Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Claims for Compensation.  We hope these decisions are helpful.  Please add your experiences in the comments section.

Claims for Compensation

Development of

EEOICPA Fin. Dec. No. 30568-2005 (Dep’t of Labor, September 16, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000.  42 U.S.C. § 7384 et seq.  Since your attorney-in-fact submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with 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 the implementing regulations.  20 C.F.R. § 30.310.  In reviewing any objections submitted, 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 is denied.

STATEMENT OF THE CASE

On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958.  On the Form EE-3, Employment History, you stated you were employed in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant with Maxon Construction as an ironworker from 1950/51 to 1954; at the Y-12 plant as a machinist from December 1954 to mid-1955; and at the Oak Ridge National Laboratory (X-10) as a chemical operator from mid 1955 to June 1982.

The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

On December 2, 2004, the Jacksonville district office recommended acceptance of the claim for CBD based on the statutory criteria for a pre-1993 diagnosis and recommended denial of the claimed emphysema.  On January 3, 2005, the Final Adjudication Branch (FAB) issued a remand order, which returned the case to the district office for further development.

In accordance with the remand order, the district office obtained a copy of a lymphocyte proliferation test (LPT) verbally reported to have been normal, and forwarded the evidence of record to a district medical consultant for an opinion whether a finding of pulmonary fibrosis was a characteristic abnormality of CBD on a chest x-ray. 

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act.  42 U.S.C. § 7384l(7).  Due to confirmation of your employment in a facility where beryllium was present, you are considered to be a “covered beryllium employee.”  However, in order for you to receive compensation, you must be diagnosed with a covered beryllium illness, in accordance with § 7384 of the Act and implementing regulations.  42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205.  “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease.  42 U.S.C. § 7384l(8). 

According to § 7384 of the Act, chronic beryllium disease is established by the following:

(A)  For diagnoses 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 testing showing pulmonary deficits consistent with chronic beryllium disease.

(B)  For diagnoses 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).

On April 29, 2005, the district office received a copy of the lymphocyte proliferation test conducted on January 23, 2003, which contained a finding of a normal response to beryllium sulfate.  In light of the report from your physician stating that your steroid use could affect the outcome of the testing, the district office noted that the only situation where a normal LPT could be overridden for acceptance of a post-1993 CBD diagnosis was when a lung tissue biopsy revealed the presence of granulomas consistent with CBD.  The lung biopsy on file, from 1958, did not include a finding of granulomas.

Therefore, the claim was also considered under the pre-1993 criteria.  The evidence consisted of x-rays denoting abnormalities, obstructive lung physiology testing, and a medical history showing a clinical course consistent with a chronic respiratory condition.  However, the chest x-rays which revealed abnormalities were referred to a district medical consultant (DMC), in accordance with policy, to determine if they were characteristic of CBD.  In his report of

March 26, 2005, Dr. Robert Sandblom opined that the x-ray reports on file did not show any abnormalities consistent with CBD. 

On May 9, 2005, the Jacksonville district office issued a recommended decision to deny the claim for CBD, emphysema, and a lung abscess, since there was insufficient medical evidence to establish a diagnosis of a covered occupational illness under § 7384 of the Act. 

42 U.S.C. § 7384l(15).

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  These 60 days expired on July 8, 2005.  On July 5, 2005, the Final Adjudication Branch received a letter of objection, dated June 30, 2005, from your attorney-in-fact.

OBJECTIONS

In the objection letter, the attorney-in-fact stated that she disagreed with the office procedures which allowed pulmonary fibrosis to be considered characteristic and then not characteristic.  She stated that changes such as this should not be implemented in a retroactive manner, since the clarifications of policy appeared to be more restrictive in order to deny claims.  She questioned whether the LPT on record would be investigated further since your physician said that your steroid use could alter the results.  She said a phone call to the FAB had not been returned; however, there are no records of any telephone calls after the recommended decision was issued.

The district office and Final Adjudication Branch are bound by the policies and procedures in place at the time a claim is adjudicated and are required to review such a claim in light of those current policies.  The issue for determination is whether the chest x-rays meet the pre-1993 criteria for a statutory diagnosis of CBD.  Since Dr. Sandblom did not specifically mention the chest x-ray report of February 13, 1967 (which the district office used as support for their recommended acceptance in the original decision) in his earlier response, the Final Adjudication Branch requested clarification.  In an addendum dated September 15, 2005, Dr. Sandblom explained that the pulmonary fibrosis noted in February 1967 was due to localized scarring “consistent with the prior lobectomy for lung abscess” and stated that “these changes are definitely not consistent with CBD.”

Furthermore, the procedures address the use of a normal LPT in a living claimant:  a lung biopsy that confirms the presence of granulomas may override a normal LPT.  The district office thoroughly addressed this requirement in the recommended decision, as discussed above.  Telephone records in the case file indicate a test kit was to be forwarded to you in May by ORISE.  The results of that testing have not been received. 

FINDINGS OF FACT

1.  On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease (CBD) and removal of lung in 1958

2.  The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

3.  The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

4.  On May 9, 2005, the Jacksonville district office issued a recommended decision to deny compensation and medical benefits for chronic beryllium disease, emphysema, and a lung abscess.

5.  On July 5, 2005, the Final Adjudication Branch received a letter of objection from your attorney-in-fact, dated June 30, 2005, and conducted a review of the written record.  The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on May 9, 2005, and finds that the evidence submitted does not establish that you meet the statutory criteria for a diagnosis of chronic beryllium disease, as defined in the Act, or any other covered occupational illness, as defined in the Act and implementing regulations.  42 U.S.C. §§ 7384l(13), 7384l(15), 20 C.F.R. § 30.5(z).  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 submitted.  As explained in 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).  Therefore, I find that you are not entitled to compensation or medical benefits under the Act, and that your claim for compensation must be denied.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Filing

EEOICPA Fin. Dec. No. 62339-2005 (Dep’t of Labor, November 18, 2005)

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 set forth below, your claim is accepted. 

STATEMENT OF THE CASE

On October 4, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for beryllium sensitivity.  A review of the medical evidence revealed that along with beryllium sensitivity you were diagnosed with multiple skin cancers: basal cell carcinoma (BCC) of the right temple, diagnosed July 25, 1995; BCC of the left face, diagnosed April 11, 2000; BCC of the right face, diagnosed March 12, 2001[1], and BCCs of the upper and lower face, diagnosed August 2, 2004.[2]

On the Form EE-3, Employment History, you stated you were employed as a laborer by F. H. McGraw at the Paducah gaseous diffusion plant (GDP) in Paducah, Kentucky, for the period of January 1, 1951 to December 25, 1954.  The evidence of record establishes you worked for F. H. McGraw at Paducah GDP for the claimed period of employment.

On February 1, 2005, a final decision and remand order was issued by the FAB accepting your claim for beryllium sensitivity and remanding your case for further development of chronic beryllium disease (CBD).  The district office referred your claim to a district medical consultant (DMC) for review on September 14, 2005.

On the Form EE-1, you indicated that you were a member of the Special Exposure Cohort (SEC).  You established that you were diagnosed with multiple skin cancers.  To determine the probability of whether you sustained your cancer in the performance of duty, as required to establish entitlement under Part B of the Act, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  NIOSH reported annual dose estimates from the date of initial radiation exposure during covered employment, to the date the cancer was first diagnosed.  A summary and explanation of information and methods applied to produce these dose estimates, including your involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA.”  On August 24, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on August 29, 2005.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 55.97% combined probability that your cancers[3] were caused by radiation exposure at the Paducah GDP.  42 C.F.R. § 81.20.  The Final Adjudication Branch confirmed the 55.97% combined probability.

On September 14, 2005, the Jacksonville district office issued a recommended decision finding that your skin cancer(s) were at least as likely as not caused by your employment at a Department of Energy (DOE) facility and concluding that that you are entitled to compensation in the amount of $150,000.  The district office’s recommended decision also concluded that you are entitled to medical benefits beginning October 4, 2004 for skin cancer.

On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  

The district office had deferred adjudication of your claim for CBD until receipt of the DMC’s report.  On October 6, 2005, the FAB received the October 2, 2005 report from Dr. Robert E. Sandblom.  Dr. Sandblom verified that the pulmonary function tests on record were consistent with chronic beryllium disease.

FINDINGS OF FACT

1.      You filed a Form EE-1, for beryllium sensitivity and review of the medical records revealed evidence of skin cancer and possible chronic beryllium disease.

2.      You were diagnosed with skin cancer (BCC) on July 25, 1995, April 11, 2000, and August 2, 2004 (x2).

3.      You were employed at the Paducah GDP from January 1, 1951 to December 25, 1954.

4.      The probability that your cancer was caused by radiation at the Paducah GDP is 55.97%. 

5.      On September 14, 2005, the Jacksonville district office issued a recommended decision.

6.      On September 19, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.  

7.      On October 6, 2005, the FAB received a report from the DMC, confirming a statutory diagnosis of CBD.

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision. 

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

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee. . . .  42 U.S.C. § 7384l(14)(A).

The evidence shows that you worked at the Paducah GDP from January 1, 1951 to December 25, 1954, which equals more than 250 days prior to February 1, 1992.  Therefore, you qualify as a member of the SEC.

However, in order to be entitled to benefits as a member of the SEC, you must have been diagnosed with a specified cancer as defined by the Act and implementing regulations.  42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005).  Skin cancers are not a specified cancer.

A cancer is considered to have been sustained in the performance of duty if it was at least as likely as not (a 50% or greater probability) related to radiation doses incurred while working at a DOE facility.  42 U.S.C. § 7384n(b); 42 C.F.R. Part 81.  I conclude that your skin cancers were at least as likely as not caused by your employment at a Department of Energy (DOE) facility.  42 U.S.C. § 7384n(b).  Therefore, you are a covered employee with cancer.  42 U.S.C. § 7384l(9)(B). 

The medical evidence is sufficient to establish that you have CBD.  Under Part B of the Act, CBD may be established by the following:

(A)  For diagnoses 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 testing showing pulmonary deficits consistent with chronic beryllium disease.

42 U.S.C. § 7384l(13).

The beryllium lymphocyte proliferation test (BeLPT) of July 28, 2004 was positive.  Therefore, you have beryllium sensitivity, as previously established by final decision dated February 1, 2005.  42 U.S.C. § 7384l(8). 

The DMC verified in his report of October 2, 2005 that pulmonary function tests on record were consistent with chronic beryllium disease, meeting criterion iii.  Office policy allows the FAB to accept a claimed medical condition based on new evidence, if the case was in posture for acceptance of benefits for another condition.[4]  Therefore, I conclude that you are a covered beryllium employee and that your chronic beryllium disease is a covered occupational illness.  42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207. 

In accordance with Part B of the Act, you are entitled to $150,000 and medical benefits beginning October 4, 2004 for skin cancer and chronic beryllium disease.  42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL

Sidne Valdivieso
Hearing Representative

Non-claiming individuals

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 30, 2001, the employee’s surviving spouse filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on lymphoma and peripheral bronchogenic carcinoma, and on July 24, 2003, she passed away, and her claim was administratively closed.  On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed Forms EE-2 under the EEOICPA, based on bronchogenic carcinoma and lymphoma. 

The record includes a Form EE-3 (Employment History Affidavit) that indicates the worker was employed by Reynolds Electrical and Engineering Company (REECo) at the Nevada Test Site (NTS) intermittently from 1957 to 1978, and that he wore a dosimetry badge.  A representative of the Department of Energy confirmed the employee was employed at NTS by REECo intermittently from August 23, 1958 to February 4, 1978. 

Medical documentation received included a copy of a Nevada Central Cancer Registry report that indicated an aspiration biopsy was performed on February 1, 1978, and it showed the employee was diagnosed with primary lung cancer.  A Valley Hospital discharge summary, dated February 4, 1978, indicated the employee had a tumor in the right upper lobe of the lung.  The record does not contain documentation demonstrating the employee was diagnosed with lymphoma. 

To determine the probability of whether the employee sustained the cancer in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated April 20, 2005.  See 42 U.S.C. § 7384n(d).  NIOSH noted the employee had worked at NTS intermittently from August 23, 1958 to February 4, 1978.  However, in order to expedite the claim, only the employment from 1966 through 1970 was assessed.  NIOSH determined that the employee’s dose as reconstructed under the EEOICPA was 71.371 rem to the lung, and the dose was calculated only for this organ because of the specific type of cancer associated with the claim.  NIOSH also determined that in accordance with the provisions of 42 C.F.R. § 82.10(k)(1), calculation of internal dose alone was of sufficient magnitude to consider the dose reconstruction complete.  Further, NIOSH indicated, the calculated internal dose reported is an “underestimate” of the employee’s total occupational radiation dose.  See NIOSH Report of Dose Reconstruction, pp. 4, 5, 6, and 7. 

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

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

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

On June 14, 2005, the Seattle district office recommended acceptance of your claims for survivor compensation for the condition of lung cancer, and denial of your claims based on lymphoma. 

On June 12 ([Claimant #1] and June 20 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2005, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision. 

FINDINGS OF FACT

1. On August 7 ([Claimant #1]) and September 9 ([Claimant #2], [Claimant #3], and [Claimant #4]), 2003, you filed claims for survivor benefits. 

2. Documentation of record shows that the employee and his surviving spouse have passed away, you ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) are the children of the employee, and you are his survivors. 

3. You ([Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4]) have rejected an award of compensation under the Radiation Exposure Compensation Act. 

4. The worker was employed at NTS by REECo, intermittently, from August 23, 1958 to February 4, 1978. 

5. The employee was diagnosed with lung cancer on February 1, 1978. 

6. The NIOSH Interactive RadioEpidemiological Program indicated at least a 50% probability that the employee’s cancer was caused by radiation exposure at NTS. 

7. The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility. 

CONCLUSIONS OF LAW

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

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

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

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

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

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

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

Waiver

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

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is a decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended.  42 U.S.C. § 7384 et seq.

STATEMENT OF THE CASE

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

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

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

(A)     The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – –

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

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

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

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

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

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

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

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

OBJECTIONS

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

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. §§ 30.314(e), 30.314(f).  By letters dated August 23, 2005, the transcript was forwarded to you.  On September 15, 2005, the Final Adjudication Branch received a letter from [Claimant #2], clarifying statements made during the hearing.

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

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

(A)  If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.

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

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

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

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

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

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

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

Section 7384s(e)(3)(B) of the Act explains that a “child” includes a recognized child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.  42 U.S.C. §§ 7384s(e)(3)(B).

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

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

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, the Final Adjudication Branch accepts [Claimant #1/Employee’s Spouse’s] claim for compensation under 42 U.S.C. § 7384 and denies [Claimant #2’s], [Claimant #3’s] and [Claimant #4’s] claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On March 22, 2004, [Claimant #2] filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as a surviving child of [Employee].  On March 29, 2004, [Employee’s Spouse] filed a Form EE-2 claiming benefits as the surviving spouse of [Employee].

[Claimant #2] claimed that her father had been diagnosed with leukemia, melanoma (skin cancer) and prostate cancer.  [Employee’s Spouse] claimed that her husband had been diagnosed with lymphoma, hairy cell leukemia, basal and squamous cell cancer, and b-cell lymphoma.  The medical evidence of record includes several pathology reports which diagnose various squamous cell cancers of the skin.  A pathology report dated January 29, 1997, presents a diagnosis of malignant lymphoma, diffuse, large cell type, and subsequent records support that diagnosis.  A reference is noted regarding a history of hairy cell leukemia in September 1994.

A copy of a marriage certificate shows that [Employee’s Spouse’s previous name] and [Employee] were wed on June 16, 1986.  This document indicates that both parties were widowed at the time of marriage and that [Employee’s Spouse’s previous name] parents’ last name was [Employee’s Spouse’s maiden name].  A copy of the employee’s death certificate shows that he died on September 15, 1997, and identifies [Employee’s Spouse’s maiden name] as his surviving spouse.  A copy of a death certificate for [Employee’s Spouse’s first husband] shows that he died on October 7, 1984, and identifies [Employee’s Spouse’s previous name] as his surviving spouse.  A copy of a birth certificate identifies [Claimant #2’s maiden name] as the child of [Employee] and a copy of a marriage certificate establishes the change of her last name to [Claimant #2’s married name].  [Claimant #3] and [Claimant #4] also provided their birth certificates showing [Employee] as their father.  [Claimant #4] provided a marriage certificate showing her change in surname from [Claimant #4’s maiden name] to [Claimant #4’s married name].

[Employee’s Spouse] provided a Form EE-3 (Employment History) in which she states that her husband worked as a pipefitter for Grinnell at the Portsmouth Gaseous Diffusion Plant (GDP) in Portsmouth, OH, from 1953 to 1955.  [Claimant #2] provided an employment history in which she states that her father worked as a pipefitter for Grinnell and Myer Brothers at the Portsmouth GDP in Piketon, OH.  She indicates that she does not know the dates of employment.  Neither claimant indicates that the employee wore a dosimetry badge.  The Portsmouth GDP in Piketon, OH, is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE Worker Advocacy Facility List.

An affidavit was provided by Allen D. Volney, a work associate, who reports that [Employee] was employed by the Grinnell Corp at the Portsmouth GDP as a pipefitter from 1953 to 1955 and that he worked with the employee at that location during that time period.

An itemized statement of earnings from the Social Security Administration (SSA) shows that the employee was paid wages by the Blaw-Knox Company and by the ITT Grinnell Corp. during the fourth quarter (October to December) of 1953, and by the ITT Grinnell Corp. beginning in the first quarter (January to March) of 1954 and ending in the third quarter (July to September) of 1955.  This is because the maximum taxable earnings were met for the year during that quarter.

The DOE was unable to confirm the reported employment.  However, they provided a personnel clearance master card documenting that [Employee] was granted a security clearance with Blaw-Knox (Eichleay Corp.) and (Peter Kiewit Sons Co.) on January 8, 1954.  No termination date is shown.

On April 8, 2004, the district office received a copy of an ante-nuptial agreement, signed by [Employee] and [Employee’s Spouse’s previous name] on June 9, 1968, which was recorded in the office of the County Clerk for Pike County, Kentucky, on June 10, 1986.  In pertinent part, that document states that “each party hereby releases and discharges completely and forever, the other from. . .benefits or privileges accruing to either party by virtue of said marriage relationship, or otherwise, and whether the same are conferred by statutory law or the commonlaw of Kentucky, or any other state or of the United States.  It is the understanding between the parties that this agreement, except as otherwise provided herein, forever and completely adjusts, settles, disposes of and completely terminates any and all rights, claims, privileges and benefits that each now has, or may have reason to believe each has against the other, arising out of said marriage relationship or otherwise, and whether the same are conferred by the laws of the Commonwealth of Kentucky, of any other state, or of the United States, and which are now, or which may hereafter be, in force or effect.”

In a letter dated April 12, 2004, the district office advised [Claimant #2] that a review of the rules and regulations of this program found them to be silent with regard to a “pre-nuptial agreement.”  The letter further stated that adult children may be eligible for compensation as survivors if there is no surviving spouse of the employee.

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

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

On June 21, 2004, the FAB received a letter from the authorized representative of the three children/claimants objecting to the recommended decision of May 6, 2004, on behalf of each of them.  On June 22, 2004, the FAB advised the representative that [Claimant #4] and [Claimant #3] had not filed claims for benefits and that only claimants who had been issued a recommended decision may object to such a decision.  On July 2, 2004, the FAB received a letter from the authorized representative of [Claimant #3] and [Claimant #4] to the effect that they were claiming entitlement to benefits under the EEOICPA as surviving children of [Employee].  On July 6, 2004, the FAB received a copy of a death certificate which shows that [Employee’s first wife] died on March 13, 1985, and identifies [Employee] as her surviving spouse.  On July 23, 2004, the FAB issued a remand order which vacated the recommended decision and returned the case to the district office to adjudicate the new claims, to include any additional development which might be warranted, and to issue a new recommended decision to all claimants.

On August 16, 2004, [Claimant #3]  and [Claimant #4]  filed Forms EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as surviving children of [Employee].  Both claimants state that the employee had been diagnosed with leukemia, myeloma, and lymphoma.

On August 20, 2004, the Cleveland district office issued a recommended decision concluding that [Employee] is a DOE contractor employee as defined by 42 U.S.C. § 7384l(11)(B)(ii) and a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with malignant lymphoma, which is a specified cancer under 42 U.S.C. § 7384l(17).  For those reasons the district office concluded that [Employee’s Spouse], as his surviving spouse, is entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  The district office also concluded that [Claimant #2], [Claimant #3], and [Claimant #4] are not entitled to compensation as surviving children, because the employee is survived by a spouse.  See 42 U.S.C. § 7384s(e)(1)(A).  The district office also finds that [Employee] was employed by Grinnell Corp. as a DOE subcontractor employee from September 1, 1954, to December 31, 1955.

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

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

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

Based on that opinion, the Cleveland district office found that [Employee’s Spouse’s] ante-nuptial agreement did not affect her entitlement to payment.  The district office concluded that [Employee] is a covered employee under 42 U.S.C. § 7384l(1)(B), as he is a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(A).  [Employee] is a member of the Special Exposure Cohort, as defined by 42 U.S.C. § 7384l(14)(A)(ii), and was diagnosed with malignant lymphoma cancer, which is a specified cancer per 42 U.S.C. § 7384l(17)(A).  The district office also concluded that as [Employee] is a covered employee and is now deceased, his eligible survivor is entitled to compensation of $150,000.00, per 42 U.S.C. § 7384s(a)(1).  Lastly, the district office concluded that [Employee’s Spouse]  is the surviving spouse of [Employee], per 42 U.S.C. § 7384s(e)(3)(A); and, as there is no evidence of a living minor child of [Employee], the exception provided by 42 U.S.C. § 7384s(e)(1)(F) does not apply and, pursuant to 42 U.S.C. § 7384s(e)(1)(A), [Employee’s Spouse] is thus entitled to the above mentioned compensation of $150,000.00, and that [Claimant #2], [Claimant #3] and [Claimant #4] are not entitled to compensation pursuant to 42 U.S.C. § 7384s(e)(1)(A).

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

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

OBJECTIONS

The following objections were presented:

1.      The claimants disagreed with the SOL January 4, 2005, opinion, and argued that the SOL improperly relied upon judicial interpretations of statutory provisions in other federal programs when it was concluded that an ante-nuptial agreement cannot override EEOICPA’s statutory provision of survivor benefits to the spouse of a deceased covered employee.

2.      It was requested that the FAB issue a finding regarding the legality of the prenuptial agreement that [Employee] and [Employee’s Spouse] signed on June 9, 1986.  Copies of the decisions in Callahan v. Hutsell, Callahan & Buchino, P.S.C., Revised Profit Sharing Plan, et al., 813 F. Supp. 541 (W.D. Ky. 1992), vacated and remanded, 14 F.2d 600 (Table), 1993 WL 533557 (6th Cir. 1993), were submitted in support of the proposition that contractual rights in ante-nuptial agreements in Kentucky have been recognized by the Court of Appeals for the Sixth Circuit, and also as support for their contention that EEOICPA’s prohibition against transfers or assignments is for the protection of covered employees only and not their survivors.

3.      It was requested that the FAB change the “finding of fact” in the March 18, 2005, recommended decision that the Cleveland district office received the SOL legal opinion that [Employee’s Spouse’s] antenuptial agreement did not affect her entitlement to an award to a “conclusion of law.”

The first objection is in regard to whether a prenuptial agreement can effect a waiver of a claim for survivor benefits under EEOICPA.  A spouse’s right to survivor benefits under EEOICPA is an entitlement or interest that is personal to the spouse and independent of any belonging to a covered employee.  Section 7384s(e)(1)(A) of EEOICPA provides that if a covered Part B employee is deceased at the time of payment of compensation, “payment may be made only as follows:  (A) If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to the surviving spouse.” The term “spouse” is defined in Part B as a “wife or husband of [the deceased covered Part B employee] who was married to that individual for at least one year immediately before the death of that individual. . . .”  42 U.S.C. § 7384s(e)(3)(A).  As a result, it is clear that at the time [Employee’s Spouse] signed the prenuptial agreement on June 9, 1986, she was not yet a “spouse” because she did not satisfy the above-noted definition for Part B of EEOICPA.  Therefore, she had no entitlement to or interest in survivor benefits at that time that she could have attempted to waive.

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

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

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

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

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

FINDINGS OF FACT

1. [Claimant #2] filed a claim for survivor benefits on March 22, 2004.  [Employee’s Spouse] filed a claim for survivor benefits on March 22, 2004.  [Claimant #3] and [Claimant #4]  filed claims for survivor benefits on August 16, 2004.

2. [Employee] worked at the Portsmouth GDP, a covered DOE facility, from December 3, 1953 to December 21, 1955.

3. [Employee] worked for a number of work days aggregating at least 250 work days during the period of September 1954 to February 1, 1992.

4. [Employee] was diagnosed with malignant lymphoma cancer, a specified cancer, on January 29, 1997.

5. [Employee’s Spouse] is the surviving spouse of [Employee] and was married to him for at least one year immediately prior to his death.

6. [Claimant #2], [Claimant #3] and [Claimant #4] are the surviving children of [Employee].

CONCLUSIONS OF LAW

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

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

The evidence of record establishes that [Employee] worked in covered employment at the Portsmouth GDP, in Piketon, Ohio from December 3, 1953 to December 21, 1955.  For SEC purposes, only employment from September 1954 to before February 1992 may be considered. His employment at the Portsmouth GDP from September 1, 1954 to December 21, 1955 meets the requirement of working more than an aggregate 250 days at a covered facility.  See 42 U.S.C. § 7384l(14)(A).  The record does not show whether [Employee] wore a dosimetry badge.  However, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges.  See Federal (EEOICPA) Procedure Manual, Chapter 2-500 (June 2002).  On that basis, [Employee] meets the dosimetry badge requirement.  The Portsmouth GDP is recognized as a covered DOE facility from 1952 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.  The evidence of record also establishes that [Employee] was diagnosed with malignant lymphoma, a specified cancer under 42 U.S.C. § 7384l(17)(A).

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

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

Cleveland, Ohio

Tracy Smart

Hearing Representative

Final Adjudication Branch

Withdrawal of claim

EEOICPA Fin. Dec. No. 64180-2005 (Dep’t of Labor, February 17, 2005)

NOTICE OF FINAL DECISION AND REMAND ORDER

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).  For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on lung cancer.  Additionally, for the reasons set forth below, this case is remanded to the district office regarding the issue of entitlement to medical benefits based on skin cancer.

On August 16, 2004, [Employee] filed a claim for compensation under Part B of the EEOICPA listing skin cancer of the ear, forehead, nose, arm, and neck as the medical conditions on which his claim was based.  The employee provided medical documentation showing that he had been diagnosed with basal cell carcinoma of the right temple and the nasal tip on May 23, 1995; with basal cell carcinoma of the left ear on September 11, 1997; and with basal cell carcinoma of the forehead on January 20, 2003.  Additional medical documentation was also provided to show that he had been diagnosed with cancer of the left lung on October 26, 2004.

The employee had also submitted evidence showing that he was employed by several subcontractors at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH.  That evidence, when considered in its totality, demonstrated that, during the period of January 1952 to June 1985, he worked at the Portsmouth GDP for the contractors listed below:

	FROM	TO	Months Worked
Grinnell (ITT)	September 1954*	August 1955	12.0
Julian Speer	September 1979	July 1980	10.5
Mechanical Construction	July 1980	January 1981	6.5
Dynamic Industrial Construction	October 1981	June 1985	45.0
TOTAL			74

*September 1954 is the earliest date from which employment qualifies for purposes of Special Exposure Cohort Membership.

On November 30, 2004, the district office issued a recommended decision to accept the employee’s claim for compensation as a member of the Special Exposure Cohort, based on lung cancer, and deferred a decision regarding entitlement to medical benefits for skin cancer pending dose reconstruction.  Unfortunately, [Employee] had died on November 26, 2004, and the Final Adjudication Branch (FAB) remanded his case to the district office for administrative closure and consideration of the claim you had filed.  The remand order stated that the issue of entitlement to medical benefits under 42 U.S.C. § 7384s(b) was to be addressed in any future recommended decision.

On December 17, 2004, you filed a claim for benefits under the EEOICPA listing lung cancer as the medical condition on which your claim is based.  The medical documentation of record shows that your husband was diagnosed with cancer of the left lung on October 26, 2004.

The evidence of record establishes that your husband was employed at the Portsmouth GDP as specified above.  The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.

On January 11, 2005, the Cleveland district office issued a decision concluding that your husband is a covered employee with cancer because he is a member of the Special Exposure Cohort who has been diagnosed with lung cancer, a specified cancer under 42 U.S.C. § 7384l(17).  The district office recommends that you, as his surviving spouse, are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s for lung cancer.  The recommended decision also concluded that, pursuant to 42 U.S.C. § 7384s(b), your husband is entitled to medical benefits, as described in 42 U.S.C. § 7384t, from August 16, 2004, to November 26, 2004, for lung cancer.  That decision noted, as a Finding of Fact, that a decision regarding entitlement based on skin cancer would not be issued because you had withdrawn your husband’s claim based on skin cancer.

On January 19, 2005, the FAB received written notification that you waive any and all objections to the recommended decision.  I have reviewed the record on this claim and the recommended decision issued by the district office.  I find that the recommended decision is in accordance with the facts and the law in this case with regard to your entitlement to compensation based on your husband’s lung cancer and that payment will be made for treatment of that condition.  For that reason, I find that you, as the surviving spouse, are entitled to $150,000 pursuant to 42 U.S.C. § 7384s.  As provided by 20 C.F.R. § 30.400(a), payment will be made for treatment of your husband’s lung cancer, as described in 42 U.S.C. § 7384t, for the period of August 16, 2004, to November 26, 2004.

In reviewing your case the FAB notes that the district office accepted your letter of December 21, 2004, as a withdrawal of your husband’s claim for benefits based on skin cancer.  However, 20 C.F.R. § 30.101(b) provides that a survivor may withdraw his or her claim by so requesting in writing to the Office of Workers’ Compensation Programs (OWCP) at any time before OWCP determines eligibility for benefits.  The regulations contain no provision allowing a survivor to withdraw a claim previously filed by an employee.

The basic rules for obtaining medical care, 20 C.F.R. § 30.400(a), provide that a covered employee who fits into at least one of the compensable claim categories is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness, retroactive to the date the employee filed a claim for benefits under the EEOICPA.  When a survivor receives payment, OWCP will pay for such treatment if the covered employee died before the claim was paid.

Because your husband has been found to fit into the compensable claim category of “covered employee with cancer,” and because you have been determined to be entitled to payment of compensation on that basis, entitlement to payment for treatment for the claimed skin cancers is an obligation of the OWCP if they are found to be occupational illnesses.  In order to determine if payment for treatment of the skin cancers claimed by the employee is in order, a decision must be made as to whether or not those cancers are occupational illnesses.

For the reasons discussed above, your case is remanded to the district office for any necessary development, to include dose reconstruction as described in 42 U.S.C. § 7384n(c), and issuance of a new recommended decision as to whether or not any or all of the claimed skin cancers are occupational illnesses, and, if so, whether or not OWCP will pay for such treatment.

Cleveland, OH

Tracy Smart

Acting FAB Manager

Final Adjudication Branch