Docket Number: 10568-2003

REVIEW OF THE WRITTEN RECORD

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning 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). On March 29, 2003, you wrote to the FAB and filed an objection to the March 11, 2003 recommended decision of the Cleveland district office. Your objection has been considered by means of a review of the written record.

 

STATEMENT OF THE CASE

 

On September 24, 2002, you filed a claim (Form EE-2), for survivor benefits under the EEOICPA and identified bladder cancer as the diagnosed condition being claimed. You submitted an employment history form (EE-3) in which you stated that Morrison Knudson Co. employed your husband from September 29, 1974 to February 28, 1976, General Dynamics employed your husband from September 26, 1976 to November 24, 1976, and that Cleveland Wrecking employed your husband until May 31, 1988[1]. You stated that your husband wore a dosimetry badge while employed. You submitted a copy of your husband’s death certificate which indicates he died on April 9, 1998 due to bladder cancer and renal failure. You submitted a copy of your marriage certificate which shows that you were married to the deceased employee on June 14, 1956. You submitted medical evidence which included Dr. Karen Harris’ December 30, 1997 needle aspirate report in which she diagnosed your husband with transitional cell carcinoma. The medical evidence also included a copy of the Sewickley Valley Hospital discharge summary in which Dr. Scott Piranian diagnosed your husband with transitional cell carcinoma of the bladder with bony metastases and lymphatic metastases.

 

On November 14, 2001, Department of Energy (DOE) representative Roger Anders advised the district office via Form EE-5 that the employment history you provided contained information that was not accurate. In an attachment, Mr. Anders advised that your husband worked at a portion of a facility whose activities came under the auspices of the DOE’s Naval Nuclear Propulsion Program. The Cleveland district office issued a recommended decision on March 11, 2003, in which it concluded that the evidence of record did not establish that your husband was a covered employee with cancer under § 7384l(9) of the EEOICPA because he was not a DOE employee or contractor employee at a DOE facility, nor an atomic weapons employee at an atomic weapons employer facility as those facilities are defined in §§ 7384l(4) and 7384l(12) of the EEOICPA. 42 U.S.C. §§ 7384l(4), 7384l(9), 7384l(12).

 

Objections

 

Section 30.310(a) of the EEOICPA implementing regulations provides that, “[w]ithin 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). Section 30.312 of the EEOICPA implementing regulations provides that, “[i]f the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record.” 20 C.F.R. § 30.312. On March 29, 2003, you wrote to the FAB and advised that you objected to the recommended decision of the Cleveland district office. You stated that your husband worked as a laborer dismantling the old atomic power plant at Shippingport, PA and he worked side by side with employees that were covered. You stated that it was discrimination for your husband not to be considered covered under the EEOICPA. Your objection has been considered by means of review of the written record.

 

STATEMENT OF THE LAW

 

The EEOICPA was established to provide compensation benefits to covered employees (or their eligible survivors) that have been diagnosed with designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for the DOE and certain of its vendors, contractors and subcontractors. The EEOICPA, at § 7384l(1), defines the term “covered employee” as (A) a covered beryllium employee, (B) a covered employee with cancer, and (C) to the extent provided in § 7384r, a covered employee with chronic silicosis (as defined in that section). 42 U.S.C. §§ 7384l(1), 7384r. To establish entitlement to benefits under the EEOICPA due to cancer, you must establish that the deceased employee contracted the cancer after beginning work at a DOE or atomic weapons employer facility. 42 U.S.C. § 73841(9). The EEOICPA, at § 7384l(12)(A), defines the term DOE facility “as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located…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).” 42 U.S.C. § 7384l(12).

 

It is the claimant’s responsibility to establish entitlement to benefits under the EEOICPA. The EEOICPA regulation at § 30.111(a) states, “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 § 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 these regulations, the claimant also bears the burden of providing to OWCP 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.” 20 C.F.R. §§ 30.110, 30.111(a).

 

After considering the written record of the claim and after conducting further development of the claim as was deemed necessary, the FAB hereby makes the following:

 

FINDINGS OF FACT

 

 

 

 

1. You filed a claim for survivor benefits under the EEOICPA on September 24, 2001.
2. Your husband was employed at the Shippingport Atomic Power Plant with the portion of the facility whose activities came under the auspices of the Department of Energy’s Naval Nuclear Propulsion Program.
3. Dr. Karen Harris diagnosed your husband with transitional cell carcinoma on December 30, 1997.
4. Your husband died on April 9, 1998, due to bladder cancer and renal failure.
5. You are the surviving spouse of [Employee].

 

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

 

CONCLUSION OF LAW

 

Pursuant to § 7384l(12)(A) of the EEOICPA and § 30.5(v)(1) of the implementing regulations, employees engaged in Naval Nuclear Propulsion Program activities are excluded from coverage under the EEOICPA. The evidence of record establishes that your husband was a Naval Nuclear Propulsion Program employee; therefore he does not meet the definition of a covered employee with cancer as defined in § 7384l(9) of the EEOICPA and § 30.210 of the implementing regulations. Because your husband was not a covered employee with cancer, your claim for benefits is denied.

 

Washington, DC

 

 

 

 

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch