
In order to be eligible for benefits you must also satisfy the requirements under 42 U.S.C. § 7385d. SOL determined that in order to have preserved your eligibility for compensation under the EEOICPA, you were required to dismiss any parts of your complaint arising out of your employment related exposure to beryllium at the Reading facility by April 30, 2003. The Branch of Policies, Regulations and Procedures noted that in addition to the April 30, 2003 date, the Act provides that if the date that is 30 months after the date the individual first became aware that an illness covered by subtitle B of a covered employee may be connected to the exposure of the covered employee in the performance of duty under section 3623 is later, that later date is the date by which the complaint must be dismissed.
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 20 C.F.R. § 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 these regulations.” See 20 C.F.R. § 30.111(a).
In addition to meeting the EEOICPA requirements for a covered occupational illness and for covered employment, in cases where tort claims have been filed, 42 U.S.C. § 7385d establishes different deadlines, varying according to the date of the filing of a lawsuit, by which an EEOICPA claimant must make the election of remedy. If an otherwise eligible individual filed a tort case after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2002, subsection 7385d(c) governs this date. That provision states, in subsection (c)(2), that “an otherwise eligible individual” must “dismiss” the “covered tort suit” on or before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by Part B may be connected to the exposure of the covered employee in the performance of duty under section 7384n.
On July 7, 2003, the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD; however, it appeared that your lawsuit’s cause of action was in part based on your covered employment, as well as, your beryllium illness, and thus could have an adverse affect on your claim for compensation. Further, the district office informed you that based on the medical evidence submitted you would have to dismiss your lawsuit by September 1, 2003, to not be disqualified for compensation. While there are indications that you were made “aware” of your beryllium illness as early as January 23, 2001, the date of the first abnormal BeLPT, a full review of the medical evidence indicates that you became fully “aware” of your condition on May 29, 2001. Based on the medical evidence of record, you had until November 29, 2003, in order to dismiss the portions of your lawsuit based on occupational exposure to beryllium. However, you did not do so until December 17, 2003.
I have reviewed the evidence in the record and the recommended decision issued by the district office. A review of the evidence shows that you are a covered beryllium employee as defined by 42 U.S.C. § 7384l(7) and were exposed to beryllium in the performance of duty under 42 U.S.C. § 7384n. You also were diagnosed with CBD, which is a covered occupational illness as defined by 42 U.S.C. § 7384(8)(B) and met the criteria established for this diagnosis under 42 U.S.C. § 7384l(13)(A). However, you did not dismiss the covered tort case as required by 42 U.S.C. § 7385d(c)(2).
Since no evidence was submitted establishing that the lawsuit was timely dismissed your claim for compensation is denied pursuant to the provisions of 42 U.S.C. § 7385d(c)(2). In addition your claim based on tuberculosis is denied, as tuberculosis is not a covered occupational illness defined by § 7384l(15) of the EEOICPA.
Cleveland, Ohio
Debra A. Benedict
Acting 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. 56806-2004 (Dep’t of Labor, November 1, 2004)
NOTICE OF FINAL DECISION ANDREVIEW 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 April 19, 2004, you filed a Claim for Benefits under the EEOICPA, Form EE-1, with the Seattle district office, for prostate cancer, lung cancer, non-Hodgkin’s lymphoma and basal cell skin cancer. You stated on the EE-3 form that you were employed by the Missouri Pacific Railroad, and worked periodically at the Destrehan Street Site of the Mallinckrodt Chemical Company, between October 31, 1957 and June 30, 1963. The Destrehan Street Plant was a Department of Energy (DOE) facility, where radioactive material was present, from 1942 to 1962 and again (for remediation) in 1995, according to the Department of Energy Office of Worker Advocacy Facility List website at http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm.
On April 28, 2004, you were informed of the medical evidence you had to submit to support that you had been diagnosed with cancer. No medical evidence was submitted.
On June 2, 2004, you were informed of the categories of employment for which compensation benefits may be paid for cancer, under 42 U.S.C. § 7384s of the Act. You were also advised of the kinds of evidence which you could submit to support that you had such employment.
You responded with a letter, received in the district office on June 25, 2004, explaining how your employment as a sales representative for the Missouri Pacific Railroad led to your calling on many firms, including Mallinckrodt’s Destrehan Street Plant, from October 1957 to June 1963. You stated that your employer “did not directly serve. . .Mallinckrodt but instead received freight cars by way of another railroad. . .which railroad switched the cars from the plant to the Missouri Pacific R.R. that then hauled the freight cars beyond. As such the Missouri Pacific R.R. became a party to the Bill of Lading contract, which was used by all transportors of freight.”
On July 21, 2004, the district office issued a recommended decision concluding you were not entitled to compensation, since the evidence did not support that you had employment which would render you a covered employee, as defined in 42 U.S.C. § 7384l of the EEOICPA. The decision also found that you had not submitted evidence establishing that you had cancer.
On August 19, 2004, you submitted an objection to the recommended decision, in which you reiterated that you were employed by the Missouri Pacific Railroad and that this employment took you to the Mallinckrodt Plant where you were exposed to contamination which, you believe, may have caused your cancers. With your objection, you submitted an employment document, as well as records of medical treatment you received. The employment document supported that you worked as a traffic representative and a track rail sales representative for the Missouri Pacific Railroad from May 22, 1957 to June 30, 1963. The medical records, including pathology reports, confirmed that you were diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer. Upon review of the case record, the undersigned makes the following:
FINDINGS OF FACT
1. You filed a claim for benefits under the EEOICPA on April 19, 2004.
2. You have been diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer.
3. You were employed by the Missouri Pacific Railroad, as a traffic representative and a track rail sales representative, from May 22, 1957 to June 30, 1963.
Based on these facts, the undersigned makes the following:
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 FAB 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, as well as the written objections you submitted and must conclude that no further investigation is warranted.
A “covered employee,” as defined in 42 U.S.C. § 7384l(1) of the EEOICPA, includes a “covered employee with cancer,” which, pursuant to 42 U.S.C. § 7384l(9)(B), may include a “Department of Energy employee” or a “Department of Energy contractor employee who contracted. . .cancer after beginning employment at a Department of Energy facility.”
A “Department of Energy contractor employee” is defined, in 42 U.S.C. § 7384l(11) of the Act, as an “individual who. . .was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months,” or, an “individual who. . .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 regulations state, in 20 C.F.R. § 30.111(a), 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.”
You have not alleged, or submitted any evidence to support, that you were a Department of Energy employee or that you were in residence for at least 24 months, as a researcher at a Department of Energy facility. You also have not submitted any evidence or statements supporting that your employer, the Missouri Pacific Railroad, had a contractual relationship with the Department of Energy to provide management, remediation or any other services, at the Destrehan Street Plant facility of the Mallinckrodt Chemical Company. By your own statement, your employer merely hauled freight cars which had already been removed from the facility by another company. Therefore, the evidence fails to support that your employment with the Missouri Pacific Railroad was such as to qualify you as a “covered employee.”
For the foregoing reasons, the undersigned must find that you have not established your claim under the EEOICPA and hereby denies payment of compensation.
Washington, DC
Richard Koretz
Hearing Representative
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. 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 Ohio State University in Columbus, OH and were involved in an Army Specialized Training Program. We were both majoring in Electrical Engineering. While at Ohio State University he 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, TN to 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 Process where 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 process where 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 process there 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 process they 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, TN he 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. 57276-2004 (Dep’t of Labor, October 26, 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 of 2000, as amended (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 May 3, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the condition of pancreatic cancer. Medical documentation submitted in support of the claim shows that [Employee] (the employee) was diagnosed as having pancreatic cancer in October 2001.
You also provided a Form EE-3 (Employment History), on which you indicated that the employee worked for the U.S. Navy in the Marshall Islands from April to October 1956, during Operation Redwing, and that he wore a dosimetry badge. A Department of Energy representative and a corporate representative of Bechtel Nevada indicated that the employee was issued film badges at the Pacific Proving Ground (Marshall Islands), during Operation Redwing, associated with the U.S. Navy, as a military participant, between the dates of April 19 and July 27, 1956.
By letters dated May 17 and July 7, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim. You were specifically informed that the claimed military employment with the U.S. Navy was not covered employment under the EEOICPA. You were requested to provide supporting documentation of covered employment within thirty days of the date of the district office letters.
You provided a Form EE-4 (Employment History Affidavit), on which you indicated that the employee worked for the U.S. Navy in the Marshall Islands from November 4, 1952 to October 31, 1956, and McDonnell Douglas in St. Louis, Missouri, from January 1956 to January 1991. You also provided a signed Form SSA-581 (Authorization to Obtain Earnings Data from the Social Security Administration).
On August 23, 2004, the Seattle district office recommended denial of your claim for benefits. The district office concluded that the employee was not a covered employee as defined under § 7384l 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) and (12). The district office further noted that it had been determined that Congress did not expressly direct that military personnel be included as covered employees under the Act and that military personnel suffering from injuries resulting from government service were already covered under a separate program for veterans. Finally, the district office 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. You filed a claim for survivor benefits on May 3, 2004.
2. The employee was diagnosed as having pancreatic cancer in October 2001.
3. The employee’s military employment with the U.S. Navy is not covered employment under the Act.
4. You did not provide evidence to establish that the employee worked in covered employment under the EEOICPA.
CONCLUSIONS OF LAW
The undersigned has reviewed the recommended decision issued by the Seattle district office on August 23, 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 sixty-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 the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer. 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 that the employee was a Department of Energy (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).
Although you provided a diagnosis of cancer, the evidence of record does not show that the employee was a DOE employee, contractor, subcontractor or atomic weapons employee. The evidence demonstrates that the employee was on active duty in the U.S. military. The 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. § 7384l(a)(7). Consequently, the employee’s military employment is excluded from coverage under the EEOICPA.
The record shows that by letters dated May 17 and July 7, 2004, you were requested to provide the required information 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 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 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).
The record in this case shows that you did not provide employment evidence to establish that the employee worked for a DOE employer, contractor, or atomic weapons employer. See 42 U.S.C. § 7384l(1). Therefore, your claim must be denied for lack of evidence 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, Washington
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch
EEOICPA Fin. Dec. No. 59598-2004 (Dep’t of Labor, November 10, 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 of 2000, as amended (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 July 20, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the condition of a brain tumor. You also provided a Form EE-3 (Employment History), on which you indicated that [Employee] worked for the U.S. Army from October 2, 1951 to July 1, 1953 and viewed an atom bomb blast while he was stationed at Camp Desert Rock, Nevada; was self-employed as a farmer from 1954 to 1972; worked for Swift’s Independent Packing from 1972 to 1985; and with John Deere from 1985 to 1989.
The record includes a letter in which you indicated that your spouse “viewed the atom bomb blast while he was at Camp Desert Rock, Nevada.” The record also includes copies of your marriage certificate, the employee’s Report of Separation from the Armed Forces, the employee’s certificate of honorable military discharge, and the employee’s death certificate. The employee’s military discharge document indicates that he entered military service with the U.S. Army in Omaha, Nebraska on October 2, 1951, and separated from service in the state of California on July 1, 1953. The employee’s death certificate indicates that he passed away on August 23, 1990, due to respiratory failure and a brain astrocytoma.
A review of the Oak Ridge Institute for Science and Education (ORISE) database was negative for employment information pertaining to the employee.
By letter dated July 27, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim. You were specifically informed that the military and civilian employment you claimed on Form EE-3 was not covered employment under the EEOICPA. You were requested to provide supporting documentation of covered employment within thirty days of the date of the district office letter. No additional documentation was received.
On September 7, 2004, the Seattle district office recommended denial of your claim for benefits. The district office concluded that the employee was not a covered employee as defined under § 7384l 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(10), of the Act, during a covered time period. See 42 U.S.C. § 7384l(10) and (12). The district office further noted that it had been determined that Congress did not expressly direct that military personnel be included as covered employees under the Act and that military personnel suffering from injuries resulting from government service were already covered under a separate program for veterans. Finally, the district office 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 survivor benefits on July 20, 2004.
2. The employee’s employment with the U.S. Army, Swift’s Independent Packing, John Deere, and his self-employment is not covered employment under the Act.
3. You did not provide evidence to establish that the employee worked in covered employment under the EEOICPA.
CONCLUSIONS OF LAW
The undersigned has reviewed the recommended decision issued by the Seattle district office on September 7, 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 sixty-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 the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer. 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 that the employee was a Department of Energy (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).
You indicated on Form EE-3 that the employee viewed an atomic blast while he was stationed with the Army at Camp Desert Rock, Nevada. The evidence of record does not show that the employee was a DOE employee, contractor, subcontractor or atomic weapons employee. The evidence demonstrates that the employee was on active duty in the U.S. military (Army). The 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. § 7384l(a)(7). Consequently, the employee’s military employment is excluded from coverage under the EEOICPA.
The record shows that by letter dated July 27, 2004, you were requested to provide the required information 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 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 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).
The record in this case shows that you did not provide employment evidence to establish that the employee worked for a DOE employer, contractor, or atomic weapons employer. See 42 U.S.C. § 7384l(1). Therefore, your claim must be denied for lack of evidence 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, Washington
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch
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. 41341-2005 (Dep’t of Labor, May 11, 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 (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 claim for compensation and benefits, based on multiple myeloma, under Part B of the Act. Your claim under Part E of the Act, and your claim under Part B of the Act for skin and throat cancer, is deferred.
STATEMENT OF THE CASE
On February 6, 2003, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on cancer, specified as multiple myeloma, skin, and throat cancer. You also filed a Form EE-3 (Employment History), in which you indicated that you were employed at Oak Ridge, by “Keagan & Hughes,” from January 1, 1950 to February 10, 1951, at Paducah, Kentucky, from February 15, 1951 to March 23, 1953, and at the Hanford site from April 15, 1954 to January 21, 1955, and that you did not wear a dosimetry badge.
The employment evidence of record consists of affidavits, personnel information from the Atomic Energy Commission, earnings information from the Social Security Administration, and information from the Center to Protect Workers Rights. You provided an employment history affidavit from the business manager of L.U. # 237, Texarkana, TX/AR, who indicated he had been vice-president of local # 237, and therefore knew that you were employed by the following employers: (1) “Keagen & Hughes,” Oak Ridge, Tennessee, “AEC,” from January 1, 1950 to February 10, 1951; (2) M.W. Kellogg, Paducah, Kentucky, from February 15, 1951 to March 23, 1952; and (3) Kaiser Engineers, Hanford site, North Richland, Washington, from April 15, 1954 to January 21, 1955.
An Atomic Energy Commission (AEC), Oak Ridge, Tennessee, Personnel Clearance Master Card shows that you were granted an emergency clearance, on June 26, 1951, as an employee of Kaighin & Hughes, a subcontractor with Maxon Construction Company, and you were terminated on October 9, 1951. A second AEC, Oak Ridge, Personnel Clearance Master Card shows that your security clearance was “reinstated” on October 17, 1951, the name of your employer was “F.H. McGraw & Company M.W. Kellogg,” and that you were terminated on October 29, 1952. The card further shows a transfer to Hanford on April 13, 1954.
A co-worker at the Oak Ridge Gaseous Diffusion Plant (GDP), also known as K-25, provided an employment history affidavit in which he indicated that he worked with you for “Kaighan & Hughes” at the Oak Ridge K-25 Plant from January 1, 1950 to February 10, 1951. A dispatch record from Local No. 237, shows that you were employed by Kaiser from March 31 to May 30, 1954. An Itemized Statement of Earnings obtained from the Social Security Administration (SSA) shows that you had earnings paid by M.W. Kellogg from October through December 1949, October through December 1951, January through June 30 1952, and January through March 1953. In addition, the SSA Itemized Statement of Earnings showed that you were paid earnings by Atlantic Industries, Incorporated, during the period from January through March 1950, and Kaiser Engineers during the period from April through September 1954. A letter provided, by the Business Manager of the Plumbers & Steamfitters Local 184, Paducah, Kentucky shows that the M.W. Kellogg Company was a subcontractor at the Paducah GDP, Paducah, Kentucky from 1951 to 1955. The record also contains a copy of a “Certificate of Amendment to the Articles of Incorporation of Kaighin & Hughes, Inc.” that indicates the shareholders authorized the name of the company to be changed to “Atlantic Industries, Inc.” by resolution dated May 17, 1968.
The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has contracted with the Center to Protect Workers’ Rights (CPWR) for assistance in obtaining records pertinent to construction and trade employees at DOE, atomic weapons employer (AWE) or beryllium vendor facilities. The CPWR is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). The CPWR concluded that (1) Kaighin & Hughes was a subcontractor to Maxon and, as shown in a report to the President by the Atomic Energy Labor Relations Panel, Kaighin & Hughes was a primary contractor of K29 – K31 of the K25 GDP, and a contractual relationship between Kaighin & Hughes and AEC/DOE was also confirmed by a DOE representative who reported that Kaighin & Hughes, Inc. was a subcontractor to Maxon for construction of the K29, K31, and K33 buildings of the K25 GDP from 1947 to 1956. See Section 2 – CPWR Research Results. The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to 1987 and 1988 to the present (remediation); the Paducah GDP is recognized as a covered DOE facility from 1951 to July 28, 1998 and July 29, 1998 to the present (remediation); and the Hanford site is recognized as a covered DOE facility from 1942 to the present. See DOE, Office of Worker Advocacy, Facility List.
You indicated on your Form EE-3 that you were not monitored, through the use of dosimetry badges, for exposure at either the Oak Ridge GDP or Paducah GDP, and the information above shows that you were employed at the Oak Ridge GDP and Paducah GDP, respectively, from January 1 through October 9, 1951 and January 1 through October 29, 1952. However, the evidence shows that you worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges for your entire period of employment at Oak Ridge and for the period from July 1952 to October 29, 1952 at the Paducah GDP.
In addition to medical documentation showing diagnosis of skin cancer, you provided a narrative medical report by Joyce Feagin, M.D., dated January 11, 2001, that indicated you were diagnosed as having multiple myeloma.
On March 30, 2005, the Seattle district office issued a recommended decision that concluded you are a member of the special exposure cohort under Part B, as defined by 42 U.S.C. § 7384l(14)(A), you were diagnosed with multiple myeloma, a specified cancer under Part B as defined by 42 U.S.C. § 7384l(17), and that you are entitled to compensation under Part B in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that you are entitled to medical benefits under Part B, retroactive to the date you filed you claim for benefits, February 6, 2003, as outlined under 42 U.S.C. § 7384t. The district office deferred adjudication of your claim for skin cancers pending completion of the report of radiation dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).
On April 11, 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. You filed a claim for benefits under the EEOICPA on February 6, 2003.
2. You were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952.
3. A DOE contractor or subcontractor employed you for a number of work days aggregating at least 250 work days before February 1, 1992, at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky.
4. You were diagnosed as having multiple myeloma, a specified cancer, on January 11, 2001.
5. You contracted multiple myeloma after having begun covered employment with a DOE contractor or subcontractor at the Oak Ridge GDP and Paducah GDP, and the onset of the illness was more than five years after your first exposure at a GDP.
CONCLUSIONS OF LAW
In order for an employee to be afforded coverage under the “special exposure cohort,” the employee must be a DOE employee who was 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
[the] employee’s body to radiation; or (ii) worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. See 42 U.S.C. § 7384l(14).
Further, a specified cancer is “A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note),” including multiple myeloma, provided the onset was at least five years after first exposure to radiation. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(i) (multiple myeloma). The medical evidence of record indicates that you were diagnosed with multiple myeloma on January 11, 2001, which was more than five years after you were first exposed to radiation at Oak Ridge.
Your employment history (including employment history affidavits, Social Security records, union dispatch records, security clearance records, and confirmation by the CPWR) shows that you were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952, a period exceeding 250 work days. However, employees who indicate on their Form EE-3 that they were not monitored by dosimetry while employed at the Paducah GDP are determined to have been engaged in covered employment beginning in July 1952. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2)(a) (June 2004). Therefore, your period of employment at the Paducah GDP, for purposes of coverage as a member of the special exposure cohort, must be calculated using a beginning date of July 1, 1952, and an ending date of October 29, 1952. Thus, the evidence shows that you were employed by a DOE contractor or subcontractor for a number of work days aggregating at least 250 work days before February 1, 1992 at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky, “in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges,” and you are a “member of the Special Exposure Cohort.” See 42 U.S.C. § 7384l(14)(A).
You filed a claim based on multiple myeloma, skin, and throat cancer. The Final Adjudication Branch has reviewed the medical reports of record and found that you were diagnosed as having multiple myeloma on January 11, 2001. Consequently, you are a “covered employee with cancer,” and a member of the special exposure cohort who was diagnosed as having a “specified cancer” under the EEOICPA. See 42 U.S.C. §§ 7384l(9)(A), (14)(A), and (17)(A).
For the forgoing reasons, the Final Adjudication Branch hereby accepts and approves your claim for multiple myeloma. You are entitled to compensation under Part B of the Act in the amount of $150,000.00. See 42 U.S.C. § 7384s(a)(1). In addition, you are entitled to medical benefits for multiple myeloma under Part B of the Act, retroactive to February 6, 2003, pursuant to 42 U.S.C. § 7384t. Adjudication of your claim for skin cancers and throat cancer is deferred pending completion of the radiation dose reconstruction by NIOSH, and adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.
Seattle, WA
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch
EEOICPA Order No. 62728-2008 (Dep’t of Labor, July 1, 2009)
REMAND ORDER
This order of the Final Adjudication Branch (FAB) concerns the above-noted claim for survivor benefits under Part B 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 is remanded to the Cleveland district office for additional development to determine if the employee qualifies as a “covered employee with cancer” under Part B of EEOICPA.
On October 20, 2004, [Claimant] filed a claim for survivor benefits under Part B and a request for assistance under former Part D of EEOICPA, as the spouse of [Employee]. [Claimant] identified lung cancer and mouth cancer as the medical conditions of [Employee] resulting from his employment for an atomic weapons employer. Subsequent to [Claimant]‘s filing a request for assistance under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E. As part of these amendments, Congress directed that the filing of a request for assistance under former Part D would be treated as a claim for benefits under the new Part E. On August 2, 2005, [Claimant] filed another Part E claim based on the alleged condition of lung disease.
On November 9, 2006, FAB issued a final decision denying [Claimant]‘s claim for survivor benefits under Part E because the evidence did not establish that [Employee] was employed by a DOE contractor performing remediation activities at a covered Department of Energy (DOE) facility. On July 31, 2008, FAB also issued a final decision to deny [Claimant]‘s claim for survivor benefits under Part B because the evidence did not establish that [Employee] worked for a subsequent owner or operator of an atomic weapons employer facility at that atomic weapons employer facility. On October 16, 2008, [Claimant] submitted an affidavit in which Ronald G. Proffitt indicated that he had worked with [Employee] at the General Steel Industries facility in Granite City , Illinois from 1963 to 1973. Based on this new evidence, the Director issued a January 13, 2009 Order vacating the FAB’s July 31, 2008 final decision and reopening [Claimant]‘s claim for survivor benefits under Part B.
On Form EE-3 (employment history), [Claimant] indicated that [Employee] worked for Granite City Steel (General Steel Castings) from April 1963 to December 2000. On November 8, 2004, a representative from DOE verified that [Employee] worked for Granite City Steel from January 14, 1974 to December 19, 2000. Records from St. Elizabeth Medical Center dated March 17, 1980 and December 21, 2000 indicate that [Employee] worked for Granite City Steel located at 20th and Madison and 1520 20th Street, respectively, in Granite City, Illinois. Earnings records from the Social Security Administration (SSA) indicate that [Employee] had earnings from National Roll [EIN deleted] from the second quarter of 1963 to the third quarter of 1973 and in 1978, and from National Steel Corporation [EIN deleted] from the first quarter of 1974 to 2001. The General Steel Industries facility in Granite City, Illinois (also known as Old Betatron Building, General Steel Castings, General Steel Industries, Granite City Steel, and National Steel Company) is covered as an atomic weapons employer facility from 1953 to 1966. This same facility is also covered for employees of subsequent owners and operators of this facility for residual radiation from 1967 to 1992, and also as a DOE facility for remediation activities in 1993.
[Claimant] submitted medical records from [Employee]‘s healthcare providers, including a July 12, 2001 pathology report in which Dr. Samir K. El-Mofty diagnosed poorly differentiated squamous cell carcinoma of the floor of the employee’s mouth. These medical records did not establish that [Employee] was diagnosed with lung cancer.
[Claimant] submitted a copy of [Employee]‘s death certificate, signed by Dr. M. Bavesik, which listed the employee’s age as 60 as of the date of his death on November 28, 2001. The death certificate indicated that the immediate cause of [Employee]‘s death was cancer of the floor of the mouth, and that [Claimant] was [Employee]‘s surviving spouse. [Claimant] also submitted a copy of a July 8, 1966 marriage certificate confirming her marriage to [Employee] on that date.
To determine the probability of whether [Employee] contracted cancer in the performance of duty, the district office referred [Claimant]‘s application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. The district office subsequently received the NIOSH Report of Dose Reconstruction for the employee, dated August 7, 2007. The dose reconstruction was based on [Employee]‘s employment at the General Steel Industries facility from January 14, 1974 to December 19, 2000, and calculated the dose to his oral cavity from 1974 to the date his oral cavity cancer was diagnosed in 2001. The district office used the information provided in this NIOSH report to determine that there was a 4.36% probability that [Employee]‘s cancer was caused by ionizing radiation exposure at the General Steel Industries facility in Granite City, Illinois.
On April 23, 2009, the district office issued a recommended decision to deny [Claimant]‘s claim for survivor benefits under Part B of EEOICPA based on the employee’s lung cancer, lung disease and mouth cancer. In recommending denial of [Claimant]‘s claim, the district office found that [Employee] had covered employment at Granite City Steel from January 14, 1974 to December 19, 2000, but did not indicate what weight, if any, that it gave to the affidavit that [Claimant] submitted from Ronald G. Proffitt, or the SSA records indicating that [Employee] had reported earnings from National Roll from the second quarter of 1963 to the third quarter of 1973. I note that evidence in the case file indicates that in 1994, SSA changed the company associated with [EIN deleted] from General Steel Industries to National Roll; this change was shown in all SSA reports printed after 1994. In the absence of evidence to the contrary, SSA records showing wages paid by General Steel Castings Corporation [EIN deleted] or by National Roll [EIN deleted] are considered sufficient proof of employment by General Steel at their covered Granite City location. The November 8, 2004 verification of employment by DOE is limited to employment at this facility by Granite City Steel (a subsequent owner and operator of this facility).
The Federal (EEOICPA) Procedure Manual, Chapter 2-0600.10 (September 2004) requires the claims examiner to compare the dose reconstruction report to the evidence in the file. If there are significant discrepancies between the information in the file and the dose reconstruction report, a new dose reconstruction report may be necessary. The Procedure Manual specifies that changed employment facilities or dates, or a change in the date of diagnosis outside of the month previously used, constitutes a significant discrepancy. NIOSH did not consider [Employee]‘s dose prior to January 1974 and thus did not include his dose at the facility from April 1963 to that date in the dose reconstruction. This constitutes a significant discrepancy. A rework of the dose reconstruction is needed to determine if [Employee] qualifies as a covered employee with cancer under Part B based on his exposure to ionizing radiation during the performance of duty at a covered facility during a covered period. This case should be returned to NIOSH for a rework of the dose reconstruction that includes [Employee]‘s dose from April 1963.
Because a rework is necessary,[Claimant]‘s claim for survivor benefits under Part B is not in posture for a final decision. Pursuant to the authority granted to FAB by 20 C.F.R. § 30.317, [Claimant]‘s claim is remanded to the Cleveland district office. On remand, the district office should perform such further development it may deem necessary to determine if [Employee] qualifies as a covered employee with cancer. This should include referring the case to NIOSH for a rework of the dose reconstruction using the correct covered employment dates. After this development, the district office should issue a new recommended decision on [Claimant]‘s claim for survivor benefits under Part B of EEOICPA.
Washington, DC
William J. Elsenbrock
Hearing Representative
Final Adjudication Branch