Nicholas Malfitano May 24, 2016, 9:36am


PHILADELPHIA – On Friday, the U.S. Court of Appeals for the Third Circuit upheld a U.S. District Court for the Western District of Pennsylvania decision that declared the children of a deceased receptionist were not eligible for survivor death benefits.

On May 20, Third Circuit judges D. Brooks Smith, Thomas M. Hardiman and Richard L. Nygaard chose to affirm a trial court ruling in the case brought by Edward, Dennis, Thomas and Laurie Wuyscik (acting as the representatives and beneficiaries for the estate of Nancy Wuyscik) against the U.S. Department of Labor’s Division of Energy Employees Occupational Illness Claims (DEEOIC).

The Wuysciks brought claims against the DEEOIC under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA, or the Act), and the DEEOIC denied that Nancy Wuyscik was a “covered employee with cancer” – thus, the appellants were ineligible to receive benefits under the EEOICPA.

“In 2000, Congress passed the EEOICPA, 42 U.S.C. Sections 7384-7385s-16 (2000). This Act created a program to compensate individuals with illnesses – like cancer and beryllium poisoning – that are attributed to their exposure to radiation and other toxic substances while working for the federal Department of Energy. Under Part B of the Act, covered employees or their eligible survivors may receive compensation in a lump sum payment of $150,000.00 and medical benefits,” Nygaard said.

“In August of 2011, the appellants’ mother, Nancy Wuyscik, filed an individual claim of benefits under Part B of the EEOICPA. From June 15, 1956, until Feb. 28, 1959, Nancy worked as a secretary, receptionist, telephone operator, and administrative assistant for the Apollo Steel Company/Apollo Industries (Apollo), located in Apollo, Pennsylvania,” Nygaard said.

“Apollo was not a designated atomic weapons employer, beryllium vendor, or a Department of Energy facility, so Nancy’s work there was not covered under the Act. But, the Apollo facility was located across the street from a designated atomic weapons employer, Nuclear Materials and Equipment Corporation (NUMEC).”

Nygaard explained in the late 1950’s, NUMEC used the basement of the Apollo building for a laboratory, and Nancy did occasional office work for NUMEC. Sometime in the late 1950s, NUMEC used the basement of the Apollo facility for a laboratory. She was diagnosed with terminal lung cancer as well as three primary skin cancers decades later.

After engaging the application process, the FAB issued a final decision that same day approving Nancy’s claim based on her lung cancer, and awarding her $150,000 and payment of medical benefits.

“The claim was approved because of evidence that NUMEC operated a laboratory in the facility where Nancy was working, and that NUMEC was a designated atomic weapons employer,” Nygaard said.

For the payment to be processed, Nancy had to sign and return a payment information form, but the late stage of her illness prevented this and appellant Edward Wuyscik (Nancy’s son), completed the form and returned it. He also completed a “General Power of Attorney Form” and attached it to the payment document.

The OWCP received these forms on March 6, 2012. Later that day, an OWCP claims examiner telephoned Nancy’s daughter, appellant Laurie Wuyscik, and informed her that the power of attorney form was invalid. Nancy passed away later that evening.

Because Nancy passed away before she received her benefit payment, regulations mandated the OWCP to re-determine the correct disbursement of payment by considering any eligible survivors, who were advised to file survivor claims and did so.

The OWCP, in April of 2012, recommended the FAB approve the appellants’ survivorship claims based on the same findings it had made in Nancy’s prior claim. But this time, the FAB remanded the claims to the OWCP for further development, stating that there was no evidence that Nancy had directly worked for NUMEC.

Eventually, the OWCP determined “there was no evidence that Nancy was a direct employee of NUMEC and denied the appellants’ survivorship claims.” The Wuysciks objected and requested and received a hearing. On Oct. 25, 2013, the FAB issued a Notice of Final Decision which dismissed the appellants’ claims for benefits under Part B.

A Magistrate Judge and the District Court upheld the FAB’s denial.

“The agency’s determination that Nancy was not an employee of an atomic weapons employer was not arbitrary, capricious or an abuse of discretion and was in accordance with the law. The EEOICPA is very specific in defining which employers fall within its coverage. An employer cannot qualify as an atomic weapons employer unless it has been designated as such by the Secretary of Energy,” Nygaard stated.

“There is no claim by Nancy on this record that she was a NUMEC employee, nor is there any evidence here that Nancy was paid by NUMEC or that NUMEC controlled any of her work activities. Therefore, she could not have qualified as an atomic weapons employee, and the appellants, as a result, cannot now claim survivorship rights through her,” Nygaard added.

Nygaard further rejected the appellants’ desire to have the “joint employer” doctrine apply in clarifying Nancy worked for both Apollo and NUMEC.

“In any event, a ‘joint employer’ categorization is not available under the statute. Since Nancy could only qualify for benefits under the statute if she were employed by an atomic weapons employer, and given that Apollo was never designated as such, no path to recovery is available to the appellants,” Nygaard said.

Nygaard explained the Third Circuit thus had no basis to remand the matter to the District Court.

“The OWCP’s actions and determinations followed the law and cannot be considered arbitrary, capricious or an abuse of discretion. We will affirm the order of the District Court,” Nygaard said. “Although the circumstances of Nancy’s death are tragic, we will affirm.”

The appellants are represented by D. Aaron Rihn and Robert F. Daley of Peirce Law Offices, in Pittsburgh.

The appellee is represented by Paul D. Kovac of the U.S. Attorney’s Office, also in Pittsburgh.

U.S. Court of Appeals for the Third Circuit case 15-3277

U.S. District Court for the Western District of Pennsylvania case 2:14-cv-00373

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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