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]

 

CLAIMANT:                                                             [Name Deleted]

 

FILE NUMBER:                                                       [Number Deleted]

 

DOCKET NUMBER:                                               10006745-2006

 

DECISION DATE:                                                    July 27, 2006

 

 

NOTICE OF FINAL DECISION

 

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

 

STATEMENT OF THE CASE

 

You filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA, and a Request for Review by Physicians Panel, for the lung cancer and heart problems of your late spouse, [Employee], hereinafter referred to as “the employee.” 

 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on March 20, 1953, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, June 22, 2001.  The death certificate stated the cause of death was cardiogenic shock and coronary artery disease (CAD). 

 

A previous Final Decision was issued by the Department of Labor under Part B of the Act on June 5, 2002, concluding that you were entitled to compensation due to the employee’s lung cancer, based on employment by Union Carbide at the gaseous diffusion plant in Oak Ridge, Tennessee, from November 1, 1973 to March 31, 1982.

 

On February 22, 2006, the district office received your written confirmation 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 the employee, at the time of death, had no minor children or children incapable of self-support, who were not your natural or adopted children.

 

On May 18, 2006, the Jacksonville district office issued a recommended decision, concluding you were entitled to compensation in the amount of $125,000.

 

On May 30, 2006, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.

 

FINDINGS OF FACT

 

1.  You filed a Claim for Survivor Benefits under EEOICPA.

 

2.  The employee was diagnosed with lung cancer.

 

3.  A previous Final Decision was issued by the Department of Labor under Part B on June 5, 2002, concluding that you were entitled to compensation on the basis of the employee’s lung cancer.

 

4.  You were the employee’s spouse at the time of his death and at least a year prior.

 

5.  The employee’s lung cancer contributed to his death.

 

CONCLUSIONS OF LAW

 

I have reviewed the evidence of record and the recommended decision.

 

The district office submitted the evidence of record to the district medical consultant (DMC) for review.  In her report of October 26, 2005, Dr. Sylvie I. Cohen stated that the employee’s lung cancer did not contribute to the causes of the employee’s death as listed on the death certificate.  The employee’s attending physician, Dr. Charles W. Bruton, stated in a report dated November 15, 2005 that the irradiation treatment prescribed for the employee’s lung cancer contributed to the employee’s heart disease and caused heart damage.  The district office made a second referral to a DMC, to consider the November 15, 2005 report from the attending physician.  In his report of March 8, 2006, Dr. John Ellis also opined that the radiation effects did not contribute in any significant way to the employee’s death.  Dr. Frederick J. Barry then submitted a report, dated April 13, 2006, in which he asserted that the radiation therapy received by the employee in 1987 contributed to his heart disease and death with chronic congestive heart failure, since radiation therapy is “well known to cause coronary atherosclerosis as well as cardiac muscle damage leading to cardiomyopathy.”  The weight of the medical evidence rests with the opinions of the treating physician, who actually examined the employee, and Dr. Frederick J. Berry, a Fellow in the American College of Chest Physicians, who provided well-rationalized, probative opinions concerning the causal relationship between the employee’s lung cancer treatment and his subsequent death from cardiogenic shock and coronary artery disease.  Therefore, the employee’s lung cancer contributed to his death.

 

The employee was an employee of a DOE contractor at a DOE facility.  42 U.S.C. §§ 7384l(11), 7384l(12).  A determination under Part B 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 meet the definition of a survivor under Part E.  42 U.S.C. § 7385s-3(d)(1).  Therefore, you are entitled to benefits in the amount of $125,000 for the employee’s death as a consequence of the treatment of lung cancer.  42 U.S.C. § 7385s-3.

 

Jacksonville, FL

 

 

 

 

Sidne M. Valdivieso

Hearing Representative