U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH



EMPLOYEE:                                                 [Name Deleted]

 

CLAIMANT:                                                 [Name Deleted]

 

FILE NUMBER:                                           [Number Deleted]

 

DOCKET NUMBER:                                   10033981-2006

 

DECISION DATE:                                        November 27, 2006

 

NOTICE OF FINAL DECISION

 

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

 

STATEMENT OF THE CASE

 

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

 

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

 

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

 

FINDINGS OF FACT

 

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

 

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

 

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

 

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

 

CONCLUSIONS OF LAW

 

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

 

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

 

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

 

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

 

Jacksonville, FL

 

 

 

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch

 



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