Docket Number: 61192-2005

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 of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On August 31, 2004, you filed a claim for survivor benefits under Part B of the EEOICPA, Form EE-2, as the widow of [Employee]. You identified lung cancer as the claimed condition. You stated on the Employment History Form EE-3 that your husband was employed by the Illinois Central Railroad at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky for an “unknown” period. The Department of Energy (DOE) was unable to verify [Employee’s] employment at Paducah Gaseous Diffusion Plant.[1]

On September 17, 2004 and October 27, 2004, you were advised by the district office of the evidence that was required to support the claim that your husband was employed by a covered DOE contractor or subcontractor. To establish covered employment you need to submit evidence that your husband was employed at a DOE facility during a covered time frame and that there was a contract between the claimed contractor or subcontractor and the DOE to provide a service on the premises of the facility. The mere delivery and loading or unloading of goods alone is insufficient to establish that a service was performed for the benefit of the DOE.[2]

You submitted a statement in which you indicated your husband was employed by the Illinois Central Railroad from 1950 to January 31, 1982 and that he worked as a flagman and conductor. You also indicated that “he went to coal mines in Central City, KY, factories in Calvert City, KY and Bluford, IL, and atomic plant in Future City, KY.” You submitted a notice from the United States of America Railroad Retirement Board indicating that you are eligible for monthly spousal benefits.

You have submitted a death certificate for [Employee] that indicated a date of death of March 3, 2001 and that the immediate cause of death was cardiopulmonary arrest. This death certificate also indicated the decedent was survived by his wife, [Employee’s Spouse]. You submitted a marriage certificate showing that [Employee] and [Employee’s Spouse] were married on July 23, 1949.

You submitted a December 29, 1982 operative report, from Ted Myre, M.D., which indicated a postoperative diagnosis of cancer of the left lung with invasion of the mediastinum. A December 30, 1982 pathology report, from James R. Naugh, M.D., indicated a diagnosis of moderately well differentiated squamous cell carcinoma of the left lung.

On January 22, 2005, the district office issued a recommended decision finding that you have not provided evidence proving that your husband’s claimed employment meets the criteria of a covered employee in accordance with 42 U.S.C. §§ 7384l(1) and (11) and 20 C.F.R. §§ 30.5(p) and (u) Therefore, the district office concluded that you were not entitled to compensation under the Act.

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. You did not file an objection. I have reviewed the record in this case and must conclude that no further investigation is warranted. Based upon a review of the case file evidence, I make the following::

FINDINGS OF FACT

You filed a claim for survivor benefits on August 31, 2004, under Part B of the EEOICPA.

You were married to the employee from July 23, 1949, until his death on March 3, 2001.

You husband was first diagnosed with lung cancer on December 29, 1982.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

The evidence submitted does not establish that your husband meets the definition of covered employee, during a covered time period, as defined by §§ 42 U.S.C. §§ 7384l (1), (7) and (11). For that reason, you are not entitled to compensation under § 7384s of the Act.

You have not provided records or affidavits from co-workers or other sources in support of the employment that you are claiming. Section 30.111(a) states 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”. See 20 C.F.R. § 30.111(a).

For the foregoing reasons, the undersigned hereby denies your claim for compensation for survivor benefits under Part B of the EEOICPA.

Washington, DC

Tom Daugherty

Hearing Representative