Wuyscik v. U.S. Dep't of Labor, Civil Action No. 14-373

Decision Date06 August 2015
Docket NumberCivil Action No. 14-373
CourtU.S. District Court — Western District of Pennsylvania

and LAURIE WUYSCIK, Individually and in their capacities as Representatives
and Beneficiaries of the Estate of NANCY WUYSCIK, Petitioners,

Civil Action No. 14-373


August 6, 2015

United States Magistrate Judge Cynthia Reed Eddy


Cynthia Reed Eddy, United States Magistrate Judge


Petitioners Edward Wuyscik, Dennis Wuyscik, Thomas Wuyscik, and Laurie Wuyscik seek review of the October 25, 2013 final decision issued by Respondent United States Department of Labor, Division of Energy Employees Occupational Illness Compensation ("DOL") denying their claims for survivors benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. ("EEOICPA" or "the Act"). They contend that DOL erred in issuing said final decision because their deceased mother, Nancy J. Wuyscik ("Mrs. Wuyscik"), meets the criteria to be deemed a covered employee within the meaning of the EEOICPA. They also assert that they are entitled to benefits because the DOL committed various procedural errors in handling the claims.

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As set forth below, Petitioners have failed to demonstrate that DOL's final decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, it is respectfully recommended that their Petition be denied, and that judgment be entered in favor of the DOL.


A. Background

The purpose of the EEOICPA "is to provide for timely, uniform, and adequate compensation of covered employees and, where applicable, survivors of such employees, suffering from [beryllium-related and radiation-related] illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors." 42 U.S.C. § 7384d(b); see also id., § 7384(a)(8). Eligibility under Part B of the EEOICPA depends upon whether the individual fits within several statutory definitions, many of which incorporate other statutorily defined terms. Relevant here, it must be established that Mrs. Wuyscik was a (1) "covered employee with cancer,"1 (2) who was an "atomic weapons

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employee,"2 (3) employed by an "atomic weapons employer,"3 (4) at an "atomic weapons employer facility."4 If the foregoing requirements are met, Mrs. Wuyscik's survivors - the Petitioners - are entitled to a lump-sum amount of $150,000. Id., § 7384s(a), (e)(1)(B).

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The Director of the Office of Worker's Compensation Programs ("OWCP") within the DOL and his or her designees primarily have the authority to administer, interpret, and enforce the provisions of the EEOICPA. 20 C.F.R § 30.1. To receive benefits under the Act, a covered employee, or her survivor(s) if she is deceased, must file a written form with the OWCP and submit written medical evidence of the covered illness. 20 C.F.R. §§ 30.100(a), 30.101(a), 30.101(d)(2). The OWCP district offices are initially tasked with issuing recommended decisions with respect to entitlement for claims filed under Part B and Part E of the EEOICPA, which are forwarded to the Final Adjudication Board ("FAB"). Id., § 30.300. Claimants may present objections to the FAB regarding the OWCP's recommended decision and may request to have a hearing before the FAB. Id., § 30.310.

At any time before the issuance of its final decision, the FAB may request that the claimant submit additional evidence or argument, or return the claim to the district office for further development and/or issuance of a newly recommended decision without issuing a final decision, whether or not requested to do so by the claimant. Id., § 30.317. After the FAB issues a final decision, the claimant may, within 30 days from the date of the decision, request the FAB to reconsider its decision, although the claimant is not entitled to a hearing on the reconsideration process. Id., § 30.319(a)-(c). If the FAB denies a claimant's request for reconsideration, the FAB decision that formed the basis for the request will be considered "final" upon the date the request is denied, id., § 30.319(c)(2), at which time the claimant is entitled to seek judicial review of the agency decision. Id., § 30.319(d).

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On August 14, 2011, Nancy J. Wuyscik ("Mrs. Wuyscik"), the deceased mother of the above-captioned Petitioners, filed an individual claim for employee benefits under Part B of the Act. (R. at 952-954).5 From June 15, 1956 until February 28, 1959, Mrs. Wuyscik worked in Apollo, Pennsylvania as a secretary, receptionist, telephone operator, and general administrative assistant for the Apollo Steel Company/Apollo Industries (hereafter "Apollo"). (R. at 952). Plaintiff's employment with Apollo is not covered under the Act because Apollo is not designated as an atomic weapons employer ("AWE"), a Department of Energy facility, or a beryllium vendor.

Apollo was located across the street from a designated AWE, Nuclear Materials and Equipment Corporation ("NUMEC"). Beginning in the late 1950's, NUMEC occupied and operated a lab in the basement of the Apollo building where Mrs. Wuyscik worked. Apollo was the parent/holding company of NUMEC, and the two companies shared a mail room at this office location and at least one common member on their respective Board of Directors. During her time working for Apollo, Mrs. Wuyscik "did typing and office work at times for NUMEC officials, when needed." (R. at 952). Decades later, Mrs. Wuyscik was diagnosed with lung cancer, as well as three primary skin cancers.6

On January 25, 2012, the OWCP issued a recommended decision to the FAB to accept Mrs. Wuyscik's claim. (R. at 852-855). On February 28, 2012, the FAB received a medical note

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from Mrs. Wuyscik's physician stating that she was considered terminal. (R. at 702). To expedite the claims processing, the FAB issued a final decision that same day approving Mrs. Wuyscik's claim based on her lung cancer, and awarded her compensation of $150,000 plus medical benefits. (R. at 567-570). The FAB approved the claim because it found that there was evidence establishing that Mrs. Wuyscik was paid by Apollo during the relevant time period while working at a facility that contained a laboratory operated by NUMEC, a designated AWE. A payment information form was mailed with the final decision to Mrs. Wuyscik, which needed to be completed in order to process the payment. (R. at 571).

When the form arrived, Mrs. Wuyscik was unresponsive and incapable of signing it. (R. at 695). The form was therefore completed and returned by Mrs. Wuyscik's son, Petitioner Edward F. Wuyscik, who also attached a "General Power of Attorney Form." (R. at 689-92). These forms were received by OWCP on March 6, 2012. Later that day, the claims examiner left a message with Mrs. Wuyscik's daughter, Petitioner Laurie Wuyscik, to notify her that the claims examiner had been advised that the power of attorney submitted by her brother Edward was flawed. (R. at 684).

The following day, the claims examiner spoke with Laurie and Edward and was informed that Mrs. Wuyscik died on March 6, 2012. (R. at 683). The regulations provide that if the covered employee dies before receiving her payment, then the OWCP must redetermine the correct disbursement of the payment by considering the eligible survivors related to the respective claim for benefits. 20 C.F.R. § 30.505(c). Therefore, the claims examiner advised them that all of their siblings would need to file survivor claims and submit birth certificates to prove eligibility and also advised them to forward their mother's death certificate. (Id.). Thereafter, in accordance with the claims examiner's directives, each of Mrs. Wuyscik's

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surviving children, the Petitioners in this action, filed survivor claims under Part B of the Act, and the OWCP administratively closed Mrs. Wuyscik's claim, as she passed away before receiving her payment. (R. at 647, 673-80).

On April 20, 2012, the OWCP again recommended that the FAB approve the survivor claims based on the same findings that it made in its January 25, 2012 recommended decision. (R. at 613-16). However, on July 25, 2012, the FAB remanded the claims to the OWCP for further development, finding that the case was not in posture for a final decision. (R. at 593-95). The FAB stated the following:

There is no evidence indicating that she worked for NUMEC or any subsequent owner or operator of the NUMEC Apollo facility. The fact that she worked in an office building where NUMEC also leased space, was present on property owned by NUMEC, or occasionally provided administrative or secretarial services for NUMEC employees, is not a sufficient basis for determining that she was an atomic weapons employee. Accordingly, I find that the district office erred in its determination that Nancy Wuyscik was an atomic weapons employee and member of the Special Exposure Cohort based on employment at NUMEC.


Petitioners were then given the opportunity to produce evidence to the OWCP that Mrs. Wuyscik was employed by NUMEC. In response, Petitioners submitted a hand-written statement from...

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