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Payment of Monetary 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 “Payment of Monetary Benefits.”

A very large (1314 pages, 4.5 MB), searchable pdf file of all of the Final Decisions of the Final Adjudication Branch (FAB) for all categories can be downloaded here. (right-click and “Save Link As” to download to your computer).

We hope these decisions are helpful.  Please add your experiences in the comments section.

Payment of Monetary Benefits

Beryllium sensitivity

EEOICPA Fin. Dec. No. 58229-2004 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the Final Adjudication Branch accepts and approves your claim for beryllium sensitivity.

STATEMENT OF THE CASE

On June 7, 2004, you submitted Form EE-1, Claim for Employee Benefits under the EEOICPA, based on beryllium sensitivity.  You also submitted Form EE-3, Employment History for Claim under the EEOICPA, based on your employment at the Nevada Test Site (NTS), indicating you worked for EG&G from 1990 to 1991. 

A representative of the Department of Energy (DOE) verified your employment at NTS from September 17, 1990 to November 4, 1991.  NTS is recognized as a covered Department of Energy (DOE) facility from 1951 to the present.  Throughout the course of its operations, the potential for beryllium exposure existed at NTS, due to beryllium use, residual contamination, and decontamination activities.  See DOE, Office of Worker Advocacy, Facility List. 

You submitted the results of an abnormal beryllium lymphocyte proliferation test performed by National Jewish Medical and Research Center, dated March 27, 2004, which confirms your sensitivity to beryllium. 

On August 11, 2004, the Seattle district office issued a recommended decision concluding that you are a covered beryllium employee, as defined in § 7384l(7) of the EEOICPA, who has been diagnosed with beryllium sensitivity, a covered occupational illness as defined by § 7384l(8)(A) of the Act.  See 42 U.S.C. § 7384l(7), (8)(A).  The recommended decision also concluded that, pursuant to § 7384s(c) of the EEOICPA, you are entitled to medical benefits for the treatment and monitoring of beryllium sensitivity retroactive to June 7, 2004.  See 42 U.S.C. § 7384s(c)(1) and (2), 20 C.F.R. §§ 30.506, 30.507.

On September 7, 2004, the Final Adjudication Branch received written notification that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

1.  You filed a claim for employee benefits on June 7, 2004.  

2.  You were employed at NTS, a covered DOE site, from September 17, 1990 to November 4, 1991.

3.  You are a covered beryllium employee who was present at NTS during a period when beryllium dust, particles or vapor may have been present.

4.  You were diagnosed with beryllium sensitivity on March 27, 2004.

5.  The onset of beryllium sensitivity occurred after your initial exposure to beryllium during a period of covered employment.

CONCLUSIONS OF LAW

In order to be afforded coverage as a “covered beryllium employee,” you must show that you sustained occupational exposure to beryllium while employed at a DOE facility, or under certain circumstances, while present at a DOE facility or a facility owned, operated, or occupied by a beryllium vendor, during a period when beryllium dust, particles or vapor may have been present at such a facility.  See 42 U.S.C. §§ 7384l(7) and 7384n(a)(1).

In addition, under § 7384l(8) of the Act, the covered beryllium employee must have medical evidence to show a diagnosis of beryllium sensitivity using an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.  See 42 U.S.C. § 7384l(8); 20 C.F.R. § 30.205(b). 

Based on your employment with a DOE contractor or subcontractor at NTS, you are a covered beryllium employee and, in the absence of substantial evidence to the contrary, you are determined to have been exposed to beryllium in the performance of duty.  See 42 U.S.C. §§ 7384l(7), 7384n.

You provided the results of a lymphocyte proliferation test conducted on March 27, 2004 showing that you have an abnormal lymphocyte transformation to beryllium sulfate.  Therefore, you have a covered beryllium illness as defined in § 7384l(8)(A) of the EEOICPA.  See 42 U.S.C. § 7684l(8)(A).

For the foregoing reasons, the undersigned hereby accepts your claim for beryllium sensitivity.  You are a covered beryllium employee as defined in § 7384l(7) of the EEOICPA, diagnosed as having beryllium sensitivity, which is a covered occupational illness as defined by § 7384l(8)(A) of the Act.  See 42 U.S.C. § 7384l(7), (8)(A).

The EEOICPA provides that a covered employee shall receive, in the case of beryllium sensitivity:

(1)   A thorough medical examination to confirm the nature and extent of the individual’s established beryllium sensitivity.

(2)   Regular medical examinations thereafter to determine whether that individual has developed established chronic beryllium disease.

See 42 U.S.C. § 7384s(c)(1) and (2). 

No monetary compensation is available for beryllium sensitivity.  See 42 U.S.C. § 7384s(a)(2).  At this time, you are not entitled to any lump sum payment provided under the Act.  See 20 C.F.R. §§ 30.506, 30.507 and 30.508.  

The record indicates that you filed your claim for beryllium sensitivity on June 7, 2004.  The date your claim was filed is the date you became eligible for beryllium sensitivity monitoring, as well as medical benefits for the treatment of beryllium sensitivity.  See 42 U.S.C. § 7384t(d).  Therefore, you are entitled to medical monitoring benefits retroactive to June 7, 2004.

Seattle, Washington

James T. Carender

Hearing Representative, Final Adjudication Branch

Death of awardee

EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)

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 stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted.  No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation. 

STATEMENT OF THE CASE

On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer.  On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA.  On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma. 

On August 2, 2005, FAB issued a final decision accepting [Employee]‘s claim for compensation under Part B for skin cancer.  On January 29, 2007, FAB also issued a final decision accepting [Employee]‘s claim under Part E for skin cancer, and under Parts B and E for lymphoma.  On August 29, 2007, FAB issued a final decision denying [Employee]‘s claim under Part E for his hearing loss.  On December 27, 2007, FAB issued a final decision to accept [Employee]‘s claim under Part E for chronic obstructive pulmonary disease (COPD).  As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985. 

On August 14, 2008, FAB issued a final decision accepting [Employee]‘s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00.  On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee].  Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed  [Claimant] as his attorney-in-fact.  On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]‘s behalf.

On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant]

On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee].  She also submitted a copy of [Employee]‘s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse.  The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.

Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]‘s savings account via electronic funds transfer to the United States Treasury.  There is no record indicating that these funds have been returned to the Treasury.  On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death.  On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.” 

On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]‘s surviving spouse.  The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed.  Accordingly, the district office concluded that survivor benefits were not payable. 

OBJECTIONS

On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010.  The representative argued that the adjudication of [Employee]‘s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]‘s death.  The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits.  (Exhibit 1).  He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due.  The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived. 

Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT

  1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]‘s claim under Part E for skin cancer and lymphoma, and for COPD.  In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.
  1. [Employee] died on August 11, 2008 as a result of lymphoma.  
  1. On August 14, 2008, FAB issued a final decision accepting [Employee]‘s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00  
  1. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
  1. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].
  1. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.

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

CONCLUSIONS OF LAW

Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes:  (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee.  42 U.S.C. § 7385s-3. 

As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility.  Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death.  Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1). 

The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid.   42 U.S.C. § 7385s-1(2)(b).  The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment.  No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.”  20 C.F.R. § 30.505(c) (2009).  

EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.”  Federal (EEOICPA) Procedure Manual, Chapter 3-0800.  The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments.

In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]‘s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E.  As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled.  Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.

Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation. 

Cleveland, OH

Greg Knapp

Hearing Representative

Final Adjudication Branch

Exclusiveness of remedy

EEOICPA Fin. Dec. No. 2597-2002 (Dep’t of Labor, July 8, 2003)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

On June 6, 2003, the Jacksonville district office issued a decision recommending that you are entitled to medical benefits effective April 28, 2003 for colon cancer.

The district office referred the claims for skin cancer and cancer of the pyriform sinus to the National Institute for Occupational Safety and Health (NIOSH).  However, the pyriform sinus is part of the hypo pharynx.  EEOICPA Bulletin No. 02-28, Effective September 5, 2002, further defines that the hypo pharynx is one of three parts of the pharynx.  The pharynx is a Special Exposure Cohort (SEC) cancer as defined in § 7384l(17)(A) of the Act, and § 30.5(dd)(5)(iii)(E) of the implementing regulations.  42 U.S.C. § 7384l(17)(A), 20 C.F.R. § 30.5(dd)(5)(iii)(E).  Therefore, I find that [Employee] has cancer of the pharynx, and is entitled to medical benefits for the treatment of pharynx cancer.  As the pyriform sinus (pharynx cancer) is an SEC cancer, there is no need for dose reconstruction by NIOSH.  The condition of skin cancer remains for dose reconstruction at NIOSH.

On June 16, 2003, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.  I have reviewed the record on this claim and the recommended decision issued by the district office on June 6, 2003.  I find that you are a member of the Special Exposure Cohort, as that term is defined in § 7384l(14)(A) of the Act; and that your colon cancer and pharynx (pyriform sinus) cancer are specified cancers under § 7384l(17)(A) of the Act and §§ 30.5(dd)(5)(iii)(M) and (E) of the implementing regulations.  42 U.S.C. §§ 7384l(14)(A), 7384l(17)(A), 20 C.F.R. §§ 30.5(dd)(5)(iii)(M), 30.5(dd)(5)(iii)(E).

A claimant is entitled to compensation one time in the amount of $150,000 for a disability from a covered occupational illness.  Since you were previously awarded $150,000 for lung cancer, this decision is for medical benefits only.  I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to medical benefits effective April 28, 2003 for colon cancer, and effective August 9, 2001 for pharynx cancer (pyriform sinus), pursuant to § 7384t of the Act.  42 U.S.C. § 7384t.

Jacksonville, FL

July 8, 2003

Jeana F. LaRock

District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 53272-2004 (Dep’t of Labor, March 31, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjubudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE

On June 27, 2002, the Final Adjudication Branch issued a Final Decision concluding that [Employee] (the employee) was a covered employee with chronic silicosis as defined in § 7384r of the Act (and therefore entitled to compensation in the amount of $150,000), and that he was entitled to medical benefits related to chronic silicosis retroactive to September 17, 2001, pursuant to § 7384t of the Act.  See 42 U.S.C. § 7384t.  Payment of compensation was processed on July 25, 2002.  The Final Adjudication Branch also denied the employee’s claims based on chronic beryllium disease and asbestosis.  

On January 20, 2004, you filed a Form EE-2 (Claim for Survivor Benefits Under EEOICPA) seeking compensation as the spouse of the employee. 

On March 11, 2004, the Seattle district office recommended denial of your claim for benefits.  The district office concluded that the employee’s acceptance of compensation in the amount of $150,000 pursuant to § 7384s(a)(1) of the Act, was in full satisfaction of all claims of or on behalf of the employee against the United States, a Department of Energy contractor or subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in § 7385 of the Act.  See 42 U.S.C. §§ 7384s(a)(1), 7385b. 

On March 29, 2004, the Final Adjudication Branch received written notification from you indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT

1.  On September 17, 2001, the employee filed a claim for benefits under the EEOICPA based, in part, on the condition of chronic silicosis. 

2.  On June 27, 2002, the Final Adjudication Branch accepted the employee’s claim for chronic silicosis, and determined that he was entitled to compensation in the amount of $150,000 and medical benefits related to the treatment of chronic silicosis retroactive to September 17, 2001.

3.      Payment of compensation in the amount of $150,000 was tendered on July 25, 2002. 

4.  On January 20, 2004, you filed a claim for survivor benefits.

CONCLUSIONS OF LAW

Section 7384s(a)(1) of the Act specifically provides that “[A] covered employee, or the survivor of that covered employee if the employee is deceased, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.”  See 42 U.S.C. § 7384s(a)(1).  The record in this case shows that, on July 25, 2002, the employee was issued compensation in the amount of $150,000 based on his diagnosis of chronic silicosis, a covered occupational illness under the Act. 

Further § 7385b provides that the one-time payment under the Act is a full settlement of an EEOICPA claim: 

The acceptance by an individual of payment of compensation under Part B of this subchapter with respect to a covered employee shall be in full satisfaction of all claims of or on behalf of that individual against the United States, against a Department of Energy contractor of subcontractor, beryllium vendor or atomic weapons employer, or against any person with respect to that person’s performance of a contract with the United States, that arise out of an exposure referred to in section 7385 of this title. 

42 U.S.C. § 7385b. 

Since you are claiming eligibility as the surviving spouse of an employee who previously received $150,000 under the EEOICPA, no additional compensation is available to you.  Therefore, your claim must be denied.

For the above reasons, the Final Adjudication Branch concludes that the evidence of record does not allow compensation under the Act.  Accordingly, your claim for benefits is denied.

Seattle, Washington

Julie L. Salas

Hearing Representative, Final Adjudication Branch

Forfeiture of entitlement to

EEOICPA Fin. Dec. No. 105159-2010 (Dep’t of Labor, March 19, 2010)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims 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, FAB approves the claims of [Claimant #2] and [Claimant #3] under Part B of EEOICPA, and they are each awarded compensation in the amount of $75,000.00.  [Claimant #1]‘s claim under Part B is denied.

STATEMENT OF THE CASE

On November 8, 2002, [Employee’s wife] filed a Form EE-2 claiming survivor benefits under EEOICPA for both the employee’s death and his lung cancer and chronic obstructive pulmonary disease (COPD).  By final decision dated May 12, 2009, FAB accepted her Part E claim for the employee’s death due to COPD, and she was awarded $125,000.00.  [Employee’s spouse] died on July 1, 2009, and her pending Part B claim was administratively closed.

On August 12, 2009, [Claimant #1] filed a Form EE-2 claiming benefits based on the condition of lung cancer with metastasis to the adrenal gland.  On September 9, 2009, [Claimant #2] and [Claimant #3] filed Forms EE-2 claiming benefits based on the same condition.  A Department of Energy (DOE) representative verified [Employee]s employment at the site, a DOE facility, by J.A. Jones, a DOE contractor, from January 20, 1981 to June 10, 1981.  Dosimetry records verified additional employment by J.A. Jones intermittently from June 11, 1981 to December 4, 1986, and by H.B. Painters, another DOE contractor, from January 18, 1983 to January 19, 1983, and from January 25, 1988 to December 14, 1988.  The site is a DOE facility from 1942 to present.[1]  The medical evidence submitted in support of the claim includes a cytology report dated March 11, 1997, which diagnosed small cell carcinoma (lung cancer).  Finally, [Claimant #1], [Claimant #2] and [Claimant #3] each submitted birth certificates which verify that [Employee] is their father.

To determine the probability of whether [Employee] contracted lung cancer in the performance of duty, the Seattle district office had referred the case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in connection with the claim filed by [Employee’s wife].  On July 2, 2009, the district office received the NIOSH report, and using the dose information provided in this report, the district office utilized the NIOSH-Interactive RadioEpidemiological Program (NIOSH-IREP) to calculate a 57.57% probability that [Employee]‘s lung cancer was related to radiation exposure at the Hanford site.

On September 9, 2009, the district office received a letter from [Claimant #1], in which she stated that on August 2, 1999 she entered a guilty plea regarding charges of having made false statements to obtain federal workers’ compensation.  On December 18 and 19, 2009, the district office received signed letters in which [Claimant #2] and [Claimant #3] each affirmed that they never filed for or received any settlement or award from a tort suit related to the employee’s lung cancer, they never pled guilty to or were convicted on any charges connected with an application for or receipt of federal or state workers’ compensation, and have never filed for or received any payments, awards or benefits from a state workers’ compensation claim.  

On January 28, 2010, the Seattle district office issued a recommended decision to accept the claims of [Claimant #2] and [Claimant #3] for compensation under Part B, based on lung cancer, concluding that [Employee] was a covered employee with cancer, that the NIOSH dose estimates were completed in accordance with EEOICPA and its implementing regulations, and as he was a covered employee who is now deceased, his survivors are entitled to compensation in the amount of $150,000.00.  The district office determined that [Claimant #2] and [Claimant #3] are [Employee]‘s only eligible survivors, however, because [Claimant #1]‘s entitlement under EEOICPA is forfeited, based on 42 U.S.C. § 7385i, and the district office recommended denial of her claim.  The district office determined that [Claimant #2] and [Claimant #3] are entitled to compensation in the amount of $50,000.00 each.

On February 1, 2010, FAB received written notification from [Claimant #2] and [Claimant #3] indicating they waive all rights to file objections to the findings of fact and conclusions of law contained in the recommended decision.  On February 17, 2010, FAB received notification from [Claimant #1] who affirmed the same.

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

FINDINGS OF FACT

1.      On August 12, 2009, [Claimant #1] filed a claim under Part B, and on September 9, 2009, [Claimant #2] and [Claimant #3] also filed claims.

2.      [Employee] was employed at the site, a DOE facility, by DOE contractors, from January 20, 1981 to December 4, 1986, from January 18, 1983 to January 19, 1983, and from January 25, 1988 to December 14, 1988.

3.      [Employee] was diagnosed with lung cancer on March 11, 1997.

4.      The NIOSH-IREP calculated a 57.57% probability that [Employee]‘s lung cancer was caused by radiation exposure at the site.

5.      [Claimant #2] and [Claimant #3] affirmed they never filed for or received any settlement or award from a tort suit in relation to lung cancer, have never pled guilty to or been convicted on any charges connected with an application for or receipt of federal or state workers’ compensation, and have never filed for or received any payments, awards or benefits from a state workers’ compensation claim.

6.      [Claimant #2] and [Claimant #3] are [Employee]‘s eligible survivors.

7.      [Claimant #1] is not entitled to compensation under Part B due to a guilty plea to making false statements to obtain federal workers’ compensation.

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

CONCLUSIONS OF LAW

The regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category.  Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true.  Subject to the exceptions expressly provided in the statute and regulations, the claimant also bears the burden of providing to the Office of Workers’ Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations.  20 C.F.R. §§ 30.110, 30.111(a) (2009).

In order to be afforded coverage under Part B, the claimants must establish that [Employee] was diagnosed with an occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation:  cancer, beryllium sensitivity, chronic beryllium disease, and/or silicosis.  Furthermore, the illness must have been incurred while in the performance of duty for DOE or certain of its vendors, contractors, subcontractors, or for an atomic weapons employer.

As found above, the evidence of record verifies that [Employee] was employed at the site, a DOE facility, by DOE contractors, and that he was diagnosed with lung cancer on March 11, 1997.  FAB utilized NIOSH-IREP to confirm a 57.57% probability that [Employee]‘s lung cancer was caused by radiation exposure while employed at the site.  Therefore, he is a “covered employee with cancer” and as he would be entitled to compensation but is now deceased, his survivors are entitled to compensation in the amount of $150,000.00.  42 U.S.C. § 7384s(a)(1).

[Claimant #2] and [Claimant #3] are [Employee]‘s eligible surviving children as defined by 42 U.S.C. § 7384s(e)(3)(B).  However, pursuant to 42 U.S.C. § 7385i, any individual convicted of a violation of any federal or state criminal statute relating to fraud in either the application for or the receipt of benefits under any federal or state workers’ compensation law shall forfeit any entitlement to benefits under EEOICPA.  [Claimant #1] entered a guilty plea regarding charges of having made false statements to obtain federal workers’ compensation.  Accordingly, [Claimant #1]‘s claim under Part B is denied.  Though the district office determined that [Claimant #2] and [Claimant #3] are each entitled to compensation under Part B in the amount of $50,000.00, they are both awarded compensation in the amount of $75,000.00.

Seattle,

Aaron M. Warren

Hearing Representative

Final Adjudication Branch

 

[1] See DOE’s web listing at:  http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm (retrieved March 19, 2010).

Increase over basic survivor benefit amount payable under Part E

EEOICPA Fin. Dec. No. 3831-2005 (Dep’t of Labor, August 10, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch 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 set forth below, the Final Adjudication Branch accepts and approves your claim for compensation. 

STATEMENT OF THE CASE

On August 16, 2001, you ([Claimant #1/Employee’s Spouse] and [Claimant #2]) filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA), based on the employee’s condition of acute myelomonocytic leukemia.  Also, on January 26, 2005, you (Employee’s Spouse) filed a Form DOE F 350.3 (Claim Under EEOICPA, Part D-DOE State Workers’ Compensation Assistance Program), as the surviving spouse of the employee, based on the condition of acute myelomonocytic leukemia.  Your claim form is considered an application for survivor compensation under Part E, 42 U.S.C. § 7385s, as a covered spouse of the employee.

Also submitted was a Form EE-3 (Employment History) indicating that the employee worked at the Los Alamos National Laboratory from February 24, 1959 to December 1, 1975, and at the Hanford site from December 8, 1975 to May, 1981.  A representative of the Department of Energy (DOE) verified that the employee was employed by the University of California, a DOE contractor, at the Los Alamos National Laboratory from February 24, 1959 to December 1, 1975; and by Vitro Engineering Corp. and Exxon Nuclear, DOE contractors, at the Hanford site from December 8, 1975 to May 1, 1981.

Medical documentation was submitted including a pathology report dated May 1, 1982, which indicated a diagnosis of acute myelomonocytic leukemia.  

The record includes a copy of a marriage certificate showing [Employee’s Spouse] and the employee were married on December 18, 1968, and a copy of [Employee’s] death certificate showing they were married at the time of his death on December 10, 1982.  The death certificate listed his cause of death as pseudomonas pneumonia due to chemotherapy-induced neutropenia as a consequence of acute myelomonocytic leukemia (AMML).

You ([Claimant #2]) submitted a copy of your birth certificate, dated March 4, 1973, showing that [Employee] was your father.  You also submitted a marriage certificate documenting your most recent last name change to [Claimant #2’s new surname]

To determine the probability of whether [Employee] sustained acute myelomonocytic leukemia in the performance of duty, the Seattle district office referred your case to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with § 30.115 of the EEOICPA  regulations.  See 20 C.F.R. § 30.115.  The district office received the final NIOSH Report of Dose Reconstruction dated May 6, 2005.  See 42 U.S.C. § 7384n(d).  The radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction.  NIOSH determined that the internal dose was of sufficient magnitude to consider the dose reconstruction complete.  That is, the calculated dose produced a probability of causation of 50% or greater.  The doses reported are an “underestimate” of the employee’s total occupational radiation dose.  NIOSH Report of Dose Reconstruction, p. 4.

Using the information provided in this report, the Seattle district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of the employee’s cancer and reported in its recommended decision that there was an 89.18% probability that [Employee’s] cancer was caused by his radiation exposure at the Los Alamos National Laboratory.

The evidence of record includes a letter dated June 17, 2005, in which you ([Employee’s Spouse]) indicated that neither you nor your spouse had filed a lawsuit or received state workers’ compensation based on the claimed conditions.  Further you indicated that you and your spouse had no minor children or children incapable of self-support, who were not your natural or adopted children, at the time of his death.  

On July 12, 2005, the Seattle district office issued a recommended decision to accept your claim based on the condition of acute myelomonocytic leukemia and to award you ([Employee’s Spouse]) compensation in the amount of $300,000.00.  The district office concluded that the employee is a covered employee under 42 U.S.C. § 7384l(1)(B); and was a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(B).  Further, the National Institute for Occupational Safety and Health performed dose reconstruction estimates in accordance with 42 U.S.C. § 7384n(d) and 42 C.F.R. § 82.10; and the Department of Labor completed the probability of causation calculation in accordance with 42 U.S.C. § 7384n(c)(3) and 20 C.F.R. § 30.213, which references Subpart E of 42 C.F.R. Part 81.  In addition, the employee is a covered employee under 42 U.S.C. § 7385s(1), and is a covered employee with a covered illness as that term is defined by 42 U.S.C. § 7384s(2).

The district office determined that [Employee’s Spouse] is entitled to compensation in the amount of $150,000.00 per 42 U.S.C. § 7384s(a)(1), as [Employee’s Spouse] is the spouse of the employee per 42 U.S.C. § 7384s(e)(3)(A) and 42 U.S.C. § 7385s-3(d)(1); and [Employee’s Spouse] is entitled to compensation in the amount of $150,000 in accordance with 42 U.S.C. § 7385s-3(a)(1), for a total amount of $300,000.00.  Lastly, the District Office concluded that [Claimant #2] is not entitled to compensation under 42 U.S.C. § 7384 or  42 U.S.C. § 7385s as she is the child of [Employee’s Spouse] and the employee.

On July 19, 2005, the Final Adjudication Branch received written notification from you ([Employee’s Spouse] and [Claimant #2]) indicating that you waive all rights to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision. 

FINDINGS OF FACT

1.         On August 16, 2001, you ([Employee’s Spouse] and [Claimant #2]) filed a claim for survivor benefits with the Department of Labor.

2.         On January 26, 2005, you ([Employee’s Spouse]) filed a claim for survivor benefits with the Department of Energy.

3.         The employee worked for University of California at Los Alamos National Laboratory, a covered DOE facility, from February 24, 1959 to December 1, 1975; and for Vitro Engineering Corp. and Exxon Nuclear at the Hanford facility from December 8, 1975 to May 1, 1981. 

4.         The employee was diagnosed with acute myelomonocytic leukemia on May 1, 1982, after starting work at a DOE facility. 

5.         The NIOSH Interactive RadioEpidemiological Program indicated an 89.18% probability that the employee’s cancer was caused by radiation exposure at the Los Alamos National Laboratory.

6.         The employee’s cancer was at least as likely as not related to his employment at a Department of Energy facility.

7.         You ([Employee’s Spouse]) were married to the employee on December 18, 1968, and you were the employee’s spouse at the time of his death. 

8.         You ([Claimant #2]) are a child of the employee and were an adult at the time of his death.

9.         The death certificate lists the cause of [Employee’s] death as pseudomonas pneumonia due to chemotherapy-induced neutropenia as a consequence of acute myelomonocytic leukemia (AMML).

10.       The evidence of record supports a causal connection between the employee’s death due to lung cancer and his exposure to radiation and/or a toxic substance at a DOE facility. 

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the Final Adjudication Branch may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  You waived your right to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision. 

The Final Adjudication Branch calculated the probability of causation for the employee’s acute myelomonocytic leukemia using the NIOSH IREP software program, confirming that there is an 89.18% probability that the employee’s cancer was caused by radiation exposure while employed at the Los Alamos National Laboratory.  See 42 C.F.R. § 81.20 et seq.  Thus, the evidence shows that the employee’s acute myelomonocytic leukemia was at least as likely as not related to his employment at the Los Alamos National Laboratory.

Under the EEOICPA, eligibility is based on survivorship status.  If an employee is survived by a spouse, children are not eligible under Part B.  See 42 U.S.C. §§ 7384s(e)(1)(A), (3)(A).  Further, if the child is an adult child of the employee at the time of death, the child is not eligible for compensation under Part E.  See 42 U.S.C. § 7385s-3(c).  The evidence of record indicates the employee was survived by a spouse ([Employee’s Spouse]); therefore, [Claimant #2] is not an eligible survivor.

The evidence of record establishes that the employee was diagnosed with acute myelomonocytic leukemia, an “occupational illness” as defined by 42 U.S.C. § 7384l(15).  The employee was a covered employee under 42 U.S.C. § 7384l(1)(B), and was a covered employee with cancer as that term is defined by 42 U.S.C. § 7384l(9)(B).  You ([Employee’s Spouse]) are the employee’s eligible surviving spouse as defined by 42 U.S.C. § 7384s(e)(3)(A) and you are entitled to compensation benefits in the amount of $150,000.00 pursuant to 42 U.S.C. § 7384s(a)(1). 

Further, the evidence of record also establishes that the employee was diagnosed with a “covered illness,” acute myelomonocytic leukemia, as defined by 42 U.S.C. § 7385s(2).  The employee contracted that “covered illness” through exposure to radiation at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The employee was a DOE contractor employee as defined by 42 U.S.C. § 7385s(1).  

The employee had wage-loss for a period of more than 10 calendar years, but less than 20 calendar years.  He passed away at age 49, 16 years prior to his normal retirement age of 65, and there was an aggregate period of not less than 10 years before the employee attained normal retirement age (for purposes of the Social Security Act) that he died, and the employee did not have an annual wage.  You are the employee’s eligible surviving spouse as defined by 42 U.S.C. § 7385s-3(d)(1), and you are entitled to compensation benefits in the amount of $150,000.00 pursuant to 42 U.S.C. § 7385s-3(a)(2) (Category Two).  Accordingly, you are entitled to compensation in the full amount of $300,000.00.

Seattle, Washington,

Rosanne M. Dummer, District Manager

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10036412-2006 (Dep’t of Labor, June 13, 2007)

NOTICE OF FINAL DECISION

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 for compensation filed by [Claimant] is accepted under Part E and she is awarded $125,000.00 plus an additional $25,000.00 in survivor benefits.

STATEMENT OF THE CASE

On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee.  She identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a Department of Energy (DOE) facility.  A representative from DOE verified the employee’s work as a physicist for the University of California at the Lawrence Livermore National Laboratory (LLNL) from September 1, 1955 to July 25, 1988, and that he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.[1]

The evidence of record includes a June 20, 1985 electrocardiogram report in which Dr. Calder Burton diagnosed an anteroseptal myocardial infarction.  It also includes a January 20, 1986 consultation report in which Dr. Rory O’Connor related a history of diabetes mellitus, LLNL medical records with a diagnosis of diabetes mellitus as early as November 4, 1976, and a June 18, 1985 hospital record noting the [Employee] was admitted on June 18, 1985 for diabetes mellitus, angina pectoris and coronary artery disease.

A copy of the employee’s death certificate showed that he died on July 29, 1988 at the age of 54, and that [Claimant] was the employee’s spouse at the time of his death.  A copy of a marriage certificate indicates that [Claimant] and the employee were married on September 1, 1956.  The death certificate, signed by Dr. M.T. McEneny, identified the immediate cause of the employee’s death as myocardial infarction and coronary artery disease.  Based on the employee’s date of birth of March 22, 1934, his normal retirement age under the Social Security Act would have been 65.

On July 26, 2006, FAB issued a final decision and remand order, denying the claim filed by [Employee’s Daughter] on the ground that she was an ineligible survivor and vacating and remanding the decision denying [Claimant]‘s claim under Part E.  FAB directed the district office to further develop the likelihood of the employee’s exposure to carbon disulfide, and further explore the link between his heart conditions and his LLNL employment.

Source documents in the U.S. Department of Labor’s Site Exposure Matrices (SEM) show that carbon disulfide and lead were present at LLNL.  The SEM is a database of occupational categories, the locations where those occupational categories would have performed their duties, a list of process activities at the facility and the locations where those processes occurred, a list of toxic substances and the locations where those toxic substances were located, and a list of medical conditions and the toxic substances associated with those conditions.  SEM did not show a connection between the toxic substances of carbon disulfide and lead and the employee’s heart conditions.

On August 15, 2006, the district office referred the file to a District Medical Consultant (DMC) to determine if the employee’s work history and potential exposure to toxic substances at a DOE facility show that it is “at least as likely as not” that the toxic substances were a significant factor in causing, contributing to, or aggravating his coronary artery disease, myocardial infarction or diabetes mellitus.  In a September 2, 2006 report, the DMC concluded that, pending further information on the employee’s exposure to carbon disulfide, the medical evidence of record did not establish that it was “at least as likely as not” that exposure to toxic substances was a significant factor in causing, contributing to, or aggravating the employee’s coronary artery disease, myocardial infarction or diabetes mellitus.

On October 1, 2006, the district office forwarded a synopsis of the claim to an Industrial Hygienist for an opinion on the parameters of the employee’s exposure to carbon disulfide and lead while he was employed as a physicist at LLNL or while he was present on site at the Nevada Test Site, Salmon Site, Gasbuggy Site and Amchitka Island.  On December 7, 2006, the district office followed up by referring the entire file to the Industrial Hygienist for this purpose.

On November 6, 2006, the district office sent [Claimant] a letter requesting factual or medical evidence which would establish that the employee’s coronary artery disease, myocardial infarction or diabetes mellitus have a known link to exposure to toxic substances.  On December 6, 2006, the district office received her submission of medical studies indicating that exposure to carbon disulfide contributes to atherosclerotic disease.  [Claimant]‘s authorized representative stated that the employee’s job duties as a physicist at LLNL in the 1970s required him to work in the area of a shale oil retort, a process that results in the release of carbon disulfide in excess of the threshold level for exposure.

On February 28, 2007, the district office received a report in which the Industrial Hygienist concluded that the employee’s duties as a physicist did not involve work that would have exposed him to lead.  The Industrial Hygenist noted that LLNL was tasked with researching and developing methods for the extraction (or “retorting”) of oil shale in the 1970s, and that LLNL focused in particular on underground methods of production and extraction.  The Industrial Hygenist determined that the employee’s expertise in the physics of chimney formation, underground chamber formation and stability made it likely that he would have been involved in the gas production research and the shale oil research, both on site and off.  The employee’s exposure to carbon disulfide and other sulfur-containing chemicals would have been low to moderately high during the time he spent operating shale oil retort facilities, and would not have been during major periods of each year.  The primary route for exposure was through inhalation.

On April 4, 2007, the district office forwarded the Industrial Hygenist’s report to the DMC.  On April 12, 2007, the DMC determined that, given the employee’s work history and exposure to carbon disulfides, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction.  The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

On April 27, 2007, the Jacksonville district office issued a recommended decision finding that the employee was employed at a DOE facility by DOE contractors; that the employee’s death was caused by coronary artery disease and myocardial infarction; that the employee’s normal retirement age would have been 65, and that it was “at least as likely as not” that the employee contracted his conditions of coronary artery disease and myocardial infarction through work-related exposure to a toxic substance at a DOE facility under Part E.   The district office also recommended that [Claimant] be awarded $125,000.00 plus an additional $25,000.00 in survivor benefits under Part E of EEOICPA.

On May 14, 2006, FAB received [Claimant]‘s signed waiver of her right to object to any of the findings of fact or conclusions of law contained in the recommended decision.  On the same date, the district office received her signed statement advising that neither she nor the employee had filed any lawsuits or received any settlements or awards in connection with the conditions claimed under EEOICPA, and that neither she nor the employee had ever filed for or received an award of state workers’ compensation for the claimed conditions.

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

FINDINGS OF FACT

  1. On July 1, 2005, [Claimant] filed a claim for survivor benefits under Part E of EEOICPA as the spouse of the employee. 
  1. [Claimant] identified heart bypass surgery and diabetes, Type II, as the conditions resulting from the employee’s work at a DOE facility.
  1. The employee worked as a physicist for the University of California at LLNL from September 1, 1955 to July 25, 1988, and he was also present at the Nevada Test Site, the Salmon Site, the Gasbuggy Site and Amchitka Island.
  1. On June 18 and 20, 1985, the employee was diagnosed with coronary artery disease and a myocardial infarction.  On November 4, 1976, the employee was diagnosed with diabetes mellitus.  These dates are after he began work at a covered DOE facility.
  1. The employee died on July 29, 1988 at the age of 54 and the immediate cause of the employee’s death was coronary artery disease and myocardial infarction.
  1. [Claimant] was married to the employee on September 1, 1956, and she was the employee’s spouse at the time of his death.
  1. On April 12, 2007, a DMC concluded that it was “at least as likely as not” that the employee’s exposures to toxic substances at DOE facilities were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction. 
  1. The DMC also determined that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.
  1. The employee’s normal retirement age would have been 65, based on his birth date of March 22, 1934.  As he died at age 54, the employee died more than ten years but less than 20 years before his normal retirement age.
  1. Neither [Claimant] nor the employee have ever filed a lawsuit or received a payment from a lawsuit, or ever filed for or received any state workers’ compensation benefits for the conditions claimed under EEOICPA.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  [Claimant] has waived her rights to file objections to the findings of fact and conclusions of law in the recommended decision.

Part E of EEOICPA provides compensation and medical benefits to DOE contractor employees determined to have contracted a covered illness through exposure to toxic substances at a DOE facilityThe term “covered illness” means an illness or death resulting from exposure to a toxic substance.  42 U.S.C. § 7385s(2)The employee’s work for the University of California at LLNL from September 1, 1955 to July 25, 1988 establishes that the employee was a DOE contractor employee, as defined by 42 U.S.C. § 7384l(11).

In order to be entitled to benefits under Part E of EEOICPA, [Claimant] must provide medical evidence that establishes a specific diagnosis and the date of that diagnosis.  She must also submit evidence that establishes a reasonable likelihood of [Employee]‘s occupational exposure to a toxic substance at a DOE facility prior to the diagnosis of the claimed condition.  Finally, she must establish that there is a relationship between his exposure to a toxic substance and the claimed medical condition such that it can be concluded that exposure to a toxic substance during employment by a DOE contractor at a DOE facility was “at least as likely as not” a significant factor in aggravating, contributing to, or causing the claimed medical condition.  See 42 U.S.C. § 7385s-4(c), 20 C.F.R. §§ 30.230 to 30.232.

The survivor of a DOE contractor employee will receive $125,000.00 if the employee would have been entitled to compensation under § 7385s-4 for a covered illness, and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee.  42 U.S.C. § 7385s-3(a)(1).

As noted above, the file was submitted to a DMC who gave his opinion that, based on information received from an Industrial Hygenist about the employee’s exposure to carbon disulfide in the course of his employment at a DOE facility, it was “at least as likely as not” that the exposures were a significant factor in causing, contributing to, or aggravating the employee’s claimed conditions of coronary artery disease and myocardial infarction.  The DMC also concluded that there is no known toxic exposure that would be a significant factor in causing, contributing to, or aggravating the employee’s claimed condition of diabetes mellitus.

Based upon the totality of evidence including the employee’s employment history, his medical evidence of record, and the DMC’s report, FAB concludes that the evidence of record establishes that it is “at least as likely as not” that the employee’s occupational exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s myocardial infarction and coronary artery disease.  The evidence of record is not sufficient to establish that it is “at least as likely as not” that the employee’s work exposure to a toxic substance during covered employment was a significant factor in aggravating, contributing to, or causing the employee’s diabetes mellitus.  See 42 U.S.C. § 7385s-4(c)(1).

The evidence of record therefore establishes that the employee was a DOE contractor employee, and that he was diagnosed with coronary artery disease and myocardial infarction, which are both “covered illnesses” as defined by 42 U.S.C. § 7385s(2).  The employee contracted the covered illnesses through exposure to a toxic substance at a DOE facility.  Therefore, he would have been entitled to benefits under § 7385s-4 for a covered illness.  The employee died on January 13, 1993 and the immediate cause of the employee’s death was listed as coronary artery disease and myocardial infarction.  This is sufficient to establish that it is “at least as likely as not” that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the employee’s death.

Eligibility for survivor benefits under Part E is delineated at 42 U.S.C. § 7385s-3(c)(1), which provides that such benefits shall be paid to the “covered spouse,” if alive at the time of payment.  Part E defines a “covered spouse” as a “spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.”  42 U.S.C. § 7385s-3(d)(1).  [Claimant] was married to the employee for at least one year immediately before his death and she is therefore his “covered spouse.”  Therefore, she is entitled to $125,000.00 in basic survivor benefits for the employee’s death due to the covered illnesses of coronary artery disease and myocardial infarction.

Under Part E of EEOICPA, the survivor of a covered employee is eligible to receive additional survivor benefits of $25,000.00 if there was an aggregate period of not less than 10 years before the employee attained his or her normal retirement age, during which as the result of any covered illness contracted by that employee through exposure to a toxic substance at a DOE facility the employee’s annual wage did not exceed 50% of the employee’s average annual wage.  The employee in this case died at age 54.  Under the Social Security Act, the normal retirement age for an employee born on March 22, 1934 is 65.  See Federal (EEOICPA) Procedure Manual, Chapter E-800(3)(d)(September 2005).  Therefore, [Claimant] is entitled to additional survivor benefits of $25,000.00.

Accordingly, [Claimant]‘s claim based on the employee’s death due to coronary artery disease and myocardial infarction is accepted, and she is awarded $125,000.00 in basic survivor benefits and an additional $25,000.00, for a total award of $150,000.00.  [Claimant]‘s claim based on the employee’s death due to diabetes mellitus is denied under Part E. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

[1] LLNL was a covered DOE facility beginning in 1950 to the present.  DOE and the University of California jointly operate the site.  The Nevada Test Site in Mercury, Nevada is a covered DOE facility from 1951 to the present.  The Salmon Site was a covered DOE facility from 1964 to 1972.  The Gasbuggy Site was a covered DOE facility from 1967 to 1973, 1978, and 1998 to the present (remediation).  Amchitka Island was a covered DOE facility beginning in 1951 to the present.  See DOE’s facility listings at http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/findfacility.cfm (visited  June 12, 2007).

Maximum amounts payable

EEOICPA Fin. Dec. No. 9813-2007 (Dep’t of Labor, January 25, 2007)

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 (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, the FAB accepts and approves your claim for compensation in the amount of $150,000.00 under Part B and $125,000.00 under Part E, with an additional $25,000.00 awarded under Part E for wage-loss.

STATEMENT OF THE CASE

On September 10, 2001, you filed a Form EE-2 under Part B as the surviving spouse of [Employee], indicating that he was diagnosed with kidney cancer as the result of his employment at a Department of Energy (DOE) facility.  You filed a new Form EE-2 on May 24, 2006, under Part B and Part E of the EEOICPA, based on the conditions of renal, bone, lung and brain cancers.

You submitted a Form EE-3 (Employment History), indicating that [Employee] was employed at the Nevada Test Site (NTS) from 1961 to 1976.  The DOE confirmed that [Employee] was employed at the NTS by Reynolds Electrical & Engineering Company, Inc. (REECo), a DOE contractor, from December 4, 1961 to January 21, 1963, from February 19, 1965 to June 3, 1970, and from April 19, 1971 to July 14, 1972.

You submitted medical evidence in support of your claim, including a pathology report concerning tissue from a left upper lung lobectomy performed on January 9, 1974, in which Dr. F. Ali and Dr. J. Mirra diagnosed clear cell carcinoma, with the origin most likely from a kidney primary.  In a pathology report concerning the right kidney which was excised on March 4, 1974, Dr. M. Janssen and Dr. Mirra confirmed a diagnosis of well-differentiated metastatic renal cell carcinoma.

You submitted a copy of a marriage certificate showing that [Employee] and you ([Employee’s wife]) were married on March 12, 1945.  A copy of [Employee]‘s death certificate showed that his date of birth was August 26, 1922, and that you were married to him at the time of his death on March 17, 1977.  The death certificate, signed by Dr. Russell Miller, listed [Employee]‘s cause of death as hypernephroma of the kidney with metastases.  You also submitted documentation evidencing your name change from [Employee’s last name] to [Employee’s wife’s current last name].

On January 10, 2002, the Seattle district office referred the case to the National Institute for Occupational Safety and Health (NIOSH) to determine whether [Employee]’s renal cancer was “at least as likely as not” related to his covered employment.  However, the case was returned on August 7, 2006, based on the designation on June 26, 2006 by the Secretary of Health and Human Services (HHS) of certain NTS employees as an addition to the Special Exposure Cohort (SEC).

On October 31, 2006, the Seattle district office recommended that your claim for survivor benefits be accepted.  The district office concluded that under Part B, [Employee] is a member of the SEC and he was diagnosed with renal cell carcinoma, which is a specified cancer under the Act.  The district office further concluded that a DOE contractor employee that is entitled to compensation for an occupational illness under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  The district office concluded that, as [Employee] is now deceased as a result of the accepted condition of renal cancer, you, as his eligible survivor, are entitled to receive the basic survivor benefit of $150,000.00 under Part B, $125,000.00 under Part E, plus an additional $25,000.00 under Part E because [Employee] died not less than 10 years before attaining his normal retirement age of 65, for total compensation in the amount of $300,000.00.  The district office noted that no determination on your claim for survivor benefits for the conditions of bone, lung, and brain cancers would be made since you were being awarded the maximum possible survivor benefits under the Act.

On October 31, 2006, the Seattle district office received a signed, dated statement from you indicating that neither you nor [Employee] had ever filed for or received any settlement or award from a tort suit related to the claimed exposure to radiation; that neither you nor [Employee] had ever filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to any of the claimed conditions; that neither you nor [Employee] had ever pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and that [Employee] did not have children under the age of 18 or under the age of 23 and enrolled in school full-time from age 18, or children incapable of self-support, at the time of his death.  

On November 7, 2006, the FAB received written notification from you indicating that you waive all rights to file objections to the findings of fact and conclusions of law contained in the recommended decision.

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

FINDINGS OF FACT

1.         You filed a claim for survivor benefits under Part B of EEOICPA on September 10, 2001, and under Parts B and E on May 24, 2006.

2.         You are the surviving spouse of the employee, [Employee], and were married to him for at least one year immediately prior to his death.

3.         [Employee] was employed at the NTS, a covered DOE facility, with REECo, a DOE contractor, for an aggregate of at least 250 work days, between the dates of January 27, 1951 and December 31, 1962; specifically, from December 4, 1961 to January 21, 1963; as well as from February 19, 1965 to June 3, 1970; and from April 19, 1971 to July 14, 1972.  This employment qualifies [Employee] as a member of the SEC.

4.         [Employee] was diagnosed with renal cancer, which is a specified cancer under EEOICPA, on January 9, 1974, after starting work at a DOE facility.

5.         [Employee] was born on August 26, 1922, and his normal retirement would have been at age 65.  He died on March 17, 1977, at the age of 54, not less than 10 years prior to his normal retirement age.

6.         The evidence of record supports a causal connection between the employee’s death due to metastatic renal cancer and his exposure to radiation at a DOE facility. 

7.         Neither you nor [Employee] had ever filed for or received any settlement or award from a tort suit related to the claimed exposure to radiation; neither you nor [Employee] had ever filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to any of the claimed conditions; neither you nor [Employee] had ever pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation; and [Employee] did not have any children under the age of 18 or under the age of 23 and enrolled in school full-time from age 18, or children incapable of self-support, at the time of his death.  

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  See 20 C.F.R. § 30.316(a).  You waived your right to file objections to the findings of fact and conclusions of law contained in the recommended decision issued on your claim for compensation benefits under the EEOICPA.   

On June 26, 2006, the Secretary of HHS designated a class of certain employees as an addition to the SEC, i.e., DOE employees or DOE contractor or subcontractor employees who worked at the NTS from January 27, 1951 through December 31, 1962, for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters (excluding aggregate work day requirements) established for other classes of employees included in the SEC, and who were monitored or should have been monitored.  This SEC became effective July 26, 2006. 

The employment evidence is sufficient to establish that the employee was employed at the NTS for an aggregate of at least 250 work days of covered SEC employment, specifically, from December 4, 1961 to January 21, 1963; as well as from February 19, 1965 to June 3, 1970; and from April 19, 1971 to July 14, 1972. 

The employee was a member of the SEC pursuant to § 7384l(14) of the Act, who was diagnosed with renal cancer, which is a specified cancer under 20 C.F.R. § 30.5(ff)(4); and is, therefore, a “covered employee with cancer” under § 7384l(9)(A) of the Act.  See 42 U.S.C. §§ 7384l(14) and 7384l(9)(A); 20 C.F.R. § 30.5(ff)(4).  Further, you are the surviving spouse of the employee under 42 U.S.C. § 7384s(e)(1)(A) and you are entitled to compensation in the amount of $150,000.00.  See 42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a)(2).

The determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E that the employee contracted that illness through exposure at a DOE facility.  See 42 U.S.C. § 7385s-4(a). 

The evidence of record establishes that the employee was a “covered DOE contractor employee” as defined by § 7385s(1) in accordance with § 7385s-4(a); and the employee was diagnosed with a “covered illness,” metastatic bone cancer, as defined by § 7385s(2).  Further, it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  You are the employee’s covered spouse as defined by § 7385s-3(d)(1).  As your spouse died at the age of 54, which is not less than at least 10 years before his normal retirement age of 65, you are then entitled, pursuant to 42 U.S.C. § 7385s-3(a)(2), to compensation in the amount of $150,000.00.  See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(a), 7385s-3(d)(1) and 7385s-3(a)(2).      

Accordingly, you are entitled to total compensation in the amount of $300,000.00.  No adjudication of your claim for survivor benefits for the conditions of bone, lung, and brain cancers will be rendered, as you are being awarded the maximum possible survivor benefits under the Act.  See 20 C.F.R. § 30.506(b); 42 U.S.C. § 7385s-3(b).

Seattle, WA

Keith Klose, Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 105471-2009 (Dep’t of Labor, October 8, 2009)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on the above claim 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 under Part B of EEOICPA for survivor benefits is denied.  The claim under Part E for the employee’s whole body impairment is accepted in the amount of $12,500.00.

STATEMENT OF THE CASE

On October 9, 2001, [Employee] filed a Form EE-1, claiming under Part B for his bladder cancer.  Medical records, including pathology reports, confirmed that the employee was diagnosed with bladder cancer on April 16, 1993, as well as a squamous cell carcinoma of the left ear on June 8, 1999, and squamous cell carcinoma of the right cheek on August 20, 2003.

The employee submitted a Form EE-3, on which he stated that he wore a dosimetry badge while working for the Union Carbide Corporation, a Department of Energy (DOE) contractor, from September 3, 1945 to July 31, 1981.  DOE confirmed the employee’s employment for Carbon and Carbon Chemicals Company (a former name of Union Carbide) at the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, Tennessee, from September 17, 1945 to January 28, 1947, and from July 25, 1947 to July 31, 1981.

On July 3, 2002, FAB issued a final decision accepting the employee’s claim under Part B as a member of the Special Exposure Cohort (SEC) with bladder cancer, and awarded him $150,000.00 and medical benefits for that illness.  On January 17, 2006, FAB issued another final decision under Part B, accepting the employee’s claim and awarding him medical benefits for his squamous cell carcinomas of the left ear and right cheek on the ground that those cancers were “at least as likely as not” (a 50% or greater probability) related to radiation exposure.  And on July 11, 2008, FAB issued a final decision accepting the employee’s claim and awarding him medical benefits under Part E of EEOICPA for the same conditions–bladder cancer and squamous cell carcinoma of the left ear and right cheek.

On July 30, 2008, the employee requested impairment benefits for his covered illnesses under Part E of EEOICPA.  However, he died on November 17, 2008, prior to the adjudication of his impairment claim. 

On December 11, 2008, [Claimant] submitted a Form EE-2 to the district office, claiming for survivor benefits under Parts B and E of EEOICPA.  In support of her claim, [Claimant] submitted a marriage certificate showing that she married the employee on April 10, 1950, and the employee’s death certificate showing his cause of death as fractures of the first and second cervical vertebrae.  The death certificate also indicated that [Claimant] was the employee’s spouse on the date of his death. 

As specified under Part E, permanent impairment is defined as a decreased function in a body part(s) or organ(s) established by medical evidence as the result of the covered employee contracting a covered illness through exposure to a toxic substance at a DOE facility.  In a letter dated May 16, 2009, [Claimant] requested that the district office proceed with the impairment portion of her claim.  By letter dated July 13, 2009, [Claimant]‘s authorized representative requested that the impairment rating be performed by a district medical consultant (DMC).  Therefore, the case was referred to a DMC for an impairment rating.  In his report dated August 3, 2009, the DMC opined that the employee had reached maximum medical improvement for his conditions of bladder and skin cancers and had a whole body impairment rating for the accepted conditions of bladder cancer and skin cancers of 5%.

On September 2, 2009, the district office issued a recommended decision, concluding that under Part E, [Claimant] is entitled to $12,500.00 for the employee’s 5% whole body impairment due to his bladder cancer and skin cancers.  The total percentage points were multiplied by $2,500 to calculate the amount of the recommended award.  The district office also recommended denial of [Claimant]‘s claim under Part B since the employee had previously received the compensation benefits payable under that Part.

On September 9, 2009, the Final Adjudication Branch received written notification that [Claimant] waived any and all objections to the recommended decision.  After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

  1. On October 9, 2001, the employee filed a claim for benefits under EEOICPA.
  1. The employee was diagnosed with bladder cancer, squamous cell carcinoma of the left ear, and skin cancer of the right cheek.
  1. FAB issued a final decision under Part B that awarded the employee the full amount of monetary benefits payable for his bladder cancer, squamous cell carcinoma of the left ear and skin cancer of the right cheek.  It also issued a final decision awarding the employee medical benefits under Part E for those same conditions.
  1. The employee filed a request for impairment benefits, but died prior to the adjudication of that request.  His cause of death was listed as cervical fractures of that C1 and C2 vertebrae.
  1. [Claimant] filed a claim for survivor benefits and established that she was the employee’s spouse at the time of death and had been married to him for at least one year prior to that date.
  1. The medical evidence establishes that prior to his death, the employee had reached maximum medical improvement and had a whole body impairment due to his bladder and skin cancers of 5%.

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

CONCLUSIONS OF LAW

The regulations provide 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 and whether a hearing is desired.  20 C.F.R. § 30.310(a) (2009).  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, or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

[Claimant] meets the definition of a survivor under Part B and Part E of the Act.  42 U.S.C. §§ 7384s(e)(3)(A), 7385s-3(d)(1).  However, with respect to her survivor claim under Part B, the record establishes that the employee already received the lump-sum benefit of $150,000.00 available under Part B.  Therefore, because the lump-sum available under Part B has already been paid, [Claimant] is not entitled to any additional compensation under that Part, and her claim for compensation is denied.  42 U.S.C. § 7384s(a).

As for her claim under Part E of EEOICPA, if a covered Part E employee dies after filing a claim but before monetary benefits under Part E are paid, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the monetary benefits that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment.  Under those circumstances, the survivor would not be entitled to the $125,000.00 lump-sum survivor payment under Part E because the employee’s death would not have been caused by the covered illness(es).  42 U.S.C. § 7385s-1(2)(B).

As found above, the employee in this matter died as a result of fractures of C1 and C2 vertebrae, which were not related to his work-related exposure to toxic substances.  Therefore, [Claimant] is entitled to the amount of contractor employee compensation that the employee would have received if his death had not occurred before compensation was paid, in this case, his impairment benefits.

The amount of contractor employee compensation under Part E for a covered DOE contractor employee is based, in part, on a determination of the employee’s minimum impairment rating in accordance with the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, expressed as a number of percentage points.  The employee (or the survivor in this case) is eligible to receive an amount equal to $2,500 multiplied by the number of percentage points.  42 U.S.C. §§ 7385s-1(2)(B), 7385s-2(b).

The medical evidence shows that the employee had a whole body impairment of 5% as result of his accepted covered illnesses.  [Claimant], standing in the shoes of the employee following her election, is therefore entitled to monetary benefits of $12,500.00 for impairment due to the employee’s bladder cancer and skin cancers.  See 42 U.S.C. §7385s-2(a)(2). 

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 10014587-2006 (Dep’t of Labor, August 3, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for 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 wage-loss benefits under Part E is accepted in the amount of $50,000.  Adjudication of the claim for benefits based on skin cancer is deferred pending additional development.

STATEMENT OF THE CASE

On October 24, 2001, [Employee] filed claims for benefits under Part B and former Part D of EEOICPA.  He identified microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, glomerularnephritis, irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli secondary to vasculitis, necrotizing glomerular nephritis and interstitial fibrosis as the claimed conditions resulting from his employment at a Department of Energy (DOE) facility.  On July 5, 2007, [Employee] filed an additional claim under EEOICPA for skin cancer.  Subsequent to his filing a claim under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E, which is administered by the Department of Labor.  The filing of a claim under former Part D is treated as a claim for benefits under Part E.

On March 27, 2003, FAB issued a final decision denying [Employee]‘s Part B claim, as the evidence did not establish that he had been diagnosed with an illness that would qualify as an “occupational” illness under Part B.  Part B is limited to the occupational illnesses of cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis.  On August 4, 2006, [Employee] withdrew his claim based on the conditions of irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli, and necrotizing glomerular nephritis.

On August 31, 2006, FAB issued another final decision accepting [Employee]‘s claim for medical benefits under Part E of EEOICPA for the “covered” illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis.  This final decision also awarded him a lump-sum of $200,000.00 in impairment benefits based on those covered illnesses.

The evidence of record establishes that [Employee] was employed by a DOE contractor at the Lawrence Livermore National Laboratory (LLNL) from July 9, 1962 to October 14, 1966, at the Los Alamos National Laboratory (LANL) from October 24, 1966 to December 31, 1990, and at the Nevada Test Site (NTS) periodically from January 25, 1972 to September 10, 1990.[1]The record establishes that [Employee] was diagnosed with glomerulonephritis on June 8, 1992, with systemic necrotizing vasculitis and leukocytoclastic vasculitis on December 22, 1997, with microscopic polyangitis on June 24, 1999, and with pulmonary interstitial fibrosis on May 10, 2001.  The evidence further establishes that he was exposed to toxic substances during the performance of his duties at these facilities, and that such exposure was a significant factor in aggravating, contributing to, or causing his glomerulonephritis, systemic necrotizing vasculitis and leukocytoclastic vasculitis, microscopic polyangitis and pulmonary interstitial fibrosis.  [Employee] has a minimum impairment rating to the whole person as a result of these conditions of 80%, and 80 x $2,500.00 = his $200,000.00 impairment award.

On October 23, 2006, [Employee] filed a claim for wage-loss benefits under Part E of EEOICPA and alleged that his wage-loss began in January 1991.  He submitted Form W-2 Statement of Earnings from his employer indicating that he earned $30,508.97 in 1988, $31,256.65 in 1989, and $35,829.17 in 1990.  On May 16, 2007, a representative from the Social Security Administration (SSA) indicated that you had earnings from 1978 to 1990 and no reported earnings after 1990.

[Employee] submitted medical records from his healthcare providers, which document the nature and extent of his covered illnesses.  In a January 10, 2006 medical report, Dr. Karen B. Mulloy, M.D. indicated that [Employee] has not been able to work since 1991 due to the severity of his chronic renal disease and interstitial fibrosis.  A July 20, 2006 report from a District Medical Consultant (DMC) confirms that [Employee]‘s health is poor and continues to deteriorate such that his life is probably at risk.

On Form EE-1, [Employee] indicated that he was born on September 29, 1936.  That date of birth is confirmed in the medical records from his healthcare providers and his personnel and occupational clinic records from the DOE facilities where he worked.  The SSA indicates that the normal retirement age for purposes of the Social Security Act for a person born on September 29, 1936 is age 65.[2]

On June 20, 2007, the district office issued a recommended decision to accept the claim for wage-loss benefits under Part E in the amount of $50,000.00.  Accompanying the recommended decision was a letter explaining [Employee]‘s rights and responsibilities in regard to the recommended decision.  On July 5, 2007, FAB received his signed waiver of objections to the findings of fact and conclusions of law in the recommended decision.  On the same date, FAB received his written declaration that he had not filed for or received a settlement, award, payment, or benefit from a tort suit or state workers’ compensation program for the medical conditions of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulonephritis. 

After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1.      [Employee] filed a claim for benefits under Parts B and E of EEOICPA on October 24, 2001.

2.      [Employee] was employed at LLNL, LANL and NTS intermittently from July 9, 1962 to December 31, 1990.  During his employment at these facilities, he was employed by a DOE contractor. 

3.      On October 23, 2006, FAB accepted the claim for medical benefits under Part E for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis and awarded impairment benefits in the amount of $200,000.00 based on those conditions.

4.      [Employee] was born on September 29, 1936 and attained normal retirement age for purposes of the Social Security Act on September 29, 2001.

5.      [Employee] began experiencing wage-loss as a result of his covered illnesses in January 1991.

6.      His average annual wage from 1988 to 1990 was $32,531.59.

7.      [Employee] experienced 11 calendar years of qualifying wage-loss from 1991 to 2001 as a result of his covered illnesses, during which his wages did not exceed 50% of his average annual wage for the 36-month period immediately preceding the calendar month he first experienced wage-loss as a result of any covered illness.

8.      [Employee] has not recovered compensation or benefits from a state workers’ compensation program or tort suit based on his accepted covered illnesses of polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.

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

CONCLUSIONS OF LAW

The regulations at 20 C.F.R. § 30.316(a) (2007) provide that if a claimant waivers any objections to all or part of the recommended decision, then FAB may issue a final decision accepting the recommended decision of the district office either in whole or in part.  On July 5, 2007, FAB received [Employee]‘s waiver of objections to the recommended decision

On October 23, 2006, FAB issued a final decision under Part E of EEOICPA accepting the claim for medical benefits for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.  In that decision, FAB found that [Employee]‘s 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 microscopic polyangitis, systemic necrotizing vasculitis, eukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered illness” shall be entitled to wage-loss benefits if the employee sustained wage-loss as a result of any covered illness and meets certain qualifying criteria as to the percentage of the employee’s wage-loss.  It provides that for each calendar year prior to normal retirement age during which as a result of any covered illness the employee’s wages did not exceed 50% of his average annual wage for the 36-month period immediately preceding the calendar year in which the employee first experienced wage-loss as a result of the covered illness, the employee shall receive $15,000.  It further provides that for each calendar year prior to normal retirement age during which as a result of any covered illness, the employee’s wages exceeded 50% but did not exceed 75% of his average annual wage, the employee shall receive $10,000.  See 42 U.S.C. §7385s-2(a)(2).

A determination regarding entitlement to wage-loss benefits must be based upon the totality of the evidence. I have reviewed the evidence of record and conclude that the evidence establishes that [Employee] experienced 11 calendar years of qualifying wage-loss prior to attaining his normal retirement age during which his wages did not exceed 50% of his average annual wage.  Based on 11 calendar years of wage-loss at $15,000.00 per year, [Employee] qualifies for $165,000.00 in wage-loss benefits under Part E.

However, Part E also provides that the maximum aggregate compensation (other than medical benefits) an employee or survivor may receive under that Part shall not exceed $250,000.00.  See 42 U.S.C. § 7385s-12.  [Employee] has previously received $200,000.00 in impairment benefits under Part E, and the remaining amount he may recieve (other than medical benefits) is therefore $50,000.00.  His potential wage-loss benefits of $165,000.00, coupled with the $200,000.00 he has already received in impairment benefits, exceeds the maximum aggregate compensation available to him under Part E.  Therefore, [Employee]‘s claim for wage-loss benefits under Part E must be capped at the maximum aggregate compensation limit, and accordingly his your claim for wage-loss benefits under Part E is accepted for $50,000.00.  

Washington, DC

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch

[1]   According to DOE’s website at http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm, LLNL is a covered DOE facility from 1950 to the present, LANL is a covered DOE facility from 1942 to the present, and NTSe is a covered DOE facility from 1951 to the present (retrieved August 3, 2007).

[2] See SSA’s website at http://www.socialsecurity.gov/retire2/agereduction.htm (retrieved August 3, 2007).

EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008)

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 (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E.  You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.

STATEMENT OF THE CASE

On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility.  On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA.  Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B.  On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.

On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer.  You elected to have a physician selected by the Department of Labor perform the impairment rating.  You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.

The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997.  You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS.  The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung.  On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.

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 your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC). 

On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment.  The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment.  Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease.  The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”

You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997.  An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment. 

You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.

On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage-loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00.  From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.

In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001).  This totals $55,000.00 in wage-loss benefits.

On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.

On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled.  The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”

On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB.  The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will 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,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits. 

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

FINDINGS OF FACT

  1. On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA.  You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility. 
  1. On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.
  1. On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.
  1. Your coronary artery disease is a consequential illness of your lung cancer.
  1. On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.
  1. You last had recorded wages in 1997.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.
  1. You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.
  1. You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.

Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

If the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.

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 the employee’s “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides.  See 42 U.S.C. § 7385s-2(b).  The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1). 

The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease.  You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.

In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005).  You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.  You last had recorded wages in 1997 and have not had any wages since then.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.  This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.

Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00.  You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001.  This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00.  Therefore, your wage-loss eligibility ends there.

All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses.  See 42 U.S.C. § 7385s-11.  Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.

Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E.  Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

Overpayments

EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)

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 stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted.  No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation. 

STATEMENT OF THE CASE

On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer.  On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA.  On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma. 

On August 2, 2005, FAB issued a final decision accepting [Employee]‘s claim for compensation under Part B for skin cancer.  On January 29, 2007, FAB also issued a final decision accepting [Employee]‘s claim under Part E for skin cancer, and under Parts B and E for lymphoma.  On August 29, 2007, FAB issued a final decision denying [Employee]‘s claim under Part E for his hearing loss.  On December 27, 2007, FAB issued a final decision to accept [Employee]‘s claim under Part E for chronic obstructive pulmonary disease (COPD).  As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985. 

On August 14, 2008, FAB issued a final decision accepting [Employee]‘s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00.  On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee].  Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed  [Claimant] as his attorney-in-fact.  On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]‘s behalf.

On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant]

On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee].  She also submitted a copy of [Employee]‘s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse.  The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.

Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]‘s savings account via electronic funds transfer to the United States Treasury.  There is no record indicating that these funds have been returned to the Treasury.  On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death.  On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.” 

On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]‘s surviving spouse.  The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed.  Accordingly, the district office concluded that survivor benefits were not payable. 

OBJECTIONS

On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010.  The representative argued that the adjudication of [Employee]‘s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]‘s death.  The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits.  (Exhibit 1).  He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due.  The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived. 

Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:

FINDINGS OF FACT

  1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]‘s claim under Part E for skin cancer and lymphoma, and for COPD.  In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.
  1. [Employee] died on August 11, 2008 as a result of lymphoma.  
  1. On August 14, 2008, FAB issued a final decision accepting [Employee]‘s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00  
  1. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
  1. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].
  1. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.

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

CONCLUSIONS OF LAW

Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes:  (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee.  42 U.S.C. § 7385s-3. 

As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility.  Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death.  Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1). 

The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid.   42 U.S.C. § 7385s-1(2)(b).  The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment.  No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.”  20 C.F.R. § 30.505(c) (2009).  

EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.”  Federal (EEOICPA) Procedure Manual, Chapter 3-0800.  The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments.

In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]‘s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E.  As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled.  Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.

Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation. 

Cleveland, OH

Greg Knapp

Hearing Representative

Final Adjudication Branch

Relationship between Parts B and E

EEOICPA Fin. Dec. No. 12914-2002 (Dept. of Labor, February 8, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns 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).  Your claim under Part E of the Act is hereby accepted as compensable.

On January 28, 2005, the Jacksonville district office issued a recommended decision finding that the employee was employed at a Department of Energy (DOE) facility by a DOE contractor in accordance with 42 U.S.C. § 7385s(1); that you are the eligible survivor in accordance with 42 U.S.C. § 7385s-3(d); that a positive determination by DEEOIC under Part B is treated for the purposes of Part E as a determination that the employee contracted that illness through work-related exposure to a toxic substance at a DOE facility in accordance with 42 U.S.C. § 7385s-4(a); and that you are entitled to $125,000.00 in accordance with 42 U.S.C. § 7385s-3(a)(1).  Consequently, the district office recommended that your survivor claim be accepted in accordance with 42 U.S.C. § 7385s-4(a).  On January 31, 2005, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

The evidence of record establishes that your claim meets the statutory criteria for compensability as defined in Part E of the EEOICPA.  In this instance, the evidence confirms that your spouse had covered employment with Union Carbide Corporation and Martin Marietta Energy Systems from April 1, 1975 to April 1, 1984 and April 2, 1984 to December 18, 1987, and supports a causal connection between your spouse’s death and his exposure to a toxic substance at the K-25 gaseous diffusion plant and the X-10 Oak Ridge National Laboratory, DOE facilities.  The evidence of record indicates that a completed Physicians Panel review under former Part D of the EEOICPA concluded that no causally related condition exists.  However, a separate determination was made by DEEOIC under Part B which concluded that the employee was a covered employee entitled to compensation for brain cancer.  Under these circumstances, your claim meets the standards for adjudication during the Preliminary Administration Period consistent with EEOICPA Bulletin No. 05-01 (issued November 23, 2004).

The file contains the employee’s death certificate, which shows that his covered illness caused or contributed to his death, and also contains a copy of your marriage certificate.  This evidence establishes your entitlement to basic survivor benefits under Part E of the EEOICPA.  The file also contains your statement that the employee did not file or receive any state workers’ compensation benefits for the claimed condition.  In addition, you stated that the employee, at the time of death, had no minor children or children incapable of self support, who were not your natural or adopted children.

The Final Adjudication Branch hereby finds that the employee is a covered DOE contractor employee as defined in 42 U.S.C. § 7385s(1); that a positive determination of entitlement by DEEOIC under Part B was made for the illness of brain cancer; and that you are the eligible survivor of the employee.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation in the amount of $125,000 under Part E of the EEOICPA.  Adjudication of your potential entitlement to additional compensation is deferred until after the effective date of the Interim Final Regulations as per EEOICPA Bulletin No. 05-01 (issued November 23, 2004).

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 41882-2007 (Dep’t of Labor, December 21, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above claims 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 filed by [Claimant #1] is accepted under Part B and Part E of EEOICPA.  The claim filed by [Claimant #2] under Part E is denied.

STATEMENT OF THE CASE

On April 5, 2002, [Claimant #2] filed a Form EE-2 claiming for survivor benefits under EEOICPA as a surviving child of [Employee].  On February 19, 2003, [Claimant #1] filed also filed a Form EE-2 as the surviving spouse of the employee.  They both identified lung cancer as the diagnosed condition of the employee. [Claimant #2] submitted an employment history, Form EE-3, completed on October 25, 2001 by [Individual with same surname as Employee], which indicated that the employee worked for Atomics International, in the Santa Susana Hills, from 1958 to 1964, and for Gulf General Atomics in San Diego, California and Idaho Falls, Idaho, from 1964 to an unknown date.

The Department of Energy (DOE) verified that the employee worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.   General Atomics confirmed that the employee worked for General Atomics from October 19, 1964 to September 8, 1972, and that during this period the employee did some work at Gulf in Idaho Falls, Idaho.  The Idaho National Engineering & Environmental Laboratory (INEEL), in Idaho Falls, Idaho, confirmed that INEEL had dosimetry data for the employee, and that he might have worked for General Atomics during 1965, 1966 and 1967. 

The General Atomics human resources department provided documentation establishing that the employee was monitored for radiation on 9 separate occasions while working at the General Atomics facility in La Jolla, California, in the LINAC complex and the HTGR-Critical Facility, between January 20, 1967 and November 18, 1969.

As medical evidence, [Claimant #1 and Claimant #2] submitted numerous medical records, including the following:

1.      A medical report dated April 21, 1977 from B.M. Kim, M.D., which provides an assessment of primary bronchial carcinoma.

2.       A copy of a radiation oncology consultation, dated May 9, 1977, from Charles Campbell, M.D., which provides a diagnosis of bronchogenic, large cell, undifferentiated adenocarcinoma. 

In support of her claim, [Claimant #2] provided a copy of her birth certificate, indicating that she was born on March 26, 1958, and that [Employee] was her father.  She provided a copy of the employee’s death certificate, indicating that he died on August 28, 1977 at age 43, due to respiratory failure secondary to bronchogenic carcinoma, and that he was married to [Claimant #1’s maiden name] at the time of death.  [Claimant #1] submitted a copy of her marriage certificate that memorialized her marriage to [Employee] on July 1, 1972.  [Claimant #2] and [Claimant #1] provided copies of marriage certificates that document their surname changes.

On December 17, 2002, FAB issued a final decision denying the claim of [Claimant #2] under Part B of EEOICPA, as the evidence of record did not establish that the widow of the employee at the time of his death was no longer alive.

In a February 16, 2007 report to Congress, the Secretary of Health and Human Services (HHS) designated the following class of employees for addition to the Special Exposure Cohort (SEC):

Atomic Weapons Employer (AWE) employees who were monitored or should have been monitored for exposure to ionizing radiation while working at the General Atomics facility in La Jolla, California, at the following locations:  Science Laboratories A,B, and C (Building 2); Experimental Building (Building 9); Maintenance (Building 10); Service Building (Building 11); Buildings 21 and 22: Hot Cell Facility (Building 23); Waste Yard (Buildings 25 and 26); Experimental Area (Building 27 and 27-1); LINAC Complex (Building 30); HTGR-TCF (Building 31); Fusion Building (Building 33); Fusion Doublet III (Building 34); SV-A (Building 37); SV-B (Building 39); and SV-D (no building number) for a number of work days aggregating at least 250 work days from January 1, 1960 through December 31, 1969, or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

The SEC designation for this class became effective on March 18, 2007.

On July 30, 2007, the district office sent a letter to [Claimant #2] advising her of the criteria to establish that she is a “covered” child under Part E of EEOICPA and asked her to provide evidence establishing her eligibility as a covered child.  The record reflects that on September 24, 2007, [Claimant #2] advised the district office via a telephone call that she did not meet the eligibility requirements under Part E. 

On September 26, 2007, the Seattle district office issued a  recommended decision concluding that [Claimant #2] is not an eligible survivor of the employee under Part E; that the employee is a member of the SEC; that he developed lung cancer, a “specified” cancer, after beginning his employment at General Atomics; that the occupational exposure was at least as likely as not a significant factor in aggravating, contributing to, or causing the employees’ death; that [Claimant #1] is the surviving spouse of [Employee]; and that [Claimant #1] is entitled to survivor benefits under Part B of EEOICPA in the amount of $150,000.00, and under Part E in the amount of $175,000.00, for a total of $325,000.00.

The record contains [Claimant #1]‘s correspondence of October 3, 2007, advising that she never filed for, or received, any settlements or awards for the claimed condition of lung cancer, from either a civil lawsuit or a state workers’ compensation claim.  She also advised that the employee did not have any children who were not her natural or adopted children at the time of the employees’ death. 

The FAB has received separate correspondence from [Claimant #1 and Claimant #2] waiving any objections to the findings of fact or conclusions of law in the recommended decision.

Based upon a review of the evidence in the record, I make the following:

FINDINGS OF FACT

  1. [Claimant #1 and Claimant #2] filed claims for benefits under EEIOCPA as the survivors of [Employee]
  1. [Employee] worked for Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964. 
  1. [Employee] was employed by General Atomics, an Atomic Weapons Employer, at their La Jolla, California facility, from October 19, 1964 to September 8, 1972.
  1. During the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC, where the employee was monitored or should have been monitored for exposure to ionizing radiation.
  1. [Employee] was first diagnosed with lung cancer in April 1977.
  1. [Claimant #1] is the surviving spouse of the employee, who died on August 28, 1977 (at the age of 43) due to respiratory failure secondary to bronchogenic carcinoma.
  1. [Claimant #2] is a biological child of [Employee], and was 19 years old at the time of her father’s death.
  1. There is no evidence that [Claimant #2] was a full-time student or incapable of self-support at the time of her father’s death.

Based upon a review of the aforementioned facts, FAB hereby also makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the implementing regulations provides 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 objection to all or part of the recommended decision, the FAB reviewer may issue a decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a) (2007).  Both claimants have submitted their written waivers.

The term “covered” child means a child of the employee who, at the time of the employee’s death, was:  under the age of 18 years; or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years; or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

The record establishes that [Claimant #2] was 19 years old at the time of her father’s death.  There is no evidence showing that she was a full-time student or incapable of self-support at the time of her father’s death.  Therefore, FAB concludes that [Claimant #2]‘s claim under Part E of EEOICPA must be denied because she does not meet the definition of a “covered” child set out in 42 U.S.C. § 7385s-3(d)(2). 

Eligibility for Part B compensation based on cancer may be established by demonstrating that the employee is a member of the SEC who contracted a “specified” cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee).  42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

The record establishes that during the period from January 1, 1960 through December 31, 1969, the employee worked an aggregate of at least 250 work days in buildings specified for the General Atomics SEC.  The record also establishes that the employee was diagnosed with lung cancer in 1977, which is more than 2 years after beginning his employment at the General Atomics’ La Jolla, California facility.  Lung cancer is a “specified” cancer as defined by 20 C.F.R. § 30.5(ff)(2) (2007).  The employee was, therefore, a “covered employee with cancer.”  42 U.S.C. § 7384l(9). 

The record also establishes that [Claimant #1] is the surviving spouse of the employee.  As the employee’s surviving spouse, she is entitled to compensation benefits under Part B of the Act in the amount of $150,000.00, pursuant to 42 U.S.C. §§ 7384s(a) and (e)(A).

Section 7385s-4(a) of EEOICPA states that a determination under Part B that a DOE contractor employee is entitled to compensation under that part for an occupational illness shall serve as a determination under Part E that the employee contracted that illness through exposure at a DOE facility. 

In this case, FAB is basing the award of compensation to [Claimant #1] under Part B on [Employee]‘s employment at an Atomic Weapons Employer, which qualifies him as a member of the SEC.  [Employee] also had documented employment with Atomics International, a DOE contractor, at Area IV of the Santa Susana Field Laboratory, a DOE facility, from May 19, 1958 to October 16, 1964.  On September 19, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) determined that in a surviving spouse’s claim that is accepted under Part B based on the employee’s status as both an atomic weapons employee and a member of the SEC, if the employee also had any verified employment by a DOE contractor at a DOE facility, then the provisions of 42 U.S.C. § 7385s-4(a) would apply such that the spouse would be entitled to a determination under Part E that the employee’s illness was contracted through exposure to a toxic substance at the DOE facility.  Accordingly, [Claimant #1] is entitled to compensation pursuant to 42 U.S.C. §7385s-3(a)(3), since the employee would have been entitled to compensation under Part B, and it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of the employee.

Therefore, the evidence of record, in conjunction with the September 19, 2007 determination by DEEOIC, establishes that the employee was diagnosed with a “covered illness,” lung cancer, as that term is defined by 42 U.S.C. § 7385s(2), and that the employee contracted that “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a).  The FAB concludes that the evidence of record is also sufficient to establish that the employee’s lung cancer was a significant factor in aggravating, contributing to, or causing his death.  The death certificate, signed by a physician, lists the cause of death as being due to or as a consequence of bronchogenic carcinoma (lung cancer), which is the accepted condition under Part B of EEOICPA.  The record also indicates that there was an aggregate of not less than 20 years between the employee’s death and his normal retirement age (for purposes of the Social Security Act).

Accordingly, [Claimant #1] is entitled to compensation under Part E in the amount of $175,000.00 as a covered spouse, pursuant to 42 U.S.C. §7385s-3(a)(3), for a total lump-sum award in the amount of $325,000.00. 

Washington, D.C.

Susan Price 

Hearing Representative

Final Adjudication Branch

Requirements for

EEOICPA Fin. Dec. No. 2029-2002 (Dep’t of Labor, January 10, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns 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). Your claim under Part E of the Act is hereby accepted as compensable.

The Jacksonville district office issued a recommended decision finding that [Employee] was employed at a Department of Energy (DOE) facility by a DOE contractor in accordance with Part E, 42 U.S.C. § 7385s(1); that you are the eligible survivor in accordance with Part E, 42 U.S.C. § 7385s-3(c)(1); and that you are entitled to $125,000 in accordance with Part E, 42 U.S.C. § 7385s-3(a)(1).  Consequently, the district office concluded your survivor claim is accepted in accordance with Part E, 42 U.S.C. § 7385s-4(b).  On December 28, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision. 

The evidence of record establishes that your application meets the statutory criteria for compensability as defined in Part E of the EEOICPA.  In this instance the evidence confirms that your spouse had covered employment with the gaseous diffusion plant in Paducah, Kentucky, for the period of March 24, 1952 to January 15, 1982, and supports a causal connection between your spouse’s death and his exposure to a toxic substance at a DOE facility.  Specifically, the evidence of record establishes that a Physicians Panel review under former Part D of the EEOICPA has been completed, and that the Secretary of Energy accepted the Panel’s affirmative determination of [Employee]‘s pulmonary fibrosis due to exposure to a toxic substance at a DOE facility.  The file contains [Employee]‘s death certificate listing the causes of death as cardiogenic shock and pneumonia, the medical opinion of Dr. Kalindi Narayan concluding that pulmonary fibrosis contributed to the employee’s death, and a copy of your marriage certificate.  This evidence establishes your entitlement to basic survivor benefits under Part E of the EEOICPA.

The Final Adjudication Branch hereby finds that [Employee] was a DOE contractor employee with pulmonary fibrosis due to exposure to a toxic substance at a DOE facility; and that you are the eligible survivor of [Employee].  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to compensation in the amount of $125,000 under Part E of the EEOICPA.  Adjudication of your potential entitlement to additional compensation is deferred until after the effective date of the Interim Final Regulations.

Sidne M. Valdivieso

Hearing Representative

EEOICPA Fin. Dec. No. 25528-2004 (Dep’t of Labor, September 30, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch 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 set forth below, your claim is accepted.

STATEMENT OF THE CASE

On March 15, 2002, you filed a Form EE-2, Claim for Survivor’s Benefits under the EEOICPA.  The claim was based, in part, on the assertion that [Employee] (hereafter known as “the employee”) was an employee of a Department of Energy (DOE) contractor at a DOE facility.  You stated on the Form EE-2 that you were filing for the employee’s lung cancer, bladder cancer, kidney cancer, other lung condition, and renal disease.[1]  Sufficient medical evidence was submitted to establish the claimed conditions of lung cancer and bladder cancer.

On the Form EE-3, Employment History, you stated the employee was employed as a maintenance superintendent by Dupont at the Savannah River Site in Aiken, South Carolina from 1951 to an ending date in the 1980’s.  The Department of Energy verified this employment as March 12, 1951 to December 31, 1974.

To determine the probability of whether the employee sustained a cancer in the performance of duty, the district office referred your application package to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  20 C.F.R. § 30.115.  On March 22, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information you provided to NIOSH.  The district office received the final NIOSH Report of Dose Reconstruction on March 31, 2004.

Pursuant to the implementing NIOSH regulations, the district office used the information provided in this report to determine that there was a 52.50% probability that the employee’s lung and bladder cancers were caused by radiation exposure at the Savannah River Site in Aiken, South Carolina.  42 C.F.R. § 81.20.  The Final Adjudication Branch independently analyzed the information in the NIOSH report, confirming the 52.50% probability.

On September 15, 2004, the district office issued a recommended decision finding that the employee’s lung and bladder cancers were at least as likely as not caused by his employment at a Department of Energy (DOE) facility and concluding that you are entitled to compensation in the amount of $150,000. 42 U.S.C. §§ 7384n, 7384s.  

On September 23, 2004, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision.

FINDINGS OF FACT

1)  You filed a Form EE-2, Claim for Survivor’s Benefits, on March 15, 2002.

2)  The claimed conditions of lung cancer and bladder cancer is supported by the medical evidence.

3)  The employee was employed at the Savannah River Site in Aiken, South Carolina for the period of March 12, 1951 to December 31, 1974.  The employee is a covered employee as defined in § 7384l(1) of the Act.  42 U.S.C. § 7384l(1).

4)  In proof of your survivorship, you submitted your birth certificate and a copy of the employee’s death certificate and your mother’s death certificate.  Therefore, you have established that you are a survivor as defined by § 30.5(ee) of the implementing regulations.  20 C.F.R. § 30.5(ee).

5)  The district office issued a recommended decision on September 15, 2004.

6)  The dose reconstruction estimates were performed in accordance with § 7384n(d) of the Act and § 82.10 of the implementing NIOSH regulations.  42 U.S.C. § 7384n(d), 42 C.F.R. § 82.10.

7)  The probability of causation, found to be 52.50%, was completed in accordance with § 7384n(c)(3) of the Act.  42 U.S.C. § 7384n(c)(3).

8)  The employee’s lung cancer and bladder cancer were at least as likely as not caused by his employment at a Department of Energy (DOE) facility, within the meaning of § 7384n of the Act.  42 U.S.C. § 7384n.

9)  On September 23, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the district office on September 15, 2004, and finds that the employee’s lung cancer and bladder cancer were at least as likely as not caused by his employment at a Department of Energy (DOE) facility, within the meaning of § 7384n of the Act; and that you are the eligible surviving beneficiary of the employee as defined under § 7384s(e)(1)(A) of the Act and § 30.501(a) of the implementing regulations.  42 U.S.C. §§ 7384n, 7384s(e)(1)(A), 20 C.F.R. § 30.501(a).  The undersigned hereby affirms the award of $150,000, in accordance with § 7384s(a) of the Act and §§ 30.500 and 30.501 of the implementing regulations.  42 U.S.C. § 7384s(a), 20 C.F.R. §§ 30.500, 30.501.

Jacksonville, FL

James Bibeault

Hearing Representative

[1] Since this is a survivor claim and you are entitled to the maximum allowable benefits of $150,000, a final decision will not be issued regarding the claimed conditions of kidney cancer, renal disease, and other lung condition.

EEOICPA Fin. Dec. No. 63743-2006 (Dep’t of Labor, November 21, 2006)

NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning the claims of [Claimant #1], [Claimant # 6], [Claimant #7], [Claimant #8]and [Claimant # 9] for compensation under Part B, and of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] under Part E, of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claims of [Claimant #1] under Parts B and E, as well as the claims of [Claimant #2], [Claimant #3] and [Claimant #4] under Part E are denied, and the claims of [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part B are approved.

STATEMENT OF THE CASE

On November 29, 2004, [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5 ], [Claimant # 6], [Claimant #7], [Claimant #8] and [Claimant #9] filed Forms EE-2, claiming survivor benefits under Parts B and E of EEOICPA as the children of the employee.  [Claimant #1] filed such a claim on June 14, 2005, as the spouse of the employee.  The Department of Justice (DOJ) confirmed on January 11, 2005 that [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and[Claimant #9] received, on November 22, 2004, an award under Section 5 of the Radiation Exposure Compensation Act (RECA), as the eligible surviving beneficiaries of the employee, for the condition of pneumoconiosis. 

Documents, including birth, marriage and death certificates, birth affidavits and a marital status and family profile issued by the Navajo Nation, and a decree issued by a judge on December 22, 1978, confirmed that [Claimant #2], born on [Date of Birth], [Claimant #3], born on [Date of Birth], [Claimant #4], born on [Date of Birth], [Claimant #5], born on [Date of Birth], [Claimant #7], born on [Date of Birth], [Claimant #8], born on [Date of Birth] and [Claimant #9], born on [Date of Birth], are children of the employee.  Another birth certificate states that [Claimant #6] was born on [Date of Birth] and that her mother was [Claimant #6’s mother], who is also listed as the mother on the birth certificates of [Claimant #7], [Claimant #8] and [Claimant #9].  Subsequently, an obituary from a newspaper was submitted which listed [Claimant #6] as a surviving daughter of the employee.

The death certificate of the employee states that he died on December 1, 1990 and that, at the time of his death, he was married to [Claimant #1’s maiden name].  A marriage certificate confirms that [Claimant #1’s maiden name] was the name of [Claimant #1] until her marriage to the employee, on June 18, 1950.  The death certificate states that the “informant” was [Claimant #2], who, according to his birth affidavit, is the son of the employee and [Claimant #1].

The file also includes a Decree of Dissolution of Marriage, concerning the marriage of the employee and [Claimant #1].  The Decree states that an “absolute divorce” was “granted to the plaintiff,” [Employee], and that this was ordered, on December 22, 1978, by a judge of the Court of the Navajo Nation.  A marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation, on January 10, 2002, also stated that the employee and [Claimant #1] were divorced on December 22, 1978.

The DOJ submitted a document signed on October 8, 2002 by “[Claimant #1]” on which a box was checked indicating that she was not in a legal or common-law marriage to the employee for at least one year prior to his death.  On August 1, 2005, her representative submitted an undated affidavit signed by “[Claimant #1]” stating that she was never divorced from the employee, that she did not knowingly check the box on the DOJ document, that she always uses her middle initial ([Middle initial]) when signing her name, that she needs translation of all documents into Navajo and that she relied on the assistance of the Shiprock Office of the Navajo Uranium Workers in pursuing her claim.

The case was referred to the Office of the Solicitor and the Solicitor responded with an opinion dated December 7, 2005.  The district office then obtained statements from [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], confirming that they had not filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  On April 6, 2006, the district office sent letters to [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5], asking if they had filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  No response to those letters has been received.

On April 11, 2006, the Denver district office issued a recommended decision, concluding that [Claimant #1] is not entitled to compensation under Part B of the Act, but that [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] were each entitled to $6,250 (1/8th of $50,000) under Part B.  The recommended decision also concluded that [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant # 4] are not entitled to compensation under part E of the Act, since the evidence did not support they are eligible survivors of the employee, as defined in 42 U.S.C. § 7385s-3.  The recommended decision also described the criteria which have to be met to be considered a “covered child” under Part E. 

The recommended decision held in abeyance the claims of [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] under Part B, until their response to the inquiry as to whether they had ever filed, or received benefits under, a lawsuit or state workers’ compensation claim.  It also stated that further development of the evidence must take place before a decision could be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part E.       

On April 21, 2006, the FAB received [Claimant #6]‘s, [Claimant #7]‘s and [Claimant #8]‘s waivers of their right to object to the recommended decision.  On June 7, 2006, the FAB received a letter from Lorenzo Williams, the representative of [Claimant #1], expressing objections to the recommended decision and requesting a hearing.  Mr. Williams submitted another letter, dated July 3, 2006, which again stated his objections to the recommended decision, withdrew the request for a hearing and requested a review of the written record.   On September 18, 2006, [Claimant #1], through her representative, was provided twenty days to submit any additional evidence she wished considered.  No additional evidence was submitted. 

OBJECTIONS

The letters of objection included numerous allegations of inappropriate conduct by DOJ, DEEOIC, the Solicitor, government agencies of the Navajo Nation, the Office of Navajo Uranium Workers and [Claimant #1]‘s previous representative.  No evidence was submitted confirming that any such conduct occurred which would have had any bearing on the outcome of the case.

The basic objection of Lorenzo Williams is that the evidence as to whether [Claimant #1] was married to the employee at the time of his death was not properly evaluated.  In particular, he objected that the affidavit made by [Claimant #1] on August 1, 2005, indicating that she was never divorced from the employee, was not considered.  However, its evidentiary value must be weighed in light of the other evidence in the file.  It is true that the employee’s death certificate states that, at that time, he was married to [Claimant #1].  However, it also indicates that the information was based solely on information received from [Claimant #2].

On the other hand, the document which appears to have been signed by [Claimant #1] on October 8, 2002 states that she was not married to the employee at the time of his death.  It should be noted that another document in the file, her marriage certificate, includes a signature of [Claimant #1] without a middle initial. 

Furthermore, an official document was issued by a judge on December 22, 1978 stating that a divorce was granted dissolving the marriage of [Claimant #1] and the employee.  A stamp from the clerk of the court states that the copy in the file is an accurate copy of the document.  Lorenzo Williams, the representative of [Claimant #1] has noted that the document incorrectly states that the two were married in 1951, rather than 1950, as stated in the marriage certificate, and that there is also a stamp indicating the document was “received” in 1991, after the death of the employee.  However, he presented no argument or evidence that these facts would in any way invalidate the divorce decree, which was ordered and signed by the judge on December 22, 1978.

In addition, the file includes another official document, a marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation on January 10, 2002, which further confirms that [Claimant #1] and the employee were divorced on December 22, 1978.

The probative value of these two official documents far outweigh the unclear and conflicted statements from [Claimant #1] and the statement on the death certificate which simply repeated information obtained from one of her children with the employee.

Also, it should be noted that the evidence supports that, after December 22, 1978, the employee had at least three more children with another woman, [Employee’s second wife].  This does not, in and of itself, constitute evidence of the employee’s marital status.  It does, however, lend some credence to the proposition that the employee no longer considered himself married to [Claimant #1]

Finally, as the Solicitor noted in the opinion of December 7, 2005, 42 U.S.C. § 7384u provides for payment of compensation to an individual “who receives, or has received” an award under section 5 of the RECA.  A determination is made by DEEOIC concerning an eligible survivor under that section only if all the individuals who received the RECA award are deceased.  Since, in this case, the individuals who received the award under section 5 of the RECA are still alive, [Claimant #1] would not be eligible for benefits under Part B of the EEOICPA even if it were determined that she was an eligible surviving spouse under § 7384u(e).   

Upon review of the case record, the undersigned makes the following:

FINDINGS OF FACT

1.         You all filed claims for benefits under Parts B and E of EEOICPA.

2.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] received compensation for the condition of pneumoconiosis, as eligible surviving beneficiaries of the employee, under Section 5 of RECA.

3.         The employee died on December 1, 1990.  At the time of his death, [Claimant #2] was 36 years old, [Claimant #3] was 28, [Claimant #4] was 26, [Claimant #5] was 19, [Claimant #6] was 11, [Claimant #7] was 9, [Claimant #8] was 7 and [Claimant #9] was 6.  [Claimant #2], [Claimant #3] and [Claimant #4] were not incapable of self-support when the employee died.

4.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #7], [Claimant #8] and [Claimant #9] are children of the employee. 

5.         [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did not receive any settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness.  [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have not confirmed whether or not they received a settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness. 

6.         [Claimant #1] was married to the employee from June 18, 1950 until December 22, 1978, when they were divorced.

Based on these facts, the undersigned makes the following:     

CONCLUSIONS OF LAW

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted under 20 C.F.R. § 30.313, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, including the letters of objection, and must conclude that no further investigation is warranted.

The EEOICPA provides, under Part E, for payment of compensation to survivors of covered employees.  It specifically states in 42 U.S.C. § 7385s-3 that if “there is no covered spouse. . . payment shall be made in equal shares to all covered children who are alive.”  It defines a “covered spouse” as “a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death,” and a “covered child” as “a child of the employee who, as of the employee’s death. . .had not attained the age of 18 years. . .had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full time student. . .since attaining the age of 18 years; or. . .had been incapable of self-support.”  

For the foregoing reasons, the undersigned finds that the evidence does not support that [Claimant #1] was a “covered spouse” or that [Claimant #2], [Claimant #3] or [Claimant #4] were “covered” children, and their claims for benefits under Part E of EEOICPA are hereby denied.

The EEOICPA provides, under 42 U.S.C. § 7384u, for payment of compensation in the amount of $50,000 to an “individual who receives, or has received, $100,000 under section 5 of the Radiation Exposure Compensation Act.”  [Claimant #1] did not receive an award under section 5 of RECA and, therefore, she is not entitled to compensation under Part B. 

[Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did receive an award under section 5 of RECA and, therefore, they each have an entitlement to $6,250 ($50,000 divided by 8) under Part B.  Since [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] have affirmed that they have not received a payment from a tort suit for the employee’s exposure, there is no offset to their entitlement, under 42 U.S.C. § 7385 of the Act, and compensation is hereby awarded to [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], in the amount of $6,250 each.

When [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have responded to the inquiry as to whether they have received a payment from a lawsuit based upon their father’s employment-related exposure, decisions will be issued on their claims for compensation under Part B of the Act.

Upon further development of the evidence, decisions will be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] for compensation under Part E.       

Washington, DC

Richard Koretz, Hearing Representative

Final Adjudication Branch

EEOICPA Fin. Dec. No. 72762-2006 (Dep’t of Labor, December 2, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning these claims for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA  or the Act).  These claims are accepted in the amount of $25,000 per claimant for a total of $150,000.

STATEMENT OF THE CASE

On June 21, 2002, [Employee’s spouse] filed a claim (Form EE-2) under EEOICPA as the surviving spouse of [Employee].  The file contains the death certificate of [Employee] showing that [Employee] died on January 17, 1994 and identifies [Employee’s spouse] (maiden name) as his surviving spouse.  The file also contains the marriage certificate confirming that [Employee’s spouse] married [Employee] on October 13, 1939.  In addition, the file contains verification from Diebold, Inc. confirming that [Employee] worked for Diebold (AKA Herring-Hall Marvin Safe Company[1]) from February 13, 1941 through October 1, 1982.  The file further contains pathology reports and medical records confirming [Employee]‘s diagnosis of basal cell carcinoma of the left sideburn in 1994, basal cell carcinoma of the right nasal ala in 1993 and lung cancer in 1994. 

On September 11, 2002, the case record was forwarded to the National Institute for Occupational Safety and Health (NIOSH) to determine the probably that [Employee] sustained cancer in the performance of duty while employed at the AWE/DOE facility.  Using the dose estimates provided by NIOSH and the software program NIOSH-IREP, the district office calculated the probability of causation (PoC) for the lung cancer.  These calculations show that the probability that [Employee’s] lung cancer was caused by exposure to radiation during his employment with Diebold is 96.55%.  Including the basal cell carcinomas in the dose reconstruction would increase the PoC; therefore, these cancers are considered causally related.

On June 21, 2005, the Cleveland district office issued a recommended decision.  The district office found [Employee] to be a “covered employee with cancer” and recommended acceptance of [Employee’s spouse]‘s claim.  The district office’s recommendations were accepted by the Final Adjudication Branch and on July 28, 2005 the FAB issued a final decision which awarded [Employee’s spouse] compensation in the amount of $150,000.  On August 19, 2005 payment in the amount of $150,000 was authorized to [Employee’s spouse].  The payment was deposited in her account by electronic funds transfer (EFT) on August 31, 2005.  On September 2, 2005, the Fiscal Office received the death certificate of [Employee’s spouse] showing that she died on August 2, 2005.  On September 7, 2005, the Fiscal Office received notification that the lump sum payment to [Employee’s spouse] was reversed and returned to the Department of Treasury.

On September 22, 2005, [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] filed claims (Form EE-2) as the surviving children of [Employee].  The claimants each submitted their birth certificate showing [Employee’s spouse] and [Employee] as their parents.  In addition, [Claimant #1], [Claimant #2] and [Claimant #5] submitted their marriage certificates documenting their surname change.   

On October 13, 2005, the Director of the Division of Energy Employee Occupational Illness Compensation issued a Director’s Order which vacated the final decision awarding benefits to [Employee’s spouse].  Since [Employee’s spouse] died prior to payment, the Director found that compensation shall be paid in equal shares to all living children of the employee.

Accordingly, on October 20, 2005, the Cleveland district office issued a recommended decision awarding benefits to [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6].  On November 2, 2005, the FAB received signed waivers of any and all objections to the recommended decision from each claimant.  After considering the evidence of record, the waivers of objections, and the NIOSH report, the FAB hereby makes the following:

FINDINGS OF FACT

1.         [Employee] worked at a covered facility, Diebold (AKA Herring-Hall Marvin Save Company) during a period of residual contamination and AWE facility designation.      

2.         [Employee] was diagnosed with lung cancer and multiple basal cell carcinomas after beginning employment at the covered facility.

3.         There is at least a 96.55% probability that [Employee’s] cancers were caused by exposure to radiation during his employment at Diebold.

4.         [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the surviving children of [Employee] and his eligible beneficiaries.

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

CONCLUSIONS OF LAW

To facilitate a claim for cancer under Part B of EEOICPA, the Act explains that a “covered employee with cancer” is, among other things, an AWE employee who contracted that cancer after beginning employment at an AWE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty.  42 U.S.C. § 7384l(9)(B).  To establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs OWCP to forward a complete copy of the case record to NIOSH for dose reconstruction.[2]  20 C.F.R. § 30.115. 

The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is at least a 96.55% probability that [Employee]‘s cancers were related to his employment at Diebold.  Since the probability of causation is greater than 50%, it is determined that [Employee] incurred cancer in the performance of duty at an AWE facility. 

Section 7384s of the EEOICPA, which provides the order of payment for compensation payable under Part B of the Act, states that if there is no surviving spouse at the time payment, such payment shall be made in equal shares to all children of the covered employee.  The submissions of the employee’s death certificate as well as the death certificate of his surviving spouse and the claimants birth certificates showing the employee as their father is sufficient to establish that [Claimant #1], [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5] and [Claimant #6] are the employee’s surviving children and eligible beneficiaries. 

Accordingly, these claims for compensation in the amount of $25,000 each for a total of $150,000 are hereby approved.    

Washington, DC

Vawndalyn B. Feagins

Hearing Representative

Final Adjudication Branch

[1] According to the DOE Covered Facility List, Herring-Hall is identified as an AWE facility from 1943 through 1951; residual radiation from 1952 through 1993; and a DOE facility from 1994 through 1995 due to remediation http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (As of December 2, 2005).

[2]  NIOSH’s approach to conclude the dose reconstruction process based on claimant-favorable assumptions is consistent with its methodology.  Section 30.318 of the regulations states that “The methodology used by HHS in arriving at reasonable estimates of the radiation doses received. . .is binding on the FAB.”  20 C.F.R. § 30.318.

To survivors living at time of payment

EEOICPA Fin. Dec. No. 10045849-2007 (Dep’t of Labor, December 31, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’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 claimant’s claim under Part E of EEOICPA is accepted.  The claimant is entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to her receipt of her survivor share under Part E.

STATEMENT OF THE CASE

On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] (the employee) was employed by Department of Energy (DOE) contractors at the K-25 Plant, a DOE facility, and at the Los Alamos National Laboratory (LANL), a DOE facility; that he is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.   

On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E of EEOICPA; and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.

On August 17, 2007, the Seattle district office received notification that [Employee’s Child #2] had passed away on August 16, 2007.  A copy of [Employee’s Child #2]‘s death certificate confirms that she died on August 16, 2007.  On September 21, 2007, the Seattle district office issued a recommended decision that concluded that the claimant was entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to receipt of her share of the Part E survivor benefits. 

On December 26, 2007, the Director of the Division of Energy Employees Occupational Illness Compensation issued a Director’s Order reopening the claimant’s claim for compensation, and returning the case record to FAB for review of the September 21, 2007 recommended decision, and issuance of a new final decision regarding the applicable survivor benefit payable.

After considering the written record of the claim forwarded by the Director’s Office, and after conducting any further development of the claim as was deemed necessary, FAB hereby makes the following:

FINDINGS OF FACT

  1. [Employee’s Child #1], [Employee’s Child #2], and [Claimant] filed claims for benefits under EEOICPA as the surviving children of [Employee].
  1. The claimant’s father, [Employee], was employed by DOE contractors at the K-25 Plant, a DOE facility, and at LANL, a DOE facility.
  1. [Employee] was diagnosed with colon cancer in July of 1956 and with liver cancer in August 1958.
  1. [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver.
  1. On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.
  1. On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E, and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.
  1. [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.

Based on the above-noted findings of fact in this claim, and pursuant to the authority granted by the EEOICPA regulations, FAB hereby also makes the following:

CONCLUSIONS OF LAW

If one of the survivors on a multiple survivor claim dies before payment is issued, the compensation is reapportioned among the remaining survivors.  See Federal (EEOICPA) Procedure Manual, Chapter E-600.8c (September 2005). 

The term “covered child” under Part E of EEOICPA means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

The evidence of record establishes that the employee died on August 5, 1958, at the age of 48, due to carcinoma of the liver, a covered condition.  The evidence of record also establishes that [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.  [Claimant] is, therefore, the only eligible beneficiary of the employee under Part E.  42 U.S.C. § 7385s-3(d)(2).  The record also shows that that there was an aggregate of not less than 10 years, before [Employee]‘s normal retirement age (for purposes of the Social Security Act), during which, as the direct result of his covered illness, his annual wage did not exceed 50% of his average annual wage.  42 U.S.C. § 7385s-3(a)(2).

Accordingly, [Claimant], as a covered child, is entitled to compensation under Part E in the amount of $150,000.00, less any survivor benefits previously paid to him under Part E in this case, pursuant to 42 U.S.C. § 7385s-3(a)(2), and Chapter E-600.8c of the Procedure Manual. 

Washington, DC

Amanda M. Fallon 

Hearing Representative

Final Adjudication Branch