Docket Number: 22675-2002

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 February 19, 2002, you filed a Form EE-1 (Claim for Benefits under the EEOICPA), based on prostate cancer. You also filed a Form EE-3 (Employment History) that indicated, from 1944 to 1945, you were “assigned to grade work sites when [the] Hanford project was started,” that you were “a conscientious objector,” and treated as a prisoner at a camp near Hanford. You indicated that you are unsure if you wore a dosimetry badge.

You also signed and submitted a Form EE-4 (Employment History Affidavit) that provided additional employment information. You wrote that you worked, from May 15, 1944 to May 15, 1945, for the “United States Dept. of Corrections, Columbia Road Camp, Hanford Area, WA.” You continued that you were a “Grader operator in and around all of the atomic energy facilitys and surrounding area.” A representative of the Department of Energy (DOE) reported that it had searched various employment records, including the records of General Electric (GE), Hanford Environmental Health Foundation (HEHF) and DuPont, and the Hanford Site contractor records contained no employment information regarding you.

By letters dated March 6, June 18, and August 27, 2002, the Seattle district office advised you that they had completed the initial review of your claim, and that additional employment and medical evidence was needed. Subsequently, you provided a pathology report dated November 9, 1993, signed by L. K. Hatch, M.D., that indicated a diagnosis of moderately differentiated prostatic adenocarcinoma; and copies of your medical records relating to possible cancer from Spokane Urology were received.

On September 30, 2002, the district office recommended denial of your claim for benefits. The district office concluded that the DOE did not confirm you worked for a covered facility, subcontractor or vendor and you did not submit employment evidence to support that you are a covered employee. The district office also concluded that you are not entitled to compensation as outlined in 42 U.S.C. § 7384s. See 42 U.S.C. § 7384s.

On October 7, 2002, you submitted additional employment information related to your work. You indicated that Walter J. Hardy worked with you “in irrigation,” for the U.S. Department of Corrections as an irrigation and grader operator, from 1944 to 1945. An affidavit, signed by Walter J. Hardy, indicated he worked, with you, from late 1944 to late 1945, with the U.S. Department of Corrections at Hanford, Washington, and that your work consisted of irrigation repair and operation of a road grader. He further affirmed that your work covered most areas of the restricted Hanford project. Also, an affidavit, by Don Hughart, affirmed that he was acquainted with you at the Hanford camp, called “Columbia Camp,” from sometime in 1944 to late 1945. He further affirmed that he worked in the orchards with you and that you operated a grader “in and around the Hanford Atomic Bomb Projects.”

On December 20, 2002, the Final Adjudication Branch remanded your claim for further development of the employment evidence, to determine whether you were an employee of the U.S. Department of Corrections in your status as a “prisoner” and if so, whether a contractual agreement existed between the U.S. Department of Corrections and the DOE.

By letter dated December 31, 2002, the district office posed certain questions to you regarding your claimed employment on the Hanford Site. The questions inquired whether you received earnings from your work, whether you had individual liberty, if you were in a “prisoner status” under the U.S. Department of Corrections, if the Columbia Camp was on the Hanford Site, and if you were on the Hanford Site all the time. You responded to the questions that you earned nine cents per hour for your labor, that you were followed to the Hanford gate and at night were free to go anywhere in the camp area, that you were in a “prisoner status,” that the Columbia Camp was just outside the Hanford gate, that you were not always on the Hanford Site but were there during the day in order to work, and that you returned to the camp at night.

On February 17, 2004, the district office again recommended denial of your claim for benefits. The district office concluded that the evidence of record is insufficient to establish that you were present at a covered facility as defined under § 7384l(12) while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under section 7384l(11) during a covered time period. See 42 U.S.C. § 7384l(11) and (12) The district office further concluded that you are not entitled to compensation pursuant to 42 U.S.C. § 7384s.

FINDINGS OF FACT

1. You filed a claim for employee benefits on February 19, 2002.
2. You submitted medical documentation adequate to establish a diagnosis of prostate cancer.
3. You did not provide sufficient evidence to establish that you engaged in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on February 17, 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 60-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 the Energy Employees Occupational Illness Compensation Program Act, you must establish that you were diagnosed as having a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 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).

In order to be afforded coverage under § 7384l(9) of the EEOICPA as a “covered employee with cancer,” the claimant must show the employee met any of the following:

(I) A Department of Energy employee who contracted that cancer after beginning employment at a Department of Energy facility;

(II) A Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility;

(III) An Atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons facility.

42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b). The record lacks proof that you worked in covered employment under the Act. Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated (FPI), are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act. The question of prisoners’ employment status for purposes of EEOICPA is properly resolved by focusing on the nature of the relationship between the prisoner and FPI. The relationship between an inmate worker and FPI is a compulsory assignment to work rather than a traditional contractual employer-employee relationship in which an employee bargains to provide his labor in return for agreed upon compensation and is free to quit at will. Not even FPI’s payments to prison laborers are a matter of a contractual right. Instead, they are remitted to the prisoner solely by congressional grace and governed by the rules and regulations promulgated by the Attorney General. Prisoners working for prison-run industries are not considered employees.

The record shows that, by letters dated March 16, June 18, and August 27, 2002, you were requested to provide the required information to prove covered employment under the Act. You did not provide sufficient evidence to prove covered employment.

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 every criterion under any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence means it is more likely than not that a given proposition 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 all criteria for benefits set forth in the regulations. See 20 C.F.R. § 30.111(a).

The record in this case shows that although you submitted medical documentation showing a diagnosis of prostate cancer, you did not submit proof of covered employment under the Act. Federal prison inmates who worked at a DOE facility for Federal Prison Industries, Incorporated are not “employees” within the meaning of the EEOICPA and, therefore, not eligible for benefits under the Act. Therefore, your claim must be denied for lack of evidence of proof of covered employment 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

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Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch