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Division of Energy Employees Occupational Illness Compensation (DEEOIC)

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Survivors

Below are the head notes for the FAB decisions and orders relating to the topic heading, Survivors. The head notes are grouped under the following subheadings: Adopted children, Children, Election for survivors under Part E, Eligibility, Grandchildren, Marriage and Divorce, Non-claiming individuals, Parents, Reimbursement of deceased employee’s medical expenses, Spouse, and Stepchildren. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Adopted children

  • An adopted Navajo child may claim EEOICPA benefits only as a survivor of her adoptive father and not her natural father because under the Navajo Nation Code the natural parents of an adoptive child are “relieved of all parental responsibilities for such child or to his property by descent or distribution or otherwise.” EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).
  • Where deceased DOE contractor employee was a “covered employee with cancer” and a member of the SEC and had no surviving spouse, the employee’s five surviving children living at the time of payment were awarded equal shares of the $150,000.00 lump-sum compensation awarded under Part B. Four of the five children were his biological children and one was his adopted child. EEOICPA Fin. Dec. No. 82961-2008 (Dep’t of Labor, March 27, 2008).


Children

  • Under either Part B or Part E of EEOICPA, a “child” of an individual must be either a biological child, a stepchild, or an adopted child of the individual. In this case, a nephew of a deceased covered employee was not a “child,” regardless of evidence that the nephew was supported by the employee and lived in a parent-child relationship with the employee for several years. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • Dependency alone does not does not establish that a claimant is a “child” of a deceased covered employee under EEOICPA. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • In its determination of whether a claimant satisfies EEOICPA’s definition of “child,” DEEOIC is not bound by a state court’s declaration of what constitutes a “de facto parent” in a visitation-rights case. EEOICPA Fin. Dec. No. 37038-2003 (Dep’t of Labor, November 7, 2007).
  • Under Part B, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a “child” of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. EEOICPA Fin. Dec. No. 95118-2010 (Dep’t of Labor, July 12, 2010).
  • Surviving child met the definition of a “covered” child entitled to Part E survivor benefits under § 7385s-3(d) since at the time of the employee’s death, she was under the age of 23 and a full-time student who had been continuously enrolled since attaining the age of 18. Although there was a lapse of several months when she was not enrolled in full-time studies, the lapse was due to circumstances beyond her control because she had to wait for an opening at the institution. EEOICPA Fin. Dec. No. 10003238-2005 (Dep’t of Labor, October 28, 2005).
  • Child who was 54 years old when his father died met the definition of a “covered” child under Part E because he was “incapable of self-support” at the time of the employee’s death. The evidence showed that he was 100% disabled (for which he was receiving veterans’ benefits) due to post-traumatic stress disorder and other disabling conditions. The Social Security Administration and the Department of Veterans’ Affairs provided information that the claimant had no earnings from at least 2000 to 2004. EEOICPA Fin. Dec. No. 10012834-2006 (Dep’t of Labor, February 21, 2007).
  • Woman who was 60 years old at the time of her mother’s death filed a claim under Part E as a surviving “covered” child and alleged that she was incapable of self-support. Her physician submitted evidence that she had diabetes mellitus, fibromyalgia, crippling arthritis and other medical conditions, and opined that she was incapable of self-support in October 1999. However, the medical evidence in the case file only addressed the time period after her mother’s death and was insufficient to establish that she was incapable of self-support at the time of her mother’s death. EEOICPA Fin. Dec. No. 10017360-2006 (Dep’t of Labor, August 22, 2006).
  • Surviving child awarded benefits under Part B was not eligible for a Part E award because she did not meet the definition of a “covered” child eligible for Part E benefits in § 7385s-3(d) since at the time of the employee’s death, she was not under the age of 18, nor was she a full-time student under the age of 23 who was continuously enrolled full-time in an institution of higher learning, nor was she incapable of self-support. EEOICPA Fin. Dec. No. 10037246-2005 (Dep’t of Labor, November 2, 2005).


Election for survivors under Part E

  • Since the covered Part E employee died solely due to a non-covered illness after filing a Part E claim but before any monetary benefits were paid, the survivor was not entitled to a lump-sum payment of $125,000 under Part E because the employee’s death was not caused by the covered illness. The survivor therefore elected to receive the amount of impairment benefits that the employee would have received if he had not died. EEOICPA Fin. Dec. No. 105471-2009 (Dep’t of Labor, October 8, 2009).
  • Where a covered Part E employee died after filing a Part E claim but before any monetary benefits were paid, and his death was caused solely by a non-covered illness, his surviving spouse elected under § 7385s-1(2)(B) of EEOICPA to receive the impairment benefit that the employee would have received if he had not died prior to payment. EEOICPA Fin. Dec. No. 10047228-2008 (Dep’t of Labor, August 28, 2008); EEOICPA Fin. Dec. No. 105471-2009 (Dep’t of Labor, October 8, 2009).
  • If a covered Part E employee dies after filing a Part E claim but before monetary benefits are paid, and death is caused solely by a non-covered illness or illnesses, the survivor may choose to receive the benefits that would have been payable to the employee. Here, the covered illnesses were found to have aggravated, contributed to, or caused the covered Part E employee’s death. Consequently, his surviving spouse could not choose the benefits that would have been payable to the employee if he had not died before receiving payment, but she was entitled to survivor benefits in the amount of $125,000. EEOICPA Fin. Dec. No. 10055714-2007 (Dep’t of Labor, April 11, 2007).


Eligibility


Grandchildren


Marriage and divorce


Non-claiming individuals


Parents


Reimbursement of deceased employee’s medical expenses

  • Where employee died before payment could be issued based on his CBD, survivors who subsequently filed claims were entitled to reimbursement of the medical expenses for treatment of his CBD, retroactive to the date he filed his original claim, through the date of his death. EEOICPA Fin. Dec. No. 59062-2004 (Dep’t of Labor, September 13, 2004).
  • Where a covered Part E employee died after filing a claim but before compensation was paid, and his surviving spouse elected under § 7385s-1(2)(B) of EEOICPA to receive the $40,000 impairment benefit that the employee would have received if he had not died prior to payment, spouse was also awarded medical benefits to cover the medical expenses the employee incurred for his covered illness from the date the employee filed his EEOICPA claim through the date of his death. EEOICPA Fin. Dec. No. 10047228-2008 (Dep’t of Labor, August 28, 2008).


Spouse


Stepchildren

  • Because it did not appear that claimant was a biological child of the employee, the FAB directed the district office to provide the claimant an opportunity to establish that she was a stepchild who lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003).
  • In cases involving a stepchild or stepchildren who were adults at the time of the covered employee’s marriage, supporting evidence that they lived in a regular parent-child relationship may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc. In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful. Also, evidence such as copies of insurance policies, wills, photographs showing attendance at a stepchild’s wedding as the father or mother or at other types of family gatherings, and newspaper articles like obituaries or any other documentation that refer to the stepchild and the decease employee in a familial way may be used. EEOICPA Fin. Dec. No. 32000-2002 (Dep’t of Labor, September 13, 2004); EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).
  • There is no minimum or maximum time period that a person has to have lived in the same household as the employee in order to be a stepchild. Here the evidence indicated that the stepchildren lived with the employee for at least three years and were listed as his children in the employee’s obituary. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
  • A child was determined to be the employee’s stepchild since the employee’s name was listed as the father on the birth certificate and there was no evidence the child was formally adopted by the putative natural father. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
  • Even though claimant was an adult at the time his mother and stepfather (the employee) were married, he submitted evidence sufficient to establish that he lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 55831-2004 (Dep’t of Labor, July 29, 2005).
  • Claimant established that she was a stepchild of the employee who lived with the employee in a regular parent-child relationship by providing a copy of her permanent school record naming the employee as her father, a copy of the employee’s will naming the claimant as one of his children and a letter written by one of the employee’s biological children confirming that the claimant was her sister and was raised in the same household as the employee’s biological children. EEOICPA Fin. Dec. No. 68949-2005 (Dep’t of Labor, September 21, 2005).