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:

10014587-2006

DECISION DATE:

August 3, 2007

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for 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 wage-loss benefits under Part E is accepted in the amount of $50,000.  Adjudication of the claim for benefits based on skin cancer is deferred pending additional development.

 

STATEMENT OF THE CASE

 

On October 24, 2001, [Employee] filed claims for benefits under Part B and former Part D of EEOICPA.  He identified microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, glomerularnephritis, irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli secondary to vasculitis, necrotizing glomerular nephritis and interstitial fibrosis as the claimed conditions resulting from his employment at a Department of Energy (DOE) facility.  On July 5, 2007, [Employee] filed an additional claim under EEOICPA for skin cancer.  Subsequent to his filing a claim under Part D, Congress amended EEOICPA by repealing Part D and enacting Part E, which is administered by the Department of Labor.  The filing of a claim under former Part D is treated as a claim for benefits under Part E.

 

On March 27, 2003, FAB issued a final decision denying [Employee]’s Part B claim, as the evidence did not establish that he had been diagnosed with an illness that would qualify as an “occupational” illness under Part B.  Part B is limited to the occupational illnesses of cancer, beryllium sensitivity, chronic beryllium disease, and chronic silicosis.  On August 4, 2006, [Employee] withdrew his claim based on the conditions of irritable bowel disease, hypoglycemia, Eustachian tube rupture, migratory joint pain, vascular lesion, subdural hematoma, pulmonary emboli, and necrotizing glomerular nephritis.

 

On August 31, 2006, FAB issued another final decision accepting [Employee]’s claim for medical benefits under Part E of EEOICPA for the “covered” illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis.  This final decision also awarded him a lump-sum of $200,000.00 in impairment benefits based on those covered illnesses.

 

The evidence of record establishes that [Employee] was employed by a DOE contractor at the Lawrence Livermore National Laboratory (LLNL) from July 9, 1962 to October 14, 1966, at the Los Alamos National Laboratory (LANL) from October 24, 1966 to December 31, 1990, and at the Nevada Test Site (NTS) periodically from January 25, 1972 to September 10, 1990.[1]The record establishes that [Employee] was diagnosed with glomerulonephritis on June 8, 1992, with systemic necrotizing vasculitis and leukocytoclastic vasculitis on December 22, 1997, with microscopic polyangitis on June 24, 1999, and with pulmonary interstitial fibrosis on May 10, 2001.  The evidence further establishes that he was exposed to toxic substances during the performance of his duties at these facilities, and that such exposure was a significant factor in aggravating, contributing to, or causing his glomerulonephritis, systemic necrotizing vasculitis and leukocytoclastic vasculitis, microscopic polyangitis and pulmonary interstitial fibrosis.  [Employee] has a minimum impairment rating to the whole person as a result of these conditions of 80%, and 80 x $2,500.00 = his $200,000.00 impairment award.

 

On October 23, 2006, [Employee] filed a claim for wage-loss benefits under Part E of EEOICPA and alleged that his wage-loss began in January 1991.  He submitted Form W-2 Statement of Earnings from his employer indicating that he earned $30,508.97 in 1988, $31,256.65 in 1989, and $35,829.17 in 1990.  On May 16, 2007, a representative from the Social Security Administration (SSA) indicated that you had earnings from 1978 to 1990 and no reported earnings after 1990.

 

[Employee] submitted medical records from his healthcare providers, which document the nature and extent of his covered illnesses.  In a January 10, 2006 medical report, Dr. Karen B. Mulloy, M.D. indicated that [Employee] has not been able to work since 1991 due to the severity of his chronic renal disease and interstitial fibrosis.  A July 20, 2006 report from a District Medical Consultant (DMC) confirms that [Employee]’s health is poor and continues to deteriorate such that his life is probably at risk.

 

On Form EE-1, [Employee] indicated that he was born on September 29, 1936.  That date of birth is confirmed in the medical records from his healthcare providers and his personnel and occupational clinic records from the DOE facilities where he worked.  The SSA indicates that the normal retirement age for purposes of the Social Security Act for a person born on September 29, 1936 is age 65.[2]

 

On June 20, 2007, the district office issued a recommended decision to accept the claim for wage-loss benefits under Part E in the amount of $50,000.00.  Accompanying the recommended decision was a letter explaining [Employee]’s rights and responsibilities in regard to the recommended decision.  On July 5, 2007, FAB received his signed waiver of objections to the findings of fact and conclusions of law in the recommended decision.  On the same date, FAB received his written declaration that he had not filed for or received a settlement, award, payment, or benefit from a tort suit or state workers’ compensation program for the medical conditions of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulonephritis. 

 

After reviewing the evidence in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1.      [Employee] filed a claim for benefits under Parts B and E of EEOICPA on October 24, 2001.

 

2.      [Employee] was employed at LLNL, LANL and NTS intermittently from July 9, 1962 to December 31, 1990.  During his employment at these facilities, he was employed by a DOE contractor. 

 

3.      On October 23, 2006, FAB accepted the claim for medical benefits under Part E for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis, and glomerulornephritis and awarded impairment benefits in the amount of $200,000.00 based on those conditions.

 

4.      [Employee] was born on September 29, 1936 and attained normal retirement age for purposes of the Social Security Act on September 29, 2001.

 

5.      [Employee] began experiencing wage-loss as a result of his covered illnesses in January 1991.

 

6.      His average annual wage from 1988 to 1990 was $32,531.59.

 

7.      [Employee] experienced 11 calendar years of qualifying wage-loss from 1991 to 2001 as a result of his covered illnesses, during which his wages did not exceed 50% of his average annual wage for the 36-month period immediately preceding the calendar month he first experienced wage-loss as a result of any covered illness.

 

8.      [Employee] has not recovered compensation or benefits from a state workers’ compensation program or tort suit based on his accepted covered illnesses of polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.

 

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

 

CONCLUSIONS OF LAW

 

The regulations at 20 C.F.R. § 30.316(a) (2007) provide that if a claimant waivers any objections to all or part of the recommended decision, then FAB may issue a final decision accepting the recommended decision of the district office either in whole or in part.  On July 5, 2007, FAB received [Employee]’s waiver of objections to the recommended decision

 

On October 23, 2006, FAB issued a final decision under Part E of EEOICPA accepting the claim for medical benefits for the covered illnesses of microscopic polyangitis, systemic necrotizing vasculitis, leukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.  In that decision, FAB found that [Employee]’s exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his microscopic polyangitis, systemic necrotizing vasculitis, eukocytoclastic vasculitis, pulmonary interstitial fibrosis and glomerulornephritis.

 

Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered illness” shall be entitled to wage-loss benefits if the employee sustained wage-loss as a result of any covered illness and meets certain qualifying criteria as to the percentage of the employee’s wage-loss.  It provides that for each calendar year prior to normal retirement age during which as a result of any covered illness the employee’s wages did not exceed 50% of his average annual wage for the 36-month period immediately preceding the calendar year in which the employee first experienced wage-loss as a result of the covered illness, the employee shall receive $15,000.  It further provides that for each calendar year prior to normal retirement age during which as a result of any covered illness, the employee’s wages exceeded 50% but did not exceed 75% of his average annual wage, the employee shall receive $10,000.  See 42 U.S.C. §7385s-2(a)(2).

 

A determination regarding entitlement to wage-loss benefits must be based upon the totality of the evidence. I have reviewed the evidence of record and conclude that the evidence establishes that [Employee] experienced 11 calendar years of qualifying wage-loss prior to attaining his normal retirement age during which his wages did not exceed 50% of his average annual wage.  Based on 11 calendar years of wage-loss at $15,000.00 per year, [Employee] qualifies for $165,000.00 in wage-loss benefits under Part E.

 

However, Part E also provides that the maximum aggregate compensation (other than medical benefits) an employee or survivor may receive under that Part shall not exceed $250,000.00.  See 42 U.S.C. § 7385s-12.  [Employee] has previously received $200,000.00 in impairment benefits under Part E, and the remaining amount he may recieve (other than medical benefits) is therefore $50,000.00.  His potential wage-loss benefits of $165,000.00, coupled with the $200,000.00 he has already received in impairment benefits, exceeds the maximum aggregate compensation available to him under Part E.  Therefore, [Employee]’s claim for wage-loss benefits under Part E must be capped at the maximum aggregate compensation limit, and accordingly his your claim for wage-loss benefits under Part E is accepted for $50,000.00.  

 

Washington, DC

 

 

 

William J. Elsenbrock

Hearing Representative

Final Adjudication Branch



[1]   According to DOE’s website at http://www.hss.energy.gov/healthsafety/FWSP/advocacy/faclist/showfacility.cfm, LLNL is a covered DOE facility from 1950 to the present, LANL is a covered DOE facility from 1942 to the present, and NTSe is a covered DOE facility from 1951 to the present (retrieved August 3, 2007).

 

[2] See SSA’s website at http://www.socialsecurity.gov/retire2/agereduction.htm (retrieved August 3, 2007).