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:

10006507-2006

DECISION DATE:

November 25, 2009

NOTICE OF FINAL DECISION FOLLOWING

REVIEW OF THE WRITTEN RECORD

 

This decision of the Final Adjudication Branch (FAB) concerns the above claim for impairment 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 an impairment award is accepted. 

 

STATEMENT OF THE CASE

 

On June 10, 2003, the employee filed a claim for benefits under Part B of EEOICPA as a uranium worker.  On December 10, 2003, FAB issued a final decision in which it found that the employee was a uranium worker who had received $100,000.00 under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. § 2210 note) for pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.  Therefore, FAB concluded that the employee was entitled to a lump-sum award of $50,000.00 under Part B and medical benefits for his pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, retroactive to June 10, 2003. 

 

On February 14, 2005, the employee filed a claim under Part E for pneumoconiosis, fibrosis of the lung and pulmonary fibrosis.  On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to work-related exposure to toxic substances.  Therefore, FAB concluded that the employee was entitled to medical benefits for the covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung under Part E of EEOICPA.  On December 13, 2006, FAB issued another final decision in which it found that the employee had a 25% permanent impairment of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung, and awarded him $62,500.00 in impairment benefits under Part E of EEOICPA.

 

On April 3, 2008, the employee filed another claim for benefits under Part E of EEOICPA, for squamous cell cancer of the right upper lobe of the lung.  By final letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.

 

On January 22, 2009, the district office received the employee’s claim for an increased impairment award.  In his letter to the district office, the employee indicated that he wished to have the Department of Labor arrange for a qualified physician to perform the impairment evaluation.  Accordingly, to determine the employee’s impairment rating (the percentage rating representing the extent of whole body impairment, based on the organ and body functions affected by his covered illnesses), his case was referred for review to a district medical consultant (DMC).  In a medical report dated April 7, 2009, the DMC stated that the employee had reached maximum medical improvement for his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides), and based on pulmonary function tests performed on January 15, 2009, the DMC concluded that the employee had a 26% whole body impairment as a result of his covered illnesses.

 

In a letter dated June 17, 2009, the employee indicated that he had not filed for or received any money under a state workers’ compensation program or related to a tort action for his covered illnesses.  

 

On August 17, 2009, the Denver district office issued a recommended decision in which it found that the employee had a 26% whole body impairment attributable to his pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.  Therefore, the district office recommended that the employee be awarded compensation in the amount of $65,000.00, less the $62,500.00 that was previously awarded, under Part E of EEOICPA.

 

OBJECTION

 

On August 28, 2009, FAB received the employee’s objection to the recommended decision, in which he indicated that he would forward an impairment evaluation from another physician.  Thereafter, the employee submitted a September 10, 2009 medical report by Dr. Karen B. Mulloy, an osteopath, in which she concluded that the employee had reached maximum medical improvement.  Dr. Mulloy used the AMA’s Guides and opined that the employee had a Class 3 impairment due to an FEV1 of 58% of predicted.  See AMA’s Guides, table 5-12, page 107.  In addition, Dr. Mulloy identified the need for oxygen and reduced oxygen saturation, and indicated that the employee’s covered illnesses interfered with some of his activities of daily living, such as walking up stairs and doing activities around the house that require any exertion.  Based upon the foregoing, Dr. Mulloy concluded that the employee had a permanent impairment of 35% of the whole body as a result of his accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer.

 

The employee also submitted an October 7, 2009 medical report by Dr. Annyce Mayer.  In that report, Dr. Mayer opined that the employee had a Class 3 impairment based on a limitation in his exercise tolerance, at least in part related to respiratory abnormalities.  Dr. Mayer also stated that the employee had a gas exchange abnormality that required the use of oxygen and that he does not perform activities that require much exertion.  Dr. Mayer did not indicate that the employee had reached maximum medical improvement or provide an opinion on the percentage of his whole person impairment as a result of his respiratory problems.

 

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

 

FINDINGS OF FACT

 

  1. On June 7, 2006, FAB issued a final decision finding that the employee’s pneumoconiosis, pulmonary fibrosis and fibrosis of the lung were due to exposure to toxic substances, accepted his claim under Part E of EEOICPA and awarded him medical benefits for his covered illnesses. 

 

  1. On December 13, 2006, FAB issued another final decision finding that the employee had a permanent impairment of 25% of the whole body due to his covered illnesses of pneumoconiosis, pulmonary fibrosis and fibrosis of the lung and awarded him $62,500.00 in impairment benefits.

 

  1. By letter decision dated October 23, 2008, the district office accepted that the employee’s lung cancer was a consequence of his accepted pneumoconiosis, pulmonary fibrosis and fibrosis of the lung.

 

  1. Based on the Fifth Edition of the AMA’s Guides, the medical evidence establishes that the impairment rating attributed to the employee’s pulmonary conditions is 35%.

 

  1. The employee has not received any settlement or award from a tort suit or state workers’ compensation claim in connection with his covered illnesses.

 

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

 

CONCLUSIONS OF LAW

 

Once a recommended decision on impairment has been issued and forwarded to the FAB, the employee may submit new medical evidence or an additional impairment evaluation to challenge the impairment determination in the recommended decision.  When this occurs, the FAB reviewer must take many variables into consideration when weighing impairment evaluations for probative value.  In general, probative means “believable” and the FAB reviewer evaluates each report to determine which one, on the whole, is more believable based on the medical rationale provided and the evidence at hand.  Federal (EEOICPA) Procedure Manual, Chapter 2-1300.10 (May 2009).  The FAB reviewer will determine the minimum impairment rating after he or she has evaluated all relevant evidence and argument in the record.  20 C.F.R. § 30.908(c) (2009).

 

The AMA’s Guides, at page 107, indicates that

 

The classification system in Table #5-12 considers only pulmonary function measurements for an impairment rating.  It is recognized that pulmonary impairment can occur that does not significantly impact pulmonary function and exercise results but that does impact the ability to perform activities of daily living. . . .  In these limited cases, the physician may assign an impairment rating based on the extent and severity of pulmonary dysfunction and the inability to perform activities of daily living.

 

All three doctors identified pulmonary function test results that indicated the employee has an impairment at the lower end of Class 3.  However, Dr. Mayer and Dr. Mulloy identified the need for oxygen and indicated that the employee’s accepted pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer affect his activities of daily living, while the DMC only considered the results of pulmonary function tests. 

 

As Dr. Mulloy considered additional issues in evaluating the employee’s impairment, FAB concludes that Dr. Mulloy’s impairment report has greater probative value than the report relied upon by the district office.  Thus, FAB concludes that the employee has a permanent impairment that is due to the covered illnesses of pneumoconiosis, pulmonary fibrosis, fibrosis of the lung and lung cancer, and that his impairment rating is 35%.

 

FAB further concludes that the employee is entitled to $2,500 for each percentage point of his impairment rating of 35%, and that the employee is entitled to compensation for impairment in the amount of $87,500.00, less the previously awarded $62,500.00, pursuant to 42 U.S.C. § 7385s-2(a)(1).  Accordingly, FAB awards the employee net impairment benefits of $25,000.00 under Part E of EEOICPA.

 

Washington, DC

 

 

 

Tom Daugherty

Hearing Representative

Final Adjudication Branch