Docket Number: 4898-2004

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	4898-2004
DECISION DATE:	March 8, 2005

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §7384 et seq. (EEOICPA). For the reasons stated below, your claim for benefits is denied.

STATEMENT OF THE CASE

On August 9, 2001, you filed a claim for benefits under Part B of the EEOICPA as the surviving spouse of [Employee] and identified malignant melanoma as the diagnosed condition being claimed. You submitted an Employment History Form (EE-3) on which you stated that your husband was employed by Allegheny Ludlow Steel from March 27, 1966 to June 1, 1985, by Nuclear Materials and Equipment Corp. in February 1966, by Wilson Rearich Hauling from 1963 to 1964 and by MESLA Machine Co. (you did not provide dates or the name of a covered facility in regards to this employment). You stated that you did not know if your husband wore a dosimetry badge while employed by Nuclear Materials and Equipment Corp. and you stated that your husband did not wear a dosimetry badge while employed by the other employers. As medical evidence you submitted the following:

A copy of Dr. Harry Gerstbrein’s final autopsy report in which he diagnosed your husband with “malignant melanoma arising in right middle lobe of lung, metastatic melanoma to upper lobes of both lungs, and metastatic melanoma to terminal ileum and perirectal area (history).”

A copy of Dr. Allen T. Lefor’s July 4, 1985 hospital admission report in which he states your husband was diagnosed with malignant melanoma by biopsy on May 24, 1985.

You submitted a copy of your marriage certificate which shows that you were married to [Employee] on October 27, 1964 and a copy of your husband’s death certificate which shows that he died on January 16, 1986. As evidence of employment, you submitted a copy of your husband’s 1966 W2 from Nuclear Decontamination Corp. On February 19, 2002, Department of Energy (DOE) representative Roger Anders advised the district office, via Form EE-5, that the DOE did not have employment information regarding your husband. On August 30, 2003, the district office obtained a copy of your husband’s Social Security Administration statement of earnings which indicate that he received earnings from Nuclear Decontamination Corp. in the first quarter of 1966 and earnings from Allegheny Ludlum Corporation from 1979 to 1985.

Based upon the evidence of record, the district office issued a recommended decision on June 30, 2004, in which it concluded that you did not establish that [Employee] was a covered employee under 42 U.S.C. § 7384l(1), as he was not a DOE employee or contractor employee at a DOE facility, nor an atomic weapons employee at an atomic weapons employer facility, as those facilities are defined in 42 U.S.C. §§ 7384l(4), 7384l(11) and 7384l(12), respectively. It was the district office’s recommendation that your claim be denied based on its conclusions.

OBJECTIONS

On August 13, 2004, you wrote to the FAB, advised that you disagreed with the recommended decision and requested a hearing. You stated in your letter that it was your position that Nuclear Decontamination Corp. was a covered facility because it merged with Nuclear Materials and Equipment Corp. on May 13, 1974. You stated that the merger was more than sufficient to show that “the two companies were initially operating out of the same Apollo facility and eventually became one and the same.” You also stated that at the time your husband began work at Nuclear Decontamination Corp. the same person was doing the hiring for both companies.

A hearing was held on November 10, 2004 in Pittsburgh, PA. You testified at the hearing that Nuclear Decontamination Corp. and Nuclear Material Equipment Corp. (NUMEC) had the same address in Apollo, PA, worked on the same parcel of land, and used the same employment office. Hearing Transcript (HT)-8. You also testified that the merger documents between Decontamination Corp. and NUMEC show that the same person owned both companies because the same person signed as president of both companies in the merger documents. HT-10. You submitted the following exhibits as evidence to support your claim:

Exhibit 1 Commonwealth of Pennsylvania Department of State Corporation Bureau Articles of Merger which document the April 26, 1974 merger between NUMEC and Nuclear Decontamination Corp., June 23, 1959 Nuclear Decontamination Corp. Articles of Incorporation and Certificate of Incorporation.

Exhibit 2 Commonwealth of Pennsylvania Department of State Corporation Bureau Articles of Merger which document the January 9, 1975 merger between NUMEC and the Babcock & Wilcox Company, January 9, 1975 NUMEC Certificate of Withdrawal from doing business in PA, April 12, 1967 NUMEC application for Certificate of Authority, and April 12, 1967 Certificate of Authority issued to NUMEC to transact business in PA.

Exhibit 3 Copy of Pennsylvania Department of State microfilm document showing that Nuclear Decontamination Corp. merged with NUMEC.

The merger documents you submitted indicate that Nuclear Decontamination Corp. (NDC) was a wholly-owned subsidiary of NUMEC. (The merger documents show that at the time of the merger, NUMEC owned all of NDC’s outstanding shares of Common Stock.) Wholly-owned subsidiaries are companies in their own right that share an affiliation with a parent company, but operate as a separate functional entity and provide for employees in accordance with their own distinct corporate administrative policies and regulations. Due to the separate and distinct nature of a wholly-owned subsidiary and the strict regulatory and statutory definition of an Atomic Weapons Employer (AWE) facility, a wholly owned subsidiary of a DOE-designated AWE that is not itself designated as an AWE by the DOE can not be considered an AWE.[1]

After considering the written record of the claim, your letter of objection and the testimony presented at the hearing, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits under Part B of the EEOICPA on August 9, 2001.

2. Your husband was employed at Nuclear Decontamination Corp. in the first quarter of 1966 and at Allegheny Ludlum Corporation from 1979 to 1985.

3. Your husband was employed at Allegheny Ludlum Steel subsequent to the period it was a designated covered atomic weapons employer. In its June 2004 Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, the National Institute for Occupational Safety and Health (NIOSH) determined that there was little potential for significant residual contamination outside of the period in which weapons-related production occurred.

4. Nuclear Decontamination Corp. is not a covered facility under the EEOICPA. While NDC may have been a wholly-owned subsidiary of NUMEC, it was a separate, distinct corporation at the time of your husband’s employment.

5. Your husband was diagnosed with malignant melanoma on May 24, 1985.

6. Your husband died on January 16, 1986 due to malignant melanoma.

7. You are the surviving spouse of [Employee].

Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

Section 30.310(a) of the EEOICPA implementing regulations provide that, “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including the Health and Human Service’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a). At your request a hearing was held on November 10, 2004.

Part B of the Energy Employees Occupational Illness Compensation Program Act was established to provide compensation benefits to covered employees (or their eligible survivors) who have been diagnosed with designated occupational illnesses incurred as a result of their exposure to radiation, beryllium, or silica, while in the performance of duty for Department of Energy and certain of its vendors, contractors and subcontractors. “Occupational illness” is defined in § 7384l(15) of the EEOICPA, as a covered beryllium illness, cancer referred to in section 7384l(9)(B)[2] of this title, specified cancer, or chronic silicosis, as the case may. 42 U.S.C. §§ 7384l(15), 7384l(9)(B). To be eligible for compensation for cancer under Part B of the EEOICPA, an employee either must be: a 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 like as not related to such employment”), after beginning such employment. See 42 U.S.C. § 7384l(9)(2); 20 C.F.R. § 30.210.

The evidence of record establishes that your husband was employed by Allegheny-Ludlum Steel from 1979 to 1985. Allegheny-Ludlum Steel was a covered Atomic Weapons Employer from 1950 to 1952.[3] Pursuant to 42 U.S.C. § 7384l(3), an “atomic weapons employee” is defined as:

(A) 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.

(B) An individual employed—

(i) at a facility with respect to which the National Institute for Occupational Safety and Health, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities”, or any update to that report, found that there is a potential for significant residual contamination outside of the period in which weapons-related production occurred;

(ii) by an atomic weapons employer or subsequent owner or operators of a facility described in clause (i); and

(iii) during a period, as specified in such report or any update to such report, of potential for significant residual radioactive contamination at such facility.

The June 2004 NIOSH Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities, does not support a period for potential significant residual contamination at Allegheny Ludlum Steel subsequent to the covered period; therefore your husband’s employment at that facility is not covered employment under the EEOICPA. Any work performed by NDC for NUMEC during the period your husband was employed, by NDC, would be viewed as work performed by a contractor of a designated AWE.[4] AWE contractor employees are not covered under the EEOICPA. See 42 U.S.C. §§ 7384l(1), 7384l(3), 7384l(4) and 7384l(5).

Because you did not submit evidence that establishes your husband was a “covered employee with cancer” as defined at § 7384l(9) of the EEOICPA, your claim for benefits is denied. 42 U.S.C. § 7384l(9).

Washington, DC

Thomasyne L. Hill

Hearing Representative

Final Adjudication Branch