Docket Number: 13183-2003

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

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). For the reasons discussed below, your claim for compensation is denied.

 

STATEMENT OF THE CASE

 

You filed a claim, Form EE-2, on October 23, 2001, seeking benefits pursuant to the Energy Employees Occupational Illness Compensation Program Act. You indicated on the claim form that you were filing for your spouse’s cancer, specifically, acute myelogenous leukemia, diagnosed approximately on January 1, 1995. You also submitted Form EE-3, employment history, indicating that your spouse was employed by Fercleve Corporation, Manhattan Project, Oakridge, Tennessee, as a project technician from 1944 through 1946. Along with the claim forms, you submitted:

 

• your spouse’s death certificate, noting the immediate cause of death as Mucormycosis Brain Abcess(s) due to or as a consequence of acute myelogenous leukemia;
• your marriage certificate;
• several listings of prescriptions/medications;
• several listings of medical expenses;
• a copy of your spouse’s honorable discharge certificate dated March 14, 1946;
• a copy of your spouse’s enlisted record and report of separation;
• a copy of a letter to Senator Bunning from [Authorized Representative] dated February 2, 2001;
• a copy of a letter to The Christ Hospital from Philip D. Leming, M.D. dated December 5, 1997;
• a copy of a hematology consultation and admission note signed by Philip D. Leming dated October 2, 1997, noting a diagnosis of acute myelocytic lueukemia with pancytopenia;
• a copy of a Ohio State University James Cancer Hospital and Research Institute medical document signed by Michael A. Caligiuri dated September 10, 1998;
• a copy of a letter signed by Philip D. Leming, M.D dated September 24, 2001, noting that it was at least as likely as not that the patient’s acute leukemia was related to the radiation exposure in the past from his work on the atomic bomb project (Manhattan Project) in Oakridge, TN as any additional exposures;
• a copy of United States of America, War Department Army Service Forces Corps of Engineers Manhattan District certificate that states, “This is to certify that [Employee] Fercleve Corporation has participated in work essential to the production of the Atomic Bomb, thereby contributing to the successful conclusion of World War II. This certificate is awarded in appreciation of effective service.” Signed by the Secretary of War, dated August 6, 1945;

 

On November 15, 2001, the Cleveland, Ohio, district office received a letter from Droder & Miller CO., L.P.A. indicating that on your original application for benefits under the EEOICPA it indicated that your spouse’s diagnosis of cancer was in January of 1995, but Mr. Miller believes the records indicate that the diagnosis was sometime in mid to late 1997.

 

On February 12, 2002, the Cleveland District Office requested that additional medical evidence be provided within 30 days from the date of the letter. On February 27, 2002, the District Office received a letter from you dated February 25, 2002, stating that your spouse’s diagnosis was 10/97, not 1/95, and that you received only the February 12, 2002, letter from the District Office. You also submitted:

 

• a duplicate copy of a letter dated September 24, 2001, signed by Philip D. Leming, M.D.;
• a duplicate copy of the Ohio State University James Cancer Hospital and Research Institute medical document signed by Michael A. Caligiuri dated September 10, 1998;
• an unsigned December 6, 1999, Christ Hospital progress note indicating that acute myeloid leukemia was initially diagnosed September 30, 1997;
• an unsigned December 3, 1999, Christ Hospital progress note, a November 29, 1999, follow up note from Cincinnati Hematology – Oncology, INC.;
• an October 3, 1997, surgical pathology report indicating a diagnosis of Bone marrow, clot section and aspirate smears involved by acute myeloid leukemia, seen microscopic description, signed by Cindy Westermann, M.D. and;
• a September 30, 1997, bone marrow clinical summary indicating a diagnosis of acute undifferentiated leukemia.

 

On November 30, 2001, the District Office received information from the Department of Energy regarding your spouse’s claimed employment. The EE-5 form signed by Roger Holt stated “See Attached.” The attached information indicated that [Employee]’s address was [Employee’s address], birthplace Ft. Thomas, Kentucky, date of birth [Date of Birth]; under the clearance status section, the section titled “report rec'd” indicated file Chk. Neg.; the section “restriction removed” on December 14, 1944 and notes at the bottom stated, “Loyalty Ck. Reg. November 24, 1944” and “Ref. Ltrs. November 27, 1944.”

 

On March 12, 2002, the Cleveland District Office advised you that your case file was transferred to the Jacksonville District Office.

 

On June 20, 2002, the Jacksonville District Office advised you that they reviewed all the evidence presented with your claim and that the evidence was not sufficient to make a decision. They indicated that the discharge papers you submitted indicated that your spouse was on active duty service with the U.S. Army from May 3, 1943 to March 14, 1946 and that the EEOICPA does not list the U.S. Army as one of the covered facilities under the Act. The District Office advised you of the criteria for employment at a covered facility and requested that you provide the name and location of the company and employment dates and any information that shows that your spouse worked at a Department of Energy facility or a Department of Energy contractor/subcontractor and/or atomic weapons facility. You were requested to provide the employment evidence within 30 days from the date of the letter.

 

On June 24, 2002, the District Office received a letter from you authorizing your brother in law [Authorized Representative] to act as your authorized representative concerning your claim under the EEOICPA. On July 18, 2002, the District Office received an employment history affidavit signed by [Authorized Representative], your spouse’s brother. [Authorized Representative] indicated employment at Fercleve Corp, Manhattan Project, Oak Ridge, TN from November 1944 to February 1946.

 

On August 5, 2002, the District Office received another EE-5 form from the Department of Energy stating that the employment history contains information that is not accurate. An attachment to the form indicated that at the request of the Department of Energy, Bechtel Jacobs Company, LLC performed a search for certain records regarding dates and locations of employment relating to special exposure claimant [Employee]. The document included a statement, “we have searched payroll/radcon records in the possession of BJC to verify whether the claimant was employed at the K-25, Portsmouth or Paducah GDP, as appropriate, for more than 250 days prior to February 1, 1992. We were unable to locate any records for the claimant.”

 

On August 26, 2002, the District Office requested you complete the SSA-581 and return it. On September 11, 2002, your completed SSA form was sent to the Department of Labor. On November 1, 2002, the District Office received Social Security Administration records regarding your spouse’s employment from January 1942 thru December 1947. The records indicate that your spouse was employed at Cincinnati Gas and Electric Co. in 1942 and 1943; at PJ Erdal General Merchandise in 1942; at AT&T Corporation, in 1946 and 1947.

 

On December 27, 2002, the Jacksonville District Office issued a Recommended Decision regarding your claim for compensation under the EEOICPA. The decision concluded that there is no evidence to support that [Employee] was a covered employee pursuant to 42 U.S.C. § 7384l(1) and 20 C.F.R. § 30.5(u) of the implementing regulations.

 

Attached to the recommended decision was an explanation of your appeal rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived your right to challenge the decision.

On February 7, 2003, the Final Adjudication Branch received a letter from [Authorized Representative] advising that you object to the recommended decision and your request for an oral hearing. The letter stated that the reason you disagree with the decision is because the summary of events, most of which are documented in the file, clearly show that [Employee] was a covered employee under the EEOICPA. [Authorized Representative] stated, “[Employee] and I are brothers. In 1944 we were attending Ohio State University in Columbus, OH and were involved in an Army Specialized Training Program. We were both majoring in Electrical Engineering. While at Ohio State University he was recruited by representatives of Fercleve Corporation regarding work in Oak Ridge, TN. He accepted the offer to go to work for them to be on loan from the Army. In the Fall of 1944 he went to Oak Ridge, TN to work for Fercleve Corporation. [Employee]’s work with Fercleve Corporation turned out to involve nuclear activity on the first atomic bomb program, referred to as the Manhattan Project. He worked for Fercleve Corporation from 1944 until 1946. During this time he reported for work everyday for Fercleve. He worked under Fercleve supervision. He worked with equipment and tools provided by Fercleve. He worked in the Gaseous Diffusion Process where they pumped nuclear gases through a series of diaphragms over and over until the proper isotope was isolated. He also worked in the thermal diffusion process where they cooked the nuclear solutions, similar to a distilling process, over and over again until the just right isotope was isolated. He told me that in the gaseous diffusion process there were leaks where the nuclear gases would contaminate the immediate atmosphere. They were provided with little or no protection against the effect of these gases. In the thermal diffusion process they encountered numerous spills of extremely corrosive liquids. They would immediately flush these spills with water to minimize the corrosive damage that would otherwise occur on human flesh and equipment. After the war ended and we were all home, he told me a lot about his activity at Oak Ridge. In summary, all the time he worked for Fercleve he told me that he worked as a civilian on loan from the Army. There is no disputing the following facts: 1).Everyday in Oak Ridge, TN he went to work for Fercleve. 2).He worked with and under Fercleve supervision. 3).He worked with tools furnished for Fercleve. 4).He worked with equipment and processing machinery provided by Fercleve. 5).And most importantly, he received a formal certificate of merit awarded in appreciation of effective service with Fercleve Corporation, signed by Henry L. Stinson, Secretary of War, who was the overall chief of the Manhattan Project.”

On March 4, 2002, the Final Adjudication Branch advised you that your hearing would be held on April 22, 2003, at 2:00pm. Also, on March 4, 2002, you signed an Authorization for Representation authorizing [Authorized Representative] to serve as your representative in all matters pertaining to the adjudication of your claim under the EEOICPA.

On April 22, 2003, your hearing was held. Present were yourself, and [Authorized Representative]. You discussed the fact that your spouse went for a physical in September 1997. You indicated that his blood was taken and they got the test results back and that your spouse was told to see an oncologist immediately. You indicated that after he saw the oncologist, he told you that he had leukemia. [Authorized Representative] discussed the history of his brother’s employment and the specifics of the letter filed on February 7, 2003, during the hearing.

On May 1, 2003, the Final Adjudication Branch sent the hearing transcripts to you for comment. On May 20, 2003, the Final Adjudication Branch received your comments on the transcript and your comments are included as a part of the record in this case and have been considered.

FINDINGS OF FACT

• You filed a claim for survivor benefits on October 23, 2001.

· You claimed a diagnosis of your spouse’s acute myelogenous leukemia as a result of occupational exposure during his employment.

· You claimed that your spouse worked at Fercleve Corporation, in Oak Ridge, TN from 1944 to 1946.

· Your spouse served on active duty in the United States Army from May 3, 1943 to March 1946.

· The Department of Energy was unable to verify the claimed employment history.

· Cancer is a covered occupational illness under the EEOICPA. The medical evidence of record substantiates that your spouse had leukemia.

· Your spouse was diagnosed with leukemia in 1997.

· You were advised that you needed to provide employment evidence establishing proof that your spouse was employed at a covered facility during a covered time period.

· You did not provide employment evidence to substantiate that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility.

· Social Security Administration Records from 1942 to 1947 list Cincinnati Gas and Electric Company, PJ Erdal General Merchandise and AT&T Corporation as [Employee]’s employers.

· The Jacksonville, District Office recommended denial of your claim for benefits as you did not provide evidence that your spouse was a covered employee under the EEOICPA.

· You objected to the recommended denial of your claim.

· You did not submit additional employment evidence that would substantiate that your spouse was a covered employee under the EEOICPA.

CONCLUSIONS OF LAW

The EEOICPA established a compensation program to provide compensation to covered employees suffering from specifically designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the Department of Energy and certain of its vendors, contractors and subcontractors. The term “occupational illness” is defined by 42 U.S.C. §7384l(15) and 20 CFR § 30.5(z) as a covered beryllium illness, cancer, or chronic silicosis. You claimed leukemia as your spouse’s diagnosed illness on your claim form. You presented medical evidence that establishes that your spouse has been diagnosed with leukemia. Although leukemia is a covered condition under the EEOICPA, in order to establish entitlement to compensation under the EEOICPA, the evidence must demonstrate the existence of an occupational illness related to a period of employment specified by the Act. While you have provided medical evidence to establish a diagnosis of leukemia, you have not provided sufficient employment evidence to show that your spouse was a covered employee under the EEOICPA. To be a “covered employee with cancer,” the employee must meet the requirements of 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210. Those provisions of the Act and implementing regulations require that the employee must have been an employee of the Department of Energy (DOE) at a DOE facility, of a DOE contractor at a DOE facility, or of an atomic weapons employer.

 

The term “covered employee” is defined by 42 U.S.C. § 7384l(1) and means any of the following: (A) A covered beryllium employee; (B) A covered employee with cancer; (C) To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).

 

The term “atomic weapons employee” is defined by 42 U.S.C. § 7384l(3) as an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

 

The term “atomic weapons employer” is defined by 42 U.S.C. § 7384l(4) as any entity, other than the United States that (A) processed or produced, for use by the United States, material that emitted radiation and was used in production of an atomic weapon, excluding uranium mining and milling: and (B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

 

The term “atomic weapons employer facility” is defined by 42 U.S.C. § 7384l(5) as a facility owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.

 

The term “Department of Energy facility” under 42 U.S.C. § 7384l(12) means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located-

(A) 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); and

(B) with regard to which the Department of Energy has or had-

(i) a proprietary interest; or

(ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction , or maintenance services.

 

Section 30.111(a) of the regulations states that, "Except where otherwise provided in the Act and these regulations, 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. § 30.111(a).

 

The record in this case demonstrates that you did not provide the requested employment evidence to show that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12).

 

You were advised of the deficiencies in your claim. Based on my review of the evidence in your case record, your objections and pursuant to the authority granted by § 30.316(b) of the EEOCIPA regulations, I find that the district office’s December 27, 2002, recommended decision is correct in the denial of your claim. The recommended decision denied your claim, because although you had submitted medical evidence showing that your spouse was diagnosed with leukemia, you did not submit the requested employment evidence showing that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12). Thus the undersigned finds that you were given the opportunity but have not established that your spouse was employed at a covered facility. You reported on the employment history form that your spouse was employed by the Fercleve Corporation, Manhattan Project in Oak Ridge, TN from 1944 to 1946. The evidence of record to date does not show that your spouse was a Department of Energy employee or contractor employee at a Department of Energy facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. § 7384l(4) and (12). Therefore you have not established that your spouse is a covered employee with cancer as defined under the EEOICPA. You objected and indicated that your spouse worked for Fercleve Corporation on loan from the United States Army. The employment evidence of record does not substantiate that your spouse is a covered employee as defined under the EEOICPA. In order to be potentially eligible under the EEOICPA, an employee must have had covered employment. The evidence of record does not show that your spouse had covered employment.

Upon review of the entire case file, I find that you have not submitted evidence to substantiate that your spouse is a covered employee as defined by 42 U.S.C. § 7384l(1) nor a covered employee with cancer as defined under 42 U.S.C. § 7384l(9), as the evidence of record does not substantiate that your spouse was a Department of Energy employee, Department of Energy contractor employee or an atomic weapons employee who contracted the cancer after beginning such employment. I also find that the district office’s recommended decision is supported by the evidence and the law, and cannot be overturned based on the additional information you submitted. For the reasons stated above, your claim for benefits for the claimed condition of leukemia is therefore denied.

Cleveland, Ohio

Tracy Smart, Hearing Representative