By P.J. McDonnell
Under Part E of the EEOICPA, employees of Department of Energy (DOE) contractors and subcontractors, or their survivors, who develop an illness due to exposure to a toxic substance at a DOE facility. Unlike Part B, illnesses eligible for compensation and payment of medical expenses covered under Part E are not limited to cancer, chronic beryllium disease, and chronic silicosis. Conditions covered under Part E include respiratory diseases like COPD or occupational asthma, chronic renal failure, and toxic encephalopathy, just to name a few.
If an employee has passed away before being able to apply for benefits, survivors of the employee are potentially eligible to receive up to $175,000 in compensation under Part E. The first step in receiving survivor benefits is proving that the survivor is eligible for compensation. The primary survivor eligible is the spouse. A spouse is eligible for survivor compensation as long as he/she was married to the deceased employee for at least 1 year prior to the employee’s death. In order to prove spousal survivorship, the spouse must submit the employee’s death certificate and documentation showing the existence of a valid common law marriage between the employee and the spouse. The most common proof of a common law marriage is a marriage certificate, however other evidence may be used to show the existence of a marriage, including the employee’s death certificate, real estate documents, tax records, financial documents, wills, trusts, and other significant documents.
If there is no eligible spouse, then the employee’s children may be eligible. Natural children, step-children, and adopted children are all potentially eligible survivors given they fall into one of three categories at the time of the employee’s death:
The first of these three categories is the most straight forward; if the child was a minor at the time of the employee’s death, then he/she is an eligible survivor. To fall into the second category, the child must have been under 23 and attending some educational institution (4-year college, junior college, etc.) continuously. To be considered enrolled full time, a child must be a full-time student over a 12-month period with no more than 4 months of breaks from school. A student who is enrolled in certain programs like co-ops and internships for which the he/she is not enrolled in any courses for that term is still considered enrolled in an educational institution and would still be eligible under the second category. A child whose continuous enrollment is interrupted by a situation beyond their control (such as an incapacitating illness) may still be considered an eligible surviving child.
The final category applies to surviving children over the age of 18 who were not continuously enrolled in an educational institution. The child must have been physically or mentally incapable of self-support, regardless of marital status and the temporary or permanent nature of the incapacity. This physical or mental incapacity must have prevented the child from obtaining and retaining a job or prevented he/she from engaging in self-employment that could provide a sustainable living wage. Medical evidence showing the diagnosis of a physical or mental condition must be provided showing the child was incapable of self-support at the time of the employee’s death. Additional documents including social security disability records, tax returns showing the child was claimed as a dependent, state guardianship documents, and affidavits may be submitted along with the proper medical documents. A child is not considered incapable of self-support based on a lack of job skills, economic conditions, or incarceration.
Any child applying for compensation as an eligible survivor must submit the employee’s death certificate and documentation showing that there is no eligible spouse. This could be a divorce decree that shows the employee was not married at his/her time of death or a death certificate of the employee’s spouse. In certain situations, compensation may be split between an eligible spouse and a child who is not related to the eligible spouse. If one or more children meets the criteria of an eligible surviving child of the employee and is not a child of the spouse (natural, step, or adopted), then half of the compensation is paid to the spouse and the other half is divided equally between the eligible surviving children.
Once proper survivor eligibility is determined, claimants must submit medical evidence showing the employee suffered from an illness connected to his/her occupation. The evidence must establish that the employee’s occupational exposure to a toxic substance was at least as likely as not a significant factor is causing, contributing to, or aggravating the death of the employee. Under Part E, a toxic substance includes radiation, chemicals, solvents, acids, and metals. After this is shown, the eligible survivor is entitled to receive $125,000 in a lump sum payment. An additional $25,000 or $50,00 is available if the employee died between 10 and 19 years or more than 20 years before retirement age (65), respectively. In cases with multiple eligible survivors, the compensation is divided equally among the claimants.
Stephens & Stephens, is a top law firm that specializes in representing individuals who have been exposed to radiation under the EEOICPA. If you believe that you qualify for government compensation, please feel free to fill out our free claim evaluation form, or contact us directly.