Docket Number: 15686-2007

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 15686-2007

81753-2007

81755-2007

10059104-2007

10059106-2007

DECISION DATE: April 23, 2007

NOTICE OF FINAL DECISION FOLLOWING

REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB)concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the FAB accepts and approves your claims for compensation in the amount of $30,000.00 each under Part B of the Act.

The FAB also concludes that the evidence of record is insufficient to allow compensation under Part E of the Act. Accordingly, [Claimant #2] and [Claimant #3]’s claims for survivor benefits under Part E of the Act are denied.

A decision is deferred on [Claimant #1]’s claim for survivor benefits under Part E of the Act, pending further development.

STATEMENT OF THE CASE

On November 21, 2001 ([Claimant #1]) and November 3, 2006 ([Claimant #2] and [Claimant #3]) each filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) as surviving children of [Employee] under Part B of the Act, based on the condition of glioblastoma multiforme (brain cancer). Your claim forms are also considered an application for survivor compensation under Part E of the Act. You submitted a copy of [Employee]’s death certificate, which indicates he was widowed at the time of his death on March 11, 1996, due to a malignant brain tumor. You also provided copies of your birth certificates, showing that you are children of [Employee]. [Claimant #2] and [Claimant #3] submitted copies of their marriage certificates documenting their changes of name.

[Claimant #1] also submitted a Form EE-3 (Employment History) on which he stated that [Employee] was employed at the Nevada Test Site from February 1955 to May 1959, and at the Lawrence Radiation Laboratory between May 1959 and April 1961. A representative of the DOE verified that [Employee] was employed at the Nevada Test Site for the Reynolds Electrical and Engineering Company, Inc. (REECO) from February 7, 1955 to April 30, 1959. Additionally, the DOE verified that the employee had dosimetry records associated with the Lawrence Livermore National Laboratory (LLNL) from 1959 to 1961; with Diesel Electric Service Company from 1961 to 1966; with the Public Health Service/U.S. Environmental Protection Agency from 1967 to 1969; and with the Weather Service during the period of June 1969 to June 1970. The LLNL confirmed that [Employee] was employed at the LLNL from May 5, 1959 through April 29, 1961, and was rehired on January 31, 1963 through September 6, 1963.

You submitted medical documentation including a pathology report, dated January 17, 1996, showing the employee had a diagnosis of glioblastoma multiforme.

On June 26, 2003, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether [Employee]’s brain cancer was “at least as likely as not” related to his covered employment. However, the case was returned on August 7, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS) of certain Nevada Test Site employees as an addition to the Special Exposure Cohort (SEC).

The claim forms submitted indicated that you had applied for an award under the Radiation Exposure Compensation Act (RECA), but had declined the award. You also identified two other surviving children of the employee, [Employee’s two non-claiming children], indicating that they accepted the RECA award. Claim forms were not received from [Employee’s two non-claiming children].

On December 8, 2006, the district office received a response from the Department of Justice indicating that on August 30, 2006, [Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-claiming children] were approved (as the eligible surviving beneficiaries of [Employee]) under section 4 of the RECA for equal shares of the award in the total amount of $75,000.00, for the condition of brain cancer. Further, it was stated that [Employee’s two non-claiming children] accepted their 1/5th shares of the award and [Claimant #1], [Claimant #2] and [Claimant #3] rejected their 1/5 shares of the RECA award in order to pursue a claim under EEOICPA.

On December 20, 2006, [Claimant #2] and [Claimant #3] signed statements indicating that they had never filed tort suit or state workers’ compensation claim, nor had they ever received a settlement or award from such based on the claimed exposure or illness. Further, they indicated that they have not pled guilty to or been convicted of fraud in connection with an application for or the receipt of federal or state workers’ compensation benefits. They also confirmed that at the time of the employee’s death, he had 5 children, and they were not under the age of 18 years, under the age of 23 and in college, or incapable of self-support at that time. Finally, it was acknowledged that they have not received any benefit under RECA.

On December 20, 2006, the Seattle district office issued a recommended decision to accept your claims for survivor benefits under Part B of the Act. The district office concluded that [Employee] is a member of the SEC based on his employment at the Nevada Test Site from February 7, 1955 to December 31, 1962, for an aggregate of at least 250 work days; was diagnosed with brain cancer, a specified cancer under the Act; and that [Claimant #1], [Claimant #2] and [Claimant #3] are each eligible survivors entitled to equal shares of compensation in the total amount of $90,000.00 under Part B of the Act. Additionally, the district office recommended denial of [Claimant #2] and [Claimant #3]’s claims for survivor benefits under Part E of the Act, as they did not meet the definition of a “covered child” under this part of the Act. The district office deferred a decision on [Claimant #1]’s claim for survivor benefits under Part E of the Act, pending further development as to whether he meets the criteria of a “covered child.”

On January 3, 2007, the FAB received a letter from [Claimant #1] in response to his eligibility as a “covered child” under Part E of the Act. [Claimant #1] stated that at the time of the employee’s death he was not under age 18, was not under the age of 23 and continuously enrolled full-time in school, and he was capable of self-support.

OBJECTIONS

On February 5, 6 and 8, 2007, the FAB received your letters of objection to the recommended decision in the form of a “Request for Clarification.” In summary, you indicated that there is conflicting information provided in the recommended decision, specifically:

1. Conclusions of Law – Statement 3: [Employee] is a covered employee and is now deceased, his survivors are entitled to compensation in the amount of $150,000.00 per 42 U.S.C. § 7384s(a)(1).

2. Conclusions of Law – Statement 4: [Claimant #1], [Claimant #2] and [Claimant #3] are the survivors of [Employee] per 42 U.S.C. § 7384s(e). [Claimant #1], [Claimant #2] and [Claimant #3] are thus entitled to the above mentioned compensation totaling $150,000.00.

3. Notice of Recommended Decision – Paragraph 1: The District Office recommends that the claims of [Claimant #1], [Claimant #2] and [Claimant #3] for benefits under Part B of the EEOICPA be accepted in the amount of $90,000.00.

Based on these statements, you indicated that the district office first informed you that the entire $150,000.00 would be distributed to the three of you, but that in a later conversation with the district office the sum of $90,000.00 was mentioned, and that your telephone calls to resolve this have gone unanswered. You asked for the applicable language or statute regarding this reduction of the total amount to be distributed and did not wish for an oral hearing on this matter, requesting that the FAB respond to your request for clarification of the matter.

Your objection relates to the definition of an eligible survivor and payment of compensation under Part B of the Act, and how this is determined when some of the eligible survivors have accepted an award under the RECA, while others have not.

Under the EEOICPA, payment in the case of a deceased employee is made first to the employee’s surviving spouse, or if there is no surviving spouse, in equal shares to all children of the covered employee who are living at the time of payment. See 42 U.S.C. § 7384s(e)(1)(A) and (B). Accordingly, all five living children of the employee meet this definition.

The Radiation Exposure Compensation Act states in section 6(e) that the acceptance of payment by an individual under RECA shall be in full satisfaction of all claims of or on behalf of that individual against the United States, or against any person with respect to that person’s performance of a contract with the United States, that arise out of exposure to radiation, from open air nuclear testing, in the affected area, or exposure to radiation in a uranium mine at any time during the period described in section 5(a). Further, the EEIOCPA states that, except in accordance with § 7384u of EEOICPA, an individual may not receive compensation or benefits under EEOICPA for cancer and also receive compensation under RECA (42 U.S.C. § 2210 note) or § 1112(c) of Title 38. See 42 U.S.C. § 7385j.

Two of the five eligible children, [Employee’s two non-claiming children], elected to receive payment as surviving beneficiaries under RECA versus pursing a claim under EEOICPA. As stated in the above-cited statutes, they cannot also receive survivor compensation or benefits for the condition of brain cancer under EEOICPA.

As the total potential award under Part B of the Act is $150,000.00, to be divided evenly among all surviving children, each child is eligible for compensation in the amount of $30,000.00. The three children who rejected their section 4 RECA awards therefore retain their potential eligibility for compensation under EEOICPA, and their share of the total award is still governed by § 7384s(e)(1)(B), which limits each survivor to 1/5th of the total compensation award of $150,000.00, which is $30,000.00 each.

After considering the evidence of record and your objections to the recommended decision, the FAB hereby makes the following:

FINDINGS OF FACT

1. On November 21, 2001 and November 3, 2006, you filed claims for survivor benefits under EEOICPA.

2. You are three of the five surviving children of [Employee]. [Claimant #1] was born on April 15, 1949, [Claimant #2] was born on October 26, 1953, and [Claimant #3] was born on July 23, 1954, and were 46, 42 and 41 years of age, respectively, at the time of [Employee]’s death on March 11, 1996.

3. [Employee] was employed at the Nevada Test Site, a covered DOE facility, by DOE contractors, from February 7, 1955 to at least December 31, 1962. This employment meets or exceeds 250 aggregate work days, and qualifies the employee as a member of the SEC.

4. The employee had a diagnosis of brain cancer, which is a specified cancer, on January 17, 1996, after starting work at a DOE facility.

5. The evidence of record supports a causal connection between the employee’s cancer and his exposure to radiation at a DOE facility.

6. At the time of the employee’s death you were over the age of 18 years, not under 23 years of age and enrolled full-time in school, and were not incapable of self-support.

7. You have never filed a tort suit or state workers’ compensation claim, nor have you received a settlement or award from a tort suit or state workers’ compensation claim based on radiation or brain cancer. Further, you have not pled guilty to or been convicted of fraud in connection with an application for or the receipt of federal or state workers’ compensation benefits, nor have you received any award under RECA.

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

CONCLUSIONS OF LAW

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the Nevada Test Site between January 27, 1951 and December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored. This class of SEC became effective July 26, 2006. The employment evidence is sufficient to establish that [Employee] was employed at the Nevada Test Site for an aggregate of at least 250 work days, between February 7, 1955 and December 31, 1962.

[Employee] is a member of the SEC pursuant to § 7384l(14)(C) and was diagnosed with brain cancer, which is a specified cancer pursuant to 20 C.F.R. § 30.5(ff)(5)(iii)(L); and he is, therefore, a “covered employee with cancer” under § 7384l(9)(A) of the Act. See 42 U.S.C. §§ 7384l(14)(C), 7384l(17) and 7384l(9)(A); 20 C.F.R. § 30.210(a)(1)(i).

[Claimant #1], [Claimant #2], [Claimant #3 and Employee’s two non-claiming children] are the surviving children of [Employee], pursuant to 42 U.S.C. § 7384s(e)(1)(B) of the Act. [Employee’s two non-claiming children] accepted their 1/5th shares of a total award of $75,000.00 under RECA, and are therefore not eligible to receive a payment for the occupational illness of brain cancer under EEOICPA. 42 U.S.C. § 7385j. [Claimant #1], [Claimant #2] and [Claimant #3] rejected an award of their shares of compensation under RECA, and are therefore eligible for the payment of their 1/5th shares of compensation under EEOICPA. Accordingly, [Claimant #1], [Claimant #2] and [Claimant #3] are entitled to compensation in the amount of $30,000.00 each under Part B of the Act.

The term “covered child” under Part E is defined as a child of the employee who, as of the date of the employee’s death had not attained the age of 18 years, had not attained the age of 23 years and was a full-time student who had been continuously enrolled in one or more educational institutions since attaining the age of 18 years, or had been incapable of self-support. See 42 U.S.C. § 7385s-3(d)(2).

The evidence of record shows that [Claimant #1], [Claimant #2] and [Claimant #3] were 46, 42, and 41 years of age, respectively, at the time of the employee’s death. There is no evidence showing that the claimants were incapable of self-support at the time of the employee’s death on March 11, 1996. The Seattle district office recommended that a determination on [Claimant #1]’s claim for survivor benefits under this part of the Act be deferred, pending further development as to whether he met the criteria of a “covered child.” Subsequently, [Claimant #1] provided a written statement to the FAB, dated December 20, 2006, stating he does not meet any of the criteria of a “covered child” under § 7385s-3(d)(2) of the Act. The evidence of record and the recommended decision support that [Claimant #2] and [Claimant #3] are not eligible as a “covered child” under Part E of the Act.

For the forgoing reasons, the FAB concludes that the evidence of record is insufficient to allow compensation under Part E. Accordingly, [Claimant #2] and [Claimant #3]’s claims for survivor benefits under Part E of the Act are denied.

A decision on [Claimant #1]’s claim for survivor benefits under Part E is deferred, pending further development and issuance of a recommended decision by the district office.

Seattle, Washington

Kelly Lindlief, Hearing Representative

Final Adjudication Branch