Docket Number: 10038639-2007

NOTICE OF FINAL DECISION FOLLOWING

REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for chronic obstructive pulmonary disease (COPD) under Part E of EEOICPA is denied.

STATEMENT OF THE CASE

 

On August 9, 2005, the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had contracted COPD. In support of his claim, he submitted an employment history stating that he was employed as a security officer by EG&G Special Projects at the Nevada Test Site (NTS) from January 1981 to October 1990, and that he wore a dosimetry badge while employed. The Oak Ridge Institute for Science and Education (ORISE) database did not contain information to verify this employment. The Department of Energy (DOE) verified the employee’s employment with Edgerton, Germeshausen, and Grier Special Projects and stated, “This was not a DOE-funded project and was not associated with the DOE Nevada Test Site work.”

On June 15, 2007, the Seattle district office issued a recommended decision to deny the claim on the ground that the medical evidence of record was insufficient to establish the diagnosis of COPD. However, on December 20, 2007, FAB issued an order remanding the case for further development after the employee submitted medical evidence that supported the diagnosis of COPD. As a result, the claim was returned to the Seattle district office for further development and the issuance of a new recommended decision.

By letter dated January 25, 2008, the Seattle district office informed the employee that under Part E of EEOICPA, an employee must have worked for a DOE contractor or subcontractor at a DOE facility during a covered time period, and that to date, DOE had verified his employment by EG&G Special Projects at the Nevada Test Site from January 1, 1981 to October 31, 1990. He was informed that DOE had indicated that EG&G Special Projects was not a DOE funded project and that any employment for these projects took place outside the borders of the NTS, and therefore was not covered employment under EEOICPA. The district office asked him to submit evidence to establish that EG&G Special Projects was involved in operations for DOE or on behalf of DOE at the NTS.

In a response received by the Seattle district office on February 14, 2008, the employee submitted an affidavit on Form EE-4 from a work associate, who asserted that the employee was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990. The employee also submitted an affidavit from his wife, who asserted that he was employed as a security officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990.

On February 29, 2008, the Seattle district office issued a new recommended decision to deny the employee’s claim for COPD under Part E, on the ground that the evidence was insufficient to establish that he was present at a covered facility while working for DOE or any of its covered contractors, subcontractors, or vendors during a covered time period.

OBJECTIONS

On March 12, 2008, FAB received the employee’s written objections to the recommended decision. In his objection letter, he stated the following:

I am submitting a copyrighted article from the Las Vegas Review Journal dated Thursday, December 16, 1999. In this article there is a discussion of President Clinton signing into law, under the military lands withdrawal act of 1999. The document in question was signed on October 23, 1999, and the Department of Energy released the article to the press approximately two months later. In the document President Clinton signed over to the Air Force control over Department of Energy property in the rectangle around Groom Lake which is the northeastern corner of the test site this land was previously used by the Air Force under an agreement with the Atomic Energy Commission that dates back to 1958, the location is commonly known as Area 51. This article makes perfectly clear, prior to October 23, 1999 the property was under the control of the Department of Energy. As to the funding of EG&G Special Projects, their funding came directly from the Department of Energy in the form of laundered money that was approved for projects approved by Congress for the Nevada Test Site. The cost overruns were then used to fund the black projects at Area 51. By using approved monies in this manner, further protected the activities that occurred at Area 51 (projects that cannot be investigated by Congress). Also the general manager for all projects at Area 51, that person’s name is was [General Manager], who was in charge of all subcontractors at Area 51. [General Manager] was an employee of Reynolds Electrical & Engineering the prime contractor at the NTS, a company owned by EG&G.

On August 5, 2008, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued EEOICPA Circular No. 08-06 which states the following:

The Nevada Test Site is a covered DOE facility for the period 1951-present. The DEEOIC considers Area 51 part of NTS for the period 1958-1999. The DOE categorizes Reynolds Electrical and Engineering Company (REECo) and Bechtel Nevada, Inc. as “captive contractors,” for the DOE and its predecessors, including both the Atomic Energy Commission (AEC) and the Energy Research and Development Agency (ERDA). This means that employees of REECo and Bechtel Nevada who worked at the NTS, including Area 51, are DOE contractor employees, regardless of what information may previously have been received from DOE.

By letter dated October 17, 2008, DOE confirmed for FAB that EG&G Special Projects was not a DOE contractor at the Nevada Test Site.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee was employed by EG&G Special Projects from January 5, 1981 to October 15, 1990.

2. The case file does not contain sufficient evidence to establish that the employee worked for a DOE contractor or subcontractor at the NTS.

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

CONCLUSIONS OF LAW

The term “covered DOE contractor employee” used in Part E is defined as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility. See 42 U.S.C. § 7385s(1). The term “covered illness” means an illness or death resulting from exposure to a toxic substance. 42 U.S.C. § 7385s(2).

DEEOIC has researched the issue of claimed employment at Area 51 of NTS, and considers Area 51 to be part of NTS for the period 1958-1999. As noted above, DOE categorizes REECo and Bechtel Nevada, Inc. as “captive contractors” for DOE and its predecessors; this means that employees of REECo and Bechtel Nevada who worked at NTS (including Area 51 during the period 1958-1999) are DOE contractor employees. Also as noted above, DOE has confirmed that EG&G Special Projects was not a DOE contractor at NTS.

It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA. The regulations at 20 C.F.R. § 30.111(a) state that 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. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. See 20 C.F.R. § 30.111(a) (2008).

As found above, the evidence of record establishes that the employee worked for EG&G Special Projects, but does not establish that he is a “covered DOE contractor employee” as defined by 42 U.S.C. § 7385s(1), because he did not work for a DOE contractor or subcontractor. Therefore, the claim must be denied for lack of covered employment under Part E of EEOICPA.

Washington, D.C.

Amanda M. Fallon

Hearing Representative

Final Adjudication Branch