Docket Number: 10015106-2006

EMPLOYEE: [Name Deleted]

 

CLAIMANT: [Name Deleted]

 

FILE NUMBER: [Number Deleted]

 

DOCKET NUMBER: 10015106-2006

 

DECISION DATE: July 25, 2006

 

 

NOTICE OF FINAL DECISION FOLLOWING

A REVIEW OF THE WRITTEN RECORD

 

This decision of the Final Adjudication Branch concerns 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 reasons set forth below, your claim is denied.

 

Since you submitted a letter of objection, but did not specifically request a hearing, a review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

 

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional evidence or arguments submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

 

STATEMENT OF THE CASE

 

On December 9, 2002, you filed a Form EE-2, Claim for Survivor Benefits, and a Request for Review by Physicians Panel for the esophageal cancer of your late spouse, [Employee], hereinafter referred to as “the employee.” The death certificate states the employee died of interstitial lung disease (illegible word), acute ARDS due to infection, congestive heart failure, and myocardial infarction.

 

On the Form EE-3, Employment History, you stated the employee was employed as lead maintenance man for Lithium Corporation of American/FMC from October 3, 1955 to January 31, 1992. The district office verified the employee worked for Lithium Corporation, a joint venture with Beryllium Metal and Chemical Corporation (BERMET), in Bessemer City, North Carolina, from October 3, 1955 to January 31, 1992.

 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on May 22, 1948, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, December 3, 1992.

 

On March 22, 2006, the Jacksonville district office issued a recommended decision, concluding that you are not entitled to lump-sum survivor compensation under Part E of the Act, because the employee was not a Department of Energy (DOE) contractor employee.

 

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. On May 15, 2006, the Final Adjudication Branch (FAB) received your letter of objection dated May 12, 2006.

 

OBJECTIONS

 

In the letter of objection, you stated that the employee qualified as a covered beryllium employee under the law, and therefore, should be covered under Part E. You quoted the Federal Regulations in § 30.205, which establishes the criteria for an employee to be considered a covered beryllium employee. 20 C.F.R. § 30.205 (2005). However, the heading for that section of the regulations states that the eligibility criteria are for “Claims Relating to Covered Beryllium Illness under Part B of EEOICPA” [emphasis added], not Part E of the EEOICPA.

 

On October 28, 2004, Congress abolished Part D of the Act, which had been administered by the Department of Energy, and created Part E of the Act to be administered by the Department of Labor. Congress established the criteria for a “covered DOE contractor employee” under Part E. The Department of Labor must apply those criteria as written.

 

FINDINGS OF FACT

 

1. On December 9, 2002, you filed a Form EE-2, Claim for Survivor Benefits.

 

2. The employee was diagnosed with interstitial lung disease, acute ARDS due to infection, congestive heart failure, and myocardial infarction.

 

3. The employee was employed at Lithium Corporation, a joint venture with Beryllium Metal and Chemical Corporation (BERMET), an acknowledged beryllium vendor, from October 3, 1955 to January 31, 1992.

 

4. You were the employee’s spouse at the time of his death and at least a year prior.

 

CONCLUSIONS OF LAW

 

The undersigned has reviewed the record, the recommended decision issued by the Jacksonville district office on March 22, 2006 and the subsequently submitted objections. I find that the decision of the Jacksonville district office is supported by the evidence and the law, and cannot be changed.

 

The eligibility criteria for your claim under Part E of EEOICPA are discussed in § 30.230 of the regulations, which state that “the employee is a Department of Energy contractor employee as defined in § 30.5(w). . . .” 20 C.F.R. § 30.230(a). Section 30.5(w) of the regulations and § 7384l of the Act define a Department of Energy contractor employee to be (1) an individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months; or (2) an individual who is or was employed at a DOE facility by: (i) an entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility. 20 C.F.R. § 30.5(w), 42 U.S.C. § 7384l(11). The employee was a covered beryllium employee, employed by a beryllium vendor, with no indication of employment at any DOE facility.

 

You meet the definition of a survivor. 42 U.S.C. § 7385s-3(d)(1). However, since the evidence does not establish that the employee was a Department of Energy contractor employee, you are not entitled to benefits under Part E of the Act, and the claim for compensation is denied. 42 U.S.C. §§ 7385s-4(c)(1)(A), 7385s-3(a)(1)(B).

 

Jacksonville, FL

 

 

 

 

Sidne M. Valdivieso

Hearing Representative