U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH

 

 

 

 

EMPLOYEE:

[Name Deleted]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

55875-2004

56001-2004

60359-2004

60360-2004

DECISION DATE:

November 15, 2005

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

This is the decision of the Final Adjudication Branch concerning your claims 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, the Final Adjudication Branch accepts [Claimant #1/Employee’s Spouse’s] claim for compensation under 42 U.S.C. § 7384 and denies [Claimant #2’s], [Claimant #3’s] and [Claimant #4’s] claims for compensation under 42 U.S.C. § 7384.

 

STATEMENT OF THE CASE

 

On March 22, 2004, [Claimant #2] filed a Form EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as a surviving child of [Employee].  On March 29, 2004, [Employee’s Spouse] filed a Form EE-2 claiming benefits as the surviving spouse of [Employee].

 

[Claimant #2] claimed that her father had been diagnosed with leukemia, melanoma (skin cancer) and prostate cancer.  [Employee’s Spouse] claimed that her husband had been diagnosed with lymphoma, hairy cell leukemia, basal and squamous cell cancer, and b-cell lymphoma.  The medical evidence of record includes several pathology reports which diagnose various squamous cell cancers of the skin.  A pathology report dated January 29, 1997, presents a diagnosis of malignant lymphoma, diffuse, large cell type, and subsequent records support that diagnosis.  A reference is noted regarding a history of hairy cell leukemia in September 1994.

 

A copy of a marriage certificate shows that [Employee’s Spouse’s previous name] and [Employee] were wed on June 16, 1986.  This document indicates that both parties were widowed at the time of marriage and that [Employee’s Spouse’s previous name] parents’ last name was [Employee’s Spouse’s maiden name].  A copy of the employee’s death certificate shows that he died on September 15, 1997, and identifies [Employee’s Spouse’s maiden name] as his surviving spouse.  A copy of a death certificate for [Employee’s Spouse’s first husband] shows that he died on October 7, 1984, and identifies [Employee’s Spouse’s previous name] as his surviving spouse.  A copy of a birth certificate identifies [Claimant #2’s maiden name] as the child of [Employee] and a copy of a marriage certificate establishes the change of her last name to [Claimant #2’s married name][Claimant #3] and [Claimant #4] also provided their birth certificates showing [Employee] as their father.  [Claimant #4] provided a marriage certificate showing her change in surname from [Claimant #4’s maiden name] to [Claimant #4’s married name].

 

[Employee’s Spouse] provided a Form EE-3 (Employment History) in which she states that her husband worked as a pipefitter for Grinnell at the Portsmouth Gaseous Diffusion Plant (GDP) in Portsmouth, OH, from 1953 to 1955.  [Claimant #2] provided an employment history in which she states that her father worked as a pipefitter for Grinnell and Myer Brothers at the Portsmouth GDP in Piketon, OH.  She indicates that she does not know the dates of employment.  Neither claimant indicates that the employee wore a dosimetry badge.  The Portsmouth GDP in Piketon, OH, is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE Worker Advocacy Facility List.

 

An affidavit was provided by Allen D. Volney, a work associate, who reports that [Employee] was employed by the Grinnell Corp at the Portsmouth GDP as a pipefitter from 1953 to 1955 and that he worked with the employee at that location during that time period.

 

An itemized statement of earnings from the Social Security Administration (SSA) shows that the employee was paid wages by the Blaw-Knox Company and by the ITT Grinnell Corp. during the fourth quarter (October to December) of 1953, and by the ITT Grinnell Corp. beginning in the first quarter (January to March) of 1954 and ending in the third quarter (July to September) of 1955.  This is because the maximum taxable earnings were met for the year during that quarter.

 

The DOE was unable to confirm the reported employment.  However, they provided a personnel clearance master card documenting that [Employee] was granted a security clearance with Blaw-Knox (Eichleay Corp.) and (Peter Kiewit Sons Co.) on January 8, 1954.  No termination date is shown.

 

On April 8, 2004, the district office received a copy of an ante-nuptial agreement, signed by [Employee] and [Employee’s Spouse’s previous name] on June 9, 1968, which was recorded in the office of the County Clerk for Pike County, Kentucky, on June 10, 1986.  In pertinent part, that document states that “each party hereby releases and discharges completely and forever, the other from. . .benefits or privileges accruing to either party by virtue of said marriage relationship, or otherwise, and whether the same are conferred by statutory law or the commonlaw of Kentucky, or any other state or of the United States.  It is the understanding between the parties that this agreement, except as otherwise provided herein, forever and completely adjusts, settles, disposes of and completely terminates any and all rights, claims, privileges and benefits that each now has, or may have reason to believe each has against the other, arising out of said marriage relationship or otherwise, and whether the same are conferred by the laws of the Commonwealth of Kentucky, of any other state, or of the United States, and which are now, or which may hereafter be, in force or effect.”

 

In a letter dated April 12, 2004, the district office advised [Claimant #2] that a review of the rules and regulations of this program found them to be silent with regard to a “pre-nuptial agreement.”  The letter further stated that adult children may be eligible for compensation as survivors if there is no surviving spouse of the employee.

 

On May 6, 2004, the Cleveland district office issued a recommended decision concluding that [Employee] is a DOE contractor employee as defined by 42 U.S.C. § 7384l(11)(B)(ii) and a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with malignant lymphoma, which is a specified cancer under 42 U.S.C. § 7384l(17).  For those reasons the district office concluded that [Employee’s Spouse], as his surviving spouse, is entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  The district office also concluded that [Claimant #2] is not entitled to compensation as a surviving child, because the employee is survived by a spouse.  See 42 U.S.C. § 7384s(e)(1)(A).  The district office also stated that Grinnell Corp. is a known subcontractor to Peter Kiewit Son’s Co. at the Portsmouth facility in the 1950s.

 

On June 18, 2004, the Final Adjudication Branch (FAB) received a letter of objection from [Claimant #2][Claimant #2] stated that she believes that [Employee’s Spouse] gave up any rights to any benefits based on the ante-nuptial agreement and that the benefits granted to [Employee’s Spouse] by the May 6, 2004, recommended decision should be awarded to the surviving children.

 

On June 21, 2004, the FAB received a letter from the authorized representative of the three children/claimants objecting to the recommended decision of May 6, 2004, on behalf of each of them.  On June 22, 2004, the FAB advised the representative that [Claimant #4] and [Claimant #3] had not filed claims for benefits and that only claimants who had been issued a recommended decision may object to such a decision.  On July 2, 2004, the FAB received a letter from the authorized representative of [Claimant #3] and [Claimant #4] to the effect that they were claiming entitlement to benefits under the EEOICPA as surviving children of [Employee].  On July 6, 2004, the FAB received a copy of a death certificate which shows that [Employee’s first wife] died on March 13, 1985, and identifies [Employee] as her surviving spouse.  On July 23, 2004, the FAB issued a remand order which vacated the recommended decision and returned the case to the district office to adjudicate the new claims, to include any additional development which might be warranted, and to issue a new recommended decision to all claimants.

 

On August 16, 2004, [Claimant #3]  and [Claimant #4]  filed Forms EE-2 (Claim for Survivor Benefits under EEOICPA) claiming benefits as surviving children of [Employee].  Both claimants state that the employee had been diagnosed with leukemia, myeloma, and lymphoma.

 

On August 20, 2004, the Cleveland district office issued a recommended decision concluding that [Employee] is a DOE contractor employee as defined by 42 U.S.C. § 7384l(11)(B)(ii) and a member of the Special Exposure Cohort (SEC), as defined by 42 U.S.C. § 7384l(14), who was diagnosed with malignant lymphoma, which is a specified cancer under 42 U.S.C. § 7384l(17).  For those reasons the district office concluded that [Employee’s Spouse], as his surviving spouse, is entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C. § 7384s.  The district office also concluded that [Claimant #2], [Claimant #3], and [Claimant #4] are not entitled to compensation as surviving children, because the employee is survived by a spouse.  See 42 U.S.C. § 7384s(e)(1)(A).  The district office also finds that [Employee] was employed by Grinnell Corp. as a DOE subcontractor employee from September 1, 1954, to December 31, 1955.

 

On August 27, 2004, the FAB received written notification that [Employee’s Spouse] waives any and all rights to file objections to the recommended decision.  On September 17, 2004, the FAB received a letter from [Claimant #4] objecting to the award of benefits to [Employee’s Spouse].  On October 19, 2004, the FAB received a letter from the authorized representative of the three children/claimants based on a “valid ante-nuptial agreement” between [Employee’s Spouse] and [Employee] in which she expressly waived all rights to benefits which might arise from their marital relationship.  It is argued that, although [Employee’s Spouse] is a “surviving spouse” pursuant to 42 U.S.C. § 7384s(e)(3)(A), she waived any and all rights as the surviving spouse of [Employee] to receive benefits under the Act by entering into an ante-nuptial agreement by which she clearly waived the right to any federal benefits arising after the date of the agreement.  It is argued that, in the absence of a clear mandate from the statute to ignore a valid ante-nuptial agreement, there is no reason that the Department should not follow the current state of the law and honor the ante-nuptial agreement.  Finally, it is argued that, because [Employee’s Spouse] has waived any and all rights to the benefits provided under the Act, the children/claimants are entitled to benefits pursuant to 42 U.S.C. § 7384s(e)(1)(B).

 

Pursuant to the authority granted by 20 C.F.R. § 30.317, the recommended decision was vacated and the case was remanded to the district office on November 19, 2004, so that a determination could be made regarding the effect of the ante-nuptial agreement on the claimants’ entitlement to compensation under the Act.

 

On March 18, 2005, the Cleveland district office issued a recommended decision in which they note that the issue of the effect of the ante-nuptial agreement was referred to the Branch of Policies, Regulations, & Procedures for review, and was subsequently forwarded to the Solicitor of Labor (SOL) for expert guidance.  On January 4, 2005, the SOL opined that Congress intended, through 42 U.S.C. § 7385f(a), that persons with valid claims under the statute are not permitted to transfer or assign those claims.  SOL determined that [Employee’s Spouse] is entitled to any award payable under the EEOICPA even if she knowingly entered into an otherwise legally valid agreement in which she promised to forego that award.  Since it has been determined that the deceased employee is a covered employee with cancer, by operation of 42 U.S.C. §§ 7384s(e)(1)(A) and 7385f(a), [Employee’s Spouse] is entitled to receive the award payable in this claim.  In conclusion, SOL opined, “an agreement to waive benefits to which one is entitled to under the EEOICPA, or to otherwise assign, or transfer the right to such payments, is legally prohibited, and has no effect on the party to whom an award is paid under the statute.  The order of precedence established must be followed in this case and as a result, [Employee’s Spouse] is entitled to payment.”

 

Based on that opinion, the Cleveland district office found that [Employee’s Spouse’s] ante-nuptial agreement did not affect her entitlement to payment.  The district office concluded that [Employee] is a covered employee under 42 U.S.C. § 7384l(1)(B), as he is a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(A).  [Employee] is a member of the Special Exposure Cohort, as defined by 42 U.S.C. § 7384l(14)(A)(ii), and was diagnosed with malignant lymphoma cancer, which is a specified cancer per 42 U.S.C. § 7384l(17)(A).  The district office also concluded that as [Employee] is a covered employee and is now deceased, his eligible survivor is entitled to compensation of $150,000.00, per 42 U.S.C. § 7384s(a)(1).  Lastly, the district office concluded that [Employee’s Spouse]  is the surviving spouse of [Employee], per 42 U.S.C. § 7384s(e)(3)(A); and, as there is no evidence of a living minor child of [Employee], the exception provided by 42 U.S.C. § 7384s(e)(1)(F) does not apply and, pursuant to 42 U.S.C. § 7384s(e)(1)(A), [Employee’s Spouse] is thus entitled to the above mentioned compensation of $150,000.00, and that [Claimant #2], [Claimant #3] and [Claimant #4] are not entitled to compensation pursuant to 42 U.S.C. § 7384s(e)(1)(A).

 

On March 28, 2005, the Final Adjudication Branch received written notification that [Employee’s Spouse] waives any and all rights to file objections to the recommended decision.  On April 15 and May 17, 2005, the Final Adjudication Branch received [Claimant #2’s], [Claimant #3’s], and [Claimant #4’s] objections to the district office’s March 18, 2005, recommended decision denying their claims, and a request for an oral hearing to present their objections. The hearing was held on August 23, 2005, in Bowling Green, KY.

 

In accordance with the implementing regulations, a claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record.  20 C.F.R. § 30.314(e), and (f).  By letter dated September 9, 2005, the transcript was forwarded to [Claimant #2], [Claimant #3] and [Claimant #4].  By letter dated September 30, 2005, the transcript was forwarded to [Employee’s Spouse][Claimant #4] provided her comments on the transcript.  No other responses were received.

 

 

OBJECTIONS

 

The following objections were presented:

 

1.      The claimants disagreed with the SOL January 4, 2005, opinion, and argued that the SOL improperly relied upon judicial interpretations of statutory provisions in other federal programs when it was concluded that an ante-nuptial agreement cannot override EEOICPA’s statutory provision of survivor benefits to the spouse of a deceased covered employee.

 

2.      It was requested that the FAB issue a finding regarding the legality of the prenuptial agreement that [Employee] and [Employee’s Spouse] signed on June 9, 1986.  Copies of the decisions in Callahan v. Hutsell, Callahan & Buchino, P.S.C., Revised Profit Sharing Plan, et al., 813 F. Supp. 541 (W.D. Ky. 1992), vacated and remanded, 14 F.2d 600 (Table), 1993 WL 533557 (6th Cir. 1993), were submitted in support of the proposition that contractual rights in ante-nuptial agreements in Kentucky have been recognized by the Court of Appeals for the Sixth Circuit, and also as support for their contention that EEOICPA’s prohibition against transfers or assignments is for the protection of covered employees only and not their survivors.

 

3.      It was requested that the FAB change the “finding of fact” in the March 18, 2005, recommended decision that the Cleveland district office received the SOL legal opinion that [Employee’s Spouse’s] antenuptial agreement did not affect her entitlement to an award to a “conclusion of law.”

 

The first objection is in regard to whether a prenuptial agreement can effect a waiver of a claim for survivor benefits under EEOICPA.  A spouse’s right to survivor benefits under EEOICPA is an entitlement or interest that is personal to the spouse and independent of any belonging to a covered employee.  Section 7384s(e)(1)(A) of EEOICPA provides that if a covered Part B employee is deceased at the time of payment of compensation, “payment may be made only as follows:  (A) If the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to the surviving spouse.” The term “spouse” is defined in Part B as a “wife or husband of [the deceased covered Part B employee] who was married to that individual for at least one year immediately before the death of that individual. . . .”  42 U.S.C. § 7384s(e)(3)(A).  As a result, it is clear that at the time [Employee’s Spouse] signed the prenuptial agreement on June 9, 1986, she was not yet a “spouse” because she did not satisfy the above-noted definition for Part B of EEOICPA.  Therefore, she had no entitlement to or interest in survivor benefits at that time that she could have attempted to waive.

 

Whether or not [Employee’s Spouse] waived any rights under EEOICPA when she signed the prenuptial agreement, she is currently a “surviving spouse” as that term is defined in EEOICPA.  Section 7384s(e) provides that payment shall be made to children of a covered employee only “[i]f there is no surviving spouse.” Accordingly, even if [Employee’s Spouse] has waived her right to survivor benefits, the covered Part B employee’s children are precluded from receiving those benefits as long as [Employee’s Spouse] is alive.

 

In Duxbury v. Office of Personnel Management, 232 F.3d 913 (Table), 2000 WL 380085 (Fed. Cir. 2000), the court denied a claim of a deceased employee’s children from a prior marriage that they were entitled, as opposed to the deceased employee’s widow, to any benefits attributable to their father’s civil service retirement contributions based upon a prenuptial agreement signed by their father and his widow.  In upholding the administrative denial of their claim, the court noted that it is the “widow” or “widower” of a federal employee covered by the Civil Service Retirement System who is entitled to a survivor annuity under 5 U.S.C. § 8341(d), and that “widow” is statutorily defined as “the surviving wife of an employee” who was married to him for at least nine months immediately before his death.  Noting that the prenuptial agreement governed property distribution and did not speak to the validity of the marriage, the court concluded that “because the petitioners cannot establish that [the widow] is ineligible for a survivor annuity under federal law, the Board did not err in affirming OPM’s decision denying the [children’s] claims.”  Duxbury, 2000 WL 38005 at **3.

 

Even if a claimant could waive his or her entitlement to survivor benefits by signing a prenuptial agreement, such a waiver would be barred by 42 U.S.C. § 7385f(a), which states that “[n]o claim cognizable under [EEOICPA] shall be assignable or transferable.”  Interpreting the anti-alienation provision within § 7385f(a) to prohibit the waiver of any interest in survivor benefits is consistent with the interpretation of other anti-alienation provisions by both the government and federal courts.

 

With regard to the second issue, under Part B of EEIOCPA, survivor benefits are paid to a “surviving spouse,” defined as an individual who was married to the deceased covered Part B employee for at least 12 months prior to the employee’s death.  As in Duxbury, the prenuptial agreement signed by [Employee’s Spouse] would be relevant to Division of the Energy Employees Occupational Illness Compensation’s (DEEOIC) determination of her claim for survivor benefits only to the extent that it addresses the validity of [Employee’s Spouse’s] marriage to [Employee].  Since it does not, there is no reason for DEEOIC to consider the terms of the agreement, let alone make a finding on the legality of the agreement under Kentucky law, as requested by the claimants’ authorized representative.

 

With regard to the third issue, the FAB finds that the referenced sentence is most properly a conclusion of law rather than a finding of fact, and it is so stated below.

 

 

FINDINGS OF FACT

 

  1. [Claimant #2] filed a claim for survivor benefits on March 22, 2004.  [Employee’s Spouse] filed a claim for survivor benefits on March 22, 2004.  [Claimant #3] and [Claimant #4]  filed claims for survivor benefits on August 16, 2004.

 

  1. [Employee] worked at the Portsmouth GDP, a covered DOE facility, from December 3, 1953 to December 21, 1955.

 

  1. [Employee] worked for a number of work days aggregating at least 250 work days during the period of September 1954 to February 1, 1992.

 

  1. [Employee] was diagnosed with malignant lymphoma cancer, a specified cancer, on January 29, 1997.

 

  1. [Employee’s Spouse] is the surviving spouse of [Employee] and was married to him for at least one year immediately prior to his death.

 

  1. [Claimant #2], [Claimant #3] and [Claimant #4] are the surviving children of [Employee].

 

 

CONCLUSIONS OF LAW

 

A claimant who receives a recommended decision from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted, the FAB will review the written record, in the manner specified in 20 C.F.R. § 30.314, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, as well as the objections raised and the evidence submitted before, during, or after the hearing, and must conclude that no further investigation is warranted.

 

Under the EEOICPA, for [Employee] to be considered a “member of the Special Exposure Cohort,” he must have been a Department of Energy (DOE) employee, DOE contractor employee, or an atomic weapons employee who was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment worked in a job that was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body; or had exposures comparable to a job that is or was monitored through the use of dosimetry badges, as outlined in 42 U.S.C. § 7384l(14)(A).

 

The evidence of record establishes that [Employee] worked in covered employment at the Portsmouth GDP, in Piketon, Ohio from December 3, 1953 to December 21, 1955.  For SEC purposes, only employment from September 1954 to before February 1992 may be considered. His employment at the Portsmouth GDP from September 1, 1954 to December 21, 1955 meets the requirement of working more than an aggregate 250 days at a covered facility.  See 42 U.S.C. § 7384l(14)(A).  The record does not show whether [Employee] wore a dosimetry badge.  However, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has determined that employees who worked at the Portsmouth GDP between September 1954 and February 1, 1992, performed work that was comparable to a job that was monitored through the use of dosimetry badges.  See Federal (EEOICPA) Procedure Manual, Chapter 2-500 (June 2002).  On that basis, [Employee] meets the dosimetry badge requirement.  The Portsmouth GDP is recognized as a covered DOE facility from 1952 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status.  See DOE, Office of Worker Advocacy, Facility List.  The evidence of record also establishes that [Employee] was diagnosed with malignant lymphoma, a specified cancer under 42 U.S.C. § 7384l(17)(A).

 

Based on the discussion above, [Claimant #2], [Claimant #3] and [Claimant #4] have not presented objections or evidence showing that [Employee’s Spouse] waived her eligibility to survivor benefits by signing the June 9, 1986 pre-nuptial agreement.

 

I have reviewed the record on this claim and the recommended decision issued by the district office.  I find that the recommended decision is in accordance with the facts and the law in this case, and that [Employee’s Spouse], as the surviving spouse of the [Employee], is entitled to compensation in the amount of $150,000.00, pursuant to 42 U.S.C. § 7384s.  I also find that [Claimant #2], [Claimant #3] and [Claimant #4]  are not entitled to compensation pursuant to 42 U.S.C. § 7384s(e)(1)(A).

 

Cleveland, Ohio

 

 

 

 

_______________________________________

Tracy Smart

Hearing Representative

Final Adjudication Branch