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 illnesses might relate to the Energy Employees Occupational Illness Compensation Program Act.

Lymphoma

Also called: Non-Hodgkin lymphoma

A useful explanation of the different kinds Leukemia and Lymphomas and the importance of determining which kind a Worker has contracted as it applies to the EEOICPA is provided in this blog post

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

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

A.D.A.M. Medical Encyclopedia: Lymphoma is a cancer of a part of the immune system called the lymph system. There are many types of lymphoma. One type is Hodgkin disease. The rest are called non-Hodgkin lymphomas. Non-Hodgkin lymphomas begin when a type of white blood cell, called a T cell or B cell, becomes abnormal. The cell divides again and again, making more and more abnormal cells. These abnormal cells can spread to almost any other part of the body. Most of the time, doctors don’t know why a person gets non-Hodgkin lymphoma. You are at increased risk if you have a weakened immune system or have certain types of infections.

Non-Hodgkin lymphoma can cause many symptoms, such as

  • Swollen, painless lymph nodes in the neck, armpits or groin
  • Unexplained weight loss
  • Fever
  • Soaking night sweats
  • Coughing, trouble breathing or chest pain
  • Weakness and tiredness that don’t go away
  • Pain, swelling or a feeling of fullness in the abdomen

Your doctor will diagnose lymphoma with a physical exam, blood tests, a chest x-ray, and a biopsy. Treatments include chemotherapy, radiation therapy, targeted therapy, biological therapy, or therapy to remove proteins from the blood. Targeted therapy uses substances that attack cancer cells without harming normal cells. Biologic therapy boosts your body’s own ability to fight cancer. If you don’t have symptoms, you may not need treatment right away. This is called watchful waiting.

Procedure Manual

Page 48

  1. 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:

(b) Lymphomas (other than Hodgkin’s disease);

Page 292

  1. . RECA Background.
  2. Section 4 of RECA.

Downwinders.

(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.

Bulletins

Page 502

07-21 NIOSH’s Program Evaluation Report for Lymphoma

EEOICPA BULLETIN NO. 07-21

Issue Date: June 15, 2007

Effective Date: March 8, 2007

Expiration Date: June 15, 2008

Subject: NIOSH’s Program Evaluation Report for Lymphoma.

Background: On March 8, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued a document that changed the underlying scientific rationale for performing dose reconstructions for lymphoma. NIOSH’s findings and its effect on certain cases with a dose reconstruction for lymphoma was documented in the release OCAS-PER-009, “Program Evaluation Report (PER): Target Organs for Lymphoma,” issued on March 8, 2007. It is NIOSH’s assessment that the following changes apply for target organ selections in lymphoma cases (OCAS-TIB-012, REV-01):

For internal dose, the thoracic lymph nodes associated with the lungs will be selected because the dose to this tissue from exposure via inhalation of insoluble radioactive material is always higher than the dose to other organs.

For external dose, the lungs will be selected for B-cell lymphomas as the target organ because a significant fraction of the total lymphoid organ mass occurs in the thoracic cavity.

For T-cell lymphomas, the thymus will be selected. The change in the dose reconstruction methodology impacts lymphoma cases with a dose

reconstruction prior to February 10, 2006, that resulted in a <50% Probability of Causation. References: OCAS-TIB-012 Rev-01, “Selection for internal and external dosimetry target organs for lymphatic/hematopoietic cancers”; OCAS-PEP-009 Rev-00, “Program Evaluation Plan: Evaluation of the Change in Target Organs for Dose Reconstruction Involving Lymphoma,” approved on December 8, 2006; OCAS-PER-009 Rev-00, “Target organs for lymphoma” dated March 8, 2007.

Purpose: To provide procedures for processing claims affected by NIOSH’s OCAS-PER-009.

Applicability: All staff.

Actions:

  1. In OCAS-PER-009 (Attachment 1), NIOSH has made the decision that a change is required for internal and external dosimetry target organs used for dose reconstruction for lymphoma cases that were performed prior to February 10, 2006, and deemed non-compensable on the basis of a <50% Probability of Causation (POC). The change in methodology resulted from a detailed investigation by the Office of Compensation Analysis and Support of the etiology of lymphoma. The investigation found that the site of radiation injury can differ from the site of origin, and that the site listed in the diagnosis may not be the site of primary involvement. The change in the dose reconstruction methodology includes selecting the organ that would have received the highest radiation dose when the identity of the affected organ is in question or unknown. As a result, NIOSH found that the change in the organ used for dose reconstructions increases the organ dose, thereby resulting in a higher POC.

All lymphoma dose reconstructions completed after February 10, 2006, use the correct target organ selection. The completion date of the dose reconstruction is determined by the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act. No action is required in any case with a final decision that was issued based on a dose reconstruction if the “Calculations Performed by” date is after February 10, 2006.

  1. NIOSH conducted a review of all lymphoma cases with a dose reconstruction prior to February 10, 2006, that resulted in a <50% POC and provided the Division of Energy Employees Occupational Illness Compensation (DEEOIC) a list of those cases via CD. The CD contains a folder for each case identified by NIOSH and includes a copy of the “Claim Review in Support of Program Evaluation Report” specific to that case. The report indicates whether the case is now compensable or that the change in method does not alter the compensability of the claim. Of the 528 cases listed on the CD, 152 cases have been identified as potentially compensable and need to be reopened for a rework of the dose reconstruction based on guidance provided in the PER. The NIOSH list will be reviewed to ensure that the identified lymphoma cases are sorted by district office. The list and accompanying CD’s will be provided to the appropriate district offices under separate cover. DEEOIC will also produce a list identifying all lymphoma cases that are potentially affected by OCAS-PER-009. The NIOSH and DEEOIC lists will be compared by National Office to ensure that all potential lymphoma cases with a dose reconstruction performed prior to February 10, 2006, that resulted in a <50% POC, are identified. The DEEOIC list will be provided to the appropriate district offices under separate cover with additional guidance.
  2. In the exercise of the Director’s discretion over the reopening process, the Director is delegating limited authority to the District Director to sign Director’s Orders for reopening. This delegated authority is limited to reopenings for those cases that are affected by the PER established for lymphoma dose reconstructions. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.
  3. For all lymphoma cases identified by NIOSH as having the potential for compensability based on the change in lymphoma dose reconstruction methodology, the responsible District Director should issue a Director’s Order vacating the final decision and reopening the claim. The Director’s Order should state that the case is being reopened as a result of the change in scientific methodology by which the dose reconstruction for lymphoma is performed, and that a rework of the dose reconstruction is necessary based on guidance provided in OCAS-PER-009. A sample Director’s Order is included as Attachment 2. The District Director should code the case as “MN” (NO Initiates Review for Reopening) with a status effective date as the effective date of this bulletin.

Upon reopening the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction. The status effective date of the “MD” code is the date of the Director’s Order. Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.

  1. Once the claim has been reopened, the responsible CE refers the case to NIOSH for a rework of the dose reconstruction. For these cases only, a rework request to the National Office Health Physicist is not required. Instead, the CE should complete an amended NIOSH Referral Summary Document (ANRSD) and forward the ANRSD to the Public Health Advisor (PHA) assigned to the district office at NIOSH. The ANRSD should include the following statement in the “DOL Information” section, “Rework request due to OCAS-PER-009 and any other applicable modifications.” The CE should also:
  2. Send a letter to the claimant explaining that the case has been returned to NIOSH for a rework of the dose reconstruction as a result of a change in the dose reconstruction methodology as outlined in OCAS-PER-009. A sample letter to the claimant is included as Attachment 3.
  3. Send a copy of this letter to the PHA at NIOSH assigned to the DO along with the weekly DO submissions to NIOSH. The dates on the ANRSD and the letter to the claimant must both be the same, since this will be the date used for the status code entry into ECMS. The CE should code the case as “NI” (Sent to NIOSH) and select the “PEP” (Rework based on Program Evaluation Plan) reason code. (Since this is considered a new dose reconstruction, the CE should not change the existing NR/DR status code to NR/RW as typically done for rework cases.)
  4. Upon receipt of the new dose reconstruction report that incorporates NIOSH’s findings from OCAS-PER-009, the CE proceeds in the usual manner and prepares a recommended decision. The CE should code the case as “NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction Received-POC) reason code. The status effective date will be the date the dose reconstruction is date-stamped into the District Office. 7. For those cases NIOSH determined there is no change in the compensability of the claim, the CE is to: print a copy of the “Claim Review in Support of Program Evaluation Report” from the NIOSH CD for inclusion in the case file and send a copy along with a letter to the claimant(s) advising them of the change in the dose reconstruction model. The letter states that while a change has occurred in the target organ used to conduct the dose reconstruction in the claim, NIOSH has determined it does not change the outcome of the case. However, the claimant may still request a reopening of the claim for a rework of the radiation dose reconstruction. A sample letter to the claimant(s) is included as Attachment 4.
  5. If a claimant requests a reopening of his/her claim as a result of the PER regardless of whether the case is identified in the CD from NIOSH, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin. Upon receipt of the claimant’s requests for reopening, the District Director should code the case as “MC” (Claimant Requests Reopening). The status effective date is the postmark date, if available, or the date the request is received in the DO or FAB, whichever is earlier. Upon reopening the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction. The status effective date of the “MD” code is the date of the Director’s Order.
  6. FAB personnel must be vigilant for any lymphoma cases with a recommended decision to deny. If lymphoma is claimed and the dose reconstruction was conducted prior to February 10, 2006, the recommended decision should be remanded to the district office in the usual manner. The remand should direct the district office to refer the case back to NIOSH for a rework as a result of the PER for lymphoma cases. The CE should code the case as “F7” (FAB Remand) with a “F7J” (Dose Reconstruction needs to be Reworked) reason code. The status effective date will be the date of the FAB remand.
  7. A period of 90 calendar days, effective with receipt of the cases listing, is granted for case files affected by this PER for the district office to either refer the case to NIOSH for a rework of the dose reconstruction or to send a letter to the claimant(s) advising them of NIOSH’s change in the dose reconstruction methodology.

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

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Attachment-1

Attachment-2

Attachment-3

Attachment-4

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

Page 518

07-26 Supplemental Guidance for Additional Cases Affected by NIOSH’s Program

Evaluation Report for Lymphoma.

EEOICPA BULLETIN NO. 07-26

Issue Date: August 8, 2007

Effective Date: March 8, 2007

Expiration Date: August 8, 2007

Subject: Supplemental Guidance for Additional Cases Affected by NIOSH’s Program Evaluation Report for Lymphoma.

Background: On June 15, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Bulletin 07-21, NIOSH’s Program Evaluation Report for Lymphoma. EEOICPA Bulletin 07-21 provided guidance on processing cases that were identified by NIOSH as potentially affected by the release of OCAS-PER-009, Target Organs for Lymphoma.

This Bulletin provides guidance for those cases identified by DEEOIC as being potentially affected by the release of OCAS-PER-009, in which a “Claim Review in Support of Program Evaluation Report (PER)” was not received and the case contains a final decision to deny based on a

lymphoma diagnosis and a POC of less than 50%. References: OCAS-TIB-012 Rev-01, “Selection for internal and external dosimetry target organs for lymphatic/hematopoietic cancers”; OCAS-PEP-009 Rev-00, “Program Evaluation Plan: Evaluation of the Change in Target Organs for Dose Reconstruction Involving Lymphoma,” approved on December 8, 2006; OCAS-PER-009 Rev-00, “Target organs for lymphoma” dated March 8, 2007, viewed at http://www.cdc.gov/niosh/ocas/pdfs/pers/oc-per9-r0.pdf.

Purpose: To provide procedures for processing claims identified by DEEOIC that do not have an individual PER.

Applicability: All staff.

Actions:

  1. In OCAS-PER-009 (Attachment 1), NIOSH determined that a change is required for internal and external dosimetry target organs used for dose reconstruction for lymphoma cases that were performed prior to February 10, 2006, and deemed non-compensable on the basis of a less than 50% Probability of Causation (POC). NIOSH found that the change in the target organ used for dose reconstructions increases the organ dose, thereby resulting in a higher POC. As such, certain lymphoma cases containing a final decision to deny based on a POC of less than 50% need to be reopened and returned to NIOSH for a new dose reconstruction. All lymphoma dose reconstructions completed after February 10, 2006, use the correct target organ selection. The completion date of the dose reconstruction is determined by the “Calculations Performed by” date found on the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation Program Act. No action is required for a final decision to deny a cancer for a less than 50% POC, if the applicable dose reconstruction has a “Calculations Performed by” date after February 10, 2006. 2. Both NIOSH and DEEOIC produced separate lists identifying all lymphoma cases that are potentially affected by OCAS-PER-009. The NIOSH and DEEOIC lists were compared by National Office to ensure that all potential lymphoma cases with a dose reconstruction performed prior to February 10, 2006, that resulted in a less than 50% POC were identified. The NIOSH list of cases was provided to the appropriate district offices on June 15, 2007, with instructions on retrieving a copy of NIOSH’s “Claim Review in Support of Program Evaluation Report” for each corresponding case file from the DEEOIC Shared Drive. The DEEOIC list of cases (cases that were not on the list provided by NIOSH and are the subject of this directive) will be distributed to the appropriate district offices under separate cover. A “Claim Review in Support of Program Evaluation Report” is not available for these cases. As such, it is necessary for these cases to be reviewed for possible reopening and return to NIOSH for a new dose reconstruction.
  2. In the exercise of the Director’s discretion over the reopening process, the Director is delegating limited authority to the District Director to sign Director’s Orders for reopening. This delegated authority is limited to reopenings for those cases that are potentially affected by the PER established for lymphoma dose reconstructions. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.
  3. For all lymphoma cases on the DEEOIC list, with a confirmed diagnosis of lymphoma (ICD-9 200-208.91), the responsible Claims Examiner (CE) must review the NIOSH Report of Dose Reconstruction under the Energy Employees Occupational Illness Compensation. If the “Calculations Performed by” date is on or before February 10, 2006, and the POC is less than 50%, the responsible District Director should issue a Director’s Order vacating the final decision and reopening the claim. The Director’s Order should state that the case is being reopened as a result of the change in scientific methodology by which the dose reconstruction for lymphoma is performed, and that a rework of the dose reconstruction is necessary based on guidance provided in OCAS- PER-009. A sample Director’s Order is included as Attachment 2. The District Director should code the case as “MN” (NO Initiates Review for Reopening) with a status effective date as the effective date of this bulletin. Upon completing the Director’s Order to reopen the claim, the District Director should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code is not necessary). The status effective date of the “MD” code is the date of the Director’s Order. Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.
  4. Once the claim has been reopened, the responsible CE refers the case to NIOSH for a rework of the dose reconstruction. For cases affected by this bulletin, a rework request to the National Office Health Physicist is not required. Instead, the CE should complete an amended NIOSH Referral Summary Document (ANRSD) and forward the ANRSD to the Public Health Advisor (PHA) assigned to the district office at NIOSH. The ANRSD should include the following statement in the “DOL Information” section, “Rework request due to OCAS-PER-009 and any other applicable modifications.” The CE should also:
  5. Send a letter to the claimant explaining that the case has been returned to NIOSH for a rework of the dose reconstruction as a result of a change in the dose reconstruction methodology as outlined in OCAS-PER-009. A sample letter to the claimant is included as Attachment 3.
  6. Send a copy of this letter to the PHA at NIOSH assigned to the DO along with the weekly DO submissions to NIOSH. The dates on the ANRSD and the letter to the claimant must both be the same, since this will be the date used for the status code entry into ECMS. The CE should code the case as “NI” (Sent to NIOSH) and select the “PEP” (Rework based on Program Evaluation Plan) reason code. (Since this is considered a new dose reconstruction, the CE should not change the existing NR/DR status code to NR/RW as typically done for rework cases. In addition, the existing POC should not be deleted from ECMS.)
  7. Upon receipt of the new dose reconstruction report that incorporates NIOSH’s findings from OCAS-PER-009, the CE proceeds in the usual manner and prepares a recommended decision. The CE should code the case as “NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction Received-POC) reason code. The status effective date will be the date the dose reconstruction is date-stamped into the District Office. The POC should be updated in ECMS based on the new dose reconstruction.
  8. It is possible that during the course of the review of these cases, NIOSH may supply the National Office with an individual Program Evaluation Report (PER) or Individual Case Evaluation (ICE) form for each case (or a PER that represents a population of cases) potentially affected by the PER.

The individual PER or ICE will serve as documentation that the case file has been reviewed by NIOSH and that NIOSH has determined that:

  • the change to the scientific methodology outlined in the PER affects the outcome of the claim and a new dose reconstruction is required, or
  • the change to the scientific methodology outlined in the PEP/other modifications, does not affect the outcome of the claim and a new dose reconstruction is not required.

If an individual PEP/ICE is received indicating that a new dose reconstruction is required, the case should be reopened/referred to NIOSH (if not already at NIOSH) for a new dose reconstruction following procedures as outlined in this bulletin.

If an individual PEP/ICE is received indicating that a new dose reconstruction is not required, but lymphoma is the diagnosed condition and the dose reconstruction was performed prior to February 10, 2006, the CE is to send a copy of the individual PEP/ICE along with a letter to the claimant(s) advising them of the change in the dose reconstruction model. The letter states that while a change has occurred in the target organ used to conduct the dose reconstruction in the claim, NIOSH has determined it does not change the outcome of the case. However, the claimant may still request a reopening of the claim for a rework of the radiation dose reconstruction. A sample letter to the claimant(s) is included as Attachment 4.

NOTE: A PER/ICE cannot be used in lieu of a dose reconstruction after a reopening is issued. A new dose reconstruction must be received and the new POC must be entered in ECMS. If an individual PER or ICE is received in the National Office, it will be forwarded to the appropriate district office for inclusion in the case file.

  1. If a claimant requests a reopening of his/her claim as a result of the PER for lymphoma, regardless of whether the case is identified by NIOSH or DEEOIC, the case file must be evaluated to determine whether or not the claim warrants a reopening (unless DEEOIC sent a letter to the claimant as instructed under Action Item #7). Simply identifying OCAS-PER-009 is not considered new evidence and is not sufficient to warrant a reopening. A reopening should be granted only if the evidence of file supports a diagnosis of lymphoma and the dose reconstruction was performed prior to February 10, 2006 and resulted in a less than 50% POC. If these requirements are met, the District Director should issue a Director’s Order reopening the claim following the procedures as outlined in this Bulletin.

Upon receipt of the claimant’s requests for reopening, the District Director should code the case as “MC” (Claimant Requests Reopening). The status effective date is the postmark date, if available, or the date the request is received in the DO or FAB, whichever is earlier.

For all claimant requests for reopening that do not meet the criteria for reopening, the District Director should prepare a memorandum to the Director of DEEOIC and forward the case file to National Office for review.

  1. A period of 120 calendar days, effective with receipt of the case listing that will be sent under separate cover, is granted for case files affected by this PER for the district office to issue a Director’s Order reopening the cases and returning the case file to NIOSH for a new dose reconstruction.

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

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Distribution List No. 1

Distribution List No. 7

Final Decisions

Page 161

EEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. Your claim for survivor benefits under Part E is accepted and you are awarded compensation in the amount of $125,000.00 for the death due to non-Hodgkin’s lymphoma with metastases to the spine, brain, and lung. Your claim for survivor benefits under Part B of EEOICPA is denied.

STATEMENT OF THE CASE

On October 30, 2006, you filed a Form EE-2 claiming survivor benefits under EEOICPA as a surviving child of [Employee], hereinafter referred to as “the employee,” due to the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors. You indicated your belief on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC). You submitted a child support order establishing that your date of birth was May 2, 1991, and that the employee was your father.

A November 14, 2003 pathology report diagnosed the employee with non-Hodgkin’s lymphoma. The employee’s death certificate established the date of death as June 11, 2006, that the cause of death was cardiopulmonary arrest with another significant condition of lymphoma, and that there is no surviving spouse. Also submitted was medical evidence supporting the diagnoses of metastatic lung, brain and spine cancer.

On Form EE-3, you alleged that the employee worked as a laboratory technician at the Savannah River Site (SRS) in Aiken, South Carolina, in 1990 or 1991, and that he wore a dosimetry badge. The Department of Energy (DOE) confirmed that the employee worked at the SRS from January 24, 1991 to March 18, 1992.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers. These data have been organized into a Site Exposure Matrix (SEM), which allows claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. Data retrieved from SEM was examined to determine if there was any identified toxic substance that had a health effect relating to the claimed illnesses. The district office examined data from SEM but was unable to identify any toxic substance for the employee’s labor category that had a health effect relating to the claimed illnesses.

In a letter dated April 12, 2007, the Jacksonville district office advised you of the requirement under Part E to establish that it is at least as likely as not that exposure to toxic substances at a DOE facility was a significant factor in causing, aggravating, or contributing to the claimed illness and the employee’s death from the claimed illness. You were also asked to submit additional employment information regarding the employee’s job title. You were given time to respond. No other medical evidence was received.

To determine the probability of whether the employee sustained his cancer in the performance of duty, as required to establish entitlement under Part B of EEOICPA, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction. NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed. A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”

You signed Form OCAS-1 on March 19, 2008, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information provided to NIOSH. The district office received the final NIOSH Report of Dose Reconstruction on April 10, 2008. Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 13.22% probability that the employee’s cancer was caused by his radiation exposure at the SRS.

On April 25, 2008, the district office issued a decision recommending denial of your claim for survivor benefits under both Part B and Part E of EEOICPA because the probability of causation was less than 50% and because it was not at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma and death. An addendum advised you of your right to file objections and/or request a hearing within sixty days of issuance. That period ended on June 24, 2008. To date, no objection or request for hearing has been received. The FAB conducted an independent SEM search and found several toxic substances to which the employee may have been exposed in the course of his employment at the SRS. The case was then referred to a District Medical Consultant (DMC) for review and an opinion on the possible relationship between the employee’s illnesses and his occupational exposure to toxic substances. In a report dated May 1, 2008, the DMC opined that exposure to toxic substances at the SRS (including solvents, pesticides and benzene) was at least as likely as not a significant factor in causing, aggravating, or contributing to the employee’s non-Hodgkin’s lymphoma with lung, brain, and spinal metastases and that “the metastases to the spine, brain, and elsewhere significantly contributed to the employee’s death.”

The FAB performed an independent analysis of the NIOSH radiation dose reconstruction, confirmed the 13.22% probability of causation calculation, and hereby makes the following:

FINDINGS OF FACT

  1. On October 30, 2006, you filed a claim for survivor benefits under EEOICPA based on the employee’s non-Hodgkin’s lymphoma, lung lesions, and brain and back tumors.
  2. The employee was diagnosed with non-Hodgkin’s lymphoma on November 13 , 2003.
  3. The employee worked for Westinghouse Savannah River Company at the SRS from January 24, 1991 to March 18, 1992.
  4. The employee died on June 11, 2006 from cardiopulmonary arrest and lymphoma and was never married.
  5. You are the biological child of the employee and you were 15 years old at the time of the employee’s death.
  6. The probability that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure at the SRS was less than 50%.
  7. There is sufficient evidence in the file to establish that exposure to toxic substances at the SRS was a significant factor in causing, aggravating, or contributing to the employee’s non- Hodgkin’s lymphoma with metastases and that the metastases to the brain and spine significantly contributed to the employee’s death.

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

CONCLUSIONS OF LAW

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired. 20 C.F.R. § 30.310(a) (2008). 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 or if the claimant waives any objections to the recommended decision, the FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

The “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” and providing “all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.” 20 C.F.R. § 30.111. Any claim that “does not meet all the criteria for at least one of the categories, set forth in the regulations, must be denied.” 20 C.F.R. § 30.110(b), (c). Under Part B of EEOICPA, you meet the definition of a “child” and a “covered employee with cancer” is an individual with a “specified” cancer who is a member of the SEC, if and only if that individual contracted that “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee). 42 U.S.C. § 7384l(9)(A). The employee was not a member of the SEC.

Part B of the Act established a compensation program to provide a lump-sum payment and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium or silica while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors. A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility. 42 U.S.C. § 7384n(b).

Based on my review of the evidence of record and the recommended decision, I conclude that you are not entitled to compensation under Part B because the calculation of “probability of causation” does not show that there is a 50% or greater likelihood that the employee’s non-Hodgkin’s lymphoma was caused by radiation exposure received at a DOE worksite in the performance of duty. Therefore, your claim for benefits under Part B is denied.

You also meet the definition of a “covered” child under Part E of EEOICPA, 42 U.S.C. § 7385s-3(d) (2). Under Part E, specific criteria must be met to establish that the employee contracted an illness through exposure at a DOE facility. Under Part E, a “covered illnessEEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).

The evidence of record establishes that it is “at least as likely as not” that exposure to toxic substances at a DOE facility during a covered time period was a significant factor in causing the employee’s claimed illnesses of non-Hodgkin’s lymphoma with metastases to the brain and spine. I conclude that there is sufficient evidence to prove that toxic exposure at a DOE facility was at least as likely as not a significant factor in causing, aggravating, or contributing to the claimed condition(s) and to the employee’s death. Therefore, you are entitled to survivor benefits in the amount of $125,000.00 under Part E of EEOICPA.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Final Adjudication Branch

Page 181

EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under § 7384 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. For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma. The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge. A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978.

Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer. A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung. The record does not contain documentation demonstrating the employee was diagnosed with lymphoma. To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115. The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005. See 42 U.S.C. § 7384n(d). NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978. However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed. NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim. NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete. Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose. See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7.

Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer, and reported in its recommended decision that the probability the employee’s lung cancer was caused by his exposure to radiation while employed at NTS was at least 50%.

You provided copies of the death certificates of the employee and his spouse, copies of your birth certificates showing you are the natural children of the employee, and documentation verifying your changes of names, as appropriate.

The record shows that you ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4]) and [Claimant #5] filed claims with the Department of Justice (DOJ) for compensation under the Radiation Exposure Compensation Act (RECA). By letter dated May 20, 2005, a representative of the DOJ reported that an award under § 4 of the RECA was approved for you; however, the award was rejected by [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4].

On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma. On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

  1. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits.
  2. Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors.
  3. You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act.
  4. The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978.
  5. The employee was diagnosed with lung cancer on February 1, 1978.
  6. The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS.
  7. The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility.

CONCLUSIONS OF LAW

The evidence of record indicates that the worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 6, 1978. Medical documentation provided indicated the employee was diagnosed with lung cancer on February 1, 1978; however, there is no evidence showing the employee was diagnosed with lymphoma, and your claims based on lymphoma must be denied.

After establishing that a partial dose reconstruction provided sufficient information to produce a probability of causation of 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction, and the dose reconstruction was considered complete. See 42 C.F.R. § 82.10(k)(1).

The Final Adjudication Branch analyzed the information in the NIOSH Report of Dose Reconstruction and utilized the NIOSH-IREP to confirm the 63.34% probability that the employee’s cancer was caused by his employment at NTS. See 42 C.F.R. § 81.20. (Use of NIOSH-IREP). Thus, the evidence shows that the employee’s cancer was at least as likely as not related to his employment at NTS.

The Final Adjudication Branch notes that, in its Conclusions of Law, the recommended decision erroneously indicates the employee, [Employee], is entitled to compensation in the amount of $150,000.00; therefore, that Conclusion of Law must be vacated as the employee is deceased. See 42 U.S.C. § 7384s(a)(1).

The Final Adjudication Branch notes that the record shows the employee passed away on February 4, 1978. However, his employment history indicates he worked at NTS until February 6, 1978. Consequently, for purposes of administration of the Act, his employment is considered to have ended on February 4, 1978.

Based on the employee’s covered employment at NTS, the medical documentation showing his diagnosis of lung cancer, and the determination that the employee’s lung cancer was “at least as likely as not” related to his occupational exposure at NTS, and thus sustained in the performance of duty, the employee is a “covered employee with cancer,” under 42 U.S.C. § 7384l. See 42 U.S.C. § 7384l(9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2. Further, as the record indicates there is one other potential beneficiary under the EEOICPA, you are each ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) entitled to survivor compensation under 42 U.S.C. § 7384 in the amount of $30,000.00. As there is evidence that another survivor is a child of the employee, and potentially an eligible survivor under the Act, the potential share ($30,000.00) of the compensation must remain in the EEOICPA Fund. See Federal (EEOICPA) Procedure Manual, Chapter 2-200.7c(2) (June 2004).

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

Page 285

EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On March 19, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted pulmonary fibrosis and lymphoma due to his employment as a uranium miner. On May 11, 2004, he also filed a Request for Review by Physicians Panel with the Department of Energy (DOE) under former Part D of EEOICPA for pulmonary fibrosis and lymphoma. With the repeal of Part D and the enactment of Part E, the employee’s Part D claim was treated as a claim for benefits under Part E.

On August 16, 2002, FAB issued a final decision accepting the claim under Part B for pulmonary fibrosis and awarded the employee $50,000.00 in lump-sum compensation. In that decision, FAB noted that the Department of Justice (DOJ) confirmed that the employee was an award recipient under section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 note, for the condition of pulmonary fibrosis. On May 21, 2007, FAB issued another final decision that accepted the claim for pulmonary fibrosis, this time under Part E, and awarded the employee medical benefits under Part E for that covered illness. On November 3, 2008, FAB also issued a final decision that awarded the employee impairment benefits under Part E based on his accepted pulmonary fibrosis; the award of $142,500.00 was for his 57% whole body impairment. In support of his Part E claim for lymphoma, the employee submitted an employment history on Form EE-3, showing that he had worked as a miner for Kerr-McGee at the KerMac 24 Mine in Grants, New Mexico, from approximately September 1, 1959 to March 1, 1960, and for Phillips Petroleum/Sandstone at the Ambrosia Lake Mine, from approximately March 1, 1960 to November 30, 1960. DOJ submitted employment evidence it had collected in connection with his RECA claim, including an Itemized Statement of Earnings from the Social Security Administration and a Uranium Miner’s study, both of which verified that the employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960. The employee also submitted a pathology report, dated November 10, 1998, in which Dr. Glenn H. Segal diagnosed B-cell non-Hodgkin’s lymphoma involving bone marrow. He also submitted a November 18, 1998 report in which Dr. Jo-Ann Andriko confirmed the diagnosis of malignant lymphoma.

The district office reviewed source documents used to compile the U. S. Department of Labor’s Site Exposure Matrices (SEM)[1]to determine whether it was possible that, given the employee’s labor category and the work processes in which he was engaged, he was exposed to a toxic substance in the course of his employment that has a causal link with his claimed lymphoma. The district office determined that SEM did not have such a link and by letters dated August 14, 2009, and September 14, 2009, it advised the employee that there was insufficient evidence to establish that exposure to a toxic substance at a DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma. The district office requested that he provide further evidence of the link necessary to support his claim and afforded him 30 days to provide the requested evidence. In response, on October 13, 2009, he submitted a letter in which he stated that his lymphoma was the result of his employment as a uranium miner. The letter was accompanied by the following documents:

  1. An article entitled “Radon Exposure and Mortality Among White and American Indian Uranium Miners: An Update of the Colorado Plateau Cohort.”
  2. An article entitled “Radiation Exposure Tied to Lymphoma Risk in Men.”
  3. An article entitled “Occupational Exposures and Non-Hodgkin’s Lymphoma: Canadian Case-Control Study.”
  4. An article on non-Hodgkin’s lymphoma.
  5. An abstract from the update of mortality from all causes among white uranium miners from the Colorado plateau study group.
  6. A section from the Federal Register Notice regarding changes to the dose reconstruction target organ selection for lymphoma under EEOICPA.
  7. A letter dated August 17, 2001 in which Dr. Thomas P. Hyde opined that it was highly likely that the employee’s lymphoma was caused by his exposure to radiation during his employment as a uranium miner.

To determine the probability of whether the employee contracted cancer in the performance of duty under Part E due to radiation, the district office referred his claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On November 10, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine the probability of causation (PoC). The district office calculated that there was a 17.10% probability that the employee’s lymphoma was caused by radiation exposure at the uranium mines in which he worked.

On December 10, 2009, the district office issued a recommended decision to deny the employee’s Part E claim for lymphoma on the ground that it was not “at least as likely as not” (a 50% or greater probability) that his lymphoma was caused by his employment at the uranium mines where he worked.

The district office further concluded that there was no evidence meeting the “at least as likely as not” causation standard that exposure to a toxic substance other than radiation at either a DOE facility or a section 5 mine was a significant factor in aggravating, contributing to or causing the claimed illness of lymphoma.

Following issuance of the recommended decision, FAB independently analyzed the information in the NIOSH report and confirmed the district office’s PoC calculation of 17.10%. Based on a thorough review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. The employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960.
  2. He was diagnosed with lymphoma on November 10, 1998.
  3. Based on the dose reconstruction performed by NIOSH, the PoC (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s lymphoma was 17.10%, which is less than 50%.
  4. There is insufficient evidence in the file to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing the employee’s lymphoma.

Based on a review of the aforementioned facts, FAB also hereby makes the following:

CONCLUSIONS OF LAW

Part E of EEOICPA provides compensation to covered DOE contractor employees who have contracted a “covered illness” through exposure at a DOE facility in accordance with § 7385s-2. Section 7385s(2) defines a “covered DOE contractor employee” as any DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure at a DOE facility, and § 7385s(2) defines a “covered illness” as an illness or death resulting from exposure to a toxic substance. Pursuant to 42 U.S.C. § 7385s-5(2), a section 5 uranium worker determined under § 7385s- 4(c) to have contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill will be eligible for Part E benefits to the same extent as a DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure to a toxic substance at a DOE facility.

To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee must show that he or she has been diagnosed with cancer; was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and that the cancer was at least as likely as not related to exposure to radiation at a DOE facility or a RECA section 5 facility. Section 30.213 of the implementing regulations (20 C.F.R. § 30.213(c) (2009)) states that: The Office of Workers’ Compensation Programs (OWCP) also uses the Department of Health and Human Services (HHS) regulations when it makes the determination required by § 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to or causing the employee’s radiogenic cancer claimed under Part E of the Act. For cancer claims under Part E of the Act, if the PoC is less than 50% and the employee alleges that he was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part. FAB notes that the PoC calculations in this case were performed in accordance with 20 C.F.R. § 30.213. FAB independently analyzed the information in the NIOSH report, confirming the district office’s PoC calculation of 17.10%.

Section 30.111(a) of the regulations states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.” 20 C.F.R. § 30.111(a).

As found above, the case file does not contain sufficient evidence to enable the employee to meet his burden of proof to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma.

In the absence of evidence to support that it is at least as likely as not that exposure to a toxic or radiological substance at a DOE facility or a RECA section 5 facility was a significant factor in aggravating, contributing to, or causing his lymphoma, FAB concludes that the employee has failed to establish that he contracted the “covered illness” of lymphoma, and his claim under Part E of EEOICPA is denied.

Kathleen M. Graber

Hearing Representative

Final Adjudication Branch

[1] SEM is a database of occupational categories, the locations where those occupational categories would have been

performed, a list of process activities at the facility and the locations where those processes occurred, a list of toxic

substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic

substances associated with those conditions.

Page 342

EEOICPA Fin. Dec. No. 55875-2004 (Dep’t of Labor, November 15, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claims 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, the Final Adjudication Branch accepts [Claimant #1/Employee’s Spouse’s] claim for compensation under 42 U.S.C. § 7384 and denies [Claimant #2’s], [Claimant #3’s] and [Claimant #4’s] claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On March 22, 2004, [Claimant #2] filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as a surviving child of [Employee]. On March 29, 2004, [Employee’s Spouse] filed a Form EE-2 claiming benefits as the surviving spouse of [Employee]. [Claimant #2] claimed that her father had been diagnosed with leukemia, melanoma (skin cancer) and prostate cancer. [Employee’s Spouse] claimed that her husband had been diagnosed with lymphoma, hairy cell leukemia, basal and squamous cell cancer, and b-cell lymphoma. The medical evidence of record includes several pathology reports which diagnose various squamous cell cancers of the skin. A pathology report dated January 29, 1997, presents a diagnosis of malignant lymphoma, diffuse, large cell type, and subsequent records support that diagnosis. A reference is noted regarding a history of hairy cell leukemia in September 1994.

A copy of a marriage certificate shows that [Employee’s Spouse’s previous name] and [Employee] were wed on June 16, 1986. This document indicates that both parties were widowed at the time of marriage and that [Employee’s Spouse’s previous name] parents’ last name was [Employee’s Spouse’s maiden name]. A copy of the employee’s death certificate shows that he died on September 15, 1997, and identifies [Employee’s Spouse’s maiden name] as his surviving spouse. A copy of a death certificate for [Employee’s Spouse’s first husband] shows that he died on October 7, 1984, and identifies [Employee’s Spouse’s previous name] as his surviving spouse. A copy of a birth certificate identifies [Claimant #2’s maiden name] as the child of [Employee] and a copy of a marriage certificate establishes the change of her last name to [Claimant #2’s married name]. [Claimant #3] and [Claimant #4] also provided their birth certificates showing [Employee] as their father. [Claimant #4] provided a marriage certificate showing her change in surname from [Claimant #4’s maiden name] to [Claimant #4’s married name]. [Employee’s Spouse] provided a Form EE-3 (Employment History) in which she states that her husband worked as a pipefitter for Grinnell at the Portsmouth Gaseous Diffusion Plant (GDP) in Portsmouth, OH, from 1953 to 1955. [Claimant #2] provided an employment history in which she states that her father worked as a pipefitter for Grinnell and Myer Brothers at the Portsmouth GDP in Piketon, OH. She indicates that she does not know the dates of employment. Neither claimant indicates that the employee wore a dosimetry badge. The Portsmouth GDP in Piketon, OH, 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 Worker Advocacy Facility List.

An affidavit was provided by Allen D. Volney, a work associate, who reports that [Employee] was employed by the Grinnell Corp at the Portsmouth GDP as a pipefitter from 1953 to 1955 and that he worked with the employee at that location during that time period. An itemized statement of earnings from the Social Security Administration (SSA) shows that the employee was paid wages by the Blaw-Knox Company and by the ITT Grinnell Corp. during the fourth quarter (October to December) of 1953, and by the ITT Grinnell Corp. beginning in the first quarter (January to March) of 1954 and ending in the third quarter (July to September) of 1955. This is because the maximum taxable earnings were met for the year during that quarter.

The DOE was unable to confirm the reported employment. However, they provided a personnel clearance master card documenting that [Employee] was granted a security clearance with Blaw-Knox (Eichleay Corp.) and (Peter Kiewit Sons Co.) on January 8, 1954. No termination date is shown. On April 8, 2004, the district office received a copy of an ante-nuptial agreement, signed by [Employee] and [Employee’s Spouse’s previous name] on June 9, 1968, which was recorded in the office of the County Clerk for Pike County, Kentucky, on June 10, 1986. In pertinent part, that document states that “each party hereby releases and discharges completely and forever, the other from. . .benefits or privileges accruing to either party by virtue of said marriage relationship, or otherwise, and whether the same are conferred by statutory law or the commonlaw of Kentucky, or any other state or of the United States. It is the understanding between the parties that this agreement, except as otherwise provided herein, forever and completely adjusts, settles, disposes of and completely terminates any and all rights, claims, privileges and benefits that each now has, or may have reason to believe each has against the other, arising out of said marriage relationship or otherwise, and whether the same are conferred by the laws of the Commonwealth of Kentucky, of any other state, or of the United States, and which are now, or which may hereafter be, in force or effect.” In a letter dated April 12, 2004, the district office advised [Claimant #2] that a review of the rules and regulations of this program found them to be silent with regard to a “pre-nuptial agreement.” The letter further stated that adult children may be eligible for compensation as survivors if there is no surviving spouse of the employee.

On May 6, 2004, the Cleveland district office issued a recommended decision concluding that [Employee] is a DOE contractor employee as defined by 42 U.S.C. § 7384l(11)(B)(ii) and a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with malignant lymphoma, which is a specified cancer under 42 U.S.C. § 7384l(17). For those reasons the district office concluded that [Employee’s Spouse], as his surviving spouse, is entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. The district office also concluded that [Claimant #2] is not entitled to compensation as a surviving child, because the employee is survived by a spouse. See 42 U.S.C. § 7384s(e)(1)(A). The district office also stated that Grinnell Corp. is a known subcontractor to Peter Kiewit Son’s Co. at the Portsmouth facility in the 1950s.

On June 18, 2004, the Final Adjudication Branch (FAB) received a letter of objection from [Claimant #2]. [Claimant #2] stated that she believes that [Employee’s Spouse] gave up any rights to any benefits based on the ante-nuptial agreement and that the benefits granted to [Employee’s Spouse] by the May 6, 2004, recommended decision should be awarded to the surviving children.

On June 21, 2004, the FAB received a letter from the authorized representative of the three children/claimants objecting to the recommended decision of May 6, 2004, on behalf of each of them.

On June 22, 2004, the FAB advised the representative that [Claimant #4] and [Claimant #3] had not filed claims for benefits and that only claimants who had been issued a recommended decision may object to such a decision. On July 2, 2004, the FAB received a letter from the authorized representative of [Claimant #3] and [Claimant #4] to the effect that they were claiming entitlement to benefits under the EEOICPA as surviving children of [Employee]. On July 6, 2004, the FAB received a copy of a death certificate which shows that [Employee’s first wife] died on March 13, 1985, and identifies [Employee] as her surviving spouse. On July 23, 2004, the FAB issued a remand order which vacated the recommended decision and returned the case to the district office to adjudicate the new claims, to include any additional development which might be warranted, and to issue a new recommended decision to all claimants.

On August 16, 2004, [Claimant #3] and [Claimant #4] filed Forms EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as surviving children of [Employee]. Both claimants state that the employee had been diagnosed with leukemia, myeloma, and lymphoma. On August 20, 2004, the Cleveland district office issued a recommended decision concluding that [Employee] is a DOE contractor employee as defined by 42 U.S.C. § 7384l(11)(B)(ii) and a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with malignant lymphoma, which is a specified cancer under 42 U.S.C. § 7384l(17). For those reasons the district office concluded that [Employee’s Spouse], as his surviving spouse, is entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s. The district office also concluded that [Claimant #2], [Claimant #3], and [Claimant #4] are not entitled to compensation as surviving children, because the employee is survived by a spouse. See 42 U.S.C. § 7384s(e)(1)(A).

The district office also finds that [Employee] was employed by Grinnell Corp. as a DOE subcontractor employee from September 1, 1954, to December 31, 1955.

On August 27, 2004, the FAB received written notification that [Employee’s Spouse] waives any and all rights to file objections to the recommended decision. On September 17, 2004, the FAB received a letter from [Claimant #4] objecting to the award of benefits to [Employee’s Spouse]. On October 19, 2004, the FAB received a letter from the authorized representative of the three children/claimants based on a “valid ante-nuptial agreement” between [Employee’s Spouse] and [Employee] in which she expressly waived all rights to benefits which might arise from their marital relationship. It is argued that, although [Employee’s Spouse] is a “surviving spouse” pursuant to 42 U.S.C. § 7384s(e)(3)(A), she waived any and all rights as the surviving spouse of [Employee] to receive benefits under the Act by entering into an ante-nuptial agreement by which she clearly waived the right to any federal benefits arising after the date of the agreement. It is argued that, in the absence of a clear mandate from the statute to ignore a valid ante-nuptial agreement, there is no reason that the Department should not follow the current state of the law and honor the ante-nuptial agreement. Finally, it is argued that, because [Employee’s Spouse] has waived any and all rights to the benefits provided under the Act, the children/claimants are entitled to benefits pursuant to 42 U.S.C. § 7384s(e)(1)(B).

Pursuant to the authority granted by 20 C.F.R. § 30.317, the recommended decision was vacated and the case was remanded to the district office on November 19, 2004, so that a determination could be made regarding the effect of the ante-nuptial agreement on the claimants’ entitlement to compensation under the Act.

On March 18, 2005, the Cleveland district office issued a recommended decision in which they note that the issue of the effect of the ante-nuptial agreement was referred to the Branch of Policies, Regulations, & Procedures for review, and was subsequently forwarded to the Solicitor of Labor (SOL) for expert guidance. On January 4, 2005, the SOL opined that Congress intended, through 42 U.S.C. § 7385f(a), that persons with valid claims under the statute are not permitted to transfer or assign those claims. SOL determined that [Employee’s Spouse] is entitled to any award payable under the EEOICPA even if she knowingly entered into an otherwise legally valid agreement in which she promised to forego that award. Since it has been determined that the deceased employee is a covered employee with cancer, by operation of 42 U.S.C. §§ 7384s(e)(1)(A) and 7385f(a), [Employee’s Spouse] is entitled to receive the award payable in this claim. In conclusion, SOL opined, “an agreement to waive benefits to which one is entitled to under the EEOICPA, or to otherwise assign, or transfer the right to such payments, is legally prohibited, and has no effect on the party to whom an award is paid under the statute. The order of precedence established must be followed in this case and as a result, [Employee’s Spouse] is entitled to payment.”

Based on that opinion, the Cleveland district office found that [Employee’s Spouse’s] ante-nuptial agreement did not affect her entitlement to payment. The district office concluded that [Employee] is a covered employee under 42 U.S.C. § 7384l(1)(B), as he is a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(A). [Employee] is a member of the Special Exposure Cohort, as defined by 42 U.S.C. § 7384l(14)(A)(ii), and was diagnosed with malignant lymphoma cancer, which is a specified cancer per 42 U.S.C. § 7384l(17)(A). The district office also concluded that as [Employee] is a covered employee and is now deceased, his eligible survivor is entitled to compensation of $150,000.00, per 42 U.S.C. § 7384s(a)(1).

Lastly, the district office concluded that [Employee’s Spouse] is the surviving spouse of [Employee], per 42 U.S.C. § 7384s(e)(3)(A); and, as there is no evidence of a living minor child of [Employee], the exception provided by 42 U.S.C. § 7384s(e)(1)(F) does not apply and, pursuant to 42 U.S.C. § 7384s(e)(1)(A), [Employee’s Spouse] is thus entitled to the above mentioned compensation of $150,000.00, and that [Claimant #2], [Claimant #3] and [Claimant #4] are not entitled to compensation pursuant to 42 U.S.C. § 7384s(e)(1)(A).

On March 28, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waives any and all rights to file objections to the recommended decision. On April 15 and May 17, 2005, the Final Adjudication Branch received [Claimant #2’s], [Claimant #3’s], and [Claimant #4’s] objections to the district office’s March 18, 2005, recommended decision denying their claims, and a request for an oral hearing to present their objections. The hearing was held on August 23, 2005, in Bowling Green, KY.

In accordance with the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. 20 C.F.R. § 30.314(e), and (f). By letter dated September 9, 2005, the transcript was forwarded to [Claimant #2], [Claimant #3] and [Claimant #4]. By letter dated September 30, 2005, the transcript was forwarded to [Employee’s Spouse]. [Claimant #4] provided her comments on the transcript. No other responses were received.

OBJECTIONS

The following objections were presented:

  1. The claimants disagreed with the SOL January 4, 2005, opinion, and argued that the SOL improperly relied upon judicial interpretations of statutory provisions in other federal programs when it was concluded that an ante-nuptial agreement cannot override EEOICPA’s statutory provision of survivor benefits to the spouse of a deceased covered employee.
  2. It was requested that the FAB issue a finding regarding the legality of the prenuptial agreement that [Employee] and [Employee’s Spouse] signed on June 9, 1986. Copies of the decisions in Callahan v. Hutsell, Callahan & Buchino, P.S.C., Revised Profit Sharing Plan, et al., 813 F. Supp. 541 (W.D. Ky. 1992), vacated and remanded, 14 F.2d 600 (Table), 1993 WL 533557 (6th Cir. 1993), were submitted in support of the proposition that contractual rights in ante-nuptial agreements in Kentucky have been recognized by the Court of Appeals for the Sixth Circuit, and also as support for their contention that EEOICPA’s prohibition against transfers or assignments is for the protection of covered employees only and not their survivors.
  3. It was requested that the FAB change the “finding of fact” in the March 18, 2005, recommended decision that the Cleveland district office received the SOL legal opinion that [Employee’s Spouse’s] antenuptial agreement did not affect her entitlement to an award to a “conclusion of law.” The first objection is in regard to whether a prenuptial agreement can effect a waiver of a claim for survivor benefits under EEOICPA. A spouse’s right to survivor benefits under EEOICPA is an entitlement or interest that is personal to the spouse and independent of any belonging to a covered employee. Section 7384s(e)(1)(A) of EEOICPA provides that if a covered Part B employee is deceased at the time of payment of compensation, “payment may be made only as follows: (A) If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to the surviving spouse.” The term “spouse” is defined in Part B as a “wife or husband of [the deceased covered Part B employee] who was married to that individual for at least one year immediately before the death of that individual. . . .” 42 U.S.C. § 7384s(e)(3)(A). As a result, it is clear that at the time [Employee’s Spouse] signed the prenuptial agreement on June 9, 1986, she was not yet a “spouse” because she did not satisfy the above-noted definition for Part B of EEOICPA. Therefore, she had no entitlement to or interest in survivor benefits at that time that she could have attempted to waive.

Whether or not [Employee’s Spouse] waived any rights under EEOICPA when she signed the prenuptial agreement, she is currently a “surviving spouse” as that term is defined in EEOICPA. Section 7384s(e) provides that payment shall be made to children of a covered employee only “[i]f there is no surviving spouse.” Accordingly, even if [Employee’s Spouse] has waived her right to survivor benefits, the covered Part B employee’s children are precluded from receiving those benefits as long as [Employee’s Spouse] is alive.

In Duxbury v. Office of Personnel Management, 232 F.3d 913 (Table), 2000 WL 380085 (Fed. Cir. 2000), the court denied a claim of a deceased employee’s children from a prior marriage that they were entitled, as opposed to the deceased employee’s widow, to any benefits attributable to their father’s civil service retirement contributions based upon a prenuptial agreement signed by their father and his widow. In upholding the administrative denial of their claim, the court noted that it is the “widow” or “widower” of a federal employee covered by the Civil Service Retirement System who is entitled to a survivor annuity under 5 U.S.C. § 8341(d), and that “widow” is statutorily defined as “the surviving wife of an employee” who was married to him for at least nine months immediately before his death. Noting that the prenuptial agreement governed property distribution and did not speak to the validity of the marriage, the court concluded that “because the petitioners cannot establish that [the widow] is ineligible for a survivor annuity under federal law, the Board did not err in affirming OPM’s decision denying the [children’s] claims.” Duxbury, 2000 WL 38005 at **3.

Even if a claimant could waive his or her entitlement to survivor benefits by signing a prenuptial agreement, such a waiver would be barred by 42 U.S.C. § 7385f(a), which states that “[n]o claim cognizable under [EEOICPA] shall be assignable or transferable.” Interpreting the anti-alienation provision within § 7385f(a) to prohibit the waiver of any interest in survivor benefits is consistent with the interpretation of other anti-alienation provisions by both the government and federal courts.

With regard to the second issue, under Part B of EEIOCPA, survivor benefits are paid to a “surviving spouse,” defined as an individual who was married to the deceased covered Part B employee for at least 12 months prior to the employee’s death. As in Duxbury, the prenuptial agreement signed by [Employee’s Spouse] would be relevant to Division of the Energy Employees Occupational Illness Compensation’s (DEEOIC) determination of her claim for survivor benefits only to the extent that it addresses the validity of [Employee’s Spouse’s] marriage to [Employee]. Since it does not, there is no reason for DEEOIC to consider the terms of the agreement, let alone make a finding on the legality of the agreement under Kentucky law, as requested by the claimants’ authorized representative.

With regard to the third issue, the FAB finds that the referenced sentence is most properly a conclusion of law rather than a finding of fact, and it is so stated below.

FINDINGS OF FACT

  1. [Claimant #2] filed a claim for survivor benefits on March 22, 2004. [Employee’s Spouse] filed a claim for survivor benefits on March 22, 2004. [Claimant #3] and [Claimant #4] filed claims for survivor benefits on August 16, 2004.
  2. [Employee] worked at the Portsmouth GDP, a covered DOE facility, from December 3, 1953 to December 21, 1955.
  3. [Employee] worked for a number of work days aggregating at least 250 work days during the period of September 1954 to February 1, 1992.
  4. [Employee] was diagnosed with malignant lymphoma cancer, a specified cancer, on January 29, 1997.
  5. [Employee’s Spouse] is the surviving spouse of [Employee] and was married to him for at least one year immediately prior to his death.
  6. [Claimant #2], [Claimant #3] and [Claimant #4] are the surviving children of [Employee].

CONCLUSIONS OF LAW

A claimant who receives a recommended decision from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310. In reviewing any objections submitted, the FAB will review the written record, in the manner specified in 20 C.F.R. § 30.314, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. I have reviewed the record in this case, as well as the objections raised and the evidence submitted before, during, or after the hearing, and must conclude that no further investigation is warranted.

Under the EEOICPA, for [Employee] to be considered a “member of the Special Exposure Cohort,” he must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

The evidence of record establishes that [Employee] worked in covered employment at the Portsmouth GDP, in Piketon, Ohio from December 3, 1953 to December 21, 1955. For SEC purposes, only employment from September 1954 to before February 1992 may be considered. His employment at the Portsmouth GDP from September 1, 1954 to December 21, 1955 meets the requirement of working more than an aggregate 250 days at a covered facility. See 42 U.S.C. § 7384l(14)(A). The record does not show whether [Employee] wore a dosimetry badge. However, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges. See Federal (EEOICPA) Procedure Manual, Chapter 2-500 (June 2002). On that basis, [Employee] meets the dlymphoma osimetry badge requirement. The Portsmouth GDP is recognized as a covered DOE facility from 1952 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. The evidence of record also establishes that [Employee] was diagnosed with malignant lymphoma, a specified cancer under 42 U.S.C. § 7384l(17)(A).

Based on the discussion above, [Claimant #2], [Claimant #3] and [Claimant #4] have not presented objections or evidence showing that [Employee’s Spouse] waived her eligibility to survivor benefits by signing the June 9, 1986 pre-nuptial agreement.

I have reviewed the record on this claim and the recommended decision issued by the district office. I find that the recommended decision is in accordance with the facts and the law in this case, and that [Employee’s Spouse], as the surviving spouse of the [Employee], is entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s. I also find that [Claimant #2], [Claimant #3] and [Claimant #4] are not entitled to compensation pursuant to 42 U.S.C. § 7384s(e)(1)(A).

Cleveland, Ohio

Tracy Smart

Hearing Representative

Final Adjudication Branch

Page 423

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

NOTICE OF FINAL DECISION ANDREVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

On April 19, 2004, you filed a Claim for Benefits under the EEOICPA, Form EE-1, with the Seattle district office, for prostate cancer, lung cancer, non-Hodgkin’s lymphoma and basal cell skin cancer.

You stated on the EE-3 form that you were employed by the Missouri Pacific Railroad, and worked periodically at the Destrehan Street Site of the Mallinckrodt Chemical Company, between October 31, 1957 and June 30, 1963. The Destrehan Street Plant was a Department of Energy (DOE) facility, where radioactive material was present, from 1942 to 1962 and again (for remediation) in 1995, according to the Department of Energy Office of Worker Advocacy Facility List website at http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm.

On April 28, 2004, you were informed of the medical evidence you had to submit to support that you had been diagnosed with cancer. No medical evidence was submitted.

On June 2, 2004, you were informed of the categories of employment for which compensation benefits may be paid for cancer, under 42 U.S.C. § 7384s of the Act. You were also advised of the kinds of evidence which you could submit to support that you had such employment.

You responded with a letter, received in the district office on June 25, 2004, explaining how your employment as a sales representative for the Missouri Pacific Railroad led to your calling on many firms, including Mallinckrodt’s Destrehan Street Plant, from October 1957 to June 1963. You stated that your employer “did not directly serve. . .Mallinckrodt but instead received freight cars by way of another railroad. . .which railroad switched the cars from the plant to the Missouri Pacific R.R. That then hauled the freight cars beyond. As such the Missouri Pacific R.R. became a party to the Bill of Lading contract, which was used by all transportors of freight.”

On July 21, 2004, the district office issued a recommended decision concluding you were not entitled to compensation, since the evidence did not support that you had employment which would render you a covered employee, as defined in 42 U.S.C. § 7384l of the EEOICPA. The decision also found that you had not submitted evidence establishing that you had cancer.

On August 19, 2004, you submitted an objection to the recommended decision, in which you reiterated that you were employed by the Missouri Pacific Railroad and that this employment took you to the Mallinckrodt Plant where you were exposed to contamination which, you believe, may have caused your cancers. With your objection, you submitted an employment document, as well as records of medical treatment you received. The employment document supported that you worked as a traffic representative and a track rail sales representative for the Missouri Pacific Railroad from May 22, 1957 to June 30, 1963. The medical records, including pathology reports, confirmed that you were diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer. Upon review of the case record, the undersigned makes the following:

FINDINGS OF FACT

  1. You filed a claim for benefits under the EEOICPA on April 19, 2004.
  2. You have been diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer.
  3. You were employed by the Missouri Pacific Railroad, as a traffic representative and a track rail sales representative, from May 22, 1957 to June 30, 1963.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

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

A “covered employee,” as defined in 42 U.S.C. § 7384l(1) of the EEOICPA, includes a “covered employee with cancer,” which, pursuant to 42 U.S.C. § 7384l(9)(B), may include a “Department of Energy employee” or a “Department of Energy contractor employee who contracted. . .cancer after beginning employment at a Department of Energy facility.”

A “Department of Energy contractor employee” is defined, in 42 U.S.C. § 7384l(11) of the Act, as an “individual who. . .was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months,” or, an “individual who. . .was employed at a Department of Energy facility by (i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”

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

You have not alleged, or submitted any evidence to support, that you were a Department of Energy employee or that you were in residence for at least 24 months, as a researcher at a Department of Energy facility. You also have not submitted any evidence or statements supporting that your employer, the Missouri Pacific Railroad, had a contractual relationship with the Department of Energy to provide management, remediation or any other services, at the Destrehan Street Plant facility of the Mallinckrodt Chemical Company. By your own statement, your employer merely hauled freight cars which had already been removed from the facility by another company. Therefore, the evidence fails to support that your employment with the Missouri Pacific Railroad was such as to qualify you as a “covered employee.”

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

Washington, DC

Richard Koretz

Hearing Representative

Page 842

EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted. No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation.

STATEMENT OF THE CASE

On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer. On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA. On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma.

On August 2, 2005, FAB issued a final decision accepting [Employee]’s claim for compensation under Part B for skin cancer. On January 29, 2007, FAB also issued a final decision accepting [Employee]’s claim under Part E for skin cancer, and under Parts B and E for lymphoma. On August 29, 2007, FAB issued a final decision denying [Employee]’s claim under Part E for his hearing loss. On December 27, 2007, FAB issued a final decision to accept [Employee]’s claim under Part E for chronic obstructive pulmonary disease (COPD). As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985.

On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00. On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee]. Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed [Claimant] as his attorney-in-fact. On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]’s behalf.

On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].

On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee]. She also submitted a copy of [Employee]’s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse.

The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.

Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]’s savings account via electronic funds transfer to the United States Treasury. There is no record indicating that these funds have been returned to the Treasury. On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death. On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.”

On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]’s surviving spouse. The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed. Accordingly, the district office concluded that survivor benefits were not payable.

OBJECTIONS

On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010. The representative argued that the adjudication of [Employee]’s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]’s death. The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits. (Exhibit 1). He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due. The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived.

Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT

  1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]’s claim under Part E for skin cancer and lymphoma, and for COPD. In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.
  2. [Employee] died on August 11, 2008 as a result of lymphoma.
  3. On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00
  4. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
  5. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].
  6. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.

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

CONCLUSIONS OF LAW

Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes: (1) that the employee would have been entitled to compensation for a covered illness; and (2) that 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 such employee. 42 U.S.C. § 7385s-3.

As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility. Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death. Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1).

The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid. 42 U.S.C. § 7385s-1(2)(b). The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re- determination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.” 20 C.F.R. § 30.505(c) (2009).

EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.” Federal (EEOICPA) Procedure Manual, Chapter 3-0800. The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments. In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]’s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E. As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled. Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined. Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation.

Cleveland, OH

Greg Knapp

Hearing Representative

Final Adjudication Branch

Page 1294

EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for wage- loss benefits is accepted under Part E for calendar years 2005, 2006, 2007 and 2008.

STATEMENT OF THE CASE

On September 27, 2006, the employee filed a Form EE-1 claiming benefits under EEOICPA for non- Hodgkin’s lymphoma and skin cancer. On April 25, 2008, FAB issued a final decision accepting the claim under Part E based on six primary skin cancers (squamous cell carcinoma or SCC) in situ of the right eyelid, basal cell carcinoma (BCC) of the shoulder, BCC of the chest, SCC of the right lower eyelid, and SCC of the cheek. In that final decision, FAB determined that he was a covered Department of Energy (DOE) contractor employee at the Mound Plant, a DOE facility, from November 23, 1966 to September 1, 1967.

On July 9, 2008, the employee filed a claim for wage-loss benefits under Part E, stating that he began to lose wages as a result of his covered illness in the first quarter of 2005. He also submitted medical reports from Dr. Nicholas T. Ilif dated August 18, 2008 and November 18, 2008, who stated that as a result of his cancers and consequential conditions, he began incurring wage-loss in February 2005 and took early retirement in November 2007.

On November 7, 2008, the employee filed another claim and identified additional skin cancers. On April 16, 2009, FAB issued a final decision accepting his claim under Part E based on these additional skin cancers (SCC of the left lower eyelid, SCC of the tip of the nose, SCC of the right preauricular).

On July 30, 2009, the district office accepted that the employee had consequential conditions of blindness of the right eye, photophobia and right eye pain.

On August 7, 2009, the district office issued a recommended decision to deny the claim under Part B for multiple skin cancers and large B-cell lymphoma, and under Part E for lymphoma. The district office further recommended that the claim for impairment benefits based on the employee’s skin cancers be approved under Part E, based on a whole-person impairment rating of 24%.

With respect to the employee’s wage-loss claim, the district office recommended that it be accepted for the period 2005 through 2008. The district office determined that he had an average annual wage (AAW) of $66,801.21 in the 36 months prior to February 2005. This figure was based on his earnings as reported in annual tax returns. Specifically, the district office combined the employee’s total “dividend” income reported annually on Line 1 of IRS Schedule K-1 (Shareholder’s Share of Income, Credits, Deductions, etc.), which lists “Ordinary income from trade or business activities” as 100% Shareholder of [Employee’s company], with the amount listed in Box 1 (wages, tips, other compensation) of Form W-2 (Wage and Tax Statement), which is the salary he paid himself as an employee of [Employee’s company]. The district office included his dividend income because he explained that these were “pass through” earnings he paid to himself as the owner of 100% of the shares of [Employee’s company], which is classified as a “subchapter S” corporation for purposes of the Internal Revenue Code. The district office’s AAW calculation made no deduction for the health insurance premiums the employee paid out of his S corporation dividend income. Using this method, the district office determined that his inflation-adjusted earnings for the period 2005 through 2008 were as follows: for 2005, $37,989.00 (57% of his AAW); for 2006, $21,124.33 (32%); for 2007, $17,249.19 (26%); and for 2008, $0 (0%). Based on these figures, the district office recommended that the employee receive $10,000.00 in wage-loss benefits for calendar year 2005, and $15,000.00 for calendar years 2006, 2007 and 2008. The total compensation recommended was $55,000.00.

On November 16, 2009, FAB issued a final decision denying the claim for multiple skin cancers and lymphoma under Part B, and for lymphoma under Part E. The final decision accepted the claim for impairment benefits based on a 24% impairment rating, and awarded the employee compensation of $60,000.00. With respect to his wage-loss claim, FAB determined that the district office’s calculation of his entitlement to wage-loss benefits was incorrect. Specifically, FAB determined that the district office should not have included dividend income in the employee’s AAW for the 36 months prior to February of 2005, or in his earnings during and after calendar year 2005. The case was therefore remanded to the district office for recalculation of the employee’s entitlement to wage-loss benefits for the period 2005-2008.

On January 29, 2010, the district office issued a recommended decision in which it determined that the employee’s AAW for the 36 months prior to February 2005 was $25,714.21. This was based solely on his wages as reported in Box 1 of his Form W-2 for the years 2002, 2003 and 2004. Using the information reported in Box 1 of his W-2s for 2005 through 2008, the district office determined that the employee’s inflation-adjusted earnings were as follows: $15,780.00 in 2005 (61% of his AAW); $20,376.00 in 2006 (77%); $9,744.00 in 2007 (38%); and $0 in 2008 (0% of AAW). The district office further concluded that the employee’s health insurance costs should not be considered in determining his AAW or calculating his calendar years of qualifying wage-loss during and after 2005.

On March 16, 2010, the employee filed objections to the recommended decision and requested a hearing. However, the objections were not addressed and no hearing was scheduled. On April 13, 2010, FAB issued a final decision accepting the claim for wage-loss benefits for the calendar years 2005 through 2008, concluding that the employee’s AAW for the 36 months prior to February 2005 was $25,714.21. FAB further concluded that his inflation-adjusted earnings were $15,780.00 in 2005 (61% of AAW); $20,376.00 in 2006 (77%); $9,744.00 in 2007 (38%); and $0 in 2008 (0%).

Accordingly, FAB concluded that the employee was entitled to wage-loss benefits of $10,000.00 for 2005, $15,000.00 for 2007 and $15,000.00 for 2008. FAB further concluded that the employee had no entitlement to wage-loss benefits for 2006, since his inflation-adjusted wages during that year were greater than 75% of his AAW.

On June 4, 2010, FAB issued an order granting reconsideration of the employee’s wage-loss claim, because the April 13, 2010 final decision did not address his objections. The case was subsequently referred for a hearing.

OBJECTIONS

In his written objections and at a hearing held on August 5, 2010, the employee raised two arguments against the wage-loss calculation in the January 29, 2010 recommended decision. These are summarized below:

  1. He argued that all of his income from [Employee’s company] constituted payments received from employment or services. He reiterated that he was the sole proprietor of [Employee’s company], explaining that this was a small company that distributed packaged food products to convenience stores. For tax purposes, he organized the business as a subchapter S corporation, which allowed the company’s earnings to be passed through to him, the owner, as ordinary income. He stated that each year he paid himself a small salary (known as a “draw”). Any profits over and above that salary were reported to the IRS as dividends.

Therefore, the employee argued that such income met the definition of “wages” under the EEOICPA regulations, and should be included in both the AAW calculation and in determining his inflation- adjusted earnings for subsequent years. He also submitted copies of his Form 1040 Schedule E for the years in question, which lists his S corporation income from [Employee’s company] for the years 2002 to 2007. For purposes of his tax returns, his S Corporation income is listed under “nonpassive” income according to Schedule K-1.

  1. The employee further argued that his health insurance premiums should be deducted from his income for purposes of calculating his AAW and his inflation-adjusted earnings in subsequent years. He stated that such premiums should be excluded from the wage-loss calculation, since they are tax- deductable.

After reviewing the evidence in the case file, and considering the objections and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT

  1. By final decisions dated April 25, 2008 and April 16, 2009, FAB determined that the employee is a covered DOE contractor employee who contracted the covered illness of multiple skin cancers through exposure to a toxic substance at a DOE facility.
  2. On July 30, 2009, the district office determined that he sustained the consequential conditions of blindness of the right eye, photophobia and right eye pain.
  3. The employee filed a claim for wage-loss benefits for the period beginning February 2005. His date of birth is September 24, 1944, and he will reach normal retirement age for unreduced Social Security retirement benefits at age 66 on September 29, 2010.
  4. His AAW for the 36-month period prior to February 2005 is $66,801.21. His adjusted earnings in 2005 were $37,989.00 (57% of his AAW); for 2006, $21,124.33 (32% of AAW); for 2007, $17,249.19 (26% of AAW); and for 2008, $0 (0% of AAW).

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

CONCLUSIONS OF LAW

Part E provides for payment of compensation to covered DOE contractor employees who experience wage-loss as a result of a covered illness, and defines wage-loss as any year in which the employee’s wages did not exceed 75% of his average annual wage in the 36-month period prior to the month compensable wage-loss began. Compensable wage-loss may include any year occurring up to and including the calendar year that a covered Part E employee reaches normal retirement age under the Social Security Act. To establish eligibility for wage-loss benefits, the evidence must show that the period of wage-loss at issue is causally related to the employee’s covered illness. 42 U.S.C. § 7385s- 2(a)(2).

The implementing regulations provide that in determining an employee’s AAW and any subsequent adjusted earnings, DEEOIC “will consider all monetary payments that the covered Part E employee received in a quarter from employment or services, except for monetary payments that were not taxable as income during that quarter under the Internal Revenue Code, to be ‘wages.’” 20 C.F.R. § 30.805(a) (2009). Under EEOICPA procedures, wages are defined to include salaries, overtime compensation, sick leave, vacation leave, tips and bonuses received for employment services. Income specifically excluded from the definition of wages includes capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits and Social Security benefits. Federal (EEOICPA) Procedure Manual, Chapter 2-1400.8 (2009). The regulations and the procedures do not specifically exclude dividends from the definition of “wages.” In this case, the recommended decision issued on January 19, 2010 is based on a calculation of AAW that excludes the employee’s dividend earnings as the 100% shareholder of [Employee’s company].

He has objected to this calculation, arguing that his dividend earnings qualify as wages under the definition cited above. The issue, therefore, is whether those dividends are “monetary payments. . .from employment or services” under § 30.805 of the regulations, and if so, whether they are taxable as income under the Internal Revenue Code.

The employee’s tax records show that his income from [Employee’s company] is classified as “non- passive” income according to Schedule K-1. Under IRS rules, passive income is defined as earnings derived from a business in which a person “does not materially participate.”[1] Since the employee’s hearing testimony and tax records make clear that he materially participated in the operation of Employee’s company] as the sole proprietor and 100% shareholder, I conclude that these earnings constitute monetary payments from employment or services. His tax records further show that these earnings were taxable as income under the Internal Revenue Code. Accordingly, I conclude that the employee’s dividend income as 100% shareholder of [Employee’s company], a subchapter S corporation, are “wages.”

In response to the second objection, I have reviewed the tax records submitted in support of the employee’s claim, which includes Form 1040 Schedule E, Schedule K-1 and his W-2 statements covering the period 2001 through 2008. I have also reviewed IRS Publication 15-B, Employer’s Tax Guide to Fringe Benefits (2010), which is part of the record and was cited by the district office in its recommended decision, as well as other IRS guidance concerning subchapter S corporations.

IRS Publication 15-B states that although the value of S corporation employees’ health benefits are generally excluded from the employees’ wages, this exclusion does not apply to shareholders owning 2% or more of the corporation (“2% shareholders”). According to the IRS, for 2% shareholders who are also employees, the value of the health benefits premiums must be included in the employee’s wages subject to federal income tax withholding. IRS Publication 15-B, p. 6 (2010). A review of the employee’s Form 1040 shows that the value of his health benefits is included in his S corporation earnings (line 17), and is therefore an element of his total income (line 22). If he were an employee and less than a 2% shareholder, the value of his health benefits would be excluded entirely from his taxable wages. As a 2% shareholder, he qualifies for a self-employed health benefits insurance deduction (line 29), which is deducted from his total income to derive his adjusted gross income. In other words, the value of the employee’s health benefits is included in calculating his taxable income, but is not included in his adjusted gross income. The health benefits deduction is therefore no different than the other deductions available to taxpayers listed on Form 1040, such as student loan interest expenses, educator expenses, or IRA contributions, which are not taken into account when calculating an employee’s AAW.

Accordingly, the evidence establishes that the employee experienced wage-loss as a result of his covered illness during calendar years 2005 through 2008.

I further conclude that his AAW for the 36 months prior to February 2005 is $66,801.21; that his adjusted earnings for calendar year 2005 were between 50 and 75% of his AAW; and that his adjusted earnings for calendar years 2006, 2007 and 2008 were less than 50% of his AAW. Therefore, in accordance with 42 U.S.C. § 7385s-2(a)(2), the employee is entitled to wage-loss benefits of $10,000.00 for 2005, and $15,000.00 per year for 2006 through 2008, totaling $55,000.00.

Cleveland, OH

Greg Knapp

Hearing Representative

Final Adjudication Branch

[1] See http://www.irs.gov/businesses/small/article/0,,id=146833,00.html (retrieved October 18, 2010).

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