Docket Number: 54583-2004

U.S. DEPARTMENT OF LABOR

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

EMPLOYEE: [Name Deleted]

CLAIMANTS: [Name Deleted]

[Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBERS: 54583-2004

54658-2004

54660-2004

54912-2004

55266-2004

55267-2004

55268-2004

55269-2004

55270-2004

55271-2004

55272-2004

55273-2004

55274-2004

63008-2006

63053-2006

63127-2006

10008892-2006

10042035-2006

10042734-2006

10042737-2006

10042739-2006

10042741-2006

10042742-2006

10042743-2006

10042745-2006

10042747-2006

10042749-2006

10042750-2006

10042755-2006

10042757-2006

10042760-2006

DECISION DATE: November 2, 2006

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) regarding your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claims are accepted in part and denied in part.

STATEMENT OF THE CASE

In 2004, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] each filed a claim for survivor benefits under the Act. You stated on the forms that you were filing for the multiple myeloma of your late father, [Employee], hereinafter referred to as “the employee.” A pathology report establishes that the employee was diagnosed with multiple myeloma on May 8, 1991. The death certificate shows the causes of death on May 21, 1991 were shock, gastric bleeding due to stress ulcers and sepsis, with a significant contributing factor of multiple myeloma.

On the Form EE-2, you indicated the employee was a member of the Special Exposure Cohort (SEC). The Form EE-3 stated the employee was employed as a roofer by Hannin Roofing at the Gaseous Diffusion Plant (GDP) in Paducah, Kentucky, for the period of January 1, 1970 to December 31, 1982. The district office verified that the employee worked for Hannin Roofing at the Paducah GDP for the period April 1, 1977 to September 30, 1978.

In support of your claims for survivorship, you submitted the death certificate of the employee which showed he was divorced at the time of his death. In addition, you submitted evidence that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] are the natural children of the employee and that at the time of the employee’s death, you were each over the age of 23, except for [Claimant #12], who was 22 years old. There was no evidence that [Claimant #12] was in school full-time or that any of you were incapable of self-support at the time of the employee’s death.

On July 14, 2004, the FAB issued a final decision, finding that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] were each entitled to compensation under Part B of the Act in the amount of $11,538.46. [Claimant #14], [Claimant #15], and [Claimant #16] then filed claim forms in 2005 as the stepchildren of the employee. A letter of objection requesting reopening was submitted, protesting the inclusion of [Claimant #2] as an eligible survivor, since her marriage certificate showed a different father and mother than the employee and his spouse. On July 11, 2005, the Director of DEEOIC issued a Director’s Order, vacating the final decision of July 14, 2004 and requiring the district office to develop survivorship eligibility and issue a new recommended decision.

On May 8, 2006, the Jacksonville district office issued a recommended decision, concluding that all the claimants are entitled to survivor compensation of $9,375.00 each under Part B of the Act, and that [Claimant #15] is entitled to survivor compensation of $125,000.00 under Part E of the Act. The district office recommended denial of all the other survivor claims under Part E of 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. This period expired on July 7, 2006. The FAB received written notification that [Claimant #16], [Claimant #14], and [Claimant #15] each waived any and all objections to the recommended decision. The FAB received letters of objection from [Claimant #7] and [Claimant #5], and letters of objection and request for a hearing from [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #6], [Claimant #9], and [Claimant #12]. The hearing was held on September 15, 2006, in Paducah, Kentucky.

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. By letter dated October 4, 2006, the transcript was forwarded to the hearing attendees ([Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #9], [Claimant #12], [Claimant #14], [Claimant #15], and [Claimant #16]). No response was received.

OBJECTIONS

The objections from each of the claimants stated that [Claimant #14], [Claimant #15], and [Claimant #16] are the stepchildren of the employee, not his children, and should not be entitled to receive any compensation.

During the hearing, the marital history of the employee and his spouse, the mother of the survivors, was discussed. It was clarified that the employee and your mother ([Employee’s spouse]) married originally in the 1950s, had thirteen children, divorced in the early 1970s, remarried in 1981, and divorced again in 1985. During the first period of divorce,

[Employee’s spouse] married [Employee’s spouse’s second husband], and gave birth to [Claimant #14], [Claimant #15], and [Claimant #16]. The hearing discussion verified that

[Claimant #14], [Claimant #15] and [Claimant #16] lived with the employee in his home during the period of his remarriage to your mother.

After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

You each filed a claim for survivor benefits under the Act.
The employee was diagnosed with multiple myeloma on May 8, 1991 and died on May 21, 1991.
The employee was employed at the Paducah GDP from April 1, 1977 to September 30, 1978.
[Claimant #1], [Claimant #2], [Claimant#3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant#7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant#11], [Claimant #12] and [Claimant #13] are the employee’s natural children. The employee was divorced at the time of his death. Each of you was over the age of 23 at the time of the employee’s death, except for [Claimant #12] (born [Date of birth]). However, [Claimant #12] did not provide evidence of being in school full-time or being incapable of self-support at the time of the employee’s death.
[Claimant #14], [Claimant #15], and [Claimant #16] are the employee’s stepchildren. [Claimant #15] was born on [Date of birth] and was 17 years old at the time of the employee’s death. [Claimant #14] and [Claimant #16] were between the ages of 18 and 23, but did not provide evidence of being in school full-time or incapable of self-support at the time of the employee’s death.
The employee’s multiple myeloma caused or contributed to his death.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on May 8, 2006 and the subsequently submitted objections. I find that the decision of the Jacksonville district office is supported by the evidence and the law and cannot be changed.

To qualify as a member of the SEC under the Act, the following requirements must be satisfied:

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.

42 U.S.C. § 7384l(14)(A). The evidence must also show the employee was monitored for radiation through the use of dosimetry badges or worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges.

The evidence shows that the employee worked at the Paducah GDP from April 1, 1977 to September 30, 1978, which equals more than 250 days prior to February 1, 1992. In addition, he worked in a job that had exposures comparable to a job that was monitored through the use of dosimetry badges. Therefore, the employee qualifies as a member of the SEC.

The employee’s multiple myeloma is a specified cancer as defined by the Act and implementing regulations. 42 U.S.C. § 7384l(17); 20 C.F.R. § 30.5(ff) (2005).

Part B of the Act defines a “child” as including a recognized natural 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). There is no minimum or maximum time requirement for a stepchild to have lived in the same household as the employee.[1] [Claimant #2] is determined to be a survivor of the employee, since his name is listed as the father on your birth certificate and there is no evidence you were formally adopted by [Family relative]. [Claimant #14], [Claimant #15] and [Claimant #16] are determined to be stepchildren of the employee, since the evidence indicates you lived with the employee for at least three years and are listed as children in his obituary. Therefore, all of the claimants meet the definition of a survivor under Part B of the Act. 42 U.S.C. § 7384s(e)(3)(A). Therefore, I conclude that you are entitled to $150,000.00, or $9,375.00 each for the employee’s multiple myeloma, pursuant to the Act. 42 U.S.C. § 7384s(a). Since [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #12] and [Claimant #13] have already received compensation under this section of the Act, no additional funds are payable to you at this time.

The employee was an employee of a DOE contractor at a DOE facility. 42 U.S.C. §§ 7384l(11), 7384l(12). A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1), 7385s(2). The employee died as a consequence of multiple myeloma.

The term “covered child” means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support. 42 U.S.C. § 73845s-3(d)(2).

The evidence of record shows that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11] and [Claimant #13] were each over 23 years old at the time of the employee’s death, with no evidence of being incapable of self-support. [Claimant #12], [Claimant #14], and [Claimant #16] were between the ages of 18 and 23 with no evidence of full-time attendance at school or being incapable of self-support.

Therefore, the claims of [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8], [Claimant #9], [Claimant #10], [Claimant #11], [Claimant #13], [Claimant #12], [Claimant #14] and [Claimant #16] under Part E of the Act must be denied because the evidence does not establish that you meet the criteria of “covered” child as defined by the Act. 42 U.S.C. § 73845s-3(d)(2).

[Claimant #15] meets the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d). Therefore, [Claimant #15] is entitled to benefits in the amount of $125,000.00 for the employee’s death due to multiple myeloma. 42 U.S.C. § 7385s-3.

Jacksonville, Florida

Sidne M. Valdivieso, Hearing Representative

Final Adjudication Branch