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Below are the head notes for the FAB decisions and orders relating to the topic heading, Final Adjudication Branch. The head notes are grouped under the following subheadings: Discretion of, Effect of court rulings, Effect of Director’s determination, FAB as finder of fact, Hearings before, Objections to a recommended decision, Reconsideration before, Subpoenas, and Time limit for issuance of final decision. 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.

Discretion of

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Effect of court rulings

  • The authorized representative’s argument attempted to transform the statutory framework of 42 U.S.C. § 7385s-2(a)(2) from one that explicitly focuses on an actual loss of wages to one that focuses on a potential loss of the capacity to earn wages. This very argument was considered and rejected by multiple courts. Accordingly, FAB relied on those decisions and did not address the arguments further. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017).
  • Congress explicitly authorized DEEOIC to engage in a notice-and-comment rulemaking to implement the wage-loss provisions found in Part E in § 7385s-10(e) of EEOICPA, and DEEOIC availed itself of that authority when it promulgated the regulations. Also, DEEOIC has the inherent administrative authority to issue internal procedural guidance to its claims staff describing the manner in which they should develop and adjudicate wage-loss claims. In this order denying a request for reconsideration, FAB found that these same regulatory and procedural requirements have found favor with the courts, and therefore rejected the argument that DEEOIC lacked the necessary authority to issue them. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017).
  • Final decisions of FAB that deny claims made under either Part B or Part E of EEOICPA are reviewable in United States District Courts. Therefore, when a court reviews a claim and issues a decision on the merits of that claim, DEEOIC is bound by the court’s factual findings and legal rulings in any subsequent administrative adjudication of that claim. In this particular claim, the employee’s allegations raised before FAB were considered and rejected by a court when it affirmed a 2007 final decision of FAB that rejected them, and this rejection was binding on DEEOIC in this later adjudication. EEOICPA Order No. 20160927-7341-5 (Dep’t of Labor, July 26, 2017).

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Effect of Director’s determination

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FAB as finder of fact

  • Claimants submitted evidence at a hearing to substantiate their allegation that their father began working at the Bethlehem Steel facility during the time period during which weapons-related production occurred at that facility. However, FAB concluded that Social Security Administration records, information submitted by the Pension Benefit Guaranty Corporation, employment records and medical certification cards were persuasive and established that the worker did not begin working at that facility until September 1953, which was after the covered period. EEOICPA Fin. Dec. No. 20150209-20000973-2 (Dep’t of Labor, September 23, 2015).
  • FAB concluded that the employee’s aggregate period of covered employment at DOE’s X-10, K-25 and Y-12 Plants in Oak Ridge, Tennessee was appropriately calculated as 27 months where contemporaneous employment cards provided by DOE clearly listed the dates the employee was hired along with the corresponding termination dates for each intermittent period of employment. FAB was not persuaded by the argument that the Oak Ridge Institute for Science and Education database demonstrated a longer period of employment for him because that database is a secondary source consisting of worker data that have been transcribed from primary personnel documents. Furthermore, the specific hire and termination dates listed in that database did not conform to the hire and termination dates on the employee’s employment cards provided by DOE. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
  • FAB found that the weight of medical evidence did not support a finding that the employee’s exposure to toxic substances in the course of his covered employment at DOE’s X-10, K-25 and Y-12 Plants in Oak Ridge, Tennessee for an aggregate of 27 months was a significant factor that caused, contributed to or aggravated his chronic obstructive pulmonary disease (COPD). On the one hand, the employee submitted a physician’s report that incorrectly assumed a duration of covered employment that far exceeded the employee’s actual employment, assumed exposures that were not supported by the record and alleged causal connections between COPD and substances that were not confirmed in SEM or elsewhere in the record. On the other, medical opinions by a contract medical consultant and DEEOIC’s Medical Director were based on a full review of the relevant medical and factual evidence of exposure, provided an accurate history of the employee’s occupational history and contained rationalized medical opinions addressing the relationship between the employee’s documented exposures and COPD. Accordingly, FAB determined that the later reports constituted the weight of the medical evidence. EEOICPA Fin. Dec. No. 20160111-64123-3 (Dep’t of Labor, August 26, 2016).
  • Covered Part E employee’s wage-loss claim was based on the allegation that he first lost wages in January 1993 due to his consequential illnesses. However, he was not prescribed the proton pump inhibitors that were the accepted cause of those consequential illnesses until two years later in March 1995. FAB explained the wage-loss claim had to be denied because the case file lacked any evidence demonstrating that the employee began losing wages during the month and year alleged as a result of his consequential illnesses. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017).
  • In an order that reopened the employee’s claim for wage-loss benefits, the Director of DEEOIC ordered that the employee’s allegations that his two accepted consequential illnesses were actually “covered” illnesses in their own right should be considered by the district office. In response to an assertion in the subsequent adjudication of the wage-loss claim that this consideration had not occurred, FAB pointed out that the district office had verified that the employee’s allegations regarding the two illnesses in question had previously been rejected by DOE in his request for assistance under former Part D of EEOICPA, by FAB in a May 2, 2007 final decision, and by a United States District Court that reviewed the 2007 final decision. Accordingly, FAB found that the district office “fully complied with the Director’s instruction” on this point and had considered the employee’s allegations. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017); EEOICPA Order No. 20160927-7341-5 (Dep’t of Labor, July 26, 2017).

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Hearings before

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Objections to a recommended decision

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Reconsideration before

  • FAB granted the claimant’s reconsideration request and remanded his claim to the district office for further development when he submitted new medical evidence of a diagnosis three days after FAB had issued a decision denying his claim based on insufficient evidence of a diagnosis. EEOICPA Order No. 10001762-2007 (Dep’t of Labor, November 10, 2008).
  • FAB denied the employee’s reconsideration request when he failed to submit any pertinent or relevant new arguments or any evidence that would justify reconsideration of the earlier final decision. Merely repeating arguments that have already been considered and rejected by FAB is not an acceptable ground for requesting reconsideration of a final decision. EEOICPA Order No. 20160927-7341-5 (Dep’t of Labor, July 26, 2017).

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Subpoenas

  • A request for the issuance of a subpoena must be in writing and sent to FAB no later than 30 days after the date of the original hearing request. FAB denied claimant’s request in this case on the ground that it was untimely. EEOICPA Fin. Dec. No. 20140710-84623-2 (Dep’t of Labor, March 19, 2015).
  • FAB issued a written preliminary denial of claimant’s subpoena request for the production of documents, on the ground that it was untimely. As part of that preliminary denial, FAB notified the worker that the issue of the subpoena request would be addressed again in the final decision on his Part B claim. When the claimant thereafter requested that FAB reconsider his preliminary denial of the subpoena request, FAB informed him that reconsideration of the preliminary denial was not available, and reminded him that the denial of his request would be addressed in the final decision. FAB concluded in the final decision that the preliminary denial was correctly denied because it was clearly untimely. EEOICPA Fin. Dec. No. 20140710-84623-2 (Dep’t of Labor, March 19, 2015).
  • FAB informed claimant that he had to explain why requested documents were relevant to his claim, and also show that a subpoena was the only way to obtain such documents. However, claimant’s timely, written request that FAB issue a subpoena for documents relating to his Part B claim was denied because he did not satisfy these requirements. EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013).
  • FAB has no authority to issue subpoenas in connection a hearing on a claim filed under Part E. The statute only grants DEEOIC the authority to issue subpoenas in connection with claims filed under Part B. EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013).

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Time limit for issuance of final decision

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