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

 

 

EMPLOYEE:

[Name Deleted]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBER:

20121219-81137-1

DECISION DATE:

March 13, 2013

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted 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 claims under Parts B and E of EEOICPA are denied.

 

STATEMENT OF THE CASE

 

On October 7, 2009, [Employee’s son] filed a Form EE-2 claiming survivor benefits under Parts B and E of EEOICPA as a surviving child of [Employee] for his alleged stomach cancer and for his death on September 7, 1978, respectively.  On October 14, 2009, [Employee’s spouse] also filed a Form EE-2 claiming benefits as the surviving spouse of the employee.

 

The evidence of record includes a copy of the employee’s death certificate, which indicated that he died on September 7, 1978 due to carcinomatosis resulting from adenocarcinoma of the stomach.  [Employee’s spouse] submitted a copy of a marriage certificate indicating the she married the employee on June 10, 1972.  The employee’s death certificate identified [Employee’s spouse] as the employee’s surviving spouse.  [Employee’s spouse] documented her changes in surname.  [Employee’s son] submitted a copy of his birth certificate, which indicated that he was born on August 10, 1937 and that the employee was his father.  He also submitted a statement that he was capable of self-support at the time of the employee’s death.

 

[Employee’s son] submitted a Form EE-3 in which he alleged that the employee worked in Area IV of the Santa Susana Field Laboratory (SSFL) as an electrician for North American Aviation and Rockwell/Rocketdyne from 1973 to 1988.[1]  The current operator of the SSFL, the Boeing Company, submitted employment information indicating that the employee worked for Rocketdyne in Area II of the SSFL intermittently between November 7, 1955 and September 30, 1969.  However, Area II of the SSFL is not a Department of Energy (DOE) facility and employment in Area II is not covered DOE facility employment.  DOE was asked and was unable to confirm that the employee worked in Area IV of the SSFL. 

 

On February 16, 2010, the Seattle district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) received a signed and notarized letter dated February 7, 2010 from [Affiant], who indicated:

 

·        That he had worked at the SSFL and often visited Area IV to service pump systems;

·        That the employee had worked as a maintenance electrician on the third shift;

·        That he knew “for a fact” that the employee was often in Area IV in pursuit of his duties; and

·        That the employee worked at the SSFL for twenty years or more.

 

[Affiant] later submitted a signed and notarized Form EE-4 dated April 5, 2010, in which he indicated that he had worked with the employee and knew that the employee worked as a maintenance electrician in all areas of the SSFL, including Area IV, and specified that the employee had worked in Area IV from February 16, 1956 through July 29, 1957.

 

On April 15, 2010, the district office issued a recommended decision to accept [Employee’s spouse]’s Part B and Part E claim, based on the recommended findings that the employee qualified as a member of a Special Exposure Cohort (SEC) class at Area IV of the SSFL (based on [Affiant]’s statements), and that he was diagnosed with a “specified” cancer.  In that same decision, the district office recommended denial of [Employee’s son]’s Part B and Part E claim on the ground that he was not an eligible survivor.  On May 26, 2010, FAB issued a final decision consistent with the district office’s recommendation and awarded [Employee’s spouse] $150,000.00 under Part B and $125,000.00 under Part E, for a total award of $275,000.00. 

 

[Employee’s spouse] received payment of $275,000.00 on or about June 17, 2010.

 

On March 28, 2011, the Seattle district office received a signed and notarized letter dated March 21, 2011 from [Affiant], in which he stated:

 

·       That his EE-4 was false as he had never worked with the employee;

·       That the employee, on his deathbed, asked him to take care of [Employee’s spouse];

·       That he was called several times by [Employee’s spouse] who requested that he verify that the employee had worked in Area IV in support of her EEOICPA claim;

·       That in an effort to help [Employee’s spouse] with her EEOICPA claim he had executed a false affidavit;

·       That he had advised [Employee’s spouse] that they were committing fraud; and

·       That he wanted $50,000.00 from her EEOICPA award to spread among the employee’s grandchildren.

 

[Affiant] died in June 2011.  Thereafter, this matter was referred to the Las Vegas field office of the Office of Labor Racketeering and Fraud Investigations (OLRFI) within the Department of Labor’s Office of Inspector General.  In the course of OLRFI’s investigation, [Employee’s son] provided OLRFI with copies of three letters from [Affiant], as follows:

 

·        A January 3, 2010 letter addressed to [Employee’s son], in which [Affiant] admitted that he was “stretching things” when he had previously emailed him about where the employee worked at the SSFL.

·        A January 7, 2011 letter addressed to [Employee’s spouse], in which [Affiant] stated that he had:  (1) taped their previous discussions when he told her that they were committing fraud against the government and that the penalties were severe; and (2) agreed to lie about the employee’s employment record so that she would be eligible to receive $150,000.00 under EEOICPA (of which he would receive $50,000.00).

·        A January 20, 2011 letter addressed to [Employee’s spouse], in which [Affiant] stated that he “came up with the idea that I would ask for $50k for misrepresenting the truth” to “spread it among the children and at the same time I would be helping [Employee’s spouse],” and advised her that there was “quite a penalty for defrauding the Federal Government. . . .”

 

On September 24, 2012, the Director of DEEOIC issued an order vacating the May 26, 2010 final decision and returned the case file to the district office for further development and issuance of a new recommended decision regarding the eligibility of the claimants to receive survivor benefits under Part B and Part E.

 

On October 11, 2012, the district office sent letters to the claimants to notify them that it was unable to verify the employee’s employment in Area IV of the SSFL and requested that they submit evidence that the employee had worked for a DOE contractor or subcontractor at a DOE facility during a covered time period.  On October 23, 2012, the district office received a response from [Employee’s spouse], in which she indicated that she was not married to the employee at the time that he worked at the SSFL, that she could not send any information to the district office because she does not have the employee’s work records, and she was “introduced to” [Affiant] and was told that he and her husband had worked together.  [Employee’s son] did not respond to the October 11, 2012 letter.

 

On December 19, 2012, the district office issued a recommended decision to deny the claimants’ survivor claims under Part B and Part E on the ground that neither claimant had met their burden of proof to establish that the employee worked in Area IV of the SSFL, as alleged.  On January 14, 2013, [Employee’s son] submitted a signed waiver of his right to object to the findings of fact and conclusions of law of the recommended decision.

 

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

 

FINDINGS OF FACT

 

1.      [Employee’s son] and [Employee’s spouse] filed claims for survivor benefits on October 7 and 14, 2009, respectively.

 

2.      The evidence of record is insufficient to establish that the employee worked in Area IV of the SSFL during the time period of February 16, 1956 through July 29, 1957, as alleged.

 

3.      The employee died on September 7, 1978.

 

4.      [Employee’s son] is a child of the employee.

 

5.      [Employee’s spouse] is the surviving spouse of the employee, and was paid $275,000.00 pursuant to a prior final decision dated May 26, 2010.

 

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

 

CONCLUSIONS OF LAW

 

If a claimant waives any objections to all or part of a 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) (2012).  [Employee’s son] waived his right to object to the findings of fact and conclusions of law in the recommended decision.  [Employee’s spouse] did not object to the recommended decision within the 60-day period for filing an objection.

 

The regulations provide that the claimant bears the burden of providing the evidence necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion” required for eligibility.  The regulations also provide that “[p]roof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.”  20 C.F.R. § 30.111(a).

 

To qualify for benefits as a survivor of a “covered employee with cancer” under Part B of EEOICPA, a claimant must show that they are a qualified survivor of an employee who was either a DOE employee, or a DOE contractor employee, or an employee of an atomic weapons employer who contracted cancer in the performance of duty after beginning employment at a DOE facility or an AWE facility.  To qualify for survivor benefits under Part E, a claimant must establish that they are a survivor of a “covered DOE contractor employee” who was engaged in covered employment at a DOE facility and that the employee was determined to have contracted a covered illness through exposure at that facility.

 

However, as found above, the evidence of record does not establish that the employee worked at a DOE facility—Area IV of the SSFL—as alleged.  Thus, the claimants have not established the necessary criteria for eligibility under EEOICPA and their claims for survivor benefits under Parts B and E are denied.

 

Compensation received by [Employee’s spouse] under the vacated May 26, 2010 final decision now appears to have resulted in an overpayment.  The national office of DEEOIC will provide [Employee’s spouse] with written notification regarding the overpayment and its overpayment procedures at a later date.

 

Seattle, WA

 

 

 

 

Keiran Gorny

Hearing Representative

Final Adjudication Branch



[1]  Area IV of the SSFL is a covered DOE facility from 1955 to 1988 and from 1988 to the present for remediation. See http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (retrieved on February 27, 2013).