Docket Number: 44377-2004

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	44377-2004 44765-2004 44766-2004 44779-2004 44780-2004 44781-2004 45670-2004
DECISION DATE:	October 6, 2005

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is a decision of the Final Adjudication Branch 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.

STATEMENT OF THE CASE

You each filed a Form EE-2, Claim for Survivor Benefits, for the bladder cancer of your late husband and father, [Employee], hereinafter referred to as “the employee.”

On the Form EE-3, Employment History, you stated the employee was employed as a pipefitter with several sub-contractors in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant, Y-12 plant, and Oak Ridge National Laboratory (X-10) with no listed dates other than at least 3 years at K-25 and several years at Y-12; and in Paducah, Kentucky, at the gaseous diffusion plant for 3-4 months in the 1950s. The evidence of record establishes that the employee worked at the K-25 gaseous diffusion plant (GDP) for Rust Engineering from 1975 to 1978, along with other periods of employment for various contractors at each of the Oak Ridge plants.

On the Forms EE-2, you indicated the employee was a member of the Special Exposure Cohort (SEC). To qualify as a member of the SEC, the following requirements must be satisfied:

(A) The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment - -

(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii) worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. 42 U.S.C. § 7384l(14)(A).

The employee worked at the K-25 gaseous diffusion plant (GDP) for intermittent periods from at least 1975 to 1978. For SEC purposes, the employee is shown to have worked more than 250 work days prior to February 1, 1992, and was monitored through the use of dosimetry badge number [Number Deleted]. Therefore, the employment meets the criteria for inclusion in the SEC. 42 U.S.C. § 7384l(14).

The medical evidence establishes the employee was diagnosed with bladder cancer on January 21, 1992. Bladder cancer is a specified cancer as defined by the Act and implementing regulations, if onset is at least five years after first radiation exposure. 42 U.S.C § 7384l(17), 20 C.F.R. § 30.5(ff).

In support of your claim for survivorship, you ([Employee’s Spouse/Claimant #1]) submitted your marriage certificate which states that you married the employee on September 10, 1994, and the employee’s death certificate, which states that you were married to the employee on the date of his death, October 31, 1996.

In support of your claims for survivorship, the living children of the employee submitted birth certificates and marriage certificates.

On April 26, 2005, the Jacksonville district office issued a recommended decision[1], concluding that the living spouse is the only entitled survivor and is entitled to survivor benefits in the amount of $150,000 for the employee’s bladder cancer. The district office recommended denial of the claims of the living children.

Attached to the recommended decision was a notice of claimant rights, which stated that claimants had 60 days in which to file an objection to the recommended decision and/or request a hearing. These 60 days expired on June 25, 2005. On May 5, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waived any and all objections to the recommended decision. On May 27, 2005, the Final Adjudication Branch received an objection to the recommended decision and request for an oral hearing signed by all the living children. The hearing was held by the undersigned in Oak Ridge, Tennessee, on August 2, 2005. [Claimant #2], [Claimant #4], [Claimant #3], and [Claimant #7] were duly affirmed to provide truthful testimony.

OBJECTIONS

In the letter of objection, you stated that you believe the rules and regulations governing the Act are contradictory. You also stated you believe your privacy rights have been violated under the Privacy Act of 1974. During the hearing, you stated that the pre-marital agreement, which you believe is valid under the rules of the State of Tennessee, should be recognized by the Federal government; that the employee’s will should take precedence over the way the Act breaks down survivor entitlement; that the documentation you gathered was used to benefit [Employee’s Spouse] without her having to do anything and that the documentation you gathered should have been maintained for your benefit only; and that new information concerning the survivorship amendment to the Act in December 2002 should have been forwarded to all claimants, since you were basing your actions on a pamphlet released in August of 2002. You were provided with a copy of the Privacy Act of 1974 which includes instructions on filing a claim under that Act.

In accordance with §§ 30.314(e) and (f) of the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. 20 C.F.R. §§ 30.314(e), 30.314(f). By letters dated August 23, 2005, the transcript was forwarded to you. On September 15, 2005, the Final Adjudication Branch received a letter from [Claimant #2], clarifying statements made during the hearing.

The law, as written and amended by Congress, establishes the precedence of survivors in each section of the Act and the apportionment of any lump-sum compensation. Section 7384s(e) of the Act (also known as Part B) explains who is entitled to compensation if the covered employee is deceased:

(e) PAYMENTS IN THE CASE OF DECEASED PERSONS—(1) In the case of a covered employee who is deceased at the time of payment of compensation under this section, whether or not the death is the result of the covered employee’s occupational illness, such payment may be made only as follows:

(A) If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.

(B) If there is no surviving spouse described in subparagraph (A), such payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.

(C) If there is no surviving spouse described in subparagraph (A) and if there are no children described in subparagraph (B), such payment shall be made in equal shares to the parents of the covered employee who are living at the time of payment.

(D) If there is no surviving spouse described in subparagraph (A), and if there are no children described in subparagraph (B) or parents described in subparagraph (C), such payment shall be made in equal shares to all grandchildren of the covered employee who are living at the time of payment.

(E) If there is no surviving spouse described in subparagraph (A), and if there are no children described in subparagraph (B), parents described in subparagraph (C), or grandchildren described in subparagraph (D), then such payment shall be made in equal shares to the grandparents of the covered employee who are living at the time of payment.

(F) Notwithstanding the other provisions of this paragraph, if there is—

(i) a surviving spouse described in subparagraph (A); and

(ii) at least one child of the covered employee who is living and a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse, and the other half of such payment shall be made in equal shares to each child of the covered employee who is living and a minor at the time of payment. 42 U.S.C. § 7384s(e).

Section 7384s(e)(3)(B) of the Act explains that a “child” includes a recognized child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child. 42 U.S.C. §§ 7384s(e)(3)(B).

The Office of the Solicitor provided an opinion, dated December 1, 2004, concerning the pre-nuptial agreement signed on September 9, 1994, by the employee and [Employee’s Spouse]. In that opinion, the Solicitor determined that a widow with a valid claim under the Act is not bound by an otherwise legally valid agreement, such as a pre-nuptial agreement or a will, in which she promised to forego that award. The opinion did not contain a ruling on the validity of the pre-nuptial agreement itself; only that the Energy Employees Occupational Illness Compensation Program Act specifically maintains that a beneficiary cannot be deprived of an award that he or she is entitled to under the statute.

FINDINGS OF FACT

1. You each filed a Form EE-2, Claim for Survivor Benefits.

2. The employee was diagnosed with bladder cancer on January 21, 1992.

3. The employee was employed at the K-25 gaseous diffusion plant (GDP) for intermittent periods from at least 1975 to 1978 and was monitored through the use of dosimetry badge number [Number Deleted].

4. The employee is a member of the Special Exposure Cohort.

5. The employee’s bladder cancer is a specified cancer.

6. [Employee’s Spouse] was the employee’s spouse at the time of his death and at least one year prior.

7. On April 26, 2005, the Jacksonville district office issued a recommended decision.

8. On May 5, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waived any and all objections to the recommended decision.

9. The Final Adjudication Branch received a letter of objection from [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], and [Claimant #7], and a hearing was held on August 2, 2005.

CONCLUSIONS OF LAW

The undersigned has reviewed the record and the recommended decision dated April 26, 2005 and concludes that the employee is a member of the Special Exposure Cohort, as defined by the Act, and that the employee’s bladder cancer is a specified cancer, as defined by the Act and implementing regulations. 42 U.S.C. §§ 7384l(14)(A), 7384l(17), 20 C.F.R. § 30.5(ff).

I find that the recommended decision is in accordance with the facts and the law in this case, and that [Employee’s Spouse], the eligible living spouse, is entitled to survivor benefits in the amount of $150,000 for the employee’s bladder cancer, pursuant to the Act. 42 U.S.C. §§ 7384s(a). I also find that [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], and [Claimant #7] are not eligible survivors under the Act, and your claims for compensation are denied.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative