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.

Liver Cancer

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

 

A.D.A.M. Medical Encyclopedia:

Liver cancer – Hepatocellular carcinoma

Primary liver cell carcinoma; Tumor – liver; Cancer – liver; Hepatoma

Last reviewed: September 20, 2013.

Hepatocellular carcinoma is cancer that starts in the liver.

Causes

Hepatocellular carcinoma accounts for most liver cancers. This type of cancer occurs more often in men than women. It is usually seen in people age 50 or older.

Hepatocellular carcinoma is not the same as metastatic liver cancer, which starts in another organ (such as the breast or colon) and spreads to the liver.

In most cases, the cause of liver cancer is scarring of the liver (cirrhosis). Cirrhosis may be caused by:

  • Alcohol abuse
  • Autoimmune diseases of the liver
  • Hepatitis B or C virus infection
  • Inflammation of the liver that is long-term (chronic)
  • Iron overload in the body (hemochromatosis)

Patients with hepatitis B or C are at high risk of liver cancer, even if they do not develop cirrhosis.

Procedure Manual

Page 47

uu.  Specified Cancers are listed in Section 30.5(ff) of the regulations.  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:

(c)  Primary cancer of the:

(xv) Liver (except if cirrhosis or hepatitis B is indicated).

Page 176

e. Other Diseases. For the following diseases, onset must have been at least five years after initial exposure during qualifying SEC employment:

(3) Primary cancer of the:

(o) Liver (except if cirrhosis or hepatitis B is indicated);

Page 196

(4) SEM provides a list of known health effects produced by a given toxic substance. SEM can also be searched to determine whether or not a given facility contained a toxic substance that could produce the health effect claimed. When searching this way, the CE searches by the claimed illness (e.g., asthma, skin cancer) to determine what toxic substances at a given site could have potentially caused, contributed to, or aggravated the claimed condition.

(c) The CE uses the “Disease or Health Effect by Alias” search if the organ affected by the disease is known. Using this link opens a page which allows the CE to find health effects or diseases by keying in all or a portion of the formal name of a health effect or disease. The SEM provides a list of health effects or diseases, which contain the search text in their formal names. For example, searching for “liver” returns Hemangiosarcoma of the liver.

Page 293

2. RECA Background.

c. Section 4 of RECA.

(b) Covered Illnesses: Leukemia (other than chronic lymphocytic leukemia), multiple myeloma, lymphomas (other than Hodgkin’s disease), and primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), or lung.

Page 353

5. Metastasized Cancer(s). Metastasized cancer(s) is a secondary cancer that originates from the primary cancer site.

b. Examples of Metastasized Cancers. It is widely accepted that certain carcinomas and/or sarcomas metastasize from the primary site. For example:

(2) Carcinomas of the gastrointestinal tract, reproductive system, and abdomen tend to metastasize to the abdominal lymph nodes, liver, and lungs. Later in their course, these carcinomas can metastasize to the brain and other organs.

Final Decisions

Page 40

EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee].  You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma).  The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003.  Those records also show findings of cirrhosis of the liver.  You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000.  You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse.  The death certificate shows the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003.  You did not indicate the location of your husband’s employment.  The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record.  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s. 

FINDINGS OF FACT

1.      You filed a claim for benefits on October 16, 2003.

2.      Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3.      Your husband was diagnosed with liver cancer on September 15, 2003.  The medical evidence also indicated findings of cirrhosis.

4.      The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5.      Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

6.      You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

 

CONCLUSIONS OF LAW

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

You filed a claim based on liver cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP.  The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC.  The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver.  Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A).  For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record.  See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

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

Cleveland, OH

Tracy Smart

Acting FAB Manager

Final Adjudication Branch

Page 91

EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002)

NOTICE OF FINAL DECISION

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

On September 20, 2001, you filed Form EE-2, Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program, with the Denver district office.  You stated that your husband, [Employee], had died on May 15, 1991 as a result of adenocarcinoma in the liver, and that he was employed at a Department of Energy facility. You included with your application, a copy of your marriage certificate, [Employee]‘s resume/biography, and his death certificate.  You submitted a letter dated January 5, 2000, from Allen M. Goldman, Institute of Technology, School of Physics and Astronomy, and a packet of information which included the university’s files relating to your husband based on your request for his personnel, employee exposure, and medical records.  Also submitted was a significant amount of medical records that did establish your husband had been diagnosed with adenocarcinoma in the liver

On March 1, 2002, Loretta from the Española Resource Center telephoned the Denver district office to request the status of your claim.  The claims examiner returned her telephone call on the same date and explained the provision in the Act which states that in order to be eligible for compensation, the spouse must have been married to the worker for at least one year prior to the date of his death.  Your marriage certificate establishes you were married on, May 30, 1990.  [Employee]‘s death certificate establishes he died on May 15, 1991.

On March 5, 2002, the Denver district office issued a recommended decision finding that the evidence of record had not established that you were married for one year prior to your husband’s death, and therefore you were not entitled to compensation benefits under the EEOICPA. 

Pursuant to § 30.316(a) of the implementing regulations, a claimant has 60 days in which to file objections to the recommended decision, as allowed under § 30.310(b) of the implementing regulations (20 C.F.R. § 30.310(b)). 

On April 12, 2002, the Final Adjudication Branch received a letter from you that stated you objected to the findings of the recommended decision.  You requested a hearing and a review of the written record.  You stated that the original law signed by President Clinton provided you with coverage, but when the law changed to include children under 18, the change in the law adversely affected you.  You stated that you had documents that demonstrated you had a 10-year courtship with your spouse.  You also stated you presented testimony as an advocate in Española.  Included with your letter of objection were the following documents:

·        a copy of Congressman Tom Udall’s “Floor Statement on the Atomic Workers Compensation Act”;

·        an e-mail from Bob Simon regarding the inclusion of Los Alamos National Laboratory workers in the Senate Bill dated July 5, 2000;

·        an e-mail from Louis Schrank regarding the Resource Center in Española;

·         a “Volunteer Experience Verification Form”, establishing you volunteered as a “Policy Advisor and Volunteer Consultant to the Department of Energy, Members of Congress, Congressional Committees, and many organizations on critical health issues effecting nuclear weapons workers with occupational illnesses”;

·        a transcript of proceedings from the March 18, 2000 Public Hearing in Española , New Mexico;

·         a letter from you to John Puckett, HSE Division Leader, Chairperson, “Working Group Formed to Address Issues Raised by Recent Reports of Excess Brain Tumors in the Community of Los Alamos” and dated June 27, 1991;

·        a letter to you from Terry L. Thomas, Ph.D., dated July 31, 1991, regarding the epidemiologic studies planned for workers at Los Alamos National Laboratory; a memorandum entitled “LANL Employee Representative for Cancer Steering Committee”, dated September 25, 1991;

·         a copy of the “Draft Charter of the Working Group to Address Los Alamos Community Health Concerns”, dated June 27, 1991;

·        an article entitled “Register of the Repressed: Women’s Voice and Body in the Nuclear Weapons Organization”; and

·        a psychological report from Dr. Anne B. Warren; which mentions you and [Employee] had a “10 or 11 year courtship”.

On May 20, 2002, you submitted a copy of the Last Will and Testament of [Employee], wherein he “devises to you, his wife, the remainder of his estate if you survive him for a period of seven hundred twenty (720) hours.” You stated you believed this provided you with common law marriage rights for the 720 hours mentioned in the will.

An oral hearing was held on June 18, 2002 at the One-Stop Career Center in Española, New Mexico. You presented additional evidence for consideration that included:  a copy of a house “Inspection Report” by Architect Steven G. Shaw, addressed to both you and [Employee], dated August 11, 1989 (exhibit one); a copy of a Quitclaim Deed (Joint Tenants) for you and [Employee], dated October 27, 1989 (exhibit two); a Los Alamos County Assessor Notice of Valuation or Tentative Notice of Value (undated), for a home on Walnut Street, and addressed to both you and [Employee] (exhibit three); and a Power of Attorney dated August 5, 1989, between you and [Employee] (exhibit four).

Pursuant to § 30.314(f) of the implementing regulations, a claimant has 30 days after the hearing is held to submit additional evidence or argument. 

No further evidence was submitted for consideration within that time period.

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

The undersigned has carefully reviewed the hearing transcript and additional evidence received at the hearing, as well as the evidence of record and the recommended decision issued on March 5, 2002.

The record fails to establish that you were married to [Employee] one year prior to his death, as required by the EEOICPA. The entire record and the exhibits were thoroughly reviewed.  Included in Exhibit One, was the August 11, 1989 inspection report of the home located on Walnut Street, a copy of a bill addressed to both you and [Employee] for the inspection service, and an invoice from A-1 Plumbing, Piping & Heat dated August 14, 1989.  Although some of these items were addressed to both you and [Employee], none of the records submitted are sufficient to establish that you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

The evidence entered into the record as Exhibit Two, consists of a Quitclaim Deed dated October 27, 1989, showing [Employee], a single man, and [Claimant], a single woman living at the same address on Walnut Street as joint tenants. Exhibit Three consists of a Notice of Valuation of the property on Walnut Street in Los Alamos County and is addressed to both you and [Employee]. Although this evidence establishes you were living together in 1989 in Los Alamos County, New Mexico, it is not sufficient evidence to establish you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

Exhibit Four consists of a copy of a Power of Attorney between you and [Employee] regarding the real estate located on Walnut Street. This evidence is not sufficient to establish you were married for one year prior to his death. 42 U.S.C. § 7384s(e)(3)(A).

The Act is clear in that it states, “the “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.” 

During the hearing you stated that there is a federal law, the Violence Against Women Act, that acknowledges significant other relationships and provides protection for a woman regardless of whether she is married to her husband one year or not.  You also stated that you believed there was “a lack of dialogue” between the RECA program and the EEOICP concerning issues such as yours.  Additionally, on August 15, 2002, you sent an email to the Final Adjudication Branch.  The hearing transcript was mailed out on July 23, 2002.  Pursuant to § 30.314(e) of the implementing regulations, a claimant is allotted 20 days from the date it is sent to the claimant to submit any comments to the reviewer.  Although your email was beyond the 20-day period, it was reviewed and considered in this decision.  In your email you stated the issue of potential common law marriage was raised.  You stated that you presented the appropriate documentation that may support a common law marriage to the extent permitted by New Mexican law.  You stated that the one-year requirement was adopted from the RECA and that you have not been able to determine how DOJ has interpreted this provision.  Also, you stated that the amendments of December 28, 2001 should not apply to your case because you filed your claim prior to the enactment of the amendments.  You stated you did not believe the amendments should be applied retroactively.

Section 7384s (e)(3)(A), Compensation and benefits to be provided, states:

The “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.”

Section 7384s(f) states:

EFFECTIVE DATE–This section shall take effect on July 31, 2001, unless Congress otherwise provides in an Act enacted before that date.

There is no previous enacted law that relates to compensation under the EEOICPA.  Therefore, the amendments apply retroactively to all claimants.

A couple cannot become legally married in New Mexico by living together as man and wife under New Mexico’s laws.  However, a couple legally married via common law in another state is regarded as married in all states.  The evidence of record does not establish you lived with [Employee] in a common law state.  Because New Mexico does not recognize common law marriages, the time you lived with [Employee] prior to your marriage is insufficient to establish you were married to him for one year prior to his death.

Regarding your reference to the difference between how Native American widows are treated and recognized in their marriages, and how you are recognized in your marriage, Indian Law refers primarily to that body of law dealing with the status of the Indian tribes and their special relationship to the federal government.  The existing federal-tribal government-to-government relationship is significant given that the United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection and has affirmed the Navajo Nation’s sovereignty.  The laws that apply to the Native Americans do not apply in your case.

The undersigned finds that you have not established you are an eligible survivor as defined in 42 U.S.C. § 7384s(e)(3)(A).  It is the decision of the Final Adjudication Branch that your claim is denied.

August 26, 2002

Denver, CO

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

Page 244

EEOICPA Fin. Dec. No. 36328-2004 (Dep’t of Labor, September 27, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On September 16, 2002, you filed a claim (Form EE-2) for benefits as the surviving spouse of [Employee].  You identified breast cancer and liver cancer as the diagnosed conditions on which your claim was based.  You submitted an employment history form (EE-3) on which you stated that [Employee] was employed at the INEEL site (Idaho National Engineering and Environmental Laboratory) from January 15, 1977 to March 6, 2001 and that she wore a dosimetry badge while employed.  As medical evidence, you submitted the following:

1.      A copy of a November 7, 2001 hospital summary report which includes the results of the June 12 1998 pathology report in which [Employee] was diagnosed with right breast cancer.

2.      A copy of Dr. John H. Ward’s October 28, 1999 medical report in which he stated [Employee] was diagnosed with metastatic breast cancer to the liver

3.      A copy of Dr. William Brant’s February 17, 2000 ultrasound report in which he states [Employee] had multiple masses of metastatic breast carcinoma within the liver.

You submitted a copy of [Employee’s] death certificate that shows she died on March 6, 2001 due to metastatic breast cancer and that you were her spouse at the time of death.  You did not submit a copy of your marriage certificate to establish you were married to [Employee] as requested by the district office on September 25, 2002.  On October 9, 2002, INEEL representatives Katherine A. Vivian and Lynn E. Rockhold advised the district office by letter that [Employee] was employed at INEEL from March 27, 1978 to February 28, 2001.

To determine the probability of whether [Employee] sustained cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction on November 4, 2002, in accordance with § 30.115 of the implementing regulations.  20 C.F.R. § 30.115.  On June 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  On July 7, 2004, NIOSH submitted the Final Report of Dose Reconstruction to the district office.  Pursuant to § 81.20 of the implementing NIOSH regulations, the district office used the information provided in that report to determine that there was a 30.89% probability that [Employee’s] breast cancer was caused by radiation exposure at the INEEL site.  42 C.F.R. § 81.20. 

On July 14, 2004, the district office issued a recommended decision in which it concluded that [Employee] does not qualify as a covered employee with cancer under 42 U.S.C. § 7384l(9)(B) as she does not meet the requirements shown in 42 U.S.C. § 7384n(b); that NIOSH performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) of the EEOICPA and 42 C.F.R. § 82.10; and that the Department of Labor completed the Probability of Causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. § 81.  The district office recommended denial of your claim based on its conclusions.

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

20 C.F.R. § 30.316(a).

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

FINDINGS OF FACT

  1. You filed a claim for survivor benefits on September 16, 2002.
  1. [Employee] was employed at the Idaho National Engineering and Environmental Laboratory, a Department of Energy facility,[1] from August 2, 1976 to December 1, 1981. 
  1. [Employee] was diagnosed with breast cancer on June 12, 1998. 
  1. [Employee] died on March 6, 2001 due to metastatic breast cancer. 
  1. On July 7, 2004, NIOSH provided the district office a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record.  On September 14, 2004, the Final Adjudication Branch independently analyzed the information in that report and confirmed the 30.89% probability determined by the district office. 
  1. You did not submit evidence that establishes you are the surviving spouse of [Employee].
  1. You have not filed any objections to the recommended decision within the 60 days allowed by § 30.310(b) of the EEOICPA regulations.

Based on the above-noted findings of fact in this claim and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

To establish eligibility for compensation as a result of cancer, it must first be established that [Employee] was a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment.  42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.  The evidence of record establishes that [Employee] was a DOE employee who contracted breast cancer after beginning her employment at the INEEL.  On September 14, 2004, using the dose estimates provided by NIOSH, the FAB calculated the probability of causation for [Employee’s] breast cancer with the software program known as NIOSH-IREP.  These calculations show that there was a 30.89% probability that [Employee’s] breast cancer was caused by her exposure to radiation during the period of her covered employment at the INEEL site.  Pursuant to 42 C.F.R. § 82.26, NIOSH will only complete dose estimates for the organ or tissue relevant to the primary cancer site(s).  It has been established by the medical evidence of record that [Employee] was diagnosed with multiple masses of metastatic breast carcinoma within the liver.  Evidence was not submitted that establishes she was diagnosed with liver cancer; therefore dose estimates were not completed for that organ.

Because the evidence of record does not establish that [Employee’s] cancer was “at least as likely as not” (a 50% or greater probability) caused by her employment at the INEEL site within the meaning of § 7384n of the Act, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Additionally, you did not submit evidence that establishes you are an eligible survivor as defined under the EEOICPA.  Pursuant to § 7384s(e)(2) of the EEOICPA, if a covered employee eligible for payment dies before filing a claim under this title, a survivor of that employee may file a claim for such payment.  42 U.S.C. § 7384s(e)(2).  Payment may be made to a surviving spouse if it is established that the spouse was married to the employee for at least one year immediately prior to the employee’s death.  See 42 U.S.C. § 7384s(e)(3)(A). 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] U.S. Department of Energy.  Idaho National Engineering and Environmental Laboratory.  Time Period:  1949 to Present.  Worker Advocacy Facility List.  Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved September 14, 2004].

Page 314

EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee].  You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma).  The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003.  Those records also show findings of cirrhosis of the liver.  You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000.  You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse.  The death certificate shows the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003.  You did not indicate the location of your husband’s employment.  The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP.  The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d).  Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3).  The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B).  The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record.  Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s. 

FINDINGS OF FACT

1.      You filed a claim for benefits on October 16, 2003.

2.      Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3.      Your husband was diagnosed with liver cancer on September 15, 2003.  The medical evidence also indicated findings of cirrhosis.

4.      The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5.      Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

 

6.      You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

CONCLUSIONS OF LAW

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

You filed a claim based on liver cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9).  The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility.  See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP.  The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC.  The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver.  Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A).  For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the Portsmouth GDP.  Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record.  See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

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

Cleveland, OH

Tracy Smart

Acting FAB Manager

Final Adjudication Branch

Page 587

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

42 U.S.C. § 7384l(12)(A). 

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

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

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

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

Page 607

EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002)

NOTICE OF FINAL DECISION

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

On September 20, 2001, you filed Form EE-2, Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program, with the Denver district office.  You stated that your husband, [Employee], had died on May 15, 1991 as a result of adenocarcinoma in the liver, and that he was employed at a Department of Energy facility. You included with your application, a copy of your marriage certificate, [Employee]‘s resume/biography, and his death certificate.  You submitted a letter dated January 5, 2000, from Allen M. Goldman, Institute of Technology, School of Physics and Astronomy, and a packet of information which included the university’s files relating to your husband based on your request for his personnel, employee exposure, and medical records.  Also submitted was a significant amount of medical records that did establish your husband had been diagnosed with adenocarcinoma in the liver

On March 1, 2002, Loretta from the Española Resource Center telephoned the Denver district office to request the status of your claim.  The claims examiner returned her telephone call on the same date and explained the provision in the Act which states that in order to be eligible for compensation, the spouse must have been married to the worker for at least one year prior to the date of his death.  Your marriage certificate establishes you were married on, May 30, 1990.  [Employee]‘s death certificate establishes he died on May 15, 1991.

On March 5, 2002, the Denver district office issued a recommended decision finding that the evidence of record had not established that you were married for one year prior to your husband’s death, and therefore you were not entitled to compensation benefits under the EEOICPA. 

Pursuant to § 30.316(a) of the implementing regulations, a claimant has 60 days in which to file objections to the recommended decision, as allowed under § 30.310(b) of the implementing regulations (20 C.F.R. § 30.310(b)). 

On April 12, 2002, the Final Adjudication Branch received a letter from you that stated you objected to the findings of the recommended decision.  You requested a hearing and a review of the written record.  You stated that the original law signed by President Clinton provided you with coverage, but when the law changed to include children under 18, the change in the law adversely affected you.  You stated that you had documents that demonstrated you had a 10-year courtship with your spouse.  You also stated you presented testimony as an advocate in Española.  Included with your letter of objection were the following documents:

·        a copy of Congressman Tom Udall’s “Floor Statement on the Atomic Workers Compensation Act”;

·        an e-mail from Bob Simon regarding the inclusion of Los Alamos National Laboratory workers in the Senate Bill dated July 5, 2000;

·        an e-mail from Louis Schrank regarding the Resource Center in Española;

·         a “Volunteer Experience Verification Form”, establishing you volunteered as a “Policy Advisor and Volunteer Consultant to the Department of Energy, Members of Congress, Congressional Committees, and many organizations on critical health issues effecting nuclear weapons workers with occupational illnesses”;

·        a transcript of proceedings from the March 18, 2000 Public Hearing in Española , New Mexico;

·         a letter from you to John Puckett, HSE Division Leader, Chairperson, “Working Group Formed to Address Issues Raised by Recent Reports of Excess Brain Tumors in the Community of Los Alamos” and dated June 27, 1991;

·        a letter to you from Terry L. Thomas, Ph.D., dated July 31, 1991, regarding the epidemiologic studies planned for workers at Los Alamos National Laboratory; a memorandum entitled “LANL Employee Representative for Cancer Steering Committee”, dated September 25, 1991;

·         a copy of the “Draft Charter of the Working Group to Address Los Alamos Community Health Concerns”, dated June 27, 1991;

·        an article entitled “Register of the Repressed: Women’s Voice and Body in the Nuclear Weapons Organization”; and

·        a psychological report from Dr. Anne B. Warren; which mentions you and [Employee] had a “10 or 11 year courtship”.

On May 20, 2002, you submitted a copy of the Last Will and Testament of [Employee], wherein he “devises to you, his wife, the remainder of his estate if you survive him for a period of seven hundred twenty (720) hours.” You stated you believed this provided you with common law marriage rights for the 720 hours mentioned in the will.

An oral hearing was held on June 18, 2002 at the One-Stop Career Center in Española, New Mexico. You presented additional evidence for consideration that included:  a copy of a house “Inspection Report” by Architect Steven G. Shaw, addressed to both you and [Employee], dated August 11, 1989 (exhibit one); a copy of a Quitclaim Deed (Joint Tenants) for you and [Employee], dated October 27, 1989 (exhibit two); a Los Alamos County Assessor Notice of Valuation or Tentative Notice of Value (undated), for a home on Walnut Street, and addressed to both you and [Employee] (exhibit three); and a Power of Attorney dated August 5, 1989, between you and [Employee] (exhibit four).

Pursuant to § 30.314(f) of the implementing regulations, a claimant has 30 days after the hearing is held to submit additional evidence or argument. 

No further evidence was submitted for consideration within that time period.

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

The undersigned has carefully reviewed the hearing transcript and additional evidence received at the hearing, as well as the evidence of record and the recommended decision issued on March 5, 2002.

The record fails to establish that you were married to [Employee] one year prior to his death, as required by the EEOICPA. The entire record and the exhibits were thoroughly reviewed.  Included in Exhibit One, was the August 11, 1989 inspection report of the home located on Walnut Street, a copy of a bill addressed to both you and [Employee] for the inspection service, and an invoice from A-1 Plumbing, Piping & Heat dated August 14, 1989.  Although some of these items were addressed to both you and [Employee], none of the records submitted are sufficient to establish that you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

The evidence entered into the record as Exhibit Two, consists of a Quitclaim Deed dated October 27, 1989, showing [Employee], a single man, and [Claimant], a single woman living at the same address on Walnut Street as joint tenants. Exhibit Three consists of a Notice of Valuation of the property on Walnut Street in Los Alamos County and is addressed to both you and [Employee]. Although this evidence establishes you were living together in 1989 in Los Alamos County, New Mexico, it is not sufficient evidence to establish you were married to your husband for one year prior to his death as required under the Act. 42 U.S.C. § 7384s(e)(3)(A).

Exhibit Four consists of a copy of a Power of Attorney between you and [Employee] regarding the real estate located on Walnut Street. This evidence is not sufficient to establish you were married for one year prior to his death. 42 U.S.C. § 7384s(e)(3)(A).

The Act is clear in that it states, “the “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.” 

During the hearing you stated that there is a federal law, the Violence Against Women Act, that acknowledges significant other relationships and provides protection for a woman regardless of whether she is married to her husband one year or not.  You also stated that you believed there was “a lack of dialogue” between the RECA program and the EEOICP concerning issues such as yours.  Additionally, on August 15, 2002, you sent an email to the Final Adjudication Branch.  The hearing transcript was mailed out on July 23, 2002.  Pursuant to § 30.314(e) of the implementing regulations, a claimant is allotted 20 days from the date it is sent to the claimant to submit any comments to the reviewer.  Although your email was beyond the 20-day period, it was reviewed and considered in this decision.  In your email you stated the issue of potential common law marriage was raised.  You stated that you presented the appropriate documentation that may support a common law marriage to the extent permitted by New Mexican law.  You stated that the one-year requirement was adopted from the RECA and that you have not been able to determine how DOJ has interpreted this provision.  Also, you stated that the amendments of December 28, 2001 should not apply to your case because you filed your claim prior to the enactment of the amendments.  You stated you did not believe the amendments should be applied retroactively.

Section 7384s (e)(3)(A), Compensation and benefits to be provided, states:

The “spouse” of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual.”

Section 7384s(f) states:

EFFECTIVE DATE–This section shall take effect on July 31, 2001, unless Congress otherwise provides in an Act enacted before that date.

There is no previous enacted law that relates to compensation under the EEOICPA.  Therefore, the amendments apply retroactively to all claimants.

A couple cannot become legally married in New Mexico by living together as man and wife under New Mexico’s laws.  However, a couple legally married via common law in another state is regarded as married in all states.  The evidence of record does not establish you lived with [Employee] in a common law state.  Because New Mexico does not recognize common law marriages, the time you lived with [Employee] prior to your marriage is insufficient to establish you were married to him for one year prior to his death.

Regarding your reference to the difference between how Native American widows are treated and recognized in their marriages, and how you are recognized in your marriage, Indian Law refers primarily to that body of law dealing with the status of the Indian tribes and their special relationship to the federal government.  The existing federal-tribal government-to-government relationship is significant given that the United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection and has affirmed the Navajo Nation’s sovereignty.  The laws that apply to the Native Americans do not apply in your case.

The undersigned finds that you have not established you are an eligible survivor as defined in 42 U.S.C. § 7384s(e)(3)(A).  It is the decision of the Final Adjudication Branch that your claim is denied.

August 26, 2002

Denver, CO

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

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 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 890

EEOICPA Fin. Dec. No. 10045849-2007 (Dep’t of Labor, December 31, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claimant’s claim under Part E of EEOICPA is accepted.  The claimant is entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to her receipt of her survivor share under Part E.

STATEMENT OF THE CASE

On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] (the employee) was employed by Department of Energy (DOE) contractors at the K-25 Plant, a DOE facility, and at the Los Alamos National Laboratory (LANL), a DOE facility; that he is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.   

On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E of EEOICPA; and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.

On August 17, 2007, the Seattle district office received notification that [Employee’s Child #2] had passed away on August 16, 2007.  A copy of [Employee’s Child #2]‘s death certificate confirms that she died on August 16, 2007.  On September 21, 2007, the Seattle district office issued a recommended decision that concluded that the claimant was entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to receipt of her share of the Part E survivor benefits. 

On December 26, 2007, the Director of the Division of Energy Employees Occupational Illness Compensation issued a Director’s Order reopening the claimant’s claim for compensation, and returning the case record to FAB for review of the September 21, 2007 recommended decision, and issuance of a new final decision regarding the applicable survivor benefit payable.

After considering the written record of the claim forwarded by the Director’s Office, and after conducting any further development of the claim as was deemed necessary, FAB hereby makes the following:

FINDINGS OF FACT

  1. [Employee’s Child #1], [Employee’s Child #2], and [Claimant] filed claims for benefits under EEOICPA as the surviving children of [Employee].
  1. The claimant’s father, [Employee], was employed by DOE contractors at the K-25 Plant, a DOE facility, and at LANL, a DOE facility.
  1. [Employee] was diagnosed with colon cancer in July of 1956 and with liver cancer in August 1958.
  1. [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver.
  1. On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.
  1. On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E, and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.
  1. [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.

Based on the above-noted findings of fact in this claim, and pursuant to the authority granted by the EEOICPA regulations, FAB hereby also makes the following:

CONCLUSIONS OF LAW

If one of the survivors on a multiple survivor claim dies before payment is issued, the compensation is reapportioned among the remaining survivors.  See Federal (EEOICPA) Procedure Manual, Chapter E-600.8c (September 2005). 

The term “covered child” under Part E of EEOICPA means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

The evidence of record establishes that the employee died on August 5, 1958, at the age of 48, due to carcinoma of the liver, a covered condition.  The evidence of record also establishes that [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.  [Claimant] is, therefore, the only eligible beneficiary of the employee under Part E.  42 U.S.C. § 7385s-3(d)(2).  The record also shows that that there was an aggregate of not less than 10 years, before [Employee]‘s normal retirement age (for purposes of the Social Security Act), during which, as the direct result of his covered illness, his annual wage did not exceed 50% of his average annual wage.  42 U.S.C. § 7385s-3(a)(2).

Accordingly, [Claimant], as a covered child, is entitled to compensation under Part E in the amount of $150,000.00, less any survivor benefits previously paid to him under Part E in this case, pursuant to 42 U.S.C. § 7385s-3(a)(2), and Chapter E-600.8c of the Procedure Manual. 

Washington, DC

Amanda M. Fallon 

Hearing Representative

Final Adjudication Branch

Page 934

EEOICPA Fin. Dec. No. 50784-2007 (Dep’t of Labor, November 22, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB accepts and approves your claim for compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E, as well as medical benefits under Part B and E.

STATEMENT OF THE CASE

On October 28, 2002, [Employee] filed a Form EE-1 (Claim for Benefits under the EEOICPA) with the Department of Labor (DOL), based on the condition of hepatocellular carcinoma (liver cancer).  He submitted medical evidence, including a pathology report dated July 22, 2002, indicating a diagnosis of well-differentiated hepatocellular carcinoma. 

[Employee] also submitted a Form EE-3 indicating that he worked at the Nevada Test Site (NTS) for EG&G from June 1956 to an unspecified date in 1965, and at the Pacific Proving Grounds (PPG) from April 1958 to July 1958.  A representative of the Department of Energy (DOE) verified that the employee worked at the NTS for EG&G from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965.  [Employee] died on May 31, 2003, and his claim was administratively closed.

On October 21, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as the surviving spouse of the employee, based on the condition of liver cancer.  The record includes a copy of your marriage certificate showing you and the employee were married on September 27, 1996, and a copy of your spouse’s death certificate showing you were married to the employee at the time of his death on May 31, 2003.  The death certificate identifies the immediate cause of death as renal failure, liver failure and hepatocellular carcinoma

On November 10, 2003, the Seattle district office referred the case to the National Institute for Occupational Safety and Health to determine whether the employee’s lung cancer was “at least as likely as not” related to his covered employment.  However, the case was returned on July 26, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS), of certain NTS employees as an addition to the Special Exposure Cohort (SEC).

On October 26, 2006, the Seattle district office issued a recommended decision to accept your claim based on the condition of liver cancer.  The district office concluded that under Part B, the employee is a member of the SEC, and he was diagnosed with liver cancer which is a specified cancer under the Act.  The district office further concluded that a determination that a DOE contractor employee is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  The district office also concluded that you are the surviving spouse of the employee, and you are entitled to compensation in the amount of $150,000.00 under Part B, and $125,000.00 under Part E, for a total amount of $275,000.00.  Further, the district office concluded that you are entitled to reimbursement of [Employee]‘s medical expenses under Part B and E, from October 28, 2002 (the date he filed his claim) until his date of death. 

The evidence of record also includes a letter you signed on October 20, 2006, in which you indicated that neither you nor your spouse have filed a lawsuit or received a settlement based on the claimed exposure to radiation.  You also indicated that you and your spouse have never filed for or received any payments, awards or benefits from a state workers’ compensation claim for the claimed illness, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, you indicated that your spouse had no minor children or children incapable of self-support who were not your natural or adopted children at the time of his death.  

On October 30, 2006, the FAB received written notification from you indicating that you waived all rights to file objections to the findings of fact and conclusions of law in the recommended decision.  After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

1.         On October 28, 2002, [Employee] filed a claim for benefits under EEOICPA.   [Employee] died on May 31, 2003, and his claim was administratively closed.

2.         On October 21, 2003, you filed a claim for survivor benefits under EEOICPA.

3.         You are the surviving spouse of the employee.

4.         The employee worked at the NTS, a covered DOE facility, for an aggregate of 250 work days, from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962; and at the PPG from May 1, 1958 to June 30, 1962; and at the NTS with EG&G from March 21, 1963 to May 1, 1963; from November 13, 1963 to November 26, 1963; from February 10, 1964 to February 10, 1964; from May 5, 1964 to May 5, 1964; from August 11, 1964 to August 11, 1964; from November 3, 1964 to November 3, 1964; from January 21, 1965 to May 11, 1965; from July 21, 1965 to July 21, 1965; and from October 12, 1965 to October 12, 1965.   This employment qualifies [Employee] as a member of the SEC.

5.         The employee was diagnosed with hepatocellular carcinoma (liver cancer), which is a specified cancer, on July 22, 2002, after starting work at a DOE facility.   

6.         The evidence of record supports a causal connection between the employee’s death due to renal failure, liver failure and hepatocellular carcinoma and his exposure to radiation at a DOE facility. 

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).  You waived your right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on your claim for compensation benefits under EEOICPA.   

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the NTS from January 27, 1951 through 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 is sufficient to establish that the employee was employed at the NTS for an aggregate of at least 250 work days of covered SEC employment, as he worked from May 25, 1957 to June 29, 1957; from October 1, 1958 to November 5, 1958; from June 13, 1960 to June 24, 1960; from August 29, 1961 to November 20, 1961; and from January 3, 1962 to September 10, 1962. 

The employee was a member of the NTS addition to the SEC pursuant to § 7384l(14) of the Act, who was diagnosed with liver cancer, which is a specified cancer under § 7384l(17)(A) of the Act, and is therefore a “covered employee with cancer” under § 7384l(9)(A) of the Act.  See 42 U.S.C. §§ 7384l(14), 7384l(17)(A) and 7384l(9)(A).  Further, you are the surviving spouse of the employee under § 7384s(e)(1)(A) and you are entitled to compensation in the amount of $150,000.00.  42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a)(2).

The determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a). 

The evidence of record establishes that the employee was a “covered DOE contractor employee” as defined by § 7385s(1) in accordance with § 7385s-4(a); and the employee was diagnosed with a “covered illness,” liver cancer, as defined by § 7385s(2).  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  You are the employee’s covered spouse as defined by § 7385s-3(d)(1) and you are entitled to compensation in the amount of $125,000.00 pursuant to § 7385s-3(a)(1).  See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(a), 7385s-3(d)(1) and 7385s-3(a)(1).      

Accordingly, you are entitled to compensation in the total amount of $275,000.00.

In addition, you are entitled to medical benefits related to the employee’s cancer under Parts B and E of EEOICPA, retroactive to the employee’s application date of October 28, 2002, and up to May 31, 2003, the date the employee died.  See 42 U.S.C. §§ 7384s(b) and 7385s-8.

Seattle, Washington

Kelly Lindief, Hearing Representative

Final Adjudication Branch

Page 936

EEOICPA Fin. Dec. No. 72816-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s 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 recommended decision to deny the claims is reversed and both claims for survivor benefits under Part B of EEOICPA are accepted. 

STATEMENT OF THE CASE

On October 11, 2005, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA as the children of [Employee], hereinafter referred to as the employee.  [Claimant #1 and Claimant #2] identified gall bladder and skin cancers and gastrointestinal hemorrhage as the claimed conditions for the employee.  On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not covered children as defined under Part E of EEOICPA.  Therefore, their claims for survivor benefits under Part E were denied.

[Claimant #1] stated on the Form EE-3 that the employee was employed as a carpenter at the Nevada Test Site[1] from 1940 to 1961.  The Department of Energy (DOE) verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953, and from April 30, 1957 to July 19, 1957 at the Nevada Test Site. 

[Claimant #1 and Claimant #2] submitted a death certificate, which indicated the employee died on February 5, 1987, that the cause of death was gastrointestinal hemorrhage, and that he was widowed at the time of his death.  A death certificate for [Employee’s Child], father’s name was [Employee], was submitted.  [Claimant #1] submitted a birth certificate, which indicated the employee was her father.  A birth certificate for [Claimant #2] indicated the employee was his father.  An Order for Name Change dated May 16, 1979 indicated that [Claimant #2]‘s name was changed to [Claimant #2].

A March 10, 1987 autopsy report, from Drs. Stephen Ovanessoff and Roy I. Davis, indicated a final autopsy diagnosis of hepatocellular carcinoma with direct invasion of the gallbladder.

To determine the probability of whether the employee sustained his cancer in the performance of duty, the district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  The dose reconstruction was based on the periods of employment at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957.  On July 3, 2007 and August 12, 2007, respectively, [Claimant #1 and Claimant #2] signed Form OCAS-1 indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information that they provided to NIOSH.

The district office received the final NIOSH Report of Dose Reconstruction dated August 24, 2007.  The district office used the information provided in this report to determine that there was a 15.57% probability that the employee’s liver cancer was caused by radiation exposure at the Nevada Test Site.

On August 31, 2007, the Seattle district office issued a recommended decision finding that the employee’s cancer was not “at least as likely as not” caused by employment at the Nevada Test Site.  Therefore, the district office concluded that [Claimant #1 and Claimant #2] were not entitled to compensation under Part B of EEOICPA.

OBJECTIONS

On October 10, 2007, FAB received [Claimant #2]‘s October 10, 2007 objection to the recommended decision and request for an oral hearing.  On January 8, 2008, a hearing was held to hear the objections of [Claimant #1 and Claimant #2].  However, the equipment to record the hearing malfunctioned and another hearing was held by telephone on February 20, 2008. 

During the January 8, 2008 hearing, [Claimant #2] submitted a four-page letter in support of his objections.  This letter was read at both the January 8, 2008 and February 20, 2008 hearings.  One of his objections was regarding the finding that [Claimant #1 and Claimant #2] were not “covered” children as that term is defined under Part E of EEOICPA.  With reference to this objection, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E.  Therefore, their claims for survivor benefits under Part E were denied.  After FAB has issued a final decision pursuant to 20 C.F.R. § 30.316, only the Director for Division of Energy Employees Occupational Illness Compensation may reopen a claim and return it to FAB for issuance of new decision.  20 C.F.R. § 30.320.  There is no intervening Director’s Order regarding [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part E of EEOICPA.  Therefore, no new final decision will be issued on their claims for benefits under Part E.

During the February 20, 2008 hearing, [Claimant #1] indicated that the employee lived on site during his employment at the Nevada Test Site.  In support of this statement, she indicated that the employee “made a custom or habit of staying at a camp site near his work place if the distance was too far to travel.”  In addition, she indicated that the employee had an old truck and that it was always breaking down.

Effective July 26, 2006, the Secretary of Health and Human Services designated certain employees of the Nevada Test Site in Mercury, Nevada as members of the Special Exposure Cohort (SEC), 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, based on work performed for the period from January 27, 1951 to December 31, 1962.

As noted above, DOE verified the employee’s employment as a carpenter with Reynolds Electrical and Engineering from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957 at the Nevada Test Site.  However, in a review of records from DOE a Personnel Action Slip from Reynolds Electrical and Engineering was found that indicated a date of hire of April 3, 1957.  A July 19, 1957 Radiation Exposure memo indicated that the employee was exposed to radiation from April 3, 1957 to June 30, 1957.  Based upon the foregoing information, the correct periods of employment are March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  In addition, the following documents were submitted by DOE:

  1. A March 12, 1953 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
  2. A May 3, 1957 application for employment, which indicated a home address in Las Vegas, Nevada and a temporary address in Mercury, Nevada.
  3. A June 17, 1957 accident report indicated a mailing address in Mercury, Nevada.

Pursuant to EEOICPA Bulletin No. 06-16 (issued September 12, 2006), if the employee was present (either worked or lived) on site at the Nevada Test Site for a 24-hour period in a day, the claims examiner is to credit the employee with the equivalent of three (8-hour) work days.  If there is evidence that the employee was present on site at the Nevada Test Site for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement for the SEC.  In addition, the Nevada Test Site includes the town of Mercury, which is located in the southwest corner of the site.  

The preponderance of evidence of record establishes that the employee lived and worked at the Nevada Test Site from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.  These periods represent a total of 101 work days.  Crediting the employee with three days of exposure for each day worked, the employee would have had 303 days of exposure during the periods from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957.

There were other objections to the denial of survivor benefits under Part B of EEOICPA; however, they are not being addressed because the evidence of record is sufficient to accept [Claimant #1 and Claimant #2]‘s claims for survivor benefits under Part B of EEOICPA.

On their claims for survivor benefits, [Claimant #1 and Claimant #2] indicated that neither they nor the employee had filed any lawsuits or received any settlements or awards for the employee’s claimed condition.  In addition, [Claimant #1 and Claimant #2] indicated that there are no other living children of the employee.

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

FINDINGS OF FACT

  1. [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E of EEOICPA.
  1. On June 15, 2006, FAB issued a final decision, finding that [Claimant #1 and Claimant #2] were not “covered” children as defined under Part E of EEOICPA. 
  1. The employee was employed and lived at the Nevada Test Site for at least 250 workdays, by Reynolds Electrical and Engineering, from March 12, 1953 to April 17, 1953 and from April 30, 1957 to July 19, 1957. 
  1. The employee was first diagnosed liver cancer on February 5, 1987.
  1.  The employee was widowed on his February 5, 1987 date of death.
  1. [Claimant #1 and Claimant #2] are the surviving children of the employee.

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

CONCLUSIONS OF LAW

Section 30.316(b) of the EEOICPA regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including [Claimant #1 and Claimant #2]‘s objections, and concludes that no further investigation is warranted.

On July 12, 2006, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC:  “Department of Energy (DOE) employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site in Mercury, Nevada from January 27, 1951 to December 31, 1962 and 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 (excluding aggregate work day requirements) established for other classes of employees included in the SEC.”  This designation became effective July 26, 2006.  See 71 Fed. Reg. 44298 (August 4, 2006).

The evidence of record supports that the employee worked for a DOE contractor and lived at the Nevada Test Site in excess of 250 workdays from March 12, 1953 to April 17, 1953 and from April 3, 1957 to July 19, 1957, which is during the relevant period of the SEC class.  This employment qualifies him for inclusion within the SEC.  As a member of the SEC who was diagnosed with liver cancer, which is a “specified cancer” pursuant to 20 C.F.R. § 30.5(ff) and constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), he meets the definition of a “covered employee with cancer.”  42 U.S.C. § 7384l(9).  [Claimant #1 and Claimant #2] are the employee’s only eligible surviving beneficiaries, as defined at 42 U.S.C. § 7384s(e)(1)(B).  As an eligible survivor of a “covered employee with cancer, I conclude that their claims for survivor benefits should be accepted and that [Claimant #1 and Claimant #2] are each entitled to $75,000.00 for a total of $150,000.00 in compensation benefits under Part B of EEOICPA.  

Washington, DC          

Tom Daugherty

Hearing Representative

Final Adjudication Branch

FREE EVALUATION