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Below are the head notes for the FAB decisions and orders relating to the topic heading, Survivors. The head notes are grouped under the following subheadings: Adopted children, Children, Election for survivors under Part E, Eligibility, Grandchildren, Marriage and Divorce, Non-claiming individuals, Parents, Reimbursement of deceased employee’s medical expenses, Spouse, and Stepchildren. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Adopted children

  • An adopted Navajo child may claim EEOICPA benefits only as a survivor of her adoptive father and not her natural father because under the Navajo Nation Code the natural parents of an adoptive child are “relieved of all parental responsibilities for such child or to his property by descent or distribution or otherwise.” EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).
  • Where deceased DOE contractor employee was a “covered employee with cancer” and a member of the SEC and had no surviving spouse, the employee’s five surviving children living at the time of payment were awarded equal shares of the $150,000.00 lump-sum compensation awarded under Part B. Four of the five children were his biological children and one was his adopted child. EEOICPA Fin. Dec. No. 82961-2008 (Dep’t of Labor, March 27, 2008).

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Children

  • Under either Part B or Part E of EEOICPA, a “child” of an individual must be either a biological child, a stepchild, or an adopted child of the individual. In this case, a nephew of a deceased covered employee was not a “child,” regardless of evidence that the nephew was supported by the employee and lived in a parent-child relationship with the employee for several years. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • Dependency alone does not does not establish that a claimant is a “child” of a deceased covered employee under EEOICPA. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • In its determination of whether a claimant satisfies EEOICPA’s definition of “child,” DEEOIC is not bound by a state court’s declaration of what constitutes a “de facto parent” in a visitation-rights case. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • Under Part B, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a “child” of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. EEOICPA Fin. Dec. No. 95118-2010 (Dep’t of Labor, July 12, 2010).
  • Surviving child met the definition of a “covered” child entitled to Part E survivor benefits under § 7385s-3(d) since at the time of the employee’s death, she was under the age of 23 and a full-time student who had been continuously enrolled since attaining the age of 18. Although there was a lapse of several months when she was not enrolled in full-time studies, the lapse was due to circumstances beyond her control because she had to wait for an opening at the institution. EEOICPA Fin. Dec. No. 10003238-2005 (Dep’t of Labor, October 28, 2005).
  • Child who was 54 years old when his father died met the definition of a “covered” child under Part E because he was “incapable of self-support” at the time of the employee’s death. The evidence showed that he was 100% disabled (for which he was receiving veterans’ benefits) due to post-traumatic stress disorder and other disabling conditions. The Social Security Administration and the Department of Veterans’ Affairs provided information that the claimant had no earnings from at least 2000 to 2004. EEOICPA Fin. Dec. No. 10012834-2006 (Dep’t of Labor, February 21, 2007).
  • Woman who was 60 years old at the time of her mother’s death filed a claim under Part E as a surviving “covered” child and alleged that she was incapable of self-support. Her physician submitted evidence that she had diabetes mellitus, fibromyalgia, crippling arthritis and other medical conditions, and opined that she was incapable of self-support in October 1999. However, the medical evidence in the case file only addressed the time period after her mother’s death and was insufficient to establish that she was incapable of self-support at the time of her mother’s death. EEOICPA Fin. Dec. No. 10017360-2006 (Dep’t of Labor, August 22, 2006).
  • Surviving child awarded benefits under Part B was not eligible for a Part E award because she did not meet the definition of a “covered” child eligible for Part E benefits in § 7385s-3(d) since at the time of the employee’s death, she was not under the age of 18, nor was she a full-time student under the age of 23 who was continuously enrolled full-time in an institution of higher learning, nor was she incapable of self-support. EEOICPA Fin. Dec. No. 10037246-2005 (Dep’t of Labor, November 2, 2005).
  • Claimant alleged that she was a “covered” child under Part E because she was 41 years old and “incapable of self-support” at the time of the employee’s death. The evidence showed that the claimant had Turner Syndrome, that she earned wages from her part-time employment in the fast-food industry during the year her father died, that she was married but unable to live alone, and that her medical condition had, and continues to have, an adverse effect on her ability to earn a sustainable living wage. Under DEEOIC’s established procedures, a child will be found to be incapable of self-support if, at the time of the employee’s death, his or her physical or mental condition was such that they were unable to obtain and retain a job or engage in self-employment that could provide them with a sustainable living wage. Thus, FAB concluded in this case that although the claimant was able to earn some wages, the totality of the factual and medical evidence showed that she was incapable of earning a sustainable living at the time of her father's death. EEOICPA Fin. Dec. No. 20130911-32747-2 (Dep’t of Labor, June 9, 2014).
  • Triplets conceived approximately three years after the death of the employee by use of his stored sperm were not eligible for survivor benefits under Part E because they were not alive at the time of the employee’s death, as is required in order for them to qualify as “covered” children under that Part. EEOICPA Fin. Dec. No. 20150227-20000844-2 (Dep’t of Labor, March 31, 2015).
  • Under Part B of EEOICPA, the definition of a “biological child” is broad. However, triplets conceived approximately three years after the death of the employee by use of his stored sperm did not qualify as surviving children of the employee under Part B, based on the laws of British Columbia, Canada, where the sperm samples were stored and the triplets were born. EEOICPA Fin. Dec. No. 20160112-20000844-3 (Dep’t of Labor, February 11, 2016).

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Election for survivors under Part E

  • If a covered Part E employee dies after filing a Part E claim but before monetary benefits are paid, and death is caused solely by a non-covered illness or illnesses, the survivor may choose to receive the benefits that would have been payable to the employee. Here, the covered illnesses were found to have aggravated, contributed to, or caused the covered Part E employee’s death. Consequently, his surviving spouse could not choose the benefits that would have been payable to the employee if he had not died before receiving payment, but she was entitled to survivor benefits in the amount of $125,000. EEOICPA Fin. Dec. No. 10055714-2007 (Dep’t of Labor, April 11, 2007); EEOICPA Fin. Dec. No. 20190329-72990-5 (Dep’t of Labor, June 13, 2019).
  • Under 42 U.S.C. § 7385s-1(2)(B), if a covered employee files a claim for Part E monetary benefits but dies before payment of those same monetary benefits occurs, and the employee’s death is due solely to a cause other than his or her covered illness or illnesses, then the employee’s survivor can elect to stand in the deceased employee’s shoes to receive the unpaid award in lieu of the usual survivor benefits available under § 7385s-3 of EEOICPA. In this case, the surviving spouse was eligible to make the election to receive the deceased employee’s increased impairment benefits, which were claimed but not paid before his death, under § 7385s-1(2)(B). The undisputed fact that the employee earlier claimed for and received an award of impairment benefits prior to his death did not act as a bar on the claimant’s right to make this statutory election. EEOICPA Fin. Dec. No. 20131227-64263-2 (Dep’t of Labor, August 12, 2016).

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Eligibility

  • A nephew of a deceased covered employee who was never adopted by the employee does not meet EEOICPA’s definition of a “child” and is not an eligible survivor under Part B or Part E, regardless of evidence that the nephew was supported by the employee and lived in a parent-child relationship with the employee for several years. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • Eligibility under Part B of EEOICPA is limited to either a covered Part B employee or eligible survivor(s), but not both. A deceased employee’s estate is not eligible to receive compensation. EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005).
  • An employee’s sibling is not eligible for survivor benefits under Part B. EEOICPA Fin. Dec. No. 60958-2005 (Dep’t of Labor, February 24, 2005).
  • Where surviving spouse entitled to Part B lump-sum payment died prior to the date that the payment was electronically deposited in her account, the payment was reversed and the final decision awarding benefits to her was vacated. A new final decision was issued awarding benefits to the surviving children. EEOICPA Fin. Dec. No. 72762-2006 (Dep’t of Labor, December 2, 2005).
  • A survivor is only entitled to compensation under Part E if the employee would have been entitled to compensation under Part E for a covered illness and if 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 illness and the death of the employee. EEOICPA Fin. Dec. No. 10061144-2007 (Dep’t of Labor, April 30, 2008).
  • It is the policy of DEEOIC that provisions of 42 U.S.C. §§ 7384s(e)(1), 7385s-1(2)(B) and 7385s-3(a) require that it redistribute in equal shares the pro rata share of survivor benefits forfeited by a potentially eligible survivor who was previously convicted of committing fraud in the application for or receipt of workers’ compensation benefits to his or her eligible siblings. This policy ensures that the full amount payable on account of the covered employee’s employment-related illness is received, if not by the covered employee, then by the employee’s living and eligible survivors. Based on this policy, FAB redistributed the pro rata share of a surviving child who had been convicted of committing fraud and paid it to his siblings, in equal shares. EEOICPA Fin. Dec. No. 20130604-16094-1 (Dep’t of Labor, February 28, 2014).

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Grandchildren

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Marriage and divorce

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Non-claiming individuals

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Parents

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Reimbursement of deceased employee’s medical expenses

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Spouse

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Stepchildren

  • Because it did not appear that claimant was a biological child of the employee, the FAB directed the district office to provide the claimant an opportunity to establish that she was a stepchild who lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003).
  • In cases involving a stepchild or stepchildren who were adults at the time of the covered employee’s marriage, supporting evidence that they lived in a regular parent-child relationship may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc. In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful. Also, evidence such as copies of insurance policies, wills, photographs showing attendance at a stepchild’s wedding as the father or mother or at other types of family gatherings, and newspaper articles like obituaries or any other documentation that refer to the stepchild and the decease employee in a familial way may be used. EEOICPA Fin. Dec. No. 32000-2002 (Dep’t of Labor, September 13, 2004); EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).
  • There is no minimum or maximum time period that a person has to have lived in the same household as the employee in order to be a stepchild. Here the evidence indicated that the stepchildren lived with the employee for at least three years and were listed as his children in the employee’s obituary. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
  • A child was determined to be the employee’s stepchild since the employee’s name was listed as the father on the birth certificate and there was no evidence the child was formally adopted by the putative natural father. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
  • Even though claimant was an adult at the time his mother and stepfather (the employee) were married, he submitted evidence sufficient to establish that he lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 55831-2004 (Dep’t of Labor, July 29, 2005).
  • Claimant established that she was a stepchild of the employee who lived with the employee in a regular parent-child relationship by providing a copy of her permanent school record naming the employee as her father, a copy of the employee’s will naming the claimant as one of his children and a letter written by one of the employee’s biological children confirming that the claimant was her sister and was raised in the same household as the employee’s biological children. EEOICPA Fin. Dec. No. 68949-2005 (Dep’t of Labor, September 21, 2005).

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