Docket Number: 10028664-2006

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10028664-2006

DECISION DATE: August 24, 2006

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch concerns the above 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 stated below, your claim for benefits is denied. A copy of this decision will be provided to your authorized representative.

STATEMENT OF THE CASE

On August 27, 2001, you filed Form EE-2, Claim for Survivor’s Benefits and a Request for Review by Medical Panels under EEOICPA. You stated on the Form EE-2 that you were filing for the aplastic anemia of your late spouse, [Employee], hereinafter referred to as “the employee.” The death certificate shows the employee died on March 5, 1997 from intracerebral hemorrhage, severe thrombocytopenia, and myelodysplastic syndrome.

On the Form EE-3, Employment History, you stated that the employee was employed in Oak Ridge, Tennessee as a quality assurance inspector by Union Carbide Corporation, Nuclear Division, at the K-25 gaseous diffusion plant from 1952 to June 30, 1974. In a letter dated June 1, 2001, you stated that the employee worked at the Y-12 plant from June 30, 1952 to June 28, 1974. The district office verified the employee was actually an employee of the Atomic Energy Commission (AEC) (which became the Department of Energy (DOE)) who worked at K-25 for at least 250 days from 1963 to June 30, 1974, as a quality assurance specialist.

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on February 3, 1945, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death.

Because there are no requirements under Part B of the Act that an employee who qualifies for membership in the Special Exposure Cohort (SEC) with a specified cancer be a “contractor employee,” your claim under that portion of the Act was approved by final decision dated March 12, 2002.

However, because the necessary elements to establish covered employment were not met under Part E of the Act, the Jacksonville district office issued a recommended denial on April 4, 2006. The decision found that the employee did not qualify as a “DOE contractor employee” as described under the Act. The recommended decision informed you that you had sixty days to file any objections, in accordance with § 30.310(b) of the implementing regulations, and that period ended on June 3, 2006. 20 C.F.R. § 30.310(b).

OBJECTIONS

On April 14, 2006, the Final Adjudication Branch (FAB) received a letter from Congressman John J. Duncan, Jr. The letter from Congressman Duncan included a letter from you, dated April 7, 2006, objecting to the recommended decision and requesting an oral hearing. The hearing was held by the undersigned in Oak Ridge, Tennessee, on July 12, 2006. You and your attorney were both duly affirmed to provide truthful testimony.

In the letter of objection, you stated that written evidence was included, but there were no enclosures. At the hearing, your attorney submitted copies of the employee’s job description and specific objections to the recommended decision. He stated that the recommended decision issued in 2002 found that the employee was an employee of Union Carbide and this should be binding on any future decisions. He noted that a Physicians Panel review under former Part D of the Act was completed and the Secretary of Energy accepted the Panel’s affirmative determination that the employee’s myelodysplastic syndrome was due to exposure to a toxic substance at a DOE facility. He stated that the physicians on the panel ruled that the employee was a DOE contractor employee and that should be binding on the Department of Labor (DOL). He stated that the Part E procedures required acceptance of these types of claims. He also argued that the employee should be considered a “researcher” under the Act, since Congress did not provide a definition of a researcher, and the job duties of the employee “would constitute nuclear materials research done on behalf of the AEC in the area of quality assurance.”

One of the documents submitted shows that the employee also performed his job duties for the AEC at other facilities, such as the Kerr McGee facility in Guthrie, Oklahoma[1], and the Union Carbide facility in Wood River Junction, Rhode Island.[2] The employee’s resume states he worked for the AEC in Oak Ridge from 1952 to June 30, 1974, verifying that contractors followed building codes and specifications to meet the contracts issued by the AEC and inspected the manufacturing of equipment made of various types of metal. He also stated that he worked for the AEC from 1946 to 1952 as a security inspector at various AEC installations throughout the United States. The periods from 1940 to 1946 and from 1950 to 1952 were military service.

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. 20 C.F.R. §§ 30.314(e), 30.314(f). On July 21, 2006, the transcript was forwarded to you and your attorney. You did not provide any corrections or changes to the transcript.

On July 26, 2006, the Final Adjudication Branch received a submission from your attorney, reiterating the objections and arguments set forth during the hearing.

FINDINGS OF FACT

1. You filed a claim for survivor’s benefits under the Act.

2. The employee was diagnosed with myelodysplastic syndrome on April 19, 1996 and his death on March 5, 1997 resulted from that condition.

3. The employee worked for the Department of Energy at the Y-12 plant and the K-25 gaseous diffusion plant from at least 1963 to June 30, 1974, with intermittent periods at other facilities.

4. You were the employee’s spouse at the time of his death and at least a year prior.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts, the recommended decision issued by the Jacksonville district office on April 4, 2006, and the information received before, during, and after the hearing.

The eligibility criteria for claims under Part E of EEOICPA are discussed in the regulations, which require that the employee be a Department of Energy contractor employee as defined in § 30.5(w). Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by: (i) an entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility. 20 C.F.R. § 30.5(w); 42 U.S.C. § 7384l(11).

The finding in a recommended decision that the employee was employed by Union Carbide is not legally binding, since only final decisions can be considered the legal determination of the Department of Labor. The Physicians Panel review finding of covered employment is also not binding on the Department of Labor. Under Part D, the DOE was to serve as a liaison with the various state workers’ compensation authorities, and as the letter from the DOE states, a filing under the appropriate state system would have been necessary. A finding that the employee was a federal government employee would likely have resulted in a negative decision from the state workers’ compensation authority.

The evidence submitted does not establish that the employee meets the definition of a DOE contractor employee or a researcher. An employee of the federal government cannot be considered an employee of a government contractor or subcontractor, unless the government agency by which they were/are employed had/has a contract with the DOE to provide services that meet the criteria established by the Act. 42 U.S.C. § 7384l(11). EEOICPA Bulletin No. 03-26 states 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 the agency for that activity.”[3] The qualification of a researcher in the Act requires “residence” at a DOE facility, which leads to the interpretation that the researcher is likely affiliated with a university or scientific body, and would logically have the word “researcher” or “research” in their job title or job description. A review of the employee’s job descriptions does not show the use of the word “research” or “researcher.”

The Act does state that a determination under Part B that a Department of Energy contractor [emphasis added] employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part [Part E] as a determination that the employee contracted that illness through exposure at a Department of Energy facility. 42 U.S.C. § 7385s-4. If an employee does not fall into the category of a contractor employee, then this section of the law does not apply.

You meet the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(1). However, since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under Part E of the Act, and the claim for compensation is denied. 42 U.S.C. §§ 7385s-4(c)(1)(A), 7385s-3(a)(1)(B).

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative