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

Final Adjudication Branch

Discretion of

EEOICPA Fin. Dec. No. 4216-2002 (Dep’t of Labor, April 18, 2005)

FINAL DECISION AFTER A REVIEW OF WRITTEN RECORD

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 (EEOICPA or the Act).  42 U.S.C. § 7384 et seq. 

Since you filed a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with 20 C.F.R. § 30.312 of the implementing regulations.  A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with 20 C.F.R. § 30.310 of the implementing regulations.  The same section of the regulations provides that in filing objections, the claimant must identify his/her objections as specifically as possible.  In reviewing any objections submitted, under 20 C.F.R. § 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.

For the reasons set forth below, the FAB accepts your claim for medical benefits for the conditions of bladder cancer to include the carcinoma in situ of the right distal ureter; and reverses the decision of the district office denying entitlement to medical benefits for prostate cancer.  Thus the FAB also accepts your claim for medical benefits for metastatic prostate cancer. 

STATEMENT OF THE CASE

You were previously awarded benefits under the EEOICPA which included a lump sum payment of $150,000, and medical benefits effective July 31, 2001, for bladder cancer (specifically papillary transitional cell carcinoma of the left ureter).

You subsequently submitted a new Form EE-1 (Claim for Benefits under the EEOICPA) on July 21, 2004, which identified bladder cancer diagnosed on May 30, 2004, and prostate cancer diagnosed on June 3, 2004.  You submitted medical evidence which included a surgical pathology consultation from the Mayo Clinic, dated June 12, 2004, based on a biopsy of the bladder on May 30, 2004, and prostate chips from a transurethral resection, obtained on June 3, 2004, that shows final diagnoses of urothelial carcinoma in situ and non-invasive papillary urothelial carcinoma of the urinary bladder; and invasive grade 3 urothelial carcinoma of the prostate chips.  A narrative report from Daniel W. Visscher, M.D., at the Mayo Clinic, dated June 11, 2004, was also submitted in which he discusses that they agree with the assessment that the focus of invasive carcinoma in the prostate chips correspond to a urothelial carcinoma, and the fact that they did not identify any areas of conventional prostatic adenocarcinoma.  A narrative report from Dr. Christopher Schmidt, dated October 21, 2004, noted that you underwent a transurethral resection of the prostate on June 3, 2004, and noted that the pathology report revealed a microscopic focus of invasive urothelial carcinoma.  He noted that in summary, you now had a transitional cell carcinoma that had spread from the bladder and was now invasive into the prostatic ducts. 

You previously had submitted your employment history on Form EE-3, indicating that you worked at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, Ohio, from November 1980 to October 1994, and that you did wear a dosimetry badge.  On September 21, 2001, the Department of Energy verified your employment at Portsmouth GDP from November 3, 1980 to November 30, 1994.  The Portsmouth Gaseous Diffusion Plant in Piketon, Ohio is recognized as a Department of Energy facility from 1954 to July 28, 1998; from July 29, 1998 to present (remediation); and from May 2001 to present (cold standby).  See Department of Energy, Office of Worker Advocacy Facilities List. 

On December 22, 2004, the Cleveland district office issued a recommended decision that concluded you are a member of the Special Exposure Cohort, as defined 42 U.S.C. § 7384l(14)(A).  Further, the district office concluded that you were diagnosed with bladder cancer, which is a specified cancer as defined by 42 U.S.C. § 7384l(17)(A).  In addition, the district office concluded that since you were previously compensated in the amount of $150,000, pursuant to 42 U.S.C. § 7384s(a)(1), for left ureter cancer, you are not eligible for an additional payment.  The district office concluded that you are entitled to medical benefits for bladder cancer, effective July 21, 2004, pursuant to 42 U.S.C. § 7384t.  The district office also concluded that they did not receive evidence, required by 20 C.F.R. §§ 30.211 and 30.214, to establish that you had prostate cancer, and thus you are not established as a covered employee with prostate cancer as shown in 42 U.S.C. § 7384l(9). 

OBJECTIONS

On February 2, 2005, the Final Adjudication Branch received your written objection to the recommended decision.  You indicated that you disagreed with the conclusion of law in the recommended decision that the district office did not receive evidence that you had prostate cancer.  You indicated that the bladder cancer had invaded the prostate and that only option was surgery to remove both the bladder and the prostate due to the bladder cancer.  You noted that you had surgery on January 6, 2005, to remove the bladder and the prostate.  You indicated that Dr. Hafez, University of Michigan Medical Center, was the doctor who performed your surgery.  You stated “We feel [Employee] should have coverage for anything pertaining to his prostate due to the bladder cancer that invaded the prostate”.  Dr. Khaled Hafez M.D. signed your objection and stated that he “was in agreement with the above letter and am available for any further information regarding this case.”  You also attached additional medical evidence to your objection that included a copy of a surgical pathology report, from biopsies of the bladder and prostate, obtained on November 18, 2004, that shows diagnoses of urothelial carcinoma (CIS) of the bladder; and invasive high grade urolthelial carcinoma, and flat carcinoma in situ of the prostate.  You also submitted an operative report that shows you underwent a radical cystoprostatectomy, right pelvic lymph node dissection, and ileal conduit urinary diversion on January 6, 2005.  You also submitted the subsequent surgical pathology report, from these procedures performed on January 6, 2005, that shows diagnoses of urothelial carcinoma in situ of the right distal ureter; and invasive urothelial carcinoma and flat carcinoma in situ, of the urinary bladder and prostate. 

FINDINGS OF FACT 

1. You filed a claim for employee benefits under the EEOICPA based on bladder and prostate cancer on July 21, 2004. 

2. You were employed at the Portsmouth GDP in Piketon, Ohio, from November 3, 1980 to November 30, 1994. 

3. You were employed at the Portsmouth GDP for a number of work days aggregating at least 250 work days prior to February 1, 1992, and during such employment was monitored through the use of dosimetry badges. 

4. On May 30, 2004, you were diagnosed with urothelial carcinoma in situ, and non-invasive papillary urothelial carcinoma of the urinary bladder; on June 3, 2004, with invasive urothelial carcinoma of the prostate; and on January 6, 2005, with urothelial carcinoma in situ of the right distal ureter. 

CONCLUSIONS OF LAW

In order for you to be considered a “member of the Special Exposure Cohort,” you 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 you worked in covered employment at the Portsmouth GDP from November 3, 1980 to November 30, 1994.  Portsmouth GDP is a covered facility beginning on September 1, 1954.  Consequently, you met the requirement of working more than an aggregate 250 days at a covered facility.  See 42 U.S.C. § 7384l(14)(A).  On your employment history (Form EE-3) you stated that you did wear a dosimetry badge and DOE confirmed that you wore a dosimetry badge to monitor for radiation exposure while employed at the facility.  On that basis, you are found to meet the dosimetry badge requirement. 

Bladder cancer (specifically urothelial carcinoma of the bladder diagnosed on May 30, 2004, and urothelial carcinoma in situ of the right distal ureter diagnosed on January 6, 2005) are specified cancers under the Act and the medical evidence of record establishes a diagnosis of these bladder cancers.  Therefore, you are a member of the Special Exposure Cohort, who was diagnosed with a specified cancer.  See 42 U.S.C. § 7384l(17)(A).  Although prostate cancer is not a specified cancer, the medical evidence clearly establishes that you were diagnosed with invasive urothelial carcinoma of the prostate on June 3, 2004, due to the spread of the urothelial carcinoma of the bladder that invaded the prostate.  Therefore, based on the additional medical evidence submitted with your objection, and the signed statement from Dr. Dr. Khaled Hafez M.D. contained in your objection, I find that the prostate cancer is a consequential disease under 20 C.F.R. §§ 30.210(c) and 30.214(b), because the evidence shows that it metastasized from your urothelial carcinoma of the bladder. 

For the reasons stated above, I accept your claim for benefits based on bladder cancer to include the right distal ureter cancer, and prostate cancer.  You are not entitled to any additional payment since you were previously compensated in the amount of $150,000, for your bladder cancer (specifically papillary transitional cell carcinoma of the left ureter previously diagnosed on September 20, 1996) , pursuant to 42 U.S.C. § 7384s.  You are entitled to medical benefits for your additional bladder cancers (specifically urothelial carcinoma of the urinary bladder, and urothelial carcinoma in situ of the right distal ureter) and for your prostate cancer that metastasized from your bladder cancer, effective July 21, 2004.  See 42 U.S.C. § 7384t. 

Cleveland, Ohio

Debra A. Benedict

District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 47148-2006 (Dep’t of Labor, May 16, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above 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, FAB accepts the claim under Part B of EEOICPA in the amount of $150,000.00 and under Part E in the amount of $125,000.00.  Adjudication of the claim for survivor benefits for the conditions of diabetes and hypertension under Part E will not be undertaken, as maximum survivor benefits are being awarded. 

STATEMENT OF THE CASE

On July 15, 2003, [Claimant] filed a Form EE-2 claiming for survivor benefits under EEOICPA with the Department of Labor as the surviving spouse of [Employee].  She based her claim on the employee’s metastatic renal cell carcinoma.  On December 28, 2006, [Claimant] filed a second Form EE-2 for the conditions of renal cell carcinoma, diabetes, and hypertension. 

[Claimant] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Lawrence Livermore National Laboratory (LLNL) as a designer from June 19, 1956 to March 2, 2000.  The district office used the Oak Ridge Institute for Science and Education (ORISE) database to verify that [Employee] worked at LLNL from June 19, 1956 to March 2, 2000.  The Department of Energy (DOE) verified that [Employee] was employed by the University of California Radiation Laboratory (UCRL) at LLNL beginning on June 19, 1956, and that he had dosimetry badges issued in association with his work with UCRL/LLNL at the Nevada Test Site (NTS) on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  Employment records obtained from DOE indicate that [Employee] was employed as a draftsman and designer at LLNL.

The record includes a copy of a marriage certificate showing [Claimant] and the employee were married on May 18, 1963, and a copy of [Employee]‘s death certificate showing [Claimant] was married to the employee at the time of his death on March 2, 2000.  The death certificate identifies the immediate cause of death as respiratory failure and metastatic renal cell carcinoma, with diabetes mellitus, hypertension and hyperlipidemia listed as conditions that contributed to his death.  The medical evidence of record includes a November 16, 1999 pathology report in which Dr. Lena Scherba diagnosed metastatic renal cell carcinoma with metastases to the left pleura. 

On March 15, 2006, FAB issued a final decision under Part B to deny [Claimant]‘s claim for benefits, concluding that the employee’s renal cell carcinoma was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at LLNL.  On March 20, 2007, the Seattle district office issued a recommended decision to deny [Claimant]‘s claim for benefits under Part E of the Act.  The district office concluded that she did not provide sufficient evidence to show that toxic exposure at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the employee’s metastatic renal cell carcinoma. 

On March 29, 2007, the National Institute for Occupational Safety and Health (NIOSH) issued OCAS-PEP-012, entitled “Program Evaluation Plan:  Evaluation of Highly Insoluble Plutonium Compounds.”  The PEP provided NIOSH’s plan for evaluating dose reconstructions for certain claims to determine the impact of highly insoluble plutonium compounds at particular sites, and specifically concluded that the existence of highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.  This change went into effect on February 6, 2007 and affected those cases with a dose reconstruction performed prior to that date that resulted in a less than 50% Probability of Causation (PoC) with verified employment at LLNL.

On June 18, 2007, FAB remanded [Claimant]‘s Part E claim for survivor benefits and instructed the district office to refer the case to NIOSH for rework of the dose reconstruction pursuant to EEOICPA Bulletin No. 07-19 (issued May 16, 2007), which determined that the existence of the highly insoluble plutonium at LLNL should be considered for Type Super S plutonium in the dose reconstruction.

On June 26, 2007, the Seattle district office returned the claim to NIOSH for a rework of the dose reconstruction.  On October 23, 2007, the district office received the NIOSH Report of Dose Reconstruction dated September 19, 2007.  Using the information provided in this report, the district office utilized the Interactive Radio Epidemiological Program (IREP) to determine the PoC of the employee’s renal cell carcinoma and reported in its recommended decision that there was a 26.76% probability that the employee’s metastatic renal cell carcinoma was caused by exposure to radiation at LLNL.

On November 9, 2007, a Director’s Order was issued vacating the final decision dated March 15, 2006, and reopening [Claimant]‘s claim under Part B of EEOICPA.  The Director’s Order directed the district office to reopen her claim under Part B based on EEOICPA Bulletin No. 07-27 (issued August 7, 2007) to reflect the revised dose reconstruction methodology to the calculation of the PoC and provided procedures for processing claims with a final decision to deny that may be affected by NIOSH’s OCAS-PEP-012.    

On February 7, 2008, the Seattle district office recommended denial of [Claimant]‘s claim for survivor benefits under Part B and Part E, finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the LLNL.  The district office concluded that the employee did not qualify as a “covered employee with cancer” under Part B; that the dose reconstruction estimates and the PoC calculations were properly performed, and that [Claimant] was not entitled to survivor benefits under Part B.  Further, the district office concluded that under Part E, the totality of the evidence did not provide sufficient evidence to show that exposure to a toxic substance at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to or causing the claimed conditions of renal cell carcinoma, diabetes or hypertension.

In a letter received by FAB on May 15, 2008, [Claimant] indicated that neither she nor [Employee] had filed a lawsuit or received a settlement based on the claimed conditions.  She also indicated that they had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed illnesses, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, she indicated that [Employee] had no minor children or children incapable of self-support, who were not her natural or adopted children, at the time of his death.  

On March 3, 2008, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC) in a report to Congress: Employees of DOE, its predecessor agencies and DOE contractors or subcontractors who were monitored for radiation exposure while working at LLNL from January 1, 1950 through December 31, 1973 for a number of work days aggregating at least 250 work days or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  This addition to the SEC became effective April 2, 2008.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1.      On July 15, 2003 and December 28, 2006, [Claimant] filed a claim for benefits under EEOICPA.

2.      [Claimant] is the surviving spouse of the employee and was married to him for at least one year immediately prior to his death.

3.      The employee worked at LLNL for an aggregate of at least 250 work days from June 19, 1956 to March 2, 2000, and was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973.  The employee was monitored for radiation exposure, and qualifies as a member of the SEC.

4.      The employee was diagnosed with metastatic renal cell carcinoma, which is a “specified” cancer, on November 16, 1999, after starting work at a DOE facility.   

5.      The evidence of record supports a causal connection between the employee’s death due to metastatic renal cell carcinoma and his exposure to radiation and/or a toxic substance at a DOE facility.

6.      [Claimant] has not filed or received any money (settlement, compensation, benefits, etc.) from a tort action or from a state workers’ compensation program based on the claimed condition. She has never pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any federal or state workers’ compensation law.  The employee had no minor children or children incapable of self-support, who were not [Claimant]‘s natural or adopted children, at the time of his death.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the district office on February 7, 2008.  [Claimant] has not filed any objections to the recommended decision, and the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).    

As noted above, on April 2, 2008 a new addition to the SEC became effective.  The evidence of record indicates that the employee worked in covered employment at LLNL from June 19, 1956 to March 2, 2000, that he was issued visitor dosimetry badges at the NTS on March 13, 1972, March 30, 1972, May 5, 1972 and April 24, 1973, and that he was monitored for radiation exposure during his employment.  The medical evidence shows that [Employee] was diagnosed with metastatic renal cell carcinoma on November 16, 1999, more than 5 years after his initial exposure to radiation. 

FAB may reverse a recommended decision to deny a claim if the portion of the claim denied by the district office is in posture for acceptance.  The evidence is sufficient to establish that the employee is a member of the class added to the SEC who was diagnosed with metastatic renal cell carcinoma, a “specified” cancer, more than five years after initial exposure, and is therefore a “covered employee with cancer” under section 7384l(9)(A) of EEOICPA.  Further, [Claimant] is the surviving spouse of the employee, as defined by § 7384s(e)(1)(A), and is entitled to compensation in the amount of $150,000.00 under Part B.

Under § 7385s-4(a) of EEOICPA, if an employee has engaged in covered employment at a DOE facility and was determined under Part B to have contracted an “occupational” illness, the employee is presumed to have contracted a covered illness through exposure at that facility.  Further, if the employee would have been entitled to compensation under Part E and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee, an eligible survivor would be entitled to survivor benefits under Part E..  See 42 U.S.C. § 7385s-3(1)(A) and (B).

The evidence of record establishes that the employee was a “covered DOE contractor employee” who was diagnosed with a “covered” illness, and therefore he would be eligible for benefits under Part E.  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  [Claimant] is the employee’s “covered” spouse as defined by § 7385s-3(d)(1) and is therefore entitled to additional compensation in the amount of $125,000.00 under Part E.      

Accordingly, FAB reverses the recommended decision and accepts the claim for survivor benefits under Part B of $150,000.00, and also under Part E for an additional $125,000.00.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

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

[1] Review of the pathology report shows this was not a BCC but rather a pilomatricoma, which may be either benign or malignant.  The pathology report did not specify which.  Therefore, this should not have been utilized in the dose reconstruction.  However, you had an additional cancer that was not utilized by NIOSH in the dose reconstruction, the BCC of the right lower face, diagnosed August 2, 2004, that the DOL health physicist has determined could be substituted for the pilomatricoma without negatively impacting the combined probability of causation.

EEOICPA Fin. Dec. No. 10016501-2007 (Dep’t of Labor, May 7, 2007)

NOTICE OF FINAL DECISION 

This is the final decision of the Final Adjudication Branch (FAB) concerning the above 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 FAB reverses the recommended decision of the district office and accepts the claim under Part E of EEOICPA for medical benefits based on the covered illness of brain tumor (meningioma).  

STATEMENT OF CASE

On December 18, 2002, [Employee] filed a claim for benefits under Part B and the former Part D of EEOICPA claiming he developed a brain tumor, diagnosed in February of 1993, as the result of his work at a Department of Energy (DOE) facility.  On October 28, 2004, Part E of EEOICPA was enacted when Congress repealed Part D.  [Employee] alleged on his Form EE-3 that he was employed as a Hazard Reduction Technician (HRT) from April 14, 1984 to the date of his signature (December 18, 2002) at the Rocky Flats Plant.[1] DOE confirmed his employment at the Rocky Flats Plant from April 16, 1984 to January 15, 2003.

[Employee] submitted medical records in support of his claim.  Included in these medical records were several surgical pathology reports, MRI reports and medical narratives, which document he was diagnosed with meningioma (a non-cancerous brain tumor) in February 1993 at the age of 31.  Then, he developed several recurrences of the initial meningioma as well as new lesions in other parts of his brain.  Notably, his tumors were always referred to in these records as being “atypical, aggressive, and skull-based” and have resulted in his loss of hearing and other neurological deficits.     

On May 14, 2003, FAB issued a final decision denying [Employee]‘s claim under Part B of EEOICPA, because non-cancerous tumors of the brain are not compensable “occupational” illnesses under that Part.

In September 2006, the district office initiated development of [Employee]‘s claim under Part E.  Under that Part, once the medical evidence substantiates a diagnosis of a claimed condition, the district office proceeds with a causation analysis to make a determination as to whether there is a causal connection between that condition and exposure to a toxic substance or substances at a DOE facility.  The standard by which causation between an illness and employment is established is explained in Federal (EEOICPA) Procedure Manual Chapter E-500.3b:

Causation Test for Toxic Exposure.  Evidence must establish that there is a relationship between exposure to a toxic substance and an employee’s illness or death.  The evidence must show that it is “at least as likely as not” that such exposure at a covered DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness or death, and that it is “at least as likely as not” that exposure to a toxic substance(s) was related to employment at a DOE facility.

To assist employees in meeting this standard, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) undertakes a variety of steps to collect necessary information to show that a claimed illness is linked to a toxic exposure.   Principally, DEEOIC has undertaken extensive data collection efforts with regard to the various types of toxic substances present at particular DOE facilities and the health effects these substances have on workers.  This data has been organized into the Site Exposure Matrices (SEM).  SEM allows DEEOIC claims staff to identify illnesses linked to particular toxic substances, site locations where toxic materials were used, exposures based on different job processes or job titles, and other pertinent facility data. 

In addition to the SEM data, DEEOIC works directly with DOE to collect individual employee exposure and medical records.  Contact is also made in certain situations to obtain information from Former Worker Screening Programs or trade groups that may have relevant exposure or medical information.   Relevant specialists in the areas of industrial hygiene and toxicology are also utilized in certain situations to evaluate and render opinions on claims made by employees.  DEEOIC also works directly with treating physicians or other medical specialists in an effort to obtain the necessary medical evidence to satisfy the causation standard delineated under EEOICPA. 

On September 20, 2006, the district office notified [Employee] that after conducting extensive research, they had been unable to establish a causal connection between the development of his meningioma and exposure to a toxic substance or substances at the Rocky Flats Plant.  He was afforded a period of 30 days to provide factual or medical evidence that established such a link.  

On October 17, 2006, the district office received a letter from [Employee]‘s authorized representative, in which he indicated that he believed that [Employee]‘s exposure to plutonium and his work in the glove boxes where he was exposed to radiation contributed to the development of his brain tumor.  He requested a copy of the file, which was provided by the district office on November 14, 2006.

On December 4, 2006, a letter was received from [Employee]‘s representative, in which he detailed several instances, based on his review of [Employee]‘s exposure records, when he had experienced plutonium contamination.

Subsequently, on January 31, 2007, the district office issued a recommended decision to deny the claim under Part E of EEOICPA, finding that the evidence of record was not sufficient to establish a causal relationship between the development of [Employee]‘s meningioma and his exposure to toxic substances at the Rocky Flats Plant.  The recommended decision was then forwarded to FAB for review.

[Employee]‘s representative requested an oral hearing on February 12, 2007, and reiterated his contention that [Employee]‘s exposure to radiation had contributed to the development of his meningioma.  By letter dated February 27, 2007, the representative provided results of his research into the relationship between the development of meningioma and exposure to radiation.  He referenced fourteen medical articles that suggested such a relationship existed.

Upon review of the record, FAB determined that based on the contamination records in the file; [Employee]‘s age at the time of diagnosis; his length of exposure to radiation at the time of diagnosis; the location of his meningiomas, the description of his meningiomas as being atypical, aggressive and skull-based; and the fact that the medical literature appears to support a relationship between exposure to radiation and the development of these types of tumor, that [Employee]‘s record should be referred to a DEEOIC toxicologist.   

On April 11, 2007, a statement of accepted facts detailing [Employee]‘s employment dates, labor categories, the work processes he had been engaged in, the buildings that he worked in, his exposure history, the number of positive contamination events he had experienced with resulting acute intakes of plutonium, as well as his medical and case history was referred to a toxicologist. The toxicologist was asked to provide an opinion as to whether there was current scientific and/or medical evidence supporting a causal link between exposure to radiation and the development of meningioma and, if so, whether based on the specifics of [Employee]‘s case, it is as likely as not that his exposure to radiation at the Rocky Flats Plant was a significant factor in causing, contributing to, or aggravating his meningioma.

On April 26, 2007, the toxicologist stated that the scientific and medical literature does support a “causal” relationship between ionizing radiation and meningiomas at levels below 1 siever (SV). Further, she opined with a reasonable degree of scientific certainty “[t]hat it is as likely as not that exposure to a toxic substance at a DOE facility during a covered time period was a significant factor in aggravating, contributing to, or causing the employee’s illness, and that it is ‘at least as likely as not’ that exposure to a toxic substance was related to employment at a DOE facility.”

On May 7, 2007, [Employee] affirmed he had never filed for or received any benefits for meningioma associated with a tort suit or state workers’ compensation claim.  Additionally, he stated that he had never pled guilty to or been convicted of any charges of fraud in connection with a state or federal workers’ compensation claim.

After a careful review of the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On December 18, 2002, [Employee] filed a claim under Part E of EEOICPA for a brain tumor.

2. [Employee] was employed by DOE contractors from April 16, 1984 to January 15, 2003 at the Rocky Flats Plant, a covered DOE facility.

3. During [Employee]‘s employment he was exposed to ionizing radiation.

4. [Employee] was diagnosed with meningioma, a non-cancerous tumor of the brain, after he began his employment at the Rocky Flats Plant.

5. The evidence of record supports a causal relationship between the development of [Employee]‘s meningioma and exposure to ionizing radiation at the Rocky Flat Plant.

6. Ionizing radiation is as least as likely as not a significant factor in causing, contributing to, or aggravating [Employee]‘s meningioma. 

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, FAB will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

FAB received the letter of objection and request for an oral hearing.  A hearing was scheduled, but upon review of the evidence in the case file, FAB determined the claim was not in posture for a final decision and required a review by a toxicologist.  Based on this review, the recommended decision is hereby reversed and [Employee]’s claim for meningioma is accepted.  On May 7, 2007, he submitted a written statement affirming that he agreed with the final decision to reverse the recommended decision and to accept his claim for meningioma.

FAB concludes that [Employee] is a covered DOE contractor employee with a covered illness who contracted that illness through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(c).  Therefore, [Employee]‘s claim under Part E is accepted and he is awarded medical benefits for the treatment of meningioma pursuant to 42 U.S.C. § 7385s-8.

Denver, CO

Paula Breitling

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10017018-2006 (Dep’t of Labor, July 18, 2007)

NOTICE OF FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  After a review of the record, FAB accepts the claim for impairment benefits under Part E of EEOICPA based on the covered illness of pharyngeal cancer and consequential condition of an unspecified disorder of the teeth and supporting structures.

STATEMENT OF THE CASE

On February 19, 2002, [Employee] filed a request for a review by a Physicians Panel under the former Part D of EEOICPA with the Department of Energy (DOE), and on July 16, 2003 he filed a Form EE-1 claiming for benefits under Part B with the Department of Labor.  Both of these claims were based on cancer of the tongue, throat and lymph nodes.

On May 21, 2002, FAB issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part B.  In that decision, FAB concluded that he was a member of the Special Exposure Cohort because he belonged to the class of employees who worked at the Amchitka Island Nuclear Explosion Site and had been diagnosed with a “specified” cancer (of the pharynx) on October 31, 2001.  FAB therefore awarded [Employee] $150,000.00 and medical benefits for cancer of the pharynx. 

On March 31, 2006, FAB also issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part E, as well as for a consequential condition of an unspecified disorder of the teeth and supporting structures. In that second decision, FAB concluded that he was a covered DOE contractor employee with a “covered” illness (pharyngeal cancer), and that he had contracted that covered illness through exposure to a toxic substance while working at a DOE facility. FAB therefore awarded him medical benefits under Part E of EEOICPA, retroactive to February 19, 2002, for both his pharyngeal cancer and the consequential condition of an unspecified disorder of the teeth and supporting structures.

On May 10, 2006, the district office received [Employee]‘s letter requesting an impairment rating for his cancer of the pharynx and his accepted consequential condition.  An impairment rating was performed by a District Medical Consultant (DMC), Dr. Coleen Weese.  In her March 16, 2007 report, Dr. Weese concluded that [Employee] had a 15% permanent impairment of the whole person due to his pharyngeal cancer with metastasis to the lymph nodes.

The district office then referred the claim to another DMC, Dr. Marc Bodow, for a complete impairment rating that also included the accepted consequential condition of an unspecified disorder of the teeth and supporting structures, including xerostomia.  In his April 7, 2007 report, Dr. Bodow indicated that [Employee] had a 21% impairment of the whole person due to the pharyngeal cancer (with metastasis) and the disorder of the teeth and supporting structures.

The Seattle district office conducted a telephone interview with [Employee] in which he stated that he had received a settlement of $18,231.62 of state workers’ compensation benefits related to the medical conditions for which he had claimed EEOICPA benefits.  The record includes a Compromise and Release from the Alaska Workers’ Compensation Board that establishes that he received a settlement of $18,231.62 for his cancer due to radiation exposure on Amchitka Island.

On April 12, 2007, the Seattle district office issued a recommended decision to accept [Employee]‘s claim for permanent impairment based on his cancer of the pharynx and the consequential disorder of the teeth and supporting structures under Part E.  The district office found that he had a 21% impairment of the whole body as the result of those covered illnesses, and that he was entitled to $2,500.00 for each percentage point (21 x $2,500.00 = $52,500.00), which had to be coordinated with the $18,231.62 he had received in state workers’ compensation benefits, leaving a net recommended award of $34,268.38.

On April 23, 2007, FAB received [Employee]‘s affirmation that neither he nor anyone in his family had ever filed for or received any settlement or award from a tort suit related to his exposure to radiation, and that he had not pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  He also confirmed that he had filed for and received an $18,231.62 settlement of a state workers’ compensation claim for the same medical conditions he had claimed for under EEOICPA.

OBJECTIONS

On May 7, 2007, FAB received [Employee]‘s letter objecting to the recommended decision, indicating that he felt that 21% was not completely fair, and that he could only do 30% of what he used to do before he was diagnosed with cancer in 2001.  In that letter [Employee], listed a number of ways in which he alleged that his quality of life had decreased, such as the weakness he experienced due to the radiation treatments he was receiving for his cancer, and his inability to enjoy activities or travel.  Lastly, he disagreed with the coordination of his Part E benefits with the settlement he had received from the Alaska Workers’ Compensation program.

In a subsequent June 4, 2007 submission, [Employee] provided FAB with letters written by his two best friends with their observations of his condition.  He also indicated that he had had an appointment three weeks ago with his physician, who had told him that his exhaustion was due to the radiation doses he had been receiving in his neck and throat. Once the recommended decision on impairment has been issued and forwarded to FAB for the issuance of a final decision, an employee may submit new medical evidence or an additional impairment evaluation to challenge the evaluation upon which the recommended decision was based.  However, the employee bears the burden of proving that the new medical evidence or new impairment evaluation is of greater probative value than the evaluation used by the district office to determine the impairment rating.  20 C.F.R. § 30.908 (2007). In this case, [Employee] did not provide any medical evidence or an impairment evaluation that is of greater probative value than the impairment evaluation received from the second DMC.  In his report, that DMC provided medical rationale supporting his whole body permanent impairment rating of 21%, and explained how he had arrived at that percentage using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides).

As for the state workers’ compensation benefits [Employee] received, 20 C.F.R. § 30.626 notes that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) must reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits.  If a covered Part E employee or a survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim for the same covered illness, DEEOIC will first determine the dollar value of the benefits received from a state workers’ compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness.  DEEOIC will then deduct the reasonable costs of obtaining those state workers’ compensation benefits, such as attorney fees and certain itemized costs (like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to DEEOIC for its consideration.  The Part E benefits that will be reduced consist of any unpaid monetary payments payable in the future and medical benefits payable in the future.  In those cases where it has not yet paid Part E benefits, DEEOIC will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first.  If the amount to be subtracted exceeds the monetary payments currently payable, DEEOIC will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus.  This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).

The record establishes that [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for mouth and throat cancer due to his work-related exposure to radiation at Amchitka Island.  It also establishes that his employers and the employers’ insurance carriers paid a separate amount of $6,768.38 for his attorney fees.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. On February 19, 2002, [Employee] filed a claim under EEOICPA with DOE, and also with the Department of Labor on July 16, 2003.

2. FAB issued a final decision accepting [Employee]‘s Part B claim for cancer of the pharynx on May 21, 2002.

3. FAB also issued a final decision accepting [Employee]‘s Part E claim for cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures on March 31, 2006.

4. [Employee] has a 21% whole body permanent impairment due to cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures, resulting in a gross impairment award of $52,500.00.  Following coordination of this gross award with [Employee]‘s state workers’ compensation benefits of $18,231.62, the net impairment award payable is $34,268.38.

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

CONCLUSIONS OF LAW

[Employee] has previously been determined to be a covered DOE contractor employee who contracted cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth through exposure to a toxic substance (radiation) at a DOE facility, the Amchitka Island Nuclear Explosion Site.  Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, he has an impairment rating of 21% in accordance with the Guides and the gross amount of his impairment award is $52,500.00.  However, [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for the same accepted conditions.  Therefore, his Part E benefits must be coordinated with those state workers’ compensation benefits, and the net amount of impairment benefits payable following coordination is  $34,268.38.

The undersigned notes [Employee]‘s objections to the recommended decision; however, they do not change the outcome of this case.  FAB is bound by the provisions of EEOICPA and the regulations, and has no authority to depart from them.  Accordingly, [Employee] is entitled to compensation for his permanent impairment in the amount of $34,268.38 under Part E.

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10033309-2006 (Dep’t of Labor, November 9, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above 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 is approved for an award of impairment benefits under Part E of EEOICPA in the amount of $17,300.00 (an award of 17% in impairment benefits of $42,500.00, reduced because of the required coordination with state workers’ compensation benefits by $25,200.00) based on the employee’s covered illness of lung cancer.  A decision on the claim for prostate cancer under both Parts B and E is deferred pending further development.

STATEMENT OF THE CASE

On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E (which was formerly Part D) of EEOICPA.  At that time, he identified lung cancer as the condition resulting from your employment at a Department of Energy (DOE) facility.  DOE confirmed that [Employee] was employed at the K-25 Plant in Oak Ridge, Tennessee from July 6, 1953 to April 7, 1961, and at the Y-12 Plant in Oak Ridge, Tennessee from January 16, 1967 to July 31, 1985.  In support of his claim, [Employee] submitted an August 11, 1994 surgical pathology report, signed by Dr. Stephen H. Harrison, showing a diagnosis of moderately to poorly differentiated adenocarcinoma of the left lung.

On January 7, 2002, FAB issued a final decision accepting his claim under Part B, finding that he was a member of the Special Exposure Cohort, that he had been diagnosed with lung cancer, which is a “specified” cancer under EEOICPA, and awarding him compensation in the amount of $150,000.00 and medical benefits under Part B for lung cancer.  On April 17, 2006, FAB also accepted [Employee]‘s claim under Part E, finding that he had contracted lung cancer through exposure to a toxic substance at a DOE facility, and awarded him medical benefits for his “covered” illness of lung cancer under Part E.

On June 5, 2006, the district office received [Employee]‘s request for an impairment evaluation under Part E and elected to have a Department of Labor physician perform the rating.  To determine his impairment rating, the district office referred [Employee]‘s case file to a District Medical Consultant (DMC).  In a March 29, 2007 report, the DMC reviewed the medical evidence of record and concluded that it established that [Employee] had reached maximum medical improvement.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC concluded that [Employee] had a 5% whole person impairment due to his accepted lung cancer.

On November 8, 2006, the district office received a copy of [Employee]‘s state workers’ compensation settlement of $25,200.00 for the condition of lung cancer.

On March 15, 2007, the Jacksonville district office issued a recommended decision finding that [Employee]‘s covered illness of lung cancer resulted in a 5% whole body impairment and that he was entitled to $12,500.00 in impairment benefits under Part E of EEOICPA.  The district office also recommended that the $25,200.00 state workers’ compensation settlement be coordinated with his impairment benefits, leaving a surplus of $12,700.00 to be recovered out of future medical benefits until it was absorbed.

OBJECTIONS

On May 14, 2007, [Employee] timely filed a written objection to the recommended decision’s proposed award and requested an oral hearing to present his objections, which was held on August 1, 2007 in Oak Ridge, Tennessee.  [Employee] was represented by Christopher H. Hayes, an attorney with the Energy Workers’ Legal Resource Center.  On August 8, 2007, a copy of the transcript of the hearing was sent to [Employee].

[Employee] submitted exhibits at the hearing, as follows:

• A copy of his state workers’ compensation settlement agreement, showing that he was paid $25,200.00.
• A copy of an April 5, 2005 report by Dr. William R.C. Stewart, III, concluding that [Employee] had a 15% impairment to the whole person based on his lung cancer, without recurrence, which also noted that his impairment would be much higher if the cancer returned.
• A copy of an August 23, 2006 letter and attached medical report from Dr. R. Hal Hughes, noting that [Employee] was seen in his office on that date and that he had a 50% impairment to the whole person, based on the Fifth Edition of the Guides, Table 5-12.
• A copy of a June 13, 2007 report of a medical examination, in which Dr. Norm Walton concluded that [Employee] had a 17% impairment of the whole person based on his lung cancer.

At the hearing, [Employee] presented the following objections: 

1. He stated that he was seen by Dr. Stewart to obtain an impairment rating of 15% in 2005, and that that was the report upon which his state workers’ compensation settlement was based.  [Employee] also stated that on August 23, 2006, Dr. Hughes, his current treating physician, supplied a letter referencing a 50% impairment to the whole person.  He stated that he saw Dr. Norm Walton at his attorney’s request on June 13, 2007, and that he gave him a 17% impairment rating to the whole person after a “hands-on examination” and “repeat breathing tests.” 
2. [Employee] stated that when he is seen in a doctors’ office, it is usually after he has taken his medication, such as an inhaler, which improves his breathing function.  He stated that his condition varies from day to day and within the day, being worse at night, especially if he does sleep propped up, and that he is not able to do activities such as “mow the yard.”  [Employee] argued that the DMC’s report did not take these considerations into account.  He also stated that he was not given the opportunity to review the DMC’s report and object prior to the issuance of the recommended decision.
3. [Employee] argued that, as to the probative value of these varying impairment rating reports, three of the four doctors writing reports had actually examined him, and that these physicians in terms of their opinions, present a picture that’s more probative to the Department of Labor and present a more clear, clinical assessment of his impairment than the DMC’s evaluation based on the records with which he was provided.  He argued that the report of his treating doctor, Dr. Hughes, would have the most probative opinion, as pulmonary function testing may be “somewhat variable” despite his being at maximum medical improvement, and he is Dr. Hughes’ regular patient. 
4. [Employee] also stated that his pulmonary function has been getting progressively worse, as compared to the mid-1990s when he had his surgery.  Thus, he alleged that he was worse than he was in 2005, when Dr. Stewart did his evaluation. 

Regarding these objections, FAB notes that impairment ratings are based on an individual’s current condition at maximum medical improvement, and that [Employee] has four separate impairment rating reports in his file from four different physicians.  The DMC’s opinion is the only one given without benefit of a physical examination and gave a 5% impairment rating.  [Employee] alleges that his condition has worsened since the 2005 examination by Dr. Stewart, which gave a 15% impariment rating.  His treating physician gave a 50% impairment rating on August 23, 2006, and he states that this is the doctor who is most familiar with his condition.  The latest impairment rating in the file, that of 17% by Dr. Walton, was done based on a physical examination on June 13, 2007 and was specifically obtained for [Employee]‘s Part E claim. 

Under the regulations implementing Part E of EEOICPA, the employee bears the burden of proving that the new impairment evidence he has submitted has more probative value than the evaluation used by the district office to determine the impairment rating.  The weighing of the probative value of these impairment ratings must take many variables into consideration, such as  whether that the opining physician possesses the requisite skills and requirements to provide a rating as set out under the regulations, whether the evaluation was conducted within 1 year of its receipt by the Division of Energy Employees Occupational Illness Compensation, whether the report addresses the covered illness, and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-900(10)(b).

As noted above, the DMC never actually examined [Employee] and the 2005 impairment rating was done more than 1 year before it was submitted to FAB.  Thus, neither of these reports has the most probative value for EEOICPA purposes.  FAB also notes that both Dr. Hughes and Dr. Walton submitted medical reports that are clear and well-rationalized with regard to the causal relationship of [Employee]‘s impairment to the covered illness of lung cancer.  [Employee] testified that his condition is getting progressively worse and has been since his 1994 diagnosis and subsequent surgery for lung cancer.  The most recent impairment rating in the file was done in June 2007 by Dr. Walton, nearly a year after the next more recent, which was done in August 2006 by Dr. Hughes.  Dr. Walton’s impairment rating also appears to be more consistent with the other impairment ratings that have been done for [Employee] by other physicians, in terms of the percentage of impairment.  Thus, FAB concludes that the most probative opinion with regard to [Employee]‘s current level of impariment is the most current impariment rating by Dr. Walton, which gives a 17% impairment rating of the whole person.

At the hearing, [Employee] acknowledged that if his condition worsened, he could claim for additional impairment based on the same covered illness after the passage of two years from his award.  FAB also notes that [Employee] has a pending claim based on the condition of prostate cancer and that he may seek an impairment rating on a different covered illness before the passage of two years.  See 20 C.F.R. § 30.912.

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

FINDINGS OF FACT

1. On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E of EEOICPA.  At that time, he identified lung cancer as the condition resulting from his employment at a DOE facility.

2. On January 7, 2002, FAB issued a final decision that accepted [Employee]‘s claim under Part B, finding that he was are a member of the Special Exposure Cohort, that he had been were diagnosed with lung cancer (a “specified” cancer), and awarding him a lump-sum of $150,000.00 and medical benefits for lung cancer.

3. On April 17, 2006, FAB also accepted [Employee]‘s claim under Part E, finding that he had contracted his lung cancer through exposure to a toxic substance at a DOE facility and awarding him medical benefits for lung cancer under Part E.

4. On March 5, 2007, a DMC reviewed the medical evidence of record and determined that according to the Guides, [Employee] had a 5% whole person impairment resulting from his accepted covered illness of lung cancer.

5. On June 14, 2007, Dr. Norm Walton examined [Employee] and determined that he had a current impairment raring of 17% to the whole person as a result of his lung cancer.

6. [Employee] received a state workers’ compensation settlement of $25,200.00 for his claimed condition of lung cancer.

Based on the above-noted facts, the undersigned also hereby makes the following:

CONCLUSIONS OF LAW

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by his or her “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  The impairment rating of an employee shall be determined in accordance with the Fifth Edition of the Guides.  42 U.S.C. § 7385s-2(b).  Section 7385s-2(a)(1) provides that for each percentage point of the impairment rating that is the result of a covered illness, the covered DOE contractor employee shall receive $2,500.00.

As noted above, [Employee] is a covered DOE contractor employee with the covered illness of lung cancer, and he has an impairment rating of 17% of  the whole person as a result of his covered illness based on the Guides.  The physician giving this impairment rating, Dr. Walton, evaluated [Employee]‘s condition based on a physical examination and also carefully reviewed his medical records, and his is the most probative medical opinion on impairment in the file, as discussed above.  [Employee] is therefore entitled to $42,500.00 in impairment benefits (17 x $2,500.00 = $42,500.00) under Part E of EEOICPA.  This amount must be coordinated with the amount [Employee] received in a state workers’ compensation settlement for his lung cancer, which was $25,200.00.  Thus, his net award of impairment benefits based on his lung cancer is $17,300.00.  A decision on [Employee]‘s claim under Parts B and E for prostate cancer is deferred pending further development.

Washington, D.C.

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the employee’s claim is denied.

STATEMENT OF THE CASE

On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA and alleged that he had contracted beryllium sensitivity, chronic beryllium disease (CBD) and pulmonary insufficiency due to occupational exposure to beryllium as a mechanical engineer at the Massachusetts Institute of Technology campus in Cambridge, Massachusetts (MIT).  In support of his claim, he filed a Form EE-3 on which he alleged that he had been employed by “U.S. Army, (T-4) Special Engineering Detachment, Manhattan District, Corps of Engineers, assigned to Metallurgical Project, U of Chicago, Mass. Inst. of Tech Location,” at Oak Ridge, Tennessee, and as a radiation monitor at Bikini Atoll from May through August 1946.  On that form, the employee alleged that he was assigned to the “Beryllium Group” at MIT from November 1945 to May 1946.

By letter dated June 10, 2002, the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) confirmed receipt of the employee’s claim and informed him that coverage under EEOICPA is limited to civilian employees of the Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors, and that military personnel are not similarly covered.  The employee then submitted several documents regarding his employment, including a June 17, 2002 letter in which he clarified that:  (1) he joined the Army in 1942; (2) he was called to active duty in May 1943; and (3) he was assigned to the K-25 Gaseous Diffusion Plant in Oak Ridge in September 1944.  He stated that shortly afterward, he was transferred to the “Metallurgical Project” at MIT, still as an enlisted member of the Army, and worked there until May 1946 when he was transferred back to Oak Ridge and trained for his subsequent job at Operation Crossroads in the Pacific.

Employment records provided by MIT on April 24, 2003 indicate:  (1) that the employee was initially assigned to work at MIT as an enlisted member of the U.S. Army on December 1, 1944; (2) that on January 26, 1945, a change in his Army status allowed MIT to hire him directly as a civilian employee on the same project; and (3) that he was recalled to active military duty in the Army on October 22, 1945, but continued to work on the project at MIT until May 2, 1946.  In a letter dated May 10, 2003, the employee provided a detailed work history, with supporting documents, that was consistent with the information provided by MIT and confirmed that he was a civilian employee of MIT at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945.  Neither DOE nor its Oak Ridge Operations Office was able to verify the employee’s alleged employment at Oak Ridge or at Bikini Atoll, but the enlistment records in his case file are consistent with his claim of military employment at these two locations. 

On May 15, 2003, the Denver district office issued a recommended decision to accept the employee’s claim for beryllium sensitivity, and on May 30, 2003 the FAB issued a final decision consistent with the district office’s recommendation.  In that decision, the FAB awarded the employee medical benefits and monitoring for his beryllium sensitivity, retroactive to his filing date of May 31, 2002.  Thereafter, on September 11, 2003, the Denver district office issued a recommended decision to accept the employee’s Part B claim for CBD, based on the recommended findings that he had covered civilian employment at MIT from January 26, 1945 to October 22, 1945, and that he had been diagnosed with CBD on July 2, 2003.  On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump-sum of $150,000.00 plus medical benefits for his CBD, retroactive to May 31, 2002.  In this final decision, the FAB concluded that the employee was a “covered beryllium employee” and that he had been diagnosed with CBD consistent with the criteria set out in EEOICPA.

Following the 2004 amendments to EEOICPA that included the enactment of new Part E[1], the employee filed a claim based on his CBD under Part E of EEOICPA on November 25 , 2005.  Shortly thereafter, the employee’s new Part E claim was transferred to the Cleveland district office of DEEOIC for adjudication.  By letter dated March 9, 2006, the Cleveland district office informed the employee that he did not meet the eligibility requirements under Part E of EEOICPA.  The district office explained that Part E differs from Part B in that Part E only provides benefits for civilian employees of DOE contractors and subcontractors (or their eligible survivors), but does not provide benefits for employees of the other types of employers that are covered under Part B, i.e., atomic weapons employers or beryllium vendors.  The letter provided the employee with an opportunity to submit additional evidence “[i]f you intend to claim additional employment or intend to provide evidence that MIT should be designated as a DOE facility. . . .”  Included with the letter was a print-out of the Department of Energy (DOE) Facility List entry for MIT, which indicated that at that time, MIT’s Cambridge campus was designated only as an atomic weapons employer (AWE) facility and a beryllium vendor facility, but not a DOE facility.[2]

On April 17, 2006, the Cleveland district office issued a recommended decision to deny the employee’s Part E claim for his CBD, based on their recommended finding that the evidence in the file was insufficient to establish that he was a “covered DOE contractor employee,” as that term is defined in § 7384l(11) of EEOICPA, because it failed to establish that his civilian employment at MIT was at a “Department of Energy facility,” as that second term is defined in § 7384l(12) of EEOICPA.  The employee filed objections to the recommended decision in letters to the FAB dated May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, and submitted several affidavits, exhibits and other factual evidence in support of his objections.  All of the employee’s objections were made in support of his position on one point–that DEEOIC should determine that MIT’s Cambridge campus, or a portion thereof, is a “DOE facility” for the purposes of his Part E claim.

On June 6, 2006, the FAB referred the employee’s Part E claim to DEEOIC’s Branch of Policy, Regulations and Procedures (BPRP) for guidance on the issue of whether the evidence submitted by the employee warranted the requested determination regarding MIT’s Cambridge campus.  On December 21, 2006, BPRP referred the issue to the Office of the Solicitor of Labor (SOL).  On March 14, 2007, SOL issued an opinion in which it concluded that the evidence in the case file was insufficient to establish that MIT’s campus meets the statutory definition of a “Department of Energy facility.”  Based on that conclusion, SOL advised BPRP that DEEOIC could reasonably determine that the employee was ineligible for benefits under Part E as he was not a “covered Department of Energy contractor employee.”

On May 4, 2007, the FAB issued a final decision denying the employee’s Part E claim.  In its final decision, the FAB restated both the employee’s objections and the opinion of SOL.  The FAB found that while MIT’s Cambridge campus was recognized as both an AWE facility and a beryllium vendor facility during the period of the employee’s civilian employment there, the evidence was insufficient to establish that it also satisfied the statutory definition of a “DOE facility” during that time period.  Thus, the FAB concluded that the employee was not a “covered DOE contractor employee,” as that term is defined in EEOICPA.

By letter dated May 24, 2007, the employee filed a request for reconsideration of the FAB’s final decision and on July 17, 2007, the FAB issued a denial of the employee’s request.  In its denial, the FAB restated the employee’s objections and based its denial on the conclusion that he had not submitted any new evidence or arguments that would justify reconsidering the May 4, 2007 final decision.  On January 25, 2008, the Director of DEEOIC issued an Order vacating both the FAB’s May 4, 2007 final decision on the employee’s Part E claim and its July 17, 2007 denial of the employee’s request for reconsideration.  In his Order, the Director indicated that while the FAB had restated the employee’s objections in its final decision, it had not explicitly analyzed each of those objections.  Because of this, the Director vacated the FAB’s decisions and returned the employee’s Part E claim to the FAB “for issuance of a new final decision that gives appropriate consideration to the employee’s objections to the Cleveland district office of DEEOIC’s recommended denial of his Part E claim.”   

OBJECTIONS

As noted above, the employee objected to the recommended denial of his Part E claim in a letter dated May 4, 2006 and urged that MIT’s Cambridge campus was misclassified and should be determined to be a DOE facility.  The employee’s first argument urged that the work of the Metallurgical Project at MIT was “nuclear weapons related.”  The evidence supports this argument.  The DOE Facility List entry for MIT describes the uranium metallurgical work and beryllium work performed at MIT in support of the U.S. Army Corps of Engineers Manhattan Engineer District (MED) during the period 1942 through 1946.[3]   This work–a portion of which was performed by the employee–supports the determination that MIT’s Cambridge campus is both an AWE facility from 1942 through 1946, and a beryllium vendor facility from 1943 through 1946.

The employee’s second argument was that DEEOIC previously determined that MIT’s Cambridge campus was a DOE facility.  In support of this position, the employee correctly pointed out that in its May 15, 2003 recommended decision on his Part B claim, the Denver district office stated that “Massachusetts Institute of Technology initially became a DOE facility in 1942.”  The FAB acknowledges that the Denver district office made that erroneous historical statement in its recommended decision on the employee’s Part B claim; however, that error was not carried forward in any of the subsequent recommended decisions on the employee’s several claims, nor was it repeated in any finding of fact or conclusion of law in any of the FAB’s final decisions issued on the employee’s several claims.  In issuing a final agency decision on a claim under EEOICPA, the FAB is not bound by a historical inaccuracy contained in a recommended decision issued by a DEEOIC district office.  See EEOICPA Fin. Dec. No. 10028664-2006 (Dep’t of Labor, August 24, 2006).   

The employee also argued that the MED was a predecessor agency of DOE.  The FAB agrees with this historical point.  42 U.S.C. § 7384l(10).

The employee argued that “beryllium work was done at MIT and that acute beryllium disease resulted.”  The FAB agrees.  The DOE Facility List description of the work that was performed at MIT describes beryllium work performed at the MIT Cambridge campus, and that work supports the designation of MIT as a beryllium vendor during the period 1943 through 1946.  That description also refers to “a number of cases of beryllium disease at MIT” prior to the fall of 1946.[4] 

The employee submitted evidence that the Metallurgical Laboratory (Met Lab) in Chicago, Illinois, is classified as an AWE facility, a beryllium vendor facility and a DOE facility, and argued that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed under Dr. Arthur Compton at the Met Lab.  The FAB agrees that the Met Lab was designated as an AWE facility (1942-1952), a beryllium vendor facility (1942-1946) and a DOE facility (1982-1983, 1987).[5]  The FAB notes, however, that like MIT’s Cambridge campus, the Met Lab is classified only as an AWE facility and a beryllium vendor facility during the time of their early uranium and metallurgical work in the 1940s.  The Met Lab is classified as a DOE facility only during the periods of remediation work that was performed there in the 1980s.  These classifications are consistent with those for MIT’s Cambridge campus.  The FAB concludes that the evidence in the file is insufficient to establish that the work performed at MIT’s Cambridge campus “was just an extension of” the work performed at the Met Lab.  The work performed at MIT’s Cambridge campus was performed pursuant to a contract between the MED and MIT, and there is no evidence in the file to corroborate the employee’s claim that the Met Lab directed or controlled the MIT Metallurgical Project. 

The employee also submitted evidence showing that the Ames Laboratory in Ames, Iowa, is classified as a DOE facility, but made no argument in his May 4, 2006 letter as to the relevance of this information.  In a letter dated February 7, 2008, the employee clarified his argument regarding the Ames Laboratory by asserting that the Met Lab and the Ames Laboratory “were both classified as DOE Employers while MIT was not, even though the work was analogous and facilities in all cases were owned by the universities. . . .  The precedents established by these classifications seems not to have been considered.”  The FAB acknowledges that the Ames Laboratory is designated as a DOE facility (1942-present),[6] but points out that there is no probative evidence in the case file that corroborates the employee’s argument that the work performed at the Ames Laboratory was analogous to the work that was performed at MIT’s Cambridge campus, or that the contracts for such work were similar in type to the pertinent MED contract with MIT, or that the buildings used at the Ames Laboratory were owned by the associated university.[7]  The regulations governing EEOICPA place upon the claimant the burden to produce evidence necessary to establish all criteria for benefits and to prove the existence of all elements necessary to establish eligibility for benefits.  20 C.F.R. § 30.111(a).  The employee’s bare assertions regarding the Met Lab and the Ames Laboratory are not, without supporting factual evidence, sufficient to establish his precedent argument and, thus, do not provide probative support for his claim.      

The employee also argued that his work was recognized by the Secretary of War as “essential to the production of the Atomic Bomb.”  The FAB does not dispute this point.

In his letter dated June 26, 2006, the employee modified his objection to the recommended decision by stating that the MIT Metallurgical Project (MMP), not the entire MIT Cambridge campus, should be classified as a DOE facility.  In support of that objection, he argued that “if the MMP was reclassified to meet the requirements of ‘Department of Energy’ Facility,’” then he would satisfy the statutory requirements of a “Department of Energy contractor employee.”  Based on the totality of the evidence in the case file, the FAB concludes that the evidence does not provide sufficient support for this argument.  Even if the MMP were to be classified as a DOE facility during the employee’s period of civilian employment there, he would still have to submit factual evidence sufficient to establish that he was employed by “(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”  42 U.S.C. § 7384l(11)(B).  The evidence does not support a conclusion that he was so employed, because it does not establish that his employer, MIT, contracted with DOE (or any of its predecessor agencies) “to provide management and operating, management and integration, [] environmental remediation, [or] services, including construction and maintenance, at the facility.”

The employee also argued that the MMP meets the first part of the two-part statutory definition of a “DOE facility.”  In support of this argument, he asserted that the evidence in the file proves that the MMP is a building, structure or premise “in which operations are, or have been, conducted by, or on behalf of, the Department of Energy,” pursuant to 42 U.S.C. § 7384l(12)(A).  The FAB agrees that the evidence supports this conclusion.  During the development of the employee’s Part E claim, his file was referred to the SOL, and on March 14, 2007, that office issued a memorandum in which it found that the evidence supports a conclusion that the employee’s “work on the Metallurgical Project was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, thus meeting the test of § 7384l(12)(A).”  The FAB agrees with that conclusion.  

The employee then argued that the MMP also meets the second part of the two-part statutory definition of a “DOE facility,” in that the MED had “a proprietary interest” in the MMP, as required by subsection (i) of 42 U.S.C. § 7384l(12)(B).  In support of this position, the employee alleged that “The MED paid all bills, provided all priorities, met all needs for civilian or military personnel, which would indicate a clear proprietary interest in the MMP.”  As set forth more fully in the Conclusions of Law section of this final decision, the evidence in the file does not provide sufficient support for the employee’s argument that the MED had “a proprietary interest” in the MMP.  In their March 14, 2007 memorandum, SOL concluded that there is no evidence in the employee’s case file that the MED had “a proprietary interest” in any of the buildings, structures or premises in which he worked as a civilian employee at MIT’s Cambridge campus.  That conclusion is part of the totality of the evidence that FAB has considered in this case, and FAB agrees with that conclusion. 

That conclusion is also supported by the employee’s own statements regarding ownership of the buildings in which he worked at MIT’s Cambridge campus.  His first identification of the buildings in which he worked during his civilian employment at MIT’s Cambridge campus was more than two years after he filed his Part E claim.  In a letter dated February 7, 2008, submitted after his claim was reopened by order of the Director of DEEOIC, the employee stated that all of his work for the MMP was performed in Buildings 4, 8 and 16 on MIT’s Cambridge campus.  He also asserted that those buildings were analogous to the buildings used at the Met Lab and the Ames Laboratory for MED work during that same time period and argued that the classification of all three facilities should be the same because “facilities in all cases were owned by the universities.”  Consistent with the employee’s assertion that MIT owned the buildings and laboratories in which MMP research was performed, there is no probative evidence in the file establishing that the MED had a proprietary interest in any of these three buildings.

Alternatively, the employee argued that the MMP meets the second part of the two-part statutory definition of a “DOE facility” because the MED “entered into a contract with [MIT] to provide management and operation,” as required by subsection (ii) of 42 U.S.C. § 7384l(12)(B).  In support of this position, he argued that:

The MED clearly entered into a contract with MIT to provide management and scientific operations.  I have never seen this contract. . . .  However, the Division of Industrial Cooperation at MIT did not do pro bono work.  A contract is certainly implied by analogy to other universities such as Chicago’s MetLab and Iowa State’s Ames Lab, both of which, by the way, have DOE classifications.

However, the employee did not submit a contract or any other evidence that establishes that a “management and operation” contract was entered into between the MED and MIT for the work performed by the MMP.  As noted above, SOL concluded in their March 14, 2007 memorandum that the work of the MIT Metallurgical Project was performed pursuant to a contract between MIT and the MED–Contract No. W-7405-eng-175.  The employee’s case file does not include a copy of the actual contract and FAB has not been able to locate a copy of that contract.[8]  However, the SOL memorandum cites a page from Book VII, Volume I, Appendix K of the Manhattan District History, which describes the contract as follows: “Contract W-7405 eng-175 with Massachusetts Institute of Technology is a research and development contract involving work with Be as well as other metals and compounds.”[9]  Thus, based on available evidence, SOL concluded that the contract was not a contract “to provide management and operation,” but was, rather, a “research and development contract.”  This conclusion is consistent with DOE’s description of the facility at MIT’s Cambridge campus in the DOE Facility List.  That description references contract W-7405-eng-175 and the beryllium-related research that was conducted at MIT’s Cambridge campus pursuant to the contract.[10]  There is no probative evidence in the file that the MIT-MED contract under which the employee worked was a “management or operation” contract, as asserted by the employee.  Thus, based on the totality of the evidence, the FAB concludes that the evidence is insufficient to establish that MIT’s Cambridge campus satisfies the statutory requirements of § 7384l(12)(B)(ii).           

By letter dated September 17, 2006, the employee supplemented his objection concerning the “proprietary interest” test of 42 U.S.C. § 7384l(11)(B)(i).  In that letter, the employee argued that Roget’s Thesaurus lists several synonyms for the term “proprietary interest,” including “vested interest” and “beneficiary interest,” and that by these broader definitions, the MED had a “proprietary interest” in the MMP.  The employee argued that since “all work of the MIT project was paid for by and directly benefited the MED,” the MED had a “proprietary interest” in the buildings in which the MMP work was performed. 

The FAB finds that the evidence supports the employee’s statement that the work on the MMP project was paid for by and directly benefited the MED.  Both the SOL memorandum and the DOE Facilities List support a finding that the MMP work was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED, and FAB will assume that the MED met its payment obligations to MIT under the contract.  However, payment for work performed under the contract and receipt of benefits from the performance of the contract do not establish that the MED had a proprietary interest in the buildings in which the contract’s work was performed.  The structure of the statutory definition of a “Department of Energy facility” supports this conclusion.  The Act defines the term “Department of Energy facility” as:

[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had–

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. § 7384l(12).  Thus, in order to satisfy the requirements of subsection (B) of the statutory definition, it must be established that DOE (or its predecessors, including the MED) either (i) had a proprietary interest in the buildings in which [Employee] worked, or (ii) had a contract with MIT to provide at least one of the specific types of services listed in the definition.  Thus, the “proprietary interest” test of subsection (B)(i) is an alternative to the “contract” test of subsection (B)(ii).  If evidence of payment and receipt of benefits under a type (B)(ii) contract was sufficient to meet the “proprietary interest” test of (B)(i), as the employee urged, there would be no need to have the alternative subsection (B)(i) test.  Thus, the meaning of “proprietary interest” proffered by the employee would render subsection (B)(i) superfluous. 

Additionally, as set forth more fully in the Conclusions of Law section of this decision, the employee’s alternative definitions of the phrase “proprietary interest” are not consistent with its ordinary meaning, that is, an interest characterized by ownership, use and control.  The employee has made no allegation, nor proffered any evidence, that the buildings in which he worked on MIT’s Cambridge campus during his civilian employment from January 26, 1945 to October 22, 1945, i.e., Buildings 4, 8 and 16, were owned, rented, or controlled by the MED for use by the MMP.  In fact, he repeatedly refers to those buildings as labs of the MIT Metallurgical Department owned by MIT, not labs owned by the MED.[11]    

Finally, under cover letter dated October 26, 2006, the employee supplied additional factual evidence in support of his argument that there was a contract between the MED and MIT for the MMP, and therefore the “contract” test of 42 U.S.C. § 7384l(11)(B)(ii) is satisfied and the MMP should be classified as a DOE facility.  As described above, FAB acknowledges that the employee’s civilian work at MIT was performed pursuant to a contract between MIT and the MED, but concludes that there is insufficient evidence to establish that the contract in question meets the requirements of 42 U.S.C. § 7384l(12)(B)(ii), and therefore the buildings used for the MMP do not satisfy the statutory definition of a “DOE facility.”     

After reviewing the written record of the case file and the employee’s objections described above, the FAB hereby makes the following:

FINDINGS OF FACT

1. On May 31, 2002, the employee filed a claim for benefits under Part B of EEOICPA based on the allegation that he had contracted beryllium sensitivity, CBD and pulmonary insufficiency due to his occupational exposure to beryllium as a mechanical engineer at MIT’s campus in Cambridge, Massachusetts.

2. The employee was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and worked on the MMP during that time period.

3. During his period of civilian employment by MIT, the employee worked in Buildings 4, 8 and 16 on MIT’s Cambridge campus.  The MED did not have a “proprietary interest” in any of those three buildings, which were instead owned by MIT.

4. The employee’s work on the MMP was performed pursuant to Contract No. W-7405-eng-175 between MIT and the MED (a predecessor agency of DOE).

5. During the period of the employee’s civilian employment by MIT, Contract No. W-7405-eng-175 was a research and development contract and was not a contract to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services at MIT’s Cambridge campus.

6. Prior to January 26, 1945 and after October 22, 1945, the employee was an active enlisted member of the U.S. Army.

7. On May 30, 2003, the FAB issued a final decision accepting the employee’s Part B claim for beryllium sensitivity and awarding him medical benefits and sensitivity monitoring retroactive to his filing date of May 31, 2002.

8. The employee was diagnosed with CBD on July 2, 2003.

9. On August 5, 2003, the employee filed a second claim under Part B of EEOICPA for his CBD.

10. On September 22, 2003, the FAB issued a final decision accepting the employee’s Part B claim for CBD and awarding him a lump sum of $150,000.00, plus medical benefits for his CBD retroactive to May 31, 2002.

11. On November 25, 2005, the employee filed a claim under Part E of EEOICPA based on his CBD.

12. For purposes of EEOICPA, MIT’s Cambridge campus is classified as an AWE facility for the time period 1942 through 1946, and as a beryllium vendor facility for the time period 1943 through 1946.  While MIT’s Cambridge campus is not classified as a DOE facility, the Hood Building, which was located adjacent to MIT’s Cambridge campus prior to its demolition, is classified as a DOE facility for the time period 1946 through 1963.

Based on the above findings of fact, the undersigned makes the following:   

CONCLUSIONS OF LAW

Regulations governing the implementation of EEOICPA allow claimants 60 days from the date of the district office’s recommended decision to submit to the FAB any written objections to the recommended decision, or a written request for a hearing.  See 20 C.F.R. §§ 30.310 and 30.311.  On May 4, 2006, June 26, 2006, September 17, 2006 and October 26, 2006, the employee filed written objections to the recommended decision, but did not request a hearing.  Pursuant to 20 C.F.R. §§ 30.312 and 30.313, the FAB has considered the objections by means of a review of the written record of this case.  After a thorough review of the record in this case, the FAB concludes that no further investigation of the employee’s objections is warranted, and the FAB now issues a final decision on the employee’s Part E claim.   

In order to be afforded coverage under Part E of EEOICPA, a claimant must establish that, among other things, he is a “covered DOE contractor employee.”  42 U.S.C. §§ 7385s(1), 7385s-1, 7385s-8.  To prove that he is a “covered DOE contractor employee” for purposes of Part E eligibility, the employee must establish:  (1) that he was a “DOE contractor employee” and (2) that he “contracted a covered illness through exposure at a Department of Energy facility.”  42 U.S.C. § 7385s(1).  As a result of this statutory scheme, only DOE contractor employees are eligible for benefits under Part E, whereas employees of an AWE or a beryllium vendor are excluded from such coverage.[12] 

The Act defines the term “Department of Energy contractor employee,” in pertinent part, as follows: “An individual who is or was employed at a Department of Energy facility by–(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance at the facility.”  42 U.S.C. § 7384l(11)(B) (emphasis added).  Thus, in order to be considered a “Department of Energy contractor employee,” a claimant must have been employed at a DOE facility.  The statutory definition of a “Department of Energy facility” is:

“[A]ny building, structure, or premise, including the grounds upon which such building, structure, or premise is located–

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy. . .; and

(B) with regard to which the Department of Energy has or had–

(i) a proprietary interest, or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. § 7384l(12).  Therefore, in order to be eligible for benefits under Part E, a claimant must prove that he is or was employed as a civilian employee of a DOE contractor or subcontractor at a facility that meets the requirements of both subsection (A) and subsection (B) of § 7384l(12).

The FAB concludes that the employee has established that he was a civilian employee of MIT from January 26, 1945 to October 22, 1945, and that he worked in various laboratories in Buildings 4, 8 and 16 on the MIT campus in Cambridge, Massachusetts, during that time period.  The evidence further establishes that the employee’s work for the MMP during that period was performed pursuant to a contract that MIT entered into with the MED to perform research and development on beryllium and other metals and compounds in support of the Manhattan Project.  Based on the totality of the evidence, FAB concludes that MIT’s Cambridge campus satisfies subsection (A) of the statutory definition of a “Department of Energy facility.” 42 U.S.C. § 7384l(12)(A).  

The evidence in support of subsection (B) of § 7384l(12), however, is lacking.  Subsection (B) requires that in order for a building, structure or premise to be deemed a “Department of Energy facility,” the evidence must establish that it is a building, structure, or premise “with regard to which the Department of Energy has or had–(i) a proprietary interest, or (ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.”  Neither the “proprietary interest” test nor the alternative “contract” test has been satisfied by a preponderance of the evidence in this claim.   

The statute and the governing regulations do not define the term “proprietary interest,” as that term is used in subsection (B)(i) of § 7384l(12).  Black’s Law Dictionary defines the term as:  “The interest of an owner of property together with all rights appurtenant thereto such as the right to vote shares of stock and right to participate in managing if the person has a proprietary interest in the shares.”  Black’s Law Dictionary, p.1098 (5th ed. 1979).  See also Evans v. U. S., 349 F.2d 653, 658 (5th Cir. 1965) (holding that the phrase “proprietary interest” is “not so technical, or ambiguous, as to require a specific definition” and assuming that the jury in that case gave the phrase “its common ordinary meaning, such as ‘one who has an interest in, control of, or present use of certain property.’”)  Employing the common accepted definition of the term, in order to meet the “proprietary interest” test, the evidence must establish that the MED had rights of ownership, use, or control in the buildings in which the employee worked at MIT’s Cambridge campus from January 26, 1945 to October 22, 1945.  The employee has proffered no such evidence.  To the contrary, in a letter dated February 7, 2008, he asserted that those buildings were owned by MIT, and in a May 30, 2006 email he referred to the laboratories in those buildings as “Metallurgical Dept labs.”  He has likewise offered no probative evidence that the MED controlled the buildings in question or rented space in them.         

With regard to the “contract” test of subsection (B)(ii) of § 7384l(12), there is evidence of the existence of a contract between MIT and the MED for the work that was performed by the employee’s group on the MMP; specifically, Contract No. W-7405-eng-175.  However, based on the totality of the evidence, the FAB concludes that that contract was not entered into “to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services”; rather, it was a much narrower “research and development contract involving work with Be [beryllium] as well as other metals and compounds.”  Since the contract was not one of the limited types enumerated by Congress in its statutory definition of “Department of Energy facility,” the FAB concludes that Congress did not intend buildings such as those in which the employee worked to be designated as DOE facilities for purposes of EEOICPA.             

The EEOICPA regulations at § 30.111(a) state that the claimant bears the burden of proving “by a preponderance of the evidence” the existence of every criterion under any compensable claim category set forth in § 30.110.  “Proof by a preponderance of the evidence means it is more likely than not that a given proposition is true.”  20 C.F.R. § 30.111(a).  The FAB concludes that the totality of the evidence in the case file is insufficient to establish by a preponderance of the evidence that the employee meets the statutory definition of a “Department of Energy contractor employee” because the evidence is insufficient to establish that he was employed at a “Department of Energy facility” during his civilian employment at MIT’s Cambridge campus.  Accord EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006).  Therefore, the employee has not established that he is a “covered DOE contractor employee” and he is not entitled to benefits under Part E of EEOICPA.   As a result, the FAB hereby denies the employee’s claim under Part E. 

Washington, DC

Thomas R. Daugherty

Hearing Representative

Final Adjudication Branch

Effect of Director’s determination

EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008)

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 (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E.  You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.

STATEMENT OF THE CASE

On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility.  On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA.  Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B.  On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.

On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer.  You elected to have a physician selected by the Department of Labor perform the impairment rating.  You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.

The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997.  You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS.  The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung.  On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.

To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected  by your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC). 

On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment.  The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment.  Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease.  The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”

You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997.  An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment. 

You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.

On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage-loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00.  From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.

In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001).  This totals $55,000.00 in wage-loss benefits.

On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.

On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled.  The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”

On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB.  The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits. 

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

FINDINGS OF FACT

1. On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA.  You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility. 

2. On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.

3. On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.

4. Your coronary artery disease is a consequential illness of your lung cancer.

5. On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.

6. You last had recorded wages in 1997.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.

7. You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.

8. You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.

Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

If the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides.  See 42 U.S.C. § 7385s-2(b).  The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1). 

The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease.  You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.

In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005).  You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.  You last had recorded wages in 1997 and have not had any wages since then.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.  This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.

Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00.  You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001.  This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00.  Therefore, your wage-loss eligibility ends there.

All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses.  See 42 U.S.C. § 7385s-11.  Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.

Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E.  Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

Hearings before

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

NOTICE OF FINAL DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 7384s(f) states:

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

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

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

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

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

August 26, 2002

Denver, CO

Janet R. Kapsin

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 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.”

Objections to a recommended decision

EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003)

NOTICE OF FINAL DECISIONREVIEW 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 (EEOICPA).  On January 22, 2003, Attorney Mike G. Nassios, your authorized representative, wrote to the FAB and filed objections to the November 27, 2002 recommended decision of the Jacksonville district office.  Your objections have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim (Form EE-1) for benefits under the EEOICPA.  You identified lung cancer as the diagnosed condition being claimed.  You stated that Paul Rankin employed you as a pipe layer and laborer at the K-25 and Y-12 Plants at Oak Ridge from 1958 to 1964.  Based upon the evidence of record, the Jacksonville district office issued a recommended decision on November 27, 2002, in which it concluded that you were not employed as a contracted or subcontracted employee at an atomic weapons employer or facility, nor at a Department of Energy facility, as those terms are defined in § 7384l of the EEOICPA and § 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  The district office also concluded that you are not a covered employee as that term is defined in § 7384l(1) of the EEOICPA.  42 U.S.C. § 7384l(1).

Objections

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to § 30.310 of the EEOICPA regulations.  20 C.F.R. § 30.310.  On January 22, 2003, your attorney filed objection to the recommended decision of the district office.  Your attorney stated it was your position that you have proven by a preponderance of the evidence that you were employed as a contracted or subcontracted employee at an atomic weapons employer or facility or a Department of Energy (DOE) facility as those terms are defined in §§ 7384l of the EEOICPA and 30.5 of the EEOICPA regulations.  42 U.S.C. § 7384l.  20 C.F.R. § 30.5.  He also stated it was your position that you had presented more evidence than a self-serving affidavit of yourself, in that you presented the affidavit of other individuals and the DOE cannot legitimately rebut this proof in that the DOE records are not always all inclusive.  On January 30, 2003, your attorney submitted an affidavit from Fay Webb in which she stated that you were employed by Paul Rankin from February 1958 until December 1958 at the Y-12 Plant and from October 1964 to December 1964 at the K-25 plant.  Mrs. Webb identified herself as the wife of your co-worker.

You stated in your employment history (Form EE-3) that Paul Rankin employed you as a pipe layer and laborer from 1958 to 1964 at the K-25 and Y-12 Plants in Oak Ridge, TN.  You submitted a copy of the Social Security Administration (SSA) statement of earnings which show Paul Rankin employed you in the third quarter of 1958 and the fourth quarter of 1964.  Mr. Franklin Whetsell, who identified himself as a work associate, and your wife signed affidavits (Form EE-4) stating that you were employed by Paul Rankin from 1958 to 1964.  On June 7, 2002, you advised the district office in writing that you worked for Paul Rankin at Oak Ridge for two different jobs.  You stated that the first job began around February 1958 and ended December 1958 at Y-12 and the second job at K-25 began and ended in 1964.  On September 5, 2002, Frank Whetsell wrote to the district office in regards to the affidavit he submitted and advised that “his father” worked for Paul Rankin during the years 1958 through 1964.  Mr. Whetsell explained that he was a “kid” at the time so he doesn’t remember specific dates but he does recall his father “talking about working out there.” 

ANALYSIS

The DOE has advised that it has no employment information regarding you.  There has been no evidence submitted that establishes that Paul Rankin, the employer for whom you claim you worked, was a contractor at the Y-12 or K-25 plant.  The employment history (Form EE-3) you submitted conflicts with the SSA earnings statement and the information in your letter of June 7, 2002.  You stated in your employment history that you worked for Paul Rankin at the Y-12 and K-25 plants from 1958 to 1964 but you stated in your June 7, 2002 letter to the district office that you worked at Oak Ridge on two different jobs.  You stated that the first job was at the Y-12 plant and began around February 1958 and ended December 1958.  The second job was at the K-25 plant and it began and ended in 1964.  You also stated in your June 7, 2002 letter that you have no exact recollection of the dates.  The SSA earnings statement only shows earnings for the third quarter in 1958 and the fourth quarter in 1964 which would not total the 250 days required to establish that you are a member of the Special Exposure Cohort.  You submitted an affidavit from Franklin Whetsell in which he identified himself as a “work associate” and in response to the question to describe his knowledge of your employment history, he stated you were employed by Paul Rankin from 1958 to 1964 at the DOE facilities in Oak Ridge, TN (K-25 and Y-12).  However, on September 5, 2002, Mr. Whetsell advised the district office, by letter, that his father worked with you during the years 1958 through 1964.  He also stated that he was a kid at the time and he did not remember specific dates.  Mr. Whetsell’s letter conflicts with the information provided on his affidavit.  Your wife submitted an affidavit in which she stated that you worked for Paul Rankin at the Oak Ridge Facilities from 1958 to 1964 which conflicts with the information that you provided as clarification in your June 7, 2002 letter.  The information provided by Mrs. Webb in her affidavit is in conflict with the SSA earnings statement.

The EEOICPA regulations at § 30.111(c) allows for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility.  Pursuant to the EEOICPA regulations at § 30.111(a), the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion under any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  20 C.F.R. §§ 30.111(a), 30.111(c).  A claimant will not be entitled to any presumption otherwise provided for in the EEOICPA regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption.  See 20 C.F.R. § 30.111(d).  The evidence of record is not sufficient to establish you are a covered employee as defined in the EEOICPA.  See 42 U.S.C. §§ 7384l(1), 7384l(4), 7384l(7), 7384l(9), 7384l(11), 7384l(14).  The evidence of record is not sufficient to establish that Paul Rankin was a contractor for the DOE.

CONCLUSION:

Based on my review of your case record and pursuant to the authority granted by § 30.316(b) of the EEOICPA regulations, I find that the district office’s November 27, 2002 recommended decision is correct and I accept those findings and the recommendation of the district office.

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied. 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

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

NOTICE OF FINAL DECISIONREVIEW 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. 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.”

EEOICPA Fin. Dec. No. 10568-2003 (Dep’t of Labor, June 16, 2003)

REVIEW OF THE WRITTEN RECORD 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).  On March 29, 2003, you wrote to the FAB and filed an objection to the March 11, 2003 recommended decision of the Cleveland district office.  Your objection has been considered by means of a review of the written record.

STATEMENT OF THE CASE

On September 24, 2002, you filed a claim (Form EE-2), for survivor benefits under the EEOICPA and identified bladder cancer as the diagnosed condition being claimed.  You submitted an employment history form (EE-3) in which you stated that Morrison Knudson Co. employed your husband from September 29, 1974 to February 28, 1976, General Dynamics employed your husband from September 26, 1976 to November 24, 1976, and that Cleveland Wrecking employed your husband until May 31, 1988[1].  You stated that your husband wore a dosimetry badge while employed.  You submitted a copy of your husband’s death certificate which indicates he died on April 9, 1998 due to bladder cancer and renal failure.  You submitted a copy of your marriage certificate which shows that you were married to the deceased employee on June 14, 1956.  You submitted medical evidence which included Dr. Karen Harris’ December 30, 1997 needle aspirate report in which she diagnosed your husband with transitional cell carcinoma.  The medical evidence also included a copy of the Sewickley Valley Hospital discharge summary in which Dr. Scott Piranian diagnosed your husband with transitional cell carcinoma of the bladder with bony metastases and lymphatic metastases. 

On November 14, 2001, Department of Energy (DOE) representative Roger Anders advised the district office via Form EE-5 that the employment history you provided contained information that was not accurate.  In an attachment, Mr. Anders advised that your husband worked at a portion of a facility whose activities came under the auspices of the DOE’s Naval Nuclear Propulsion Program.  The Cleveland district office issued a recommended decision on March 11, 2003, in which it concluded that the evidence of record did not establish that your husband was a covered employee with cancer under § 7384l(9) of the EEOICPA because he was not a DOE employee or contractor employee at a DOE facility, nor an atomic weapons employee at an atomic weapons employer facility as those facilities are defined in §§ 7384l(4) and 7384l(12) of the EEOICPA.  42 U.S.C. §§ 7384l(4), 7384l(9), 7384l(12). 

Objections

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  Section 30.312 of the EEOICPA implementing regulations provides that, “[i]f the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record.”  20 C.F.R. § 30.312.  On March 29, 2003, you wrote to the FAB and advised that you objected to the recommended decision of the Cleveland district office.  You stated that your husband worked as a laborer dismantling the old atomic power plant at Shippingport, PA and he worked side by side with employees that were covered.  You stated that it was discrimination for your husband not to be considered covered under the EEOICPA.  Your objection has been considered by means of review of the written record.

STATEMENT OF THE LAW

The EEOICPA was established to provide compensation benefits to covered employees (or their eligible survivors) that have been diagnosed with designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors.  The EEOICPA, at § 7384l(1), defines the term “covered employee” as (A) a covered beryllium employee, (B) a covered employee with cancer, and (C) to the extent provided in § 7384r, a covered employee with chronic silicosis (as defined in that section).  42 U.S.C. §§ 7384l(1), 7384r.  To establish entitlement to benefits under the EEOICPA due to cancer, you must establish that the deceased employee contracted the cancer after beginning work at a DOE or atomic weapons employer facility.  42 U.S.C. § 73841(9).  The EEOICPA, at § 7384l(12)(A), defines the term DOE facility “as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located…in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. § 7158 note), pertaining to the Naval Nuclear Propulsion Program).”  42 U.S.C. § 7384l(12). 

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

After considering the written record of the claim and after conducting further development of the claim as was deemed necessary, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits under the EEOICPA on September 24, 2001.
2. Your husband was employed at the Shippingport Atomic Power Plant with the portion of the facility whose activities came under the auspices of the Department of Energy’s Naval Nuclear Propulsion Program.
3. Dr. Karen Harris diagnosed your husband with transitional cell carcinoma on December 30, 1997.
4. Your husband died on April 9, 1998, due to bladder cancer and renal failure.
5. You are the surviving spouse of [Employee].

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

CONCLUSION OF LAW

Pursuant to § 7384l(12)(A) of the EEOICPA and § 30.5(v)(1) of the implementing regulations, employees engaged in Naval Nuclear Propulsion Program activities are excluded from coverage under the EEOICPA.  The evidence of record establishes that your husband was a Naval Nuclear Propulsion Program employee; therefore he does not meet the definition of a covered employee with cancer as defined in § 7384l(9) of the EEOICPA and § 30.210 of the implementing regulations.  Because your husband was not a covered employee with cancer, your claim for benefits is denied.

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] The beginning date indicated on the employment history form was distorted during the creation of the claim record.

EEOICPA Fin. Dec. No. 15444-2003 (Dep’t of Labor, August 19, 2003)

REVIEW OF THE WRITTEN RECORD NOTICE OF FINAL DECISION

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).  On July 22, 2003, [Claimant 3] wrote to the FAB and filed objections to the June 26, 2003 recommended decision.  On July 26, 2003, [Claimant 2] submitted additional evidence in support of his claim for benefits under the EEOICPA.  The objections and additional evidence have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On November 21, 2001, [Claimant 1], filed a claim for benefits as the surviving spouse of the deceased employee under the EEOICPA.  On November 21, 2001 and December 26, 2001, [Claimant 2] and [Claimant 3] respectively filed claims for survivor benefits as the surviving children of the deceased employee under the EEOICPA.  The claimants identified lung and kidney cancer as the diagnosed conditions on which their claims were based.  [Claimant 1] submitted an employment history form (Form EE-3) in which she stated that Bethlehem Steel Co. employed the deceased employee in March 1950.  The claimants submitted a copy of a death certificate which shows the employee died on May 11, 1970, due to lung and kidney cancer and that [Claimant 1] was his surviving spouse.  [Claimant 1] submitted a copy of a marriage certificate which shows she married the deceased employee on September 1, 1951.  [Claimant 2] and [Claimant 3] submitted copies of their birth certificates which show the deceased employee was their father.  The claimants submitted a copy of Dr. R. Medina’s July 10, 1968 pathology report in which he diagnosed the deceased employee with clear cell adenocarcinoma of the kidney. 

On June 20, 2002, Department of Energy (DOE) representative Roger Anders advised, via Form EE-5, that the DOE had no employment information regarding the deceased employee.  Subsequently on July 10, 2002, Mr. Anders advised, via Form EE-5, that the employment history provided by the claimants was correct, but that DOE had additional employment information that was relevant to the claim.  In an attached statement, Mr. Anders advised that Bethlehem Steel (Lackawanna, NY) employed the deceased employee from July 26, 1945 to September 8, 1945 and from March 22, 1950 to November 27, 1969.  [Claimant 1] submitted an employment affidavit form (Form EE-4) in which she stated that Bethlehem Steel employed the deceased employee from March 22, 1950 to 1969 as a boiler repairman. 

On October 30, 2002, the Cleveland district office referred the evidence of record to the National Institute of Occupational Safety and Health (NIOSH) to assist in determining if the employee’s cancer was, at least as likely as not, related to his employment at Bethlehem Steel.  On November 19, 2002, NIOSH informed the claimants of the receipt of their claims for benefits under the EEOICPA and provided them an explanation of the dose reconstruction procedures.  On May 20, 2003, [Claimant 1] and [Claimant 3] each signed a Form OCAS-1, indicating that they had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information they provided to NIOSH.  On May 21, 2003, [Claimant 2] signed Form OCAS-1 indicating that he had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information he provided to NIOSH.  On May 29, 2003, NIOSH provided the district office with the Final Report of Dose Reconstruction under the EEOICPA. 

Based upon the evidence of record, the Cleveland district office issued a recommended decision on June 26, 2003, in which it found that:

1.      [Claimant 1], [Claimant 3], and [Claimant 2] each filed a claim for survivor benefits on November 21, 2001, December 26, 2001 and November 21, 2001 respectively.

2.      [Claimant 1] is the surviving spouse of [Employee], as she was married to him at the time of and for at least one year immediately prior to his death.  There is no evidence that there is a living minor child of [Employee].

3.      [Employee] had covered employment and worked at Bethlehem Steel in Lackawanna, NY during a covered period.

4.      On July 10, 1968, [Employee] was diagnosed with kidney cancer which metastasized to the lungs, ribs, cerebral area and abdominal area.

5.      The diagnosis of cancer was after [Employee] began covered employment.

6.      NIOSH reported annual dose estimates for the kidney cancer from the date of initial radiation exposure during covered employment, to the date of the cancer’s first diagnosis.  A summary and explanation of information and methods applied to produce these dose estimates, including the claimants’ involvement through an interview and review of the dose report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated May 29, 2003.

7.      Based on the dose reconstruction performed by NIOSH, the Cleveland district office calculated the probability of causation (the likelihood that the cancer was caused by radiation exposure incurred while working at a covered facility) for the kidney cancer.  The Cleveland district office determined that the kidney cancer was “at least as likely as not” (a 50% or greater probability) related to employment at the covered facility, as required by the EEOICPA.

In light of its findings of fact in connection with this claim, the district office made the following conclusions of law:

[Employee] was a covered employee under § 7384l(1)(B) of the EEOICPA as he was a covered employee with cancer as that term is defined by § 7384l(9)(B) of the EEOICPA.  42 U.S.C. § 7384l(1)(B), 7384l(9)(B). 

NIOSH performed dose reconstruction estimates in accordance with § 7384n(d) of the EEOICPA and § 82.26 of the HHS regulations.  42 U.S.C. § 7384n(d), 42 C.F.R. § 82.26.  The Department of Labor completed the Probability of Causation calculation in accordance with § 7384n(c)(3) of the EEOICPA and § 30.213 of the EEOICPA regulations, which references subpart E of 42 C.F.R. Part 81.  42 U.S.C. § 7384n(c)(3), 20 C.F.R. 30.213.

As [Employee] was a covered employee and is now deceased, his survivor is entitled to compensation of $150,000.00, pursuant to § 7384s(a)(1) of the EEOICPA.  42 U.S.C. § 7384s(a)(1).  [Claimant 1] is the spouse of [Employee], pursuant to § 7384s(e)(3)(A) of the EEOICPA.  42 U.S.C. § 7384s(e)(3)(A).  As there is no evidence of a living minor child of [Employee], the exception provided by § 7384s(e)(1)(F) of the EEOICPA does not apply and pursuant to § 7384s(e)(1)(A) of the EEOICPA, [Claimant 1] is thus entitled to the aforementioned compensation of $150,000.00.  42 U.S.C. §§ 7384ls(e)(1)(F), 7384s(e)(1)(A). 

On July 28, 2003, the Final Adjudication Branch received written notification from [Claimant 1] waiving any and all objections to the recommended decision. 

Objections

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  On July 22, 2003, [Claimant 3] filed written objections to the June 26, 2003 recommended decision.  In her letter, [Claimant 3] described the mental and financial hardship she experienced after her father’s death.  She also advised she was concerned that if her mother “passes on,” the case may be subjected to closure and she may never see the funds due her.  On July 26, 2003, [Claimant 2] submitted a copy of his birth certificate and high school diploma to the FAB for review.  He stated in his letter that he considered himself a minor going to school and that he graduated in June 1972.

Section 30.313 of the EEOICPA implementing regulations provides that, 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. 

After considering the written record of the claim forwarded by the Cleveland district office, the objections of [Claimant 3] and the evidence submitted by [Claimant 2], the FAB hereby makes the following:

FINDINGS OF FACT

1.      [Claimant 1] and [Claimant 2] filed claims for survivor benefits on November 21, 2001.  [Claimant 3] filed a claim for survivor benefits on December 26, 2001.

2.      The Department of Energy confirmed that the deceased employee was employed from July 26, 1945 to September 8, 1945 and from March 22, 1950 to November 27, 1969, by Bethlehem Steel (Lackawanna, NY), an atomic weapons employer.[1]

3.      The deceased employee was diagnosed with clear cell adenocarcinoma of the kidney on July 10, 1968.

4.      The deceased employee died on May 11, 1970, due to lung and kidney cancer.

5.       [Claimant 1] was married to the deceased employee on September 1, 1951, and was his spouse at the time of death.

6.      On May 29, 2003, NIOSH completed a Final Report of Dose Reconstruction under the EEOICPA based on the evidence of record provided by the Cleveland district office.  The Final Adjudication Branch independently analyzed the information in that report and confirmed the 52.34% probability determined by NIOSH. 

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

CONCLUSIONS OF LAW

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

Section 7384s(e)(1) of the EEOICPA provides that: “[i]n 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.

[Employee] was an atomic weapons employee as defined by § 7384l(3) of the EEOICPA and he was a covered employee with cancer as defined by § 7384l(9)(B) as his renal cancer was at least as likely as not caused by his employment at an AWE facility, within the meaning of § 7384n of the Act.  42 U.S.C. §§ 7384l(3), 7384l(9)(B), 7384n.  [Claimant 1] is entitled to compensation benefits in the amount of $150,000.00 as the eligible surviving spouse of [Employee] in accordance with §§ 7384s(a) and 7384s(e) of the EEOICPA.  42 U.S.C. §§ 7384s(a), 7384s(e).  Additionally, [Claimant 3] and [Claimant 2] are surviving children of [Employee] but they are not entitled to benefits under the EEOICPA pursuant to § 7384s(e)(1)(B), which states that only “[if] there is no surviving spouse…payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.”  42 U.S.C. § 7384s(e)(1)(B). 

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch

[1] U.S. Department of Energy. Bethlehem Steel.  Worker Advocacy Facility List.  Available: http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm [retrieved August 8, 2003].

EEOICPA Fin. Dec. No. 34771-2003 (Dep’t of Labor, July 21, 2003)

REVIEW OF THE WRITTEN RECORD AND NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 14, 2002, you filed a Form EE-2 (Survivor’s Claim for Benefits under EEOICPA) seeking compensation as the eligible surviving beneficiary of your husband, [Employee].  On the EE-2 form, you indicated that he had been diagnosed with colon cancer.  In support of your claim, you submitted medical evidence that confirmed the diagnosis of the claimed condition.  You also indicated that [Employee] was a member of the Special Exposure Cohort having been employed at the West Kentucky Wildlife Management area near the Paducah Gaseous Diffusion Plant.

On September 10, 2002, the district office advised you that the corporate verifier, Oak Ridge Institute for Science and Education, had sent notice to the district office that it had no employment records for [Employee], and that the Social Security Earnings statement and affidavits submitted detail employment for the Department of Fish and Wildlife for the State of Kentucky.  The district office requested that you provide proof of employment with a contractor or subcontractor for the Department of Energy (DOE) within thirty days.  You did not respond to this request.  

The district office reviewed the record and found that you submitted a claim for compensation under the EEOICPA.  It was further found that no evidence was submitted that supported the claim that [Employee] had been employed at a facility covered under the Act.  Therefore, on October 30, 2002, the district office recommended the denial of your claim.

Section 30.316(b) of the EEOICPA implementing regulations states that if the claimant files objections to all or part of the recommended decision, the FAB reviewer will issue a decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.   20 C.F.R. § 30.316(b).  On November 19, 2002, the Final Adjudication Branch received your letter of appeal.  In your statement of appeal, you objected to the conclusion that you did not submit evidence establishing employment at a covered facility for [Employee].  On May 21, 2003, you submitted additional evidence regarding employment for [Employee].  This additional evidence consisted of a licensing agreement between the Commonwealth of Kentucky and the U.S. Atomic Energy Commission dated October 22, 1959, and a 1989 wildlife compliance inspection of the area conducted by the General Services Administration.

FINDINGS OF FACT

1. You filed a claim for compensation as an eligible surviving beneficiary of [Employee].
2. [Employee] was employed by the Kentucky Department of Fish and Wildlife Resources.
3. The Department of Energy indicated that there was no record of [Employee]‘s employment at the Paducah Gaseous Diffusion Plant.
4. You did not establish that there was a contractual relationship between the State of Kentucky, Department of Fish and Wildlife Resources and the Department of Energy. 

CONCLUSIONS OF LAW

In determining whether [Employee] was employed by a Department of Energy contractor due to services being rendered pursuant to a contract, the Final Adjudication Branch must examine two critical issues.  Firstly, we must establish how a DOE contactor is defined under the Act.  Secondly, we must determine the nature of the agreement between the parties, and if that agreement contains the essential elements of a contract, i.e., mutual intent to contract and the exchange of consideration or payment. 

I conclude that the employee was not a DOE contractor employee.  The EEOICPA program has established how a DOE contractor and subcontractor are to be defined.  Program bulletin 03-27 sets forth the following definitions:

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

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.  EEOICPA Bulletin No. 03-27,  2003.

Therefore, an entity must be engaged in a contractual business arrangement to provide services to the DOE in order to be a contractor or subcontractor.  

The evidence submitted does not support the claim that [Employee]‘s employer, the Kentucky Department of Fish and Wildlife Resources, had contracted with the Atomic Energy Commission or DOE to provide management and operating, management and integration, or environmental remediation at the facility.  Consequently, [Employee]‘s employer does not meet the definition of a DOE contractor.  Furthermore, the mere existence of a formal written document authorizing a state or federal entity to perform work for DOE does not automatically make the entity a DOE contractor if the document and arrangement lack the elements necessary to constitute a contract.  The license in this case permitted the state of Kentucky, Department of Fish and Wildlife Resources to utilize DOE land as a field trial area.

The Act is clear that its provisions extend compensation only to certain employees.  These “covered employees” are defined as covered employees with cancer, covered beryllium employees, and covered employees with silicosis.   The definition of a covered employee with cancer (who is a member of the Special Exposure Cohort[1]) is found in § 7384l(9)(A) of the Act.  That section states that in order to be considered a covered employee with cancer one must have been a Department of Energy employee or contractor employee who contracted the cancer after beginning employment at a Department of Energy facility, or an atomic weapons employee who contracted cancer after beginning employment at an atomic weapons facility.   42 U.S.C. § 7384l(9)(A). 

Based on the review of the record, the undersigned hereby concludes that the record supports the finding that [Employee] did not have covered employment as defined under the Act.  Because you have not established, with the required evidence, employment covered under the EEOICPA, your claim for compensation must be denied.

Washington, DC

David E. Benedict        

Hearing Representative

EEOICPA Fin. Dec. No. 10006507-2006 (Dep’t of Labor, November 25, 2009)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

On June 10, 2003, the employee filed a claim for benefits under Part B of EEOICPA as a uranium worker.  On December 10, 2003, FAB issued a final decision in which it found that the employee was a uranium worker who had received $100,000.00 under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note) for pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.  Therefore, FAB concluded that the employee was entitled to a lump-sum award of $50,000.00 under Part B and medical benefits for his pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, retroactive to June 10, 2003. 

On February 14, 2005, the employee filed a claim under Part E for pneumoconiosis, fibrosis of the lung and pulmonary fibrosis.  On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to work-related exposure to toxic substances.  Therefore, FAB concluded that the employee was entitled to medical benefits for the covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung under Part E of EEOICPA.  On December 13, 2006, FAB issued another final decision in which it found that the employee had a 25% permanent impairment of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, and awarded him $62,500.00 in impairment benefits under Part E of EEOICPA.

On April 3, 2008, the employee filed another claim for benefits under Part E of EEOICPA, for squamous cell cancer of the right upper lobe of the lung.  By final letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.

On January 22, 2009, the district office received the employee’s claim for an increased impairment award.  In his letter to the district office, the employee indicated that he wished to have the Department of Labor arrange for a qualified physician to perform the impairment evaluation.  Accordingly, to determine the employee’s impairment rating (the percentage rating representing the extent of whole body impairment, based on the organ and body functions affected by his covered illnesses), his case was referred for review to a district medical consultant (DMC).  In a medical report dated April 7, 2009, the DMC stated that the employee had reached maximum medical improvement for his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides), and based on pulmonary function tests performed on January 15, 2009, the DMC concluded that the employee had a 26% whole body impairment as a result of his covered illnesses.

In a letter dated June 17, 2009, the employee indicated that he had not filed for or received any money under a state workers’ compensation program or related to a tort action for his covered illnesses.  

On August 17, 2009, the Denver district office issued a recommended decision in which it found that the employee had a 26% whole body impairment attributable to his pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Therefore, the district office recommended that the employee be awarded compensation in the amount of $65,000.00, less the $62,500.00 that was previously awarded, under Part E of EEOICPA.

OBJECTION

On August 28, 2009, FAB received the employee’s objection to the recommended decision, in which he indicated that he would forward an impairment evaluation from another physician.  Thereafter, the employee submitted a September 10, 2009 medical report by Dr. Karen B. Mulloy, an osteopath, in which she concluded that the employee had reached maximum medical improvement.  Dr. Mulloy used the AMA’s Guides and opined that the employee had a Class 3 impairment due to an FEV₁ of 58% of predicted.  See AMA’s Guides, table 5-12, page 107.  In addition, Dr. Mulloy identified the need for oxygen and reduced oxygen saturation, and indicated that the employee’s covered illnesses interfered with some of his activities of daily living, such as walking up stairs and doing activities around the house that require any exertion.  Based upon the foregoing, Dr. Mulloy concluded that the employee had a permanent impairment of 35% of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.

The employee also submitted an October 7, 2009 medical report by Dr. Annyce Mayer.  In that report, Dr. Mayer opined that the employee had a Class 3 impairment based on a limitation in his exercise tolerance, at least in part related to respiratory abnormalities.  Dr. Mayer also stated that the employee had a gas exchange abnormality that required the use of oxygen and that he does not perform activities that require much exertion.  Dr. Mayer did not indicate that the employee had reached maximum medical improvement or provide an opinion on the percentage of his whole person impairment as a result of his respiratory problems.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to exposure to toxic substances, accepted his claim under Part E of EEOICPA and awarded him medical benefits for his covered illnesses. 

2. On December 13, 2006, FAB issued another final decision finding that the employee had a permanent impairment of 25% of the whole body due to his covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung and awarded him $62,500.00 in impairment benefits.

3. By letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.

4. Based on the Fifth Edition of the AMA’s Guides, the medical evidence establishes that the impairment rating attributed to the employee’s pulmonary conditions is 35%.

5. The employee has not received any settlement or award from a tort suit or state workers’ compensation claim in connection with his covered illnesses.

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

CONCLUSIONS OF LAW

Once a recommended decision on impairment has been issued and forwarded to the FAB, the employee may submit new medical evidence or an additional impairment evaluation to challenge the impairment determination in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing impairment evaluations for probative value.  In general, probative means “believable” and the FAB reviewer evaluates each report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence at hand.  Federal (EEOICPA) Procedure Manual, Chapter 2-1300.10 (May 2009).  The FAB reviewer will determine the minimum impairment rating after he or she has evaluated all relevant evidence and argument in the record.  20 C.F.R. § 30.908(c) (2009).

The AMA’s Guides, at page 107, indicates that

The classification system in Table #5-12 considers only pulmonary function measurements for an impairment rating.  It is recognized that pulmonary impairment can occur that does not significantly impact pulmonary function and exercise results but that does impact the ability to perform activities of daily living. . . .  In these limited cases, the physician may assign an impairment rating based on the extent and severity of pulmonary dysfunction and the inability to perform activities of daily living.

All three doctors identified pulmonary function test results that indicated the employee has an impairment at the lower end of Class 3.  However, Dr. Mayer and Dr. Mulloy identified the need for oxygen and indicated that the employee’s accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer affect his activities of daily living, while the DMC only considered the results of pulmonary function tests. 

As Dr. Mulloy considered additional issues in evaluating the employee’s impairment, FAB concludes that Dr. Mulloy’s impairment report has greater probative value than the report relied upon by the district office.  Thus, FAB concludes that the employee has a permanent impairment that is due to the covered illnesses of pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer, and that his impairment rating is 35%.

FAB further concludes that the employee is entitled to $2,500 for each percentage point of his impairment rating of 35%, and that the employee is entitled to compensation for impairment in the amount of $87,500.00, less the previously awarded $62,500.00, pursuant to 42 U.S.C. § 7385s-2(a)(1).  Accordingly, FAB awards the employee net impairment benefits of $25,000.00 under Part E of EEOICPA.

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for an impairment award under Part E is approved.  A decision on the claim for wage-loss benefits under Part E of EEOICPA is deferred pending further development.

STATEMENT OF THE CASE

On June 7, 2002, the employee filed claims for benefits under Part B and former Part D of EEOICPA.  On February 23, 2007, the FAB issued a final decision finding that he was employed by a covered Department of Energy (DOE) contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these cancers were at least as likely as not related to radiation exposure during his employment at a DOE facility; and that they were also related to his exposure to toxic substances during his employment at a DOE facility.  As a result, the FAB found that the employee was entitled to benefits under both Parts B and E of EEOICPA.

Earlier on January 16, 2007, the district office received the employee’s claim for wage-loss benefits and an impairment award under Part E of EEOICPA.  In support of his claim, the employee submitted a pulmonary function analysis, dated February 28, 2007, from Kennewick General Hospital, which indicated that his FVC was 91% of normal, FEV-1 was 42% of normal,  and DLCO was 56% of predicted.  In a March 5, 2007 medical report, Dr. Arthur Cain identified lowered creatinine levels, post-radiation rectal pain, urinary frequency, and erectile dysfunction. 

To determine the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the employee’s covered illness, the case was referred for review to a District Medical Consultant (DMC).  The DMC submitted a medical report, dated June 30, 2007, which indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC opined that the employee had 10% impairment of the whole person due to his kidney cancer, based on the loss of one kidney and satisfactory kidney functions.  For the employee’s prostate cancer, the DMC found that there was a Class 1 impairment due to prostate and seminal vesicle dysfunction signs and symptoms, that the employee had not had surgery, and that he did not require continuous treatment.  The DMC found that there was 5% impairment of the whole person due to dysfunction secondary to radiation treatment for the prostate cancer.  Regarding the employee’s rectal cancer, the DMC found that there was Class 1 impairment based on no need for further treatment, no further complications, no diarrhea and no residual findings.  The DMC found that there was 0% impairment of the whole person due to radiation treatment for the colon cancer.  Finally, as for the employee’s lung cancer, the DMC found that his FVC was 91% of normal and his FEV-1 was 42% of normal, and that that placed him in Class 2 (Table 5-12, page 107 of the Guides).  The DMC found that there was 10% impairment of the whole person due to the lung condition.  However, the DMC indicated that 50% of this last impairment should be attributed to the employee’s smoking and non-covered illness emphysema.  Using the Combined Values Chart on page 604 of the Guides, 10% for kidney cancer, 5% for prostate cancer, 0% for colon cancer, and 5% impairment for the lung cancer equates to a 19% impairment of the whole person. 

In a letter dated July 13, 2007, the employee indicated that he had not filed for or received any money from a state workers’ compensation program or related to a tort action for any of his covered illnesses. 

On August 4, 2007, the Cleveland district office issued a recommended decision to award the employee Part E benefits for a 19% whole person impairment attributable to his kidney, colon/rectal, lung, and prostate cancers.  The district office recommended that he receive an impairment award in the amount of $47,500.00, and deferred making a recommendation on the employee’s claim for wage-loss pending further development.

OBJECTIONS

On September 27, 2007, the FAB received the written objections of the employee’s authorized representative and a request for an oral telephonic hearing, which was held on November 27, 2007.  A review of the written objections, an October 4, 2007 impairment evaluation performed by Dr. David P. Suchard, Dr. Suchard’s testimony during the telephonic hearing, and evidence the representative submitted subsequent to the hearing reveals the following:

In his October 4, 2007 evaluation and hearing testimony, Dr. Suchard indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the Guides, he found that the employee’s FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted, and placed him in Class 3 (Table 5-12 on page 107 of the Guides).  Dr. Suchard concluded that the employee had a 40% impairment of the whole person based on his lungs.  Dr. Suchard found that based on the loss of one kidney, no evidence of recurrence of cancer, occasional sharp pains associated with the surgical scar, and serum creatine reduction to 46 ml/min, that the employee was in the mid-range of a Class 2 impairment (Table 7-1, page 146), resulting in a 23% whole person impairment based on the employee’s kidneys.  Regarding the employee’s colorectal cancer, Dr. Suchard found that there was a Class 1 impairment based on a condition that required surgery and the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer (Table 6-4, page 128).  Dr. Suchard found that there was a 5% whole person impairment because of dysfunction secondary to radiation and treatment for the colon cancer.

For the prostate cancer, Dr. Suchard found that the employee had an anal impairment associated with his radiation-induced proctitis and that this was a Class 2 impairment due to signs and symptoms of organic anal disease or anatomic loss or alteration associated with continual anal symptoms incompletely controlled by treatment (Table 6-5 on page 131).  Dr. Suchard found that there was a 15% whole person impairment related to this anal disease.  Due to lower urinary tract function associated with the employee’s prostate cancer, Dr. Suchard found a Class 1 impairment due to lower urinary symptoms of urinary frequency, nocturia, and urinary hesitancy with decreased force of the urinary stream (Table 7-4 on page 153), resulting in a 5% whole person impairment related to his radiation-induced obstructive urethral disease.  Based on his reduced sexual function, Dr. Suchard also found a Class 1 impairment due to difficulties in maintaining an erection of sufficient rigidity and duration for sexual intercourse (Section 7.7 on page 156), resulting in a 10% whole person impairment related to decreased penile function.  However, because the Guides direct the evaluator to decrease the percentage impairments concerning male reproductive organs by 50% for men over 65, Dr. Suchard found that the employee only had a 5% whole person impairment with regard to his decreased penile function.  Using the Combined Values Chart on page 604 of the Guides, Dr. Suchard concluded that 15% for anal disease, 5% for urethral disease, and 5% for sexual dysfunction equated to a 23% impairment to the whole person for the employee’s prostate cancer.

Using the same Combined Values Chart, Dr. Suchard concluded that 40% for the lung cancer, 23% for the kidney cancer, 5% for the colon cancer, and 23% for the prostate cancer equated to a 67% impairment of the whole person due to all of the employee’s covered illnesses.  Subsequent to the hearing, the authorized representative submitted a pulmonary function analysis dated November 29, 2007 and the results of a December 11, 2007 endoscopy.  In an email dated December 21, 2007, Dr. Suchard indicated that the “pulmonary condition remains Class 2, no change in impairment assessment.”  He also indicated that the employee continued to have a 5% whole person impairment with regard to his Class 1 colorectal disorder impairment.

On the other hand and as noted above, in his June 30, 2007 report, the DMC noted that the employee’s FVC was 91% of normal and FEV-1 was 42% of normal, and placed him in Class 2.  However, Table 5-12 of the Guides states that if the FEV-1 is between 41% and 59%, this would place an individual in Class 3.  Also, the DMC did not consider the DLCO test results, which were 56% of predicted and would also place an individual in Class 3.  Finally, the FAB notes that the DMC apportioned the impairment of the employee’s lungs to reflect the presence of a non-covered illness (emphysema).  Regarding his kidney cancer, the FAB notes that the DMC did not take into consideration the pain from the surgical site and the lowered serum creatine level.  In addition, he did not consider the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer.  Finally, the FAB notes that the DMC did not consider any impairment that resulted from the employee’s anal problems that were associated with radiation-induced proctitis, lower urinary tract functions associated with prostate cancer, and reduced sexual function.

Once a recommended decision on impairment has been issued, an employee may submit new medical evidence or an additional impairment evaluation to challenge the determination of the impairment in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing the probative value of competing impairment evaluations.  While by no means exhaustive, the FAB reviewer considers whether the physician possesses the requisite skills and requirements to provide a rating; whether the evaluation was conducted within 1 year of its receipt by DEEOIC; whether it addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  In general, probative means “believable” and the FAB reviewer considers each competing report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence in the case file.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.10 (February 2006).  As noted above, the employee submitted medical evidence that the FAB concludes is well rationalized and of greater probative value than the DMC’s evaluation that was used by the district office to determine his percentage of permanent impairment.

After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

1. On February 23, 2007, the FAB issued a final decision finding that the employee was employed by a DOE contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these “occupational illnesses” were at least as likely as not related to radiation exposure during employment at a DOE facility; and that they were also “covered illnesses” related to toxic substance exposure during employment at a DOE facility.  Consequently, it was found that he was entitled to benefits under both Parts B and E of EEOICPA. 

2. Based on the Fifth Edition of the Guides, the employee has a 40% impairment based on his lung cancer, 23% based on his kidney cancer, 5% based on his colon cancer, and 23% based on his prostate cancer, for a total whole-body impairment of 67%.

3. The employee has not received any settlement or award from a lawsuit or workers’ compensation claim in connection with his covered illnesses.

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

CONCLUSIONS OF LAW

Section 30.316(b) of the implementing regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including the employee’s objections in this case, and concludes that no further investigation is warranted.

If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative.  The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record.  See 20 C.F.R. § 30.908(c).

The FAB finds that Dr. Suchard’s impairment evaluation is more probative than the one relied on by the district office to determine the employee’s recommended whole person impairment, and that based on Dr. Suchard’s evaluation, his impairment rating is calculated to be 67%.  The FAB also finds that the employee is entitled to $2,500.00 for each percentage point of the impairment rating attributed to his covered illnesses.  Therefore, the employee is hereby awarded impairment benefits under Part E of EEOICPA in the amount of $167,500.00 ($2,500.00 x 67) pursuant to 42 U.S.C. § 7385s-2(a)(1).

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10033981-2006 (Dep’t of Labor, November 27, 2006)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 1, 2003, you filed a Form EE-2, Claim for Survivor Benefits, and a Request for Review by a Physicians Panel for the brain cancer of your late father, [Employee], hereinafter referred to as “the employee.”  The death certificate lists the cause of death on July 25, 2001 as malignant brain tumor with metastases.  In support of your claim for survivorship, you did not submit a birth certificate.  The death certificate indicates that the employee was divorced at the time of death.

On the form EE-3, Employment History, you stated the employee was employed by Gardinier, Inc. and Cargill Fertilizer, Inc. in Bartow, Florida, from 1970 to March 2000.  The district office verified employment with Gardinier and Cargill from December 1969 to March 2000.  The U.S. Phosphoric Plant Uranium Recovery Unit[1] in Tampa, Florida, was a covered atomic weapons employer from 1951 to 1954 and from 1956 to 1961, prior to the employee’s employment there.

On February 9, 2004, the FAB issued a final decision to deny compensation to you under Part B of the Act, because you did not establish covered employment.  A request for reopening was denied on June 13, 2005.  March 23, 2006, the Jacksonville district office issued a recommended decision concluding that your claim for benefits under Part E of the Act should be denied.  The recommended decision was returned by the U.S. Postal Service as undeliverable.  The recommended decision was reissued to the correct address on April 13, 2006.  The recommended decision informed you that you had sixty days to file any objections, and that period ended on June 12, 2006.  You have not filed an objection to the recommended decision.  After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

1.         You filed a claim for survivor benefits under the Act based on the brain cancer of the employee. 

2.         You have not submitted evidence to establish you are a child of the employee.

3.         Employment at a covered DOE facility has not been verified.

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

CONCLUSIONS OF LAW

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired.  20 C.F.R. § 30.310(a) (2005).  If the claimant does not file a written statement that objects to the recommended decision within the period of time allotted or if the claimant waives any objections to the recommended decision, the FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

The eligibility criteria for claims under Part E of EEOICPA are discussed in § 30.230 of the regulations, which state that “the employee is a Department of Energy contractor employee as defined in § 30.5(w). . . .”  20 C.F.R. § 30.230(a).  Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by:  (i) an entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.  20 C.F.R. § 30.5(w); 42 U.S.C. § 7384l(11). 

I have reviewed the evidence of file and the recommended decision of the Jacksonville district office.  Based upon a review of the case file materials, there is insufficient evidence to establish employment at a covered facility during a covered period.  Furthermore, employees of atomic weapons employers are not DOE contractor employees. 

Since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under the Act, and the claim for compensation is  denied.  42 U.S.C. §§ 7385s-4(c) and 7385s-3(a).

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Final Adjudication Branch

[1] Other names for the plant were Gardinier, Inc.; Cargill Fertilizer, Inc.; and U.S. Phosphoric Products Division of The Tennessee Corp.

Reconsideration before

EEOICPA Fin. Dec. No. 17520-2004 (Dep’t of Labor, September 14, 2004)

DENIAL OF REQUEST FOR RECONSIDERATION 

By letter dated June 28, 2004, you each requested an oral hearing in objection to the June 9, 2004 final decision of the Final Adjudication Branch.  Pursuant to § 30.319(c) of the implementing regulations, “a hearing is not available as part of the reconsideration process.” 20 C.F.R. § 30.319(c).  For the reasons set forth below, your requests for reconsideration are denied.

The May 20, 2004 final decision found that you did not provide sufficient evidence to establish that the employee’s colon cancer was “at least as likely as not” caused by her employment at the Savannah River Site.  It was on this basis that your claims for survivor benefits under the EEOICPA were denied.

I must deny your requests for reconsideration because you have not submitted any argument or evidence which justifies reconsideration of the final decision.  The decision of the Final Adjudication Branch is final on the date of issuance of this denial of your requests for reconsideration.  20 C.F.R. § 30.319(c).

Washington, DC

Richard Koretz

Hearing Representative

EEOICPA Order No. 10001762-2007 (Dep’t of Labor, November 10, 2008)

ORDER GRANTING REQUEST FOR RECONSIDERATION AND REMAND ORDER

This is in response to the employee’s November 6, 2007 request for reconsideration of the November 3, 2007 final decision of the Final Adjudication Branch (FAB).  For the reasons set forth below, the request for reconsideration is granted. 

Pursuant to the authority granted by § 30.317 of the EEOICPA regulations, and for the reasons set forth below, the employee’s claim is remanded to the Seattle district office for further development and the issuance of a new decision.  See 20 C.F.R. § 30.317 (2007).

On December 14, 2004, [Employee] filed a claim under Part E of the Act, identifying “plaque in the left lung” as the claimed medical condition.  In an employment history, the employee stated that he worked as a pipe fitter and welder with J.A. Jones at the Hanford site in Richland, Washington from May 1, 1974 to March 31, 1985.  The employee also stated that he worked at the Hanford site with the following employers: 

·        United Nuclear Corporation (UNC) as a pipe fitter with unspecified dates of employment

·        Rockwell Hanford as a pipe fitter from February 1, 1987 to June 28, 1987

·        Westinghouse Hanford as a maintenance supervisor from June 29, 1987 to September 31, 1996

·        Dyncorp as a mechanical supervisor from October 10, 1996 to December 31, 2002

·        Fluor Hanford as a mechanical supervisor from January 1, 2003 to May 31, 2004

·        Delgen as a mechanical supervisor from June 1, 2004 until December 14, 2004

The Department of Energy (DOE) verified that the employee was employed at the Pacific Northwest National Laboratory (PNNL) in Richland, Washington from August 9, 1965 to January 21, 1966.  DOE also verified that he was employed at the Hanford site as listed below:

·        Douglas United Nuclear from March 16, 1966 to July 8, 1966 and August 22, 1966 to October 7, 1966

·        J.A. Jones from May 31, 1973 to August 31, 1973, May 7, 1974 to February 4, 1975, and February 6, 1975 to March 26, 1982

·        UNC from August 26, 1985 to December 19, 1985 and December 27, 1985 to January 17, 1986

·        Rockwell Hanford Operations from February 18, 1987 to June 28, 1987

·        Westinghouse Hanford Company from June 29, 1988 to April 8, 1988 and April 13, 1988 to September 30, 1996

·        Dyncorp from October 1, 1996 to February 18, 2001

·        Fluor Hanford from February 19, 2001 to December 31, 2005 (the date of verification)

On November 3, 2007, FAB issued a final decision under Part E of EEOICPA finding that the employee was not entitled to benefits for his claim for pleural plaques, on the ground that he had not submitted medical evidence to substantiate a diagnosis of pleural plaques.

On November 6, 2007, the employee submitted medical records to support a diagnosis of asbestos-related pleural plaques.  Dr. Lee W. Vance, in a medical narrative report dated June 3, 2002, diagnosed “pleural plaques compatible with lung disease due to asbestos exposure.”  Dr. Vance also confirmed that the employee had no evidence of interstitial lung disease or asbestosis.  Dr. Randol James, in a chest x-ray report dated June 14, 2002, diagnosed the employee with pleural thickening in the right interior.  The employee also submitted a CT scan of his chest, signed by Dr. Clarence May on December 21, 2001, that confirmed his diagnosis of pleural plaques due to a “previous asbestos exposure.”   

Submitted along with this evidence was a document called “Notice of Decision” from the Washington Department of Labor & Industries confirming the employee’s claim for state workers’ compensation, which was allowed for an asbestos-related lung disease.  The additional evidence that the employee submitted from the Washington Department of Labor & Industries indicates that he might have received compensation and/or medical benefits due to asbestos-related pleural plaques.  Due to the submission of this new medical documentation, additional development is needed to determine whether the employee’s pleural plaques condition is related to toxic substance exposures while he was employed by DOE contractors/subcontractors at a DOE facility.

The employee has clearly submitted a timely request for reconsideration, and FAB hereby grants his request.  Under 20 C.F.R. § 30.319(c)(1), instead of issuing a final decision after granting a request for reconsideration, FAB may remand the claim to the district office for further development.  Therefore, pursuant to that authority, as well as that granted by 20 C.F.R § 30.317, FAB remands this case to the Seattle district office.  On remand, the Seattle district office will consider the medical and other evidence in the file regarding the employee’s claimed condition and develop for further information as it deems necessary.  If the Seattle district office determines that the employee is entitled to benefits due to pleural plaques, it will need to determine whether his medical benefits need to be coordinated with any state workers’ compensation the employee may have received.  Upon further development, the employee will receive a new recommended decision with regard to his asbestos-related pleural plaques claim under Part E.

Washington, D.C.

Susan G. Price

Hearing Representative

Final Adjudication Branch

Time limit for issuance of final decision

EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, [Claimant #1]‘s claim for survivor benefits under Part B and Part E are denied.  [Claimant #2]‘s claim for survivor benefits under Part B is accepted, but his claim under Part E is denied.

STATEMENT OF THE CASE

On October 15, 2002, [Claimant #1] filed a Form EE-2 with the Seattle district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in which he claimed survivor benefits under Part B of EEOICPA as a child of [Employee].  In support of his claim, he alleged that [Employee] had been employed by J.A. Jones Construction, a Department of Energy (DOE) subcontractor at the Hanford site, and that [Employee] had been diagnosed with lung cancer in 1999.  [Claimant #1] submitted a large number of documents in support of his claim that included, among other things:  copies of a September 24, 1992 court order documenting the legal change of his name from “[Claimant #1’s former name]” to “[Claimant #1]” and his October 6, 1992 amended birth certificate with this new name[1]; medical evidence of [Employee]‘s lung cancer; copies of the death certificates for both [Employee] and [Employee’s Spouse]; a copy of “Letters Testamentary” documenting that [Claimant #1] was an executor of [Employee]‘s estate; a U.S. Marine Corps Form D-214 noting [Claimant #1]‘s use of the name “[Claimant #1]” when he was transferred to the Marine Corps Reserve on September 4, 1964; and a September 21, 2001 statement in which [Claimant #1] related the following about his childhood:

As my real dad was unknown.  My mother died when I was 6.  [Claimant #1’s Father as listed on his birth certificate] was a family friend of my mom’s.  Just to give me a last name as she was unwed & pregnant with me.  My Dad [Employee] & My Mom [Employee’s Spouse] actually was my uncle & aunt but I lived with them from the time I was 3 years old.  So I consider them my Dad & Mom.  As I joined the USMC with the [Employee’s Surname] name. . . . 

On December 16, 2002, the Seattle district office verified [Employee]‘s employment by consulting the ORISE database and on December 17, 2002, it issued a recommended decision to deny [Claimant #1]‘s Part B claim.  The recommendation to deny was based on the conclusion that [Claimant #1] had failed to submit sufficient evidence to establish his eligibility as a surviving child of [Employee].  On January 29, 2003, FAB issued an order remanding the claim to the Seattle district office for further development on the issue of whether [Claimant #1] was [Employee]‘s stepchild.  In that order, FAB noted that new procedures had gone into effect shortly after the recommended decision had been issued that required all claims in which claimants were alleging to be stepchildren of deceased covered workers to be forwarded to the National Office of DEEOIC for referral to the Office of the Solicitor, and directed the Seattle district office to comply with those procedures upon completion of further development on the question of whether [Claimant #1] was [Employee]‘s stepchild.

By letter dated February 11, 2003, [Claimant #1]‘s representative submitted a February 6, 2003 statement from [Employee’s Sister], who stated the following:

[Claimant #1] came to live with [Employee] and [Employee’s Spouse] in 1946 and he was three years old at the time.  He lived with them until he was 18 or 19.  At that time he joined the Marines.  [Employee] was his soul [sic] provider during those years and loved him as his son.  Their relationship has always been that of a father and son and continued until [Employee] passed away a few years ago.

[Claimant #1]‘s representative also submitted copies of [Claimant #1]‘s “Pupil Health Card” and “Pupil’s Cumulative Record” from the Kiona-Benton School District, both of which listed [Claimant #1]‘s last name as “[Claimant #1’s Stepfather’s surname]” (crossed out and replaced with “[Employee’s surname]”) and noted that he lived with his “Uncle.”  The “Pupil’s Cumulative Record” also listed “[Claimant #1’s Stepfather]” as [Claimant #1]‘s father.  Shortly thereafter, [Claimant #2] filed a claim for survivor benefits on March 31, 2003 and alleged that he was the stepson of [Employee].

In an April 10, 2003 inquiry, the Seattle district office asked [Claimant #1] who [Claimant #1’s Stepfather] was (his father on the “Pupil’s Cumulative Record”).  In an April 12, 2003 reply, [Claimant #1] stated the following:

My mother [Claimant #1’s Mother] married [Claimant #1’s Stepfather] [in] 1945[.]  They had (2) girls [Claimant #1’s Stepsisters]. . . [Claimant #1’s Stepfather] was my stepfather until [Claimant #1’s Mother]‘s death in 1949 at which time the girls & I were separated as [Claimant #1’s Stepfather] didn’t like me as I wasn’t his child.  The girls were adopted out and I went with my parents [Employee] & [Employee’s Spouse].

* * *

[I lived with [Employee and Employee’s Spouse] in] 1943-1944 as [Claimant #1’s Mother] was unwed.  Then my mother [] passed away [January] 23, 1949.  I lived with [Employee] & [Employee’s Spouse] from 1949-1960.  They were my sole survivorship [sic].  Then I went in USMC 1960.

In a response to a separate April 10, 2003 inquiry that was received by the Seattle district office on April 23, 2003, [Claimant #2] indicated that his mother [Employee’s Spouse] had married [Employee] (his alleged step-parent) on October 24, 1940 when he was five years old, and that he had resided in their household for the next 15 years.  [Claimant #2] also submitted a copy of his birth certificate, which showed that his mother was “[Employee’s Spouse],” and his father was “[Claimant #2’s Father].”

By letters dated May 1, 2003, the district office notified both [Claimant #1] and [Claimant #2] that the case had been referred to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of [Employee]‘s radiation dose.  Thereafter, on June 19, 2003, the district office transferred the case to the National Office of DEEOIC for referral to the Office of the Solicitor as directed in the January 29, 2003 remand order of the FAB.  However, rather than taking this action[2], the National Office returned the case to the district office on September 29, 2003 with a memorandum from the Chief of the Branch of Policies, Regulations and Procedures (BPRP) of the same date.  In that memorandum, the Chief reviewed the evidence then in the case file and concluded that while [Claimant #2] met the statutory definition of [Employee]‘s “child,” [Claimant #1] would not absent the submission of additional evidence showing that he had been legally adopted by [Employee].  Upon return of the file, the Seattle district office wrote to [Claimant #1] on October 3 and 21, 2003 and requested that he submit any evidence in his possession that would establish that he had been legally adopted by [Employee].  No response was received to these requests.

No further action took place with respect to this matter pending receipt of NIOSH’s dose reconstruction report until June 9, 2005, on which date [Claimant #1]‘s representative informed the district office that his client wished to expand his Part B claim to include a claim under the recently enacted Part E of EEOICPA.  On October 27, 2005, the district office sent a third letter to [Claimant #1] stating that while he had provided sufficient evidence to show that he had lived as a dependent in his uncle and aunt’s household, no documentation had been provided showing that he had ever been adopted by his uncle.  In a November 3, 2005 response to that letter, [Claimant #1]‘s representative argued that because the definition of “child” in EEOICPA is inclusive rather than exclusive, [Claimant #1] met the definition of “child” by being the “de facto child” of [Employee], based on a recent state court decision in a Washington child visitation case (issued that same day) that adopted an equitable theory of de facto parentage.  In the visitation case cited, the court created a four-part test for an individual to be a considered a “de facto parent” and to be granted the rights and privileges of a parent.[3]

[Claimant #1]‘s representative also argued that [Claimant #1] should be considered a child of [Employee] under the definition of the term “child” that appears in Title 51 of the Washington Revised Code, which codifies that state’s industrial insurance law.[4]  The term “child” is defined therein as, among other things, a “dependent child that is in legal custody and control of the worker.”  The term “dependent” under that title is defined as including relatives of the worker who at the time of the accident are actually and necessarily dependent on the worker.  Through a letter dated November 10, 2005, [Claimant #1]‘s representative added to his prior argument by alleging that “[Employee] would have adopted [Claimant #1] , but it wasn’t necessary at the time because the schools he attended and the military accepted [Employee] as [Claimant #1]‘s father and allowed [Employee] to sign legal documents on [Claimant #1]‘s behalf when he was still a minor.” 

On October 18, 2005, the Seattle district office received the “NIOSH Report of Dose Reconstruction under EEOICPA,” dated September 29, 2005, which provided estimated doses of radiation to the primary cancer site of the lung.  Based on these dose estimates, the district office calculated the probability of causation (PoC) for [Employee]‘s lung cancer by entering his specific information into a computer program developed by NIOSH called NIOSH-IREP.  The PoC was determined using the “upper 99% credibility limit,” which helps minimize the possibility of denying claims of employees with cancers that are likely to have been caused by occupational radiation exposures.  The PoC for the primary cancer of the lung was determined to be 52.89% using NIOSH-IREP.  Based on this PoC, the Seattle district office issued a November 16, 2005 recommended decision to accept [Claimant #2]‘s Part B claim.  However, it recommended denial of [Claimant #2]‘s Part E claim on the ground that he was not a “covered child” under that other Part.  It also recommended denying [Claimant #1]‘s Part B and E claims on the ground that he had failed to establish that he was a surviving child of [Employee].  The recommended decision, however, did not fully discuss the legal arguments for the expansion of the term “child” made by [Claimant #1]‘s representative.  In a January 12, 2006 letter that was received on January 17, 2006, [Claimant #1]‘s representative objected to this recommended decision and requested an oral hearing before FAB, which took place on March 30, 2006.  At the hearing, [Claimant #1]‘s representative made the same arguments he had made in his written objections. 

On July 15, 2006, FAB returned the case to BPRP for guidance on the legal arguments raised by [Claimant #1]‘s representative at the March 30, 2006 hearing.  On December 12, 2006[5], BPRP requested a legal opinion on the matter from the Office of the Solicitor and on February 26, 2007, the Office of the Solicitor provided BPRP with a legal opinion that evaluated the arguments raised by [Claimant #1]‘s representative.  On March 1, 2007, BPRP contacted FAB and advised it of the guidance it had received.  However, by that point in time, the November 16, 2005 recommended decision had automatically become a “final” decision of the FAB on January 17, 2007 pursuant to 20 C.F.R. § 30.316(c), the one-year anniversary of the date the representative’s objections to the recommended decision were received by FAB.

On March 9, 2007, [Claimant #1] filed a petition in the United States District Court for the Eastern District of Washington seeking review of the January 17, 2007 “final decision” on his claim under Parts B and E of EEOICPA (Civil Action No. CV-07-5011-EFS).  Shortly thereafter, the Director of DEEOIC issued an order on April 30, 2007 vacating that same “final decision” on the claims of both [Claimant #1] and [Claimant #2] and returning them to the Seattle district office for further development and consideration of the Office of the Solicitor’s February 26, 2007 opinion, to be followed by the issuance of new recommended and final decisions.  The case was subsequently transferred to the national office of DEEOIC for further action in light of the filing of the above-noted petition.

On September 14, 2007, the national office of DEEOIC issued a recommended decision:  (1) to deny [Claimant #1]‘s claim for survivor benefits under Parts B and E on the ground that he was not a surviving “child” of [Employee], as that statutory term is defined in §§ 7384s(e)(3) and 7385s-3(d)(3) of EEOICPA; (2) to accept [Claimant #2]‘s claim for survivor benefits under Part B on the ground that as [Employee]‘s stepchild, he was a surviving “child” of [Employee] under § 7384s(e)(3); and (3) to deny [Claimant #2]‘s claim for survivor benefits under Part E on the ground that although he was a “child” of [Employee] under § 7385s-3(d)(3), he did not meet the definition of a “covered child” in § 7385s-3(d)(2).  The case was transferred to FAB and on October 3, 2007, it received [Claimant #2]‘s signed, written waiver of all objections to the September 14, 2007 recommended decision.  On October 17, 2007, [Claimant #2] also submitted a signed statement indicating that had not received any money from a tort suit for [Employee]‘s radiation exposure, and that he had not been convicted of fraud in connection with any application for or receipt of EEOICPA benefits or any other state or federal workers’ compensation benefits.  On September 27, 2007, FAB received written objections to the September 14, 2007 recommended decision and a request for review of the written record from [Claimant #1]‘s representative, dated September 26, 2007.

OBJECTIONS

In his September 26, 2007 submission, [Claimant #1]‘s representative objected to the seventh “Conclusion of Law” in the recommended decision, which is the one that concluded that [Claimant #1] was not a surviving “child” of [Employee] under either Part B or Part E of EEOICPA and rejected the representative’s contentions that Washington workers’ compensation law and a child visitation decision supported [Claimant #1]‘s claim.  The representative repeated his earlier argument regarding the non-exhaustive nature of the definition of “child” under EEOICPA and alleged that DEEOIC had ignored this point when it “made its recommended decision of denial on the basis that [Claimant #1] does not qualify as a surviving child of [Employee] since [Claimant #1] was neither a recognized natural child, a stepchild or an adopted child [of [Employee].”[6]

[Claimant #1]‘s representative also repeated his argument that Washington workers’ compensation law should apply in [Claimant #1]‘s EEOICPA claim because EEOICPA is a “federal worker’s [sic] compensation statute.”  Based on this premise, the representative asserted that the concept of dependence alone should be determinative of [Claimant #1]‘s status as [Employee]‘s child.

Finally, the representative argued that the “general rule of law” pronounced in the child visitation case was “not limited to the facts in the particular case.”  Rather, he asserted, “the application of the de facto concept is broadly [sic] subject only to the factors enumerated in the general rule developed in the decision.”  The representative then quoted from the portion of the decision in which the court set out four criteria that an individual would have to meet in order to have “standing as a de facto parent” in a child visitation proceeding, and asserted that [Claimant #1] was [Employee]‘s “de facto child.”

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

FINDINGS OF FACT

1.         [Claimant #1] and [Claimant #2] filed claims for survivor benefits under Part B of EEOICPA on October 15, 2002 and March 31, 2003, respectively, and both later expanded their claims to include Part E.

2.         [Employee] was employed at the Hanford facility by DOE subcontractors from January 1, 1950 to April 15, 19 55, from September 14, 1956 to March 15, 1957, from March 22, 1957 to April 26, 1957, from March 3 to 4, 1960, and from September 14, 1960 to March 4, 1977.

3.         On July 1, 1999, [Employee] was diagnosed with lung cancer.  The date of this diagnosis was after he had begun covered employment.

4.         NIOSH reported annual dose estimates for the lung from the date of initial radiation exposure during covered employment to the date of the cancer’s first diagnosis.  A summary and explanation of the information and methods applied to produce these dose estimates, including [Claimant #1]‘s and [Claimant #2]‘s involvement through their interviews and reviews of the draft dose reconstruction report, are documented in the “NIOSH Report of Dose Reconstruction under EEOICPA” dated September 29, 2005.

5.         Using the dose estimates from NIOSH’s September 29, 2005 report, DEEOIC determined that the probability of causation (PoC) was 52.89% and established that it was “at least as likely as not” that [Employee]‘s lung cancer was sustained in the performance of duty.

6.         [Claimant #1] was born on June 14, 1942 and is the child of [Claimant #1’s Mother] and an unknown father.  From 1943 to 1944, he lived with his uncle and aunt, [Employee and Employee’s Spouse] ([Sister of Claimant #1’s Mother]).  In 1945, [Claimant #1’s Mother] married [Claimant #1’s Stepfather], and [Claimant #1] was reunited with his mother and lived with her and [Claimant #1’s Stepfather].  [Claimant #1’s Mother] died on January 23, 1949, after which [Claimant #1] was again sent to live with his aunt and uncle.  [Claimant #1]‘s stepfather died in 1952.  [Claimant #1] lived with his uncle the employee, his aunt and his cousin [Claimant #2] from 1949 until he enlisted in the U.S. Marine Corps in 1960.

7.         [Claimant #2] is the stepchild of [Employee] as established by his birth certificate, his school records, and the marriage of his mother [Employee’s Spouse] to [Employee].

8.         At the time of [Employee]‘s death, [Claimant #2] was not under the age of 18, or under the age of 23 and continuously enrolled as a full-time student in an institution of higher learning, or any age and incapable of self-support.

Based on the above-noted findings of fact, and after considering the objections to the recommended decision in this case, FAB hereby makes the following:

CONCLUSIONS OF LAW

The first issue in this case is whether [Employee] qualifies as a “covered employee with cancer” for the purposes of Part B of EEOICPA.  For this case, the relevant portion of the definition of a “covered employee with cancer” is “[a] Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility, [] if and only if that individual is determined to have sustained that cancer in the performance of duty in accordance with section 7384n(b) of this title.”  42 U.S.C. § 7384l(9)(B).  As found above, [Employee] was employed at the Hanford facility by DOE subcontractors for intermittent periods from January 1, 1950 to March 4, 1977, and was first diagnosed with lung cancer after he had begun working at the Hanford facility.

In accordance with 42 U.S.C. § 7384n(d), NIOSH produced dose estimates of the annual radiation exposures to [Employee]‘s lungs, and DEEOIC calculated the PoC for his lung cancer based on those estimates consistent with § 7384n(c)(3).  Since the PoC was calculated to be 52.89%, it established that it was “at least as likely as not” that [Employee]‘s lung cancer was sustained in the performance of duty under § 7384n(b).  Therefore, [Employee] qualifies as a “covered employee with cancer” under Part B, as that term is defined by § 7384l(9)(B), because he was employed at a DOE facility by DOE subcontractors and sustained cancer in the performance of duty.  As a result, his cancer is an “occupational illness” under Part B, as defined by § 7384l(15), and he is also a “covered employee,” as that term is defined by § 7384l(1)(B).  Pursuant to 42 U.S.C. § 7385s-4(a), this conclusion also constitutes a determination under Part E of EEOICPA that [Employee] contracted his lung cancer through exposure to a toxic substance at a DOE facility.  However, because he is a deceased covered employee, only his eligible survivors are entitled to share in the compensation payable under Part B and Part E of EEOICPA.

The second issue in this case is whether [Claimant #1] or [Claimant #2] is a “child” of [Employee] under both Parts B and E of EEOICPA.  The statutory term “child,” which has the same definition in both Parts B and E, “includes a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.”  42 U.S.C. §§ 7384s(e)(3)(B), 7385s-3(d)(3).  Both of these definitions use the non-exhaustive term “includes” and identify three classes of persons that are considered to be children of an individual for purposes of paying survivor benefits under Parts B and E of EEOICPA.

There are well-established definitions for the three classes of persons included in the two statutory provisions at issue:  (1) a “recognized natural child” is an illegitimate child of an individual, who has been recognized or acknowledged as a child by that individual; (2) a “stepchild” is someone who meets the criteria currently described in Chapter 2-200.5c (September 2004) of the Federal (EEOICPA) Procedure Manual; and (3) an “adopted child” is someone who satisfies the legal criteria for that status under state law.

The use of the term “includes” in both § 7384s(e)(3) and § 7385s-3(d)(3) is evidence that Congress intended the term “child” to refer to more than just the three classes of persons noted above, as is the fact that those three specified classes do not include legitimate issue (and posthumously born legitimate issue).  Thus, the definition of the term “child” is properly left to DEEOIC as the agency that is charged with the administration of the compensation programs established by EEOICPA.  See 20 C.F.R. § 30.1 (2007).  As an exercise of that authority, DEEOIC concludes that there is no dispute that legitimate issue are children of an individual.  Furthermore, unrecognized or unacknowledged illegitimate issue (and posthumously born illegitimate issue) also fall within the definition of “child” since denying EEOICPA survivor benefits to these other illegitimate children would violate the Constitution.[7]  For brevity’s sake, DEEOIC will use the term “biological” children to mean all issue of an individual (including posthumously born issue), whether  legitimate or illegitimate.  Under this terminology, a “recognized natural child” is one type of biological child.  Accordingly, DEEOIC concludes that a “child” of an individual under both Part B and Part E of EEOICPA can only be a biological child, a stepchild, or an adopted child of that individual.

As noted above in the “Objections” section of this decision, [Claimant #1]‘s representative argues that Washington workers’ compensation law should apply in [Claimant #1]‘s EEOICPA claim because EEOICPA is a “federal worker’s [sic] compensation statute.”  In his view, [Claimant #1] should be found to be a “child” under EEOICPA because he meets the definition of a “child” in Title 51 of Washington’s Revised Code, which defines a “child” as “every natural born child, posthumous child, stepchild, child legally adopted prior to the injury, child born after the injury. . .and dependent child in the legal custody and control of the worker. . . .”(emphasis added).[8]  However, there is no evidence in the case file that [Claimant #1] is the natural born child, posthumous child, stepchild, child legally adopted prior to the injury or child born after the injury of [Employee]

There is also no allegation or evidence in the case file that [Employee or Employee’s Spouse] ever had legal custody of [Claimant #1].  Instead, it appears that after the death of his mother, [Claimant #1] merely lived with his aunt and uncle who had, at most, physical custody of their nephew.  Even assuming that [Employee] had “legal custody” of [Claimant #1] (a prerequisite of the definitional phrase at issue), there is nothing in either § 7384s(e)(3) or § 7385s-3(d)(3), or in EEOICPA as a whole, that suggests that a person claiming to be a “child” of a deceased covered employee should be able to establish that status by proving merely that they are or were “dependant” on that individual.  Therefore, DEEOIC has concluded that persons who are or were only “dependant” on an individual are not “children” of that individual under EEOICPA, which is not a “federal worker’s [sic] compensation statute” (those types of statutes are “wage-replacement” statutes[9]), as [Claimant #1]‘s representative believes, where issues of dependency are often relevant to questions of survivor eligibility.[10]

[Claimant #1]‘s representative also argues that [Claimant #1] should be considered a “de facto child” of [Employee] based on a recent decision in a visitation dispute in Washington.  The dispute involved two parties who could not legally marry one another but had agreed to raise a biological child of one of the parties together.  When the party who had no biological or legal relationship to the child sued to obtain visitation rights after the parties had terminated their agreement, the court considered whether the party was a “de facto parent.”[11]  [Claimant #1]‘s representative argues that [Employee] would have met the court’s four-part test[12] to be his client’s “de facto parent” and as a consequence, [Claimant #1] should be considered to be the “de facto child” of [Employee].  There are, however, two flaws in this argument.  First, both the decision at issue and subsequent cases that have relied upon it are clearly within the state law realm of child custody and/or parental rights.  State courts in these types of cases are primarily concerned with the “best interests of the child,” which is an equitable concern that does not enter into EEOICPA’s definitions of “child,” and involve the creation or definition of rights and obligations of parents, not children.  Secondly, the decision cited by [Claimant #1]‘s representative only contains a discussion of who can be considered a “de facto parent,” not a “de facto child.”  Therefore, the representative’s reliance on this decision is flawed not only because it is not controlling in the EEOICPA claims adjudication process, but also because it is based on an overly expansive reading of what the court actually stated.

Returning to the second issue in this case, DEEOIC concludes that [Claimant #2] is a “child” of [Employee] under Part B, as that term is defined in § 7384s(e)(3)(B), because he is [Employee]‘s stepchild.  [Claimant #2] is also a “child” of [Employee] under Part E, as that term is defined in § 7385s-3(d)(3), for the same reason–because he is [Employee]‘s stepchild.  However, DEEOIC concludes that [Claimant #1] is not a “child” of [Employee] under either Part B or Part E because he is not a biological child of [Employee], or a stepchild of [Employee], or an adopted child of [Employee].

The third issue in this case is whether [Claimant #1] or [Claimant #2] is a “covered child” of [Employee] under Part E of EEOICPA.  In order to be eligible to receive a payment as a “child” of a deceased covered employee under Part E, a child of that employee must be a “covered child,” which is defined as “a child of the employee who, as of the employee’s death–(A) had not attained the age of 18 years; (B) had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years; or (C) had been incapable of self-support.”  42 U.S.C. § 7385s-3(d)(2). 

In this case, while [Claimant #2] is a “child” of [Employee] under Part E, he is not a “covered child,” as that term is defined in § 7385s-3(d)(2), because at the time of [Employee]‘s death on February 21, 2000, he was not under the age of 18, or under the age of 23 and continuously enrolled as a full-time student in an institution of higher learning, or any age and incapable of self-support.  As for [Claimant #1], since he is not a “child” of [Employee], as that term is defined in § 7385s-3(d)(3), because he is not a biological child, a stepchild or an adopted child of [Employee], he cannot be a “covered child” of [Employee] under Part E because an individual alleging that status must also be a “child” in order to be a “covered child” under the terms  of § 7385s-3(d)(2).

Accordingly, [Claimant #2] is entitled to survivor benefits for [Employee]‘s lung cancer under Part B, as outlined in 42 U.S.C. § 7384s(a)(1), and the FAB hereby awards him lump-sum benefits of $150,000.00 for that occupational illness under Part B.  [Claimant #2]‘s claim for survivor benefits under Part E for [Employee]‘s death due to lung cancer is denied.  [Claimant #1]‘s claim for survivor benefits under Parts B and E of EEOICPA for [Employee]‘s condition of lung cancer and his death due to lung cancer, respectively, is denied.

Washington, D.C.

Carrie Rhodes

Hearing Representative

Final Adjudication Branch

[12]  Without conceding that the court’s four-part test is applicable in this matter, DEEOIC notes that there is no evidence in the file that [Claimant #1’s Mother] gave her consent to have her son live with [Employee and Employee’s Spouse] after her death in 1949.