The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren.

Are you eligible for compensation? If you or a family member worked at any of the Atomic Weapons Employer (AWE) and Department of Energy (DOE) Covered Facilities listed on this website and became ill, you may be entitled to compensation of up to $400K plus medical benefits. Call EEOICPA Counsel Hugh Stephens at 1-855-548-4494 or fill out our free claim evaluation, We can help even if you’ve already filed, even if your claim was denied!

In these pages, we present general definitions of Illnesses covered by the Act, followed by specific references to the disease from the EEOICPA Procedure Manual, Bulletins, and Final Decisions of the Final Adjudication Board to clarify how these maldies might relate to the Energy Employees Occupational Illness Compensation Program Act.

Bone Cancer

On this page we have collected specific references to bone cancer from the DEEOIC Procedure Manual, Bulletins, and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.

Note: Page numbers below refer to the documents available on our DEEOIC Resources page.

A.D.A.M. Medical Encyclopedia:

Bone tumor
Tumor – bone; Bone cancer; Primary bone tumor; Secondard bone tumor

A bone tumor is an abnormal growth of cells within a bone. A bone tumor may be cancerous (malignant) or noncancerous (benign).

Causes, incidence, and risk factors

The cause of bone tumors is unknown. They often occur in areas of rapid bone growth. Possible causes include:

  • Genetic defects passed down through families
  • Radiation
  • Injury

In most cases, no specific cause is found.

Osteochondromas are the most common noncancerous (benign) bone tumors, and occur most often in people between the ages of 10 and 20.

Cancers that start in the bones are referred to as primary bone tumors. Cancers that start in another part of the body (such as the breast, lungs, or colon) are called secondary or metastatic bone tumors. They behave very differently from primary bone tumors. Multiple myeloma often affects or involves the bone, but is not considered a primary bone tumor.

Cancerous (malignant) bone tumors include:

  • Chondrosarcoma
  • Ewing’s sarcoma
  • Fibrosarcoma
  • Osteosarcomas

The cancers that most often spread to the bone are cancers of the:

  • Breast
  • Kidney
  • Lung
  • Prostate
  • Thyroid

These forms of cancer usually affect older people.

Bone cancer was once very common among people who made glow-in-the-dark dials using radium paint. The practice of using radium paint was abandoned in the mid-1900s.

 

Procedure Manual:

Page 48 – An employee must be diagnosed with one of these specific types of cancer to be considered eligible for benefits as a member of the Special Exposure Cohort (SEC). The list of specified cancers, which is derived from section 4(b)(2) of the RECA Amendments of 2000, is as follows:

(2) Primary or secondary bone cancer which also includes the following:

(a) Chondrosarcoma of the Cricoid Cartilage of the Larynx;

(b) Myelofibrosis with Myeloid Metaplasia;

(c) Myelodysplastic Syndromes;

(d) Polycythemia vera with leukocytosis and thrombocytosis; or

(e) Polycythemia rubra vera, also known as:

(i) Polycythemia vera;

(ii) P. vera;

(iii) Primary polycythemia;

(iv) Proliferative polycythemia;

(v) Spent-phase polycythemia; or

(vi) Primary erythremia.

The specified diseases in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute (NCI) under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.

Page 175Specified Cancers: In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):

c. Primary or Secondary Bone Cancer. This includes myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, primary polycythenia vera [also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia] and chondrosarcoma of the cricoid (cartilage of the larynx).

Page 180 – (b) If the claim meets the SEC employment criteria and includes both a specified cancer and a non- specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a probability of causation of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer.

For the non-specified cancer, the Claims Examiner (CE) prepares a NIOSH Referral Summary Document (NRSD) for a dose reconstruction to determine eligibility for medical benefits. In these SEC cases, all cancers must be listed on the NRSD, including the specified cancer(s).

(1) One exception to this rule is an accepted SEC claim where the specified cancer is a secondary cancer. For instance, prostate cancer (non specified cancer) metastasizes to secondary bone cancer. If secondary bone cancer is accepted as a specified cancer under the SEC provision, both primary and secondary cancers (prostate and bone cancer) are accepted for medical benefits under Part B.

However, per regulation 20 C.F.R. § 30.400, “payment for medical treatment of the underlying primary cancer…does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of the EEOICPA.” As such, it may be necessary for the CE to refer the prostate cancer to NIOSH for dose reconstruction to determine eligibility for benefits under Part E. In this case, only prostate cancer is included in the NIOSH NRSD for a dose reconstruction since the secondary bone cancer metastasized from the prostate cancer.

 

Page 239SEC Case with Award. For any SEC cases where an award has been made for a specified cancer, any non-SEC cancers for the case must be forwarded to NIOSH for dose reconstruction to determine eligibility for medical benefits. In these SEC cases, all cancers must be listed on the NIOSH Referral Summary Document (NRSD), including the specified cancer(s).

(1) An exception to this rule includes those SEC claims where a primary cancer which is not a specified cancer metastasizes to a secondary cancer site that is considered a specified cancer. For instance, prostate cancer (non- specified cancer) metastasizes to secondary bone cancer (specified cancer). If the bone cancer is accepted as a specified cancer under the SEC provision, both primary and secondary cancers (prostate and bone cancer) are accepted for medical benefits under Part B. However, per regulation 20 C.F.R. § 30.400, “payment for medical treatment of the underlying primary cancer…does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of the EEOICPA.” As such, it may be necessary for the CE to refer the prostate cancer to NIOSH for dose reconstruction to determine eligibility for benefits under Part E for prostate cancer. In this situation, since the bone cancer is a secondary cancer with known primary site (prostate), it is not included in the NIOSH NRSD for dose reconstruction.

 

Page 328 – Metastatic Bone Cancer.

(1) In situations where the CE accepts a case under the SEC provision based on metastatic (secondary) bone cancer, often the primary source of the metastatic bone cancer will prove to be the prostate. If the CE does not accept the prostate cancer due to a lack of a causative link and because prostate cancer is not a SEC specified cancer, it is important that the CE ensure that the non-covered prostate cancer is not considered in the impairment rating. Only the accepted condition of SEC metastatic bone cancer is considered for the impairment rating. If a rating is received for the prostate, the report must be resubmitted and a new rating must be requested.

 

Page 338Medical Evidence to Establish Wage-Loss. The claimant is required to submit medical evidence that is of sufficient probative value to establish that the period of wage-loss claimed is causally related to the covered Part E employee’s covered illness.

There are instances when the medical evidence shows multiple conditions contributing to the wage-loss. As long as the evidence establishes that any covered illness contributed to the employee’s wage-loss, then the medical evidence is sufficient to prove causal relationship.

An acceptance of Social Security Disability benefits alone is not sufficient evidence to establish a causal relationship, unless accompanied by supporting medical evidence. If a secondary cancer is the accepted covered illness but the primary is not accepted(e.g., secondary bone cancer is accepted but the primary prostate cancer is not accepted), the medical evidence needs to support that the wage-loss is causally related to the secondary cancer, because the causation requirement has not been met for the primary cancer.

Page 592By signing the written response, the claimant agrees to notify DEEOIC of any changes in the information provided in regards to the SWC/lawsuit/fraud statement. It is not necessary to request this information again unless there is a new exposure or illness (including consequential) being accepted under EEOICPA. For instance, if the claimant has submitted a written response for lung cancer and is now filing a claim for a consequential condition of bone cancer, a new signed response regarding the bone cancer is required before this consequential condition is accepted under the Act.

Bulletins:

Page 18If the claim meets the SEC class employment criteria and includes both specified and non- specified cancers, medical benefits can be awarded for the specified cancer(s) and any non- specified cancer(s) once a dose reconstruction results in a probability of causation (PoC) of 50 percent or greater. A dose reconstruction is unnecessary for any secondary cancers that are metastases of a compensable cancer including non-specified primary cancers which cause anaccepted SEC secondary cancer. For instance, prostate (non-specified primary) cancer metastasizes to secondary bone cancer. If secondary bone cancer is accepted as a specified cancer under the SEC provision, both primary and secondary cancers (prostate and bone cancer) are accepted for medical benefits under Part B without a need for a dose reconstruction for the prostate cancer. In these instances, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and, concurrently prepares a NRSD to NIOSH for a dose reconstruction for the non-specified cancer to determine eligibility for medical benefits. The CE enters status code “SER” (SEC Recommended Acceptance) with the “101- Rvwd per Bulletin 11- 01, Blockson Chemical Company SEC (3/1/51 – 6/30/60)” reason code (as described in item #9 above) and the “NI” (Sent to NIOSH) code into ECMS B. The status effective date for the “SER” code is the date of the recommended decision to accept the specified cancer. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD.

Page 31 If the claim meets the SEC class employment criteria and includes both specified and non- specified cancers, benefits can be awarded for the specified cancer(s) and any non-specified cancer(s) assigned a probability of causation (PoC) of 50 percent or greater. Medical benefits are also payable for a non-specified primary cancer, where it is found to be the origin of a compensable secondary SEC cancer; i.e. bone, lung, or renal. For instance, prostate (non-specified primary) cancer metastasizes to secondary bone cancer. If secondary bone cancer is accepted as a specified cancer under the SEC provision, both the primary and secondary cancers (prostate and bone cancer) are to be accepted for medical benefits without a need for a dose reconstruction for the prostate cancer. In this situation, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met). Approval would also be granted for medical benefits to be payable for the underlying non-specified primary cancer. The CE would proceed to code ECMS with the appropriate recommended decision coding along with the status code “SER” (SEC Recommended Acceptance) with the “103- Rvwd per Bulletin 11-03, Revere Copper and BrassSEC (7/24/43-12/31/54)” reason code (as described in item #9 above). In ECMS-B both the primary and secondary cancers would be coded as “A” (Accepted).

Page 102 – NCI (National Cancer Institute) was asked if laryngeal cancer could be considered a specified cancer. In their response, NCI stated that laryngeal cancer can be grouped with pharyngeal cancer. Both pharyngeal and laryngeal cancers are usually grouped together under the general term of “head and neck cancer” as they are biologically similar cancers originating from the upper aerodigestive tract. Therefore, a primary cancer of any region of the larynx is considered as a specified cancer. The regions of the larynx are the glottis, supraglottis, subglottis, and laryngeal cartilages. See Attachment 1 which defines the regions and sub-regions of the larynx. However, as previously defined in EEOICPA Bulletin No. 02-15, chondrosarcoma of the cricoid cartilage of the larynx is considered a bone cancer.

NCI was also requested to provide medical clarification on whether a solitary plasmacytoma can be considered a bone cancer, and thereby considered a specified cancer under the EEOICPA. In their response, NCI stated that there are two types of solitary plasmacytoma, one is the bone form and the other is the soft tissue form. The bone form of solitary plasmacytoma is a form of cancer consistent with bone cancer. However, the soft tissue form of solitary plasmacytoma is not considered a bone cancer or multiple myeloma.

Page 103

The CE/HR is to evaluate a diagnosis of solitary plasmacytoma to determine whether or not it involves the bone or the soft tissue. If the diagnosis is the bone form of solitary plasmacytoma (a/k/a solitary myeloma), it is considered a bone cancer, which is a SEC specified cancer. If the diagnosis is a soft tissue solitary plasmacytoma, it is not considered a bone cancer or multiple myeloma, and, therefore, is not a SEC specified cancer.

Page 678

03-11 Additional cancers considered as primary cancer

EEOICPA BULLETIN NO.03-11

Issue Date: November 19, 2002

Effective Date: November 19, 2002

Expiration Date: November 19, 2003

Subject: Additional Cancers Considered as Primary Cancers

Background: 20 CFR 30.5 (dd)(6) states that specified cancers are “the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.” The Department of Labor (DOL) forwarded a list of six medical conditions to the National Cancer Institute (NCI) for their review and classification to determine which conditions could be considered as cancers under the EEOICPA. The six medical conditions sent to NCI were:

myelofibrosis with myeloid metaplasia;

polycythemia vera with leukocytosis and thrombocytosis;

polycythemia rubra vera;

myelodysplastic syndromes;

carcinoid tumors or carcinoid syndrome; and

monoclonal gammopathies of undetermined significance.

On October 8, 2002, DOL received a letter from Dr. E. G. Fiegal, the Acting Director of NCI’s Division of Treatment and Diagnosis, detailing NCI’s evaluation of the above mentioned six medical conditions. According to Dr. Fiegel, NCI recognizes myelofibrosis with myeloid metaplasia, polycythemia vera with leukocytosis and thrombocytosis, polycythemia rubra vera, and myelodysplastic syndromes as reportable cancers. These hematological conditions are not reportable as leukemia, non-Hodgkin’s lymphoma, or multiple myeloma, but have distinct categories (except in the case of polycythemia rubra vera and polycythemia vera with leukocytosis and thrombocytosis, which share the same category). One of the functions of bone is to manufacture blood cells in the bone marrow. Accordingly, myelofibrosis with myeloid metaplasia, polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis, and myelodysplastic syndrome(s) should be considered as bone cancer for purposes of having a “specified cancer” as a member of the Special Exposure Cohort, since all are malignancies of the bone marrow.

Actions:

The CE should consider: (1) myelofibrosis with myeloid metaplasia; (2) polycythemia rubra vera; (3) polycythemia vera with leukocytosis and thrombocytosis; and (4) myelodysplastic syndrome(s) to be bone cancer, which is a specified primary cancer per EEOICPA Section 7384l(17)(B).

For the conditions to be considered as bone cancers, the ICD-9 code for a myeloid metaplasia is 289.8, polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis is 238.4, and myelodysplastic syndrome is 238.7. The ICD-9 code for malignant neoplasm of the bone is 170.

Page 754

In Bulletin 03-11, polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis were considered as bone cancer. We requested clarification as to whether all of the descriptors were necessary in a diagnosis of polycythemia vera. Leukocytosis and thrombocytosis are supplemental descriptors of polycythemia vera. NCI noted that a diagnosis of polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia) is sufficient by itself to be classified as a malignancy of the bone marrow.

Our final question for clarification involves the classification of essential thrombocytosis. NCI recognizes essential thrombocytosis as a synonym of essential thrombocythemia. The current NCI tumor coding book (ICD-O-3) identifies essential thrombocythemia as a malignancy. It is in the same category as polycythemia vera, which DOL considered to be a bone cancer (see Bulletin 03- 11). Since essential thrombocytosis is a malignancy of the bone marrow, it should be considered as bone cancer.

4. The CE/HR must consider a diagnosis of primary polycythemia vera (also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia) to be bone cancer, which is a specified primary cancer per EEOICPA Section 7384l(17)(B).

5. The CE/HR must consider essential thrombocytosis or essential thrombocythemia as bone cancer, which is a specified primary cancer per EEOICPA Section 7384l(17)(B).

Page 846

02-15 Chondrosarcoma

EEOICPA Bulletin No.02-15

Issue Date: July 15, 2002

Effective Date: June 12, 2002

Expiration Date: June 12, 2003

Subject: Chondrosarcoma of the Cricoid Cartilage of the Larynx as a Specified Primary Cancer

Background: The Department of Labor (DOL) recently forwarded the medical evidence in a case file to the National Cancer Institute (NCI) for their review and opinion to determine if, for purposes of being considered a specified cancer under the EEOICPA, chondrosarcoma of the cricoid cartilage of the larynx can be considered a bone cancer.

The expert medical opinion obtained from the NCI indicates that while it is possible to make histologic distinctions between chondrosarcomas and osteosarcomas, the biologic and neoplastic aspects of cartilaginous and calcified bony tissue share many characteristics in common and seem to be vulnerable to similar influences. There is a good deal of evidence that radiation effects on the bony skeleton and the non-calcified cartilaginous tissue are likely to be quite similar, and the NCI expert was aware of no evidence to the contrary. Thus, it seems to the expert that a sarcoma arising in the cricoid would fit under the general rubric of a bone cancer.

Accordingly, for purposes of being considered a specified cancer under the EEOICPA, DOL has determined that chondrosarcoma of the cricoid cartilage of the larynx will be considered as a bone cancer.

Reference: Energy Employees Occupational Illness Compensation Program Act of 2000, As Amended, 42 U.S.C. § 7384 et seq., Sections 7384l (14) and (17) and a letter from Dr. R. Kaplan, NCI, to Dr. V. Miller, DOL, dated June 12, addressing this chondrosarcoma case (see Docket No.4230-2002).

Purpose: To notify District Offices that chondrosarcoma of the cricoid cartilage of the larynx is considered a bone cancer, which is a specified primary cancer for eligible SEC claimants under the EEOICPA.

Applicability: All staff.

Actions:

The CE should consider chondrosarcoma of the cricoid cartilage of the larynx as a specified primary cancer in determining eligibility for members of the Special Exposure Cohort (SEC) per EEOICPA Section 7384l(14). The rationale is that the biologic and neoplastic aspects of cartilaginous and calcified bony tissue share many characteristics in common and seem to be vulnerable to similar influences.

The CE should look for any other cases with this type cancer that could be eligible as members of the SEC. A preliminary review of the ECMS searching for ICD-9 code 161.3 did not find any other employees at SEC sites, however the cancer may have not been entered into ECMS using this code.

The CE should review all incoming SEC claims for this condition. If found, and all other relevant SEC criteria have been met, issue a Recommended Decision for acceptance of the claim as bone cancer.

4. The CE should continue to distinguish chondrosarcoma of the cricoid cartilage of the larynx from bone cancers using the appropriate ICD-9 codes on all paperwork and in ECMS. For example, the ICD-9 codes for a malignant neoplasm of the laryngeal cartilage is 161.3, and for bone it is 170.

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual

Peter M. Turcic

Director, Division of Energy Employees Occupational Illness Compensation

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections

 

 

Final Decisions:

Page 264

EEOICPA Fin. Dec. No. 55286-2006 (Dep’t of Labor, August 22, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the FAB accepts the claims of [Claimant #1], [Claimant #2], and [Claimant #3] for compensation under Part B of EEOICPA in the amount of $150,000.00 ($50,000.00 payable to each) for the employee’s occupational illness of prostate cancer metastasized to the bone.

STATEMENT OF THE CASE

On September 20, 2002, [Employee’s spouse] filed a Form EE-2 with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) and a Form DOE F 350.3 with the Department of Energy (DOE), seeking benefits as the surviving spouse of [Employee]. [Employee’s spouse] identified the claimed conditions of prostate cancer and bone cancer. On May 8, 2003, [Employee’s spouse] died and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

[Claimant #1] (on March 10, 2004), [Claimant #2] (on April 5, 2004), and [Claimant #3] (on April 5, 2004) each submitted a Form EE-2 with DEEOIC as the surviving children of [Employee]. They claimed [Employee] developed prostate cancer and bone cancer as a result of his employment at the Hanford site. [Employee’s spouse] had submitted a Form EE-3 in which she alleged that [Employee] was employed at the Hanford site as a truck driver with E.I. DuPont Nemours & Company (Du Pont) from December 1943 to December 1944, with General Electric Company (GE) as a millwright from July 6, 1954 to January 3, 1965, and as a millwright with Battelle-Northwest (Battelle) at the Pacific Northwest National Laboratory (PNNL) from January 4, 1965 to July 8, 1983. A representative of DOE verified that [Employee] was employed at the Hanford site, a DOE facility, by DuPont, a DOE contractor, from December 14, 1943 to December, 1944, and by GE, another DOE contractor, as a millwright from July 6, 1954 to December 31, 1964, and with Battelle at PNNL, a second DOE facility, from January 4, 1965 to July 29, 1983. The Oak Ridge Institute for Science and Education (ORISE) database contained information verifying that [Employee] was employed at the Hanford site starting on July 6, 1954. DOE records establish that [Employee] had worked in Area 200 West during his employment at the Hanford site.

The medical evidence of record includes a pathology report, dated October 3, 1988, in which Dr. Thomas D. Mahony diagnosed prostate cancer. The medical evidence of record also includes a whole body bone scan conducted on September 27, 1988, which noted the metastases of the prostate cancer to the bone of the skull, ribs, thoracic vertebra, pelvis and right femur.

The evidence of record includes a copy of the employee’s death certificate, which indicates that [Employee] was married at the time of his death on October 4, 1991 to [Employee’s spouse]. You also submitted a copy of [Employee’s spouse]’s death certificate. [Employee]’s death certificate lists the cause of his death on October 4, 1991 as arrhythmia due to myocardial infarction, coronary heart disease, and cancer of the prostate metastases. In support of your claims, you each submitted a copy of your birth certificate showing that you are the biological children of [Employee] and that [Claimant #1] was born on May 26, 1957, [Claimant #2] was born on October 4, 1941, and that [Claimant #3] was born on March 3, 1950. At the time of the employee’s death on October 4, 1991, [Claimant #1] was 34 years old, [Claimant #2] was 50 years old, and [Claimant #3] was 41years old. [Claimant #1] produced sufficient evidence to show the change in her surname.

To determine the probability that [Employee]’s prostate cancer was sustained in the performance of duty, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. In a prior final decision dated May 8, 2006, the FAB denied the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] because there was only a 24.78% probability that the employee’s prostate cancer was caused by radiation exposure at the Hanford site. The FAB concluded that [Employee] did not qualify as a covered employee with cancer under Part B, that the dose reconstruction estimates and the probability of causation calculations were performed according to EEOICPA and its regulations, and that [Claimant #1], [Claimant #2], and [Claimant #3] were not entitled to survivor benefits under Part B of EEOICPA.

On March 29, 2007, NIOSH issued OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan: Evaluation of Highly Insoluble Plutonium Compounds.” It was NIOSH’s determination that the existence of the highly insoluble plutonium compound at the Hanford site should be considered Type Super S plutonium in dose reconstructions for employees at that site. The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites. The change went into effect on February 6, 2007. See EEOICPA Bulletin No. 07-19 (issued May 16, 2007).

On April 2, 2008, a Director’s Order was issued vacating the FAB’s May 8, 2006 final decision and reopening the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] for further development. The Director’s Order instructed the Seattle district office to forward the case to NIOSH for rework of the employee’s dose reconstruction pursuant to EEOICPA Bulletin No. 07-27 (issued August 8, 2007).

On April 7, 2008, your claims were returned to NIOSH for rework of the employee’s radiation dose reconstruction; however the dose reconstruction was not completed following the addition of a particular class of Hanford employees to the Special Exposure Cohort (SEC).

On May 30, 2008, the Secretary of Health and Human Services (HHS) designated a class of employees at the Hanford site for inclusion in the SEC. This designation went into effect on June 29, 2008. The class consists of all employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who worked from: (1) September 1, 1946 though December 31, 1961 in the 300 area; or (2) January 1, 1949 through December 31, 1968 in the 200 areas (East and West) at the Hanford Nuclear Reservation in Richland, Washington for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

On July 18, 2008, the Seattle district office recommended acceptance of your claims for survivor benefits under Part B, concluding that the employee is a member of the above-noted addition to the SEC, since he was employed at Hanford for an aggregate of 250 days or more during the SEC period and was diagnosed with prostate cancer that metastasized to the bone. Secondary (metastatic) bone cancer is a “specified” cancer under EEOICPA. The district office concluded that [Claimant #1], [Claimant #2], and [Claimant #3] are the surviving children of the employee and entitled to survivor benefits under Part B of the Act, in the amount of $150,000.00, to be divided equally among them in the amount of $50,000.00 each.

On July 21, 2008, the FAB received written notification from [Claimant #2] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third-party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #2] stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, he averred that other than [Claimant #1] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee]. On July 21, 2008, the FAB also received [Claimant #2]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

On July 22, 2008, the FAB received written notification from [Claimant #1] indicating that neither she, nor anyone in her family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #1] further stated that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, she averred that other than [Claimant #2] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee]. On July 22, 2008, the FAB also received [Claimant #1]’s written notification indicating that she waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

On July 24, 2008, the FAB received written notification from [Claimant #3] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #3] further stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, he indicated that other than [Claimant #2] and [Claimant #1], there were no other individuals who might qualify as a survivor of [Employee]. On July 24, 2008, the FAB also received [Claimant #3]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

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

FINDINGS OF FACT

1. On September 20, 2002, [Employee’s spouse] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee]. [Employee’s spouse] died on May 8, 2003, and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

2. [Claimant #1], [Claimant #2] and [Claimant #3] each submitted claims for survivor benefits under EEOICPA, as the surviving children of [Employee].

3. [Claimant #1], [Claimant #2] and [Claimant #3] are the biological children of [Employee]. [Claimant #1], [Claimant #2] and [Claimant #3] are the only children and eligible survivors of the employee.

4. The employee worked at the Hanford site, with DuPont from December 14, 1943 to December 31, 1944, with GE from July 6, 1954 to December 31, 1964, and at PNNL with Battelle from January 4, 1965 to July 29, 1983. The employee was monitored for radiation exposures and worked in Area 200 West during his employment at the Hanford site. This employment met or exceeded 250 aggregate work days, and qualifies [Employee] as a member of the SEC.

5. The employee was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis, and right femur, which is a “specified” cancer, on September 27, 1988, after starting work at a DOE facility.

6. [Claimant #1], [Claimant #2] and [Claimant #3] each stated that they, or anyone in their family, had never filed for or received any settlement or award from a lawsuit, tort suit, or third-party claim in relation to the illnesses claimed. [Claimant #1], [Claimant #2] and [Claimant #3] have never pled guilty to or been convicted of any charges connected with an application for or receipt of

federal or state workers’ compensation, nor have they or anyone in their family ever filed for or received any payments, awards, or benefits for a state workers’ compensation claim in relation to [Employee]’s cancer.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. See 20 C.F.R. § 30.316(a). [Claimant #1], [Claimant #2] and [Claimant #3] waived their right to file objections to the findings of fact and conclusions of law contained in the July 18, 2008 recommended decision issued on their claims for benefits under EEOICPA.

In order to be afforded coverage under Part B of EEOICPA, you must establish that [Employee] has been diagnosed with an occupational illness incurred as a result of his exposure to silica, beryllium, and/or radiation. Further, the illness must have been incurred while he was in the performance of duty for DOE or certain of its contractors. The evidence of record indicates that the employee worked in covered employment at Hanford from December 14, 1943 to December 31, 1944, and from July 6, 1954 to December 31, 1964, and at PNNL from January 4, 1965 to July 29, 1983 in Area 200 West.

The period of employment from July 6, 1954 to December 31, 1961 exceeds the 250-day requirement as set forth in the SEC designation. The medical evidence submitted in support of the claim shows that [Employee] was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis and right femur, which is a “specified” cancer, on September 27, 1988, which was more than 5 years after his initial exposure to radiation.

Accordingly, the employee is a member of the SEC and is a “covered employee with cancer” under § 7384l(9)(A) of EEOICPA. See EEOICPA Bulletin No. 08-33 (issued June 30, 2008). Further, [Claimant #1], [Claimant #2] and [Claimant #3] are the surviving children of the employee as defined by § 7384s(e)(1)(B) and are entitled to compensation in the amount of $150,000.00, to be divided equally.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Page 834

EEOICPA Fin. Dec. No. 95118-2010 (Dep’t of Labor, July 12, 2010)

NOTICE OF FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning two claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and bone cancer is approved for compensation in the amount of $150,000.00 under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s condition of metastatic liver cancer is denied under Part B. The claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer is denied under Part B. The Estate of [Employee] is also entitled to reimbursement of medical expenses that were paid by the employee for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

STATEMENT OF THE CASE

On February 1, 2005, [Employee] filed a claim for benefits (Form EE-1) under EEOICPA. He identified bone cancer, bladder cancer and kidney failure as the conditions resulting from his employment at a Department of Energy (DOE) facility. On , the district office received the death certificate of the employee which shows that he died on . The district office administratively closed the employee’s claim on .

On April 25, 2008, [Claimant #1] filed a claim for survivor benefits (Form EE-2) as the surviving common-law wife of the employee. She identified bladder cancer, lung cancer and liver cancer as the conditions resulting from the employee’s work at a DOE facility. On February 16, 2010, [Claimant #2] filed a claim for survivor benefits (Form EE-2) as a surviving child of the employee. He identified lung cancer as the employee’s condition resulting from his employment at a DOE facility.

The employee completed an employment history form (Form EE-3) on . He stated he worked as an electrician and electrical superintendent for REECo at the Nevada Test Site in the 1970’s and from 1981 until 1991.[1] DOE verified that the employee worked for REECo at the Nevada Test Site from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972 as a wireman and operations superintendent and assistant superintendent.

The employee and both claimants submitted the following medical reports: a pathology report from Dr. Kokila S. Vasanawala, dated November 7, 2002, with a diagnosis of papillary transitional cell carcinoma of the bladder; a report on whole body bone scan from Dr. Mihai Iancu, dated January 17, 2003, with a diagnosis of metastatic bone cancer; a pathology report from Dr. Leena Shroff, dated November 7, 2005, with a diagnosis of adenocarcinoma of the right upper lung lobe; a consultation report from Dr. James A. Corwin, dated November 15, 2002, with the diagnosis of “widespread metastatic disease” including the bone; and a pathology report from Dr. Terry R. Burns, dated January 16, 2007, with a diagnosis of metastatic adenocarcinoma of the liver.

The employee’s death certificate states that he died on , at the age of 74 years, and that there was no surviving spouse.

[Claimant #1] submitted evidence in support of her status as the common-law wife of the employee. She submitted a letter dated August 22, 2009, which enclosed a certified copy of a Final Decree of Divorce between [Claimant #1] and [Claimant #1’s ex-husband] which changed her name to [Claimant #1] and a Marital Settlement Agreement between [Employee] and [Employee’s ex-wife] issued by the Clark County, Nevada District Court on November 10, 1992. She also submitted a letter dated , in which she detailed her relationship with the employee beginning on , in the State of , when she and the employee exchanged vows at her sister’s home in , and continuing until the employee’s death on . She describes in the letter that she and the employee lived together in for several years after exchanging vows until they went to other states to find work. She related that they returned to , in October 2000 and lived there together until the employee’s death. She also submitted numerous documents showing she and the employee engaged in joint financial transactions, including applying for credit accounts and holding title real and personal property together. The Form EE-1 signed by the employee states she is his dependent and common-law wife. [Claimant #2] submitted a written statement on September 21, 2009, that he knew the employee and [Claimant #1] to have been together since 1983 and that he regarded them as married until she told him they were not. Numerous signed statements were submitted from third parties, including non-relatives, to the effect that the employee and [Claimant #1] were considered husband and wife. [Claimant #2] submitted his birth certificate which shows that he is a biological child of the employee born on October 25, 1966. His mother’s name is shown as [Employee’s ex-wife].

On April 6, 2010, the district office issued a decision recommending that the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and liver cancer be denied under Part B of EEOICPA. The basis for the recommendation was the district office’s conclusion that the probability of causation (PoC) that the employee’s bladder cancer and liver cancer were related to his exposure to radiation during his covered employment was less than the 50% threshold PoC required for compensation under Part B of EEOICPA. The district office also concluded that [Claimant #1] was the surviving spouse of the employee under Part B based on its determination that she was married to him as his common-law spouse under the laws of the State of Texas on the date of the employee’s death and for at least one year prior to that date. The district office also recommended that the claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer be denied under Part B. The basis for the decision was the conclusion that he did not qualify as an eligible survivor of the employee under Part B. The district office deferred making a decision on both of the claims for survivor benefits under Part E of EEOICPA. Accompanying the recommended decision was a letter explaining the claimants’ rights and responsibilities with regard to findings of fact and conclusions of law contained in the recommended decision.

On April 28, 2010, FAB received an undated letter from [Claimant #2] objecting to the decision issued by the district office on April 6, 2010. On May 7, 2010, FAB sent a letter acknowledging receipt of [Claimant #2]’s letter of objection and advising him that if he had additional evidence for FAB to consider prior to issuance of a final decision, he should submit that evidence by June 7, 2010. The claim file does not show that he submitted any additional evidence in response. His letter of objection is part of the evidence of record. His objections were as follows:

He stated he is the son of the employee and the only living survivor of the employee. He is in prison, he was diagnosed with hepatitis C in October 2005, and he cannot work in the food or culinary arts industries in which he has been trained because of his medical condition. He stated he intended to file a claim for benefits under Part E only and not under Part B. He stated his authorized representative was supposed to get medical records in support of his claim that he was incapable of self-support at the time of his father’s death, and that is the reason he asked the district office to grant a sixty-day extension of time to respond to its letter dated . He claimed [Claimant #1] forced his father to sign documents while he was sick acknowledging her as his common-law wife. He concluded that he believes he is the one entitled to receive any benefits available under EEOICPA on account of his father.

On July 9, 2010, FAB received a signed statement from [Claimant #1] that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on an independent review of the evidence of record, the undersigned hereby makes thefollowing:

FINDINGS OF FACT

1. On February 1, 2005, [Employee] filed a claim for benefits under EEOICPA for bone cancer, bladder cancer and kidney failure resulting from his employment at a DOE facility.

2. The employee worked for REECo, a DOE contractor, at the Nevada Test Site, a DOE facility, from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972. The employee worked for an aggregate of at least 250 work days at the Nevada Test Site between January 1,1963 and December 31, 1992.

3. The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on January 17, 2003, lung cancer on November 7, 2005, and adenocarcinoma of the liver on January 16, 2007. These diagnoses were at least five years after the employee’s first exposure during covered employment.

4. The employee died on February 3, 2007, at the age of 74 years.

5. [Claimant #1] and the employee exchanged vows before others and entered into a common-law marriage on July 5, 1993 in Texas which continued until the employee’s death on February 3, 2007. During that period of time they lived together in and represented to others in that they were married to each other. [Claimant #1] was married to the employee on the date of his death and for at least one year prior to the employee’s death.

6. [Claimant #2] was born on October 25, 1966. He is a biological child of the employee. He is 43 years of age. He is not the recognized natural child or adopted child of [Claimant #1].

7. [Claimant #1] stated that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

This final decision, and the district office decision issued April 6, 2010, addresses [Claimant #2]’s claim for benefits under Part B of EEOICPA only. It does not address his claim for benefits under Part E. His objections related to his incapacity for self-support relate only to his eligibility as a surviving child under Part E and are not relevant to the determination whether he is an eligible child under Part B. The district office may have been unaware he did not want to pursue a claim under Part B. Regardless, it was proper for the district office to address whether he is an eligible survivor of the employee under Part B of EEOICPA.

In order for the employee’s son to be eligible as a surviving child of the employee under Part B, he must be a minor on the date Part B benefits are paid and not the recognized natural child or adopted child of [Claimant #1]. That is because FAB has determined that [Claimant #1] qualifies under Part B as a surviving spouse of the employee based on her common-law marriage to the employee. His allegation that [Claimant #1] forced the employee to sign documents is not supported by any evidence and is contradicted by his own statement submitted to the district office on September 21, 2009. It is also contradicted by the numerous documents and written statements from other individuals submitted by [Claimant #1]. His allegation is not credible and is insufficient to change the conclusion by FAB that [Claimant #1] and the employee were in a valid common-law marriage under the laws of Texas and she is the eligible surviving spouse of the employee.

Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the Special Exposure Cohort (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee). 42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

On April 25, 2010, the Secretary of Health and Human Services designated a class of employees as an addition to the SEC under § 7384l(14)(C) of EEOICPA. This new class included all employees of DOE, its predecessor agencies, and its contractors and subcontractors who worked at the Nevada Test Site from January 1, 1963 through December 31, 1992, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of the SEC. This designation became effective on . See EEOICPA Bulletin No. 10-13 (issued ). This addition to the SEC was not in effect when the district office issued its decision recommending that the claims be denied under Part B.

The employee worked for an aggregate of at least 250 work days for a DOE contractor at the Nevada Test Site between and . The totality of evidence therefore demonstrates that the employee qualifies as a member of the SEC.

The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on , lung cancer on , and metastatic liver cancer on January 16, 2007 . Those diagnoses occurred more than five years after he began employment at a covered facility. Lung cancer and bone cancer are specified cancers when diagnosed after first exposure, as they were in his case. 20 C.F.R. § 30.5(ff)(2), (3).

Bladder cancer is also a specified cancer when diagnosed more than five years after first exposure, as it was in his case. 20 C.F.R. § 30.5(ff)(5)(iii)(K). As a member of the SEC who was diagnosed with a specified cancer, the employee is a “covered employee with cancer.” 42 U.S.C. § 7584l(9). The employee’s liver cancer is not a specified cancer because it was diagnosed as a metastatic cancer. Liver cancer is a specified cancer only when it is a primary cancer. 20 C.F.R. § 30.5(iii)(O).

A covered employee, or the survivor of that employee, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.00. The evidence of record establishes that the employee is deceased. Part B provides that where a covered employee is deceased at the time benefits are to be paid, payments are to be made to the employee’s eligible surviving spouse if that person is living. 42 U.S.C. § 7384s(e)(1)(A). The eligible spouse of an employee is the husband or wife of the employee who was married to the employee for at least one year immediately before the death of the employee. 42 U.S.C. § 7384s(e)(3)(A). The Act does not define marriage, so the Division of Energy Employees Occupational Illness Compensation (DEEOIC) looks to the law of the most applicable state to determine whether a claimant was married to the employee. Federal (EEOICPA) Procedure Manual, Chapter 2-1200.5.b(2) (August 2009). If state law recognizes the existence of a marital relationship, that relationship must be recognized by DEEOIC in its adjudication of EEOICPA survivor claims. Common-law Marriage Handbook, p. 10 (April 2010)

[Claimant #1] claimed to be the surviving spouse of the employee based on a common-law marriage entered into by her and the employee in Texas. The undersigned concludes the law of is the most

applicable law to use in determining whether [Claimant #1] was married to the employee. recognizes common-law marriages contracted within its borders when three elements are satisfied concurrently.

Those elements are: (1) the parties agreed to be married; (2) after the agreement, they lived together in as husband and wife; and (3) they held themselves out to others as husband and wife. Common-law Marriage Handbook, Appendix p. 9 (April 2010). The undersigned has considered the totality of the evidence including the 10-page letter submitted by [Claimant #1] describing her relationship with the employee, the numerous financial, legal and other documents she submitted, and the statements of numerous third parties. I find the totality of the evidence establishes that [Claimant #1] and the employee agreed to enter into a common-law marriage on July 5, 1993, that after entering into that agreement they lived together in Texas as husband and wife for two periods of time (from July 5, 1993 until approximately January 1, 1996 and from October 2000 until the employee’s death on February 3, 2007), and that during those periods of time they held themselves out to others as husband and wife. I therefore find that [Claimant #1] is the eligible surviving spouse of the employee.

Under Part B of the Act, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a child[2] of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. 42 U.S.C. § 7384s(e)(1)(F). The evidence establishes that [Claimant #2] is a biological child of the employee and not a recognized natural child or adopted child of [Claimant #1]. Accordingly, because he is not also a minor, I find that he is not an eligible surviving child of the employee and his claim for survivor benefits based on the employee’s condition of lung cancer under Part B of the Act is denied.

Therefore, [Claimant #1] is the only person to whom compensation may be paid under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s conditions of bladder cancer and lung cancer under Part B is approved for compensation in the amount of $150,000.00. As the maximum benefits provided for under Part B are being paid to her based on the employee’s conditions of bladder cancer and bone cancer and there is no possible benefit to her in adjudicating her claim for the employee’s condition of metastatic liver cancer, her claim for survivor benefits based on the employee’s condition of metastatic liver cancer under Part B is denied.

The statute provides that medical benefits should be provided to a covered employee with an occupational illness for the treatment of that covered illness. These benefits are retroactive to the employee’s application date. The evidence of record establishes that the employee is a covered employee with the occupational illnesses of bladder cancer and bone cancer under Part B. He filed a claim for benefits based on bladder cancer and bone cancer prior to his death. He is entitled to medical benefits for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending .

Accordingly, the Estate of [Employee] is awarded medical benefits for the employee’s condition of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

William B. Talty

Hearing Representative

Final Adjudication Branch

[1] The Nevada Test Site is a covered DOE facility beginning in 1951 to the present. Reynolds Electrical & Engineering Company (REECo) was a DOE contractor there from 1952 to 1995. See Department of Energy’s weblisting at:

http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm (verified by FAB on July 7, 2010).

[2] The statutory definition for the term “child” has been interpreted for the purposes of EEOICPA as meaning a biological child, adopted child or stepchild of an individual. See EEOICPA Circular No. 08-08 (issued September 23, 2008).

Page 940

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

[Claimant #1 and Claimant #2] submitted medical evidence including a pathology report showing [Employee] had a diagnosis of metastatic high grade chondrosarcoma on December 19, 2001. A representative of the Department of Energy (DOE) verified that [Employee] was employed by the U.S. Geological Survey (USGS) at the Grand Junction Field Office from August 8, 1951 to March 8, 1978, and stated that he was issued dosimetry badges associated with USGS at the Nevada Test Site on 66 separate occasions between November 5, 1958 and July 11, 1966. Additionally, other official government records including security clearances, applications for federal employment, and personnel actions were submitted, indicating that [Employee] was employed by USGS and resided in Mercury, Nevada from September 25, 1958 to June 11, 1962. Mercury, Nevada was a town that was within the perimeter of the Nevada Test Site and housed those who worked at the site.

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

An October 5, 1956 letter from the Acting Director for USGS to the Director of Finance of the AEC’s Albuquerque Operations Office, which states: In accordance with an agreement between our respective agencies, an advance of funds $56,400 is requested to finance the 1957 fiscal year program to be performed by the Geological Survey for the Division of Military Application (DMA).[1]

AEC Staff Paper 944/33. This September 1957 document shows clearly that it was the AEC’s DMA that had oversight over the USGS geological work at the NTS.

A document dated March 23, 1959, from the United States Department of the Interior Geological Survey summarizing a letter to the AEC Albuquerque Operations Office. The summary states in part:

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

A June 26, 1959 letter from the Director of USGS to [Employee], complimenting him on his efforts at the NTS and forwarding to him a letter from the AEC’s Albuquerque Operations Office in which the AEC provides general compliments to USGS for their work at NTS during 1958.

A technical report entitled, “A Summary Interpretation of Geologic, Hydrologic, and Geophysical Data for Yucca Valley, Nevada Test Site, Nye County, NV,” detailing the work and outcome of the work performed by USGS at the Nevada Test Site. The report states that the work was undertaken at the behest of the AEC and also states, “Compilation of data, preparation of illustration, and writing of the report were completed during the period of December 26, 1958 to January 10, 1959. Some of the general conclusions must be considered as tentative until more data are available.”

Correspondence from 1957 between USGS and the AEC Raw Materials Division (not the Division of Military Application). These letters show that USGS provided assistance to theAEC in prospecting for uranium on the Colorado Plateau and other locations. These documents clearly show that there was an agreement for payment, by which USGS performed work for the AEC at the Nevada Test Site.

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

Today, USGS describes itself in the following manner:

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

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

In considering the above analysis and determination, FAB concludes that [Employee] is a member of the SEC and was diagnosed with chondrosarcoma, which is a “specified” cancer (bone), and is, therefore, a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A).

[Claimant #1 and Claimant #2] are the eligible survivors of [Employee] as defined under EEOICPA, and are entitled to equal shares of the total compensation amount of $150,000.00. See 42 U.S.C. §§ 7384s(e) and 7384s(a)(1).

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

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

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

[2] Http://www.usgs.gov/aboutusgs/.

Page 944

EEOICPA Fin. Dec. No. 55286-2006 (Dep’t of Labor, August 22, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the FAB accepts the claims of [Claimant #1], [Claimant #2], and [Claimant #3] for compensation under Part B of EEOICPA in the amount of $150,000.00 ($50,000.00 payable to each) for the employee’s occupational illness of prostate cancer metastasized to the bone.

STATEMENT OF THE CASE

On September 20, 2002, [Employee’s spouse] filed a Form EE-2 with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) and a Form DOE F 350.3 with the Department of Energy (DOE), seeking benefits as the surviving spouse of [Employee]. [Employee’s spouse] identified the claimed conditions of prostate cancer and bone cancer. On May 8, 2003,

[Employee’s spouse] died and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

[Claimant #1] (on March 10, 2004), [Claimant #2] (on April 5, 2004), and [Claimant #3] (on April 5, 2004) each submitted a Form EE-2 with DEEOIC as the surviving children of [Employee]. They claimed [Employee] developed prostate cancer and bone cancer as a result of his employment at the Hanford site.

[Employee’s spouse] had submitted a Form EE-3 in which she alleged that [Employee] was employed at the Hanford site as a truck driver with E.I. DuPont Nemours & Company (Du Pont) from December 1943 to December 1944, with General Electric Company (GE) as a millwright from July 6, 1954 to January 3, 1965, and as a millwright with Battelle-Northwest (Battelle) at the Pacific Northwest National Laboratory (PNNL) from January 4, 1965 to July 8, 1983. A representative of DOE verified that [Employee] was employed at the Hanford site, a DOE facility, by DuPont, a DOE contractor, from December 14, 1943 to December, 1944, and by GE, another DOE contractor, as a millwright from July 6, 1954 to December 31, 1964, and with Battelle at PNNL, a second DOE facility, from January 4, 1965 to July 29, 1983. The Oak Ridge Institute for Science and Education (ORISE) database contained information verifying that [Employee] was employed at the Hanford site starting on July 6, 1954. DOE records establish that [Employee] had worked in Area 200 West during his employment at the Hanford site.

The medical evidence of record includes a pathology report, dated October 3, 1988, in which Dr. Thomas D. Mahony diagnosed prostate cancer. The medical evidence of record also includes a whole body bone scan conducted on September 27, 1988, which noted the metastases of the prostate cancer to the bone of the skull, ribs, thoracic vertebra, pelvis and right femur.

The evidence of record includes a copy of the employee’s death certificate, which indicates that [Employee] was married at the time of his death on October 4, 1991 to [Employee’s spouse]. You also submitted a copy of [Employee’s spouse]’s death certificate. [Employee]’s death certificate lists the cause of his death on October 4, 1991 as arrhythmia due to myocardial infarction, coronary heart disease, and cancer of the prostate metastases. In support of your claims, you each submitted a copy of your birth certificate showing that you are the biological children of [Employee] and that [Claimant #1] was born on May 26, 1957, [Claimant #2] was born on October 4, 1941, and that [Claimant #3] was born on March 3, 1950. At the time of the employee’s death on October 4, 1991, [Claimant #1] was 34 years old, [Claimant #2] was 50 years old, and [Claimant #3] was 41years old. [Claimant #1] produced sufficient evidence to show the change in her surname.

To determine the probability that [Employee]’s prostate cancer was sustained in the performance of duty, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. In a prior final decision dated May 8, 2006, the FAB denied the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] because there was only a 24.78% probability that the employee’s prostate cancer was caused by radiation exposure at the Hanford site. The FAB concluded that [Employee] did not qualify as a covered employee with cancer under Part B, that the dose reconstruction estimates and the probability of causation calculations were performed according to EEOICPA and its regulations, and that [Claimant #1], [Claimant #2], and [Claimant #3] were not entitled to survivor benefits under Part B of EEOICPA.

On March 29, 2007, NIOSH issued OCAS-PEP-012 Rev-00, entitled “Program Evaluation Plan: Evaluation of Highly Insoluble Plutonium Compounds.” It was NIOSH’s determination that the existence of the highly insoluble plutonium compound at the Hanford site should be considered Type Super S plutonium in dose reconstructions for employees at that site. The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites. The change went into effect on February 6, 2007. See EEOICPA Bulletin No. 07-19 (issued May 16, 2007).

On April 2, 2008, a Director’s Order was issued vacating the FAB’s May 8, 2006 final decision and reopening the Part B claims of [Claimant #1], [Claimant #2], and [Claimant #3] for further development. The Director’s Order instructed the Seattle district office to forward the case to NIOSH for rework of the employee’s dose reconstruction pursuant to EEOICPA Bulletin No. 07-27 (issued August 8, 2007).

On April 7, 2008, your claims were returned to NIOSH for rework of the employee’s radiation dose reconstruction; however the dose reconstruction was not completed following the addition of a particular class of Hanford employees to the Special Exposure Cohort (SEC).

On May 30, 2008, the Secretary of Health and Human Services (HHS) designated a class of employees at the Hanford site for inclusion in the SEC. This designation went into effect on June 29, 2008. The class consists of all employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who worked from: (1) September 1, 1946 though December 31, 1961 in the 300 area; or (2) January 1, 1949 through December 31, 1968 in the 200 areas (East and West) at the Hanford Nuclear Reservation in Richland, Washington for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

On July 18, 2008, the Seattle district office recommended acceptance of your claims for survivor benefits under Part B, concluding that the employee is a member of the above-noted addition to the SEC, since he was employed at Hanford for an aggregate of 250 days or more during the SEC period and was diagnosed with prostate cancer that metastasized to the bone. Secondary (metastatic) bone cancer is a “specified” cancer under EEOICPA. The district office concluded that [Claimant #1], [Claimant #2], and [Claimant #3] are the surviving children of the employee and entitled to survivor benefits under Part B of the Act, in the amount of $150,000.00, to be divided equally among them in the amount of $50,000.00 each.

On July 21, 2008, the FAB received written notification from [Claimant #2] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third-party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #2] stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, he averred that other than [Claimant #1] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee]. On July 21, 2008, the FAB also received [Claimant #2]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

On July 22, 2008, the FAB received written notification from [Claimant #1] indicating that neither she, nor anyone in her family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #1] further stated that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, she averred that other than [Claimant #2] and [Claimant #3], there were no other individuals who might qualify as a survivor of [Employee]. On July 22, 2008, the FAB also received [Claimant #1]’s written notification indicating that she waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

On July 24, 2008, the FAB received written notification from [Claimant #3] indicating that neither he, nor anyone in his family, had ever filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim or state workers’ compensation claim in relation to [Employee]’s cancer. [Claimant #3] further stated that he has never pled guilty to or been convicted of fraud in connection with an application for or receipt of federal or state workers’ compensation. Further, he indicated that other than [Claimant #2] and [Claimant #1], there were no other individuals who might qualify as a survivor of [Employee]. On July 24, 2008, the FAB also received [Claimant #3]’s written notification indicating that he waived all rights to file objections to the findings of fact and conclusions of law in the July 18, 2008 recommended decision.

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

FINDINGS OF FACT

1. On September 20, 2002, [Employee’s spouse] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee]. [Employee’s spouse] died on May 8, 2003, and her claim was administratively closed under Part B on March 31, 2004, and under Part E on October 6, 2005.

2. [Claimant #1], [Claimant #2] and [Claimant #3] each submitted claims for survivor benefits under EEOICPA, as the surviving children of [Employee].

3. [Claimant #1], [Claimant #2] and [Claimant #3] are the biological children of [Employee]. [Claimant #1], [Claimant #2] and [Claimant #3] are the only children and eligible survivors of the employee.

4. The employee worked at the Hanford site, with DuPont from December 14, 1943 to December 31, 1944, with GE from July 6, 1954 to December 31, 1964, and at PNNL with Battelle from January

4, 1965 to July 29, 1983. The employee was monitored for radiation exposures and worked in Area 200 West during his employment at the Hanford site. This employment met or exceeded 250 aggregate work days, and qualifies [Employee] as a member of the SEC.

5. The employee was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis, and right femur, which is a “specified” cancer, on September 27, 1988, after starting work at a DOE facility.

6. [Claimant #1], [Claimant #2] and [Claimant #3] each stated that they, or anyone in their family, had never filed for or received any settlement or award from a lawsuit, tort suit, or third-party claim in relation to the illnesses claimed. [Claimant #1], [Claimant #2] and [Claimant #3] have never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, nor have they or anyone in their family ever filed for or received any payments, awards, or benefits for a state workers’ compensation claim in relation to [Employee]’s cancer.

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

CONCLUSIONS OF LAW

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

[Claimant #1], [Claimant #2] and [Claimant #3] waived their right to file objections to the findings of fact and conclusions of law contained in the July 18, 2008 recommended decision issued on their claims for benefits under EEOICPA.

In order to be afforded coverage under Part B of EEOICPA, you must establish that [Employee] has been diagnosed with an occupational illness incurred as a result of his exposure to silica, beryllium, and/or radiation. Further, the illness must have been incurred while he was in the performance of duty for DOE or certain of its contractors. The evidence of record indicates that the employee worked in covered employment at Hanford from December 14, 1943 to December 31, 1944, and from July 6, 1954 to December 31, 1964, and at PNNL from January 4, 1965 to July 29, 1983 in Area 200 West.

The period of employment from July 6, 1954 to December 31, 1961 exceeds the 250-day requirement as set forth in the SEC designation. The medical evidence submitted in support of the claim shows that [Employee] was diagnosed with metastatic bone cancer of the skull, ribs, thoracic vertebra, pelvis and right femur, which is a “specified” cancer, on September 27, 1988, which was more than 5 years after his initial exposure to radiation.

Accordingly, the employee is a member of the SEC and is a “covered employee with cancer” under § 7384l(9)(A) of EEOICPA. See EEOICPA Bulletin No. 08-33 (issued June 30, 2008). Further, [Claimant #1], [Claimant #2] and [Claimant #3] are the surviving children of the employee as defined by § 7384s(e)(1)(B) and are entitled to compensation in the amount of $150,000.00, to be divided equally.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Page 97

EEOICPA Fin. Dec. No. 15100-2006 (Dep’t of Labor, June 22, 2006)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On November 15, 2001, you filed a Form EE-2, Claim for Survivor Benefits, for cancer of the breast with metastases to the bone of your late mother, [Employee], hereinafter referred to as “the employee.” A pathology report establishes that the employee was diagnosed with infiltrting adenocarcinoma of the breast on June 8, 1953. Medical reports indicate that the employee was diagnosed with secondary bone cancer as early as November 5, 1957.

In support of your claim for survivor benefits you submitted a copy of your birth certificate showing the employee as your mother and indicating that you were born on [Claimant’s date of birth]. You also submitted a copy of the employee’s death certificate showing that she was born on [Employee’s date of birth], that she died on May 10, 1959, and that she was married to [Employee’s spouse] at the time of her death. The death certificate showed the employee died as a result of her carcinoma of the breast with metastasis. Also submitted was a copy of [Employee’s spouse’s] death certificate. The above evidence indicates that you were eleven (11) years old at the time of the employee’s death.

The district office verified that the employee worked for Tennessee Eastman Corporation at the Y-12 plant in Oak Ridge, Tennessee, from October 28, 1944 to October 30, 1945. The Oak Ridge Institute for Science and Education (ORISE) database and plant records confirmed that she worked at theY-12 plant as a laboratory assistant and analyst.

Effective September 24, 2005, the Department of Health and Human Services designated certain employees of the Y-12 plant who were employed for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days of employment occurring within the parameters established for classes of employees included in the SEC, as members of the Special Exposure Cohort (SEC) based on work performed in uranium enrichment, or other radiological activities at the Y-12 plant, for the period from March 1943 through December 1947.

On February 1, 2006, the Jacksonville district office issued a recommended decision, concluding that you are entitled to compensation of $325,000 under Parts B and E of the Act.

The Final Adjudication Branch (FAB) received your written confirmation dated February 3, 2006, that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition. You also indicated that at the time of the employee’s death you were the employee’s only child. On April 3, 2006, the FAB received your written confirmation that you waived your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

FINDINGS OF FACT

1. On November 15, 2001, you filed a claim for survivor benefits under the Act.

2. You were the employee’s child and under the age of 18 years old at the time of her death. Her spouse at the time of her death is no longer living.

3. The employee was diagnosed with breast cancer on June 8, 1953, which metastasized to the bone. The bone metastasis was diagnosed as early as November 5, 1957.

4. The employee was employed by Tennessee Eastman Corporation at the Y-12 plant as a laboratory assistant and analyst from October 28, 1944 to October 30, 1945.

5. The employee’s breast cancer with metastasis to the bone caused her death.

CONCLUSIONS OF LAW

On June 5, 2006, the DEEOIC issued EEOICPA Bulletin No. 06-11, which provided supplemental guidance for processing claims for the SEC class for the Y-12 plant. That bulletin establishes that the primary function of the Y-12 plant during 1943 to 1947 was to perform uranium enrichment using a calutron. Attachment 4 of the bulletin lists occupational titles for the Y-12 plant employees involved inOther Radiological Activities.”[1] The employee’s job titles of laboratory assistant and analyst are not on the list as a likely employee title; however, the job title of laboratory technician was listed. An employee change form dated October 30, 1945, shows that her department was “Beta Production Analysis.” The beta building was 9204, and calutron production was performed there. While there is no evidence that the employee worked in that building, her work most likely involved research/analysis for the beta building, which lends support to a finding that she was involved in “other radiological activities.” Therefore, it is reasonable to conclude that the job titles of laboratory assistant and analyst should be considered as job titles involved in “other radiological activities.” The evidence shows that the employee worked with Tennessee Eastman Corporation at the Y-12 plant in other radiological activities from October 28, 1944 to October 30, 1945. This period of employment was during the time frame the Y-12 plant was designated as a SEC facility.[2]

The employee worked in uranium enrichment activities or other radiological activities at Y-12 for more than 250 work days. Therefore, the employee qualifies as a member of the SEC. As a member of the SEC who was diagnosed with breast cancer and secondary bone cancer, which are “specified cancers” pursuant to 42 U.S.C. § 7384l(17)(A) and (B) and 20 C.F.R. § 30.5(ff)(3) and (5)(iii)(B) and constituteoccupational” illnesses under 42 U.S.C. § 7384l(15), the employee or the employee’s survivor(s) qualify for benefits as a “covered employee with cancer.” 42 U.S.C. § 7384l(9). You meet the definition of a survivor under Part B of the Act. 42 U.S.C. § 7384s(e)(3)(B). Therefore, you are entitled to $150,000 for the employee’s breast cancer and secondary bone cancer. 42 U.S.C. §§ 7384s(a).

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

42 U.S.C. §§ 7385s(1), 7385s(2). You meet the definition of survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(2). Therefore, you are also entitled to benefits in the amount of $125,000 for the employee’s death due to breast cancer. 42 U.S.C. § 7385s-3.

The employee experienced presumed wage-loss for each calendar year subsequent to the calendar year of her death through and including the calendar year in which she would have reached normal retirement age. 20 C.F.R. § 30.815 (2005). This equals 21 years of wage-loss. Therefore, you are entitled to wage-loss compensation in the amount of $50,000. 42 U.S.C. § 7385s-3(a)(3).

Jacksonville, FL

Mark Stewart

Hearing Representative

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

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

Page 1132

EEOICPA Fin. Dec. No. 95118-2010 (Dep’t of Labor, July 12, 2010)

NOTICE OF FINAL DECISIONAFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning two claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and bone cancer is approved for compensation in the amount of $150,000.00 under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s condition of metastatic liver cancer is denied under Part B. The claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer is denied under Part B. The Estate of [Employee] is also entitled to reimbursement of medical expenses that were paid by the employee for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

STATEMENT OF THE CASE

On February 1, 2005, [Employee] filed a claim for benefits (Form EE-1) under EEOICPA. He identified bone cancer, bladder cancer and kidney failure as the conditions resulting from his employment at a Department of Energy (DOE) facility. On , the district office received the death certificate of the employee which shows that he died on . The district office administratively closed the employee’s claim on .

On April 25, 2008, [Claimant #1] filed a claim for survivor benefits (Form EE-2) as the surviving common-law wife of the employee. She identified bladder cancer, lung cancer and liver cancer as the conditions resulting from the employee’s work at a DOE facility. On February 16, 2010, [Claimant #2] filed a claim for survivor benefits (Form EE-2) as a surviving child of the employee. He identified lung cancer as the employee’s condition resulting from his employment at a DOE facility.

The employee completed an employment history form (Form EE-3) on . He stated he worked as an electrician and electrical superintendent for REECo at the Nevada Test Site in the 1970’s and from 1981 until 1991.[1] DOE verified that the employee worked for REECo at the Nevada Test Site from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972 as a wireman and operations superintendent and assistant superintendent.

The employee and both claimants submitted the following medical reports: a pathology report from Dr. Kokila S. Vasanawala, dated November 7, 2002, with a diagnosis of papillary transitional cell carcinoma of the bladder; a report on whole body bone scan from Dr. Mihai Iancu, dated January 17, 2003, with a diagnosis of metastatic bone cancer; a pathology report from Dr. Leena Shroff, dated November 7, 2005, with a diagnosis of adenocarcinoma of the right upper lung lobe; a consultation report from Dr. James A. Corwin, dated November 15, 2002, with the diagnosis of “widespread metastatic disease” including the bone; and a pathology report from Dr. Terry R. Burns, dated January 16, 2007, with a diagnosis of metastatic adenocarcinoma of the liver.

The employee’s death certificate states that he died on , at the age of 74 years, and that there was no surviving spouse.

[Claimant #1] submitted evidence in support of her status as the common-law wife of the employee. She submitted a letter dated August 22, 2009, which enclosed a certified copy of a Final Decree of Divorce between [Claimant #1] and [Claimant #1’s ex-husband] which changed her name to [Claimant #1] and a Marital Settlement Agreement between [Employee] and [Employee’s ex-wife] issued by the Clark County, Nevada District Court on November 10, 1992. She also submitted a letter dated , in which she detailed her relationship with the employee beginning on , in the State of , when she and the employee exchanged vows at her sister’s home in , and continuing until the employee’s death on . She describes in the letter that she and the employee lived together in for several years after exchanging vows until they went to other states to find work. She related that they returned to , in October 2000 and lived there together until the employee’s death. She also submitted numerous documents showing she and the employee engaged in joint financial transactions, including applying for credit accounts and holding title real and personal property together. The Form EE-1 signed by the employee states she is his dependent and common-law wife. [Claimant #2] submitted a written statement on September 21, 2009, that he knew the employee and [Claimant #1] to have been together since 1983 and that he regarded them as married until she told him they were not. Numerous signed statements were submitted from third parties, including non-relatives, to the effect that the employee and [Claimant #1] were considered husband and wife. [Claimant #2] submitted his birth certificate which shows that he is a biological child of the employee born on October 25, 1966. His mother’s name is shown as [Employee’s ex-wife].

On April 6, 2010, the district office issued a decision recommending that the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and liver cancer be denied under Part B of EEOICPA. The basis for the recommendation was the district office’s conclusion that the probability of causation (PoC) that the employee’s bladder cancer and liver cancer were related to his exposure to radiation during his covered employment was less than the 50% threshold PoC required for compensation under Part B of EEOICPA. The district office also concluded that [Claimant #1] was the surviving spouse of the employee under Part B based on its determination that she was married to him as his common-law spouse under the laws of the State of Texas on the date of the employee’s death and for at least one year prior to that date. The district office also recommended that the claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer be denied under Part B. The basis for the decision was the conclusion that he did not qualify as an eligible survivor of the employee under Part B. The district office deferred making a decision on both of the claims for survivor benefits under Part E of EEOICPA. Accompanying the recommended decision was a letter explaining the claimants’ rights and responsibilities with regard to findings of fact and conclusions of law contained in the recommended decision.

On April 28, 2010, FAB received an undated letter from [Claimant #2] objecting to the decision issued by the district office on April 6, 2010. On May 7, 2010, FAB sent a letter acknowledging receipt of [Claimant #2]’s letter of objection and advising him that if he had additional evidence for FAB to consider prior to issuance of a final decision, he should submit that evidence by June 7, 2010. The claim file does not show that he submitted any additional evidence in response. His letter of objection is part of the evidence of record. His objections were as follows:

He stated he is the son of the employee and the only living survivor of the employee. He is in prison, he was diagnosed with hepatitis C in October 2005, and he cannot work in the food or culinary arts industries in which he has been trained because of his medical condition. He stated he intended to file a claim for benefits under Part E only and not under Part B. He stated his authorized representative was supposed to get medical records in support of his claim that he was incapable of self-support at the time of his father’s death, and that is the reason he asked the district office to grant a sixty-day extension of time to respond to its letter dated . He claimed [Claimant #1] forced his father to sign documents while he was sick acknowledging her as his common-law wife. He concluded that he believes he is the one entitled to receive any benefits available under EEOICPA on account of his father.

On July 9, 2010, FAB received a signed statement from [Claimant #1] that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

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

FINDINGS OF FACT

1. On February 1, 2005, [Employee] filed a claim for benefits under EEOICPA for bone cancer, bladder cancer and kidney failure resulting from his employment at a DOE facility.

2. The employee worked for REECo, a DOE contractor, at the Nevada Test Site, a DOE facility, from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972. The employee worked for an aggregate of at least 250 work days at the Nevada Test Site between January 1,1963 and December 31, 1992.

3. The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on January 17, 2003, lung cancer on November 7, 2005, and adenocarcinoma of the liver on January 16, 2007. These diagnoses were at least five years after the employee’s first exposure during covered employment.

4. The employee died on February 3, 2007, at the age of 74 years.

5. [Claimant #1] and the employee exchanged vows before others and entered into a common-law marriage on July 5, 1993 in Texas which continued until the employee’s death on February 3, 2007. During that period of time they lived together in and represented to others in that they were married to each other. [Claimant #1] was married to the employee on the date of his death and for at least one year prior to the employee’s death.

6. [Claimant #2] was born on October 25, 1966. He is a biological child of the employee. He is 43 years of age. He is not the recognized natural child or adopted child of [Claimant #1].

7. [Claimant #1] stated that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

This final decision, and the district office decision issued April 6, 2010, addresses [Claimant #2]’s claim for benefits under Part B of EEOICPA only. It does not address his claim for benefits under Part E. His objections related to his incapacity for self-support relate only to his eligibility as a surviving child under Part E and are not relevant to the determination whether he is an eligible child under Part B. The district office may have been unaware he did not want to pursue a claim under Part B.

Regardless, it was proper for the district office to address whether he is an eligible survivor of the employee under Part B of EEOICPA.

In order for the employee’s son to be eligible as a surviving child of the employee under Part B, he must be a minor on the date Part B benefits are paid and not the recognized natural child or adopted child of [Claimant #1]. That is because FAB has determined that [Claimant #1] qualifies under Part B as a surviving spouse of the employee based on her common-law marriage to the employee. His allegation that [Claimant #1] forced the employee to sign documents is not supported by any evidence and is contradicted by his own statement submitted to the district office on September 21, 2009. It is also contradicted by the numerous documents and written statements from other individuals submitted by [Claimant #1]. His allegation is not credible and is insufficient to change the conclusion by FAB that [Claimant #1] and the employee were in a valid common-law marriage under the laws of Texas and she is the eligible surviving spouse of the employee.

Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the Special Exposure Cohort (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee). 42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

On April 25, 2010, the Secretary of Health and Human Services designated a class of employees as an addition to the SEC under § 7384l(14)(C) of EEOICPA. This new class included all employees of DOE, its predecessor agencies, and its contractors and subcontractors who worked at the Nevada Test Site from January 1, 1963 through December 31, 1992, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of the SEC. This designation became effective on . See EEOICPA Bulletin No. 10-13 (issued ). This addition to the SEC was not in effect when the district office issued its decision recommending that the claims be denied under Part B.

The employee worked for an aggregate of at least 250 work days for a DOE contractor at the Nevada Test Site between and . The totality of evidence therefore demonstrates that the employee qualifies as a member of the SEC.

The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on , lung cancer on , and metastatic liver cancer on January 16, 2007 . Those diagnoses occurred more than five years after he began employment at a covered facility. Lung cancer and bone cancer are specified cancers when diagnosed after first exposure, as they were in his case. 20 C.F.R. § 30.5(ff)(2), (3).

Bladder cancer is also a specified cancer when diagnosed more than five years after first exposure, as it was in his case. 20 C.F.R. § 30.5(ff)(5)(iii)(K). As a member of the SEC who was diagnosed with a specified cancer, the employee is a “covered employee with cancer.” 42 U.S.C. § 7584l(9). The employee’s liver cancer is not a specified cancer because it was diagnosed as a metastatic cancer. Liver cancer is a specified cancer only when it is a primary cancer. 20 C.F.R. § 30.5(iii)(O).

A covered employee, or the survivor of that employee, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.00. The evidence of record establishes that the employee is deceased. Part B provides that where a covered employee is deceased at the time benefits are to be paid, payments are to be made to the employee’s eligible surviving spouse if that person is living. 42 U.S.C. § 7384s(e)(1)(A). The eligible spouse of an employee is the husband or wife of the employee who was married to the employee for at least one year immediately before the death of the employee. 42 U.S.C. § 7384s(e)(3)(A). The Act does not define marriage, so the Division of Energy Employees Occupational Illness Compensation (DEEOIC) looks to the law of the most applicable state to determine whether a claimant was married to the employee. Federal (EEOICPA) Procedure Manual, Chapter 2-1200.5.b(2) (August 2009). If state law recognizes the existence of a marital relationship, that relationship must be recognized by DEEOIC in its adjudication of EEOICPA survivor claims. Common-law Marriage Handbook, p. 10 (April 2010).

[Claimant #1] claimed to be the surviving spouse of the employee based on a common-law marriage entered into by her and the employee in Texas. The undersigned concludes the law of is the most applicable law to use in determining whether [Claimant #1] was married to the employee. recognizes common-law marriages contracted within its borders when three elements are satisfied concurrently.

Those elements are: (1) the parties agreed to be married; (2) after the agreement, they lived together in as husband and wife; and (3) they held themselves out to others as husband and wife. Common-law Marriage Handbook, Appendix p. 9 (April 2010). The undersigned has considered the totality of the evidence including the 10-page letter submitted by [Claimant #1] describing her relationship with the employee, the numerous financial, legal and other documents she submitted, and the statements of numerous third parties. I find the totality of the evidence establishes that [Claimant #1] and the employee agreed to enter into a common-law marriage on July 5, 1993, that after entering into that agreement they lived together in Texas as husband and wife for two periods of time (from July 5, 1993 until approximately January 1, 1996 and from October 2000 until the employee’s death on February 3, 2007), and that during those periods of time they held themselves out to others as husband and wife. I therefore find that [Claimant #1] is the eligible surviving spouse of the employee.

Under Part B of the Act, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a child[2] of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. 42 U.S.C. § 7384s(e)(1)(F). The evidence establishes that [Claimant #2] is a biological child of the employee and not a recognized natural child or adopted child of [Claimant #1]. Accordingly, because he is not also a minor, I find that he is not an eligible surviving child of the employee and his claim for survivor benefits based on the employee’s condition of lung cancer under Part B of the Act is denied.

Therefore, [Claimant #1] is the only person to whom compensation may be paid under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s conditions of bladder cancer and lung cancer under Part B is approved for compensation in the amount of $150,000.00. As the maximum benefits provided for under Part B are being paid to her based on the employee’s conditions of bladder cancer and bone cancer and there is no possible benefit to her in adjudicating her claim for the employee’s condition of metastatic liver cancer, her claim for survivor benefits based on the employee’s condition of metastatic liver cancer under Part B is denied.

The statute provides that medical benefits should be provided to a covered employee with an occupational illness for the treatment of that covered illness. These benefits are retroactive to the employee’s application date. The evidence of record establishes that the employee is a covered employee with the occupational illnesses of bladder cancer and bone cancer under Part B. He filed a claim for benefits based on bladder cancer and bone cancer prior to his death. He is entitled to medical benefits for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending .

Accordingly, the Estate of [Employee] is awarded medical benefits for the employee’s condition of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007.

A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

William B. Talty

Hearing Representative

Final Adjudication Branch

[1] The Nevada Test Site is a covered DOE facility beginning in 1951 to the present. Reynolds Electrical & Engineering Company (REECo) was a DOE contractor there from 1952 to 1995. See Department of Energy’s weblisting at: http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm (verified by FAB on July 7, 2010).

[2] The statutory definition for the term “child” has been interpreted for the purposes of EEOICPA as meaning a biological child, adopted child or stepchild of an individual. See EEOICPA Circular No. 08-08 (issued September 23, 2008).

Page 1221

EEOICPA Fin. Dec. No. 95118-2010 (Dep’t of Labor, July 12, 2010)

NOTICE OF FINAL DECISIONAFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning two claims for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and bone cancer is approved for compensation in the amount of $150,000.00 under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s condition of metastatic liver cancer is denied under Part B. The claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer is denied under Part B. The Estate of [Employee] is also entitled to reimbursement of medical expenses that were paid by the employee for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

STATEMENT OF THE CASE

On February 1, 2005, [Employee] filed a claim for benefits (Form EE-1) under EEOICPA. He identified bone cancer, bladder cancer and kidney failure as the conditions resulting from his employment at a Department of Energy (DOE) facility. On , the district office received the death certificate of the employee which shows that he died on . The district office administratively closed the employee’s claim on .

On April 25, 2008, [Claimant #1] filed a claim for survivor benefits (Form EE-2) as the surviving common-law wife of the employee. She identified bladder cancer, lung cancer and liver cancer as the conditions resulting from the employee’s work at a DOE facility. On February 16, 2010, [Claimant #2] filed a claim for survivor benefits (Form EE-2) as a surviving child of the employee. He identified lung cancer as the employee’s condition resulting from his employment at a DOE facility.

The employee completed an employment history form (Form EE-3) on . He stated he worked as an electrician and electrical superintendent for REECo at the Nevada Test Site in the 1970’s and from 1981 until 1991.[1] DOE verified that the employee worked for REECo at the Nevada Test Site from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972 as a wireman and operations superintendent and assistant superintendent.

The employee and both claimants submitted the following medical reports: a pathology report from Dr. Kokila S. Vasanawala, dated November 7, 2002, with a diagnosis of papillary transitional cell carcinoma of the bladder; a report on whole body bone scan from Dr. Mihai Iancu, dated January 17, 2003, with a diagnosis of metastatic bone cancer; a pathology report from Dr. Leena Shroff, dated November 7, 2005, with a diagnosis of adenocarcinoma of the right upper lung lobe; a consultation report from Dr. James A. Corwin, dated November 15, 2002, with the diagnosis of “widespread metastatic disease” including the bone; and a pathology report from Dr. Terry R. Burns, dated January 16, 2007, with a diagnosis of metastatic adenocarcinoma of the liver.

The employee’s death certificate states that he died on , at the age of 74 years, and that there was no surviving spouse. [Claimant #1] submitted evidence in support of her status as the common-law wife of the employee. She submitted a letter dated August 22, 2009, which enclosed a certified copy of a Final Decree of Divorce between [Claimant #1] and [Claimant #1’s ex-husband] which changed her name to [Claimant #1] and a Marital Settlement Agreement between [Employee] and [Employee’s ex-wife] issued by the Clark County, Nevada District Court on November 10, 1992. She also submitted a letter dated , in which she detailed her relationship with the employee beginning on , in the State of , when she and the employee exchanged vows at her sister’s home in , and continuing until the employee’s death on . She describes in the letter that she and the employee lived together in for several years after exchanging vows until they went to other states to find work. She related that they returned to , in October 2000 and lived there together until the employee’s death. She also submitted numerous documents showing she and the employee engaged in joint financial transactions, including applying for credit accounts and holding title real and personal property together. The Form EE-1 signed by the employee states she is his dependent and common-law wife. [Claimant #2] submitted a written statement on September 21, 2009, that he knew the employee and [Claimant #1] to have been together since 1983 and that he regarded them as married until she told him they were not. Numerous signed statements were submitted from third parties, including non-relatives, to the effect that the employee and [Claimant #1] were considered husband and wife. [Claimant #2] submitted his birth certificate which shows that he is a biological child of the employee born on October 25, 1966. His mother’s name is shown as [Employee’s ex-wife]

On April 6, 2010, the district office issued a decision recommending that the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and liver cancer be denied under Part B of EEOICPA. The basis for the recommendation was the district office’s conclusion that the probability of causation (PoC) that the employee’s bladder cancer and liver cancer were related to his exposure to radiation during his covered employment was less than the 50% threshold PoC required for compensation under Part B of EEOICPA. The district office also concluded that [Claimant #1] was the surviving spouse of the employee under Part B based on its determination that she was married to him as his common-law spouse under the laws of the State of Texas on the date of the employee’s death and for at least one year prior to that date. The district office also recommended that the claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer be denied under Part B. The basis for the decision was the conclusion that he did not qualify as an eligible survivor of the employee under Part B. The district office deferred making a decision on both of the claims for survivor benefits under Part E of EEOICPA. Accompanying the recommended decision was a letter explaining the claimants’ rights and responsibilities with regard to findings of fact and conclusions of law contained in the recommended decision.

On April 28, 2010, FAB received an undated letter from [Claimant #2] objecting to the decision issued by the district office on April 6, 2010. On May 7, 2010, FAB sent a letter acknowledging receipt of [Claimant #2]’s letter of objection and advising him that if he had additional evidence for FAB to consider prior to issuance of a final decision, he should submit that evidence by June 7, 2010. The claim file does not show that he submitted any additional evidence in response. His letter of objection is part of the evidence of record. His objections were as follows:

He stated he is the son of the employee and the only living survivor of the employee. He is in prison, he was diagnosed with hepatitis C in October 2005, and he cannot work in the food or culinary arts industries in which he has been trained because of his medical condition. He stated he intended to file a claim for benefits under Part E only and not under Part B. He stated his authorized representative was supposed to get medical records in support of his claim that he was incapable of self-support at the time of his father’s death, and that is the reason he asked the district office to grant a sixty-day extension of time to respond to its letter dated . He claimed [Claimant #1] forced his father to sign documents while he was sick acknowledging her as his common-law wife. He concluded that he believes he is the one entitled to receive any benefits available under EEOICPA on account of his father.

On July 9, 2010, FAB received a signed statement from [Claimant #1] that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

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

FINDINGS OF FACT

1. On February 1, 2005, [Employee] filed a claim for benefits under EEOICPA for bone cancer, bladder cancer and kidney failure resulting from his employment at a DOE facility.

2. The employee worked for REECo, a DOE contractor, at the Nevada Test Site, a DOE facility, from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972. The employee worked for an aggregate of at least 250 work days at the Nevada Test Site between January 1,1963 and December 31, 1992.

3. The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on January 17, 2003, lung cancer on November 7, 2005, and adenocarcinoma of the liver on January 16, 2007. These diagnoses were at least five years after the employee’s first exposure during covered employment.

4. The employee died on February 3, 2007, at the age of 74 years.

5. [Claimant #1] and the employee exchanged vows before others and entered into a common-law marriage on July 5, 1993 in Texas which continued until the employee’s death on February 3, 2007. During that period of time they lived together in and represented to others in that they were married to each other. [Claimant #1] was married to the employee on the date of his death and for at least one year prior to the employee’s death.

6. [Claimant #2] was born on October 25, 1966. He is a biological child of the employee. He is 43 years of age. He is not the recognized natural child or adopted child of [Claimant #1].

7. [Claimant #1] stated that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

This final decision, and the district office decision issued April 6, 2010, addresses [Claimant #2]’s claim for benefits under Part B of EEOICPA only. It does not address his claim for benefits under Part E. His objections related to his incapacity for self-support relate only to his eligibility as a surviving child under Part E and are not relevant to the determination whether he is an eligible child under Part B. The district office may have been unaware he did not want to pursue a claim under Part B.

Regardless, it was proper for the district office to address whether he is an eligible survivor of the employee under Part B of EEOICPA.

In order for the employee’s son to be eligible as a surviving child of the employee under Part B, he must be a minor on the date Part B benefits are paid and not the recognized natural child or adopted child of [Claimant #1]. That is because FAB has determined that [Claimant #1] qualifies under Part B as a surviving spouse of the employee based on her common-law marriage to the employee. His allegation that [Claimant #1] forced the employee to sign documents is not supported by any evidence and is contradicted by his own statement submitted to the district office on September 21, 2009. It is also contradicted by the numerous documents and written statements from other individuals submitted by [Claimant #1]. His allegation is not credible and is insufficient to change the conclusion by FAB that [Claimant #1] and the employee were in a valid common-law marriage under the laws of Texas and she is the eligible surviving spouse of the employee.

Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the Special Exposure Cohort (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee). 42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

On April 25, 2010, the Secretary of Health and Human Services designated a class of employees as an addition to the SEC under § 7384l(14)(C) of EEOICPA. This new class included all employees of DOE, its predecessor agencies, and its contractors and subcontractors who worked at the Nevada Test Site from January 1, 1963 through December 31, 1992, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of the SEC. This designation became effective on . See EEOICPA Bulletin No. 10-13 (issued ). This addition to the SEC was not in effect when the district office issued its decision recommending that the claims be denied under Part B.

The employee worked for an aggregate of at least 250 work days for a DOE contractor at the Nevada Test Site between and . The totality of evidence therefore demonstrates that the employee qualifies as a member of the SEC.

The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on , lung cancer on , and metastatic liver cancer on January 16, 2007 . Those diagnoses occurred more than five years after he began employment at a covered facility. Lung cancer and bone cancer are specified cancers when diagnosed after first exposure, as they were in his case. 20 C.F.R. § 30.5(ff)(2), (3).

Bladder cancer is also a specified cancer when diagnosed more than five years after first exposure, as it was in his case. 20 C.F.R. § 30.5(ff)(5)(iii)(K). As a member of the SEC who was diagnosed with a specified cancer, the employee is a “covered employee with cancer.” 42 U.S.C. § 7584l(9). The employee’s liver cancer is not a specified cancer because it was diagnosed as a metastatic cancer. Liver cancer is a specified cancer only when it is a primary cancer. 20 C.F.R. § 30.5(iii)(O).

A covered employee, or the survivor of that employee, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.00. The evidence of record establishes that the employee is deceased. Part B provides that where a covered employee is deceased at the time benefits are to be paid, payments are to be made to the employee’s eligible surviving spouse if that person is living. 42 U.S.C. § 7384s(e)(1)(A). The eligible spouse of an employee is the husband or wife of the employee who was married to the employee for at least one year immediately before the death of the employee. 42 U.S.C. § 7384s(e)(3)(A). The Act does not define marriage, so the Division of Energy Employees Occupational Illness Compensation (DEEOIC) looks to the law of the most applicable state to determine whether a claimant was married to the employee. Federal (EEOICPA) Procedure Manual, Chapter 2-1200.5.b(2) (August 2009). If state law recognizes the existence of a marital relationship, that relationship must be recognized by DEEOIC in its adjudication of EEOICPA survivor claims. Common-law Marriage Handbook, p. 10 (April 2010).

[Claimant #1] claimed to be the surviving spouse of the employee based on a common-law marriage entered into by her and the employee in Texas. The undersigned concludes the law of is the most applicable law to use in determining whether [Claimant #1] was married to the employee. recognizes common-law marriages contracted within its borders when three elements are satisfied concurrently.

Those elements are: (1) the parties agreed to be married; (2) after the agreement, they lived together in as husband and wife; and (3) they held themselves out to others as husband and wife. Common-law Marriage Handbook, Appendix p. 9 (April 2010). The undersigned has considered the totality of the evidence including the 10-page letter submitted by [Claimant #1] describing her relationship with the employee, the numerous financial, legal and other documents she submitted, and the statements of numerous third parties. I find the totality of the evidence establishes that [Claimant #1] and the employee agreed to enter into a common-law marriage on July 5, 1993, that after entering into that agreement they lived together in Texas as husband and wife for two periods of time (from July 5, 1993 until approximately January 1, 1996 and from October 2000 until the employee’s death on February 3, 2007), and that during those periods of time they held themselves out to others as husband and wife. I therefore find that [Claimant #1] is the eligible surviving spouse of the employee.

Under Part B of the Act, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a child[2] of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. 42 U.S.C. § 7384s(e)(1)(F). The evidence establishes that [Claimant #2] is a biological child of the employee and not a recognized natural child or adopted child of [Claimant #1]. Accordingly, because he is not also a minor, I find that he is not an eligible surviving child of the employee and his claim for survivor benefits based on the employee’s condition of lung cancer under Part B of the Act is denied.

Therefore, [Claimant #1] is the only person to whom compensation may be paid under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s conditions of bladder cancer and lung cancer under Part B is approved for compensation in the amount of $150,000.00. As the maximum benefits provided for under Part B are being paid to her based on the employee’s conditions of bladder cancer and bone cancer and there is no possible benefit to her in adjudicating her claim for the employee’s condition of metastatic liver cancer, her claim for survivor benefits based on the employee’s condition of metastatic liver cancer under Part B is denied.

The statute provides that medical benefits should be provided to a covered employee with an occupational illness for the treatment of that covered illness. These benefits are retroactive to the employee’s application date. The evidence of record establishes that the employee is a covered employee with the occupational illnesses of bladder cancer and bone cancer under Part B. He filed a claim for benefits based on bladder cancer and bone cancer prior to his death. He is entitled to medical benefits for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending .

Accordingly, the Estate of [Employee] is awarded medical benefits for the employee’s condition of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007.

A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the district office.

William B. Talty

Hearing Representative

Final Adjudication Branch

[1] The Nevada Test Site is a covered DOE facility beginning in 1951 to the present. Reynolds Electrical & Engineering Company (REECo) was a DOE contractor there from 1952 to 1995. See Department of Energy’s weblisting at: http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm (verified by FAB on July 7, 2010).

[2] The statutory definition for the term “child” has been interpreted for the purposes of EEOICPA as meaning a biological child, adopted child or stepchild of an individual. See EEOICPA Circular No. 08-08 (issued September 23, 2008).

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