|U.S. DEPARTMENT OF LABOR||OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
February 12, 2009
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) on the employee’s claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the employee’s claim for wage-loss benefits based on his covered illness of chronic obstructive pulmonary disease (COPD) is denied.
STATEMENT OF THE CASE
On December 8, 2004, the employee filed a claim under Part E of EEOICPA in which he alleged that he had contracted “COPD-Bronchitis, Hearing Loss, Hemorrhoids, Back Disorder, Bursitis, Hernia Multiple, Shoulder Disease, Rotator Cuff, Joint Disease, Knee, Tremors, Essential” due to his work-related exposure to toxic substances at the K-25 and Y-12 Plants in Oak Ridge, Tennessee. Later on August 28, 2006, the employee submitted a written request for both impairment benefits and wage-loss benefits and alleged he had experienced wage-loss from January 1997 through the date of his request.
In support of his claim, the employee filed a work history listing his employment by the Department of Energy (DOE) contractors Union Carbide at the K-25 Plant from 1975 to 1981, and by Lockheed Martin Energy Systems and other DOE contractors at the Y-12 Plant from 1981 to 1997. The Oak Ridge Institute for Science and Education verified that the employee worked for DOE contractors as a Component Assembler, Inspector and Senior Inspector at the K-25 Plant from March 10, 1975 to February 15, 1981, and as a Machinist, Engineering Assistant and Technical Associate at the Y-12 Plant from February 16, 1981 to January 31, 1997.
In support of his claim, the employee submitted an October 24, 2001 report of a medical screening examination in which Dr. Steven Markowitz noted that while the employee’s chest x-ray “showed no evidence of lung disease,” his ten-year history of symptoms was “consistent with chronic bronchitis.” The employee also submitted an August 28, 2002 report in which Dr. R. Hal Hughes related “approximately a ten year history of chronic bronchitis symptoms on average of two to three episodes a year.” The file also contains several medical reports from Dr. Gregory P. LeMense, the employee’s treating physician. The earliest of those reports note a chest CT scan and a medical examination performed by Dr. LeMense in late February 2004. In a February 26, 2004 medical report, Dr. LeMense stated “it is my impression that [Employee] has mild obstructive lung disease due to chronic obstructive bronchitis.”
On October 6, 2006, FAB issued a final decision in which it found that the evidence was sufficient to establish a diagnosis of COPD and a causal link between the COPD and the employee’s work-related exposure to toxic substances at the K-25 and Y-12 Plants. Based on those findings, FAB accepted the employee’s Part E claim for the “covered illness” of COPD and awarded him medical benefits for that particular illness; in that same decision, FAB explicitly deferred a decision on the employee’s August 28, 2006 request for both impairment and wage-loss benefits “since Jan. 1997.”
By letter dated November 29, 2006, the Jacksonville district office asked the employee to submit evidence in support of his allegation that he had experienced wage-loss as a result of his COPD. The district office specifically asked for earnings information to support his claimed period of wage-loss and medical evidence to support the causal link of that wage-loss to his covered illness of COPD. In his December 11, 2006 response to the district office’s request, he stated:
I first experience[d] wage loss in Jan. 1, 1997 due [to] my COPD because I was laid off at that time with no pay and 21 years company service. I feel I was laid off because of this problem. I did not know I had COPD until Jan. 1, 2002.
On December 13, 2006, the district office received a wage report from the Social Security Administration in response to its request for the employee’s reported wages for the years 1993 through 2005. It showed that the employee earned $28,225.80 in 1993, $28,437.56 in 1994, $28,819.96 in 1995, $29,853.88 in 1996, and $19,133.59 in 1997, and stated that “There are no other earnings recorded under this Social Security Number for the period(s) requested.” On April 3, 2007, the district office sent the employee another letter asking for evidence of his alleged wage-loss, and stated the following:
Our records indicate [you] were diagnosed with COPD on February 20, 2004. Please state what illness you are claiming that caused your wage loss beginning in 1997 through present.
This letter reminded the employee that he had the burden of providing medical evidence establishing a causal relationship between his accepted covered illness (COPD) and his alleged wage-loss. In his response to this second letter, the employee submitted a copy of a November 22, 1996 termination notice that Lockheed Martin Energy Systems had given him. The notice stated the following, in pertinent part:
Subject: Reduction-In-Force Notification
I regret to inform you that the number of employees at Lockheed Martin Energy Systems, Inc., P.O. Box 2009, Oak Ridge, Tennessee 37831, will be reduced as a result of declining Department of Energy budgets and changing program emphasis for FY 1997. The layoff, which is expected to be permanent, will commence January 31, 1997.
Your position as Technical Associate II will be terminated on January 31, 1997.
* * *
I acknowledge receipt of the Reduction-In-Force Notification.
[Employee] /s/ 11/22/96
On August 11, 2007, the district office referred the employee’s case file to a District Medical Consultant (DMC) and requested an opinion on whether, for any of the years between 1997 and 2007, “there is sufficient rationalized medical evidence that the employee was unable to work due to the covered illness of chronic obstructive pulmonary disease.” In her September 11, 2007 report, Dr. Jeanne M. McGregor, the DMC that the district office selected to provide the opinion, reviewed the medical evidence in the case file and noted that it showed that the employee had “good control of his moderate chronic obstructive lung disease with current medications” and that “[h]is only medication for his lungs is Advair 500/50.” She also noted that there was nothing in the file to support the employee’s allegation that he was laid off due to his COPD, and concluded as follows:
Unfortunately, the evidence in [Employee]’s file does not support that he was unable to work due to his COPD in any of the years 1997 to present. It appears that the only reason that [Employee] stopped working in 1997 was because he was laid off in November of 1996.
* * *
Upon consideration of all the above, it is my medical opinion within a reasonable degree of medical certainty that there is not sufficient rationalized medical evidence in the file to establish that [Employee] was unable to work due to his covered illness of COPD for any of the years from 1997 to present.
On October 23, 2007, the Jacksonville district office issued a recommended decision to deny the employee’s request for wage-loss benefits because “the medical evidence is insufficient to support a causal relationship between the employee’s accepted condition of COPD and wage-loss during the claimed period from 1997 to present.” On November 5, 2007, the employee’s representative filed a timely written objection to the recommended decision and requested a hearing, which was held on April 30, 2008 in Oak Ridge, Tennessee.
In his November 5, 2007 objection letter, the employee’s representative did not disagree with any specific factual finding included in the district office’s recommended decision; rather, he expressed the employee’s disagreement with the recommended conclusion that there was no causal relationship between his COPD and any wage-loss during the claimed period of January 1997 to August 2006. The letter was not accompanied by any evidence in support of the disagreement expressed therein. At the April 30, 2008 oral hearing, the representative raised no additional objections; instead, he submitted a written report from Dr. Marty G. Wallace, together with copies of previously submitted documents, and argued that the medical evidence of causation in the case file was sufficient to award the wage-loss benefits at issue.
After reviewing the evidence in the case file and the employee’s objection, FAB hereby makes the following:
FINDINGS OF FACT
Based on the above findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
Part E of EEOICPA provides several different types of benefits to eligible DOE contractor employees or their survivors. Among those benefits are compensation for permanent impairment, compensation for qualifying calendar years of wage-loss, a lump-sum survivor benefit, and medical benefits. See 42 U.S.C. §§ 7385s-2(a)(1), 7385s-2(a)(2), 7385s-3, 7385s-8. In order to prove eligibility for any of these benefits, the evidence must establish that the employee forming the basis for the Part E claim is/was a “covered DOE contractor employee” and that he/she contracted a “covered illness” through exposure to a toxic substance at a DOE facility. In this particular Part E claim, FAB has already determined that the employee is a “covered DOE contractor employee,” as that term is defined in 42 U.S.C. § 7385s(1), and that his COPD is a “covered illness” pursuant to § 7385s(2).
In addition to satisfying the general eligibility requirements applicable to all Part E claims, an employee seeking benefits for calendar years of qualifying wage-loss must also satisfy the specific requirements of 42 U.S.C. § 7385s-2(a)(2). Thus, the evidence must establish: (1) that the employee held a job at which he/she was earning wages; (2) that the employee experienced a loss in those wages in a particular month; (3) that the wage-loss in that one month was caused by the employee’s covered illness, i.e., that he/she would have continued to earn wages in that month from that job but for the covered illness (this month is known as the “trigger month”); (4) his/her “average annual wage” (AAW) over the 36 months that immediately preceded the trigger month; (5) his/her normal retirement age and the calendar year (known as the “retirement year”) in which he/she would reach that age; (6) beginning with the calendar year of the trigger month, the percentage of the AAW that was earned in each calendar year up to and including the retirement year; (7) the number of those calendar years in which the covered illness caused the employee to earn 50% or less of his/her AAW; and (8) the number of those calendar years in which the covered illness caused him/her to earn more than 50% but not more than 75% of his/her AAW. See 20 C.F.R. § 30.800 (2008). Rationalized medical evidence is needed to establish the third of these elements, as well as the causation aspects of the seventh and eighth elements. See 20 C.F.R. § 30.805(b).
The employee alleges that he first experienced wage-loss in January 1997, and that this wage-loss has continued at least through the date of his April 30, 2008 oral hearing in his EEOICPA claim. The factual evidence establishes that the employee held a job at the Y-12 Plant at which he was earning wages, and that he began to lose wages when his job was terminated as part of a Reduction-In-Force, effective January 31, 1997. The evidence also establishes that the employee has not worked since this job was terminated. Therefore, FAB concludes that the employee has proven the first two elements of his wage-loss claim: (1) that he held a job at which he was earning wages; and (2) that he experienced a loss in those wages in a particular month—January 1997.
However, FAB also concludes that the employee has failed to prove that his wage-loss in January 1997 was caused by his covered illness, i.e. that he would have continued to earn wages in January 1997 from his job at the Y-12 Plant had he not contracted COPD in January 1997. It is axiomatic that an employee cannot lose wages in a particular month because of a covered illness if he/she has not yet contracted that illness. Although the employee here has submitted medical evidence from Dr. Wallace in support of his argument that he should have been restricted from working at the Y-12 Plant when his job was terminated as part of a Reduction-In-Force in January 1997, the Reduction-In-Force Notification he submitted clearly indicates that the layoff was caused by “declining Department of Energy budgets and changing program emphasis for FY 1997” rather than by any medical condition of the employee. A review of the medical evidence of record reveals that there is no mention of a diagnosis of COPD prior to treating physician, Dr. LeMense’s February 26, 2004 report. None of the physicians who have submitted medical reports in this matter have even suggested that the employee had COPD before that date, and COPD is the only covered illness that has been accepted as compensable in this claim. Thus, the employee has not offered any evidence to establish a diagnosis of COPD in 1997 or at any time prior to February 2004 that could have lead to any wage-loss.
Furthermore, even if the employee had shown that his diagnosed covered illness arose in January 1997 at the time of his wage-loss, the employee’s argument concerning Dr. Wallace’s report ignores the fact that the after-the-fact suggestion of restrictions that might have resulted in wage-loss if put in effect simply have no relevance to why the employee ceased earning wages seven years prior to when his illness was first diagnosed. EEOICPA does not provide wage-loss benefits for employees who should have been placed under restrictions and might have lost wages had those restrictions been in place, even if those restrictions were caused by a covered illness. Rather, it only provides wage-loss benefits for employees who, consistent with the terms of 42 U.S.C. § 7385s-2(a)(2)(A)(i), experience wage-loss caused by a covered illness.
Unfortunately, the employee’s February 26, 2004 diagnosis is insufficient to establish his entitlement to wage-loss benefits commencing in 2004 because there is no factual evidence in the case file that the employee experienced a loss of wages in that month (or in any month thereafter). It is also axiomatic that an employee cannot experience a loss of wages during a particular month if he/she is not earning any wages in that month. Therefore, even if the employee’s covered illness of COPD made it impossible for him to work from February 2004 forward, it would still be insufficient to establish any compensable wage-loss because the employee had no job and no wages at that time.
The regulations provide that the claimant bears the burden of providing all documentation necessary to establish eligibility for benefits and of proving “by a preponderance of the evidence the existence of each and every criterion” required for eligibility; “[p]roof by a preponderance of the evidence means it is more likely than not that a given proposition is true.” See 20 C.F.R. § 30.111(a). Thus, FAB concludes that the evidence in the case file is insufficient to establish, by a preponderance of the evidence, that the employee experienced any compensable calendar years of qualifying wage-loss as the result of his COPD, and hereby denies the employee’s wage-loss claim.
Amanda M. Fallon
Final Adjudication Branch
 On the same date, the employee also filed a claim under Part B of EEOICPA in which he alleged that he had contracted “COPD-bronchitis” as a result of working at the K-25 and Y-12 Plants.
 In that decision, FAB denied the employee’s Part B claim because his alleged condition was not an “occupational illness” compensable under that Part. FAB also denied his Part E claim for hearing loss, a back disorder, hemorrhoids, bursitis, joint disease, multiple hernias, knee tremors, and rotator cuff disease because the evidence was insufficient to establish that those illnesses were contracted through exposure to a toxic substance at a DOE facility.
 On May 7, 2007, FAB issued another final decision awarding the employee $115,000.00 for impairment due to his covered illness of COPD, based on the February 24, 2007 impairment evaluation of Dr. Harvey Popovich.
 Following that hearing, FAB issued a July 14, 2008 final decision denying the employee’s claim for wage-loss benefits. However, the Director of the Division of Energy Employees Occupational Illness Compensation thereafter issued a September 18, 2008 order vacating FAB’s July 14, 2008 decision because it did not “properly determine whether the employee’s exposure at K-25 and Y-12 resulted in any compensable loss of wages,” and referring the case back to FAB “for issuance of a new final decision that gives appropriate consideration to the evidence in the case file that is relevant to the employee’s Part E claim.”
 FAB notes that, notwithstanding the employee’s reported history of breathing difficulties, even as of October 24, 2001, the report of Dr. Steven Markowitz’ medical screening examination noted that the employee’s chest x-ray “showed no evidence of lung disease.”
 Alternatively, the employee’s entitlement to wage-loss benefits is also foreclosed because he was unemployed for the 36-month period prior to his initial 2004 diagnosis. His average annual earnings (AAW) for that 36-month period would therefore be zero. Under the wage-loss formula in the statute, a benefit payment for a particular calendar year is predicated on a finding that the employee has earned at least 25 percent less than his AAW during that calendar year. 42 U.S.C. § 7385s-2(a)(2). Since the employee earned no wages in the three years prior to his initial diagnosis, he cannot demonstrate the requisite 25 percentage loss of earnings for any calendar year after his initial diagnosis of a covered medical condition.