Docket Number: 50247-2004

U.S. DEPARTMENT OF LABOR

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

 

 

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation under 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 October 15, 2003, you filed a claim for benefits under the EEOICPA as the surviving spouse of [Employee] and identified bladder cancer as the diagnosed condition being claimed. You submitted an Employment History Form (EE-3) on which you stated that Commercial Motor Freight employed your husband at the Portsmouth Gaseous Diffusion Plant (GDP) from December 11, 1954 to December 11, 1981. You did not state if your husband wore a dosimetry badge while employed. You submitted an affidavit from Connie Bighouse and J. Frank Bighouse in which they attested that they were employed by Commercial Motor Freight from 1958 to 1985 at the Chillicothe Terminal. Ms. Bighouse and Mr. Bighouse also attested that your husband worked for Commercial Motor Freight as a driver, delivering and picking up freight at the Goodyear Atomic Corporation. They did not provide dates of your husband’s employment. You submitted a copy of your marriage certificate which shows you were married to [Employee] on December 9, 1947. You submitted a copy of your husband’s death certificate which shows he died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease. As medical evidence, you submitted a copy of Dr. W. G. Rice’s February 9, 1978 pathology report in which your husband was diagnosed with transitional cell carcinoma of the bladder.

On October 22, 2003, the district office attempted to verify your husband’s employment through the Oak Ridge Institute for Science and Education (ORISE) database but there were no records of your husband’s employment. On November 18, 2003, Department of Energy (DOE) representative Roger Holt advised, via Form EE-5, that the DOE was unable to verify your husband’s employment but other pertinent evidence existed. Mr. Holt submitted a copy of your husband’s Personnel Clearance Master Card which shows your husband was granted a “Q” clearance at the request of Goodyear Atomic Corp. and Commercial Motor Freight, Inc. as a truck driver on April 27, 1970 and the clearance terminated on June 23, 1982. On December 4, 2003, the district office received a copy of your husband’s Social Security Administration itemized statement of earnings which shows he had earnings from Lee Way Holding Company, which is now bankrupt, from 1954 to 1982. The district office verified, through the bankruptcy trustee, that the earnings from Lee Way Holding represented earnings from Commercial Motor Freight, Inc. On December 9, 2003, DOE and Bechtel Jacobs Company representative Wendy L. Wilcox advised, via Form EE-5, that no evidence existed in regards to the employment you claimed. On January 5, 2004, at the request of the district office, Frank Bighouse and Connie Bighouse submitted a supplement to their affidavit regarding your husband’s employment. Ms. Bighouse attested that she worked with your husband from 1967 until he left the company (no date provided). Ms. Bighouse and Mr. Bighouse also attested that your husband made deliveries to the GDP in the morning and pickups in the evenings five days a week. They also attested that he would spend approximately one to two hours on site for each pick up and each delivery.

Based upon the evidence of record, the district office issued a recommended decision on January 14, 2004, in which it concluded that [Employee] was a member of the Special Exposure Cohort as defined by 42 U.S.C. § 7384l(14)(A); that [Employee] was diagnosed with bladder cancer which is a specified cancer as defined by 42 U.S.C. § 7384l(17); and that you are the surviving spouse of [Employee] as defined in 42 U.S.C. § 7384s(e)(3)(A). The district office recommended payment of your claim for benefits based on its conclusions. On February 13, 2004, after reviewing the written record, the Cleveland FAB office found that the evidence did not establish that your husband was a contract employee as defined under the Act. The FAB vacated the recommended decision and remanded your claim to the district office for additional development and the issuance of a new recommended decision. On March 22, 2004, the district office issued a new recommended decision in which it concluded that the evidence of record did not establish that [Employee] was a “covered employee with cancer” as that term is defined under 42 U.S.C. § 7384l(9)(B). The district office recommended denial of your claim based on its conclusion.

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 HHS’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). On April 13, 2004, you wrote to the FAB and advised that you disagreed with the recommended decision. You stated that you objected to the decision that your husband’s sub-contracted employment did not constitute a service, but a mere delivery of goods and that he is not considered to be a covered employee with cancer. You submitted the following evidence in support of your position:

1. Copy of Dr. William Lutmer’s September 1, 1997 medical report on which was circled the statement, “He does not smoke or drink.”
2. March 19, 2004 statement from Malcolm Blosser who stated that he worked for Goodyear Atomic and Martin Marietta Corp. in Piketon. Mr. Blosser stated that your husband was a driver for Commercial Motor Freight, that your husband delivered freight to the GDP everyday, and that he helped your husband to unload the freight.
3. March 28, 2004 statement from Dale Reed, Maintenance Division of the United States Energy Corporation, in which he stated that the purpose of his letter was “a testimonial to the reasonable possibility of [Employee] being exposed to high levels of contamination, radiation and chemicals of both known and unknown measures.” Mr. Reed attested to the high levels of exposure in the buildings that your husband entered on a regular basis. He included a copy of the Risk Mapping performed for union and company purposes as a guide to the exposures of each building.

You requested a hearing and such was held by the undersigned on June 8, 2004 in Piketon, OH. You appeared at the hearing with your son, [Employee’s son]. [Employee’s son] testified at the hearing that you disagree with the classification of your husband’s employment as “a mere delivery of goods” because he had a security clearance which required him to come in and out of the plant for 11 years. [Employee’s son] also testified that your husband spent two or three hours a day loading and unloading “classified” freight. Hearing Transcript (HT) 8-9. You submitted, as evidence, a statement from Mr. Malcolm Blosser dated June 7, 2004, in which he reiterated the information in his previous statement of March 19, 2004.

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

FINDINGS OF FACT

1. You filed a claim for survivor benefits under the EEOICPA on October 15, 2003.

2. Commercial Motor Freight Inc. employed your husband, as a truck driver, from 1954 to 1982.

3. [Employee] was diagnosed with bladder cancer on February 9, 1978.

4. [Employee] died on April 30, 2000 due to myocardial rupture, myocardial infarction and arteriosclerotic cardiovascular disease.

5. 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

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 § 7384l(9)(B)[1], 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, an employee either must be: (1) a member of the Special Exposure Cohort (SEC) who was a DOE employee, a DOE contractor employee, or an atomic weapons employee who contracted a specified cancer after beginning such employment; or (2) a DOE employee, a DOE contractor employee or an atomic weapons employee who contracted cancer (that has been determined pursuant to guidelines promulgated by HHS, “to be at least as like as not related to such employment”), after beginning such employment. See 42 U.S.C. § 7384l(9) and 20 C.F.R. § 30.210.

While the EEOICPA does not contain a specific definition of a DOE contractor, it does contain a definition of a DOE contractor employee that, in effect, defines what a DOE contractor is. Section 7384l(11) of the EEOICPA defines a DOE contractor employee as:

A. An individual who is or was in residence at a Department of Energy facility as a researcher for one or more periods aggregating at least 24 months.

B. an individual who is or was employed at a Department of Energy facility by—

(i) an entity that contracted with the Department of Energy to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility.

The DEEOIC has further addressed the issues of how a “contractor or subcontractor” may be defined in EEOICPA Bulletin No. 03-27 (issued May 28, 2003). The following definitions have been adopted by the DEEOIC:

Contractor – An entity engaged in a contractual business arrangement with the Department of Energy to provide services, produce materials or manage operations at a beryllium vendor or Department of Energy facility.

Subcontractor – An entity engaged in a contracted business arrangement with a beryllium vendor contractor or a contractor of the Department of Energy to provide a service at a beryllium vendor or Department of Energy facility.

Service – In order for an individual working for a subcontractor to be determined to have performed a “service” at a covered facility, the individual must have performed work or labor for the benefit of another within the boundaries of a DOE or beryllium vendor facility. Example of workers providing such services would be janitors, construction and maintenance works.

Contract - An agreement to perform a service in exchange for compensation, usually memorialized by a memorandum of understanding, a cooperative agreement, an actual written contract, or any form of written or implied agreement, is considered a contract for the purpose of determining whether an entity is a “DOE contractor.”
 

Delivery of Goods – The delivery and loading or unloading of goods alone is not a service and is not covered for any occupation, including construction and maintenance workers.

You submitted employment evidence that establishes your husband was employed as a truck driver, by Commercial Motor Freight, to deliver goods to the Portsmouth GDP, a Department of Energy facility.[2] In order for a contractor or subcontractor employee to be determined to have performed work or labor for DOE, the individual must have performed a “service” for the benefit of the DOE within the boundaries of a DOE facility. The mere delivery of goods alone is insufficient to establish that a service was performed for the benefit of DOE.[3] Because you did not submit evidence that establishes your husband is 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