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

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

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

Multiple Myeloma

 

Also called: Plasma-cell myeloma

Below we have collected specific references to multiple myeloma 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:

Multiple myeloma is a cancer that begins in plasma cells, a type of white blood cell. These cells are part of your immune system, which helps protect the body from germs and other harmful substances. In time, myeloma cells collect in the bone marrow and in the solid parts of bones.

No one knows the exact causes of multiple myeloma, but it is more common in older people and African Americans. It can run in families. Common symptoms may include

  • Bone pain, often in the back or ribs
  • Broken bones
  • Weakness or fatigue
  • Weight loss
  • Repeated infections
  • Frequent infections and fevers
  • Feeling very thirsty
  • Frequent urination

Doctors diagnose multiple myeloma using lab tests, imaging tests, and a bone marrow biopsy.

Procedure Manual

Page 48

uu. Specified Cancers are listed in Section 30.5(ff) of the regulations. An employee must be diagnosed with one of these specific types of cancer to be considered eligible for benefits as a member of the Special Exposure Cohort (SEC). The list of specified cancers, which is derived from section 4(b)(2) of the RECA Amendments of 2000, is as follows:

(a) Multiple myeloma;

Page 176

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

  1. Multiple myeloma (a malignant tumor formed by the cells of the bone marrow);

Page 293

c. Section 4 of RECA.

(1) Downwinders.

(a) Coverage: Individuals who were physically present in one of the affected areas downwind of the Nevada Test Site during a period of atmospheric nuclear testing, and later developed a covered illness.

(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 103

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

Page 679

According to Dr. Fiegel, NCI recognizes myelofibrosis with myeloid metaplasia, polycythemia vera with leukocytosis and thrombocytosis, polycythemia rubra vera, and myelodysplastic syndromes as reportable cancers. These hematological conditions are not reportable as leukemia, non-Hodgkin’s lymphoma, or multiple myeloma, but have distinct categories (except in the case of polycythemia rubra vera and polycythemia vera with leukocytosis and thrombocytosis, which share the same category). One of the functions of bone is to manufacture blood cells in the bone marrow. Accordingly, myelofibrosis with myeloid metaplasia, polycythemia rubra vera and its variant polycythemia vera with leukocytosis and thrombocytosis, and myelodysplastic syndrome(s) should be considered as bone cancer for purposes of having a “specified cancer” as a member of the Special Exposure Cohort, since all are malignancies of the bone marrow.

Final Decisions

Page 36

EEOICPA Fin. Dec. No. 60001-2005 (Dep’t of Labor, March 25, 2005)

NOTICE OF FINAL DECISION

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

On July 26, 2004, you each filed a claim for benefits under the EEOICPA listing beryllium sensitivity and severe lung disease as the medical conditions on which your claim is based. You stated on your employment history form (EE-3) that your father worked for Norton Company in Worchester, Massachusetts from April 10, 1943, to June 30, 1978. With your claim you submitted various treatment records for your father that covered the time period from October 1993 to August 1998. The majority of these records showed treatment for your father’s heart failure. The earliest report is a discharge summary from the Medical Center of Central Massachusetts for the period October 20, 1993 to October 28, 1993, which indicates that your father had a history of coronary artery disease, congestive heart failure, cerebrovascular accident, and chronic obstructive pulmonary disease (COPD). A discharge summary from the Medical Center of Central Massachusetts for the period November 6, 1995 to November 7, 1995, indicates your father had shortness of breath, bilateral pleural effusions, and interstitial edema, and these findings were felt to be compatible with his congestive heart failure. A chest x-ray dated February 26, 1998, identified focal fibrosis in the right lung base. A chest x-ray dated April 9, 1998, showed bibasal infiltrates, and a small nodule in the left lung. You also submitted a copy of the employee’s death certificate showing he died on September 1, 1998, and listed his immediate cause of death as congestive heart failure, and listed diabetes as a contributory cause of death.

On August 9, 2004, and September 10, 2004, the district office informed you that there was insufficient evidence for your claim. You were advised that your claim for beryllium sensitivity is not compensable to survivors, and that the claimed severe lung disease is not an occupational illness covered by the Act. You were advised of the medical evidence required to establish a diagnosis of cancer and chronic beryllium disease under the Act. You were asked to provide medical evidence showing that your father had chronic beryllium disease or cancer. In each letter, the district office requested that you provide such evidence within 30 days.

On September 23, 2004, the district office received a letter from your father’s physician, Dr. Tanquay. Dr. Tanquay indicated in this statement, dated September 15, 2004, that your father had been under his care for multiple myeloma prior to his death, and that your father died from this disease on September 1, 1998.

On September 23, 2004, the district requested that Dr. Tanquay provide copies of your father’s medical reports and pathology reports that form the basis for the diagnosis of multiple myeloma. The district office requested a reply within 30 days of the letter, but no response was received.

On October 28, 2004, and November 29, 2004, the district office requested that you provide medical evidence sufficient to establish that your father had multiple myeloma. You were also advised of the district office’s attempt to obtain the records from Dr. Tanquay, and of his lack of reply. In each letter, you were requested to submit the requested medical evidence within 30 days. There is no evidence in the file to indicate that you responded to the district office’s requests.

On January 7, 2005, the district office issued a recommended decision that concluded you did not submit medical evidence sufficient to demonstrate that your father had been diagnosed with an occupational illness as defined in 42 U.S.C. § 7384l(15), specifically multiple myeloma. The recommended decision also concluded that the claim for severe lung disease does not establish that your father is a covered employee, as this condition is not a compensable occupational illness. The recommended decision also concluded that you, as survivors, are not eligible for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, it was recommended that benefits under the EEOICPA be denied.

The Department of Labor’s regulations provide that: “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” See 20 C.F.R. § 30.310(a).

I find that you have not filed any objections to the recommended decision within the 60 days allowed by 20 C.F.R. § 30.310(a). Based on my review of your case record, I find that you did not provide sufficient medical evidence to establish that your father had been diagnosed with an occupational illness covered under Part B of the Act; specifically, the medical evidence submitted was not sufficient to establish a diagnosis of multiple myeloma. In addition, I find that as survivors you are not eligible for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, I find that you are not entitled to benefits under Part B of the Act, and that your claims for compensation must be denied.

Cleveland, OH

Debra A. Benedict

District Manager

Final Adjudication Branch

Page 135

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

NOTICE OF FINAL DECISION – REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

On June 10, 2002, you filed a Claim for Survivor Benefits under the EEOICPA, form EE-2, with the Denver district office, as the spouse of the employee, for multiple myeloma. You indicated on the EE- 3 form that your husband was employed by the U.S. Coast and Geodetic Survey at various locations, including the Nevada Test Site, from early 1951 to December 1953. You also submitted marriage certificate and death certificates establishing that you were married to the employee from March 7, 1953 until his death on November 5, 1999, tax forms confirming his employment with the U.S. Coast and Geodetic Survey in 1951 and 1952 and a document from the Nevada Field Office of the Department of Energy (DOE) indicating that they had records of your husband having been exposed to radiation in 1951 and 1952. Additionally, you submitted a document stating that your claim under the Radiation Exposure Compensation Act had been approved in the amount of $75,000; you stated that you had declined to accept the award and that was confirmed by a representative of the Department of Justice on August 12, 2002.

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

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

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

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

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

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

FINDINGS OF FACT

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

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

Medical records, including a pathology report, confirmed he was diagnosed with multiple myeloma in April 1993. In the course of his employment by the U.S. Coast and Geodetic Survey, your husband worked, and was exposed to radiation, at the Nevada Test Site, a DOE facility.

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

CONCLUSIONS OF LAW

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

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

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

(11).

EEOICPA Bulletin NO. 03-26 states that “a civilian employee of a state or federal government agency can be considered a ‘DOE contractor employee’ if the government agency employing that individual is

(1) found to have entered into a contract with DOE for the accomplishment of…services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.” The same Bulletin goes on to define a “contract” as “an agreement that something specific is to be done in return for some payment or consideration.”

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

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

Page 392

EEOICPA Fin. Dec. No. 51813-2004 (Dep’t of Labor, December 27, 2004)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On December 2, 2003, [Claimant 1] filed a claim for survivor benefits under Part B of the EEOICPA. On February 4, 2004, [Claimant 2] filed for survivor benefits under Part B of the EEOICPA. On March 16, 2004, [Claimant 3] and [Claimant 4] filed claims for survivor benefits under Part B of the EEOICPA. Each claimant filed as a surviving grandchild of Employee]. [Employee] passed away on December 7, 1955. The claimants listed multiple myeloma and uremia amyloidosis as the medical conditions on which their claims are based. The evidence of record is sufficient to establish that [Employee] was diagnosed with multiple myeloma, a condition covered under Part B of the Act, in March 1955, as evidenced by information on his December 7, 1955 death certificate.

Social Security Earnings statements as well as the work history provided by the claimants, indicate that [Employee] was employed by various employers in Weldon Spring, MO, in approximately 1945. The record contains social security earnings records for the claimed period of time

The district office informed each claimant that the Weldon Spring Plant was not a covered facility until 1957. The district office afforded each claimant the opportunity to provide evidence to support that [Employee] had employment covered under the Act. The record fails to establish that the claimants provided additional employment evidence to the district office for review.

By recommended decision dated April 28, 2004, the Seattle district office recommended denial of each of the claims based on its findings that [Employee] is not a covered employee as defined under 42 U.S.C. § 7384l; and the evidence of record is insufficient to establish that [Employee] was present at a covered facility as defined under 42 U.S.C. § 7384l (12) while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under 42 U.S.C. § 7384l(11) during a covered time period.

On May 17, 2004, the Final Adjudication Branch received [Claimant 2]’s letter of objection and request for an oral hearing. [Claimant 2] objected to the Seattle district office’s recommended decision on the basis of the covered time period which began in 1957. On June 16, 2004, a hearing was held in St. Louis, MO at the request of [Claimant 2]. It is noted that [Claimant 1] filed an objection to the recommended decision but did not request a hearing. [Claimant 1] participated in the June 16, 2004 hearing. On June 22, 2004, the Final Adjudication Branch received the June 15, 2004 letter from [Claimant 3] and [Claimant 4] objecting to the April 28, 2004, recommended decision. [Claimant 3] and [Claimant 4] object to the Seattle district office’s recommended decision on the basis of the covered time period which began in 1957.

On June 28, 2004, the undersigned contacted [Claimant 3] and explained that the letter of objection was received after the hearing had been held, but within the 60 day period in which objections could be filed. [Claimant 3] was informed that an oral hearing could be scheduled or they could be added to an existing hearing docket. After conferring with [Claimant 4], [Claimant 3] notified this office that they would like to be added to the July 27, 2004 docket of hearings. By letter dated July 6, 2004, each of the claimants were notified that a hearing at the request of [Claimant 3] and [Claimant 4] was to be conducted July 27, 2004 via telephone. By letters dated June 28, 2004, and September 1, 2004, each of the claimants were provided a copy of the transcripts from the June 16, 2004 and July 27, 2004 hearings respectively.

At the June 16, 2004 hearing, [Claimant 2] testified that when she was young, the family talked about the chemicals her grandfather, [Employee], worked with; he worked unprotected; that [Employee] became very ill and the family felt that it was a result of his work. [Claimant 2] provided testimony regarding information found on the internet (Exhibit A) which she felt showed that Weldon Springs was opened in 1940 and that the time frame established as the covered periods should be expanded. See hearing transcript pages 8 and 10. [Claimant 2] further testified that her mother talked about experiments conducted on [Employee] for “multiple myeloma, for the Japanese, for radiation poisoning, investigating on what caused it, how the body acts, what to do about it.” [Claimant 2] stated that she is researching this issue further. See hearing transcript page 15. The records provided by the Social Security Administration (Exhibit B) indicate that [Employee] worked in Kansas City in 1942 and 1943. [Claimant 2] testified that this may indicate that [Employee] worked at the Kansas City Plant and is attempting to confirm this. See hearing transcript page 10. [Claimant 2] also stated that one of her grandfather’s employers, T.A. Rick (Exhibit C), was a subcontractor to Mallinckrodt.

[Claimant 1] testified that his grandfather, [Employee], worked at Weldon Springs and at Kansas City and that during this timeframe, [Employee] was exposed to “things that he just did not know about.” [Claimant 1] testified that exposure to chemicals resulted in his grandfather’s death. See hearing transcript page 16. On July 9, 2004, [Claimant 2] requested a 30 day extension in which to provide additional evidence.

The hearing conducted on July 27, 2004, was attended by [Claimant 3]. [Claimant 3] testified that she recalled her grandmother stating that her grandfather, [Employee] “wouldn’t have gotten sick if it had not been for the plant.” During the hearing, [Claimant 3] questioned the provisions of the Act. On September 1, 2004, the undersigned provided [Claimant 3] with a copy of the Act along with the hearing transcript for her review.

The claimants have not provided any additional evidence or comments to the hearing transcripts.

FINDINGS OF FACT

1. Each claimant filed a claim for survivor benefits as a grandchild of the employee.

2. The claimants listed multiple myeloma and uremia amyloidosis as the medical conditions on which their claims are based. [Employee] was diagnosed with multiple myeloma in March 1955. Uremia amyloidosis is not a condition covered under Part B of the Act.

3. The Atomic Energy Commission (AEC) constructed the Weldon Spring Uranium Feed Materials Plant and contracted with the Mallinckrodt Chemical Company to operate the plant starting in June 1957. The claimants stated that the employee worked for various employers at the Weldon Spring Plant in approximately 1945.

4. On April 28, 2004, the Seattle district office issued a recommended decision to deny the claims for survivor benefits because the evidence of record is insufficient to establish that [Employee] was present at a covered facility while working for the Department of Energy or any of its covered contractors, subcontractors or vendors.

5. The claimants objected to the recommended decision. [Claimant 2], [Claimant 3], and [Claimant 4] each requested a hearing. [Claimant 1] objected to the recommended decision, but did not request a hearing.

6. The hearings were held on June 16, 2004 and July 27, 2004. The claimants have not submitted any additional evidence or comments on the hearing transcripts, copies of which were sent to the claimants on June 28, 2004 and September 1, 2004.

CONCLUSIONS OF LAW

The issue to be decided is whether [Employee] is a covered employee as defined under the Act based on the claimed employment in Weldon Spring, MO, in 1945. According to the updated Department of Energy’s facility list, reviewed by the undersigned on December 15, 2004, the Weldon Springs Plant is designated as a Department of Energy facility for the period of 1957 to 1967 and again from 1975 through the present for remediation.[1] The DOE facility list states in part: “In 1955 the Army transferred 205 acres of what had been the Weldon Springs Ordnance Works to the AEC for construction of a uranium feed materials plant. The AEC constructed the Weldon Spring Uranium Feed Materials Plant at this location and contracted with the Mallinckrodt Chemical Company to operate the plant starting in June 1957. The plant was used for uranium refining activities in support of the national defense program. The AEC closed down the plant in December 1966 after deciding it was obsolete.”

At the June 16, 2004 hearing, [Claimant 2] provided as Exhibit A, information from the internet[2] which states in part: “The Weldon Springs Uranium Feed Materials Plant is on 220 acres of land between the Missouri and Mississippi Rivers near St. Louis, Missouri. Weldon Springs Site is located at 7295 Highway 94 South in St. Charles, Missouri, on a portion of the former Weldon Springs Ordinance Works, a 17,000 acre Army facility operated from 1941-45 which produced explosives. A quarry located on the site was used by the Army for limestone to construct the Ordinance Works and then as a dump for TNT and DNT contaminated waste and rubble which they burned. In 1955 the Army transferred some of the property to the AEC who built the Uranium Feed Materials Plant. . . .”

According to both the DOE facility list and Exhibit A, the Army transferred land to the AEC in 1955. The claim is based on employment in 1945. The established covered time period for the Weldon Spring Plant is 1957 to 1967 and from 1975 to the present. [Employee] passed away in 1955, prior to the covered time period.

To date, the claimants have not provided any evidence in support of their belief that [Employee] may have worked at the Kansas City Plant during the covered time period. For the foregoing reasons, the undersigned must find that the claimants have not established their claims for compensation under Part B of the EEOICPA and that the Recommended Decision of the district office is correct. Therefore, the undersigned hereby affirms the denial of the claims for compensation under Part B of the EEOICPA.

Washington, DC

Linda M. Parker

Hearing Representative selena_blue_

[1] http://www.eh.doe.gov/advocacy/faclist/findfacility.cfm.

[2] http://nuclearhistory.tripod.com/doe.html. imed period of time

Page 446

EEOICPA Fin. Dec. No. 41341-2005 (Dep’t of Labor, May 11, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000 (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 claim for compensation and benefits, based on multiple myeloma, under Part B of the Act. Your claim under Part E of the Act, and your claim under Part B of the Act for skin and throat cancer, is deferred.

STATEMENT OF THE CASE

On February 6, 2003, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on cancer, specified as multiple myeloma, skin, and throat cancer. You also filed a Form EE-3 (Employment History), in which you indicated that you were employed at Oak Ridge, by “Keagan & Hughes,” from January 1, 1950 to February 10, 1951, at Paducah, Kentucky, from February 15, 1951 to March 23, 1953, and at the Hanford site from April 15, 1954 to January 21, 1955, and that you did not wear a dosimetry badge.

The employment evidence of record consists of affidavits, personnel information from the Atomic Energy Commission, earnings information from the Social Security Administration, and information from the Center to Protect Workers Rights. You provided an employment history affidavit from the business manager of L.U. # 237, Texarkana, TX/AR, who indicated he had been vice-president of local # 237, and therefore knew that you were employed by the following employers: (1) “Keagen & Hughes,” Oak Ridge, Tennessee, “AEC,” from January 1, 1950 to February 10, 1951; (2) M.W. Kellogg, Paducah, Kentucky, from February 15, 1951 to March 23, 1952; and (3) Kaiser Engineers, Hanford site, North Richland, Washington, from April 15, 1954 to January 21, 1955. An Atomic Energy Commission (AEC), Oak Ridge, Tennessee, Personnel Clearance Master Card shows that you were granted an emergency clearance, on June 26, 1951, as an employee of Kaighin & Hughes, a subcontractor with Maxon Construction Company, and you were terminated on October 9, 1951. A second AEC, Oak Ridge, Personnel Clearance Master Card shows that your security clearance was “reinstated” on October 17, 1951, the name of your employer was “F.H. McGraw & Company M.W. Kellogg,” and that you were terminated on October 29, 1952. The card further shows a transfer to Hanford on April 13, 1954.

A co-worker at the Oak Ridge Gaseous Diffusion Plant (GDP), also known as K-25, provided an employment history affidavit in which he indicated that he worked with you for “Kaighan & Hughes” at the Oak Ridge K-25 Plant from January 1, 1950 to February 10, 1951. A dispatch record from Local No. 237, shows that you were employed by Kaiser from March 31 to May 30, 1954. An Itemized Statement of Earnings obtained from the Social Security Administration (SSA) shows that you had earnings paid by M.W. Kellogg from October through December 1949, October through December 1951, January through June 30 1952, and January through March 1953. In addition, the SSA Itemized Statement of Earnings showed that you were paid earnings by Atlantic Industries, Incorporated, during the period from January through March 1950, and Kaiser Engineers during the period from April through September 1954. A letter provided, by the Business Manager of the Plumbers & Steamfitters Local 184, Paducah, Kentucky shows that the M.W. Kellogg Company was a subcontractor at the Paducah GDP, Paducah, Kentucky from 1951 to 1955. The record also contains a copy of a “Certificate of Amendment to the Articles of Incorporation of Kaighin & Hughes, Inc.” that indicates the shareholders authorized the name of the company to be changed to “Atlantic Industries, Inc.” by resolution dated May 17, 1968.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has contracted with the Center to Protect Workers’ Rights (CPWR) for assistance in obtaining records pertinent to construction and trade employees at DOE, atomic weapons employer (AWE) or beryllium vendor facilities. The CPWR is a research, development, and training arm of the Building and Construction Trades Department (BCTD) of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). The CPWR concluded that (1) Kaighin & Hughes was a subcontractor to Maxon and, as shown in a report to the President by the Atomic Energy Labor Relations Panel, Kaighin & Hughes was a primary contractor of K29 – K31 of the K25 GDP, and a contractual relationship between Kaighin & Hughes and AEC/DOE was also confirmed by a DOE representative who reported that Kaighin & Hughes, Inc. was a subcontractor to Maxon for construction of the K29, K31, and K33 buildings of the K25 GDP from 1947 to 1956. See Section 2 – CPWR Research Results. The Oak Ridge GDP is recognized as a covered DOE facility from 1943 to 1987 and 1988 to the present (remediation); the Paducah GDP is recognized as a covered DOE facility from 1951 to July 28, 1998 and July 29, 1998 to the present (remediation); and the Hanford site is recognized as a covered DOE facility from 1942 to the present. See DOE, Office of Worker Advocacy, Facility List. You indicated on your Form EE-3 that you were not monitored, through the use of dosimetry badges, for exposure at either the Oak Ridge GDP or Paducah GDP, and the information above shows that you were employed at the Oak Ridge GDP and Paducah GDP, respectively, from January 1 through October 9, 1951 and January 1 through October 29, 1952. However, the evidence shows that you worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges for your entire period of employment at Oak Ridge and for the period from July 1952 to October 29, 1952 at the Paducah GDP.

In addition to medical documentation showing diagnosis of skin cancer, you provided a narrative medical report by Joyce Feagin, M.D., dated January 11, 2001, that indicated you were diagnosed as having multiple myeloma.

On March 30, 2005, the Seattle district office issued a recommended decision that concluded you are a member of the special exposure cohort under Part B, as defined by 42 U.S.C. § 7384l(14)(A), you were diagnosed with multiple myeloma, a specified cancer under Part B as defined by 42 U.S.C. § 7384l(17), and that you are entitled to compensation under Part B in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1). The district office also concluded that you are entitled to medical benefits under Part B, retroactive to the date you filed you claim for benefits, February 6, 2003, as outlined under 42 U.S.C. § 7384t. The district office deferred adjudication of your claim for skin cancers pending completion of the report of radiation dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

On April 11, 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. You filed a claim for benefits under the EEOICPA on February 6, 2003.

2. You were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952.

3. A DOE contractor or subcontractor employed you for a number of work days aggregating at least 250 work days before February 1, 1992, at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky.

4. You were diagnosed as having multiple myeloma, a specified cancer, on January 11, 2001.

5. You contracted multiple myeloma after having begun covered employment with a DOE contractor or subcontractor at the Oak Ridge GDP and Paducah GDP, and the onset of the illness was more than five years after your first exposure at a GDP.

CONCLUSIONS OF LAW

In order for an employee to be afforded coverage under the “special exposure cohort,” the employee must be a DOE employee who was 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 (i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of [the] employee’s body to radiation; or (ii) worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. See 42 U.S.C. § 7384l(14).

Further, a specified cancer is “A specified disease, as that term is defined in § 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note),” including multiple myeloma, provided the onset was at least five years after first exposure to radiation. See 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(5)(i) (multiple myeloma). The medical evidence of record indicates that you were diagnosed with multiple myeloma on January 11, 2001, which was more than five years after you were first exposed to radiation at Oak Ridge.

Your employment history (including employment history affidavits, Social Security records, union dispatch records, security clearance records, and confirmation by the CPWR) shows that you were employed at the Oak Ridge GDP from January 1, 1951 to October 9, 1951, and the Paducah GDP from January 1, 1952 to October 29, 1952, a period exceeding 250 work days. However, employees who indicate on their Form EE-3 that they were not monitored by dosimetry while employed at the Paducah GDP are determined to have been engaged in covered employment beginning in July 1952. See Federal (EEOICPA) Procedure Manual, Chapter 2-500.3a(2)(a) (June 2004). Therefore, your period of employment at the Paducah GDP, for purposes of coverage as a member of the special exposure cohort, must be calculated using a beginning date of July 1, 1952, and an ending date of October 29, 1952. Thus, the evidence shows that you were employed by a DOE contractor or subcontractor for a number of work days aggregating at least 250 work days before February 1, 1992 at gaseous diffusion plants located in Oak Ridge, Tennessee and Paducah, Kentucky, “in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges,” and you are a “member of the Special Exposure Cohort.” See 42 U.S.C. § 7384l(14)(A).

You filed a claim based on multiple myeloma, skin, and throat cancer. The Final Adjudication Branch has reviewed the medical reports of record and found that you were diagnosed as having multiple myeloma on January 11, 2001. Consequently, you are a “covered employee with cancer,” and a member of the special exposure cohort who was diagnosed as having a “specified cancer” under the EEOICPA. See 42 U.S.C. §§ 7384l(9)(A), (14)(A), and (17)(A).

For the forgoing reasons, the Final Adjudication Branch hereby accepts and approves your claim for multiple myeloma. You are entitled to compensation under Part B of the Act in the amount of $150,000.00. See 42 U.S.C. § 7384s(a)(1). In addition, you are entitled to medical benefits for multiple myeloma under Part B of the Act, retroactive to February 6, 2003, pursuant to 42 U.S.C. § 7384t. Adjudication of your claim for skin cancers and throat cancer is deferred pending completion of the radiation dose reconstruction by NIOSH, and adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

Page 463

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

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

FINDINGS OF FACT

You filed a claim for survivor benefits under the EEOICPA on June 10, 2002. You were married to the employee from March 7, 1953 until his death on November 5, 1999. Medical records, including a pathology report, confirmed he was diagnosed with multiple myeloma in April 1993.

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

Page 507

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

NOTICE OF FINAL DECISION

REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

You also submitted marriage certificate and death certificates establishing that you were married to the employee from March 7, 1953 until his death on November 5, 1999, tax forms confirming his employment with the U.S. Coast and Geodetic Survey in 1951 and 1952 and a document from the Nevada Field Office of the Department of Energy (DOE) indicating that they had records of your husband having been exposed to radiation in 1951 and 1952.

Additionally, you submitted a document stating that your claim under the Radiation Exposure Compensation Act had been approved in the amount of $75,000; you stated that you had declined to accept the award and that was confirmed by a representative of the Department of Justice on August 12, 2002.

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

Washington, DC

Richard Koretz

Hearing Representative

Page 723

EEOICPA Fin. Dec. No. 10005910-2006 (Dep’t of Labor, July 31, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for impairment benefits under Part E of EEOICPA based on the claimed condition of multiple myeloma disease is accepted.

STATEMENT OF THE CASE

On January 20, 2004, [Employee] filed claims under both Part B and former Part D of EEOICPA. He identified multiple myeloma as the claimed condition he alleged resulted from exposure to toxic substances during his employment at a Department of Energy (DOE) facility. Subsequent to his filing a request for assistance under former Part D, Congress amended EEOICPA by repealing Part D and enacting new Part E, which is administered by the Department of Labor. The filing of a request for assistance under former Part D is treated as a claim for benefits under Part E. On April 6, 2004, FAB issued a final decision accepting [Employee]’s claim under Part B of EEOICPA, finding that he was a member of the Special Exposure Cohort with the “specified” cancer (an “occupational” illness) of multiple myeloma. On May 12, 2006, FAB issued another final decision accepting [Employee]’s claim for medical benefits under Part E the “covered” illness of multiple myeloma.

The evidence of record establishes that [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant for at least 250 work days prior to February 1, 1992. During his employment at this facility he was employed by DOE contractors. The medical evidence establishes that he was diagnosed with multiple myeloma on December 24, 2003.

On February 6, 2006, [Employee] filed a claim for impairment and wage-loss benefits under Part E. To ascertain his impairment rating, and pursuant to his request, the district office had [Employee]’s medical records reviewed by a District Medical Consultant (DMC). On September 13, 2006, the DMC opined that based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Physical Impairment (the Guides), [Employee]’s multiple myeloma was ratable because he had reached maximum medical improvement for this condition. However, he opined that [Employee]’s peripheral neuropathy, which is a consequential condition of his multiple myeloma, was not at maximum medical improvement and thus could be currently rated. Using the proper sections and charts of the Guides, the DMC assessed [Employee]’s whole person impairment based on his multiple myeloma at 11%.

The claim file contains [Employee]’s written declaration that he has not filed any tort suits or claims for state workers’ compensation benefits, or received any settlements or state workers’ compensation benefit awards in connection with his multiple myeloma.

On December 5, 2006, the district office issued a recommended decision to award [Employee] an impairment award for his 11% whole person permanent impairment based on multiple myeloma, and that he was entitled to receive a lump-sum benefit under Part E of EEOICPA based on that award of $27,500.00. Accompanying the district office’s recommended decision was a letter explaining [Employee]’s rights and responsibilities in regard to that decision.

OBJECTIONS

On February 1, 2007, FAB received [Employee]’s letter objecting to the recommended decision and requesting an oral hearing, which was held on April 17, 2007. At that hearing, both [Employee] and [Employee’s spouse] presented testimony and evidence. [Employee] also submitted two exhibits at this hearing: (1) [Employee]’s letter dated April 17, 2007 summarizing his objections to the recommended decision; and (2) a document entitled “Concise Review of the Disease and Treatment Options Multiple Myeloma Cancer of the Bone Marrow” by Brian G. M. Durie, M.D.

Objection No. 1: [Employee] objected to the DMC’s assessment of his impairment by arguing that the DMC should have considered additional factors, such as his bone damage, bone destruction, bone lesions, his thrombocytopenia and decreased platelet count, his infections and suppressed immune system, his weakness, fatigue and shortness of breath, his renal insufficiency, his daily activities, and the probability of his premature death in assessing his impairment.

Objection No. 2: [Employee] argued that his peripheral neuropathy should be rated because he believed that it was at maximum medical impairment, and objected to the impairment rating because the DMC did not include his peripheral neuropathy condition in assessing his impairment.

Objection No. 3: [Employee] objected to the impairment rating because the DMC did not have all of your medical records, and no effort was made to obtain those records for the DMC to review.

Objection No. 4: [Employee] argued that the DMC’s report contains incorrect information about him regaining his previous state of good health.

Objection No. 5: [Employee] argued that the “shallowness” of the impairment evaluation process was not consistent with EEOICPA, nor was it consistent with his agreement to forego other legal remedies if he was fairly compensated.

Subsequent to the hearing a copy of the transcript of that hearing was sent to [Employee]. On May 4, 2007, FAB received his letter dated April 30, 2007 and medical records he had attached to that letter, including a March 1, 2007 report from Dr. Bart Barlogie and laboratory results dated February 27, 2007, February 10, 2006, September 23, 2005 and December 15, 2004.

[Employee]’s first, second and third objections concern whether the impairment rating that formed the basis for the recommended decision was correct. He did not submit any medical evidence indicating that a physician had rated his impairCONCLUSIONS OF LAW ment differently than the DMC had. The regulations specify how FAB will evaluate new medical evidence submitted to challenge the impairment evaluation in the recommended decision. Those regulations provide that if the employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, FAB will not consider the additional impairment evaluation if it is not performed by a physician who meets the criteria that have been established for physicians performing impairment evaluations for the pertinent covered illness in accordance with the Guides. See 20 C.F.R. §§ 30.905, 30.908 (2007). The medical evidence [Employee] submitted did not include an assessment of his impairment based on the claimed condition in accordance with the Guides. A determination regarding [Employee]’s impairment rating must be based upon a consideration of the totality of all relevant evidence of impairment in the record, and that determination must be based upon the most probative evidence. See 20 C.F.R. § 908(c). After reviewing the evidence of record, FAB concludes that the impairment rating by the DMC is the most probative evidence of your whole person impairment from your multiple myeloma. [Employee] may apply for a new impairment rating for this condition in two years. See 20 C.F.R. § 30.912. Additionally, because his peripheral neuropathy was not assessed in the DMC’s impairment rating because he had not reached maximum medical improvement for that condition, [Employee] may apply for an impairment rating for that condition anytime, but the medical evidence must establish that he has reached maximum medical improvement for that condition.

[Employee]’s fourth objection concerns statements in the DMC’s report about him regaining his normal state of health. [Employee] made reference to a statement in the DMC report which implies it is debatable whether [Employee] has actually regained his previous state of normal good health. However, the statement in question was in quotations in the DMC’s report, indicating that the DMC did not make that statement. The DMC’s report indicates that while you were in remission, you were not in your previous state of normal good health.

[Employee]’s fifth objection concerns the “shallowness” of the impairment evaluation process under EEOICPA. However, when it enacted Part E, Congress provided that impairment benefits must be based on impairment ratings derived from the Guides. See 42 U.S.C. § 7385s-2(b). The Department of Labor must administer Part E as provided by Congress and does not have the authority to base impairment benefits on anything other than the Guides.

After reviewing the evidence in the file, [Employee]’s objections to the recommended decision and the evidence he submitted, FAB hereby makes the following:

FINDINGS OF FACT

1. [Employee] filed a claim for benefits under EEOICPA on January 20, 2004.

2. [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant (a DOE facility) for more than 250 work days prior to February 1, 1992. During his employment at this facility, he was employed by DOE contractors.

3. On May 12, 2006, FAB accepted [Employee]’s Part E claim for medical benefits for the “covered” illness of multiple myeloma.

4. [Employee] has a minimum impairment rating of his whole person as a result of his multiple myeloma of 11%.

5. [Employee] has not received compensation or benefits from a tort suit or a state workers’ compensation claim based on his multiple myeloma.

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

CONCLUSIONS OF LAW

On May 12, 2006, FAB issued a final decision under Part E of EEOICPA that accepted [Employee]’s claim for medical benefits for the covered illness of multiple myeloma, finding that his exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his multiple myeloma. 42 U.S.C. § 7385s-4(a). He is therefore a “covered DOE contractor employee.”

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered” illness shall be entitled to impairment benefits based on the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered” illness. See 42 U.S.C § 7385s-2(a) and 20 C.F.R. § 30.901(a). Part E also provides that the employee’s impairment rating is to be determined in accordance with the Fifth Edition of the Guides, and that for each percentage point of impairment that is a result of a “covered” illness, a “covered DOE contractor employee” is to receive $2,500.00. See 42 U.S.C. § 7385s-2(a)(1) and (b). The evidence of record establishes that [Employee] has an impairment rating of 11% of the whole person as a result of his “covered” illness of multiple myeloma, based on the Guides.

[Employee] therefore qualifies for $27,500.00 in impairment benefits under Part E of EEOICPA, pursuant to 42 U.S.C. § 7385s-2(a)(1), and his claim for those benefits is accepted for that amount.

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch

Page 1239

EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

In 2004, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] each filed a claim for survivor benefits under the Act. You stated on the forms that you were filing for the multiple myeloma of your late father, [Employee], hereinafter referred to as “the employee.” A pathology report establishes that the employee was diagnosed with multiple myeloma on May 8, 1991. The death certificate shows the causes of death on May 21, 1991 were shock, gastric bleeding due to stress ulcers and sepsis, with a significant contributing factor of multiple myeloma.

On the Form EE-2, you indicated the employee was a member of the Special Exposure Cohort (SEC). The Form EE-3 stated the employee was employed as a roofer by Hannin Roofing at the Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, for the period of January 1, 1970 to December 31, 1982.

The district office verified that the employee worked for Hannin Roofing at the Paducah GDP for the period April 1, 1977 to September 30, 1978.

In support of your claims for survivorship, you submitted the death certificate of the employee which showed he was divorced at the time of his death. In addition, you submitted evidence that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] are the natural children of the employee and that at the time of the employee’s death, you were each over the age of 23, except for [Claimant #12], who was 22 years old. There was no evidence that [Claimant #12] was in school full-time or that any of you were incapable of self-support at the time of the employee’s death.

On July 14, 2004, the FAB issued a final decision, finding that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] were each entitled to compensation under Part B of the Act in the amount of $11,538.46. [Claimant #14], [Claimant #15], and [Claimant #16] then filed claim forms in 2005 as the stepchildren of the employee. A letter of objection requesting reopening was submitted, protesting the inclusion of [Claimant #2] as an eligible survivor, since her marriage certificate showed a different father and mother than the employee and his spouse. On July 11, 2005, the Director of DEEOIC issued a Director’s Order, vacating the final decision of July 14, 2004 and requiring the district office to develop survivorship eligibility and issue a new recommended decision.

On May 8, 2006, the Jacksonville district office issued a recommended decision, concluding that all the claimants are entitled to survivor compensation of $9,375.00 each under Part B of the Act, and that [Claimant #15] is entitled to survivor compensation of $125,000.00 under Part E of the Act. The district office recommended denial of all the other survivor claims under Part E of the Act.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. This period expired on July 7, 2006. The FAB received written notification that [Claimant #16], [Claimant #14], and [Claimant #15] each waived any and all objections to the recommended decision. The FAB received letters of objection from [Claimant #7] and [Claimant #5], and letters of objection and request for a hearing from [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #6], [Claimant #9], and [Claimant #12]. The hearing was held on September 15, 2006, in Paducah, Kentucky.

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. By letter dated October 4, 2006, the transcript was forwarded to the hearing attendees ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #9], [Claimant #12], [Claimant #14], [Claimant #15], and [Claimant #16]). No response was received.

OBJECTIONS

The objections from each of the claimants stated that [Claimant #14], [Claimant #15], and [Claimant #16] are the stepchildren of the employee, not his children, and should not be entitled to receive any compensation.

During the hearing, the marital history of the employee and his spouse, the mother of the survivors, was discussed. It was clarified that the employee and your mother ([Employee’s spouse]) married originally in the 1950s, had thirteen children, divorced in the early 1970s, remarried in 1981, and divorced again in 1985. During the first period of divorce, [Employee’s spouse] married [Employee’s spouse’s second husband], and gave birth to [Claimant #14], [Claimant #15], and [Claimant #16]. The hearing discussion verified that [Claimant #14], [Claimant #15] and [Claimant #16] lived with the employee in his home during the period of his remarriage to your mother.

After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

1. You each filed a claim for survivor benefits under the Act.

2. The employee was diagnosed with multiple myeloma on May 8, 1991 and died on May 21, 1991.

3. The employee was employed at the Paducah GDP from April 1, 1977 to September 30, 1978.

4. [Claimant #1], [Claimant #2], [Claimant#3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant#7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant#11], [Claimant #12] and [Claimant #13] are the employee’s natural children. The employee was divorced at the time of his death. Each of you was over the age of 23 at the time of the employee’s death, except for [Claimant #12] (born [Date of birth]). However, [Claimant #12] did not provide evidence of being in school full-time or being incapable of self-support at the time of the employee’s death.

5. [Claimant #14], [Claimant #15], and [Claimant #16] are the employee’s stepchildren. [Claimant #15] was born on [Date of birth] and was 17 years old at the time of the employee’s death. [Claimant #14] and [Claimant #16] were between the ages of 18 and 23, but did not provide evidence of being in school full-time or incapable of self-support at the time of the employee’s death.

6. The employee’s multiple myeloma caused or contributed to his death.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on May 8, 2006 and the subsequently submitted objections. I find that the decision of the Jacksonville district office is supported by the evidence and the law and cannot be changed.

To qualify as a member of the SEC under the Act, the following requirements must be satisfied:

The employee 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. 42 U.S.C. § 7384l(14)(A). The evidence must also show the employee was monitored for radiation through the use of dosimetry badges or worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges.

The evidence shows that the employee worked at the Paducah GDP from April 1, 1977 to September 30, 1978, which equals more than 250 days prior to February 1, 1992. In addition, he worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges. Therefore, the employee qualifies as a member of the SEC.

The employee’s multiple myeloma is a specified cancer as defined by the Act and implementing regulations. 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005). Part B of the Act defines a “child” as including a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child. 42 U.S.C. § 7384s(e)(3)(B).

There is no minimum or maximum time requirement for a stepchild to have lived in the same household as the employee.[1] [Claimant #2] is determined to be a survivor of the employee, since his name is listed as the father on your birth certificate and there is no evidence you were formally adopted by [Family relative]. [Claimant #14], [Claimant #15] and [Claimant #16] are determined to be stepchildren of the employee, since the evidence indicates you lived with the employee for at least three years and are listed as children in his obituary. Therefore, all of the claimants meet the definition of a survivor under Part B of the Act. 42 U.S.C. § 7384s(e)(3)(A). Therefore, I conclude that you are entitled to $150,000.00, or $9,375.00 each for the employee’s multiple myeloma, pursuant to the Act. 42 U.S.C. § 7384s(a). Since [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] have already received compensation under this section of the Act, no additional funds are payable to you at this time.

The employee was an employee of a DOE contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2). The employee died as a consequence of multiple myeloma.

The term “covered child” means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support. 42 U.S.C. § 73845s-3(d)(2). The evidence of record shows that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11] and [Claimant #13] were each over 23 years old at the time of the employee’s death, with no evidence of being incapable of self-support. [Claimant #12], [Claimant #14], and [Claimant #16] were between the ages of 18 and 23 with no evidence of full-time attendance at school or being incapable of self-support.

Therefore, the claims of [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #13], [Claimant #12], [Claimant #14] and [Claimant #16] under Part E of the Act must be denied because the evidence does not establish that you meet the criteria of “covered” child as defined by the Act. 42 U.S.C. § 73845s-3(d)(2). [Claimant #15] meets the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d).

Therefore, [Claimant #15] is entitled to benefits in the amount of $125,000.00 for the employee’s death due to multiple myeloma. 42 U.S.C. § 7385s-3.

Jacksonville, Florida

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch

[1] Federal (EEOICPA) Procedure Manual, Chapter 2-200.5c(5)

 

 

FREE EVALUATION