Docket Number: 114870-2011

EMPLOYEE: [Name Deleted]

CLAIMANTS: [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

 

1. The claimants filed claims for benefits as surviving children of [Employee].

 

2. [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