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

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Subcontractors

Atomic weapons employers

EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004)

NOTICE OF FINAL DECISION

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on the above-designated 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 hereby denied.

STATEMENT OF THE CASE

You filed an EE-2 on March 18, 2002 claiming your spouse, the employee, was diagnosed with cancer and renal disease as a result of his employment at a DOE facility.

The Employment History Form you completed indicated he was employed with Emmett Lowry Construction Company at the Texas City Chemical Plant and “other construction companies” at the Texas City Chemical Plant.  He worked out of Laborer’s Local #116 from the 1950’s to the 1960’s.

You submitted a death certificate showing that he died on May 23, 1997 due to lung cancer and at the time of his death, you were his spouse.  A pathology report dated April 2, 1997 established his diagnosis of lung cancer.  On April 17, 2002 your EE-2 was faxed to the district office from Congressman Nick Lampson’s office, and it is noted that on that EE-2, you checked “other lung condition” as well as cancer and renal disease. 

On June 28, 2002, the U.S. Department of Energy responded to a request for confirmation that the employee worked at Texas City Chemicals, from the 1950’s, 1960’s and 1970’s.  They responded by stating that they had no information on the employee.  An affidavit was received from Willie Williams stating he worked with the employee at Bellco Industrial Engineering American Oil Company and worked out of Labor Hall #116 for A.A. Pruitt Construction, American Oil Company, PG Bell Southwest Industrial Company, and for Amoco Chemical.

Another affidavit was received from Eligah Smith stating he worked at Amoco Chemical Company in 1957 to 1964 and saw the employee working with other construction workers.  An affidavit from Lloyd C. Calhoun stated he worked for Bellco Industrial, American Oil Company out of Union Hall #116 from 1952 to 1954 with the employee and for Emmett Lowry Construction from 1954 to 1958.  An affidavit from Henry Williams stated that he worked with the employee at Amoco Chemicals, Bellco Industrial Engineering in 1951 to 1955, and for A.A. Pruitt Construction at Amoco Chemical in the 1950’s to the 1960’s.

Amoco Chemical, aka Texas City Chemicals, Inc. was an Atomic Weapons Employer from 1952 to 1956. 

Also received were your spouse’s social security administration records.  However none of the employment evidence showed the employee worked directly for Texas City Chemical. You submitted medical evidence that included a pathology report that diagnosed the employee with lung cancer on April 2, 1997.   The district office erroneously forwarded your case to NIOSH for dose reconstruction. 

On March 15, 2004 and March 22, 2004 the district office notified you by letter that contractors and subcontractors of Atomic Weapons Employers are not entitled to compensation under the EEOICPA and requested that you send evidence that the employee was directly employed with Texas City Chemicals.  You were given 30 days to submit such evidence.

On March 22, 2004 and April 7, 2004 the claims examiner contacted you by telephone to discuss the EEOICPA and to explain that contractors and subcontractors at AWE facilities are not covered under the Act.

On April 15, 2004, the Denver district office recommended denial of your claim on the basis that the evidence submitted did not establish [Employee] was employed at a covered facility during a covered period.

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 pursuant to 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 objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).

On June 15, 2004 you filed an objection to the recommended decision, and stated you disagreed with the recommended decision.  You requested an oral hearing.

A hearing was held on September 1, 2004 in Houston, Texas. You attended the hearing and were accompanied by Stephen Holmes, Galveston County Commissioner.  At the hearing Mr. Holmes testified that the difference between atomic weapons employers and those that worked for the DOE is not very clear in the fact sheets provided by the Department of Labor.  Also, contractors and subcontractor at other sites are covered.  The contractors and subcontractors at the AWE facilities handled the same materials that employees of the DOE handled and they did the same type of work. 

No exhibits were presented at the hearing.  On October 3, 2004, the Final Adjudication Branch received a fax from you.  The fax requested that I reconsider the recommendation of your claim.  You stated that the EEOICPA Fact Sheet, the Federal Register and the list of Frequently Asked Questions stated that covered workers within Texas City Chemicals (American Oil Company, Borden, Inc. Smith-Douglas, Amoco Chemical Company) 1952-1956 will include contractors or subcontractors.  You also stated that the district office sent your claim to NIOSH, your claim was in process before and after the amendment of October 27, 2003, that you were led to believe that EEOICPA had approved your claim.

After considering the case record of the claim, the recommended decision forwarded by the Denver district office, and your testimony at the hearing, the FAB hereby makes the following:

FINDINGSOF FACT

1. You filed a claim for survivor benefits under the EEOICPA on March 18, 2002.

2. You claimed the employee, [Employee], contracted lung cancer as a result of his employment at a DOE facility, Texas City Chemicals.

3. You submitted medical evidence of lung cancer, a covered medical condition under the Act.

4. Texas City Chemicals is an Atomic Weapons Employer.

5. The employment evidence submitted does not establish [Employee] worked directly for Texas City Chemicals, rather, it shows he worked for subcontractors to Texas City Chemicals.

6. You submitted a marriage certificate establishing you are the eligible beneficiary of [Employee].  You also submitted a death certificate showing you were his spouse at the time of his death.

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

CONCLUSIONSOF LAW

1.      The purpose of the EEOICPA, as stated in 42 U.S.C. § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.”  Section 7384l(3) defines the term “atomic weapons employee” to mean an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. In order to be afforded coverage as defined by 42 U.S.C. § 7384l(15) of the EEOICPA, a claimant must establish that the claimed employee was a covered employee who had been diagnosed with an “occupational illness” which means “a covered beryllium illness, cancer referred to in section 7384l(9)(B), specified cancer, or chronic silicosis, as the case may be.”  The evidence in your case establishes the employee was diagnosed with a covered condition, however, the evidence does not support he was a covered employee employed at a covered facility.

2.      Chapter 2-500.6a (June 2002) of the Federal (EEOICPA) Procedure Manual states that subcontractors and contractors of AWE facilities are not covered.

3.      20 C.F.R. Parts 1 and 30, effective February 24, 2003 states that this new final rule will apply to all claims filed on or after this date, and all claims that are pending on February 24, 2003.

4.      You have established that you are the eligible surviving beneficiary of the employee pursuant to 42 U.S.C. §7384s.

5.      Other lung conditions and renal disease are not covered conditions under § 7384l(15) of the EEOICPA.

6.      You not entitled to compensation pursuant to 42 U.S.C. § 7384l of the Energy Employees Occupational Illness Compensation Program Act.

Denver, CO

Janet R. Kapsin

Hearing Representative

EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004)

NOTICE OF FINAL DECISION

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on 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 reason discussed below, your claim for benefits is denied.

STATEMENT OF THE CASE

You filed a claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), on March 8, 2004. You indicated your employment classification or type of employment as Atomic Weapons Employer.  On Form EE-3 (Employment History for Claim under EEOICPA) you stated that you had been employed as a supervisor for the installation of refrigeration equipment and other work while employed by the Way Engineering Company at Texas City Chemical, Inc., located in Texas City, Texas from 1952 until 1956.  The Department of Energy (DOE) has identified Texas City Chemicals as an Atomic Weapons Employer (AWE) for the time period 1952 through 1956.  You stated that as a result of your exposure at Texas City Chemicals while employed by Way Engineering Co. that you developed a skin disease that was possibly skin cancer.

The district office reviewed your application and evidence.  In seperate letters dated March 15, 2004, the district office noted that you had not submitted medical or employment evidence in support of your claim.   The letter addressing employment evidence indicated that while we had initiated a request for proof of employment with the DOE, they had been unable to verify your employment at Texas City Chemical, Inc.  The district office asked you to provide evidence of your employment and listed a variety of documents such as time and attendance forms, wage statements, or other records that could be used to establish employment.  The letter included Form EE-4 (Affidavit of Employment) that you could use to have other individuals complete statements in support of your employment allegations.  The Social Security Administration (SSA) Form SSA-581, which can be used to verify your Social Security employment and employer history with your authorization, was included with the letter for your use if you wished the district office to request the information directly from SSA.  A follow-up request for medical information was sent to you on May 26, 2004.

On June 8, 2004, you had a telephone conversation with a district office claims examiner.  You stated that you had been employed by Way Engineering which was a contractor at the Texas City Chemical site and you were not employed directly by Texas City Chemical, Inc.  The claims examiner informed you that employees of contractors or subcontractors of an Atomic Weapons Employer were not “covered employees” under the EEOICPA. 

On June 9, 2004, the district office informed you in a letter that under the EEOICPA only employees hired directly by the AWE facility (such as Texas City Chemicals) were covered under the Act.  The letter explained that the definition of an “atomic weapons employee” is an individual employed by an Atomic Weapons Employer during a period when the employer was processing or producing for the use by the United States material that emitted radiation and was used in the production of atomic weapons, excluding uranium mining and milling.  The letter requested that you provide evidence that you were employed directly by Texas City Chemical, Inc. and explained that if additional employment evidence was not received within 30 days, a recommended decision would be issued based on the information in file.

On June 15, 2004, the district office received medical evidence provided by your physician, Dr. Anh V. Nguyen, M.D.   This evidence included a pathology report  describing a specimen from skin on your left forearm obtained on May 4, 2004 and provided a diagnosis of malignant melanoma (skin cancer).

On July 12, 2004, the district office issued a recommended decision to deny your claim.  The recommended decision stated that the evidence of record did not establish that you could be considered a “covered employee” as that term is defined under 42 U.S.C. § 7384l.  The file was transferred to the Final Adjudication Branch (FAB) on that date.

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 pursuant to 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 in the record and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).

You have not raised any objections to the district office’s recommended decision pursuant to § 30.310(a) of the implementing regulations and the 60-day period for filing such objections, as allowed under § 30.310(a) of the implementing regulations (20 C.F.R. § 30.310 (a)), has expired.

Based on the evidence contained in the case record, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1.      You filed a claim for compensation on March 8, 2004.

2.      You did not provide evidence sufficient to establish that you had covered employment with a DOE or AWE facility.

3.      You provided medical evidence that established you had been diagnosed with malignant melanoma (skin cancer) on May 5, 2004.

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

CONCLUSIONS OF LAW

Section 7384l states:

(1)  The term “covered employee” means any of the following:

(A)  A covered beryllium employee.

(B)  A covered employee with cancer.

(C)  To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

(2)  The term “atomic weapon” has the meaning given that term in section 11 d.* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(d)).

(3)  The term “atomic weapons employee” means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

(4)  The term “atomic weapons employer” means an entity, other than the United States, that–

(A)  processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(B)  is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

(5)  The term “atomic weapons employer facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

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 20 C.F.R. § 30.110.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”  

You stated that you were employed by a subcontractor (The Way Engineering Co.) at an Atomic Weapons Employer facility (Texas City Chemicals, Inc.) and you were not an employee of Texas City Chemicals, Inc.   EEOICPA coverage for Atomic Weapons Employers (AWE) is not extended to contractors and subcontractors of the AWE but only to individuals employed directly by the AWE.  Your work at the AWE site is not qualifying because you worked for a company other than the AWE.  Therefore, you are not a “covered employee” under the Act.

The undersigned has reviewed the recommended decision issued by the district office on July 12, 2004, and finds that it is in accordance with the facts and the law in this case.  It is the decision of the Final Adjudication Branch that your claim for compensation is denied.

Denver, Colorado

September 16, 2004

Janet R. Kapsin

Hearing Representative

DOE contractors

EEOICPA Fin. Dec. No. 34291-2003 (Dep’t of Labor, August 1, 2003)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On August 2, 2002, you filed a Claim for Benefits under the EEOICPA, form EE-1, through the Paducah Resource Center.    On the EE-1 form, you indicated that the condition for which you filed your claim was kidney cancer.  You submitted medical records from 1993 to 2001 that showed you had a nephrectomy in April of 1996.  Medical records from Western Baptist Hospital from April of 1996 included an operative report for a right radical nephrectomy and a pathology report that confirmed the diagnosis of large renal cell carcinoma.

You also submitted a Form EE-3 indicating that you were employed as a conservation office for the Kentucky Department of Fish and Wildlife at the Paducah Gaseous Diffusion Plant (GDP) from 1969 to 1973.  You submitted a Department of Energy (DOE) License for Non-Federal Use of Property for the purpose of wildlife development beginning September 4, 1953 and continuing indefinitely.  You also submitted a DOE License for Non-Federal Use of Property for the period January 1, 1990 to December 31, 1995, and you submitted a DOE License for Non-Federal Use of Property for bow deer hunts for the period January 1, 1996 to December 31, 2000.

In addition, you submitted a copy of the five year plan and budget for the West Kentucky Wildlife Management Area for the period July 1, 1985 to June 30, 1990.  You submitted an April 4, 1958 letter from the “Assistant General Counsel” noting that a corrected Quitclaim Deed from the United States of America to the State of Kentucky had been prepared and an August 21, 1989 report from the General Services Administration concluding that the State of Kentucky, Fish and Wildlife Division, was in compliance with the terms of the conveyance of these lands.  You submitted an October 6, 1959 letter from Atomic Energy Commission (AEC) referencing a grant to the Commonwealth of Kentucky and the Department of Fish and Wildlife Resources of a license and permission to enter a portion of the AEC’s lands for the purpose of developing the wildlife on the property and conducting bird dog field trials.  This letter extended the license and permission to additional lands.  In an October 14, 1959 letter, the Director of the Division of Game recommended to the Governor of Kentucky that the license and permission to use the AEC lands be accepted.  He noted that the Division would have no pecuniary obligation for use of the land, apart from patrolling, posting and protecting the land licensed for use by the Division of Fish and Wildlife Resources.

You submitted forms EE-4 from Shirley Beauchamp and Phillip Scott Beauchamp stating you worked for the Department of Fish and Wildlife at the Paducah GDP from 1968 to 1973.  Social Security Earnings records were submitted showing employment with the state of Kentucky from 1971 to 1973.  The Department of Energy advised the district office, however, that DOE had no information regarding your employment.

On November 15, 2002, the district office issued a recommended decision concluding that you were not employed by an entity that contracted with the DOE to provide “management and operating, management and integration, or environmental remediation” as set forth in 42 U.S.C. § 7384l(11)(B)(i) and (ii) and that, accordingly, you were not a covered DOE contractor.  The district office therefore recommended that benefits be denied.

On December 23, 2002, you filed an objection to the recommended decision and requested a hearing.  An oral hearing was held on February 26, 2003.  At the hearing, you testified that you worked for the Kentucky Department of Fish and Wildlife from 1971 to 1973 and that you worked at the Paducah GDP and its surrounding grounds.  You testified that your duties included patrolling the perimeter of the fenced portion of the plant and building two bridges and that you entered the plant through the main gate on a regular basis to remove animals that got into the GDP.  You testified that you did not enter any of the buildings inside the fenced area of the GDP.  You described other duties you performed during this period of employment, and you testified that you checked hunting and fishing licenses and controlled hunting at the reserve.  You testified also that you participated in game sampling in conjunction with the DOE prior to the hunting season and that DOE would collect specific body parts provided by the Department of Fish and Wildlife and ship them for sampling.

FINDINGS OF FACT

You filed a claim for benefits under the EEOICPA on August 2, 2002.  You were employed by the State of Kentucky, Department of Fish and Wildlife from 1971 to 1973.  You were diagnosed with kidney cancer on or about April 13, 1996.  You have not established that you worked in employment covered under the EEOICPA.

CONCLUSIONS OF LAW

A covered employee is eligible for compensation under the EEOICPA for an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). A “covered employee” is eligible for compensation under EEOICPA for a specified “occupational illness.”   A “covered employee,” as defined in §§ 7384l(1),7384l(3),7384l(7),7384l(9), 7384l(11) and § 7384r of the EEOICPA,  includes employees of private companies (an entity “other than the United States”, per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors.  42 U.S.C. §§ 7384l(1),(3),(7),(9), (11); 7384r.  Section 7384(l)(11)(B)(I and ii) defines a “Department of Energy contractor employee” to include

“An individual who is or was employed at a Department of Energy facility by–

(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”

The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined, as well as whether employees of state or federal governments may be considered DOE contractor employees, in EEOICPA Bulletins No. 03-27 (issued May 28, 2003) and No. 03-26 (issued June 3, 2003).  The following definitions have been adopted by the DEEOIC:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Contract –  An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

For a civilian employee of a state or federal government agency to be considered a DOE contractor employee, it must be shown that the government agency employing that individual entered into a contract with the DOE for the accomplishment of one or more services it was not statutorily obligated to perform and that the DOE compensated the agency for that activity.

There is no evidence that the DOE compensated the State of Kentucky, Department of Fish and Wildlife Resources, for any services on behalf of the Department of Energy.  The State of Kentucky was simply given permission to use federal land.  The fact that the State of Kentucky was not required to provide any fees for use of federal property does not, conversely, show that the Department of Energy compensated the State of Kentucky for services provided by the State.  The evidence of record shows simply that the Department of Energy or AEC gave permission for the State of Kentucky to use certain of its lands in order to conduct bird dog trials or hunting or fishing or similar activities.  The Fish and Wildlife division was responsible for the activities that it would otherwise be responsible for under state law.  The quitclaim deed to certain lands was not compensation to the State of Kentucky for any services performed for the Department of Energy, but was conveyed to the State of Kentucky for the purpose of management for wildlife purposes.  The mere presence of an individual on DOE-owned property does not confer covered employment status.

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

Cleveland, Ohio

Anthony Zona

Hearing Representative

EEOICPA Fin. Dec. No. 50247-2004 (Dep’t of Labor, September 16, 2004)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

On October 15, 2003, you filed a claim for benefits under the EEOICPA as the surviving spouse of [Employee] and identified bladder cancer as the diagnosed condition being claimed.  You submitted an Employment History Form (EE-3) on which you stated that Commercial Motor Freight employed your husband at the Portsmouth Gaseous Diffusion Plant (GDP) from December 11, 1954 to December 11, 1981.  You did not state if your husband wore a dosimetry badge while employed.  You submitted an affidavit from Connie Bighouse and J. Frank Bighouse in which they attested that they were employed by Commercial Motor Freight from 1958 to 1985 at the Chillicothe Terminal.  Ms. Bighouse and Mr. Bighouse also attested that your husband worked for Commercial Motor Freight as a driver, delivering and picking up freight at the Goodyear Atomic Corporation.  They did not provide dates of your husband’s employment.  You submitted a copy of your marriage certificate which shows you were married to [Employee] on December 9, 1947.  You submitted a copy of your husband’s death certificate which shows he died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease.  As medical evidence, you submitted a copy of Dr. W. G. Rice’s February 9, 1978 pathology report in which your husband was diagnosed with transitional cell carcinoma of the bladder.

On October 22, 2003, the district office attempted to verify your husband’s employment through the Oak Ridge Institute for Science and Education (ORISE) database but there were no records of your husband’s employment.  On November 18, 2003, Department of Energy (DOE) representative Roger Holt advised, via Form EE-5, that the DOE was unable to verify your husband’s employment but other pertinent evidence existed.  Mr. Holt submitted a copy of your husband’s Personnel Clearance Master Card which shows your husband was granted a “Q” clearance at the request of Goodyear Atomic Corp. and Commercial Motor Freight, Inc. as a truck driver on April 27, 1970 and the clearance terminated on June 23, 1982.  On December 4, 2003, the district office received a copy of your husband’s Social Security Administration itemized statement of earnings which shows he had earnings from Lee Way Holding Company, which is now bankrupt, from 1954 to 1982.  The district office verified, through the bankruptcy trustee, that the earnings from Lee Way Holding represented earnings from Commercial Motor Freight, Inc.  On December 9, 2003, DOE and Bechtel Jacobs Company representative Wendy L. Wilcox advised, via Form EE-5, that no evidence existed in regards to the employment you claimed.  On January 5, 2004, at the request of the district office, Frank Bighouse and Connie Bighouse submitted a supplement to their affidavit regarding your husband’s employment.  Ms. Bighouse attested that she worked with your husband from 1967 until he left the company (no date provided).  Ms. Bighouse and Mr. Bighouse also attested that your husband made deliveries to the GDP in the morning and pickups in the evenings five days a week.  They also attested that he would spend approximately one to two hours on site for each pick up and each delivery.

Based upon the evidence of record, the district office issued a recommended decision on January 14, 2004, in which it concluded that [Employee] was a member of the Special Exposure Cohort as defined by 42 U.S.C. § 7384l(14)(A); that [Employee] was diagnosed with bladder cancer which is a specified cancer as defined by 42 U.S.C. § 7384l(17); and that you are the surviving spouse of [Employee] as defined in 42 U.S.C. § 7384s(e)(3)(A).  The district office recommended payment of your claim for benefits based on its conclusions.  On February 13, 2004, after reviewing the written record, the Cleveland FAB office found that the evidence did not establish that your husband was a contract employee as defined under the Act.  The FAB vacated the recommended decision and remanded your claim to the district office for additional development and the issuance of a new recommended decision.  On March 22, 2004, the district office issued a new recommended decision in which it concluded that the evidence of record did not establish that [Employee] was a “covered employee with cancer” as that term is defined under 42 U.S.C. § 7384l(9)(B).  The district office recommended denial of your claim based on its conclusion.

Section 30.310(a) of the EEOICPA implementing regulations provide that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  On April 13, 2004, you wrote to the FAB and advised that you disagreed with the recommended decision.  You stated that you objected to the decision that your husband’s sub-contracted employment did not constitute a service, but a mere delivery of goods and that he is not considered to be a covered employee with cancer.  You submitted the following evidence in support of your position:

1. Copy of Dr. William Lutmer’s September 1, 1997 medical report on which was circled the statement, “He does not smoke or drink.”
2. March 19, 2004 statement from Malcolm Blosser who stated that he worked for Goodyear Atomic and Martin Marietta Corp. in Piketon.  Mr. Blosser stated that your husband was a driver for Commercial Motor Freight, that your husband delivered freight to the GDP everyday, and that he helped your husband to unload the freight.
3. March 28, 2004 statement from Dale Reed, Maintenance Division of the United States Energy Corporation, in which he stated that the purpose of his letter was “a testimonial to the reasonable possibility of [Employee] being exposed to high levels of contamination, radiation and chemicals of both known and unknown measures.”  Mr. Reed attested to the high levels of exposure in the buildings that your husband entered on a regular basis.  He included a copy of the Risk Mapping performed for union and company purposes as a guide to the exposures of each building.

You requested a hearing and such was held by the undersigned on June 8, 2004 in Piketon, OH.  You appeared at the hearing with your son, [Employee’s son].  [Employee’s son] testified at the hearing that you disagree with the classification of your husband’s employment as “a mere delivery of goods” because he had a security clearance which required him to come in and out of the plant for 11 years.  [Employee’s son] also testified that your husband spent two or three hours a day loading and unloading  “classified” freight.  Hearing Transcript (HT) 8-9.  You submitted, as evidence, a statement from Mr. Malcolm Blosser dated June 7, 2004, in which he reiterated the information in his previous statement of March 19, 2004. 

After considering the written record of the claim, your letter of objection, the testimony and objections presented at the hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1.      You filed a claim for survivor benefits under the EEOICPA on October 15, 2003. 

2.      Commercial Motor Freight Inc. employed your husband, as a truck driver, from 1954 to 1982.

3.      [Employee] was diagnosed with bladder cancer on February 9, 1978.

4.      [Employee] died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease.

5.      You are the surviving spouse of [Employee].

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

CONCLUSIONS OF LAW

The Energy Employees Occupational Illness Compensation Program Act was established to provide compensation benefits to covered employees (or their eligible survivors) who have been diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for Department of Energy and certain of its vendors, contractors and subcontractors.  Occupational illness is defined in § 7384l(15) of the EEOICPA, as a covered beryllium illness, cancer referred to in § 7384l(9)(B)[1], specified cancer, or chronic silicosis, as the case may.  42 U.S.C. §§ 7384l(15), 7384l(9)(B).

To be eligible for compensation for cancer, an employee either must be:  (1) a member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment; or (2) a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by HHS, “to be at least as like as not related to such employment”), after beginning such employment.  See 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. 

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is.  Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:

A.     An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

B.     an individual who is or was employed at a Department of Energy facility by–

(i)      an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii)    a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined in EEOICPA Bulletin No. 03-27 (issued May 28, 2003).  The following definitions have been adopted by the DEEOIC:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance works.

Contract –  An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

Delivery of Goods – The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including construction and maintenance workers.

You submitted employment evidence that establishes your husband was employed as a truck driver, by Commercial Motor Freight, to deliver goods to the Portsmouth GDP, a Department of Energy facility.[2]  In order for a contractor or subcontractor employee to be determined to have performed work or labor for DOE, the individual must have performed a “service” for the benefit of the DOE within the boundaries of a DOE facility.  The mere delivery of goods alone is insufficient to establish that a service was performed for the benefit of DOE.[3]  Because you did not submit evidence that establishes your husband is a “covered employee with cancer” as defined at § 7384l(9) of the EEOICPA, your claim for benefits is denied.  42 U.S.C. § 7384l(9).

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] Section 7384l(9)(B) refers to an individual with cancer specified in subclause (I), (II), or (III) of clause (ii), if and only if that individual is determined to have sustained that cancer in the performance of duty in accordance with § 7384n(b).  Clause (ii) references DOE employees, DOE contractor employees and atomic weapons employees who contract cancer after beginning employee at the required facility.

EEOICPA Fin. Dec. No. 61192-2005 (Dep’t of Labor, April 5, 2005)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 31, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, as the widow of [Employee].  You identified lung cancer as the claimed condition.  You stated on the Employment History Form EE-3 that your husband was employed by the Illinois Central Railroad at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky for an “unknown” period.  The Department of Energy (DOE) was unable to verify [Employee’s] employment at Paducah Gaseous Diffusion Plant.[1] 

On September 17, 2004 and October 27, 2004, you were advised by the district office of the evidence that was required to support the claim that your husband was employed by a covered DOE contractor or subcontractor.  To establish covered employment you need to submit evidence that your husband was employed at a DOE facility during a covered time frame and that there was a contract between the claimed contractor or subcontractor and the DOE to provide a service on the premises of the facility.  The mere delivery and loading or unloading of goods alone is insufficient to establish that a service was performed for the benefit of the DOE.[2]

You submitted a statement in which you indicated your husband was employed by the Illinois Central Railroad from 1950 to January 31, 1982 and that he worked as a flagman and conductor. You also indicated that “he went to coal mines in Central City, KY, factories in Calvert City, KY and Bluford, IL, and atomic plant in Future City, KY.”  You submitted a notice from the United States of America Railroad Retirement Board indicating that you are eligible for monthly spousal benefits.   

You have submitted a death certificate for [Employee] that indicated a date of death of March 3, 2001 and that the immediate cause of death was cardiopulmonary arrest.  This death certificate also indicated the decedent was survived by his wife, [Employee’s Spouse].  You submitted a marriage certificate showing that [Employee] and [Employee’s Spouse] were married on July 23, 1949.

You submitted a December 29, 1982 operative report, from Ted Myre, M.D., which indicated a postoperative diagnosis of cancer of the left lung with invasion of the mediastinum.  A December 30, 1982 pathology report, from James R. Naugh, M.D., indicated a diagnosis of moderately well differentiated squamous cell carcinoma of the left lung.

On January 22, 2005, the district office issued a recommended decision finding that you have not provided evidence proving that your husband’s claimed employment meets the criteria of a covered employee in accordance with 42 U.S.C. §§ 7384l(1) and (11) and 20 C.F.R. §§ 30.5(p) and (u)  Therefore, the district office concluded that you were not entitled to compensation under the Act.

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.  You did not file an objection.  I have reviewed the record in this case and must conclude that no further investigation is warranted.  Based upon a review of the case file evidence, I make the following::

FINDINGS OF FACT

You filed a claim for survivor benefits on August 31, 2004, under Part B of the EEOICPA.

You were married to the employee from July 23, 1949, until his death on March 3, 2001.

You husband was first diagnosed with lung cancer on December 29, 1982.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

The evidence submitted does not establish that your husband meets the definition of covered employee, during a covered time period, as defined by §§ 42 U.S.C. §§ 7384l (1), (7) and (11).  For that reason, you are not entitled to compensation under § 7384s of the Act.

You have not provided records or affidavits from co-workers or other sources in support of the employment that you are claiming.  Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110”.  See 20 C.F.R. § 30.111(a).

For the foregoing reasons, the undersigned hereby denies your claim for compensation for survivor benefits under Part B of the EEOICPA.

Washington, DC          

Tom Daugherty

Hearing Representative

[1] The Paducah Gaseous Diffusion Plant was a DOE facility from 1952 to 1998, where radioactive material was present, according to the Department of Energy Office of Worker Advocacy Facility List (http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm).

Requirements for eligibility of

EEOICPA Fin. Dec. No. 55317-2004 (Dep’t of Labor, September 21, 2004)

NOTICE OF FINAL DECISION

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

On March 8, 2004, you filed a claim for benefits under the EEOICPA, Form EE-1, wherein you identified emphysema and chronic beryllium disease (CBD) as the medical conditions being claimed.  On the EE-3 form, you indicated that you were employed at the Paducah Gaseous Diffusion Plant (PGDP[1] during the early 1950’s.  On March 16, 2004, the district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify your claimed employment, but no records were found.  On April 6, April 28 and May 6, 2004, the Department of Energy (DOE) advised the district office that they found no evidence to verify your claimed employment.  However, DOE did obtain a security clearance card, which indicated that you were given security clearance to work for Slater System, Inc./F.H. McGraw & Company at an unidentified DOE facility between May 22, 1952 and July 2, 1952 and clearance to work for Carbide & Carbon at an unidentified DOE facility between February 25, 1953 and May 11, 1953.

On April 8, 2004, the district office received your itemized statement of earnings from the Social Security Administration (SSA), Form SSA-1826, which covered the time period between January, 1949 and December, 1955.  The earnings statement indicated that you received earnings from Slater System Maryland, Inc. during the second quarter of 1952.  By letter dated March 24, 2004, the district office advised you of the kinds of employment evidence you would need to establish covered employment under the Act.  By letter dated May 25, 2004, the district office requested that you submit an employment history affidavit, Form EE-4, from a co-worker to establish that you worked on-site at the PGDP during a covered time period.  No response was received.  Nonetheless, the district office erroneously concluded that the combination of your security clearance card and SSA earnings statement was sufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952. 

Specifically, pursuant to EEOICPA Bulletin No. 03-27 (issued May 28, 2003) Item #22, “if the CE [claims examiner] can verify that the employee worked for a subcontractor during a covered time frame on the premises of a designated DOE or beryllium vendor facility, a finding can be made for covered employment.” Additionally, pursuant to Item #4, “security clearance documents just provide evidence that security clearance was requested but does not establish presence on the facility.” And, finally, pursuant to Item #12, SSA records will not assist in determining the presence of the employee on the premises of the covered facility.  Therefore, your security clearance card and SSA earnings statement are insufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.   

By letter dated March 24, 2004, the district office advised you of the specific medical evidence necessary to establish CBD under the Act and enclosed a Form EE-7, which listed the specific medical evidence necessary to establish a covered medical condition under the Act.  The district office also advised you that emphysema is not a covered medical condition under the Act.  On April 2, April 12, May 26, and June 10, 2004, the district office received medical records from the resource center, dated between March 12, 1992 and February 7, 2002, which established that you were diagnosed with sinusitis, hypertension and several other non-covered medical conditions.[2]

The following relevant medical records were included in the aforementioned medical evidence:  5 medical progress notes from Dr. N.L. Still, dated between August 11, 1992 and November 17, 1992, in which you were diagnosed with chronic obstructive pulmonary disease (COPD); a September 15, 1999 medical report by Dr. D. Patel, in which he stated that you saw a pulmonologist and were diagnosed with COPD; a January 18, 2000 medical report by Dr. D. Patel, in which he stated that you had acute bronchitis; a February 4, 2002 medical report by Dr. Hima Alturi in which he stated that you had a persistent cough; an October 30, 2002 medical report by Dr. D. Patel, in which he stated that you had “questionable emphysema;” a March 12,1992 radiology report from Decatur Hospital, in which they found “discoid atelectasis of both bases with minimal increase in the interstitial markings, otherwise negative chest;” a May 27, 1992 radiology report from Decatur Hospital, in which they found “minimal bibasilar discoid atelectasis; an August 12, 1992 radiology report from Decatur Hospital, in which they found “scarring or atelectasis” in the left lung; a December 2, 1994 x-ray report from Decatur Hospital, in which they found “bibasilar linear infiltrates which may represent atelectasis or fibrosis;” a February 11, 1995 x-ray report from Decatur Hospital, in which they found “no acute pulmonary disease;” and a July 28, 1995 radiology report from Decatur Hospital, in which they found “no acute disease of the chest.”   

By letter dated May 25, 2004, the district office advised you that the aforementioned medical evidence was insufficient to establish that you were diagnosed with CBD under the Act and listed the specific medical evidence necessary to establish the same.  You were afforded 30 days to establish that you were diagnosed with a covered medical condition, but no response was received.  A “covered employee,” as defined in § 7384l(1),(3),(7),(9) and (11) and § 7384r of the EEOICPA,  includes employees of private companies (an entity “other than the United States,” per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors.  42 U.S.C. §§ 7384l(1),(3),(7),(9) and (11); 7384r. 

Additionally, pursuant to § 7384l(13) of the EEOICPA, “The term ‘established chronic beryllium disease’ means chronic beryllium disease as established by the following: (A) For diagnosis on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including-(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise test showing pulmonary deficits consistent with chronic beryllium disease.  (B) For diagnosis before January 1, 1993, the presence of-(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13).  And, finally, pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).  

On June 8, 2004, the district office issued a recommended decision, which concluded that you were a covered beryllium employee, pursuant to § 7384l(7) of the Act, that you were exposed to beryllium in the performance of duty, pursuant to § 7384n(a) of the Act, that you failed to submit sufficient medical evidence to establish that you were diagnosed with CBD, pursuant to § 7384l(13) of the Act and that emphysema is not a covered occupational illness, pursuant to § 7384l(15) of the Act.  42 U.S.C. §§ 7384l(7),(13), and (15); 7384n(a).  Therefore, it was recommended that benefits under the EEOICPA be denied.

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

Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a).  I find that you have not objected to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations.  20 C.F.R. § 30.310(a).

Based on my review of the case record and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that there is insufficient evidence to establish that you are a covered employee, pursuant to § 7384l of the Act, and that there is insufficient evidence to establish that you were diagnosed with a covered medical condition, pursuant to § 7384l(15) of the Act.  Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.   

Washington, DC

Richard Koretz

Hearing Representative

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Paducah Gaseous Diffusion Plant (PGDP) in Paducah, KY is a covered DOE facility from 1952 to the present.  Also, according to the Office of Worker Advocacy, the PGDP had throughout the course of its operations the potential for beryllium exposure.

[2] Benign prostate nodule, colon polyps, lumbar spinal stenosis, degenerative arthritis, leucopenia, chronic venous disease, sciatica, “questionable emphysema” and chronic obstructive pulmonary disease (COPD).