Docket Number: 59598-2004

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 July 20, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the condition of a brain tumor. You also provided a Form EE-3 (Employment History), on which you indicated that [Employee] worked for the U.S. Army from October 2, 1951 to July 1, 1953 and viewed an atom bomb blast while he was stationed at Camp Desert Rock, Nevada; was self-employed as a farmer from 1954 to 1972; worked for Swift’s Independent Packing from 1972 to 1985; and with John Deere from 1985 to 1989.

The record includes a letter in which you indicated that your spouse “viewed the atom bomb blast while he was at Camp Desert Rock, Nevada.” The record also includes copies of your marriage certificate, the employee’s Report of Separation from the Armed Forces, the employee’s certificate of honorable military discharge, and the employee’s death certificate. The employee’s military discharge document indicates that he entered military service with the U.S. Army in Omaha, Nebraska on October 2, 1951, and separated from service in the state of California on July 1, 1953. The employee’s death certificate indicates that he passed away on August 23, 1990, due to respiratory failure and a brain astrocytoma.

A review of the Oak Ridge Institute for Science and Education (ORISE) database was negative for employment information pertaining to the employee.

By letter dated July 27, 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 military and civilian employment you claimed on Form EE-3 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 letter. No additional documentation was received.

On September 7, 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(10), of the Act, during a covered time period. See 42 U.S.C. § 7384l(10) 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 of the Act. See 42 U.S.C. § 7384s.

FINDINGS OF FACT

1. You filed a claim for survivor benefits on July 20, 2004.

2. The employee’s employment with the U.S. Army, Swift’s Independent Packing, John Deere, and his self-employment is not covered employment under the Act.

3. 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 September 7, 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).

You indicated on Form EE-3 that the employee viewed an atomic blast while he was stationed with the Army at Camp Desert Rock, Nevada. 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 (Army). 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 letter dated July 27, 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

_______________________________________

Rosanne M. Dummer

Seattle District Manager, Final Adjudication Branch