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:

55211-2004

DECISION DATE:

September 16, 2004

 

NOTICE OF FINAL DECISION

 

This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reason discussed below, your claim for benefits is denied.

 

STATEMENT OF THE CASE

 

You filed a claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), on March 8, 2004. You indicated your employment classification or type of employment as Atomic Weapons Employer.  On Form EE-3 (Employment History for Claim under EEOICPA) you stated that you had been employed as a supervisor for the installation of refrigeration equipment and other work while employed by the Way Engineering Company at Texas City Chemical, Inc., located in Texas City, Texas from 1952 until 1956.  The Department of Energy (DOE) has identified Texas City Chemicals as an Atomic Weapons Employer (AWE) for the time period 1952 through 1956.  You stated that as a result of your exposure at Texas City Chemicals while employed by Way Engineering Co. that you developed a skin disease that was possibly skin cancer.

 

The district office reviewed your application and evidence.  In seperate letters dated March 15, 2004, the district office noted that you had not submitted medical or employment evidence in support of your claim.   The letter addressing employment evidence indicated that while we had initiated a request for proof of employment with the DOE, they had been unable to verify your employment at Texas City Chemical, Inc.  The district office asked you to provide evidence of your employment and listed a variety of documents such as time and attendance forms, wage statements, or other records that could be used to establish employment.  The letter included Form EE-4 (Affidavit of Employment) that you could use to have other individuals complete statements in support of your employment allegations.  The Social Security Administration (SSA) Form SSA-581, which can be used to verify your Social Security employment and employer history with your authorization, was included with the letter for your use if you wished the district office to request the information directly from SSA.  A follow-up request for medical information was sent to you on May 26, 2004.

 

On June 8, 2004, you had a telephone conversation with a district office claims examiner.  You stated that you had been employed by Way Engineering which was a contractor at the Texas City Chemical site and you were not employed directly by Texas City Chemical, Inc.  The claims examiner informed you that employees of contractors or subcontractors of an Atomic Weapons Employer were not “covered employees” under the EEOICPA. 

 

On June 9, 2004, the district office informed you in a letter that under the EEOICPA only employees hired directly by the AWE facility (such as Texas City Chemicals) were covered under the Act.  The letter explained that the definition of an “atomic weapons employee” is an individual employed by an Atomic Weapons Employer during a period when the employer was processing or producing for the use by the United States material that emitted radiation and was used in the production of atomic weapons, excluding uranium mining and milling.  The letter requested that you provide evidence that you were employed directly by Texas City Chemical, Inc. and explained that if additional employment evidence was not received within 30 days, a recommended decision would be issued based on the information in file.

 

On June 15, 2004, the district office received medical evidence provided by your physician, Dr. Anh V. Nguyen, M.D.   This evidence included a pathology report  describing a specimen from skin on your left forearm obtained on May 4, 2004 and provided a diagnosis of malignant melanoma (skin cancer).

 

On July 12, 2004, the district office issued a recommended decision to deny your claim.  The recommended decision stated that the evidence of record did not establish that you could be considered a “covered employee” as that term is defined under 42 U.S.C. § 7384l.  The file was transferred to the Final Adjudication Branch (FAB) on that date.

 

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a).  If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence in the record and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).

 

You have not raised any objections to the district office’s recommended decision pursuant to § 30.310(a) of the implementing regulations and the 60-day period for filing such objections, as allowed under § 30.310(a) of the implementing regulations (20 C.F.R. § 30.310 (a)), has expired.

 

Based on the evidence contained in the case record, the Final Adjudication Branch makes the following:

 

FINDINGS OF FACT

 

1.      You filed a claim for compensation on March 8, 2004.

 

2.      You did not provide evidence sufficient to establish that you had covered employment with a DOE or AWE facility.

 

3.      You provided medical evidence that established you had been diagnosed with malignant melanoma (skin cancer) on May 5, 2004.

 

Based on the above noted findings of fact in this claim, the Final Adjudication Branch makes the following:

 

CONCLUSIONS OF LAW

 

Section 7384l states:

 

(1)  The term “covered employee” means any of the following:

 

(A)  A covered beryllium employee.

(B)  A covered employee with cancer.

(C)  To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

 

(2)  The term “atomic weapon” has the meaning given that term in section 11 d.* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(d)).

 

(3)  The term “atomic weapons employee” means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

 

(4)  The term “atomic weapons employer” means an entity, other than the United States, that—

 

(A)  processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(B)  is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

 

(5)  The term “atomic weapons employer facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

 

Section 30.111(a) of the regulations  (20 C.F.R. § 30.111(a)) states that, "Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in 20 C.F.R. § 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 these regulations."  

 

You stated that you were employed by a subcontractor (The Way Engineering Co.) at an Atomic Weapons Employer facility (Texas City Chemicals, Inc.) and you were not an employee of Texas City Chemicals, Inc.   EEOICPA coverage for Atomic Weapons Employers (AWE) is not extended to contractors and subcontractors of the AWE but only to individuals employed directly by the AWE.  Your work at the AWE site is not qualifying because you worked for a company other than the AWE.  Therefore, you are not a “covered employee” under the Act.

 

The undersigned has reviewed the recommended decision issued by the district office on July 12, 2004, and finds that it is in accordance with the facts and the law in this case.  It is the decision of the Final Adjudication Branch that your claim for compensation is denied.

 

Denver, Colorado

September 16, 2004

 

 

 

 

Janet R. Kapsin

Hearing Representative