ATTENTION *** ATTENTION *** ATTENTION

The FAB decision or order you are about to view is no longer considered to be of precedential value and will not be considered binding on DEEOIC in its adjudication of future claims under the EEOICPA. This could have occurred because a later FAB decision was issued that overturned one or more of the conclusions of law contained in this decision or order, or because a portion of the EEOICPA relevant to this decision was amended by Congress after it was issued by the FAB. Even though the FAB decision or order you are about to view is no longer considered to be of precedential value, it has been retained in the database you are searching to document that there has been a change.

 

 

 

 

 

 

 

 


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 NUMBERS:                                             18655-2002

10021405-2005

 

DECISION DATE:                                                    December 15, 2005

 

 

NOTICE OF FINAL DECISION

 

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons set forth below, your claim is accepted.[1]  A copy of this decision is being sent to your power of attorney.

 

STATEMENT OF THE CASE

 

On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the chronic beryllium disease (CBD) of your late spouse, [Employee], hereinafter referred to as “the employee.”  Previously, you filed a Request for Review by Medical Panels for the asbestosis of the employee.

 

On the Form EE-3, Employment History, you stated the employee was employed as a senior production supervisor by Dupont at the Savannah River Site in Aiken, South Carolina, for the period of January 1953 through December 31, 1985.  The Jacksonville district office found the employee worked at the Savannah River Site for the period of January 26, 1953 through December 31, 1953. 

 

The medical evidence in the case file includes a September 2, 1993 chest x-ray report that shows interstitial pulmonary fibrosis and a November 19, 1993 CT scan report that shows local interstitial fibrosis.  The file also includes a report of a pulmonary function test performed on March 29, 1994 that shows a mild obstruction.  The medical evidence also shows the employee had chronic obstructive lung disease, a chronic respiratory disorder, since October 1992. 

 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on August 20, 1949, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, May 4, 1997.

 

A Physicians Panel review under former Part D of the Act was completed.  The Secretary of Energy accepted the Panel’s affirmative determination that the employee’s asbestosis and chronic obstructive pulmonary disease (COPD) were due to exposure to a toxic substance at a DOE facility.  On April 22, 2005, the DOE advised you of the Panel’s affirmative determination. 

 

The employee’s death certificate shows that the cause of his death was cardiac arrest as a consequence of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis. 

 

On May 25, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits in the amount of $125,000 for the employee’s death caused by asbestosis.

 

On June 1, 2005, the Final Adjudication Branch received written notification from your power of attorney that you waived any and all objections to the recommended decision.  The power of attorney also informed the Final Adjudication Branch that you had received settlements from several manufacturers of asbestos for the death of the employee.

 

On June 3, 2005, the claim was remanded for additional development because the Final Adjudication Branch had received evidence that that you had received a lawsuit settlement that may require offset.

 

On August 10, 2005, the Jacksonville district office received documentation of the third party settlements received by you for the employee’s asbestos exposure.  The documentation included the Summons for Relief and Complaint, filed on November 5, 1996, and an accounting of the gross settlement in the amount of $47,873.50.

 

The settlement was paid to the estate of the employee and to you as the spouse and to your daughter; therefore, the district office applied a standard allocation of 50% to the award and subtracted a percentage for the costs of the suit and the attorney’s fees, which left a net settlement of $13,789.85.  This amount was used to reduce your EEOICPA survivor benefits of $125,000, which left a balance of $111,210.16 due to you.    

 

On October 7, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits of $125,000, less a $13,789.85 offset, for a total of $111,210.16 for the employee’s asbestosis and COPD.

 

On October 12, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision of October 7, 2005.

 

On November 17, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to $150,000 in survivor benefits for the employee’s CBD.

 

On November 25, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision of November 17, 2005.

 

FINDINGS OF FACT

 

1.  On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the CBD of your late spouse. You also filed a Request for Review by Physicians Panel for the asbestosis of your late spouse.

 

2.  The employee was employed by Dupont at the Savannah River Site in Aiken, South Carolina, for the period of January 26, 1953 through December 31, 1953.  Beryllium was present at this facility during the time of this employment.

 

3.  A Physicians Panel review under former Part D of EEOICPA has been completed and the Secretary of Energy accepted the Panel’s affirmative determination that your spouse’s asbestosis and COPD were due to exposure to a toxic substance at a DOE facility.

 

4.  The employee’s death certificate shows that the immediate cause of his death was cardiac arrest as a consequence of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis.  Therefore, asbestosis is established as contributing to the employee’s death.

 

5.  Third party settlements for the employee’s asbestosis were received in the gross amount of $47,873.50.

 

CONCLUSIONS OF LAW

 

The Final Adjudication Branch has reviewed the record and the recommended decision of October 7, 2005, and concludes that the employee was a DOE contractor employee with asbestosis and COPD due to exposure to a toxic substance at a DOE facility and that asbestosis caused his death.  42 U.S.C. §§ 7384s(1), 7385s-4.  Under the Act, you are the covered spouse and survivor. 42 U.S.C. §§ 7835s-3(d)(1), 7385s-3(c)(1). 

 

A gross settlement was received from third parties for the employee’s asbestos exposure which must be used to offset your entitlement to survivor benefits in the amount of $125,000. 42 U.S.C. §§ 7385, 7385s-3(a)(1).  The Final Adjudication Branch has independently computed the amount of the offset using the EEOICPA Part B/E Benefits Offset Worksheet, and finds the net settlement amount to be $13,789.96.  20 C.F.R. § 30.505.  Therefore, the Final Adjudication Branch concludes that you are entitled to survivor benefits in the amount of $111,210.04 for the employee’s asbestosis.  42 U.S.C. § 7385s-3(a)(1).

 

Further, the Final Adjudication Branch has reviewed the medical evidence and finds that it is sufficient to establish that the employee had CBD.  Under Part B of the Act, CBD may be established by the following:

(A)  For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;

(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or

(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

 

 (B)  For diagnoses before January 1, 1993, the presence of—

(i)                  occupational or environmental history, or epidemiologic evidence of beryllium exposure; and

(ii)                any three of the following criteria:

(I)                 Characteristic chest radiographic (or computed tomography (CT) abnormalities;

(II)              Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;

(III)            Lung pathology consistent with chronic beryllium disease;

(IV)           Clinical course consistent with a chronic respiratory disorder;

(V)              Immunologic tests showing beryllium sensitivity. 

42 U.S.C. § 7384l(13).

 

The case file does not contain evidence to establish a diagnosis of beryllium sensitivity, therefore the criteria for a diagnosis of CBD after January 1, 1993 cannot be met.

 

Applying the criteria for a diagnosis of CBD prior to the 1993, the evidence in the case file includes a September 2, 1993, chest x-ray report that shows interstitial pulmonary fibrosis and a November 19, 1993, CT scan report that shows local interstitial fibrosis.  These findings are characteristic chest radiographic abnormalities of CBD which meets criteria I.  The file also includes a report of a pulmonary function test taken on March 29, 1994, that shows a mild obstruction that meets criteria II; and the employee is shown to have a clinical course consistent with a chronic respiratory disorder since October 1992 which meets criteria IV.  Therefore, the evidence in the case file meets three of the criteria for a diagnosis of CBD before January 1, 1993 and a diagnosis of CBD is established under the Act.

 

The record and the recommended decision of November 17, 2005 have been reviewed and the employee is a covered beryllium employee, as that term is defined in the Act; and the employee’s CBD is a covered occupational illness under Part B of the Act and implementing regulations.  42 U.S.C. §§ 7384l(7), 7384l(13), 20 C.F.R. § 30.207. 

                               

The November 17, 2005 recommended decision is in accordance with the facts and the law in this case, and you are entitled to lump-sum survivor benefits in the amount of $150,000 for the employee’s chronic beryllium disease, pursuant to Part B of the Act.  42 U.S.C. § 7384s(a).

 

Jacksonville, FL

 

 

 

J. Mark Nolan

Hearing Representative

 

 



[1] This is the third decision on your claim by the Final Adjudication Branch (FAB).  On July 22, 2002, the FAB denied your claim for the reason that the evidence in the case file did not establish that the employee had an occupational illness covered under the Act.  On June 3, 2005, the claim was remanded for additional development because the FAB had received evidence that you had received a lawsuit settlement that may require offset.