U.S. DEPARTMENT OF LABOR 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:

10078623-2009

DECISION DATE:

April 9, 2010

 

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

This is the decision of the Final Adjudication Branch (FAB) concerning the above 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 stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted.  No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation. 

 

STATEMENT OF THE CASE

 

On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer.  On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA.  On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma. 

 

On August 2, 2005, FAB issued a final decision accepting [Employee]’s claim for compensation under Part B for skin cancer.  On January 29, 2007, FAB also issued a final decision accepting [Employee]’s claim under Part E for skin cancer, and under Parts B and E for lymphoma.  On August 29, 2007, FAB issued a final decision denying [Employee]’s claim under Part E for his hearing loss.  On December 27, 2007, FAB issued a final decision to accept [Employee]’s claim under Part E for chronic obstructive pulmonary disease (COPD).  As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985. 

 

On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00.  On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee].  Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed  [Claimant] as his attorney-in-fact.  On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]’s behalf.

 

On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant]

 

On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee].  She also submitted a copy of [Employee]’s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse.  The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.

 

Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]’s savings account via electronic funds transfer to the United States Treasury.  There is no record indicating that these funds have been returned to the Treasury.  On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death.  On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.” 

 

On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]’s surviving spouse.  The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed.  Accordingly, the district office concluded that survivor benefits were not payable. 

 

OBJECTIONS

 

On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010.  The representative argued that the adjudication of [Employee]’s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]’s death.  The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits.  (Exhibit 1).  He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due.  The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived. 

 

Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:

 

FINDINGS OF FACT

 

  1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]’s claim under Part E for skin cancer and lymphoma, and for COPD.  In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.

 

  1. [Employee] died on August 11, 2008 as a result of lymphoma.  

 

  1. On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00  

 

  1. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].

 

  1. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].

 

  1. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.

 

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

 

CONCLUSIONS OF LAW

 

Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes:  (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the death of such employee.  42 U.S.C. § 7385s-3. 

 

As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility.  Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death.  Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1). 

 

The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, 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, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid.   42 U.S.C. § 7385s-1(2)(b).  The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment.  No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.”  20 C.F.R. § 30.505(c) (2009).  

 

EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.”  Federal (EEOICPA) Procedure Manual, Chapter 3-0800.  The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments.

 

In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]’s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E.  As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled.  Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.

 

Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation. 

 

Cleveland, OH

 

 

 

 

Greg Knapp

Hearing Representative

Final Adjudication Branch