|U.S. DEPARTMENT OF LABOR||EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
FINAL ADJUDICATION BRANCH
July 31, 2007
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for impairment 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 claim for impairment benefits under Part E of EEOICPA based on the claimed condition of multiple myeloma disease is accepted.
STATEMENT OF THE CASE
On January 20, 2004, [Employee] filed claims under both Part B and former Part D of EEOICPA. He identified multiple myeloma as the claimed condition he alleged resulted from exposure to toxic substances during his employment at a Department of Energy (DOE) facility. Subsequent to his filing a request for assistance under former Part D, Congress amended EEOICPA by repealing Part D and enacting new Part E, which is administered by the Department of Labor. The filing of a request for assistance under former Part D is treated as a claim for benefits under Part E.
On April 6, 2004, FAB issued a final decision accepting [Employee]’s claim under Part B of EEOICPA, finding that he was a member of the Special Exposure Cohort with the “specified” cancer (an “occupational” illness) of multiple myeloma. On May 12, 2006, FAB issued another final decision accepting [Employee]’s claim for medical benefits under Part E the “covered” illness of multiple myeloma.
The evidence of record establishes that [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant for at least 250 work days prior to February 1, 1992. During his employment at this facility he was employed by DOE contractors. The medical evidence establishes that he was diagnosed with multiple myeloma on December 24, 2003.
On February 6, 2006, [Employee] filed a claim for impairment and wage-loss benefits under Part E. To ascertain his impairment rating, and pursuant to his request, the district office had [Employee]’s medical records reviewed by a District Medical Consultant (DMC). On September 13, 2006, the DMC opined that based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Physical Impairment (the Guides), [Employee]’s multiple myeloma was ratable because he had reached maximum medical improvement for this condition. However, he opined that [Employee]’s peripheral neuropathy, which is a consequential condition of his multiple myeloma, was not at maximum medical improvement and thus could be currently rated. Using the proper sections and charts of the Guides, the DMC assessed [Employee]’s whole person impairment based on his multiple myeloma at 11%.
The claim file contains [Employee]’s written declaration that he has not filed any tort suits or claims for state workers’ compensation benefits, or received any settlements or state workers’ compensation benefit awards in connection with his multiple myeloma.
On December 5, 2006, the district office issued a recommended decision to award [Employee] an impairment award for his 11% whole person permanent impairment based on multiple myeloma, and that he was entitled to receive a lump-sum benefit under Part E of EEOICPA based on that award of $27,500.00. Accompanying the district office’s recommended decision was a letter explaining [Employee]’s rights and responsibilities in regard to that decision.
On February 1, 2007, FAB received [Employee]’s letter objecting to the recommended decision and requesting an oral hearing, which was held on April 17, 2007. At that hearing, both [Employee] and [Employee’s spouse] presented testimony and evidence. [Employee] also submitted two exhibits at this hearing: (1) [Employee]’s letter dated April 17, 2007 summarizing his objections to the recommended decision; and (2) a document entitled “Concise Review of the Disease and Treatment Options Multiple Myeloma Cancer of the Bone Marrow” by Brian G. M. Durie, M.D.
Objection No. 1: [Employee] objected to the DMC’s assessment of his impairment by arguing that the DMC should have considered additional factors, such as his bone damage, bone destruction, bone lesions, his thrombocytopenia and decreased platelet count, his infections and suppressed immune system, his weakness, fatigue and shortness of breath, his renal insufficiency, his daily activities, and the probability of his premature death in assessing his impairment.
Objection No. 2: [Employee] argued that his peripheral neuropathy should be rated because he believed that it was at maximum medical impairment, and objected to the impairment rating because the DMC did not include his peripheral neuropathy condition in assessing his impairment.
Objection No. 3: [Employee] objected to the impairment rating because the DMC did not have all of your medical records, and no effort was made to obtain those records for the DMC to review.
Objection No. 4: [Employee] argued that the DMC’s report contains incorrect information about him regaining his previous state of good health.
Objection No. 5: [Employee] argued that the “shallowness” of the impairment evaluation process was not consistent with EEOICPA, nor was it consistent with his agreement to forego other legal remedies if he was fairly compensated.
Subsequent to the hearing a copy of the transcript of that hearing was sent to [Employee]. On May 4, 2007, FAB received his letter dated April 30, 2007 and medical records he had attached to that letter, including a March 1, 2007 report from Dr. Bart Barlogie and laboratory results dated February 27, 2007, February 10, 2006, September 23, 2005 and December 15, 2004.
[Employee]’s first, second and third objections concern whether the impairment rating that formed the basis for the recommended decision was correct. He did not submit any medical evidence indicating that a physician had rated his impairment differently than the DMC had. The regulations specify how FAB will evaluate new medical evidence submitted to challenge the impairment evaluation in the recommended decision. Those regulations provide that if the employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, FAB will not consider the additional impairment evaluation if it is not performed by a physician who meets the criteria that have been established for physicians performing impairment evaluations for the pertinent covered illness in accordance with the Guides. See 20 C.F.R. §§ 30.905, 30.908 (2007). The medical evidence [Employee] submitted did not include an assessment of his impairment based on the claimed condition in accordance with the Guides. A determination regarding [Employee]’s impairment rating must be based upon a consideration of the totality of all relevant evidence of impairment in the record, and that determination must be based upon the most probative evidence. See 20 C.F.R. § 908(c). After reviewing the evidence of record, FAB concludes that the impairment rating by the DMC is the most probative evidence of your whole person impairment from your multiple myeloma. [Employee] may apply for a new impairment rating for this condition in two years. See 20 C.F.R. § 30.912. Additionally, because his peripheral neuropathy was not assessed in the DMC’s impairment rating because he had not reached maximum medical improvement for that condition, [Employee] may apply for an impairment rating for that condition anytime, but the medical evidence must establish that he has reached maximum medical improvement for that condition.
[Employee]’s fourth objection concerns statements in the DMC’s report about him regaining his normal state of health. [Employee] made reference to a statement in the DMC report which implies it is debatable whether [Employee] has actually regained his previous state of normal good health. However, the statement in question was in quotations in the DMC’s report, indicating that the DMC did not make that statement. The DMC’s report indicates that while you were in remission, you were not in your previous state of normal good health.
[Employee]’s fifth objection concerns the “shallowness” of the impairment evaluation process under EEOICPA. However, when it enacted Part E, Congress provided that impairment benefits must be based on impairment ratings derived from the Guides. See 42 U.S.C. § 7385s-2(b). The Department of Labor must administer Part E as provided by Congress and does not have the authority to base impairment benefits on anything other than the Guides.
After reviewing the evidence in the file, [Employee]’s objections to the recommended decision and the evidence he submitted, FAB hereby makes the following:
FINDINGS OF FACT
1. [Employee] filed a claim for benefits under EEOICPA on January 20, 2004.
2. [Employee] was employed at the Oak Ridge Gaseous Diffusion Plant (a DOE facility) for more than 250 work days prior to February 1, 1992. During his employment at this facility, he was employed by DOE contractors.
3. On May 12, 2006, FAB accepted [Employee]’s Part E claim for medical benefits for the “covered” illness of multiple myeloma.
4. [Employee] has a minimum impairment rating of his whole person as a result of his multiple myeloma of 11%.
5. [Employee] has not received compensation or benefits from a tort suit or a state workers’ compensation claim based on his multiple myeloma.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
On May 12, 2006, FAB issued a final decision under Part E of EEOICPA that accepted [Employee]’s claim for medical benefits for the covered illness of multiple myeloma, finding that his exposure to toxic substances during the performance of his duties at a DOE facility was a significant factor in aggravating, contributing to, or causing his multiple myeloma. 42 U.S.C. § 7385s-4(a). He is therefore a “covered DOE contractor employee.”
Part E of EEOICPA provides that a “covered DOE contractor employee” with a “covered” illness shall be entitled to impairment benefits based on the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered” illness. See 42 U.S.C § 7385s-2(a) and 20 C.F.R. § 30.901(a). Part E also provides that the employee’s impairment rating is to be determined in accordance with the Fifth Edition of the Guides, and that for each percentage point of impairment that is a result of a “covered” illness, a “covered DOE contractor employee” is to receive $2,500.00. See 42 U.S.C. § 7385s-2(a)(1) and (b). The evidence of record establishes that [Employee] has an impairment rating of 11% of the whole person as a result of his “covered” illness of multiple myeloma, based on the Guides.
[Employee] therefore qualifies for $27,500.00 in impairment benefits under Part E of EEOICPA, pursuant to 42 U.S.C. § 7385s-2(a)(1), and his claim for those benefits is accepted for that amount.
William J. Elsenbrock
Final Adjudication Branch