EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	55344-2004 56048-2004
DECISION DATE:	November 23, 2004

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claims 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 claims for benefits are denied.

 

STATEMENT OF THE CASE

 

On March 3, 2004, [Claimant 1] filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA), and on March 29, 2004, [Claimant 2] filed a Form EE-2, seeking compensation based on [Employee]’s condition of stomach cancer. 

 

You submitted a copy of [Employee]’s death certificate showing that he was married at the time of his death and identified [Spouse’s Maiden Name] as the maiden name of his surviving spouse.  The death certificate indicated that his immediate cause of death was acute myocardial failure due to or as a consequence of heart disease, adenocarcinoma of the stomach and resection of the stomach.   [Claimant 2] submitted his birth certificate that showed [Employee] as his father.    

 

A Form EE-3 (Employment History) was submitted indicating that [Employee] worked at Dupont – Deep Water, N. J. from 1944 to 1946.  On March 17, 2004 and June 2, 2004, the district office contacted the corporate verifier for Dupont Deepwater Works to obtain employment verification; however, no response was received and employment verification was not further pursued.  Dupont Deepwater Works is recognized as an Atomic Weapons Employer (AWE) from 1942 to 1949 and a Department of Energy facility in 1996 (remediation).  See Department of Energy (DOE), Office of Worker Advocacy, Facility List. 

 

By letters dated March 7, 2004, April 21, 2004 and June 2, 2004, you were notified by the Cleveland district office that there was insufficient survivorship evidence to substantiate your claims.  You were asked to submit the requested survivorship evidence within 30 days of each letter.  To date [Claimant 1]’s birth certificate has not been received, nor has the surviving spouse’s ([Spouse Maiden Name]’s) death certificate.

 

On September 9, 2004, the Cleveland district office recommended denial of your claims for benefits.  The district office concluded that the evidence of record does not establish that you are eligible survivors under the EEOICPA as defined under 42 U.S.C. § 7384s(3)(B).  Therefore, it is recommended that your claims for benefits be denied and that you are not entitled to compensation under 42 U.S.C. § 7384s(e). 

 

FINDINGS OF FACT

 

1.                  You filed claims for compensation under the EEOICPA, as survivors, on March 3, 2004, and March 29, 2004. 

 

2.                  You did not provide proof that the surviving spouse of the employee at the time of his death, was either married to the employee for less than one year prior to his death, or that the surviving spouse is deceased.

 

3.                  [Claimant 1] did not provide her birth certificate showing [Employee] as her father. 

 

4.                  [Claimant 2] is the child of [Employee].

 

CONCLUSIONS OF LAW

 

The undersigned has reviewed the recommended decision issued by the Cleveland district office on September 9 , 2004.  I find that you have not filed any objections to the recommended decision and that the 60-day period for filing such objections has expired.  See 20 C.F.R. §§ 30.310(a), 30.316(a).

 

In order to be afforded coverage under the EEOICPA, you must establish that [Employee] was diagnosed as having 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 DOE and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer.  See 42 U.S.C. § 7384l(4)-(7), (9), (11). 

 

Additionally, in order to be afforded coverage based on a “covered employee with cancer,” you must show that [Employee] was a 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).  There is evidence that [Employee] had stomach cancer based on the death certificate. However, the record in its current posture lacks proof that there is sufficient survivorship evidence to establish that you are the eligible survivors of [Employee].  Employment verification was not further pursued due to the lack of sufficient survivorship evidence. 

 

In the case of a covered employee who is deceased at the time of payment of compensation, payment of compensation is made in a set order of priority.  If the covered employee is survived by a spouse who is living at the time of payment, such payment is made to the surviving spouse.  If there is no surviving spouse, such payment is made in equal shares to all children of the covered employee who are living at the time of payment.  (If there is no surviving spouse and no children, such payment is made in equal shares to the parents, then to the grandchildren, and then to the grandparents).  See 42 U.S.C. § 7384s(e).  The one exception is when there is a surviving spouse and at least one child of the covered employee who is living and a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse.  If that exception exists, then payment is split between the surviving spouse and each child of the covered employee who is living and a minor at the time of payment.  See 42 U.S.C. § 7384s(e)(1)(F). 

 

The record shows that by letters dated March 7, 2004, April 21, 2004 and June 2, 2004, you were advised that there was insufficient survivorship evidence to substantiate your claims and therefore requested to provide such evidence.  You did not submit the requested survivorship evidence in response to those letters.  A “surviving spouse” is defined in § 30.500(a) of the regulations as the wife or husband of a deceased covered employee who was married to that individual for at least one year immediately before the death of that individual. See 20 C.F.R. § 30.500(a).  Your father’s death certificate indicates that he had a surviving spouse at the time of his death.  [Claimant 2] is the child of [Employee].  [Claimant 1] has not provided her birth certificate showing she is the child of [Employee].  You have not provided any evidence to establish that the surviving spouse listed on [Employee]’s death certificate is now deceased. 

 

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 every criterion under any compensable claim category set forth in § 30.110.  Proof by a preponderance of the evidence means it is more likely than not that a given proposition 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 Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish all criteria for benefits set forth in the regulations.  See 20 C.F.R. § 30.111(a). 

 

The evidence of record does not establish that you are eligible survivors under 42 U.S.C. § 7384s(e)(1)(B), nor does it show that the exception provided in 42 U.S.C. § 7384s(e)(1)(F) applies in this case.  Therefore, your claims based on [Employee]’s stomach cancer must be denied for lack of proof of survivorship 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 claims for benefits are denied.

 

Cleveland, Ohio

 

 

 

_______________________________________

Tracy Smart

Hearing Representative

Final Adjudication Branch