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

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Survivors

Adopted children

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Claimant 1]                                        September 21, 2004

[Claimant 2]                                        September 22, 2004

[Claimant 3]                                        September 20, 2004

[Claimant 5]                                        September 21, 2004

[Claimant 7]                                        September 17, 2004

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

DENVER, CO

Joyce L. Terry

District Manager

EEOICPA Fin. Dec. No. 82961-2008 (Dep’t of Labor, March 27, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims for compensation under Parts B and 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, FAB accepts and approves the claims for benefits [of Claimant #1, 2, 3, 4 and 5] under Part B for the employee’s epiglottis cancer, and awards compensation to those five persons in the total amount of $150,000.00, to be divided equally.

Further, FAB also accepts the claim of [Claimant #5] under Part E, and awards her  additional compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On October 19, 2004, [Employee’s Spouse] filed a Form EE-2 with the Department of Labor claiming for survivor benefits under Part B as the employee’s widow, and a request for review by Physicians Panel under former Part D with the Department of Energy (DOE), based on the conditions of throat cancer and emphysema with possible chronic beryllium disease.  The record includes a copy of [Employee]‘s death certificate indicating he died on September 1, 1990 due to acute bronchopneumonitis, with a contributing factor of coronary artery disease.

[Employee’s Spouse] also submitted a Form EE-3 in which she alleged that [Employee] worked at the Los Alamos National Laboratory (LANL) from 1970 to 1980.  DOE verified [Employee]‘s employment at LANL as a security guard with the Atomic Energy Commission (AEC) from May 15, 1972 to January 9, 1981, and as a part-time employee with the University of California, a DOE contractor, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973.

On October 16, 2005, [Employee’s Spouse] died, and her claim was administratively closed.

On December 13, 2006, [Claimant #1] and [Claimant #2] each filed a Form EE-2 based on the employee’s throat cancer, and on January 4, 2007, [Claimant #3], [Claimant #4] and [Claimant #5] each filed a Form EE-2.  Each claimed benefits as the surviving child of [Employee].

[Claimant #2], [Claimant #3] and [Claimant #4] provided copies of their birth certificates showing they are the biological children of [Employee], and copies of their marriage certificates to document their changes in surname.  [Claimant #1] provided a copy of a birth certificate identifying her name as [Claimant #1’s birth name] and her parents as [Claimant #1’s Father on her birth certificate] and [Claimant #1’s Mother on her birth certificate], a Certificate of Baptism identifying her parents as [Employee] and [Employee’s Spouse], letters from acquaintances stating that [Employee and Employee’s Spouse] were her biological parents and that she was adopted by her grandparents, and marriage certificates to document her change in surname.  The record contains adoption documents showing that [Claimant #5] was born on April 11, 1973, and was adopted by [Employee and Employee’s Spouse].

Medical documentation in the record includes a document from the New Mexico cancer registry that provides a diagnosis of cancer of the epiglottis on April 25, 1989; a January 11, 2005 letter from Dr. Charles McCanna, in which he indicated that [Employee] died from complications of epiglottis (throat) cancer; another letter from Dr. McCanna stating that the employee’s medical records are no longer available; and a letter from St. Vincent Hospital dated January 24, 2005, indicating that their records had been destroyed.

On June 5, 2007, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether the employee’s cancer of the epiglottis was “at least as likely as not” related to his covered employment.  However, the case was returned on March 14, 2008 so the district office could review it to determine if the employee was included in the designation by the Secretary of Health and Human Services (HHS) of certain LANL employees as an addition to the Special Exposure Cohort (SEC).

On September 11, 2007, FAB issued a final decision on the Part E claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4], concluding that these claimants are not eligible “covered” children under Part E.

On March 14, 2008, the Seattle district office received information from a Department of Labor Health Physicist (HP) on the question of whether cancer of the epiglottis is a “specified” cancer.  The HP stated the following:

Pharynx cancer is a specified cancer for SEC claims.  With regard to epiglottis cancer, the National Office recently reviewed medical evidence to determine whether the epiglottis is a part of the pharynx.  20 C.F.R. § 30.5(ff)(5)(iii)(E) indicates that pharynx cancer is a “specified cancer” under EEOICPA.  The National Cancer Institute (NCI) states that pharyngeal cancer is a cancer that forms in the tissues of the pharynx, and that the pharynx consists of the hollow tube inside the neck that starts behind the nose and ends at the top of the windpipe and esophagus.  The National Office determined that because the location of the epiglottis is technically within the area encompassed by the pharynx, the epiglottis is a specified cancer.

On the same date, the district office issued a recommended decision to accept the claims [of Claimant #1, 2, 3, 4 and 5] under Part B based on the employee’s cancer of the epiglottis, and to also accept the claim of [Claimant #5] under Part E.  The district office concluded that [Employee] is a member of the SEC, that he was employed by a DOE contractor at a DOE facility, that he is a covered employee with a covered illness under Part E, and that he was diagnosed with epiglottis cancer, which is a “specified” cancer.  The district office also concluded that as his eligible survivors, [Claimant #1, 2, 3, 4 and 5] are entitled to compensation under Part B, in the total amount of $150,000.00, to be divided equally.  Further, the district office concluded that a determination that a DOE contractor employee and qualified member of the SEC is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility, and since [Claimant #5]  was under the age of 18 at the time of [Employee]‘s death, she is the only eligible survivor under Part E and is entitled to compensation in the amount of $125,000.00.

The claimants each indicated on their respective Forms EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from either a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].

On March 20, 2008, FAB received written notification from [Claimant #1, 2, 4 and 5], indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision.  On March 24, 2008, FAB received written notification from [Claimant #3], indicating she also waives all rights to file objections to the findings of fact and conclusions of law in the recommended decision.

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

FINDINGS OF FACT

1.      On December 13, 2006 [Claimant #1]and [Claimant #2]; and on January 4, 2007 [Claimant #3], [Claimant #4] and [Claimant #5] each filed a claim for survivor benefits under EEOICPA.

2.      [Employee] was diagnosed with epiglottis cancer on April 25, 1989.

3.      [Employee] died on September 1, 1990, due to acute bronchopneumonitis, with a contributing factor of coronary artery disease; which were complications of his epiglottis (throat) cancer.

4.      [Employee] worked at LANL as a security guard with the AEC from May 15, 1972 to January 9, 1981, and with the University of California, as a Casual Messenger/Driver, from August 23, 1973 to October 29, 1973. 

5.      There is a causal connection between the employee’s death due to epiglottis cancer and his exposure to radiation and/or a toxic substance at a DOE facility.

6.      [Claimant #1, 2, 3, 4 and 5] are the eligible children of [Employee] under Part B.

7.      [Claimant #5] was 17 years of age at the time of [Employee]‘s death.

8.      All five claimants indicated on their respective Form EE-2 that neither they nor anyone in their family had ever filed for or received any proceeds from a tort suit or a state workers’ compensation claim related to the employee’s epiglottis cancer, that they had never pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation, and that they did not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of [Employee].

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

CONCLUSIONS OF LAW

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  All five claimants waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims. 

In order for him to be considered a covered Part B employee, the evidence must establish that [Employee] was diagnosed with an occupational illness incurred as the result of his exposure to silica, beryllium, or radiation, and those illnesses are cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis.  See 42 U.S.C. § 7384l(15);  20 C.F.R. § 30.110(a).  Further, EEOICPA requires that the illness must have been incurred while the employee was “in the performance of duty” for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer.  See 42 U.S.C. §§ 7384l(4)-(7), (9), and (11).

On June 22, 2007, the Secretary of HHS designated a new class of employees as an addition to the SEC, consisting of DOE employees or DOE contractor or subcontractor employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for a number of work days aggregating at least 250 work days from March 15, 1943 through December 31, 1975, or in combination with work days within the parameters established for one or more classes of employees in the SEC.  The new SEC class became effective on July 22, 2007. 

The employment evidence is sufficient to establish that [Employee] was employed at LANL for an aggregate of at least 250 work days, as a security guard, and therefore he is considered to be an eligible member of the class of employees who worked at LANL from March 15, 1943 through December 31, 1975 that was added to the SEC. 

[Employee] is a member of the SEC who was diagnosed with epiglottis cancer, which is cancer of a part of the pharynx (a “specified” cancer), more than 5 years after his initial exposure, and therefore he is a “covered employee with cancer.”   See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A) and 20 C.F.R. § 30.5(ff)(5)(iii)(E).  Therefore, as the employee is now deceased, the five claimants are entitled to compensation in the total amount of $150,000.00, divided in equal shares of $30,000.00 each.  See 42 U.S.C. § 7384s(a) and (e).

The statute provides that if a determination has been made that a DOE contractor employee is entitled to compensation for an occupational illness under Part B, such determination shall be treated, for purposes of Part E, as a determination that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a).  Consequently, [Employee]‘s illness is deemed to be a “covered illness” contracted through exposure to toxic substances at a DOE facility.  The medical evidence also establishes that epiglottis cancer was one of the causes of [Employee]‘s death.  As the employee would have been entitled to compensation for his covered illness 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 the employee, his eligible survivors would be entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1).  [Claimant #5] was 17 years of age at the time of [Employee]‘s death, and is the only eligible survivor pursuant to § 7385s-3(d), and therefore she is entitled to compensation in the amount of $125,000.00.  See 42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(d).

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Children

EEOICPA Fin. Dec. No. 11890-2007 (Dep’t of Labor, November 7, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims 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 claims are accepted for a combined award of $150,000.00 (consisting of two equal shares of $75,000.00 each) in survivor compensation under Part B of EEOICPA, and for a second combined award of $125,000.00 (consisting of two equal shares of $62,500.00 each) in survivor compensation under Part E, based on the employee’s colon cancer and his subsequent death, respectively.  [Claimant #1 and Claimant #2] are each therefore approved for separate awards of $137,500.00 under Parts B and E of EEOICPA.

STATEMENT OF THE CASE

On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Part B and Part E (formerly Part D) of EEOICPA as the children of the employee.  They identified colon cancer as the condition resulting from the employee’s work at a Department of Energy (DOE) facility.  The file contains a Form EE-3 alleging that the employee was employed as a chemical engineer at the Los Alamos National Laboratory (LANL) for unspecified dates, at Brookhaven National Laboratory from July of 1947 to March of 1951, at North American Aviation from April of 1951 to July of 1952, and at Argonne National Laboratory – East from April 5, 1954 to September 9, 1992.  DOE verified that the employee worked at LANL from August 7, 1944 to March 1, 1946, at Brookhaven National Laboratory from July 22, 1947 to March 29, 1951, at the Downey Facility from April 21, 1951 to June 27, 1952, and at Argonne National Laboratory – East from April 5, 1954 to September 9, 1992.[1]   DOE also verified that the employee present at the Trinity Test Site for the first nuclear test in July of 1945.

[Claimant #1 and Claimant #2] submitted the following medical information in support of their claims:  a June 29, 1991 medical report by Dr. E. Dvorak that cites a long history of recurrent adenocarcinoma of the colon; an August 3, 1991 discharge summary by Dr. J. Geraghty that reports a history of colon cancer beginning in 1965; and a July 15, 1991 pathology report of lumbar spine tissue and bone in which Dr. L. Ghosh diagnosed metastatic adenocarcinoma consistent with primary colon cancer.  The employee’s death certificate shows that he died on November 20, 1992 at the age of 74 and that he was widowed at the time of his death.  The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between the onset of the condition and death is listed as “years.” 

In support of their survivor claims, [Claimant #1 and Claimant #2] submitted copies of their birth certificates, showing the employee as their father and showing [Claimant #1]‘s birth date as August 15, 1976 and [Claimant #2]‘s birth date as November 16, 1973.  [Claimant #2] also submitted documentation related to his education showing that he graduated from high school in 1991, at the age of 17.  [Claimant #2] turned 18 on November 16, 1991.  A transcript shows that he entered North Central College as a special student on January 6, 1992, and attended classes there during the winter and spring sessions of the 1991-1992 school year, and a June 19, 1992 letter states he was awarded academic honors for Spring Term of 1991-92.  A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993.  A May 27, 1992 letter from the University of Chicago shows his original admission date as Autumn Quarter of 1992.  In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.”  He also noted in the same letter that during that time he had no earned income and was dependent on the employee.  A copy of a transcript from the University of Chicago showed that [Claimant #2] attended classes there from Autumn 1993 until Spring 1997 and that he was awarded a degree in Summer of 1997.  The transcript also notes that [Claimant #2] attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992. 

The district office referred their application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, which was necessary to determine if the employee’s colon cancer was “at least as likely as not” sustained in the performance of duty at a covered DOE facility (known as determining the probability of causation, or “PoC”).

On June 22, 2007, a new class of employees was added to the Special Exposure Cohort (SEC).  The new class included employees who were monitored or should have been monitored for radiological exposures while working in operational Technical Areas with a history of radioactive material use at LANL for an aggregate of 250 work days from March 15, 1943 through December 31, 1975, or in combination with other SEC employment designations.  This designation took effect on July 22, 2007.

Thereafter, it was determined that the employee met the requirements for the above addition to the SEC, and the claims of [Claimant #1 and Claimant #2] were returned by NIOSH.  The employee worked as a chemical engineer for more than 250 days at LANL, and his dosimetry badge records and likely job duties show that he would have been in several locations where radioactive materials were present.

On August 1 and 9, 2007, FAB received their signed statements that neither they nor the employee had received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

On August 18, 2007, the Cleveland district office issued a recommended decision finding that the employee qualified as a member of the SEC as he was diagnosed with colon cancer, which is a “specified” cancer, and he was employed for more than 250 days at LANL during the specified period.  Accordingly, the district office recommended that [Claimant #1 and Claimant #2] be awarded survivor benefits of $150,000.00 (to be shared equally) under Part B of EEOICPA, and $125,000.00 (to be shared equally) under Part E, based on the employee’s colon cancer and his death due to that covered illness.

On August 21, 2007, FAB sent [Claimant #2] a letter requesting that he provide additional evidence to establish his eligibility as a covered child under Part E of EEOICPA.  The letter noted that he was 19 years of age at the time of the employee’s death and that he could be considered a covered child if he was a full-time student who had been continuously enrolled in one or more education institutions since attaining that age of 18 years or if he was incapable of self-support.

On August 24, 2007 and September 20, 2007, FAB received [Claimant #1 and Claimant #2]‘s signed waivers of their right to object to any of the findings of fact or conclusions of law contained in the recommended decision.

After a careful review of the evidence in the case file, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On October 11, 2001, [Claimant #1 and Claimant #2] filed claims for survivor benefits under Parts B and E (formerly Part D) of EEOICPA as the children of the employee.  They identified colon cancer as the condition resulting from the employee’s work at a DOE facility. 

2. The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946.  This is at least 250 days of employment at LANL. 

3. The employee was diagnosed with colon cancer in 1965.  This is at least five years after he began employment at a covered facility.

4. The employee qualifies as a member of the SEC.

5. The employee died on November 20, 1992 at the age of 74, and he was widowed at the time of his death.  The immediate cause of death was listed as “metastatic carcinoma colon” and the interval between onset and death is listed as “years.”

6. [Claimant #1]‘s birth date is August 15, 1976, and she was 16 years old at the time of the employee’s death.

7. [Claimant #2]‘s birth date is November 16, 1973, and he was 19 years old at the time of the employee’s death.

8. [Claimant #2] turned 18 on November 16, 1991 attended North Central College for the Winter and Spring sessions of the 1991-92 school year.  He attended the University of Chicago beginning with the Autumn Quarter of 1993, after having deferred enrollment for one year due to the employee’s illness.  He attended the University of Chicago from Autumn of 1993 until he was awarded a degree in the Summer of 1997.

9. Neither [Claimant #1 and Claimant #2] nor the employee have received any settlement or award from a lawsuit or state workers’ compensation claim for the employee’s condition of colon cancer.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, 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).  [Claimant #1 and Claimant #2] have waived their rights to file objections to the findings of fact and conclusions of law in the recommended decision.

The employee worked as a chemical engineer at LANL for the University of California from August 7, 1944 to March 1, 1946.  The employee’s dosimetry badge records and likely job duties show that he would have been in several locations at LANL where radioactive materials were present.  The employee was diagnosed with colon cancer in 1965.  Provided the onset was at least five years after first exposure, which it was in this case as the employee’s first exposure was in 1944, colon cancer is a “specified” cancer.  See 20 C.F.R. § 30.5(ff)(5)(L).  The totality of evidence therefore demonstrates that the employee qualifies as a member of the new addition to the SEC.  As a member of the SEC who was diagnosed with a specified cancer which constitutes an “occupational illness” under 42 U.S.C. § 7384l(15), the employee qualifies as a “covered employee with cancer.”  42 U.S.C. § 7384l(9).

Under Part B of EEOICPA, a covered employee, or the survivors of that employee, shall receive compensation for the employee’s occupational illness in the amount of $150,000.00.  The employee was a widower at the time of his death.  Accordingly, as the employee’s surviving children, [Claimant #1 and Claimant #2] are entitled to $150,000.00 (to be shared equally) in survivor benefits under Part B.

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a “covered illness” through exposure at a DOE facility.  The term “covered DOE contractor employee” means any DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s(1).  The term “covered illness” means an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2).

A determination under Part B of EEOICPA that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Under Part E, the survivor of a deceased covered Part E employee shall receive $125,000.00, if the employee would have been entitled to compensation for a covered illness, 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.  See 42 U.S.C. § 7385s-3(a)(1).

The employee’s work for the University of California at LANL from August 7, 1944 to March 1, 1946 establishes that the employee was a DOE contractor employee, and he was diagnosed with colon cancer, a “covered illness,” as that term is defined by 42 U.S.C. § 7385s(2).  The employee contracted his “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The employee’s death certificate indicates that the cause of death was “metastatic carcinoma colon.”

FAB therefore concludes that the employee would have been entitled to compensation under Part E for his covered illness, and that 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. 

The term “covered” child means a child of the employee who, at the time of the employee’s death, was under the age of 18, or under the age of 23 and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).  [Claimant #1] was 16 years old at the time of the employee’s death; thus, she is a covered child under Part E.  The evidence of record shows that at the time of the employee’s death, [Claimant #2] was 19 years old.  The eligibility of a child who is between the ages of 18 and 23 at the time of the employee’s death is evaluated under the following guidelines:

[T]he child must have been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years and must not have reached the age of 23 years regardless of marital status or dependency on the employee for support.  Enrollment as a full time student consists of a 12-month period, with a break of no more than 4 months, during each year of post-high school education.  The full-time course of study or training at an accredited institution(s) is approximately four years of education beyond the high school level or until the student reaches age 23, whichever comes first.  It is [within the Division of Energy Employees Occupational Illness Compensation (DEEOIC)]’s discretion to determine a period of reasonable duration if the student was prevented by reasons beyond his or her control, such as a brief but incapacitating illness, from continuing in school. 

Federal (EEOICPA) Procedure Manual, Chapter E-600.5(b)(3) (September 2005). 

The statute requires continuous enrollment since attaining the age of 18 in order for a surviving child to be eligible for survivor benefits under Part E.  The Procedure Manual states that enrollment as a full-time student means a break of no more than four months in a 12-month period, unless prevented from continuing in school for a reason beyond the student’s control.  These criteria necessarily contain some discretion for case-by-case analysis of claims involving surviving children who were between the ages of 18 and 23 when the employee died.  What reasonably qualifies as “a reason beyond the student’s control” will depend on the facts and circumstances surrounding each claim and will involve some judgment on the part of DEEOIC.

[Claimant #2] graduated from high school in 1991, at the age of 17.  He turned 18 on November 16, 1991, entered North Central College as a special student on January 6, 1992 and attended classes there full-time during the Winter and Spring sessions of the 1991-1992 school year.  A copy of an October 2, 1992 letter from the University of Chicago states that [Claimant #2] deferred his admission there until Fall of 1993.  A May 27, 1992 letter from the University of Chicago shows his original admission date as the Autumn quarter of 1992.  A copy of a transcript from the University of Chicago shows that [Claimant #2] attended classes there from Autumn of 1993 until Spring of 1997 and that he was awarded a degree in Summer of 1997.  The transcript also notes that he attended Naperville Central High School in 1991 and North Central College in Naperville, Illinois in 1991-1992.

The employee died on November 20, 1992, during the time between [Claimant #2] attended classes at North Central College (Spring of 1992) and he began classes at the University of Chicago (Fall of 1993).  In a letter dated October 9, 2001, [Claimant #2] stated that he had deferred his admission to the University of Chicago “due to [his] father’s illness.”  He also noted in the same letter that during that time he had no earned income and was dependent on the employee.  These statements are consistent with the above documentation, in that they both support that [Claimant #2] would have begun classes in the Autumn quarter of 1992 at the University of Chicago but for the employee’s illness.  FAB notes that had he begun classes in the Autumn of 1992 as he had originally planned, there would have been no break of more than 4 months in his continuous education since he attained the age of 18. 

[Claimant #2] stated, and there is no evidence in the file to contradict, that he deferred for one year his admission to the University of Chicago, from Autumn 1992 to Autumn of 1993, due to the employee’s illness, and in fact the employee died shortly after the Autumn quarter of 1992 would have begun (November 20, 1992).  Thus, the circumstances surrounding the break in his continuous enrollment since the age of 18 (i.e., between Spring of 1992 and Fall of 1993) were reasonable and beyond [Claimant #2]‘s control, such that he qualifies as a “covered child” who was “under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years” under Part E of EEOICPA.

Accordingly, [Claimant #1 and Claimant #2] are entitled to survivor compensation of $150,000.00 (to be divided in equal shares of $75,000.00) under Part B as the surviving children of the employee, for the employee’s occupational illness of colon cancer.  They are also entitled to survivor compensation of $125,000.00 (to be divided in equal shares of $62,500.00) under Part E as the covered children of the employee, for the employee’s death due to the covered illness of colon cancer.  Thus, [Claimant #1 and Claimant #2] are each entitled to $137,500.00 in total EEOICPA survivor benefits.

Washington, DC

Carrie A. Rhoads

Hearing Representative,

Final Adjudication Branch

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

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

NOTICE OF FINAL DECISIONAFTER REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

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

William B. Talty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10003238-2005 (Dep’t of Labor, October 28, 20bu05)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On February 7, 2005, [Claimant #1] filed a Request for Review by Medical Panels form based on the colon cancer of [Employee], hereinafter referred to as “the employee.”  On February 11, 2005, [Claimant #2] filed a Request for Review by Medical Panels form.  A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991.  The employee’s death certificate shows that the employee died on May 15, 1991, as a consequence of colon cancer.

Prior to your filing, the employee’s spouse at the time of his death, [Employee’s Spouse], filed a form EE-2, Claim for Survivor Benefits under the EEOICPA.  On January 28, 2003, the Final Adjudication Branch issued a final decision awarding [Employee’s Spouse] $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.

You submitted the death certificate of [Employee’s Spouse], showing she died on October 17, 2004.  You also submitted birth certificates showing [Claimant #1] was born on April 5, 1972, and [Claimant #2] was born on May 25, 1974.  In addition, you submitted documentation showing [Claimant #1] was a full-time student at the time of the employee’s death.  Although there was a lapse of several months when she was not enrolled in full-time studies, [Claimant #1] explained that the lapse was due to circumstances beyond her control, namely she had to wait for an opening at the institution in which she subsequently enrolled at her earliest opportunity.

On August 8, 2005, the Seattle district office received written confirmation from both of you stating that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that there were no other children of the employee who were covered under § 7385s of the Act.

Since the employee had five other children, the Seattle district office contacted these children by telephone and in writing.  Each of the children responded by stating that they did not fit any of the following categories at the time 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).

On September 6, 2005, the Seattle district office issued a recommended decision, concluding that you are entitled to survivor benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer. 

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

FINDINGS OF FACT

1)  You each filed a Request for Review by Medical Panels form based on the employee’s colon cancer.

2)  On January 28, 2003, the Final Adjudication Branch issued a final decision awarding the employee’s spouse at the time of his death $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.[1]

3)  A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991.  

4)  The employee’s death certificate shows that the employee died as a consequence of colon cancer.

5)  You are the natural children of the employee.  At the time of the employee’s death, [Claimant #2] had not attained the age of 18 and [Claimant #1] had not attained the age of 23 and was a full-time student who had been continuously[2] enrolled as a full-time student since attaining the age of 18.

6)  You both meet the definition of a “covered” child.

7)  On August 15, 2005, the Jacksonville district office issued a recommended decision. 

CONCLUSIONS OF LAW

The Final Adjudication Branch has reviewed the record and the recommended decision of August 15, 2005, and makes the following conclusions.

The employee was an employee of a DOE contractor at a DOE facility, as defined under section 7384 of the Act.  42 U.S.C. §§ 7384l(11), 7384l(12).

The determination under § 7384 of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2). 

You are the covered children of the deceased employee, and the employee’s death certificate shows that the employee died as a consequence of lung cancer.  42 U.S.C. § 7385s-3(d)(2).  Therefore, you are entitled to death benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer.  42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(c)(2).

Jacksonville, FL

Mark Stewart

Hearing Representative

[1] As stated in the December 16, 2002 recommended decision, the employee was employed at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee, from July 1, 1970 to June 28, 1985, and he wore a dosimetry badge.

EEOICPA Fin. Dec. No. 10012834-2006 (Dep’t of Labor, February 21, 2007)

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 or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, your claim for benefits under Part E of the Act is accepted.

STATEMENT OF THE CASE

On September 10, 2003, the FAB issued a final decision which concluded that your father was a member of the Special Exposure Cohort based on his employment at the Portsmouth Gaseous Diffusion Plant (GDP), a Department of Energy (DOE) facility, and that he was diagnosed with colon cancer after beginning that employment.  For those reasons, the FAB concluded that you, as a surviving child, were entitled to compensation under Part B.

On March 13, 2003, you filed a DOE F 350.2 (Request for Review by Physicians Panel) based on colon cancer having been caused by your father’s work at a DOE facility.  A copy of your father’s death certificate shows that his death was due to metastatic mucinous adenocarcinoma.  A copy of your father’s autopsy report indicates that colon cancer had metastasized to the peritoneum, omentum, intestines, stomach and liver.

You submitted a copy of your birth certificate which shows that your date of birth is April 23, 1947.  A copy of your father’s death certificate shows that he was born on August 16, 1922, and died on November 26, 2002, and that he was widowed at the time of his death.

The Social Security Administration (SSA) provided an itemized statement of earnings for the period of January 2000 to December 2004 which shows that you had no earnings reported for that period.  A letter from the Department of Veteran Affairs (DVA), Cleveland Regional Office, dated April 21, 2006, shows that you are entitled to receive benefits at the 100% rate, effective December 1, 1997, and that such entitlement continued to the date of this letter.  Copies of DVA Rating Decisions, dated March 23, 1995 and April 29, 1997, show that you were found to be permanently and totally disabled from December 30, 1975, and that post-traumatic stress disorder (PTSD) was found to be totally disabling from March 9, 1994.

On January 10, 2007, the district office issued a recommended decision which concluded that because your father was a DOE contractor employee who was entitled to compensation under Part B of the Act, it was established that he contracted a covered illness through exposure to radiation at a DOE facility.  The recommended decision also concluded that his death was at least as likely as not aggravated, contributed to, or caused by that radiation.  The district office found that, at the time of your father’s death, you were incapable of self-support.  For those reasons, the district office concluded that you, as his surviving child, are entitled to $125,000.00 under Part E.

On January 22, 2007, the FAB received written notification that you waive any and all objections 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 benefits on March 13, 2003.

2.         By final decision dated September 10, 2003, the FAB determined that your father was employed at a DOE facility and was entitled to compensation under Part B for an occupational illness, colon cancer, which was diagnosed after the beginning of that employment.

3.         Your father died on November 26, 2002, due to metastatic mucinous adenocarcinoma which had originated in the colon.

4.         You are a surviving child of [Employee], and were incapable of self-support at the time of his death.

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

CONCLUSIONS OF LAW

The term “covered child” means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).  You were 54 years old at the time of your father’s death.  Based on information provided by SSA and DVA, you had not been paid wages for at least the period of 2000 to 2004 and you were found to be totally (100%) disabled due to PTSD and other disabling conditions since at least March 9, 1994 and continuing until the time of your father’s death on November 26, 2002.

Based on the final decision of September 10, 2003, I have determined that, as provided by 42 U.S.C. § 7385s-4(a), colon cancer (resulting in metastatic mucinous adenocarcinoma) was contracted by your father through exposure to a toxic substance at a DOE facility.  The evidence of record establishes that his death was at least as likely as not aggravated, contributed to, or caused by that exposure.  For those reasons, I conclude that, as his surviving child, you are entitled to $125,000.00 as provided by 42 U.S.C. § 7385s-3(a)(1).

Cleveland, OH

Tracy Smart, Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10017360-2006 (Dep’t of Labor, August 22, 2006)

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 stated below, your claim for benefits under Part E of the Act is denied.

STATEMENT OF THE CASE

On April 22, 2002, you filed a claim under EEOICPA for benefits as a surviving child of [Employee].  A copy of your mother’s death certificate shows that she died on October 18, 1999.  A copy of your birth certificate shows that your date of birth is [Claimant’s date of birth].

On February 16, 2006, the Cleveland district office advised you of the criteria which must be met to establish that you are a “covered child” under Part E of the Act and requested that you submit documentation of your underlying condition and its severity at the time of you mother’s death.

In response to a telephone call from you to the district office, your were sent another letter on February 22, 2006, requesting that you provide medical evidence from your treating physician that provides a history of your condition(s), to include the first date of diagnosis and the first date of disability.

On March 3, 2006, the district office received a letter from Dr. Henry Gupton, dated February 23, 2006, in which he states that you have been his patient since 1991.  He lists your medical problems as including diabetes mellitus, fibromyalgia, crippling arthritis with need for a wheelchair at times, walker and/or cane as well.  Dr. Gupton states that you also suffer from hypothyroidism, GERD, hyperlipedemia, cataracts, back spasms, depression, restless leg syndrome, sleep disturbances, hypertension, osteoporosis, dependent edema, a knee replacement, and other joint problems.  He states that you were definitely incapable of self-support in October 1999.  Also received were treatment records for the period of May 20, 1998, to October 7, 1998, regarding moderately severe carpal tunnel syndrome of the left wrist.  An open carpal tunnel release was performed on July 13, 1998.  The final post-surgical report of October 7, 1998, indicates that you were doing very well and had full range of motion.

Also received on March 3, 2006, was a summary of FICA earnings, stamped by the Social Security Administration office in Oak Ridge, TN, for the years of 1968 through 1976.

Because Dr. Gupton’s summary of your medical status and his opinion that you were incapable of self-support at the time of your mother’s death was not corroborated by the submitted medical evidence, the district office sent you a letter on May 3, 2006, which discussed the evidence you had submitted and explained that the evidence did not address your status as of the date of your mother’s death.  You were asked to provide medical records for 1998 and 1999 that documented all of your medical conditions and their severity as of October 1999.  You were also asked to provide evidence, if any, showing that any other government agency had found you to be disabled as of October 1999.

On May 17, 2006, the district office received over 80 pages of medical records, the majority of which address the period after the time of your mother’s death.  Records from the latter part of 1999 refer to your complaints of sore knees, elbows, and wrists, and of your being upset because of your mother’s death.  You were treated for an upper respiratory infection in December 1999.  Records which refer to your use of a walker, wheelchair and/or motorized scooter are all from the period subsequent to your mother’s death.  In a letter dated May 17, 2006, the district office discussed the contents of these records and the need for you to submit documentation of the severity of your medical conditions proximate to October 1999.  You were again requested to provide evidence, if any, showing that any other government agency had found you to be disabled as of October 1999.  You were advised to provide the requested information by June 3, 2006.  There is no indication in the record that you responded to that request.

On June 9, 2006, the district office recommended denial of your claim for compensation finding that you do not meet the criteria defining “covered child” under Part E. 

FINDINGS OF FACT

1.      You filed a claim for benefits as a surviving child of [Employee].

2.      Your mother died on October 18, 1999.

3.      You were over the age of 23 years on the date of your mother’s death.

4.      You did not provide evidence sufficient to establish that you were incapable of self-support on the date of your mother’s death.

CONCLUSIONS OF LAW

I have reviewed the June 9, 2006 recommended decision.  I find that you have not filed any objections to the recommended decision and that the 60-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

The term “covered child” means a child of the employee who, at the time of the employee’s death, was:  under the age of 18 years; or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years; or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

The evidence of record shows that you were 60 years old at the time of your mother’s death.  The evidence of record is not sufficient to establish that you were incapable of self-support on your mother’s date of death.

Therefore, your claim must be denied because the evidence does not establish that you meet the definition of a “covered child” as defined by 42 U.S.C. § 7385s-3(d)(2).

Cleveland, OH

Anthony Zona

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10037246-2005 (Dep’t of Labor, November 2, 2005)

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, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim for survivor benefits for your father’s lung cancer under § 7385s of the Act is hereby denied. 

STATEMENT OF THE CASE

On January 23, 2002, you filed Form EE-2, Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act), under § 7384u of the EEOICPA.  You stated your father, the employee, a uranium worker, was born on November 30, 1904 and died on October 10, 1972.  You stated that you had applied for an award under the Radiation Exposure Compensation Act. 

On March 4, 2002, the Department of Justice verified that you had filed as the eligible surviving beneficiary of the employee and had been approved for an award for $100,000.00 under section 5 of the Radiation Exposure Compensation Act on December 12, 1994 for the medical condition of lung cancer.

On August 7, 2002, a Final Decision was issued awarding you monetary benefits in the amount of $50,000.00 under §7384u(e).

On June 28, 2005, you filed a claim for benefits under § 7385s of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act.  You were sent a letter asking whether you were under the age of 18 at the time of the employee’s death; whether you were a full time student under the age of 23 at the time of the employee’s death or regardless of age, whether you were incapable of self support at the time of the employee’s death.  This letter also requested that you provide a copy of your birth certificate, a copy of the adoption decree, a copy of the death certificate.  You were asked to answer the above questions and submit the requested documents within 30 days of the date of the request.

On August 25, 2005, the district office received your signed statement which indicated that you were not under the age of 18 at the employee’s death; you were not a full time student under the age of 23 at the time of the employee’s death nor were you incapable of self support at the time of the employee’s death.  You did not submit your birth certificate, adoption decree, marriage certificate or the employee’s death certificate.

On August 29, 2005, the Denver district office issued a recommended decision finding that you are the surviving beneficiary of the covered employee but that you were not eligible to receive compensation.  The case was forwarded to the Final Adjudication Branch for review.

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all 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).  

On October 6, 2005, the Final Adjudication Branch received your written notification waiving any and all objections to the recommended decision.

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

FINDINGS OF FACT

1.      On June 28, 2005, you filed for survivor benefits under § 7385s of the Act.

2.      On March 4, 2002, the Department of Justice verified that you had filed as the eligible surviving RECA beneficiary of the employee and had been approved for an award under section 5 of the Radiation Exposure Compensation Act on December 12, 1994 for your father’s medical condition of lung cancer.

3.      On August 7, 2002, a Final Decision was issued awarding you monetary benefits in the amount $50,000.00.

4.      The Department of Justice verified that you were the eligible surviving beneficiary of the employee and had been approved for an award under section 5 of the Radiation Exposure Compensation Act for lung cancer.

5.      You did not submit the employee’s death certificate or your birth certificate, adoption decree or marriage certificate.

6.      You submitted your signed statement that you were not under the age of 18 at the time of the employee’s death, you were not a full time student under the age of 23 at the time of the employee’s death nor were you medically incapable of self support at the time of the employee’s death.

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

CONCLUSIONS OF LAW

1.      The Final Adjudication Branch hereby finds the employee was a section 5 uranium worker  pursuant to 42 U.S.C. § 7385s-5(c) and contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill.

2.      You are a section 5 payment recipient pursuant to 42 U.S.C. § 7385s-5(b). 

3.      You have not established you are the eligible surviving beneficiary pursuant to § 7385s-3(d) of the Act.

4.   You are not entitled to monetary benefits for the employee’s lung cancer pursuant to § 7385s of the Act. 

Denver, Colorado

Joyce L. Terry

District Manager

Election for survivors under Part E

EEOICPA Fin. Dec. No. 105471-2009 (Dep’t of Labor, October 8, 2009)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the above claim 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 under Part B of EEOICPA for survivor benefits is denied.  The claim under Part E for the employee’s whole body impairment is accepted in the amount of $12,500.00.

STATEMENT OF THE CASE

On October 9, 2001, [Employee] filed a Form EE-1, claiming under Part B for his bladder cancer.  Medical records, including pathology reports, confirmed that the employee was diagnosed with bladder cancer on April 16, 1993, as well as a squamous cell carcinoma of the left ear on June 8, 1999, and squamous cell carcinoma of the right cheek on August 20, 2003.

The employee submitted a Form EE-3, on which he stated that he wore a dosimetry badge while working for the Union Carbide Corporation, a Department of Energy (DOE) contractor, from September 3, 1945 to July 31, 1981.  DOE confirmed the employee’s employment for Carbon and Carbon Chemicals Company (a former name of Union Carbide) at the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, Tennessee, from September 17, 1945 to January 28, 1947, and from July 25, 1947 to July 31, 1981.

On July 3, 2002, FAB issued a final decision accepting the employee’s claim under Part B as a member of the Special Exposure Cohort (SEC) with bladder cancer, and awarded him $150,000.00 and medical benefits for that illness.  On January 17, 2006, FAB issued another final decision under Part B, accepting the employee’s claim and awarding him medical benefits for his squamous cell carcinomas of the left ear and right cheek on the ground that those cancers were “at least as likely as not” (a 50% or greater probability) related to radiation exposure.  And on July 11, 2008, FAB issued a final decision accepting the employee’s claim and awarding him medical benefits under Part E of EEOICPA for the same conditions–bladder cancer and squamous cell carcinoma of the left ear and right cheek.

On July 30, 2008, the employee requested impairment benefits for his covered illnesses under Part E of EEOICPA.  However, he died on November 17, 2008, prior to the adjudication of his impairment claim. 

On December 11, 2008, [Claimant] submitted a Form EE-2 to the district office, claiming for survivor benefits under Parts B and E of EEOICPA.  In support of her claim, [Claimant] submitted a marriage certificate showing that she married the employee on April 10, 1950, and the employee’s death certificate showing his cause of death as fractures of the first and second cervical vertebrae.  The death certificate also indicated that [Claimant] was the employee’s spouse on the date of his death. 

As specified under Part E, permanent impairment is defined as a decreased function in a body part(s) or organ(s) established by medical evidence as the result of the covered employee contracting a covered illness through exposure to a toxic substance at a DOE facility.  In a letter dated May 16, 2009, [Claimant] requested that the district office proceed with the impairment portion of her claim.  By letter dated July 13, 2009, [Claimant]‘s authorized representative requested that the impairment rating be performed by a district medical consultant (DMC).  Therefore, the case was referred to a DMC for an impairment rating.  In his report dated August 3, 2009, the DMC opined that the employee had reached maximum medical improvement for his conditions of bladder and skin cancers and had a whole body impairment rating for the accepted conditions of bladder cancer and skin cancers of 5%.

On September 2, 2009, the district office issued a recommended decision, concluding that under Part E, [Claimant] is entitled to $12,500.00 for the employee’s 5% whole body impairment due to his bladder cancer and skin cancers.  The total percentage points were multiplied by $2,500 to calculate the amount of the recommended award.  The district office also recommended denial of [Claimant]‘s claim under Part B since the employee had previously received the compensation benefits payable under that Part.

On September 9, 2009, the Final Adjudication Branch received written notification that [Claimant] waived any and all objections to the recommended decision.  After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On October 9, 2001, the employee filed a claim for benefits under EEOICPA.

2. The employee was diagnosed with bladder cancer, squamous cell carcinoma of the left ear, and skin cancer of the right cheek.

3. FAB issued a final decision under Part B that awarded the employee the full amount of monetary benefits payable for his bladder cancer, squamous cell carcinoma of the left ear and skin cancer of the right cheek.  It also issued a final decision awarding the employee medical benefits under Part E for those same conditions.

4. The employee filed a request for impairment benefits, but died prior to the adjudication of that request.  His cause of death was listed as cervical fractures of that C1 and C2 vertebrae.

5. [Claimant] filed a claim for survivor benefits and established that she was the employee’s spouse at the time of death and had been married to him for at least one year prior to that date.

6. The medical evidence establishes that prior to his death, the employee had reached maximum medical improvement and had a whole body impairment due to his bladder and skin cancers of 5%.

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

CONCLUSIONS OF LAW

The 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) (2009).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted, or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part B and Part E of the Act.  42 U.S.C. §§ 7384s(e)(3)(A), 7385s-3(d)(1).  However, with respect to her survivor claim under Part B, the record establishes that the employee already received the lump-sum benefit of $150,000.00 available under Part B.  Therefore, because the lump-sum available under Part B has already been paid, [Claimant] is not entitled to any additional compensation under that Part, and her claim for compensation is denied.  42 U.S.C. § 7384s(a).

As for her claim under Part E of EEOICPA, if a covered Part E employee dies after filing a claim but before monetary benefits under Part E are paid, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the monetary benefits that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment.  Under those circumstances, the survivor would not be entitled to the $125,000.00 lump-sum survivor payment under Part E because the employee’s death would not have been caused by the covered illness(es).  42 U.S.C. § 7385s-1(2)(B).

As found above, the employee in this matter died as a result of fractures of C1 and C2 vertebrae, which were not related to his work-related exposure to toxic substances.  Therefore, [Claimant] is entitled to the amount of contractor employee compensation that the employee would have received if his death had not occurred before compensation was paid, in this case, his impairment benefits.

The amount of contractor employee compensation under Part E for a covered DOE contractor employee is based, in part, on a determination of the employee’s minimum impairment rating in accordance with the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, expressed as a number of percentage points.  The employee (or the survivor in this case) is eligible to receive an amount equal to $2,500 multiplied by the number of percentage points.  42 U.S.C. §§ 7385s-1(2)(B), 7385s-2(b).

The medical evidence shows that the employee had a whole body impairment of 5% as result of his accepted covered illnesses.  [Claimant], standing in the shoes of the employee following her election, is therefore entitled to monetary benefits of $12,500.00 for impairment due to the employee’s bladder cancer and skin cancers.  See 42 U.S.C. §7385s-2(a)(2). 

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10047228-2008 (Dep’t of Labor, August 28, 2008)

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), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your Part E claim for impairment benefits due to the employee’s skin cancers has been approved for $40,000.00.  You have also been approved for the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006).

STATEMENT OF THE CASE

On August 15, 2001, [Employee], hereinafter referred to as the employee, filed an EE-1 in which he claimed for benefits under EEOICPA for basal cell carcinoma (BCC) and a deteriorating liver.  On November 26, 2001, the employee filed a Request for Review by Medical Panels/Physician Panel form for the same conditions with the Department of Energy (DOE).  A death certificate verifies the employee’s death on January 1, 2006.  On January 30, 2006, you filed a Form EE-2 in which you claimed for survivor benefits, based on the employee’s BCC of the upper mid-chest, squamous cell carcinoma (SCC) in situ of the right sideburn, SCC of the left ear, and pancytopenia. 

In cases where the employee dies due to non-covered illnesses after filing a claim under Part E of EEOICPA but before payment is issued, the survivor may elect to receive the amount the employee would have received under Part E if he or she had not died prior to payment. You chose to do so in a letter received June 16, 2008.

While the employee did not specifically claim SCC, he did submit evidence supporting the diagnosis of SCC and a National Institute for Occupational Safety and Health (NIOSH) dose reconstruction was begun that incorporated both SCC and BCC prior to his death.  This is sufficient to justify inclusion of the SCC in the impairment calculations.

On May 10, 2006, the FAB issued a final decision accepting your Part B claim for BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  The decision found that the employee was diagnosed with BCC of the chest on November 23, 1992, BCC of the right sideburn on November 8, 1994, and SCC in situ of the left helical rim on January 19, 2000.  The decision found that the employee had covered employment at the Oak Ridge Gaseous Diffusion Plant from December 28, 1945 to January 19, 1976, and at the Paducah Gaseous Diffusion Plant from January 20, 1976 to October 31, 1981.  Personnel records verified that the employee worked for DOE contractor Union Carbide during his covered employment.

The employee’s death certificate identified the only cause of death as gastrointestinal hemorrhage and a date of death of January 1, 2006.  The certificate identifies you as the employee’s spouse at the time of death.  No evidence was submitted supporting the claimed conditions contributing or causing the employee’s death.  A marriage certificate verifies you were married to the employee for more than a year prior to his death.

A December 12, 2007 report by a District Medical Consultant (DMC) determined that toxic exposure at the covered facilities was not a significant factor in aggravating, contributing to, or causing the employee’s death.

On June 16, 2008, the district office received your request for an impairment evaluation. Attached to the request was medical documentation to assist a DMC in making an impairment evaluation.

The district office received the DMC’s report dated July 25, 2008.  Following review of the medical evidence, the DMC calculated the employee’s whole body impairment due to the accepted conditions of BCC of the sideburn and chest and SCC of the left ear in accordance with the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and mentioned specific tables and page numbers of the Guides in support of the rating.  The DMC also concluded that the employee was at maximum medical improvement.  The DMC determined that the employee’s whole body rating was 16% for the accepted conditions of three skin cancers. 

On August 8, 2008, the Jacksonville district office issued a recommended decision finding that you are entitled to $40,000.00 in benefits for the employee’s 16% whole body impairment due to his accepted conditions of BCC of the sideburn and chest and SCC of the left ear.  The total percentage points of 16% were multiplied by $2,500 to calculate the amount of the award.[1] Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.

On August 15, 2008, the FAB received written notification that you waived any and all objections to the recommended decision. 

On August 15, 2008, you indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that you had neither pled guilty to nor been convicted of workers’ compensation fraud.

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

FINDINGS OF FACT

1. You filed a claim for survivor benefits under Part E of EEOICPA based on BCC of the upper mid-chest, SCC in situ of the right sideburn, SCC of the left ear, and pancytopenia.

2. Your claim for the employee’s BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim was previously accepted for medical benefits in a final decision issued by FAB under Part B on May 22, 2006.  The accepted cancer of the sideburn was BCC rather than the claimed SCC.

3. The employee reached maximum medical improvement of his skin cancers at his death.

4. The DMC calculated a whole body impairment of 16% due to the employee’s skin cancers.

5. Exposure to a toxic substance at the covered facilities where the employee worked was not a significant factor in aggravating, contributing to, or causing the employee’s death.  Also, the claimed illnesses did not cause or contribute to the employee’s death.

6. You were married to the employee for over a year prior to his death and were married to him at the time of his death.

7. You elected to receive the amount the employee would have received under Part E if he had not died of a non-covered illness prior to payment.

Based on the above-noted findings of fact, 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).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted 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).

A determination under Part B that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).

The term “covered spouse” means a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.  42 U.S.C. § 7385s-3(d)(1).  You are the employee’s covered spouse.

In a case in which the employee’s death occurred after the employee applied under Part E and before compensation was paid to the employee, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive the amount of compensation that the employee would have received due to wage-loss and/or permanent impairment if the employee’s death had not occurred before compensation was paid to the employee.  42 U.S.C. § 7385s-1(2)(B).  You chose to receive the amount of impairment benefits the employee would have received for his skin cancers.

I conclude that the employee reached maximum medical improvement and that he has been determined to have had a whole body impairment of 16% as a result of his skin cancers.  The amount of impairment benefits payable under Part E for a covered DOE contractor employee is based on a determination of the minimum impairment rating of the employee, in accordance with the Guides, expressed as a number of percentage points.  The employee receives an amount equal to $2,500.00 multiplied by the number of percentage points.  42 U.S.C. § 7385s-2(a)(1), (b).

Therefore, I conclude that you are entitled to $40,000 in monetary benefits for the employee’s 16% whole body impairment due to his BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  You are also entitled to reimbursement of the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006). 

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10055714-2007 (Dep’t of Labor, April 11, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (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 accepted for survivor benefits, but your claim for impairment benefits under the Act is denied.

STATEMENT OF THE CASE

On January 31, 2003, [Employee] (hereinafter referred to as “the employee”) filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer.  In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition. 

On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act.  Another final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000 based on a 96% impairment rating for his pharynx cancer and lung cancer.  However, the employee died on July 1, 2006, prior to the payment of the funds awarded for impairment.  By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim. 

On July 24, 2006, you submitted a claim for survivor benefits under the Part E of the Act.  In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on February 6, 1981, and the employee’s death certificate, showing that you were the employee’s spouse on the date of death, July 1, 2006, and that the employee died of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis. 

On September 30, 2006, the district office issued a recommended decision that you are entitled to receive a lump-sum survivor award of $125,000.00. 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  On October 16, 2006, the FAB received your letter of objection and request for a hearing dated October 16, 2006.  The hearing was held on December 12, 2006 in Birmingham , Alabama.

A claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  By letter dated December 22, 2006, the transcript was forwarded to you.  No response was received.

OBJECTIONS

At the hearing, you testified that the Jacksonville district office issued a recommended decision to accept the employee’s claim for impairment benefits in the amount of $240,000.00.  The money was to be paid by electronic funds transfer (EFT) into an account held jointly by you and the employee.  The account had been opened as a SouthTrust Bank account.  SouthTrust and Wachovia completed a merger in October of 2005.

You provided testimony, supported by documents submitted by your attorney and the case record, that you completed an EN-20 form, and provided account information to the Department of Labor (DOL) with the account number [Number deleted].  Your son, [Employee’s child], faxed and over-night mailed the EN-20 form to the DOL on June 28, 2006.  On June 29, 2006, the Treasury Department attempted to send the electronic funds transfer (EFT) but the EFT could not be completed.  DOL notified you of this occurrence on that same day and requested that you provide new account information.  On June 29, 2006, [Employee’s child] again faxed and over-night mailed a new EN-20 form to the DOL.  On the new EN-20, you provided the Wachovia account number [Number deleted].  The employee passed away on July 1, 2006.  On or about July 6, 2006, the Treasury Department transmitted the funds to your account.  DOL subsequently determined that the employee had died before the $240,000.00 was actually paid the second time, and the $240,000.00 EFT was removed from your account.

You testified that the only difference between the SouthTrust account number and the Wachovia account number is that the Wachovia number has a “1000” at the beginning and a “1” at the end; the middle “[Number Deleted]” is identical in both numbers.  You stated that you continue to use the SouthTrust account number. 

Both at the hearing and in a December 13, 2006 letter, your attorney argued that since the Treasury Department paid the money before the employee died, the receipt of the money is immaterial.  He cited the Procedure manual at E-600(8)(a)(1) which states, “If a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies.”

The issue here is whether you are entitled to receive the impairment award issued prior to the employee’s death, but rejected by your bank.

Your attorney argues that the procedure manual actually states if a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies.  The section of the Procedure Manual quoted by your attorney, in its entirety, states:

If a paper check has been mailed to the employee, the payment must be cancelled.  The employee must be able to endorse the check.  If the payment is made via electronic fund transfer (EFT), the payment should not be cancelled.  For more information on cancellation procedures, refer to EEOICPA Bulletin No. 04-10.[1]

EEOICPA Bulletin Nos. 02-12 (issued July 31, 2002) and 04-10 (issued March 16, 2004) describe the payment process as beginning when payment is authorized by DEEOIC and ending either when the payment is received in the beneficiary’s account, or when Treasury (or the beneficiary) cancels the payment.  If Treasury cancels the payment, the National Office voids the payment record and a new payment process is initiated.  Action Item No. 9 in Bulletin No. 04-10 states that “The District Director must determine whether a repayment to the current payee will be required.  For example, if the payment is cancelled because the employee or claimant died before receipt, he/she is not going to be paid a lump sum.” 

Therefore, in accordance with the policies of the DEEOIC, since the employee did not receive the impairment payment prior to his death, a new determination must be made concerning your entitlement as a survivor.

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

FINDINGS OF FACT

1.         On January 31, 2003, the employee filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer. 

2.         In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition. 

3.         On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act. 

4.         A final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000.00 based on a 96% impairment rating for his pharynx cancer and lung cancer. 

5.         The employee died on July 1, 2006, prior to the payment of the funds awarded for impairment. 

6.         By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim. 

7.         On July 24, 2006 you filed a claim for survivor benefits under the Act.

8.         You were the employee’s spouse at the time of death and at least a year prior.

9.         Squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis caused or contributed to the employee’s death.

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

CONCLUSIONS OF LAW

I have reviewed the record, the recommended decision issued by the Jacksonville district office on September 30, 2006 and the subsequently submitted objections.

You meet the definition of a survivor under Part E of the Act.  42 U.S.C. § 7385s-3(d)(1).

A prior final decision under Part B of the Act concluded that the employee was an employee of a contractor or subcontractor entitled to compensation for an occupational illness.  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1) and 7385s(2).  The employee died as a result of squamous cell carcinoma of the larynx, and non-small cell adenocarcinoma of the left lower lobe of the lung.

Under the Act, if a covered Part E employee dies after filing a claim but before compensation is paid under Part E of the Act, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the compensation that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment.  The survivor is not entitled to the $125,000.00 lump-sum payment because death was not caused by the claimed covered condition. 

However, if the covered illness or illnesses aggravated, contributed to, or caused a covered Part E employee’s death, then the survivor does not have the option to choose to receive the compensation that would have otherwise been payable to the covered Part E employee if living.[2] 

I conclude that the employee was a DOE contractor employee with cancer of the pharynx and lung cancer due to exposure to a toxic substance at a DOE facility.  42 U.S.C. §§ 7385s(1) and 7385s-4(b).  The employee’s death was a result of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung.  Therefore, you are entitled to benefits in the amount of $125,000.00 for the employee’s death due to squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung.  42 U.S.C. § 7385s-3.

Jacksonville, FL

Jeana F. LaRock, Hearing Representative

Final Adjudication Branch

[1] Federal (EEOICPA) Procedure Manual, Chapter E-600(8)(a)(1) (September 2005).

Eligibility

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

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

EEOICPA Fin. Dec. No. 60958-2005 (Dep’t of Labor, February 24, 2005)

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

On August 25, 2004, you filed a claim for survivor benefits, Form EE-2, under Part B of the EEOICPA, as the employee’s sister, and on the basis that he had heart problems and lung cancer.  Birth and death certificates confirmed that the employee was a widower when he died on August 6, 1998, that his parents pre-deceased him and that you are his sister.  You submitted a pathology report of June 2, 1998, confirming that he had lung cancer.  On the EE-3 Employment History Form, you stated that he worked at the Paducah Gaseous Diffusion Plant, for F.H. McGraw from 1951 to 1954, and again from the mid 1970’s to the mid 1980’s.  Social Security records and an affidavit from his sister-in-law (who was also a co-worker) confirmed that he worked for F.H. McGraw from 1951 to 1954.

On September 9, 2004, you were informed of the type of survivors of a deceased employee who may be eligible for benefits under Part B of the EEOICPA.  You were specifically informed that an employee’s sister is not such an eligible survivor. 

On December 14, 2004, the district office issued a recommended decision concluding you were not entitled to compensation under Part B of the Act, since you are not an eligible survivor of the employee, as defined in 42 U.S.C. § 7384s(e) of the EEOICPA. 

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

FINDINGS OF FACT

1.  You filed a claim for survivor benefits under Part B of the EEOICPA on August 25, 2004.

2.  You are the sister of the employee.

3.  He was diagnosed with lung cancer in June 1998 and died on August 6, 1998.

Based on these facts, the undersigned makes the following:          

CONCLUSIONS OF LAW

Section 30.310(a) of the EEOICPA implementing regulations provides that “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision…and whether a hearing is desired.”  20 C.F.R. § 30.310(a).  You have not filed any objection to the recommended decision.  I have reviewed the record in this case, 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).   In cases in which a covered employee is deceased, § 7384s of Part B of the Act provides that payment may be made “only” to a surviving spouse, children, parents, grandchildren or grandparents, of the covered employee.  42 U.S.C. § 7384s.

Since you are the sister of the deceased employee, there is no basis under Part B of the Act to pay compensation benefits to you. 

For the foregoing reasons, the undersigned must find that you have not established your claim for compensation under Part B of the EEOICPA and hereby denies your claim.  Adjudication of your Part E claim is deferred until issuance of the Interim Final Regulations.

Washington, DC

Richard Koretz

Hearing Representative

EEOICPA Fin. Dec. No. 72762-2006 (Dep’t of Labor, December 2, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning these claims for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA  or the Act).  These claims are accepted in the amount of $25,000 per claimant for a total of $150,000.

STATEMENT OF THE CASE

On June 21, 2002, [Employee’s spouse] filed a claim (Form EE-2) under EEOICPA as the surviving spouse of [Employee].  The file contains the death certificate of [Employee] showing that [Employee] died on January 17, 1994 and identifies [Employee’s spouse] (maiden name) as his surviving spouse.  The file also contains the marriage certificate confirming that [Employee’s spouse] married [Employee] on October 13, 1939.  In addition, the file contains verification from Diebold, Inc. confirming that [Employee] worked for Diebold (AKA Herring-Hall Marvin Safe Company[1]) from February 13, 1941 through October 1, 1982.  The file further contains pathology reports and medical records confirming [Employee]‘s diagnosis of basal cell carcinoma of the left sideburn in 1994, basal cell carcinoma of the right nasal ala in 1993 and lung cancer in 1994. 

On September 11, 2002, the case record was forwarded to the National Institute for Occupational Safety and Health (NIOSH) to determine the probably that [Employee] sustained cancer in the performance of duty while employed at the AWE/DOE facility.  Using the dose estimates provided by NIOSH and the software program NIOSH-IREP, the district office calculated the probability of causation (PoC) for the lung cancer.  These calculations show that the probability that [Employee’s] lung cancer was caused by exposure to radiation during his employment with Diebold is 96.55%.  Including the basal cell carcinomas in the dose reconstruction would increase the PoC; therefore, these cancers are considered causally related.

On June 21, 2005, the Cleveland district office issued a recommended decision.  The district office found [Employee] to be a “covered employee with cancer” and recommended acceptance of [Employee’s spouse]‘s claim.  The district office’s recommendations were accepted by the Final Adjudication Branch and on July 28, 2005 the FAB issued a final decision which awarded [Employee’s spouse] compensation in the amount of $150,000.  On August 19, 2005 payment in the amount of $150,000 was authorized to [Employee’s spouse].  The payment was deposited in her account by electronic funds transfer (EFT) on August 31, 2005.  On September 2, 2005, the Fiscal Office received the death certificate of [Employee’s spouse] showing that she died on August 2, 2005.  On September 7, 2005, the Fiscal Office received notification that the lump sum payment to [Employee’s spouse] was reversed and returned to the Department of Treasury.

On September 22, 2005, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] filed claims (Form EE-2) as the surviving children of [Employee].  The claimants each submitted their birth certificate showing [Employee’s spouse] and [Employee] as their parents.  In addition, [Claimant #1], [Claimant #2] and [Claimant #5] submitted their marriage certificates documenting their surname change.   

On October 13, 2005, the Director of the Division of Energy Employee Occupational Illness Compensation issued a Director’s Order which vacated the final decision awarding benefits to [Employee’s spouse].  Since [Employee’s spouse] died prior to payment, the Director found that compensation shall be paid in equal shares to all living children of the employee.

Accordingly, on October 20, 2005, the Cleveland district office issued a recommended decision awarding benefits to [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6].  On November 2, 2005, the FAB received signed waivers of any and all objections to the recommended decision from each claimant.  After considering the evidence of record, the waivers of objections, and the NIOSH report, the FAB hereby makes the following:

FINDINGS OF FACT

1.         [Employee] worked at a covered facility, Diebold (AKA Herring-Hall Marvin Save Company) during a period of residual contamination and AWE facility designation.      

2.         [Employee] was diagnosed with lung cancer and multiple basal cell carcinomas after beginning employment at the covered facility.

3.         There is at least a 96.55% probability that [Employee’s] cancers were caused by exposure to radiation during his employment at Diebold.

4.         [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the surviving children of [Employee] and his eligible beneficiaries.

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

CONCLUSIONS OF LAW

To facilitate a claim for cancer under Part B of EEOICPA, the Act explains that a “covered employee with cancer” is, among other things, an AWE employee who contracted that cancer after beginning employment at an AWE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty.  42 U.S.C. § 7384l(9)(B).  To establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs OWCP to forward a complete copy of the case record to NIOSH for dose reconstruction.[2]  20 C.F.R. § 30.115. 

The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is at least a 96.55% probability that [Employee]‘s cancers were related to his employment at Diebold.  Since the probability of causation is greater than 50%, it is determined that [Employee] incurred cancer in the performance of duty at an AWE facility. 

Section 7384s of the EEOICPA, which provides the order of payment for compensation payable under Part B of the Act, states that if there is no surviving spouse at the time payment, such payment shall be made in equal shares to all children of the covered employee.  The submissions of the employee’s death certificate as well as the death certificate of his surviving spouse and the claimants birth certificates showing the employee as their father is sufficient to establish that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the employee’s surviving children and eligible beneficiaries. 

Accordingly, these claims for compensation in the amount of $25,000 each for a total of $150,000 are hereby approved.    

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

[1] According to the DOE Covered Facility List, Herring-Hall is identified as an AWE facility from 1943 through 1951; residual radiation from 1952 through 1993; and a DOE facility from 1994 through 1995 due to remediation http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (As of December 2, 2005).

EEOICPA Fin. Dec. No. 10061144-2007 (Dep’t of Labor, April 30, 2008)

NOTICE OF FINAL DECISION

This is the final decision of the Final Adjudication Branch (FAB) on 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 for the employee’s skin cancer under Part E of EEOICPA is denied. 

STATEMENT OF THE CASE

On February 17, 2005, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1 claiming for benefits for chronic obstructive pulmonary disease (COPD) and chronic beryllium disease (CBD), as well as a request for a review by a Physicians Panel for asbestosis, heart disease, COPD and CBD.  On the Form EE-3, the employee alleged that he was employed as a driver in construction, an operator C & B, and a gulper at the Savannah River Site (SRS) for the period February 1, 1952 to January 31, 1957.  He alleged that he worked in Building 221-F, the B-line, and the “sample aisle.”  The district office used the Oak Ridge Institute for Science and Education (ORISE) database to confirm that the employee worked at the SRS from March 26, 1952 to May 17, 1957.  However, no job titles were listed by ORISE.

On June 5, 2006, the employee filed a new Form EE-1 in which he claimed for skin cancer.  A pathology report in the record establishes that the employee was diagnosed with squamous cell carcinoma (SCC) of the left helical rim on May 12, 2006.

On July 5, 2006, FAB issued a final decision accepting the employee’s claim for asbestosis and COPD as “covered” illnesses under Part E of EEOICPA and denying his claim for CBD and asbestosis under Part B.  That final decision also denied the employee’s claim for CBD and asbestosis under Part E.  As part of that decision, FAB remanded the employee’s claim to the Jacksonville district office for consideration of the newly submitted Form EE-1 claiming for skin cancer.

On January 5, 2007, [Claimant] filed a Form EE-2 in which she claimed for survivor benefits based on the skin cancer, COPD, asbestosis and pulmonary hypertension of her late spouse, the employee.  In support of her claim, [Claimant] submitted her marriage certificate showing that she married the employee on July 9, 1955, and the employee’s death certificate showing that she was the employee’s spouse when he died on December 31, 2006 from cardio-respiratory arrest that was due to or as a consequence of refractory hypertension with shock. 

In a February 13, 2007 report, a District Medical Consultant (DMC) reviewed the evidence in the record and concluded that the medical evidence was insufficient to establish that the employee’s claimed condition of skin cancer was at least as likely as not due to exposure to a toxic substance at a Department of Energy (DOE) facility and that such exposure was a significant factor in aggravating, contributing to, or causing the claimed condition of skin cancer.

On March 1, 2007, the Jacksonville district office sent [Claimant] a letter advising her of the deficiencies of her Part E claim for the employee’s skin cancer.  In that letter, the district office advised [Claimant] that it was unable to establish exposure to a specific toxic substance and/or that the toxic substance(s) caused, contributed to, or aggravated the employee’s skin cancer.  The district office explained the needed information and requested that she submit factual evidence of the types of toxic substances to which the employee was exposed and medical evidence from a physician that linked the employee’s exposures to the claimed condition and allowed time for her response.  No response or additional information was received.

On June 20, 2007, FAB issued a final decision accepting [Claimant]‘s claim for the employee’s death due to pulmonary hypertension under Part E of EEOICPA since it was 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 employee’s pulmonary hypertension, and that exposure to such toxic substances was related to employment at the DOE facility and was a significant factor that caused or contributed to the death of the employee.  That decision also remanded her claim for the employee’s skin cancer under Part B for a new dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).

The U.S. Department of Labor maintains a database called the Site Exposure Matrices (SEM).  The district office performed a search of the SEM and found that there was insufficient evidence to establish a causal relationship between exposure to a toxic substance while employed at the SRS and the claimed condition of skin cancer. 

On December 20, 2007, FAB issued another final decision denying [Claimant]‘s claim under Part B of EEOICPA since it was not at least as likely as not that the employee’s skin cancer was related to radiation doses incurred while working at a Department of Energy facility, based on the new dose reconstruction by NIOSH.

On February 14, 2008, the district office sent [Claimant] a second development letter regarding her claim for the employee’s death due to skin cancer under Part E that advised her that there was no evidence to support a relationship between the employee’s exposure to toxic substances and his skin cancer.  In that letter, the district office explained the needed information, requested additional medical evidence (including the types of toxic substances to which the employee may have been exposured or any information from a physician that linked the employee’s toxic exposure to the claimed condition) and allowed time for [Claimant] to respond.  No response or additional information was received.

On February 19, 2008, the district office issued a recommended decision to deny the claim for survivor benefits based on the employee’s death due to skin cancer under Part E of EEOICPA.  The recommended decision informed [Claimant] that she had sixty days to file any objections, and she did not file any objections to the recommended decision within that period. 

Following the issuance of the recommended decision, FAB performed another search of the SEM, which revealed that carbon has the potential to cause skin cancer and that the labor category of “operator” at the SRS could potentially be exposed to that toxic substance.  The search also showed that arsenic benzo(a)pyrene and mineral oil, which can also cause skin cancer, were present in Building 221-F. 

Thereafter, FAB referred the case file to a DMC for review of the new information and an opinion.  The DMC reviewed the evidence in the record and concluded in an April 24, 2008 report that the available information was insufficient to establish that workplace toxic exposures at a DOE facility were a significant factor that caused, contributed to, or aggravated the claimed condition of skin cancer, even on an “at least as likely as not” basis.  He further concluded that the medical evidence did not show that the employee’s skin cancer played any role in his death.[1]

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

FINDINGS OF FACT

1. The employee filed a claim for benefits under EEOICPA for skin cancer.

2. The employee was diagnosed with skin cancer.   

3. The employee was a DOE contractor employee at the SRS from March 26, 1952 to May 17, 1957.

4. The employee died on December 31, 2006 from cardio-respiratory arrest due to or as a consequence of refractory hypertension with shock.   

5. [Claimant] filed a claim for survivor benefits under EEOICPA based on the employee’s death due to skin cancer. 

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

7. The medical evidence is insufficient to establish a causal link between the employee’s skin cancer and exposure to a toxic substance.

Based on the above-noted findings of fact, FAB also 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) (2008).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part E that appears at 42 U.S.C. § 7385s-3(d)(1).  However, a survivor is only entitled to compensation under Part E if the employee would have been entitled to compensation under Part E for a covered illness and if 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 illness and death of the employee.  42 U.S.C. § 7385s-4(c)(1). 

The evidence does not establish that 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 employee’s skin cancer.  Therefore, I conclude that [Claimant] is not entitled to benefits for the employee’s death due to skin cancer under Part E because there is insufficient evidence to prove that the employee’s skin cancer was related to toxic exposure at a DOE facility.

Jacksonville, FL

Jeana LaRock

Hearing Representative

Final Adjudication Branch

Grandchildren

EEOICPA Fin. Dec. No. 96582-2008 (Dep’t of Labor, November 19, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted 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 survivor claim under Part B and Part E is denied. 

STATEMENT OF THE CASE

On July 9, 2008, [Claimant] filed a Form EE-2, claiming for survivor benefits for the renal cell hypernephroma and the death of her late grandfather, [Employee], hereinafter referred to as the employee.  [Claimant] submitted evidence that she is the grandchild of the employee.  However, the case file contains evidence that three of the employee’s children are still living.

Previously, on November 27, 2007, FAB issued a final decision accepting the claims of the employee’s three surviving children under Part B of EEOICPA.  FAB found that they were the employee’s children and stepchildren, and that the employee’s spouse at the time of his death was no longer living.  FAB therefore concluded that the three surviving children of the employee were his only eligible survivors and awarded each child an equal share of the available benefits under Part B.

On March 13, 2008, FAB also issued a final decision under Part E of EEOICPA accepting the claim of the surviving child of the employee who was under the age of 18 at the time of the employee’s death.  FAB concluded that this one child of the employee was his only eligible survivor under Part E and awarded him the available benefits under that Part.

On July 10, 2008, the Jacksonville district office sent [Claimant] a development letter explaining the survivorship requirements under Part B and Part E and requested that she submit evidence that she met the requirements.

On September 5, 2008, the Jacksonville district office issued a recommended decision to deny [Claimant’s claim], concluding that as a grandchild of the employee, [Claimant] is not an eligible survivor of the employee under either Part B or Part E of EEOICPA.  The district office noted in the recommended decision that under Part E grandchildren are ineligible, and that under Part B grandchildren are ineligible if there are living children of the employee.

The recommended decision informed [Claimant] that she had 60 days to file any objections, and that period ended on November 4, 2008.  [Claimant] has not filed any objections. 

After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On July 9, 2008, [Claimant] filed a claim for survivor benefits.

2. [Claimant] is a grandchild of the employee.

3. On November 27, 2007, a final decision was issued accepting the claims of the employee’s three surviving children under Part B and awarding the maximum available Part B benefits.

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

CONCLUSIONS OF LAW

The 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) (2008).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

Under Part B, grandchildren of the employee are only eligible survivors if there is not an eligible spouse, child or parent of the employee living at time of payment.  42 U.S.C. § 7384s(e)(1).  Three of the employee’s children were living at time of payment and were determined to be the only eligible survivors under Part B in a prior final decision.  Therefore, [Claimant] does not meet the definition of a survivor under Part B of EEOICPA.

Under Part E, only covered spouses or children of the employee who are living at time of payment are potentially eligible for benefits.  42 U.S.C. § 7385s-3(c).  Grandchildren are not eligible for benefits under Part E.  Therefore, [Claimant] does not meet the definition of a survivor under Part E of EEOICPA.

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 98835-2009 (Dep’t of Labor, January 30, 2009)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above claims 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 claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] for survivor benefits under Part B of EEOICPA for the employee’s lung cancer.  Further, FAB denies the claims of [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] under Part E for the employee’s death.

STATEMENT OF THE CASE

On July 22, 2003, [Employee’s Spouse] filed a Form EE-2 claiming for survivor benefits under Part B of EEOICPA.  On July 24, 2003, she also filed a request for assistance with the Department of Energy (DOE) under former Part D of EEOICPA as the surviving spouse of [Employee].  She claimed that the employee had contracted oat cell cancer.  In support of her claim and her request, she submitted an employment history indicating that [Employee] worked in security at the Lawrence Livermore National Laboratory (LLNL), from 1953 to 1996.  A representative of DOE verified that [Employee] worked as a security officer at LLNL, a DOE facility, from August 30, 1954 to December 24, 1974.  Employment records show that [Employee] was monitored for radiation exposure during his employment at LLNL.

The medical evidence of record includes an abstract from the Northern California Cancer Registry showing that [Employee] was diagnosed with lung cancer in June of 1967.  In addition, [Employee]‘s medical records include findings of a poorly differentiated carcinoma involving the right middle and right lower lobes of the lung with metastases following a thoracotomy performed on June 10, 1967.

On March 3, 2008, the Secretary of Health and Human Services (HHS) designated the following class 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 Special Exposure Cohort.  This SEC became effective April 2, 2008.

The record shows that [Employee’s Spouse] and [Employee] were married on July 14, 1940, and a copy of [Employee]‘s death certificate establishes that they were married at the time of his death on March 4, 1996.  On September 4, 2008, FAB issued a final decision accepting the Part B claim of [Employee’s Spouse] for the employee’s lung cancer and her Part E claim for the employee’s death and awarded total compensation to her in the amount of $275,000.00.  However, prior to receiving payment, on September 21, 2008, [Employee’s Spouse] died and her claim was administratively closed on October 8, 2008.

On October 6, 2008, [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] each filed a Form EE-2 as the surviving grandchildren of [Employee].  Copies of a marriage certificate and a death certificate show that [Employee’s Son] was the son of [Employee] and [Employee’s Spouse], while a statement from [Employee’s Spouse] indicates that [Employee’s Son] was the only child of [Employee].  The marriage certificate shows that [Son’s Wife’s Maiden Name] and [Employee’s Son] were married on September 5, 1970, and the death certificate for [Employee’s Son] shows that he was married to [Son’s Wife] at the time of his death on April 10, 2008. 

[Claimant #1] provided a copy of her birth certificate showing that she is the daughter of [Name Deleted] and [Name Deleted] and was born on January 8, 1962.  She was seven years old at the time her mother married [Employee’s Son].  [Claimant #1] provided evidence that she lived in a regular parent-child relationship with [Employee’s Son], evidence that she utilized the last name of [Employee’s Son], miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the bride” at her wedding.  She also provided evidence of her change of name from [Claimant #1’s Maiden Name] to [Claimant #1’s Married Name]. 

[Claimant #2] provided a copy of his birth certificate showing that he is the son of [Name Deleted] and [Name Deleted] and was born on January 12, 1956.  He was fourteen years old at the time his mother married [Employee’s Son].  [Claimant #2] provided evidence that he lived in a regular parent-child relationship with [Employee’s Son], evidence that he utilizes the last name of [Employee’s Son] along with miscellaneous group family photos including weddings and outdoor activities. 

[Claimant #3] provided a copy of her birth certificate showing that she is the daughter of [Name Deleted] and [Name Deleted] and was born on January 8, 1962.  She was seven years old at the time her mother married [Employee’s Son].  [Claimant #3] provided evidence that she lived in a regular parent-child relationship with [Employee’s Son], evidence that she utilized the last name of [Employee’s Son], along with miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the bride” at her wedding.  She also provided evidence of her change of name from [Claimant #3’s Maiden Name] to [Claimant #3’s Married Name]. 

[Claimant #4] provided a copy of his birth certificate showing that he is the son of [Name Deleted] and [Name Deleted] and was born on April 1, 1957.  He was thirteen years old at the time his mother married [Employee’s Son].  [Claimant #4] provided evidence that he lived in a regular parent-child relationship with [Employee’s Son], evidence that he utilizes the last name of [Employee’s Son], along with miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the groom” at his wedding.   

On December 17, 2008, the Seattle district office recommended acceptance of the claims of [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] for survivor benefits under Part B of EEOICPA, on the ground that the employee is a member of the SEC who was diagnosed with lung cancer.  In addition to finding that the employee was now deceased, the district office also found that there was no living spouse, children, or parents of the employee.  The district office therefore concluded that [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] are the surviving grandchildren of the employee and are entitled to equal shares of the $150,000.00 survivor benefit payable under Part B.  The district office also recommended denial of their claims under Part E because grandchildren are not eligible to receive survivor benefits under Part E of EEOICPA.

On December 30, 2008, FAB received written statements from [Claimant #1], [Claimant #2] and [Claimant #4] indicating that they had never filed a tort suit or received a settlement based on the claimed condition.  They 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 condition, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  Further, they confirmed that [Employee] had no other biological children, stepchildren or adopted children other than [Employee’s Son].  On the same date, FAB received written notification indicating that [Claimant #1], [Claimant #2], and [Claimant #4] waived all rights to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision. 

On January 2, 2009, FAB received a written statement from [Claimant #3] indicating that she had never filed a tort suit or received a settlement based on the claimed condition.  She also indicated that she had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed condition, 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 confirmed that [Employee] had no other biological children, stepchildren or adopted children other than [Employee’s Son].  She also submitted a written notification indicating that she waives all rights to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision. 

On January 28, 2009, FAB received a written statement from [Claimant #1] confirming that the parents of [Employee], [Name Deleted], and [Name Deleted] are no longer living.

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

FINDINGS OF FAC

1.      On October 6, 2008, [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each filed a claim for survivor benefits as a surviving grandchild of [Employee] under EEOICPA

2.      [Employee’s Son] was the only child of [Employee], and he died on April 10, 2008.

3.      [Employee]‘s parents are no longer living.

4.      [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each lived in a regular parent-child relationship with [Employee’s Son] and their mother was married to [Employee’s Son].

5.      [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] have not filed or received any money from a tort suit or from a state workers’ compensation program based on the claimed condition, nor have they ever pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under any federal or state workers’ compensation law.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a) (2008).  [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each waived her/his right to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision issued on her/his claim for survivor benefits under EEOICPA.   

In order to be afforded coverage under Part B, a survivor must establish that the employee was diagnosed with an “occupational illness” incurred as a result of exposure to silica, beryllium and/or radiation, i.e., cancer, beryllium sensitivity, chronic beryllium disease or silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  Furthermore, the illness must have been incurred while the employee was in the performance of duty.  See 42 U.S.C. § 7384l(4)-(7), (9), (11).  These findings were made in the previous final decision on the claim of [Employee’s Spouse], which was administratively closed after she died on September 21, 2008.

The order of eligibility in a survivor claim under Part B is the employee’s spouse, then child, then parent, then grandchild, and finally grandparent.   See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.3 (September 2004).  The term “child” includes a stepchild who lived with an employee in a regular parent-child relationship.  See 42 U.S.C. § 7384s(e)(3)(B).  The term “grandchild” of an employee is a child of a child of that employee.  See 42 U.S.C. §§ 7384s(e)(1)(D), 7384s(e)(3)(B) and (D).  [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] are the surviving children of a child of the employee under § 7384s(e)(1)(D) and they are entitled to an equal share of the total survivor compensation payable under Part B ($150,000.00), which comes to $37,500.00 each.  See 42 U.S.C. §§ 7384s(e)(1)(D), 7384s(a)(1).

Under Part E of EEOICPA, the only survivors eligible for benefits are the employee’s spouse, or the employee’s children who were under the age of 18 at the time of the employee’s death, or under the age of 23 and a full-time student at the time of the employee’s death, or any age and incapable of self-support at the time of the employee’s death. The following survivors who are potentially eligible under Part B are not eligible for compensation under Part E of EEOICPA:  adult children (with the exception of those incapable of self-support at the time of the employee’s death), parents, grandchildren or grandparents of the deceased employee.  See Federal (EEOICPA) Procedure Manual, Chapter E-600.3a (September 2005).   [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] are not eligible survivors under Part E.  Accordingly, the claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] for survivor benefits under Part E are denied.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch

Marriage and divorce

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. 63743-2006 (Dep’t of Labor, November 21, 2006)

NOTICE OF FINAL DECISION FOLLOWINGREVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

OBJECTIONS

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

Based on these facts, the undersigned makes the following:     

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted under 20 C.F.R. § 30.313, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, including the letters of objection, and must conclude that no further investigation is warranted.

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

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

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

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

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

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

Washington, DC

Richard Koretz, Hearing Representative

Final Adjudication Branch

Non-claiming individuals

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

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

Seattle, WA

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch

Parents

EEOICPA Fin. Dec. No. 18528-2006 (Dep’t of Labor, February 8, 2008)

NOTICE OF FINAL DECISION

This is the Notice of Final Decision of the Final Adjudication Branch (FAB) concerning your claim for survivor benefits under Part B 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, your claim for survivor benefits is accepted.

STATEMENT OF THE CASE

On January 3, 2002, you filed a claim for survivor benefits under EEOICPA as a surviving parent of [Employee].  You claimed the employee was employed by Dow Chemical, Rockwell International and EG&G at the Rocky Flats Plant[1] from 1964 to 1966, and from June 1, 1981 to 1993.  The Department of Energy verified the employee was employed at the Rocky Flats Plant from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

You claimed the employee was diagnosed with ovarian cancer.  The pathology report of the tissue obtained on December 28, 1995 described a diagnosis of moderately differentiated endometrioid-type adenocarcinoma of the left ovary.

The employee’s death certificate showed she was born on March 31, 1946; died on January 25, 2001 at the age of 54; and was widowed.  The death certificate also listed [Employee’s Spouse] as her spouse; [Employee’s Father] as her father; and [Claimant] as her mother.  The death certificate for [Employee’s Spouse] showed he died on February 15, 2000, and was married to [Employee] (maiden name given).  The employee’s birth and hospital certificates showed [Employee] was born on March 31, 1946; to [Employee’s Father]and [Claimant].  [Employee’s Father]‘s death certificate showed he died on November 27, 1993.

On December 2, 2002, the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for reconstruction of the radiation dose the employee received in the course of her employment at the Rocky Flats Plant.  On February 17, 2006, a final decision was issued under Part B of EEOICPA denying your claim for survivor benefits based on a probability of causation of 26.93%, which showed that the employee’s cancer did not meet the 50% “at least likely as not” mandated level for compensability.

On August 6, 2007, the Secretary of the Department of Health and Human Services (HHS) designated the following classes of employees for addition to the Special Exposure Cohort (SEC):  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.  The SEC designations for these classes became effective on September 5, 2007.

A review of the evidence of record indicates that the employee had a period of employment aggregating 250 days during the SEC period (January 1, 1959 through December 31, 1966); was monitored for neutron exposures, as her name appears on the Neutron Dose Report (NDR)[2]; and was diagnosed with ovarian cancer, a specified cancer, more than five years after her first exposure to radiation at the Rocky Flats Plant.  Based on the SEC determinations for certain employees at the Rocky Flats Plant, a Director’s Order was issued on December 28, 2007 that vacated the prior decision issued under Part B.

On December 28, 2007, the district office issued a recommended decision to accept your claim for survivor benefits under Part B of EEOICPA and referred the case to the FAB for an independent assessment of the evidence and a final decision on your claim. 

On January 11, 2008, the FAB received your signed statement certifying that neither you nor the employee filed any lawsuits, tort suits, or state workers’ compensation claims; or received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

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

FINDINGS OF FACT

1. On January 3, 2002, you filed a claim for survivor benefits as the surviving parent of [Employee]. 

2. You are the surviving parent of [Employee], as supported by birth and death certificates.

3. The employee was employed at the Rocky Flats Plant, a covered DOE facility, from September 17, 1964 to July 25, 1966, and from June 1, 1981 to June 29, 1995.

4. Effective September 5, 2007, employees at the Rocky Flats Plant that worked from April 1, 1952 through December 31, 1958, and/or January 1, 1959, through December 31, 1966, and were monitored or should have been monitored for neutron exposure, were added to the SEC.

5. The employee has a period of employment at the Rocky Flats Plant aggregating 250 days during the SEC period, September 17, 1964 through July 25, 1966.

6. The employee was monitored for neutron dose exposure during the period September 17, 1964 to July 25, 1966, as confirmed by the NDR.

7. The employee was diagnosed with ovarian cancer (a specified cancer) on December 28, 1995. This diagnosis occurred more than five years after her first exposure to radiation at the Rocky Flats Plant.

8. The evidence of record contains your signed statement certifying that neither you nor the employee filed a lawsuit, tort suits, or state workers’ compensation claims; received any awards or benefits related to ovarian cancer; that you have not pled guilty or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and the employee had no children.

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

CONCLUSIONS OF LAW

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the FAB.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, the 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).  On January 11, 2008, the FAB received your written notification waiving any and all objections to the recommended decision.

Part B of EEOICPA provides benefits for an employee diagnosed with a specified cancer who is a member of the SEC if, and only if, that employee contracted the specified cancer after beginning employment at a DOE facility.  Such employee is considered “a covered employee with cancer.” 

On August 6, 2007, the Secretary of HHS designated the following classes of employees for addition to the SEC:  Employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were monitored or should have been monitored for neutron exposures while working at the Rocky Flats Plant in Golden, Colorado, for a number of work days aggregating at least 250 work days from April 1, 1952 through December 31, 1958 and/or January 1, 1959 through December 31, 1966, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.  The SEC designations for these classes became effective September 5, 2007. 

The employee is a member of the SEC as designated above and defined by 42 U.S.C. §§ 7384l(14)(C) and 7384q of the Act, and has been diagnosed with ovarian cancer, a specified cancer.  The FAB concludes that the employee is a “covered employee with cancer” pursuant to the requirements of 42 U.S.C. § 7384l(9)(A).

You have established that you are the employee’s eligible survivor, pursuant to 42 U.S.C. § 7384s(e)(3)(C) of the Act.  Therefore, you are entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s(a)(1) and (e)(1)(C).

Accordingly, your claim for survivor benefits for the employee’s ovarian cancer is approved for compensation under Part B of the Act.

Denver, Colorado

Anna Navarro

Hearing Representative

Final Adjudication Branch

Reimbursement of deceased employee’s medical expenses

EEOICPA Fin. Dec. No. 59062-2004 (Dep’t of Labor, September 13, 2004)

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 (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for survivor compensation for the condition of chronic beryllium disease. 

STATEMENT OF THE CASE

On June 2, 2003, the employee filed a claim for compensation under the EEOICPA based on asbestosis and other lung condition.  That claim was recommended for denial by the Seattle district office; however, additional medical documentation was received by the Final Adjudication Branch, who vacated the recommended decision by Remand Order dated September 8, 2003.  The district office performed additional development of the medical evidence and recommended acceptance of the claim and medical benefits for chronic beryllium disease and denial of the claim for asbestosis, which was affirmed by Final Decision of the Final Adjudication Branch on July 6, 2004.  Before payment could be issued, however, the employee passed away on June 12, 2004, and the claim was administratively closed.  On June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004, you filed claims for survivor benefits under the EEOICPA based on chronic beryllium disease (CBD).  A Form EE-3 (Employment History) previously filed by the employee indicated he worked at the Idaho National Environmental and Engineering Laboratory (INEEL) for Keiser Construction from January 1, 1954 to August 30, 1954 and for  Phillips Petroleum, Idaho Nuclear, Aerojet General, and EG&G Idaho from October 1, 1954 to March 1, 1992.  A representative of the Department of Energy (DOE) verified the worker’s employment at INEEL from October 7, 1957 to March 2, 1992.  INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.  See DOE, Office of Worker Advocacy, Facility List. 

Medical evidence of record includes a chest x-ray and a CT scan, both dated October 13, 1992, that indicated the employee had multiple pleural plaques, and a chest x-ray, dated May 1, 2002, that indicated emphysematous changes within his lungs, densely calcified pleural plaques on the left lung, and scarring and associated bullous changes within the right lung base.  In addition, the record includes a history of a clinical course of treatment of the employee for asbestosis and chronic obstructive pulmonary disease (COPD) dating from October 1992 to March 2003.  The employee’s pulmonary function test results, from October 13, 1992, showed an FVC of 3.62 and an FEV1 of 1.57, with an FEV1/FVC ratio of 43% before bronchodilators, and an FVC of 4.6 and FEV1 of 1.59 after bronchodilators.  The employee’s DLCO was markedly diminished at 11.77 or 35% of predicted. 

District Medical Consultant Robert E. Sandblom, M.D., reviewed the employee’s medical records, in a report dated January 5, 2004, and indicated the claimant had chest radiographic (or CT) abnormalities characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder. 

You provided copies of your birth certificates that indicate each of you is the natural child of the employee, and copies of the certificates of marriage of [Claimant 1] and [Claimant 4] documenting your name changes.  The file also contains a copy of the employee’s certificate of death that indicates the employee was widowed when he passed away on June 12, 2004.  

The Seattle district office determined that the employee was a covered beryllium employee as defined in § 7384l(7) of the EEOICPA.  See 42 U.S.C. § 7384l(7).  Further, the Seattle district office determined that the evidence submitted meets the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 7384l(13), a covered occupational illness as defined by § 7384l(8)(B).  See 42 U.S.C. § 7384l(8)(B) and (13).  Also, the district office determined that you are the survivors of the employee, as defined by § 7384s(e)(3), and that you are entitled to compensation in the amount of $37,500.00 each pursuant to §§ 7384s(a)(1) and (e)(1) of the EEOICPA.  See 42 U.S.C. § §7384s(a)(1) and (e)(1).  In addition, the district office concluded that you are entitled to reimbursement of medical expenses for the employee’s chronic beryllium disease, retroactive to the date he filed his claim, June 2, 2003, through June 12, 2004, the date he passed away. 

FINDINGS OF FACT

1. The employee filed a claim for asbestosis and other lung condition, on June 2, 2003.

2. You filed claims for survivor benefits for chronic beryllium disease on June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004. 

3. The employee was employed at INEEL, a covered DOE facility, from October 7, 1957 to March 2, 1992.

4. INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.

5. The employee is a covered beryllium employee who worked at INEEL during a period when beryllium dust, particles or vapor may have been present.

6. The findings in the medical evidence are consistent with a diagnosis of chronic beryllium disease based on the statutory criteria for a  diagnosis before January 1, 1993.

7. The onset of the employee’s chronic beryllium disease on October 13, 1992, occurred after his exposure to beryllium in the performance of duty.

8. The employee passed away on June 12, 2004, and was not survived by a spouse.

9. You are the natural children and survivors of the employee.

CONCLUSIONS OF LAW

On August 20 ([Claimant 4]), August 23 ([Claimant 2 and Claimant 1]), and September 1 ([Claimant 3]), 2004, the Final Adjudication Branch received your written notifications that you waive any and all rights to file objections to the recommended decision.  

In order to be afforded coverage under § 7384n(a) of the EEOICPA as a “covered beryllium employee,” the employee must have worked for a beryllium vendor and sustained occupational exposure to beryllium while:

(1)   employed at a Department of Energy facility; or

(2)   present at Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy;

during a period when beryllium dust, particles, or vapor may have been present at such a facility.  Further, the requisite exposure must be shown to have been “in the performance of duty,” which is presumed, absent substantial evidence to the contrary.  See 42 U.S.C. § 7384n(a); 20 C.F.R. § 30.205(1), (2) and (3). 

In addition, there must be medical documentation of the condition in order to be eligible for survivor’s benefits based on chronic beryllium disease:  

(B)For diagnoses before January 1, 1993, the presence of–  

(i)occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(ii)any three of the following criteria:

(I)Characteristic chest radiograph (or computed tomography (CT)) abnormalities.

(II)Restrictive or obstructive lung physiology testing or diffusing lung capacity defect

(III)Lung pathology consistent with chronic beryllium disease.

(IV)Clinical course consistent with chronic respiratory disorder.

(V)Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13)(B).  Based on the employee’s covered employment at a DOE facility, he was exposed to beryllium in the performance of duty.  See 42 U.S.C. § 7384n(a). 

The record contains medical evidence to show a diagnosis of CBD.  Medical reports include a chest x-ray and a CT scan that are characteristic of chronic beryllium disease showing that the employee had multiple pleural plaques.  The employee also had an abnormal pulmonary function test, and he was treated for lung disease over a period of years.  A review of the employee’s medical records by District Medical Consultant Robert E. Sandblom, M.D., dated January 5, 2004, indicated the claimant had abnormal chest radiographs characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder.  This evidence satisfies a required three of five criteria for a diagnosis of chronic beryllium disease before January 1, 1993.  See 42 U.S.C. § 7384l(13)(B).  The medical evidence indicates that a diagnosis of chronic beryllium disease existed at least by October 13, 1992.  Consequently, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease before January 1, 1993.

The record includes copies of each of your birth certificates indicating you are each a natural child of the employee, documentation showing the legal change of names of [Claimant 1] and [Claimant 4], and a copy of the employee’s death certificate that indicates he was widowed at the time of his death. 

The employee was a “covered beryllium employee” as defined in § 7384l(7) of the Act, and was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA.  See 42 U.S.C. §§ 7384l(7); 7384n(a).  Further, the medical evidence shows the presence of chronic beryllium disease, as provided for in § 7384l(13)(B) of the Act.  See 42 U.S.C. § 7384l(13)(B). 

For the foregoing reasons, the undersigned hereby accepts your claims for chronic beryllium disease.  You are each entitled to compensation in the amount of $37,500.00 pursuant to § 7384s(e)(A) of the Act.  See 42 U.S.C. § 7384s(e)(A).  Further, you are entitled to reimbursement of medical expenses the employee may have incurred, retroactive to the date of his application on June 2, 2003, for the condition of chronic beryllium disease.  See 42 U.S.C. § 7384t.

Seattle, Washington

James T. Carender

Hearing Representative, Final Adjudication Branch

EEOICPA Fin. Dec. No. 10047228-2008 (Dep’t of Labor, August 28, 2008)

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), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your Part E claim for impairment benefits due to the employee’s skin cancers has been approved for $40,000.00.  You have also been approved for the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006).

STATEMENT OF THE CASE

On August 15, 2001, [Employee], hereinafter referred to as the employee, filed an EE-1 in which he claimed for benefits under EEOICPA for basal cell carcinoma (BCC) and a deteriorating liver.  On November 26, 2001, the employee filed a Request for Review by Medical Panels/Physician Panel form for the same conditions with the Department of Energy (DOE).  A death certificate verifies the employee’s death on January 1, 2006.  On January 30, 2006, you filed a Form EE-2 in which you claimed for survivor benefits, based on the employee’s BCC of the upper mid-chest, squamous cell carcinoma (SCC) in situ of the right sideburn, SCC of the left ear, and pancytopenia. 

In cases where the employee dies due to non-covered illnesses after filing a claim under Part E of EEOICPA but before payment is issued, the survivor may elect to receive the amount the employee would have received under Part E if he or she had not died prior to payment.  You chose to do so in a letter received June 16, 2008.

While the employee did not specifically claim SCC, he did submit evidence supporting the diagnosis of SCC and a National Institute for Occupational Safety and Health (NIOSH) dose reconstruction was begun that incorporated both SCC and BCC prior to his death.  This is sufficient to justify inclusion of the SCC in the impairment calculations.

On May 10, 2006, the FAB issued a final decision accepting your Part B claim for BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  The decision found that the employee was diagnosed with BCC of the chest on November 23, 1992, BCC of the right sideburn on November 8, 1994, and SCC in situ of the left helical rim on January 19, 2000.  The decision found that the employee had covered employment at the Oak Ridge Gaseous Diffusion Plant from December 28, 1945 to January 19, 1976, and at the Paducah Gaseous Diffusion Plant from January 20, 1976 to October 31, 1981.  Personnel records verified that the employee worked for DOE contractor Union Carbide during his covered employment.

The employee’s death certificate identified the only cause of death as gastrointestinal hemorrhage and a date of death of January 1, 2006.  The certificate identifies you as the employee’s spouse at the time of death.  No evidence was submitted supporting the claimed conditions contributing or causing the employee’s death.  A marriage certificate verifies you were married to the employee for more than a year prior to his death.

A December 12, 2007 report by a District Medical Consultant (DMC) determined that toxic exposure at the covered facilities was not a significant factor in aggravating, contributing to, or causing the employee’s death.

On June 16, 2008, the district office received your request for an impairment evaluation. Attached to the request was medical documentation to assist a DMC in making an impairment evaluation.

The district office received the DMC’s report dated July 25, 2008.  Following review of the medical evidence, the DMC calculated the employee’s whole body impairment due to the accepted conditions of BCC of the sideburn and chest and SCC of the left ear in accordance with the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and mentioned specific tables and page numbers of the Guides in support of the rating.  The DMC also concluded that the employee was at maximum medical improvement.  The DMC determined that the employee’s whole body rating was 16% for the accepted conditions of three skin cancers. 

On August 8, 2008, the Jacksonville district office issued a recommended decision finding that you are entitled to $40,000.00 in benefits for the employee’s 16% whole body impairment due to his accepted conditions of BCC of the sideburn and chest and SCC of the left ear.  The total percentage points of 16% were multiplied by $2,500 to calculate the amount of the award.[1] Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.

On August 15, 2008, the FAB received written notification that you waived any and all objections to the recommended decision. 

On August 15, 2008, you indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that you had neither pled guilty to nor been convicted of workers’ compensation fraud.

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

FINDINGS OF FACT

1. You filed a claim for survivor benefits under Part E of EEOICPA based on BCC of the upper mid-chest, SCC in situ of the right sideburn, SCC of the left ear, and pancytopenia.

2. Your claim for the employee’s BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim was previously accepted for medical benefits in a final decision issued by FAB under Part B on May 22, 2006.  The accepted cancer of the sideburn was BCC rather than the claimed SCC.

3. The employee reached maximum medical improvement of his skin cancers at his death.

4. The DMC calculated a whole body impairment of 16% due to the employee’s skin cancers.

5. Exposure to a toxic substance at the covered facilities where the employee worked was not a significant factor in aggravating, contributing to, or causing the employee’s death.  Also, the claimed illnesses did not cause or contribute to the employee’s death.

6. You were married to the employee for over a year prior to his death and were married to him at the time of his death.

7. You elected to receive the amount the employee would have received under Part E if he had not died of a non-covered illness prior to payment.

Based on the above-noted findings of fact, 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).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted 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).

A determination under Part B that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).

The term “covered spouse” means a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.  42 U.S.C. § 7385s-3(d)(1).  You are the employee’s covered spouse.

In a case in which the employee’s death occurred after the employee applied under Part E and before compensation was paid to the employee, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive the amount of compensation that the employee would have received due to wage-loss and/or permanent impairment if the employee’s death had not occurred before compensation was paid to the employee.  42 U.S.C. § 7385s-1(2)(B).  You chose to receive the amount of impairment benefits the employee would have received for his skin cancers.

I conclude that the employee reached maximum medical improvement and that he has been determined to have had a whole body impairment of 16% as a result of his skin cancers.  The amount of impairment benefits payable under Part E for a covered DOE contractor employee is based on a determination of the minimum impairment rating of the employee, in accordance with the Guides, expressed as a number of percentage points.  The employee receives an amount equal to $2,500.00 multiplied by the number of percentage points.  42 U.S.C. § 7385s-2(a)(1), (b).

Therefore, I conclude that you are entitled to $40,000 in monetary benefits for the employee’s 16% whole body impairment due to his BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  You are also entitled to reimbursement of the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006). 

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

Spouse

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. 30971-2002 (Dep’t of Labor, March 15, 2004)

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

On June 10, 2002, you filed a Claim for Survivor Benefits under the EEOICPA, form EE-2, with the Denver district office, as the spouse of the employee, for multiple myeloma.  You indicated on the EE-3 form that your husband was employed by the U.S. Coast and Geodetic Survey at various locations, including the Nevada Test Site, from early 1951 to December 1953. 

You also submitted marriage certificate and death certificates establishing that you were married to the employee from March 7, 1953 until his death on November 5, 1999, tax forms confirming his employment with the U.S. Coast and Geodetic Survey in 1951 and 1952 and a document from the Nevada Field Office of the Department of Energy (DOE) indicating that they had records of your husband having been exposed to radiation in 1951 and 1952.  Additionally, you submitted a document stating that your claim under the Radiation Exposure Compensation Act had been approved in the amount of $75,000; you stated that you had declined to accept the award and that was confirmed by a representative of the Department of Justice on August 12, 2002.

On July 1, 2002, you were informed of the medical evidence needed to support that your husband had cancer.  You submitted records of medical treatment, including a pathology report of April 19, 1993, confirming that he was diagnosed with multiple myeloma.   

On July 22, 2002, a DOE official stated that, to her knowledge, your husband’s employers were not Department of Energy contractors or subcontractors.  On July 29, 2002, you were advised of the type of evidence you could submit to support that your husband had employment which would give rise to coverage under the Act, and given 30 days to submit such evidence.  You submitted statements from co-workers confirming that he did work at the Nevada Test Site for a period from October to December 1951 and again for a few weeks in the spring of 1952. 

On August 29, 2002, the district office issued a recommended decision that concluded that you were not entitled to compensation benefits because the evidence did not establish that your husband was a covered employee.

By letter dated September 20, 2002, your representative objected to the recommended decision, stating that your husband was a covered employee in that he worked at the Test Site while employed by the U.S. Coast and Geodetic Survey, which was a contractor of the Atomic Energy Commission (AEC), a predecessor agency of the DOE.  The representative also submitted documents which indicated that the U.S. Coast and Geodetic Survey performed work, including offering technical advice and conducting surveys, for other government agencies, including the AEC and the military, and that it was covered by a cooperative agreement between the Secretary of Commerce and the Secretary of the Army.  On April 1, 2003, the case was remanded to the district office for the purpose of determining whether your husband’s work at the Nevada Test Site was performed under a “contract” between the DOE and the U.S. Coast and Geodetic Survey.

The documents submitted by your representative were forwarded to the DOE, which responded on May 28, 2003 that dosimetry records existed for your husband “showing that he was with the USC&GS but after further research it was established that the USC&GS was in fact not a contractor or subcontractor of the AEC during those years.”  The documents were also reviewed by the Branch of Policy, Regulations and Procedures in our National Office.  On November 7, 2003, the district office issued a recommended decision to deny your claim.  The decision stated that the evidence submitted did not support that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the Nevada Test Site, and, concluded that you were not entitled to benefits under § 7384s of the EEOICPA as your husband was not a covered employee under § 7384l.  42 U.S.C. §§ 7384l and 7384s.

In a letter dated January 7, 2004, your representative objected to the recommended decision.  He did not submit additional evidence but did explain why he believes the evidence already submitted was sufficient to support that your husband was a covered employee under the Act.  Specifically, he stated that the evidence supported that your husband worked at the Nevada Test Site in 1951 and 1952 in the course of his employment with the U.S. Coast and Geodetic Survey, an agency which was performing a survey at the request of the AEC, and that the latter agency issued him a badge which established that he was exposed to radiation while working there.  He argued that one must reasonably conclude from these facts that his work at the Nevada Test Site did constitute covered employment under the EEOICPA. 

FINDINGS OF FACT

You filed a claim for survivor benefits under the EEOICPA on June 10, 2002.

You were married to the employee from March 7, 1953 until his death on November 5, 1999.

Medical records, including a pathology report, confirmed he was diagnosed with multiple myeloma in April 1993.

In the course of his employment by the U.S. Coast and Geodetic Survey, your husband worked, and was exposed to radiation, at the Nevada Test Site, a DOE facility. 

The evidence does not support, and the Department of Energy has denied, that the U.S. Coast and Geodetic Survey was a contractor of the DOE at the time your husband worked at the Nevada Test Site.

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  The same section of the regulations provides that in filing objections, the claimant must identify his objections as specifically as possible.  In reviewing any objections submitted, under 20 C.F.R. § 30.313, the Final Adjudication Branch will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case and your representative’s letter of January 2, 2004 and must conclude that no further investigation is warranted.

The purpose of the EEOICPA, as stated in its § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.”  42 U.S.C. § 7384d(b).  

A “covered employee with cancer” includes, pursuant to § 7384l(9)(B) of the Act, an individual who is a “Department of Energy contractor employee who contracted…cancer after beginning employment at a Department of Energy facility.”  Under § 7384l(11), a “Department of Energy contractor employee” may be an individual who “was employed at a Department of energy facility by…an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or…a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”  42 U.S.C. § 7384l(9)(B),(11).

EEOICPA Bulletin NO. 03-26 states that “a civilian employee of a state or federal government agency can be considered a ‘DOE contractor employee’ if the government agency employing that individual is (1) found to have entered into a contract with DOE for the accomplishment of…services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.”  The same Bulletin goes on to define a “contract” as “an agreement that something specific is to be done in return for some payment or consideration.”    

Section 30.111(a) states that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”  20 C.F.R.  § 30.111(a).

As noted above, the evidence supports that your husband was exposed to radiation while working for the U.S. Coast and Geodetic Survey at the Nevada Test Site in late 1951 and early 1952, that he was diagnosed with multiple myeloma in April 1993, and that you were married to him from March 7, 1953 until his death on November 5, 1999. 

It does not reasonably follow from the evidence in the file that his work at the Nevada Test Site must have been performed under a “contract” between the U.S. Coast and Geodetic Survey and the AEC.  Government agencies are not private companies and often cooperate with and provide services for other agencies without reimbursement.  The DOE issued radiation badges to military personnel, civilian employees of other government agencies, and visitors, who were authorized to be on a site but were not DOE employees or DOE contractor employees.  No evidence has been submitted that your husband’s work at the Nevada Test Site was pursuant to a “contract” between the U.S. Coast and Geodetic Survey and the AEC and the DOE has specifically denied that his employing agency was a contractor or subcontractor at that time.  Therefore, there is no basis under the Act to pay compensation benefits for his cancer.

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

Washington, DC

Richard Koretz

Hearing Representative

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

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

OBJECTIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 53272-2004 (Dep’t of Labor, March 31, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On June 27, 2002, the Final Adjudication Branch issued a Final Decision concluding that [Employee] (the employee) was a covered employee with chronic silicosis as defined in § 7384r of the Act (and therefore entitled to compensation in the amount of $150,000), and that he was entitled to medical benefits related to chronic silicosis retroactive to September 17, 2001, pursuant to § 7384t of the Act.  See 42 U.S.C. § 7384t.  Payment of compensation was processed on July 25, 2002.  The Final Adjudication Branch also denied the employee’s claims based on chronic beryllium disease and asbestosis.  

On January 20, 2004, you filed a Form EE-2 (Claim for Survivor Benefits Under EEOICPA) seeking compensation as the spouse of the employee. 

On March 11, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that the employee’s acceptance of compensation in the amount of $150,000 pursuant to § 7384s(a)(1) of the Act, was in full satisfaction of all claims of or on behalf of the employee against the United States, a Department of Energy contractor or subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in § 7385 of the Act.  See 42 U.S.C. §§ 7384s(a)(1), 7385b. 

On March 29, 2004, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

1. On September 17, 2001, the employee filed a claim for benefits under the EEOICPA based, in part, on the condition of chronic silicosis. 

2. On June 27, 2002, the Final Adjudication Branch accepted the employee’s claim for chronic silicosis, and determined that he was entitled to compensation in the amount of $150,000 and medical benefits related to the treatment of chronic silicosis retroactive to September 17, 2001.

3.Payment of compensation in the amount of $150,000 was tendered on July 25, 2002. 

4. On January 20, 2004, you filed a claim for survivor benefits.

CONCLUSIONS OF LAW

Section 7384s(a)(1) of the Act specifically provides that “[A] covered employee, or the survivor of that covered employee if the employee is deceased, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.”  See 42 U.S.C. § 7384s(a)(1).  The record in this case shows that, on July 25, 2002, the employee was issued compensation in the amount of $150,000 based on his diagnosis of chronic silicosis, a covered occupational illness under the Act. 

Further § 7385b provides that the one-time payment under the Act is a full settlement of an EEOICPA claim: 

The acceptance by an individual of payment of compensation under Part B of this subchapter with respect to a covered employee shall be in full satisfaction of all claims of or on behalf of that individual against the United States, against a Department of Energy contractor of subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in section 7385 of this title. 

42 U.S.C. § 7385b. 

Since you are claiming eligibility as the surviving spouse of an employee who previously received $150,000 under the EEOICPA, no additional compensation is available to you.  Therefore, your claim must be denied.

For the above reasons, the Final Adjudication Branch concludes that the evidence of record does not allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Seattle, Washington

Julie L. Salas

Hearing Representative, Final Adjudication Branch

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

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OBJECTIONS

The following objections were presented:

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

Cleveland, Ohio

Tracy Smart

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 62217-2005 (Dep’t of Labor, January 13, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim for benefits under Part B of the Act is accepted.  A copy of this decision will be provided to your Power of Attorney.

STATEMENT OF THE CASE

On September 30, 2004, you filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  Your claim was based, in part, on the assertion that the employee worked for a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-2 that you were filing for the employee’s lung cancer.  On the Form EE-3, Employment History, you stated the employee was employed at the gaseous diffusion plant (K-25) in Oak Ridge, Tennessee for the period of April 1, 1944 to April 1, 1952.  Through the Oak Ridge Institute for Science and Education (ORISE) employment database, employment was verified from June 6, 1945 to October 23, 1951.  An autopsy report established that the employee was diagnosed with lung cancer.

On December 14, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for the employee’s lung cancer.  On December 17, 2004, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision. 

In order for the employee to qualify as a member of the Special Exposure Cohort (SEC) under § 7384l(14)(A) of 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, and, during such employment – –

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

(ii)worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. 

42 U.S.C. § 7384l(14)(A).

Through the Oak Ridge Institute for Science and Education (ORISE) employment database, employment was verified at K-25 from June 6, 1945 to October 23, 1951, a period greater than 250 days.  You indicated on the Form EE-3 that the employee wore a dosimetry badge.  ORISE confirmed that he was assigned badges 01386, 00214, and 13992. 

FINDINGS OF FACT

1.  On September 30, 2004, you filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.  

2.  The medical evidence is sufficient to establish that the employee was diagnosed with lung cancer.

3.  Lung cancer is a specified cancer under § 7384l(17)(A) of the Act and § 30.5(dd)(2) of the implementing regulations.  42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(dd)(2).

4.  The employee was employed at K-25 from  June 6, 1945 to October 23, 1951.  The employee is a covered employee as defined in § 7384l(1) of the Act.  42 U.S.C. § 7384l(1).

5.  The employee is a member of the Special Exposure Cohort, as defined in § 7384l(14)(A) of the Act. 42 U.S.C. § 7384l(14)(A).

6.  In proof of survivorship, although you were unable to submit your marriage certificate, you submitted a copy of the employee’s death certificate, legal Oak Ridge Plant documents that establish your marriage to the employee, and one of your children’s birth certificates which indicates that you and the employee were married on January 1, 1924.  Therefore, you have established that you are a survivor as defined by § 30.5(ee) of the implementing regulations.  20 C.F.R. § 30.5(ee).

7.  The district office issued the recommended decision on December 14, 2004.

8.  On December 17, 2004, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW

I have reviewed the record on this claim and the recommended decision issued by the district office on December 14, 2004.  I find that the employee is a member of the Special Exposure Cohort, as that term is defined in the Act; and that the employee’s lung cancer is a specified cancer under the Act and implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A); 20 C.F.R. § 30.5(dd)(2).

I find that the recommended decision is in accordance with the facts and the law in this case, and that you, as an eligible survivor of the employee as defined by the Act, are entitled to compensation in the amount of $150,000 pursuant to Part B of the Act on the basis of the employee’s lung cancer.  42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a).

Jacksonville, FL

Jeana F. LaRock

District Manager

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

NOTICE OF FINAL DECISIONAFTER REVIEW OF THE WRITTEN RECORD

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

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

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

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

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

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

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

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

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

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

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

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

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

William B. Talty

Hearing Representative

Final Adjudication Branch

Stepchildren

EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003)

NOTICE OF FINAL DECISION REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  The recommended decision was to deny your claim.  You submitted objections to that recommended decision.  The Final Adjudication Branch carefully considered the objections and completed a review of the written record.  See 20 C.F.R. § 30.312.  The Final Adjudication Branch concludes that the evidence is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On July 31, 2001, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), stating that you were the daughter of [Employee], who was diagnosed with cancer, chronic silicosis, and emphysema.  You completed a Form EE-3, Employment History for Claim under the EEOICPA, indicating that from December 2, 1944 to May 30, 1975, [Employee] was employed as a heavy mobile and equipment mechanic, for Alaska District, Corps of Engineers, Anchorage, Alaska. 

On August 20, 2001, a representative of the Department of Energy (or DOE) indicated that “none of the employment history listed on the EE-3 form was for an employer/facility which appears on the Department of Energy Covered Facilities List.”  Also, on August 29, 2001, a representative of the DOE stated in Form EE-5 that the employment history contains information that is not accurate.  The information from the DOE lacked indication of covered employment under the EEOICPA.

The record in this case contains other employment evidence for [Employee].  With the claim for benefits, you submitted a “Request and Authorization for TDY Travel of DOD Personnel” Form DD-1610, initiated on November 10, 1971 and approved on November 11, 1971.  [Employee] was approved for TDY travel for three days to perform work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers beginning on November 15, 1971.  He was employed as a Mobile Equipment Mechanic WG-12, and the purpose of the TDY was noted “to examine equipment for potential use on Blair Lake Project.”  The security clearance was noted as “Secret.”  You also submitted numerous personnel documents from [Employee]‘s employment with the Alaska District Corp of Engineers.  Those documents include a “Notification of Personnel Action” Form SF-50 stating that [Employee]‘s service compensation date was December 2, 1944, for his work as a Heavy Mobile Equipment Mechanic; and at a WG-12, Step 5, and that he voluntarily retired on May 30, 1975. 

The medical documentation of record shows that [Employee] was diagnosed with emphysema, small cell carcinoma of the lung, and chronic silicosis.  A copy of [Employee]‘s Death Certificate shows that he died on October 9, 1990, and the cause of death was due to or as a consequence of bronchogenic cancer of the lung, small cell type.

On September 6 and November 5, 2001, the district office wrote to you stating that additional evidence was needed to show that [Employee] engaged in covered employment.  You were requested to submit a Form EE-4, Employment History Affidavit, or other contemporaneous records to show proof of [Employee]‘s employment at the Amchitka Island, Alaska site covered under the EEOICPA.  You did not submit any additional evidence and by recommended decision dated December 12, 2001, the Seattle district office recommended denial of your claim.  The district office concluded that you did not submit employment evidence as proof that [Employee] worked during a period of covered employment as required by § 30.110 of the EEOICPA regulations.  See 20 C.F.R. § 30.110. 

On January 15 and February 6, 2002, you submitted written objections to the recommended denial decision.  The DOE also forwarded additional employment information.  On March 20, 2002, a representative of the DOE provided a Form EE-5 stating that the employment history is accurate and complete.  However, on March 25, 2002, a representative of the DOE submitted a “corrected copy” Form EE-5 that indicated that the employment history provided in support of the claim for benefits “contains information that is not accurate.”  An attachment to Form EE-5 indicated that [Employee] was employed by the Army Corps of Engineers for the period July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska.  Further, the attachment included clarifying information:

Our records show that the Corps of Engineers’ was a prime AEC contractor at Amchitka.  [Employee]‘s Official Personnel Folder (OPF) indicates that he was at Forth Richardson and Elmendorf AFB, both in Alaska.  The OPF provided no indication that [Employee] worked at Amchitka, Alaska.  To the best of our knowledge, Blair Lake Project was not a DOE project.

Also, on April 3, 2002, a representative of the DOE submitted a Form EE-5 indicating that Bechtel Nevada had no information regarding [Employee], but he had a film badge issued at the Amchitka Test Site, on November 15, 1971.  The record includes a copy of Appendix A-7 of a “Manager’s Completion Report” which indicates that the U. S. Army Corps of Engineers was a prime AEC (Atomic Energy Commission) Construction, Operations and Support Contractor, on Amchitka Island, Alaska.

On December 10, 2002, a hearing representative of the Final Adjudication Branch issued a Remand Order.  Noting the above evidence, the hearing representative determined that the “only evidence in the record with regard to the Army Corps of Engineers status as a contractor on Amchitka Island is the DOE verification of its listing as a prime AEC contractor . . . and DOE’s unexplained and unsupported verification [of [Employee]‘s employment, which] are not sufficient to establish that a contractual relationship existed between the AEC, as predecessor to the DOE, and the Army Corps of Engineers.”  The Remand Order requested the district office to further develop the record to determine whether the Army Corps of Engineers had a contract with the Department of Energy for work on Amchitka Island, Alaska, and if the work [Employee] performed was in conjunction with that contract.  Further the Remand Order directed the district office to obtain additional evidence to determine if [Employee] was survived by a spouse, and since it did not appear that you were a natural child of [Employee], if you could establish that you were a stepchild who lived with [Employee] in a regular parent-child relationship.  Thus, the Remand Order requested additional employment evidence and proof of eligibility under the Act.   

On January 9, 2003, the district office wrote to you requesting that you provide proof that the U.S. Army Corps of Engineers had a contract with the AEC for work [Employee] performed on his TDY assignment to Amchitka Island, Alaska for the three days in November 1971.  Further, the district office requested that you provide proof of your mother’s death, as well as evidence to establish your relationship to [Employee] as a survivor.

You submitted a copy of your birth certificate that indicated that you were born [Name of Claimant at Birth] on October 4, 1929, to your natural mother and natural father [Natural Mother] and [Natural Father].  You also submitted a Divorce Decree filed in Boulder County Court, Colorado, Docket No. 10948, which showed that your biological parents were divorced on October 10, 1931, and your mother, [Natural Mother] was awarded sole custody of the minor child, [Name of Claimant at Birth].  In addition, you submitted a marriage certificate that indicated that [Natural Mother] married [Employee] in the State of Colorado on November 10, 1934.  Further, you took the name [Name of Claimant Assuming Employee’s Last Name] at the time of your mother’s marriage in 1934, as indicated by the sworn statement of your mother on March 15, 1943.  You provided a copy of a Marriage Certificate to show that on August 19, 1949, you married [Husband].  In addition, you submitted a copy of the Death Certificate for [Name of Natural Mother Assuming Employee’s Last Name] stating that she died on May 2, 1990.  The record includes a copy of [Employee]‘s Death Certificate showing he died on October 9, 1990. 

You also submitted the following additional documentation on January 20, 2003:  (1) A copy of [Employee’s] Last Will and Testament indicated that you, [Claimant], were the adult daughter and named her as Personal Representative of the Estate; (2) Statements by Jeanne Findler McKinney and Jean M. Peterson acknowledged on January 17, 2003, indicated that you lived in a parent-child relationship with [Employee] since 1945; (3) A copy of an affidavit signed by [Name of Natural Mother Assuming Employee’s Last Name] (duplicate) indicated that at the time of your mother’s marriage to [Employee], you took the name [Name of Claimant Assuming Employee’s Last Name]. 

You submitted additional employment documentation on January 27, 2003:  (1) A copy of [Employee]‘s TDY travel orders (duplicate); (2) A Memorandum of Appreciation dated February 11, 1972 from the Department of the Air Force commending [Employee] and other employees, for their support of the Blair Lake Project; (3) A letter of appreciation dated February 18, 1972 from the Department of the Army for [Employee]‘s contribution to the Blair Lake Project; and (4) Magazine and newspaper articles containing photographs of [Employee], which mention the work performed by the U.S. Army Corps of Engineers in Anchorage, Alaska.

The record also includes correspondence, dated March 27, 2003, from a DOE representative.  Based on a review of the documents you provided purporting that [Employee] was a Department of Energy contractor employee working for the U.S. Army Corps of Engineers on TDY in November, 1971, the DOE stated that the Blair Lake Project was not a DOE venture, observing that “[i]f Blair Lake Project had been our work, we would have found some reference to it.” 

On April 4, 2003, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that the evidence of record was insufficient to establish that [Employee]  was a covered employee as defined under § 7384l(9)(A).  See 42 U.S.C. § 7384l(9)(A).  Further, [Employee] was not a member of the Special Exposure Cohort, as defined by § 7384l(14)(B).  See 42 U.S. C. § 7384l(14)(B).  Also, [Employee] was not a “covered employee with silicosis” as defined under §§ 7384r(b) and 7384r(c).  See 42 U.S.C. §§ 7384r(b) and (c).  Lastly, the recommended decision found that you are not entitled to compensation under § 7384s.  See 42 U.S.C. § 7384s. 

On April 21, 2003, the Final Adjudication Branch received your letter of objection to the recommended decision and attachments.  First, you contended that the elements of the December 10, 2002 Remand Order were fulfilled because you submitted a copy of your mother’s death certificate and further proof that [Employee] was your stepfather; and that the letter from the district office on April 4, 2003 “cleared that question on page three – quote ‘Our records show that the Corps of Engineers was a prime AEC contractor at Amchitka.’” 

Second, you stated that further clarification was needed as to the condition you were claiming. You submitted a death certificate for [Employee] showing that he died due to bronchogenic cancer of the lung, small cell type, and noted that that was the condition you alleged as the basis of your claim on your first Form, associated with your claim under the EEOICPA.

Third, you alleged that, in [Employee]‘s capacity as a “Mobile Industrial Equipment Mechanic” for the Army Corps of Engineers, “he was required to work not only for the DOD (Blair Lake project) but also for DOE on the Amchitka program.  For example: on March 5, 1968 he was sent to Seward, Alaska to ‘Inspect equipment going to Amchitka.’  He was sent from the Blair Lake project (DOD) to Seward for the specified purpose of inspecting equipment bound for Amchitka (DOE).  Thus, the DOE benefited from my father’s [Corp of Engineers] expertise/service while on ‘loan’ from the DOD.  Since the closure of the Amchitka project (DOE), the island has been restored to its original condition.  . . . Therefore, my dad’s trip to Amchitka to inspect equipment which might have been used at the Blair Lake project benefited not only DOD but also DOE.  In the common law, this is known as the ‘shared Employee’ doctrine, and it subjects both employers to liability for various employment related issues.” 

On May 21, 2003, the Final Adjudication Branch received your letter dated May 21, 2003, along with various attachments.  You indicated that the U.S. Army Corps of Engineers was a contractor to the DOE for the Amchitka Project, based upon page 319 of an unclassified document you had previously submitted in March 2002.  Further, you indicated that [Employee] had traveled to Seward, Alaska to inspect equipment used at on-site operations for use on Amchitka Island by the Corps of Engineers for the DOE project, and referred to the copy of the Corps of Engineers TDY for Seward travel you submitted to the Final Adjudication Branch with your letter of April 18, 2003.  Also, you indicated that [Employee] traveled to Amchitka, Island in November 1972 to inspect the equipment referenced above, which had been shipped from Seward, Alaska.  You indicated that [Employee] was a mobile industrial equipment mechanic, and that his job required him to travel.  You attached the following documents in support of your contention that the equipment [Employee] inspected could have included equipment belonging to the Corps of Engineers:  Job Description, Alaska District, Corps of  Engineers (previously submitted), and an Employee Performance Appraisal. 

In addition, you indicated [Employee] was required to travel to remote sites throughout Alaska in order to perform his job with the Corps of Engineers, and in support of this you referred to your electronic mail sent to the Seattle District Office on January 7, 2003.  You indicated that, since [Employee] was required to travel to Amchitka as a part of his regular duties as a mobile industrial equipment mechanic, it was possible that the equipment he inspected on the November 15, 1971 trip to Amchitka included equipment owned by the Corps as well as inspection of equipment owned by private contractors.  You attached a copy of a document entitled, “Affidavit,” dated May 21, 2003, signed by Erwin L. Long.  Mr. Long stated that he was head of the Foundations Material Branch for the Corps of Engineers at the time of his retirement, and that in 1971 he had been Head of the Rock Design Section.  Mr. Long indicated that he did not spend any time on Amchitka Island, that he had known [Employee] since 1948, and that he “believe[d]” [Employee]‘s travel to Amchitka for his job would have required him to track equipment belonging to the Corps of Engineers, and that [Employee] would also have “performed required maintenance on the equipment before preparing [it] for shipping off Amchitka Island.”  Mr. Long also stated that [Employee] would not talk about his work on Amchitka since it was classified.  Finally, you attached a TDY dated March 4, 1968, as well as a travel voucher/subvoucher dated March 15, 1968, to support that [Employee]‘s mission to Amchitka had been completed. 

FINDINGS OF FACT

1. On July 31, 2001, [Claimant] filed a claim for survivor benefits under the EEOICPA as the daughter of [Employee].

2. [Employee] was diagnosed with small cell bronchogenic carcinoma of the lung and chronic silicosis.

3. [Employee] was employed by the U.S. Army Corps of Engineers for the period from July 25, 1944 to August 11, 1952, at Fort Richardson, Alaska; and from August 11, 1952 to May 30, 1975 at Elmendorf Air Force Base, Alaska.

4. [Employee]‘s employment for the U.S. Army Corps of Engineers on TDY assignment at the Amchitka Island, Alaska site in November 1971 was in conjunction with a Department of Defense venture, the Blair Lakes Project.

CONCLUSIONS OF LAW

The EEOCIPA implementing regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law, in the recommended decision.  20 C.F.R. § 30.310.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record.  20 C.F.R. § 30.312.  The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant.  20 C.F.R. § 30.313.  Consequently, the Final Adjudication Branch will consider the overall evidence of record in reviewing the written record. 

In order to be awarded benefits under the Energy Employees Occupational Illness Compensation Program Act, the covered employee (or his/her eligible survivors), must first establish that the employee has been diagnosed with beryllium illness, cancer, or chronic silicosis.  See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a).  The evidence to show proof of an occupational illness is not in dispute in this case.  The medical evidence establishes that [Employee] was diagnosed with cancer (bronchogenic cancer of the lung, small cell type) and chronic silicosis.  Consequently, [Employee] was diagnosed with two illnesses potentially covered under the Act.

Employees of a DOE contractor (or their eligible survivors) are entitled under the EEOICPA to seek compensation for a cancer as a member of the Special Exposure Cohort (SEC) or through a determination that they incurred cancer that was at least as likely as not related to employment at a DOE facility.  42 U.S.C. §§ 7384l(14), 7384l(9)(B)(ii)(II).  To be included in the SEC, a DOE employee, DOE contractor employee, or atomic weapons employee must have been employed for an aggregate of 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee or employed before January 1, 1974, by the DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and have been exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.  42 U.S.C. § 7384l(14).  To qualify as a covered employee with cancer, members of the SEC need only establish that they contracted a “specified cancer”, designated in section 7384l(17) of the EEOICPA, after beginning employment at a DOE facility or atomic weapons employer facility.

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

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

(B)  An individual who is or was employed at a Department of Energy facility by-

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

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

The question presented in this case is whether [Employee], an employee of the U.S. Army Corps of Engineers was, during the time he spent on Amchitka Island, providing management and operation, management and integration or environmental remediation services under a contract between the DOE and the Army Corps of Engineers.

The undersigned notes that the Atomic Energy Commission’s Managers Completion Report refers to the U.S. Army Corp of Engineers, as a prime contractor for work on Milrow and Cannikin.  The work to be performed under that contract consisted of “engineering, procurement, construction administration and inspection.”

[Employee]‘s “Request and Authorization for TDY Travel of DOD Personnel,” initiated on November 10 and approved on November 11, 1971, was for the purpose of three days work on Amchitka Island, Alaska, for the Department of Defense, Alaska District Corps of Engineers.  The purpose of the TDY was to “examine equipment for potential use on Blair Lake Project.”

You submitted the following new documents along with your letter to the Final Adjudication Branch dated May 21, 2003:  Employee Performance Appraisal for the period February 1, 1966 to January 31, 1967; Affidavit of Erwin L. Long dated May 21, 2003; Request and Authorization for Military Personnel TDY Travel and Civilian Personnel TDY and PCS Travel, dated March 4, 1968; and Travel Voucher or Subvoucher, dated March 15, 1968.  None of the documents submitted establish that [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE.

The preponderance of the evidence in this case supports the conclusion that [Employee] was on Amchitka Island in November 1971 for the sole purpose of inspecting equipment to be used by the Department of Defense on its Blair Lake Project.  The documentation of record refers to the Blair Lake Project as a Department of Defense project, and the DOE noted in correspondence dated March 27, 2003, that research was not able to verify that Blair Lake was a DOE project.

While the DOE indicated that [Employee] was issued a dosimetry badge, such evidence may be used to establish that he was present on Amchitka Island, not to establish that he was a covered DOE employee.  Therefore, [Employee]‘s presence on Amchitka Island was to perform work for the Department of Defense, and not pursuant to a contract between the DOE and the U.S. Army Corps of Engineers. 

The evidence is also insufficient to show covered employment under § 7384r(c) and (d) of the EEOICPA for chronic silicosis.  To be a “covered employee with chronic silicosis” it must be established that the employee was:

A DOE employee or a DOE contractor employee, who was present for a number of workdays aggregating at least 250 work days during the mining of tunnels at a DOE facility located in Nevada or Alaska for test or experiments related to an atomic weapon. 

See 42 U.S.C. § 7384r(c) and (d); 20 C.F.R. § 30.220(a).  Consequently, even if the evidence showed DOE employment (which it does not since [Employee] worked for the DOD), he was present only three days on Amchitka, which is not sufficient for the 250 days required under the Act as a covered employee with silicosis.

The undersigned notes that in your objection to the recommended decision, you referred to a “shared employee” doctrine which you believe should be applied to this claim.  You contend that on March 5, 1968, [Employee] was sent to Seward, Alaska to “Inspect equipment going to Amchitka, which might have been used at the Blair Lake project [to benefit] not only DOD but also DOE.”  No provision in the Act refers to a “shared employee” doctrine.  Given the facts of this case, coverage could only be established if [Employee] was on Amchitka Island providing services pursuant to a contract with the DOE, evidence of which is lacking in this case. 

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

Although you submitted medical evidence to show covered illnesses due to cancer and chronic silicosis, the evidence of record is insufficient to establish that [Employee] engaged in covered employment.  Therefore, your claim must be denied for lack of proof of covered employment under the EEOICPA.

Seattle, Washington

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch 

EEOICPA Fin. Dec. No. 32000-2002 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claims for compensation filed by the above claimants 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, these claims for compensation under the EEOICPA are approved.

STATEMENT OF THE CASE

On November 14, 2003, the Seattle district office issued a recommended decision finding that [Employee] was a member of the Special Exposure Cohort (SEC) based on both his confirmed employment on Amchitka Island, Alaska during the Cannikin and Milrow nuclear tests and his diagnosis of lung cancer, which is a “specified” cancer under the Act.  As part of that decision, the district office found that [Claimant 1], [Claimant 2], and [Claimant 3] were step-children of the employee, based on their “regular parent-child relationship” with him.  As such, the district office concluded that all 5 claimants were eligible beneficiaries under the EEOICPA as the surviving children of the employee, and were entitled to share the compensation payment of $150,000 equally. 

On January 9, 2004 and January 12, 2004, the FAB received objections and hearing requests from the employee’s natural children, [Claimant 4] and [Claimant 5].  In the letters of objections, the natural children alleged that [Claimant 1], [Claimant 2], and [Claimant 3] had not lived with the employee in a parent-child relationship because they were adults at the time of their father’s marriage to their mother and argued that they should not be awarded a share of any lump-sum payment of compensation.  On March 25, 2004, a hearing was held in Las Vegas, NV to determine whether there was sufficient evidence to establish that the step-children are eligible beneficiaries pursuant to § 7384s(e)(3)(B) of the EEOICPA.  At the hearing, two step-children testified that at any given time during their mother’s marriage to the employee, each of the step-children had stayed in the residence of the employee; this testimony was not disputed by the two natural children at the hearing.

After considering the written record of the claim forwarded by the district office, the objections to the recommended decision, the arguments and evidence submitted in support of the objections, and after conducting a hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1. On June 20, 2002, July 2, 2002 and July 24, 2003, [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 4], and[Claimant 5], respectively filed claims for compensation under the EEOICPA.
2. [Employee] was employed by a DOE contractor on Amchitka Island, Alaska before January 1, 1974, and was exposed to radiation in the performance of duty related to the Milrow and Cannikin nuclear tests.
3. [Employee] was diagnosed with a specified cancer, lung cancer,after beginning employment at a DOE facility.
4. [Claimant 4] and [Claimant 5] are the surviving natural children of the employee.
5. The evidence of record establishes that [Claimant 1],[Claimant 2], and [Claimant 3] are the step-children of the employee and that they lived in a regular parent-child relationship with the employee.

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

CONCLUSIONS OF LAW

Section 7384l(9) of the EEOICPA defines the different types of covered employees with cancer that can be eligible to receive compensation: these include “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a DOE facility….” 42 U.S.C. § 7384l(9)(A).  Section 7384l(14)(B) of the Act defines a member of the Special Exposure Cohort (SEC) as, among other things, an employee who “was so employed before January 1, 1974, by the Department of Energy or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.”  There is no dispute that [Employee] worked on-site during a covered period and was diagnosed with a specified cancer, lung cancer, after he began employment at Amchitka Island.  Therefore, the evidence of record is sufficient to establish that [Employee] was a member of the SEC with a specified cancer.

However, since the employee is deceased and there is no surviving spouse, 42 U.S.C. § 7384s(e)(a)(B) of the EEOICPA provides that the payment that would otherwise be made to the covered employee “shall be made in equal shares to all children of the covered employee who are living at the time of payment.”  Section 7384s(e)(3)(B) of the EEOICPA goes on to define a “child” to include “a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.”  Chapter 2-200.9c(1) (October 2003) of the Federal (EEOICPA) Procedure Manual provides further guidance for adjudicating claims of stepchildren who were adults at the time of a covered employee’s marriage.  These procedures describe the types of evidence that may be used to support a finding that the stepchild lived in a regular parent-child relationship with the covered employee, and recognize that evidence such as copies of insurance policies, wills, photographs showing attendance at the stepchild’s wedding as the father or mother or at other types of family gatherings, newspaper articles like obituaries, or any other documentation that refer to the stepchild and the decease employee in a familial way can be used to make this particular finding. 

[Claimant 4] and [Claimant 5] qualify as children of the covered employee based on their birth and marriage certificates, and the employee’s and [Spouse]‘s death certificates; and are, therefore eligible surviving beneficiaries under the EEOICPA.  [Claimant 1], [Claimant 2], and [Claimant 3] also qualify as children of the covered employee based on their presence in family photographs that were submitted into the record, their identification as surviving stepchildren in the covered employee’s obituary, evidence in the record showing that the employee visited his stepchildren during the holidays, and that he and the stepchildren stayed at each other’s homes.  Therefore, [Claimant 1], [Claimant 2], and [Claimant 3] are also eligible surviving beneficiaries under the EEOICPA.  Based on these conclusions of law, all five claims for compensation under the EEOICPA that were filed by the covered employee’s children are approved.  Each claimant is entitled to receive an equal share ($30,000) of the total lump-sum of $150,000 payable in this matter.

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

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

NOTICE OF FINAL DECISION

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Claimant 1]                                        September 21, 2004

[Claimant 2]                                        September 22, 2004

[Claimant 3]                                        September 20, 2004

[Claimant 5]                                        September 21, 2004

[Claimant 7]                                        September 17, 2004

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

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

FINDINGS OF FACT

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

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

DENVER, CO

Joyce L. Terry

District Manager

EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

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

STATEMENT OF THE CASE

In 2004, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] each filed a claim for survivor benefits under the Act.  You stated on the forms that you were filing for the multiple myeloma of your late father, [Employee], hereinafter referred to as “the employee.”  A pathology report establishes that the employee was diagnosed with multiple myeloma on May 8, 1991.  The death certificate shows the causes of death on May 21, 1991 were shock, gastric bleeding due to stress ulcers and sepsis, with a significant contributing factor of multiple myeloma.

On the Form EE-2, you indicated the employee was a member of the Special Exposure Cohort (SEC).  The Form EE-3 stated the employee was employed as a roofer by Hannin Roofing at the Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, for the period of January 1, 1970 to December 31, 1982.  The district office verified that the employee worked for Hannin Roofing at the Paducah GDP for the period April 1, 1977 to September 30, 1978. 

In support of your claims for survivorship, you submitted the death certificate of the employee which showed he was divorced at the time of his death.  In addition, you submitted evidence that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] are the natural children of the employee and that at the time of the employee’s death, you were each over the age of 23, except for [Claimant #12], who was 22 years old.  There was no evidence that [Claimant #12] was in school full-time or that any of you were incapable of self-support at the time of the employee’s death.

On July 14, 2004, the FAB issued a final decision, finding that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] were each entitled to compensation under Part B of the Act in the amount of $11,538.46.  [Claimant #14], [Claimant #15], and [Claimant #16] then filed claim forms in 2005 as the stepchildren of the employee.  A letter of objection requesting reopening was submitted, protesting the inclusion of [Claimant #2] as an eligible survivor, since her marriage certificate showed a different father and mother than the employee and his spouse.  On July 11, 2005, the Director of DEEOIC issued a Director’s Order, vacating the final decision of July 14, 2004 and requiring the district office to develop survivorship eligibility and issue a new recommended decision.

On May 8, 2006, the Jacksonville district office issued a recommended decision, concluding that all the claimants are entitled to survivor compensation of $9,375.00 each under Part B of the Act, and that [Claimant #15] is entitled to survivor compensation of $125,000.00 under Part E of the Act.  The district office recommended denial of all the other survivor claims under Part E of the Act.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.  This period expired on July 7, 2006.  The FAB received written notification that [Claimant #16], [Claimant #14], and [Claimant #15] each waived any and all objections to the recommended decision.  The FAB received letters of objection from [Claimant #7] and [Claimant #5], and letters of objection and request for a hearing from [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #6], [Claimant #9], and [Claimant #12].  The hearing was held on September 15, 2006, in Paducah, Kentucky.

A claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  By letter dated October 4, 2006, the transcript was forwarded to the hearing attendees ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #9], [Claimant #12], [Claimant #14], [Claimant #15], and [Claimant #16]).  No response was received.

OBJECTIONS

The objections from each of the claimants stated that [Claimant #14], [Claimant #15], and [Claimant #16] are the stepchildren of the employee, not his children, and should not be entitled to receive any compensation.

During the hearing, the marital history of the employee and his spouse, the mother of the survivors, was discussed.  It was clarified that the employee and your mother ([Employee’s spouse]) married originally in the 1950s, had thirteen children, divorced in the early 1970s, remarried in 1981, and divorced again in 1985.  During the first period of divorce,

[Employee’s spouse] married [Employee’s spouse’s second husband], and gave birth to [Claimant #14], [Claimant #15], and [Claimant #16].  The hearing discussion verified that

[Claimant #14], [Claimant #15] and [Claimant #16] lived with the employee in his home during the period of his remarriage to your mother.

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

FINDINGS OF FACT

1. You each filed a claim for survivor benefits under the Act.

2. The employee was diagnosed with multiple myeloma on May 8, 1991 and died on May 21, 1991.

3. The employee was employed at the Paducah GDP from April 1, 1977 to September 30, 1978.

4. [Claimant #1], [Claimant #2], [Claimant#3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant#7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant#11], [Claimant #12] and [Claimant #13] are the employee’s natural children.  The employee was divorced at the time of his death.  Each of you was over the age of 23 at the time of the employee’s death, except for [Claimant #12] (born [Date of birth]).  However, [Claimant #12]  did not provide evidence of being in school full-time or being incapable of self-support at the time of the employee’s death.

5. [Claimant #14], [Claimant #15], and [Claimant #16] are the employee’s stepchildren. [Claimant #15] was born on [Date of birth] and was 17 years old at the time of the employee’s death.  [Claimant #14] and [Claimant #16] were between the ages of 18 and 23, but did not provide evidence of being in school full-time or incapable of self-support at the time of the employee’s death.

6. The employee’s multiple myeloma caused or contributed to his death.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on May 8, 2006 and the subsequently submitted objections.  I find that the decision of the Jacksonville district office is supported by the evidence and the law and cannot be changed.

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 must also show the employee was monitored for radiation through the use of dosimetry badges or worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges.

The evidence shows that the employee worked at the Paducah GDP from April 1, 1977 to September 30, 1978, which equals more than 250 days prior to February 1, 1992.  In addition, he worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges.  Therefore, the employee qualifies as a member of the SEC.

The employee’s multiple myeloma is 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). 

Part B of the Act defines a “child” as including 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).  There is no minimum or maximum time requirement for a stepchild to have lived in the same household as the employee.[1]  [Claimant #2] is determined to be a survivor of the employee, since his name is listed as the father on your birth certificate and there is no evidence you were formally adopted by [Family relative].  [Claimant #14], [Claimant #15] and [Claimant #16] are determined to be stepchildren of the employee, since the evidence indicates you lived with the employee for at least three years and are listed as children in his obituary.  Therefore, all of the claimants meet the definition of a survivor under Part B of the Act.  42 U.S.C. § 7384s(e)(3)(A).  Therefore, I conclude that you are entitled to $150,000.00, or $9,375.00 each for the employee’s multiple myeloma, pursuant to the Act.  42 U.S.C. § 7384s(a).  Since [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] have already received compensation under this section of the Act, no additional funds are payable to you at this time.

The employee was an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2).  The employee died as a consequence of multiple myeloma.

The term “covered child” means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support.  42 U.S.C. § 73845s-3(d)(2).

The evidence of record shows that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11] and [Claimant #13] were each over 23 years old at the time of the employee’s death, with no evidence of being incapable of self-support.  [Claimant #12], [Claimant #14], and [Claimant #16] were between the ages of 18 and 23 with no evidence of full-time attendance at school or being incapable of self-support. 

Therefore, the claims of [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #13], [Claimant #12], [Claimant #14] and [Claimant #16] under Part E of the Act must be denied because the evidence does not establish that you meet the criteria of “covered” child as defined by the Act.  42 U.S.C. § 73845s-3(d)(2). 

[Claimant #15] meets the definition of a survivor under Part E of the Act.  42 U.S.C. § 7385s-3(d).  Therefore, [Claimant #15] is entitled to benefits in the amount of $125,000.00 for the employee’s death due to multiple myeloma.  42 U.S.C. § 7385s-3.

Jacksonville, Florida

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch

[1] Federal (EEOICPA) Procedure Manual, Chapter 2-200.5c(5).

EEOICPA Fin. Dec. No. 55831-2004 (Dep’t of Labor, July 29, 2005)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch concerning your claims for compensation under 42 U.S.C. § 7384 of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is sufficient to allow compensation under 42 U.S.C. § 7384 of the Act for your claims based on [Employee’s] condition of lung cancer.

STATEMENT OF THE CASE

On July 31, 2001, [Employee’s Spouse] filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) for compensation as the surviving spouse of [Employee], a uranium worker.  On August 17, 2001, the Department of Labor received verification from the Department of Justice that [Employee’s Spouse] filed for an award under section 5 of the Radiation Exposure Compensation Act (RECA) for the condition of lung cancer as the surviving beneficiary of [Employee], for the medical condition of lung cancer, which was approved for an award of $100,000 under section 5 of the RECA, on January 15, 1999.  Based on the award under section 5 of the RECA, on August 30, 2001, the Denver district office recommended acceptance of [Employee’s Spouse] claim.  On December 13, 2001, the Final Adjudication Branch issued a Final Decision to accept [Employee’s Spouse’s] claim; however, she had passed away on September 10, 2001, and her claim was administratively closed.  By Modification Order dated September 13, 2002, the Director vacated the December 13, 2002 Final Decision and remanded the claim to the Denver district office for the development and determination of survivor entitlement(s). 

On March 23, 2004, you ([Claimant #1]) submitted a Form EE-2, seeking benefits in the amount of $50,000 as a surviving child of a uranium worker who had lung cancer.  You provided a copy of your birth certificate which indicated you are a child of the employee.

[Employee Spouse] had two living children from a previous marriage, [Claimant #3] and [Claimant # 2].  [Employee’s Spouse’s] third child, [Employee’s Spouse’s third child], passed away at age twenty (a newspaper article regarding his accident was provided).  The Denver district office sent letters and claim forms to [Claimant #3] and [Claimant #2].  On March 26, 2004, [Claimant #3] submitted a letter indicating he did not believe that he would qualify as a surviving stepchild as he was a married adult at the time his mother and stepfather were married.  [Claimant #3] and [Claimant #2] did not apply for benefits at that time.

On May 12, 2004, the Denver district office issued a recommended acceptance of [Claimant #1’s] claim for compensation. By Remand Order dated June 16, 2004, the Final Adjudication Branch vacated the May 12, 2004 recommended decision and remanded the case to the Denver district office as further development of survivorship issues was needed.

On June 14 ([Claimant #2]) and June 15, 2004, ([Claimant #3]), you submitted Forms EE-2, seeking benefits in the amount of $50,000 as surviving stepchildren of a uranium worker who had lung cancer.  You provided copies of your birth certificates which indicate you are the children of [Employee’s Spouse].

The record includes statements by [Claimant #3], [Claimant #2] and [Claimant #2’s spouse] ([Claimant #2’s spouse]), family photographs, a genealogical record, and the obituary of [Employee] as evidence that [Claimant #3] and [Claimant #2] lived in a parent-child relationship with [Employee].  

On November 5, 2004, the Denver district office recommended approval of your claims as eligible survivors of a covered uranium worker entitled to compensation totaling $50,000 pursuant to §§ 7384u(a), 7384u(e)(1)(B) and 7384u(e)(3)(B) of the Act.  See 42 U.S.C. § 7384u(a), (e)(1)(B) and (e)(3)(B).  The compensation was recommended to be distributed as follows:  [Claimant #1] in the amount of $16,666.67; [Claimant #3] in the amount of $16,666.67; and [Claimant #2] in the amount of $16,666.66. 

On November 17 ([Claimant #3]) and November 22, 2004 ([Claimant #2]), the Final Adjudication Branch received written notice that you waived your right to file objections to the November 5, 2004 recommended decision.

OBJECTIONS

On November 22, 2004, the Final Adjudication Branch received your ([Claimant #1]) letter (dated November 15, 2004) of objection to the recommended decision with your request for oral hearing. 

After due notice, the Final Adjudication Branch held a hearing in Salt Lake City, Utah on January 11, 2005.  [Claimant #1] and [Claimant #3] testified in person and [Claimant #2], with [Claimant #2’s spouse], witness, testified via a telephone conference call.  The following exhibits were submitted by [Claimant #1] on the date of the hearing:

            Exhibit 1:  A January 11, 2005 letter by [Claimant #1], which was read onto the record at the hearing.

            Exhibit 2:  A November 24, 2004 letter by [Claimant #1], addressed to President George W. Bush.

The main issues you ([Claimant #1]) brought forth in your objection letter and at the hearing are summarized as follows:

1. You contend that you should be awarded $50,000.00, as the surviving child of the employee (Letter of objection; Transcript (Tr.) 8-13).

2. You disagree with the use of family photographs and obituaries in establishing the relationship between your father and his stepchildren (Letter of objections; Tr. 14-16).

3. You disagree with Findings of Fact number five in the November 5, 2004 recommended decision, indicating [Claimant #2] lived with the employee in a parent-child relationship (Letter of objection; Tr. 14-15).

4. You disagree with Findings of Fact number six in the November 5, 2004 recommended decision, indicating [Claimant #3] lived with the employee in a parent-child relationship (Letter of objection; Tr. 14-15).

5. You are dissatisfied with the handling of your claim (Letter of objection; Tr. 8-14, 17-19, 34-35).

6. A copy of the transcript of the administrative hearing was sent to each participant at the hearing as an opportunity to provide corrections/and or comments.

The second, third, and fourth issues all relate to issue number one, your ([Claimant #1]) contention that you should be awarded compensation in the amount of $50,0000, and that the stepchildren of the employee ([Claimant #3] and [Claimant #2]) should not be awarded survivor benefits in this case.

The fact that compensation is payable and the amount ($50,000 total) is not in dispute in this case.  The regulations provide that if there is no surviving spouse, the compensation shall be paid in equal shares to all children of the deceased covered Part B employee.  See 20 C.F.R. § 30.501(a)(2).   The regulations define a “child” or “children” to include a recognized child, a stepchild who lived with that individual in a regular parent-child relationship, and an adopted child of that individual.  See 20 C.F.R. § 30.500(a)(2).

You ([Claimant #1]) established that you are a child of the employee by providing a copy of your birth certificate, showing the employee as your biological father.

[Claimant #3] (born [Claimant #3’s date of birth]) and [Claimant #2] (born [Claimant #2’s date of birth]) were both adults at the time their mother ([Employee’s Spouse]) married the employee on July 18, 1955.  [Employee’s Spouse] had a third child, [Employee’s Spouse’s third child] (born [Employee’s Spouse’s third child’s date of birth]), who passed away at age twenty.  In cases involving a stepchild who was an adult at the time of marriage, supportive evidence of a parent-child relationship may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, provided financial support for the deceased employee, or had the employee living with him/her.  Other evidence, including medical reports, letters from a physician, receipts showing the stepchild purchased medical equipment, supplies or medicine for the employee, insurance policies, wills, photographs, and newspaper articles (i.e., obituary) may also be considered.  See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.5(3) (September 2004).  In addition, there is no minimum time requirement for the stepchild to have lived in the same household as the covered employee to fulfill the requirement to have “lived with the employee in a parent-child relationship.”  Visits during holidays, a stepchild caring for an employee, and/or stays at one another’s home at any given time may fulfill this requirement.  See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.5(5) (September 2004).

The record includes a June 13, 2004 letter by [Claimant #3] in which he indicated he and his family stayed with [Employee] and [Employee’s Spouse] during his visits from Spanish Fork to Moab, Utah.  A photograph was provided identifying [Employee] and [Employee’s Spouse], as well as [Claimant #3] and his family at Christmas dinner.  In addition, a photograph of a family gathered around a Christmas tree with opened gifts was provided, and [Claimant #3], two of his small children, [Employee] and [Employee’s Spouse] were identified in the photograph.  [Claimant #3] indicated this picture was taken at his home in Spanish Fork, Utah. 

The record also includes a May 28, 2004 letter by [Claimant #2], in which he indicated he lived with [Employee] and [Employee’s Spouse] for six months in 1957, and that he visited the employee in the hospital in Grand Junction, Colorado.  Photographs of a family hunting outing were provided in which [Employee], [Claimant #1] and [Claimant #2] were identified, as well as [Claimant #2’s] son and [Claimant #3’s] son.  A genealogical record of the [Employee’s family name’s] family was provided and indicated that [Claimant #2] named his son “[Claimant #2’s son’s name],” apparently after [Employee].  [Claimant #1] testified that both names are pronounced the same even though the spelling is different.  [Claimant #1] testified also that the employee helped [Claimant #2] get a job around 1956, he lived with the employee for four months at that time (Tr. 25), and [Claimant #2] and his family lived with the employee for approximately six months while his family was searching for a home (Tr. 26).  Further, the record includes the obituary for [Employee].  The obituary shows the employee’s daughter as [Claimant #1’s married name] and his stepsons as [Claimant #3] and [Claimant #2].

The preponderance of the evidence of record indicates that the claimants [Claimant #3] and [Claimant #2] lived in a parent-child relationship with the employee,[Employee].

Your fifth issue indicates you are dissatisfied with the handling of your claim because it involved remand, and the opportunity for other survivors to file a claim.  Pursuant to the authority granted by § 30.317 of the EEOICPA regulations, at any time before the issuance of its final decision, the Final Adjudication Branch may return a claim to the district office for further development and/or issuance of a new recommended decision without issuing a final decision, whether or not requested to do so by the claimant.  See 20 C.F.R. § 30.317.  Under this authority, the Final Adjudication Branch issued a Remand Order on June 16, 2004, vacating the May 12, 2004 recommended decision.  The Final Adjudication Branch directed the Denver district office to do further survivorship development and to issue a new recommended decision based on that development.  The Denver district office completed its survivorship development and issued a new recommended decision based on that development on November 5, 2004.  Thus, your claim was handled in accordance with the regulations that govern the Act.

FINDINGS OF FACT

1. On July 31, 2001, [Employee’s Spouse] filed a claim as a surviving spouse of a uranium worker.  [Employee’s Spouse] passed away on September 10, 2001, and her claim was administratively closed.
2. On August 17, 2001, the Department of Justice verified that [Employee’s Spouse] had filed as the eligible surviving RECA beneficiary of the employee and had been approved for an award of $100,000 under section 5 of the Radiation Exposure Compensation Act on January 15, 1999 for the medical condition of lung cancer.
3. The employee died on March 26, 1973 as a result of squamous cell carcinoma of the lung and he worked in the mining business.
4. [Claimant #1] filed a claim as a surviving child of a uranium worker on March 23, 2004.  [Claimant #1] established that she is a surviving child of a uranium worker.
5. On June 14, 2004, [Claimant #2] filed a claim as a surviving stepchild of a uranium worker.  [Claimant #2] provided evidence establishing that he lived with the employee in a parent-child relationship.  [Claimant #2] is a surviving stepchild of a uranium worker.
6. On June 15, 2004, [Claimant #3] filed a claim as a surviving stepchild of a uranium worker.  [Claimant #3] provided evidence establishing that he lived with the employee in a parent-child relationship.  [Claimant #3] is a surviving stepchild of a uranium worker.

CONCLUSIONS OF LAW

I have carefully reviewed the evidence of record, including your letters, your testimony at the administrative hearing, and additional documentation you provided. 

The EEOICPA provides that 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, 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.  See 42 U.S.C. § 7384u(a).

The undersigned notes your ([Claimant #1]) objections to the recommended decision; however, they do not change the outcome of the case.  The Final Adjudication Branch is bound by the provisions of the Energy Employees Occupational Illness Compensation Program Act and has no authority to depart from the Act and implementing regulations.

You ([Claimant #1], [Claimant #3] and [Claimant #2]) have demonstrated that you are the surviving children (daughter and stepsons) and eligible beneficiaries of a uranium worker.  Therefore, [Claimant #1] is entitled to compensation in the amount of $16, 666.67; [Claimant #3] is entitled to compensation in the amount of $16, 666.67; and [Claimant #2] is entitled to compensation in the amount of 16, 666.66; totaling $50,000, pursuant to 42 U.S.C. § 7384u(a), 7384u(e)(1)(B), and 7384u(e)(3)(B) of the EEOICPA. 

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is sufficient to allow compensation under 42 U.S.C. § 7384 of the Act for your claims based on [Employee’s] condition of lung cancer.  Accordingly, your claim for compensation is accepted.  

Seattle, Washington

Rosanne M. Dummer, District Manager

Final Adjudication Branch Seattle

EEOICPA Fin. Dec. No. 68949-2005 (Dep’t of Labor, September 21, 2005)

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).  For the reasons set forth below, the Final Adjudication Branch accepts your claims for compensation under 42 U.S.C. § 7384.

STATEMENT OF THE CASE

On May 31, 2005, you filed Forms EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as the surviving children of [Employee].  You identified the diagnosed condition being claimed as small cell carcinoma of the lung.  The medical documentation of record includes a pathology report based on an endobronchial biopsy performed on March 1, 1995, which shows a diagnosis of small cell carcinoma of the right upper lung lobe.  A report of a consultation examination conducted on March 2, 1995, and signed by Dr. Blessilda Liu, confirms that diagnosis.

You submitted a copy of your father’s death certificate showing that he died on April 18, 1996, and identifying [Employee’s Spouse] as his surviving spouse.  A copy of their marriage certificate shows that they were wed on August 31, 1953.  A copy of a death certificate shows that [Employee’s Spouse] died on December 26, 2004, and names her father as [Employee’s Spouse’s Father].

With the exception of [Claimant #3], you each provided a copy of a birth certificate naming [Employee] as your father.  [Claimant #5] provided marriage certificates and a divorce decree establishing the change in her last name to [Claimant #5’s married name].

[Claimant #3’s]  birth certificate shows that she was named [Claimant #3’s given name]  and that she was born on July 8, 1953, approximately two months prior to the marriage of [Employee] and [Employee’s Spouse].  The certificate was filed with the Pennsylvania Department of Health on July 22, 1953.  The birth certificate names [Claimant #3’s biological father] as her father and [Employee’s Spouse] as her mother.  She provided a statement indicating that she resided with her mother and [Employee] from infancy until 1974, when she was married.  She reports that, after leaving home, she maintained a relationship with [Employee] and cared for him during his illness due to cancer.  She further reports that [Employee] and her mother had told her that she was adopted, but that she cannot find any supporting documentation.  Finally, she states that she never knew any other father.  She provided a copy of a permanent record card for the senior high school in McKeesport, PA, which names [Employee] as her father and [Employee’s Spouse]as her mother.  A copy of [Employee’s] last will and testament names [Claimant #3], along with the other claimants, as his children.  [Claimant #5] provided a letter in which she states that she has no doubt that [Claimant #3] is her sister and that all five children were raised in the same household.  [Claimant #3] also provided marriage certificates and a divorce decree establishing the change in her last name to [Claimant #3’s married name].

You also provided a Form EE-3 (Employment History) in which you stated that your father worked at the U.S. Steel Co., National Tube Division, from 1953 to 1985.  U.S. Steel verified that he worked at the U.S. Steel Co., National Tube Division, from August 15, 1953, to July 30, 1985.  The U.S. Steel Co., National Tube Division, in McKeesport, PA, is recognized as a covered atomic weapons employer (AWE) facility from 1959 to 1960.  See Department of Energy, Office of Worker Advocacy, Facility List.

To determine the probability of whether your father sustained cancer in the performance of duty, the Cleveland district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  On July 20, 22, 24, and 27, 2005, you signed Forms OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH.  On August 3, 2005, the district office received the final NIOSH Report of Dose Reconstruction.  Using the information provided in this report, the district office used the Interactive RadioEpidemiological Program to determine the probability of causation of your father’s cancer and reported in its recommended decision that there was at least a 50% probability that lung cancer was caused by radiation exposure at the U.S. Steel Co., National Tube Division.

On August 11, 2005, the Cleveland district office issued a recommended decision concluding that your father is a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B), whose cancer was at least as likely as not related to his employment at the U.S. Steel Co., National Tube Division, and thus sustained in the performance of duty.  For that reason, the district office recommended that you, as his surviving children, are each entitled to compensation in the amount of $30,000 pursuant to 42 U.S.C. § 7384s.

On August 17 and 22, 2005, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision.

FINDINGS OF FACT

1. You filed claims for benefits on May 31, 2005.

2. Your father worked at the U.S. Steel Co., National Tube Division, a covered AWE facility, from August 15, 1953, to July 30, 1985.

3. Your father was diagnosed with small cell carcinoma of the right upper lung lobe on March 1, 1995.

4. The NIOSH Interactive RadioEpidemiological Program determined a 95.91% probability that your father’s lung cancer was caused by radiation exposure at the U.S. Steel Co., National Tube Division.

5. Your father’s cancer was at least as likely as not related to his employment at an AWE facility.

6. You are the surviving children of [Employee].

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision issued by the district office on August 11, 2005.

To determine the probability of whether your father sustained cancer in the performance of duty, the district office referred your claims to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction, in accordance with 20 C.F.R. § 30.115.  The information and methods utilized to produce the dose reconstruction are summarized and explained in the NIOSH Report of Dose Reconstruction, dated April 13, 2005.  NIOSH determined that the internal dose due to inhalation during your father’s first year of employment was of sufficient magnitude to produce a probability of causation of 50% or greater.  See 42 C.F.R. §§ 82.25, 82.26.

Using the information provided in the Report of Dose Reconstruction for small cell carcinoma of the right upper lung lobe, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 95.91% probability that your father’s cancer was caused by radiation exposure while employed at the U.S. Steel Co., National Tube Division.  The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 95.91% probability.

The FAB has also reviewed the evidence regarding [Claimant #3’s] status as a stepchild and has determined that she is a stepchild of [Employee] who lived with him in a regular parent-child relationship.  For that reason, she meets the definition of “child” in 42 U.S.C. § 7384s(e)(3)(B).

Based on your father’s covered employment at the U.S. Steel Co., National Tube Division, the medical documentation showing a diagnosis of small cell carcinoma of the right upper lung lobe, and the determination that your father’s cancer is at least as likely as not related to his employment at the U.S. Steel Co., National Tube Division, and thus sustained in the performance of duty, he is a “covered employee with cancer”.  See 42 U.S.C. §§ 7384l(1)(B), (9)(B).

For those reasons, I find that you are each entitled to $30,000 based on your father’s lung cancer, as provided by 42 U.S.C. § 7384s.

Cleveland, OH

Debra A. Benedict

District Manager

Final Adjudication Branch