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:

105471-2009

10080142-2009

DECISION DATE:

October 8, 2009

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) on the above claim 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 claim under Part B of EEOICPA for survivor benefits is denied.  The claim under Part E for the employee’s whole body impairment is accepted in the amount of $12,500.00.

 

STATEMENT OF THE CASE

 

On October 9, 2001, [Employee] filed a Form EE-1, claiming under Part B for his bladder cancer.  Medical records, including pathology reports, confirmed that the employee was diagnosed with bladder cancer on April 16, 1993, as well as a squamous cell carcinoma of the left ear on June 8, 1999, and squamous cell carcinoma of the right cheek on August 20, 2003.

 

The employee submitted a Form EE-3, on which he stated that he wore a dosimetry badge while working for the Union Carbide Corporation, a Department of Energy (DOE) contractor, from September 3, 1945 to July 31, 1981.  DOE confirmed the employee’s employment for Carbon and Carbon Chemicals Company (a former name of Union Carbide) at the Oak Ridge Gaseous Diffusion Plant (K-25) in Oak Ridge, Tennessee, from September 17, 1945 to January 28, 1947, and from July 25, 1947 to July 31, 1981.

 

On July 3, 2002, FAB issued a final decision accepting the employee’s claim under Part B as a member of the Special Exposure Cohort (SEC) with bladder cancer, and awarded him $150,000.00 and medical benefits for that illness.  On January 17, 2006, FAB issued another final decision under Part B, accepting the employee’s claim and awarding him medical benefits for his squamous cell carcinomas of the left ear and right cheek on the ground that those cancers were “at least as likely as not” (a 50% or greater probability) related to radiation exposure.  And on July 11, 2008, FAB issued a final decision accepting the employee’s claim and awarding him medical benefits under Part E of EEOICPA for the same conditions—bladder cancer and squamous cell carcinoma of the left ear and right cheek.

 

On July 30, 2008, the employee requested impairment benefits for his covered illnesses under Part E of EEOICPA.  However, he died on November 17, 2008, prior to the adjudication of his impairment claim. 

 

On December 11, 2008, [Claimant] submitted a Form EE-2 to the district office, claiming for survivor benefits under Parts B and E of EEOICPA.  In support of her claim, [Claimant] submitted a marriage certificate showing that she married the employee on April 10, 1950, and the employee’s death certificate showing his cause of death as fractures of the first and second cervical vertebrae.  The death certificate also indicated that [Claimant] was the employee’s spouse on the date of his death. 

 

As specified under Part E, permanent impairment is defined as a decreased function in a body part(s) or organ(s) established by medical evidence as the result of the covered employee contracting a covered illness through exposure to a toxic substance at a DOE facility.  In a letter dated May 16, 2009, [Claimant] requested that the district office proceed with the impairment portion of her claim.  By letter dated July 13, 2009, [Claimant]’s authorized representative requested that the impairment rating be performed by a district medical consultant (DMC).  Therefore, the case was referred to a DMC for an impairment rating.  In his report dated August 3, 2009, the DMC opined that the employee had reached maximum medical improvement for his conditions of bladder and skin cancers and had a whole body impairment rating for the accepted conditions of bladder cancer and skin cancers of 5%.

 

On September 2, 2009, the district office issued a recommended decision, concluding that under Part E, [Claimant] is entitled to $12,500.00 for the employee’s 5% whole body impairment due to his bladder cancer and skin cancers.  The total percentage points were multiplied by $2,500 to calculate the amount of the recommended award.  The district office also recommended denial of [Claimant]’s claim under Part B since the employee had previously received the compensation benefits payable under that Part.

 

On September 9, 2009, the Final Adjudication Branch received written notification that [Claimant] waived any and all objections to the recommended decision.  After reviewing the evidence in the case file, FAB hereby makes the following:

 

FINDINGS OF FACT

 

  1. On October 9, 2001, the employee filed a claim for benefits under EEOICPA.

 

  1. The employee was diagnosed with bladder cancer, squamous cell carcinoma of the left ear, and skin cancer of the right cheek.

 

  1. FAB issued a final decision under Part B that awarded the employee the full amount of monetary benefits payable for his bladder cancer, squamous cell carcinoma of the left ear and skin cancer of the right cheek.  It also issued a final decision awarding the employee medical benefits under Part E for those same conditions.

 

  1. The employee filed a request for impairment benefits, but died prior to the adjudication of that request.  His cause of death was listed as cervical fractures of that C1 and C2 vertebrae.

 

  1. [Claimant] filed a claim for survivor benefits and established that she was the employee’s spouse at the time of death and had been married to him for at least one year prior to that date.

 

  1. The medical evidence establishes that prior to his death, the employee had reached maximum medical improvement and had a whole body impairment due to his bladder and skin cancers of 5%.

 

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

 

CONCLUSIONS OF LAW

 

The 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) (2009).  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, FAB may issue a decision accepting the recommendation of the district office.  20 C.F.R. § 30.316(a).

 

[Claimant] meets the definition of a survivor under Part B and Part E of the Act.  42 U.S.C. §§ 7384s(e)(3)(A), 7385s-3(d)(1).  However, with respect to her survivor claim under Part B, the record establishes that the employee already received the lump-sum benefit of $150,000.00 available under Part B.  Therefore, because the lump-sum available under Part B has already been paid, [Claimant] is not entitled to any additional compensation under that Part, and her claim for compensation is denied.  42 U.S.C. § 7384s(a).

 

As for her claim under Part E of EEOICPA, if a covered Part E employee dies after filing a claim but before monetary benefits under Part E are paid, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the monetary benefits that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment.  Under those circumstances, the survivor would not be entitled to the $125,000.00 lump-sum survivor payment under Part E because the employee’s death would not have been caused by the covered illness(es).  42 U.S.C. § 7385s-1(2)(B).

 

As found above, the employee in this matter died as a result of fractures of C1 and C2 vertebrae, which were not related to his work-related exposure to toxic substances.  Therefore, [Claimant] is entitled to the amount of contractor employee compensation that the employee would have received if his death had not occurred before compensation was paid, in this case, his impairment benefits.

 

The amount of contractor employee compensation under Part E for a covered DOE contractor employee is based, in part, on a determination of the employee’s minimum impairment rating in accordance with the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, expressed as a number of percentage points.  The employee (or the survivor in this case) is eligible to receive an amount equal to $2,500 multiplied by the number of percentage points.  42 U.S.C. §§ 7385s-1(2)(B), 7385s-2(b).

 

The medical evidence shows that the employee had a whole body impairment of 5% as result of his accepted covered illnesses.  [Claimant], standing in the shoes of the employee following her election, is therefore entitled to monetary benefits of $12,500.00 for impairment due to the employee’s bladder cancer and skin cancers.  See 42 U.S.C. §7385s-2(a)(2). 

 

Jacksonville, FL

 

 

 

 

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch