Docket Number: 57708-2004

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 57708-2004

DECISION DATE: October 25, 2004

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning 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 or the Act). For the reasons set forth below, your claim for benefits is denied.

STATEMENT OF THE CASE

On May 20, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of an Atomic Weapons Employer (AWE) at an AWE facility. You stated on the Form EE-1 that you were filing for asbestosis, kidney failure, heart disease and beryllium sensitivity.

On the Form EE-3, Employment History, you stated you were employed as a yard and garage foreman by Bethlehem Steel Company at Bethlehem Steel, Lackawanna, New York, from 1949 to 1983.

In letters dated May 28, 2004 and July 20, 2004, the district office informed you of the covered medical conditions under the Act, the medical requirements to establish these conditions, and requested you to submit such medical evidence and evidence of employment at Bethlehem Steel. The letters also informed you that beryllium sensitivity is not compensable in cases where the only employment claimed is with an Atomic Weapons Employer (such as Bethlehem Steel), and provided you time to respond. The district office did not receive any response to the letters.

On August 19, 2004, the Cleveland district office issued a recommended decision denying your claim, finding no evidence to establish a covered occupational illness under the Act.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. You were also advised that, if there was no timely objection filed, the recommended decision would be affirmed and you would be deemed to have waived the right to challenge the decision. This 60-day period expired on October 18, 2004.

The 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 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). The implementing regulations further state that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing with the period of time allotted in section 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a). In this case, you did not file any objections to the recommended decision or a request for a hearing.

FINDINGS OF FACT

1. On May 20, 2004, you filed a Form EE-1, Claim for Benefits under the EEOICPA, based on asbestosis, kidney failure, heart disease and beryllium sensitivity.

2. You claimed employment at Bethlehem Steel, Lackawanna, New York, from 1949 to 1983. Bethlehem Steel is designated an Atomic Weapons Employer under the Act.

3. No medical evidence was submitted in support of the claim.

4. On August 19, 2004, the Cleveland district office issued a recommended decision denying your claim, finding no evidence to establish a covered occupational illness under the Act.

CONCLUSIONS OF LAW

Based on my review of the evidence of record and the recommended decision, I find that the recommended decision is correct and I accept those findings and the recommendation. I further find that no medical evidence was submitted of beryllium sensitivity or other covered occupational illness, and beryllium sensitivity is not compensable with employment only for an Atomic Weapons Employer. 42 U.S.C. §§ 7384l(8), 7384l(15), 7384l(7), 7384n(a).

Jacksonville, FL

J. Mark Nolan

Hearing Representative