Docket Number: 32000-2002

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the claims for compensation filed by the above claimants 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 stated below, these claims for compensation under the EEOICPA are approved.

STATEMENT OF THE CASE

On November 14, 2003, the Seattle district office issued a recommended decision finding that [Employee] was a member of the Special Exposure Cohort (SEC) based on both his confirmed employment on Amchitka Island, Alaska during the Cannikin and Milrow nuclear tests and his diagnosis of lung cancer, which is a “specified” cancer under the Act. As part of that decision, the district office found that [Claimant 1], [Claimant 2], and [Claimant 3] were step-children of the employee, based on their “regular parent-child relationship” with him. As such, the district office concluded that all 5 claimants were eligible beneficiaries under the EEOICPA as the surviving children of the employee, and were entitled to share the compensation payment of $150,000 equally.

On January 9, 2004 and January 12, 2004, the FAB received objections and hearing requests from the employee’s natural children, [Claimant 4] and [Claimant 5]. In the letters of objections, the natural children alleged that [Claimant 1], [Claimant 2], and [Claimant 3] had not lived with the employee in a parent-child relationship because they were adults at the time of their father’s marriage to their mother and argued that they should not be awarded a share of any lump-sum payment of compensation. On March 25, 2004, a hearing was held in Las Vegas, NV to determine whether there was sufficient evidence to establish that the step-children are eligible beneficiaries pursuant to § 7384s(e)(3)(B) of the EEOICPA. At the hearing, two step-children testified that at any given time during their mother’s marriage to the employee, each of the step-children had stayed in the residence of the employee; this testimony was not disputed by the two natural children at the hearing.

After considering the written record of the claim forwarded by the district office, the objections to the recommended decision, the arguments and evidence submitted in support of the objections, and after conducting a hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1. On June 20, 2002, July 2, 2002 and July 24, 2003, [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 4], and[Claimant 5], respectively filed claims for compensation under the EEOICPA.
2. [Employee] was employed by a DOE contractor on Amchitka Island, Alaska before January 1, 1974, and was exposed to radiation in the performance of duty related to the Milrow and Cannikin nuclear tests.
3. [Employee] was diagnosed with a specified cancer, lung cancer,after beginning employment at a DOE facility.
4. [Claimant 4] and [Claimant 5] are the surviving natural children of the employee.
5. The evidence of record establishes that [Claimant 1],[Claimant 2], and [Claimant 3] are the step-children of the employee and that they lived in a regular parent-child relationship with the employee.

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

CONCLUSIONS OF LAW

Section 7384l(9) of the EEOICPA defines the different types of covered employees with cancer that can be eligible to receive compensation: these include “an individual with a specified cancer who is a member of the Special Exposure Cohort, if and only if that individual contracted that specified cancer after beginning employment at a DOE facility….” 42 U.S.C. § 7384l(9)(A). Section 7384l(14)(B) of the Act defines a member of the Special Exposure Cohort (SEC) as, among other things, an employee who “was so employed before January 1, 1974, by the Department of Energy or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.” There is no dispute that [Employee] worked on-site during a covered period and was diagnosed with a specified cancer, lung cancer, after he began employment at Amchitka Island. Therefore, the evidence of record is sufficient to establish that [Employee] was a member of the SEC with a specified cancer.

However, since the employee is deceased and there is no surviving spouse, 42 U.S.C. § 7384s(e)(a)(B) of the EEOICPA provides that the payment that would otherwise be made to the covered employee “shall be made in equal shares to all children of the covered employee who are living at the time of payment.” Section 7384s(e)(3)(B) of the EEOICPA goes on to define a “child” to include “a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.” Chapter 2-200.9c(1) (October 2003) of the Federal (EEOICPA) Procedure Manual provides further guidance for adjudicating claims of stepchildren who were adults at the time of a covered employee’s marriage. These procedures describe the types of evidence that may be used to support a finding that the stepchild lived in a regular parent-child relationship with the covered employee, and recognize that evidence such as copies of insurance policies, wills, photographs showing attendance at the stepchild’s wedding as the father or mother or at other types of family gatherings, newspaper articles like obituaries, or any other documentation that refer to the stepchild and the decease employee in a familial way can be used to make this particular finding.

[Claimant 4] and [Claimant 5] qualify as children of the covered employee based on their birth and marriage certificates, and the employee’s and [Spouse]’s death certificates; and are, therefore eligible surviving beneficiaries under the EEOICPA. [Claimant 1], [Claimant 2], and [Claimant 3] also qualify as children of the covered employee based on their presence in family photographs that were submitted into the record, their identification as surviving stepchildren in the covered employee’s obituary, evidence in the record showing that the employee visited his stepchildren during the holidays, and that he and the stepchildren stayed at each other’s homes. Therefore, [Claimant 1], [Claimant 2], and [Claimant 3] are also eligible surviving beneficiaries under the EEOICPA. Based on these conclusions of law, all five claims for compensation under the EEOICPA that were filed by the covered employee’s children are approved. Each claimant is entitled to receive an equal share ($30,000) of the total lump-sum of $150,000 payable in this matter.

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch