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:

10010854-2006

DECISION DATE:

June 7, 2006

 

NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

 

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

 

STATEMENT OF THE CASE

 

On November 10, 2003, you filed a Request for Review by Physicians Panel with the Department of Energy, based on the lung cancer of your late spouse, [Employee], hereinafter referred to as “the employee.”  A pathology report establishes the employee was diagnosed with lung cancer on July 3, 2000.

 

The evidence of record establishes that the employee worked for Maxon Construction and Charles Hobson Company at the K-25 gaseous diffusion plant for a period in excess of 250 workdays prior to 1992 and was monitored through the use of dosimetry badges for exposure to radiation.

 

A previous Final Decision was issued by the Department of Labor under Part B of the Act on April 12, 2005, concluding that you were entitled to compensation for the employee’s lung cancer since he was a member of the Special Exposure Cohort with a specified cancer.  This mandates a finding that the employee’s illness was contracted through exposure to a toxic substance at the DOE facilities where he worked. 42 U.S.C. § 7385s-4(a).  The employee’s death certificate shows that the employee died as a consequence of lung cancer.  42 U.S.C. § 7385s-3.

 

In support of your claim for survivorship, you submitted your marriage certificate and the employee’s death certificate.  The marriage certificate, showing you married the employee on May 6, 1953, and the employee’s death certificate, showing you were married to the employee on the date of his death, October 5, 2001, establishes that you were the employee’s spouse for at least a year prior the date of his death.

 

On August 23, 2005, the district office received your written confirmation that neither you nor the employee had received any settlement or award from a workers’ compensation claim in connection with the accepted condition, and that the employee, at the time of his death, had no minor children or children incapable of self-support,who were not your natural or adopted children, and that you were not asserting a claim for wage-loss.

 

On April 14, 2006, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits of $125,000 for the employee’s death due to lung cancer.  The recommended decision also offset this award by $17,705.37 based on your recovery in a tort suit.

 

OBJECTION

 

On April 20, 2006, the Final Adjudication Branch received written notification that you objected to this offset because the tort suit arose out of the employee’s toxic exposure to asbestos.

 

The statute states that, “payment of compensation to an individual, or to a survivor of that individual, under this subchapter shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for worker’s compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under this subchapter.” 42 U.S.C. § 7385.  This statute states that the offset requirement is triggered when the compensation payable under EEOICPA and the lawsuit settlement are based on the same exposure.

 

The tort complaint filed on October 26, 1994, by you and the employee in the Circuit Court for Knox County, Tennessee, was based strictly on exposure to asbestos.

 

In contrast, the April 14, 2006 recommended decision concluding that you were entitled to $125,000 was based on 42 U.S.C. § 7385s-4(a) which states that a determination under Part B that the employee was a Department of Energy (DOE) contractor employee entitled to compensation for an occupational illness is treated as an automatic determination that the employee contracted that illness through work-related exposure to a toxic substance at the DOE facility under Part E.

 

Since the Part B claim was based on the finding that the employee contracted lung cancer due to exposure to radiation, the automatic determination under Part E that the employee was entitled compensation must necessarily be based on the same radiation exposure that led to the award under Part B.

 

Therefore, as the claim under Part E and the lawsuit were based on exposure to two different toxic substances – radiation and asbestos – the offset requirement of 42 U.S.C. § 7385 is not triggered.  There is no need for any offset of the Part E award due to the lawsuit settlement that was received.

 

FINDINGS OF FACT

 

  1. On November 10, 2003, you filed a Request for Review by Physicians Panel with the Department of Energy under EEOICPA.

 

  1. The evidence of record establishes that the employee was employed by Maxon Construction and Charles Hobson Company at the K-25 gaseous diffusion plant.

 

  1. You submitted medical evidence establishing that the employee was diagnosed with lung cancer on July 3, 2000.

 

  1. A final decision was issued by the Department of Labor under Part B of the Act on April 12, 2005, concluding that the employee was a covered employee, and that you were entitled to compensation for the employee’s lung cancer.  This requires a finding that the employee’s illness was contracted through exposure to a toxic substance at the K-25 gaseous diffusion plant, a DOE facility.

 

  1. The employee’s death certificate shows that his death was a consequence of lung cancer.

 

  1. You meet the definition of a survivor under Part E.

 

  1. You confirmed in writing that neither you nor the employee had received any settlement or award from a lawsuit (based on exposure to radiation) or workers’ compensation claim in connection with the accepted condition, and that the employee, at the time of his death, had no minor children or children incapable of self-support, who were not your natural or adopted children.

 

  1. On April 14, 2006, the Jacksonville district office issued a recommended decision which included an offset for your tort award.

 

  1. On April 20, 2006, the Final Adjudication Branch received written notification that you objected to this offset because the tort suit arose out of the employee’s exposure to asbestos.

 

CONCLUSIONS OF LAW

 

The Final Adjudication Branch has reviewed the record and the recommended decision of April 14, 2006, and concludes that the employee was a DOE contractor employee with lung cancer due to exposure to a toxic substance at a DOE facility and that his death was a consequence of this condition.  42 U.S.C. §§ 7385s-1, 7385s-4.  Therefore, the Final Adjudication Branch hereby concludes that you are entitled to survivor benefits of $125,000 for the employee’s lung cancer. 42 U.S.C. § 7385s-3(a)(1).

 

As the claim under Part E and the lawsuit were based on exposure to two different toxic substances – radiation and asbestos – the offset requirement of 42 U.S.C. § 7385 is not triggered.  There is no need for any offset of the Part E award due to the lawsuit settlement that was received.

 

 

Jacksonville, FL

 

 

 

 

Douglas J. Helsing

Hearing Representative