Docket Number: 20130111-12000242-2

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 20130111-12000242-2

DECISION DATE: June 13, 2013

 

NOTICE OF FINAL DECISION

FOLLOWING A HEARING

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under Parts B and E of 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 chronic beryllium disease (CBD) under Parts B and E, and for hearing loss, hypertension and chronic obstructive pulmonary disease (COPD)/emphysema under Part E, are hereby denied.

 

STATEMENT OF THE CASE

 

On January 30, 2012, the employee’s authorized representative filed a claim on behalf of her client under both Parts B and E of EEOICPA for the illnesses noted above. In support of that claim, the representative argued that the Department of Energy (DOE) and its predecessors had leased the Kansas City Plant[1] from the General Services Administration (GSA), and that as part of such lease, GSA maintenance workers (such as the employee) performed maintenance work on utilities located within the boundaries of the Kansas City Plant. Although the representative did not submit a copy of the alleged “lease agreement” to the district office, she did submit a copy of a Memorandum of Agreement (MOA) signed in July of 1993 by representatives of GSA, DOE and the Department of Defense for “environmental investigatory work at the Bannister Federal Complex.” The representative also provided the following: a GSA form completed on July 12, 1988 regarding the employee’s medical examination on that date; respirator use forms dated 1990-1994; and a June 14, 1993 health unit history form completed by the employee in which he stated that he began working for GSA on July 3, 1961 as an A/C Operator and Plumber/Pipefitter.

 

On February 2, 2012and March 2, 2012, a claims examiner sent the employee letters requesting that he submit a Form EE-3 and a copy of the “lease agreement” that his representative referred to in her argument. These letters also asked the employee to submit medical evidence in support of his alleged illnesses. In response, the employee submitted a completed Form EE-3 in which he indicated that he worked at the “Kansas City Plant/Bendix” for “GSA-PBS-R6” as a “pipe fitter/plumbing/ maintenance” from July 3, 1961 to December 30, 1994, and that he had “[f]requent assignments with security Personnel to Bendix steam pits.” The employee did not provide the requested copy of the “lease agreement” to the district office, but his representative submitted a March 16, 2012 statement signed by a GSA buildings manager supervisor who alleged that GSA maintenance employees were required to enter DOE space at the Bannister Federal Complex to perform work on mechanical systems and operations that were intertwined or shared between DOE and GSA.

 

The employee also submitted medical evidence consisting of health unit and employment screening evaluations conducted intermittently between June 13, 1988 and June 21, 1994. Most of these evaluations took the form of x-rays read by B-readers who found evidence of pleural changes consistent with asbestos exposure, but Dr. David F. Hazuka opined that the employee’s July 25, 1991 chest x-ray showed a few benign calcifications appearing in the employee’s lower right lung field, and Dr. Kenneth M. Jacob noted a few bilateral calcified granulomas after review of the employee’s June 21, 1994 chest x-ray. The employee also submitted an August 12, 1994 report indicated that the employee’s pulmonary function tests showed some abnormalities that were below the normal range but were mild and did not require follow-up medical attention.

 

On March 14, 2012 and on April 17, 2012, the claims examiner sent a request to Honeywell, the DOE contractor at the Kansas City Plant, for verification of the employee’s alleged work at that location as a GSA employee, and a document acquisition request. On May 17, 2012, Honeywell responded that it did not have any evidence regarding the employee’s alleged work.

 

At the same time that the representative filed the employee’s claim with the district office, she also faxed a copy of the 1993 MOA noted above, her argument in support of the claim and other documents to the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in Washington, D.C. After considering her argument, the Director wrote to the Denver district office on August 7, 2012 and noted that there was no evidence that GSA was a subcontractor of the DOE contractor at the Kansas City Plant. The district office then issued a recommended decision on August 23, 2012 to deny both aspects of the employee’s claim on the ground that there was insufficient evidence to establish that he had any covered employment at a DOE facility.

 

On August 30, 2012, FAB received an August 27, 2012 statement from the representative in which she objected to the recommended decision and requested an oral hearing. In light of this request, the national office of DEEOIC forwarded several documents regarding the Bannister Federal Complex to FAB, as follows:

 

· A May 7, 1963 “Space Permit and Service Agreement,” identified as Contract No. AT(23-3)-14, between the Atomic Energy Commission (AEC) and GSA that was made retroactive to July 1, 1962.

 

· A September 26, 1974 memorandum to the AEC setting out the chronology of the Kansas City Plant from 1943 through 1963.

 

· A February 17, 1977 letter in which GSA notified the Energy Research and Development Administration (ERDA) that it had transferred ownership of 122.05 acres at the Bannister Federal Complex to ERDA, effective September 30, 1976, and included a provision that the property would be transferred back to GSA whenever ERDA no longer had use for it.

 

· Modification No. M085 to Management and Operations (M&O) Contract No. EY-76-C-04-0613 between ERDA and Bendix, effective January 1, 1977.

 

· Modification No. M107 to M&O Contract No. DE-AC04-76DP00613 between DOE and Bendix, effective January 1, 1982.

 

· A Memorandum of Understanding (MOU) between DOE and GSA, No. DE-GM33-89AL53604, effective March 1, 1989.

 

After it received the above-noted evidence, FAB issued a September 21, 2012 order remanding the employee’s claim under Parts B and E to the district office. With respect to the employee’s Part B claim, FAB noted that the district office did not make any findings in the recommended decision on the employee’s allegation that he worked for GSA at the Bannister Federal Complex, and, if this was true, whether he was eligible for Part B benefits for his alleged CBD pursuant to 42 U.S.C. § 7384l(7)(A). As for the employee’s Part E claim, FAB also noted that the same recommended decision did not address whether he met the definition of a “Department of Energy contractor employee” under Part E. Accordingly, FAB returned the file to the district office for further development.

 

Upon return of the case file, the district office wrote to the employee on September 25, 2012 and asked him to submit a copy of the alleged lease his representative had referred to earlier. The employee did not respond to this request within the period of time allotted; however, the Denver district office obtained copies of additional documents that the employee’s representative had faxed to DEEOIC’s Director about the Kansas City Plant before she filed the employee’s claim. In a cover letter that she had faxed to the Director on January 12, 2012, the representative argued that the following documents proved that the War Assets Administration (WAA) and then GSA “owned the Kansas City property and leased it to various AEC contractors. . .(Westinghouse, Bendix, Allied Signal, Honeywell)”:

 

· A January 31, 1947 memorandum from the WAA to the Real Property Review Board regarding a “[p]roposal to lease for multiple tenancy plan together with proposed rental rates” for Plancor 1213 [i.e., the Bannister Federal Complex] in Kansas City, Missouri.

 

· A July 3, 1947 WAA internal memorandum concerning revision of rental rates at Plancor 1213.

 

· A July 2, 1952 letter wherein the Navy informed GSA that it could not release 32 acres of property included in the lease agreement between the Navy and Westinghouse to GSA, and indicated that part of the main plant was “turned over to Bendix” for use on an AEC project.

 

The district office also wrote to the employee on December 5, 2012 and requested that he submit additional medical evidence in support of his claim for CBD under Part B of EEOICPA. The district office did not receive any response to that letter from the employee. Thus, on January 11, 2013, the district office issued a recommended decision to deny the employee’s claim for CBD under Part B on the ground that the evidence of record did not establish that he developed that condition, and to deny his claim for CBD, hypertension, hearing loss and COPD/emphysema under Part E on the ground that he was not a “covered DOE contractor employee.”

 

On January 16, 2013, the employee’s representative objected to the recommended decision and requested an oral hearing. She also asked FAB to issue a subpoena for “correspondence” she believed had occurred in connection with the employee’s claim. In a letter dated January 28, 2013, FAB denied the representative’s subpoena request in connection with the employee’s Part E claim, and informed her of the criteria she would have to meet before it could consider issuing a subpoena in connection with her client’s Part B claim. Since the representative did not address either of those requirements in her January 16, 2013 request, FAB provided her 30 days from the date of the letter to submit a response, but no response was received. The undersigned hearing representative held the requested hearing in Kansas City, Missouri on March 28, 2013.

 

OBJECTIONS

 

At the hearing, the employee and other witnesses provided oral testimony in support of the claim under both Parts B and E. The representative also provided a number of arguments, as described below.

 

First, the representative argued that the employee had met his burden to establish a diagnosis of CBD under Part B, using the pre-1993 statutory criteria. However, the medical evidence in the file does not satisfy at least three out of those five criteria, because while it is arguable that the employee may have submitted evidence of characteristic chest radiographic abnormalities and either a restrictive or obstructive lung physiology testing (or diffusing lung capacity) defect, the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity. Therefore, he had not met his burden to proof to establish that he has CBD under Part B of EEOICPA.

 

Second, the representative argued that the 1993 MOA discussed above is a contract for services by which GSA agreed to clean up hazardous substances at the Kansas City Plant in exchange for compensation from DOE, and therefore GSA is a subcontractor at the Kansas City Plant and her client is a subcontractor employee eligible for Part E benefits. However, this is not a correct interpretation of this document. While the 1993 MOA was an agreement between GSA, DOE and the Department of Defense, it only concerned the environmental investigatory work these three agencies undertook at the Bannister Federal Complex pursuant to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act. Also, while the MOA provided that each party could seek reimbursement from the others for investigatory and cleanup costs, the 1993 MOA is not a contract in which GSA agreed to perform services it was not statutorily obligated to perform in exchange for compensation from DOE. Therefore, this document does not establish the employee’s entitlement to any Part E benefits.

 

Thirdly, the representative argued that her timely request for the issuance of a subpoena related to the employee’s Part E claim was wrongly denied on January 28, 2013. However, DEEOIC’s authority to issue subpoenas in connection with claims filed under EEOICPA is limited by the express terms of 42 U.S.C. § 7384w, which strictly limits that authority to Part B claims. Since this objection concerns a request for a subpoena in connection with a Part E claim, there is no basis for this objection.

 

Fourth, the representative suggested that the Policy Branch within the national office of DEEOIC somehow lacked the authority to provide guidance regarding the employee’s alleged entitlement to benefits under Part E of EEOICPA to the Denver district office of DEEOIC. However, there is no apparent legal or factual basis for this suggestion, and more importantly, the Policy Branch was providing guidance to the district office on a question of entitlement, not deciding to either accept or deny the employee’s Part E claim. Consistent with 20 C.F.R. § 30.300 (2012), all final agency decisions issued on claims of entitlement under EEOICPA are issued by FAB, not the Policy Branch of DEEOIC.

 

And finally, the representative’s main argument in support of the employee’s Part E claim was that there was a lease agreement showing that the WAA was the “landlord” for the Kansas City Plant (this location was part of the larger location called “Plancor 1213” in WAA documents) beginning in the 1940s, and that as the landlord, the WAA (and then GSA) had a duty to perform certain services for the DOE contractors at the Kansas City Plant for which the WAA/GSA was paid under the terms of this alleged lease agreement.

 

In order to address these final contentions, it is first necessary to set out some of the pertinent history of the Bannister Federal Complex, of which the Kansas City Plant is a part, as established by the documents in the case file. Those documents indicate that in 1942, a large manufacturing building was built at the site of the present-day Bannister Federal Complex for the Department of the Navy, and that Pratt & Whitney assembled engines for Navy fighter planes in that building from 1943 to 1945. They also indicate that the Defense Plant Corporation (a wartime subsidiary of the Reconstruction Finance Corporation, which was then an independent agency of the U.S. government) owned the property from at least 1943 through 1947. On December 31, 1947, the Navy acquired the land by a Quitclaim Deed from the Reconstruction Finance Corporation, acting through the War Assets Administrator, and immediately leased the “old Pratt & Whitney plant,” i.e., the large manufacturing building in question, to the Westinghouse Electric Company, who continued to build Navy jet engines at the plant from 1948 through 1961.

 

The evidence in the file establishes that during the period of its lease, Westinghouse subleased portions of the “old Pratt & Whitney plant” to various government agencies and private entities. One of those subleases was executed in 1948, when Westinghouse sublet the warehouse portion of the “old Pratt & Whitney plant” to the Bendix Corporation, with the AEC’s approval, after the AEC had entered into Contract No. AT(29-1)-613 with Bendix on November 5, 1948 “for the performance by the Contractor of certain work involving management and operation of Government-owned facilities.” This event marks the historical beginning of the worksite known as the Kansas City Plant. Bendix actually began its work for the AEC at this subleased location in 1949 and continued working there even after the Navy terminated its lease with Westinghouse on June 30, 1961; shortly thereafter, the Navy transferred ownership of all 300 acres comprising the Bannister Federal Complex to GSA. The Westinghouse-to-Bendix sublease also presumably ended in 1961, although there is no documentation available on this point.

 

Based on the above, the representative’s assertion that the AEC began leasing space for the Kansas City Plant at the Bannister Federal Complex from the WAA in the 1940s is factually incorrect. The January 31, 1947 and July 3, 1947 memoranda discussed earlier are not evidence of a lease agreement between the WAA and either the AEC or Bendix, because they were both dated more than one year before Bendix contracted with the AEC to perform work for it at the Kansas City Plant in November of 1948. Instead, the evidence shows that Bendix subleased a portion of the complex from Westinghouse (not GSA) from 1948 through 1961.

 

After that sublease ended, both GSA and the AEC entered into a “Space Permit and Service Agreement,” effective July 1, 1962, through which GSA granted the AEC and its contractors a permit for “possession and use” of the Kansas City Plant. In return, the AEC agreed to pay GSA an “unfunded users charge.” Under this Space Permit and Service Agreement, the AEC was responsible for its own day-to-day and long-term maintenance of the interior of the buildings in its area, its adjacent areas and border fences, and all installed utilities and/or mechanical systems within its area. GSA was denied general access to the Kansas City Plant, and was granted access only upon approval by the AEC for the purpose of making periodic inspections and for any other reasonable and legitimate purposes, and subject to clearance in accordance with the AEC’s security procedures. The terms of the Space Permit and Service Agreement obligated the AEC to supply certain utility services to the entire Bannister Federal Complex for GSA, and to operate and maintain (excluding long-term maintenance) utility systems within the Service Area.[2] In return, GSA agreed to pay the AEC for the cost of utility services that the contractor provided to the Service Area. GSA was to provide long-term maintenance for its own area and the Service Area, and was specifically excluded from providing such services in the designated AEC areas.

 

On its face, the Space Permit and Service Agreement obviously has many characteristics of a real estate lease. It is contractual in nature, since it granted the AEC long-term authority to use the Kansas City Plant in return for a “users charge,” and it also gave the AEC exclusive control and possession of the Kansas City Plant against all others, including the owner, GSA. However, even assuming that this is the “lease agreement” referred to by the employee’s representative, a close reading of the document does not support the representative’s allegations regarding the terms of the “lease agreement.” Specifically, there is nothing within the four corners of the Space Permit and Service Agreement that obligated the GSA to provide any services to the AEC at the Kansas City Plant in return for any payment or compensation, as the representative alleges.

 

Returning to the history of the Kansas City Plant, the file contains a February 17, 1977 letter in which GSA indicated it had transferred ownership of “122.05 acres of land. . .with improvements thereon” at the Bannister Federal Complex to ERDA, effective September 30, 1976. Clearly, from this point in time forward, any question of a “lease agreement” regarding the Kansas City Plant between GSA and another entity is foreclosed. Under the 1989 MOU in the case file, the GSA agreed to pay DOE for the utilities it provided at an agreed upon rate, and the two parties agreed to share responsibility and reimburse each other for the cost of maintaining the shared utility service distribution systems, flood control functions and joint use areas at the Bannister Federal Complex. The requirement that DOE share the cost in maintaining areas that it shared with GSA, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), since it did not obligate the GSA to provide any specific services for DOE or its contractors in exchange for compensation.

 

After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. The employee filed a Form EE-1 on January 30, 2012, claiming benefits for CBD under Parts B and E, and for hypertension, hearing loss and COPD/emphysema under Part E of EEOICPA.

 

2. The employee is a federal worker employed by GSA at the Bannister Federal Complex as an A/C Operator and Plumber/Pipefitter.

 

3. The employee’s representative did not respond to FAB’s January 28, 2013 request that she submit a response satisfying the criteria for issuing a subpoena in connection with her client’s Part B claim.

 

4. The medical evidence is not sufficient to establish a statutory diagnosis of CBD under Part B using either the pre-1993 or post-1993 statutory criteria.

 

5. There is no evidence to show that either GSA or its predecessors entered into a contract with Honeywell or its predecessors in which it agreed to perform any specific services for the DOE contractor at the Kansas City Plant in exchange for compensation.

 

Based on the above-noted findings of fact, FAB also hereby makes the following:

 

CONCLUSIONS OF LAW

 

The benefits available under Parts B and E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute. Pursuant to 20 C.F.R. § 30.111(a), the claimant has the burden of providing all documentation necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion,” except as provided in the regulations or the statute, required for eligibility. That same section also notes that “Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved it true.”

 

With respect to the employee’s claim under Part B, a “covered beryllium employee” is defined in § 7384l(7)(A) of EEOICPA as a federal employee “who may have been exposed to beryllium at a Department of Energy facility.” Because the employee here is presumed to have been exposed to beryllium at the Kansas City Plant, a DOE facility, he meets the test of a covered beryllium employee. Despite this, the medical evidence of record fails to meet three of the five criteria for diagnosing CBD prior to January 1, 1993 as set out at § 7384l(13)(B), because the employee did not submit any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory disorder, or any immunologic tests showing beryllium sensitivity. Also, the employee did not submit any evidence of an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells, as is required to establish a diagnosis of CBD on or after January 1, 1993 pursuant to § 7384l(13)(A). Therefore, he has not met his burden to proof to establish that he has the alleged illness of CBD under Part B of EEOICPA.

 

As for the representative’s timely request for the issuance of a subpoena in connection with the March 28, 2013 hearing in this matter, the record establishes that the representative was properly informed of the criteria in 20 C.F.R. § 30.301(b) for issuing a subpoena relating to her client’s Part B claim, and that she failed to respond within the period of time allotted. In addition, and as noted above, DEEOIC’s authority to issue subpoenas is strictly limited by the terms of 42 U.S.C. § 7384w to claims under Part B. Therefore, the January 28, 2013 letter that preliminarily denied the representative’s request for a subpoena under Part E was correct, and the record also shows that she did not respond to the January 28, 2013 request that she fulfill the regulatory criteria for issuing a subpoena under Part B.

 

And with regard to his Part E claim, the employee’s representative alleged that the employee qualifies as a DOE contractor employee because he performed maintenance work on the grounds of the Kansas City Plant pursuant to contracts between GSA and DOE (and their predecessors), for which GSA and its predecessors were paid. However, FAB concludes otherwise. As set out at length above, there is no evidence of a contract between GSA and DOE (or their predecessors) for GSA to provide services for DOE or its contractor at the Kansas City Plant in return for compensation, as alleged. Neither the 1962 Space Permit and Service Agreement nor the 1989 MOU obligated GSA to provide any specific services at the Kansas City Plant in exchange for compensation. The mere requirement that DOE share the cost of maintaining areas that it shared with GSA at the Bannister Federal Complex, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), because it did not obligate the GSA to provide any specific services to DOE or its contractors in exchange for compensation. Moreover, the agencies’ environmental investigation work described in the 1993 MOA was due to their respective statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and Liability Act and not pursuant to a contract between the agencies. See Chapter 2-500.16 (January 2010), Federal (EEOICPA) Procedure Manual. Thus, because the evidence in the case file does not prove the existence of the alleged contract, the employee has failed to meet his burden of proof to establish that he is a DOE contractor employee under Part E of EEOICPA. Under these circumstances, he is not entitled to any Part E benefits.

 

Accordingly, FAB hereby denies the employee’s claim under both Parts B and E of EEOICPA, and confirms the January 28, 2013 preliminary denial of his representative’s subpoena request.

 

Denver, CO

 

 

 

William Elsenbrock

Final Adjudication Branch

Hearing Representative