EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	105159-2010 105652-2010 105653-2010
DECISION DATE:	March 19, 2010

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, FAB approves the claims of [Claimant #2] and [Claimant #3] under Part B of EEOICPA, and they are each awarded compensation in the amount of $75,000.00.  [Claimant #1]’s claim under Part B is denied.

 

STATEMENT OF THE CASE

 

On November 8, 2002, [Employee’s wife] filed a Form EE-2 claiming survivor benefits under EEOICPA for both the employee’s death and his lung cancer and chronic obstructive pulmonary disease (COPD).  By final decision dated May 12, 2009, FAB accepted her Part E claim for the employee’s death due to COPD, and she was awarded $125,000.00.  [Employee’s spouse] died on July 1, 2009, and her pending Part B claim was administratively closed.

 

On August 12, 2009, [Claimant #1] filed a Form EE-2 claiming benefits based on the condition of lung cancer with metastasis to the adrenal gland.  On September 9, 2009, [Claimant #2] and [Claimant #3] filed Forms EE-2 claiming benefits based on the same condition.  A Department of Energy (DOE) representative verified [Employee]’s employment at the Hanford site, a DOE facility, by J.A. Jones, a DOE contractor, from January 20, 1981 to June 10, 1981.  Dosimetry records verified additional employment by J.A. Jones intermittently from June 11, 1981 to December 4, 1986, and by H.B. Painters, another DOE contractor, from January 18, 1983 to January 19, 1983, and from January 25, 1988 to December 14, 1988.  The Hanford site is a DOE facility from 1942 to present.[1]  The medical evidence submitted in support of the claim includes a cytology report dated March 11, 1997, which diagnosed small cell carcinoma (lung cancer).  Finally, [Claimant #1], [Claimant #2] and [Claimant #3] each submitted birth certificates which verify that [Employee] is their father.

 

To determine the probability of whether [Employee] contracted lung cancer in the performance of duty, the Seattle district office had referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in connection with the claim filed by [Employee’s wife].  On July 2, 2009, the district office received the NIOSH report, and using the dose information provided in this report, the district office utilized the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP) to calculate a 57.57% probability that [Employee]’s lung cancer was related to radiation exposure at the Hanford site.

 

On September 9, 2009, the district office received a letter from [Claimant #1], in which she stated that on August 2, 1999 she entered a guilty plea regarding charges of having made false statements to obtain federal workers’ compensation.  On December 18 and 19, 2009, the district office received signed letters in which [Claimant #2] and [Claimant #3] each affirmed that they never filed for or received any settlement or award from a tort suit related to the employee’s lung cancer, they never pled guilty to or were convicted on any charges connected with an application for or receipt of federal or state workers’ compensation, and have never filed for or received any payments, awards or benefits from a state workers’ compensation claim.  

 

On January 28, 2010, the Seattle district office issued a recommended decision to accept the claims of [Claimant #2] and [Claimant #3] for compensation under Part B, based on lung cancer, concluding that [Employee] was a covered employee with cancer, that the NIOSH dose estimates were completed in accordance with EEOICPA and its implementing regulations, and as he was a covered employee who is now deceased, his survivors are entitled to compensation in the amount of $150,000.00.  The district office determined that [Claimant #2] and [Claimant #3] are [Employee]’s only eligible survivors, however, because [Claimant #1]’s entitlement under EEOICPA is forfeited, based on 42 U.S.C. § 7385i, and the district office recommended denial of her claim.  The district office determined that [Claimant #2] and [Claimant #3] are entitled to compensation in the amount of $50,000.00 each.

 

On February 1, 2010, FAB received written notification from [Claimant #2] and [Claimant #3] indicating they waive all rights to file objections to the findings of fact and conclusions of law contained in the recommended decision.  On February 17, 2010, FAB received notification from [Claimant #1] who affirmed the same.

 

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

 

FINDINGS OF FACT

 

1.      On August 12, 2009, [Claimant #1] filed a claim under Part B, and on September 9, 2009, [Claimant #2] and [Claimant #3] also filed claims.

 

2.      [Employee] was employed at the Hanford site, a DOE facility, by DOE contractors, from January 20, 1981 to December 4, 1986, from January 18, 1983 to January 19, 1983, and from January 25, 1988 to December 14, 1988.

 

3.      [Employee] was diagnosed with lung cancer on March 11, 1997.

 

4.      The NIOSH-IREP calculated a 57.57% probability that [Employee]’s lung cancer was caused by radiation exposure at the Hanford site.

 

5.      [Claimant #2] and [Claimant #3] affirmed they never filed for or received any settlement or award from a tort suit in relation to lung cancer, have never pled guilty to or been convicted on any charges connected with an application for or receipt of federal or state workers’ compensation, and have never filed for or received any payments, awards or benefits from a state workers’ compensation claim.

 

6.      [Claimant #2] and [Claimant #3] are [Employee]’s eligible survivors.

 

7.      [Claimant #1] is not entitled to compensation under Part B due to a guilty plea to making false statements to obtain federal workers’ compensation.

 

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

 

CONCLUSIONS OF LAW

 

The 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.  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 statute 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 any and all criteria for benefits set forth in the regulations.  20 C.F.R. §§ 30.110, 30.111(a) (2009).

 

In order to be afforded coverage under Part B, the claimants must establish that [Employee] was diagnosed with an occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis.  Furthermore, the illness must have been incurred while in the performance of duty for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer.

 

As found above, the evidence of record verifies that [Employee] was employed at the Hanford site, a DOE facility, by DOE contractors, and that he was diagnosed with lung cancer on March 11, 1997.  FAB utilized NIOSH-IREP to confirm a 57.57% probability that [Employee]’s lung cancer was caused by radiation exposure while employed at the Hanford site.  Therefore, he is a “covered employee with cancer” and as he would be entitled to compensation but is now deceased, his survivors are entitled to compensation in the amount of $150,000.00.  42 U.S.C. § 7384s(a)(1).

 

[Claimant #2] and [Claimant #3] are [Employee]’s eligible surviving children as defined by 42 U.S.C. § 7384s(e)(3)(B).  However, pursuant to 42 U.S.C. § 7385i, any individual convicted of a violation of any federal or state criminal statute relating to fraud in either the application for or the receipt of benefits under any federal or state workers’ compensation law shall forfeit any entitlement to benefits under EEOICPA.  [Claimant #1] entered a guilty plea regarding charges of having made false statements to obtain federal workers’ compensation.  Accordingly, [Claimant #1]’s claim under Part B is denied.  Though the district office determined that [Claimant #2] and [Claimant #3] are each entitled to compensation under Part B in the amount of $50,000.00, they are both awarded compensation in the amount of $75,000.00.

 

Seattle, Washington

 

 

 

 

Aaron M. Warren

Hearing Representative

Final Adjudication Branch