Docket Number: 20150209-20000973-2

U.S. DEPARTMENT OF LABOR

OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	20150209-20000973-2
DECISION DATE:	September 23, 2015

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the final decision of the Final Adjudication Branch (FAB) on the claims for survivor benefits filed by [Claimant #1], [Claimant #2] and [Claimant #3] (hereinafter “the claimants”) based on [Employee]’s (“the employee”) condition of rectal carcinoma under 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, the claimants’ survivor claims for benefits are denied under Part B of EEOICPA.

STATEMENT OF THE CASE

On September 9, 2013, the employee filed a claim for benefits, citing an unidentified cancer as his work-related condition; the claim was later amended to identify rectal carcinoma as the claimed illness. He also submitted an incomplete employment history on Form EE-3. Received separately was a physician-certified surgical pathology report that diagnosed the employee with an invasive, well-differentiated adenocarcinoma of the rectum on or about January 16, 2012. The employee’s claim was not adjudicated and was administratively closed upon notice of his death.

Between February 22 and March 3, 2014, the claimants filed survivor claims for benefits, identifying rectal carcinoma as the employee’s work-related condition. [Claimant #3] also completed an employment history stating that the employee worked as a steelworker with Bethlehem Steel Corporation in Lackawanna, New York from 1951 to 1984.

As evidence of survivorship, the claimants submitted a copy of the employee’s death certificate, which verifies that he died while widowed on December 14, 2013. Also provided were copies of each claimant’s birth certificate, all of which name the employee as their father. In order to confirm her surname change, [Claimant #3] submitted a copy of her marriage certificate. While [Claimant #2]’s birth certificate is largely illegible, it is legible enough to show the employee’s name and to discern his relationship to [Claimant #2].

In support of the previously-completed employment history, [Claimant #3] submitted February 10, 2014 correspondence from the Pension Benefit Guaranty Corporation (PBGC) that she had received in response to a Freedom of Information Act (FOIA) request. Appended to this letter was a table of earnings purportedly showing the employee’s Bethlehem Steel wages from 1951 through 1984.

On March 14, 2014, the Cleveland district office issued development letters to each claimant that, in relevant part, requested completion of Form SSA-581 so it could obtain an itemized statement of earnings for the employee. [Claimant #3] returned the completed form, which was sent to the Social Security Administration (SSA) on April 22, 2014. An itemized statement of earnings, Form SSA-1826, was received from SSA on July 11, 2014. The document confirms that the employee received wages from Buffalo General Hospital, Pratt & Letchworth Co. (Pratt & Letchworth) and Amcast Industrial Corporation (Amcast) from the 2nd quarter of 1951 through the 3rd quarter of 1953 and from Bethlehem Steel beginning in the 4th quarter of 1953 and continuing through the end of 1984.

Thereafter, the claimants were asked to complete and sign EN-16 disclosure forms, which they returned to the district office between July 14 and July 18, 2014.

On July 18, 2014, the district office issued a recommended decision to accept the claimants’ Part B survivor claims. As part of that decision, the district office found that the employee was a member of the Special Exposure Cohort (SEC) class of employees who worked at Bethlehem Steel, an atomic weapons employer (AWE), and that he was diagnosed with a “specified cancer” for the purposes of EEOICPA. With respect to the employee’s work history at Bethlehem Steel, the district office found that in spite of the disagreement in the evidence received from the PBGC and SSA, the “totality of the evidence” established that the employee worked at that facility from 1951 to 1984. The recommended decision was then submitted to FAB for review and issuance of a final decision.

In a subsequent order, a FAB hearing representative addressed the unresolved discrepancy between the employee’s pension and SSA records with regard to his employment at Bethlehem Steel, with one source identifying his start date at that facility as 1951 and the other 1953. Accordingly, the claimants’ survivor claims were returned to the Cleveland district office for additional development and the issuance of a new recommended decision.

Upon receipt of the order, the district office referred the matter to the Policy Branch of the Division of Energy Employees Occupational Illness Compensation (DEEOIC). An analyst in that Branch reviewed the case history, with particular attention paid to the employment evidence received from the PBGC and the SSA. In the course of that review, the analyst contacted Denise Himme, a PBGC employee who works exclusively with Bethlehem Steel and who has access to the employee’s employment records at that facility. After reviewing the employee’s employment cards, Ms. Himme determined that the employee’s first day of work at Bethlehem Steel was September 29, 1953, and that based on Bethlehem Steel’s employment age restriction of 19 years of age, the employee would have been too young to work at the facility prior to 1953 (as a parenthetical note, the employee’s birth date as established by his death certificate and Form EE-1 is February 14, 1934). The analyst communicated her findings to [Claimant #3] on November 10, 2014.

The case was returned to the district office for additional development. By letters to each claimant dated November 20, 2014, the district office explained the conflict between the evidence received from the PBGC and SSA, and described the results of Ms. Himme’s research. The claimants were asked to provide additional evidence to establish the employee’s alleged work history at Bethlehem Steel prior to the 4th quarter of 1953.

[Claimant #3] provided several pieces of evidence in response to this request. The first document is a copy of the February 10, 2014 correspondence from the PBGC with the employee’s table of earnings that had been submitted previously. Included with this document was an October 16, 2003 notification letter to the employee that does not discuss his tenure at Bethlehem Steel. The second document is an affidavit from Eli S. Earthman in which Mr. Earthman states that he was employed at Bethlehem Steel in 1944 when he was 16 years of age during a wartime period when “many young men were drafted into the army and worked at the Lackawanna Bethlehem Steel Plant.” The third document is an affidavit from the employee’s sister, [Name Deleted], who stated that the employee started working at Bethlehem Steel as a young man when one of the employers at the site “signed for him to become an employee.” It is her recollection that the employee was working at Bethlehem Steel at the time of her wedding in 1952. The fourth document is an affidavit from [Affiant], who claimed that the employee started working at Bethlehem Steel “at a very young age”; she based her recollection on her close acquaintance with the employee and his uncle, who later became her husband. The fifth document is a service record for an unnamed employee with the first entry identifying Handyman as the labor category and an earliest date of employment as September 30, 1953. The sixth and final document is a copy of the employee’s funeral announcement that contains an obituary stating that the employee began working at Bethlehem Steel “[a]round the age of 18.”

The district office reviewed the employment evidence and issued letters to the claimants on January 13, 2015. In summary, the district office concluded: (1) that the table of earnings submitted by the PBGC represents “lifetime employment/taxable income” and does not serve as verification of the employee’s work history at Bethlehem Steel; (2) that when cross-referenced, the table of earnings and Form SSA-1826 suggest that the employee was employed on a full-time basis with Buffalo General Hospital, Pratt & Letchworth and Amcast during 1951 and 1952; and (3) that the employment service record that [Claimant #3] submitted in support of her claim suggests that the employee started his career at Bethlehem Steel on September 30, 1953. The district office, however, also erroneously stated that based on its findings, the employee’s record would be referred to the National Institute for Occupational Safety and Health (NIOSH) for a radiation dose reconstruction. No such referral took place.

No additional employment evidence was received in response to this correspondence. Accordingly, the district Office issued a February 9, 2015 recommended decision to deny the claimants’ survivor claims. In that recommended decision, the Cleveland district office reviewed the employment evidence of record and determined that the employee did not work at a covered AWE facility during a covered period, and specifically at Bethlehem Steel, which is a covered AWE facility only from 1949 to 1952.

OBJECTIONS

The claimants received appeal rights with the recommended decision, and [Claimant #3] filed a timely objection and request for hearing on March 16, 2015. [Claimant #3] identified Roland Cercone as the claimants’ authorized representative. In subsequent correspondence, [Claimant #1] and [Claimant #2] also authorized Mr. Cercone as their representative.

A hearing was held on May 21, 2015, which the claimants attended in the company of their representative. A summary of the case was read into the record, and the claimants’ representative made several introductory statements in relation to three exhibits.

The first exhibit is a resubmitted copy of the PBGC’s February 10, 2014 correspondence (now with signature page) that was provided to [Claimant #3] with the employee’s table of earnings; the information contained in that document was considered prior to the issuance of the recommended decision. The second exhibit is a copy of a May 14, 2015 letter from the PBGC’s Maria E. Gamez, Government Information Specialist, to the claimants’ representative in which Ms. Gamez attests that the table of earnings that was submitted with the PBGC’s earlier correspondence contained “only information regarding [the employee’s] employment with Bethlehem Steel.” Notably, Ms. Gamez cautioned that PBGC “cannot attest to the accuracy” of the earnings information, because the document was “created by the prior (pension) plan administrator and not PBGC.” The final exhibit is a document non-specifically referred to as an “employment record” from Bethlehem Steel, possibly a pre-employment medical clearance card, signed by [Employee’s same first and last name but different middle initial][1] and dated September 29, 1953 with an “accepted” date of February 18, 1955. The document also includes the last four digits of a social security number, which matches the last four digits of the employee’s social security number.

With regard to the first and second exhibits, the claimants’ representative highlighted PBGC’s confirmation that the table of earnings that the administrator submitted pertained exclusively to the employee’s employment with Bethlehem Steel and would not have included earnings from any other employer from 1951 through 1984, as PBGC “only works with Bethlehem Steel and only does the pension from Bethlehem Steel.” He went on to question the employment card that [Claimant #3] submitted in support of her claim, as it does not name the employee, and there is no indication if additional cards predated the September 30, 1953 start date listed on the document; he did, however, concede that the date October 31, 1984, which is printed on the card, corresponds to the effective date of the employee’s pension. Further, he stated that it is unclear if the earlier date (September 29, 1953) printed on the third exhibit (see above) represents an initial date of medical examination or a re-examination date. He also referred to a “litany of people” who were employed at Bethlehem Steel prior to achieving the age of 19 who were hired at a younger age to work at the facility on a probationary period before receiving a “full hire” appointment.

The claimants’ representative also referred to the two entries in the employee’s wage table that purportedly show the employee’s full-year salary for the years 1951 and 1952 ($1,964.35 and $2,979.10, respectively) and argued that these sums represent “way too much money” for an “orderly or 17, 18 year old boy” to earn from an employer like Buffalo General Hospital during this time period. He believed, without reference to evidence establishing the employee’s actual employment or work schedule during 1951 and 1952, that the sums represented salary commensurate with “full wages pay” from Bethlehem Steel. Following this line of argument, he stated that the employee’s wages from 1951 through 1953 ($2,845.43 as of 1953) represented progressive earnings from Bethlehem Steel. Following the representative’s testimony, [Claimant #2] discussed conversations she had had with the employee during which he recalled his employment at Bethlehem Steel in “about ’51, ’52.”

After the hearing, the claimants were provided a full transcript of the proceedings and were afforded thirty days to submit evidence or argument in support of their claims. Neither the claimants nor their representative have contacted FAB since the date of the hearing.

The regulations at 20 C.F.R. § 30.111(a) state that unless otherwise stated in the statute or the regulations, the claimant bears the burden of proving by the preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110 (which includes survivor claims based on a covered Part B employee with cancer). Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. In order to establish a compensable claim for benefits, an employee (or the survivor of that employee) must, for claims of this sort, establish that the employee was diagnosed with cancer and was a civilian atomic weapons employee who contracted that caner after beginning employment at an AWE facility. 20 C.F.R. § 30.210(a)(2)(i)(C) (2015). Finally, with respect to facilities coverage, the Department of Labor has adopted the determinations of the Department of Energy regarding facilities that are identified in a periodically-updated list that was first published in the Federal Register on August 23, 2004 (69 FR 51825). This list currently identifies Bethlehem Steel as an AWE exclusively for the period 1949 through 1952.[2]

As noted, DEEOIC’s Policy Branch has described testimony from Ms. Himme of the PBGC that, based on her review of the employee’s employment record and knowledge of Bethlehem Steel hiring policies, the employee started his employment at that facility on September 29, 1953 and would otherwise not have been considered for employment prior to 1953 due to the facility’s age restrictions. Ms. Himme’s statements are supported by an itemized statement of earnings received from SSA that verifies the employee began his employment at Bethlehem Steel in the 4th quarter of 1953. In further support of the employee’s 1953 start date are medical certification and employment (labor category) cards that respectively show September 29 and September 30, 1953 as the earliest dates associated with the employee’s work at Bethlehem Steel.

As a rebuttal to this evidence, the claimants and their representative have submitted a statement from Maria E. Gamez of the PBGC in which Ms. Gamez claims the employee’s table of earnings dating to 1951 includes only wages earned from Bethlehem Steel. However, Ms. Gamez also states that she cannot attest to the accuracy of the information contained in the table, as the document was created before Bethlehem Steel’s pension plan came under the administration of PBGC. This disclaimer is an admission that the source of the employee’s wage history is entirely unknown, and that the data provided could include wages from employers other than Bethlehem Steel. Without additional evidence verifying the origin of the employee’s earnings data, and that the data is exclusive to Bethlehem Steel, Ms. Gamez’ attestation is of diminished probative value and insufficient to rebut the information previously acquired from PBGC.

The arguments made by the claimants’ representative regarding the employee’s medical certification and employment cards are also insufficient to overcome the evidence confirming that the employee began to work at Bethlehem Steel in 1953. While it is possible that the earlier entry (September 29, 1953) included in the medical certification card refers to a re-examination date, the claimants and their representative have provided no credible evidence to support that assertion. Moreover, while the employment card listing September 30, 1953 as a start date does not identify the individual to whom the employment history pertains, the document was in [Claimant #3]’s possession and otherwise includes the date October 31, 1984, which is the verified effective date of the employee’s pension.

Further, while the claimants’ representative has argued that the employee’s recorded earnings for the period 1951 through 1953 are too high to represent orderly wages at Buffalo General Hospital, he has not provided independent and verifiable evidence to prove that the employee actually worked in that labor category nor any information to show that the employee did not work overtime, night shifts or other types of assignments that might have increased his earning capacity. In addition, the representative did not establish the average wage for a probationary and tenured employee at Bethlehem Steel and did not address the employee’s SSA-verified employment for 1951 and 1952 with Pratt & Letchworth and Amcast. The undersigned reviewed the employee’s total wages for 1951 and 1952 and confirmed that the employee earned a total of $1,964.35 from Pratt & Letchworth and Buffalo General Hospital in 1951 and $2,979.10 from Pratt & Letchworth and Amcast in 1952. These sums correspond precisely to the PBGC wage table entries for those two years. SSA records also confirm that the employee began his employment with Bethlehem Steel in the 4th quarter of 1953 with an apparent break in service from the 2nd quarter of 1954 to the 1st quarter of 1955, which appears to explain the dates recorded in the medical certification card described in the foregoing text.

While the undersigned acknowledges the testimony provided by [Claimant #3] and the other affiants, their statements are based on memories of events that occurred more than sixty years ago that have not been corroborated by credible evidence that was produced near in time to the employee’s start date at Bethlehem Steel. In light of the documentary evidence described above, these statements are of diminished probative value and will not be given further consideration here.

Considered in its totality, the employment evidence, including wage tables and statements received from PBGC staff, SSA itemized statements of earnings and employment and medical certification cards, establishes that the employee started his employment at Bethlehem Steel on or about September 29, 1953. The evidence and argument submitted by the claimants and their representative are insufficient to rebut this evidence. Accordingly, the claimants have not met their burden of proof to establish that the employee was an employee at Bethlehem Steel during a period of AWE coverage for that facility.

After reviewing the evidence of record, the undersigned makes the following:

FINDINGS OF FACT

1. The claimants filed survivor claims for benefits identifying rectal carcinoma as the employee’s work-related condition.

2. The claimants contend that the employee worked at Bethlehem Steel beginning in 1951.

3. Bethlehem Steel is classified as an AWE facility exclusively for the period 1949 through 1952.

4. The evidence of record establishes that the employee began his employment at Bethlehem Steel on or about September 29, 1953.

CONCLUSIONS OF LAW

To establish eligibility as a “covered employee with cancer” under Part B of EEOICPA, the evidence of record must demonstrate that the employee is a: Department of Energy (DOE) employee, a DOE contractor employee, or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by Health and Human Services, “to be at least as likely as not related to such employment”), after beginning such employment. 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210 (2015). According to 42 U.S.C. § 7384l(3)(A), 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 an atomic weapon, excluding uranium mining and milling.

According to the DOE Office of Environment, Health, Safety and Security facilities list, Bethlehem Steel is classified an AWE facility solely for the period 1949 to 1952. The evidence of record, including statements and wage tables submitted by PBGC representatives, SSA records and employment and medical certification cards, establishes that the employee began his employment at Bethlehem Steel on or about September 29, 1953. Both the earnings information included in the wage tables submitted by the PBGC and the employee’s SSA itemized statement of earnings for 1951 and 1952 establish that the employee received wages from employers other than Bethlehem Steel during the period that the facility was covered as an AWE. The argument presented at the hearing is insufficient to overcome this evidence.

The district office and FAB developed the claimants’ survivor claims in accordance with DEEOIC’s procedures but were unable to match the claimed employment with the covered AWE period at Bethlehem Steel. Accordingly, the employee is not considered an atomic weapons employee and, by extension, a covered employee with cancer under EEOICPA. The claimants’ survivor claims based on the employee’s rectal carcinoma are, therefore, denied under Part B.

Washington, DC

Lawrence A. Ricci

Hearing Representative

Final Adjudication Branch

 

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