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

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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
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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.
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21:00 28 Sep 23
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DOE Facilities

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 Facilities.  We hope these decisions are helpful.  Please add your experiences in the comments section.

 

DOE Facilities

Definition of

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

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the employee’s claim is denied.

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

OBJECTIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) a proprietary interest, or

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

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

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

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

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

FINDINGS OF FACT

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

(i) a proprietary interest, or

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

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

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

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

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

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

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

Washington, DC

Thomas R. Daugherty

Hearing Representative

Final Adjudication Branch

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

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

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

[4]  Id. 

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

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

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

[8]The FAB notes that it is the claimant’s responsibility to establish entitlement to benefits under the Act.  Subject to certain limited exceptions expressly provided in the Act and regulations, the claimant bears the burden of providing “all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”  20 C.F.R. § 30.111(a).  See also EEOICPA Fin Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004). 

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

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

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

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

EEOICPA Fin. Dec. No. 20121129-6523-1 (Dep’t of Labor, April 10, 2013)

EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 20121129-6523-1
DECISION DATE: April 10, 2013

 

NOTICE OF FINAL DECISION FOLLOWING

A REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for benefits under Part E for chronic beryllium disease (CBD) is denied.

STATEMENT OF THE CASE

On February 29, 2012, FAB issued a final decision accepting the claimant’s initial claim under Part B of EEOICPA for CBD.  In that final decision, FAB determined that the claimant was a covered beryllium employee and awarded him a lump-sum payment of $150,000.00 based on evidence establishing that he was employed at the Beryllium Corporation of America facility in Hazelton, Pennsylvania, for the period from September 9, 1957 through December 31, 1979.  The Manhattan Engineer District and the Atomic Energy Commission (AEC) contracted with the Beryllium Corporation of America for the production of beryllium metal, beryllium oxide and beryllium powder, and for the refining and fabrication of beryllium at the Hazelton Plant.  That facility also produced beryllium blanks for the Y-12 Plant in Oak Ridge, Tennessee, and the Rocky Flats Plant in Golden, Colorado, which are Department of Energy (DOE) facilities.  The Beryllium Corporation of America facility in Hazelton is designated as a beryllium vendor facility for the period 1957 through 1979.[1]

Subsequent to the issuance of the February 29, 2012 final decision, the claimant’s authorized representative sent a March 26, 2012 letter to the Cleveland district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), asking that DEEOIC designate the Hazleton Plant as a DOE facility.[2]  In his letter to the district office, the authorized representative argued that the Hazleton Plant meets the definition of a DOE facility due to the nature of the contractual relationship between the Beryllium Corporation of America and the AEC.  In support of this argument, the representative submitted several documents that he believed demonstrate DOE’s proprietary interest in the Hazleton Plant and/or its retention of management and operational control of the Plant.  Those documents included:

  • Copies of AEC internal memoranda from its New York Operations Office indicating that the AEC provided industrial hygiene consultation services and recommended exposure tolerance levels to all beryllium vendors, and that such services were considered stopgap measures until such time as these responsibilities could be transferred to the beryllium vendors.
  • A copy of the September 1, 1956 contract between the AEC and the Beryllium Corporation of America, (identified as Contract No. AT (11-1)465), in which the Beryllium Corporation of America agreed to supply the AEC with 500,000 pounds of beryllium at a set price, and to “furnish all facilities, equipment, raw materials, supplies and services necessary” to produce and deliver the agreed upon amount of beryllium at its Hazleton Plant.  The Beryllium Corporation of America also agreed that the AEC had the right to provide government-owned beryl ore in lieu of beryl ore it might otherwise want to purchase from a private source to produce the beryllium it was entering into a contract to deliver to the AEC.
  • Memoranda dated August 10, 1960 and September 16, 1960, in which AEC staff reviewed the health clauses of the 1956 contract with the Beryllium Corporation of America (and the similar contract with the Brush Beryllium Company), noted that the AEC had the primary responsibility for determining that health standards were being met, and concluded that the AEC had the right (but not an obligation), in the event the Beryllium Corporation of America failed to comply with health standards in the contract, to either temporarily waive those standards or to shut operations down, and criticized this approach as inconsistent with “the philosophy of lump sum supply contracting.”
  • A memorandum to the members of the AEC, dated September 22, 1960, noting that the AEC was currently allowing the Beryllium Corporation of America to continue operating its Hazleton Plant while the tolerance levels for beryllium set out in its health regulations were being exceeded.  The justification was that retooling the plant to bring it in line with the standards would both increase the cost tenfold and require the plant to be shut down and rebuilt, which would be unacceptable given the immediate need for the material.
  • A March 8, 1961 status report on Contract No. AT(11-1)-465 (and the AEC’s similar contract with the Brush Beryllium Company) to the AEC’s General Counsel, reaffirming the ability of the AEC to refrain from enforcing the health provisions under the contract.  The memorandum also noted that in 1958 the contract was partially terminated and that under a settlement the Beryllium Corporation of America received $2,377,000 rather than $1,680,000 for amortization.
  • An internal AEC memorandum dated July 14, 1966, addressing concerns raised by the Beryllium Corporation of America (and other beryllium vendors) that the AEC would start performing in-house beryllium work for other government agencies at a lower cost, thereby depriving the vendors of work, and suggesting a response to anticipated congressional concern that the AEC was purchasing beryllium at a higher price from private industry than it would cost to produce at its own facilities.
  • A December 9, 1983 report from DOE’s Office of Strategic Planning and Analysis, presenting a historical review of beryllium production in the United States, in which it was noted that the Beryllium Corporation of America and the Brush Beryllium Company both built plants “with AEC capital backing based on ‘projected government needs.”

The authorized representative also referenced EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008), in which FAB defined the term “proprietary interest” for the purposes of determining whether a facility qualifies as a DOE facility under EEOICPA.  In this final decision, FAB explained that to establish that DOE or one of its predecessor agencies had a propriety interest in a facility, the evidence must show that DOE had rights of “ownership, use or control” of the buildings in which the employees worked.  The representative argued that under this test, the AEC held a proprietary interest in the Hazleton Plant, since the documents cited above show that the AEC “acted as if it were an owner or contractor,” and that it had a contractual right of surrender of the facility in case of default.

The district office referred the representative’s request for reclassification to the DEEOIC Policy Branch for review.  In a memorandum dated September 13, 2012, the Branch Chief determined that while the evidence showed that the Hazleton Plant did conduct operations on behalf of the AEC, the evidence did not support a finding that the AEC held a propriety interest in the Plant, or that the AEC had entered into a contract with the Beryllium Corporation of American for management and operation of the Hazelton Plant.  Therefore, he determined that the evidence did not establish that the Hazleton Plant was a DOE facility as defined under EEOICPA.  This determination was based on a September 10, 2012 legal opinion from the Counsel for Energy Employees Compensation, who reviewed the arguments and supporting documentation to determine whether they would support a finding that the Hazelton Plant was a DOE facility, as that term is defined in the statute.

On November 28, 2012, the district office issued a recommended decision to deny this claim for CBD under Part E.  The basis for the recommended decision was that the evidence did not establish that the Beryllium Corporation of America facility in Hazleton was a DOE facility as defined under EEOICPA, and therefore the claimant was not a covered DOE contractor employee due to his employment at the Hazleton facility. 

OBJECTIONS

In a January 25, 2013 letter, the claimant’s authorized representative objected to the Cleveland district office’s recommended decision.  In that objection letter, the representative disagreed with the recommended finding that the Hazleton Plant did not meet the statutory definition of a DOE facility, arguing that it improperly relied on the legal opinion of the Counsel without independently considering or commenting on the specific legal arguments or supporting exhibits offered in support of his client’s claim.

On review of the objections submitted by the authorized representative, I note that although the district office’s recommended decision did not specifically enumerate the arguments and exhibits offered in support of the request for reclassification of the Hazleton Plant, these legal and factual arguments were fully addressed in the Counsel’s September 10, 2012 legal opinion, which is part of the record.  I further note that the authorized representative has not presented any additional evidence or arguments concerning the facility designation that were not already addressed in the Counsel’s legal opinion.

In his legal opinion, the Counsel noted that under EEOICPA, a beryllium vendor facility such as the Hazleton Plant may also be designated as a DOE facility if it meets the definition of that term as set forth in EEOICPA, which requires a showing that the facility is one in which:  (A) operations are, or have been, conducted by, or on behalf of, DOE (or its predecessor agencies); and (B) with regard to which DOE has or had either  (i) a proprietary interest, or (ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.  See 42 U.S.C. § 7384l(12).

Applying this two-prong test, the Counsel noted that pursuant to the terms of Contract No. AT(11-1)-465 between the Beryllium Corporation of America and the AEC, the Beryllium Corporation of America agreed to construct the plant and facilities at the Hazleton location that would be needed to produce and deliver to the AEC 500,000 pounds of beryllium over a five-year period, and to actually produce and deliver the beryllium in accordance with those terms.  Under Article II, section 4 of the contract, the AEC had the right to allocate and divert the beryllium produced under the contract to other purchasers, but only for government use or for the fabrication of items to be supplied to the government.  Therefore, the Counsel opined that the contract constituted sufficient evidence that operations by or on behalf of the AEC occurred at the Hazleton Plant so as to meet the first “prong” of the “DOE facility” definition at 42 U.S.C. § 7384l(12)(A).

With respect to the second prong of the test, however, the Counsel advised DEEOIC that Contract No. AT(11-1)-465 did not convey any ownership interest, right of use or control of the Hazleton Plant, and the remainder of the contract did not reflect an intent by the AEC to exercise ownership rights over the Plant while the contract with the Beryllium Corporation of America was in effect.  Further, after evaluating the terms of the AEC’s beryllium supply contract and the related documents submitted by the claimant’s authorized representative, the Counsel concluded that the evidence did not show that the Beryllium Corporation of America conveyed to the AEC any right of ownership, use or control of the Hazleton Plant.  Thus, the Counsel concluded that the AEC did not have a proprietary interest in the Hazelton Plant. 

Lastly, the Counsel evaluated the evidence with respect to whether the AEC had entered into a contract with the Beryllium Corporation of America “to provide management and operation” for the Hazleton Plant.  Counsel’s legal opinion was that neither Contract No. AT(11-1)-465, nor any of the other supporting documents cited by the representative, were consistent with the description of “management and operation” contracts in DOE’s Acquisition Guide (October 2007),[3] which usually are contracts by which a private entity both manages and operates a government-owned facility.  Further, he explained that even if the terms “management and operation” could be construed to encompass contractual arrangements under which the AEC assumed management and operation of a facility that was not owned by the government, the AEC’s obligations under its contract with the Beryllium Corporation of America did not amount to “management and operation” responsibilities.

After reviewing the claimant’s authorized representative’s March 26, 2012 letter requesting reclassification of the Hazleton Plant and supporting exhibits, the Counsel’s September 10, 2010 legal opinion, the objections to the recommended decision, and all the evidence of record, I both concur with and adopt the conclusions reached by the Counsel in his legal opinion.  Accordingly, I find that the evidence is not sufficient to establish that the Hazleton Plant meets the statutory definition of a DOE facility.

FINDINGS OF FACT

1.      The claimant worked at the Beryllium Corporation of America’s Hazelton Plant from September 9, 1957 to December 31, 1979.

2.      The Hazelton Plant was a statutory beryllium vendor facility pursuant to 42 U.S.C. § 7384l(6)(E).

3.      On February 29, 2012, FAB issued a final decision finding that the claimant was a “covered beryllium employee” who had contracted CBD and awarded him $150,000.00 under Part B.

4.      The claimant subsequently filed a claim for benefits under Part E and argued that the Hazelton Plant was a DOE facility.

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision.  20 C.F.R. § 30.310 (2013).  In reviewing any objections submitted, FAB will review the written record, to include 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 conclude that no further investigation is warranted.  20 C.F.R. § 30.313. 

To be afforded coverage under Part E of EEOICPA, the evidence must establish that the claimant is a covered DOE contractor employee whose exposure to a toxic substance at a DOE facility was “at least as likely as not” a significant factor in causing, contributing to, or aggravating the claimed condition.  42 U.S.C. § 7385s-4.

The statute defines the term “Department of Energy contractor employee” as an individual who is or was employed at a DOE facility by–(i) an entity that contracted with DOE to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.  42 U.S.C. § 7384l(11).  And the statutory definition of a DOE facility has already been set out above.  Taken altogether, and with respect to this particular claim, eligibility for Part E benefits is limited to DOE contractor/subcontractor employees who worked at DOE facilities.  If the only employment on which a claim is based is at a beryllium vendor facility, there is no entitlement to compensation under Part E.

In this case, the evidence shows that the claimant was employed at the Beryllium Corporation of America’s Hazelton Plant, which is designated as a beryllium vendor facility.  For the reasons outlined in the Counsel’s legal opinion, which I both concur with and have adopted in this final decision, I conclude that the evidence in the case file is not sufficient to establish that DOE (or its predecessor agencies) had a proprietary interest in the Hazleton Plant, or that it entered into a contract with an entity to provide management and operation of the Hazleton Plant.  Therefore, I conclude that the evidence presented to me does not establish that the Hazleton Plant is a DOE facility as defined under EEOICPA and as a result, the claimant does not qualify as a covered DOE contractor employee.

For these reasons, this claim under Part E of EEOICPA for CBD is herby denied.

Cleveland, Ohio

Greg Knapp

Hearing Representative

Final Adjudication Branch

[1]  See http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (retrieved April 10, 2013).

[2]  On October 19, 2012, the district office received the claimant’s completed Form EE-1 claiming benefits under Part E for the condition of CBD. 

[3] See http://energy.gov/sites/prod/files/17.6_Origin%2C_Characteristics%2C_and_Significance of_the_DOE%27s_Management_and_Operating_0.pdf.

 

Determination by DOL

EEOICPA Fin. Dec. No. 10083-2007 (Dep’t of Labor, June 6, 2007)

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.  Upon a careful review of the facts, FAB concludes that the evidence of record is insufficient to allow compensation.  Accordingly, the claim for survivor benefits under Part B is denied.

STATEMENT OF THE CASE

On July 31, 2001, [Claimant] filed a Form EE-2 claiming for survivor benefits under EEOICPA as the spouse of [Employee], based on the condition of myelofibrosis.  She submitted a certificate showing that she and [Employee] were married, and a copy of his death certificate identifying her as his spouse at the time he died on March 26, 1987 due to pneumonia, agnogenic myeloid metaplasia and chronic obstructive pulmonary disease.

[Claimant] submitted medical documentation including narrative reports, stating that her spouse had a diagnosis of myelofibrosis as early as the autumn of 1983.  She also filed a Form EE-3 alleging that her spouse was employed at the National Bureau of Standards (NBS) Radioactivity Lab in Washington, D.C. from May 18, 1931 through May 1948.  Her spouse’s employment as a federal employee with the NBS was verified from May 26, 1931 to May 14, 1948.   The NBS facility on Van Ness Street was initially designated as a covered Atomic Weapons Employer (AWE) under EEOICPA by the Department of Energy (DOE) from 1943 through 1952.

On November 30, 2005, the NBS was removed as a covered AWE by DOE per notice in the Federal Register.[1]  DOE took this action when it determined that Congress established the NBS in 1901, and that Congress changed its name to the National Institute of Standards and Technology in 1988 as part of the Omnibus Trade and Competitiveness Act, and that it is a non-regulatory federal agency currently located within the Commerce Department’s Technology Administration.  DOE also determined that NBS never came under the organizational hierarchy of the Manhattan Engineer District (MED), the Atomic Energy Commission (AEC), or DOE itself.  Hence, DOE concluded that the NBS facility on Van Ness Street was erroneously designated as an AWE facility because it is a facility of an agency of the United States, and the definition of an AWE specifically excludes agencies of the United States.

On March 1, 2006, the Cleveland district office advised [Claimant] that the NBS facility on Van Ness Street is not considered to be a covered AWE facility under EEOICPA, and requested that she submit any additional information she possessed that would lend itself to classifying this facility as an AWE facility within 30 days.  [Claimant] responded to this request and submitted thirteen documents she believed would support a determination that this facility should be reclassified as a “DOE facility” under EEOICPA. 

On September 25, 2006, after reviewing the evidence of record, the additional thirteen documents submitted, and historical research conducted on the NBS facility on Van Ness Street, the Chief of the Branch of Policies, Regulations and Procedures concluded that the NBS facility on Van Ness Street does not meet the definition of a DOE facility for the purposes of EEOICPA.  While it was noted that this facility did perform valuable work for both the MED and the AEC, there was no evidence supporting that there was either a proprietary interest or the existence of a management and operation, management and integration, environmental remediation services, construction, or maintenance services contract between either the MED or the AEC and NBS.  Based on this, it could not be considered a DOE facility.

On October 12, 2006, the Cleveland district office recommended denial of [Claimant]‘s claim for survivor benefits, finding that the evidence of record did not establish that [Employee] was a covered employee with cancer under EEOICPA, as there was insufficient evidence that he was employed by either an AWE or a DOE contractor at an AWE facility or a DOE facility, as those terms are defined in the statute.  Accordingly, the district office recommended denial of [Claimant]‘s claim for survivor benefits.

OBJECTIONS

On December 11, 2006, FAB received [Claimant]‘s letter of objection to the recommended decision with her request for an oral hearing, which was held on March 13, 2007 in Seattle, Washington, attended by her daughter and authorized representative, [Claimant’s daughter], and her husband.  In summary, [Claimant]‘s letter of objection and her testimony at the hearing indicated that she disagreed with the recommended decision and that she has requested copies of the necessary contractual documents through a Freedom of Information Act (FOIA) to the U.S. Department of Labor (DOL), which has since been turned over to DOE for response, as DOL does not have the documents she requested.  [Claimant] indicated that she is still waiting for a response from DOE with the documents she needs to support her objection to the delisting of this facility from the covered facilities list.  [Claimant] believes the work done by NBS was more than just research and development, the employees were in charge of quality control, analyzed samples from production plants, devised more effective methods of analysis, furnished personnel and facilities, helped in start-up operations of major production plants and provided guidance for the control program.  [Claimant] argued these responsibilities clearly fall into the areas of management and operations, which were the responsibilities of contractors.

In reviewing all of the evidence of record, including all of the documents submitted at the hearing, there remains insufficient evidence to establish that there was either a proprietary interest or the existence of a management and operation, management and integration, environmental remediation services, construction, or maintenance services contract between either the MED or the AEC and the NBS.  While [Claimant] argued that the work done by employees of the NBS at its facility on Van Ness Street constitutes work related to “management and operations which were the responsibilities of contractors,” she did not provide supporting documentation showing that a proprietary interest or contractual relationship existed between the NBS and the MED, or the AEC/DOE.  Therefore, the NBS facility on Van Ness Street cannot be considered a “DOE facility” for the purposes of EEOICPA.

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

FINDINGS OF FACT

1.      On July 31, 2001, [Claimant] filed a claim for survivor benefits under EEOICPA.

2.      [Claimant] is the surviving spouse of the employee.

3.   In 1983, the employee was diagnosed as having myelofibrosis, which is also known as agnogenic myeloid metaplasia.   

4.   [Claimant] did not submit sufficient evidence that [Employee]‘s employment at the NBS facility on Van Ness Street meets the criteria to be considered “covered employment” under EEOICPA.

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

CONCLUSIONS OF LAW

Although the NBS facility on Van Ness Street was once designated as an AWE facility by DOE, DOE later determined that this facility does not qualify as an AWE facility for the purposes of EEOICPA, and consequently removed its designation as an AWE facility in a notice published in the Federal Register on November 30, 2005.

[Claimant]‘s objection to the removal of this facility as an AWE facility by DOE relates to her belief that the NBS facility on Van Ness Street should be reclassified as a “DOE facility,” and that the work completed by the employees of the NBS at this facility, namely [Employee], was consistent with the work completed by other employees of DOE contractors.  While this may be accurate, the type of work completed alone is not the determinative criteria required for a facility to be considered a “DOE facility” under EEOICPA.  It must also be shown that the AEC/DOE has or had a proprietary interest, or entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services; the evidence of record is currently insufficient to meet this requirement. 

It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA.  The regulations at § 30.111(a) provide 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 EDEOICPA and the regulations, the claimant also bears the burden of providing all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a).  If [Claimant] obtains evidence in the future that she believes satisfies this criteria, she should submit this to the district office for consideration with a request for reopening of the claim.

FAB is bound by the criteria and provisions of EEOICPA and has no authority to depart from it or EEOICPA’s implementing regulations.  Therefore, [Claimant]‘s claim must be denied for lack of evidence that [Employee] was a covered employee as defined by the statute. 

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

[1]  70 Fed. Reg. 71815 (November 30, 2005).

EEOICPA Fin. Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On September 24, 2001, you filed a claim, Form EE-1, for benefits under the EEOICPA based on prostate cancer, stomach cancer, other lung condition specified as a spot, goiter and an unspecified throat condition. 

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that you have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. §§ 7384l(4)-(7), (9), (11). 

Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that you were a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b).  While you did provide evidence of a diagnosis of stomach cancer, the record in its current posture lacks proof that you worked in covered employment under the Act. 

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

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

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

For the above reasons the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Cleveland, Ohio

Debra A. Benedict

Acting District Manager

Final Adjudication Branch

EEOICPA Order No. 50245-2004 (Dep’t of Labor, April 14, 2011)

ORDER DENYING REQUEST FOR RECONSIDERATION

This is the response to the claimant’s December 28, 2010 request for reconsideration of the November 30, 2010 decision of the Final Adjudication Branch (FAB) on his survivor claim under both Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  In that decision, FAB concluded that with respect to Part B, the employee’s pancreatic cancer was not sustained “in the performance of duty,” as that term is defined in § 7384n(b), because it is not “at least as likely as not” (a 50% or greater probability) that such cancer was related to the radiation doses she received during her covered employment at a Department of Energy (DOE) facility–Hangar 481, Kirtland Air Force Base (AFB)–from March 1, 1989 through June 30, 1994.  FAB also concluded that with respect to Part E of EEOICPA, the employee was not a “covered DOE contractor employee,” as that term is defined in § 7385s(1), because it is also not at least as likely as not that her exposure to toxic substances at Hangar 481 was a significant factor in aggravating, contributing to, or causing her pancreatic cancer.  It was because of these two conclusions that the claim for survivor benefits due to the employee’s pancreatic cancer under Part B, and for her death due to pancreatic cancer under E, was denied.  A decision on the Part E claim for the employee’s death due to acoustic neuroma, however, was deferred pending further development.

In support of his December 28, 2010 reconsideration request, the claimant raised a number of interwoven and somewhat confusing arguments.  To the extent that I can discern what they are, his arguments in support of his request are as follows.

1.  FAB should have found that the period of the employee’s covered employment began when she started work for Ross Aviation at Hangar 481, Kirtland AFB, on December 9, 1985, rather than when Hangar 481 became a covered DOE facility on March 1, 1989, because Ross Aviation had contracts with DOE and its predecessor agencies starting in 1970, and because those contracts show that Ross Aviation began working at Hangar 481 in 1984.  In conjunction with this argument, which the claimant raised earlier in the adjudication of his claim, he asserts that copies of the contracts in question that he submitted have either never been considered, or were not considered by the appropriate agency of the Department of Labor.

2.  FAB wrongly found that the employee’s diagnosed acoustic neuroma was not an “occupational illness” that is compensable under Part B that should have been taken into account during the dose reconstruction process and the determination of the probability of causation for the Part B claim.

3.  FAB wrongly concluded that the effect of the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation on December 9, 1985, as well as her alleged “non-employment” exposure during her accepted covered employment, could not be taken into account when it determined the probability of causation for her pancreatic cancer.  The claimant contends that these alleged exposures to radiation can be inferred from evidence in the file and must be taken into account, because 42 U.S.C. § 7384n(c)(3)(C) provides that the regulatory guidelines for determining the probability of causation for cancer under Part B “shall take into consideration. . .other relevant factors.”  As was the case with the claimant’s first argument noted above, he made this particular argument previously in the adjudication of his claim.

4.  FAB wrongly concluded that the alleged radiation exposure of the employee “in other employments” was not covered under EEOICPA.  The claimant contends that this alleged radiation exposure should have been taken into account and “added to the worker’s total exposure. . . .”  While he acknowledges that the dose reconstruction methodology that the National Institute for Occupational Safety and Health (NIOSH) used to estimate the radiation dose of the employee is binding on FAB, he believes that FAB should have determined that his objections concerning the application of that methodology, as it related to the alleged exposures in question, needed to be considered by NIOSH and therefore should have returned the Part B claim to the district office for referral to NIOSH for such consideration.  To support this argument regarding the employee’s radiation dose, he asserts that:

[G]eneral principles of workers [sic] compensation law contemplate that a worker who was exposed to radiation in multiple employments, like the worker in this case, is not limited to an analysis of exposure during the last term of injurious employment.  Rather, in such cases the sum total of the worker’s exposure during successive employments should be taken into account in assessing the effect of the worker’s last injurious exposure to radiation, and in so doing the exposure with the last employer. . .is given its due weight in contributing to the onset of a subsequently occurring cancer. 

Similar to the first and third arguments listed above, the claimant raised this argument previously in the adjudication of his EEOICPA claim.

5.  The claimant was not afforded the opportunity to present his objections regarding the dose reconstruction for the employee to NIOSH, which he acknowledges is “the agency which most logically has the expertise to evaluate the merits” of his position.  Therefore, the claimant believes that FAB should have returned his Part B claim to the district office for referral to NIOSH so it could consider his contention that the dose reconstruction for the employee should have included her non-employment and “other employments” exposures.

After careful consideration of these arguments, and for the reasons set forth below, the request for reconsideration is hereby denied.

With regard to the first argument noted above, and as set out in FAB’s November 30, 2010 decision, there is no dispute that Ross Aviation performed work under contracts it had with DOE and its predecessor agencies as early as February of 1970, and that the evidence establishes that the employee started working for Ross Aviation on December 9, 1985.  The pertinent question for the purposes of the claimant’s survivor claim, however, concerns where Ross Aviation did its work under its contracts with DOE that covered the period of the employee’s employment from December 9, 1985 through June 30, 1994.  Contrary to the claimant’s allegations noted above, the contracts at issue have, in fact, been previously reviewed by the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), which is the division of the Office of Workers’ Compensation Programs that administers EEOICPA[1], when NIOSH provided her with copies of them and asked, in a September 30, 2009 letter regarding the petition to add a class of employees at Hangar 481 to the Special Exposure Cohort the claimant filed with NIOSH, whether those contracts were sufficient to expand the “covered” period of Hangar 481 as a DOE facility.  In her February 2, 2010 response, the Director noted that after carefully reviewing those contracts, it was her conclusion that they did not support changing the determination that Ross Aviation was a DOE contractor at Hangar 481, Kirtland AFB, for the period March 1, 1989 through February 29, 1996.  Those same contracts were also carefully considered yet again when the claimant submitted copies of them to the case file in support of his claim, and are briefly described below:

  • Contract No. AT(29-2)-2859 (covering February 1, 1970 through January 31, 1973) states that Ross Aviation would be performing air transport services for the Atomic Energy Commission (AEC) “at the Albuquerque Sunport, , .”  There is no mention in this contract that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. AT(29-2)-3276 (covering February 1, 1973 through January 31, 1974, with multiple modifications that extended the coverage to February 28, 1979 and changed the contract number to E(29-2)-3276 when the AEC was replaced by the Energy Research and Development Administration (ERDA)) states that the “main operations base shall be maintained at the Contractor’s facility at the Albuquerque International Airport. . . .”  Again, there is no mention in this contract or its modifications that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number A011 to Contract No. EY-76-C-04-3276 (extending the coverage of that contract from March 1, 1979 through February 29, 1984 and changing the contract number to DE-AC04-76DP03276 when ERDA was replaced by DOE) states that the “main operations base shall be maintained at the Government’s existing facility at the Albuquerque International Airport. . . .”  This modification also fails to state that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Modification number M016 to Contract No. DE-AC04-76DP03276 (covering the period of March 1, 1980 to February 28, 1981) states that the location at which Ross Aviation is maintaining and flying Government-furnished aircraft is “the Main Base – .”[2]  Once again, there is no mention in this modification that any of the work being done by Ross Aviation will be done at Kirtland AFB.
  • Contract No. DE-AC04-89AL52318 (covering March 1, 1989 through February 28, 1990, with extensions through February 29, 1996) is the earliest contract that describes the location at which Ross Aviation is working as “Government-owned facilities located on Kirtland Air Force Base, New Mexico.”  Because Contract No. DE-AC04-89AL52318 is a “Management and Operations” contract, this also means that Ross Aviation became a DOE contractor at that time within the meaning of 42 U.S.C. § 7384l(12)(B)(ii), because it was an “entity” that entered into a “management and operations” contract with DOE at a DOE facility, i.e., Hangar 481, Kirtland AFB.

As noted above, and as previously stated in FAB’s November 30, 2010 decision, there is no probative and persuasive evidence specifying that Ross Aviation performed its work under a contract with DOE at Hangar 481, Kirtland AFB, prior to March 1, 1989.  In this regard, and again as pointed out by FAB in the November 30, 2010 decision, the non-contractual evidence the claimant submitted in support of this argument is of diminished probative value when compared to the actual contracts described above.  Accordingly, there is no basis for extending the covered period for that facility to include the earlier period that the employee worked there beginning on December 9, 1985, and this argument does not warrant reconsideration of FAB’s November 30, 2010 decision.

As for the second argument described above, FAB’s November 30, 2010 decision specifically informed the claimant that acoustic neuroma is not an “occupational illness,” as that term is defined in § 7384l(15), and therefore is not compensable under Part B.  While he contends that acoustic neuroma is a cancer and therefore it should have been taken into account by NIOSH when it reconstructed the employee’s radiation dose and by DEEOIC when it determined the probability of causation based on that dose reconstruction, acoustic neuroma is actually a benign tumor of the eighth cranial nerve.  The only reference to that illness in the medical evidence is in an August 11, 2000 report by Dr. Jorge Sedas, in which Dr. Sedas related the employee’s history of a “right-sided acoustic tumor – stable”; there is no medical evidence in the file showing that the reported tumor was malignant (cancer).  The provisions of 42 U.S.C. § 7384n(b), (c), and (d) regarding the dose reconstruction process and the determination of probability of causation are applicable only for the purpose of determining whether cancer was sustained in the performance of duty.  For those reasons, this second argument also does not warrant reconsideration of the November 30, 2010 decision of FAB.

In the third argument described above, the claimant contends that FAB should have taken the employee’s alleged exposure to radiation prior to beginning her employment with Ross Aviation and her alleged non-employment exposure during her accepted covered employment, which he asserts can be inferred from the evidence in the file, into account as “other relevant factors” when it determined the probability of causation for the employee’s pancreatic cancer under Part B.  While he is correct that § 7384n(c)(3)(C) of EEOICPA directs that the regulatory guidelines for determining the probability of causation for cancer claimed under Part B “shall take into consideration. . .other relevant factors,” the task of devising these guidelines (and taking those “other relevant factors” into account) pursuant to that statutory directive was assigned to the Secretary of Health and Human Services (HHS), not the Secretary of Labor, by the President in Sec. 2(b)(i)(A) of Executive Order 13179 of December 7, 2000.  65 Fed. Reg. 77487 (December 11, 2000).[3]  While DEEOIC is required by 42 C.F.R. § 81.20(b) to apply the HHS regulatory guidelines, which have been incorporated into the NIOSH Interactive RadioEpidemiological Program (NIOSH-IREP), DEEOIC does not have the authority to alter the guidelines to take into account the particular non-covered employment exposures the claimant alleges that the employee experienced both prior to and away from her covered employment at Hangar 481 as “other relevant factors” when determining the probability of causation for her pancreatic cancer under Part B.  On the contrary, as Paragraph 2.0 of the User’s Guide the for the Interactive RadioEpidemiological Program (NIOSH-IREP) states:

The NIOSH-IREP computer code is a web-based program that estimates the probability that an employee’s cancer was caused by his or her individual radiation dose.  Personal information (e.g., birth year, year of cancer diagnosis, gender) and exposure information (e.g., exposure year, dose) may be entered manually or through the use of an input file.  For application by the U.S. Department of Labor (DOL), the input file option is used to preset all personal information, exposure information, and system variables.  These input files are created by NIOSH for each individual claim and transmitted to the appropriate DOL district office for processing.[4] (emphasis added)

Accordingly, the claimant’s third argument also does not warrant granting his request to reconsider FAB’s November 30, 2010 decision.

In the fourth argument in support of the claimant’s request, he contends that the employee’s alleged radiation exposures “in other employments” should have been taken into account and “added to the worker’s total exposure” as “other relevant factors.”  As FAB’s November 30, 2010 decision noted, the issue of what radiation dose to include is exclusively under the control of NIOSH, pursuant to the President’s assignment of the task of performing dose reconstructions to the Secretary of HHS (which then re-delegated it to NIOSH) in Sec. 2(b)(iii) of Executive Order 13179.  Also, the statute itself, at § 7384n(d)(1), restricts the dose to be used to determine probability of causation to radiation exposure that occurred solely “at a facility,” which in the employee’s case, means the dose she received when Hangar 481 was a DOE facility–March 1, 1989 through June 30, 1994.  HHS has issued regulations governing the dose reconstruction process at 42 C.F.R. part 82, and those regulations do not provide for any consideration of pre-employment and non-employment radiation exposures in estimating radiation dose incurred at a DOE facility, regardless of the claimant’s belief that principles of workers’ compensation require such consideration.  Because consideration of the “other relevant factors” referred to in 42 U.S.C. § 7384n(c)(3)(C), which as noted above, refers solely to the determination of probability of causation, this fourth argument also does not warrant reconsideration of the November 30, 2010 FAB decision on the claim.

Finally, in the fifth argument, the claimant asserts that FAB should have returned his Part B claim to the district office for referral to NIOSH, so NIOSH could consider his contention that the dose reconstruction for the employee should have included non-employment and “other employments” exposures.  While there is no dispute that NIOSH is “the agency which most logically has the expertise to evaluate the merits” of his position, the fact remains that the claimant was provided with the opportunity, at multiple points during the dose reconstruction process at NIOSH, to submit whatever evidence he had regarding the employee’s radiation exposures for consideration by NIOSH.  Further, as discussed above, the types of exposures at issue here are simply not covered under EEOICPA.  Therefore, there was no reason for FAB to return the Part B claim to the district office for referral to NIOSH, and this final argument, like the preceding four, does not provide a sufficient basis for reconsidering FAB’s November 30, 2010 decision.

I must deny the request for reconsideration because the claimant has not submitted any argument or evidence which justifies reconsideration of the November 30, 2010 final decision.  That decision of FAB is therefore final on the date of issuance of this denial of the request for reconsideration.  See 20 C.F.R. § 30.319(c)(2).

Cleveland

Tracy Smart

Hearing Representative

Final Adjudication Branch

[1]  The sources of authority for administering EEOICPA are set out at 20 C.F.R. § 30.1,which states that the Director of the Office of Workers’ Compensation Programs (and his designee the Director of DEEOIC) has the primary responsibility to administer EEOICPA, except for those activities assigned to other agencies.  This responsibility includes the “exclusive authority to. . . interpret the provisions of EEOICPA,” among them the statutory definition of “Department of Energy facility” at § 7384l(12).

[2]  The case file also contains numerous other modifications of Contract No. DE-AC04-76DP03276, but those other modifications also do not include a “Statement of Work” provision identifying the location where Ross Aviation was to perform its work; thus, they are not described above.  For example, modification number M062 extended the provisions of that contract to cover the period from March 1, 1984 through February 28, 1989 (during which the employee began working for Ross Aviation), but contained no language whatsoever that described where Ross Aviation performed its work for DOE.

[3]  See also 20 C.F.R. § 30.2(b) (“. . .HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee’s radiogenic cancer”) and 20 C.F.R. § 30.213(b) (“HHS’s regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP’s obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the ‘probability of causation’ (PoC) that an employee’s cancer was sustained in the performance of duty is 50% or greater (i.e., it is ‘at least as likely as not’ causally related to employment), as required under section 7384n(b)”).

[4]  See: http://www.cdc.gov/niosh/ocas/pdfs/irep/irepug56.pdf(last visited April 13, 2011).

EEOICPA Fin. Dec. No. 51955-2009 (Dep’t of Labor, December 18, 2009)

 NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB), following a review of the written record, concerning the above claim filed 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 thirty primary cancers under Part B is denied.  Adjudication of the claim for these same cancers under Part E of EEOICPA is deferred pending further development.    

STATEMENT OF THE CASE

On December 5, 2003, [Employee] filed a claim for benefits under Part B of EEOICPA for cancers of the “skin, facial, squamous, basal cell (10-12)” and the “neck-myoepithelial.”  On the same date, [Employee] filed a request for assistance with the Department of Energy (DOE) under former Part D of EEOICPA for the same conditions.  Following the repeal of Part D and the enactment of Part E, the request for assistance was considered a claim for benefits under Part E.

On Form EE-3, [Employee] indicated that from 1963 to 1992 he worked for Precision Forge in both  Santa Monica and Oxnard, California, and also indicated that 90% of his work was for the Rocky Flats Plant.  [Employee] described his work and positions as follows:

Forging operator (10 years); foreman of forge shop (12 years); manufacturing supervisor – forged parts from depleted uranium.  Did experimental forging of beryllium. 

In a November 12, 2003 document that he submitted with his claim, [Employee] stated the following: 

I have worked for a small forging company in California from 1962 until retirement in 1992.  Precision Forge was originally a private company, which sub-contracted to Dow Chemical when Rocky Flats started.  We became part of Rockwell Corporation around 1985 and then later to EG&G. . . .  The last ten years I worked as a facility engineer and finally product development.  The period of concern was approximately 1965 thru 1980 when the plant was in Santa Monica, California.

On a Form EE-5 dated January 8, 2004, DOE verified that [Employee] was a DOE contractor employee for Dow Chemical, Rockwell International, and EG&G Rocky Flats, Inc., all DOE contractors, from July 10, 1963 to August 31, 1992 at the Rocky Flats Plant, a DOE facility.[1]  The verification did not indicate [Employee]‘s specific work location.

To determine the probability that [Employee]‘s diagnosed cancers were related to occupational exposure to radiation at a DOE facility, the district office referred the claim for radiation dose reconstruction to the National Institute for Occupational Safety and Health (NIOSH) on April 23, 2004.  Based on medical evidence that [Employee] had submitted, the referral specified the diagnosis dates and locations of six basal cell carcinomas (BCC’s), three squamous cell carcinomas (SCC’s), myoepithelioma (right neck), and salivary gland carcinoma.  The employment location and dates of employment provided to NIOSH were as follows:  Rocky Flats Plant, 7/10/1963 – 8/31/1992.

On June 4, 2004, the district office received medical records establishing diagnoses of two primary BCC’s that were not previously claimed.  Therefore, on June 7, 2004, the district office submitted an amended referral to NIOSH, specifying the additional BCC locations and diagnosis dates.

During a June 24, 2004 dose reconstruction interview conducted by NIOSH, [Employee] indicated that his work location was at 2052 Colorado St., Santa Monica, California, not at the Rocky Flats Plant.

On January 28 and January 31, 2005, the district office received medical records that established the diagnosis and treatment of four primary SCC’s that were not previously claimed.  As a result, on April 20, 2005, the district office submitted a second amended referral to NIOSH specifying the additional SCC locations and diagnosis dates.

In view of apparent discrepancies between [Employee]‘s work locations as provided on his EE-1 claim form, his EE-3 Employment History (Santa Monica and Oxnard, California), and his statement of work location (Santa Monica, California) during the June 24, 2004 NIOSH telephone interview, all of which indicated that he did not work at the Rocky Flats Plant, and the DOE verification of his employment at the Rocky Flats Plant in Golden, Colorado during the same employment period, clarification of [Employee]‘s work location and period of covered employment became necessary.  On November 28, 2006, during a telephone conversation with the a claims examiner, [Employee] again stated that he worked for Precision Forge in California, which did work for the Rocky Flats Plant.  By letter of December 4, 2006, the district office summarized that telephone conversation and informed the employee that Precision Forge and Macrodyne were not covered facilities under EEOICPA.  

On March 1, 2007, the district office referred the question of [Employee]‘s covered employment period to the Division of Energy Employees Occupational Illness Compensation (DEEOIC), Branch of Policy, Regulation and Procedures (BPRP) for resolution.  The question presented was whether in adjudicating [Employee]‘s claim, the district office should use the employment verified by the DOE–July 10, 1963 to August 31, 1992 at the Rocky Flats Plant.

In a memorandum dated July 16, 2007, BPRP noted that a review of all of the employment evidence of record revealed that [Employee] did not work at the Rocky Flats Plant.  Instead, he worked from 1962 through 1980 for Precision Forge in Santa Monica, California and then for Macrodyne Industries, which purchased Precision Forge and moved the facility to Oxnard, California.  BPRP noted that Precision Forge/Macrodyne produced parts for the Rocky Flats Plant and determined that in 1984, DOE purchased the Oxnard plant and transferred employees onto the same contract as those personnel operating the Rocky Flats Plant. 

Based on a review of the activities at Precision Forge/Macrodyne prior to its acquisition by DOE in 1984, BPRP determined that prior to the 1984 acquisition, neither the Santa Monica location nor the Oxnard location could be considered a “DOE facility,” as that statutory term is defined in EEOICPA, because DOE had no “proprietary interest” in either location and had not entered into a contract with an entity for management and operation, management and integration, environmental remediation services, construction or maintenance services at either location. Accordingly, BPRP determined that neither [Employee]‘s employment at the Santa Monica location nor his employment at the Oxnard location prior to 1984 constituted covered employment under EEOICPA. 

However, BPRP further found that upon its acquisition by DOE in 1984, when the facility became known as the High Energy Rate Forging (HERF) Facility, the Oxnard location satisfied the statutory requirements to be regarded as a DOE facility because DOE owned the HERF Facility in Oxnard and used its management and operating contractor to run the plant.  Thus, BPRP also concluded that the HERF Facility should be considered a DOE facility for EEOICPA purposes for the period 1984-1997.  Based on the above-noted findings, BPRP directed the district office to proceed with adjudication with a finding that [Employee] was an EEOICPA covered employee for the period from 1984 to August 31, 1992.

On August 27, 2007, [Employee] submitted medical records establishing the diagnosis of additional skin cancers.  In addition, the district office obtained records from the DOE Case Management System, which included diagnostic evidence of additional unclaimed primary skin cancers:  four BCC’s, three SCC’s, myeloepithelial carcinoma of the left cheek, and carcinoma of the face.  On September 25, 2007, the district office submitted an amended NIOSH referral summary specifying 26 diagnosed cancers and diagnosis dates.  This amendment also identified the employee’s covered employment location as the HERF Facility with a start date of January 1, 1984 and ending date of August 31, 1992.

By letter dated September 26, 2007, [Employee] informed the district office that he had been assigned to oversee the installation and start-up of a new large HERF Hammer at the Hanford facility in Washington.  On December 14, 2007, DOE verified that [Employee] had visited the Hanford Site, a DOE facility, from October 28, 1986 to December 13, 1986; from November 27 to 30, 1990; and from February 5, 1991 to March 9, 1991.  Because a Department of Labor Health Physicist determined that the additional Hanford employment could affect the dose reconstruction, on January 8, 2008, the district office resubmitted [Employee]‘s dose reconstruction referral to NIOSH with the Hanford facility employment included. 

On October 2, 2008, [Employee] submitted medical evidence establishing the diagnosis of two primary BCC’s that had not been previously claimed and on October 8, 2008, the district office submitted an amended NIOSH referral including those cancers.  On May 27, 2009, the district office submitted yet another amended NIOSH referral summary that included two more BCC’s shown by previously submitted medical records (but not reported to NIOSH), thus increasing the number of reported diagnosed primary cancers to 30.  The final amended referral provided the diagnosis dates and locations of the additional cancers.

Altogether, in support of [Employee]‘s claim, the district office received medical evidence that established pathological diagnoses of the following 30 primary cancers reported to NIOSH for dose reconstruction:

–         SCC of the forehead, diagnosed June 13, 1996.

–         BCC of the upper lip, diagnosed July 15, 1996.

–         BCC – 3 of the face, diagnosed October 1, 1997.

–         BCC – 2 of the face, diagnosed October 1, 1997.

–         BCC of the face, diagnosed January 4, 2000.

–         BCC -2 of the right shoulder, diagnosed August 18, 2001.

–         BCC, of the right cheek, diagnosed October 3, 2001.

–         BCC of the forehead, diagnosed October 3, 2001.

–         SCC of the nose, diagnosed January 8, 2002.

–         Myoepithelial carcinoma of the right cheek, diagnosed February 1, 2002;

–         Myoepithelioma of the right neck, diagnosed February 8, 2002.

–         Carcinoma of the salivary gland, diagnosed February 20, 2002.

–         SCC of the right nasal tissue, diagnosed August 20, 2002.

–         SCC of the upper right neck, diagnosed September 10, 2002.

–         SCC of the lower right neck, diagnosed September 10, 2002.

–         SCC of the right nasal tissue, diagnosed April 7, 2003.

–         SCC of the right cheek, diagnosed April 18, 2003.

–         BCC of the right posterior ear, diagnosed August 22, 2003.

–         SCC of the right eyebrow, diagnosed August 22, 2003.

–         SCC of the left check, diagnosed November 8, 2004.

–         SCC of the face, diagnosed November 30, 2004.

–         Carcinoma of the face, diagnosed June 12, 2007.

–         BCC of the right ear, diagnosed August 17, 2007.

–         SCC of the right superior pinna, diagnosed August 17, 2007.

–         BCC of the forehead, diagnosed March 13, 2008.

–         BCC of the left shoulder, diagnosed June 3, 2008.

On July 1, 2009, [Employee] signed Form OCAS-1, indicating that he was not in possession of any additional information that had not already been provided to NIOSH for completing his dose reconstruction.

On July 23, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine that there was a 4.76% probability that [Employee]‘s cancers were caused by radiation exposures during employment at a covered facility.  On August 21, 2009, the district office issued a recommended decision to deny the claim under Part B, on the ground that it was not “at least as likely as not” that [Employee]‘s cancers were caused by employment-related radiation exposures.  

The Notice of Recommended Decision was mailed to an incomplete address and was returned undelivered.  On August 31, 2009, the Notice of Recommended Decision was reissued and mailed to the correct address of record.

OBJECTIONS

On October 5, 2009, FAB received [Employee]‘s September 25, 2009 statement of objections to the recommended decision.  [Employee] did not submit additional evidence with his statement of objections.  His objections are as follows:

1.      The recommended decision was mailed to an incorrect address, which delayed his receipt of the correspondence.

2.      Finding of fact # 2 of the recommended decision showed him as visiting the Hanford Site from November 27, 1990 to November 20, 1990.

3.      Finding of fact # 3 said that “Mr. Johnson was diagnosed. . . .”

4.      The recommendation was based on the last ten years of a 30-year career in the nuclear weapons complex.  Ninety percent of all work done in the early years 1964-1980 (by Precision Forge in Santa Monica) were projects initiated by engineers at the Rocky Flats Plant, the Sandia Laboratory, the Lawrence Livermore National Laboratory and involved experimental work on depleted uranium for other organizations.

Objections 1, 2 and 3 pertain to regrettable administrative errors.  Although, these errors should not have occurred, they do not affect the outcome of [Employee]‘s Part B claim.  The recommended decision was mailed to an incorrect address.  To preserve [Employee]‘s right to object, the recommended decision was reissued with a new date.  The correct starting and ending dates for [Employee]‘s 1990 Hanford visit, as verified by DOE, are November 27 to 30, 1990.  Referring to “November 20, 1990” as the ending date of this visit is an obvious typographical error that should have been caught.  However, the dates of [Employee]‘s Hanford visits reported to NIOSH for use in dose reconstruction were correct.  The reported dates for his Hanford visits are as follows:  October 28, 1986 to December 13, 1986; November 27 to 30, 1990; and February 5, 1991 to March 9, 1991.  There is no explanation for the appearance of an incorrect name in finding of fact # 3.  The information regarding cancer diagnoses and dates were drawn from [Employee]‘s medical records.  In reviewing [Employee]‘s claim, FAB has independently examined each of his medical records and compared the results to the information used by NIOSH in preparing the dose reconstruction. These administrative errors are unfortunate, but do not affect the decision on [Employee]‘s claim. 

Objection 4 objects to limiting [Employee]‘s covered employment to his employment at the HERF Facility in Oxnard from the time the facility was acquired by DOE in 1984 to his retirement in 1992.  [Employee] based his objection on his earlier work as a Precision Forge employee, which he stated involved work on projects initiated by engineers at a number of covered facilities, as well as experimental work with depleted uranium for DARPA (Defense Advanced Research Projects Agency).  Other than [Employee]‘s employment at the HERF Facility from 1984 until his 1992 retirement and his visits to the Hanford facility, neither [Employee]‘s objections nor any of the statements made during the development of his claim has indicated that he performed work at any DOE facility as the employee of a DOE contractor or subcontractor.  Moreover, [Employee] has not submitted any additional evidence to establish that prior to his covered employment at the HERF Facility and at Hanford, he had covered employment as a contractor or subcontractor employee at other DOE facilities.

DEEOIC has considered the question of whether [Employee]‘s employment with Precision Forge prior to the acquisition of the HERF Facility by DOE in 1984 constitutes covered employment under EEOICPA.  Based on a thorough review of the evidence, DEEOIC has determined that the Precision Forge facility in Santa Monica was not a covered DOE facility, and that the Macrodyne facility in Oxnard was not a covered DOE facility under EEOICPA until it was acquired by DOE in 1984.  In addition, DEEOIC has considered whether the Precision Forge/Macrodyne locations prior to 1984 could be considered Atomic Weapons Employer (AWE) facilities and found that the sites had not been designated as AWE facilities by the Secretary of Energy, as required by the statute, and found no factual basis to support a making a recommendation to DOE that the sites be officially designated as AWE facilities.  [Employee]‘s objection # 4 does not present any information that has not already been considered by DEEOIC, and no evidence was submitted that warrants further development.

Based on a review of the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1.      On December 5, 2003, [Employee] filed a claim for benefits under EEOICPA.

2.      [Employee] was a DOE contractor employee at the HERF Facility, a DOE facility, from January 1, 1984 to August 31, 1992.

3.      DEEOIC has determined that the Precision Forge facility in Santa Monica, California, and the Macrodyne facility at Oxnard, California, prior to its acquisition by DOE in 1984, were not DOE facilities, nor had DOE designated them as AWE facilities under EEOICPA. 

4.      NIOSH reported annual dose estimates for [Employee]‘s cancers from the date of initial radiation exposure during covered employment to the dates of diagnosis for each cancer.  A summary and explanation of information and methods applied to produce these dose estimates, including his involvement through an interview and review of the dose report, are documented in the final “NIOSH Report of Dose Reconstruction under EEOICPA.”

5.      Based on the dose reconstruction performed by NIOSH, FAB calculated the probability of causation (the likelihood that the cancers were caused by radiation exposure incurred while working at a covered facility) for [Employee]‘s multiple cancers to be 4.76%, which is less than 50%. 

Therefore, based on a review of the aforementioned facts, FAB also makes the following:

CONCLUSIONS OF LAW

Section 30.111(a) of the implementing regulations states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110 [and] the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”  20 C.F.R. § 30.111(a) (2009).  [Employee] did not submit any additional evidence following issuance of the recommended decision.

Part B of EEOICPA provides compensation for DOE employees or DOE contractor employees who contracted cancer after beginning employment at a DOE facility, or Atomic Weapons Employees who contracted cancer after beginning employment at an AWE facility, as a covered employee with cancer, if and only if that individual is determined to have sustained cancer in the performance of duty.  42 U.S.C. § 7384l(9)(B).  An employee with cancer shall be determined to have sustained that cancer in the performance of duty if and only if the cancer was at least as likely as not related to employment at the facility.  42 U.S.C. § 7384(n)(b).  A cancer is at least as likely as not related to employment if the probability of causation that the cancer was sustained in the performance of duty is 50% or greater.  See 20 C.F.R. § 30.213(b). 

[Employee] has urged that his entire employment with Precision Forge and Macrodyne beginning in 1963 should be considered as covered employment under EEOICPA.   DEEOIC has determined that the Precision Forge facility in Santa Monica and the Oxnard site prior to its acquisition by DOE in 1984 did not meet the requirements for being considered DOE facilities because DOE did not have a proprietary interest in those sites and had not entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services at those locations.  See 42 U.S.C. § 7384l(12).  However, DEEOIC has determined that from 1984 to 1997, DOE owned the HERF Facility in Oxnard and used its management and operating contractor to run the plant, thereby meeting the legal definition of a DOE facility during that period.

As provided by § 7384n(c) of EEOICPA and the implementing regulations, [Employee]‘s periods of covered employment at the HERF Facility and his Hanford visits were reported to NIOSH, together with [Employee]‘s 30 cancer diagnoses and diagnosis dates, for radiation dose reconstruction.  Pursuant to § 81.20 and § 81.25 of the Health and Human Services (HHS) regulations, FAB used the information provided in the final NIOSH Report of Dose Reconstruction to determine that there was a 4.76% probability that that [Employee]‘s cancers were caused by occupational radiation exposure during covered employment at a DOE facility.  42 C.F.R. §§ 81.20, 81.25 (2009).  See also 20 C.F.R § 30.213(b).[2]

Pursuant to §§ 7384l(9)(B) and 7384n(b) of EEOICPA, “a covered employee with cancer” is an individual who is determined to have sustained his/her cancer in the performance of duty if that cancer was “at least as likely as not” (a 50% or greater probability) related to employment at a covered facility.  Using data from the NIOSH dose reconstruction, FAB has determined that the probability of causation that [Employee]‘s cancers are related to covered employment is 4.76%, which is less than 50%.  Therefore, the evidence does not establish that [Employee]‘s cancers were “at least as likely as not” related to his employment at a covered facility.  Accordingly, [Employee]‘s claim for benefits for multiple cancers under Part B.

Washington, DC

John P. Davidson

Hearing Representative

Final Adjudication Branch

[1]  See  http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist/showfacility.cfm (retrieved December 10, 2009)..

[2] This regulation states that HHS regulations satisfy the legal requirements in § 7384n(c), which also sets out OWCP’s obligation to use them in its adjudication of claims under Part B, and provide the factual basis for OWCP to determine if the probability of causation that an employee’s cancer was sustained in the performance of duty is 50% or greater (i.e., it is “at least as likely as not” causally related to employment).  

EEOICPA Fin. Dec. No. 54251-2004 (Dep’t of Labor, November 1, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On February 9, 2004, you filed a Form EE-2, Claim for Survivor’s Benefits under the EEOICPA.  The claim was based, in part, on the assertion that your late husband was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-2 that you were filing for the lung and brain cancer of [Employee] (hereinafter “the employee”).  You submitted evidence that the employee was diagnosed with lung cancer on March 27, 2003, with metastasis to the brain.  

On the Form EE-3, Employment History, you stated the employee was employed by Reactive Metals, Inc., Ashtabula, Ohio, from December 6, 1965 through August 11, 1992.  The district office confirmed this employment through the corporate verifier as December 6, 1965 to August 11, 1992, at the Sodium, not the Extrusion, Plant.  According to the corporate verifier, the Extrusion Plant is the only EEOICPA covered plant at the Reactive Metals facility.      

Because the file did not contain verification of covered employment, the district office sent you letters dated February 23, 2004, March 24, 2004, May 19, 2004 and July 19, 2004.  The letters explained the needed information, requested such evidence, and allowed time for response. 

In response to these letters, you submitted retirement and pension information and tax documents concerning employment with Reactive Metals.  This information did not place the employee at the Extrusion Plant, or in other EEOICPA covered employment.  

The Energy Employees Occupational Illness Compensation Program Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the DOE and certain of its vendors, contractors, and subcontractors.  Eligible survivors may receive lump sum compensation, if applicable.  Those “occupational illnesses” covered by the EEOICPA are specifically described in § 7384l(15) of the Act as “covered beryllium illness, cancer referred to in section 7384l(9)(B)[1] of this title, specified cancer, or chronic silicosis, as the case may be.”  42 U.S.C. § 7384l(15).  There are no provisions under the EEOICPA to cover any other illnesses, even if that illness may be related to employment at a covered facility.  To be covered under the Act, employees with cancer must have worked at an atomic weapons employer facility or a Department of Energy facility as defined in the Act, and designated in the DOE Facility List Database.  42 U.S.C. §§ 7384l(5), 7384l(12).  In this case, although the employee worked at the Reactive Metals, Inc. facility in Ashtabula, Ohio, he was not employed at the Extrusion Plant and thus not a covered employee under the Act.         

Because the file contained no evidence of covered employment, the Cleveland district office issued a recommended denial on August 25, 2004.  The decision found that the evidence did not establish the employee could be considered a covered employee with cancer as defined in the Act. 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision.  This 60-day period expired on October 24, 2004.  

The implementing regulations provide that “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  The implementing regulations further state that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing with the period of time allotted in section 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. § 30.316(a).  In this case, you did not file any objections to the recommended decision or a hearing request.

FINDINGS OF FACT

  1. On February 9, 2004, you filed a Form EE-2, Claim for Benefits under the EEOICPA.
  2. You claimed the following medical conditions:  lung and brain cancer.
  3. The employee was diagnosed with lung cancer with metastasis to the brain.
  4. The employee was employed at the Sodium Plant, Reactive Metals, Inc., Ashtabula, Ohio, from December 6, 1965 to August 11, 1992.
  5. In proof of your survivorship, you submitted your marriage certificate and the employee’s death certificate.  Therefore, you have established that you are a survivor as defined by the implementing regulations.  20 C.F.R. § 30.5(ee).
  6. The district office issued the recommended decision on August 25, 2004.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the district office on August 25, 2004, and finds that the evidence does not establish that the employee was employed at an atomic weapons employer facility or a Department of Energy facility as defined in the Act and designated in the DOE Facility List Database.  42 U.S.C. §§ 7384l(5), 7384l(12).  For that reason, you are not entitled to compensation as the survivor of the employee. 

42 U.S.C. §§ 7384s(a), 7384s(e).

Jacksonville, FL

Jeana F. LaRock

District Manager

[1] 42 U.S.C. § 7384l(9)(B) describes a “covered employee with cancer” as “An individual with cancer specified in subclause (I), (II), or (III) of clause (ii), if and only if that individual is deemed to have sustained that cancer in the performance of duty in accordance with section 7384n(b)” of the EEOICPA.  Clause (ii) states that to be covered for cancer, the employee must have been a DOE employee, DOE contractor employee or an atomic weapons employee who contracted the cancer after beginning such employment.

EEOICPA Fin. Dec. No. 56578-2004 (Dep’t of Labor, September 30, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On April 9, 2004, you filed Form EE-2 (Claim for Survivor Benefits under the EEOICPA) based on the condition of liver cancer (metastatic hepatobiliary carcinoma).  You also submitted a Form EE-3 (Employment History), on which you indicated that [Employee] (the employee) worked at Bechtel Plant Machinery, Incorporated (Westinghouse Plant Apparatus Division) from October 1970 to August 1989, and with Westinghouse at the Naval Reactors Facility in Scoville, Idaho, from July 1, 1957 to July 31, 1961, July 1, 1965 to September 30, 1967, and September 1, 1968 to October 31, 1970.   You also provided dosimetry records associated with the Bettis Atomic Power Laboratory, the New London Submarine Base, the Westinghouse Plant Apparatus Division, and the Naval Reactors Facility.

The medical documentation of record indicated that the employee was diagnosed as having moderately to poorly differentiated adenocarcinoma of the liver (favored to be a hepatobiliary primary cancer). 

Information obtained from a Department of Energy representative and the Oak Ridge Institute for Science and Education (ORISE) database was negative for employment information pertaining to the employee. 

By letters dated April 26 and June 9, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim.  You were also notified that employment related to the Naval Nuclear Propulsion Program was specifically excluded from coverage under the EEOICPA.  You were requested to provide documentation of covered employment under the Act within thirty days of the district office letters.

By letter received on May 16, 2004, you advised the Seattle district office that you previously provided the employee’s complete employment history and documentation, which only included work performed at facilities dedicated to the Naval Nuclear Propulsion Program.

On July 26, 2004, the Seattle district office recommended denial of your claim for compensation.   The district office concluded that the employee does not qualify as a covered employee under § 7384l of the Act.  See 42 U.S.C. §§ 7384l.  The district office also concluded that the evidence of record was insufficient to establish that the employee was present at a covered facility, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors, during a covered time period.  See 42 U.S.C. § 7384l(10)-(12).  Finally, the district office concluded that you are not entitled to compensation as outlined under § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s. 

FINDINGS OF FACT

  1. You filed a claim for survivor benefits on April 9, 2004.
  1. The employee was diagnosed as having liver cancer, a covered occupational illness under the EEOICPA.
  1. You did not provide sufficient evidence to establish that the employee engaged in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 26, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the sixty-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C. F. R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, you must establish that the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or  radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. § 7384l(4)-(7), (9) and (11).

In order to be afforded coverage as a “covered employee with cancer,” you must show that the employee was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b). 

Further, § 7384l(12) of the Act provides a definition of a Department of Energy facility and specifically exempts the Nuclear Propulsion Program. 

The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

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

42 U.S.C. § 7384l(12)(A). 

In this case, the employment evidence you provided indicated that the employee worked at the Naval Reactors Facility (NRF), the New London Submarine Base, the Westinghouse Plant Apparatus Division (Bechtel Plant Machinery, Inc.) and the Bettis Atomic Power Laboratory, which provided products and services to the Naval Nuclear Propulsion Program.  Consequently, this employment is specifically excluded from coverage under the Act.  See 42 U.S.C. § 7384l(12)(A).

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation 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).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 10038639-2007 (Dep’t of Labor, Nov. 12, 2008)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for chronic obstructive pulmonary disease (COPD) under Part E of EEOICPA is denied.

STATEMENT OF THE CASE

On August 9, 2005, the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had contracted COPD.  In support of his claim, he submitted an employment history stating that he was employed as a security officer by EG&G Special Projects at the Nevada Test Site (NTS) from January 1981 to October 1990, and that he wore a dosimetry badge while employed.  The Oak Ridge Institute for Science and Education (ORISE) database did not contain information to verify this employment.  The Department of Energy (DOE) verified the employee’s employment with Edgerton, Germeshausen, and Grier Special Projects and stated, “This was not a DOE-funded project and was not associated with the DOE Nevada Test Site work.”   

On June 15, 2007, the district office issued a recommended decision to deny the claim on the ground that the medical evidence of record was insufficient to establish the diagnosis of COPD.  However, on December 20, 2007, FAB issued an order remanding the case for further development after the employee submitted medical evidence that supported the diagnosis of COPD.  As a result, the claim was returned to the district office for further development and the issuance of a new recommended decision.

By letter dated January 25, 2008, the Seattle district office informed the employee that under Part E of EEOICPA, an employee must have worked for a DOE contractor or subcontractor at a DOE facility during a covered time period, and that to date, DOE had verified his employment by EG&G Special Projects at the Nevada Test Site from January 1, 1981 to October 31, 1990.  He was informed that DOE had indicated that EG&G Special Projects was not a DOE funded project and that any employment for these projects took place outside the borders of the NTS, and therefore was not covered employment under EEOICPA.  The district office asked him to submit evidence to establish that EG&G Special Projects was involved in operations for DOE or on behalf of DOE at the NTS.    

In a response received by the district office on February 14, 2008, the employee submitted an affidavit on Form EE-4 from a work associate, who asserted that the employee was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990.  The employee also submitted an affidavit from his wife, who asserted that he was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990. 

On February 29, 2008, the district office issued a new recommended decision to deny the employee’s claim for COPD under Part E, on the ground that the evidence was insufficient to establish that he was present at a covered facility while working for DOE or any of its covered contractors, subcontractors, or vendors during a covered time period.   

OBJECTIONS

On March 12, 2008, FAB received the employee’s written objections to the recommended decision.  In his objection letter, he stated the following:

I am submitting a copyrighted article from the Las Vegas Review Journal dated Thursday, December 16, 1999.  In this article there is a discussion of President Clinton signing into law, under the military lands withdrawal act of 1999.  The document in question was signed on , and the Department of Energy released the article to the press approximately two months later.  In the document President Clinton signed over to the Air Force control over Department of Energy property in the rectangle around Groom Lake which is the northeastern corner of the test site this land was previously used by the Air Force under an agreement with the Atomic Energy Commission that dates back to 1958, the location is commonly known as Area 51.  This article makes perfectly clear, prior to the property was under the control of the Department of Energy.  As to the funding of EG&G Special Projects, their funding came directly from the Department of Energy in the form of laundered money that was approved for projects approved by Congress for the Nevada Test Site.  The cost overruns were then used to fund the black projects at Area 51.  By using approved monies in this manner, further protected the activities that occurred at Area 51 (projects that cannot be investigated by Congress).  Also the general manager for all projects at Area 51, that person’s name is was [General Manager], who was in charge of all subcontractors at Area 51.  [General Manager] was an employee of Reynolds Electrical & Engineering the prime contractor at the NTS, a company owned by EG&G. 

On August 5, 2008, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Circular No. 08-06 which states the following:

The Nevada Test Site is a covered DOE facility for the period 1951-present.  The DEEOIC considers Area 51 part of NTS for the period 1958-1999.  The DOE categorizes Reynolds Electrical and Engineering Company (REECo) and Bechtel , Inc. as “captive contractors,” for the DOE and its predecessors, including both the Atomic Energy Commission (AEC) and the Energy Research and Development Agency (ERDA).  This means that employees of REECo and Bechtel who worked at the NTS, including Area 51, are DOE contractor employees, regardless of what information may previously have been received from DOE.

By letter dated October 17, 2008, DOE confirmed for FAB that EG&G Special Projects was not a DOE contractor at the Nevada Test Site.

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

FINDINGS OF FACT

1.      The employee was employed by EG&G Special Projects from January 5, 1981 to October 15, 1990.

2.      The case file does not contain sufficient evidence to establish that the employee worked for a DOE contractor or subcontractor at the NTS.

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

CONCLUSIONS OF LAW

The term “covered DOE contractor employee” used in Part E is defined as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s(1).  The term “covered illness” means an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2).

DEEOIC has researched the issue of claimed employment at Area 51 of NTS, and considers Area 51 to be part of NTS for the period 1958-1999.  As noted above, DOE categorizes REECo and Bechtel Nevada, Inc. as “captive contractors” for DOE and its predecessors; this means that employees of REECo and Bechtel who worked at NTS (including Area 51 during the period 1958-1999) are DOE contractor employees.  Also as noted above, DOE has confirmed that EG&G Special Projects was not a DOE contractor at NTS.

It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA.  The regulations at 20 C.F.R. § 30.111(a) state that the claimant bears the burden of proving, by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  See 20 C.F.R. § 30.111(a) (2008).

As found above, the evidence of record establishes that the employee worked for EG&G Special Projects, but does not establish that he is a “covered DOE contractor employee” as defined by 42 U.S.C. § 7385s(1), because he did not work for a DOE contractor or subcontractor.  Therefore, the claim must be denied for lack of covered employment under Part E of EEOICPA.

Washington,

Amanda M. Fallon

Hearing Representative

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the employee’s claim is denied.

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

OBJECTIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) a proprietary interest, or

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

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

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

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

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

FINDINGS OF FACT

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

(i) a proprietary interest, or

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

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

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

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

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

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

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

Washington, DC

Thomas R. Daugherty

Hearing Representative

Final Adjudication Branch

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

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

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

[4]  Id. 

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

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

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

[8]The FAB notes that it is the claimant’s responsibility to establish entitlement to benefits under the Act.  Subject to certain limited exceptions expressly provided in the Act and regulations, the claimant bears the burden of providing “all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”  20 C.F.R. § 30.111(a).  See also EEOICPA Fin Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004). 

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

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

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

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

Naval nuclear propulsion program

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

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  On March 29, 2003, you wrote to the FAB and filed an objection to the March 11, 2003 recommended decision of the Cleveland district office.  Your objection has been considered by means of a review of the written record.

STATEMENT OF THE CASE

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

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

Objections

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

STATEMENT OF THE LAW

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

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

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

FINDINGS OF FACT

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

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

CONCLUSION OF LAW

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

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

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

EEOICPA Fin. Dec. No. 56578-2004 (Dep’t of Labor, September 30, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On April 9, 2004, you filed Form EE-2 (Claim for Survivor Benefits under the EEOICPA) based on the condition of liver cancer (metastatic hepatobiliary carcinoma).  You also submitted a Form EE-3 (Employment History), on which you indicated that [Employee] (the employee) worked at Bechtel Plant Machinery, Incorporated (Westinghouse Plant Apparatus Division) from October 1970 to August 1989, and with Westinghouse at the Naval Reactors Facility in Scoville, Idaho, from July 1, 1957 to July 31, 1961, July 1, 1965 to September 30, 1967, and September 1, 1968 to October 31, 1970.   You also provided dosimetry records associated with the Bettis Atomic Power Laboratory, the New London Submarine Base, the Westinghouse Plant Apparatus Division, and the Naval Reactors Facility.

The medical documentation of record indicated that the employee was diagnosed as having moderately to poorly differentiated adenocarcinoma of the liver (favored to be a hepatobiliary primary cancer). 

Information obtained from a Department of Energy representative and the Oak Ridge Institute for Science and Education (ORISE) database was negative for employment information pertaining to the employee. 

By letters dated April 26 and June 9, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim.  You were also notified that employment related to the Naval Nuclear Propulsion Program was specifically excluded from coverage under the EEOICPA.  You were requested to provide documentation of covered employment under the Act within thirty days of the district office letters.

By letter received on May 16, 2004, you advised the Seattle district office that you previously provided the employee’s complete employment history and documentation, which only included work performed at facilities dedicated to the Naval Nuclear Propulsion Program.

On July 26, 2004, the Seattle district office recommended denial of your claim for compensation.   The district office concluded that the employee does not qualify as a covered employee under § 7384l of the Act.  See 42 U.S.C. §§ 7384l.  The district office also concluded that the evidence of record was insufficient to establish that the employee was present at a covered facility, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors, during a covered time period.  See 42 U.S.C. § 7384l(10)-(12).  Finally, the district office concluded that you are not entitled to compensation as outlined under § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s. 

FINDINGS OF FACT

  1. You filed a claim for survivor benefits on April 9, 2004.
  1. The employee was diagnosed as having liver cancer, a covered occupational illness under the EEOICPA.
  1. You did not provide sufficient evidence to establish that the employee engaged in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 26, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the sixty-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C. F. R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, you must establish that the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or  radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. § 7384l(4)-(7), (9) and (11). 

In order to be afforded coverage as a “covered employee with cancer,” you must show that the employee was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b). 

Further, § 7384l(12) of the Act provides a definition of a Department of Energy facility and specifically exempts the Nuclear Propulsion Program. 

The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

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

42 U.S.C. § 7384l(12)(A). 

In this case, the employment evidence you provided indicated that the employee worked at the Naval Reactors Facility (NRF), the New London Submarine Base, the Westinghouse Plant Apparatus Division (Bechtel Plant Machinery, Inc.) and the Bettis Atomic Power Laboratory, which provided products and services to the Naval Nuclear Propulsion Program.  Consequently, this employment is specifically excluded from coverage under the Act.  See 42 U.S.C. § 7384l(12)(A).

It is the claimant’s responsibility to establish entitlement to benefits under the Act.  The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation 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).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch