Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “Radiation Exposure Compensation Act.”
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Radiation Exposure Compensation Act
Compensable illnesses under section 5
EEOICPA Fin. Dec. No. 22218-2003 (Dep’t of Labor, May 8, 2003)
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 pneumoconiosis is accepted.
STATEMENT OF THE CASE
On April 29, 2003, the District Office issued a recommended decision concluding that you had received an award under § 5 of the Radiation Exposure Compensation Act, and that you are entitled to additional compensation in the amount of $50,000 pursuant to 42 U.S.C. § 7384u(a) for pneumoconiosis, the medical condition for which you received an award under the Radiation Exposure Compensation Act. The District Office’s recommended decision also concluded that pursuant to 42 U.S.C. § 7384t, you are entitled to medical benefits from January 29, 2002 for the treatment of pneumoconiosis.
On May 7, 2003, the Final Adjudication Branch received your written notification waiving any and all objections to the recommended decision.
CONCLUSIONS OF LAW
The undersigned has thoroughly reviewed the case record and recommended decision 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 is accepted.
DENVER, CO
May 8, 2003
Janet R. Kapsin
Hearing Representative
Final Adjudication Branch
EEOICPA Fin. Dec. No. 59390-2005 (Dep’t of Labor, January 21, 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 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits under Part B of the Act is denied.
STATEMENT OF THE CASE
On July 13, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA) based on esophageal cancer. You provided medical documentation in support of your claim related to esophageal cancer. You also indicated that you had received an award letter from the Department of Justice under the Radiation Exposure Compensation Act (RECA).
You provided a Form EE-3 (Employment History) in which you stated that you worked with Holmes and Narver, at the Nevada Test Site, from May 1, 1963 to June 30, 1971. A review of the Oak Ridge Institute for Science and Education database indicated that you worked at the Nevada Test Site from May 2, 1969 to June 3, 1971.
You also provided a letter dated June 5, 2002, which indicated that you had been awarded $50,000 under the RECA.
On September 1, 2004, the U.S. Department of Justice reported that you accepted an award of $50,000 under Section 4 of the RECA on July 10, 2002, and that you had not filed a claim under Section 5 of the RECA.
On November 9, 2004, the Seattle district office recommended denial of your claim for benefits under the EEOICPA. The district office concluded that you are not entitled to compensation or benefits under the Act, as you did not meet the required exception to receive compensation for cancer under both the EEOICPA and the RECA. See 42 U.S.C. §§ 7384u, 7385j.
FINDINGS OF FACT
1. You filed a claim for benefits under the EEOICPA on July 13, 2004.
2. On July 10, 2002, you accepted compensation in the amount of $50,000 under Section 4 of the RECA.
CONCLUSIONS OF LA
The undersigned has reviewed the recommended decision issued by the Seattle district office on November 9, 2004. I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the sixty-day period for filing such objections, as provided for in § 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).
The Energy Employees Occupational Illness Compensation Program Act was established to provide compensation benefits to covered employees who have been diagnosed with designated occupational illnesses incurred as a result of exposure to silica, beryllium, and/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis. See 42 U.S.C. § 7384l(15). Further, these illnesses must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer. See 42 U.S.C. § 7384l(4)-(7), (9), (11).
The Energy Employees Occupational Illness Compensation Program Act states that, except as provided by § 7384u, an individual may not receive compensation or benefits under the EEOICPA for cancer and also receive compensation under the RECA. See 42 U.S.C. § 7385j. The exception pertains to RECA awards under Section 5, and only those claimants are eligible to receive compensation under the EEOICPA. See 42 U.S.C. § 7384u.
The undersigned notes that, in order to be afforded coverage under the Act as a “covered uranium employee,” an individual must receive, or have received $100,000 under Section 5 of the RECA for a claim made under that Act. See 42 U.S.C. § 7384u.
The record in this case shows that you did not provide documentation that you had received an award under Section 5 of the RECA. Rather, the evidence shows that you accepted compensation under Section 4 of the RECA. Consequently, the exception for a RECA award under Section 5 in the amount of $100,000 (and an award under Part B under the EEOICPA in the amount of $50,000) does not apply to you, and you are not eligible for an award under Part B of the EEOICPA.
For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under Part B of the Act. Accordingly, your claim for employee benefits under Part B of the Act is denied.
Seattle, WA
Sandie Howley
Hearing Representative, Final Adjudication Branch
Effect of award under section 4
EEOICPA Fin. Dec. No. 15686-2007 (Dep’t of Labor, April 23, 2007)
NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD
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 (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the FAB accepts and approves your claims for compensation in the amount of $30,000.00 each under Part B of the Act.
The FAB also concludes that the evidence of record is insufficient to allow compensation under Part E of the Act. Accordingly, [Claimant #2] and [Claimant #3]‘s claims for survivor benefits under Part E of the Act are denied.
A decision is deferred on [Claimant #1]‘s claim for survivor benefits under Part E of the Act, pending further development.
STATEMENT OF THE CASE
On November 21, 2001 ([Claimant #1]) and November 3, 2006 ([Claimant #2] and [Claimant #3]) each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as surviving children of [Employee] under Part B of the Act, based on the condition of glioblastoma multiforme (brain cancer). Your claim forms are also considered an application for survivor compensation under Part E of the Act. You submitted a copy of [Employee]‘s death certificate, which indicates he was widowed at the time of his death on March 11, 1996, due to a malignant brain tumor. You also provided copies of your birth certificates, showing that you are children of [Employee]. [Claimant #2] and [Claimant #3] submitted copies of their marriage certificates documenting their changes of name.
[Claimant #1] also submitted a Form EE-3 (Employment History) on which he stated that [Employee] was employed at the Nevada Test Site from February 1955 to May 1959, and at the Lawrence Radiation Laboratory between May 1959 and April 1961. A representative of the DOE verified that [Employee] was employed at the Nevada Test Site for the Reynolds Electrical and Engineering Company, Inc. (REECO) from February 7, 1955 to April 30, 1959. Additionally, the DOE verified that the employee had dosimetry records associated with the Lawrence Livermore National Laboratory (LLNL) from 1959 to 1961; with Diesel Electric Service Company from 1961 to 1966; with the Public Health Service/U.S. Environmental Protection Agency from 1967 to 1969; and with the Weather Service during the period of June 1969 to June 1970. The LLNL confirmed that [Employee] was employed at the LLNL from May 5, 1959 through April 29, 1961, and was rehired on January 31, 1963 through September 6, 1963.
You submitted medical documentation including a pathology report, dated January 17, 1996, showing the employee had a diagnosis of glioblastoma multiforme.
On June 26, 2003, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether [Employee]‘s brain cancer was “at least as likely as not” related to his covered employment. However, the case was returned on August 7, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS) of certain Nevada Test Site employees as an addition to the Special Exposure Cohort (SEC).
The claim forms submitted indicated that you had applied for an award under the Radiation Exposure Compensation Act (RECA), but had declined the award. You also identified two other surviving children of the employee, [Employee’s two non-claiming children], indicating that they accepted the RECA award. Claim forms were not received from [Employee’s two non-claiming children].
On December 8, 2006, the district office received a response from the Department of Justice indicating that on August 30, 2006, [Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-claiming children] were approved (as the eligible surviving beneficiaries of [Employee]) under section 4 of the RECA for equal shares of the award in the total amount of $75,000.00, for the condition of brain cancer. Further, it was stated that [Employee’s two non-claiming children] accepted their 1/5th shares of the award and [Claimant #1], [Claimant #2] and [Claimant #3] rejected their 1/5 shares of the RECA award in order to pursue a claim under EEOICPA.
On December 20, 2006, [Claimant #2] and [Claimant #3] signed statements indicating that they had never filed tort suit or state workers’ compensation claim, nor had they ever received a settlement or award from such based on the claimed exposure or illness. Further, they indicated that they have not pled guilty to or been convicted of fraud in connection with an application for or the receipt of federal or state workers’ compensation benefits. They also confirmed that at the time of the employee’s death, he had 5 children, and they were not under the age of 18 years, under the age of 23 and in college, or incapable of self-support at that time. Finally, it was acknowledged that they have not received any benefit under RECA.
On December 20, 2006, the Seattle district office issued a recommended decision to accept your claims for survivor benefits under Part B of the Act. The district office concluded that [Employee] is a member of the SEC based on his employment at the Nevada Test Site from February 7, 1955 to December 31, 1962, for an aggregate of at least 250 work days; was diagnosed with brain cancer, a specified cancer under the Act; and that [Claimant #1], [Claimant #2] and [Claimant #3] are each eligible survivors entitled to equal shares of compensation in the total amount of $90,000.00 under Part B of the Act. Additionally, the district office recommended denial of [Claimant #2] and [Claimant #3]‘s claims for survivor benefits under Part E of the Act, as they did not meet the definition of a “covered child” under this part of the Act. The district office deferred a decision on [Claimant #1]‘s claim for survivor benefits under Part E of the Act, pending further development as to whether he meets the criteria of a “covered child.”
On January 3, 2007, the FAB received a letter from [Claimant #1] in response to his eligibility as a “covered child” under Part E of the Act. [Claimant #1] stated that at the time of the employee’s death he was not under age 18, was not under the age of 23 and continuously enrolled full-time in school, and he was capable of self-support.
OBJECTIONS
On February 5, 6 and 8, 2007, the FAB received your letters of objection to the recommended decision in the form of a “Request for Clarification.” In summary, you indicated that there is conflicting information provided in the recommended decision, specifically:
1. Conclusions of Law – Statement 3: [Employee] is a covered employee and is now deceased, his survivors are entitled to compensation in the amount of $150,000.00 per 42 U.S.C. § 7384s(a)(1).
2. Conclusions of Law – Statement 4: [Claimant #1], [Claimant #2] and [Claimant #3] are the survivors of [Employee] per 42 U.S.C. § 7384s(e). [Claimant #1], [Claimant #2] and [Claimant #3] are thus entitled to the above mentioned compensation totaling $150,000.00.
3. Notice of Recommended Decision – Paragraph 1: The District Office recommends that the claims of [Claimant #1], [Claimant #2] and [Claimant #3] for benefits under Part B of the EEOICPA be accepted in the amount of $90,000.00.
Based on these statements, you indicated that the district office first informed you that the entire $150,000.00 would be distributed to the three of you, but that in a later conversation with the district office the sum of $90,000.00 was mentioned, and that your telephone calls to resolve this have gone unanswered. You asked for the applicable language or statute regarding this reduction of the total amount to be distributed and did not wish for an oral hearing on this matter, requesting that the FAB respond to your request for clarification of the matter.
Your objection relates to the definition of an eligible survivor and payment of compensation under Part B of the Act, and how this is determined when some of the eligible survivors have accepted an award under the RECA, while others have not.
Under the EEOICPA, payment in the case of a deceased employee is made first to the employee’s surviving spouse, or if there is no surviving spouse, in equal shares to all children of the covered employee who are living at the time of payment. See 42 U.S.C. § 7384s(e)(1)(A) and (B). Accordingly, all five living children of the employee meet this definition.
The Radiation Exposure Compensation Act states in section 6(e) that the acceptance of payment by an individual under RECA shall be in full satisfaction of all claims of or on behalf of that individual against the United States, or against any person with respect to that person’s performance of a contract with the United States, that arise out of exposure to radiation, from open air nuclear testing, in the affected area, or exposure to radiation in a uranium mine at any time during the period described in section 5(a). Further, the EEIOCPA states that, except in accordance with § 7384u of EEOICPA, an individual may not receive compensation or benefits under EEOICPA for cancer and also receive compensation under RECA (42 U.S.C. § 2210 note) or § 1112(c) of Title 38. See 42 U.S.C. § 7385j.
Two of the five eligible children, [Employee’s two non-claiming children], elected to receive payment as surviving beneficiaries under RECA versus pursing a claim under EEOICPA. As stated in the above-cited statutes, they cannot also receive survivor compensation or benefits for the condition of brain cancer under EEOICPA.
As the total potential award under Part B of the Act is $150,000.00, to be divided evenly among all surviving children, each child is eligible for compensation in the amount of $30,000.00. The three children who rejected their section 4 RECA awards therefore retain their potential eligibility for compensation under EEOICPA, and their share of the total award is still governed by § 7384s(e)(1)(B), which limits each survivor to 1/5th of the total compensation award of $150,000.00, which is $30,000.00 each.
After considering the evidence of record and your objections to the recommended decision, the FAB hereby makes the following:
FINDINGS OF FACT
1. On November 21, 2001 and November 3, 2006, you filed claims for survivor benefits under EEOICPA.
2. You are three of the five surviving children of [Employee]. [Claimant #1] was born on April 15, 1949, [Claimant #2] was born on October 26, 1953, and [Claimant #3] was born on July 23, 1954, and were 46, 42 and 41 years of age, respectively, at the time of [Employee]‘s death on March 11, 1996.
3. [Employee] was employed at the Nevada Test Site, a covered DOE facility, by DOE contractors, from February 7, 1955 to at least December 31, 1962. This employment meets or exceeds 250 aggregate work days, and qualifies the employee as a member of the SEC.
4. The employee had a diagnosis of brain cancer, which is a specified cancer, on January 17, 1996, after starting work at a DOE facility.
5. The evidence of record supports a causal connection between the employee’s cancer and his exposure to radiation at a DOE facility.
6. At the time of the employee’s death you were over the age of 18 years, not under 23 years of age and enrolled full-time in school, and were not incapable of self-support.
7. You have never filed a tort suit or state workers’ compensation claim, nor have you received a settlement or award from a tort suit or state workers’ compensation claim based on radiation or brain cancer. Further, you have not pled guilty to or been convicted of fraud in connection with an application for or the receipt of federal or state workers’ compensation benefits, nor have you received any award under RECA.
Based on the above noted findings of fact, the FAB hereby also makes the following:
CONCLUSIONS OF LAW
On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored. This class of SEC became effective July 26, 2006. The employment evidence is sufficient to establish that [Employee] was employed at the Nevada Test Site for an aggregate of at least 250 work days, between February 7, 1955 and December 31, 1962.
[Employee] is a member of the SEC pursuant to § 7384l(14)(C) and was diagnosed with brain cancer, which is a specified cancer pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(L); and he is, therefore, a “covered employee with cancer” under § 7384l(9)(A) of the Act. See 42 U.S.C. §§ 7384l(14)(C), 7384l(17) and 7384l(9)(A); 20 C.F.R. § 30.210(a)(1)(i).
[Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-claiming children] are the surviving children of [Employee], pursuant to 42 U.S.C. § 7384s(e)(1)(B) of the Act. [Employee’s two non-claiming children] accepted their 1/5th shares of a total award of $75,000.00 under RECA, and are therefore not eligible to receive a payment for the occupational illness of brain cancer under EEOICPA. 42 U.S.C. § 7385j. [Claimant #1], [Claimant #2] and [Claimant #3] rejected an award of their shares of compensation under RECA, and are therefore eligible for the payment of their 1/5th shares of compensation under EEOICPA. Accordingly, [Claimant #1], [Claimant #2] and [Claimant #3] are entitled to compensation in the amount of $30,000.00 each under Part B of the Act.
The term “covered child” under Part E is defined as a child of the employee who, as of the date 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 in one or more educational institutions since attaining the age of 18 years, or had been incapable of self-support. See 42 U.S.C. § 7385s-3(d)(2).
The evidence of record shows that [Claimant #1], [Claimant #2] and [Claimant #3] were 46, 42, and 41 years of age, respectively, at the time of the employee’s death. There is no evidence showing that the claimants were incapable of self-support at the time of the employee’s death on March 11, 1996. The Seattle district office recommended that a determination on [Claimant #1]‘s claim for survivor benefits under this part of the Act be deferred, pending further development as to whether he met the criteria of a “covered child.” Subsequently, [Claimant #1] provided a written statement to the FAB, dated December 20, 2006, stating he does not meet any of the criteria of a “covered child” under § 7385s-3(d)(2) of the Act. The evidence of record and the recommended decision support that [Claimant #2] and [Claimant #3] are not eligible as a “covered child” under Part E of the Act.
For the forgoing reasons, the FAB concludes that the evidence of record is insufficient to allow compensation under Part E. Accordingly, [Claimant #2] and [Claimant #3]‘s claims for survivor benefits under Part E of the Act are denied.
A decision on [Claimant #1]‘s claim for survivor benefits under Part E is deferred, pending further development and issuance of a recommended decision by the district office.
Seattle, Washington
Kelly Lindlief, Hearing Representative
Final Adjudication Branch
EEOICPA Fin. Dec. No. 30971-2002 (Dep’t of Labor, March 15, 2004)
NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated below, your claim for benefits is denied.
STATEMENT OF THE CASE
On June 10, 2002, you filed a Claim for Survivor Benefits under the EEOICPA, form EE-2, with the Denver district office, as the spouse of the employee, for multiple myeloma. You indicated on the EE-3 form that your husband was employed by the U.S. Coast and Geodetic Survey at various locations, including the Nevada Test Site, from early 1951 to December 1953.
You also submitted marriage certificate and death certificates establishing that you were married to the employee from March 7, 1953 until his death on November 5, 1999, tax forms confirming his employment with the U.S. Coast and Geodetic Survey in 1951 and 1952 and a document from the Nevada Field Office of the Department of Energy (DOE) indicating that they had records of your husband having been exposed to radiation in 1951 and 1952. Additionally, you submitted a document stating that your claim under the Radiation Exposure Compensation Act had been approved in the amount of $75,000; you stated that you had declined to accept the award and that was confirmed by a representative of the Department of Justice on August 12, 2002.
On July 1, 2002, you were informed of the medical evidence needed to support that your husband had cancer. You submitted records of medical treatment, including a pathology report of April 19, 1993, confirming that he was diagnosed with multiple myeloma.
On July 22, 2002, a DOE official stated that, to her knowledge, your husband’s employers were not Department of Energy contractors or subcontractors. On July 29, 2002, you were advised of the type of evidence you could submit to support that your husband had employment which would give rise to coverage under the Act, and given 30 days to submit such evidence. You submitted statements from co-workers confirming that he did work at the Nevada Test Site for a period from October to December 1951 and again for a few weeks in the spring of 1952.
On August 29, 2002, the district office issued a recommended decision that concluded that you were not entitled to compensation benefits because the evidence did not establish that your husband was a covered employee.
By letter dated September 20, 2002, your representative objected to the recommended decision, stating that your husband was a covered employee in that he worked at the Test Site while employed by the U.S. Coast and Geodetic Survey, which was a contractor of the Atomic Energy Commission (AEC), a predecessor agency of the DOE. The representative also submitted documents which indicated that the U.S. Coast and Geodetic Survey performed work, including offering technical advice and conducting surveys, for other government agencies, including the AEC and the military, and that it was covered by a cooperative agreement between the Secretary of Commerce and the Secretary of the Army. On April 1, 2003, the case was remanded to the district office for the purpose of determining whether your husband’s work at the Nevada Test Site was performed under a “contract” between the DOE and the U.S. Coast and Geodetic Survey.
The documents submitted by your representative were forwarded to the DOE, which responded on May 28, 2003 that dosimetry records existed for your husband “showing that he was with the USC&GS but after further research it was established that the USC&GS was in fact not a contractor or subcontractor of the AEC during those years.” The documents were also reviewed by the Branch of Policy, Regulations and Procedures in our National Office. On November 7, 2003, the district office issued a recommended decision to deny your claim. The decision stated that the evidence submitted did not support that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the Nevada Test Site, and, concluded that you were not entitled to benefits under § 7384s of the EEOICPA as your husband was not a covered employee under § 7384l. 42 U.S.C. §§ 7384l and 7384s.
In a letter dated January 7, 2004, your representative objected to the recommended decision. He did not submit additional evidence but did explain why he believes the evidence already submitted was sufficient to support that your husband was a covered employee under the Act. Specifically, he stated that the evidence supported that your husband worked at the Nevada Test Site in 1951 and 1952 in the course of his employment with the U.S. Coast and Geodetic Survey, an agency which was performing a survey at the request of the AEC, and that the latter agency issued him a badge which established that he was exposed to radiation while working there. He argued that one must reasonably conclude from these facts that his work at the Nevada Test Site did constitute covered employment under the EEOICPA.
FINDINGS OF FACT
You filed a claim for survivor benefits under the EEOICPA on June 10, 2002.
You were married to the employee from March 7, 1953 until his death on November 5, 1999.
Medical records, including a pathology report, confirmed he was diagnosed with multiple myeloma in April 1993.
In the course of his employment by the U.S. Coast and Geodetic Survey, your husband worked, and was exposed to radiation, at the Nevada Test Site, a DOE facility.
The evidence does not support, and the Department of Energy has denied, that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the time your husband worked at the Nevada Test Site.
CONCLUSIONS OF LAW
A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310. The same section of the regulations provides that in filing objections, the claimant must identify his objections as specifically as possible. In reviewing any objections submitted, under 20 C.F.R. § 30.313, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. I have reviewed the record in this case and your representative’s letter of January 2, 2004 and must conclude that no further investigation is warranted.
The purpose of the EEOICPA, as stated in its § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d(b).
A “covered employee with cancer” includes, pursuant to § 7384l(9)(B) of the Act, an individual who is a “Department of Energy contractor employee who contracted…cancer after beginning employment at a Department of Energy facility.” Under § 7384l(11), a “Department of Energy contractor employee” may be an individual who “was employed at a Department of energy facility by…an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or…a contractor or subcontractor that provided services, including construction and maintenance, at the facility.” 42 U.S.C. § 7384l(9)(B),(11).
EEOICPA Bulletin NO. 03-26 states that “a civilian employee of a state or federal government agency can be considered a ‘DOE contractor employee’ if the government agency employing that individual is (1) found to have entered into a contract with DOE for the accomplishment of…services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.” The same Bulletin goes on to define a “contract” as “an agreement that something specific is to be done in return for some payment or consideration.”
Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.” 20 C.F.R. § 30.111(a).
As noted above, the evidence supports that your husband was exposed to radiation while working for the U.S. Coast and Geodetic Survey at the Nevada Test Site in late 1951 and early 1952, that he was diagnosed with multiple myeloma in April 1993, and that you were married to him from March 7, 1953 until his death on November 5, 1999.
It does not reasonably follow from the evidence in the file that his work at the Nevada Test Site must have been performed under a “contract” between the U.S. Coast and Geodetic Survey and the AEC. Government agencies are not private companies and often cooperate with and provide services for other agencies without reimbursement. The DOE issued radiation badges to military personnel, civilian employees of other government agencies, and visitors, who were authorized to be on a site but were not DOE employees or DOE contractor employees. No evidence has been submitted that your husband’s work at the Nevada Test Site was pursuant to a “contract” between the U.S. Coast and Geodetic Survey and the AEC and the DOE has specifically denied that his employing agency was a contractor or subcontractor at that time. Therefore, there is no basis under the Act to pay compensation benefits for his cancer.
For the foregoing reasons, the undersigned must find that you have not established your claim for compensation under the EEOICPA and hereby denies that claim.
Washington, DC
Richard Koretz
Hearing Representative
EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for compensation under 42 U.S.C. § 7384.
STATEMENT OF THE CASE
On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma.
The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge. A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978.
Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer. A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung. The record does not contain documentation demonstrating the employee was diagnosed with lymphoma.
To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115. The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005. See 42 U.S.C. § 7384n(d). NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978. However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed. NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim. NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete. Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose. See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7.
Using the information provided in the Report of Dose Reconstruction, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer, and reported in its recommended decision that the probability the employee’s lung cancer was caused by his exposure to radiation while employed at NTS was at least 50%.
You provided copies of the death certificates of the employee and his spouse, copies of your birth certificates showing you are the natural children of the employee, and documentation verifying your changes of names, as appropriate.
The record shows that you ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4]) and [Claimant #5] filed claims with the Department of Justice (DOJ) for compensation under the Radiation Exposure Compensation Act (RECA). By letter dated May 20, 2005, a representative of the DOJ reported that an award under § 4 of the RECA was approved for you; however, the award was rejected by [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4].
On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma.
On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.
FINDINGS OF FACT
- On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits.
- Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors.
- You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act.
- The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978.
- The employee was diagnosed with lung cancer on February 1, 1978.
- The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS.
- The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility.
CONCLUSIONS OF LAW
The evidence of record indicates that the worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 6, 1978. Medical documentation provided indicated the employee was diagnosed with lung cancer on February 1, 1978; however, there is no evidence showing the employee was diagnosed with lymphoma, and your claims based on lymphoma must be denied.
After establishing that a partial dose reconstruction provided sufficient information to produce a probability of causation of 50% or greater, NIOSH determined that sufficient research and analysis had been conducted to end the dose reconstruction, and the dose reconstruction was considered complete. See 42 C.F.R. § 82.10(k)(1).
The Final Adjudication Branch analyzed the information in the NIOSH Report of Dose Reconstruction and utilized the NIOSH-IREP to confirm the 63.34% probability that the employee’s cancer was caused by his employment at NTS. See 42 C.F.R. § 81.20. (Use of NIOSH-IREP). Thus, the evidence shows that the employee’s cancer was at least as likely as not related to his employment at NTS.
The Final Adjudication Branch notes that, in its Conclusions of Law, the recommended decision erroneously indicates the employee, [Employee], is entitled to compensation in the amount of $150,000.00; therefore, that Conclusion of Law must be vacated as the employee is deceased. See 42 U.S.C. § 7384s(a)(1).
The Final Adjudication Branch notes that the record shows the employee passed away on February 4, 1978. However, his employment history indicates he worked at NTS until February 6, 1978. Consequently, for purposes of administration of the Act, his employment is considered to have ended on February 4, 1978.
Based on the employee’s covered employment at NTS, the medical documentation showing his diagnosis of lung cancer, and the determination that the employee’s lung cancer was “at least as likely as not” related to his occupational exposure at NTS, and thus sustained in the performance of duty, the employee is a “covered employee with cancer,” under 42 U.S.C. § 7384l. See 42 U.S.C. § 7384l(9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2. Further, as the record indicates there is one other potential beneficiary under the EEOICPA, you are each ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) entitled to survivor compensation under 42 U.S.C. § 7384 in the amount of $30,000.00. As there is evidence that another survivor is a child of the employee, and potentially an eligible survivor under the Act, the potential share ($30,000.00) of the compensation must remain in the EEOICPA Fund. See Federal (EEOICPA) Procedure Manual, Chapter 2-200.7c(2) (June 2004).
Seattle, WA
Rosanne M. Dummer
Seattle District Manager, Final Adjudication Branch
EEOICPA Fin. Dec. No. 43114-2003 (Dep’t of Labor, September 22, 2003)
FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). Since you submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with § 30.312 of the implementing regulations. 20 C.F.R. § 30.312.
A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with § 30.310 of the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, under § 30.313 of the implementing regulations, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.
For the reasons set forth below, your claim for benefits is denied.
STATEMENT OF CASE
On March 18, 2003, you filed a claim for survivor benefits under the EEOICPA as the spouse of the employee. On May 19, 2003, the Department of Justice (DOJ) verified that on May 31, 2002, you accepted compensation under § 4 of the Radiation Exposure Compensation Act in the amount of $75,000.
42 U.S.C. § 7385j of the Energy Employees Occupational Illness Compensation Program Act states: “Except in accordance with § 7384u[1] of this title, an individual may not receive compensation or benefits under the compensation program for cancer and also receive compensation under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or § 1112 (c) of Title 38.”
The Denver district office advised you of the deficiencies in your claim and afforded you the opportunity to correct them. There is no evidence in the file to indicate that you provided additional evidence to the district office for review.
By a recommended decision dated July 2, 2003, the Denver district office recommended that your claim for benefits under the EEOICPA be denied. In the recommendation, the district office found that:
1. You filed a claim under EEOICPA on March 18, 2003;
2. You did not establish entitlement under the EEOICPA as you did not receive an award from the Department of Justice under § 5 of RECA. You have not provided evidence that your husband could be covered under the EEOICPA as an employee of the Department of Energy or Atomic Weapons facility. You have not claimed that your husband had a medical condition other than stomach cancer, a condition for which you have already been awarded benefits as your husband’s eligible survivor, under § 4 of RECA as an on-site participant.
By your letter of July 30, 2003, you requested assistance from Daniel K. Akaka, United States Senate in “appealing the decision that denied me compensation as an eligible beneficiary of a covered employee under the Energy Employees’ Occupational Illness Compensation Program Act (EEOICPA)….” You did not state specific objections to the recommended decision. You included medical and employment records with your letter to Senator Akaka.
FINDINGS OF FACT
On May 31, 2002, you accepted compensation under § 4 of the RECA for your husband’s cancer.
The additional medical records do not indicate that your husband was diagnosed with a condition covered under the EEOICPA, other than cancer.
CONCLUSIONS OF LAW
In accordance with 20 C.F.R. §30.313, I have reviewed the record in this case and conclude that no further investigation is warranted.
I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections and the additional evidence you submitted. As explained in § 30.110(b) of the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories, as set forth in these regulations, must be denied.” 20 C.F.R. § 30.110(b). The undersigned hereby denies payment of lump sum compensation and medical benefits.
Washington, DC
Linda M. Parker
Hearing Representative
[1] § 7384u states: “An individual who receives, or has received, $100,000 under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) for a claim made under that Act (hereinafter in this section referred to as a “covered uranium employee”), or the survivor of that covered uranium employee if the employee is deceased, shall receive compensation under this section in the amount of $50,000.”
Section 5 claims under Part B
EEOICPA Fin. Dec. No. 58768-2005 (Dep’t of Labor, January 25, 2005)
REVIEW OF THE WRITTEN RECORD AND REMAND ORDER
This is a review of the written record and remand order of the Final Adjudication Branch concerning this 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, the recommended decision of the Denver district office dated October 14, 2004 is vacated, and the matter is remanded to the district office for further consideration and a new decision consistent with this remand order.
On June 25, 2004, you filed a Form EE-2 as the surviving spouse of a uranium worker seeking benefits under the Energy Employees Occupational Illness Compensation Program Act. You indicated on your claim form that the [Employee] contracted lung cancer and GI malignancy due to his employment exposure. You also stated that you or the employee had not filed a claim for benefits under Section 5 of the Radiation Exposure Compensation Act (RECA) with the Department of Justice (DOJ).
The district office contacted the DOJ to verify RECA filing and on August 2, 2004, notified the Denver district office that no one had filed a Section 5 RECA claim on behalf of the employee. On August 4, 2004, the district office sent you a letter informing you of the requirements to receive compensation under the EEOICPA and affording you 60 days to apply with the Department of Justice. They also advised you that failure to file with the DOJ within the allotted time period would result in a decision being made based upon the information in file.
On October 14, 2004, the Denver district office denied your claim on the basis that you had not received an award under Section 5 of the Radiation Exposure Compensation Act, and therefore, were not entitled to compensation pursuant to § 7384u of the EEOICPA. The case was forwarded to the Final Adjudication Branch. On October 18, 2004, you wrote to the Final Adjudication Branch to object to the recommended decision. A hearing was scheduled in your case, but on January 12, 2005, the Final Adjudication Branch contacted you to remind you of the hearing and learned that you had filed a RECA claim with DOJ and you had written to DOL to withdraw the hearing request. Based upon the information from the claimant, the hearing was cancelled.
The Federal (EEOICPA) Procedure Manual states that if a claimant has indicated on the claim form that the employee was/is a uranium worker, or that a RECA award has been granted, the claim is to be developed in accordance with 20 C.F.R. 30.300.[1] Additionally, for claims filed for EEOICPA benefits concurrently with or prior to filing for RECA benefits, the DOJ should be contacted to determine if the individual has filed under Section 5, and concurrently a development letter should be sent to the claimant advising that benefits can only be provided through EEOICPA if the covered employee has received an award under Section 5 of the RECA. Additionally the letter should advise the claimant that they have 60 days in which to file with DOJ, and if a claim is not filed within the time period, a decision will be rendered on the claim.[2]
The Denver district office followed the correct procedures in this case. However, on January 12, 2004, the Final Adjudication Branch learned that you had filed a RECA claim with DOJ. The Final Adjudication Branch contacted the Department of Justice and learned that you had filed a claim with RECA, and that it is still pending.
This case is not in posture for a decision. Therefore, the undersigned hereby vacates the October 14, 2004 recommended decision, and remands the case to the Denver district office. Upon receipt the claims examiner should:
1. Administratively close the case,
2. Notify the claimant of such action
3. Issue a new recommended decision upon notification that a decision has been rendered by the Department of Justice.
Denver, CO
Joyce L. Terry
District Manager
[1] 20 C.F.R. § 30.211 and the Federal (EEOICPA) Procedure Manual, Chapter 2-900.2 (September 2004).
[2] Federal (EEOICPA) Procedure Manual, Chapter 2-900.4 (September 2004).
Section 5 claims under Part E
EEOICPA Fin. Dec. No. 10009704-2007 (Dep’t of Labor, February 22, 2010)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning the above-captioned claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for benefits based on lymphoma is denied under Part E of EEOICPA.
STATEMENT OF THE CASE
On March 19, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted pulmonary fibrosis and lymphoma due to his employment as a uranium miner. On May 11, 2004, he also filed a Request for Review by Physicians Panel with the Department of Energy (DOE) under former Part D of EEOICPA for pulmonary fibrosis and lymphoma. With the repeal of Part D and the enactment of Part E, the employee’s Part D claim was treated as a claim for benefits under Part E.
On August 16, 2002, FAB issued a final decision accepting the claim under Part B for pulmonary fibrosis and awarded the employee $50,000.00 in lump-sum compensation. In that decision, FAB noted that the Department of Justice (DOJ) confirmed that the employee was an award recipient under section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 note, for the condition of pulmonary fibrosis. On May 21, 2007, FAB issued another final decision that accepted the claim for pulmonary fibrosis, this time under Part E, and awarded the employee medical benefits under Part E for that covered illness. On November 3, 2008, FAB also issued a final decision that awarded the employee impairment benefits under Part E based on his accepted pulmonary fibrosis; the award of $142,500.00 was for his 57% whole body impairment.
In support of his Part E claim for lymphoma, the employee submitted an employment history on Form EE-3, showing that he had worked as a miner for Kerr-McGee at the KerMac 24 Mine in Grants, New Mexico, from approximately September 1, 1959 to March 1, 1960, and for Phillips Petroleum/Sandstone at the Ambrosia Lake Mine, from approximately March 1, 1960 to November 30, 1960. DOJ submitted employment evidence it had collected in connection with his RECA claim, including an Itemized Statement of Earnings from the Social Security Administration and a Uranium Miner’s study, both of which verified that the employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960. The employee also submitted a pathology report, dated November 10, 1998, in which Dr. Glenn H. Segal diagnosed B-cell non-Hodgkin’s lymphoma involving bone marrow. He also submitted a November 18, 1998 report in which Dr. Jo-Ann Andriko confirmed the diagnosis of malignant lymphoma.
The district office reviewed source documents used to compile the U. S. Department of Labor’s Site Exposure Matrices (SEM)[1]to determine whether it was possible that, given the employee’s labor category and the work processes in which he was engaged, he was exposed to a toxic substance in the course of his employment that has a causal link with his claimed lymphoma. The district office determined that SEM did not have such a link and by letters dated August 14, 2009, and September 14, 2009, it advised the employee that there was insufficient evidence to establish that exposure to a toxic substance at a DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma. The district office requested that he provide further evidence of the link necessary to support his claim and afforded him 30 days to provide the requested evidence. In response, on October 13, 2009, he submitted a letter in which he stated that his lymphoma was the result of his employment as a uranium miner. The letter was accompanied by the following documents:
1. An article entitled “Radon Exposure and Mortality Among White and American Indian Uranium Miners: An Update of the Colorado Plateau Cohort.”
2. An article entitled “Radiation Exposure Tied to Lymphoma Risk in Men.”
3. An article entitled “Occupational Exposures and Non-Hodgkin’s Lymphoma: Canadian Case-Control Study.”
4. An article on non-Hodgkin’s lymphoma.
5. An abstract from the update of mortality from all causes among white uranium miners from the Colorado plateau study group.
6. A section from the Federal Register Notice regarding changes to the dose reconstruction target organ selection for lymphoma under EEOICPA.
7. A letter dated August 17, 2001 in which Dr. Thomas P. Hyde opined that it was highly likely that the employee’s lymphoma was caused by his exposure to radiation during his employment as a uranium miner.
To determine the probability of whether the employee contracted cancer in the performance of duty under Part E due to radiation, the district office referred his claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction. On November 10, 2009, the district office received the final NIOSH Report of Dose Reconstruction and used the information provided in that report to determine the probability of causation (PoC). The district office calculated that there was a 17.10% probability that the employee’s lymphoma was caused by radiation exposure at the uranium mines in which he worked.
On December 10, 2009, the district office issued a recommended decision to deny the employee’s Part E claim for lymphoma on the ground that it was not “at least as likely as not” (a 50% or greater probability) that his lymphoma was caused by his employment at the uranium mines where he worked. The district office further concluded that there was no evidence meeting the “at least as likely as not” causation standard that exposure to a toxic substance other than radiation at either a DOE facility or a section 5 mine was a significant factor in aggravating, contributing to or causing the claimed illness of lymphoma.
Following issuance of the recommended decision, FAB independently analyzed the information in the NIOSH report and confirmed the district office’s PoC calculation of 17.10%. Based on a thorough review of the case file, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee worked as a uranium miner for Kerr-McGee in Section 24 from January 1, 1959 to September 30, 1960, and for Phillips Petroleum at Sandstone from October 1, 1960 to December 31, 1960.
2. He was diagnosed with lymphoma on November 10, 1998.
3. Based on the dose reconstruction performed by NIOSH, the PoC (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the employee’s lymphoma was 17.10%, which is less than 50%.
4. There is insufficient evidence in the file to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing the employee’s lymphoma.
Based on a review of the aforementioned facts, FAB also hereby makes the following:
CONCLUSIONS OF LAW
Part E of EEOICPA provides compensation to covered DOE contractor employees who have contracted a “covered illness” through exposure at a DOE facility in accordance with § 7385s-2. Section 7385s(2) defines a “covered DOE contractor employee” as any DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure at a DOE facility, and § 7385s(2) defines a “covered illness” as an illness or death resulting from exposure to a toxic substance. Pursuant to 42 U.S.C. § 7385s-5(2), a section 5 uranium worker determined under § 7385s-4(c) to have contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill will be eligible for Part E benefits to the same extent as a DOE contractor employee determined under § 7385s-4 to have contracted a covered illness through exposure to a toxic substance at a DOE facility.
To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee must show that he or she has been diagnosed with cancer; was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and that the cancer was at least as likely as not related to exposure to radiation at a DOE facility or a RECA section 5 facility. Section 30.213 of the implementing regulations (20 C.F.R. § 30.213(c) (2009)) states that:
The Office of Workers’ Compensation Programs (OWCP) also uses the Department of Health and Human Services (HHS) regulations when it makes the determination required by § 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to or causing the employee’s radiogenic cancer claimed under Part E of the Act. For cancer claims under Part E of the Act, if the PoC is less than 50% and the employee alleges that he was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part.
FAB notes that the PoC calculations in this case were performed in accordance with 20 C.F.R. § 30.213. FAB independently analyzed the information in the NIOSH report, confirming the district office’s PoC calculation of 17.10%.
Section 30.111(a) of the regulations states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.” 20 C.F.R. § 30.111(a). As found above, the case file does not contain sufficient evidence to enable the employee to meet his burden of proof to establish that it is “at least as likely as not” that exposure to toxic substances other than radiation at a covered DOE facility or section 5 mine was a significant factor in aggravating, contributing to or causing his lymphoma.
In the absence of evidence to support that it is at least as likely as not that exposure to a toxic or radiological substance at a DOE facility or a RECA section 5 facility was a significant factor in aggravating, contributing to, or causing his lymphoma, FAB concludes that the employee has failed to establish that he contracted the “covered illness” of lymphoma, and his claim under Part E of EEOICPA is denied.
Kathleen M. Graber
Hearing Representative
Final Adjudication Branch
[1] SEM is a database of occupational categories, the locations where those occupational categories would have been performed, a list of process activities at the facility and the locations where those processes occurred, a list of toxic substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic substances associated with those conditions.
Survivors
EEOICPA Fin. Dec. No. 63743-2006 (Dep’t of Labor, November 21, 2006)
NOTICE OF FINAL DECISION FOLLOWING REVIEW 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