Docket Number: 10083-2007

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10083-2007

DECISION DATE: June 6, 2007

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

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. Upon a careful review of the facts, FAB concludes that the evidence of record is insufficient to allow compensation. Accordingly, the claim for survivor benefits under Part B is denied.

 

STATEMENT OF THE CASE

 

On July 31, 2001, [Claimant] filed a Form EE-2 claiming for survivor benefits under EEOICPA as the spouse of [Employee], based on the condition of myelofibrosis. She submitted a certificate showing that she and [Employee] were married, and a copy of his death certificate identifying her as his spouse at the time he died on March 26, 1987 due to pneumonia, agnogenic myeloid metaplasia and chronic obstructive pulmonary disease.

 

[Claimant] submitted medical documentation including narrative reports, stating that her spouse had a diagnosis of myelofibrosis as early as the autumn of 1983. She also filed a Form EE-3 alleging that her spouse was employed at the National Bureau of Standards (NBS) Radioactivity Lab in Washington, D.C. from May 18, 1931 through May 1948. Her spouse’s employment as a federal employee with the NBS was verified from May 26, 1931 to May 14, 1948. The NBS facility on Van Ness Street was initially designated as a covered Atomic Weapons Employer (AWE) under EEOICPA by the Department of Energy (DOE) from 1943 through 1952.

 

On November 30, 2005, the NBS was removed as a covered AWE by DOE per notice in the Federal Register.[1] DOE took this action when it determined that Congress established the NBS in 1901, and that Congress changed its name to the National Institute of Standards and Technology in 1988 as part of the Omnibus Trade and Competitiveness Act, and that it is a non-regulatory federal agency currently located within the Commerce Department’s Technology Administration. DOE also determined that NBS never came under the organizational hierarchy of the Manhattan Engineer District (MED), the Atomic Energy Commission (AEC), or DOE itself. Hence, DOE concluded that the NBS facility on Van Ness Street was erroneously designated as an AWE facility because it is a facility of an agency of the United States, and the definition of an AWE specifically excludes agencies of the United States.

 

On March 1, 2006, the Cleveland district office advised [Claimant] that the NBS facility on Van Ness Street is not considered to be a covered AWE facility under EEOICPA, and requested that she submit any additional information she possessed that would lend itself to classifying this facility as an AWE facility within 30 days. [Claimant] responded to this request and submitted thirteen documents she believed would support a determination that this facility should be reclassified as a “DOE facility” under EEOICPA.

 

On September 25, 2006, after reviewing the evidence of record, the additional thirteen documents submitted, and historical research conducted on the NBS facility on Van Ness Street, the Chief of the Branch of Policies, Regulations and Procedures concluded that the NBS facility on Van Ness Street does not meet the definition of a DOE facility for the purposes of EEOICPA. While it was noted that this facility did perform valuable work for both the MED and the AEC, there was no evidence supporting that there was either a proprietary interest or the existence of a management and operation, management and integration, environmental remediation services, construction, or maintenance services contract between either the MED or the AEC and NBS. Based on this, it could not be considered a DOE facility.

 

On October 12, 2006, the Cleveland district office recommended denial of [Claimant]’s claim for survivor benefits, finding that the evidence of record did not establish that [Employee] was a covered employee with cancer under EEOICPA, as there was insufficient evidence that he was employed by either an AWE or a DOE contractor at an AWE facility or a DOE facility, as those terms are defined in the statute. Accordingly, the district office recommended denial of [Claimant]’s claim for survivor benefits.

 

OBJECTIONS

 

On December 11, 2006, FAB received [Claimant]’s letter of objection to the recommended decision with her request for an oral hearing, which was held on March 13, 2007 in Seattle, Washington, attended by her daughter and authorized representative, [Claimant’s daughter], and her husband. In summary, [Claimant]’s letter of objection and her testimony at the hearing indicated that she disagreed with the recommended decision and that she has requested copies of the necessary contractual documents through a Freedom of Information Act (FOIA) to the U.S. Department of Labor (DOL), which has since been turned over to DOE for response, as DOL does not have the documents she requested. [Claimant] indicated that she is still waiting for a response from DOE with the documents she needs to support her objection to the delisting of this facility from the covered facilities list. [Claimant] believes the work done by NBS was more than just research and development, the employees were in charge of quality control, analyzed samples from production plants, devised more effective methods of analysis, furnished personnel and facilities, helped in start-up operations of major production plants and provided guidance for the control program. [Claimant] argued these responsibilities clearly fall into the areas of management and operations, which were the responsibilities of contractors.

 

In reviewing all of the evidence of record, including all of the documents submitted at the hearing, there remains insufficient evidence to establish that there was either a proprietary interest or the existence of a management and operation, management and integration, environmental remediation services, construction, or maintenance services contract between either the MED or the AEC and the NBS. While [Claimant] argued that the work done by employees of the NBS at its facility on Van Ness Street constitutes work related to “management and operations which were the responsibilities of contractors,” she did not provide supporting documentation showing that a proprietary interest or contractual relationship existed between the NBS and the MED, or the AEC/DOE. Therefore, the NBS facility on Van Ness Street cannot be considered a “DOE facility” for the purposes of EEOICPA.

 

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

 

FINDINGS OF FACT

 

1. On July 31, 2001, [Claimant] filed a claim for survivor benefits under EEOICPA.

 

2. [Claimant] is the surviving spouse of the employee.

 

3. In 1983, the employee was diagnosed as having myelofibrosis, which is also known as agnogenic myeloid metaplasia.

 

4. [Claimant] did not submit sufficient evidence that [Employee]’s employment at the NBS facility on Van Ness Street meets the criteria to be considered “covered employment” under EEOICPA.

 

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

 

CONCLUSIONS OF LAW

 

Although the NBS facility on Van Ness Street was once designated as an AWE facility by DOE, DOE later determined that this facility does not qualify as an AWE facility for the purposes of EEOICPA, and consequently removed its designation as an AWE facility in a notice published in the Federal Register on November 30, 2005.

 

[Claimant]’s objection to the removal of this facility as an AWE facility by DOE relates to her belief that the NBS facility on Van Ness Street should be reclassified as a “DOE facility,” and that the work completed by the employees of the NBS at this facility, namely [Employee], was consistent with the work completed by other employees of DOE contractors. While this may be accurate, the type of work completed alone is not the determinative criteria required for a facility to be considered a “DOE facility” under EEOICPA. It must also be shown that the AEC/DOE has or had a proprietary interest, or entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services; the evidence of record is currently insufficient to meet this requirement.

 

It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA. The regulations at § 30.111(a) provide 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 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 EDEOICPA and the regulations, the claimant also bears the burden of providing all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations. See 20 C.F.R. § 30.111(a). If [Claimant] obtains evidence in the future that she believes satisfies this criteria, she should submit this to the district office for consideration with a request for reopening of the claim.

 

FAB is bound by the criteria and provisions of EEOICPA and has no authority to depart from it or EEOICPA’s implementing regulations. Therefore, [Claimant]’s claim must be denied for lack of evidence that [Employee] was a covered employee as defined by the statute.

 

Seattle, Washington

 

 

 

Kelly Lindlief

Hearing Representative

Final Adjudication Branch