Docket Number: 59390-2005

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 59390-2005

DECISION DATE: January 21, 2005

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of 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 under Part B of the Act is denied.

STATEMENT OF THE CASE

On July 13, 2004, you filed a Form EE-1 (Claim for Benefits under the EEOICPA) based on esophageal cancer. You provided medical documentation in support of your claim related to esophageal cancer. You also indicated that you had received an award letter from the Department of Justice under the Radiation Exposure Compensation Act (RECA).

You provided a Form EE-3 (Employment History) in which you stated that you worked with Holmes and Narver, at the Nevada Test Site, from May 1, 1963 to June 30, 1971. A review of the Oak Ridge Institute for Science and Education database indicated that you worked at the Nevada Test Site from May 2, 1969 to June 3, 1971.

You also provided a letter dated June 5, 2002, which indicated that you had been awarded $50,000 under the RECA.

On September 1, 2004, the U.S. Department of Justice reported that you accepted an award of $50,000 under Section 4 of the RECA on July 10, 2002, and that you had not filed a claim under Section 5 of the RECA.

On November 9, 2004, the Seattle district office recommended denial of your claim for benefits under the EEOICPA. The district office concluded that you are not entitled to compensation or benefits under the Act, as you did not meet the required exception to receive compensation for cancer under both the EEOICPA and the RECA. See 42 U.S.C. §§ 7384u, 7385j.

FINDINGS OF FACT

1. You filed a claim for benefits under the EEOICPA on July 13, 2004.

2. On July 10, 2002, you accepted compensation in the amount of $50,000 under Section 4 of the RECA.

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on November 9, 2004. 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).

The Energy Employees Occupational Illness Compensation Program Act was established to provide compensation benefits to covered employees who have been diagnosed with designated occupational illnesses incurred as a result of exposure to silica, beryllium, and/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis. See 42 U.S.C. § 7384l(15). Further, these illnesses 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).

The Energy Employees Occupational Illness Compensation Program Act states that, except as provided by § 7384u, an individual may not receive compensation or benefits under the EEOICPA for cancer and also receive compensation under the RECA. See 42 U.S.C. § 7385j. The exception pertains to RECA awards under Section 5, and only those claimants are eligible to receive compensation under the EEOICPA. See 42 U.S.C. § 7384u.

The undersigned notes that, in order to be afforded coverage under the Act as a “covered uranium employee,” an individual must receive, or have received $100,000 under Section 5 of the RECA for a claim made under that Act. See 42 U.S.C. § 7384u.

The record in this case shows that you did not provide documentation that you had received an award under Section 5 of the RECA. Rather, the evidence shows that you accepted compensation under Section 4 of the RECA. Consequently, the exception for a RECA award under Section 5 in the amount of $100,000 (and an award under Part B under the EEOICPA in the amount of $50,000) does not apply to you, and you are not eligible for an award under Part B of the EEOICPA.

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

Seattle, WA

_______________________________________

Sandie Howley

Hearing Representative, Final Adjudication Branch