Division of Energy Employees Occupational Illness Compensation (DEEOIC)
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Burden of Proof
Below are the head notes for the FAB decisions and orders relating to the topic heading, Burden of Proof. The head notes are grouped under the following subheadings: Acceptance under former Part D, Claimant’s responsibilities, Consequential conditions, Covered employment, Exposure, Medical evidence of covered illness under Part E, and Medical evidence of occupational illness under Part B. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.
Acceptance under former Part D
- Claimant is entitled to medical benefits under Part E for asbestosis where the evidence of record established that: (1) a Physicians Panel review under former Part D was completed; and (2) the Secretary of Energy accepted the Panel’s affirmative determination that the claimant had sustained a covered illness at a DOE facility. EEOICPA Fin. Dec. No. 10000216-2005 (Dep’t of Labor, March 4, 2005); EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005).
- The Secretary of Energy’s acceptance of a Physicians Panel determination under former Part D that the employee’s bronchitis and pneumonia were due to exposure to a toxic substance at a DOE facility required OWCP to accept the claim under Part E for bronchitis and pneumonia and to award medical benefits for those two conditions beginning on the date the claim was filed. EEOICPA Fin. Dec. No. 10002490-2005 (Dep’t of Labor, July 8, 2005).
- Subject to the exceptions expressly provided in the Act and regulations, the claimant bears the burden of providing OWCP with all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all claim criteria. EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003); EEOICPA Fin. Dec. No. 10568-2003 (Dep’t of Labor, June 16, 2003); EEOICPA Fin. Dec. No. 22675-2002 (Dep’t of Labor, April 21, 2004); EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003).
- A claimant will not be entitled to any presumption provided for in the regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption. EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003).
- 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 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. EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003); EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002); EEOICPA Fin. Dec. No. 10568-2003 (Dep’t of Labor, June 16, 2003).
- Although leukemia is a compensable cancer under Part B, in order to establish entitlement to compensation, the evidence must demonstrate that it is related to a period of employment specified by the Act. EEOICPA Fin. Dec. No. 13183-2003 (Dep’t of Labor, October 15, 2003).
- Medical evidence submitted by a claimant must include a date of diagnosis as it is needed to determine if an illness is related to employment at a covered facility. EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 2004).
- An injury, illness, impairment or disability sustained as a consequence of a covered beryllium illness must be established with a fully rationalized medical report by a physician that shows causal relationship. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of a covered beryllium illness, nor the belief by the claimant that the injury, illness, impairment or disability was caused by the covered beryllium illness, is sufficient in itself to prove a causal relationship. EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004).
- Employee satisfied his burden to prove that his coronary artery disease was a consequence of radiation treatment for his lung cancer. EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008).
- An affidavit from the general counsel of a labor union confirming employment of the worker at a covered facility was acceptable evidence of covered employment. EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002).
- Since DOE had no evidence that it employed the claimant or that the claimant’s employer was a DOE contractor, and there were numerous conflicts between affidavits and the employment history provided by the claimant, claimant did not prove by a preponderance of the evidence that he was a covered employee or that his employer was a DOE contractor. EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003).
- When the evidence submitted did not establish that the employee was assigned and/or worked within the covered portion of a larger establishment, the district office properly requested that additional evidence be submitted. EEOICPA Fin. Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004).
- OWCP has determined that employees who worked at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges. EEOICPA Fin. Dec. No. 17556-2003 (Dep’t of Labor, September 27, 2004); EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 2004).
- Affidavits from two co-workers stating the claimant volunteered for and/or was assigned work in the covered portion of the Huntington Pilot Plant demonstrate covered employment, even though the employer’s records only show that the claimant worked in non-covered portions of the plant. EEOICPA Fin. Dec. No. 19750-2004 (Dep’t of Labor, November 12, 2004).
- Claimant who worked at Hanford for Federal Prison Industries (FPI) under the purview of the U.S. Department of Corrections did not establish covered employment by a preponderance of the evidence. While he was working for FPI, claimant was a prisoner and did not receive regular earnings, did not have personal liberty, and did not have an employee-employer relationship with FPI. EEOICPA Fin. Dec. No. 22675-2002 (Dep’t of Labor, April 21, 2004).
- Proof of the issuance of film badges on three occasions established that claimant was present on Amchitka Island, but did not prove covered employment where the evidence showed that the claimant was on Amchitka Island as an employee of the state of Alaska and not pursuant to a contract between DOE and the state of Alaska. EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003).
- Where the claimant presented no evidence that the employee’s work at the Nevada Test Site was pursuant to a contract between U.S. Coast and Geodetic Survey and the AEC, and DOE denied that U.S. Coast and Geodetic Survey was a contractor or subcontractor, the claimant did not satisfy his burden of proof. EEOICPA Fin. Dec. No. 30971-2002 (Dep’t of Labor, March 15, 2004).
- Claim for compensation must be denied if claimant has not established employment covered under EEOICPA with the required evidence. EEOICPA Fin. Dec. No. 34771-2003 (Dep’t of Labor, July 21, 2003).
- Claimants presented evidence that the employee’s work at the Nevada Test Site was pursuant to a contract between the U.S. Geological Survey (USGS) and the AEC, and therefore met their burden of proof to establish covered employment. EEOICPA Fin. Dec. No. 75271-2007 (Dep’t of Labor, August 29, 2007).
- Claimant who alleged that a combined AWE and beryllium facility where he had worked also met the “contract” test in § 7384l(12)(B)(ii) of EEOICPA and should be determined to be a DOE facility had the burden of proving that his employer entered into one of the types of contracts listed in that section with DOE (or one of its predecessor agencies). EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008).
- As part of its adjudication process, OWCP may perform a search through the Department of Labor’s Site Exposure Matrices (SEM) to ascertain whether a particular labor category could potentially have been exposed to toxic substances. The SEM contains a list of processes performed by different labor categories including uranium recovery, purification and recycle operations. EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006).
- In the absence of substantial evidence to the contrary, a covered beryllium employee under Part B shall be presumed to have been exposed to beryllium in the performance of duty if the employee: (1) was employed at a DOE facility; or (2) was present at a DOE facility; or (3) was present at a facility owned and operated by a beryllium vendor because of employment by either the United States, a beryllium vendor, or a contractor or subcontractor of the DOE during a period when beryllium dust, particles, or vapor may have been present at such a facility. EEOICPA Fin. Dec. No. 60165-2005 (Dep’t of Labor, May 10, 2005).
Medical evidence of covered illness under Part E
- An employee may satisfy his burden to prove causation under Part E even in a case where his Part B claim for the same illness underwent a dose reconstruction and the resulting determination of the probability of causation was less than 50%. A SEM search identified several toxic substances to which the employee may have been exposed and a DMC opined that such occupational exposure was at least as likely as not a significant factor in aggravating, contributing to or causing the employee’s non-Hodgkin’s lymphoma. Therefore, FAB denied his Part B claim because the probability of causation was less than 50%, while it accepted his Part E claim for the same illness. EEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).
- Where district medical consultant and employee’s attending physician disagreed on whether radiation therapy for employee’s lung cancer contributed to his heart disease, which led to congestive heart failure and death, the weight of the medical evidence was found to be represented by opinion of attending physician that was based on numerous physical examinations of employee, in combination with a well-rationalized, probative opinion supporting causal relationship submitted by a specialist. EEOICPA Fin. Dec. No. 10006745-2006 (Dep’t of Labor, July 27, 2006).
- In the case where an employee is not entitled to a presumption of causation under subsection (a) or (b) of § 7385s-4, the evidence must establish that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s illness and that it is at least as likely as not that the employee’s exposure to a toxic substance was related to his work at the DOE facility. EEOICPA Fin. Dec. No. 10016501-2007 (Dep’t of Labor, May 7, 2007).
- The FAB denied claim of survivors for employee’s possible CBD and breathing problems under Parts B and E of the Act. Under Part E, CBD may be established with a physician’s diagnosis and a review of the medical evidence as a whole. The statutory requirements that define CBD under Part B do not apply to the evaluation of CBD claims under Part E. In this case, the medical evidence was insufficient to establish that the employee was diagnosed with the claimed conditions of CBD and breathing problems. EEOICPA Fin. Dec. No. 10027260-2006 (Dep’t of Labor, December 6, 2006).
- Where the DMC found that abdominal aortic aneurisms are not known to be caused, contributed to, or aggravated by exposure to toxic substances, but the medical notes stated that the employee’s aneurism was not able to be surgically corrected because of the employee’s significant medical problems (including his covered illness), the DMC concluded that it was at least as likely as not that that covered illness was a significant factor in aggravating the employee’s aneurism. FAB agreed that the element of “aggravating” in the Part E causation standard was satisfied and awarded the employee medical benefits for his abdominal aortic aneurism. EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008).
- Where the DMC found that the employee’s covered illness was a significant factor in contributing to the employee’s congestive heart failure, FAB concluded that the element of “contributing to” in the Part E causation standard was satisfied and awarded him medical benefits for his congestive heart failure. EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008).
Medical evidence of occupational illness under Part B
- Under Part B, a medical report from the treating physician of a covered employee diagnosing COPD, as confirmed by a pulmonary function test, established the pre-1993 criterion for CBD of restrictive or obstructive lung physiology testing or diffusing lung capacity defect. EEOICPA Fin. Dec. No. 14718-2003 (Dep’t of Labor, September 30, 2004).
- A report from a state cancer registry may serve as an alternative to traditional medical evidence of the date of employee’s diagnosis of cancer. EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005).
- Medical evidence submitted by a claimant must include a date of diagnosis because it is needed to determine if occupational illness is related to employment at covered facility. EEOICPA Fin. Dec. No. 55793-2004 (Dep’t of Labor, September 22, 2004).
- A claim under Part B based on chronic silicosis must include a written diagnosis of that condition, signed by a physician, and must be accompanied by either a chest x-ray interpreted by a B reader or the result of a CAT scan or other imaging technique, or a lung biopsy consistent with silicosis. EEOICPA Fin. Dec. No. 55834-2004 (Dep’t of Labor, September 21, 2004).
- Employee’s death certificate indicating that employee was diagnosed with cancer is sufficient to satisfy the burden of proof for medical evidence of an occupational illness where all medical records have been destroyed. EEOICPA Fin. Dec. No. 57599-2005 (Dep’t of Labor, January 4, 2005).
