DOL Seal


EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10076066-2009

DECISION DATE: March 5, 2010


This Remand Order of the Final Adjudication Branch (FAB) concerns the above claim for wage-loss under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. Pursuant to the authority granted by the EEOICPA regulations, and for the reasons set forth below, the claim is remanded to the Seattle district office for further development and the issuance of a new recommended decision. 20 C.F.R. § 30.317 (2010).

On June 20, 2008, the employee filed a Form EE-1 claiming benefits under EEOICPA for the alleged conditions of asthma, idiopathic thrombocytopenia purpura (ITP) and bipolar depression. On May 8, 2009, FAB issued a final decision accepting the claim for asthma under Part E, based on the determination that the employee was a covered Department of Energy (DOE) contractor employee who was diagnosed with a covered illness (asthma), and that it was 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 that asthma. FAB therefore awarded the employee medical benefits for the treatment of her asthma, retroactive to June 20, 2008.

On October 21, 2009, FAB issued a second final decision accepting the employee’s Part E claim for impairment due to her asthma and awarded her compensation in the amount of $62,500.00. On November 23, 2009, the employee requested wage-loss benefits due to her accepted asthma, for the period May of 1990 to December 31, 2008.

As part of the development of the employee’s request for wage-loss benefits, the Seattle district office referred her claim to a District Medical Consultant (DMC). On February 3, 2010, the district office received the report of the DMC, who concluded that the employee’s records supported approximately five to eight weeks of wage-loss causally related to her asthma or the treatment thereof, during 2004 and 2005.

On February 24, 2010, the Seattle district office issued a recommended decision to accept the claim for wage-loss due to asthma in the amount of $30,000.00. On March 4, 2010, FAB received her written statement, waiving her right to object to any of the findings of fact or conclusions of law found in the recommended decision of February 24, 2010.

In order to support a request for wage-loss benefits under Part E, rationalized medical evidence of sufficient probative value to establish that the period of wage-loss at issue is causally related to a covered illness must be submitted. 20 C.F.R. § 30.805(b). Specifically, the employee must prove that if not for her accepted condition of asthma, she would have continued to earn wages from her existing employment in January of 2004, the first month indicated by the DMC as a potential period of wage-loss.

The evidence of record, including an itemized statement of earnings from the Social Security Administration, indicates that the employee was not employed during the years 2003 or 2004. Since she was not employed in January of 2004, the first month in which the DMC indicated that her asthma could have prevented her from working, the employee could not experience wage-loss at the time that was causally related to her accepted condition of asthma.

The regulations provide that at any time before the issuance of its decision, FAB may remand the claim to the district office for further development without issuing a decision. In light of the evidence of record showing that the employee did not actually lose any wages during January of 2004, her claim is being remanded to the Seattle district office. On remand, the district office should take such further development as they deem necessary, and issue a new recommended decision.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch