Docket Number: 54251-2004

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 54251-2004

DECISION DATE: November 1, 2004

NOTICE OF FINAL DECISION

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 set forth below, your claim for benefits is denied. A copy of this decision was mailed to your authorized representative.

STATEMENT OF THE CASE

On February 9, 2004, you filed a Form EE-2, Claim for Survivor’s Benefits under the EEOICPA. The claim was based, in part, on the assertion that your late husband was an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-2 that you were filing for the lung and brain cancer of [Employee] (hereinafter “the employee”). You submitted evidence that the employee was diagnosed with lung cancer on March 27, 2003, with metastasis to the brain.

On the Form EE-3, Employment History, you stated the employee was employed by Reactive Metals, Inc., Ashtabula, Ohio, from December 6, 1965 through August 11, 1992. The district office confirmed this employment through the corporate verifier as December 6, 1965 to August 11, 1992, at the Sodium, not the Extrusion, Plant. According to the corporate verifier, the Extrusion Plant is the only EEOICPA covered plant at the Reactive Metals facility.

Because the file did not contain verification of covered employment, the district office sent you letters dated February 23, 2004, March 24, 2004, May 19, 2004 and July 19, 2004. The letters explained the needed information, requested such evidence, and allowed time for response.

In response to these letters, you submitted retirement and pension information and tax documents concerning employment with Reactive Metals. This information did not place the employee at the Extrusion Plant, or in other EEOICPA covered employment.

The Energy Employees Occupational Illness Compensation Program Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to eligible covered employees who have been diagnosed with a specific occupational illness incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the DOE and certain of its vendors, contractors, and subcontractors. Eligible survivors may receive lump sum compensation, if applicable. Those “occupational illnesses” covered by the EEOICPA are specifically described in § 7384l(15) of the Act as “covered beryllium illness, cancer referred to in section 7384l(9)(B)[1] of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15). There are no provisions under the EEOICPA to cover any other illnesses, even if that illness may be related to employment at a covered facility. To be covered under the Act, employees with cancer must have worked at an atomic weapons employer facility or a Department of Energy facility as defined in the Act, and designated in the DOE Facility List Database. 42 U.S.C. §§ 7384l(5), 7384l(12). In this case, although the employee worked at the Reactive Metals, Inc. facility in Ashtabula, Ohio, he was not employed at the Extrusion Plant and thus not a covered employee under the Act.

Because the file contained no evidence of covered employment, the Cleveland district office issued a recommended denial on August 25, 2004. The decision found that the evidence did not establish the employee could be considered a covered employee with cancer as defined in the Act.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision. This 60-day period expired on October 24, 2004.

The implementing regulations provide that “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). The implementing regulations further state that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing with the period of time allotted in section 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a). In this case, you did not file any objections to the recommended decision or a hearing request.

FINDINGS OF FACT

1. On February 9, 2004, you filed a Form EE-2, Claim for Benefits under the EEOICPA.
2. You claimed the following medical conditions: lung and brain cancer.
3. The employee was diagnosed with lung cancer with metastasis to the brain.
4. The employee was employed at the Sodium Plant, Reactive Metals, Inc., Ashtabula, Ohio, from December 6, 1965 to August 11, 1992.
5. In proof of your survivorship, you submitted your marriage certificate and the employee’s death certificate. Therefore, you have established that you are a survivor as defined by the implementing regulations. 20 C.F.R. § 30.5(ee).
6. The district office issued the recommended decision on August 25, 2004.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the district office on August 25, 2004, and finds that the evidence does not establish that the employee was employed at an atomic weapons employer facility or a Department of Energy facility as defined in the Act and designated in the DOE Facility List Database. 42 U.S.C. §§ 7384l(5), 7384l(12). For that reason, you are not entitled to compensation as the survivor of the employee.

42 U.S.C. §§ 7384s(a), 7384s(e).

Jacksonville, FL

Jeana F. LaRock

District Manager