Docket Number: 34291-2003

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch 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 stated below, your claim for benefits is denied.

STATEMENT OF THE CASE

On August 2, 2002, you filed a Claim for Benefits under the EEOICPA, form EE-1, through the Paducah Resource Center. On the EE-1 form, you indicated that the condition for which you filed your claim was kidney cancer. You submitted medical records from 1993 to 2001 that showed you had a nephrectomy in April of 1996. Medical records from Western Baptist Hospital from April of 1996 included an operative report for a right radical nephrectomy and a pathology report that confirmed the diagnosis of large renal cell carcinoma.

You also submitted a Form EE-3 indicating that you were employed as a conservation office for the Kentucky Department of Fish and Wildlife at the Paducah Gaseous Diffusion Plant (GDP) from 1969 to 1973. You submitted a Department of Energy (DOE) License for Non-Federal Use of Property for the purpose of wildlife development beginning September 4, 1953 and continuing indefinitely. You also submitted a DOE License for Non-Federal Use of Property for the period January 1, 1990 to December 31, 1995, and you submitted a DOE License for Non-Federal Use of Property for bow deer hunts for the period January 1, 1996 to December 31, 2000.

In addition, you submitted a copy of the five year plan and budget for the West Kentucky Wildlife Management Area for the period July 1, 1985 to June 30, 1990. You submitted an April 4, 1958 letter from the “Assistant General Counsel” noting that a corrected Quitclaim Deed from the United States of America to the State of Kentucky had been prepared and an August 21, 1989 report from the General Services Administration concluding that the State of Kentucky, Fish and Wildlife Division, was in compliance with the terms of the conveyance of these lands. You submitted an October 6, 1959 letter from Atomic Energy Commission (AEC) referencing a grant to the Commonwealth of Kentucky and the Department of Fish and Wildlife Resources of a license and permission to enter a portion of the AEC’s lands for the purpose of developing the wildlife on the property and conducting bird dog field trials. This letter extended the license and permission to additional lands. In an October 14, 1959 letter, the Director of the Division of Game recommended to the Governor of Kentucky that the license and permission to use the AEC lands be accepted. He noted that the Division would have no pecuniary obligation for use of the land, apart from patrolling, posting and protecting the land licensed for use by the Division of Fish and Wildlife Resources.

You submitted forms EE-4 from Shirley Beauchamp and Phillip Scott Beauchamp stating you worked for the Department of Fish and Wildlife at the Paducah GDP from 1968 to 1973. Social Security Earnings records were submitted showing employment with the state of Kentucky from 1971 to 1973. The Department of Energy advised the district office, however, that DOE had no information regarding your employment.

On November 15, 2002, the district office issued a recommended decision concluding that you were not employed by an entity that contracted with the DOE to provide “management and operating, management and integration, or environmental remediation” as set forth in 42 U.S.C. § 7384l(11)(B)(i) and (ii) and that, accordingly, you were not a covered DOE contractor. The district office therefore recommended that benefits be denied.

On December 23, 2002, you filed an objection to the recommended decision and requested a hearing. An oral hearing was held on February 26, 2003. At the hearing, you testified that you worked for the Kentucky Department of Fish and Wildlife from 1971 to 1973 and that you worked at the Paducah GDP and its surrounding grounds. You testified that your duties included patrolling the perimeter of the fenced portion of the plant and building two bridges and that you entered the plant through the main gate on a regular basis to remove animals that got into the GDP. You testified that you did not enter any of the buildings inside the fenced area of the GDP. You described other duties you performed during this period of employment, and you testified that you checked hunting and fishing licenses and controlled hunting at the reserve. You testified also that you participated in game sampling in conjunction with the DOE prior to the hunting season and that DOE would collect specific body parts provided by the Department of Fish and Wildlife and ship them for sampling.

FINDINGS OF FACT

You filed a claim for benefits under the EEOICPA on August 2, 2002. You were employed by the State of Kentucky, Department of Fish and Wildlife from 1971 to 1973. You were diagnosed with kidney cancer on or about April 13, 1996. You have not established that you worked in employment covered under the EEOICPA.

CONCLUSIONS OF LAW

A covered employee is eligible for compensation under the EEOICPA for an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). A “covered employee” is eligible for compensation under EEOICPA for a specified “occupational illness.” A “covered employee,” as defined in §§ 7384l(1),7384l(3),7384l(7),7384l(9), 7384l(11) and § 7384r of the EEOICPA, includes employees of private companies (an entity “other than the United States”, per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors. 42 U.S.C. §§ 7384l(1),(3),(7),(9), (11); 7384r. Section 7384(l)(11)(B)(I and ii) defines a “Department of Energy contractor employee” to include

“An individual who is or was employed at a Department of Energy facility by—

(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.”

The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined, as well as whether employees of state or federal governments may be considered DOE contractor employees, in EEOICPA Bulletins No. 03-27 (issued May 28, 2003) and No. 03-26 (issued June 3, 2003). The following definitions have been adopted by the DEEOIC:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Contract - An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”

For a civilian employee of a state or federal government agency to be considered a DOE contractor employee, it must be shown that the government agency employing that individual entered into a contract with the DOE for the accomplishment of one or more services it was not statutorily obligated to perform and that the DOE compensated the agency for that activity.

There is no evidence that the DOE compensated the State of Kentucky, Department of Fish and Wildlife Resources, for any services on behalf of the Department of Energy. The State of Kentucky was simply given permission to use federal land. The fact that the State of Kentucky was not required to provide any fees for use of federal property does not, conversely, show that the Department of Energy compensated the State of Kentucky for services provided by the State. The evidence of record shows simply that the Department of Energy or AEC gave permission for the State of Kentucky to use certain of its lands in order to conduct bird dog trials or hunting or fishing or similar activities. The Fish and Wildlife division was responsible for the activities that it would otherwise be responsible for under state law. The quitclaim deed to certain lands was not compensation to the State of Kentucky for any services performed for the Department of Energy, but was conveyed to the State of Kentucky for the purpose of management for wildlife purposes. The mere presence of an individual on DOE-owned property does not confer covered employment status.

For the foregoing reasons, the undersigned must find that you have not established your claim for compensation under the EEOICPA and hereby denies your claim for compensation.

Cleveland, Ohio

Anthony Zona

Hearing Representative