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:

10045849-2007

DECISION DATE:

December 31, 2007

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning the claimant’s claim for compensation under 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 claimant’s claim under Part E of EEOICPA is accepted.  The claimant is entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to her receipt of her survivor share under Part E.

 

STATEMENT OF THE CASE

 

On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] (the employee) was employed by Department of Energy (DOE) contractors at the K-25 Plant, a DOE facility, and at the Los Alamos National Laboratory (LANL), a DOE facility; that he is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.   

 

On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E of EEOICPA; and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.

           

On August 17, 2007, the Seattle district office received notification that [Employee’s Child #2] had passed away on August 16, 2007.  A copy of [Employee’s Child #2]’s death certificate confirms that she died on August 16, 2007.  On September 21, 2007, the Seattle district office issued a recommended decision that concluded that the claimant was entitled to the full survivor benefit payable under Part E, as the claimant’s sister, [Employee’s Child #2], died prior to receipt of her share of the Part E survivor benefits. 

 

On December 26, 2007, the Director of the Division of Energy Employees Occupational Illness Compensation issued a Director’s Order reopening the claimant’s claim for compensation, and returning the case record to FAB for review of the September 21, 2007 recommended decision, and issuance of a new final decision regarding the applicable survivor benefit payable.

 

After considering the written record of the claim forwarded by the Director’s Office, and after conducting any further development of the claim as was deemed necessary, FAB hereby makes the following:

 

FINDINGS OF FACT

 

  1. [Employee’s Child #1], [Employee’s Child #2], and [Claimant] filed claims for benefits under EEOICPA as the surviving children of [Employee].

 

  1. The claimant’s father, [Employee], was employed by DOE contractors at the K-25 Plant, a DOE facility, and at LANL, a DOE facility.

 

  1. [Employee] was diagnosed with colon cancer in July of 1956 and with liver cancer in August 1958.

 

  1. [Employee] died on August 5, 1958, at the age of 48, due to carcinoma of the liver.

 

  1. On November 21, 2006, FAB issued a final decision under Part B of EEOICPA, finding that [Employee] is a member of the Special Exposure Cohort and was diagnosed with liver cancer and colon cancer; that [Employee’s Child #1], [Employee’s Child #2] and [Claimant] are the covered employee’s children and eligible surviving beneficiaries under Part B; that [Employee’s Child #1] was 26 years old at the time of his father’s death and capable of self-support, [Employee’s Child #2] was 15 years old at the time of her father’s death, and [Claimant] was 13 years old at the time of his father’s death.

 

  1. On August 1, 2007, FAB issued a final decision under Part E of EEOICPA, concluding that [Employee] was a covered DOE contractor employee; that [Employee’s Child #1] does not qualify as a covered child under Part E, and that [Employee’s Child #2] and [Claimant], as covered children, are each entitled to compensation in the amount of $75,000.00 under Part E.

 

  1. [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.

 

Based on the above-noted findings of fact in this claim, and pursuant to the authority granted by the EEOICPA regulations, FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

If one of the survivors on a multiple survivor claim dies before payment is issued, the compensation is reapportioned among the remaining survivors.  See Federal (EEOICPA) Procedure Manual, Chapter E-600.8c (September 2005). 

 

The term “covered child” under Part E of EEOICPA means a child of the employee who, at the time of the employee’s death, was under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in an educational institution since attaining the age of 18 years, or incapable of self-support.  See 42 U.S.C. § 7385s-3(d)(2).

 

The evidence of record establishes that the employee died on August 5, 1958, at the age of 48, due to carcinoma of the liver, a covered condition.  The evidence of record also establishes that [Employee’s Child #2] died on August 16, 2007, prior to receiving her $75,000.00 share of the Part E survivor benefits.  [Claimant] is, therefore, the only eligible beneficiary of the employee under Part E.  42 U.S.C. § 7385s-3(d)(2).  The record also shows that that there was an aggregate of not less than 10 years, before [Employee]’s normal retirement age (for purposes of the Social Security Act), during which, as the direct result of his covered illness, his annual wage did not exceed 50% of his average annual wage.  42 U.S.C. § 7385s-3(a)(2).

 

Accordingly, [Claimant], as a covered child, is entitled to compensation under Part E in the amount of $150,000.00, less any survivor benefits previously paid to him under Part E in this case, pursuant to 42 U.S.C. § 7385s-3(a)(2), and Chapter E-600.8c of the Procedure Manual. 

 

Washington, DC

 

 

 

Amanda M. Fallon 

Hearing Representative

Final Adjudication Branch