Docket Number: 34771-2003

REVIEW OF THE WRITTEN RECORD

AND 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 of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim for benefits is denied.

STATEMENT OF THE CASE

On August 14, 2002, you filed a Form EE-2 (Survivor’s Claim for Benefits under EEOICPA) seeking compensation as the eligible surviving beneficiary of your husband, [Employee]. On the EE-2 form, you indicated that he had been diagnosed with colon cancer. In support of your claim, you submitted medical evidence that confirmed the diagnosis of the claimed condition. You also indicated that [Employee] was a member of the Special Exposure Cohort having been employed at the West Kentucky Wildlife Management area near the Paducah Gaseous Diffusion Plant.

On September 10, 2002, the district office advised you that the corporate verifier, Oak Ridge Institute for Science and Education, had sent notice to the district office that it had no employment records for [Employee], and that the Social Security Earnings statement and affidavits submitted detail employment for the Department of Fish and Wildlife for the State of Kentucky. The district office requested that you provide proof of employment with a contractor or subcontractor for the Department of Energy (DOE) within thirty days. You did not respond to this request.

The district office reviewed the record and found that you submitted a claim for compensation under the EEOICPA. It was further found that no evidence was submitted that supported the claim that [Employee] had been employed at a facility covered under the Act. Therefore, on October 30, 2002, the district office recommended the denial of your claim.

Section 30.316(b) of the EEOICPA implementing regulations states that if the claimant files objections to all or part of the recommended decision, the FAB reviewer will issue a decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary. 20 C.F.R. § 30.316(b). On November 19, 2002, the Final Adjudication Branch received your letter of appeal. In your statement of appeal, you objected to the conclusion that you did not submit evidence establishing employment at a covered facility for [Employee]. On May 21, 2003, you submitted additional evidence regarding employment for [Employee]. This additional evidence consisted of a licensing agreement between the Commonwealth of Kentucky and the U.S. Atomic Energy Commission dated October 22, 1959, and a 1989 wildlife compliance inspection of the area conducted by the General Services Administration.

FINDINGS OF FACT

1. You filed a claim for compensation as an eligible surviving beneficiary of [Employee].
2. [Employee] was employed by the Kentucky Department of Fish and Wildlife Resources.
3. The Department of Energy indicated that there was no record of [Employee]’s employment at the Paducah Gaseous Diffusion Plant.
4. You did not establish that there was a contractual relationship between the State of Kentucky, Department of Fish and Wildlife Resources and the Department of Energy.

CONCLUSIONS OF LAW

In determining whether [Employee] was employed by a Department of Energy contractor due to services being rendered pursuant to a contract, the Final Adjudication Branch must examine two critical issues. Firstly, we must establish how a DOE contactor is defined under the Act. Secondly, we must determine the nature of the agreement between the parties, and if that agreement contains the essential elements of a contract, i.e., mutual intent to contract and the exchange of consideration or payment.

I conclude that the employee was not a DOE contractor employee. The EEOICPA program has established how a DOE contractor and subcontractor are to be defined. Program bulletin 03-27 sets forth the following definitions:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility. EEOICPA Bulletin No. 03-27, 2003.

Therefore, an entity must be engaged in a contractual business arrangement to provide services to the DOE in order to be a contractor or subcontractor.

The evidence submitted does not support the claim that [Employee]’s employer, the Kentucky Department of Fish and Wildlife Resources, had contracted with the Atomic Energy Commission or DOE to provide management and operating, management and integration, or environmental remediation at the facility. Consequently, [Employee]’s employer does not meet the definition of a DOE contractor. Furthermore, the mere existence of a formal written document authorizing a state or federal entity to perform work for DOE does not automatically make the entity a DOE contractor if the document and arrangement lack the elements necessary to constitute a contract. The license in this case permitted the state of Kentucky, Department of Fish and Wildlife Resources to utilize DOE land as a field trial area.

The Act is clear that its provisions extend compensation only to certain employees. These “covered employees” are defined as covered employees with cancer, covered beryllium employees, and covered employees with silicosis. The definition of a covered employee with cancer (who is a member of the Special Exposure Cohort[1]) is found in § 7384l(9)(A) of the Act. That section states that in order to be considered a covered employee with cancer one must have been a Department of Energy employee or contractor employee who contracted the cancer after beginning employment at a Department of Energy facility, or an atomic weapons employee who contracted cancer after beginning employment at an atomic weapons facility. 42 U.S.C. § 7384l(9)(A).

Based on the review of the record, the undersigned hereby concludes that the record supports the finding that [Employee] did not have covered employment as defined under the Act. Because you have not established, with the required evidence, employment covered under the EEOICPA, your claim for compensation must be denied.

Washington, DC

David E. Benedict

Hearing Representative