Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “Other Law, Reference to.”

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Other Law, Reference to

Native American law

EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On September 10, 2004, the district office issued a recommended decision concluding that [Spouse] had received an award as the widow of the [Employee] under section 5 of the Radiation Exposure Compensation Act.  [Employee] and [Spouse] were married on June 9, 1955.  The death certificate of record establishes that [Employee] died on March 18, 1990.  Another death certificate of record establishes that [Spouse], the employee’s wife, died on October 15, 2001.  Subsequently, nine survivors filed claims for benefits as follows:

On July 1, 2002, [Claimant 1] filed Form EE-2, Claim for Survivor Benefits under EEOICPA, as a surviving child.  She provided a copy of her adoption papers from the Navajo Nation, verifying that the employee and his widow adopted her on July 15, 1969.  [Claimant 1] also provided a copy of her marriage certificate to support her name change.

On July 12, 2002, [Claimant 2] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 2] provided a copy of his birth certificate which listed the employee as his father.

On July 19, 2002, [Claimant 3] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 3] provided a copy of her adoption papers from the Navajo Nation, verifying that the employee and his widow adopted her on July 15, 1969.  She provided a copy of her marriage certificate to support her name change.

On January 21, 2003, [Claimant 4] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  At the time [Spouse], the widow, married the employee, [Claimant 4] was 30 years old.  Based on documents in the file, [Claimant 4] is the daughter of [Spouse] and [Claimant 4’s Natural Father].

On January 22, 2003, [Claimant 5] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 5] provided a copy of her birth certificate which listed [Spouse] as her mother and [Claimant 5’s Natural Father] as her father.  When [Spouse] married the employee, [Claimant 5] was a minor child and resided in the home of [Spouse] and [Employee].

On January 23, 2003, [Claimant 6] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 6] provided a copy of her birth certificate which listed [Spouse] as her mother and [Claimant 6’s Natural Father] as her father.  At the time [Spouse] married the employee [Claimant 6] was 28 years old. 

On January 24, 2003, [Claimant 7] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 7]  provided a copy of her birth certificate which listed [Employee] as her mother and [Claimant 7’s Natural Father] as her father.  When [Spouse] married the employee, [Claimant 7] was a minor child and lived in the home of [Spouse] and [Employee].

On January 31, 2003, [Claimant 8] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 8] provided a copy of her marriage certificate which verified that she was married in August 1949, prior to her mother’s marriage to the employee.   

On February 24, 2004, [Claimant 9] filed form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child.  [Claimant 9] provided a certified copy of a clinical record from Northern Navajo Medical Center Indian Health Services, Shiprock Service Unit, in Shiprock, New Mexico, certifying that her name was [Claimant 9] and that she had previously used [Claimant 9’s Former Name] and [Claimant 9’s Former Name].  The clinic record shows [Employee] as her father, [Claimant 9’s Step-father’s Name] as her step-father and that she was legally adopted by her uncle [Claimant 9’s Adoptive Father’s Name]. 

On August 3, 2004, the district office requested that [Claimant 9] provide verification of either a final decree of adoption or a final judgment of adoption.  The district office informed [Claimant 9] that the evidence submitted supports that she was legally adopted by [Claimant 9’s Adoptive Father’s Name].  Evidence to show that she was not legally adopted by [Claimant 9’s Adoptive Father’s Name] would need to be submitted, for her to be an eligible survivor on [Employee]‘s record.  She was provided 30 days to submit this evidence.  No evidence was submitted.    

On September 10, 2004, the district office issued a recommended decision recommending that [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] were eligible surviving children of [Employee] and that [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] did not establish that they were eligible surviving children of the employee.

[Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have provided evidence to establish they are surviving children or have had step-children relationships with the employee, and therefore as his survivors, are entitled to additional compensation in the amount of $50,000.00, to be divided equally pursuant to 42 U.S.C. § 7384u(a).  [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7]  are each entitled to $10,000.  [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] are not entitled to compensation because they have not established that they are an eligible survivor. 

On the dates listed below, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision:

[Claimant 1]                                        September 21, 2004

[Claimant 2]                                        September 22, 2004

[Claimant 3]                                        September 20, 2004

[Claimant 5]                                        September 21, 2004

[Claimant 7]                                        September 17, 2004

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch.  20 C.F.R. § 30.310(a).  If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence submitted to the record and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a).  No objections were raised nor waivers received from [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9].

After considering the record of the claim forwarded by the district office, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1. On September 10, 2004, the district office issued a recommended decision concluding that [Spouse] had received an award as the widow of the [Employee] under section 5 of the Radiation Exposure Compensation Act.  [Employee] and [Spouse] were married on June 9, 1955.  The record establishes that [Employee] died on March 18, 1990.  The record establishes that [Spouse], the employee’s wife, died on October 15, 2001.  Subsequently, [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 4], [Claimant 5], [Claimant 6], [Claimant 7], [Claimant 8], and [Claimant 9] filed claims for benefits

2. [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have provided evidence to establish they are surviving children or have had step-children relationships with the employee.

3. [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] are not entitled to compensation because they have not established that they are eligible survivors of the employee. 

4. In cases involving a stepchild who was an adult at the time of marriage, supportive evidence may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc.  In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful.  Also, evidence such as copies of insurance policies, wills, photographs (i.e., attendance in the stepchild’s wedding as the father or mother), and newspaper articles (i.e., obituary) may be considered.  No evidence has been submitted to support this type of relationship with [Claimant 4], [Claimant 6], or [Claimant 8] and the employee.

Based on the above noted findings of fact in this claim, the Final Adjudication Branch hereby also makes the following:

CONCLUSIONS OF LAW

Per Chapter 2-200 (September 2004) of the Federal (EEOICPA) Procedure Manual, a stepchild is considered a child if he or she lived with the employee in a regular parent-child relationship.  [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have established they lived with the employee in a regular child/step-child relationship with [Employee] pursuant to 42 U.S.C. § 7384u(e)(1)(B) of the EEOICPA and are entitled to compensation in the amount of $10,000.00 each.

[Claimant 9] has established that she was adopted by [Claimant 9’s Adoptive Father’s Name] and pursuant to 25 U.S.C. § 1911 of the Indian Child Welfare Laws, Indian tribes have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where jurisdiction is otherwise vested in the State by existing Federal law.  Pursuant to the Navajo Nation Code, 9 NNC § 611 (1960), the natural parents of the adoptive child, except a natural parent who is also an adoptive parent or the spouse of an adoptive parent, shall be relieved of all parental responsibilities for such child or to his property by descent or distribution or otherwise.

Accordingly, an adopted Navajo child may claim EEOICPA benefits only as a survivor of her adopted father, not her natural father.  Please note that in order to terminate parental rights under Navajo law there must be a “final decree of adoption” – not just a “final judgment of adoption.”  Therefore [Claimant 9] is not an eligible surviving child of the employee.

[Claimant 4], [Claimant 6], and [Claimant 8] are not considered eligible surviving children of [Employee], because they did not establish a relationship pursuant to Chapter 2-200 (September 2004) of the Federal (EEOICPA) Procedure Manual and 42 U.S.C. § 7384s(e)(3)(B) and are not entitled to compensation.

The undersigned has reviewed the record and the recommended decision issued by the district office on September 10, 2004, and finds that your claims are in accordance with the facts and the law in this case.  It is the decision of the Final Adjudication Branch that your claims are accepted in part and denied in part.

DENVER, CO

Joyce L. Terry

District Manager

EEOICPA Fin. Dec. No. 63743-2006 (Dep’t of Labor, November 21, 2006)

NOTICE OF FINAL DECISION FOLLOWINGREVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the claims of [Claimant #1], [Claimant # 6], [Claimant #7], [Claimant #8]and [Claimant # 9] for compensation under Part B, and of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] under Part E, of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claims of [Claimant #1] under Parts B and E, as well as the claims of [Claimant #2], [Claimant #3] and [Claimant #4] under Part E are denied, and the claims of [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part B are approved.

STATEMENT OF THE CASE

On November 29, 2004, [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5 ], [Claimant # 6], [Claimant #7], [Claimant #8] and [Claimant #9] filed Forms EE-2, claiming survivor benefits under Parts B and E of EEOICPA as the children of the employee.  [Claimant #1] filed such a claim on June 14, 2005, as the spouse of the employee.  The Department of Justice (DOJ) confirmed on January 11, 2005 that [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and[Claimant #9] received, on November 22, 2004, an award under Section 5 of the Radiation Exposure Compensation Act (RECA), as the eligible surviving beneficiaries of the employee, for the condition of pneumoconiosis. 

Documents, including birth, marriage and death certificates, birth affidavits and a marital status and family profile issued by the Navajo Nation, and a decree issued by a judge on December 22, 1978, confirmed that [Claimant #2], born on [Date of Birth], [Claimant #3], born on [Date of Birth], [Claimant #4], born on [Date of Birth], [Claimant #5], born on [Date of Birth], [Claimant #7], born on [Date of Birth], [Claimant #8], born on [Date of Birth] and [Claimant #9], born on [Date of Birth], are children of the employee.  Another birth certificate states that [Claimant #6] was born on [Date of Birth] and that her mother was [Claimant #6’s mother], who is also listed as the mother on the birth certificates of [Claimant #7], [Claimant #8] and [Claimant #9].  Subsequently, an obituary from a newspaper was submitted which listed [Claimant #6] as a surviving daughter of the employee.

The death certificate of the employee states that he died on December 1, 1990 and that, at the time of his death, he was married to [Claimant #1’s maiden name].  A marriage certificate confirms that [Claimant #1’s maiden name] was the name of [Claimant #1] until her marriage to the employee, on June 18, 1950.  The death certificate states that the “informant” was [Claimant #2], who, according to his birth affidavit, is the son of the employee and [Claimant #1].

The file also includes a Decree of Dissolution of Marriage, concerning the marriage of the employee and [Claimant #1].  The Decree states that an “absolute divorce” was “granted to the plaintiff,” [Employee], and that this was ordered, on December 22, 1978, by a judge of the Court of the Navajo Nation.  A marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation, on January 10, 2002, also stated that the employee and [Claimant #1] were divorced on December 22, 1978.

The DOJ submitted a document signed on October 8, 2002 by “[Claimant #1]” on which a box was checked indicating that she was not in a legal or common-law marriage to the employee for at least one year prior to his death.  On August 1, 2005, her representative submitted an undated affidavit signed by “[Claimant #1]” stating that she was never divorced from the employee, that she did not knowingly check the box on the DOJ document, that she always uses her middle initial ([Middle initial]) when signing her name, that she needs translation of all documents into Navajo and that she relied on the assistance of the Shiprock Office of the Navajo Uranium Workers in pursuing her claim.

The case was referred to the Office of the Solicitor and the Solicitor responded with an opinion dated December 7, 2005.  The district office then obtained statements from [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], confirming that they had not filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  On April 6, 2006, the district office sent letters to [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5], asking if they had filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  No response to those letters has been received.

On April 11, 2006, the Denver district office issued a recommended decision, concluding that [Claimant #1] is not entitled to compensation under Part B of the Act, but that [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] were each entitled to $6,250 (1/8th of $50,000) under Part B.  The recommended decision also concluded that [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant # 4] are not entitled to compensation under part E of the Act, since the evidence did not support they are eligible survivors of the employee, as defined in 42 U.S.C. § 7385s-3.  The recommended decision also described the criteria which have to be met to be considered a “covered child” under Part E. 

The recommended decision held in abeyance the claims of [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] under Part B, until their response to the inquiry as to whether they had ever filed, or received benefits under, a lawsuit or state workers’ compensation claim.  It also stated that further development of the evidence must take place before a decision could be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part E.       

On April 21, 2006, the FAB received [Claimant #6]‘s, [Claimant #7]‘s and [Claimant #8]‘s waivers of their right to object to the recommended decision.  On June 7, 2006, the FAB received a letter from Lorenzo Williams, the representative of [Claimant #1], expressing objections to the recommended decision and requesting a hearing.  Mr. Williams submitted another letter, dated July 3, 2006, which again stated his objections to the recommended decision, withdrew the request for a hearing and requested a review of the written record.   On September 18, 2006, [Claimant #1], through her representative, was provided twenty days to submit any additional evidence she wished considered.  No additional evidence was submitted. 

OBJECTIONS

The letters of objection included numerous allegations of inappropriate conduct by DOJ, DEEOIC, the Solicitor, government agencies of the Navajo Nation, the Office of Navajo Uranium Workers and [Claimant #1]‘s previous representative.  No evidence was submitted confirming that any such conduct occurred which would have had any bearing on the outcome of the case.

The basic objection of Lorenzo Williams is that the evidence as to whether [Claimant #1] was married to the employee at the time of his death was not properly evaluated.  In particular, he objected that the affidavit made by [Claimant #1] on August 1, 2005, indicating that she was never divorced from the employee, was not considered.  However, its evidentiary value must be weighed in light of the other evidence in the file.  It is true that the employee’s death certificate states that, at that time, he was married to [Claimant #1].  However, it also indicates that the information was based solely on information received from [Claimant #2].

On the other hand, the document which appears to have been signed by [Claimant #1] on October 8, 2002 states that she was not married to the employee at the time of his death.  It should be noted that another document in the file, her marriage certificate, includes a signature of [Claimant #1] without a middle initial. 

Furthermore, an official document was issued by a judge on December 22, 1978 stating that a divorce was granted dissolving the marriage of [Claimant #1] and the employee.  A stamp from the clerk of the court states that the copy in the file is an accurate copy of the document.  Lorenzo Williams, the representative of [Claimant #1] has noted that the document incorrectly states that the two were married in 1951, rather than 1950, as stated in the marriage certificate, and that there is also a stamp indicating the document was “received” in 1991, after the death of the employee.  However, he presented no argument or evidence that these facts would in any way invalidate the divorce decree, which was ordered and signed by the judge on December 22, 1978.

In addition, the file includes another official document, a marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation on January 10, 2002, which further confirms that [Claimant #1] and the employee were divorced on December 22, 1978.

The probative value of these two official documents far outweigh the unclear and conflicted statements from [Claimant #1] and the statement on the death certificate which simply repeated information obtained from one of her children with the employee.

Also, it should be noted that the evidence supports that, after December 22, 1978, the employee had at least three more children with another woman, [Employee’s second wife].  This does not, in and of itself, constitute evidence of the employee’s marital status.  It does, however, lend some credence to the proposition that the employee no longer considered himself married to [Claimant #1]. 

Finally, as the Solicitor noted in the opinion of December 7, 2005, 42 U.S.C. § 7384u provides for payment of compensation to an individual “who receives, or has received” an award under section 5 of the RECA.  A determination is made by DEEOIC concerning an eligible survivor under that section only if all the individuals who received the RECA award are deceased.  Since, in this case, the individuals who received the award under section 5 of the RECA are still alive, [Claimant #1] would not be eligible for benefits under Part B of the EEOICPA even if it were determined that she was an eligible surviving spouse under § 7384u(e).   

Upon review of the case record, the undersigned makes the following:

FINDINGS OF FACT

1.         You all filed claims for benefits under Parts B and E of EEOICPA.

2.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] received compensation for the condition of pneumoconiosis, as eligible surviving beneficiaries of the employee, under Section 5 of RECA.

3.         The employee died on December 1, 1990.  At the time of his death, [Claimant #2] was 36 years old, [Claimant #3] was 28, [Claimant #4] was 26, [Claimant #5] was 19, [Claimant #6] was 11, [Claimant #7] was 9, [Claimant #8] was 7 and [Claimant #9] was 6.  [Claimant #2], [Claimant #3] and [Claimant #4] were not incapable of self-support when the employee died.

4.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #7], [Claimant #8] and [Claimant #9] are children of the employee. 

5.         [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did not receive any settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness.  [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have not confirmed whether or not they received a settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness. 

6.         [Claimant #1] was married to the employee from June 18, 1950 until December 22, 1978, when they were divorced.

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.  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, including the letters of objection, and must conclude that no further investigation is warranted.

The EEOICPA provides, under Part E, for payment of compensation to survivors of covered employees.  It specifically states in 42 U.S.C. § 7385s-3 that if “there is no covered spouse. . . payment shall be made in equal shares to all covered children who are alive.”  It defines a “covered spouse” as “a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death,” and a “covered child” as “a child of the employee who, as of the employee’s death. . .had not attained the age of 18 years. . .had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full time student. . .since attaining the age of 18 years; or. . .had been incapable of self-support.”  

For the foregoing reasons, the undersigned finds that the evidence does not support that [Claimant #1] was a “covered spouse” or that [Claimant #2], [Claimant #3] or [Claimant #4] were “covered” children, and their claims for benefits under Part E of EEOICPA are hereby denied.

The EEOICPA provides, under 42 U.S.C. § 7384u, for payment of compensation in the amount of $50,000 to an “individual who receives, or has received, $100,000 under section 5 of the Radiation Exposure Compensation Act.”  [Claimant #1] did not receive an award under section 5 of RECA and, therefore, she is not entitled to compensation under Part B. 

[Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did receive an award under section 5 of RECA and, therefore, they each have an entitlement to $6,250 ($50,000 divided by 8) under Part B.  Since [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] have affirmed that they have not received a payment from a tort suit for the employee’s exposure, there is no offset to their entitlement, under 42 U.S.C. § 7385 of the Act, and compensation is hereby awarded to [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], in the amount of $6,250 each.

When [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have responded to the inquiry as to whether they have received a payment from a lawsuit based upon their father’s employment-related exposure, decisions will be issued on their claims for compensation under Part B of the Act.

Upon further development of the evidence, decisions will be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] for compensation under Part E.       

Washington, DC

Richard Koretz, Hearing Representative

Final Adjudication Branch

State law

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

NOTICE OF FINAL DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 7384s(f) states:

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

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

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

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

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

August 26, 2002

Denver, CO

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 44377-2004 (Dep’t of Labor, October 6, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is a 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

STATEMENT OF THE CASE

You each filed a Form EE-2, Claim for Survivor Benefits, for the bladder cancer of your late husband and father, [Employee], hereinafter referred to as “the employee.” 

On the Form EE-3, Employment History, you stated the employee was employed as a pipefitter with several sub-contractors in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant, Y-12 plant, and Oak Ridge National Laboratory (X-10) with no listed dates other than at least 3 years at K-25 and several years at Y-12; and in Paducah, Kentucky, at the gaseous diffusion plant for 3-4 months in the 1950s.  The evidence of record establishes that the employee worked at the K-25 gaseous diffusion plant (GDP) for Rust Engineering from 1975 to 1978, along with other periods of employment for various contractors at each of the Oak Ridge plants.

On the Forms EE-2, you indicated the employee was a member of the Special Exposure Cohort (SEC).  To qualify as a member of the SEC, the following requirements must be satisfied:

(A)     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, and, during such employment – –

(i)                  was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii)                worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.  42 U.S.C. § 7384l(14)(A).

The employee worked at the K-25 gaseous diffusion plant (GDP) for intermittent periods from at least 1975 to 1978.  For SEC purposes, the employee is shown to have worked more than 250 work days prior to February 1, 1992, and was monitored through the use of dosimetry badge number [Number Deleted].  Therefore, the employment meets the criteria for inclusion in the SEC.  42 U.S.C. § 7384l(14).

The medical evidence establishes the employee was diagnosed with bladder cancer on January 21, 1992.  Bladder cancer is a specified cancer as defined by the Act and implementing regulations, if onset is at least five years after first radiation exposure.  42 U.S.C § 7384l(17), 20 C.F.R. § 30.5(ff). 

In support of your claim for survivorship, you ([Employee’s Spouse/Claimant #1]) submitted your marriage certificate which states that you married the employee on September 10, 1994, and the employee’s death certificate, which states that you were married to the employee on the date of his death, October 31, 1996. 

In support of your claims for survivorship, the living children of the employee submitted birth certificates and marriage certificates. 

On April 26, 2005, the Jacksonville district office issued a recommended decision[1], concluding that the living spouse is the only entitled survivor and is entitled to survivor benefits in the amount of $150,000 for the employee’s bladder cancer.  The district office recommended denial of the claims of the living children.

Attached to the recommended decision was a notice of claimant rights, which stated that claimants had 60 days in which to file an objection to the recommended decision and/or request a hearing.  These 60 days expired on June 25, 2005.  On May 5, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waived any and all objections to the recommended decision.  On May 27, 2005, the Final Adjudication Branch received an objection to the recommended decision and request for an oral hearing signed by all the living children.  The hearing was held by the undersigned in Oak Ridge, Tennessee, on August 2, 2005.  [Claimant #2], [Claimant #4], [Claimant #3], and [Claimant #7] were duly affirmed to provide truthful testimony.

OBJECTIONS

In the letter of objection, you stated that you believe the rules and regulations governing the Act are contradictory.  You also stated you believe your privacy rights have been violated under the Privacy Act of 1974.  During the hearing, you stated that the pre-marital agreement, which you believe is valid under the rules of the State of Tennessee, should be recognized by the Federal government; that the employee’s will should take precedence over the way the Act breaks down survivor entitlement; that the documentation you gathered was used to benefit [Employee’s Spouse] without her having to do anything and that the documentation you gathered should have been maintained for your benefit only; and that new information concerning the survivorship amendment to the Act in December 2002 should have been forwarded to all claimants, since you were basing your actions on a pamphlet released in August of 2002.  You were provided with a copy of the Privacy Act of 1974 which includes instructions on filing a claim under that Act. 

In accordance with §§ 30.314(e) and (f) of 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), 30.314(f).  By letters dated August 23, 2005, the transcript was forwarded to you.  On September 15, 2005, the Final Adjudication Branch received a letter from [Claimant #2], clarifying statements made during the hearing.

The law, as written and amended by Congress, establishes the precedence of survivors in each section of the Act and the apportionment of any lump-sum compensation.  Section 7384s(e) of the Act (also known as Part B) explains who is entitled to compensation if the covered employee is deceased:

(e)  PAYMENTS IN THE CASE OF DECEASED PERSONS–(1)  In the case of a covered employee who is deceased at the time of payment of compensation under this section, whether or not the death is the result of the covered employee’s occupational illness, such 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 such surviving spouse.

(B)  If there is no surviving spouse described in subparagraph (A), such payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.

(C)  If there is no surviving spouse described in subparagraph (A) and if there are no children described in subparagraph (B), such payment shall be made in equal shares to the parents of the covered employee who are living at the time of payment.

(D)  If there is no surviving spouse described in subparagraph (A), and if there are no children described in subparagraph (B) or parents described in subparagraph (C), such payment shall be made in equal shares to all grandchildren of the covered employee who are living at the time of payment.

(E)  If there is no surviving spouse described in subparagraph (A), and if there are no children described in subparagraph (B), parents described in subparagraph (C), or grandchildren described in subparagraph (D), then such payment shall be made in equal shares to the grandparents of the covered employee who are living at the time of payment.

(F)  Notwithstanding the other provisions of this paragraph, if there is–

(i)  a surviving spouse described in subparagraph (A); and

(ii)  at least one child of the covered employee who is living and a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse, and the other half of such payment shall be made in equal shares to each child of the covered employee who is living and a minor at the time of payment.  42 U.S.C. § 7384s(e).

Section 7384s(e)(3)(B) of the Act explains that a “child” includes a recognized 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).

The Office of the Solicitor provided an opinion, dated December 1, 2004, concerning the pre-nuptial agreement signed on September 9, 1994, by the employee and [Employee’s Spouse].  In that opinion, the Solicitor determined that a widow with a valid claim under the Act is not bound by an otherwise legally valid agreement, such as a pre-nuptial agreement or a will, in which she promised to forego that award.  The opinion did not contain a ruling on the validity of the pre-nuptial agreement itself; only that the Energy Employees Occupational Illness Compensation Program Act specifically maintains that a beneficiary cannot be deprived of an award that he or she is entitled to under the statute. 

FINDINGS OF FACT

1.  You each filed a Form EE-2, Claim for Survivor Benefits.

2.  The employee was diagnosed with bladder cancer on January 21, 1992.

3.  The employee was employed at the K-25 gaseous diffusion plant (GDP) for intermittent periods from at least 1975 to 1978 and was monitored through the use of dosimetry badge number [Number Deleted].

4.  The employee is a member of the Special Exposure Cohort. 

5.  The employee’s bladder cancer is a specified cancer.

6.  [Employee’s Spouse] was the employee’s spouse at the time of his death and at least one year prior.

7.  On April 26, 2005, the Jacksonville district office issued a recommended decision.

8.  On May 5, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waived any and all objections to the recommended decision.

9.  The Final Adjudication Branch received a letter of objection from [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], and [Claimant #7], and a hearing was held on August 2, 2005.

CONCLUSIONS OF LAW

The undersigned has reviewed the record and the recommended decision dated April 26, 2005 and concludes that the employee is a member of the Special Exposure Cohort, as defined by the Act, and that the employee’s bladder cancer is a specified cancer, as defined by the Act and implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17), 20 C.F.R. § 30.5(ff).

I find that the recommended decision is in accordance with the facts and the law in this case, and that [Employee’s Spouse], the eligible living spouse, is entitled to survivor benefits in the amount of $150,000 for the employee’s bladder cancer, pursuant to the Act.  42 U.S.C. §§ 7384s(a).  I also find that [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], and [Claimant #7] are not eligible survivors under the Act, and your claims for compensation are denied.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

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 dosimetry 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

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

NOTICE OF FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

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

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

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

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

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

The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on , lung cancer on , and metastatic liver cancer on January 16, 2007 .  Those diagnoses occurred more than five years after he began employment at a covered facility.  Lung cancer and bone cancer are specified cancers when diagnosed after first exposure, as they were in his case.  20 C.F.R. § 30.5(ff)(2), (3).  Bladder cancer is also a specified cancer when diagnosed more than five years after first exposure, as it was in his case.  20 C.F.R. § 30.5(ff)(5)(iii)(K).  As a member of the SEC who was diagnosed with a specified cancer, the employee is a “covered employee with cancer.”  42 U.S.C. § 7584l(9).  The employee’s liver cancer is not a specified cancer because it was diagnosed as a metastatic cancer.  Liver cancer is a specified cancer only when it is a primary cancer.  20 C.F.R. § 30.5(iii)(O).     

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

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

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

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

The statute provides that medical benefits should be provided to a covered employee with an occupational illness for the treatment of that covered illness.  These benefits are retroactive to the employee’s application date.  The evidence of record establishes that the employee is a covered employee with the occupational illnesses of bladder cancer and bone cancer under Part B.  He filed a claim for benefits based on bladder cancer and bone cancer prior to his death.  He is entitled to medical benefits for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending .  Accordingly, the Estate of [Employee] is awarded medical benefits for the employee’s condition of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. 

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

William B. Talty

Hearing Representative

Final Adjudication Branch

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