Docket Number: 55834-2004

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 (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On March 25, 2004, you filed a Form EE-1 (Claim for Benefits under EEOICPA), seeking compensation based on beryllium sensitivity and chronic silicosis. You indicated on Form EE-3 (Employment History) that you worked at the Beryllium Co., in Hazleton, PA, from 1970 to 1971, and at the Avco Corp. (Trexton) in Stratford, CT, from 1960 to 1970. The Beryllium Corporation of America (Hazleton) is recognized as a beryllium vendor from 1957 to 1979. See Department of Energy, Office of Worker Advocacy Facilities List.

By letters dated March 30, and April 30, 2004, the Cleveland district office notified you of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis. You were also advised that, to be considered for entitlement to compensation based on chronic silicosis, you would have to provide evidence that you had worked during the mining of tunnels at Department of Energy facilities in Nevada or Alaska for tests or experiments related to an atomic weapon. By letter dated May 28, 2004, you were again advised of the medical evidence you must submit to establish that you had been diagnosed with beryllium sensitivity. No medical or employment evidence was received.

On July 8, 2004, the district office recommended denial of your claim for benefits, concluding that you are not a covered employee with chronic silicosis because you were not exposed to silica in the performance of duty as required by 42 U.S.C. § 7384r(c). The district office also recommended denial of your claim because you did not submit sufficient medical evidence that you had been diagnosed with a covered occupational illness as defined 42 U.S.C. § 7384l(15). The district office further concluded that you were not entitled to compensation as set forth in 42 U.S.C. § 7384s.

FINDINGS OF FACT

1. On March 25, 2004, you filed a claim for benefits.
2. You did not provide the medical evidence required to establish a diagnosis of a covered occupational illness under the EEOICPA.

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision issued by the district office on July 8, 2004. I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under Part B of the Energy Employees Occupational Illness Compensation Program Act, the employees (or their eligible survivors), must establish that they have been diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis. See 42 U.S.C. § 7384l(15). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer or facility. See 42 U.S.C. § 7384l(4)-(7), (9) and (11).

You filed a claim based on beryllium sensitivity and chronic silicosis. The regulations provide that a claim based on beryllium sensitivity must include an abnormal Lymphocyte Proliferation Test performed on either blood or lung lavage cells. See 20 C.F.R. § 30.207(b). Similarly, a claim based on chronic silicosis must include a written diagnosis of that condition, signed by a medical doctor, and must be accompanied by either a chest x-ray interpreted by a B reader, or the result of a CAT or other imaging technique, or a lung biopsy, consistent with silicosis. Although you were advised to provide the medical documentation required to establish that you had been diagnosed with beryllium sensitivity and chronic silicosis, no such evidence was received.

It is the claimant’s responsibility to establish entitlement to benefits under the Act. The regulations state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Program all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations. See 20 C.F.R. § 30.111(a).

Therefore, your claim must be denied because you did not submit evidence sufficient to establish that you had been diagnosed with a covered occupational illness as defined by 42 U.S.C. § 7384l(15).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

Cleveland, Ohio

_______________________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch