Docket Number: 57276-2004

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 (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 May 3, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the condition of pancreatic cancer. Medical documentation submitted in support of the claim shows that [Employee] (the employee) was diagnosed as having pancreatic cancer in October 2001.

You also provided a Form EE-3 (Employment History), on which you indicated that the employee worked for the U.S. Navy in the Marshall Islands from April to October 1956, during Operation Redwing, and that he wore a dosimetry badge. A Department of Energy representative and a corporate representative of Bechtel Nevada indicated that the employee was issued film badges at the Pacific Proving Ground (Marshall Islands), during Operation Redwing, associated with the U.S. Navy, as a military participant, between the dates of April 19 and July 27, 1956.

By letters dated May 17 and July 7, 2004, the Seattle district office notified you that they had completed the initial review of your claim for benefits under the EEOICPA, but that additional employment evidence was needed in order to establish a claim. You were specifically informed that the claimed military employment with the U.S. Navy was not covered employment under the EEOICPA. You were requested to provide supporting documentation of covered employment within thirty days of the date of the district office letters.

You provided a Form EE-4 (Employment History Affidavit), on which you indicated that the employee worked for the U.S. Navy in the Marshall Islands from November 4, 1952 to October 31, 1956, and McDonnell Douglas in St. Louis, Missouri, from January 1956 to January 1991. You also provided a signed Form SSA-581 (Authorization to Obtain Earnings Data from the Social Security Administration).

On August 23, 2004, the Seattle district office recommended denial of your claim for benefits. The district office concluded that the employee was not a covered employee as defined under § 7384l of the Act, as the evidence did not establish that he had been present at a covered facility as defined under § 7384l(12) of the Act, while working for the Department of Energy or any of its covered contractors, subcontractors or vendors as defined under § 7384l(11), of the Act, during a covered time period. See 42 U.S.C. § 7384l(11) and (12). The district office further noted that it had been determined that Congress did not expressly direct that military personnel be included as covered employees under the Act and that military personnel suffering from injuries resulting from government service were already covered under a separate program for veterans. Finally, the district office concluded that you were not entitled to compensation as outlined under § 7384s(e)(1) of the Act. See 42 U.S.C. § 7384s(e)(1).

FINDINGS OF FACT

1. You filed a claim for survivor benefits on May 3, 2004.

2. The employee was diagnosed as having pancreatic cancer in October 2001.

3. The employee’s military employment with the U.S. Navy is not covered employment under the Act.

4. You did not provide evidence to establish that the employee worked in covered employment under the EEOICPA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on August 23, 2003. I find that you have not filed any objections to the recommended decision as provided by § 30.316(a) of the regulations, and that the sixty-day period for filing such objections, as provided for in § 30.310(a) has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

In order to be afforded coverage under the Energy Employees Occupational Illness Compensation Program Act, you must establish that the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). 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. See 42 U.S.C. § 7384l(4)-(7), (9), (11).

In order to be afforded coverage under § 7384l(9) of the EEOICPA as a “covered employee with cancer,” the claimant must show that the employee was a Department of Energy (DOE) employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility. See 42 U.S.C. § 7384l(9); 20 C.F.R. § 30.210(b).

Although you provided a diagnosis of cancer, the evidence of record does not show that the employee was a DOE employee, contractor, subcontractor or atomic weapons employee. The evidence demonstrates that the employee was on active duty in the U.S. military. The EEOICPA was established to compensate civilian men and women who performed duties uniquely related to nuclear weapons production and testing. See 42 U.S.C. § 7384l(a)(7). Consequently, the employee’s military employment is excluded from coverage under the EEOICPA.

The record shows that by letters dated May 17 and July 7, 2004, you were requested to provide the required information to prove covered employment. It is the claimant’s responsibility to establish entitlement to benefits under the Act. The EEOICPA regulations at § 30.111(a) 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 set forth in § 30.110. 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).

The record in this case shows that you did not provide employment evidence to establish that the employee worked for a DOE employer, contractor, or atomic weapons employer. See 42 U.S.C. § 7384l(1). Therefore, your claim must be denied for lack of evidence of covered employment under the EEOICPA.

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.

Seattle, Washington

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Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch