Docket Number: 1704-2003

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	1704-2003
DECISION DATE:	February 10, 2003

NOTICE OF FINAL DECISION

REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). On January 22, 2003, Attorney Mike G. Nassios, your authorized representative, wrote to the FAB and filed objections to the November 27, 2002 recommended decision of the Jacksonville district office. Your objections have been considered by means of a review of the written record.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim (Form EE-1) for benefits under the EEOICPA. You identified lung cancer as the diagnosed condition being claimed. You stated that Paul Rankin employed you as a pipe layer and laborer at the K-25 and Y-12 Plants at Oak Ridge from 1958 to 1964. Based upon the evidence of record, the Jacksonville district office issued a recommended decision on November 27, 2002, in which it concluded that you were not employed as a contracted or subcontracted employee at an atomic weapons employer or facility, nor at a Department of Energy facility, as those terms are defined in § 7384l of the EEOICPA and § 30.5 of the EEOICPA regulations. 42 U.S.C. § 7384l. 20 C.F.R. § 30.5. The district office also concluded that you are not a covered employee as that term is defined in § 7384l(1) of the EEOICPA. 42 U.S.C. § 7384l(1).

Objections

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to § 30.310 of the EEOICPA regulations. 20 C.F.R. § 30.310. On January 22, 2003, your attorney filed objection to the recommended decision of the district office. Your attorney stated it was your position that you have proven by a preponderance of the evidence that you were employed as a contracted or subcontracted employee at an atomic weapons employer or facility or a Department of Energy (DOE) facility as those terms are defined in §§ 7384l of the EEOICPA and 30.5 of the EEOICPA regulations. 42 U.S.C. § 7384l. 20 C.F.R. § 30.5. He also stated it was your position that you had presented more evidence than a self-serving affidavit of yourself, in that you presented the affidavit of other individuals and the DOE cannot legitimately rebut this proof in that the DOE records are not always all inclusive. On January 30, 2003, your attorney submitted an affidavit from Fay Webb in which she stated that you were employed by Paul Rankin from February 1958 until December 1958 at the Y-12 Plant and from October 1964 to December 1964 at the K-25 plant. Mrs. Webb identified herself as the wife of your co-worker.

You stated in your employment history (Form EE-3) that Paul Rankin employed you as a pipe layer and laborer from 1958 to 1964 at the K-25 and Y-12 Plants in Oak Ridge, TN. You submitted a copy of the Social Security Administration (SSA) statement of earnings which show Paul Rankin employed you in the third quarter of 1958 and the fourth quarter of 1964. Mr. Franklin Whetsell, who identified himself as a work associate, and your wife signed affidavits (Form EE-4) stating that you were employed by Paul Rankin from 1958 to 1964. On June 7, 2002, you advised the district office in writing that you worked for Paul Rankin at Oak Ridge for two different jobs. You stated that the first job began around February 1958 and ended December 1958 at Y-12 and the second job at K-25 began and ended in 1964. On September 5, 2002, Frank Whetsell wrote to the district office in regards to the affidavit he submitted and advised that “his father” worked for Paul Rankin during the years 1958 through 1964. Mr. Whetsell explained that he was a “kid” at the time so he doesn’t remember specific dates but he does recall his father “talking about working out there.”

ANALYSIS

The DOE has advised that it has no employment information regarding you. There has been no evidence submitted that establishes that Paul Rankin, the employer for whom you claim you worked, was a contractor at the Y-12 or K-25 plant. The employment history (Form EE-3) you submitted conflicts with the SSA earnings statement and the information in your letter of June 7, 2002. You stated in your employment history that you worked for Paul Rankin at the Y-12 and K-25 plants from 1958 to 1964 but you stated in your June 7, 2002 letter to the district office that you worked at Oak Ridge on two different jobs. You stated that the first job was at the Y-12 plant and began around February 1958 and ended December 1958. The second job was at the K-25 plant and it began and ended in 1964. You also stated in your June 7, 2002 letter that you have no exact recollection of the dates. The SSA earnings statement only shows earnings for the third quarter in 1958 and the fourth quarter in 1964 which would not total the 250 days required to establish that you are a member of the Special Exposure Cohort. You submitted an affidavit from Franklin Whetsell in which he identified himself as a “work associate” and in response to the question to describe his knowledge of your employment history, he stated you were employed by Paul Rankin from 1958 to 1964 at the DOE facilities in Oak Ridge, TN (K-25 and Y-12). However, on September 5, 2002, Mr. Whetsell advised the district office, by letter, that his father worked with you during the years 1958 through 1964. He also stated that he was a kid at the time and he did not remember specific dates. Mr. Whetsell’s letter conflicts with the information provided on his affidavit. Your wife submitted an affidavit in which she stated that you worked for Paul Rankin at the Oak Ridge Facilities from 1958 to 1964 which conflicts with the information that you provided as clarification in your June 7, 2002 letter. The information provided by Mrs. Webb in her affidavit is in conflict with the SSA earnings statement.

The EEOICPA regulations at § 30.111(c) allows for the acceptance of written affidavits or declarations as evidence of employment history for the purpose of establishing eligibility. Pursuant to the EEOICPA regulations at § 30.111(a), 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. 20 C.F.R. §§ 30.111(a), 30.111(c). A claimant will not be entitled to any presumption otherwise provided for in the EEOICPA regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption. See 20 C.F.R. § 30.111(d). The evidence of record is not sufficient to establish you are a covered employee as defined in the EEOICPA. See 42 U.S.C. §§ 7384l(1), 7384l(4), 7384l(7), 7384l(9), 7384l(11), 7384l(14). The evidence of record is not sufficient to establish that Paul Rankin was a contractor for the DOE.

CONCLUSION:

Based on my review of your case record and pursuant to the authority granted by § 30.316(b) of the EEOICPA regulations, I find that the district office’s November 27, 2002 recommended decision is correct and I accept those findings and the recommendation of the district office.

Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch