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:

10432-2004

DECISION DATE:

September 13, 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 September 24, 2001, you filed a claim, Form EE-1, for benefits under the EEOICPA based on prostate cancer, stomach cancer, other lung condition specified as a spot, goiter and an unspecified throat condition. 

 

Medical evidence submitted in support of your claim included a surgical pathology report dated January 9, 1995 that showed a diagnosis of adenocarcinoma of the stomach and a hospital discharge summary dated January 11, 1995 that showed a diagnosis of gastric carcinoma.  The medical evidence also showed diagnoses of benign prostatic hyperplasia in January 1995; multinodular goiter, status post; right thyroid lobectomy in March 1997; and stable pulmonary nodules in February 2000. 

 

You provided an employment history on Form EE-3 indicating that you were employed at INCO, Reduction Pilot Plant (RPP) in Huntington, West Virginia from October 11, 1952 to 1986.  The Huntington Pilot Plant in Huntington, West Virginia is recognized as a DOE facility from 1951 to 1963, and from 1978 to 1979.  See Department of Energy Worker Advocacy Facilities List.  

 

On October 5, 2001, the Cleveland district office notified you that your claims for a goiter, lung and throat conditions were not covered under the Act. 

 

On January 14, 2002, the Department of Energy (DOE) reported that they had no employment information on you.  On January 29, 2002, the Cleveland district office notified you that DOE does not have any employment record to show that you worked for INCO at the RPP during the period of your employment.  You were advised to furnish any document or documents (copy of security clearance, ID card, SSA records, etc.) that would establish your employment at INCO from 1952 to 1986.  You were also advised that you could ask others to affirm your employment by INCO by completing and returning an Employment History Affidavit (Form EE-4).  You were asked to provide the requested evidence within 30 days of the letter. 

 

In response on April 8, 2002, you submitted a copy of your Itemized Statement of Earnings from the Social Security Administration (SSA) that showed you received earnings from INCO Alloys International Inc. from 1952 to 1986. 

 

On December 8, 2003, the Cleveland district office requested the DOE’s corporate verifier for INCO to determine whether you worked in the RPP.  On December 15, 2003, the DOE’s corporate verifier reported that no record was found to establish that you were assigned and/or worked in the RPP while employed by INCO from 1952 to 1986. 

 

On January 27, 2004, the Cleveland district office explained that while the evidence shows that you worked at INCO in Huntington, West Virginia from 1952 to 1986, there is no evidence showing that you were assigned and/or worked in the RPP, the covered nuclear portion of the facility, while employed by INCO from 1952 to 1986.  The SSA records you submitted merely show that you received earnings from INCO from 1952 to 1986; however they do not place you within the RPP.  They requested that you provide any documents that would show that you were assigned by INCO to work at the RPP, the covered nuclear portion of the facility.  No response to this request was received.  

 

On July 1, 2004, the district office issued a recommended decision which concluded that you are not entitled to compensation under 42 U.S.C. § 7384s because the evidence failed to establish that the you are a covered employee, as defined by 42 U.S.C. § 7384l(1); and that you did not provide sufficient evidence to show that you were employed at an “atomic weapons employer facility” as defined in 42 U.S.C. § 7384l(5) nor that you were employed at a “Department of Energy facility” as defined by 42 U.S.C. § 7384l(12). 

 

FINDINGS OF FACT

  1. You filed a claim for benefits under the EEOICPA on September 24, 2001. 

  2. You were employed by INCO Alloys International Inc. in Huntington, West Virginia from 1956 to 1986.  

  3. The DOE’s corporate verifier for INCO confirmed that they have no record that you worked at  the RPP, the covered nuclear portion of that facility.  The Huntington Pilot Plant was a Department of Energy (DOE) facility from 1951 to 1963 and from 1978 to 1979.  INCO was the DOE contractor at that facility from 1951 to 1963. 

  4. You did not provide sufficient employment evidence to establish that you were assigned by INCO to work in the RPP.  

  5. You were advised of the deficiencies in your claim and provided with the opportunity to correct them. 

 

CONCLUSIONS OF LAW

 

I have reviewed the recommended decision issued by the Cleveland district office on July 1, 2004.  I find that you have not filed any objections to the recommended decision, and that the sixty-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

 

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that you have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and silicosisSee 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a).  Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility.  See 42 U.S.C. §§ 7384l(4)-(7), (9), (11). 

 

Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that you were a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b).  While you did provide evidence of a diagnosis of stomach cancer, the record in its current posture lacks proof that you worked in covered employment under the Act. 

 

The record shows that by letters dated January 29, 2002 and January 25, 2004, you were requested to provide the required information to prove you had covered employment under the Act. 

 

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

 

The record in this case shows that you did not submit proof that you had covered employment under the Act.  Therefore, your claim must be denied for lack of evidence showing that you had covered employment under the EEOICPA. 

 

For the above reasons 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.

 

 

Cleveland, Ohio

 

_______________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch