about the harm that one of the u s government's early nuclear energy workers suffered as a result of the service to his country his daughter is now seeking compensation from the department of labor under a statute designed to compensate people just like her for her father sacrifices concerning his make nearly as part b claims there are two key points one the agency failed to obtain the required employment certification from the department of energy and then also failed to consider the evidence of record of additional point held by mr mcneeley to the dio also also failed to follow its own regulations and policies in evaluating the evidence concerning mr mcneil he's medical condition first on the employment issues because it is undisputed that mr mcneil a suffered from at least a non specified cancer compensation therefore turns on the outcome of the dose reconstruction it is important for all periods of relevant employment and therefore all periods of exposure to be included in the reconstruction for it to be accurate the agency some airily concluded that any employment at whip's is not covered by the act because whip's is a public which whether which has a public utility is not relevant the relevant question is whether mr mcneil lease work at the hanford site for whips or another d o b contractor subcontractor is employment within the sat within the statute the deal well the deal well failed to make any determinations on this key issue well this is find out first something because we have to worked for the dio he was qualified to receive benefits from this program and that his medical diagnosis was one that fits in the category that was allowed and what is the evidence what have i mean there was no medical records to support that so what do we do with that yes right if there were no official medical records or other statements written by medical professionals but for the there are two ways that the claimant can obtain compensation under part b there is the first way where the claimant can show that the worker was is a member of the i c c and suffered from specified cancer or the claimant can show that the worker suffered from a non specified cancer and then the compensation turns on the reconstruction and it's undisputed  s then that you're pointing to that would fit that you know category sure so there's actually two pieces to this there's the evidence that ms nearly submitted but there's also the the regulations that require the d o b to obtain certification from the department of and excuse me they require the deal well to obtain certification from the department of energy about whether the dio he agrees disagrees or cannot agree with the alleged the employment alleged by the claimant was the obligation on the agency brought up below yes it was it was a part of your original appeal yes it was and this is  the regulation i'm referring to is twenty c f r section thirty point one twelve this spells out the the obligation to obtain that certification from the dia we and while it's true that the that deal did obtain certification from the dio we on two other periods of employment there's nothing in the administrative record indicating that the deal ever obtained certification about the nine hundred sixty s employment at hanford and so it was arbitra capricious for the for the for the agency to fail to obtain the certification and even assuming that dio we disagreed or could not verify the hanford employment in the one nine hundred sixty s the deal was then required to evaluate the evidence of  but the but the dia we did not even excuse me but the agency below did not even mention this employment evidence in its opinion especially on her second part b of record and determine whether that of an evidence demonstrates by a preponderance that mr mcneil use whips employment is covered under the statute reserve the rest of your time i'd actually like to address the medical evidence briefly i see up almost three minutes left so if they could do that in a minute our main argument on the on the medical evidence the treatment of it is that the deal while required official medical records written by medical professionals but this was this is contrary to the regulations particularly sense mcmillian her brother both submitted affidavits that the medical records relating to these conditions were no longer in existence and i'd also like to point out in my remaining time that video the d l l zone procedure manual the oprah pick procedure manual contemplates a situation like this where the worker is deceased and medical records no longer exist and provide for a procedure where the case file can be referred to a contract medical consultant an outside physician for evaluation of that evidence thank you there are no more questions i'd like to when reserve did that did anybody ask or inquire of those medical records from the dio l or the dio anybody in terms of trying to help get those records i know that mcneely attempted to obtain all sorts of records including medical records from the from from that but then she was unsuccessful and she was on to some right right and she made the agency aware would be anybody from the agency  regard not that i'm aware of no thank you thank you good morning when i was michael pile and i represent the department of labor in this case i'd like to start with the part b medical side and i think this is really a matter of deference and also this court's decision in business versus xerox where it kind of a similar issue where there were an informal document like our part that the agency's policy manual this court actually said it was error for the district court to only entire argument is based on thirty point one one three c which says that an agency that the agency may consider quote other evidence and it doesn't say that they don't see has to consider that or must consider that or has to give in any particular weight but you have to look at the constellation of the regulations because parents have never addressed regulation thirty point two one one which is specific to cancer and says that a claimant establishes a cancer diagnosis quote with medical evidence that says fourth an explicit diagnosis of cancer and i think the most important regulation that is what is it has never been addressed appellants council is thirty point one one four c which says that when the agency is making a decision on whether there is a medical condition that's compensable they agency is required to to evaluate the medical evidence in accordance with the recognized and accepted diagnostic criteria used by physicians so what that regulation i think says clearly is that whatever other evidence the claimant may submit it still has to be considered by the agency through so one for c through a lens of is this evidence that would satisfy a doctor in establishing a medical diagnosis if the court did not think that was clear then we think that the court would give our deference to the what kind of other items of evidence can be submitted and they agency's policy manual talks about the one thing that they want to accept is an affidavit containing a diagnosis of cancer or other illness but it does point to other things someone can use a death certificate signed by a doctor other medical reports and things like that but it has to be medical evidence district court denied the summary judgment in this case you know or granted relief to see you all and determined that there had not been a sufficient affirmed to basically what the board and  terminate that there had been sufficient medical connection to support that he'd the father here had been diagnosed with the proper form of cancer that was approved under the relations is that correct yes all right and that's being disputed and being appealed saying that there was enough based on the lip cancer even though that's that wasn't approved or decided that that was sufficient by the by the board is that correct i think i need to clarify that the agency found that lip cancer was established analysis they found that there was a less than thirty percent chance of that live cancer was attributable to his work that's covered by the act and what happens in these situations because you want to deal with this first and then deal with that whether or not she was a covered employee which is what you know what the discussion was earlier what happens those situations where the medical records aren't around anymore what could she have done to stablish or show proof when there's no longer medical records well again she did see a reg in here that said that when the personal like in this situation they can't find records and she notifies the agency there's a provision here that says the agency should help in trying to find him for i know she's not making that argument now but i'm just trying to figure out what happens in those situations it's the agencies the regulations put the fundamental issues they put the burden on the claimant to support the claim and i guess what the agency kept saying we can see in some of her declarations she's saying you know good example she submitted a declaration in connection with her party claim where she talked about how she had talked to her and her doctor reviewed a bunch of material and in her declaration says this doctor would say that my father had fire right cancer and i think we were cancer and some other things and so if that was true that is what should be submitted to the agency with the request to reopen of you know a b c d and then i would be up for the agency to determine you know how how to evaluate that opinion and so on the part he claims for the contractor sort of time that he worked the dispute is whether or not she's a covered employee are one whether they're stretched to the district court question whether or not that was jurisdiction after sixty days is that right yes and  said i think if i had the whole issue is even if there was jurisdiction was she a covered employee based on the fact that she established that she was capable of work after she's twenty three years old in my am i correct on that it's close to the part either the the issue that is whether she was a covered child right and it's on part b is the issue of of the extent of mcneil lease covered employment and the issue of covered employment is one where the agents are where the congress drew a very precise line and you know who determined that you have to be it's who you were employed by not who trained you not who you were close to it's who employed you and you have to work for the dio we or ideally a con contractor who had certain kind of contracts with the agency or were for a subcontractor that had certain things with you we so it's a very limited in scope it's addressing a very specific issue of work you know for the department of energy or department of energy contractors and it doesn't reach more broadly and she was had a physical or mental disability that made her incapable of supporting herself as of the time of her father died in january one thousand nine hundred one and the odd thing is that she what she submitted was something saying basically i have a lot of medical records but you never gave them to the agency and so what the agency needs on the cover child issue would be medical records about ms mcneely and whether she had a physical or mental disability in early one thousand nine hundred one that made her incapable of supporting herself and she did not submit those medical records and so her claim was denied and i guess let me ask you then again but what wasn't deal well staff required to amend undertake efforts to help find any medical records isn't there a provision that you have in your regular actions that requires that  i'm not sure where is the what's the cause i'm looking at section chapter two dash zero eight hundred five eat says the claims examiner if the claims examiner iptables information that pertinent medical records have been destroyed or otherwise unavailable the claims examiner should attempt to obtain from the physician written confirmation which contains the following information an affirmation that the physician treated the employee for the claimed fissions a statement that the requested medical records are no longer available a discussion that includes the diagnosis and date of diagnosis  that's the eat oh i see p a procedural man your manual prior to version one point zero chapter two dash zero eight hundred seventy one they haven't argued that number two i read it as saying they should not that they have two and number three i think part of the problem is that this isn't a case where she identified a particular doctor that treated him for cancer so i'm not sure who the agency was supposed to follow up with other than  i just there just wasn't enough information for an agent for the agency to help i think is part of the problem is it just there wasn't specific information even about who was the treating doctor did did she have a lawyer helping her in her communications with the agency yes she did her original claim in two thousand and two was admitted by her lawyer and authorize representative and he was representing her through sometime in two thousand and ten i believe the record evidence shows thank you thank you you thank  i'd like to address two points about the the part b claim part b part b as in boy mistakenly submitted an affidavit that indicated that her father was treated at harbor u c l a medical center in torrance california for a variety of conditions that she had she had knowledge that he was diagnosed with and that she had contacted harbor u c l a and they did not have his medical records anymore because they've been destroyed i believe in accordance with their document retention policy regardless of whether they they felt they failed to help my client or not the the records just no longer now that's what go that's actually why we did not address that point in our briefing but the other point is  discretion issues so my opposing counsel is correct that deal has discretion they may consider other medical records but by determining that only official medical records are written by a medical professional required the agency never had the opportunity to even exercise that discretion and and even consider those records or to decide whether to refer her case out to outside physician for you and i believe my time is