Docket Number: 32576-2004

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 32576-2004

33408-2004

33459-2004

40537-2004

40568-2004

40612-2004

40753-2004

40981-2004

54756-2004

DECISION DATE: November 19, 2004

NOTICE OF FINAL DECISION

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated below, your claims for benefits are hereby accepted in part and denied in part.

STATEMENT OF THE CASE

On September 10, 2004, the district office issued a recommended decision concluding that [Spouse] had received an award as the widow of the [Employee] under section 5 of the Radiation Exposure Compensation Act. [Employee] and [Spouse] were married on June 9, 1955. The death certificate of record establishes that [Employee] died on March 18, 1990. Another death certificate of record establishes that [Spouse], the employee’s wife, died on October 15, 2001. Subsequently, nine survivors filed claims for benefits as follows:

On July 1, 2002, [Claimant 1] filed Form EE-2, Claim for Survivor Benefits under EEOICPA, as a surviving child. She provided a copy of her adoption papers from the Navajo Nation, verifying that the employee and his widow adopted her on July 15, 1969. [Claimant 1] also provided a copy of her marriage certificate to support her name change.

On July 12, 2002, [Claimant 2] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 2] provided a copy of his birth certificate which listed the employee as his father.

On July 19, 2002, [Claimant 3] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 3] provided a copy of her adoption papers from the Navajo Nation, verifying that the employee and his widow adopted her on July 15, 1969. She provided a copy of her marriage certificate to support her name change.

On January 21, 2003, [Claimant 4] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. At the time [Spouse], the widow, married the employee, [Claimant 4] was 30 years old. Based on documents in the file, [Claimant 4] is the daughter of [Spouse] and [Claimant 4’s Natural Father].

On January 22, 2003, [Claimant 5] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 5] provided a copy of her birth certificate which listed [Spouse] as her mother and [Claimant 5’s Natural Father] as her father. When [Spouse] married the employee, [Claimant 5] was a minor child and resided in the home of [Spouse] and [Employee].

On January 23, 2003, [Claimant 6] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 6] provided a copy of her birth certificate which listed [Spouse] as her mother and [Claimant 6’s Natural Father] as her father. At the time [Spouse] married the employee [Claimant 6] was 28 years old.

On January 24, 2003, [Claimant 7] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 7] provided a copy of her birth certificate which listed [Employee] as her mother and [Claimant 7’s Natural Father] as her father. When [Spouse] married the employee, [Claimant 7] was a minor child and lived in the home of [Spouse] and [Employee].

On January 31, 2003, [Claimant 8] filed Form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 8] provided a copy of her marriage certificate which verified that she was married in August 1949, prior to her mother’s marriage to the employee.

On February 24, 2004, [Claimant 9] filed form EE-2, Claim for Survivor Benefits under EEOICPA as a surviving child. [Claimant 9] provided a certified copy of a clinical record from Northern Navajo Medical Center Indian Health Services, Shiprock Service Unit, in Shiprock, New Mexico, certifying that her name was [Claimant 9] and that she had previously used [Claimant 9’s Former Name] and [Claimant 9’s Former Name]. The clinic record shows [Employee] as her father, [Claimant 9’s Step-father’s Name] as her step-father and that she was legally adopted by her uncle [Claimant 9’s Adoptive Father’s Name].

On August 3, 2004, the district office requested that [Claimant 9] provide verification of either a final decree of adoption or a final judgment of adoption. The district office informed [Claimant 9] that the evidence submitted supports that she was legally adopted by [Claimant 9’s Adoptive Father’s Name]. Evidence to show that she was not legally adopted by [Claimant 9’s Adoptive Father’s Name] would need to be submitted, for her to be an eligible survivor on [Employee]’s record. She was provided 30 days to submit this evidence. No evidence was submitted.

On September 10, 2004, the district office issued a recommended decision recommending that [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] were eligible surviving children of [Employee] and that [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] did not establish that they were eligible surviving children of the employee.

[Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have provided evidence to establish they are surviving children or have had step-children relationships with the employee, and therefore as his survivors, are entitled to additional compensation in the amount of $50,000.00, to be divided equally pursuant to 42 U.S.C. § 7384u(a). [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] are each entitled to $10,000. [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] are not entitled to compensation because they have not established that they are an eligible survivor.

On the dates listed below, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision:

[Claimant 1] September 21, 2004

[Claimant 2] September 22, 2004

[Claimant 3] September 20, 2004

[Claimant 5] September 21, 2004

[Claimant 7] September 17, 2004

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch. 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence submitted to the record and issue a final decision affirming the district office’s recommended decision. 20 C.F.R. § 30.316(a). No objections were raised nor waivers received from [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9].

After considering the record of the claim forwarded by the district office, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

1. On September 10, 2004, the district office issued a recommended decision concluding that [Spouse] had received an award as the widow of the [Employee] under section 5 of the Radiation Exposure Compensation Act. [Employee] and [Spouse] were married on June 9, 1955. The record establishes that [Employee] died on March 18, 1990. The record establishes that [Spouse], the employee’s wife, died on October 15, 2001. Subsequently, [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 4], [Claimant 5], [Claimant 6], [Claimant 7], [Claimant 8], and [Claimant 9] filed claims for benefits

2. [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have provided evidence to establish they are surviving children or have had step-children relationships with the employee.

3. [Claimant 4], [Claimant 6], [Claimant 8], and [Claimant 9] are not entitled to compensation because they have not established that they are eligible survivors of the employee.

4. In cases involving a stepchild who was an adult at the time of marriage, supportive evidence may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc. In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful. Also, evidence such as copies of insurance policies, wills, photographs (i.e., attendance in the stepchild’s wedding as the father or mother), and newspaper articles (i.e., obituary) may be considered. No evidence has been submitted to support this type of relationship with [Claimant 4], [Claimant 6], or [Claimant 8] and the employee.

Based on the above noted findings of fact in this claim, the Final Adjudication Branch hereby also makes the following:

CONCLUSIONS OF LAW

Per Chapter 2-200 (September 2004) of the Federal (EEOICPA) Procedure Manual, a stepchild is considered a child if he or she lived with the employee in a regular parent-child relationship. [Claimant 1], [Claimant 2], [Claimant 3], [Claimant 5], and [Claimant 7] have established they lived with the employee in a regular child/step-child relationship with [Employee] pursuant to 42 U.S.C. § 7384u(e)(1)(B) of the EEOICPA and are entitled to compensation in the amount of $10,000.00 each.

[Claimant 9] has established that she was adopted by [Claimant 9’s Adoptive Father’s Name] and pursuant to 25 U.S.C. § 1911 of the Indian Child Welfare Laws, Indian tribes have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where jurisdiction is otherwise vested in the State by existing Federal law. Pursuant to the Navajo Nation Code, 9 NNC § 611 (1960), the natural parents of the adoptive child, except a natural parent who is also an adoptive parent or the spouse of an adoptive parent, shall be relieved of all parental responsibilities for such child or to his property by descent or distribution or otherwise.

Accordingly, an adopted Navajo child may claim EEOICPA benefits only as a survivor of her adopted father, not her natural father. Please note that in order to terminate parental rights under Navajo law there must be a “final decree of adoption” – not just a “final judgment of adoption.” Therefore [Claimant 9] is not an eligible surviving child of the employee.

[Claimant 4], [Claimant 6], and [Claimant 8] are not considered eligible surviving children of [Employee], because they did not establish a relationship pursuant to Chapter 2-200 (September 2004) of the Federal (EEOICPA) Procedure Manual and 42 U.S.C. § 7384s(e)(3)(B) and are not entitled to compensation.

The undersigned has reviewed the record and the recommended decision issued by the district office on September 10, 2004, and finds that your claims are in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claims are accepted in part and denied in part.

DENVER, CO

Joyce L. Terry

District Manager