Docket Number: 25833-2004

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	25833-2004
DECISION DATE:	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

1. You filed a claim for survivor benefits under the EEOICPA on March 18, 2002.

2. You claimed the employee, [Employee], contracted lung cancer as a result of his employment at a DOE facility, Texas City Chemicals.

3. You submitted medical evidence of lung cancer, a covered medical condition under the Act.

4. Texas City Chemicals is an Atomic Weapons Employer.

5. 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.

6. 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