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:

56578-2004

DECISION DATE:

September 30, 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 April 9, 2004, you filed Form EE-2 (Claim for Survivor Benefits under the EEOICPA) based on the condition of liver cancer (metastatic hepatobiliary carcinoma).  You also submitted a Form EE-3 (Employment History), on which you indicated that [Employee] (the employee) worked at Bechtel Plant Machinery, Incorporated (Westinghouse Plant Apparatus Division) from October 1970 to August 1989, and with Westinghouse at the Naval Reactors Facility in Scoville, Idaho, from July 1, 1957 to July 31, 1961, July 1, 1965 to September 30, 1967, and September 1, 1968 to October 31, 1970.   You also provided dosimetry records associated with the Bettis Atomic Power Laboratory, the New London Submarine Base, the Westinghouse Plant Apparatus Division, and the Naval Reactors Facility.

 

The medical documentation of record indicated that the employee was diagnosed as having moderately to poorly differentiated adenocarcinoma of the liver (favored to be a hepatobiliary primary cancer). 

 

Information obtained from a Department of Energy representative and the Oak Ridge Institute for Science and Education (ORISE) database was negative for employment information pertaining to the employee. 

 

By letters dated April 26 and June 9, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim.  You were also notified that employment related to the Naval Nuclear Propulsion Program was specifically excluded from coverage under the EEOICPA.  You were requested to provide documentation of covered employment under the Act within thirty days of the district office letters.

 

By letter received on May 16, 2004, you advised the Seattle district office that you previously provided the employee’s complete employment history and documentation, which only included work performed at facilities dedicated to the Naval Nuclear Propulsion Program.

 

On July 26, 2004, the Seattle district office recommended denial of your claim for compensation.   The district office concluded that the employee does not qualify as a covered employee under § 7384l of the Act.  See 42 U.S.C. §§ 7384l.  The district office also concluded that the evidence of record was insufficient to establish that the employee was present at a covered facility, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors, during a covered time period.  See 42 U.S.C. § 7384l(10)-(12).  Finally, the district office concluded that you are not entitled to compensation as outlined under § 7384s of the EEOICPA.  See 42 U.S.C. § 7384s. 

 

FINDINGS OF FACT

 

  1. You filed a claim for survivor benefits on April 9, 2004.

 

  1. The employee was diagnosed as having liver cancer, a covered occupational illness under the EEOICPA.

 

  1. You did not provide sufficient evidence to establish that the employee engaged in covered employment under the EEOICPA.

 

CONCLUSIONS OF LAW

 

The undersigned has reviewed the recommended decision issued by the Seattle district office on July 26, 2004.  I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the sixty-day period for filing such objections, as provided for in § 30.310(a) has expired.  See 20 C. F. R. §§ 30.310(a), 30.316(a).

 

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, you must establish that the employee was 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) and (11). 

 

In order to be afforded coverage as a “covered employee with cancer,” you must show that the employee was 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). 

 

Further, § 7384l(12) of the Act provides a definition of a Department of Energy facility and specifically exempts the Nuclear Propulsion Program. 

 

The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

 

(A)       in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds,
or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program) (emphasis added).

 

42 U.S.C. § 7384l(12)(A). 

 

In this case, the employment evidence you provided indicated that the employee worked at the Naval Reactors Facility (NRF), the New London Submarine Base, the Westinghouse Plant Apparatus Division (Bechtel Plant Machinery, Inc.) and the Bettis Atomic Power Laboratory, which provided products and services to the Naval Nuclear Propulsion Program.  Consequently, this employment is specifically excluded from coverage under the Act.  See 42 U.S.C. § 7384l(12)(A).

 

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 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).

 

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

 

 

_______________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch