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]

CLAIMANTS:

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

63743-2006

63744-2006

63745-2006

63746-2006

70106-2006

10036500-2006

10051317-2006

10051318-2006

10051319-2006

DECISION DATE:

November 21, 2006

 

NOTICE OF FINAL DECISION FOLLOWING

REVIEW OF THE WRITTEN RECORD

 

This is the decision of the Final Adjudication Branch (FAB) concerning the claims of [Claimant #1], [Claimant # 6], [Claimant #7], [Claimant #8]and [Claimant # 9] for compensation under Part B, and of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] under Part E, of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons stated below, the claims of [Claimant #1] under Parts B and E, as well as the claims of [Claimant #2], [Claimant #3] and [Claimant #4] under Part E are denied, and the claims of [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part B are approved.

 

STATEMENT OF THE CASE

 

On November 29, 2004, [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5 ], [Claimant # 6], [Claimant #7], [Claimant #8] and [Claimant #9] filed Forms EE-2, claiming survivor benefits under Parts B and E of EEOICPA as the children of the employee.  [Claimant #1] filed such a claim on June 14, 2005, as the spouse of the employee.  The Department of Justice (DOJ) confirmed on January 11, 2005 that [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and[Claimant #9] received, on November 22, 2004, an award under Section 5 of the Radiation Exposure Compensation Act (RECA), as the eligible surviving beneficiaries of the employee, for the condition of pneumoconiosis. 

 

Documents, including birth, marriage and death certificates, birth affidavits and a marital status and family profile issued by the Navajo Nation, and a decree issued by a judge on December 22, 1978, confirmed that [Claimant #2], born on [Date of Birth], [Claimant #3], born on [Date of Birth], [Claimant #4], born on [Date of Birth], [Claimant #5], born on [Date of Birth], [Claimant #7], born on [Date of Birth], [Claimant #8], born on [Date of Birth] and [Claimant #9], born on [Date of Birth], are children of the employee.  Another birth certificate states that [Claimant #6] was born on [Date of Birth] and that her mother was [Claimant #6’s mother], who is also listed as the mother on the birth certificates of [Claimant #7], [Claimant #8] and [Claimant #9].  Subsequently, an obituary from a newspaper was submitted which listed [Claimant #6] as a surviving daughter of the employee.

 

The death certificate of the employee states that he died on December 1, 1990 and that, at the time of his death, he was married to [Claimant #1’s maiden name].  A marriage certificate confirms that [Claimant #1’s maiden name] was the name of [Claimant #1] until her marriage to the employee, on June 18, 1950.  The death certificate states that the “informant” was [Claimant #2], who, according to his birth affidavit, is the son of the employee and [Claimant #1].

 

The file also includes a Decree of Dissolution of Marriage, concerning the marriage of the employee and [Claimant #1].  The Decree states that an “absolute divorce” was “granted to the plaintiff,” [Employee], and that this was ordered, on December 22, 1978, by a judge of the Court of the Navajo Nation.  A marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation, on January 10, 2002, also stated that the employee and [Claimant #1] were divorced on December 22, 1978.

 

The DOJ submitted a document signed on October 8, 2002 by “[Claimant #1]” on which a box was checked indicating that she was not in a legal or common-law marriage to the employee for at least one year prior to his death.  On August 1, 2005, her representative submitted an undated affidavit signed by “[Claimant #1]” stating that she was never divorced from the employee, that she did not knowingly check the box on the DOJ document, that she always uses her middle initial ([Middle initial]) when signing her name, that she needs translation of all documents into Navajo and that she relied on the assistance of the Shiprock Office of the Navajo Uranium Workers in pursuing her claim.

 

The case was referred to the Office of the Solicitor and the Solicitor responded with an opinion dated December 7, 2005.  The district office then obtained statements from [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], confirming that they had not filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  On April 6, 2006, the district office sent letters to [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5], asking if they had filed for, or received any benefits from, a lawsuit or a state workers’ compensation claim, for the employee’s exposure or illness.  No response to those letters has been received.

 

On April 11, 2006, the Denver district office issued a recommended decision, concluding that [Claimant #1] is not entitled to compensation under Part B of the Act, but that [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] were each entitled to $6,250 (1/8th of $50,000) under Part B.  The recommended decision also concluded that [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant # 4] are not entitled to compensation under part E of the Act, since the evidence did not support they are eligible survivors of the employee, as defined in 42 U.S.C. § 7385s-3.  The recommended decision also described the criteria which have to be met to be considered a “covered child” under Part E. 

 

The recommended decision held in abeyance the claims of [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] under Part B, until their response to the inquiry as to whether they had ever filed, or received benefits under, a lawsuit or state workers’ compensation claim.  It also stated that further development of the evidence must take place before a decision could be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] under Part E.       

 

On April 21, 2006, the FAB received [Claimant #6]’s, [Claimant #7]’s and [Claimant #8]’s waivers of their right to object to the recommended decision.  On June 7, 2006, the FAB received a letter from Lorenzo Williams, the representative of [Claimant #1], expressing objections to the recommended decision and requesting a hearing.  Mr. Williams submitted another letter, dated July 3, 2006, which again stated his objections to the recommended decision, withdrew the request for a hearing and requested a review of the written record.   On September 18, 2006, [Claimant #1], through her representative, was provided twenty days to submit any additional evidence she wished considered.  No additional evidence was submitted. 

 

OBJECTIONS

 

The letters of objection included numerous allegations of inappropriate conduct by DOJ, DEEOIC, the Solicitor, government agencies of the Navajo Nation, the Office of Navajo Uranium Workers and [Claimant #1]’s previous representative.  No evidence was submitted confirming that any such conduct occurred which would have had any bearing on the outcome of the case.

 

The basic objection of Lorenzo Williams is that the evidence as to whether [Claimant #1] was married to the employee at the time of his death was not properly evaluated.  In particular, he objected that the affidavit made by [Claimant #1] on August 1, 2005, indicating that she was never divorced from the employee, was not considered.  However, its evidentiary value must be weighed in light of the other evidence in the file.  It is true that the employee’s death certificate states that, at that time, he was married to [Claimant #1].  However, it also indicates that the information was based solely on information received from [Claimant #2].

 

On the other hand, the document which appears to have been signed by [Claimant #1] on October 8, 2002 states that she was not married to the employee at the time of his death.  It should be noted that another document in the file, her marriage certificate, includes a signature of [Claimant #1] without a middle initial. 

 

Furthermore, an official document was issued by a judge on December 22, 1978 stating that a divorce was granted dissolving the marriage of [Claimant #1] and the employee.  A stamp from the clerk of the court states that the copy in the file is an accurate copy of the document.  Lorenzo Williams, the representative of [Claimant #1] has noted that the document incorrectly states that the two were married in 1951, rather than 1950, as stated in the marriage certificate, and that there is also a stamp indicating the document was “received” in 1991, after the death of the employee.  However, he presented no argument or evidence that these facts would in any way invalidate the divorce decree, which was ordered and signed by the judge on December 22, 1978.

 

In addition, the file includes another official document, a marital status and family profile, issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation on January 10, 2002, which further confirms that [Claimant #1] and the employee were divorced on December 22, 1978.

 

The probative value of these two official documents far outweigh the unclear and conflicted statements from [Claimant #1] and the statement on the death certificate which simply repeated information obtained from one of her children with the employee.

 

Also, it should be noted that the evidence supports that, after December 22, 1978, the employee had at least three more children with another woman, [Employee’s second wife].  This does not, in and of itself, constitute evidence of the employee’s marital status.  It does, however, lend some credence to the proposition that the employee no longer considered himself married to [Claimant #1]

 

Finally, as the Solicitor noted in the opinion of December 7, 2005, 42 U.S.C. § 7384u provides for payment of compensation to an individual “who receives, or has received” an award under section 5 of the RECA.  A determination is made by DEEOIC concerning an eligible survivor under that section only if all the individuals who received the RECA award are deceased.  Since, in this case, the individuals who received the award under section 5 of the RECA are still alive, [Claimant #1] would not be eligible for benefits under Part B of the EEOICPA even if it were determined that she was an eligible surviving spouse under § 7384u(e).   

 

Upon review of the case record, the undersigned makes the following:

 

FINDINGS OF FACT

 

1.         You all filed claims for benefits under Parts B and E of EEOICPA.

 

2.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] received compensation for the condition of pneumoconiosis, as eligible surviving beneficiaries of the employee, under Section 5 of RECA.

 

3.         The employee died on December 1, 1990.  At the time of his death, [Claimant #2] was 36 years old, [Claimant #3] was 28, [Claimant #4] was 26, [Claimant #5] was 19, [Claimant #6] was 11, [Claimant #7] was 9, [Claimant #8] was 7 and [Claimant #9] was 6.  [Claimant #2], [Claimant #3] and [Claimant #4] were not incapable of self-support when the employee died.

 

4.         [Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #7], [Claimant #8] and [Claimant #9] are children of the employee. 

 

5.         [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did not receive any settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness.  [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have not confirmed whether or not they received a settlement or award from a lawsuit or state workers’ compensation in connection with the accepted exposure or illness. 

 

6.         [Claimant #1] was married to the employee from June 18, 1950 until December 22, 1978, when they were divorced.

 

Based on these facts, the undersigned makes the following:     

 

CONCLUSIONS OF LAW

 

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted under 20 C.F.R. § 30.313, the FAB will review the written record, any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, including the letters of objection, and must conclude that no further investigation is warranted.

 

The EEOICPA provides, under Part E, for payment of compensation to survivors of covered employees.  It specifically states in 42 U.S.C. § 7385s-3 that if “there is no covered spouse. . . payment shall be made in equal shares to all covered children who are alive.”  It defines a “covered spouse” as “a spouse of the employee who was married to the employee for at least one year immediately before the employee’s death,” and a “covered child” as “a child of the employee who, as of the employee’s death. . .had not attained the age of 18 years. . .had not attained the age of 23 years and was a full-time student who had been continuously enrolled as a full time student. . .since attaining the age of 18 years; or. . .had been incapable of self-support.”  

 

For the foregoing reasons, the undersigned finds that the evidence does not support that [Claimant #1] was a “covered spouse” or that [Claimant #2], [Claimant #3] or [Claimant #4] were “covered” children, and their claims for benefits under Part E of EEOICPA are hereby denied.

 

The EEOICPA provides, under 42 U.S.C. § 7384u, for payment of compensation in the amount of $50,000 to an “individual who receives, or has received, $100,000 under section 5 of the Radiation Exposure Compensation Act.”  [Claimant #1] did not receive an award under section 5 of RECA and, therefore, she is not entitled to compensation under Part B. 

 

[Claimant #2], [Claimant #3], [Claimant #4], [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] did receive an award under section 5 of RECA and, therefore, they each have an entitlement to $6,250 ($50,000 divided by 8) under Part B.  Since [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] have affirmed that they have not received a payment from a tort suit for the employee’s exposure, there is no offset to their entitlement, under 42 U.S.C. § 7385 of the Act, and compensation is hereby awarded to [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9], in the amount of $6,250 each.

 

When [Claimant #2], [Claimant #3], [Claimant #4] and [Claimant #5] have responded to the inquiry as to whether they have received a payment from a lawsuit based upon their father’s employment-related exposure, decisions will be issued on their claims for compensation under Part B of the Act.

 

Upon further development of the evidence, decisions will be issued on the claims of [Claimant #5], [Claimant #6], [Claimant #7], [Claimant #8] and [Claimant #9] for compensation under Part E.       

 

Washington, DC

 

 

Richard Koretz, Hearing Representative

Final Adjudication Branch