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Dianne HarperDianne Harper
01:02 17 Feb 24
Robert and I are very pleased with Mr. Hugh Stephens and all that he has done for us. From the first moment we spoke, we sensed that though Mr. Stephens exhibits sharp business acumen, he cares deeply about his clients and he has a huge heart.
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17:38 07 Feb 24
I tried to get others to help me with this claim, and it wasn"t until I hired Mr. Stephens that things started happening. I would recommend any one to get in touch with him . I would go to him again, if i ever needed to.
Judy LeonardJudy Leonard
22:26 06 Feb 24
I very much appreciate the successful litigation concerning my husband's Hanford work related illness. Stephens & Stephens LLP were thorough, caring, considerate, and fair during this difficult time.
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18:23 03 Feb 24
Mr. Stephens was able to simplify an otherwise complicated lengthy process (DEEOIC) to file an initial claim as well as a claim for impairment benefits.
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18:08 03 Feb 24
Frankie KnucFrankie Knuc
19:24 08 Jan 24
I had other attorneys hired in Cortez, Colorado and Grand Jct., Colorado to assist me with receiving my uranium claim, but they were not successful. I was advised by an employee of CNS of Stephens & Stephens, LLP good work. I contacted them & they took my case It was settled very quickly. I have been very pleased with this group & would advise others of their prompt service. I would recommend them to others. Respectfully, Frankie Knuckles
Rebecca ConsolRebecca Consol
19:57 22 Dec 23
My family used Stephen’s and Stephen’s for a settlement case. We were extremely pleased with all they did. They were very professional, easy to get a hold of, and invaluable when it came to answering questions and handling complicated Department of Labor issues and forms. They also did everything in a very timely manner. I have already recommended them to other people.
Thomas CliffordThomas Clifford
15:29 21 Dec 23
I have been represented by Hugh Stevens for several years now, He and his staff has made everything so easy for me. I had lung cancer from working in the uranium processing industry, they have opened so many doors for me and made dealing with DOL so much easier. They always answer my questions in a very timely manner. I have referred several other people to him and he has been able to get them through this process also. There are benefits that I was not aware of that he has brought to my attention and been able to lead me through the process of obtaining them. I would most highly recommend him to lead anyone through this process.
Lonnie killingHawkLonnie killingHawk
02:35 14 Dec 23
When I first contacted Stephens & Stephens I was at the end of my rope with DOL. Hough and his staff got me on track and handled everything with DOL and just made this process so easy. Do not know where I'd be with out them. They are able to communicate at a layman's level and understand the client. Would strongly recommend this firm.
Ruthy LyonRuthy Lyon
21:00 28 Sep 23
Our initial conversation with Mr. Stephens was productive & reassuring. His previous experience with similar cases was obvious and very helpful, in both asking us specific questions for clarification & also addressing our own questions. Breanna is also a great asset to their team.
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15:07 13 Sep 23
I have referred several friends to Hugh Stephens and they were more satisfied than they ever expected. I would refer him with confidence to anyone in need. I trust when he speaks for me, for example, in court. He is a good communicator and a deep thinker. He is well respected in his profession. He handles environmental law, injury law, and medical malpractice. He is tactful and direct and knows what he is doing. He knows the legal briar patches well.
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Impairment Benefits

Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Impairment Benefits.  We hope these decisions are helpful.  Please add your experiences in the comments section.

Impairment Benefits

Assessing impairment evaluations at FAB

EEOICPA Fin. Dec. No. 10005910-2006 (Dep’t of Labor, July 31, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.   For the reasons set forth below, the claim for impairment benefits under Part E of EEOICPA based on the claimed condition of multiple myeloma disease is accepted.

STATEMENT OF THE CASE

On January 20, 2004, [Employee] filed claims under both Part B and former Part D of EEOICPA.  He identified multiple myeloma as the claimed condition he alleged resulted from exposure to toxic substances during his employment at a Department of Energy (DOE) facility.  Subsequent to his filing a request for assistance under former Part D, Congress amended EEOICPA by repealing Part D and enacting new Part E, which is administered by the Department of Labor.  The filing of a request for assistance under former Part D is treated as a claim for benefits under Part E.

On April 6, 2004, FAB issued a final decision accepting [Employee]‘s claim under Part B of EEOICPA, finding that he was a member of the Special Exposure Cohort with the “specified” cancer (an “occupational” illness) of multiple myeloma.  On May 12, 2006, FAB issued another final decision accepting [Employee]‘s claim for medical benefits under Part E the “covered” illness of multiple myeloma.

The evidence of record establishes that [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant for at least 250 work days prior to February 1, 1992.  During his employment at this facility he was employed by DOE contractors.  The medical evidence establishes that he was diagnosed with multiple myeloma on December 24, 2003.

On February 6, 2006, [Employee] filed a claim for impairment and wage-loss benefits under Part E.  To ascertain his impairment rating, and pursuant to his request, the district office had [Employee]‘s medical records reviewed by a District Medical Consultant (DMC).  On September 13, 2006, the DMC opined that based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Physical Impairment (the Guides), [Employee]‘s multiple myeloma was ratable because he had reached maximum medical improvement for this condition.  However, he opined that [Employee]‘s peripheral neuropathy, which is a consequential condition of his multiple myeloma, was not at maximum medical improvement and thus could be currently rated.  Using the proper sections and charts of the Guides, the DMC assessed [Employee]‘s whole person impairment based on his multiple myeloma at 11%. 

The claim file contains [Employee]‘s written declaration that he has not filed any tort suits or claims for state workers’ compensation benefits, or received any settlements or state workers’ compensation benefit awards in connection with his multiple myeloma. 

On December 5, 2006, the district office issued a recommended decision to award [Employee] an impairment award for his 11% whole person permanent impairment based on multiple myeloma, and that he was entitled to receive a lump-sum benefit under Part E of EEOICPA based on that award of $27,500.00.  Accompanying the district office’s recommended decision was a letter explaining [Employee]‘s rights and responsibilities in regard to that decision.

OBJECTIONS

On February 1, 2007, FAB received [Employee]‘s letter objecting to the recommended decision and requesting an oral hearing, which was held on April 17, 2007.  At that hearing, both [Employee] and [Employee’s spouse] presented testimony and evidence.  [Employee] also submitted two exhibits at this hearing:  (1) [Employee]‘s letter dated April 17, 2007 summarizing his objections to the recommended decision; and (2) a document entitled “Concise Review of the Disease and Treatment Options Multiple Myeloma Cancer of the Bone Marrow” by Brian G. M. Durie, M.D.

Objection No. 1[Employee] objected to the DMC’s assessment of his impairment by arguing that the DMC should have considered additional factors, such as his bone damage, bone destruction, bone lesions, his thrombocytopenia and decreased platelet count, his infections and suppressed immune system, his weakness, fatigue and shortness of breath, his renal insufficiency, his daily activities, and the probability of his premature death in assessing his impairment.

Objection No. 2[Employee] argued that his peripheral neuropathy should be rated because he believed that it was at maximum medical impairment, and objected to the impairment rating because the DMC did not include his peripheral neuropathy condition in assessing his impairment.

Objection No. 3[Employee] objected to the impairment rating because the DMC did not have all of your medical records, and no effort was made to obtain those records for the DMC to review.

Objection No. 4[Employee] argued that the DMC’s report contains incorrect information about him regaining his previous state of good health.

Objection No. 5:   [Employee] argued that the “shallowness” of the impairment evaluation process was not consistent with EEOICPA, nor was it consistent with his agreement to forego other legal remedies if he was fairly compensated. 

Subsequent to the hearing a copy of the transcript of that hearing was sent to [Employee].  On May 4, 2007, FAB received his letter dated April 30, 2007 and medical records he had attached to that letter, including a March 1, 2007 report from Dr. Bart Barlogie and laboratory results dated February 27, 2007, February 10, 2006, September 23, 2005 and December 15, 2004.

[Employee]‘s first, second and third objections concern whether the impairment rating that formed the basis for the recommended decision was correct.  He did not submit any medical evidence indicating that a physician had rated his impairment differently than the DMC had.  The regulations specify how FAB will evaluate new medical evidence submitted to challenge the impairment evaluation in the recommended decision.  Those regulations provide that if the employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, FAB will not consider the additional impairment evaluation if it is not performed by a physician who meets the criteria that have been established for physicians performing impairment evaluations for the pertinent covered illness in accordance with the GuidesSee 20 C.F.R. §§ 30.905, 30.908 (2007).  The medical evidence [Employee] submitted did not include an assessment of his impairment based on the claimed condition in accordance with the Guides.  A determination regarding [Employee]‘s impairment rating must be based upon a consideration of the totality of all relevant evidence of impairment in the record, and that determination must be based upon the most probative evidence.  See 20 C.F.R. § 908(c).  After reviewing the evidence of record, FAB concludes that the impairment rating by the DMC is the most probative evidence of your whole person impairment from your multiple myeloma.  [Employee] may apply for a new impairment rating for this condition in two years.  See 20 C.F.R. § 30.912.  Additionally, because his peripheral neuropathy was not assessed in the DMC’s impairment rating because he had not reached maximum medical improvement for that condition, [Employee] may apply for an impairment rating for that condition anytime, but the medical evidence must establish that he has reached maximum medical improvement for that condition.

[Employee]‘s fourth objection concerns statements in the DMC’s report about him regaining his normal state of health.  [Employee] made reference to a statement in the DMC report which implies it is debatable whether [Employee] has actually regained his previous state of normal good health.  However, the statement in question was in quotations in the DMC’s report, indicating that the DMC did not make that statement.  The DMC’s report indicates that while you were in remission, you were not in your previous state of normal good health.

[Employee]‘s fifth objection concerns the “shallowness” of the impairment evaluation process under EEOICPA.  However, when it enacted Part E, Congress provided that impairment benefits must be based on impairment ratings derived from the GuidesSee 42 U.S.C. § 7385s-2(b).  The Department of Labor must administer Part E as provided by Congress and does not have the authority to base impairment benefits on anything other than the Guides.

After reviewing the evidence in the file, [Employee]‘s objections to the recommended decision and the evidence he submitted, FAB hereby makes the following:

FINDINGS OF FACT

1.      [Employee] filed a claim for benefits under EEOICPA on January 20, 2004.

2.      [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant (a DOE facility) for more than 250 work days prior to February 1, 1992.  During his employment at this facility, he was employed by DOE contractors. 

3.      On May 12, 2006, FAB accepted [Employee]‘s Part E claim for medical benefits for the “covered” illness of multiple myeloma.

4.      [Employee] has a minimum impairment rating of his whole person as a result of his multiple myeloma of 11%.

5.      [Employee] has not received compensation or benefits from a tort suit or a state workers’ compensation claim based on his multiple myeloma.

Based on the above-noted findings of fact, FAB also hereby makes the following:

CONCLUSIONS OF LAW

On May 12, 2006, FAB issued a final decision under Part E of EEOICPA that accepted [Employee]‘s claim for medical benefits for the covered illness of multiple myeloma, finding that his exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his multiple myeloma.  42 U.S.C. § 7385s-4(a).  He is therefore a “covered DOE contractor employee.”

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered” illness shall be entitled to impairment benefits based on the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered” illness.  See 42 U.S.C § 7385s-2(a) and 20 C.F.R. § 30.901(a).  Part E also provides that the employee’s impairment rating is to be determined in accordance with the Fifth Edition of the Guides, and that for each percentage point of impairment that is a result of a “covered” illness, a “covered DOE contractor employee” is to receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1) and (b).  The evidence of record establishes that [Employee] has an impairment rating of 11% of the whole person as a result of his “covered” illness of multiple myeloma, based on the Guides.

[Employee] therefore qualifies for $27,500.00 in impairment benefits under Part E of  EEOICPA, pursuant to 42 U.S.C. § 7385s-2(a)(1), and his claim for those benefits is accepted for that amount.

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10006507-2006 (Dep’t of Labor, November 25, 2009)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This decision of the Final Adjudication Branch (FAB) concerns the above claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for an impairment award is accepted. 

STATEMENT OF THE CASE

On June 10, 2003, the employee filed a claim for benefits under Part B of EEOICPA as a uranium worker.  On December 10, 2003, FAB issued a final decision in which it found that the employee was a uranium worker who had received $100,000.00 under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note) for pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.  Therefore, FAB concluded that the employee was entitled to a lump-sum award of $50,000.00 under Part B and medical benefits for his pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, retroactive to June 10, 2003. 

On February 14, 2005, the employee filed a claim under Part E for pneumoconiosis, fibrosis of the lung and pulmonary fibrosis.  On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to work-related exposure to toxic substances.  Therefore, FAB concluded that the employee was entitled to medical benefits for the covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung under Part E of EEOICPA.  On December 13, 2006, FAB issued another final decision in which it found that the employee had a 25% permanent impairment of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, and awarded him $62,500.00 in impairment benefits under Part E of EEOICPA.

On April 3, 2008, the employee filed another claim for benefits under Part E of EEOICPA, for squamous cell cancer of the right upper lobe of the lung.  By final letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.

On January 22, 2009, the district office received the employee’s claim for an increased impairment award.  In his letter to the district office, the employee indicated that he wished to have the Department of Labor arrange for a qualified physician to perform the impairment evaluation.  Accordingly, to determine the employee’s impairment rating (the percentage rating representing the extent of whole body impairment, based on the organ and body functions affected by his covered illnesses), his case was referred for review to a district medical consultant (DMC).  In a medical report dated April 7, 2009, the DMC stated that the employee had reached maximum medical improvement for his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides), and based on pulmonary function tests performed on January 15, 2009, the DMC concluded that the employee had a 26% whole body impairment as a result of his covered illnesses.

In a letter dated June 17, 2009, the employee indicated that he had not filed for or received any money under a state workers’ compensation program or related to a tort action for his covered illnesses.  

On August 17, 2009, the Denver district office issued a recommended decision in which it found that the employee had a 26% whole body impairment attributable to his pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Therefore, the district office recommended that the employee be awarded compensation in the amount of $65,000.00, less the $62,500.00 that was previously awarded, under Part E of EEOICPA.

OBJECTION

On August 28, 2009, FAB received the employee’s objection to the recommended decision, in which he indicated that he would forward an impairment evaluation from another physician.  Thereafter, the employee submitted a September 10, 2009 medical report by Dr. Karen B. Mulloy, an osteopath, in which she concluded that the employee had reached maximum medical improvement.  Dr. Mulloy used the AMA’s Guides and opined that the employee had a Class 3 impairment due to an FEV1 of 58% of predicted.  See AMA’s Guides, table 5-12, page 107.  In addition, Dr. Mulloy identified the need for oxygen and reduced oxygen saturation, and indicated that the employee’s covered illnesses interfered with some of his activities of daily living, such as walking up stairs and doing activities around the house that require any exertion.  Based upon the foregoing, Dr. Mulloy concluded that the employee had a permanent impairment of 35% of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.

The employee also submitted an October 7, 2009 medical report by Dr. Annyce Mayer.  In that report, Dr. Mayer opined that the employee had a Class 3 impairment based on a limitation in his exercise tolerance, at least in part related to respiratory abnormalities.  Dr. Mayer also stated that the employee had a gas exchange abnormality that required the use of oxygen and that he does not perform activities that require much exertion.  Dr. Mayer did not indicate that the employee had reached maximum medical improvement or provide an opinion on the percentage of his whole person impairment as a result of his respiratory problems.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

  1. On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to exposure to toxic substances, accepted his claim under Part E of EEOICPA and awarded him medical benefits for his covered illnesses. 
  1. On December 13, 2006, FAB issued another final decision finding that the employee had a permanent impairment of 25% of the whole body due to his covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung and awarded him $62,500.00 in impairment benefits.
  1. By letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.
  1. Based on the Fifth Edition of the AMA’s Guides, the medical evidence establishes that the impairment rating attributed to the employee’s pulmonary conditions is 35%.
  1. The employee has not received any settlement or award from a tort suit or state workers’ compensation claim in connection with his covered illnesses.

Based on the above-noted findings of fact, FAB hereby also makes the following:

CONCLUSIONS OF LAW

Once a recommended decision on impairment has been issued and forwarded to the FAB, the employee may submit new medical evidence or an additional impairment evaluation to challenge the impairment determination in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing impairment evaluations for probative value.  In general, probative means “believable” and the FAB reviewer evaluates each report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence at hand.  Federal (EEOICPA) Procedure Manual, Chapter 2-1300.10 (May 2009).  The FAB reviewer will determine the minimum impairment rating after he or she has evaluated all relevant evidence and argument in the record.  20 C.F.R. § 30.908(c) (2009).

The AMA’s Guides, at page 107, indicates that

The classification system in Table #5-12 considers only pulmonary function measurements for an impairment rating.  It is recognized that pulmonary impairment can occur that does not significantly impact pulmonary function and exercise results but that does impact the ability to perform activities of daily living. . . .  In these limited cases, the physician may assign an impairment rating based on the extent and severity of pulmonary dysfunction and the inability to perform activities of daily living.

All three doctors identified pulmonary function test results that indicated the employee has an impairment at the lower end of Class 3.  However, Dr. Mayer and Dr. Mulloy identified the need for oxygen and indicated that the employee’s accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer affect his activities of daily living, while the DMC only considered the results of pulmonary function tests. 

As Dr. Mulloy considered additional issues in evaluating the employee’s impairment, FAB concludes that Dr. Mulloy’s impairment report has greater probative value than the report relied upon by the district office.  Thus, FAB concludes that the employee has a permanent impairment that is due to the covered illnesses of pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer, and that his impairment rating is 35%.

FAB further concludes that the employee is entitled to $2,500 for each percentage point of his impairment rating of 35%, and that the employee is entitled to compensation for impairment in the amount of $87,500.00, less the previously awarded $62,500.00, pursuant to 42 U.S.C. § 7385s-2(a)(1).  Accordingly, FAB awards the employee net impairment benefits of $25,000.00 under Part E of EEOICPA.

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for an impairment award under Part E is approved.  A decision on the claim for wage-loss benefits under Part E of EEOICPA is deferred pending further development.

STATEMENT OF THE CASE

On June 7, 2002, the employee filed claims for benefits under Part B and former Part D of EEOICPA.  On February 23, 2007, the FAB issued a final decision finding that he was employed by a covered Department of Energy (DOE) contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these cancers were at least as likely as not related to radiation exposure during his employment at a DOE facility; and that they were also related to his exposure to toxic substances during his employment at a DOE facility.  As a result, the FAB found that the employee was entitled to benefits under both Parts B and E of EEOICPA.

Earlier on January 16, 2007, the district office received the employee’s claim for wage-loss benefits and an impairment award under Part E of EEOICPA.  In support of his claim, the employee submitted a pulmonary function analysis, dated February 28, 2007, from Kennewick General Hospital, which indicated that his FVC was 91% of normal, FEV-1 was 42% of normal,  and DLCO was 56% of predicted.  In a March 5, 2007 medical report, Dr. Arthur Cain identified lowered creatinine levels, post-radiation rectal pain, urinary frequency, and erectile dysfunction. 

To determine the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the employee’s covered illness, the case was referred for review to a District Medical Consultant (DMC).  The DMC submitted a medical report, dated June 30, 2007, which indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC opined that the employee had 10% impairment of the whole person due to his kidney cancer, based on the loss of one kidney and satisfactory kidney functions.  For the employee’s prostate cancer, the DMC found that there was a Class 1 impairment due to prostate and seminal vesicle dysfunction signs and symptoms, that the employee had not had surgery, and that he did not require continuous treatment.  The DMC found that there was 5% impairment of the whole person due to dysfunction secondary to radiation treatment for the prostate cancer.  Regarding the employee’s rectal cancer, the DMC found that there was Class 1 impairment based on no need for further treatment, no further complications, no diarrhea and no residual findings.  The DMC found that there was 0% impairment of the whole person due to radiation treatment for the colon cancer.  Finally, as for the employee’s lung cancer, the DMC found that his FVC was 91% of normal and his FEV-1 was 42% of normal, and that that placed him in Class 2 (Table 5-12, page 107 of the Guides).  The DMC found that there was 10% impairment of the whole person due to the lung condition.  However, the DMC indicated that 50% of this last impairment should be attributed to the employee’s smoking and non-covered illness emphysema.  Using the Combined Values Chart on page 604 of the Guides, 10% for kidney cancer, 5% for prostate cancer, 0% for colon cancer, and 5% impairment for the lung cancer equates to a 19% impairment of the whole person. 

In a letter dated July 13, 2007, the employee indicated that he had not filed for or received any money from a state workers’ compensation program or related to a tort action for any of his covered illnesses. 

On August 4, 2007, the Cleveland district office issued a recommended decision to award the employee Part E benefits for a 19% whole person impairment attributable to his kidney, colon/rectal, lung, and prostate cancers.  The district office recommended that he receive an impairment award in the amount of $47,500.00, and deferred making a recommendation on the employee’s claim for wage-loss pending further development.

OBJECTIONS

On September 27, 2007, the FAB received the written objections of the employee’s authorized representative and a request for an oral telephonic hearing, which was held on November 27, 2007.  A review of the written objections, an October 4, 2007 impairment evaluation performed by Dr. David P. Suchard, Dr. Suchard’s testimony during the telephonic hearing, and evidence the representative submitted subsequent to the hearing reveals the following:

In his October 4, 2007 evaluation and hearing testimony, Dr. Suchard indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the Guides, he found that the employee’s FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted, and placed him in Class 3 (Table 5-12 on page 107 of the Guides).  Dr. Suchard concluded that the employee had a 40% impairment of the whole person based on his lungs.  Dr. Suchard found that based on the loss of one kidney, no evidence of recurrence of cancer, occasional sharp pains associated with the surgical scar, and serum creatine reduction to 46 ml/min, that the employee was in the mid-range of a Class 2 impairment (Table 7-1, page 146), resulting in a 23% whole person impairment based on the employee’s kidneys.  Regarding the employee’s colorectal cancer, Dr. Suchard found that there was a Class 1 impairment based on a condition that required surgery and the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer (Table 6-4, page 128).  Dr. Suchard found that there was a 5% whole person impairment because of dysfunction secondary to radiation and treatment for the colon cancer.

For the prostate cancer, Dr. Suchard found that the employee had an anal impairment associated with his radiation-induced proctitis and that this was a Class 2 impairment due to signs and symptoms of organic anal disease or anatomic loss or alteration associated with continual anal symptoms incompletely controlled by treatment (Table 6-5 on page 131).  Dr. Suchard found that there was a 15% whole person impairment related to this anal disease.  Due to lower urinary tract function associated with the employee’s prostate cancer, Dr. Suchard found a Class 1 impairment due to lower urinary symptoms of urinary frequency, nocturia, and urinary hesitancy with decreased force of the urinary stream (Table 7-4 on page 153), resulting in a 5% whole person impairment related to his radiation-induced obstructive urethral disease.  Based on his reduced sexual function, Dr. Suchard also found a Class 1 impairment due to difficulties in maintaining an erection of sufficient rigidity and duration for sexual intercourse (Section 7.7 on page 156), resulting in a 10% whole person impairment related to decreased penile function.  However, because the Guides direct the evaluator to decrease the percentage impairments concerning male reproductive organs by 50% for men over 65, Dr. Suchard found that the employee only had a 5% whole person impairment with regard to his decreased penile function.  Using the Combined Values Chart on page 604 of the Guides, Dr. Suchard concluded that 15% for anal disease, 5% for urethral disease, and 5% for sexual dysfunction equated to a 23% impairment to the whole person for the employee’s prostate cancer.

Using the same Combined Values Chart, Dr. Suchard concluded that 40% for the lung cancer, 23% for the kidney cancer, 5% for the colon cancer, and 23% for the prostate cancer equated to a 67% impairment of the whole person due to all of the employee’s covered illnesses.  Subsequent to the hearing, the authorized representative submitted a pulmonary function analysis dated November 29, 2007 and the results of a December 11, 2007 endoscopy.  In an email dated December 21, 2007, Dr. Suchard indicated that the “pulmonary condition remains Class 2, no change in impairment assessment.”  He also indicated that the employee continued to have a 5% whole person impairment with regard to his Class 1 colorectal disorder impairment.

On the other hand and as noted above, in his June 30, 2007 report, the DMC noted that the employee’s FVC was 91% of normal and FEV-1 was 42% of normal, and placed him in Class 2.  However, Table 5-12 of the Guides states that if the FEV-1 is between 41% and 59%, this would place an individual in Class 3.  Also, the DMC did not consider the DLCO test results, which were 56% of predicted and would also place an individual in Class 3.  Finally, the FAB notes that the DMC apportioned the impairment of the employee’s lungs to reflect the presence of a non-covered illness (emphysema).  Regarding his kidney cancer, the FAB notes that the DMC did not take into consideration the pain from the surgical site and the lowered serum creatine level.  In addition, he did not consider the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer.  Finally, the FAB notes that the DMC did not consider any impairment that resulted from the employee’s anal problems that were associated with radiation-induced proctitis, lower urinary tract functions associated with prostate cancer, and reduced sexual function.

Once a recommended decision on impairment has been issued, an employee may submit new medical evidence or an additional impairment evaluation to challenge the determination of the impairment in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing the probative value of competing impairment evaluations.  While by no means exhaustive, the FAB reviewer considers whether the physician possesses the requisite skills and requirements to provide a rating; whether the evaluation was conducted within 1 year of its receipt by DEEOIC; whether it addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  In general, probative means “believable” and the FAB reviewer considers each competing report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence in the case file.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.10 (February 2006).  As noted above, the employee submitted medical evidence that the FAB concludes is well rationalized and of greater probative value than the DMC’s evaluation that was used by the district office to determine his percentage of permanent impairment.

After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

  1. On February 23, 2007, the FAB issued a final decision finding that the employee was employed by a DOE contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these “occupational illnesses” were at least as likely as not related to radiation exposure during employment at a DOE facility; and that they were also “covered illnesses” related to toxic substance exposure during employment at a DOE facility.  Consequently, it was found that he was entitled to benefits under both Parts B and E of EEOICPA. 
  1. Based on the Fifth Edition of the Guides, the employee has a 40% impairment based on his lung cancer, 23% based on his kidney cancer, 5% based on his colon cancer, and 23% based on his prostate cancer, for a total whole-body impairment of 67%.
  1. The employee has not received any settlement or award from a lawsuit or workers’ compensation claim in connection with his covered illnesses.

Based on the above-noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.316(b) of the implementing regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including the employee’s objections in this case, and concludes that no further investigation is warranted.

If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative.  The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record.  See 20 C.F.R. § 30.908(c).

The FAB finds that Dr. Suchard’s impairment evaluation is more probative than the one relied on by the district office to determine the employee’s recommended whole person impairment, and that based on Dr. Suchard’s evaluation, his impairment rating is calculated to be 67%.  The FAB also finds that the employee is entitled to $2,500.00 for each percentage point of the impairment rating attributed to his covered illnesses.  Therefore, the employee is hereby awarded impairment benefits under Part E of EEOICPA in the amount of $167,500.00 ($2,500.00 x 67) pursuant to 42 U.S.C. § 7385s-2(a)(1).

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10033309-2006 (Dep’t of Labor, November 9, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim is approved for an award of impairment benefits under Part E of EEOICPA in the amount of $17,300.00 (an award of 17% in impairment benefits of $42,500.00, reduced because of the required coordination with state workers’ compensation benefits by $25,200.00) based on the employee’s covered illness of lung cancer.  A decision on the claim for prostate cancer under both Parts B and E is deferred pending further development.

STATEMENT OF THE CASE

On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E (which was formerly Part D) of EEOICPA.  At that time, he identified lung cancer as the condition resulting from your employment at a Department of Energy (DOE) facility.  DOE confirmed that [Employee] was employed at the K-25 Plant in Oak Ridge, Tennessee from July 6, 1953 to April 7, 1961, and at the Y-12 Plant in Oak Ridge, Tennessee from January 16, 1967 to July 31, 1985.  In support of his claim, [Employee] submitted an August 11, 1994 surgical pathology report, signed by Dr. Stephen H. Harrison, showing a diagnosis of moderately to poorly differentiated adenocarcinoma of the left lung.

On January 7, 2002, FAB issued a final decision accepting his claim under Part B, finding that he was a member of the Special Exposure Cohort, that he had been diagnosed with lung cancer, which is a “specified” cancer under EEOICPA, and awarding him compensation in the amount of $150,000.00 and medical benefits under Part B for lung cancer.  On April 17, 2006, FAB also accepted [Employee]‘s claim under Part E, finding that he had contracted lung cancer through exposure to a toxic substance at a DOE facility, and awarded him medical benefits for his “covered” illness of lung cancer under Part E.

On June 5, 2006, the district office received [Employee]‘s request for an impairment evaluation under Part E and elected to have a Department of Labor physician perform the rating.  To determine his impairment rating, the district office referred [Employee]‘s case file to a District Medical Consultant (DMC).  In a March 29, 2007 report, the DMC reviewed the medical evidence of record and concluded that it established that [Employee] had reached maximum medical improvement.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC concluded that [Employee] had a 5% whole person impairment due to his accepted lung cancer.

On November 8, 2006, the district office received a copy of [Employee]‘s state workers’ compensation settlement of $25,200.00 for the condition of lung cancer.

On March 15, 2007, the Jacksonville district office issued a recommended decision finding that [Employee]‘s covered illness of lung cancer resulted in a 5% whole body impairment and that he was entitled to $12,500.00 in impairment benefits under Part E of EEOICPA.  The district office also recommended that the $25,200.00 state workers’ compensation settlement be coordinated with his impairment benefits, leaving a surplus of $12,700.00 to be recovered out of future medical benefits until it was absorbed.

OBJECTIONS

On May 14, 2007, [Employee] timely filed a written objection to the recommended decision’s proposed award and requested an oral hearing to present his objections, which was held on August 1, 2007 in Oak Ridge, Tennessee.  [Employee] was represented by Christopher H. Hayes, an attorney with the Energy Workers’ Legal Resource Center.  On August 8, 2007, a copy of the transcript of the hearing was sent to [Employee].

[Employee] submitted exhibits at the hearing, as follows:

  • A copy of his state workers’ compensation settlement agreement, showing that he was paid $25,200.00.
  • A copy of an April 5, 2005 report by Dr. William R.C. Stewart, III, concluding that [Employee] had a 15% impairment to the whole person based on his lung cancer, without recurrence, which also noted that his impairment would be much higher if the cancer returned.
  • A copy of an August 23, 2006 letter and attached medical report from Dr. R. Hal Hughes, noting that [Employee] was seen in his office on that date and that he had a 50% impairment to the whole person, based on the Fifth Edition of the Guides, Table 5-12.
  • A copy of a June 13, 2007 report of a medical examination, in which Dr. Norm Walton concluded that [Employee] had a 17% impairment of the whole person based on his lung cancer.

At the hearing, [Employee] presented the following objections: 

  1. He stated that he was seen by Dr. Stewart to obtain an impairment rating of 15% in 2005, and that that was the report upon which his state workers’ compensation settlement was based.  [Employee] also stated that on August 23, 2006, Dr. Hughes, his current treating physician, supplied a letter referencing a 50% impairment to the whole person.  He stated that he saw Dr. Norm Walton at his attorney’s request on June 13, 2007, and that he gave him a 17% impairment rating to the whole person after a “hands-on examination” and “repeat breathing tests.” 
  2. [Employee] stated that when he is seen in a doctors’ office, it is usually after he has taken his medication, such as an inhaler, which improves his breathing function.  He stated that his condition varies from day to day and within the day, being worse at night, especially if he does sleep propped up, and that he is not able to do activities such as “mow the yard.”  [Employee] argued that the DMC’s report did not take these considerations into account.  He also stated that he was not given the opportunity to review the DMC’s report and object prior to the issuance of the recommended decision.
  3. [Employee] argued that, as to the probative value of these varying impairment rating reports, three of the four doctors writing reports had actually examined him, and that these physicians in terms of their opinions, present a picture that’s more probative to the Department of Labor and present a more clear, clinical assessment of his impairment than the DMC’s evaluation based on the records with which he was provided.  He argued that the report of his treating doctor, Dr. Hughes, would have the most probative opinion, as pulmonary function testing may be “somewhat variable” despite his being at maximum medical improvement, and he is Dr. Hughes’ regular patient. 
  4. [Employee] also stated that his pulmonary function has been getting progressively worse, as compared to the mid-1990s when he had his surgery.  Thus, he alleged that he was worse than he was in 2005, when Dr. Stewart did his evaluation. 

Regarding these objections, FAB notes that impairment ratings are based on an individual’s current condition at maximum medical improvement, and that [Employee] has four separate impairment rating reports in his file from four different physicians.  The DMC’s opinion is the only one given without benefit of a physical examination and gave a 5% impairment rating.  [Employee] alleges that his condition has worsened since the 2005 examination by Dr. Stewart, which gave a 15% impariment rating.  His treating physician gave a 50% impairment rating on August 23, 2006, and he states that this is the doctor who is most familiar with his condition.  The latest impairment rating in the file, that of 17% by Dr. Walton, was done based on a physical examination on June 13, 2007 and was specifically obtained for [Employee]‘s Part E claim. 

Under the regulations implementing Part E of EEOICPA, the employee bears the burden of proving that the new impairment evidence he has submitted has more probative value than the evaluation used by the district office to determine the impairment rating.  The weighing of the probative value of these impairment ratings must take many variables into consideration, such as  whether that the opining physician possesses the requisite skills and requirements to provide a rating as set out under the regulations, whether the evaluation was conducted within 1 year of its receipt by the Division of Energy Employees Occupational Illness Compensation, whether the report addresses the covered illness, and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-900(10)(b).

As noted above, the DMC never actually examined [Employee] and the 2005 impairment rating was done more than 1 year before it was submitted to FAB.  Thus, neither of these reports has the most probative value for EEOICPA purposes.  FAB also notes that both Dr. Hughes and Dr. Walton submitted medical reports that are clear and well-rationalized with regard to the causal relationship of [Employee]‘s impairment to the covered illness of lung cancer.  [Employee] testified that his condition is getting progressively worse and has been since his 1994 diagnosis and subsequent surgery for lung cancer.  The most recent impairment rating in the file was done in June 2007 by Dr. Walton, nearly a year after the next more recent, which was done in August 2006 by Dr. Hughes.  Dr. Walton’s impairment rating also appears to be more consistent with the other impairment ratings that have been done for [Employee] by other physicians, in terms of the percentage of impairment.  Thus, FAB concludes that the most probative opinion with regard to [Employee]‘s current level of impariment is the most current impariment rating by Dr. Walton, which gives a 17% impairment rating of the whole person.

At the hearing, [Employee] acknowledged that if his condition worsened, he could claim for additional impairment based on the same covered illness after the passage of two years from his award.  FAB also notes that [Employee] has a pending claim based on the condition of prostate cancer and that he may seek an impairment rating on a different covered illness before the passage of two years.  See 20 C.F.R. § 30.912.

Following an independent review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

  1. On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E of EEOICPA.  At that time, he identified lung cancer as the condition resulting from his employment at a DOE facility.
  1. On January 7, 2002, FAB issued a final decision that accepted [Employee]‘s claim under Part B, finding that he was are a member of the Special Exposure Cohort, that he had been were diagnosed with lung cancer (a “specified” cancer), and awarding him a lump-sum of $150,000.00 and medical benefits for lung cancer.
  1. On April 17, 2006, FAB also accepted [Employee]‘s claim under Part E, finding that he had contracted his lung cancer through exposure to a toxic substance at a DOE facility and awarding him medical benefits for lung cancer under Part E.
  1. On March 5, 2007, a DMC reviewed the medical evidence of record and determined that according to the Guides, [Employee] had a 5% whole person impairment resulting from his accepted covered illness of lung cancer.
  1. On June 14, 2007, Dr. Norm Walton examined [Employee] and determined that he had a current impairment raring of 17% to the whole person as a result of his lung cancer.
  1. [Employee] received a state workers’ compensation settlement of $25,200.00 for his claimed condition of lung cancer.

Based on the above-noted facts, the undersigned also hereby makes the following:

CONCLUSIONS OF LAW

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by his or her “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  The impairment rating of an employee shall be determined in accordance with the Fifth Edition of the Guides.  42 U.S.C. § 7385s-2(b).  Section 7385s-2(a)(1) provides that for each percentage point of the impairment rating that is the result of a covered illness, the covered DOE contractor employee shall receive $2,500.00.

As noted above, [Employee] is a covered DOE contractor employee with the covered illness of lung cancer, and he has an impairment rating of 17% of  the whole person as a result of his covered illness based on the Guides.  The physician giving this impairment rating, Dr. Walton, evaluated [Employee]‘s condition based on a physical examination and also carefully reviewed his medical records, and his is the most probative medical opinion on impairment in the file, as discussed above.  [Employee] is therefore entitled to $42,500.00 in impairment benefits (17 x $2,500.00 = $42,500.00) under Part E of EEOICPA.  This amount must be coordinated with the amount [Employee] received in a state workers’ compensation settlement for his lung cancer, which was $25,200.00.  Thus, his net award of impairment benefits based on his lung cancer is $17,300.00.  A decision on [Employee]‘s claim under Parts B and E for prostate cancer is deferred pending further development.

Washington, D.C.

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10010178-2007 (Dep’t of Labor, March 25, 2008)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claim for an impairment award under Part E is approved.  A decision on the claim for wage-loss benefits under Part E of EEOICPA is deferred pending further development.

STATEMENT OF THE CASE

On June 7, 2002, the employee filed claims for benefits under Part B and former Part D of EEOICPA.  On February 23, 2007, the FAB issued a final decision finding that he was employed by a covered Department of Energy (DOE) contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these cancers were at least as likely as not related to radiation exposure during his employment at a DOE facility; and that they were also related to his exposure to toxic substances during his employment at a DOE facility.  As a result, the FAB found that the employee was entitled to benefits under both Parts B and E of EEOICPA.

Earlier on January 16, 2007, the district office received the employee’s claim for wage-loss benefits and an impairment award under Part E of EEOICPA.  In support of his claim, the employee submitted a pulmonary function analysis, dated February 28, 2007, from Kennewick General Hospital, which indicated that his FVC was 91% of normal, FEV-1 was 42% of normal,  and DLCO was 56% of predicted.  In a March 5, 2007 medical report, Dr. Arthur Cain identified lowered creatinine levels, post-radiation rectal pain, urinary frequency, and erectile dysfunction. 

To determine the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the employee’s covered illness, the case was referred for review to a District Medical Consultant (DMC).  The DMC submitted a medical report, dated June 30, 2007, which indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC opined that the employee had 10% impairment of the whole person due to his kidney cancer, based on the loss of one kidney and satisfactory kidney functions.  For the employee’s prostate cancer, the DMC found that there was a Class 1 impairment due to prostate and seminal vesicle dysfunction signs and symptoms, that the employee had not had surgery, and that he did not require continuous treatment.  The DMC found that there was 5% impairment of the whole person due to dysfunction secondary to radiation treatment for the prostate cancer.  Regarding the employee’s rectal cancer, the DMC found that there was Class 1 impairment based on no need for further treatment, no further complications, no diarrhea and no residual findings.  The DMC found that there was 0% impairment of the whole person due to radiation treatment for the colon cancer.  Finally, as for the employee’s lung cancer, the DMC found that his FVC was 91% of normal and his FEV-1 was 42% of normal, and that that placed him in Class 2 (Table 5-12, page 107 of the Guides).  The DMC found that there was 10% impairment of the whole person due to the lung condition.  However, the DMC indicated that 50% of this last impairment should be attributed to the employee’s smoking and non-covered illness emphysema.  Using the Combined Values Chart on page 604 of the Guides, 10% for kidney cancer, 5% for prostate cancer, 0% for colon cancer, and 5% impairment for the lung cancer equates to a 19% impairment of the whole person. 

In a letter dated July 13, 2007, the employee indicated that he had not filed for or received any money from a state workers’ compensation program or related to a tort action for any of his covered illnesses. 

On August 4, 2007, the Cleveland district office issued a recommended decision to award the employee Part E benefits for a 19% whole person impairment attributable to his kidney, colon/rectal, lung, and prostate cancers.  The district office recommended that he receive an impairment award in the amount of $47,500.00, and deferred making a recommendation on the employee’s claim for wage-loss pending further development.

OBJECTIONS

On September 27, 2007, the FAB received the written objections of the employee’s authorized representative and a request for an oral telephonic hearing, which was held on November 27, 2007.  A review of the written objections, an October 4, 2007 impairment evaluation performed by Dr. David P. Suchard, Dr. Suchard’s testimony during the telephonic hearing, and evidence the representative submitted subsequent to the hearing reveals the following:

In his October 4, 2007 evaluation and hearing testimony, Dr. Suchard indicated that the employee had reached maximum medical improvement for all of his covered illnesses.  Using the Fifth Edition of the Guides, he found that the employee’s FVC was 91% of normal, FEV-1 was 42% of normal, and DLCO was 56% of predicted, and placed him in Class 3 (Table 5-12 on page 107 of the Guides).  Dr. Suchard concluded that the employee had a 40% impairment of the whole person based on his lungs.  Dr. Suchard found that based on the loss of one kidney, no evidence of recurrence of cancer, occasional sharp pains associated with the surgical scar, and serum creatine reduction to 46 ml/min, that the employee was in the mid-range of a Class 2 impairment (Table 7-1, page 146), resulting in a 23% whole person impairment based on the employee’s kidneys.  Regarding the employee’s colorectal cancer, Dr. Suchard found that there was a Class 1 impairment based on a condition that required surgery and the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer (Table 6-4, page 128).  Dr. Suchard found that there was a 5% whole person impairment because of dysfunction secondary to radiation and treatment for the colon cancer.

For the prostate cancer, Dr. Suchard found that the employee had an anal impairment associated with his radiation-induced proctitis and that this was a Class 2 impairment due to signs and symptoms of organic anal disease or anatomic loss or alteration associated with continual anal symptoms incompletely controlled by treatment (Table 6-5 on page 131).  Dr. Suchard found that there was a 15% whole person impairment related to this anal disease.  Due to lower urinary tract function associated with the employee’s prostate cancer, Dr. Suchard found a Class 1 impairment due to lower urinary symptoms of urinary frequency, nocturia, and urinary hesitancy with decreased force of the urinary stream (Table 7-4 on page 153), resulting in a 5% whole person impairment related to his radiation-induced obstructive urethral disease.  Based on his reduced sexual function, Dr. Suchard also found a Class 1 impairment due to difficulties in maintaining an erection of sufficient rigidity and duration for sexual intercourse (Section 7.7 on page 156), resulting in a 10% whole person impairment related to decreased penile function.  However, because the Guides direct the evaluator to decrease the percentage impairments concerning male reproductive organs by 50% for men over 65, Dr. Suchard found that the employee only had a 5% whole person impairment with regard to his decreased penile function.  Using the Combined Values Chart on page 604 of the Guides, Dr. Suchard concluded that 15% for anal disease, 5% for urethral disease, and 5% for sexual dysfunction equated to a 23% impairment to the whole person for the employee’s prostate cancer.

Using the same Combined Values Chart, Dr. Suchard concluded that 40% for the lung cancer, 23% for the kidney cancer, 5% for the colon cancer, and 23% for the prostate cancer equated to a 67% impairment of the whole person due to all of the employee’s covered illnesses.  Subsequent to the hearing, the authorized representative submitted a pulmonary function analysis dated November 29, 2007 and the results of a December 11, 2007 endoscopy.  In an email dated December 21, 2007, Dr. Suchard indicated that the “pulmonary condition remains Class 2, no change in impairment assessment.”  He also indicated that the employee continued to have a 5% whole person impairment with regard to his Class 1 colorectal disorder impairment.

On the other hand and as noted above, in his June 30, 2007 report, the DMC noted that the employee’s FVC was 91% of normal and FEV-1 was 42% of normal, and placed him in Class 2.  However, Table 5-12 of the Guides states that if the FEV-1 is between 41% and 59%, this would place an individual in Class 3.  Also, the DMC did not consider the DLCO test results, which were 56% of predicted and would also place an individual in Class 3.  Finally, the FAB notes that the DMC apportioned the impairment of the employee’s lungs to reflect the presence of a non-covered illness (emphysema).  Regarding his kidney cancer, the FAB notes that the DMC did not take into consideration the pain from the surgical site and the lowered serum creatine level.  In addition, he did not consider the need for ongoing periodic surveillance colonoscopies and the risk of developing new or recurrent colorectal cancer.  Finally, the FAB notes that the DMC did not consider any impairment that resulted from the employee’s anal problems that were associated with radiation-induced proctitis, lower urinary tract functions associated with prostate cancer, and reduced sexual function.

Once a recommended decision on impairment has been issued, an employee may submit new medical evidence or an additional impairment evaluation to challenge the determination of the impairment in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing the probative value of competing impairment evaluations.  While by no means exhaustive, the FAB reviewer considers whether the physician possesses the requisite skills and requirements to provide a rating; whether the evaluation was conducted within 1 year of its receipt by DEEOIC; whether it addresses the covered illness; and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness.  In general, probative means “believable” and the FAB reviewer considers each competing report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence in the case file.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.10 (February 2006).  As noted above, the employee submitted medical evidence that the FAB concludes is well rationalized and of greater probative value than the DMC’s evaluation that was used by the district office to determine his percentage of permanent impairment.

After considering the evidence of record, the FAB hereby makes the following:

FINDINGS OF FACT

  1. On February 23, 2007, the FAB issued a final decision finding that the employee was employed by a DOE contractor at the Portsmouth Gaseous Diffusion Plant from May 11, 1953 to November 16, 1954; that he was diagnosed with kidney cancer on August 5, 1976, lung cancer on January 22, 2001, colon cancer on March 30, 2001, rectal cancer on October 22, 2001, and prostate cancer on November 10, 2004; that these “occupational illnesses” were at least as likely as not related to radiation exposure during employment at a DOE facility; and that they were also “covered illnesses” related to toxic substance exposure during employment at a DOE facility.  Consequently, it was found that he was entitled to benefits under both Parts B and E of EEOICPA. 
  1. Based on the Fifth Edition of the Guides, the employee has a 40% impairment based on his lung cancer, 23% based on his kidney cancer, 5% based on his colon cancer, and 23% based on his prostate cancer, for a total whole-body impairment of 67%.
  1. The employee has not received any settlement or award from a lawsuit or workers’ compensation claim in connection with his covered illnesses.

Based on the above-noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.316(b) of the implementing regulations provides that “if the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.”  20 C.F.R. § 30.316(b).  The undersigned has reviewed the record, including the employee’s objections in this case, and concludes that no further investigation is warranted.

If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative.  The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record.  See 20 C.F.R. § 30.908(c).

The FAB finds that Dr. Suchard’s impairment evaluation is more probative than the one relied on by the district office to determine the employee’s recommended whole person impairment, and that based on Dr. Suchard’s evaluation, his impairment rating is calculated to be 67%.  The FAB also finds that the employee is entitled to $2,500.00 for each percentage point of the impairment rating attributed to his covered illnesses.  Therefore, the employee is hereby awarded impairment benefits under Part E of EEOICPA in the amount of $167,500.00 ($2,500.00 x 67) pursuant to 42 U.S.C. § 7385s-2(a)(1).

Washington, DC

Tom Daugherty

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10017018-2006 (Dep’t of Labor, July 18, 2007)

NOTICE OF FINAL DECISION AFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  After a review of the record, FAB accepts the claim for impairment benefits under Part E of EEOICPA based on the covered illness of pharyngeal cancer and consequential condition of an unspecified disorder of the teeth and supporting structures.

STATEMENT OF THE CASE

On February 19, 2002, [Employee] filed a request for a review by a Physicians Panel under the former Part D of EEOICPA with the Department of Energy (DOE), and on July 16, 2003 he filed a Form EE-1 claiming for benefits under Part B with the Department of Labor.  Both of these claims were based on cancer of the tongue, throat and lymph nodes.

On May 21, 2002, FAB issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part B.  In that decision, FAB concluded that he was a member of the Special Exposure Cohort because he belonged to the class of employees who worked at the Amchitka Island Nuclear Explosion Site and had been diagnosed with a “specified” cancer (of the pharynx) on October 31, 2001.  FAB therefore awarded [Employee] $150,000.00 and medical benefits for cancer of the pharynx. 

On March 31, 2006, FAB also issued a final decision accepting [Employee]‘s claim for pharyngeal cancer under Part E, as well as for a consequential condition of an unspecified disorder of the teeth and supporting structures. In that second decision, FAB concluded that he was a covered DOE contractor employee with a “covered” illness (pharyngeal cancer), and that he had contracted that covered illness through exposure to a toxic substance while working at a DOE facility. FAB therefore awarded him medical benefits under Part E of EEOICPA, retroactive to February 19, 2002, for both his pharyngeal cancer and the consequential condition of an unspecified disorder of the teeth and supporting structures.

On May 10, 2006, the district office received [Employee]‘s letter requesting an impairment rating for his cancer of the pharynx and his accepted consequential condition.  An impairment rating was performed by a District Medical Consultant (DMC), Dr. Coleen Weese.  In her March 16, 2007 report, Dr. Weese concluded that [Employee] had a 15% permanent impairment of the whole person due to his pharyngeal cancer with metastasis to the lymph nodes.

The district office then referred the claim to another DMC, Dr. Marc Bodow, for a complete impairment rating that also included the accepted consequential condition of an unspecified disorder of the teeth and supporting structures, including xerostomia.  In his April 7, 2007 report, Dr. Bodow indicated that [Employee] had a 21% impairment of the whole person due to the pharyngeal cancer (with metastasis) and the disorder of the teeth and supporting structures.

The Seattle district office conducted a telephone interview with [Employee] in which he stated that he had received a settlement of $18,231.62 of state workers’ compensation benefits related to the medical conditions for which he had claimed EEOICPA benefits.  The record includes a Compromise and Release from the Alaska Workers’ Compensation Board that establishes that he received a settlement of $18,231.62 for his cancer due to radiation exposure on Amchitka Island.

On April 12, 2007, the Seattle district office issued a recommended decision to accept [Employee]‘s claim for permanent impairment based on his cancer of the pharynx and the consequential disorder of the teeth and supporting structures under Part E.  The district office found that he had a 21% impairment of the whole body as the result of those covered illnesses, and that he was entitled to $2,500.00 for each percentage point (21 x $2,500.00 = $52,500.00), which had to be coordinated with the $18,231.62 he had received in state workers’ compensation benefits, leaving a net recommended award of $34,268.38.

On April 23, 2007, FAB received [Employee]‘s affirmation that neither he nor anyone in his family had ever filed for or received any settlement or award from a tort suit related to his exposure to radiation, and that he had not pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation.  He also confirmed that he had filed for and received an $18,231.62 settlement of a state workers’ compensation claim for the same medical conditions he had claimed for under EEOICPA.

OBJECTIONS

On May 7, 2007, FAB received [Employee]‘s letter objecting to the recommended decision, indicating that he felt that 21% was not completely fair, and that he could only do 30% of what he used to do before he was diagnosed with cancer in 2001.  In that letter [Employee], listed a number of ways in which he alleged that his quality of life had decreased, such as the weakness he experienced due to the radiation treatments he was receiving for his cancer, and his inability to enjoy activities or travel.  Lastly, he disagreed with the coordination of his Part E benefits with the settlement he had received from the Alaska Workers’ Compensation program.

In a subsequent June 4, 2007 submission, [Employee] provided FAB with letters written by his two best friends with their observations of his condition.  He also indicated that he had had an appointment three weeks ago with his physician, who had told him that his exhaustion was due to the radiation doses he had been receiving in his neck and throat. Once the recommended decision on impairment has been issued and forwarded to FAB for the issuance of a final decision, an employee may submit new medical evidence or an additional impairment evaluation to challenge the evaluation upon which the recommended decision was based.  However, the employee bears the burden of proving that the new medical evidence or new impairment evaluation is of greater probative value than the evaluation used by the district office to determine the impairment rating.  20 C.F.R. § 30.908 (2007). In this case, [Employee] did not provide any medical evidence or an impairment evaluation that is of greater probative value than the impairment evaluation received from the second DMC.  In his report, that DMC provided medical rationale supporting his whole body permanent impairment rating of 21%, and explained how he had arrived at that percentage using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides).

As for the state workers’ compensation benefits [Employee] received, 20 C.F.R. § 30.626 notes that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) must reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits.  If a covered Part E employee or a survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim for the same covered illness, DEEOIC will first determine the dollar value of the benefits received from a state workers’ compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness.  DEEOIC will then deduct the reasonable costs of obtaining those state workers’ compensation benefits, such as attorney fees and certain itemized costs (like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to DEEOIC for its consideration.  The Part E benefits that will be reduced consist of any unpaid monetary payments payable in the future and medical benefits payable in the future.  In those cases where it has not yet paid Part E benefits, DEEOIC will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first.  If the amount to be subtracted exceeds the monetary payments currently payable, DEEOIC will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus.  This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).

The record establishes that [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for mouth and throat cancer due to his work-related exposure to radiation at Amchitka Island.  It also establishes that his employers and the employers’ insurance carriers paid a separate amount of $6,768.38 for his attorney fees.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

  1. On February 19, 2002, [Employee] filed a claim under EEOICPA with DOE, and also with the Department of Labor on July 16, 2003.
  1. FAB issued a final decision accepting [Employee]‘s Part B claim for cancer of the pharynx on May 21, 2002.
  1. FAB also issued a final decision accepting [Employee]‘s Part E claim for cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures on March 31, 2006.
  1. [Employee] has a 21% whole body permanent impairment due to cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures, resulting in a gross impairment award of $52,500.00.  Following coordination of this gross award with [Employee]‘s state workers’ compensation benefits of $18,231.62, the net impairment award payable is $34,268.38.

Based on the above-noted findings of fact, FAB hereby also makes the following:

CONCLUSIONS OF LAW

[Employee] has previously been determined to be a covered DOE contractor employee who contracted cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth through exposure to a toxic substance (radiation) at a DOE facility, the Amchitka Island Nuclear Explosion Site.  Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, he has an impairment rating of 21% in accordance with the Guides and the gross amount of his impairment award is $52,500.00.  However, [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for the same accepted conditions.  Therefore, his Part E benefits must be coordinated with those state workers’ compensation benefits, and the net amount of impairment benefits payable following coordination is  $34,268.38.

The undersigned notes [Employee]‘s objections to the recommended decision; however, they do not change the outcome of this case.  FAB is bound by the provisions of EEOICPA and the regulations, and has no authority to depart from them.  Accordingly, [Employee] is entitled to compensation for his permanent impairment in the amount of $34,268.38 under Part E.

Seattle, Washington

Kelly Lindlief

Hearing Representative

Final Adjudication Branch

In general

EEOICPA Fin. Dec. No. 24496-2003 (Dep’t of Labor, March 14, 2006)

NOTICE OF FINAL DECISION

This is a decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for medical benefits for your diagnosis of chronic beryllium disease pursuant to Part E is approved.  Furthermore, your claim for chronic beryllium disease, bladder cancer and throat cancer for impairment pursuant to Part E is approved. 

A decision on [Employee]‘s claim for medical benefits for basal cell carcinoma of the upper left lip is pending results from the National Institute for Occupational Safety and Health (NIOSH).

The Recommended decision dated December 29, 2005 omitted reference to chronic beryllium disease as being accepted under Part E. Therefore, in addition to addressing impairment, this decision accepts chronic beryllium disease for medical benefits pursuant to Part E.

STATEMENT OF THE CASE

On March 6, 2002, you filed a claim Form (EE-1) for benefits under EEOICPA with the Department of Labor.  On the EE-1 form you identified vocal cord cancer, lip cancer, chronic beryllium disease and other lung condition as the conditions being claimed.  You also submitted an employment history form (EE-3) on which you stated that you worked at the Iowa Ordnance Plant[1] in Burlington Iowa from March 19, 1951 through March 28,1991. You also indicated that you wore a dosimetry badge while you were employed with each company. 

The Department of Energy (DOE) verified your employment with the Iowa Ordnance Plant in Burlington, Iowa, from March 19, 1951 through March 28, 1991. 

August 29, 2003, the FAB issued a final decision in which it concluded that you were a covered beryllium employee and you were awarded compensation under Part B of EEOICPA in the amount of $150,000, and medical benefits for the treatment of your chronic beryllium disease.

On December 16, 2003, the district office received additional medical evidence, including a pathology report dated August 12, 2003, establishing your bladder cancer diagnosis. Subsequently, additional medical reports, including a pathology report dated September 23, 2005, established that you were diagnosed with throat cancer.

On January 24, 2006, the FAB issued a final decision which concluded that you were a covered employee with cancer and you were awarded medical benefits under Part B and Part E for cancer of the throat and cancer of the bladder.

On January 19, 2006, the district office received a letter from Dr. Fuortes in which he indicated that you had reached maximum medical improvement, and that using the AMA’s Guides to the Evaluation of Permanent Impairment, 5th Edition, Page 262, Table 11-7, Chapter 11.  You had a 40-60% impairment of the whole person because of the anatomic loss post-surgically of much of the epiglottis and your inability to swallow, and being nutritionally dependent upon a gastronomy and gastric feeding tube.  Dr. Fuortes concluded that you had a 60% impairment of the whole person.

Dr. Fuortes further stated that you are significantly impaired on the basis of pulmonary disease. He stated that your impairment from respiratory disease based on a DLCO deficit would be in the Class 4 range using Table 5-12, page 107, with severe dyspnea (Table 5-1, page 89) resulting in an estimated 51-100% range impairment of the whole person.  He stated that given the severity of your symptoms and with hypoxia at rest, your rating would be in the upper range or 85% impairment of the whole person from pulmonary disease.

Using the combined values chart for combining impairments, pages 604-606, a combined rating of 94% of the impairment of the whole person was assigned. 

On March 1, 2006, the Denver district office issued a recommended decision concluding that you are a covered  employee; that you contracted the covered illnesses, throat cancer, bladder cancer and chronic beryllium disease, due to your exposure to a toxic substance which is related to your employment at a DOE facility; an impairment rating was established representing your permanent impairment; and that you are entitled to impairment compensation of $235,000. 

FINDINGS OF FACT

  1. You filed a claim for benefits under Part B of the EEOICPA on March 6, 2002.
  1. You were diagnosed with chronic beryllium disease, bladder cancer and throat cancer.
  1. You were employed with Iowa Ordnance Plant in Burlington Iowa from March 19, 1951 through March 28, 1991.
  1. On August 29, 2003, the FAB issued a final decision finding that you were a covered beryllium employee and you were awarded compensation benefits pursuant to Part B of the EEOICPA.
  1. On January 24, 2006, the FAB issued a final decision which concluded that you were a covered employee with cancer and you were awarded medical benefits under Part B and Part E for cancer of the throat and cancer of the bladder.
  1. You contracted chronic beryllium disease, throat cancer and bladder cancer through exposure to a toxic substance at a DOE facility site, which resulted in whole body impairment. 
  1. You have a 94% whole body impairment due to the combination of your chronic beryllium disease, throat cancer and bladder cancer, resulting in impairment compensation totaling $235,000.  
  1. You never received any payment from a lawsuit or tort settlement for your diagnoses of chronic beryllium disease, throat cancer and bladder cancer. 

Based on the above noted findings of fact in this claim, the FAB hereby also makes the following: 

CONCLUSIONS OF LAW

Section 30.310(a) of the EEOICPA implementing regulations provides that “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.”  20 C.F.R. § 30.310(a).

Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a).  On March 8, 2006, the FAB received written notification from you waiving any and all objections to the recommended decision. 

Pursuant to § 7385s-4 of the EEOICPA, “A determination under part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a Department of Energy facility.”  42 U.S.C. § 7385s-4(a).  You received an award for compensation under Part B for CBD, and it is therefore determined that you are a covered DOE contractor employee who contracted CBD through exposure at a DOE facility. 

Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, you have a permanent impairment of 94% determined in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment.  Your gross compensation amount for that impairment rating is $2500 multiplied by 94, or $235,000 pursuant to 42 U.S.C. § 7385s-2 (a)(1), 20 C.F.R. § 30.902. 

You are entitled to medical benefits for chronic beryllium disease effective March 6, 2002, pursuant to 42 U.S.C. § 7385s-8 of the Act.

Denver, Colorado

Sandra Vicens-Pecenka

Hearing Representative

Final Adjudication Branch

[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Iowa Ordnance Plant in Burlington, IA is a covered DOE facility from 1947 to 1974.       

EEOICPA Fin. Dec. No. 10001639-2005 (Dep’t of Labor, October 21, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for survivor compensation benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim is approved for compensation in the amount of $125,000.00.

STATEMENT OF THE CASE

On April 7, 2005, the Final Adjudication Branch issued a Notice of Final Decision during the Interim Administration Period.  Based on your confirmed employment with Union Carbide and Martin Marietta Energy Systems at the Y-12 Plant from April 24, 1967 to July 31, 1994, and a positive determination for asbestosis by a panel accepted by the Secretary of Energy under former Part D, the FAB found you to be a “covered DOE contractor employee.”  As such, the FAB awarded you medical benefits for asbestosis and asbestos related lung disease beginning on your March 17, 2003 filing date and deferred adjudication for wage loss and/or impairment.

You submitted an impairment evaluation, dated August 3, 2005, from Dr. Angelisa Janssen who found a 50% impairment rating due to your respiratory disease.  To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the covered condition and the extent of the impairment attributable to your covered condition), your case was referred for review to a Department of Labor Medical Consultant, Dr. Sylvie Cohen.  Dr. Cohen used the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment and opined that you have a class 3 impairment classification with a range of 26-50% impairment.  See AMA’s Guides to the Evaluation of Permanent Impairment (5th Edit. 2005) tables 5-12.  Dr. Cohen calculated your minimum impairment rating to be 50%, all of which is attributed to the accepted covered condition, asbestosis. 

On September 23, 2005, the district office issued a recommended decision finding that you are entitled to $2,500 for each of the 50 percentage points Dr. Cohen found to be a result of the accepted covered illness.  As such the district office concluded that you are entitled to compensation in the amount of $125,000.00 pursuant to 42 U.S.C. § 7385s-2(a)(1).

On September 28, 2005, the FAB received written notification that you waive any and all objections to the September 23, 2005 recommended decision.  

After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:

FINDINGS OF FACT

1.      A final decision was issued by the Department of Labor under § 7385s of the Act on April 7, 2005, concluding that you are a covered DOE contractor employee and awarded you medical benefits for asbestosis commencing on your March 17, 2003 filing date.

2.      Based on the 5th edition of the AMA’s Guides, your minimum impairment rating for asbestosis is calculated to be 50%.

3.      You confirmed in writing that you never received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

Based on the above noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

The Final Adjudication Branch hereby finds that you have been determined to have an impairment that is the result of the accepted covered illness, asbestosis, and that your minimum impairment rating is calculated to be 50%.  The FAB further finds that you are entitled to $2,500 for each percentage point (50) of your minimum impairment rating attributed to the accepted condition amounting to $125,000.00.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation for impairment in the amount of $125,000.00 pursuant to 42 U.S.C. § 7382s-2(a)(1)(A) and (B).

Washington, DC

David E. Benedict

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10001749-2005 (Dep’t of Labor, December 14, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your claim for impairment benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA).  Your claim is approved for compensation in the amount of $62,500.  Adjudication of this claim will not preclude your potential entitlement to additional compensation under the Act for wage-loss and/or increased impairment.    

STATEMENT OF THE CASE

On March 22, 2005, the Final Adjudication Branch issued a Notice of Final Decision During the Interim Administration Period.  Based on your confirmed employment with Union Carbide, Martin Marietta and Lockheed Martin at the Paducah Gaseous Diffusion Plant (PGDP) from October 3, 1955 through June 30, 1999, and a positive determination for asbestosis by a panel accepted by the Secretary of Energy under former Part D, the FAB found you to be a “covered DOE contractor employee” as defined by 42 U.S.C. § 7385s(1).  As such, the FAB awarded you medical benefits for asbestosis in accordance with 42 U.S.C. § 7384t beginning on your May 15, 2002 Department of Energy filing date.  The FAB deferred adjudication for wage-loss and/or impairment.

On September 8, 2005, the district office received your statement of intent to pursue a claim for impairment benefits.  To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected by the covered condition and the extent of the impairment attributable to your covered condition), your case was referred for review to a Department of Labor Medical Consultant.  The medical consultant used the American Medical Association’s Guides to the Evaluation of Permanent Impairment and opined that you have a class 2 impairment classification with a range of 10-25% impairment (See AMA’s Guides to the Evaluation of Permanent Impairment, 5th Ed. 2005).  Given your physical findings, current treatment and severely compromised activities of daily living (ADL), the medical consultant calculated your minimum impairment rating attributed to the accepted covered condition, asbestosis, to be 25%.

On November 8, 2005, the Cleveland district office issued a recommended decision finding that you are entitled to $2,500 for each of the twenty five percentage points the medical consultant found to be a result of the accepted covered illness.  As such the district office concluded that you are entitled to compensation in the amount of $62,500. 

On November 23, 2005, the FAB received written notification that you waive any and all objections to the November 8, 2005 recommended decision.  On December 14, 2005, the FAB received your written confirmation that you have not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:


FINDINGS OF FACT

1.         You filed a claim under EEOICPA with the Department of Labor on July 31, 2001.

2.         You filed a claim under EEOICPA with the Department of Energy on May 15, 2002.

3.         A final decision was issued by the Department of Labor under Part E of the Act on March 22, 2005, concluding that you are a covered DOE contractor employee who contracted asbestosis due to work-related exposure to a toxic substance, and awarded you medical benefits for asbestosis commencing on your May 15, 2002 filing date.

4.         Based on the 5th edition of the AMA’s Guides, your minimum impairment rating due to asbestosis is calculated to be 25%.

5.         You confirmed in writing that you never received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition.

Based on the above noted findings of fact, the FAB hereby also makes the following:

CONCLUSIONS OF LAW

The Final Adjudication Branch hereby finds that you have a permanent impairment that is the result of the accepted covered condition, asbestosis, and that your minimum impairment rating is calculated to be 25%.  The FAB further finds that you are entitled to $2,500 for each percentage point of your minimum impairment rating attributed to the accepted condition.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation for impairment in the amount of $62,500 under 42 U.S.C. § 7382s-2(a)(1)(A) and (B).

In addition, the May 22, 2005 final decision awarded you medical benefits commencing on your May 15, 2002 Department of Energy filing.  This decision should serve as a correction.  Your entitlement to medical benefits is retroactive to the earliest date of filing and that would be the July 31, 2001 Department of Labor filing date.  Accordingly, the Final Adjudication Branch hereby concludes that you are also entitled to medical benefits for asbestosis commencing on July 31, 2001. 

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10005910-2006 (Dep’t of Labor, July 31, 2007)

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for impairment benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.   For the reasons set forth below, the claim for impairment benefits under Part E of EEOICPA based on the claimed condition of multiple myeloma disease is accepted.

STATEMENT OF THE CASE

On January 20, 2004, [Employee] filed claims under both Part B and former Part D of EEOICPA.  He identified multiple myeloma as the claimed condition he alleged resulted from exposure to toxic substances during his employment at a Department of Energy (DOE) facility.  Subsequent to his filing a request for assistance under former Part D, Congress amended EEOICPA by repealing Part D and enacting new Part E, which is administered by the Department of Labor.  The filing of a request for assistance under former Part D is treated as a claim for benefits under Part E.

On April 6, 2004, FAB issued a final decision accepting [Employee]‘s claim under Part B of EEOICPA, finding that he was a member of the Special Exposure Cohort with the “specified” cancer (an “occupational” illness) of multiple myeloma.  On May 12, 2006, FAB issued another final decision accepting [Employee]‘s claim for medical benefits under Part E the “covered” illness of multiple myeloma.

The evidence of record establishes that [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant for at least 250 work days prior to February 1, 1992.  During his employment at this facility he was employed by DOE contractors.  The medical evidence establishes that he was diagnosed with multiple myeloma on December 24, 2003.

On February 6, 2006, [Employee] filed a claim for impairment and wage-loss benefits under Part E.  To ascertain his impairment rating, and pursuant to his request, the district office had [Employee]‘s medical records reviewed by a District Medical Consultant (DMC).  On September 13, 2006, the DMC opined that based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Physical Impairment (the Guides), [Employee]‘s multiple myeloma was ratable because he had reached maximum medical improvement for this condition.  However, he opined that [Employee]‘s peripheral neuropathy, which is a consequential condition of his multiple myeloma, was not at maximum medical improvement and thus could be currently rated.  Using the proper sections and charts of the Guides, the DMC assessed [Employee]‘s whole person impairment based on his multiple myeloma at 11%. 

The claim file contains [Employee]‘s written declaration that he has not filed any tort suits or claims for state workers’ compensation benefits, or received any settlements or state workers’ compensation benefit awards in connection with his multiple myeloma. 

On December 5, 2006, the district office issued a recommended decision to award [Employee] an impairment award for his 11% whole person permanent impairment based on multiple myeloma, and that he was entitled to receive a lump-sum benefit under Part E of EEOICPA based on that award of $27,500.00.  Accompanying the district office’s recommended decision was a letter explaining [Employee]‘s rights and responsibilities in regard to that decision.

OBJECTIONS

On February 1, 2007, FAB received [Employee]‘s letter objecting to the recommended decision and requesting an oral hearing, which was held on April 17, 2007.  At that hearing, both [Employee] and [Employee’s spouse] presented testimony and evidence.  [Employee] also submitted two exhibits at this hearing:  (1) [Employee]‘s letter dated April 17, 2007 summarizing his objections to the recommended decision; and (2) a document entitled “Concise Review of the Disease and Treatment Options Multiple Myeloma Cancer of the Bone Marrow” by Brian G. M. Durie, M.D.

Objection No. 1[Employee] objected to the DMC’s assessment of his impairment by arguing that the DMC should have considered additional factors, such as his bone damage, bone destruction, bone lesions, his thrombocytopenia and decreased platelet count, his infections and suppressed immune system, his weakness, fatigue and shortness of breath, his renal insufficiency, his daily activities, and the probability of his premature death in assessing his impairment.

Objection No. 2[Employee] argued that his peripheral neuropathy should be rated because he believed that it was at maximum medical impairment, and objected to the impairment rating because the DMC did not include his peripheral neuropathy condition in assessing his impairment.

Objection No. 3[Employee] objected to the impairment rating because the DMC did not have all of your medical records, and no effort was made to obtain those records for the DMC to review.

Objection No. 4[Employee] argued that the DMC’s report contains incorrect information about him regaining his previous state of good health.

Objection No. 5:   [Employee] argued that the “shallowness” of the impairment evaluation process was not consistent with EEOICPA, nor was it consistent with his agreement to forego other legal remedies if he was fairly compensated. 

Subsequent to the hearing a copy of the transcript of that hearing was sent to [Employee].  On May 4, 2007, FAB received his letter dated April 30, 2007 and medical records he had attached to that letter, including a March 1, 2007 report from Dr. Bart Barlogie and laboratory results dated February 27, 2007, February 10, 2006, September 23, 2005 and December 15, 2004.

[Employee]‘s first, second and third objections concern whether the impairment rating that formed the basis for the recommended decision was correct.  He did not submit any medical evidence indicating that a physician had rated his impairment differently than the DMC had.  The regulations specify how FAB will evaluate new medical evidence submitted to challenge the impairment evaluation in the recommended decision.  Those regulations provide that if the employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, FAB will not consider the additional impairment evaluation if it is not performed by a physician who meets the criteria that have been established for physicians performing impairment evaluations for the pertinent covered illness in accordance with the GuidesSee 20 C.F.R. §§ 30.905, 30.908 (2007).  The medical evidence [Employee] submitted did not include an assessment of his impairment based on the claimed condition in accordance with the Guides.  A determination regarding [Employee]‘s impairment rating must be based upon a consideration of the totality of all relevant evidence of impairment in the record, and that determination must be based upon the most probative evidence.  See 20 C.F.R. § 908(c).  After reviewing the evidence of record, FAB concludes that the impairment rating by the DMC is the most probative evidence of your whole person impairment from your multiple myeloma.  [Employee] may apply for a new impairment rating for this condition in two years.  See 20 C.F.R. § 30.912.  Additionally, because his peripheral neuropathy was not assessed in the DMC’s impairment rating because he had not reached maximum medical improvement for that condition, [Employee] may apply for an impairment rating for that condition anytime, but the medical evidence must establish that he has reached maximum medical improvement for that condition.

[Employee]‘s fourth objection concerns statements in the DMC’s report about him regaining his normal state of health.  [Employee] made reference to a statement in the DMC report which implies it is debatable whether [Employee] has actually regained his previous state of normal good health.  However, the statement in question was in quotations in the DMC’s report, indicating that the DMC did not make that statement.  The DMC’s report indicates that while you were in remission, you were not in your previous state of normal good health.

[Employee]‘s fifth objection concerns the “shallowness” of the impairment evaluation process under EEOICPA.  However, when it enacted Part E, Congress provided that impairment benefits must be based on impairment ratings derived from the GuidesSee 42 U.S.C. § 7385s-2(b).  The Department of Labor must administer Part E as provided by Congress and does not have the authority to base impairment benefits on anything other than the Guides.

After reviewing the evidence in the file, [Employee]‘s objections to the recommended decision and the evidence he submitted, FAB hereby makes the following:

FINDINGS OF FACT

1.      [Employee] filed a claim for benefits under EEOICPA on January 20, 2004.

2.      [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant (a DOE facility) for more than 250 work days prior to February 1, 1992.  During his employment at this facility, he was employed by DOE contractors. 

3.      On May 12, 2006, FAB accepted [Employee]‘s Part E claim for medical benefits for the “covered” illness of multiple myeloma.

4.      [Employee] has a minimum impairment rating of his whole person as a result of his multiple myeloma of 11%.

5.      [Employee] has not received compensation or benefits from a tort suit or a state workers’ compensation claim based on his multiple myeloma.

Based on the above-noted findings of fact, FAB also hereby makes the following:

CONCLUSIONS OF LAW

On May 12, 2006, FAB issued a final decision under Part E of EEOICPA that accepted [Employee]‘s claim for medical benefits for the covered illness of multiple myeloma, finding that his exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his multiple myeloma.  42 U.S.C. § 7385s-4(a).  He is therefore a “covered DOE contractor employee.”

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered” illness shall be entitled to impairment benefits based on the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered” illness.  See 42 U.S.C § 7385s-2(a) and 20 C.F.R. § 30.901(a).  Part E also provides that the employee’s impairment rating is to be determined in accordance with the Fifth Edition of the Guides, and that for each percentage point of impairment that is a result of a “covered” illness, a “covered DOE contractor employee” is to receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1) and (b).  The evidence of record establishes that [Employee] has an impairment rating of 11% of the whole person as a result of his “covered” illness of multiple myeloma, based on the Guides.

[Employee] therefore qualifies for $27,500.00 in impairment benefits under Part E of  EEOICPA, pursuant to 42 U.S.C. § 7385s-2(a)(1), and his claim for those benefits is accepted for that amount.

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10007316-2007 (Dep’t of Labor, January 31, 2008)

REMAND ORDER

This order of the Final Adjudication Branch (FAB) concerns the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  Pursuant to the authority granted by 20 C.F.R. § 30.317 (2007), the claim for impairment under Part E of EEOICPA based on pulmonary fibrosis and silicosis, moderate to severe, is remanded to the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) to obtain clarification from the District Medical Consultant (DMC) who performed the impairment evaluation, and for the issuance of a new recommended decision.

On December 13, 2004, [Employee] filed a claim under Part B of EEOICPA for pulmonary fibrosis and silicosis.  On February 8, 2005, a final decision was issued awarding him monetary and medical benefits under Part B for the condition of pulmonary fibrosis and silicosis, moderate to severe, after confirmation was received from the Department of Justice that he was awarded $100,000.00 under section 5 of the Radiation Exposure Compensation Act (RECA) for the same conditions.  Another final decision was issued by FAB on May 25, 2007, awarding him medical benefits for the treatment of pulmonary fibrosis and silicosis under Part E.

On April 16, 2007, [Employee] notified the district office of his desire to pursue a claim for impairment and wage-loss benefits under Part E.  He elected to have his impairment evaluation conducted by a Department of Labor DMC in lieu of a physician of his choosing, so on October 24, 2007, the case file was referred to a DMC for an impairment evaluation.  On November 13, 2007, the district office received a copy of that impairment evaluation.  Evaluating the results of [Employee]‘s June 13, 2007 medical history, physical examination and pulmonary function test (PFT) results, as well as a review of the medical evidence in the file, the DMC determined that he was at maximum medical improvement and rated his whole body impairment as 0%, based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Chapter 5. 

On November 14, 2007, the Denver district office issued a recommended decision under Part E to deny the claim for impairment benefits based on the DMC’s 0% impairment rating.  The case was then forwarded to FAB for the issuance of a final decision. 

Upon review of the impairment evaluation, FAB notes that the DMC obviously reviewed the medical evidence with the purpose of determining whether or not the conditions accepted by the Department of Justice under RECA, and subsequently by DEEOIC under Parts B and E of EEOICPA, were supported by the medical evidence prior to assigning a rating, because fully five pages of this ten-page evaluation were devoted to an analysis of what diagnoses were supported by the objective medical evidence and which were not.  However, the role of a DMC in an impairment evaluation is not to question, or to seek to disprove, a medical finding made by an adjudicatory agency, especially if that agency must use a legal/administrative definition of a disease rather than one that is generally accepted in the medical profession.

As noted above, [Employee] received an award under section 5 of RECA from the Department of Justice, based on their rules and regulations for the medical conditions of pulmonary fibrosis and silicosis.  The Department of Justice has the exclusive authority to adjudicate claims filed under section 5 of RECA, and determines which, if any, of the medical conditions compensable under section 5 have been established.  Under Part B of EEOICPA, DEEOIC pays an additional $50,000.00 in monetary benefits to recipients of an award under section 5 of RECA and provides the employee (if the employee was the recipient of the award) with medical benefits to treat the conditions that were accepted by the Department of Justice.  These same conditions are then automatically presumed under Part E of EEOICPA to have arisen of the exposure of the employee to toxic substances at a covered facility, i.e., to be “covered” illnesses.

The following excerpts from the impairment evaluation indicate the intent of the DMC was to disprove [Employee]‘s covered illnesses, rather than to assess his lung function:

[Employee] has been accepted as having been exposed to the environmental hazards of uranium mining, primarily silicosis/pulmonary fibrosis. . . .  There are certain conditions required for the diagnosis of pulmonary fibrosis/silicosis. [Employee] has no radiological findings of pulmonary fibrosis/silicosis, which would include bilateral nodules and perhaps calcification of hilar lymph nodes (the radiological findings are inconsistent with silicosis/pulmonary fibrosis; positive findings are necessary for a diagnosis of silicosis/pulmonary fibrosis).

* * *

[Employee] was a uranium worker/miner, but we have no information on his actual exposure (an actual exposure history is necessary for a diagnosis of silicosis/pulmonary fibrosis).  Observers are cautioned not to attribute pulmonary function testing results to silicosis when the patient has other medical problems such as obesity ([Employee] is/was obese), has asthma ([Employee] has severe persistent asthma), hay fever ([Employee] has multiple environmental allergies and rhinitis), and a history of chest trauma ([chest x-ray] revealed old scapula fracture).  Consequently, due to [Employee]‘s history of severe persistent asthma, COPD resultant from the asthma and/or smoking history, obesity, environmental allegories, history of chest trauma, inadequate exposure history, and reversibility of pulmonary function results with a bronchodilator, it must be concluded that [Employee]‘s pulmonary function testing results are not due to his exposures while working as a uranium miner.

* * *

If there is a component of his lung disease that is due to his pulmonary fibrosis/silicosis, it is minimal at this time and cannot be used as a basis for an impairment rating. . . .

[Employee]‘s impairment rating was 0% whole person impairment, even though the DMC conceded that he had considerable respiratory impairment and opined that this impairment is due to severe and persistent asthma, obesity, history of chest trauma, and respiratory allegories (environmental allergies). 

The Federal (EEOICPA) Procedure Manual, Chapter E-900 (February 2006) precludes the apportionment of the permanent impairment of an organ or body function, which in this case is the lung, between an employee’s covered and non-covered illnesses.  If any portion of the impairment is due to a covered illness, the entire percentage of impairment for that organ is compensable.  In the present case, the DMC admits in her findings that [Employee] may have minimal impairment of the lung due to pulmonary fibrosis/ silicosis, and then proceeds to apportion the majority of that impairment to other non-covered illnesses and conditions, thereby justifying a 0% impairment based on the covered illnesses as found by both the Department of Justice and DEEOIC. 

Pursuant to 20 C.F.R. § 30.317, FAB may “at any time before the issuance of its decision remand the claim to the district office for further development without issuing a decision.”   Accordingly, FAB remands this case to the Denver district office of DEEOIC so it can ask the DMC who conducted [Employee]‘s impairment rating to provide the percentage of impairment for the entire permanent loss of his lung function, without any apportionment.  Following its receipt of this clarification, a new recommended decision should be issued on this claim for impairment benefits under Part E.  If the DMC is unable to provide this clarification, then the case should be referred to another DMC for a proper impairment evaluation.  

Denver, Colorado

Paula Breitling

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10015379-2006 (Dep’t of Labor, March 16, 2006)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for medical benefits and impairment under Part E of the Act for chronic beryllium disease is accepted.

STATEMENT OF THE CASE

On July 31, 2001, you filed Form EE-1, Claim for Benefits under the Energy Employees Occupational Illness Compensation Program Act.  You claimed you were diagnosed with beryllium sensitivity on April 16, 1992, and you were employed at a Department of Energy facility.  On September 26, 2001, you filed Form EE-1 claiming that you were diagnosed with chronic beryllium disease on August 21, 2001.

On Form EE-3, Employment History, you indicated you were employed in several positions at the Rocky Flats Plant in Golden, Colorado from June 30, 1969 until October 22, 1993.[1]  The Department of Energy (DOE) confirmed that you were employed at Rocky Flats as reported.

Peripheral blood lymphocyte transformation tests dated April, May, and June 1992, revealed abnormal responses to beryllium sulfate.  A fiberoptic bronchoscopy with transbronchial biopsy was performed on July 12, 2001, and the resulting bronchoalveolar lavage lymphocyte transformation test revealed an abnormal response to beryllium sulfate.  Lee S. Newman, M.D. in his report dated September 17, 2001, explained that the bronchoalveolar lavage lymphocyte proliferation test showed lymphocytosis at 65% consistent with chronic beryllium disease.

On March 21, 2002, the Final Adjudication Branch issued a final decision which concluded that you were a covered beryllium employee under Part B of EEOICPA and you were awarded compensation in the amount of $150,000.00, and medical benefits for the treatment of your chronic beryllium disease.

By letter dated September 23, 2004, the Department of Energy (DOE) notified you of a positive determination for chronic beryllium disease and beryllium sensitivity from a Physicians Panel as a result of the Part D claim you filed with the DOE.  You were also advised of the procedure to follow if you wished to file for state workers’ compensation benefits.  On April 7, 2005, you were notified by the Department of Labor (DOL) that your Part D claim had been transferred to the DOL to develop the claim under Part E of the Act. You subsequently indicated that you wished to establish an impairment rating under Part E of the Act.

E. Brigitte Gottschall, M.D., in her medical report dated January 4, 2006, assigned an impairment rating of 10% of the whole person based on Table 5-12, Page 107 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th Edition) for the employee’s chronic beryllium disease based on pulmonary function and exercise tolerance tests; the need for daily treatment of his CBD with Advair; and multiple symptoms including shortness of breath with daily activities such as walking.  Kathryn L. Mueller, M.D., who is certified by the American Board of Independent Medical Examiners (ABIME), reviewed and concurred with Dr. Gottschall’s evaluation and impairment rating.

In your letter dated March 1, 2006, you stated that you did not wish to pursue a claim for wage-loss.

On March 7, 2006, the Denver district office issued a recommended decision concluding that you are a covered beryllium employee who contracted chronic beryllium disease due to your exposure to a toxic substance related to your employment at a DOE facility with impairment rating established to represent the percent of permanent impairment compensable due to a toxic substance exposure while employed at a DOE facility, and that you are entitled to impairment compensation of $25,000 ($2,500 x 10 = $25,000).

After considering the record of the claim forwarded by the district office, the Final Adjudication Branch makes the following:

FINDINGS OF FACT

  1. You filed a claim for benefits under Part B of EEOICPA on July 31, 2001.
  1. You were diagnosed with chronic beryllium disease on July 12, 2001.
  1. You were employed at the Rocky Flats Plant from June 30, 1969 until October 22, 1993.  Throughout the course of its operations, the potential for beryllium exposure existed at the Rocky Flats Plant, due to beryllium use, residual contamination, and decontamination activities.
  1. On March 21, 2002, the FAB issued a final decision finding that you were a covered beryllium employee and you were awarded compensation benefits pursuant to Part B of EEOICPA.
  1. You filed a claim with the Department of Energy under the former Part D program.
  1. You contracted chronic beryllium disease through exposure to a toxic substance, at a DOE facility site, which resulted in permanent impairment. 
  1. You have a 10% whole body impairment due to your chronic beryllium disease as evidenced by abnormalities on pulmonary function and exercise tolerance tests, associated shortness of breath with daily living activities, and daily treatment of your disease with Advair resulting in an impairment compensation totaling $25,000.
  1. The evidence of record also contains your signed statement that you have not filed for or received any tort settlements or received any state workers’ compensation benefits for the claimed condition of chronic beryllium disease. 

Based on the above noted findings of fact in this claim, the FAB hereby also makes the following: 

CONCLUSIONS OF LAW

Pursuant to the regulations implementing EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch.  20 C.F.R. § 30.310(a).  If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

Section 30.316(a) of those regulations further states, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB will issue a decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. § 30.316(a).  On March 9, 2006, the FAB received written notification from you waiving any and all objections to the recommended decision. 

Pursuant to § 7385s-4(a) of EEOICPA,  “A determination under Part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a Department of Energy facility.”  42 U.S.C. § 7385s-4(a).  You received an award for compensation under Part B for chronic beryllium disease; therefore it is determined that you are a covered DOE contractor employee who contracted chronic beryllium disease through exposure at a DOE facility. 

You have a minimum impairment rating of 10 percentage points determined in accordance with the AMA’s Guides to the Evaluation of Permanent Impairment, pursuant to 42 U.S.C. § 7385s-2(a)(1) and 20 C.F.R. § 30.901.  Your gross compensation amount for that impairment rating is $2500 multiplied by 10, or $25,000, pursuant to 42 U.S.C. § 7385s-2(a)(1); 20 C.F.R. § 30.902. 

You are entitled to medical benefits for chronic beryllium disease effective July 31, 2001, pursuant to 42 U.S.C. § 7385s-8 of the Act.

It is the decision of the Final Adjudication Branch that your claim for impairment and medical benefits for chronic beryllium disease is accepted.

Denver, Colorado

Anna Navarro

Hearing Representative

[1]  According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Rocky Flats Plant is a designated Department of Energy (DOE) facility from 1951 to the present.  

Filing for increase in impairment

EEOICPA Fin. Dec. No. 10013332-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim for additional impairment benefits is accepted under Part E of EEOICPA.

STATEMENT OF THE CASE

On May 20, 2003, the employee filed Form EE-1 with the Department of Labor, claiming benefits under Part B of EEOICPA, and also a request for assistance under former Part D of EEOICPA with the Department of Energy (DOE), for the condition of lung cancer.  Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E.  Because of this, DEEOIC proceeded to adjudicate the employee’s Part D claim under Part E and on August 31, 2007, the FAB issued a final decision awarding the employee impairment benefits for a 10% whole-body impairment due to his “covered illness” of lung cancer.

On December 13, 2007, the employee filed another Form EE-1, claiming additional benefits under Part E for the illness of asbestosis.  On February 1, 2008, the FAB issued a final decision finding that he was diagnosed with the covered illness of asbestosis on November 2, 2007, and concluding that he was a DOE contractor employee entitled to medical benefits for the accepted illness of asbestosis under Part E of the Act.

On February 5, 2008, the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) received the employee’s request for increased impairment benefits based on his additional covered illness of asbestosis.  The employee elected to have Dr. Ronald R. Cherry, of Sweetwater Hospital Association in Sweetwater, Tennessee, rate his impairment.[1]  In a February 27, 2008 impairment evaluation, Dr. Cherry determined, using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Table 5-12, that the employee had reached maximum medical improvement and that he had a whole-body impairment of 37% based on his covered illnesses of both lung cancer and asbestosis. 

On March 4, 2008, the Jacksonville district office of DEEOIC issued a recommended decision finding that the employee’s whole-body impairment of 37% for both asbestosis and lung cancer, less the previously paid impairment benefits of 10% for lung cancer, yielded a net increased whole-body impairment of 27%.  Accordingly, the district office recommended that the employee be awarded a lump-sum of $67,500.00 for his additional 27 percentage points of whole-body impairment. 

On March 10, 2008, the FAB received the employee’s statement waiving the right to object to the recommended decision.   Accordingly, the undersigned hereby makes the following:

FINDINGS OF FACT

  1. On May 20, 2003, the employee filed a claim under former Part D of EEOICPA for lung cancer and under Part E on December 13, 2007 for asbestosis.
  1. On August 31, 2007, the FAB issued a final decision awarding the employee benefits under Part E of a 10% whole-body impairment due to lung cancer.
  1. On October 18, 2007, the FAB issued a final decision concluding that the employee was also entitled to Part E benefits for the additional covered illness of asbestosis.
  1. The employee’s whole-body impairment rating for lung cancer and asbestosis is 37%.

Based on the above-noted findings of fact, the undersigned hereby makes the following conclusions of law:

CONCLUSIONS OF LAW

The implementing regulations state that if a claimant “waives any objections to all or part of the recommended decision, the FAB may issue a decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. § 30.316(a).

Because the employee has a whole-body impairment due to the covered illnesses of lung cancer and asbestosis, he is eligible for impairment benefits under Part E of the Act.  20 C.F.R. § 30.900(b).  The employee’s whole-body impairment rating of 37% for asbestosis and lung cancer, less the previously paid 10% whole-body impairment for lung cancer alone, yields a remaining balance of 27% whole-body impairment.  Therefore, the employee is entitled to payment of an additional $67,500.00.  This amount represents the remaining balance for both conditions of 27% whole-body impairment ($2,500.00 multiplied by 27 percentage points of impairment).

Jacksonville, FL

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch

[1]  Dr. Cherry submitted copies of certificates showing that he is licensed to practice as a medical doctor in the State of Tennessee, that he is Board-certified in internal medicine and in the subspecialty of pulmonary disease.  He also submitted a statement that is sufficient to satisfy DEEOIC’s criteria of knowledge and experience in the use of the Guides, as well as work experience in performing impairment ratings.  Therefore, Dr. Cherry is qualified to perform the employee’s impairment evaluation.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.3(2) (February 2006).

EEOICPA Fin. Dec. No. 10013332-2007 (Dep’t of Labor, April 7, 2008)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the employee’s claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the claim for additional impairment benefits is accepted under Part E of EEOICPA.

STATEMENT OF THE CASE

On May 20, 2003, the employee filed Form EE-1 with the Department of Labor, claiming benefits under Part B of EEOICPA, and also a request for assistance under former Part D of EEOICPA with the Department of Energy (DOE), for the condition of lung cancer.  Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E.  Because of this, DEEOIC proceeded to adjudicate the employee’s Part D claim under Part E and on August 31, 2007, the FAB issued a final decision awarding the employee impairment benefits for a 10% whole-body impairment due to his “covered illness” of lung cancer.

On December 13, 2007, the employee filed another Form EE-1, claiming additional benefits under Part E for the illness of asbestosis.  On February 1, 2008, the FAB issued a final decision finding that he was diagnosed with the covered illness of asbestosis on November 2, 2007, and concluding that he was a DOE contractor employee entitled to medical benefits for the accepted illness of asbestosis under Part E of the Act.

On February 5, 2008, the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) received the employee’s request for increased impairment benefits based on his additional covered illness of asbestosis.  The employee elected to have Dr. Ronald R. Cherry, of Sweetwater Hospital Association in Sweetwater, Tennessee, rate his impairment.[1]  In a February 27, 2008 impairment evaluation, Dr. Cherry determined, using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Table 5-12, that the employee had reached maximum medical improvement and that he had a whole-body impairment of 37% based on his covered illnesses of both lung cancer and asbestosis. 

On March 4, 2008, the Jacksonville district office of DEEOIC issued a recommended decision finding that the employee’s whole-body impairment of 37% for both asbestosis and lung cancer, less the previously paid impairment benefits of 10% for lung cancer, yielded a net increased whole-body impairment of 27%.  Accordingly, the district office recommended that the employee be awarded a lump-sum of $67,500.00 for his additional 27 percentage points of whole-body impairment. 

On March 10, 2008, the FAB received the employee’s statement waiving the right to object to the recommended decision.   Accordingly, the undersigned hereby makes the following:

FINDINGS OF FACT

  1. On May 20, 2003, the employee filed a claim under former Part D of EEOICPA for lung cancer and under Part E on December 13, 2007 for asbestosis.
  1. On August 31, 2007, the FAB issued a final decision awarding the employee benefits under Part E of a 10% whole-body impairment due to lung cancer.
  1. On October 18, 2007, the FAB issued a final decision concluding that the employee was also entitled to Part E benefits for the additional covered illness of asbestosis.
  1. The employee’s whole-body impairment rating for lung cancer and asbestosis is 37%.

Based on the above-noted findings of fact, the undersigned hereby makes the following conclusions of law:

CONCLUSIONS OF LAW

The implementing regulations state that if a claimant “waives any objections to all or part of the recommended decision, the FAB may issue a decision accepting the recommendation of the district office, either in whole or in part.”  20 C.F.R. § 30.316(a).

Because the employee has a whole-body impairment due to the covered illnesses of lung cancer and asbestosis, he is eligible for impairment benefits under Part E of the Act.  20 C.F.R. § 30.900(b).  The employee’s whole-body impairment rating of 37% for asbestosis and lung cancer, less the previously paid 10% whole-body impairment for lung cancer alone, yields a remaining balance of 27% whole-body impairment.  Therefore, the employee is entitled to payment of an additional $67,500.00.  This amount represents the remaining balance for both conditions of 27% whole-body impairment ($2,500.00 multiplied by 27 percentage points of impairment).

Jacksonville, FL

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch

[1]  Dr. Cherry submitted copies of certificates showing that he is licensed to practice as a medical doctor in the State of Tennessee, that he is Board-certified in internal medicine and in the subspecialty of pulmonary disease.  He also submitted a statement that is sufficient to satisfy DEEOIC’s criteria of knowledge and experience in the use of the Guides, as well as work experience in performing impairment ratings.  Therefore, Dr. Cherry is qualified to perform the employee’s impairment evaluation.  See Federal (EEOICPA) Procedure Manual, Chapter E-900.3(2) (February 2006).