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:

10047228-2008

DECISION DATE:

August 28, 2008

 

NOTICE OF FINAL DECISION

 

This decision of the Final Adjudication Branch (FAB) concerns your 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, your Part E claim for impairment benefits due to the employee’s skin cancers has been approved for $40,000.00.  You have also been approved for the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006).

 

STATEMENT OF THE CASE

 

On August 15, 2001, [Employee], hereinafter referred to as the employee, filed an EE-1 in which he claimed for benefits under EEOICPA for basal cell carcinoma (BCC) and a deteriorating liver.  On November 26, 2001, the employee filed a Request for Review by Medical Panels/Physician Panel form for the same conditions with the Department of Energy (DOE).  A death certificate verifies the employee’s death on January 1, 2006.  On January 30, 2006, you filed a Form EE-2 in which you claimed for survivor benefits, based on the employee’s BCC of the upper mid-chest, squamous cell carcinoma (SCC) in situ of the right sideburn, SCC of the left ear, and pancytopenia. 

 

In cases where the employee dies due to non-covered illnesses after filing a claim under Part E of EEOICPA but before payment is issued, the survivor may elect to receive the amount the employee would have received under Part E if he or she had not died prior to payment.  You chose to do so in a letter received June 16, 2008.

 

While the employee did not specifically claim SCC, he did submit evidence supporting the diagnosis of SCC and a National Institute for Occupational Safety and Health (NIOSH) dose reconstruction was begun that incorporated both SCC and BCC prior to his death.  This is sufficient to justify inclusion of the SCC in the impairment calculations.

 

On May 10, 2006, the FAB issued a final decision accepting your Part B claim for BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  The decision found that the employee was diagnosed with BCC of the chest on November 23, 1992, BCC of the right sideburn on November 8, 1994, and SCC in situ of the left helical rim on January 19, 2000.  The decision found that the employee had covered employment at the Oak Ridge Gaseous Diffusion Plant from December 28, 1945 to January 19, 1976, and at the Paducah Gaseous Diffusion Plant from January 20, 1976 to October 31, 1981.  Personnel records verified that the employee worked for DOE contractor Union Carbide during his covered employment.

 

The employee’s death certificate identified the only cause of death as gastrointestinal hemorrhage and a date of death of January 1, 2006.  The certificate identifies you as the employee’s spouse at the time of death.  No evidence was submitted supporting the claimed conditions contributing or causing the employee’s death.  A marriage certificate verifies you were married to the employee for more than a year prior to his death.

 

A December 12, 2007 report by a District Medical Consultant (DMC) determined that toxic exposure at the covered facilities was not a significant factor in aggravating, contributing to, or causing the employee’s death.

 

On June 16, 2008, the district office received your request for an impairment evaluation. Attached to the request was medical documentation to assist a DMC in making an impairment evaluation.

 

The district office received the DMC’s report dated July 25, 2008.  Following review of the medical evidence, the DMC calculated the employee’s whole body impairment due to the accepted conditions of BCC of the sideburn and chest and SCC of the left ear in accordance with the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and mentioned specific tables and page numbers of the Guides in support of the rating.  The DMC also concluded that the employee was at maximum medical improvement.  The DMC determined that the employee’s whole body rating was 16% for the accepted conditions of three skin cancers. 

 

On August 8, 2008, the Jacksonville district office issued a recommended decision finding that you are entitled to $40,000.00 in benefits for the employee’s 16% whole body impairment due to his accepted conditions of BCC of the sideburn and chest and SCC of the left ear.  The total percentage points of 16% were multiplied by $2,500 to calculate the amount of the award.[1] Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing.

 

On August 15, 2008, the FAB received written notification that you waived any and all objections to the recommended decision. 

 

On August 15, 2008, you indicated that you had not received any settlement or award from a lawsuit or workers’ compensation claim in connection with the accepted condition and that you had neither pled guilty to nor been convicted of workers’ compensation fraud.

 

Following an independent review of the evidence in the file, the undersigned hereby makes the following:

 

FINDINGS OF FACT

 

  1. You filed a claim for survivor benefits under Part E of EEOICPA based on BCC of the upper mid-chest, SCC in situ of the right sideburn, SCC of the left ear, and pancytopenia.

 

  1. Your claim for the employee’s BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim was previously accepted for medical benefits in a final decision issued by FAB under Part B on May 22, 2006.  The accepted cancer of the sideburn was BCC rather than the claimed SCC.

 

  1. The employee reached maximum medical improvement of his skin cancers at his death.

 

  1. The DMC calculated a whole body impairment of 16% due to the employee’s skin cancers.

 

  1. Exposure to a toxic substance at the covered facilities where the employee worked was not a significant factor in aggravating, contributing to, or causing the employee’s death.  Also, the claimed illnesses did not cause or contribute to the employee’s death.

 

  1. You were married to the employee for over a year prior to his death and were married to him at the time of his death.

 

  1. You elected to receive the amount the employee would have received under Part E if he had not died of a non-covered illness prior to payment.

 

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

 

CONCLUSIONS OF LAW

 

The implementing regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired.  20 C.F.R. § 30.310(a).  If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted or if the claimant waives any objections to the recommended decision, the FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

 

A determination under Part B that a DOE contractor employee is entitled to compensation under that Part for an occupational illness shall be treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a DOE facility.  42 U.S.C. § 7385s-4(a).

 

The term “covered spouse” means a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death.  42 U.S.C. § 7385s-3(d)(1).  You are the employee’s covered spouse.

 

In a case in which the employee’s death occurred after the employee applied under Part E and before compensation was paid to the employee, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive the amount of compensation that the employee would have received due to wage-loss and/or permanent impairment if the employee’s death had not occurred before compensation was paid to the employee.  42 U.S.C. § 7385s-1(2)(B).  You chose to receive the amount of impairment benefits the employee would have received for his skin cancers.

 

I conclude that the employee reached maximum medical improvement and that he has been determined to have had a whole body impairment of 16% as a result of his skin cancers.  The amount of impairment benefits payable under Part E for a covered DOE contractor employee is based on a determination of the minimum impairment rating of the employee, in accordance with the Guides, expressed as a number of percentage points.  The employee receives an amount equal to $2,500.00 multiplied by the number of percentage points.  42 U.S.C. § 7385s-2(a)(1), (b).

 

Therefore, I conclude that you are entitled to $40,000 in monetary benefits for the employee’s 16% whole body impairment due to his BCC of the upper chest, BCC of the right sideburn, and SCC in situ of the left helical rim.  You are also entitled to reimbursement of the employee’s medical expenses for his skin cancers from the date of the employee’s filing (August 15, 2001) to the date of his death (January 1, 2006). 

 

Jacksonville, FL

 

 

 

 

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch



[1]  20 C.F.R. § 30.902 (2008).