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:                       51475-2004

 

DECISION DATE:                            August 20, 2004

 

 

 

REVIEW OF THE WRITTEN RECORD AND

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 November 19, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA) and indicated that the employee was diagnosed with brain, rib cage, heart, and lung cancer.  Medical documentation submitted in support of the claim showed that the employee was diagnosed as having cancer with an unknown primary cancer site on April 30, 1981.  In addition, the employee’s death certificate indicated that he was diagnosed as having metastatic adenocarcinoma of the lung eight years before the date of death, May 23, 1989. 

 

You also filed a Form EE-3 (Employment History) and indicated that the employee worked, from 1983 to 1987, at the Lawrence Berkeley National Laboratory (LBNL).  In correspondence dated April 5, 2004, a representative of the Department of Energy (DOE) reported that the employee was employed at LBNL from February 1, 1983 to March 31, 1988.  The LBNL is recognized as a covered DOE facility from 1939 to the present.  See DOE, Office of Worker Advocacy, Facility List. 

 

By letter dated April 22, 2004, the Seattle district office notified you that the medical documentation provided indicated that the onset of the employee’s cancer occurred twenty-two months prior to the time he began employment at LBNL.  Further, the district office requested that you submit any additional evidence of either the employee’s cancer or his employment history, within fourteen days of the date of the letter, in order for the district office to determine if the employee was diagnosed as having a covered condition with a diagnosis date subsequent to the first date he began his employment at LBNL.  You submitted no additional evidence to show that the employee was diagnosed as having cancer on a date subsequent to his first date of employment at LBNL.  

 

On June 10, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office found that the date of diagnosis of the employee’s illness preceded the initial date of his employment at LBNL, and concluded that the employee therefore did not qualify as a covered employee with cancer as defined in § 7384l(9).  See 42 U.S.C. § 7384l (9).  The district office also concluded that you are not entitled to compensation under § 7384s(e)(1).  See 42 U.S.C. § 7384s(e)(1).

 

The Final Adjudication Branch received your letter of objection to the recommended decision and additional medical documentation on June 16, 2004.  You wrote that you had recently found the enclosed “medical letters from the doctors caring for [Employee] at the time of retirement.”  You stated that the employee worked at UC Berkeley, in the “Groonosh Building,” from about 1960 to 1973, and that there were “unvented pipes on some of the labs he worked at.”  The additional medical documentation you provided included a copy of a letter from Robert J. Stallone, M.D., dated September 25, 1987, and indicated that the employee was under the doctor’s care “since April, 1981 and underwent surgery for carcinoma of the lung in May, 1981.”  The letter continued, “The patient now has developed metastatic adenocarcinoma of the pericardium and is totally incapacitated from any type of employment.”  Another letter you submitted is from Mervyn A. Sahud, M.D., and dated September 28, 1987.  Doctor Sahud wrote that the employee “is a 50-year-old electrician who has been treated for adenocarcinoma, lung primary, since April 1981, when he first underwent a left upper lobe resection followed by radiation therapy and chemotherapy.  He had a relapse in May 1985 with pericardial tamponade and underwent a partial pericardiectomy followed by chemotherapy.”  You also submitted various insurance disability forms.  The documentation submitted on June 16, 2004 showed that the employee was diagnosed with cancer in 1981, prior to the initial date of his employment at LBNL, and that he had a “relapse,” or recurrence, of the same cancer in 1985 and metastatic adenocarcinoma of the pericardium in 1987. 

 

FINDINGS OF FACT

  1. You filed a claim for survivor benefits under the EEOICPA on November 19, 2003.
  2.  

  3. The employee worked at LBNL, a covered DOE facility, from February 1, 1983 to March 31, 1988. 
  4.  

  5. The employee was diagnosed with cancer on April 30, 1981, a date prior to his initial date of employment at LBNL.

 

CONCLUSIONS OF LAW

 

The 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. § 30.312.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record, in the absence of a request for a hearing.  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.  The Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s). 

 

The undersigned has reviewed the Recommended Decision issued by the Seattle district office on June 10, 2004 as well as your written objections and the additional medical documentation submitted on June 16, 2004.  In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, the covered employees (or their eligible survivors), must establish that they 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/or chronic 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). 

 

You filed a claim based on cancer.  Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made.  See 20 C.F.R. § 30.211.  The evidence shows that the employee was diagnosed as having cancer with an unknown primary on April 30, 1981, a recurrence of cancer in 1985, and metastatic cancer in 1987.  In order to be afforded coverage under § 7384l (9) of the EEOICPA based on a “covered employee with cancer,” the claimant must show the employee contracted that cancer after beginning employment at a Department of Energy or atomic weapons facility.  See 42 U.S.C. § 7384l(9)(B). 

 

The evidence indicates that the employee was diagnosed with adenocarcinoma of the lung on April 30, 1981, prior to covered employment.  In May 1985, the employee had a “relapse” of the cancer, which is a reoccurrence of a previously diagnosed cancer.  The relapse of cancer, within a covered period of employment, would not qualify as a primary cancer under the EEOICPA, since the initial diagnosis of the primary cancer was prior to the start of verified employment.  See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b). 

 

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 § 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 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.  See 20 C.F.R. § 30.111(a). 

 

The evidence of record is insufficient to establish that the worker contracted cancer after beginning employment at a covered DOE facility.  Thus, although you submitted medical documentation showing a diagnosis of cancer, the employee did not contract that cancer after beginning employment at a Department of Energy facility.  See 42 U.S.C. § 7384l(9).  Therefore, your claim must be denied for lack of proof that the employee was a “covered employee with cancer” 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.

 

Seattle, WA

 

 

 

_______________________________________

James T. Carender

Hearing Representative, Final Adjudication Branch