Docket Number: 2158-2003

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	2158-2003
DECISION DATE:	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Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E. Because of this, DEEOIC proceeded to adjudicate your Part D claim under Part E and on May 17, 2006, the FAB issued a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

1. You filed a claim for survivor benefits under Part B of EEOICPA on August 7, 2001 as the spouse of the employee.

2. You alleged that the employee worked for Lucius Pitkin, Inc. at the Allied Chemical Corporation facility from July 1978 to July 1985.

3. 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.

4. Lucius Pitkin, Inc. is not an AWE, a subsequent owner of the Allied Chemical Corporation facility, or a subsequent operator of that AWE facility.

5. 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