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Below are the head notes for the FAB decisions and orders relating to the topic heading, Burden of Proof. The head notes are grouped under the following subheadings: Acceptance under former Part D, Claimant’s responsibilities, Consequential conditions, Covered employment, Exposure, Medical evidence of covered illness under Part E, Medical evidence of occupational illness under Part B, Referee medical opinions and Weighing conflicting medical opinions. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Acceptance under former Part D

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Claimant’s responsibilities

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Consequential conditions

  • An injury, illness, impairment or disability sustained as a consequence of a covered beryllium illness must be established with a fully rationalized medical report by a physician that shows causal relationship. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of a covered beryllium illness, nor the belief by the claimant that the injury, illness, impairment or disability was caused by the covered beryllium illness, is sufficient in itself to prove a causal relationship. EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004).
  • Employee satisfied his burden to prove that his coronary artery disease was a consequence of radiation treatment for his lung cancer. EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008).
  • Eligible surviving spouse of the employee satisfied her burden of proving that the employee’s exposure to a toxic substance was at least as likely as not a significant factor in aggravating or contributing to the diagnosed lung conditions which a psychologist opined led to the employee’s consequential depression and subsequent death by suicide. The evidence therefore established an unbroken “chain of causation” between the employee’s covered illness and his subsequent death. EEOICPA Fin. Dec. No. 20161223-7334-3 (Dep’t of Labor, January 24, 2017).
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Covered employment

  • An affidavit from the general counsel of a labor union confirming employment of the worker at a covered facility was acceptable evidence of covered employment. EEOICPA Fin. Dec. No. 1400-2002 (Dep’t of Labor, January 22, 2002).
  • Since DOE had no evidence that it employed the claimant or that the claimant’s employer was a DOE contractor, and there were numerous conflicts between affidavits and the employment history provided by the claimant, claimant did not prove by a preponderance of the evidence that he was a covered employee or that his employer was a DOE contractor. EEOICPA Fin. Dec. No. 1704-2003 (Dep’t of Labor, February 10, 2003).
  • When the evidence submitted did not establish that the employee was assigned and/or worked within the covered portion of a larger establishment, the district office properly requested that additional evidence be submitted. EEOICPA Fin. Dec. No. 10432-2004 (Dep’t of Labor, September 13, 2004).
  • OWCP has determined that employees who worked at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio between September 1, 1954 and February 1, 1992 performed work that was comparable to a job that was monitored through the use of dosimetry badges. EEOICPA Fin. Dec. No. 17556-2003 (Dep’t of Labor, September 27, 2004); EEOICPA Fin. Dec. No. 59055-2004 (Dep’t of Labor, September 17, 2004).
  • Affidavits from two co-workers stating the claimant volunteered for and/or was assigned work in the covered portion of the Huntington Pilot Plant (now known as the Reduction Pilot Plant) demonstrate covered employment, even though the employer’s records only show that the claimant worked in non-covered portions of the plant. EEOICPA Fin. Dec. No. 19750-2004 (Dep’t of Labor, November 12, 2004).
  • Claimant who worked at Hanford for Federal Prison Industries (FPI) under the purview of the U.S. Department of Corrections did not establish covered employment by a preponderance of the evidence. While he was working for FPI, claimant was a prisoner and did not receive regular earnings, did not have personal liberty, and did not have an employee-employer relationship with FPI. EEOICPA Fin. Dec. No. 22675-2002 (Dep’t of Labor, April 21, 2004).
  • Proof of the issuance of film badges on three occasions established that claimant was present on Amchitka Island, but did not prove covered employment where the evidence showed that the claimant was on Amchitka Island as an employee of the state of Alaska and not pursuant to a contract between DOE and the state of Alaska. EEOICPA Fin. Dec. No. 27798-2003 (Dep’t of Labor, June 20, 2003).
  • Where the claimant presented no evidence that the employee’s work at the Nevada Test Site was pursuant to a contract between U.S. Coast and Geodetic Survey and the AEC, and DOE denied that U.S. Coast and Geodetic Survey was a contractor or subcontractor, the claimant did not satisfy his burden of proof. EEOICPA Fin. Dec. No. 30971-2002 (Dep’t of Labor, March 15, 2004).
  • Claim for compensation must be denied if claimant has not established employment covered under EEOICPA with the required evidence. EEOICPA Fin. Dec. No. 34771-2003 (Dep’t of Labor, July 21, 2003).
  • Claimants presented evidence that the employee’s work at the Nevada Test Site was pursuant to a contract between the U.S. Geological Survey (USGS) and the AEC, and therefore met their burden of proof to establish covered employment. EEOICPA Fin. Dec. No. 75271-2007 (Dep’t of Labor, August 29, 2007).
  • Claimant who alleged that a combined AWE and beryllium facility where he had worked also met the “contract” test in § 7384l(12)(B)(ii) of EEOICPA and should be determined to be a DOE facility had the burden of proving that his employer entered into one of the types of contracts listed in that section with DOE (or one of its predecessor agencies). EEOICPA Fin. Dec. No. 10043931-2006 (Dep’t of Labor, March 10, 2008).
  • A co-worker’s affidavit stating that the deceased employee worked with him at Area IV of the Santa Susana Field Laboratory was used to establish covered employment, even though DOE’s contractor was only able to confirm that the employee worked in a non-covered area at that location. However, when the co-worker retracted the statements in his affidavit, and there was no other evidence showing that the employee worked at Area IV, the claimants did not meet their burden of proof. EEOICPA Fin. Dec. No. 20121219-81137-1 (Dep’t of Labor, March 13, 2013).
  • A General Services Administration (GSA) employee who performed maintenance work on utilities located on the grounds of the Kansas City Plant was unable to meet his burden of proof to establish that he was a “DOE contractor employee” because he did not submit evidence of a contract between GSA and DOE, or a subcontract between GSA and DOE’s contractor, that obligated GSA to perform work it was not statutorily obligated to perform at this DOE facility in exchange for compensation. EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013).
  • An employee of Edgerton, Germeshausen and Grier – Special Projects (EG&G – Special Projects), which is a Department of Defense contractor or subcontractor, did not submit sufficient evidence to support his allegation that his employer performed work for both DOE and the Department of Defense.  Thus, FAB concluded that the claimant’s employer was not a DOE contractor or subcontractor, and that the claimant did not meet his burden of proof to establish covered employment.  EEOICPA Fin. Dec. No. 20200831-56092-1 (Dep’t of Labor, January 19, 2021).
  • Claimant who was based at Hangar 481, a covered DOE facility, and was employed by Ross Aviation, Inc., the DOE contractor at that site, submitted flight logbook data and other evidence to establish that he routinely piloted flights to Los Alamos National Laboratory (LANL) and that these flights were necessitated by a contract between DOE and Ross Aviation, Inc.  Thus, he met his burden of proof to establish that he had covered employment because he performed services as a pilot that were covered by the contract that DOE had with Ross Aviation, Inc., and was not merely delivering goods to DOE facilities.  EEOICPA Fin. Dec. No. 20230103-50027853-2 (Dep’t of Labor, June 27, 2023).
  • Claimant who was employed by a statutory beryllium vendor and provided in-person, on-site project support for the Beryllium Mill in Delta, Utah, a beryllium vendor facility, even though he lived in Pennsylvania, presented sufficient evidence to support his physical presence at that beryllium vendor facility and therefore met his burden of proof to establish that he was a “covered beryllium employee.”  EEOICPA Fin. Dec. No. 20230525-50036884-1 (Dep’t of Labor, November 14, 2023).
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Exposure

  • As part of its adjudication process, OWCP may perform a search through the Department of Labor’s Site Exposure Matrices (SEM) to ascertain whether a particular labor category could potentially have been exposed to toxic substances. The SEM contains a list of processes performed by different labor categories including uranium recovery, purification and recycle operations. EEOICPA Fin. Dec. No. 20858-2006 (Dep’t of Labor, June 30, 2006).
  • In the absence of substantial evidence to the contrary, a covered beryllium employee under Part B shall be presumed to have been exposed to beryllium in the performance of duty if the employee: (1) was employed at a DOE facility; or (2) was present at a DOE facility; or (3) was present at a facility owned and operated by a beryllium vendor because of employment by either the United States, a beryllium vendor, or a contractor or subcontractor of the DOE during a period when beryllium dust, particles, or vapor may have been present at such a facility. EEOICPA Fin. Dec. No. 60165-2005 (Dep’t of Labor, May 10, 2005).
  • A GSA employee who performed maintenance work on utilities located on the grounds of the Kansas City Plant, during a period when beryllium dust, particles, or vapor may have been present, is presumed to have been exposed to beryllium at that DOE facility and therefore qualifies as a “covered beryllium employee” under Part B. EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013).
  • A project engineer who provided in-person, on-site project support for the Beryllium Mill in Delta, Utah even though he lived in Pennsylvania was presumed to have been exposed to beryllium in the performance of duty because he was employed by a beryllium vendor and physically present at the Beryllium Mill, a beryllium vendor facility, for at least one day.  EEOICPA Fin. Dec. No. 20230525-50036884-1 (Dep’t of Labor, November 14, 2023).
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Medical evidence of covered illness under Part E

  • An employee may satisfy his burden to prove causation under Part E even in a case where his Part B claim for the same illness underwent a dose reconstruction and the resulting determination of the probability of causation was less than 50%. A SEM search identified several toxic substances to which the employee may have been exposed and a DMC opined that such occupational exposure was at least as likely as not a significant factor in aggravating, contributing to or causing the employee’s non-Hodgkin’s lymphoma. Therefore, FAB denied his Part B claim because the probability of causation was less than 50%, while it accepted his Part E claim for the same illness. EEOICPA Fin. Dec. No. 81625-2008 (Dep’t of Labor, July 30, 2008).
  • Where district medical consultant and employee’s attending physician disagreed on whether radiation therapy for employee’s lung cancer contributed to his heart disease, which led to congestive heart failure and death, the weight of the medical evidence was found to be represented by opinion of attending physician that was based on numerous physical examinations of employee, in combination with a well-rationalized, probative opinion supporting causal relationship submitted by a specialist. EEOICPA Fin. Dec. No. 10006745-2006 (Dep’t of Labor, July 27, 2006).
  • Where the DMC found that abdominal aortic aneurisms are not known to be caused, contributed to, or aggravated by exposure to toxic substances, but the medical notes stated that the employee’s aneurism was not able to be surgically corrected because of the employee’s significant medical problems (including his covered illness), the DMC concluded that it was at least as likely as not that that covered illness was a significant factor in aggravating the employee’s aneurism. FAB agreed that the element of “aggravating” in the Part E causation standard was satisfied and awarded the employee medical benefits for his abdominal aortic aneurism. EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008).
  • Where the DMC found that the employee’s covered illness was a significant factor in contributing to the employee’s congestive heart failure, FAB concluded that the element of “contributing to” in the Part E causation standard was satisfied and awarded him medical benefits for his congestive heart failure. EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008).
  • Consistent with the generally accepted principle under workers’ compensation law that the act of suicide is not an intervening cause that breaks the chain of causation between an employee’s injury or illness and his subsequent death, it is DEEOIC’s policy that death by suicide may be compensable under Part E if: (1) the deceased employee would have been entitled to compensation under Part E for a covered illness; and (2) it is “at least as likely as not” that exposure to a toxic substance at a DOE facility or RECA section 5 uranium mine was a significant factor in aggravating, contributing to or causing the employee’s death by suicide in an unbroken chain of causation. In this case, the eligible surviving spouse established by probative medical evidence that the employee’s toxic exposure resulted in the silicosis component of the contributory illness listed on his death certificate. Because that illness also led to the development of his depression and resulting suicide, and because FAB found there was no intervening event that broke this chain of causation, the employee’s death due to suicide was compensable. EEOICPA Fin. Dec. No. 20161223-7334-3 (Dep’t of Labor, January 24, 2017).
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Medical evidence of occupational illness under Part B

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Referee medical opinions

  • If a conflict exists between the medical opinion of the employee’s physician and the medical opinion of a contract medical consultant (CMC), DEEOIC may seek a third opinion from a referee who is qualified in the appropriate specialty and who has had no prior connection with the case.  EEOICPA Fin. Dec. No. 20230828-50031154-4 (Dep’t of Labor, September 27, 2023).
  • The probative value of a referee’s opinion, if sufficiently rationalized and derived from a careful examination of the evidence from the competing physicians, is granted special weight and is therefore considered by DEEOIC to resolved the conflict.  EEOICPA Fin. Dec. No. 20230828-50031154-4 (Dep’t of Labor, September 27, 2023).
  • Where the CMC and the employee’s treating physicians disagreed on whether the employee’s workplace exposures to toxic substances were sufficient to have caused, contributed to, or aggravated the employee’s diagnosed obstructive lung disease, DEEOIC found that the conflicting medical opinions were of equal probative value, thereby necessitating a referral to a referee specialist in the appropriate specialty to resolve the conflict.  EEOICPA Fin. Dec. No. 20230828-50031154-4 (Dep’t of Labor, September 27, 2023).
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Weighing conflicting medical opinions

  • FAB evaluated conflicting medical opinions to determine whether one opinion could be assigned greater weight than others based on several factors, such as familiarity with the patient’s medical history, knowledge of available medical records, application of viable scientific data, and the overall rationale supporting a particular position. EEOICPA Fin. Dec. No. 20140930-12000353-2 (Dep’t of Labor, January 11, 2016).
  • FAB determined that the medical opinions of a CMC and DEEOIC’s Medical Director could be assigned greater weight than other medical opinions in the file because the CMC and Medical Director based their reviews on all of the relevant medical and factual evidence, provided an accurate history of the employee’s occupational history and contained rationalized medical opinions addressing the relationship between the employee’s documented exposures and his claimed illness. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
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