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

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

DOE Contractor Employees

Definition of

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. 30971-2002 (Dep’t of Labor, March 15, 2004)

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”  20 C.F.R.  § 30.111(a).

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

Today, USGS describes itself in the following manner:

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

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

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

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

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

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

[2]  Http://www.usgs.gov/aboutusgs/.

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

REVIEW OF THE WRITTEN RECORD AND NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

Washington, DC

David E. Benedict        

Hearing Representative

[1] The Special Exposure Cohort differs from other Department of Energy and atomic weapon employees in that is comprised of individuals who were so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment were monitored through the use of dosimetry badges; or worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  The Cohort also includes employees that were employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  Individuals designated as a member of the Special Exposure Cohort by the President for purposes of the compensation program under section 7384q of this title are also included.  42 U.S.C. § 7384l(9)(A); 42 U.S.C. § 7384l(14).

EEOICPA Fin. Dec. No. 50247-2004 (Dep’t of Labor, September 16, 2004)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On October 15, 2003, you filed a claim for benefits under the EEOICPA as the surviving spouse of [Employee] and identified bladder cancer as the diagnosed condition being claimed.  You submitted an Employment History Form (EE-3) on which you stated that Commercial Motor Freight employed your husband at the Portsmouth Gaseous Diffusion Plant (GDP) from December 11, 1954 to December 11, 1981.  You did not state if your husband wore a dosimetry badge while employed.  You submitted an affidavit from Connie Bighouse and J. Frank Bighouse in which they attested that they were employed by Commercial Motor Freight from 1958 to 1985 at the Chillicothe Terminal.  Ms. Bighouse and Mr. Bighouse also attested that your husband worked for Commercial Motor Freight as a driver, delivering and picking up freight at the Goodyear Atomic Corporation.  They did not provide dates of your husband’s employment.  You submitted a copy of your marriage certificate which shows you were married to [Employee] on December 9, 1947.  You submitted a copy of your husband’s death certificate which shows he died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease.  As medical evidence, you submitted a copy of Dr. W. G. Rice’s February 9, 1978 pathology report in which your husband was diagnosed with transitional cell carcinoma of the bladder.

On October 22, 2003, the district office attempted to verify your husband’s employment through the Oak Ridge Institute for Science and Education (ORISE) database but there were no records of your husband’s employment.  On November 18, 2003, Department of Energy (DOE) representative Roger Holt advised, via Form EE-5, that the DOE was unable to verify your husband’s employment but other pertinent evidence existed.  Mr. Holt submitted a copy of your husband’s Personnel Clearance Master Card which shows your husband was granted a “Q” clearance at the request of Goodyear Atomic Corp. and Commercial Motor Freight, Inc. as a truck driver on April 27, 1970 and the clearance terminated on June 23, 1982.  On December 4, 2003, the district office received a copy of your husband’s Social Security Administration itemized statement of earnings which shows he had earnings from Lee Way Holding Company, which is now bankrupt, from 1954 to 1982.  The district office verified, through the bankruptcy trustee, that the earnings from Lee Way Holding represented earnings from Commercial Motor Freight, Inc.  On December 9, 2003, DOE and Bechtel Jacobs Company representative Wendy L. Wilcox advised, via Form EE-5, that no evidence existed in regards to the employment you claimed.  On January 5, 2004, at the request of the district office, Frank Bighouse and Connie Bighouse submitted a supplement to their affidavit regarding your husband’s employment.  Ms. Bighouse attested that she worked with your husband from 1967 until he left the company (no date provided).  Ms. Bighouse and Mr. Bighouse also attested that your husband made deliveries to the GDP in the morning and pickups in the evenings five days a week.  They also attested that he would spend approximately one to two hours on site for each pick up and each delivery.

Based upon the evidence of record, the district office issued a recommended decision on January 14, 2004, in which it concluded that [Employee] was a member of the Special Exposure Cohort as defined by 42 U.S.C. § 7384l(14)(A); that [Employee] was diagnosed with bladder cancer which is a specified cancer as defined by 42 U.S.C. § 7384l(17); and that you are the surviving spouse of [Employee] as defined in 42 U.S.C. § 7384s(e)(3)(A).  The district office recommended payment of your claim for benefits based on its conclusions.  On February 13, 2004, after reviewing the written record, the Cleveland FAB office found that the evidence did not establish that your husband was a contract employee as defined under the Act.  The FAB vacated the recommended decision and remanded your claim to the district office for additional development and the issuance of a new recommended decision.  On March 22, 2004, the district office issued a new recommended decision in which it concluded that the evidence of record did not establish that [Employee] was a “covered employee with cancer” as that term is defined under 42 U.S.C. § 7384l(9)(B).  The district office recommended denial of your claim based on its conclusion.

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 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).  On April 13, 2004, you wrote to the FAB and advised that you disagreed with the recommended decision.  You stated that you objected to the decision that your husband’s sub-contracted employment did not constitute a service, but a mere delivery of goods and that he is not considered to be a covered employee with cancer.  You submitted the following evidence in support of your position:

  1. Copy of Dr. William Lutmer’s September 1, 1997 medical report on which was circled the statement, “He does not smoke or drink.”
  2. March 19, 2004 statement from Malcolm Blosser who stated that he worked for Goodyear Atomic and Martin Marietta Corp. in Piketon.  Mr. Blosser stated that your husband was a driver for Commercial Motor Freight, that your husband delivered freight to the GDP everyday, and that he helped your husband to unload the freight.
  3. March 28, 2004 statement from Dale Reed, Maintenance Division of the United States Energy Corporation, in which he stated that the purpose of his letter was “a testimonial to the reasonable possibility of [Employee] being exposed to high levels of contamination, radiation and chemicals of both known and unknown measures.”  Mr. Reed attested to the high levels of exposure in the buildings that your husband entered on a regular basis.  He included a copy of the Risk Mapping performed for union and company purposes as a guide to the exposures of each building.

You requested a hearing and such was held by the undersigned on June 8, 2004 in Piketon, OH.  You appeared at the hearing with your son, [Employee’s son][Employee’s son] testified at the hearing that you disagree with the classification of your husband’s employment as “a mere delivery of goods” because he had a security clearance which required him to come in and out of the plant for 11 years.  [Employee’s son] also testified that your husband spent two or three hours a day loading and unloading  “classified” freight.  Hearing Transcript (HT) 8-9.  You submitted, as evidence, a statement from Mr. Malcolm Blosser dated June 7, 2004, in which he reiterated the information in his previous statement of March 19, 2004. 

After considering the written record of the claim, your letter of objection, the testimony and objections presented at the hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1.      You filed a claim for survivor benefits under the EEOICPA on October 15, 2003. 

2.      Commercial Motor Freight Inc. employed your husband, as a truck driver, from 1954 to 1982.

3.      [Employee] was diagnosed with bladder cancer on February 9, 1978.

4.      [Employee] died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease.

5.      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

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 § 7384l(9)(B)[1], 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, an employee either must be:  (1) a member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment; or (2) a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by HHS, “to be at least as like as not related to such employment”), after beginning such employment.  See 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. 

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 DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined in EEOICPA Bulletin No. 03-27 (issued May 28, 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.

Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance works.

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.”

Delivery of Goods – The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including construction and maintenance workers.

You submitted employment evidence that establishes your husband was employed as a truck driver, by Commercial Motor Freight, to deliver goods to the Portsmouth GDP, a Department of Energy facility.[2]  In order for a contractor or subcontractor employee to be determined to have performed work or labor for DOE, the individual must have performed a “service” for the benefit of the DOE within the boundaries of a DOE facility.  The mere delivery of goods alone is insufficient to establish that a service was performed for the benefit of DOE.[3]  Because you did not submit evidence that establishes your husband is 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

[1] Section 7384l(9)(B) refers to 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 § 7384n(b).  Clause (ii) references DOE employees, DOE contractor employees and atomic weapons employees who contract cancer after beginning employee at the required facility.

 [2] U.S. Department of Energy. Portsmouth Gaseous Diffusion Plant.  Time Period:  1954-1998.  Worker Advocacy Facility List.  Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved October 21, 2003].

 [3] EEOICPA Bulletin 03-27.

EEOICPA Fin. Dec. No. 56806-2004 (Dep’t of Labor, November 1, 2004)

NOTICE OF FINAL DECISION AND REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

On 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. 61192-2005 (Dep’t of Labor, April 5, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On August 31, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, as the widow of [Employee].  You identified lung cancer as the claimed condition.  You stated on the Employment History Form EE-3 that your husband was employed by the Illinois Central Railroad at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky for an “unknown” period.  The Department of Energy (DOE) was unable to verify [Employee’s] employment at Paducah Gaseous Diffusion Plant.[1] 

On September 17, 2004 and October 27, 2004, you were advised by the district office of the evidence that was required to support the claim that your husband was employed by a covered DOE contractor or subcontractor.  To establish covered employment you need to submit evidence that your husband was employed at a DOE facility during a covered time frame and that there was a contract between the claimed contractor or subcontractor and the DOE to provide a service on the premises of the facility.  The mere delivery and loading or unloading of goods alone is insufficient to establish that a service was performed for the benefit of the DOE.[2]

You submitted a statement in which you indicated your husband was employed by the Illinois Central Railroad from 1950 to January 31, 1982 and that he worked as a flagman and conductor. You also indicated that “he went to coal mines in Central City, KY, factories in Calvert City, KY and Bluford, IL, and atomic plant in Future City, KY.”  You submitted a notice from the United States of America Railroad Retirement Board indicating that you are eligible for monthly spousal benefits.   

You have submitted a death certificate for [Employee] that indicated a date of death of March 3, 2001 and that the immediate cause of death was cardiopulmonary arrest.  This death certificate also indicated the decedent was survived by his wife, [Employee’s Spouse].  You submitted a marriage certificate showing that [Employee] and [Employee’s Spouse] were married on July 23, 1949.

You submitted a December 29, 1982 operative report, from Ted Myre, M.D., which indicated a postoperative diagnosis of cancer of the left lung with invasion of the mediastinum.  A December 30, 1982 pathology report, from James R. Naugh, M.D., indicated a diagnosis of moderately well differentiated squamous cell carcinoma of the left lung.

On January 22, 2005, the district office issued a recommended decision finding that you have not provided evidence proving that your husband’s claimed employment meets the criteria of a covered employee in accordance with 42 U.S.C. §§ 7384l(1) and (11) and 20 C.F.R. §§ 30.5(p) and (u)  Therefore, the district office concluded that you were not entitled to compensation under the Act.

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.  You did not file an objection.  I have reviewed the record in this case and must conclude that no further investigation is warranted.  Based upon a review of the case file evidence, I make the following::

FINDINGS OF FACT

You filed a claim for survivor benefits on August 31, 2004, under Part B of the EEOICPA.

You were married to the employee from July 23, 1949, until his death on March 3, 2001.

You husband was first diagnosed with lung cancer on December 29, 1982.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

The evidence submitted does not establish that your husband meets the definition of covered employee, during a covered time period, as defined by §§ 42 U.S.C. §§ 7384l (1), (7) and (11).  For that reason, you are not entitled to compensation under § 7384s of the Act.

You have not provided records or affidavits from co-workers or other sources in support of the employment that you are claiming.  Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110”.  See 20 C.F.R. § 30.111(a).

For the foregoing reasons, the undersigned hereby denies your claim for compensation for survivor benefits under Part B of the EEOICPA.

Washington, DC          

Tom Daugherty

Hearing Representative

[1] The Paducah Gaseous Diffusion Plant was a DOE facility from 1952 to 1998, where radioactive material was present, according to the Department of Energy Office of Worker Advocacy Facility List (http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm).

[2] Per EEOICPA Bulletin No. 03-27 (issued March 28, 2003).

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.

[3] EEOICPA Bulletin No. 03-26 (issued June 3, 2003).

Employees of other federal agencies

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. 30971-2002 (Dep’t of Labor, March 15, 2004)

NOTICE OF FINAL DECISION

REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”  20 C.F.R.  § 30.111(a).

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

Today, USGS describes itself in the following manner:

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

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

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

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

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

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

[2]  Http://www.usgs.gov/aboutusgs/.

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

NOTICE OF FINAL DECISIONREVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”  20 C.F.R.  § 30.111(a).

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

EEOICPA Fin. Dec. No. 63258-2005 (Dep’t of Labor, March 11, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning 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 or the Act).  For the reasons set forth below, your claim for benefits is accepted. 

STATEMENT OF THE CASE

On November 9, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, wherein you indicated that your late husband, [Employee] (hereinafter referred to as the employee), suffered from a “Brain tumor-Oligodendroglioma” (brain cancer) and worked prior to January 1, 1974 on Amchitka Island.[1] On the EE-3 form (Employment History), you indicated that the employee was employed by the U.S. Geological Survey (USGS) from October 10, 1960 until February 13, 1980 and that the employee was involved in geological studies and the mapping of Amchitka Island.  You submitted the employee’s death certificate and your marriage certificate in support of your claim as the employee’s eligible surviving beneficiary.

You submitted an October 11, 2004 letter from AMC Cancer Research Center, and an October 12, 2004 letter from Exempla Lutheran Medical Center, which indicated that the employee’s medical records had been destroyed.  You also submitted the employee’s physician-signed death certificate, which indicated that the employee died on April 30, 1982 from “Brain tumor- Oligodendroglioma” at the AMC Cancer Research Center and that 6 years and 2 months was the interval between the onset of the disease and the employee’s death.  The district office concluded that the employee’s death certificate was sufficient to establish that the employee was diagnosed with brain cancer on March 2, 1976.   

The district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify the employment claimed, but no records were found.  The Department of Energy (DOE) was also not able to verify the employment claimed.  In response to the district office’s request for employment evidence, you submitted various employment documents.  As part of the documentation that you submitted were the following:

1)      A technical letter prepared by the USGS for the U.S. Atomic Energy Commission (AEC) entitled, “Amchitka-3 Geologic Reconnaissance of Amchitka Island, December 1966,” which indicated that the employee and W. J. Carr were part of a reconnaissance team that was on Amchitka Island between November 30 and December 16, 1966 for the purpose of selecting drilling sites.

2)      A USGS professional paper prepared on behalf of the AEC entitled, “Interpretation of Aeromagnetic Survey of Amchitka Island Area, Alaska,” which indicated that the employee and W. J. Carr were involved in reconnaissance mapping on Amchitka in 1966 and 1967.

3)      A January 10, 1967 letter of appreciation from the AEC to the USGS, which indicated that the employee was part of a reconnaissance team on Amchitka Island.   

4)      An employment history affidavit, Form EE-4, from [Co-Worker #1] and [Co-Worker #2], in which they attested that they were the employee’s co-workers at the USGS during 1960’s and 1970’s.

5)      Entries from the employee’s field notebook, dated between November 29 and December 17, 1966 and April 28 to May 3, 1967, relative to his work on Amchitka Island.

According to Appendix A-7 of the Atomic Energy’s Manager’s Completion Report, dated January, 1973, the USGS was designated an Amchitka prime contractor.  Therefore, the district office concluded that the USGS was a DOE contractor, in accordance with EEOICPA Bulletin No. 03-26 (issued June 3, 2003).  Altogether, the district office concluded that the aforementioned employment evidence was sufficient to establish that the employee was a DOE contractor employee on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.

On February 8, 2005, the district office issued a recommended decision, which concluded that the employee was a member of the special exposure cohort (SEC), that he suffered from brain cancer and that you are entitled to $150,000 dollars in survivor’s compensation under Part B of the Act.

On February 15, 2005, the FAB received your written notification that you waived any and all objections to the recommended decision.  Therefore, based upon a review of the case file evidence, the undersigned makes the following:

FINDINGS OF FACT

1)     You filed a claim for survivor benefits under Part B of the EEOICPA on November 9, 2004.

2)      You established that the employee was employed by a DOE contractor on Amchitka Island from November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  

3)      You established that the employee was diagnosed with brain cancer on March 2, 1976.              

4)      The district office issued a recommended decision on February 8, 2005, which concluded that you are entitled to $150,000 dollars in survivor’s compensation.

Therefore, based upon a review of the case file evidence, the undersigned makes the following:

CONCLUSIONS OF LAW

Pursuant to § 7384l(14)(B) of the Act, a member of the SEC is defined as an employee that was “employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.” 42 U.S.C. § 7384l(14)(B).  The evidence of record established that the employee was employed by a DOE contractor on Amchitka Island during a covered time period: November 29, 1966 until December 17, 1966 and from April 28, 1967 until May 3, 1967.  Therefore, the undersigned finds that the employee was a member of the SEC pursuant to § 7384l(14)(B) of the Act.

Pursuant to § 30.5(dd) of the implementing regulations, brain cancer is considered a specified cancer provided that its onset occurred at least five years after the employee’s first exposure to radiation.  20 C.F.R. § 30.5(dd).  Additionally, pursuant to § 7384l(9)(A) of the Act, a covered employee with cancer is “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a Department of Energy facility (in the case of a Department of Energy employee or Department of Energy contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee).” 42 U.S.C. § 7384l(9)(A).  The evidence of record established that as a member of the SEC the employee was diagnosed with brain cancer more than five years after he began his covered employment on Amchitka Island.  Therefore, the undersigned finds that the employee was a covered employee with cancer, pursuant to § 7384l(9)(A) of the Act.

The undersigned has reviewed the facts and the district office’s February 8, 2005 recommended decision and finds that you are entitled to $150,000 dollars in compensation for the employee’s brain cancer, pursuant to § 7384s(a),(e)(1)(A) of the Act. 

Washington, DC

Mark D. Langowski

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Amchitka Island Test Site on Amchitka Island, AK is a covered DOE facility from 1965 to 1972 and from 1995 to the present. 

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

Today, USGS describes itself in the following manner:

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

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

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

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

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

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

[2]  Http://www.usgs.gov/aboutusgs/.

EEOICPA Fin. Dec. No. 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 objections:

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

  1. [Claimant] filed a claim for survivor benefits under EEOICPA on June 12, 2007. 
  1. 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.
  1. The employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.
  1. 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.
  1. 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

Employees of state agencies

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. 27798-2003 (Dep’t of Labor, June 20, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claims for benefits are denied.

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

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

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”  20 C.F.R.  § 30.111(a).

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

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

REVIEW OF THE WRITTEN RECORD AND NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

Washington, DC

David E. Benedict        

Hearing Representative

[1] The Special Exposure Cohort differs from other Department of Energy and atomic weapon employees in that is comprised of individuals who were so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment were monitored through the use of dosimetry badges; or worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  The Cohort also includes employees that were employed before January 1, 1974, by the Department of Energy or a Department of Energy contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  Individuals designated as a member of the Special Exposure Cohort by the President for purposes of the compensation program under section 7384q of this title are also included.  42 U.S.C. § 7384l(9)(A); 42 U.S.C. § 7384l(14).