Docket Number: 58768-2005

REVIEW OF THE WRITTEN RECORD AND

REMAND ORDER

This is a review of the written record and remand order of the Final Adjudication Branch concerning this claim for compensation under Part B of 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, the recommended decision of the Denver district office dated October 14, 2004 is vacated, and the matter is remanded to the district office for further consideration and a new decision consistent with this remand order.

On June 25, 2004, you filed a Form EE-2 as the surviving spouse of a uranium worker seeking benefits under the Energy Employees Occupational Illness Compensation Program Act. You indicated on your claim form that the [Employee] contracted lung cancer and GI malignancy due to his employment exposure. You also stated that you or the employee had not filed a claim for benefits under Section 5 of the Radiation Exposure Compensation Act (RECA) with the Department of Justice (DOJ).

The district office contacted the DOJ to verify RECA filing and on August 2, 2004, notified the Denver district office that no one had filed a Section 5 RECA claim on behalf of the employee. On August 4, 2004, the district office sent you a letter informing you of the requirements to receive compensation under the EEOICPA and affording you 60 days to apply with the Department of Justice. They also advised you that failure to file with the DOJ within the allotted time period would result in a decision being made based upon the information in file.

On October 14, 2004, the Denver district office denied your claim on the basis that you had not received an award under Section 5 of the Radiation Exposure Compensation Act, and therefore, were not entitled to compensation pursuant to § 7384u of the EEOICPA. The case was forwarded to the Final Adjudication Branch. On October 18, 2004, you wrote to the Final Adjudication Branch to object to the recommended decision. A hearing was scheduled in your case, but on January 12, 2005, the Final Adjudication Branch contacted you to remind you of the hearing and learned that you had filed a RECA claim with DOJ and you had written to DOL to withdraw the hearing request. Based upon the information from the claimant, the hearing was cancelled.

The Federal (EEOICPA) Procedure Manual states that if a claimant has indicated on the claim form that the employee was/is a uranium worker, or that a RECA award has been granted, the claim is to be developed in accordance with 20 C.F.R. 30.300.[1] Additionally, for claims filed for EEOICPA benefits concurrently with or prior to filing for RECA benefits, the DOJ should be contacted to determine if the individual has filed under Section 5, and concurrently a development letter should be sent to the claimant advising that benefits can only be provided through EEOICPA if the covered employee has received an award under Section 5 of the RECA. Additionally the letter should advise the claimant that they have 60 days in which to file with DOJ, and if a claim is not filed within the time period, a decision will be rendered on the claim.[2]

The Denver district office followed the correct procedures in this case. However, on January 12, 2004, the Final Adjudication Branch learned that you had filed a RECA claim with DOJ. The Final Adjudication Branch contacted the Department of Justice and learned that you had filed a claim with RECA, and that it is still pending.

This case is not in posture for a decision. Therefore, the undersigned hereby vacates the October 14, 2004 recommended decision, and remands the case to the Denver district office. Upon receipt the claims examiner should:

1. Administratively close the case,

2. Notify the claimant of such action

3. Issue a new recommended decision upon notification that a decision has been rendered by the Department of Justice.

Denver, CO

Joyce L. Terry

District Manager