U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH



EMPLOYEE:                                                             [Name Deleted]

 

CLAIMANTS:                                                           [Name Deleted]

                                                                                    [Name Deleted]

 

FILE NUMBER:                                                       [Number Deleted]

 

DOCKET NUMBERS:                                             10003238-2005

10003239-2005

 

DECISION DATE:                                                    October 28, 2005

 

 

NOTICE OF FINAL DECISION

 

This is a decision of the Final Adjudication Branch (FAB) concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended.  42 U.S.C. § 7384 et seq.  (EEOICPA or Act).  For the reasons set forth below, your claims are accepted. 

 

STATEMENT OF THE CASE

 

On February 7, 2005, [Claimant #1] filed a Request for Review by Medical Panels form based on the colon cancer of [Employee], hereinafter referred to as “the employee.”  On February 11, 2005, [Claimant #2] filed a Request for Review by Medical Panels form.  A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991.  The employee’s death certificate shows that the employee died on May 15, 1991, as a consequence of colon cancer.

 

Prior to your filing, the employee’s spouse at the time of his death, [Employee’s Spouse], filed a form EE-2, Claim for Survivor Benefits under the EEOICPA.  On January 28, 2003, the Final Adjudication Branch issued a final decision awarding [Employee’s Spouse] $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.

 

You submitted the death certificate of [Employee’s Spouse], showing she died on October 17, 2004.  You also submitted birth certificates showing [Claimant #1] was born on April 5, 1972, and [Claimant #2] was born on May 25, 1974.  In addition, you submitted documentation showing [Claimant #1] was a full-time student at the time of the employee’s death.  Although there was a lapse of several months when she was not enrolled in full-time studies, [Claimant #1] explained that the lapse was due to circumstances beyond her control, namely she had to wait for an opening at the institution in which she subsequently enrolled at her earliest opportunity.

 

On August 8, 2005, the Seattle district office received written confirmation from both of you stating that neither you nor the employee had received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that there were no other children of the employee who were covered under § 7385s of the Act.

 

Since the employee had five other children, the Seattle district office contacted these children by telephone and in writing.  Each of the children responded by stating that they did not fit any of the following categories at the time of the employee’s death:

 

A) had not attained the age of 18 years;

B) had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years; or

C) had been incapable of self-support.

42 U.S.C. § 7385s-3(d).

 

On September 6, 2005, the Seattle district office issued a recommended decision, concluding that you are entitled to survivor benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer. 

 

On September 19, 2005, the Final Adjudication Branch received written notification that you both waived any and all objections to the recommended decision.

 

FINDINGS OF FACT

 

1)  You each filed a Request for Review by Medical Panels form based on the employee’s colon cancer.

 

2)  On January 28, 2003, the Final Adjudication Branch issued a final decision awarding the employee’s spouse at the time of his death $150,000 on the basis of the employee’s colon cancer since he was a member of the Special Exposure Cohort.[1]

 

3)  A pathology report shows the employee was diagnosed with colon cancer on April 29, 1991.  

 

4)  The employee’s death certificate shows that the employee died as a consequence of colon cancer.

 

5)  You are the natural children of the employee.  At the time of the employee’s death, [Claimant #2] had not attained the age of 18 and [Claimant #1] had not attained the age of 23 and was a full-time student who had been continuously[2] enrolled as a full-time student since attaining the age of 18.

 

6)  You both meet the definition of a “covered” child.

 

7)  On August 15, 2005, the Jacksonville district office issued a recommended decision. 

 

CONCLUSIONS OF LAW

 

The Final Adjudication Branch has reviewed the record and the recommended decision of August 15, 2005, and makes the following conclusions.

 

The employee was an employee of a DOE contractor at a DOE facility, as defined under section 7384 of the Act.  42 U.S.C. §§ 7384l(11), 7384l(12).

 

The determination under § 7384 of the Act that a DOE contractor employee is entitled to compensation under that part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).  Therefore, the employee is a covered DOE contractor employee with a covered illness.  42 U.S.C. §§ 7385s(1), 7385s(2). 

 

You are the covered children of the deceased employee, and the employee’s death certificate shows that the employee died as a consequence of lung cancer.  42 U.S.C. § 7385s-3(d)(2).  Therefore, you are entitled to death benefits in the amount of $62,000 each for a total of $125,000 for the employee’s death due to colon cancer.  42 U.S.C. §§ 7385s-3(a)(1), 7385s-3(c)(2).

 

Jacksonville, FL

 

 

 

Mark Stewart

Hearing Representative

 



[1] As stated in the December 16, 2002 recommended decision, the employee was employed at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee, from July 1, 1970 to June 28, 1985, and he wore a dosimetry badge.

[2] Although there was a lapse in her enrollment, as explained earlier in the decision the lapse was outside of her control, and she enrolled at her earliest opportunity.