EEOICPA

November 12, 2011 by R. Hugh Stephens, Esq. · Leave a Comment 

We have been handling Energy Employees Occupational Illness Compensation Act (EEOICPA) claims all over the country from our office in Buffalo, New York for quite some time now and have had some success in obtaining compensation for employees and their survivors including those who were initially denied compensation under the program by the Department of Labor. There are a number of issues that arise repeatedly that are worth describing for those managing the challenge of pursuing an EEOICPA claim.

The interaction of Parts B and E can cause significant confusion. Under Part E a surviving spouse receives compensation of $125,000 if her husband’s occupational illness has been accepted by the program and that occupational illness contributed in some way to his death. But if he had at least 10 years of work life remaining at the time of his death (i.e. at least 10 years remaining before his social security retirement age), the amount that should be distributed to his surviving spouse is $150,000. If he had at least 20 years remaining before he reached his social security retirement age, the amount is increased to $175,000.

We have found that claims examiners sometimes forget to properly apply this rule and pay out $125,000 instead of $150,000 or $175,000. This is probably because when a living employee files a claim for lost wages under Part E, after being compensated ($150,000) under Part B for cancer for example, the impairment is processed separately from the lost wages claim and must be filed separately. The $125,000 compensation to the surviving spouse is analogous to the impairment portion of the Part E claim and the additional $25,000 or $50,000 is analogous to the lost wages portion of the Part E claim. In other words, this is probably a good faith mistake by a well meaning claims examiner, not an attempt to pay the surviving spouse less than she has a right to receive. I would describe the type of assistance we provide in this context as more akin to making sure these mistakes are not made or making sure they are corrected in a timely fashion, than protecting the claimants from a claims examiner who is seeking to save his or her employer the cost of paying the claim. We tend to find that claims examiners generally want to see qualifying claims paid and non-qualifying claims denied primarily because they want to avoid the pain and embarrassment that accompany a claim that is initially recommended for acceptance and later denied by the Final Adjudication Branch. We are sometimes less convinced of the good faith and fair dealing of the District Medical Consultants (DMCs), who determine among other things whether claims should be compensated under Part E where occupational exposure to a toxic substance has aggravated, contributed to or caused an illness. But we have seen a number of claims, which were initially denied, compensated based on the good work of a DMC. Our view generally is that the program in spite of its very significant flaws functions reasonably well and that our work sometimes leads to compensation or at least to more efficient compensation. Sometimes getting compensation more quickly is extremely important to our claimants, especially those that are sick and who will lose some or all of that compensation if he or she does not live long enough to collect. Those claims can be some of the most stressful and potentially disturbing.

Part E becomes a little more complicated when there are children especially non-marital children. If a worker has a surviving spouse, a child or children with that surviving spouse and no other children, the surviving spouse receives all of the survivor compensation under Part E (i.e. $125,000, $150,000 or $175,000 depending on remaining work life). This is based on the idea that a surviving spouse will share the survivors’ benefit with her children. If the worker had a child or children that were not also children of the surviving spouse, those children will divide half of the Part E survivors’ benefit with the surviving spouse. This allows both the surviving spouse and the surviving children to be compensated separately for their separate losses as there is no guarantee that the surviving spouse would share the survivors’ benefit with the non-marital child or children. If there are both marital and non-marital children, all the children divide half the proceeds such that marital and non-marital children receive the same compensation. This prevents the domestic disturbance that would otherwise accompany separate treatment. You can imagine the bitterness that might accompany separate treatment especially in the situation where all the children live under one roof with the surviving spouse. The potentially complicated circumstances that arise in the application of this aspect of the program can be easily overlooked by the claimant and the claims examiner. We have been able to correct a misapplication of this provision for the benefit of one surviving spouse.

We have also worked with adult children of step parents who were entitled to receive payments under Parts B and E. These claimants were adults when their father married their step mother. This did not mean that their step mother did not serve a familial role as a mother in their lives and the program recognizes this fact. So while some step parents of adult children never take on the role of parent to their step children and some adult step children never take on the role of children to their step parent, some do. Those that do are entitled to receive compensation just as biological relatives and adoptive relatives are. The proof necessary to establish the relationship is not specifically defined but pictures of step children and step parents at family functions are useful. Evidence that a step child was involved in the medical care and medical decisions is also useful. One point that we have made is that family relationships do not necessarily need to be perfect relationships. The assessment should focus on the depth of the relationship not the success or perceived quality of the relationship. Family relationships can be and often are messy. But one thing that characterizes family relationships as often as family disputes are family reconciliations. Once the step parent has passed away, at least in part from occupational exposure to hazardous substances at a Department of Energy (DOE) facility, there are no further opportunities for reconciliation and compensation should be available. At the same time, in some circumstances a familial relationship with the step parent never develops and compensation is not available.

The qualifications for Part E survivors’ benefits are a constant subject of confusion. A surviving spouse, as described above, is entitled to all or half of the survivors’ benefits ($125,000, $150,000 or $175,000), depending on the existence of non-marital children, so long as the workers’ accepted occupational illness contributed to his or her death. But in order for a child to receive survivors’ benefits that child must have been under 18 at the time of his parent’s death, or have been under 23 and still a full time student or have been incapable of self support at the time of the employee’s death. This distinguishes Part E from Part B. There is no requirement that the cancer, beryllium disease or silicosis compensated under Part B be shown to have contributed to the employee’s death for a surviving child to receive compensation. The compensation to the survivor is for the cancer not for the employee’s death. The compensation is always $150,000 and can only be paid once. If the employee is paid, his or her surviving spouse is not entitled to an additional payment under Part B and neither are his or her children. At the same time, if the employee dies before being paid, his surviving spouse is entitled to compensation. If the surviving spouse is deceased and has not been compensated under Part B, then the children of the qualified worker are entitled to compensation. There is no need that the child be under 18, or under 23 and still a full time student, or incapable of self support. Part E compensates for cancer, not lost wages so there is no requirement that the child establish dependence. But under Part E, it is necessary to show dependence because Part E is designed to replace wages like workers’ compensation payments. Interestingly, there is no requirement that the child who is “incapable of self support” at the time of the worker’s death, show that he or she was always incapable of self support or dependent. An adult child who worked for many years and then became disabled and incapable of self support prior to the worker’s death, is entitled to compensation. The rationale appears to be that such an adult child has lost the ability to seek support from the deceased worker and should be compensated for that loss. A child is not permitted to recreate dependance by going back to school and therefore in order to establish dependence it is necessary to show that the child remained in school after the age of 18. Once a child reaches 23, full time school is not sufficient to establish dependance.