Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “Atomic Weapons Employers, Contractors, and Subcontractors.”
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Division of Energy Employees Occupational Illness Compensation (DEEOIC)
Atomic Weapons Employers
Contractors and subcontractors
EEOICPA Fin. Dec. No. 2158-2003 (Dep’t of Labor, July 11, 2008)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning your claim for survivor benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim for survivor benefits based on acute myelocytic leukemia (acute myelomonocytic leukemia) is denied.
STATEMENT OF THE CASE
On August 7, 2001, you filed a claim for survivor benefits under Part B of EEOICPA, Form EE-2, as the spouse of [Employee], hereinafter referred to as the employee. On July 31, 2002, you also filed a claim for assistance under Part D of EEOICPA with the Department of Energy (DOE). You identified acute myelocytic leukemia (acute myelomonocytic leukemia) as the medical condition of the employee resulting from his employment at an atomic weapons facility.
On Form EE-3 you indicated that the employee worked as a laboratory technician for Lucius Pitkin at the Allied Chemical facility in Metropolis, Illinois from July 1978 to July 1985. The Allied Chemical Corporation Plant in Metropolis, Illinois is a covered atomic weapons employer (AWE) facility from 1959 to 1976 and covered for residual radiation contamination from 1977 to July 2006.[1]
On February 28, 2003, DOE denied your claim for assistance under Part D, because the employee’s work at the Allied Chemical Corporation Plant was at an AWE rather than a DOE facility. On April 14, 2003, the FAB issued a final decision denying your claim for survivor benefits under Part B because the employee did not have covered employment under the EEOICPA. The FAB found that the employee’s period of employment at the Allied Chemical Corporation Plant was outside the covered years for that facility.
Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E. Because of this, DEEOIC proceeded to adjudicate your Part D claim under Part E and on May 17, 2006, the FAB issued a final decision denying your claim for survivor benefits under Part E because the employee was not employed by a DOE contractor at a DOE facility. As part of the 2004 amendments to EEOICPA, Congress amended the definition of an “atomic weapons employee” to include employees of subsequent owners or operators of an AWE facility beyond the time period during which weapons-related work occurred, provided that the National Institute for Occupational Safety and Health (NIOSH) had found that there was the potential for residual radiation contamination at the facility. NIOSH subsequently determined that the Allied Chemical Corporation facility had the potential for residual radiation contamination from 1977 to July 2006. This period of residual contamination resulted in the covered period at this particular facility being expanded.
On June 5, 2007, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a Director’s Order vacating the FAB’s April 14, 2003 final decision and reopening your claim for benefits under Part B. This order instructed the district office to determine if the employee’s employment by Lucius Pitkin at the Allied Chemical Corporation facility qualified as employment by a “subsequent owner or operator” at that AWE facility under Part B of EEOICPA. As part of this further development, the district office received a June 20, 2007 letter from I. Boyarsky, the controller of Lucius Pitkin, Inc., in which he indicated that Lucius Pitkin, Inc. was hired as an independent observer at the facility to weigh and sample ore and was never a co-owner nor operator of the Allied Chemical Corporation facility.
On July 17, 2007, the district office issued a recommended decision to deny your claim for benefits under Part B because the employee was not employed by Allied Chemical or by a subsequent owner or operator of the Allied Chemical Corporation facility, and thus his employment was not covered under EEOICPA. On August 6, 2007, you objected to the recommended decision and attached a copy of the Director’s Order. On August 20, 2007, the FAB issued a remand order returning your claim to the district office with instructions to refer the case file to the Branch of Policies, Regulations and Procedures (BPRP) within DEEOIC for a determination on whether the employee’s work with Lucius Pitkin, Inc. at the Allied Chemical Corporation facility qualified him as an atomic weapons employee under Part B of EEOICPA. Pursuant to that remand order, the district office referred your case file to the BPRP. On November 26, 2007, the BPRP determined that the employee’s employment with Lucius Pitkin, Inc. at the Allied Chemical Corporation facility did not qualify him as an atomic weapons employee because Lucius Pitkin, Inc. was not a subsequent owner or operator of that AWE facility.
On December 13, 2007, the district office issued another recommended decision to deny your claim for survivor benefits under Part B of EEOICPA, on the ground that the employee’s employment by Lucius Pitkin, Inc. at the Allied Chemical Corporation facility did not qualify him as an “atomic weapons employee,” as that term is defined in EEOICPA. Accompanying the recommended decision was a letter explaining your rights and responsibilities in regard to the recommended decision.
OBJECTIONS
On January 14, 2008, the FAB received your January 8, 2008 letter objecting to the recommended decision and requesting a hearing to air your objections, which was held on March 19, 2008 in Mount Vernon , Illinois. You and Virginia Griffey were present at this hearing and presented testimony. Your objections to the recommended decision are summarized below:
Objection No. 1: You indicated that the employee worked for Lucius Pitkin, Inc. but worked at the Allied Chemical Corporation facility, and because he was checking the moisture content of the dry uranium, which was an activity that was vital to the operation of the plant, then his employment should be covered because he should be considered an operator of the facility.
Objection No. 2: You indicated that Allied Chemical supplied the employees of Lucius Pitkin, Inc. with clothing, gloves, hard-hats and shoes, laundered their clothing and provided and maintained the respirators used by both Allied Chemical and Lucius Pitkin, Inc. employees.
Objection No. 3: You indicated that the employee’s doctors advised that the employee’s cancer was caused by him handling raw uranium.
Objection No. 4: You indicated that it is unfair to compensate employees of the United States Enrichment Corporation (USEC) who worked at the Paducah Gaseous Diffusion Plant or Allied Chemical Company employees who worked in the same building as the employee, had the same exposures as the employee and who also contracted cancer, but not to compensate the employee merely because he was not working for a covered employer.
Your first objection concerns whether the employee’s work duties qualified him as an operator of this facility. The EEOICPA provides that an “atomic weapons employee” includes an individual who was employed by an AWE during a period when the employer was processing, or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. It also includes an individual employed by an AWE or subsequent owners or operators of an AWE facility during a period of significant residual radiation contamination outside of the period in which weapons-related production occurred. See 42 U.S.C. § 7384l(3).
The period of the employee’s employment at this AWE facility is not during the period when weapons-related production occurred; however, it was during the residual radiation period when employees of the AWE, or subsequent owners or operators of the facility, are covered. There is no evidence that the employee was employed by the Allied Chemical Corporation or a subsequent owner or operation of this AWE facility. The employee was working for Lucius Pitkin, Inc. and his duties at the Allied Chemical Corporation facility were performed pursuant to a contract between the Allied Chemical Corporation and Lucius Pitkin, Inc. The controller of Lucius Pitkin, Inc. has confirmed that Lucius Pitkin, Inc. was not an operator or subsequent owner of the Allied Chemical Corporation facility. The determination of whether a contractor of an AWE is an owner or operator of an AWE facility is not based on the duties performed by an individual employee, but rather by the nature of the contract. The evidence of record does not establish that the employee worked for an AWE, a subsequent owner of the AWE facility or for a company that was contracted to operate this facility.
Your second objection concerns whether the employee should be considered an employee of Allied Chemical Corporation for purposes of EEOICPA. When it enacted EEOICPA, Congress provided specific criteria that must be met to establish that an individual qualifies as an “atomic weapons employee” in § 7384l(3). Those criteria do not include employees of contractors or subcontractors of an AWE, employees of wholly-owned subsidiaries of an AWE, or employees who are considered “shared,” “on loan,” “borrowed servants,” or “statutory employees.” See EEOICPA Fin. Dec. No. 4894-2004 (Dep’t of Labor, March 8, 2005); EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003); EEOICPA Fin. Dec. No. 13183-2003 (Dep’t of Labor, October 14, 2003). The evidence of record simply does not establish that the employee worked for an AWE. The Department of Labor must administer EEOICPA as enacted by Congress and cannot alter the necessary criteria to qualify as an atomic weapons employee under EEOICPA.
Your third objection concerns the cause of the employee’s cancer. EEOICPA provides benefits for specific occupational illnesses like cancer for an employee (or his survivors) who is considered to be a “covered employee with cancer.” See 42 U.S.C. §§ 7384l(9), 7384n. The cause of an employee’s cancer does not determine if that employee has covered employment. The evidence of record does not establish that the employee had any employment that was covered under EEOICPA.
Your fourth objection concerns the distinguishing criteria set out by Congress that are prerequisites to qualify for benefits based on cancer for atomic weapons employees, DOE employees working at covered DOE facilities, or DOE contractor or subcontractor employees working at covered facilities under EEOICPA. The Department of Labor has no authority to alter those statutory criteria. EEOICPA regulations place the burden of establishing covered employment upon the claimant. You have not submitted evidence that establishes that the employee has covered employment under EEOICPA.
After reviewing the evidence of record in your claim file forwarded by the district office, I hereby make the following:
FINDINGS OF FACT
- You filed a claim for survivor benefits under Part B of EEOICPA on August 7, 2001 as the spouse of the employee.
- You alleged that the employee worked for Lucius Pitkin, Inc. at the Allied Chemical Corporation facility from July 1978 to July 1985.
- The Allied Chemical Corporation facility is an AWE facility from 1959 to 1976, and also covered for residual radiation contamination from 1977 to July 2006.
- Lucius Pitkin, Inc. is not an AWE, a subsequent owner of the Allied Chemical Corporation facility, or a subsequent operator of that AWE facility.
- You have not submitted evidence that the employee was employed by an AWE at an AWE facility, or that the employee worked for DOE or for a DOE contractor or subcontractor at a DOE facility.
Based upon these facts, the undersigned makes the following:
CONCLUSIONS OF LAW
Part B of EEOICPA provides benefits to covered employees working at covered facilities who sustain an “occupational illness” as a result of exposure during the performance of duty at those facilities. See 42 U.S.C. §§ 7384l(1), 7384n and 7384s. In order to claim benefits under Part B of EEOICPA for cancer, the evidence must establish that the employee was either a DOE employee or a DOE contractor employee working at a DOE facility, or an atomic weapons employee working at an AWE facility who contracted cancer due to exposure to radiation in the performance of duty. See 42 U.S.C. §§ 7384l(9), 7384n and 7384s.
You claimed that the employee contracted cancer as a result of his employment at the Allied Chemical Corporation facility. However, EEOICPA sets out specific criteria for an employee to qualify as an “atomic weapons employee.” An “atomic weapons employee” is defined an individual who was employed by an AWE during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. It is also defined as an individual employed by an AWE or a subsequent owner or operator of an AWE facility during a period of significant residual radiation contamination outside of the period in which weapons-related production occurred. 42 U.S.C. § 7384l(3). Further, EEOICPA defines an “an atomic weapons employer” as an entity (other than the United States) that processed or produced for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling, and is designated by the Secretary of Energy as an AWE for the purposes of EEOICPA. 42 U.S.C. § 7384l(4). The term “atomic weapons employer facility” means a facility owned by an AWE that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling. 42 U.S.C. § 7384l(5).
A determination regarding your entitlement to benefits must be based on the totality of the evidence. You indicated that the employee worked at the Allied Chemical Corporation facility. That facility is a covered “atomic weapons employer facility” as defined by 42 U.S.C. § 7384l(5). You claimed that the employee worked for Lucius Pitkin, Inc. However, Lucius Pitkin, Inc is not an AWE because it has not been designated as such by the Secretary of Energy, nor is it a subsequent owner or operator of the Allied Chemical Corporation facility. Therefore, the employee does not qualify as an “atomic weapons employee” because he was not employed by an AWE during a period when that employer was processing or producing, for the use by the U.S., material that emitted radiation and was used in the production of an atomic weapon, nor was he employed by a subsequent owner or operator of the AWE facility during a period of residual radiation contamination. I have reviewed the evidence of record and it does not establish that the employee has employment covered under EEOICPA.
Section 30.110(c) of the EEOICPA regulations provides that any claim that does not meet all of the criteria for at least one of the categories including a “covered Part B employee” (as defined in § 30.5(p)) set forth in the regulations must be denied. See 20 C.F.R. §§ 30.5(p), 30.110(b), and 30.110(c). As you have not established that the employee is a covered Part B employee (because the evidence does not establish that the employee worked for an AWE), your claim for survivor benefits based on the employee’s acute myelocytic leukemia (acute myelomonocytic leukemia) under Part B of EEOICPA must be denied.
Washington D.C.
William J. Elsenbrock
Hearing Representative
Final Adjudication Branch
EEOICPA Fin. Dec. No. 25833-2004 (Dep’t of Labor, October 20, 2004)
NOTICE OF FINAL DECISION
This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on the above-designated claim for compensation under 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 stated below, your claim for benefits is hereby denied.
STATEMENT OF THE CASE
You filed an EE-2 on March 18, 2002 claiming your spouse, the employee, was diagnosed with cancer and renal disease as a result of his employment at a DOE facility.
The Employment History Form you completed indicated he was employed with Emmett Lowry Construction Company at the Texas City Chemical Plant and “other construction companies” at the Texas City Chemical Plant. He worked out of Laborer’s Local #116 from the 1950’s to the 1960’s.
You submitted a death certificate showing that he died on May 23, 1997 due to lung cancer and at the time of his death, you were his spouse. A pathology report dated April 2, 1997 established his diagnosis of lung cancer. On April 17, 2002 your EE-2 was faxed to the district office from Congressman Nick Lampson’s office, and it is noted that on that EE-2, you checked “other lung condition” as well as cancer and renal disease.
On June 28, 2002, the U.S. Department of Energy responded to a request for confirmation that the employee worked at Texas City Chemicals, from the 1950’s, 1960’s and 1970’s. They responded by stating that they had no information on the employee. An affidavit was received from Willie Williams stating he worked with the employee at Bellco Industrial Engineering American Oil Company and worked out of Labor Hall #116 for A.A. Pruitt Construction, American Oil Company, PG Bell Southwest Industrial Company, and for Amoco Chemical.
Another affidavit was received from Eligah Smith stating he worked at Amoco Chemical Company in 1957 to 1964 and saw the employee working with other construction workers. An affidavit from Lloyd C. Calhoun stated he worked for Bellco Industrial, American Oil Company out of Union Hall #116 from 1952 to 1954 with the employee and for Emmett Lowry Construction from 1954 to 1958. An affidavit from Henry Williams stated that he worked with the employee at Amoco Chemicals, Bellco Industrial Engineering in 1951 to 1955, and for A.A. Pruitt Construction at Amoco Chemical in the 1950’s to the 1960’s.
Amoco Chemical, aka Texas City Chemicals, Inc. was an Atomic Weapons Employer from 1952 to 1956.
Also received were your spouse’s social security administration records. However none of the employment evidence showed the employee worked directly for Texas City Chemical. You submitted medical evidence that included a pathology report that diagnosed the employee with lung cancer on April 2, 1997. The district office erroneously forwarded your case to NIOSH for dose reconstruction.
On March 15, 2004 and March 22, 2004 the district office notified you by letter that contractors and subcontractors of Atomic Weapons Employers are not entitled to compensation under the EEOICPA and requested that you send evidence that the employee was directly employed with Texas City Chemicals. You were given 30 days to submit such evidence.
On March 22, 2004 and April 7, 2004 the claims examiner contacted you by telephone to discuss the EEOICPA and to explain that contractors and subcontractors at AWE facilities are not covered under the Act.
On April 15, 2004, the Denver district office recommended denial of your claim on the basis that the evidence submitted did not establish [Employee] was employed at a covered facility during a covered period.
Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).
On June 15, 2004 you filed an objection to the recommended decision, and stated you disagreed with the recommended decision. You requested an oral hearing.
A hearing was held on September 1, 2004 in Houston, Texas. You attended the hearing and were accompanied by Stephen Holmes, Galveston County Commissioner. At the hearing Mr. Holmes testified that the difference between atomic weapons employers and those that worked for the DOE is not very clear in the fact sheets provided by the Department of Labor. Also, contractors and subcontractor at other sites are covered. The contractors and subcontractors at the AWE facilities handled the same materials that employees of the DOE handled and they did the same type of work.
No exhibits were presented at the hearing. On October 3, 2004, the Final Adjudication Branch received a fax from you. The fax requested that I reconsider the recommendation of your claim. You stated that the EEOICPA Fact Sheet, the Federal Register and the list of Frequently Asked Questions stated that covered workers within Texas City Chemicals (American Oil Company, Borden, Inc. Smith-Douglas, Amoco Chemical Company) 1952-1956 will include contractors or subcontractors. You also stated that the district office sent your claim to NIOSH, your claim was in process before and after the amendment of October 27, 2003, that you were led to believe that EEOICPA had approved your claim.
After considering the case record of the claim, the recommended decision forwarded by the Denver district office, and your testimony at the hearing, the FAB hereby makes the following:
FINDINGS OF FACT
- You filed a claim for survivor benefits under the EEOICPA on March 18, 2002.
- You claimed the employee, [Employee], contracted lung cancer as a result of his employment at a DOE facility, Texas City Chemicals.
- You submitted medical evidence of lung cancer, a covered medical condition under the Act.
- Texas City Chemicals is an Atomic Weapons Employer.
- The employment evidence submitted does not establish [Employee] worked directly for Texas City Chemicals, rather, it shows he worked for subcontractors to Texas City Chemicals.
- You submitted a marriage certificate establishing you are the eligible beneficiary of [Employee]. You also submitted a death certificate showing you were his spouse at the time of his death.
Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:
CONCLUSIONS OF LAW
1. The purpose of the EEOICPA, as stated in 42 U.S.C. § 7384d(b), is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” Section 7384l(3) defines the term “atomic weapons employee” to mean an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling. In order to be afforded coverage as defined by 42 U.S.C. § 7384l(15) of the EEOICPA, a claimant must establish that the claimed employee was a covered employee who had been diagnosed with an “occupational illness” which means “a covered beryllium illness, cancer referred to in section 7384l(9)(B), specified cancer, or chronic silicosis, as the case may be.” The evidence in your case establishes the employee was diagnosed with a covered condition, however, the evidence does not support he was a covered employee employed at a covered facility.
2. Chapter 2-500.6a (June 2002) of the Federal (EEOICPA) Procedure Manual states that subcontractors and contractors of AWE facilities are not covered.
3. 20 C.F.R. Parts 1 and 30, effective February 24, 2003 states that this new final rule will apply to all claims filed on or after this date, and all claims that are pending on February 24, 2003.
4. You have established that you are the eligible surviving beneficiary of the employee pursuant to 42 U.S.C. §7384s.
5. Other lung conditions and renal disease are not covered conditions under § 7384l(15) of the EEOICPA.
6. You not entitled to compensation pursuant to 42 U.S.C. § 7384l of the Energy Employees Occupational Illness Compensation Program Act.
Denver, CO
Janet R. Kapsin
Hearing Representative
EEOICPA Fin. Dec. No. 55211-2004 (Dep’t of Labor, September 16, 2004)
NOTICE OF FINAL DECISION
This is the final decision of the Office of Workers’ Compensation Programs (OWCP) on your claim for compensation under 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 reason discussed below, your claim for benefits is denied.
STATEMENT OF THE CASE
You filed a claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), on March 8, 2004. You indicated your employment classification or type of employment as Atomic Weapons Employer. On Form EE-3 (Employment History for Claim under EEOICPA) you stated that you had been employed as a supervisor for the installation of refrigeration equipment and other work while employed by the Way Engineering Company at Texas City Chemical, Inc., located in Texas City, Texas from 1952 until 1956. The Department of Energy (DOE) has identified Texas City Chemicals as an Atomic Weapons Employer (AWE) for the time period 1952 through 1956. You stated that as a result of your exposure at Texas City Chemicals while employed by Way Engineering Co. that you developed a skin disease that was possibly skin cancer.
The district office reviewed your application and evidence. In seperate letters dated March 15, 2004, the district office noted that you had not submitted medical or employment evidence in support of your claim. The letter addressing employment evidence indicated that while we had initiated a request for proof of employment with the DOE, they had been unable to verify your employment at Texas City Chemical, Inc. The district office asked you to provide evidence of your employment and listed a variety of documents such as time and attendance forms, wage statements, or other records that could be used to establish employment. The letter included Form EE-4 (Affidavit of Employment) that you could use to have other individuals complete statements in support of your employment allegations. The Social Security Administration (SSA) Form SSA-581, which can be used to verify your Social Security employment and employer history with your authorization, was included with the letter for your use if you wished the district office to request the information directly from SSA. A follow-up request for medical information was sent to you on May 26, 2004.
On June 8, 2004, you had a telephone conversation with a district office claims examiner. You stated that you had been employed by Way Engineering which was a contractor at the Texas City Chemical site and you were not employed directly by Texas City Chemical, Inc. The claims examiner informed you that employees of contractors or subcontractors of an Atomic Weapons Employer were not “covered employees” under the EEOICPA.
On June 9, 2004, the district office informed you in a letter that under the EEOICPA only employees hired directly by the AWE facility (such as Texas City Chemicals) were covered under the Act. The letter explained that the definition of an “atomic weapons employee” is an individual employed by an Atomic Weapons Employer during a period when the employer was processing or producing for the use by the United States material that emitted radiation and was used in the production of atomic weapons, excluding uranium mining and milling. The letter requested that you provide evidence that you were employed directly by Texas City Chemical, Inc. and explained that if additional employment evidence was not received within 30 days, a recommended decision would be issued based on the information in file.
On June 15, 2004, the district office received medical evidence provided by your physician, Dr. Anh V. Nguyen, M.D. This evidence included a pathology report describing a specimen from skin on your left forearm obtained on May 4, 2004 and provided a diagnosis of malignant melanoma (skin cancer).
On July 12, 2004, the district office issued a recommended decision to deny your claim. The recommended decision stated that the evidence of record did not establish that you could be considered a “covered employee” as that term is defined under 42 U.S.C. § 7384l. The file was transferred to the Final Adjudication Branch (FAB) on that date.
Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch pursuant to 20 C.F.R. § 30.310(a). If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all evidence in the record and issue a final decision affirming the district office’s recommended decision pursuant to 20 C.F.R.§ 30.316(a).
You have not raised any objections to the district office’s recommended decision pursuant to § 30.310(a) of the implementing regulations and the 60-day period for filing such objections, as allowed under § 30.310(a) of the implementing regulations (20 C.F.R. § 30.310 (a)), has expired.
Based on the evidence contained in the case record, the Final Adjudication Branch makes the following:
FINDINGS OF FACT
1. You filed a claim for compensation on March 8, 2004.
2. You did not provide evidence sufficient to establish that you had covered employment with a DOE or AWE facility.
3. You provided medical evidence that established you had been diagnosed with malignant melanoma (skin cancer) on May 5, 2004.
Based on the above noted findings of fact in this claim, the Final Adjudication Branch makes the following:
CONCLUSIONS OF LAW
Section 7384l states:
(1) The term “covered employee” means any of the following:
(A) A covered beryllium employee.
(B) A covered employee with cancer.
(C) To the extent provided in section 7384r of this title, a covered employee with chronic silicosis (as defined in that section).
(2) The term “atomic weapon” has the meaning given that term in section 11 d.* of the Atomic Energy Act of 1954 (42 U.S.C. 2014(d)).
(3) The term “atomic weapons employee” means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.
(4) The term “atomic weapons employer” means an entity, other than the United States, that–
(A) processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and
(B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.
(5) The term “atomic weapons employer facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.
Section 30.111(a) of the regulations (20 C.F.R. § 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 20 C.F.R. § 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 Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.”
You stated that you were employed by a subcontractor (The Way Engineering Co.) at an Atomic Weapons Employer facility (Texas City Chemicals, Inc.) and you were not an employee of Texas City Chemicals, Inc. EEOICPA coverage for Atomic Weapons Employers (AWE) is not extended to contractors and subcontractors of the AWE but only to individuals employed directly by the AWE. Your work at the AWE site is not qualifying because you worked for a company other than the AWE. Therefore, you are not a “covered employee” under the Act.
The undersigned has reviewed the recommended decision issued by the district office on July 12, 2004, and finds that it is in accordance with the facts and the law in this case. It is the decision of the Final Adjudication Branch that your claim for compensation is denied.
Denver, Colorado
September 16, 2004
Janet R. Kapsin
Hearing Representative
Employees during period of residual contamination
EEOICPA Fin. Dec. No. 114870-2011 (Dep’t of Labor, July 1, 2011)
| EMPLOYEE: | [Name Deleted] |
| CLAIMANTS: | [Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted] [Name Deleted] |
| FILE NUMBER: | [Number Deleted] |
| DOCKET NUMBERS: | 114870-2011 114872-2011 114873-2011 114874-2011 114875-2011 |
| DECISION DATE: | July 1, 2011 |
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claims under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, these claims for survivor benefits under Part B of EEOICPA are denied.
STATEMENT OF THE CASE
On November 15, 2001, [Employee] filed a claim in which he alleged that he had contracted a “stroke” and an unspecified heart condition due to his employment. As part of his claim, the employee also completed a Form EE-3, stating that he was employed at the Bethlehem Steel plant in Lackawanna, New York, from 1959 to 1997. The case file includes [Employee]‘s earnings report from the Social Security Administration (SSA), which shows that he was employed by Bethlehem Steel from 1959 to 1997. The Bethlehem Steel facility in Lackawanna, New York, is recognized as a covered Atomic Weapons Employer (AWE) facility from 1949 to 1952.[1]
On January 22, 2003, FAB issued a final decision denying [Employee]‘s claim under Part B of EEOICPA for a stroke and heart problems, concluding that the evidence did not establish that he had been diagnosed with a compensable “occupational illness.” After the employee died, FAB also issued an August 1, 2007 final decision denying [Employee’s Spouse]‘s claim for benefits as the surviving spouse of [Employee]. In that final decision, FAB determined that the evidence showed that [Employee] was employed at the Bethlehem Steel facility in Lackawanna for the period 1959 to 1997, which was not within the covered period for that facility.
On July 26, 2010, the claimants filed Forms EE-2 claiming benefits as surviving children of [Employee] and identified large B-cell lymphoma as the condition being claimed as work-related. They also completed employment history forms indicating that [Employee] was employed at the Bethlehem Steel facility in Lackawanna from 1958 to 1995. The case file contains a copy of [Employee]‘s death certificate, which shows that he died on November 30, 2006, and lists diffuse large B-cell lymphoma as the cause of his death.
The district office subsequently advised each of the five claimants of the covered period for the Bethlehem Steel facility (1949-1952), and afforded them the opportunity to provide evidence showing that [Employee] was employed at another covered facility, or to provide evidence indicating that the covered period at the Bethlehem Steel facility should be expanded to include periods after 1952. In response, they submitted letters questioning the 1949-1952 covered period and also submitted a newspaper article discussing the history of the Bethlehem Steel plant in Lackawanna, a chronology of significant events concerning Bethlehem Steel, and a copy of work regulations governing the use of ionizing radiation, which are dated 1972.
On December 2, 2010, the district office issued a recommended decision to deny these claims for survivor compensation under Part B, concluding that the evidence was not sufficient to show that [Employee] was a covered employee with cancer because he was not employed at the Bethlehem Steel facility during the covered period of 1949-1952.
OBJECTIONS
On January 11, 2011, the claimants objected to the recommended decision and requested a hearing. At the hearing held on March 23, 2011, the claimants questioned the basis for the covered period for the Bethlehem Steel facility. Although they acknowledged that their father’s SSA records show that his employment with Bethlehem Steel began in 1959, they questioned whether the Lackawanna facility had been fully decontaminated by that time, and argued that the covered period of the facility should be expanded to include his period of employment during this period of alleged residual radioactive contamination.
Subsequent to the hearing, the claimants submitted a portion of a document entitled “Residual Radioactive Summary,” which identifies the Bethlehem Steel Lackawanna facility as one in which “there is potential for significant residual contamination outside the period in which weapons production occurred.” This document was obtained from a website published by an advocacy group called F.A.C.T.S., Inc. (“For a Clean Tonawanda Site”).[2]
FINDINGS OF FACT
- The claimants filed claims for benefits as surviving children of [Employee].
- [Employee] was employed at the Bethlehem Steel facility in Lackawanna New York, from 1959 to 1997.
CONCLUSIONS OF LAW
A claimant who receives a recommended denial from the district office is entitled to file objections to the decision. 20 C.F.R. § 30.310 (2011). In reviewing any objections submitted, FAB will review the written record, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313. I have reviewed the record in this case, to include the hearing testimony and the written objections submitted, and conclude that no further investigation is warranted.
Part B of EEOICPA was established to provide benefits to covered employees diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium or silica while in the performance of duty for the Department of Energy (DOE) and certain of its vendors, contractors and subcontractors. To be a “covered employee” for purposes of EEOICPA, the evidence must establish that the employee worked at a DOE facility, a beryllium vendor facility, or at an AWE facility.
The term “AWE facility” means a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon. 42 U.S.C. § 7384l(5). The term “atomic weapons employer” means an entity that: (a) processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon; and (b) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program. 42 U.S.C. § 7384l(4).
For purposes of coverage under Part B, an “atomic weapons employee” is an individual who: (1) was employed by an AWE during the period when it was producing or processing material for use in an atomic weapon; or (2) was employed at an AWE facility after production ceased but during a period when the facility has been determined by the National Institute for Occupational Safety and Health (NIOSH) to have the potential for significant residual contamination. 42 U.S.C. § 73841(3). NIOSH was required to submit a report on whether or not significant contamination remained at any AWE facility after that facility discontinued nuclear weapon production activities. NIOSH issued the original report, entitled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” in November 2002 and updated the report multiple times. In all of these reports, NIOSH determined that there was no potential for significant residual radioactive contamination at the Bethlehem Steel facility outside of the weapons-related production period. See NIOSH, Office of Compensation Analysis and Support, Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities (October 2009).[3]
The claimants are seeking benefits based on [Employee]‘s employment at the Bethlehem Steel facility during the period 1959 to 1997. The Secretary of Energy has designated the Bethlehem Steel facility in Lackawanna, New York, as an AWE facility, and the period during which it processed or produced material that emitted radiation was 1949 through 1952. Since [Employee] was not employed during the 1949-1952 production period at the facility, and NIOSH has determined that there is no potential for significant residual radioactive contamination at the facility after 1952, he does not qualify as a covered employee as defined under Part B. Accordingly, these claims for compensation under Part B must be denied.
Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch
[1] The facility list is available at: http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/ showfacility.cfm (retrieved June 28, 2011).
[2] See http://www.factsofwny.com (retrieved June 28, 2011).
[3] The report can be downloaded from the Department of Health and Human Services web site at http://www.cdc.gov/niosh/ocas/pdfs/tbd/rescon/rcontam1009.pdf (retrieved June 28, 2011).