Docket Number: 56806-2004

NOTICE OF FINAL DECISION AND

REVIEW OF THE WRITTEN RECORD

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 April 19, 2004, you filed a Claim for Benefits under the EEOICPA, Form EE-1, with the Seattle district office, for prostate cancer, lung cancer, non-Hodgkin’s lymphoma and basal cell skin cancer. You stated on the EE-3 form that you were employed by the Missouri Pacific Railroad, and worked periodically at the Destrehan Street Site of the Mallinckrodt Chemical Company, between October 31, 1957 and June 30, 1963. The Destrehan Street Plant was a Department of Energy (DOE) facility, where radioactive material was present, from 1942 to 1962 and again (for remediation) in 1995, according to the Department of Energy Office of Worker Advocacy Facility List website at http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm.

On April 28, 2004, you were informed of the medical evidence you had to submit to support that you had been diagnosed with cancer. No medical evidence was submitted.

On June 2, 2004, you were informed of the categories of employment for which compensation benefits may be paid for cancer, under 42 U.S.C. § 7384s of the Act. You were also advised of the kinds of evidence which you could submit to support that you had such employment.

You responded with a letter, received in the district office on June 25, 2004, explaining how your employment as a sales representative for the Missouri Pacific Railroad led to your calling on many firms, including Mallinckrodt’s Destrehan Street Plant, from October 1957 to June 1963. You stated that your employer “did not directly serve. . .Mallinckrodt but instead received freight cars by way of another railroad. . .which railroad switched the cars from the plant to the Missouri Pacific R.R. that then hauled the freight cars beyond. As such the Missouri Pacific R.R. became a party to the Bill of Lading contract, which was used by all transportors of freight.”

On July 21, 2004, the district office issued a recommended decision concluding you were not entitled to compensation, since the evidence did not support that you had employment which would render you a covered employee, as defined in 42 U.S.C. § 7384l of the EEOICPA. The decision also found that you had not submitted evidence establishing that you had cancer.

On August 19, 2004, you submitted an objection to the recommended decision, in which you reiterated that you were employed by the Missouri Pacific Railroad and that this employment took you to the Mallinckrodt Plant where you were exposed to contamination which, you believe, may have caused your cancers. With your objection, you submitted an employment document, as well as records of medical treatment you received. The employment document supported that you worked as a traffic representative and a track rail sales representative for the Missouri Pacific Railroad from May 22, 1957 to June 30, 1963. The medical records, including pathology reports, confirmed that you were diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer. Upon review of the case record, the undersigned makes the following:

FINDINGS OF FACT

1. You filed a claim for benefits under the EEOICPA on April 19, 2004.

2. You have been diagnosed with prostate cancer, non-Hodgkin’s lymphoma, multiple basal cell carcinomas and lung cancer.

3. You were employed by the Missouri Pacific Railroad, as a traffic representative and a track rail sales representative, from May 22, 1957 to June 30, 1963.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310. The same section of the regulations provides that in filing objections, the claimant must identify his objections as specifically as possible. In reviewing any objections submitted, under 20 C.F.R. § 30.313, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. I have reviewed the record in this case, as well as the written objections you submitted and must conclude that no further investigation is warranted.

A “covered employee,” as defined in 42 U.S.C. § 7384l(1) of the EEOICPA, includes a “covered employee with cancer,” which, pursuant to 42 U.S.C. § 7384l(9)(B), may include a “Department of Energy employee” or a “Department of Energy contractor employee who contracted. . .cancer after beginning employment at a Department of Energy facility.”

A “Department of Energy contractor employee” is defined, in 42 U.S.C. § 7384l(11) of the Act, as an “individual who. . .was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months,” or, an “individual who. . .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 regulations state, in 20 C.F.R. § 30.111(a), that “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110.”

You have not alleged, or submitted any evidence to support, that you were a Department of Energy employee or that you were in residence for at least 24 months, as a researcher at a Department of Energy facility. You also have not submitted any evidence or statements supporting that your employer, the Missouri Pacific Railroad, had a contractual relationship with the Department of Energy to provide management, remediation or any other services, at the Destrehan Street Plant facility of the Mallinckrodt Chemical Company. By your own statement, your employer merely hauled freight cars which had already been removed from the facility by another company. Therefore, the evidence fails to support that your employment with the Missouri Pacific Railroad was such as to qualify you as a “covered employee.”

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

Washington, DC

Richard Koretz

Hearing Representative