Re: Bethlehem Steel Corporation Pension Plan, Case # 196603 

The Appeals Board has reviewed your appeal of PBGC's March 26, 2004 determination 

that you are not entitled to a Permanent lncapacity (disability) pension under the Bethlehem Plan. 

For the reasons discussed below, the Board changed PBGC's determination by finding that you 

are entitled to Permanent Incapacity Retirement, with payments effective May 1,2003. PBGC's 

Insurance Operations Department, the organization responsible for calculating and paying benefits, 

will send you a new determination of your benefit amount, with a new 45-day appeal right. 

PBGCs Determination and Your Av~eaJ 

PBGC's letter explained that, to qualify for a permanent incapacity pension, a participant 

had to have met the Plan's requiremenrs for the pension on or before December 18,2002, the date 

the Plan terminated. PBGC noted that you continued to be employed as a member of the 

Bargainingunit until April, 2003, although your Social Security disabilityawarddate is August5, 

2002. PBGC determined that you were not permanently disabled as defmed by the Plan before 

the Plan's termination date and, therefore, are not eligible for a permanent incapacity pension. 

PBGC's letter also noted that you are entitled to a regular retirement benefit under the Plan. 

After receiving a filing extension from the Appeals Board and a separate response from 

PBGC's Disclosure Officer to your Freedom of Information Act request, you filed a timely appeal 

on June 4, 2004. Your appeal noted that your disability pension was denied because, although 

you became legally blind in August, 2002, you worked until February, 2003. You explained that 

(1) you have diffuse retinal degeneration in both eyes, (2) you were working under the Americans 

With Disabilities Act from August of 2000 until February 7, 2003, and (3) you began receiving 

Social Insurance Plan (SIP) payments from Bethlehem in March, 2003. 
When the Bethlehem Plan terminated, effective December 18, 2002, it did not have 

sufficient assets to provide all benefits PBGC guarantees under Title N of the Employee 

Retirement Income Security Act (ERISA). The terms of the PIan, the provisions of ERISA, and 

PBGC regulations and policies determine your entitlement to a guaranteed benefit. PBGC's 

regulations require that, to be entitled to a guaranteed benefit, a participant must satisfy the 

conditions of the plan necessary to establish the right to receive the benefit on or before the earlier 

of the date the participant's employment ended or the date the plan terminated (see 29 Code of 

Federal Regulations (CFR) §§4@22.3, .4(a)(3)). In your case, the Plan's termination date, 

December 18, 2002, is the earlier date. 

Under section 2.5 of the 1999 Bethlehem Plan for the Steel Division (Plan Number 244), 

there are two conditions that a participant must meet to be eligible for the Plan's Permanent 

Incapacity retirement: (1) the participant must have at l&t 15 years of continuous service and (2) 

the participant must be "permanently incapacitated." Plan section 2.5 provides that a participant 

is considered permanently incapacitated only if - 

(a) he has been totally disabled by bodily injury or disease so as to 

be prevented thereby from engaging in any employment of the type 

normally performed in his employee category; and 

(b) such total disability shall have continued for a period of [five] 

consecutive months and, in the opinion of a qualified physician, will 

be permanent and continuous during the remainder of the 

Participant's life. 

Thus, to be eligible for the Plan's permanent incapacity benefit, your disability must be both total 

and of such severity that itprevented you from "engaging inany employment of the type normally 

performed in [your] employee categoryn on or before December 18,2002. 

According to the Nes PBGC's auditors obtained from the prior Plan Administrator, you 

were an active employee with more than 15 years of continuous service on December 18,2002. 

The fdes show your last day worked aS March 7, 2003, although you said in your appeal ibat it 

was February 7,2003. The files also include a copy of a November 3,2003 Notice of Award 

from the Social Security Administration, which shows that you became disabled under their rules 

on August 5,2002. 

To support your appeal, you submitted a copy of a Memorandum signed August 21,2000 

by both a Company and a Union officiaI that documents the accommodations made to your work 

assignment under the Americans With Disabilities Act. According to the Memorandum, you 

suffered from a medical condition that resulted in the deterioration of your vision. This condition 

restricted you from assignment to your incumbent position as a processor in the New Cold Mill. 
The Company and the Union agreed to transfer you to a janiwrialfiousekeeping assignment in the 

New Cold Mill for the remainder of your employment. They further agreed to schedule you 

during daylight hours due to your medical condition. 

The Appeals Board found that the August 21, 2000 Memorandum described above, 

together with the Social Security Administration's determination that you were disabled under 

their rules as of August 5,2002, show that you could not have performed the duties of the type 

normally performed in your employee category on December 18, 2002. As a result, the Board 

found that you met the requirements for permanent incapacity under Plan section 2.5 and are, 

therefore, entitled to a permanent incapacity pension. 

Benefit Start Dag 

You also included with your appeal a wpy of an April 28,2003 letter from the Manager, 

Workers' Compensation and Disability Management, addressed to current and former Bethlehem 

employees. The letter said that Company records indicated that you were then receiving Long 

Term Disability or Sickness and Accident benefits pursuant to one of Bethlehem's [non-pension] 

disability programs. Please note that Sickness and Accident benefics are paid under the SIP 

program you mentioned in your appeal. PBGC's files show that Bethlehem ended these payments 

in April, 2003. Because a participant cannot receive both a permanent incapacity pension from 

the Bethlehem Plan and a SIP benefit at the same time, we found that your permanent incapacity 

pension is payable beginning May 1, 2003. 

Decision 

Having applied the law, the provisions of the Plan and PBGC policy to the facts in this 

case, the Appeals Board found that you are entitled to a Permanent Incapacity Retirement with 

payments beginning May 1, 2003. We will forward a copy of this letter to PBGC's Insurance 

Operations Department, who will send you a new determination of your benefit amount, with a 

riew 45-day appeal right. They will also calculate the backpayments PBGC owes you and pay that 

amount in a single lump sum with interest. 

Meanwhile, if you have questions, please call PBGC's Customer Contact Center at 1-800- 

400-7242. 

Sincerely, 

Linda M. Mizzi 

Member, Appeals Board 

BEST COPY AVAILABLE