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]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

75271-2007

75273-2007

DECISION DATE:

August 29, 2007

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the claimants’ 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, FAB accepts and approves the claims for compensation under Part B of EEOICPA.  

 

STATEMENT OF THE CASE

 

On January 26, 2006, the claimants each filed a Form EE-2 claiming for survivor benefits under EEOICPA as surviving children of [Employee], based on the condition of chondrosarcoma (bone cancer).   They submitted a copy of [Employee]’s death certificate, which indicates his marital status was “divorced” at the time of his death on January 29, 2002 due to chondrosarcoma with lung metastases.  They also provided copies of their birth certificates showing that they are children of [Employee][Claimant #1] also provided copies of her marriage certificates documenting her changes of name.

 

[Claimant #1 and Claimant #2] submitted medical evidence including a pathology report showing [Employee] had a diagnosis of metastatic high grade chondrosarcoma on December 19, 2001. 

 

A representative of the Department of Energy (DOE) verified that [Employee] was employed by the U.S. Geological Survey (USGS) at the Grand Junction Field Office from August 8, 1951 to March 8, 1978, and stated that he was issued dosimetry badges associated with USGS at the Nevada Test Site on 66 separate occasions between November 5, 1958 and July 11, 1966.  Additionally, other official government records including security clearances, applications for federal employment, and personnel actions were submitted, indicating that [Employee] was employed by USGS and resided in Mercury, Nevada from September 25, 1958 to June 11, 1962.   Mercury, Nevada was a town that was within the perimeter of the Nevada Test Site and housed those who worked at the site.

 

On May 18, 2007, the Seattle district office issued a recommended decision to accept [Claimant #1 and Claimant #2]’s claims based on the employee’s condition of chondrosarcoma.  The district office concluded that the employee was a member of the Special Exposure Cohort (SEC), and was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA.  The district office therefore concluded that [Claimant #1 and Claimant #2] were entitled to compensation in equal shares in the total amount of $150,000.00 under Part B. 

 

The evidence of record includes letters received by FAB on May 23 and June 1, 2007, signed by [Claimant #2 and Claimant #1, respectively, whereby they both indicated that they have never filed for or received any payments, awards, or benefits from a lawsuit, tort suit, third party claim, or state workers’ compensation program, based on the employee’s condition.  Further, they confirmed that they have never pled guilty to or been convicted of fraud in connection with an application for, or receipt of, federal or state workers’ compensation.   

 

On May 26 and June 6, 2007, FAB received written notification from [Claimant #2 and Claimant #1], respectively, indicating that they waive all rights to file objections to the findings of fact and conclusions of law in the recommended decision. 

 

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

 

FINDINGS OF FACT

 

1.      On January 26, 2006, [Claimant #1 and Claimant #2] filed claims for survivor benefits under EEOICPA.

 

2.      [Claimant #1 and Claimant #2] provided sufficient documentation establishing that they are the eligible surviving children of [Employee].

 

3.      A representative of DOE verified that [Employee] was issued dosimetry badges for his employment at the Nevada Test Site, a covered DOE facility, in association with USGS, a DOE contractor, from November 5, 1958 to July 11, 1966. 

 

4.      [Employee] was diagnosed with chondrosarcoma (bone cancer), which is a “specified” cancer under EEOICPA, on December 19, 2001, after beginning employment at a DOE facility.   

 

5.      The evidence of record supports a causal connection between the employee’s cancer and his exposure to radiation and/or a toxic substance at a DOE facility while employed in covered employment under EEOICPA. 

 

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

 

CONCLUSIONS OF LAW

 

Section 30.316(a) of the regulations provides that, if the claimant waives any objections to all or part of the 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).  [Claimant #1 and Claimant #2] waived their right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on their claims for survivor benefits under EEOICPA.   

 

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC:  DOE employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This addition to the SEC became effective July 26, 2006.

 

The employment evidence in this case is sufficient to establish that the employee was present at the Nevada Test Site for an aggregate of at least 250 work days, from September 1958 through at least November 2, 1962, and qualifies him as a member of the SEC.  However, for this employment to be considered covered employment, it must also be determined that the employee was employed at a DOE facility by DOE, a DOE contractor, subcontractor or vendor.  In this regard, the case was referred to the Branch of Policies, Regulations and Procedures (BPRP) for review and determination.

 

In its written determination dated August 6, 2007, BPRP indicated that a civilian employee of a state or federal government agency can be considered a “DOE contractor employee” if the government agency employing that individual is:  (1) found to have entered into a contract with DOE for the accomplishment of services it was not statutorily obligated to perform; and (2) DOE compensated that agency for that activity. See EEOICPA Bulletin No. 03-26 (issued June 3, 2003).   BPRP evaluated the evidence of record including the following pertinent documents:

 

                 

In accordance with an agreement between our respective agencies, an advance of funds $56,400 is requested to finance the 1957 fiscal year program to be performed by the Geological Survey for the Division of Military Application (DMA).[1]

 

 

           

Advised that your draft rewrite of Memorandum of Understanding No. AT(29-2)-474, has been reviewed and is acceptable to the GS except for following changes in Article IV, Budgeting & Finance.  Also request that the amount available for NTS work in fiscal year 1959 be increased from $750,000 to 837,000 and that available for the GNOME program be increased from $85,000 to $91,000.

 

 

 

 

These documents clearly show that there was an agreement for payment, by which USGS performed work for the AEC at the Nevada Test Site.

 

BPRP then turned to the final issue to be addressed, which was whether the work performed by  USGS at the Nevada Test Site was work that USGS was not statutorily obligated to perform.  A review of the USGS website[2] showed that since being founded in 1879, its statutory obligations have changed.  Primarily, its function has been topographical mapping and gathering information pertaining to soil and water resources.  Also, with advances in science, USGS has similarly evolved to meet these changes.  The USGS website makes it clear that in the post-war era, USGS was grappling to keep up its scientific pace and that it did so, in part, with money from the Defense Department, the AEC, and from the states.  Further, BPRP noted that since the formation of USGS, legislation has changed its statutory obligations over the years, whereby seven legal changes to the USGS statutory obligations pertain in some way to DOE or its predecessor agencies.  These changes include:  geothermal energy; gathering information on energy and mineral potential; geological mapping of potential nuclear reactor sites and geothermal mapping; working with the Energy Research and Development Administration, a DOE predecessor, on coal hydrology; consulting with DOE on locating a suitable geological repository for the storage of high-level radioactive waste and a retrievable storage option; monitoring the domestic uranium industry; and to cooperate with DOE and other federal agencies on “continental scientific drilling”.   

 

Today, USGS describes itself in the following manner:

 

As the Nation’s largest water, earth, and biological science and civilian mapping agency, the U.S. Geological Survey (USGS) collects, monitors, analyzes, and provides scientific understanding about natural resource conditions, issues, and problems.  The diversity of our scientific expertise enables us to carry out large-scale, multi-disciplinary investigations and provide impartial scientific information to resource managers, planners, and other customers.

 

As described, while providing geological support to DOE may be part of what USGS is statutorily obligated to perform in 2007, the totality of the evidence suggests this was not always true.  Therefore, BPRP concluded that the Memorandum of Understanding between USGS and the AEC constituted a contract by which USGS provided services to the AEC that USGS was not statutorily obligated to perform through at least 1961, the last year of which their analysis pertained.

 

In considering the above analysis and determination, FAB concludes that [Employee] is a member of the SEC and was diagnosed with chondrosarcoma, which is a “specified” cancer (bone), and is, therefore, a “covered employee with cancer.”  See 42 U.S.C. §§ 7384l(14)(C), 7384l(17), 7384l(9)(A).  [Claimant #1 and Claimant #2] are the eligible survivors of [Employee] as defined under EEOICPA, and are entitled to equal shares of the total compensation amount of $150,000.00.  See 42 U.S.C. §§ 7384s(e) and 7384s(a)(1).

 

Accordingly, [Claimant #1 and Claimant #2] are each entitled to compensation in the amount of $75,000.00.

 

Seattle, Washington

 

 

 

 

Kelly Lindlief

Hearing Representative

Final Adjudication Branch



[1]  The AEC’s Division of Military Application (DMA) was the division responsible for nuclear weapons testing.

[2]  Http://www.usgs.gov/aboutusgs/.