United States Office of Personnel Management
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Date: March 19, 2001
File Number: [OPM#] Matter of: [Claimants] OPM Contact: Melissa Drummond This is a group claim from current employees of the [agency]. The employees, who serve as tree markers, have filed a claim for hazard pay based on their use of paint, which they believe contains "toxic chemicals". They also wish to be paid retroactively for the entire period that they used this paint. The agency denied the group's claim on the basis that the situation giving rise to the request is not covered under Appendix A in 5 CFR Part 550. We concur with the agency's decision. For the reasons stated below, the claim is denied. Both the claimants and the agency provided a substantial amount of documentation concerning the tree-marking work and the materials that are used to perform the duties of the position, including Hazard Health Evaluation (HHE) Reports conducted by the National Institute for Occupational Safety and Health (NIOSH) and a agency video about the use of safety when marking trees. Based on the claimant's duty station and the claim period, we reference the first NIOSH report, # HETA 93-1035-2686, issued in April 1998, which states the following:
The report synopsis states the following:
A later NIOSH report, # HETA 98-0111-2731, stated these findings:
Although the following NIOSH report, # HETA 2000-0108-2818, was completed after the claim was filed, its findings are relevant to documenting the agency's regard for NIOSH compliance and safety:
Section 5545 of title 5, United States Code, provides for hazard pay differentials. OPM regulations at 5 CFR 550.904 authorize the employing agency to determine whether payment of a hazard pay differential is warranted. However, section 550.904 limits payment of hazard pay differentials to the situations described in Appendix A in 5 CFR Part 550. See William A. Lewis, B-216575, March 26, 1985; Joseph C. Schrage, B-181843, November 19, 1974. The claimants believe that their situation matches the description of "toxic chemical materials when there is a possibility of leakage or spillage" under the "Exposure to Hazardous Agents" heading within Appendix A. However, the determination of whether a particular work situation warrants a hazard pay differential is vested primarily in the employing agency whose officials are in a better position to investigate and resolve such matters. Nicholas P. Davis, B-246364, April 14, 1992; Joseph C. Schrage, supra. An agency determination concerning an employee's entitlement to a hazard pay differential will not be overturned unless there is clear and convincing evidence that the decision is arbitrary and capricious. Id. Since the two latest NIOSH reports find no hazard to the claimants, we look to the April 1998 NIOSH report. The report states that "the combined effect of mixed solvent exposure may be responsible for some of the acute symptoms experienced by employees when exposed to tree-marking paints" and that "health effects from most mixture exposures, including multiple solvent exposures, are not yet well understood." Unfortunately, this is not clear and convincing evidence that the claimants have been exposed to above legal limits of toxic chemicals, as defined by NIOSH and the Occupational Safety and Health Administration. In addition, 5 CFR 550.906 outlines conditions where the payment of hazard pay differential would be discontinued, including when:
This paragraph contemplates that, if these safety precautions exist, then the payment of hazard pay differential is not allowable. Based on the submitted information, including the agency's safety video and the NIOSH reports, the element of hazard for this work is at less than a significant level of risk. OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, March 8, 1982. Therefore, we must accept the agency's position that the NIOSH health hazard evaluations do not support the claimant's position that occupational health limits are above established legal limits and that tree-marking paint meets the criteria cited in Appendix A. The claim for hazard pay is denied. This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court. |
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