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

EMPLOYEE:

[Name Deleted]

CLAIMANT:

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

87969-2008

10066838-2008

DECISION DATE:

November 19, 2008

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

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

 

STATEMENT OF THE CASE

 

On June 22, 2007, [Claimant] filed a claim for benefits under EEOICPA as the surviving spouse of [Employee][Claimant] identified kidney cancer and a “lung condition” as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility.  On the claim form, [Claimant] indicated that the employee had worked at a location with a class of employees in the Special Exposure Cohort (SEC). 

 

[Claimant] submitted an Employment History (Form EE-3) stating that the employee was employed by the Department of the Army and/or the Atomic Energy Commission (AEC) at the Iowa Ordnance Plant (IOP) in Burlington, Iowa (also known as the Iowa Army Ammunition Plant (IAAP)) from 1936 to 1976.  [Claimant] indicated that the employee worked on Line 1 and on other lines and facilities on site as a Laborer in 1936, a Security Guard from 1936-1939, a Quality Control Supervisor from 1944-1952, and a Quality Control Supervisor from 1952-1976.  The portion of the IAAP considered a DOE facility includes the buildings and property/grounds of the IAAP identified as “Line 1.”  Line 1 of the IAAP encompasses a cluster of several buildings that were utilized for AEC activities.  On July 26, 2007, DOE indicated that the employee worked for the Department of Defense (DOD) at the IAAP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961.  DOE indicated that it could find no evidence that the employee worked for the AEC at the AEC part of the plant.

 

[Claimant] submitted a marriage certificate confirming that she married the employee on January 25, 1935.  [Claimant] also submitted the employee’s death certificate, signed by Dr. Sherman Williams, which indicated that the employee died on May 21, 1996 at the age of 84.  The death certificate listed the cause of death as congestive heart failure due to pneumonia, and listed [Claimant] as the employee’s surviving spouse.  [Claimant] also submitted medical information in support of her claim.  A July 2, 1992 pathology report by Dr. J.G. Lyday noted that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992. 

 

The evidence of record includes information from the U. S. Department of Labor’s Site Exposure Matrices (SEM) database.  The SEM database provides information regarding occupational categories, process operations, building and area locations, toxic substances, incidents, and the locations at the facility where the occupational categories performed their job duties, the locations of the toxic substances, and the locations of various incidents of exposure.  The SEM database includes the occupational category of security guard.  The SEM database identifies Buildings AX-1, and AX-2, both on Line 1, as locations where a security guard would work.  SEM identifies Line 1, Building 1-62 as a location where a fireman would work, and identifies Line 1 Building 1-70 and Building 1-99 as locations where a Foreman for Explosives Storage would work.  This was independently verified by the undersigned on October 20, 2008.  A needs assessment from the Burlington AEC Plant Former Worker Program also confirms that these labor categories were associated with Line 1.

 

The evidence of record also includes a Department of the Army document dated October 1, 1963, entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.”  The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost for “producing and supplying any utilities and other services furnished” for the AEC’s use.

 

On November 30, 2007, the Cleveland district office issued a decision recommending denial of [Claimant]’s claim under both Parts B and E of EEOICPA because the evidence did not show that the employee was a “DOE contractor employee” as defined at 42 U.S.C. § 7384l(11).    

 

OBJECTIONS

 

On January 7, 2008, FAB received [Claimant]’s objections to the November 30, 2007 recommended decision.  Along with her letter, [Claimant] submitted new factual evidence.  [Claimant]’s letter also explained that since her authorized representative had not been copied on the district office’s correspondence, the evidence had not been submitted earlier.  On June 14, 2008, [Claimant] submitted the following relevant evidence to FAB with her objection letter in support of her claim:  an April 19, 1974 letter from Lieutenant Colonel C. Frederick Kleis of the Department of the Army to the employee expressing appreciation for his service at the IAAP; an April 19, 1974 certificate of retirement, signed by Lieutenant Colonel Kleis, recognizing the employee’s retirement from the federal service; a June 1, 1942 certificate from the IOP that recognized the employee’s completion of training as a Plant Guard; a December 19, 1967 certificate issued to the employee (as an employee at the IAAP) by the AMC Ammunition School, Savanna Army Depot upon his completion of a Quality Assurance Course; a Department of the Army Certificate of Service presented to the employee on May 29, 1963 for 20 years of federal service; a copy of Day & Zimmerman, Inc., IOP, Retired Employees Reunion badge dated May 17, 1986; and a Form DA-2496, dated April 1, 1974, that provided the employee’s AMC career record maintained at the Tobyhanna Army Depot.  The form indicated that the employee was employed by the Department of Army at the IAAP in Burlington, Iowa beginning June 29, 1943.

 

In summary, [Claimant] stated the following objections:

 

Objection 1:  [Claimant] objected that the Findings of Fact numbered 4, 5, 6 and 7 in the November 30, 2007 recommended decision were incorrect.  Finding of Fact No. 4 stated that “DOE verified [Employee] worked at the DOD part of the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961.”  Finding of Fact No. 5 stated that “[t]he district office did not receive sufficient employment evidence to establish that the employee worked on Line 1 at the IOP during the SEC period.”  Finding of Fact No. 6 stated that “[t]he district office has not received evidence establishing entitlement to compensation on the basis of qualifying employment and a specified cancer for purposes of the SEC.”  Finding of Fact No. 7 stated that the district office advised [Claimant] of the deficiencies in her claim and provided her the opportunity to correct them.”

 

[Claimant] requested an oral hearing to express her objections to the recommended decision and to review the records of the employee’s work history.  A hearing on her objections to the recommended decision was held before a FAB Hearing Representative on March 11, 2008 in Burlington, Iowa, with [Claimant], [Claimant]’s son and authorized representative, another of [Claimant]’s sons, and her daughter-in-law in attendance.  At the hearing, [Claimant]’s son and authorized representative testified that the employee’s computation date for his employment at the IOP was 1943 but that he actually started working at the IOP in 1942 as a guard, and that the employee retired from the IOP in 1974.  [Claimant]’s son also testified that [Claimant] was employed at the hospital as head nurse, that [Claimant] rode to work with the employee, and that [Claimant] knew that there was a time that the employee worked on Line 1.  He stated that the documents indicate that the employee worked at the plant for 10,800 days and noted that the SEC requirement is 250 days.  He stated that the employee’s pay increase records, which he submitted after the hearing, prove the employee’s length of employment.  He explained that the DOE evidence indicating that the employee worked at the IOP from September 9, 1960 to September 20, 1960 and from June 8, 1961 to September 22, 1961 was erroneous and reflected his own employment at the plant.  He explained that the mix-up by DOE occurred due to the fact that he and the employee have the same name.  [Claimant]’s son testified that he obtained and reviewed the employee’s employment records at the plant from 1942 through 1974.  He submitted an email dated February 25, 2008, marked as Exhibit 1, from Marek Mikulski of the Burlington AEC Plant Former Workers Program, which confirms that DOE incorrectly verified the employee’s employment at the Plant, by providing the employment dates of the employee’s son, who also worked at the plant.  

 

[Claimant]’s son testified that the employee worked at the fire department at the plant, and thus had access to Line 1.  He testified that he lunched with the employee at Line 1.  He stated that [Claimant] drove the employee to work every day and dropped him off at the guard gate at Line 1.  He stated that the records submitted, including the employee’s job descriptions, have numerous references to the employee having access to all lines at the IOP.  [Claimant]’s son also read information from several affidavits into the record, noting that the actual affidavits would be submitted immediately after the hearing.  He identified a photograph, submitted with the objection letter, of the employee wearing a badge that stated “all areas.”

 

At the hearing, [Claimant] presented the following documents as evidence:  a Department of the Army job description for an “Ammunition Loading Inspector, Leader,” dated April 20, 1960; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated February 15, 1965; a Department of the Army job description for an “Ammunition Loading Inspector, Lead Foreman,” dated July 19, 1955; a Department of the Army Certificate of Training for “One Year Firefighter-Guard Training” given at the IOP dated May 29, 1950; a Department of Army Form 873, Certificate of Clearance dated May 29, 1957 from IOP; a Department of the Army Notification of Personnel Action dated October 30, 1950, which reflects the promotion of [Employee] from Guard (Crew Chief) to Guard (Captain); an affidavit by a friend of the employee who attested that the employee worked all over the IOP as a guard-quality control; an affidavit by a work associate of the employee who attested that he worked at the IOP on Line 1 as a guard and quality control from 1960 to April 1974, and that she and the employee had lunch and worked together on Line 1; an affidavit of a work associate of the employee who attested that she worked for the employee in the Quality Assurance Department on all lines; an affidavit by [Claimant]’s son and authorized representative, who identified himself as a work associate and son of the employee.  In this affidavit, [Claimant]’s son and authorized representative attested that the employee worked in Quality Assurance and as a Guard at the IAAP as a federal employee.  He stated that he knew this because he was employed to cut grass on Line 1 and that he had lunch with the employee there.  He stated that the employee had clearance to be on Line 1 because he was not required to be accompanied by a guard.  [Claimant] also submitted an affidavit by [Claimant]’s other son, who attested that his father worked at the AEC at IOP from December 1942 to April 1974 as a Guard and Quality Control supervisor; and her own affidavit, in which she attested that the employee worked at the IOP on Line 1.  [Claimant] also attested that the employee was a Guard and Quality Control Supervisor working throughout the plant with access to all Lines. [Claimant] further stated that she rode to work with the employee and often let him off at Line 1 while she continued on to her job at the hospital.

 

A copy of the hearing transcript was sent to [Claimant] on March 24, 2008, who provided additional comments on the hearing transcript.  On April 11, 2008, FAB received [Claimant]’s son and authorized representative’s letter expressing his disappointment in the hearing because [Claimant] was not provided an opportunity to discover evidence from the Department of Labor indicating that the employee did not work on Line 1 for at least 250 days.  [Claimant]’s son also provided a copy of Congressman Dave Loebsack’s March 19, 2008 inquiry to the Department of Labor regarding the status of [Claimant]’s claim.  The letter also referred to the FAB Hearing Representative’s March 25, 2008 call confirming that kidney cancer is a “specified cancer.”  He stated his concern that the exhibits submitted at the hearing were not reproduced in the hearing transcript, and emphasized that the exhibits were more probative than the hearing testimony.  He provided a summary of the content of the six affidavits and personnel records submitted at the hearing and expressed concern whether the documentation would be reviewed and considered.

 

Response:  The additional documents [Claimant] submitted with her objections and at the hearing establish that the employment dates provided for the employee by DOE were incorrect and, in fact, reflected the employment dates of the employee’s son, who also worked at the plant.  Based on the new evidence [Claimant] submitted, a new finding has been made below that the employee was employed by the Department of the Army at the IAAP in Burlington, Iowa from June 29, 1943 to April 1, 1974. 

 

The documents [Claimant] submitted with her objections include a copy of a June 1, 1942 certificate from the Iowa Ordnance Plant recognizing the employee’s completion of training as a Plant Guard.  At the hearing, [Claimant] submitted a June 20, 1959 Federal Government/Civil Service Experience and Qualification Statement (SG-55) for the employee, which indicated that he was employed at the IAAP from February 11, 1952 to at least June 20, 1959 as an ammunition loading inspector in the Inspection Division; from August 6, 1950 to February 10, 1952 as a Captain in the Guard Department; and from June 29, 1947 to May 27, 1949 as an Ammunition & Equipment Storage Foreman in the Transportation & Storage Division.  [Claimant] submitted, with her objection, a June 20, 1959 Government employment application with a handwritten resume, signed by the employee.  The application states he was employed at the IOP from June 29, 1947 to May 27, 1949 as an Ammo & Equipment Storage Foreman in the Transportation and Storage Division.  A May 27, 1948 Application for Federal Employment, signed by the employee, states he was employed at the IOP as a Munitions Handler Foreman beginning June 1947; a Material Receiver and Checker from January 1947 to June 1947; a Guard from May 1946 to January 1947; and a Guard from December 1942 to May 1944 (shell and bomb loading).  An October 30, 1950 Department of the Army Notification of Personnel Action reflects the promotion of the employee from Guard (Crew Chief) to Guard (Captain).

 

[Claimant] provided additional documentation, including EE-4 affidavits, work records for the employee, and testimony at the hearing indicating that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974 and that the employee worked on Line 1 for at least 250 days during March 1949 through 1974.  The evidence reflects that the employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.  All of the evidence [Claimant] submitted with her objections and at the hearing has been reviewed and considered by FAB.

 

Objection 2:  [Claimant] stated that the claim adjudication process was frustrating and difficult.  She expressed her dissatisfaction with the way some of the claims examiners handled her claim.

 

Response:  It is regrettable that [Claimant] experienced some difficulty during the processing of her claim.  The Division of Energy Employees Occupational Illness Compensation (DEEOIC) customer service policy affirms DEEOIC’s commitment to serving its customers with excellence.  It is DEEOIC’s responsibility to work with its customers to improve the practical value of the information, services, products, and distribution mechanisms it provides and the importance of interacting proactively with customers, identifying their needs, and integrating these needs into DEEOIC program planning and implementation.  The highest level of customer service is expected in all dealings with individuals conducting business with DEEOIC.  As representatives of DEEOIC, all staff members are expected to be courteous, professional, flexible, honest and helpful.

 

After considering the written record of the claim, [Claimant]’s letters of objection, along with the testimony and objections presented at the hearing, FAB hereby makes the following:

 

FINDINGS OF FACT

 

  1. [Claimant] filed a claim for survivor benefits under EEOICPA on June 12, 2007. 

 

  1. The employee was employed by the Department of the Army at the IOP from June 29, 1943 to April 1, 1974. The employee worked for at least 250 work days on Line 1 during the period March 1949 through 1974.

 

  1. The employee was diagnosed with renal cell adenocarcinoma on June 29, 1992.

 

  1. The employee died on May 21, 1996 as a consequence of congestive heart failure due to pneumonia.  [Claimant] is the surviving spouse of the employee.

 

  1. An October 1, 1963 permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IOP for a ten year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use.  The permit did not obligate the Army to provide any specific services to the AEC, and does not in itself constitute a contract for the provision of services between the Army and the AEC by which the AEC paid the U.S. Army to provide services on Line 1.

 

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

 

CONCLUSIONS OF LAW

 

The undersigned has carefully reviewed the testimony, the evidence of record, and the November 30, 2007 recommended decision issued by the Cleveland district office.  Based on [Claimant]’s objections, testimony at the hearing, and the evidence of record, [Claimant]’s survivor claim for benefits under Parts B and E for the employee’s kidney cancer and “lung condition” is denied.

 

Part B of EEOICPA provides benefits to eligible current or former employees of DOE, and certain of its vendors, contractors and subcontractors, and to survivors of such individuals.  To be eligible, an employee must have sustained cancer, chronic silicosis, beryllium sensitivity or chronic beryllium disease while in the performance of duty at a covered DOE facility, atomic weapons employer facility, or a beryllium vendor facility during a specified period of time.

 

With respect to claims for cancer arising out of work-related exposure to radiation under Part B, the SEC was established by Congress to allow the adjudication of certain claims without the completion of a radiation dose reconstruction.  See 42 C.F.R. § 83.5 (2007).  The Department of  Labor (DOL) can move directly to a decision on cases involving a “specified cancer” contracted by a member of the SEC because the statute provides a presumption that specified cancers contracted by a member were caused by the worker’s exposure to radiation at a covered facility.  A “specified cancer” is any cancer described in the list appearing at 20 C.F.R. § 30.5(ff) (2007).

 

On June 19, 2005, employees of DOE or DOE contractors or subcontractors employed at the IOP/IAAP (Line 1) during the period March 1949 through 1974 who were employed for a number of work days aggregating at least 250 work days either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees in the SEC were added to the SEC.  70 Fed. Reg. 37409 (June 29, 2005).

 

In order for an employee to be afforded coverage under EEOICPA, the employee must be a “covered employee.”  42 U.S.C. § 7384l(11)(B).  The evidence of record demonstrates that the employee was employed by the Department of the Army at the IAAP from June 29, 1943 to April 1, 1974, and that he worked for at least 250 work days on Line 1 during the period March 1949 through 1974.  He was diagnosed with kidney cancer on June 29, 1992, and kidney cancer is a specified cancer.  However, the evidence is insufficient to show that the Department of the Army was a DOE contractor or subcontractor.  Consequently, the employee does not qualify as a “covered employee with cancer,” under EEOICPA.  See 42 U.S.C. § 7384l(9)(A).

 

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility.  See 42 U.S.C. § 7385s(2); 20 C.F.R. § 30.5(p).

The term “Department of Energy contractor employee” means any of the following:

 

(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. 

 

42 U.S.C. § 7384l(11). 

 

On June 3, 2003, DEEOIC issued EEOICPA Bulletin No. 03-26, which provides guidance to its staff with respect to the adjudication of EEOICPA claims filed by current or former employees of state or federal government agencies seeking coverage as a "DOE contractor employee.”  The policy and procedures outlined in this Bulletin only apply to state and federal agencies that have/had a contract or an agreement with DOE.  The Bulletin states that a civilian employee of a state or federal government agency can be considered a "DOE contractor employee" if the government agency employing that individual is:  (1) found to have entered into a contract with DOE for the accomplishment of one or more services it was not statutorily obligated to perform, and (2) DOE compensated the agency for that activity.  Thus, a civilian employee of DOD who meets the criteria required to be considered a DOE contractor employee is not excluded from EEOICPA coverage solely because they were employed by DOD.

 

The evidence of record includes an October 1, 1963  Department of the Army document entitled “Permit to other Federal Government Department or Agency to Use Property on Iowa Army Ammunition Plant, Iowa.”  The permit indicates that the Army granted the AEC a revocable permit to use certain buildings and land within the IAAP for a ten-year period, subject to conditions, including that the AEC pay the Army’s cost in “producing and supplying any utilities and other services furnished” for the AEC’s use.  Because the condition did not obligate the Army to provide any specific services to the AEC, it is insufficient to establish that a contract for the provision of services between the Army and the AEC existed by which the AEC paid the U.S. Army to provide services on Line 1 that the Army was not otherwise statutorily obligated to perform.

 

Section 30.110(c) of the regulations provides that any claim that does not meet all of the criteria for at least one of the categories including a “covered employee” (as defined in § 30.5(p)) as set forth in the regulations must be denied.  See 20 C.F.R. §§ 30.5(p), 30.110(b) and (c). 

 

The evidence of record does not show that the employee was employed by a DOE contractor or subcontractor as required by 42 U.S.C. § 7384l(11).  Accordingly, [Claimant]’s claim under EEOICPA is denied.

 

Washington, D.C.

 

 

 

Susan von Struensee

Hearing Representative

Final Adjudication Branch