| U.S. DEPARTMENT OF LABOR | OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH |
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EMPLOYEE: [Name
Deleted]
CLAIMANT: [Name
Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 10004605-2006
DECISION DATE: September 30,
2010
NOTICE
OF FINAL DECISION
FOLLOWING
A HEARING
This is the decision of the Final
Adjudication Branch (FAB) on the employee’s claim for wage-loss benefits under
Part E of the Energy Employees Occupational Illness Compensation Program Act of
2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.
For the reasons set forth below, the employee’s claim for wage-loss benefits
based on his covered illness of chronic atrophic gastritis is denied. The employee’s pending claims for nephritis
and beryllium sensitivity are deferred at this time.
STATEMENT OF THE CASE
On August 16, 2001, the
employee filed a request for assistance with the Department of Energy (DOE)
under Part D of EEOICPA in connection with a state workers’ compensation claim for chronic atrophic gastritis (and a number of other claimed
illnesses). DOE verified that he was a DOE
contractor employee who had worked as a machinist at the Rocky Flats Plant in
Golden,
On December 2, 2005, DEEOIC
sent the employee a letter asking if he wanted to request wage-loss benefits
under Part E for his chronic atrophic gastritis. The letter indicated that if he wanted to
submit such a request, he should notify DEEOIC of that fact and provide “the
period of time and amount of wage loss that was caused by the accepted
condition of chronic atrophic gastritis.”
The letter also asked for evidence of any claimed wage-loss. In response, the employee’s authorized
representative indicated that the employee was claiming for wage-loss benefits from
the date he was diagnosed with chronic atrophic gastritis “to today March 22,
2006.”[2] In support of this claim, the employee
submitted an Operative Record of the
After considering his October
5, 2005 report, the district office wrote to Dr. Told on April 6, 2006 and
asked him to clarify the statements in that report and supply additional
evidence regarding whether the employee’s covered illness caused him to lose
wages. Specifically, the district office
asked Dr. Told how he came to the conclusion that the covered illness caused the
employee to lose wages and “[s]ince you state that the gastritis is inactive, what
periods of time did the gastritis keep [Employee]
from working?” In response, Dr. Told
sent an April 24, 2006 letter that reads, in its entirety, as follows:
In
response to your letter regarding [Employee],
I did indeed do endoscopy and observed firsthand the chronicity of his
gastritis. Biopsies did confirm a
chronic gastritis of the atrophic type. [Employee] has also been symptomatic
throughout this period. I have observed
his response to the medication and stressful situations and have concluded that
he will not improve in spite of medicine.
He does need to have avoidance therapy for situations that cause
hyperacidity. I know of no surgeries
that will correct this, since hemigastrectomy is an archaic operation. Therefore, it is my conclusion that he would
require stress avoidance as the only effective means of controlling chronic
gastritis and I feel he will never be able to work again.
On May 2, 2006, the district office
issued a recommended decision to deny the employee’s claim for wage-loss
benefits for his accepted chronic atrophic gastritis. The employee objected to the recommended
decision and requested a hearing before FAB, which was held on September 26,
2006. On May 2, 2007, FAB issued a final
decision denying the employee’s claim for wage-loss benefits due to the lack of
probative evidence of a causal relationship between the employee’s covered
illness and any period of wage-loss. The
employee sought timely review of FAB’s decision in the United States District
Court for the District of Colorado and on January 29, 2009, Judge Lewis T.
Babcock issued an order vacating FAB’s denial of the employee’s wage-loss claim
based on his chronic atrophic gastritis and remanding the case back to DEEOIC
on that point.[3] Judge Babcock held that FAB’s decision on the
employee’s wage-loss claim for chronic atrophic gastritis was arbitrary and
capricious because it found that Dr. Told’s April 24, 2006 opinion regarding
causation as of that date was contradicted by other evidence. In his remand order, Judge Babcock disagreed
with that particular finding and provided this direction for DEEOIC’s further development
of the claim:
Accordingly,
Dr. Told’s statement that [the employee] “will never be able to work again”—at
least as of April 24, 2006, the date of Dr. Told’s letter to that effect—was in
fact uncontradicted by the relevant medical record.
* * *
Accordingly,
to the extent the May 2, 2007 Final Decision denied [the employee’s]
application for wage-loss benefits for his gastritis, it is reversed and
remanded for further proceedings. On
remand, OWCP may not disregard Dr. Told’s uncontradicted medical opinion
without articulating a relevant
factual basis. Further, if OWCP accepts
Dr. Told’s uncontradicted opinion, it must make an additional factual inquiry
to determine the relevant dates of wage-loss.
On remand, DEEOIC accepted
Dr. Told’s uncontradicted opinion that the employee could no longer work as of
April 24, 2006 due to his chronic atrophic gastritis and followed Judge
Babcock’s directive to make additional factual inquiries regarding the employee’s
dates of wage-loss. In a November 18,
2009 development letter, DEEOIC set out the relevant evidence already in the
case file and asked the employee to submit additional evidence to determine any
dates of compensable wage-loss, as follows:
You have
claimed that you suffered wage-loss as a result of your chronic atrophic
gastritis from May 1995 to the present day.
In accord with Judge Babcock’s Memorandum Opinion and Order, we accept
that Dr. Told’s April 24, 2006 letter constitutes an uncontradicted medical
opinion that your covered illness of chronic atrophic gastritis prevented you
from working on and after April 24, 2006.
However, we do not yet have sufficient evidence that you experienced
wage-loss that is compensable under Part E of EEOICPA and we ask that you submit
any evidence that you have that might support your claim. Specifically, we do not have sufficient
probative evidence that your chronic atrophic gastritis caused you to
experience wage-loss for any particular period of time between March 22, 1995
and April 24, 2006. The evidence shows
that your gastritis was inactive on the date of its initial diagnosis and that
it was inactive when you were examined by Dr. Told on October 5, 2005. Dr. Told’s October 5, 2005 letter indicates
that you experienced “periods of chronicity with recurrent pain,” but there is
no evidence in the case file of the frequency, duration, or severity of those
flare-ups and there is insufficient evidence in the case file to establish that
these flare-ups ever caused you to experience quantifiable wage-loss for any
identifiable period of time.
Additionally, although the evidence supports a finding that your covered
illness of chronic atrophic gastritis prevented you from working on and after
April 24, 2006, there is no evidence in the case file that you earned wages at
any time during the 36-month period immediately preceding that date.
The
wage-loss provisions in the Act and regulations require that you submit
evidence of an identifiable period of wage-loss and that you submit rationalized
medical evidence to establish that the period of wage-loss is causally related
to the covered illness. Additionally, to
be eligible for wage-loss benefits under the Act, you must have earned wages in
the 36-month period immediately preceding your first period of wage-loss. Thus, if your wage-loss due to your covered
illness began in April 2006, you need to submit evidence establishing earned
income during the 36-month period immediately preceding that month.
Please
submit any additional evidence that you have not yet submitted that will assist
us in determining the relevant dates of wage-loss caused by your chronic
atrophic gastritis. Please provide
evidence of the frequency, duration, and severity of the active flare-ups of
chronic atrophic gastritis that you have experienced and provide evidence of
dates during which those flare-ups caused you to experience wage-loss. If any of your evidence is in the form of a
sworn written statement, please provide documentation to corroborate any
factual assertions that you make in your written statement. Employment and earnings evidence showing
actual dates of wage-loss, as well as medical evidence that shows a causal
relationship between specific periods of wage-loss and your chronic atrophic
gastritis, is vitally important to the eligibility determination in your case.
In response to the above
request, the employee’s representative submitted a letter and several
enclosures on December 30, 2009: (1) a
copy of the employee’s December 18, 1995 state workers’ compensation claim for an
injury to “multiple body parts” on July 5, 1989; (2) a portion of a December
20, 1995 letter to the Traveler’s Insurance Company that purports to show the
employee’s medical expenses related to chronic atrophic gastritis up to that
date; (3) a January 27, 1996 letter from the employee to the Colorado Division
of Workers’ Compensation in which the employee states that he was diagnosed
with chronic atrophic gastritis in 1995, and in which the employee describes a
contamination accident that is alleged to have occurred around October of 1982;
(4) a November 2, 1995 letter from the employee to a Mr. Jerman, notifying him of
the employee’s workers’ compensation claim; (5) pharmacy receipts from 1996 for
Pepcid tablets and Propulcid; (6) a Diagnostic Imaging Report of an October 20,
1998 examination of the employee’s abdomen and pelvis, in which Dr. Mark J.
Sulek concluded “NO ABNORMALITY IDENTIFIED”; and (7) a typed page which
purports to show the employee’s earnings for each calendar year from 1970
through 1997.
Item 7 above was signed by
the employee and shows earnings figures for 1991 to the present as follows: $3,768.48 in 1991; $13,423.25 in 1992; $5,650.89
in 1993; $2,494.35 in 1994; $0 in 1995 and 1996; and $1,658.32 in 1997. These earnings figures are consistent with those
shown by Social Security Administration (SSA) documents that were already in
the case file. The other SSA documents
in the file also indicate that the employee had no earned wages reported for
any year from 1998 through 2008. Despite
being asked to do so, the employee did not provide any statement or documented
evidence of the frequency, duration, and severity of the active flare-ups of
chronic atrophic gastritis that he experienced from 1995 to the present, nor
did he provide the requested evidence of dates during which those flare-ups
caused him to experience wage-loss.
On January 26, 2010, the
district office issued a recommended decision to deny the employee’s claim for
wage-loss benefits based on his accepted chronic atrophic gastritis. The district office’s recommendation was
based on two separate conclusions of law regarding the period prior to April
24, 2006 and the period on and after that date.
After their analysis of the evidence of the pre-April 24, 2006 time
period, the district office stated:
Based on
the totality of the evidence in the case file, we conclude that the rationalized
medical evidence in this case is not sufficient to establish a causal
relationship between the employee’s covered illness and any loss of wages prior
to April 24, 2006. Thus, as the evidence
is insufficient to establish that the covered illness caused any wage-loss
prior to April 24, 2006, there can be no qualifying wage-loss for the calendar
years prior to that date. See 42 U.S.C. § 7385s-2(a)(2)(A)(i); 20
C.F.R. § 30.805.
Regarding the period
beginning on April 24, 2006, the district office concluded—consistent with
Judge Babcock’s Order—that “the rationalized medical evidence of causation is
sufficient to establish that the employee’s illness would keep him from working
from April 24, 2006 forward.” However,
the district office also concluded that since the evidence established that the
employee earned no wages during the relevant 36-month period prior to April 24,
2006, the employee could not have any qualifying calendar years of wage-loss
after that date because, by application of the formula supplied by the statute,
he had no wages to lose.
OBJECTIONS
By letter dated March 15,
2010, the employee’s representative objected to the recommended decision and
requested a hearing before FAB. The
letter of objection did not identify any finding of fact or conclusion of law
with which the employee disagreed; rather, it was simply a general objection to
the recommended denial of benefits.
Per the employee’s request, a
telephone hearing was conducted on May 25, 2010, at which the employee and his
representative both testified. The
employee testified that he made several hospital visits when he experienced
flare-ups of gastritis, but he stated he had no documentation to corroborate
that allegation. He also testified that
he sometimes simply did not go to work because of stomach pain that may have
been due to his gastritis, but he provided no dates and made no assertions of amounts
of income that were lost due to such sick days.
The employee’s representative argued that the burden of proof as “impossible”
to satisfy and asserted that DEEOIC had “ignored” Dr. Told’s letters and given
them too little weight. She asserted
that the evidence already submitted was sufficient to prove the employee’s wage-loss
claim. Also, the employee confirmed that
he stopped working in 1998, with the exception of some occasional work scooping
snow from friends’ driveways—which he described as “just a fly-by-night, you
know, friend type thing here and there, that type of situation”—but he provided
no time frame or income amounts relating to this work. The representative testified that the
employee “didn’t make enough [through this occasional work] to report it on Federal
income tax.”
On June 17, 2010, the
representative submitted a copy of a one-page April 29, 1996 report by Dr. Lawrence
Stelmach. In this report, which was
written for use in the employee’s state workers’ compensation claim, Dr. Stelmach
noted that the employee had been a patient of his for less than a year,
reviewed his past medical records and provided his current findings. Dr. Stelmach stated that “biopsy done in the
spring of 1995 did show some gastric atrophy of non-specific character and his
symptoms have been unremitting since that time.” Dr. Stelmach concluded by observing that “[a]t
this point it appears as though this patient is chronically debilitated.”
After reviewing the evidence
in the case file, FAB hereby makes the following:
FINDINGS OF FACT
- On August 16, 2001, the employee filed a claim under
EEOICPA for his illness of chronic atrophic gastritis.
- The employee was a DOE contractor employee at the
Rocky Flats Plant from March 1, 1982 to July 5, 1989.
- The employee was diagnosed with chronic atrophic
gastritis on March 22, 1995, and his gastritis was inactive at that time.
- On January 12, 2006, FAB issued a final decision
accepting the employee’s claim for chronic atrophic gastritis and awarding
him medical benefits under Part E for that covered illness.
- On December 14, 2005 and March 22, 2006, the
employee claimed for wage-loss benefits under Part E based on his chronic
atrophic gastritis and alleged that he had lost wages due to that illness from
the March 22, 1995 date of his diagnosis to the present.
- Starting in 1991, the employee earned reported wages
as follows: 1991 $3,768.48; 1992 $13,423.25;
1993 $5,650.89; 1994 $2,494.35; 1995 and 1996 $0; 1997 $1,658.32. The employee earned no reported wages
from 1998 up to the May 25, 2010 date of his latest hearing.
- On January 25, 1997, the employee was examined by
Dr. Brown, who wrote a detailed medical report that included a “Functional
Assessment” in which she opined that the employee’s atrophic gastritis
“should not limit the claimant in any areas of employment.” This medical opinion is the only opinion
in the file that addresses wage-loss due to chronic atrophic gastritis between
March 1995 and October 2005.
- On April 24, 2006, Dr. Told opined that the
employee “will never be able to work again” due to his chronic atrophic
gastritis.
Based on the above-noted findings
of fact and the totality of the evidence, FAB hereby makes the following:
CONCLUSIONS OF LAW
Part
E of EEOICPA provides several different types of benefits to eligible DOE
contractor employees. Among those
benefits are medical benefits, compensation for permanent impairment, and
compensation for qualifying calendar years of wage-loss. In order to prove eligibility for any of
these benefits, the evidence must establish that the employee is or was a
“covered DOE contractor employee” and that he or she contracted a “covered
illness” through exposure to a toxic substance at a DOE facility.
In
this particular Part E claim, FAB has already determined that the employee is a
“covered DOE contractor employee,” as that term is defined in 42 U.S.C. §
7385s(1), and that his chronic atrophic gastritis is a “covered illness”
pursuant to § 7385s(2). Additionally, he
has already been
awarded both medical benefits and impairment benefits under Part E for that
covered illness. However, FAB concludes
that the employee did not experience qualifying calendar years of wage-loss as
the result of his covered illness of chronic atrophic gastritis and that,
therefore, he is not entitled to wage-loss benefits for that illness under Part
E of EEOICPA. See 42 U.S.C. § 7385s-2(a)(2).
The employee claims entitlement to wage-loss
benefits from March 1995 to the present.
In order to establish qualifying calendar years of wage-loss under Part
E, the statute requires evidence that the employee experienced wage-loss
beginning in a specific month, as well as rationalized medical evidence that
the wage-loss in that “trigger month” was caused by his covered illness. See
42 U.S.C. § 7385s-2(a)(2); 20 C.F.R. §§ 30.800-805. Both the loss of wages and the causal
relationship with the covered illness must be proven. If the
evidence does not sufficiently prove the statutory element of causation, the
employee cannot have qualifying calendar years of wage-loss because the covered
illness did not cause his wage-loss.
Likewise, if the evidence does not show that the employee earned wages
during the 36-month period immediately preceding the trigger month, the
employee cannot have qualifying calendar years of wage-loss because he had no
wages to lose. These elements of
causation and lost earnings must co-exist, and must be tied to the same trigger
month, in order for a wage-loss claim to satisfy the statutory
requirements. See
42 U.S.C. § 7385s-2(a)(2); 20 C.F.R. §§ 30.800-811. See also Trego v. Dep’t of Labor, 681 F.Supp.2d 894 (E.D. Tenn. 2009).
A review of the medical evidence of record establishes that the employee was first diagnosed with chronic atrophic gastritis on March 22, 1995. Two separate doctors, Dr. Newman and Dr. Mayer, opined that the employee’s gastritis was inactive as of the date of its diagnosis. In chronological order, the next piece of medical evidence is the April 29, 1996 report of Dr. Stelmach. In that report, Dr. Stelmach reviewed the employee’s gastrointestinal issues up to that point in time, and concluded that “[a]t this point it appears as though this patient is chronically debilitated.” In her June 17, 2010 letter to FAB, the employee’s representative urged that Dr. Stelmach’s observation be accepted as a firm, rationalized medical opinion that the employee could no longer earn wages as of the April 29, 1996 date of the letter. As the letter does not constitute such evidence, FAB declines to reach such a conclusion.
However, Dr. Stelmach’s
observation is to be accorded an appropriate level of weight as evidence that
it appeared to Dr. Stelmach on that day that the employee was chronically
weak. Such an observation is some evidence
that the employee was in a generally weakened condition at that point in time
due to his many gastrointestinal ailments, including his gastritis. However, Dr. Stelmach’s reserved observation does
not, either standing alone or coupled with other available evidence, constitute
the type of “rationalized medical evidence of sufficient probative value” that
the regulations require be supplied to establish a causal link between the employee’s
covered illness and a specific period of wage-loss. See
20 C.F.R. § 30.805(b). As described above,
Dr. Stelmach’s letter is brief, unrationalized and conclusory in nature, and
his initial characterization of the employee’s gastritis symptoms as
“unremitting” is inconsistent with both the employee’s own hearing testimony
and his treating physician’s (Dr. Told) later description of those symptoms as
periodic. The letter is not proof that
the employee could not work or that he lost wages over any identifiable term
due to his covered illness. Again, the
letter is of some, albeit limited, value on the specific issue at issue in this
claim.
Next chronologically, Dr. Brown examined the
employee and obtained historical information directly from both the employee
and his wife on January 25, 1997. Dr.
Brown prepared a detailed 6-page report, which included a “Functional
Assessment” section. In this section,
Dr. Brown opined that the employee’s chronic atrophic gastritis “should not
limit the claimant in any areas of employment.”
This opinion is supported by her findings in the body of the report that
the employee suffered “crampy belly pain” only periodically (“a couple of times
a week”) and that such pain was limited by the employee through avoiding
stress, taking Pepcid tablets, and avoiding certain foods. The report addressed a plethora of illnesses
and conditions experienced by the employee from 1988 through January 1997 and
discussed the impact of the employee’s health condition on his daily living.
As the district office found, Dr. Brown’s detailed assessment
and her resulting medical opinion constitute objective, rationalized medical
evidence on the determinative issue, i.e.,
whether there is a causal link between the employee’s covered illness and a
loss of wages. Dr. Brown’s opinion is
supported by her description of her examination of the employee and was
explicitly informed by the history provided by both the employee and his
wife. Importantly, the opinion directly
addresses the statutory wage-loss element of causation, and it is the most
contemporary medical opinion (i.e.,
the closest in time to the March 1995 time at which the employee claims his
wage-loss began) to do so. Although he
claims to have visited the hospital multiple times due to his gastritis, the
employee did not provide any medical records from the 1990s that directly
addressed this causation issue, except
for Dr. Brown’s report. For these
reasons, the district office found that Dr. Brown’s 1997 opinion is to be
accorded significant probative weight on the issue of whether the employee’s
gastritis caused him to experience wage-loss in the years following his initial
diagnosis. FAB agrees with that
assessment.
The next medical opinion, chronologically speaking,
comes almost nine years later. On October 5, 2005, Dr. Told stated in a letter to the
district office that the employee’s gastritis had caused him “periods of
chronicity with recurrent pain [and so] far, he has been unable to carry out
any extended employment.” Consistent
with the district office’s impression, FAB concludes that that letter is of
limited probative value for several reasons.
Dr. Told did not, in that letter, identify the timing, duration, or
severity of the reported “periods of chronicity,” nor did he explain what he
meant by “extended employment.” Also,
the “so far” statement at the end of that letter does not identify a time-frame
for the claimed period of the employee’s inability to “carry out. . .extended
employment.” FAB thus concludes that Dr.
Told did not, in that letter, identify any specific periods of time during
which the employee’s gastritis caused him to lose wages, nor did he provide a
rationalized explanation for his “so far” statement. FAB also concludes that Dr. Told’s October 5,
2005 letter does not, standing alone or in concert with other evidence,
constitute rationalized medical evidence of sufficient probative value to
establish that the employee experienced wage-loss in March 1995—or during any
other identifiable time frame—as a result of his covered illness.
Because Dr. Told’s October 5,
2005 letter was vague in its time frame and was lacking in rationalization, the
district office asked for clarification.
Specifically, the district office asked Dr. Told how he came to the
conclusion that the covered illness caused the employee to lose wages and, they
asked him, “[s]ince you state that the gastritis is inactive, what periods of
time did the gastritis keep [Employee]
from working?” In his April 24, 2006 response,
Dr. Told stated that “[Employee] has.
. .been symptomatic throughout this
period.” (emphasis added) Since Dr.
Told did not further define or explain what he meant by “this period,” that
portion of his April 24, 2006 letter provides little, if any, clarification of his
letter of October 5, 2005. The final
sentence of his April 24, 2006 letter, however, provides the requested
clarification. In that sentence, Dr.
Told summed up his opinion: “Therefore,
it is my conclusion that he would require stress avoidance as the only
effective means of controlling chronic gastritis and I feel he will never be
able to work again.” In this sentence,
Dr. Told, for the first time, provides a medical opinion of the causal effect
of the employee’s covered illness on his wages and a time-frame as to when the
gastritis will cause the employee to lose wages; i.e., from the April 24, 2006 date of the letter onward. Dr. Told’s clarification letter did not
identify any month prior to April 2006 during which the employee experienced wage-loss as
the result of the covered illness, but the letter does constitute medical evidence that the employee’s illness would
keep him from working from April 24, 2006 forward.[4]
The EEOICPA wage-loss provisions and governing
regulations require “rationalized medical evidence” of sufficient probative
value to establish by a preponderance of the evidence that the period of
wage-loss at issue is causally related to the employee’s covered illness. See
42 U.S.C. § 7385s-2(a)(2)(A)(i); 20 C.F.R. §§ 30.111(a), 30.805(b). See also Trego,
681 F.Supp.2d at 897. Based on the totality of the
evidence in the case file, FAB concludes that the rationalized medical evidence
in this case is not sufficient to establish a causal relationship between the
employee’s covered illness and any loss of wages prior to April 24, 2006. Thus, as the evidence is insufficient to
establish that the covered illness caused any wage-loss prior to April 24,
2006, there can be no qualifying wage-loss for the calendar years prior to that
date. See 42 U.S.C. § 7385s-2(a)(2)(A)(i); 20 C.F.R. § 30.805.
However,
the medical evidence is sufficient to
establish that the employee’s illness
would keep him from working from April 24, 2006 forward. Thus, as the element of causation under
clause (i) of § 7385s-2(a)(2)(A) is established as of April 2006, clause (ii) requires
calculation of the employee’s average annual wage (AAW) relevant to that
trigger month. See
42 U.S.C. § 7385s-2(a)(2)(A); 20 C.F.R. §§ 30.800-811. See also Trego, 681 F.Supp.2d at 897-898. The AAW that is relevant for purposes of the
wage-loss provisions of EEOICPA is “the average annual wage of the employee for
the 36-month period immediately preceding the calendar month referred to in
clause (i).” See 42 U.S.C. §§ 7385s-2(a)(2)(A)(ii); 20 C.F.R. § 30.801. Because the
month referred to in clause (i) is April 2006, FAB must look to the 36-month
period immediately preceding the second quarter of 2006. See 20 C.F.R. § 30.810; Federal
(EEOICPA) Procedure Manual, Chapter 2-1400.9 (July 2009).
The evidence establishes that
the employee earned no wages during the relevant 36-month period in 2003-2006. Several SSA documents in the case file,
including documents submitted by the employee since the District Court’s
remand, show that the employee earned no wages in 2003 through 2006. During the latest hearing, the employee
confirmed that he had earned no reported wages since 1998, and that the only
money he did earn since that time was of a negligible amount from
“occasionally” plowing snow from his friends’ driveways (for which he provided
no evidence of dates or amounts earned).
Therefore, his AAW for the relevant 2003 to 2006 time frame, calculated
in accordance with the governing regulations, is zero. See 20 C.F.R. § 30.810. Since
the employee had no wages during the relevant 36-month period preceding the
trigger month, he cannot have any subsequent qualifying calendar years of
wage-loss under clause (iii) of § 7385s-2(a)(2)(A). See 42 U.S.C. §
7385s-2(a)(2)(A)(iii); 20 C.F.R. §§ 30.800-811.
The regulations provide that “Except
where otherwise provided in the Act and these regulations, the claimant bears
the burden of proving by a preponderance of the evidence the existence of each
and every criterion” required for eligibility.
See 20 C.F.R. §
30.111(a). In light of the above, FAB concludes
that the evidence in the case file is insufficient to establish, by a
preponderance of the evidence, that the employee experienced any qualifying
calendar years of wage-loss as the result of his chronic atrophic gastritis. Therefore,
FAB concludes that the employee is not entitled to wage-loss benefits for his
covered illness of chronic atrophic gastritis and hereby denies his claim for
such benefits under Part E of EEOICPA.
Anna
Navarro
Hearing
Representative
Final
Adjudication Branch