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

 

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, Colorado, from March 1, 1982 to July 5, 1989.  In early 2005, the employee’s Part D claim was transferred to the Division of Energy Employees Occupational Illness Compensation (DEEOIC) at the Department of Labor for adjudication under the newly enacted Part E.[1]

 

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 Memorial Hospital in Craig, Colorado, dated March 22, 1995, which reported a postoperative diagnosis of gastritis.  The employee also submitted a medical report of an examination performed on January 25, 1997 by Dr. Deborah Brown.  In that six-page report, Dr. Brown stated that the employee’s atrophic gastritis was “not well controlled with Pepcid and Propulsid,” but concluded in her “Functional Assessment” that the gastritis was not so serious that it would cause the employee to miss work.  Specifically, Dr. Brown opined that the employee’s atrophic gastritis “should not limit the claimant in any areas of employment.”  The file also contains a medical report dated July 18, 2002, in which Dr. Lee S. Newman reviewed the employee’s medical records and described the March 22, 1995 diagnosis of chronic atrophic gastritis as follows:  “The diagnosis was chronic atrophic gastritis which was inactive.”  Further, an impairment evaluation report signed by Dr. Annyce Mayer on November 12, 2006 also opined that the contemporary medical reports of the employee’s March 1995 diagnosis showed that his gastritis was inactive as of the diagnosis date.  The employee also submitted an October 5, 2005 report in which Dr. Thomas N. Told stated that the employee’s chronic atrophic gastritis “appears to be inactive at this point but [he] has had periods of chronicity with recurrent pain.”  In that same report, Dr. Told asserted that “[s]o far, [the employee] has been unable to carry out any extended employment.”

 

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

 

  1. On August 16, 2001, the employee filed a claim under EEOICPA for his illness of chronic atrophic gastritis.

 

  1. The employee was a DOE contractor employee at the Rocky Flats Plant from March 1, 1982 to July 5, 1989.

 

  1. The employee was diagnosed with chronic atrophic gastritis on March 22, 1995, and his gastritis was inactive at that time. 

 

  1. 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.   

 

  1. 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.

 

  1. 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.      

 

  1. 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.

 

  1. 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.

 

Denver, Colorado

 

 

 

 

Anna Navarro

Hearing Representative

Final Adjudication Branch



[1]  This transfer was required by 42 U.S.C. § 7385s-10(g).

 

[2]  Consistent with the district office’s interpretation of this response, FAB has analyzed the employee’s request with the understanding that he is seeking wage-loss benefits for the entire period from March 22, 1995 (the date of diagnosis) to the present.

 

[3]  597 F.Supp.2d 1235 (D. Colo. 2009).

 

[4]  At this point in time, the case file consists of over 4,000 pages of documents, including dozens if not hundreds of pages of medical records extending back into the early 1980’s.  A review of those records shows that the employee has been periodically placed under work restrictions at various times for various ailments, but none of those documented work restrictions refers to the employee’s covered illness of chronic atrophic gastritis, until Dr. Told’s letter of April 24, 2006.