The EEOICPA was passed in 2000. It provides compensation to workers who became ill as a result of their employment manufacturing nuclear weapons in the USA, as well as their spouses, children, and grandchildren. EEOICPA COPD coverage may be available for eligible Nuclear Weapons Workers and their families.
Are you eligible for compensation? If you or a family member worked at any of the Atomic Weapons Employer (AWE) and Department of Energy (DOE) Covered Facilities listed on this website and became ill, you may be entitled to compensation of up to $400K plus medical benefits. Call EEOICPA Counsel Hugh Stephens at 1-855-548-4494 or fill out our free claim evaluation, We can help even if you’ve already filed, even if your claim was denied!
In these pages, we present general definitions of Illnesses covered by the Act, followed by specific references to the disease from the EEOICPA Procedure Manual, Bulletins, and Final Decisions of the Final Adjudication Board to clarify how these maldies might relate to the Energy Employees Occupational Illness Compensation Program Act.
COPD
On this page we have collected specific references to Chronic Obstructive Pulmonary Disease (COPD) from the DEEOIC Procedure Manual and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.
Note: Page numbers below refer to the documents available on our DEEOIC Resources page.
From the National Heart, Lung, and Blood Institute:
Also known as chronic obstructive pulmonary disease; chronic bronchitis; or emphysema.
COPD, or chronic obstructive pulmonary disease, is a progressive disease that makes it hard to breathe. Progressive means the disease gets worse over time.
COPD can cause coughing that produces large amounts of a slimy substance called mucus, wheezing, shortness of breath, chest tightness, and other symptoms.
Cigarette smoking is the leading cause of COPD. Most people who have COPD smoke or used to smoke. However, up to 25 percent of people with COPD never smoked. Long-term exposure to other lung irritants—such as air pollution, chemical fumes, or dusts—also may contribute to COPD. A rare genetic condition called alpha-1 antitrypsin (AAT) deficiency can also cause the disease.
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(7) Exposure Factors. This section lists the safety programs, risk factors and timeframes used to gauge an employee’s potential exposure as it relates to work process, labor category, building, and area.
f. Sample SEM Search # 2. An employee claims employment as a chemical operator in Building X-705 at the Portsmouth GDP from 1966 to 1982. DOE confirms the employment. The employee is claiming asthma and chronic bronchitis, and medical evidence diagnosing COPD has been received. The CE reviews the OHQ and finds that the claimant indicated in his interview that he does not know specifically what chemicals he was exposed to, but does recall working with an acidic substance with a sour, vinegar-like odor.
The CE reviews SEM, searching by labor category and building, and finds that acetic acid was used in the employee’s work process in Building X-705 and that it has a sour, vinegar-like odor. A SEM search for health effects for acetic acid shows that it is known to be associated with occupational asthma. The DAR record response does not show that the claimant worked with acetic acid in the course of his employment, but that he did come into contact with various solvents.
The CE should follow up with the treating physician to clarify the diagnosis. The CE may consider referral to a DMC to review the evidence and determine whether or not the potential for acetic acid exposure caused the claimant’s lung condition. The CE will also want the DMC to try and specify the lung condition.
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(a) Causation questions are usually best handled by occupational medicine specialists.
Occupational medical specialists can also evaluate the diagnosis and treatment of occupational lung conditions, i.e. asbestosis, silicosis, CBD, pneumoconiosis, and COPD.
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16. Chronic Obstructive Pulmonary Disease (COPD). COPD is a disease that causes airflow blockage and breathing-related problems.
a. Evaluating Medical Evidence. Any one of the following tests below can provide an indication of COPD, but a diagnosis is not based solely on one of the following criteria. The CE weighs all the medical evidence before making a finding. Exposure to certain toxic substances that induce lung ailments are considered when the CE is reviewing the evidence.
All test results are to be accompanied by a physician’s interpretation in order to have probative value. If a physician’s interpretation is not available, the CE seeks such interpretation from either the treating physician or a DMC. The CE is not qualified to make medical opinions as to the results of the tests described below.
(1) Arterial Blood Gas (ABG) Test. Abnormal results from the blood gas components include such findings as the body is not getting enough oxygen, is not getting rid of enough carbon dioxide, or that there is a problem with kidney function.
(2) Consistent Chest X-rays/CAT scans. Chest X-ray results vary and show interstitial patterns, scarring, and other abnormalities.
(3) Abnormal Spirometry. The Spirometer measures air flow and air volume. An abnormal reading includes an indication of COPD or some other lung condition.
(4) Bronchoscopy. A bronchoscopy is used by physicians to examine the major air passages of the lungs. A finding of an obstruction in the air passages includes an indication of COPD or some other lung condition.
(5) DMC Referral. If the totality of the medical evidence is insufficient to establish a lung condition, the CE refers the case file to a DMC for an opinion.
b. Employment and Exposure Requirements. The CE develops for covered DOE or RECA section 5 employment at a covered DOE or RECA section 5 facility during a covered timeframe, or for eligibility as a qualified RECA 4 claimant. Site profiles, SEM, and evidentiary employment evidence (e.g., DAR records, OHQ findings, affidavits, etc.) are used to determine what toxins were present at the site.
Based upon the totality of the evidence, the CE determines whether it is “at least as likely as not” that the established occupational exposure was a significant factor in aggravating, contributing to, or causing the condition.
c. Unique Conditions within COPD. Emphysema is caused by only a small subset of the toxic substances associated with chronic bronchitis, but is sometimes aggravated by toxins associated with COPD.
If all of the COPD criteria are otherwise met, individuals withAlpha-1 Antitrypsin Deficiency (AAT Deficiency) are considered to have a covered illness.
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EEOICPA Fin. Dec. No. 60001-2005 (Dep’t of Labor, March 25, 2005)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under
Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended,
42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, your claims for benefits are
denied.
On July 26, 2004, you each filed a claim for benefits under the EEOICPA listing beryllium sensitivity
and severe lung disease as the medical conditions on which your claim is based. You stated on your
employment history form (EE-3) that your father worked for Norton Company in Worchester,
Massachusetts from April 10, 1943, to June 30, 1978.
With your claim you submitted various treatment records for your father that covered the time period
from October 1993 to August 1998. The majority of these records showed treatment for your father’s
heart failure. The earliest report is a discharge summary from the Medical Center of Central
Massachusetts for the period October 20, 1993 to October 28, 1993, which indicates that your father
had a history of coronary artery disease, congestive heart failure, cerebrovascular accident, and chronic
obstructive pulmonary disease (COPD). A discharge summary from the Medical Center of Central
Massachusetts for the period November 6, 1995 to November 7, 1995, indicates your father had
shortness of breath, bilateral pleural effusions, and interstitial edema, and these findings were felt to be
compatible with his congestive heart failure. A chest x-ray dated February 26, 1998, identified focal
fibrosis in the right lung base. A chest x-ray dated April 9, 1998, showed bibasal infiltrates, and a small
nodule in the left lung. You also submitted a copy of the employee’s death certificate showing he died
on September 1, 1998, and listed his immediate cause of death as congestive heart failure, and listed
diabetes as a contributory cause of death.
On August 9, 2004, and September 10, 2004, the district office informed you that there was insufficient
evidence for your claim. You were advised that your claim for beryllium sensitivity is not compensable
to survivors, and that the claimed severe lung disease is not an occupational illness covered by the Act.
You were advised of the medical evidence required to establish a diagnosis of cancer and chronic
beryllium disease under the Act. You were asked to provide medical evidence showing that your father
had chronic beryllium disease or cancer. In each letter, the district office requested that you provide
such evidence within 30 days.
On September 23, 2004, the district office received a letter from your father’s physician, Dr. Tanquay.
Dr. Tanquay indicated in this statement, dated September 15, 2004, that your father had been under his
care for multiple myeloma prior to his death, and that your father died from this disease on September
1, 1998.
On September 23, 2004, the district requested that Dr. Tanquay provide copies of your father’s medical
reports and pathology reports that form the basis for the diagnosis of multiple myeloma. The district
office requested a reply within 30 days of the letter, but no response was received.
On October 28, 2004, and November 29, 2004, the district office requested that you provide medical
evidence sufficient to establish that your father had multiple myeloma. You were also advised of the
district office’s attempt to obtain the records from Dr. Tanquay, and of his lack of reply. In each letter,
you were requested to submit the requested medical evidence within 30 days. There is no evidence in
the file to indicate that you responded to the district office’s requests.
On January 7, 2005, the district office issued a recommended decision that concluded you did not
submit medical evidence sufficient to demonstrate that your father had been diagnosed with an
occupational illness as defined in 42 U.S.C. § 7384l(15), specifically multiple myeloma. The
recommended decision also concluded that the claim for severe lung disease does not establish that
your father is a covered employee, as this condition is not a compensable occupational illness. The
recommended decision also concluded that you, as survivors, are not eligible for benefits related to
beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, it was recommended that
benefits under the EEOICPA be denied.
The Department of Labor’s regulations provide that: “Within 60 days from the date the recommended
decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings
of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the
radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” See 20
C.F.R. § 30.310(a).
I find that you have not filed any objections to the recommended decision within the 60 days allowed
by 20 C.F.R. § 30.310(a). Based on my review of your case record, I find that you did not provide
sufficient medical evidence to establish that your father had been diagnosed with an occupational
illness covered under Part B of the Act; specifically, the medical evidence submitted was not sufficient
to establish a diagnosis of multiple myeloma. In addition, I find that as survivors you are not eligible
for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, I find that
you are not entitled to benefits under Part B of the Act, and that your claims for compensation must be
denied.
Cleveland, OH
Debra A. Benedict
District Manager
Final Adjudication Branch
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EEOICPA Fin. Dec. No. 56382-2004 (Dep’t of Labor, November 18, 2004)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under
the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42
U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claims are accepted.
[1]
STATEMENT OF THE CASE
On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the
EEOICPA.
The claims were based, in part, on the assertion that your late father was an employee of a Department
of Energy (DOE) contractor at a DOE facility. You stated on the Forms EE-2 that you were filing for
the employee’s COPD. On the Form EE-3, Employment History, you stated the employee was
employed by the K-25 gaseous diffusion plant (GDP) at Oak Ridge, Tennessee, for the period of July 7,
1944 through February 15, 1946. On April 13, 2004, the Jacksonville district office verified this
employment using information from the Oak Ridge Institute for Science and Education website
database.
The district office found that the medical evidence disclosed findings consistent with the diagnosis of
chronic beryllium disease (CBD). On October 15, 2004, the Jacksonville district office issued a
decision recommending that you, as eligible survivors of the employee, are entitled to compensation in
the amount of $37,500 each, for the employee’s chronic beryllium disease.
You each submitted written notification that you waive any and all objections to the recommended
decision. I have reviewed the medical evidence and find that it is sufficient to establish that the
employee had chronic beryllium disease. According to § 7384l(13) of the Act, the term “established
chronic beryllium disease” means chronic beryllium disease as established by the following:
(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with
paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—
(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic
beryllium disease;
(ii) a computerized axial tomography scan showing changes consistent with chronic
beryllium disease; or
(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with
chronic beryllium disease.
(B) For diagnoses before January 1, 1993, the presence of—
(i) occupational or environmental history, or epidemiologic evidenceof beryllium exposure; and
(ii) any three of the following criteria:
(I) Characteristic chest radiographic (or computed tomography (CT) abnormalities;
(II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
(III) Lung pathology consistent with chronic beryllium disease;
(IV) Clinical course consistent with a chronic respiratory disorder;
(V) Immunologic tests showing beryllium sensitivity.
42 U.S.C. § 7384l(13).
The employee died on June 19, 1988. Since all medical evidence in the case file is prior to January 1,
1993, the criteria in § 7384l(13)(B) of the Act are used. The employee is shown to have had an
occupational exposure to beryllium during his verified period of employment at the K-25 GDP. Three
of the five criteria necessary to establish pre-1993 CBD have also been met: the various chest x-ray
reports, dated between September 16, 1974 and May 8, 1983, show opacities which establish that the
employee had characteristic chest x-ray abnormalities; the September 16, 1974 pulmonary function test
by Dr. Domm, establishes that the employee had an obstructive lung physiology test; and the
November 28, 1978 medical report by Dr. William K. Swann, providing a history of seven years of
respiratory problems, establishes that the employee had a clinical course consistent with a chronic
respiratory condition. Therefore, the criteria for a diagnosis of CBD under the EEOICPA have been
met.
FINDINGS OF FACT
1. On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the
EEOICPA. On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the
EEOICPA. On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the
EEOICPA. On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the
EEOICPA.
2. The medical evidence is sufficient to establish that the employee had chronic beryllium disease
pursuant to the Act. 42 U.S.C. § 7384l(13).
3. The employee was employed at the K-25 gaseous diffusion plant in Oak Ridge, TN for the period of
July 7, 1944 through February 15, 1946. Beryllium was present at this facility during the time of
employment. Due to this exposure to beryllium in the performance of duty, the employee meets the
criteria of a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).
4. In proof of survivorship, you submitted copies of birth certificates, documentation of name changes,
and death certificates of the employee and the employee’s spouse. Therefore, you have established that
you are survivors as defined by the implementing regulations. 20 C.F.R. § 30.5(ee).
5. The district office issued the recommended decision on October 15, 2004.
6. You each submitted written notification that you waive any and all objections to the recommended
decision.
CONCLUSIONS OF LAW
I have reviewed the record on this claim and the recommended decision issued by the district office on
October 15, 2004. I find that the employee is a covered beryllium employee, as that term is defined in
the Act; and that the employee’s chronic beryllium disease is a covered condition under the Act and
implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13);
20 C.F.R. § 30.207.
I find that the recommended decision is in accordance with the facts and the law in this case, and that
you, as eligible survivors of the employee as defined by the Act, are each entitled to one fourth of the
maximum $150,000 award, in the amount of $37,500 each, pursuant to the Act on the basis of the
employee’s chronic beryllium disease. 42 U.S.C. §§ 7384s(e)(1)(B), 7384s(a).
Jacksonville, FL
J. Mark Nolan
Hearing Representative
[1] This is the second decision by the Final Adjudication Branch. On September 17, 2004, the case was
remanded to the Jacksonville district office for additional development to establish that all claimants
were eligible survivors.
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EEOICPA Fin. Dec. No. 57973-2005 (Dep’t of Labor, January 7, 2005)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under
Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended,
42 U.S.C. § 7384 et seq. (EEOICPA or the Act). This decision affirms the recommended acceptance
issued on November 30, 2004.
STATEMENT OF THE CASE
On May 28, 2004, you filed a claim for survivor benefits, as the widow of [Employee], Form EE-2,
under Part B of the EEOICPA. You identified ‘breathing problems” and chronic beryllium disease
(CBD) as the claimed conditions. You also filed a Form EE-3 indicating that your husband was
employed by F.H. McGraw at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky from 1951
to “I don’t remember.” The Department of Energy (DOE) was unable to verify employment, however,
they did confirm that F.H. McGraw held a number of contracts, during this time, at the Paducah Site.
You submitted Social Security records indicating that your husband was employed by F.H. McGraw
from the fourth quarter of 1951 to the third quarter of 1954. Social Security reported maximum
reportable earnings ($3600.00) for 1952, 1953 and 1954. The DOE also submitted a “Personnel
Clearance Master Card” from F.H. McGraw and Company that indicated [Employee] was terminated
on December 17, 1954 due to a reduction in force; this notice also indicated that a Q Clearance was
granted on February 14, 1952.[1]
Based upon the DOE response that F.H. McGraw held a number of contracts from 1951 to 1954 and
the security Q clearance notification, the district concluded that the DOE had a business or contractual
arrangement with F.H. McGraw. The district office further concluded that your husband worked with
F.H. McGraw at the Paducah Gaseous Diffusion Plant for at least one day on December 17, 1954 based
upon the reduction in force notice.[2]
The death certificate submitted showed that [Employee] died on October 12, 1999, and the immediate
cause of death as congestive heart disease. The death certificate indicated that the surviving spouse
was [Claimant]. You submitted a marriage certificate showing that [Employee] and [Claimant] were
married on March 23, 1940.
You submitted a medical report dated February 23, 1991, from Lowell F. Roberts, M.D., which
indicates a history of chronic obstructive pulmonary disease (COPD), shortness of breath, and
dyspnea. A February 23, 1991 X-ray report, from D.R. Hatfield, M.D., indicates a diagnosis of COPD.
A February 25, 1991 CT-scan, from Barry F. Riggs, M.D., indicates abnormal nodular densities of the
right lower lobe and a diagnosis of COPD. A February 26, 1991 medical report from M.Y. Jarfar, M.D.
indicated that pulmonary function tests showed mild obstructive defects and mild diffusing lung
capacity defects. You also submitted an X-ray report dated September 6, 1994, from Robert A.
Garneau, M.D., that indicated diagnoses of COPD and Interstitial Fibrosis. A November 27, 1994
medical report from David Saxon, M.D., indicated findings of rales and wheezing. A December 2,
1994 medical report from Dr. Saxon, indicates hypoxemia to the left lower lung. A December 2, 1994
medical report from Lowell F. Roberts, M.D., indicated diagnoses of shortness of breath, congestive
heart failure, dyspnea and cough, and rales in the lung base. An August 13, 1995 X-ray report from
Charles Bea, M.D., indicates a diagnoses of bibasilar infiltrates. A December 30, 1996 X-ray report
from Sharron Butler, M.D., indicates an increase of lung markings since the September 14, 1992 study.
In the March 1, 1998 X-ray report from Dr. Butler diagnoses of “advanced chronic lung changes, mild
interstitial prominence diffusely, and patch density of the posterior right lung” are indicated. An
August 19, 1998 CT-scan from James D. Van Hoose, indicates diagnoses of pleural thickening and
pulmonary calcifications. An August 6, 1999 pulmonary function test from William Culberson, M.D.
indicates a diagnosis of moderately severe restrictive disease. An October 12, 1999 discharge summary
from Eric B. Scowden, M.D. indicates diagnoses of progressive shortness of breath, congestive heart
disease, COPD, and history of right-sided empyema complicating pneumonia necessitating prolonged
chest tube drainage with a continued open sinus tract.” Based upon these reports the district office
concluded that you had CBD prior to January 1, 1993.[3]
On November 30, 2004, the district office issued a recommended decision concluding that your
husband was a covered beryllium employee, that he was exposed to beryllium, and that he had
symptoms and a clinical history similar to CBD prior to January 1, 1993. They further concluded that
you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA.
Section 30.316(a) of the EEOICPA implementing regulations provides that, “if the claimant does not
file a written statement that objects to the recommended decision and/or requests a hearing within the
period of time allotted in 20 C.F.R. § 30.310, or if the claimant waives any objection to all or part of
the recommended decision, the Final Adjudication Branch (FAB) will issue a decision accepting the
recommendation of the district office, either whole or in part.” 20 C.F.R. § 30.316(a). On December 1,
2004, the FAB received your signed waiver of any and all objections to the recommended decision.
After considering the evidence of record, your waiver of objection, and the NIOSH report, the FAB
hereby makes the following:
FINDINGS OF FACT
1. You filed a claim for benefits under Part B of the EEOICPA on May 28, 2004.
2. Your husband was employed at the Paducah Gaseous Diffusion Plant for at least one day on
December 17, 1954.
3. Medical evidence has been submitted establishing a diagnosis of chronic beryllium disease before
January 1, 1993.
4. You were married to the employee from March 23, 1940, until his death on October 12, 1999.
Based on these facts, the undersigned makes the following:
CONCLUSIONS OF LAW
Section 7384s of the Act provides for the payment of benefits to a covered employee, or his survivor,
with an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered
beryllium illness, cancer. . .or chronic silicosis, as the case may be.” 42 U.S.C. §§ 7384l(15) and
7384s. 42 U.S.C. § 7384l.
Pursuant to § 7384l(13)(B) of the EEOICPA, to establish a diagnosis of CBD before January 1, 1993,
the employee must have had “an occupational or environmental history, or epidemiologic evidence of
beryllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic
(or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing
or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV)
Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing
beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13)(B).
The evidence of record establishes that the employee was a covered beryllium employee who had at
least three of the five necessary medical criteria to establish pre-1993 CBD under the EEOICPA.
Therefore, you have provided sufficient evidence to establish that your husband was diagnosed with
pre-1993 CBD, pursuant to § 7384l(13)(B) of the EEOICPA.
The undersigned has reviewed the facts and the district office’s November 30, 2004 recommended
decision and finds that you are entitled to $150,000 in compensation.
The decision on the claim that you filed under Part E of the EEOICPA is being deferred until issuance
of the Interim Final Regulations.
Washington, DC
Tom Daugherty
Hearing Representative
Final Adjudication Branch
[1] The Paducah Gaseous Diffusion Plant was a DOE facility from 1952 to July 28, 1998 and July 29, 1998 to present (remediation) where radioactive and beryllium material were present, according to the Department of Energy Office of Worker Advocacy Facility List (http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm).
[2] Per Chapter 2-100.3h (January 2002) of the Federal (EEOICPA) Procedure Manual, “The OWCP may receive evidence from other sources such as other state and federal agencies” to support a claim under the EEOICPA.
[3] Per Chapter 2-700.4 (September 2004) of the Federal (EEOICPA) Procedure Manual, “To determine whether to use the Pre or Post 1993 CBD criteria, the medical evidence must demonstrate that the employee was either treated for, tested or diagnosed with a chronic respiratory disorder. If the earliest dated document is prior to January 1, 1993, the pre-1993 CBD criteria may be used. Once it is established that the employee had a chronic respiratory disorder prior to 1993, the CE is not limited to use of medical reports prior to 1993 to meet the three of five criteria.”
Page 64
EEOICPA Fin. Dec. No. 20120308-50279-1 (Dep’t of Labor, May 22, 2012)
EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 20120308-50279-1
DECISION DATE: May 22, 2012
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for
benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as
amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, this claim for survivor
benefits under Part B of EEOICPA based on chronic beryllium disease (CBD) is denied.
STATEMENT OF THE CASE
On September 13, 2010, the claimant filed a Form EE-2 claiming survivor benefits as the alleged
surviving spouse of [Employee], and alleged that the employee had contracted bladder cancer, colon
cancer, chronic obstructive pulmonary disease (COPD), chronic renal failure, coronary artery disease,
and CBD due to his work. On July 1, 2011, FAB issued a final decision accepting this claim under Part
E of EEOICPA as the surviving spouse of [Employee]. In that decision, FAB found that [Employee]
was a covered Department of Energy (DOE) contractor employee at the Portsmouth Gaseous Diffusion
Plant from March 1, 1954 to September 22, 1954, and awarded the claimant compensation of
$125,000.00 under Part E based on the employee’s death due to his covered illnesses of COPD and
chronic renal failure. On July 12, 2011, FAB issued a second final decision denying the claim for
survivor benefits under Part B for bladder cancer and colon cancer, and under Part E based on coronary
artery disease and CBD.
The medical evidence submitted in support of the claim included a series of records documenting the
employee’s treatment history for COPD and other respiratory problems dating back to 2005. A
beryllium lymphocyte proliferation test (BeLPT) performed on May 5, 2005 was negative for
beryllium sensitivity. The records also contain a series of chest x-rays, computerized tomography (CT)
scans and pulmonary function tests, which formed the basis for his diagnosis of COPD. In a report
dated November 6, 2008, Dr. Elie Saab raised the issue of whether the employee may have had
beryllium sensitivity, but stated that further test data was necessary. A brief one-page report from Dr.
Saab dated January 13, 2009 also provides a “problem list” indicating “chronic berylliosis.” A
coronary consultation report dated April 8, 2009 from Dr. Aaron Adams states that the employee “had
tested positive per Dr. Saab for berylliosis” but did not otherwise indicate that such a diagnosis had
been confirmed, nor did he cite any test results supporting this diagnosis.
By letters dated December 5, 2011 and January 20, 2012, the district office advised Dr. Saab of the
statutory criteria necessary to support a diagnosis of CBD, and asked him to provide a supplemental
report explaining whether the employee was diagnosed with CBD. Specifically, Dr. Saab was advised
that for diagnoses on or after January 1, 1993, the record must contain a positive LPT performed on
either blood or lung lavage cells, as well as lung pathology results consistent with CBD, which may
include: (i) a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; (ii) a
computerized axial tomography scan showing changes consistent with CBD; or (iii) pulmonary
function or exercise testing showing pulmonary deficits consistent with CBD. The district office
received no further medical evidence in response to these requests.
On March 8, 2012, the Cleveland district office issued a recommended decision to deny the claim for
survivor benefits under Part B based on CBD, concluding that the evidence did not establish a
diagnosis of CBD under the post-1993 statutory criteria.
FINDINGS OF FACT
1. The claimant filed a claim for benefits as the surviving spouse of [Employee] based on CBD.
2. On July 1, 2011, FAB issued a final decision accepting the claim under Part E of EEOICPA as the
surviving spouse of [Employee], based on the employee’s death due to the covered illnesses of chronic
renal failure and COPD.
3. [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant from
March 1, 1954 to September 22, 1954.
4. [Employee] died on August 28, 2010. The claimant is his surviving spouse.
CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision issued by the district office on
March 8, 2012. I find that no objections to the recommended decision have been filed, and that the
60-day period for filing such objections has expired.
To be entitled to survivor compensation under Part B on the basis of CBD, the evidence must establish
that the employee was a DOE contractor employee who was exposed to beryllium in the performance
of duty while present at a DOE facility during a period when beryllium dust, particles or vapor may
have been present at such a facility. The evidence must also show that the employee was diagnosed
with “established chronic beryllium disease.” 42 U.S.C. § 7384l(13).
Part B of EEOICPA provides two sets of criteria for meeting the definition of “established chronic
beryllium disease.” CBD diagnosed after January 1, 1993 is established by abnormal BeLPT results
consistent with beryllium sensitivity, together with lung pathology consistent with chronic beryllium
disease. Such pathology may be demonstrated by the following: (i) a lung biopsy showing granulomas
or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial
tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary
function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease. 42
U.S.C. § 7384l(13)(A). CBD diagnosed before January 1, 1993 is established by evidence satisfying
any three of the following diagnostic criteria: (i) characteristic chest radiographic (or CT)
abnormalities; (ii) restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
(iii) lung pathology consistent with chronic beryllium disease; (iv) a clinical course consistent with a
chronic respiratory disorder; or (v) immunologic tests showing beryllium sensitivity (skin patch test or
beryllium blood test preferred). 42 U.S.C. § 7384l(13)(B).
Under the Program’s procedures, the determination as to whether a claim is to be evaluated using the
pre-1993 or post-1993 criteria must be based on the totality of the evidence, taking into account when
the employee was tested for, diagnosed with or treated for a chronic respiratory disorder. Federal
(EEOICPA) Procedure Manual, Chapter 2-1000.6 (October 2009). On review of the evidence in the
file, I find that the file lacks any evidence that the employee underwent treatment for a chronic
respiratory disorder prior to 1993. Therefore, the post-1993 criteria are applicable to this case. Since
the record lacks any abnormal BeLPT results showing that the employee was diagnosed with beryllium
sensitivity, it is not sufficient to support a diagnosis of established chronic beryllium disease under Part
B.
Accordingly, this claim for survivor benefits under Part B based on CBD is denied.
Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch
Page 67
EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004)
NOTICE OF FINAL DECISION AND REMAND ORDER
This is the decision of the Final Adjudication Branch concerning your claim for compensation under
the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42
U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.
STATEMENT OF THE CASE
On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was
based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor
at a DOE facility. You stated on the Form EE-1 that you were filing for chronic obstructive pulmonary
disease (COPD).
On the Form EE-3, Employment History, you stated you were employed at the Paducah gaseous
diffusion plant (PGDP) in Paducah, Kentucky from 1951 to 1954 and 1957 to 1963. The Department
of Energy verified this employment as June 6, 1952 to December 23, 1954 and January 20, 1958 to
January 11, 1963.
The district office found that the medical evidence disclosed findings consistent with the diagnosis of
chronic beryllium disease (CBD). On August 20, 2004, the Jacksonville district office issued a
decision recommending that you are entitled to compensation of $150,000 for chronic beryllium
disease and that COPD is a consequential obstructive lung injury of CBD. The district office’s
recommended decision also concluded that you are entitled to medical benefits effective January 15,
2002 for chronic beryllium disease and the consequential injury of COPD.
On September 20, 2004, the Final Adjudication Branch received your written notification that you
waive any and all objections to the recommended decision.
I have reviewed the medical evidence and find that it is sufficient to establish a diagnosis of
pre-January 1, 1993 chronic beryllium disease. According to § 7384l(13)(B) of the Act, the term
“established chronic beryllium disease” means chronic beryllium disease as established by
occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any
three of the following criteria:
- Characteristic chest radiographic (or computed tomography (CT) abnormalities;
- Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
- Lung pathology consistent with chronic beryllium disease;
- Clinical course consistent with a chronic respiratory disorder;
- Immunologic tests showing beryllium sensitivity.
According to the Department of Energy’s Covered Facilities List, exposure to beryllium was possible
during your employment at the PGDP. Your verified work for at least one day between 1952 and 1963
is sufficient to establish that you were exposed to beryllium. You have also submitted sufficient
evidence to meet 3 of the above criteria: (1) Radiological reports of the chest from 1991, 1993, 1997
and 2001 show lung fibrosis, interstitial markings and chronic inflammatory changes; these findings
are characteristic of CBD; (2) a 1993 pulmonary function test report contains a finding of a severe
obstructive airway disease; this finding shows obstructive lung physiology testing; (3) medical reports
from 1989 to 2001 contain findings of COPD, oxygen dependency and the use of bronchodilators;
these findings show a clinical course consistent with a chronic respiratory disorder such as CBD. The
evidence of record is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium
disease.
I also find that the case must be remanded for a determination regarding the claimed condition of
chronic obstructive pulmonary disease (COPD). The district office determined that COPD was a
consequential injury of CBD. However, the implementing regulations are clear in stating that an injury,
illness, impairment or disability sustained as a consequence of beryllium sensitivity or established
chronic beryllium disease must be established with a fully rationalized medical report by a physician
that shows the relationship between the injury, illness, impairment or disability and the beryllium
sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment
or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium
disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the
beryllium sensitivity or established chronic beryllium disease is sufficient in itself to prove a causal
relationship.[1] The medical evidence does not contain the required medical opinion.
FINDINGS OF FACT
1. On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.
2. The medical evidence is sufficient to establish that you have chronic beryllium disease. 42 U.S.C. §
7384l(13).
3. You were employed at the Paducah gaseous diffusion plant, Paducah, Kentucky, from June 6, 1952
to December 23, 1954 and January 20, 1958 to January 11, 1963. Beryllium was present at this facility
during the time you were employed. Since you were exposed to beryllium in the performance of duty,
you are a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).
4. The Jacksonville district office issued the recommended decision on August 20, 2004.
5. On September 20, 2004, the Final Adjudication Branch received your written notification that you
waive any and all objections to the recommended decision.
CONCLUSIONS OF LAW
I find that you are a covered beryllium employee as defined in the Act and that your chronic beryllium
disease is a covered condition under the Act and the implementing regulations. 42 U.S.C. §§ 7384l(7),
7384l(13).
I find that the recommended decision is in accordance with the facts and the law in this case, and that
you are entitled to $150,000 and medical benefits effective January 15, 2002, for chronic beryllium
disease pursuant to §§ 7384s(a) and 7384t of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384t.
Your claimed condition of chronic obstructive pulmonary disease is remanded to the district office for a
determination on your eligibility for benefits for this condition. After obtaining the appropriate
information and reviewing the facts in accordance with the EEOICPA and the implementing
regulations, the district office should issue a new decision in accordance with office procedure.[2]
Jacksonville, FL
James Bibeault
Hearing Representative
[1] 20 CFR § 30.207(d)
[2] Federal (EEOICPA) Procedure Manual, Chapter 2-1000.5a (June 2002).
Page 111
EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004)
NOTICE OF FINAL DECISION AND REMAND ORDER
This is the decision of the Final Adjudication Branch concerning your claim for compensation under
the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42
U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.
STATEMENT OF THE CASE
On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was
based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor
at a DOE facility. You stated on the Form EE-1 that you were filing for chronic obstructive pulmonary
disease (COPD).
On the Form EE-3, Employment History, you stated you were employed at the Paducah gaseous
diffusion plant (PGDP) in Paducah, Kentucky from 1951 to 1954 and 1957 to 1963. The Department
of Energy verified this employment as June 6, 1952 to December 23, 1954 and January 20, 1958 to
January 11, 1963.
The district office found that the medical evidence disclosed findings consistent with the diagnosis of
chronic beryllium disease (CBD). On August 20, 2004, the Jacksonville district office issued a
decision recommending that you are entitled to compensation of $150,000 for chronic beryllium
disease and that COPD is a consequential obstructive lung injury of CBD. The district office’s
recommended decision also concluded that you are entitled to medical benefits effective January 15,
2002 for chronic beryllium disease and the consequential injury of COPD.
On September 20, 2004, the Final Adjudication Branch received your written notification that you
waive any and all objections to the recommended decision.
I have reviewed the medical evidence and find that it is sufficient to establish a diagnosis of
pre-January 1, 1993 chronic beryllium disease. According to § 7384l(13)(B) of the Act, the term
“established chronic beryllium disease” means chronic beryllium disease as established by
occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any
three of the following criteria:
- Characteristic chest radiographic (or computed tomography (CT) abnormalities;
- Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
- Lung pathology consistent with chronic beryllium disease;
- Clinical course consistent with a chronic respiratory disorder;
- Immunologic tests showing beryllium sensitivity.
- • A May 7, 1963 “Space Permit and Service Agreement,” identified as Contract No. AT(23-3)-14, between the Atomic Energy Commission (AEC) and GSA that was made retroactive to July 1, 1962.
- • A September 26, 1974 memorandum to the AEC setting out the chronology of the Kansas City
Plant from 1943 through 1963. - • A February 17, 1977 letter in which GSA notified the Energy Research and Development
Administration (ERDA) that it had transferred ownership of 122.05 acres at the Bannister Federal
Complex to ERDA, effective September 30, 1976, and included a provision that the property would be
transferred back to GSA whenever ERDA no longer had use for it. - • Modification No. M085 to Management and Operations (M&O) Contract No. EY-76-C-04-0613
between ERDA and Bendix, effective January 1, 1977. - • Modification No. M107 to M&O Contract No. DE-AC04-76DP00613 between DOE and Bendix,
effective January 1, 1982. - • A Memorandum of Understanding (MOU) between DOE and GSA, No. DE-GM33-89AL53604,
effective March 1, 1989. - • A January 31, 1947 memorandum from the WAA to the Real Property Review Board
regarding a “[p]roposal to lease for multiple tenancy plan together with proposed rental rates”
for Plancor 1213 [i.e., the Bannister Federal Complex] in Kansas City, Missouri. - • A July 3, 1947 WAA internal memorandum concerning revision of rental rates at Plancor
1213. - • A July 2, 1952 letter wherein the Navy informed GSA that it could not release 32 acres of
property included in the lease agreement between the Navy and Westinghouse to GSA, and
indicated that part of the main plant was “turned over to Bendix” for use on an AEC project. - (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic
beryllium disease; - (ii) a computerized axial tomography scan showing changes consistent with chronic
beryllium disease; or - (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with
chronic beryllium disease. - (i) occupational or environmental history, or epidemiologic evidence of
beryllium exposure; and - (ii) any three of the following criteria:
- (I) Characteristic chest radiographic (or computed tomography (CT)
abnormalities; - (II) Restrictive or obstructive lung physiology testing or diffusing lung
capacity defect; - (III) Lung pathology consistent with chronic beryllium disease;
- (IV) Clinical course consistent with a chronic respiratory disorder;
- (V) Immunologic tests showing beryllium sensitivity.
According to the Department of Energy’s Covered Facilities List, exposure to beryllium was possible
during your employment at the PGDP. Your verified work for at least one day between 1952 and 1963
is sufficient to establish that you were exposed to beryllium. You have also submitted sufficient
evidence to meet 3 of the above criteria: (1) Radiological reports of the chest from 1991, 1993, 1997
and 2001 show lung fibrosis, interstitial markings and chronic inflammatory changes; these findings
are characteristic of CBD; (2) a 1993 pulmonary function test report contains a finding of a severe
obstructive airway disease; this finding shows obstructive lung physiology testing; (3) medical reports
from 1989 to 2001 contain findings of COPD, oxygen dependency and the use of bronchodilators;
these findings show a clinical course consistent with a chronic respiratory disorder such as CBD. The
evidence of record is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium
disease.
I also find that the case must be remanded for a determination regarding the claimed condition of
chronic obstructive pulmonary disease (COPD). The district office determined that COPD was a
consequential injury of CBD. However, the implementing regulations are clear in stating that an injury,
illness, impairment or disability sustained as a consequence of beryllium sensitivity or established
chronic beryllium disease must be established with a fully rationalized medical report by a physician
that shows the relationship between the injury, illness, impairment or disability and the beryllium
sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment
or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium
disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the
beryllium sensitivity or established chronic beryllium disease is sufficient in itself to prove a causal
relationship.[1] The medical evidence does not contain the required medical opinion.
FINDINGS OF FACT
1. On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.
2. The medical evidence is sufficient to establish that you have chronic beryllium disease. 42 U.S.C. §
7384l(13).
3. You were employed at the Paducah gaseous diffusion plant, Paducah, Kentucky, from June 6, 1952
to December 23, 1954 and January 20, 1958 to January 11, 1963. Beryllium was present at this facility
during the time you were employed. Since you were exposed to beryllium in the performance of duty,
you are a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).
4. The Jacksonville district office issued the recommended decision on August 20, 2004.
5. On September 20, 2004, the Final Adjudication Branch received your written notification that you
waive any and all objections to the recommended decision.
CONCLUSIONS OF LAW
I find that you are a covered beryllium employee as defined in the Act and that your chronic beryllium
disease is a covered condition under the Act and the implementing regulations. 42 U.S.C. §§ 7384l(7),
7384l(13).
I find that the recommended decision is in accordance with the facts and the law in this case, and that
you are entitled to $150,000 and medical benefits effective January 15, 2002, for chronic beryllium
disease pursuant to §§ 7384s(a) and 7384t of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384t.
Your claimed condition of chronic obstructive pulmonary disease is remanded to the district office for a
determination on your eligibility for benefits for this condition. After obtaining the appropriate
information and reviewing the facts in accordance with the EEOICPA and the implementing
regulations, the district office should issue a new decision in accordance with office procedure.[2]
Jacksonville, FL
James Bibeault
Hearing Representative
[1] 20 CFR § 30.207(d)
[2] Federal (EEOICPA) Procedure Manual, Chapter 2-1000.5a (June 2002).
page 164
EEOICPA Fin. Dec. No. 20130111-12000242-2 (Dep’t of Labor, June 13, 2013)
EMPLOYEE: [Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Name Deleted]
DOCKET NUMBER: 20130111-12000242-2
DECISION DATE: June 13, 2013
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for
benefits under Parts B and 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 chronic beryllium disease (CBD) under Parts B and E, and for hearing loss, hypertension and
chronic obstructive pulmonary disease (COPD)/emphysema under Part E, are hereby denied.
STATEMENT OF THE CASE
On January 30, 2012, the employee’s authorized representative filed a claim on behalf of her client
under both Parts B and E of EEOICPA for the illnesses noted above. In support of that claim, the
representative argued that the Department of Energy (DOE) and its predecessors had leased the Kansas
City Plant[1] from the General Services Administration (GSA), and that as part of such lease, GSA
maintenance workers (such as the employee) performed maintenance work on utilities located within
the boundaries of the Kansas City Plant. Although the representative did not submit a copy of the
alleged “lease agreement” to the district office, she did submit a copy of a Memorandum of Agreement
(MOA) signed in July of 1993 by representatives of GSA, DOE and the Department of Defense for
“environmental investigatory work at the Bannister Federal Complex.” The representative also
provided the following: a GSA form completed on July 12, 1988 regarding the employee’s medical
examination on that date; respirator use forms dated 1990-1994; and a June 14, 1993 health unit history
form completed by the employee in which he stated that he began working for GSA on July 3, 1961 as
an A/C Operator and Plumber/Pipefitter.
On February 2, 2012 and March 2, 2012, a claims examiner sent the employee letters requesting that he
submit a Form EE-3 and a copy of the “lease agreement” that his representative referred to in her
argument. These letters also asked the employee to submit medical evidence in support of his alleged
illnesses. In response, the employee submitted a completed Form EE-3 in which he indicated that he
worked at the “Kansas City Plant/Bendix” for “GSA-PBS-R6” as a “pipe fitter/plumbing/
maintenance” from July 3, 1961 to December 30, 1994, and that he had “[f]requent assignments with
security Personnel to Bendix steam pits.” The employee did not provide the requested copy of the
“lease agreement” to the district office, but his representative submitted a March 16, 2012 statement
signed by a GSA buildings manager supervisor who alleged that GSA maintenance employees were
required to enter DOE space at the Bannister Federal Complex to perform work on mechanical systems
and operations that were intertwined or shared between DOE and GSA.
The employee also submitted medical evidence consisting of health unit and employment screening
evaluations conducted intermittently between June 13, 1988 and June 21, 1994. Most of these
evaluations took the form of x-rays read by B-readers who found evidence of pleural changes
consistent with asbestos exposure, but Dr. David F. Hazuka opined that the employee’s July 25, 1991
chest x-ray showed a few benign calcifications appearing in the employee’s lower right lung field, and
Dr. Kenneth M. Jacob noted a few bilateral calcified granulomas after review of the employee’s June
21, 1994 chest x-ray. The employee also submitted an August 12, 1994 report indicated that the
employee’s pulmonary function tests showed some abnormalities that were below the normal range but
were mild and did not require follow-up medical attention.
On March 14, 2012 and on April 17, 2012, the claims examiner sent a request to Honeywell, the DOE
contractor at the Kansas City Plant, for verification of the employee’s alleged work at that location as a
GSA employee, and a document acquisition request. On May 17, 2012, Honeywell responded that it
did not have any evidence regarding the employee’s alleged work.
At the same time that the representative filed the employee’s claim with the district office, she also
faxed a copy of the 1993 MOA noted above, her argument in support of the claim and other documents
to the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in
Washington, D.C. After considering her argument, the Director wrote to the Denver district office on
August 7, 2012 and noted that there was no evidence that GSA was a subcontractor of the DOE
contractor at the Kansas City Plant. The district office then issued a recommended decision on August
23, 2012 to deny both aspects of the employee’s claim on the ground that there was insufficient
evidence to establish that he had any covered employment at a DOE facility.
On August 30, 2012, FAB received an August 27, 2012 statement from the representative in which she
objected to the recommended decision and requested an oral hearing. In light of this request, the
national office of DEEOIC forwarded several documents regarding the Bannister Federal Complex to
FAB, as follows:
After it received the above-noted evidence, FAB issued a September 21, 2012 order remanding the employee’s claim under Parts B and E to the district office. With respect to the employee’s Part B claim, FAB noted that the district office did not make any findings in the recommended decision on the
employee’s allegation that he worked for GSA at the Bannister Federal Complex, and, if this was true,
whether he was eligible for Part B benefits for his alleged CBD pursuant to 42 U.S.C. § 7384l(7)(A).
As for the employee’s Part E claim, FAB also noted that the same recommended decision did not address whether he met the definition of a “Department of Energy contractor employee” under Part E.
Accordingly, FAB returned the file to the district office for further development.
Upon return of the case file, the district office wrote to the employee on September 25, 2012 and asked
him to submit a copy of the alleged lease his representative had referred to earlier. The employee did
not respond to this request within the period of time allotted; however, the Denver district office
obtained copies of additional documents that the employee’s representative had faxed to DEEOIC’s
Director about the Kansas City Plant before she filed the employee’s claim. In a cover letter that she
had faxed to the Director on January 12, 2012, the representative argued that the following documents
proved that the War Assets Administration (WAA) and then GSA “owned the Kansas City property and
leased it to various AEC contractors. . .(Westinghouse, Bendix, Allied Signal, Honeywell)”:
The district office also wrote to the employee on December 5, 2012 and requested that he submit
additional medical evidence in support of his claim for CBD under Part B of EEOICPA. The district
office did not receive any response to that letter from the employee. Thus, on January 11, 2013, the
district office issued a recommended decision to deny the employee’s claim for CBD under Part B on
the ground that the evidence of record did not establish that he developed that condition, and to deny
his claim for CBD, hypertension, hearing loss and COPD/emphysema under Part E on the ground that
he was not a “covered DOE contractor employee.”
On January 16, 2013, the employee’s representative objected to the recommended decision and
requested an oral hearing. She also asked FAB to issue a subpoena for “correspondence” she believed
had occurred in connection with the employee’s claim. In a letter dated January 28, 2013, FAB denied
the representative’s subpoena request in connection with the employee’s Part E claim, and informed her
of the criteria she would have to meet before it could consider issuing a subpoena in connection with
her client’s Part B claim. Since the representative did not address either of those requirements in her
January 16, 2013 request, FAB provided her 30 days from the date of the letter to submit a response,
but no response was received. The undersigned hearing representative held the requested hearing in
Kansas City, Missouri on March 28, 2013.
OBJECTIONS
At the hearing, the employee and other witnesses provided oral testimony in support of the claim under
both Parts B and E. The representative also provided a number of arguments, as described below.
First, the representative argued that the employee had met his burden to establish a diagnosis of CBD
under Part B, using the pre-1993 statutory criteria. However, the medical evidence in the file does not
satisfy at least three out of those five criteria, because while it is arguable that the employee may have
submitted evidence of characteristic chest radiographic abnormalities and either a restrictive or
obstructive lung physiology testing (or diffusing lung capacity) defect, the employee did not submit
any evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic
respiratory disorder, or any immunologic tests showing beryllium sensitivity. Therefore, he had not
met his burden to proof to establish that he has CBD under Part B of EEOICPA.
Second, the representative argued that the 1993 MOA discussed above is a contract for services by
which GSA agreed to clean up hazardous substances at the Kansas City Plant in exchange for
compensation from DOE, and therefore GSA is a subcontractor at the Kansas City Plant and her client
is a subcontractor employee eligible for Part E benefits. However, this is not a correct interpretation of
this document. While the 1993 MOA was an agreement between GSA, DOE and the Department of
Defense, it only concerned the environmental investigatory work these three agencies undertook at the
Bannister Federal Complex pursuant to their respective statutory obligations under either the Resource
Conservation and Recovery Act or the Comprehensive Environmental Response, Compensation and
Liability Act. Also, while the MOA provided that each party could seek reimbursement from the others
for investigatory and cleanup costs, the 1993 MOA is not a contract in which GSA agreed to perform
services it was not statutorily obligated to perform in exchange for compensation from DOE.
Therefore, this document does not establish the employee’s entitlement to any Part E benefits.
Thirdly, the representative argued that her timely request for the issuance of a subpoena related to the
employee’s Part E claim was wrongly denied on January 28, 2013. However, DEEOIC’s authority to
issue subpoenas in connection with claims filed under EEOICPA is limited by the express terms of 42
U.S.C. § 7384w, which strictly limits that authority to Part B claims. Since this objection concerns a
request for a subpoena in connection with a Part E claim, there is no basis for this objection.
Fourth, the representative suggested that the Policy Branch within the national office of DEEOIC
somehow lacked the authority to provide guidance regarding the employee’s alleged entitlement to
benefits under Part E of EEOICPA to the Denver district office of DEEOIC. However, there is no
apparent legal or factual basis for this suggestion, and more importantly, the Policy Branch was
providing guidance to the district office on a question of entitlement, not deciding to either accept or
deny the employee’s Part E claim. Consistent with 20 C.F.R. § 30.300 (2012), all final agency
decisions issued on claims of entitlement under EEOICPA are issued by FAB, not the Policy Branch of
DEEOIC.
And finally, the representative’s main argument in support of the employee’s Part E claim was that
there was a lease agreement showing that the WAA was the “landlord” for the Kansas City Plant (this
location was part of the larger location called “Plancor 1213” in WAA documents) beginning in the
1940s, and that as the landlord, the WAA (and then GSA) had a duty to perform certain services for the
DOE contractors at the Kansas City Plant for which the WAA/GSA was paid under the terms of this
alleged lease agreement.
In order to address these final contentions, it is first necessary to set out some of the pertinent history of the Bannister Federal Complex, of which the Kansas City Plant is a part, as established by the documents in the case file. Those documents indicate that in 1942, a large manufacturing building was built at the site of the present-day Bannister Federal Complex for the Department of the Navy, and that Pratt & Whitney assembled engines for Navy fighter planes in that building from 1943 to 1945. They also indicate that the Defense Plant Corporation (a wartime subsidiary of the Reconstruction Finance Corporation, which was then an independent agency of the U.S. government) owned the property from at least 1943 through 1947. On December 31, 1947, the Navy acquired the land by a Quitclaim Deed from the Reconstruction Finance Corporation, acting through the War Assets Administrator, and immediately leased the “old Pratt & Whitney plant,” i.e., the large manufacturing building in question, to the Westinghouse Electric Company, who continued to build Navy jet engines at the plant from 1948 through 1961.
The evidence in the file establishes that during the period of its lease, Westinghouse subleased portions of the “old Pratt & Whitney plant” to various government agencies and private entities. One of those subleases was executed in 1948, when Westinghouse sublet the warehouse portion of the “old Pratt & Whitney plant” to the Bendix Corporation, with the AEC’s approval, after the AEC had entered into Contract No. AT(29-1)-613 with Bendix on November 5, 1948 “for the performance by the Contractor of certain work involving management and operation of Government-owned facilities.” This even marks the historical beginning of the worksite known as the Kansas City Plant. Bendix actually began its work for the AEC at this subleased location in 1949 and continued working there even after the Navy terminated its lease with Westinghouse on June 30, 1961; shortly thereafter, the Navy transferred ownership of all 300 acres comprising the Bannister Federal Complex to GSA. The Westinghouse-to-Bendix sublease also presumably ended in 1961, although there is no documentation available on this point.
Based on the above, the representative’s assertion that the AEC began leasing space for the Kansas City Plant at the Bannister Federal Complex from the WAA in the 1940s is factually incorrect. The January 31, 1947 and July 3, 1947 memoranda discussed earlier are not evidence of a lease agreement between the WAA and either the AEC or Bendix, because they were both dated more than one year before Bendix contracted with the AEC to perform work for it at the Kansas City Plant in November of 1948. Instead, the evidence shows that Bendix subleased a portion of the complex from Westinghouse (not GSA) from 1948 through 1961.
After that sublease ended, both GSA and the AEC entered into a “Space Permit and Service Agreement,” effective July 1, 1962, through which GSA granted the AEC and its contractors a permit for “possession and use” of the Kansas City Plant. In return, the AEC agreed to pay GSA an “unfunded users charge.” Under this Space Permit and Service Agreement, the AEC was responsible for its own day-to-day and long-term maintenance of the interior of the buildings in its area, its adjacent areas and border fences, and all installed utilities and/or mechanical systems within its area. GSA was denied general access to the Kansas City Plant, and was granted access only upon approval by the AEC for the purpose of making periodic inspections and for any other reasonable and legitimate purposes, and subject to clearance in accordance with the AEC’s security procedures. The terms of the Space Permit and Service Agreement obligated the AEC to supply certain utility services to the entire Bannister Federal Complex for GSA, and to operate and maintain (excluding long-term maintenance) utility systems within the Service Area.[2] In return, GSA agreed to pay the AEC for the cost of utility services that the contractor provided to the Service Area. GSA was to provide long-term maintenance for its own area and the Service Area, and was specifically excluded from providing such services in the designated AEC areas.
On its face, the Space Permit and Service Agreement obviously has many characteristics of a real estate
lease. It is contractual in nature, since it granted the AEC long-term authority to use the Kansas City
Plant in return for a “users charge,” and it also gave the AEC exclusive control and possession of the
Kansas City Plant against all others, including the owner, GSA. However, even assuming that this is
the “lease agreement” referred to by the employee’s representative, a close reading of the document
does not support the representative’s allegations regarding the terms of the “lease agreement.”
Specifically, there is nothing within the four corners of the Space Permit and Service Agreement that
obligated the GSA to provide any services to the AEC at the Kansas City Plant in return for any
payment or compensation, as the representative alleges.
Returning to the history of the Kansas City Plant, the file contains a February 17, 1977 letter in which GSA indicated it had transferred ownership of “122.05 acres of land. . .with improvements thereon” at the Bannister Federal Complex to ERDA, effective September 30, 1976. Clearly, from this point in time forward, any question of a “lease agreement” regarding the Kansas City Plant between GSA and another entity is foreclosed. Under the 1989 MOU in the case file, the GSA agreed to pay DOE for the utilities it provided at an agreed upon rate, and the two parties agreed to share responsibility and reimburse each other for the cost of maintaining the shared utility service distribution systems, flood control functions and joint use areas at the Bannister Federal Complex. The requirement that DOE share the cost in maintaining areas that it shared with GSA, however, is not evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), since it did not obligate the GSA to provide any specific services for DOE or its contractors in exchange for compensation.
After carefully considering the entirety of the evidence now in the case file, FAB hereby makes the
following:
FINDINGS OF FACT
1. The employee filed a Form EE-1 on January 30, 2012, claiming benefits for CBD under Parts B and E, and for hypertension, hearing loss and COPD/emphysema under Part E of EEOICPA.
2. The employee is a federal worker employed by GSA at the Bannister Federal Complex as an A/C Operator and Plumber/Pipefitter.
3. The employee’s representative did not respond to FAB’s January 28, 2013 request that she submit a response satisfying the criteria for issuing a subpoena in connection with her client’s Part B claim.
4. The medical evidence is not sufficient to establish a statutory diagnosis of CBD under Part B using either the pre-1993 or post-1993 statutory criteria.
5. There is no evidence to show that either GSA or its predecessors entered into a contract with Honeywell or its predecessors in which it agreed to perform any specific services for the DOE contractor at the Kansas City Plant in exchange for compensation.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
The benefits available under Parts B and E of EEOICPA are only payable to claimants who satisfy the
eligibility requirements set out in the statute. Pursuant to 20 C.F.R. § 30.111(a), the claimant has 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,” except as provided in the
regulations or the statute, required for eligibility. That same section also notes that “Proof by a
preponderance of the evidence means that it is more likely than not that the proposition to be proved it
true.”
With respect to the employee’s claim under Part B, a “covered beryllium employee” is defined in §
7384l(7)(A) of EEOICPA as a federal employee “who may have been exposed to beryllium at a
Department of Energy facility.” Because the employee here is presumed to have been exposed to
beryllium at the Kansas City Plant, a DOE facility, he meets the test of a covered beryllium employee.
Despite this, the medical evidence of record fails to meet three of the five criteria for diagnosing CBD
prior to January 1, 1993 as set out at § 7384l(13)(B), because the employee did not submit any
evidence of lung pathology consistent with CBD, a clinical course consistent with a chronic respiratory
disorder, or any immunologic tests showing beryllium sensitivity. Also, the employee did not submit
any evidence of an abnormal beryllium lymphocyte proliferation test performed on either blood or lung
lavage cells, as is required to establish a diagnosis of CBD on or after January 1, 1993 pursuant to §
7384l(13)(A). Therefore, he has not met his burden to proof to establish that he has the alleged illness
of CBD under Part B of EEOICPA.
As for the representative’s timely request for the issuance of a subpoena in connection with the March
28, 2013 hearing in this matter, the record establishes that the representative was properly informed of
the criteria in 20 C.F.R. § 30.301(b) for issuing a subpoena relating to her client’s Part B claim, and that
she failed to respond within the period of time allotted. In addition, and as noted above, DEEOIC’s
authority to issue subpoenas is strictly limited by the terms of 42 U.S.C. § 7384w to claims under Part
B. Therefore, the January 28, 2013 letter that preliminarily denied the representative’s request for a
subpoena under Part E was correct, and the record also shows that she did not respond to the January
28, 2013 request that she fulfill the regulatory criteria for issuing a subpoena under Part B.
And with regard to his Part E claim, the employee’s representative alleged that the employee qualifies
as a DOE contractor employee because he performed maintenance work on the grounds of the Kansas
City Plant pursuant to contracts between GSA and DOE (and their predecessors), for which GSA and
its predecessors were paid. However, FAB concludes otherwise. As set out at length above, there is no
evidence of a contract between GSA and DOE (or their predecessors) for GSA to provide services for
DOE or its contractor at the Kansas City Plant in return for compensation, as alleged. Neither the 1962
Space Permit and Service Agreement nor the 1989 MOU obligated GSA to provide any specific
services at the Kansas City Plant in exchange for compensation. The mere requirement that DOE share
the cost of maintaining areas that it shared with GSA at the Bannister Federal Complex, however, is not
evidence of a contract under 42 U.S.C. § 7384l(11)(B)(ii), because it did not obligate the GSA to
provide any specific services to DOE or its contractors in exchange for compensation. Moreover, the
agencies’ environmental investigation work described in the 1993 MOA was due to their respective
statutory obligations under either the Resource Conservation and Recovery Act or the Comprehensive
Environmental Response, Compensation and Liability Act and not pursuant to a contract between the
agencies. See Chapter 2-500.16 (January 2010), Federal (EEOICPA) Procedure Manual. Thus,
because the evidence in the case file does not prove the existence of the alleged contract, the employee
has failed to meet his burden of proof to establish that he is a DOE contractor employee under Part E of
EEOICPA. Under these circumstances, he is not entitled to any Part E benefits.
Accordingly, FAB hereby denies the employee’s claim under both Parts B and E of EEOICPA, and
confirms the January 28, 2013 preliminary denial of his representative’s subpoena request.
Denver, CO
William Elsenbrock
Final Adjudication Branch
Hearing Representative
[1] The Kansas City Plant is a government-owned, contractor-operated installation listed as a DOE facility from November 5, 1948 to the present in the latest Federal Register notice. 78 Fed. Reg. 20950 at 20952 (April 8, 2013). The facility comprises approximately two-thirds of the 300-acre Bannister Federal Complex, and currently consists of a large manufacturing building and 36 other buildings. The remaining one-third of the Bannister Federal Complex is owned by GSA.
[2] For example, at the March 28, 2013 oral hearing, a former GSA General Foreman at the Bannister Federal Complex testified that “Bendix provided the Federal Building at 2306 Bannister Road, steam from their power plants” and that “DOE, Bendix, operated the powerhouses with their people.”
Page 189
EEOICPA Fin. Dec. No. 10076658-2009 (Dep’t of Labor, October 29, 2008)
NOTICE OF FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim 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 skin lesions, skin
cancer, an abdominal aortic aneurism, congestive heart failure, chronic obstructive pulmonary disease
and interstitial basilar pleural parenchymal disease is accepted for medical benefits. However, the
claim for blindness and atherosclerotic peripheral vascular disease under Part E is denied.
STATEMENT OF THE CASE
On July 15, 2008, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for blindness,
emphysema, skin lesions, chronic obstructive pulmonary disease (COPD), congestive heart failure and
an abdominal aortic aneurism. On August 21, 2008, [Employee] filed a second Form EE-1 for the
additional conditions of interstitial and right basilar pleural parenchymal disease and atherosclerotic
peripheral vascular disease. On the claim forms, [Employee] indicated that he had not received any
settlement or award from a tort suit or state workers’ compensation claim in connection with the
claimed conditions and that he had neither pled guilty to nor been convicted of workers’ compensation
fraud.
On a Form EE-3, [Employee] stated that he was employed as an electrician, video technician and
assistant estimator by E.I. Dupont at the Savannah River Site (SRS) for the period of January 1, 1952
to December 30, 1987. The Oak Ridge Institute for Science and Education (ORISE) database was
checked and verified his SRS employment from June 18, 1952 to December 31, 1986, and Department
of Energy (DOE) records identify [Employee]’s labor categories as instrument mechanic and project
assistant.
The district office performed a search of the U.S. Department of Labor Site Exposure Matrices (SEM).
Source documents used to compile the SEM establish that the labor category of “instrument mechanic”
at the SRS could potentially be exposed to the toxic substances arsenic, asbestos, cadmium, coal ash,
nitrogen dioxide, phosgene and silicon dioxide. The SEM lists skin cancer as a possible specific health
effect of exposure to arsenic, and COPD as a possible specific health effect of asbestos, cadmium, coal
ash, nitrogen dioxide, phosgene and silicon dioxide.
The district office sent [Employee]’s medical records to a District Medical Consultant (DMC) for
review. In his October 10, 2008 report, the DMC stated that [Employee] was diagnosed with
squamous cell carcinoma of the right thumb, continued actinic keratosis of the right index finger, and
seven actinic keratoses. The DMC noted that the final pathology diagnosis of the keratosis of the index
finger was consistent with an arsenical keratosis. The DMC therefore concluded that [Employee]’s
exposure to arsenic was a significant factor in causing or contributing to his skin cancer and skin
lesions of keratoses of his hands.
The DMC also noted that interstitial basilar pleural parenchymal disease is a type of lung disease found
in cases of asbestos exposure. The DMC determined that it is at least as likely as not that
[Employee]’s exposure to toxic substances while working at the SRS was a significant factor in
contributing to or aggravating his COPD, emphysema, and interstitial basilar pleural parenchymal
disease.
As for the claimed abdominal aortic aneurism, the DMC noted that these aneurisms are not considered
to be an occupational illness and are not known to be caused, contributed to, or aggravated by any toxic
substances. However, the DMC noted that the medical notes stated that [Employee]’s aneurism was
unable to be surgically corrected as a result of other significant medical problems, one of which was his
moderately severe COPD. As a result, the DMC concluded that it was at least as likely as not that
[Employee]’s COPD and emphysema were a significant factor in aggravating his aneurism.
With respect to pulmonary hypertension, the DMC noted that it can be caused by chronic lung disease
and certainly contributes to congestive heart failure (CHF). Therefore, the DMC concluded that it was
at least as likely as not that [Employee]’s COPD and emphysema were significant contributing factors
in the development of his CHF.
The DMC noted, however, that ophthalmic notes diagnosed [Employee] with Fuch’s dystrophy, an
inherited genetic eye disorder, as well as relatively common eye conditions, particularly common in
people his age. As such, the DMC concluded that it is not at least as likely as not that [Employee]’s
exposure to toxic substances at the SRS was a significant factor in causing, contributing to, or
aggravating his blindness.
And finally, the DMC noted that atherosclerotic peripheral vascular disease is generally not considered
to be an occupational illness and that there are no accepted toxic substances that are known to cause,
contribute to, or aggravate the condition. Accordingly, the DMC concluded that it was not at least as
likely as not that [Employee]’s exposure to toxic substances at the SRS was a significant factor in
causing, contributing to, or aggravating his atherosclerotic peripheral vascular disease.
On October 16, 2008, the Jacksonville district office issued a recommended decision to accept
[Employee]’s claim under Part E of EEOICPA for the conditions of skin lesions, skin cancer, an
abdominal aortic aneurism, CHF and interstitial basilar pleural parenchymal disease, and to deny his
claim for blindness and atherosclerotic peripheral vascular disease.
On October 24, 2008, FAB received written notification that [Employee] waived any and all objections
to the recommended decision. FAB has performed a search of the SEM, which confirmed the findings
of the district office. After reviewing the evidence in the case file, FAB hereby makes the following:
FINDINGS OF FACT
1. [Employee] was employed at the SRS from June 18, 1952 to December 31, 1986.
2. [Employee] was diagnosed with interstitial and right basilar pleural parenchymal disease,
atherosclerotic peripheral vascular disease, blindness, emphysema, skin lesions, COPD, CHF
and an abdominal aortic aneurism following exposure to toxic substances during covered
employment at a DOE facility.
3. The medical evidence establishes that it is 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
[Employee]’s COPD, emphysema, interstitial basilar pleural parenchymal disease, skin cancer,
and skin lesions.
4. [Employee]’s COPD and emphysema were significant factors in aggravating his aneurism and
contributing to his CHF.
5. There is no link between [Employee]’s blindness or atherosclerotic peripheral vascular disease
and exposure to toxic substances at the SRS.
Based on the above-noted findings of fact, FAB hereby makes the following:
CONCLUSIONS OF LAW
Section 30.316(a) of the EEOICPA regulations provides that if the claimant waives any objections to all
or part of the recommended decision, FAB may issue a final decision accepting the recommendation of
the district office, either in whole or in part. 20 C.F.R. § 30.316(a) (2009).
Under Part E of EEOICPA, a “covered illness” is an illness or death resulting from exposure to a toxic
substance. 42 U.S.C. § 7385s(2). As found above, the medical evidence establishes that it is 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 [Employee]’s skin cancers, skin lesions, CHF, abdominal aortic aneurism,
interstitial basilar pleural parenchymal disease and COPD. That same evidence does not establish that
it is 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 [Employee]’s blindness or atherosclerotic peripheral
vascular disease.
Since the evidence does not establish that [Employee] has contracted blindness or atherosclerotic
peripheral vascular disease through exposure to a toxic substance at a DOE facility, they cannot be
considered covered illnesses under Part E. I hereby deny payment of medical benefits under Part E for
the claimed blindness and atherosclerotic peripheral vascular disease. However, [Employee] is entitled
to medical benefits for skin lesions, skin cancer, an abdominal aortic aneurism, CHR, COPD and
interstitial basilar pleural parenchymal disease, effective July 15, 2008, under Part E of EEOICPA. See
42 U.S.C. § 7385s-8.
Armando J. Pinelo
Hearing Representative
Final Adjudication Branch
Medical evidence of occupational illness under Part B
Page 195
EEOICPA Fin. Dec. No. 14718-2003 (Dep’t of Labor, September 30, 2004)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning your claims for compensation
under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42
U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated below, your claims for survivor
benefits are accepted.
No decision has yet been made on your claims for benefits under Subpart E of the Act. The
adjudication of your Subpart E claims are deferred until issuance of the Interim Final Regulations.
Once a decision has been made on your claims for benefits under Subpart E, you will receive a separate
decision notice.
STATEMENT OF THE CASE
On November 13, 2001, [Spouse] and [Claimant 1] each filed a Form EE-2 as the surviving spouse
and surviving child of the [Employee] for benefits under Part B of the EEOICPA for COPD. It was
subsequently claimed that the employee developed chronic beryllium disease due as a result of his
employment exposure at the Los Alamos National Laboratory.
In support of the claim, the employee’s death certificate was submitted, which establishes the date of
death as December 28, 1990 and [Spouse] as his surviving spouse and a birth certificate for [Claimant
1], which establishes her as a surviving child. The employee’s medical records were also submitted,
which included several chest radiograph reports, clinical medical notes demonstrating a history of a
chronic respiratory disorder and an arterial blood gas report.
However, [Spouse] died prior to the completion of processing of the claim. [Claimant 1] provided the
district office with information regarding two other surviving children of the employee.
On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3] each
filed a Form EE-2, seeking compensation under the Act as surviving children of the [Employee]. You
claimed that the employee developed chronic beryllium disease from COPD as a result of his
employment exposure at the Los Alamos National Laboratory. You also submitted your birth
certificates to establish that you are surviving children of the employee.
The Department of Energy and the Oak Ridge Institute for Science and Education (ORISE) was unable
to verify the employee’s employment history. However, based upon employment evidence submitted,
the Denver district office determined that the employee was employed by E.F. Olds Plumbing &
Heating Company, a subcontractor for the War Department Corps of Engineers, Manhattan District.
Under the EEOICPA, the Manhattan Engineering district is considered a predecessor agency of the
Department of Energy. The district office obtained the employee’s social security earnings record,
which indicated he was employed by M.M. Sundt Corporation in 1942 and E.F. Olds Plumbing &
Heating Company from 1944-1945. They also confirmed that M.M. Sundt Corporation was a
subcontractor at Los Alamos National Laboratory and therefore determined that the employee did work
at Los Alamos National Laboratory in 1942.
To establish a diagnosis of chronic beryllium disease prior to 1993, the record must establish an
occupational or environmental history or epidemiologic evidence of beryllium in conjunction with
medical evidence that contains at least three out of the five following test results:
· Characteristic chest radiograph or computed tomography denoting abnormalities
· A restrictive or obstructive lung physiology test or diffusion lung capacity defect
· Lung pathology consistent with chronic beryllium disease
· Clinical course consistent with chronic beryllium disease
· Immunological tests showing beryllium sensitivity (skin patch or beryllium test)
The Denver district office issued a recommended decision on September 22, 2003 to deny the three
surviving children claims because the medical evidence failed to support at least three out of five
criteria required to establish a diagnosis of chronic beryllium disease prior to 1993. They concluded
that you had established the required clinical course consistent with chronic beryllium disease and
chest radiograph denoting abnormalities consistent with CDB. The Final Adjudication Branch
received a letter of objection from two of the claimants, requesting hearing. On November 12, 2003,
the Final Adjudication Branch issued a remand order, for consideration of the arterial blood gas report
as medical evidence to establish a diagnosis of CBD.
The district office referred the case to the District Medical Consultant, who opined on January 9, 2004
that the arterial blood gas report alone was not sufficient to determine a clinical course consistent with
CDB prior to 1993. The district medical consultant also stated that the chest x-ray reports may be
supportive of CBD but the findings are nonspecific. Based upon the consultative report, the district
office issued a second recommended decision to deny the claims on January 12, 2004.
You each submitted a letter of objection to the second recommended decision and requested hearing.
The hearing was held by the Final Adjudication Branch on March 24, 2004. During the hearing, you
submitted additional medical evidence from Louis M. Benevento, M.D., who stated by affidavit that he
treated the employee for many years for advance COPD and emphysema, which was confirmed by
pulmonary function testing. The Final Adjudication Branch remanded the case to the district office for
additional development of new medical evidence.
The district office contacted Dr. Benevento by letter on October 20, 2004 and November 29, 2004 to
request the pulmonary function reports he mentioned in his affidavit, but the doctor did not respond.
The district office determined that the affidavit by Dr. Benevento was sufficient to establish a third
requirement required to establish CBD prior to 1993, a restrictive or obstructive lung physiology test or
diffusion lung capacity defect. On January 4, 2005, the Denver district office issued a recommended
decision concluding that the employee was a beryllium employee, as that term is defined in 42 U.S.C. §
7384l(7), that he contracted chronic beryllium disease as a result of employment exposure. As the
eligible survivors, you are each entitled to compensation in the amount of $50,000 pursuant to 42
U.S.C. § 7384s(a).
On the dates listed below, the Final Adjudication Branch received written notification that the claimants
waive any and all objections to the recommended decision:
[Claimant 1] January 20, 2005
[Claimant 2] January 20, 2005
[Claimant 3] January 20, 2005
After a thorough review of the case file forwarded by the Denver district office, the FAB hereby makes
the following:
FINDINGS OF FACT
1. On November 13, 2001, [Spouse] and [Claimant 1] each filed a claim as the surviving spouse
and surviving child, respectively, of the employee who had COPD and CBD as a result of his
employment at Los Alamos National Laboratory.
2. The surviving spouse of the employee passed away on May 28, 2002, before her claim completed
processing.
3. On November 5, 2002 and November 12, 2002, respectively, [Claimant 2] and [Claimant 3]
each filed a Form EE-2, seeking compensation under the Act as surviving children of the employee.
4. You have established that you are the three surviving children of the employee.
5. You were issued recommended decisions to deny your claim on September 22, 2003 and January
12, 2004, which you subsequently filed objections and requested hearing.
6. The Final Adjudication Branch issued remand orders on November 12, 2003 and September 30,
2004.
7. You have established that the employee worked at Los Alamos National Laboratory in 1942.
8. The potential for beryllium exposure existed at Los Alamos National Laboratory due to historical
beryllium use, residual contamination and decontamination activities.
9. The employee’s medical evidence was sufficient to establish that he suffered from a respiratory
disorder consistent with chronic beryllium disease prior to 1993. The employee medical records
included chest radiograph reports with abnormalities consistent with chronic beryllium disease,
medical reports demonstrating a clinical course consistent with CDB and a restrictive or obstructive
lung physiology test consistent with CDB.
Based on the above-noted findings of fact in this claim, the FAB hereby also makes the following:
CONCLUSIONS OF LAW
1. The employee was a covered beryllium employee pursuant to 42 U.S.C. § 7384l(7).
2. Prior to his death, the employee contracted chronic beryllium disease in accordance with the
criteria set forth in 42 U.S.C. §7384l(13)(B) under Part B of the EEOICPA.
3. You have established that you are the three eligible survivors of the employee pursuant to the
criteria of 42 U.S.C. §7384s(3) under Part B of the EEOICPA.
4. You are entitled to compensation in the amount of $150,000 which is to be divided among the
eligible survivors pursuant to 42 U.S.C. § 7384s(a). Therefore, you are each entitled to compensation
in the amount of $50,000.
The undersigned has thoroughly reviewed the case record and the recommended decision issued by the
district office on May 13, 2004 and finds that the employee was a covered beryllium employee, as that
term is defined in 42 U.S.C. § 7384l(7), that he was diagnosed with chronic beryllium disease, a
specified disease under 42 U.S.C. § 7384l(8), and that the diagnosis was pursuant to 42 U.S.C. §
7384l(13). It is the decision of the Final Adjudication Branch that the three survivor claims under Part
B of the Act are accepted.
Denver, CO
Joyce L. Terry
District Manager
page 397
Contractors of other agencies
EEOICPA Fin. Dec. No. 10038639-2007 (Dep’t of Labor, Nov. 12, 2008)
NOTICE OF FINAL DECISION FOLLOWING REVIEW OF THE WRITTEN RECORD
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for
compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000,
as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for chronic
obstructive pulmonary disease (COPD) under Part E of EEOICPA is denied.
STATEMENT OF THE CASE
On August 9, 2005, the employee filed a claim for benefits under Part E of EEOICPA and alleged that
he had contracted COPD. In support of his claim, he submitted an employment history stating that he
was employed as a security officer by EG&G Special Projects at the Nevada Test Site (NTS) from
January 1981 to October 1990, and that he wore a dosimetry badge while employed. The Oak Ridge
Institute for Science and Education (ORISE) database did not contain information to verify this
employment. The Department of Energy (DOE) verified the employee’s employment with Edgerton,
Germeshausen, and Grier Special Projects and stated, “This was not a DOE-funded project and was not
associated with the DOE Nevada Test Site work.”
On June 15, 2007, the district office issued a recommended decision to deny the claim on the ground
that the medical evidence of record was insufficient to establish the diagnosis of COPD. However, on
December 20, 2007, FAB issued an order remanding the case for further development after the
employee submitted medical evidence that supported the diagnosis of COPD. As a result, the claim
was returned to the district office for further development and the issuance of a new recommended
decision.
By letter dated January 25, 2008, the Seattle district office informed the employee that under Part E of
EEOICPA, an employee must have worked for a DOE contractor or subcontractor at a DOE facility
during a covered time period, and that to date, DOE had verified his employment by EG&G Special
Projects at the Nevada Test Site from January 1, 1981 to October 31, 1990. He was informed that DOE
had indicated that EG&G Special Projects was not a DOE funded project and that any employment for
these projects took place outside the borders of the NTS, and therefore was not covered employment
under EEOICPA. The district office asked him to submit evidence to establish that EG&G Special
Projects was involved in operations for DOE or on behalf of DOE at the NTS.
In a response received by the district office on February 14, 2008, the employee submitted an affidavit
on Form EE-4 from a work associate, who asserted that the employee was employed as a security
officer by EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990. The employee
also submitted an affidavit from his wife, who asserted that he was employed as a security officer by
EG&G Special Projects at NTS from January 5, 1981 to October 15, 1990.
On February 29, 2008, the district office issued a new recommended decision to deny the employee’s
claim for COPD under Part E, on the ground that the evidence was insufficient to establish that he was
present at a covered facility while working for DOE or any of its covered contractors, subcontractors,
or vendors during a covered time period.
OBJECTIONS
On March 12, 2008, FAB received the employee’s written objections to the recommended decision. In
his objection letter, he stated the following:
I am submitting a copyrighted article from the Las Vegas Review Journal dated Thursday, December
16, 1999. In this article there is a discussion of President Clinton signing into law, under the military
lands withdrawal act of 1999. The document in question was signed on , and the Department of Energy
released the article to the press approximately two months later. In the document President Clinton
signed over to the Air Force control over Department of Energy property in the rectangle around
Groom Lake which is the northeastern corner of the test site this land was previously used by the Air
Force under an agreement with the Atomic Energy Commission that dates back to 1958, the location is
commonly known as Area 51. This article makes perfectly clear, prior to the property was under the
control of the Department of Energy. As to the funding of EG&G Special Projects, their funding came
directly from the Department of Energy in the form of laundered money that was approved for projects
approved by Congress for the Nevada Test Site. The cost overruns were then used to fund the black
projects at Area 51. By using approved monies in this manner, further protected the activities that
occurred at Area 51 (projects that cannot be investigated by Congress). Also the general manager for
all projects at Area 51, that person’s name is was [General Manager], who was in charge of all
subcontractors at Area 51. [General Manager] was an employee of Reynolds Electrical &
Engineering the prime contractor at the NTS, a company owned by EG&G.
On August 5, 2008, the Division of Energy Employees Occupational Illness Compensation (DEEOIC)
issued EEOICPA Circular No. 08-06 which states the following:
The Nevada Test Site is a covered DOE facility for the period 1951-present. The DEEOIC considers
Area 51 part of NTS for the period 1958-1999. The DOE categorizes Reynolds Electrical and
Engineering Company (REECo) and Bechtel , Inc. as “captive contractors,” for the DOE and its
predecessors, including both the Atomic Energy Commission (AEC) and the Energy Research and
Development Agency (ERDA). This means that employees of REECo and Bechtel who worked at the
NTS, including Area 51, are DOE contractor employees, regardless of what information may
previously have been received from DOE.
By letter dated October 17, 2008, DOE confirmed for FAB that EG&G Special Projects was not a DOE
contractor at the Nevada Test Site.
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee was employed by EG&G Special Projects from January 5, 1981 to October 15,
1990.
2. The case file does not contain sufficient evidence to establish that the employee worked for a
DOE contractor or subcontractor at the NTS.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
The term “covered DOE contractor employee” used in Part E is defined as a DOE contractor employee
determined to have contracted a covered illness through exposure at a DOE facility. See 42 U.S.C. §
7385s(1). The term “covered illness” means an illness or death resulting from exposure to a toxic
substance. 42 U.S.C. § 7385s(2).
DEEOIC has researched the issue of claimed employment at Area 51 of NTS, and considers Area 51 to
be part of NTS for the period 1958-1999. As noted above, DOE categorizes REECo and Bechtel
Nevada, Inc. as “captive contractors” for DOE and its predecessors; this means that employees of
REECo and Bechtel who worked at NTS (including Area 51 during the period 1958-1999) are DOE
contractor employees. Also as noted above, DOE has confirmed that EG&G Special Projects was not a
DOE contractor at NTS.
It is the claimant’s responsibility to establish entitlement to benefits under EEOICPA. The regulations
at 20 C.F.R. § 30.111(a) state that the claimant bears the burden of proving, by a preponderance of the
evidence, the existence of each and every criterion under any compensable claim category. Proof by a
preponderance of the evidence means that it is more likely than not that the proposition to be proved is
true. See 20 C.F.R. § 30.111(a) (2008).
As found above, the evidence of record establishes that the employee worked for EG&G Special
Projects, but does not establish that he is a “covered DOE contractor employee” as defined by 42
U.S.C. § 7385s(1), because he did not work for a DOE contractor or subcontractor. Therefore, the
claim must be denied for lack of covered employment under Part E of EEOICPA.
Washington,
Amanda M. Fallon
Hearing Representative
Final Adjudication Branch
page 831
EEOICPA Fin. Dec. No. 10014306-2006 (Dep’t of Labor, August 23, 2006)
FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation benefits
under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended,
42 U.S.C. § 7384 et seq. (EEOICPA or the Act). Your claim under Part E of the Act is hereby accepted
as compensable for medical benefits for asbestosis (subject to absorption of a surplus due to a tort
settlement) and chronic obstructive pulmonary disease (COPD), and denied for medical benefits for
beryllium sensitivity and chronic beryllium disease (CBD).
STATEMENT OF THE CASE
On September 17, 2002 and August 2, 2004, you filed Claims for Benefits under EEOICPA, claiming
benefits for the conditions of asbestosis, beryllium sensitivity, and chronic beryllium disease.
On the Form EE-3, Employment History, you stated you were employed as an insulator at the
Savannah River Site in Aiken, South Carolina, from 1982 to 2002. The district office verified that you
worked for DuPont at the Savannah River Site from May 16, 1983 to October 21, 1983; January 29,
1985 to June 11, 1997; and August 13, 1997 to December 2, 2002.
You submitted medical evidence establishing you were diagnosed with asbestosis on August 12, 1982
and chronic obstructive pulmonary disease (COPD) on July 13, 1983. You did not submit any medical
evidence that provided a diagnosis of beryllium sensitivity or chronic beryllium disease. A positive
Physicians Panel report determined that you were diagnosed with asbestosis prior to employment at the
Savannah River Site, but the employment by a contractor at the Department of Energy (DOE) facility
likely contributed to your illness.
The district office performed a search of the U. S. Department of Labor Site Exposure Matrices
(SEM). The source documents used to compile SEM establish that an insulator could have been
exposed to asbestos and borosilicates at the Savannah River Site, and that asbestosis is a specific health
effect of exposure to asbestos. The district office also referred the medical evidence of record to a
district medical consultant (DMC) for an opinion.
On July 20, 2006, the Jacksonville district office recommended acceptance of your claim for
compensation under Part E of the Act, finding that your diagnosed asbestosis and COPD were covered
illnesses caused by exposure to a toxic substance in the course of your employment at the Savannah
River Site. The recommended decision found that you are entitled to compensation for medical
benefits for asbestosis, less an offset amount of $12,235.01 for payments received from a lawsuit. The
offset surplus is to be paid down by any medical benefits due for asbestosis from the date of filing until
the surplus is absorbed. The district office also recommended acceptance of your claim for medical
benefits for COPD, and denial of your claim for beryllium sensitivity and chronic beryllium disease
under Part E of the Act.
On July 25, 2006, the Final Adjudication Branch received written notification that you waived any and
all objections to the recommended decision.
FINDINGS OF FACT
1. On September 17, 2002, you filed a claim under the Act for asbestosis, beryllium sensitivity,
and chronic beryllium disease.
2. You were diagnosed with asbestosis on August 12, 1982 and COPD on July 13, 1983.
3. You were employed by DuPont at the Savannah River Site from May 16, 1983 to October 21,
1983; January 29, 1985 to June 11, 1997; and August 13, 1997 to December 2, 2002, and were
exposed to asbestos during this employment.
CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision.
You were employed as a covered DOE employee at a covered DOE facility for more than one year and
were exposed to asbestos during that employment. Your asbestosis was diagnosed prior to first
exposure at a DOE facility, but was contributed to by that exposure. Based upon a review of the case
file materials, the U.S. Department of Labor Site Exposure Matrices (SEM), and the opinion of the
district medical consultant, the evidence of record establishes that it is at least as likely as not that
exposure to asbestos at the Savannah River Site was a significant factor in aggravating, contributing to
or causing your asbestosis, and it is at least as likely as not that the exposure to asbestos was related to
your employment at the Savannah River Site. 42 U.S.C. § 7385s-4(c). Therefore, I conclude that you
are entitled to medical benefits for asbestosis retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.
However, under § 7385 of the Act, a payment of compensation to an individual shall be offset by the
amount of any payment made pursuant to a final award or settlement on a claim against any person,
that is based on injuries incurred by that individual on account of the exposure for which compensation
is payable. 42 U.S.C. § 7385. The evidence of record indicates that you have received settlements
totaling $20, 273.11, with a resulting surplus of $12,235.01. This surplus will be absorbed out of
medical benefits payable for asbestosis under the Act (and any further lump-sum payments due in the
future in Part E claims).
The district office submitted the medical evidence of record to a district medical consultant (DMC) for
review. In his report of June 13, 2006, Dr. John Ellis stated that COPD was due to exposures to toxic
substances at the Savannah River Site, including asbestos and borosilicates. Based upon a review of
the case file materials, and the district medical consultant’s report, the evidence of record establishes
that it is at least as likely as not that exposure to toxic substances at the Savannah River Site was a
significant factor in aggravating, contributing to or causing your COPD, and it is at least as likely as
not that the exposure to toxic substances was related to your employment at the Savannah River Site.
42 U.S.C. § 7385s-4(c). Therefore, I conclude that you are entitled to medical benefits for COPD
retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.
Beryllium sensitivity is established by an abnormal beryllium lymphocyte proliferation test (LPT) or a
diagnosis of beryllium sensitivity. You have not submitted any LPT results or a diagnosis of beryllium
sensitivity. The medical evidence is insufficient to establish that you were diagnosed with the claimed
condition of beryllium sensitivity. 20 C.F.R. § 30.207. Therefore, you are not entitled to medical
benefits under Part E of the Act for beryllium sensitivity.
There is no medical evidence to establish that you were diagnosed with the claimed condition of
chronic beryllium disease. 20 C.F.R. § 30.207. Therefore, you are not entitled to compensation or
medical benefits under Part E of the Act for that condition.
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
page 834
EEOICPA Fin. Dec. No. 18655-2002 (Dep’t of Labor, December 15, 2005)
ATTENTION *** ATTENTION *** ATTENTION
The FAB decision or order you are about to view is no longer
considered to be of precedential value and will not be considered
binding on DEEOIC in its adjudication of future claims under the
EEOICPA. This could have occurred because a later FAB decision
was issued that overturned one or more of the conclusions of law
contained in this decision or order, or because a portion of the
EEOICPA relevant to this decision was amended by Congress after
it was issued by the FAB. Even though the FAB decision or order
you are about to view is no longer considered to be of precedential
value, it has been retained in the database you are searching to
document that there has been a change.
NOTICE OF FINAL DECISION
This is a decision of the Final Adjudication Branch concerning your claim for compensation under the
Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. §
7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.[1] A copy
of this decision is being sent to your power of attorney.
STATEMENT OF THE CASE
On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the chronic beryllium
disease (CBD) of your late spouse, [Employee], hereinafter referred to as “the employee.” Previously,
you filed a Request for Review by Medical Panels for the asbestosis of the employee.
On the Form EE-3, Employment History, you stated the employee was employed as a senior production
supervisor by Dupont at the Savannah River Site in Aiken, South Carolina, for the period of January
1953 through December 31, 1985. The Jacksonville district office found the employee worked at the
Savannah River Site for the period of January 26, 1953 through December 31, 1953.
The medical evidence in the case file includes a September 2, 1993 chest x-ray report that shows
interstitial pulmonary fibrosis and a November 19, 1993 CT scan report that shows local interstitial
fibrosis. The file also includes a report of a pulmonary function test performed on March 29, 1994 that
shows a mild obstruction. The medical evidence also shows the employee had chronic obstructive lung
disease, a chronic respiratory disorder, since October 1992.
In support of your claim for survivorship, you submitted your marriage certificate, showing you
married the employee on August 20, 1949, and the employee’s death certificate, showing you were the
employee’s spouse on the date of his death, May 4, 1997.
A Physicians Panel review under former Part D of the Act was completed. The Secretary of Energy
accepted the Panel’s affirmative determination that the employee’s asbestosis and chronic obstructive
pulmonary disease (COPD) were due to exposure to a toxic substance at a DOE facility. On April 22,
2005, the DOE advised you of the Panel’s affirmative determination.
The employee’s death certificate shows that the cause of his death was cardiac arrest as a consequence
of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis.
On May 25, 2005, the Jacksonville district office issued a recommended decision, concluding that you
are entitled to survivor benefits in the amount of $125,000 for the employee’s death caused by
asbestosis.
On June 1, 2005, the Final Adjudication Branch received written notification from your power of
attorney that you waived any and all objections to the recommended decision. The power of attorney
also informed the Final Adjudication Branch that you had received settlements from several
manufacturers of asbestos for the death of the employee.
On June 3, 2005, the claim was remanded for additional development because the Final Adjudication
Branch had received evidence that that you had received a lawsuit settlement that may require offset.
On August 10, 2005, the Jacksonville district office received documentation of the third party
settlements received by you for the employee’s asbestos exposure. The documentation included the
Summons for Relief and Complaint, filed on November 5, 1996, and an accounting of the gross
settlement in the amount of $47,873.50.
The settlement was paid to the estate of the employee and to you as the spouse and to your daughter;
therefore, the district office applied a standard allocation of 50% to the award and subtracted a
percentage for the costs of the suit and the attorney’s fees, which left a net settlement of $13,789.85.
This amount was used to reduce your EEOICPA survivor benefits of $125,000, which left a balance of
$111,210.16 due to you.
On October 7, 2005, the Jacksonville district office issued a recommended decision, concluding that
you are entitled to survivor benefits of $125,000, less a $13,789.85 offset, for a total of $111,210.16 for
the employee’s asbestosis and COPD.
On October 12, 2005, the Final Adjudication Branch received written notification that you waived any
and all objections to the recommended decision of October 7, 2005.
On November 17, 2005, the Jacksonville district office issued a recommended decision, concluding
that you are entitled to $150,000 in survivor benefits for the employee’s CBD.
On November 25, 2005, the Final Adjudication Branch received written notification that you waived
any and all objections to the recommended decision of November 17, 2005.
FINDINGS OF FACT
1. On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the CBD of your late
spouse. You also filed a Request for Review by Physicians Panel for the asbestosis of your late spouse.
2. The employee was employed by Dupont at the Savannah River Site in Aiken, South Carolina, for
the period of January 26, 1953 through December 31, 1953. Beryllium was present at this facility
during the time of this employment.
3. A Physicians Panel review under former Part D of EEOICPA has been completed and the Secretary
of Energy accepted the Panel’s affirmative determination that your spouse’s asbestosis and COPD were
due to exposure to a toxic substance at a DOE facility.
4. The employee’s death certificate shows that the immediate cause of his death was cardiac arrest asconsequence of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis. Therefore,
asbestosis is established as contributing to the employee’s death.
5. Third party settlements for the employee’s asbestosis were received in the gross amount of
$47,873.50.
CONCLUSIONS OF LAW
The Final Adjudication Branch has reviewed the record and the recommended decision of October 7,
2005, and concludes that the employee was a DOE contractor employee with asbestosis and COPD due
to exposure to a toxic substance at a DOE facility and that asbestosis caused his death. 42 U.S.C.
§§ 7384s(1), 7385s-4. Under the Act, you are the covered spouse and survivor. 42 U.S.C. §§
7835s-3(d)(1), 7385s-3(c)(1).
A gross settlement was received from third parties for the employee’s asbestos exposure which must be
used to offset your entitlement to survivor benefits in the amount of $125,000. 42 U.S.C. §§ 7385,
7385s-3(a)(1). The Final Adjudication Branch has independently computed the amount of the offset
using the EEOICPA Part B/E Benefits Offset Worksheet, and finds the net settlement amount to be
$13,789.96. 20 C.F.R. § 30.505. Therefore, the Final Adjudication Branch concludes that you are
entitled to survivor benefits in the amount of $111,210.04 for the employee’s asbestosis.
42 U.S.C. § 7385s-3(a)(1).
Further, the Final Adjudication Branch has reviewed the medical evidence and finds that it is sufficient
to establish that the employee had CBD. Under Part B of the Act, CBD may be established by the
following:
(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with
paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—
(B) For diagnoses before January 1, 1993, the presence of—
42 U.S.C. § 7384l(13).
The case file does not contain evidence to establish a diagnosis of beryllium sensitivity, therefore the criteria for a diagnosis of CBD after January 1, 1993 cannot be met.
Applying the criteria for a diagnosis of CBD prior to the 1993, the evidence in the case file includes a September 2, 1993, chest x-ray report that shows interstitial pulmonary fibrosis and a November 19, 1993, CT scan report that shows local interstitial fibrosis. These findings are characteristic chest radiographic abnormalities of CBD which meets criteria I. The file also includes a report of a pulmonary function test taken on March 29, 1994, that shows a mild obstruction that meets criteria II; and the employee is shown to have a clinical course consistent with a chronic respiratory disorder since October 1992 which meets criteria IV. Therefore, the evidence in the case file meets three of the criteria for a diagnosis of CBD before January 1, 1993 and a diagnosis of CBD is established under the Act.
The record and the recommended decision of November 17, 2005 have been reviewed and the employee is a covered beryllium employee, as that term is defined in the Act; and the employee’s CBD is a covered occupational illness under Part B of the Act and implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13), 20 C.F.R. § 30.207.
The November 17, 2005 recommended decision is in accordance with the facts and the law in this case, and you are entitled to lump-sum survivor benefits in the amount of $150,000 for the employee’s chronic beryllium disease, pursuant to Part B of the Act. 42 U.S.C. § 7384s(a).
Jacksonville, FL
J. Mark Nolan
Hearing Representative
[1] This is the third decision on your claim by the Final Adjudication Branch (FAB). On July 22, 2002, the FAB denied your claim for the reason that the evidence in the case file did not establish that the employee had an occupational illness covered under the Act. On June 3, 2005, the claim was remanded for additional development because the FAB had received evidence that you had received a lawsuit settlement that may require offset.
page 878
EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted. No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation.
STATEMENT OF THE CASE
On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer. On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA. On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma.
On August 2, 2005, FAB issued a final decision accepting [Employee]’s claim for compensation under Part B for skin cancer. On January 29, 2007, FAB also issued a final decision accepting [Employee]’s claim under Part E for skin cancer, and under Parts B and E for lymphoma. On August 29, 2007, FAB issued a final decision denying [Employee]’s claim under Part E for his hearing loss. On December 27, 2007, FAB issued a final decision to accept [Employee]’s claim under Part E for chronic obstructive pulmonary disease (COPD). As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985.
On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim under Part E for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00. On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee]. Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed [Claimant] as his attorney-in-fact. On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]’s behalf.
On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee]. She also submitted a copy of [Employee]’s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse. The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.
Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]’s savings account via electronic funds transfer to the United States Treasury. There is no record indicating that these funds have been returned to the Treasury. On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death. On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.”
On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]’s surviving spouse. The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed. Accordingly, the district office concluded that survivor benefits were not payable.
OBJECTIONS
On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010. The representative argued that the adjudication of [Employee]’s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]’s death. The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits. (Exhibit 1). He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due. The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived.
Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:
FINDINGS OF FACT
1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]’s claim under Part E for skin cancer and lymphoma, and for COPD. In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.
2. [Employee] died on August 11, 2008 as a result of lymphoma.
3. On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00
4. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
5. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].
6. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.
Based on the above findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes: (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is 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 the death of such employee. 42 U.S.C. § 7385s-3.
As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility. Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death. Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1).
The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid. 42 U.S.C. § 7385s-1(2)(b). The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.” 20 C.F.R. § 30.505(c) (2009).
EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.” Federal (EEOICPA) Procedure Manual, Chapter 3-0800. The procedures further set forth a process for the review, identification, and for the issuance of decisions regarding overpayments. In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]’s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E. As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled. Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.
Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to compensation.
Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch
page 908
EEOICPA Fin. Dec. No. 10078623-2009 (Dep’t of Labor, April 9, 2010)
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, the claim for survivor benefits under Part E of EEOICPA for the death of the employee is accepted. No benefits are payable, however, since compensation paid to the employee after his death has not been recouped, and the amount of this compensation exceeds the claimant’s entitlement to survivor compensation.
STATEMENT OF THE CASE
On August 14, 2001, [Employee] filed a Form EE-1 claiming benefits under EEOICPA for skin cancer. On February 10, 2004, [Employee] also filed a request for assistance with a state workers’ compensation claim for skin cancer, a lung condition and hearing problems with the Department of Energy (DOE) under former Part D of EEOICPA. On May 17, 2006, [Employee] also filed a Form EE-1 based on mantle cell lymphoma.
On August 2, 2005, FAB issued a final decision accepting [Employee]’s claim for compensation under Part B for skin cancer. On January 29, 2007, FAB also issued a final decision accepting [Employee]’s claim under Part E for skin cancer, and under Parts B and E for lymphoma. On August 29, 2007, FAB issued a final decision denying [Employee]’s claim under Part E for his hearing loss. On December 27, 2007, FAB issued a final decision to accept [Employee]’s claim under Part E for chronic obstructive pulmonary disease (COPD). As part of these decisions, FAB found that [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant (GDP) from October 5, 1953 to July 1, 1985.
On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim under Part E for a 79% whole person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarding him impairment benefits in the amount of $197,500.00. On August 28, 2008, the Cleveland district office received a Form EN-20 signed by [Claimant] as attorney-in-fact for [Employee]. Accompanying the Form EN-20 was a three-page document entitled “General Power of Attorney,” in which [Employee] appointed [Claimant] as his attorney-in-fact. On September 8, 2008, the U.S. Department of Labor’s Counsel for Energy Employees Compensation concluded that the “General Power of Attorney” executed by [Employee] is legally sufficient to grant [Claimant] authority to execute the Form EN-20 on [Employee]’s behalf.
On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
On October 2, 2008, [Claimant] filed a Form EE-2 claiming benefits under EEOICPA as the surviving spouse of [Employee]. She also submitted a copy of [Employee]’s death certificate, showing that he died on August 11, 2008 as a result of mantle cell lymphoma, and that she was his surviving spouse. The claimant also submitted a copy of her marriage certificate, showing that she and [Employee] were married on August 9, 1947.
Since the evidence showed that [Employee] died prior to the issuance of the payment, the Cleveland district office sent an October 28, 2008 letter to National City Bank requesting return of the $197,500.00 transferred to [Employee]’s savings account via electronic funds transfer to the United States Treasury. There is no record indicating that these funds have been returned to the Treasury. On November 3, 2008, the Cleveland district office referred this case to the Branch of Policies, Regulations and Procedures for guidance on the appropriate procedures for adjudication of a claim for survivor compensation when payment has been issued to an employee after that employee’s death. On August 14, 2009, the Branch instructed the district office to proceed with the adjudication of this claim for survivor benefits, noting that “if [you are] found eligible to receive compensation, there will be a balance of overpaid funds no matter the outcome as the maximum award [you] could receive as a survivor is less than the previously paid impairment award.”
On August 26, 2009, the district office issued a recommended decision to accept the claimant’s survivor claim, and that she is entitled to compensation in the amount of $125,000.00 under Part E as [Employee]’s surviving spouse. The district office determined, however, that because a payment in the amount of $197,500.00 had been issued to [Employee] after his death, and that this payment had not been returned to the district office, an overpayment of $72,500.00 existed. Accordingly, the district office concluded that survivor benefits were not payable.
OBJECTIONS
On October 16, 2009, the claimant’s authorized representative objected to the recommended decision and requested a hearing, which was held on January 5, 2010. The representative argued that the adjudication of [Employee]’s claim for impairment benefits was unjustifiably delayed, and that this delay resulted in the payment of the impairment award after [Employee]’s death. The representative also introduced a timeline showing the actions taken between the time that [Employee] filed a claim for impairment benefits and the issuance of the final decision awarding such benefits. (Exhibit 1). He argued that because of this delay, the claimant should be entitled to receive the impairment award in addition to any survivor compensation due. The authorized representative also argued that the claimant was not at fault in the creation of any overpayment, and that collection of any overpayment should be waived.
Based on the evidence in the case file, and after considering the objections to the recommended decision and the testimony at the oral hearing, FAB hereby makes the following:
FINDINGS OF FACT
1. On January 29, 2007 and December 27, 2007, FAB issued final decisions accepting [Employee]’s claim under Part E for skin cancer and lymphoma, and for COPD. In these final decisions, FAB determined that [Employee] was a covered DOE contractor employee at the Portsmouth GDP from October 5, 1953 to July 1, 1985.
2. [Employee] died on August 11, 2008 as a result of lymphoma.
3. On August 14, 2008, FAB issued a final decision accepting [Employee]’s claim for a 79% whole-person impairment resulting from his covered illnesses of skin cancer, lymphoma and COPD, and awarded impairment benefits in the amount of $197,500.00
4. On September 10, 2008, the Cleveland district office authorized payment of $197,500.00 to be deposited by electronic funds transfer to the National City Bank savings account of [Employee] and [Claimant].
5. On October 2, 2008, [Claimant] filed a claim as the surviving spouse of [Employee].
6. The claimant is the surviving spouse of [Employee] and was married to him for at least one year prior to his death.
Based on the above findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
Part E of EEOICPA provides for payment of compensation to a survivor of a DOE contractor employee if the evidence establishes: (1) that the employee would have been entitled to compensation for a covered illness; and (2) that it is 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 the death of such employee. 42 U.S.C. § 7385s-3.
As found above, [Employee] qualifies as a covered DOE contractor employee because he was employed by a DOE contractor at a DOE facility, and has been determined to have contracted a covered illness, lymphoma, through exposure at a DOE facility. Also as found above, the evidence establishes that it is at least as likely as not that his covered illness of lymphoma was a significant factor causing or contributing to his death. Therefore, as his surviving spouse, the claimant is entitled to survivor compensation in the amount of $125,000.00 under 42 U.S.C. § 7385s-3(a)(1).
The statute provides that in the event that a covered DOE contractor employee’s death occurs after the employee applied for compensation under Part E, but before compensation was paid, and the employee’s death occurred solely from a cause other than the covered illness of the employee, the survivor of that employee may elect to receive, in lieu of compensation under § 7385s-3(a), the amount that the employee would have received based on impairment or wage-loss, if the employee’s death had not occurred before compensation was paid. 42 U.S.C. § 7385s-1(2)(b). The implementing regulations further provide that “if the claimant dies before the payment is received, the person who receives the payment shall return it to [the Office of Workers’ Compensation Programs] for re-determination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.” 20 C.F.R. § 30.505(c) (2009).
EEOICPA procedures define an overpayment as “any amount of compensation paid under 42 U.S.C. §§ 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 to a recipient that, at the time of payment, is paid where no amount is payable or where payment exceeds the correct amount of compensation determined by DEEOIC.” Federal (EEOICPA) Procedure Manual, Chapter 3-0800. The procedures further set forth process for the review, identification, and for the issuance of decisions regarding overpayments.
In response to the objections in this matter, I note that the evidence in the case file shows that [Employee]’s cause of death was mantle cell lymphoma, which has been established as a covered illness under Part E. As a result, the claimant may not elect to receive the impairment award to which [Employee] was entitled. Since the evidence establishes that compensation was paid to [Employee] after his death on August 11, 2008, and this payment (which was for a sum greater than the award the claimant could receive as a survivor) has not been returned to OWCP, no further compensation can be paid until the status of any overpayment has been determined.
Accordingly, the claim for survivor benefits under Part E is accepted, but there is no entitlement to
compensation.
Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch
page 1085
EEOICPA Fin. Dec. No. 10039710-2007 (Dep’t of Labor, November 30, 2007)
ORDER GRANTING REQUEST FOR RECONSIDERATION AND FINAL DECISION
This is the final decision of the Final Adjudication Branch (FAB) concerning the employee’s claim
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 stated below, the employee’s claim
under Part E for the covered illness of asbestosis is accepted for the payment of medical benefits.
However, a surplus in the amount of $132,065.71 must be absorbed before any Part E benefits may
actually be paid to or on behalf of the employee. A determination as to whether the employee is
entitled to any compensation for potential wage-loss and/or impairment benefits under Part E due to
asbestosis is deferred at this time.
STATEMENT OF THE CASE
On , the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had developed “asbestos lung disease” as the result of his employment in , from 1976 to 2001. On his claim form, the employee indicated that he had both filed a law suit and had received a settlement for the claimed condition of “asbestos lung disease.” He also alleged that he had worked for three different Department of Energy (DOE) contractors at the Y-12 and K-25 Plants, and DOE subsequently verified that he was employed at the Y-12 and K-25 Plants from through .
In support of the claim, the employee’s representative submitted an report in which Dr. Scutero reviewed the employee’s medical records and x-rays and diagnosed asbestosis due to asbestos exposure, and a report in which Dr. Chirrona related an impression of probable asbestos-related lung disease and mild chronic obstructive pulmonary disease (COPD). In a July 3, 2006 response to a request for additional medical evidence from the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), the representative submitted October 21 and 31, 2005 reports in which Dr. Cherry diagnosed asbestosis due to asbestos exposure as confirmed by evidence of pleural plaques and pulmonary function testing, and COPD due to cigarette smoking, as well as the pulmonary function testing and computerized tomography findings upon which Dr. Cherry had based his opinions.
employee’s representative also submitted copies of the “worker’s compensation complaint” that the employee filed in the Circuit Court for Anderson County, Tennessee on November 15, 2005[2], an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, and a list of itemized expenses related to that claim. The complaint alleged that the employee contracted “asbestosis or asbestos-related lung disease, due to, or as a consequence of his exposure to asbestos” at work, but did not also allege that the employee had contracted COPD due to his employment. In Sections II, III and V of the September 15, 2006 Order, the judge in that matter found that the employee had contracted one work-related illness, “asbestos-related lung disease,” dismissed his claim against two of the three defendants, and decreed that upon payment of the settlement of $150,869.60 and its agreement to pay medical benefits, the third defendant would be relieved of all further liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.”
On , the district office issued a recommended decision to accept the employee’s Part E claim and found that the medical evidence established that the employee had contracted the covered illness of asbestosis due to his work-related exposure to asbestos. In that same recommended decision, the district office found that the employee had received a state workers’ compensation settlement of $150,869.60 for his covered illness, and calculated that $119,392.18 of that settlement had to be coordinated with the employee’s Part E benefits. Since the employee was not being awarded any monetary benefits at that time, the district office found that the entire $119,392.18 constituted a “surplus” that would have to be recovered from his future Part E benefits, including the medical benefits that it was recommending for acceptance. However, the district office made no findings of fact regarding the employee’s tort recoveries.
In a letter, the employee’s representative objected to the recommendation that the employee’s Part E award for asbestosis be coordinated with his state workers’ compensation settlement. In support of this objection, the representative asserted that the employee had both claimed for and received the settlement for both “any non-malignant respiratory injury” and either “asbestosis” or “asbestos lung disease,” and argued that because the district office found that the employee had contracted only one covered illness—asbestosis—no coordination was required under DEEOIC’s procedures.
On February 7, 2007, FAB issued a final decision accepting the employee’s Part E claim. In its decision, FAB considered the representative’s objection to the coordination of the employee’s Part E benefits and rejected it because there was “no evidence that the employee was diagnosed with a non-malignant illness other than from asbestos exposure and that is not considered an asbestos-related pulmonary condition.” Based on this finding, FAB accepted the district office’s recommendation that payment for any medical treatment of the employee’s asbestosis be suspended until the $119,392.18 “surplus” was fully absorbed. FAB also made no findings regarding the employee’s tort recoveries.
On March 22, 2007, the employee filed a petition in the United States District Court for the Eastern District of Tennessee seeking review of the final decision on his Part E claim.[3] Shortly thereafter, on April 30, 2007 the Director of DEEOIC issued an order that vacated the February 7, 2007 final decision and reopened the employee’s claim for both further development and the issuance of new recommended and final decisions. The order noted that neither the recommended nor the final decisions in this matter had discussed the recoveries that the employee had received from his tort action, and that the coordination of his Part E benefits with his state workers’ compensation settlement was not correctly calculated using the proper worksheet.
July 5, 2007 letter in which it requested additional information regarding his tort recoveries. On July 12, 2007, the employee’s representative responded to the July 5, 2007 development letter by submitting an updated “Settlement Detail” showing the receipt of another $3,000 payment from a defendant, a list of itemized expenses related to the employee’s tort suit amounting to $1,703.96, and a cover letter in which he noted that attorney fees of $7,177.40 had been paid out of the recovery total of $21,532.43.
On August 15, 2007, the national office issued a recommended decision: (1) to accept the employee’s Part E claim for the payment of medical benefits for the covered illness of asbestosis; (2) to offset the employee’s Part E benefits with the $12,673.53 “surplus” recovery from his tort action for asbestos exposure; and (3) to coordinate the employee’s Part E benefits with the $119,392.18 “surplus” of the state workers’ compensation benefits he received for the same covered illness. The case was transferred to FAB on the same date; since no objections to the recommended decision were received within the 60-day period provided for under 20 C.F.R. § 30.310(a) (2007), FAB issued a decision on the employee’s claim on October 25, 2007.
Thereafter, by letter dated November 2, 2007, the employee’s representative made a timely request for reconsideration of the October 25, 2007 decision and submitted copies of an August 29, 2007 letter objecting to the August 15, 2007 recommended decision and an April 20, 2007 affidavit of Dr. Cherry that he alleged had been sent to FAB in a timely manner in support of his reconsideration request.
Although there is no evidence that the August 29, 2007 objections or the April 20, 2007 affidavit were ever received by FAB, they appear to have been properly sent to the correct mailing address. Therefore, FAB hereby grants the request to reconsider the employee’s claim to consider the following objections to the recommended decision:
OBJECTIONS
In his August 29, 2007 submission, the employee’s representative argued that the recommended coordination of the employee’s Part E benefits with the $119,392.18 “surplus” of the state workers’ compensation benefits he had received was improper under 20 C.F.R. § 30.626(c)(3), and alleged that the state workers’ compensation benefits at issue were for both asbestos-related lung disease (a covered illness) and COPD (a non-covered illness). In support of his argument, the representative asserted that Dr. Cherry’s affidavit established that the employee’s COPD was a “non-malignant lung injury.” In his affidavit, Dr. Cherry indicated that he had examined the employee on , that he had diagnosed COPD based on his findings, and that COPD “is a non-malignant respiratory injury.”
After considering the recommended decision, the objections to the recommended decision and all of the evidence in the case file, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for benefits under Part E of EEOICPA on , and alleged that he had contracted “asbestos lung disease” due to his employment.
2. The employee was employed as a DOE contractor employee at two DOE facilities, the K-25 and Y-12 Plants in , , from through . This is more than 250 days of covered employment, during which the potential for asbestos exposure existed.
asbestosis due to exposure to asbestos by Dr. Scutero on October 7, 1997, more than ten years after he was first exposed to asbestos at a DOE facility, and that he was later diagnosed with nonwork-related COPD due to cigarette smoking by Dr. Cherry in reports dated October 21 and 31, 2005.
4. It is at least as likely as not that the employee’s exposure to asbestos at two DOE facilities, the K-25 and Y-12 Plants, was a significant factor in aggravating, contributing to, or causing his asbestosis.
5. It is at least as likely as not that the employee’s exposure to asbestos was related to his employment by a DOE contractor at the K-25 and Y-12 Plants.
6. The employee filed a tort suit in the Circuit Court on August 14, 1992 against 17 defendants, alleging that he had been exposed to asbestos at work at the K-25 and Y-12 Plants. As of July 12, 2007, the employee had received recoveries from the defendants of $21,532.43 and had paid out allowable attorney fees of $7,199.86 and allowable costs of suit of $1,681.50.
7. The employee also filed a “worker’s compensation complaint” in the Circuit Court for Anderson County, Tennessee on November 15, 2005 seeking workers’ compensation benefits for “asbestosis or asbestos-related lung disease.” The employee did not seek state workers’ compensation benefits for COPD in that action. In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, the judge in that matter found that the employee had contracted a single illness, “asbestos-related lung disease,” and decreed that payment of the settlement of $150,869.60 would relieve the defendant of all future liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.” Out of this settlement, the employee paid allowable attorney fees of $30,173.92 and allowable costs of suit of $1,303.50.
Based on the above-noted findings of fact, FAB hereby makes the following:
CONCLUSIONS OF LAW
The first issue in this case is whether the employee qualifies as a “covered Part E employee” under 20 C.F.R. § 30.5(p). For this case, the relevant portion of the definition of a “covered Part E employee” is “a Department of Energy contractor employee. . .who has been determined by OWCP to have contracted a covered illness. . .through exposure at a Department of Energy facility,” and the claimed “covered illness” is “asbestos lung disease” or asbestosis.
DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E for asbestosis. If the evidence in the claim file is sufficient to establish that the employee was diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the presence of asbestos has been confirmed, and that there was a latency period of at least 10 years between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant factor in aggravating, contributing to or causing his or her asbestosis.[4] See Federal (EEOICPA) Procedure Manual, Chapter E-500.17 (June 2006).
work-related exposure to asbestos, and this is the only “covered illness” that is supported by the medical evidence in the case file (the employee’s COPD is not due to the same work-related exposure that resulted in his asbestosis and is instead due to nonwork-related cigarette smoking). The employee also had more than one year of covered employment with exposure to asbestos and was diagnosed with asbestosis more than ten years following his initial exposure to asbestos at a covered DOE facility. Therefore, he qualifies as a “covered Part E employee” under § 30.5(p) of the regulations for the condition of asbestosis, and the employee’s claim for asbestosis is accepted pursuant to § 7385s-4(c) of EEOICPA. Since he is a “covered Part E employee,” the employee is entitled to medical benefits for the “covered illness” of asbestosis pursuant to § 7385s-8 of EEOICPA, retroactive to the date he filed his claim for benefits on.
The second issue in this case is whether the employee’s Part E benefits must be offset. Under § 7385 of EEOICPA and 20 C.F.R. § 30.505(b), Part E benefits must be offset to reflect payments made pursuant to a final judgment or a settlement received in litigation for the same exposure that EEOICPA benefits are payable. As found above, the employee filed a tort suit in the Circuit Court for , on against 17 defendants, alleging that he had been exposed to asbestos at work. Through , the employee has received total recoveries from the defendants of $21,532.43, and had paid out allowable attorney fees of $7,199.86 and allowable costs of suit of $1,681.50. Using the “EEOICPA Part B/E Benefits Offset Worksheet,” the employee has a “surplus” recovery from his tort action of $12,673.53; this “surplus” must be absorbed from medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.
The third issue in this case is whether the employee’s Part E benefits also must be coordinated. Under § 7385s-11 of EEOICPA and 20 C.F.R. § 30.626, Part E benefits must be coordinated with any state workers’ compensation benefits (other than medical or vocational rehabilitation benefits) that the claimant has received for the same covered illness. As found above, on November 15, 2005 the employee filed a “worker’s compensation complaint” in the Circuit Court for Anderson County, Tennessee seeking state workers’ compensation benefits solely for “asbestosis or asbestos-related lung disease.” In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15, 2006, the judge specifically found that the employee had contracted one illness, “asbestos-related lung disease,” and decreed that the payment of the settlement of $150,869.60 would relieve the defendant of all future liability to the employee for “the claimed occupational asbestos-related lung disease and any non-malignant respiratory injury.”
This does not mean, however, that the settlement was for anything other than the employee’s “covered illness” of asbestosis, which is the only work-related lung disease that is established by the medical evidence of record. This conclusion is consistent with the medical evidence in the case file, the “worker’s compensation complaint” that the employee filed, and the remainder of the Order itself, which explicitly states in Sections II, III and V that the employee contracted a single work-related illness of “asbestos-related lung disease,” not that illness and a work-related non-malignant respiratory injury.[5]
In his objection to the recommended decision, the employee’s representative argued for the first time that Dr. Cherry’s affidavit established that the employee’s COPD is a non-malignant respiratory injury, and the medical evidence of record supports that particular conclusion. However, the record also establishes that the employee’s COPD is due to his nonwork-related cigarette smoking rather than to his exposure to asbestos while employed at a DOE facility. Therefore, because the record does not establish that the employee received state workers’ compensation benefits “for both a covered illness and a non-covered illness arising out of and in the course of the same work-related incident,” coordination of the employee’s Part E benefits for the “covered illness” of asbestosis with his $150,869.60 settlement is required. See 20 C.F.R. 30.626(c)(3). Out of this settlement, the employee paid allowable attorney fees of $30,173.92 and allowable costs of suit of $1,303.50. Using the “EEOICPA/SWC Coordination of Benefits Worksheet,” the employee has received “surplus” state workers’ compensation benefits totaling $119,392.18 after deducting allowable attorney fees and costs of suit from his gross settlement. This second “surplus” must also be absorbed from the employee’s medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits can actually be paid to or on behalf of the employee.
Accordingly, the employee is entitled to medical benefits for his asbestosis, retroactive to the date he filed his EEOICPA claim on . However, a total “surplus” in the amount of $132,065.71 must be absorbed pursuant to §§ 7385 and 7385s-11(a) of EEOICPA before any Part E benefits are actually payable.
Washington,
Tom Daugherty
Hearing Representative
Final Adjudication Branch
[1] No. 1-553-92.
[2] No. A5LA0597.
[3] No. 3:07-cv-103 (E.D. Tenn. Knoxville).
[4] The actual latency period for the development of asbestosis is a function of the duration and intensity of exposure to asbestos. Thus, if an employee’s occupation was one that is not typically exposed to asbestos, or the potential for extreme exposure existed and the employee worked less than 250 aggregate work days, or there is a latency period of less than 10 years existing between the covered DOE or RECA section 5 employment and the onset of the illness, DEEOIC will evaluate all of the evidence in the file to determine whether a causal relationship exists in those instances.
[5] This interpretation of the September 15, 2006 Order is consistent with the way a similar order settling a Tennessee workers’ compensation case was interpreted by the Tennessee Supreme Court in Wilson v. National Healthcare Corp., 2004 WL 1964909 *3 (Tenn. Workers’ Comp. Panel Sept. 7, 2004).Circuit Court for , on August 14, 1992 against 17 defendants, alleging that he had been exposed to asbestos at work at the K-25 and Y-12 Plants. As of July 12, 2007, the employee had received recoveries from the defendants of $21,532.43 and had paid out allowable attorney fees of $7,199.86 and allowable costs of suit of $1,681.50.
page 1111
EEOICPA Fin. Dec. No. 55317-2004 (Dep’t of Labor, September 21, 2004)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is denied.
On March 8, 2004, you filed a claim for benefits under the EEOICPA, Form EE-1, wherein you identified emphysema and chronic beryllium disease (CBD) as the medical conditions being claimed. On the EE-3 form, you indicated that you were employed at the Paducah Gaseous Diffusion Plant (PGDP[1] during the early 1950’s. On March 16, 2004, the district office searched the Oak Ridge Institute for Science and Education (ORISE) website database in an effort to verify your claimed employment, but no records were found. On April 6, April 28 and May 6, 2004, the Department of Energy (DOE) advised the district office that they found no evidence to verify your claimed employment. However, DOE did obtain a security clearance card, which indicated that you were given security clearance to work for Slater System, Inc./F.H. McGraw & Company at an unidentified DOE facility between May 22, 1952 and July 2, 1952 and clearance to work for Carbide & Carbon at an unidentified DOE facility between February 25, 1953 and May 11, 1953.
On April 8, 2004, the district office received your itemized statement of earnings from the Social Security Administration (SSA), Form SSA-1826, which covered the time period between January, 1949 and December, 1955. The earnings statement indicated that you received earnings from Slater System Maryland, Inc. during the second quarter of 1952. By letter dated March 24, 2004, the district office advised you of the kinds of employment evidence you would need to establish covered employment under the Act. By letter dated May 25, 2004, the district office requested that you submit an employment history affidavit, Form EE-4, from a co-worker to establish that you worked on-site at the PGDP during a covered time period. No response was received. Nonetheless, the district office erroneously concluded that the combination of your security clearance card and SSA earnings statement was sufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.
Specifically, pursuant to EEOICPA Bulletin No. 03-27 (issued May 28, 2003) Item #22, “if the CE [claims examiner] can verify that the employee worked for a subcontractor during a covered time frame on the premises of a designated DOE or beryllium vendor facility, a finding can be made for covered employment.” Additionally, pursuant to Item #4, “security clearance documents just provide evidence that security clearance was requested but does not establish presence on the facility.” And, finally, pursuant to Item #12, SSA records will not assist in determining the presence of the employee on the premises of the covered facility. Therefore, your security clearance card and SSA earnings statement are insufficient to establish that you worked on-site at the PGDP from May 22, 1952 until July 2, 1952.
By letter dated March 24, 2004, the district office advised you of the specific medical evidence necessary to establish CBD under the Act and enclosed a Form EE-7, which listed the specific medical evidence necessary to establish a covered medical condition under the Act. The district office also advised you that emphysema is not a covered medical condition under the Act. On April 2, April 12, May 26, and June 10, 2004, the district office received medical records from the resource center, dated between March 12, 1992 and February 7, 2002, which established that you were diagnosed with sinusitis, hypertension and several other non-covered medical conditions.[2]
The following relevant medical records were included in the aforementioned medical evidence: 5 medical progress notes from Dr. N.L. Still, dated between August 11, 1992 and November 17, 1992, in which you were diagnosed with chronic obstructive pulmonary disease (COPD); a September 15, 1999 medical report by Dr. D. Patel, in which he stated that you saw a pulmonologist and were diagnosed with COPD; a January 18, 2000 medical report by Dr. D. Patel, in which he stated that you had acute bronchitis; a February 4, 2002 medical report by Dr. Hima Alturi in which he stated that you had a persistent cough; an October 30, 2002 medical report by Dr. D. Patel, in which he stated that you had “questionable emphysema;” a March 12,1992 radiology report from Decatur Hospital, in which they found “discoid atelectasis of both bases with minimal increase in the interstitial markings, otherwise negative chest;” a May 27, 1992 radiology report from Decatur Hospital, in which they found “minimal bibasilar discoid atelectasis; an August 12, 1992 radiology report from Decatur Hospital, in which they found “scarring or atelectasis” in the left lung; a December 2, 1994 x-ray report from Decatur Hospital, in which they found “bibasilar linear infiltrates which may represent atelectasis or fibrosis;” a February 11, 1995 x-ray report from Decatur Hospital, in which they found “no acute pulmonary disease;” and a July 28, 1995 radiology report from Decatur Hospital, in which they found “no acute disease of the chest.”
By letter dated May 25, 2004, the district office advised you that the aforementioned medical evidence was insufficient to establish that you were diagnosed with CBD under the Act and listed the specific medical evidence necessary to establish the same. You were afforded 30 days to establish that you were diagnosed with a covered medical condition, but no response was received. A “covered
employee,” as defined in § 7384l(1),(3),(7),(9) and (11) and § 7384r of the EEOICPA, includes employees of private companies (an entity “other than the United States,” per § 7384l(4)) which provided radioactive materials to the United States for the production of atomic weapons, employees at Department of Energy facilities or test sites (§ 7384l(12)), and employees of Department of Energy contractors, subcontractors, or beryllium vendors. 42 U.S.C. §§ 7384l(1),(3),(7),(9) and (11); 7384r.
Additionally, pursuant to § 7384l(13) of the EEOICPA, “The term ‘established chronic beryllium disease’ means chronic beryllium disease as established by the following: (A) For diagnosis on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including-(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise test showing pulmonary deficits consistent with chronic beryllium disease. (B) For diagnosis before January 1, 1993, the presence of-(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13). And, finally, pursuant to § 7384l(15) of the Act, a covered occupational illness “means a covered beryllium illness, cancer referred to in § 7384l(9)(B) of this title, specified cancer, or chronic silicosis, as the case may be.” 42 U.S.C. § 7384l(15).
On June 8, 2004, the district office issued a recommended decision, which concluded that you were a covered beryllium employee, pursuant to § 7384l(7) of the Act, that you were exposed to beryllium in the performance of duty, pursuant to § 7384n(a) of the Act, that you failed to submit sufficient medical evidence to establish that you were diagnosed with CBD, pursuant to § 7384l(13) of the Act and that emphysema is not a covered occupational illness, pursuant to § 7384l(15) of the Act. 42 U.S.C. §§ 7384l(7),(13), and (15); 7384n(a). Therefore, it was recommended that benefits under the EEOICPA be denied.
Section 30.310(a) of the EEOICPA implementing regulations provides that “…Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” 20 C.F.R. § 30.310(a).
Section 30.316(a) of those regulations further states that, “If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a). I find that you have not objected to the recommended decision within the 60 days allowed by § 30.310(a) of the EEOICPA regulations. 20 C.F.R. § 30.310(a).
Based on my review of the case record and pursuant to the authority granted by § 30.316(a) of the EEOICPA regulations, I find that there is insufficient evidence to establish that you are a covered employee, pursuant to § 7384l of the Act, and that there is insufficient evidence to establish that you were diagnosed with a covered medical condition, pursuant to § 7384l(15) of the Act. Therefore, I find that you are not entitled to benefits under the Act, and that your claim for compensation must be denied.
Washington, DC
Richard Koretz
Hearing Representative
[1] According to the Department of Energy’s (DOE) Office of Worker Advocacy on the DOE website at
http://tis.eh.doe.gov/advocacy/faclist/showfacility.cfm, the Paducah Gaseous Diffusion Plant (PGDP) in Paducah, KY is a covered DOE facility from 1952 to the present. Also, according to the Office of Worker Advocacy, the PGDP had throughout the course of its operations the potential for beryllium exposure.
[2] Benign prostate nodule, colon polyps, lumbar spinal stenosis, degenerative arthritis, leucopenia, chronic venous disease, sciatica, “questionable emphysema” and chronic obstructive pulmonary disease (COPD).
page 1173
EEOICPA Fin. Dec. No. 10061144-2007 (Dep’t of Labor, April 30, 2008)
NOTICE OF FINAL DECISION
This is the final decision of the Final Adjudication Branch (FAB) on the above claim for compensation under 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 the employee’s skin cancer under Part E of EEOICPA is denied.
STATEMENT OF THE CASE
On February 17, 2005, [Employee], hereinafter referred to as “the employee,” filed a Form EE-1 claiming for benefits for chronic obstructive pulmonary disease (COPD) and chronic beryllium disease (CBD), as well as a request for a review by a Physicians Panel for asbestosis, heart disease, COPD and CBD. On the Form EE-3, the employee alleged that he was employed as a driver in construction, an operator C & B, and a gulper at the Savannah River Site (SRS) for the period February 1, 1952 to January 31, 1957. He alleged that he worked in Building 221-F, the B-line, and the “sample aisle.” The district office used the Oak Ridge Institute for Science and Education (ORISE) database to confirm that the employee worked at the SRS from March 26, 1952 to May 17, 1957. However, no job titles were listed by ORISE.
On June 5, 2006, the employee filed a new Form EE-1 in which he claimed for skin cancer. A pathology report in the record establishes that the employee was diagnosed with squamous cell carcinoma (SCC) of the left helical rim on May 12, 2006.
On July 5, 2006, FAB issued a final decision accepting the employee’s claim for asbestosis and COPD as “covered” illnesses under Part E of EEOICPA and denying his claim for CBD and asbestosis under Part B. That final decision also denied the employee’s claim for CBD and asbestosis under Part E. As part of that decision, FAB remanded the employee’s claim to the Jacksonville district office for consideration of the newly submitted Form EE-1 claiming for skin cancer.
On January 5, 2007, [Claimant] filed a Form EE-2 in which she claimed for survivor benefits basedthe skin cancer, COPD, asbestosis and pulmonary hypertension of her late spouse, the employee. In support of her claim, [Claimant] submitted her marriage certificate showing that she married the employee on July 9, 1955, and the employee’s death certificate showing that she was the employee’s spouse when he died on December 31, 2006 from cardio-respiratory arrest that was due to or as a consequence of refractory hypertension with shock.
In a February 13, 2007 report, a District Medical Consultant (DMC) reviewed the evidence in the record and concluded that the medical evidence was insufficient to establish that the employee’s claimed condition of skin cancer was at least as likely as not due to exposure to a toxic substance at a Department of Energy (DOE) facility and that such exposure was a significant factor in aggravating, contributing to, or causing the claimed condition of skin cancer.
On March 1, 2007, the Jacksonville district office sent [Claimant] a letter advising her of the
deficiencies of her Part E claim for the employee’s skin cancer. In that letter, the district office advised [Claimant] that it was unable to establish exposure to a specific toxic substance and/or that the toxic substance(s) caused, contributed to, or aggravated the employee’s skin cancer. The district office explained the needed information and requested that she submit factual evidence of the types of toxic substances to which the employee was exposed and medical evidence from a physician that linked the employee’s exposures to the claimed condition and allowed time for her response. No response or additional information was received.
On June 20, 2007, FAB issued a final decision accepting [Claimant]’s claim for the employee’s death due to pulmonary hypertension under Part E of EEOICPA since 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 the employee’s pulmonary hypertension, and that exposure to such toxic substances was related to employment at the DOE facility and was a significant factor that caused or contributed to the death of the employee. That decision also remanded her claim for the employee’s skin cancer under Part B for a new dose reconstruction by the National Institute for Occupational Safety and Health (NIOSH).
The U.S. Department of Labor maintains a database called the Site Exposure Matrices (SEM). The district office performed a search of the SEM and found that there was insufficient evidence to establish a causal relationship between exposure to a toxic substance while employed at the SRS and the claimed condition of skin cancer.
On December 20, 2007, FAB issued another final decision denying [Claimant]’s claim under Part B of EEOICPA since it was not at least as likely as not that the employee’s skin cancer was related to radiation doses incurred while working at a Department of Energy facility, based on the new dose reconstruction by NIOSH.
On February 14, 2008, the district office sent [Claimant] a second development letter regarding her
claim for the employee’s death due to skin cancer under Part E that advised her that there was no
evidence to support a relationship between the employee’s exposure to toxic substances and his skin
cancer. In that letter, the district office explained the needed information, requested additional medical evidence (including the types of toxic substances to which the employee may have been exposured or any information from a physician that linked the employee’s toxic exposure to the claimed condition)
and allowed time for [Claimant] to respond. No response or additional information was received.
On February 19, 2008, the district office issued a recommended decision to deny the claim for survivor
benefits based on the employee’s death due to skin cancer under Part E of EEOICPA. The
recommended decision informed [Claimant] that she had sixty days to file any objections, and she did
not file any objections to the recommended decision within that period.
Following the issuance of the recommended decision, FAB performed another search of the SEM,
which revealed that carbon has the potential to cause skin cancer and that the labor category of
“operator” at the SRS could potentially be exposed to that toxic substance. The search also showed
that arsenic benzo(a)pyrene and mineral oil, which can also cause skin cancer, were present in Building
221-F.
Thereafter, FAB referred the case file to a DMC for review of the new information and an opinion. The
DMC reviewed the evidence in the record and concluded in an April 24, 2008 report that the available
information was insufficient to establish that workplace toxic exposures at a DOE facility were a
significant factor that caused, contributed to, or aggravated the claimed condition of skin cancer, even
on an “at least as likely as not” basis. He further concluded that the medical evidence did not show that
the employee’s skin cancer played any role in his death.[1]
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for benefits under EEOICPA for skin cancer.
2. The employee was diagnosed with skin cancer.
3. The employee was a DOE contractor employee at the SRS from March 26, 1952 to May 17,
1957.
4. The employee died on December 31, 2006 from cardio-respiratory arrest due to or as a
consequence of refractory hypertension with shock.
5. [Claimant] filed a claim for survivor benefits under EEOICPA based on the employee’s death
due to skin cancer.
6. [Claimant] was the employee’s spouse at the time of his death and for at least one year prior to
his death.
7. The medical evidence is insufficient to establish a causal link between the employee’s skin
cancer and exposure to a toxic substance.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
The implementing regulations provide that within 60 days from the date the recommended decision is
issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact
and/or conclusions of law contained in such decision and whether a hearing is desired. 20 C.F.R. §
30.310(a) (2008). If the claimant does not file a written statement that objects to the recommended
decision and/or requests a hearing within the period of time allotted or if the claimant waives any
objections to the recommended decision, FAB may issue a decision accepting the recommendation of
the district office. 20 C.F.R. § 30.316(a).
[Claimant] meets the definition of a survivor under Part E that appears at 42 U.S.C. § 7385s-3(d)(1).
However, a survivor is only entitled to compensation under Part E if the employee would have been
entitled to compensation under Part E for a covered illness and if it is 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 the illness and death of the employee. 42 U.S.C. § 7385s-4(c)(1).
The evidence does not establish that it is 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 the employee’s skin
cancer. Therefore, I conclude that [Claimant] is not entitled to benefits for the employee’s death due
to skin cancer under Part E because there is insufficient evidence to prove that the employee’s skin
cancer was related to toxic exposure at a DOE facility.
Jacksonville, FL
Jeana LaRock
Hearing Representative
Final Adjudication Branch
[1] The DMC was specifically asked, “Is it 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 the claimed condition of skin cancer?”
page 1276
EEOICPA Fin. Dec. No. 10039710-2007 (Dep’t of Labor, November 30, 2007)
ORDER GRANTING REQUEST FOR RECONSIDERATION AND FINAL DECISION
This is the final decision of the Final Adjudication Branch (FAB) concerning the employee’s claim
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 stated below, the employee’s claim
under Part E for the covered illness of asbestosis is accepted for the payment of medical benefits.
However, a surplus in the amount of $132,065.71 must be absorbed before any Part E benefits may
actually be paid to or on behalf of the employee. A determination as to whether the employee is
entitled to any compensation for potential wage-loss and/or impairment benefits under Part E due to
asbestosis is deferred at this time.
STATEMENT OF THE CASE
On , the employee filed a claim for benefits under Part E of EEOICPA and alleged that he had
developed “asbestos lung disease” as the result of his employment in , from 1976 to 2001. On his
claim form, the employee indicated that he had both filed a law suit and had received a settlement for
the claimed condition of “asbestos lung disease.” He also alleged that he had worked for three
different Department of Energy (DOE) contractors at the Y-12 and K-25 Plants, and DOE subsequently
verified that he was employed at the Y-12 and K-25 Plants from through .
In support of the claim, the employee’s representative submitted an report in which Dr. Scutero
reviewed the employee’s medical records and x-rays and diagnosed asbestosis due to asbestos
exposure, and a report in which Dr. Chirrona related an impression of probable asbestos-related lung
disease and mild chronic obstructive pulmonary disease (COPD). In a July 3, 2006 response to a
request for additional medical evidence from the Jacksonville district office of the Division of Energy
Employees Occupational Illness Compensation (DEEOIC), the representative submitted October 21
and 31, 2005 reports in which Dr. Cherry diagnosed asbestosis due to asbestos exposure as confirmed
by evidence of pleural plaques and pulmonary function testing, and COPD due to cigarette smoking, as
well as the pulmonary function testing and computerized tomography findings upon which Dr. Cherry
had based his opinions.
In a submission that was received by the district office on October 19, 2006, the employee’s
representative submitted copies of the “short-form” complaint alleging work-related asbestos exposure
at the Oak Ridge Reservation that the employee filed in the Circuit Court for Knox County, Tennessee
on August 14, 1992[1], and a “settlement detail” from the employee’s attorneys in that tort action. The
latter document listed 14 defendants and the dollar amounts of settlement payments received from 13
of them (the complaint listed 17 defendants) totaling $18,532.43. Entries for 10 of the 13 defendants
indicated that attorney fees were deducted from the settlement payments received, and entries for nine
of the 13 defendants also indicated that expenses ranging from $0 to $640 were deducted. The
employee’s representative also submitted copies of the “worker’s compensation complaint” that the
employee filed in the Circuit Court for Anderson County, Tennessee on November 15, 2005[2], an
“Order Approving Compromised Settlement of Workers’ Compensation Claim” dated September 15,
2006, and a list of itemized expenses related to that claim. The complaint alleged that the employee
contracted “asbestosis or asbestos-related lung disease, due to, or as a consequence of his exposure to
asbestos” at work, but did not also allege that the employee had contracted COPD due to his
employment. In Sections II, III and V of the September 15, 2006 Order, the judge in that matter found
that the employee had contracted one work-related illness, “asbestos-related lung disease,” dismissed
his claim against two of the three defendants, and decreed that upon payment of the settlement of
$150,869.60 and its agreement to pay medical benefits, the third defendant would be relieved of all
further liability to the employee for “the claimed occupational asbestos-related lung disease and any
non-malignant respiratory injury.”
On , the district office issued a recommended decision to accept the employee’s Part E claim and found
that the medical evidence established that the employee had contracted the covered illness of asbestosis
due to his work-related exposure to asbestos. In that same recommended decision, the district office
found that the employee had received a state workers’ compensation settlement of $150,869.60 for his
covered illness, and calculated that $119,392.18 of that settlement had to be coordinated with the
employee’s Part E benefits. Since the employee was not being awarded any monetary benefits at that
time, the district office found that the entire $119,392.18 constituted a “surplus” that would have to be
recovered from his future Part E benefits, including the medical benefits that it was recommending for
acceptance. However, the district office made no findings of fact regarding the employee’s tort
recoveries.
In a letter, the employee’s representative objected to the recommendation that the employee’s Part E
award for asbestosis be coordinated with his state workers’ compensation settlement. In support of this
objection, the representative asserted that the employee had both claimed for and received the
settlement for both “any non-malignant respiratory injury” and either “asbestosis” or “asbestos lung
disease,” and argued that because the district office found that the employee had contracted only one
covered illness—asbestosis—no coordination was required under DEEOIC’s procedures.
On February 7, 2007, FAB issued a final decision accepting the employee’s Part E claim. In its
decision, FAB considered the representative’s objection to the coordination of the employee’s Part E
benefits and rejected it because there was “no evidence that the employee was diagnosed with a
non-malignant illness other than from asbestos exposure and that is not considered an asbestos-related
pulmonary condition.” Based on this finding, FAB accepted the district office’s recommendation that
payment for any medical treatment of the employee’s asbestosis be suspended until the $119,392.18
“surplus” was fully absorbed. FAB also made no findings regarding the employee’s tort recoveries.
On March 22, 2007, the employee filed a petition in the United States District Court for the Eastern
District of Tennessee seeking review of the final decision on his Part E claim.[3] Shortly thereafter, on
April 30, 2007 the Director of DEEOIC issued an order that vacated the February 7, 2007 final decision
and reopened the employee’s claim for both further development and the issuance of new
recommended and final decisions. The order noted that neither the recommended nor the final
decisions in this matter had discussed the recoveries that the employee had received from his tort
action, and that the coordination of his Part E benefits with his state workers’ compensation settlement
was not correctly calculated using the proper worksheet.
Following the issuance of the April 30, 2007 order, the national office of DEEOIC sent the employee a
July 5, 2007 letter in which it requested additional information regarding his tort recoveries. On July
12, 2007, the employee’s representative responded to the July 5, 2007 development letter by submitting
an updated “Settlement Detail” showing the receipt of another $3,000 payment from a defendant, a list
of itemized expenses related to the employee’s tort suit amounting to $1,703.96, and a cover letter in
which he noted that attorney fees of $7,177.40 had been paid out of the recovery total of $21,532.43.
On August 15, 2007, the national office issued a recommended decision: (1) to accept the employee’s
Part E claim for the payment of medical benefits for the covered illness of asbestosis; (2) to offset the
employee’s Part E benefits with the $12,673.53 “surplus” recovery from his tort action for asbestos
exposure; and (3) to coordinate the employee’s Part E benefits with the $119,392.18 “surplus” of the
state workers’ compensation benefits he received for the same covered illness. The case was
transferred to FAB on the same date; since no objections to the recommended decision were received
within the 60-day period provided for under 20 C.F.R. § 30.310(a) (2007), FAB issued a decision on
the employee’s claim on October 25, 2007.
Thereafter, by letter dated November 2, 2007, the employee’s representative made a timely request for
reconsideration of the October 25, 2007 decision and submitted copies of an August 29, 2007 letter
objecting to the August 15, 2007 recommended decision and an April 20, 2007 affidavit of Dr. Cherry
that he alleged had been sent to FAB in a timely manner in support of his reconsideration request.
Although there is no evidence that the August 29, 2007 objections or the April 20, 2007 affidavit were
ever received by FAB, they appear to have been properly sent to the correct mailing address.
Therefore, FAB hereby grants the request to reconsider the employee’s claim to consider the following
objections to the recommended decision:
OBJECTIONS
In his August 29, 2007 submission, the employee’s representative argued that the recommended
coordination of the employee’s Part E benefits with the $119,392.18 “surplus” of the state workers’
compensation benefits he had received was improper under 20 C.F.R. § 30.626(c)(3), and alleged that
the state workers’ compensation benefits at issue were for both asbestos-related lung disease (a covered
illness) and COPD (a non-covered illness). In support of his argument, the representative asserted that
Dr. Cherry’s affidavit established that the employee’s COPD was a “non-malignant lung injury.” In his
affidavit, Dr. Cherry indicated that he had examined the employee on , that he had diagnosed COPD
based on his findings, and that COPD “is a non-malignant respiratory injury.”
After considering the recommended decision, the objections to the recommended decision and all of
the evidence in the case file, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for benefits under Part E of EEOICPA on , and alleged that he had
contracted “asbestos lung disease” due to his employment.
2. The employee was employed as a DOE contractor employee at two DOE facilities, the K-25 and
Y-12 Plants in , , from through . This is more than 250 days of covered employment, during which the
potential for asbestos exposure existed.
3. The medical evidence of record establishes that the employee was first definitively diagnosed with
asbestosis due to exposure to asbestos by Dr. Scutero on October 7, 1997, more than ten years after he
was first exposed to asbestos at a DOE facility, and that he was later diagnosed with nonwork-related
COPD due to cigarette smoking by Dr. Cherry in reports dated October 21 and 31, 2005.
4. It is at least as likely as not that the employee’s exposure to asbestos at two DOE facilities, the K-25
and Y-12 Plants, was a significant factor in aggravating, contributing to, or causing his asbestosis.
5. It is at least as likely as not that the employee’s exposure to asbestos was related to his employment
by a DOE contractor at the K-25 and Y-12 Plants.
6. The employee filed a tort suit in the Circuit Court for , on August 14, 1992 against 17 defendants,
alleging that he had been exposed to asbestos at work at the K-25 and Y-12 Plants. As of July 12, 2007,
the employee had received recoveries from the defendants of $21,532.43 and had paid out allowable
attorney fees of $7,199.86 and allowable costs of suit of $1,681.50.
7. The employee also filed a “worker’s compensation complaint” in the Circuit Court for Anderson
County, Tennessee on November 15, 2005 seeking workers’ compensation benefits for “asbestosis or
asbestos-related lung disease.” The employee did not seek state workers’ compensation benefits for
COPD in that action. In an “Order Approving Compromised Settlement of Workers’ Compensation
Claim” dated September 15, 2006, the judge in that matter found that the employee had contracted a
single illness, “asbestos-related lung disease,” and decreed that payment of the settlement of
$150,869.60 would relieve the defendant of all future liability to the employee for “the claimed
occupational asbestos-related lung disease and any non-malignant respiratory injury.” Out of this
settlement, the employee paid allowable attorney fees of $30,173.92 and allowable costs of suit of
$1,303.50.
Based on the above-noted findings of fact, FAB hereby makes the following:
CONCLUSIONS OF LAW
The first issue in this case is whether the employee qualifies as a “covered Part E employee” under 20
C.F.R. § 30.5(p). For this case, the relevant portion of the definition of a “covered Part E employee” is
“a Department of Energy contractor employee. . .who has been determined by OWCP to have
contracted a covered illness. . .through exposure at a Department of Energy facility,” and the claimed
“covered illness” is “asbestos lung disease” or asbestosis.
DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E
for asbestosis. If the evidence in the claim file is sufficient to establish that the employee was
diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the
presence of asbestos has been confirmed, and that there was a latency period of at least 10 years
between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it
was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant
factor in aggravating, contributing to or causing his or her asbestosis.[4] See Federal (EEOICPA)
Procedure Manual, Chapter E-500.17 (June 2006).
As found above, the employee is a DOE contractor employee who was employed at two DOE facilities
in Oak Ridge by DOE contractors and who contracted a “covered illness,” as that term is defined in §
7385s(2) of EEOICPA. The “covered illness” that the employee contracted is asbestosis due to
work-related exposure to asbestos, and this is the only “covered illness” that is supported by the
medical evidence in the case file (the employee’s COPD is not due to the same work-related exposure
that resulted in his asbestosis and is instead due to nonwork-related cigarette smoking). The employee
also had more than one year of covered employment with exposure to asbestos and was diagnosed with
asbestosis more than ten years following his initial exposure to asbestos at a covered DOE facility.
Therefore, he qualifies as a “covered Part E employee” under § 30.5(p) of the regulations for the
condition of asbestosis, and the employee’s claim for asbestosis is accepted pursuant to § 7385s-4(c) of
EEOICPA. Since he is a “covered Part E employee,” the employee is entitled to medical benefits for
the “covered illness” of asbestosis pursuant to § 7385s-8 of EEOICPA, retroactive to the date he filed
his claim for benefits on .
The second issue in this case is whether the employee’s Part E benefits must be offset. Under § 7385
of EEOICPA and 20 C.F.R. § 30.505(b), Part E benefits must be offset to reflect payments made
pursuant to a final judgment or a settlement received in litigation for the same exposure that EEOICPA
benefits are payable. As found above, the employee filed a tort suit in the Circuit Court for , on against
17 defendants, alleging that he had been exposed to asbestos at work. Through , the employee has
received total recoveries from the defendants of $21,532.43, and had paid out allowable attorney fees
of $7,199.86 and allowable costs of suit of $1,681.50. Using the “EEOICPA Part B/E Benefits Offset
Worksheet,” the employee has a “surplus” recovery from his tort action of $12,673.53; this “surplus”
must be absorbed from medical benefits and any lump-sum monetary benefits payable in the future
before any Part E benefits can actually be paid to or on behalf of the employee.
The third issue in this case is whether the employee’s Part E benefits also must be coordinated. Under
§ 7385s-11 of EEOICPA and 20 C.F.R. § 30.626, Part E benefits must be coordinated with any state
workers’ compensation benefits (other than medical or vocational rehabilitation benefits) that the
claimant has received for the same covered illness. As found above, on November 15, 2005 the
employee filed a “worker’s compensation complaint” in the Circuit Court for Anderson County,
Tennessee seeking state workers’ compensation benefits solely for “asbestosis or asbestos-related lung
disease.” In an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated
September 15, 2006, the judge specifically found that the employee had contracted one illness,
“asbestos-related lung disease,” and decreed that the payment of the settlement of $150,869.60 would
relieve the defendant of all future liability to the employee for “the claimed occupational
asbestos-related lung disease and any non-malignant respiratory injury.”
This does not mean, however, that the settlement was for anything other than the employee’s “covered
illness” of asbestosis, which is the only work-related lung disease that is established by the medical
evidence of record. This conclusion is consistent with the medical evidence in the case file, the
“worker’s compensation complaint” that the employee filed, and the remainder of the Order itself,
which explicitly states in Sections II, III and V that the employee contracted a single work-related
illness of “asbestos-related lung disease,” not that illness and a work-related non-malignant respiratory
injury.[5] In his objection to the recommended decision, the employee’s representative argued for the
first time that Dr. Cherry’s affidavit established that the employee’s COPD is a non-malignant
respiratory injury, and the medical evidence of record supports that particular conclusion. However,
the record also establishes that the employee’s COPD is due to his nonwork-related cigarette smoking
rather than to his exposure to asbestos while employed at a DOE facility. Therefore, because the record
does not establish that the employee received state workers’ compensation benefits “for both a covered
illness and a non-covered illness arising out of and in the course of the same work-related incident,”
coordination of the employee’s Part E benefits for the “covered illness” of asbestosis with his
$150,869.60 settlement is required. See 20 C.F.R. 30.626(c)(3). Out of this settlement, the employee
paid allowable attorney fees of $30,173.92 and allowable costs of suit of $1,303.50. Using the
“EEOICPA/SWC Coordination of Benefits Worksheet,” the employee has received “surplus” state
workers’ compensation benefits totaling $119,392.18 after deducting allowable attorney fees and costs
of suit from his gross settlement. This second “surplus” must also be absorbed from the employee’s
medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits
can actually be paid to or on behalf of the employee.
Accordingly, the employee is entitled to medical benefits for his asbestosis, retroactive to the date he
filed his EEOICPA claim on . However, a total “surplus” in the amount of $132,065.71 must be
absorbed pursuant to §§ 7385 and 7385s-11(a) of EEOICPA before any Part E benefits are actually
payable.
Washington,
Tom Daugherty
Hearing Representative
Final Adjudication Branch
[1] No. 1-553-92.
[2] No. A5LA0597.
[3] No. 3:07-cv-103 (E.D. Tenn. Knoxville).
[4] The actual latency period for the development of asbestosis is a function of the duration and intensity of exposure to asbestos. Thus, if an employee’s occupation was one that is not typically exposed to asbestos, or the potential for extreme exposure existed and the employee worked less than 250 aggregate work days, or there is a latency period of less than 10 years existing between the covered DOE or RECA section 5 employment and the onset of the illness, DEEOIC will evaluate all of the evidence in the file to determine whether a causal relationship exists in those instances.
[5] This interpretation of the September 15, 2006 Order is consistent with the way a similar order settling a Tennessee workers’ compensation case was interpreted by the Tennessee Supreme Court in Wilson v. National Healthcare Corp., 2004 WL 1964909 *3 (Tenn. Workers’ Comp. Panel Sept. 7, 2004).
page 1282
EEOICPA Fin. Dec. No. 10068242-2008 (Dep’t of Labor, July 25, 2008)
ORDER GRANTING REQUEST FOR RECONSIDERATION AND FINAL DECISION
The Final Adjudication Branch (FAB) hereby grants the employee’s timely request for reconsideration
of its June 6, 2008 final decision, pursuant to 20 C.F.R. § 30.319(c) (2008), and issues this new final
decision concerning the employee’s claim 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 stated below, the employee’s claim under Part E for the covered illness of asbestosis is
accepted for the payment of medical benefits. However, a “surplus” in the amount of $74,416.46 must
be absorbed before any Part E benefits may actually be paid to or on behalf of the employee. A
determination as to whether the employee is entitled to any compensation for potential wage-loss
and/or impairment benefits under Part E due to his covered illness of asbestosis is deferred at this
time.
STATEMENT OF THE CASE
On August 13, 2007, the employee filed a Form EE-1 claiming benefits under Part E of EEOICPA and
alleged that he had contracted “asbestos related lung disease” due to his employment as an electrician
at the Y-12 Plant and K-25 Plant in Oak Ridge, Tennessee from 1977 to 1995. The employee also
alleged that he was exposed to asbestos, radiation and toxic chemicals while working at those two
facilities. Using the Oak Ridge Institute for Science and Education database, the Savannah River
Resource Center verified that the employee had worked at the K-25 Plant from October 31, 1977 to
August 28, 1981, and at the Y-12 Plant from August 22, 1983 to March 4, 1991. On his Form EE-1, the
employee further indicated that he had filed a tort suit and a state workers’ compensation claim related
to his claimed illness, and that he had received settlements or other awards.
In support of his claim, the employee submitted pulmonary function and x-ray studies and a July 27,
2005 report from Dr. Ronald R. Cherry, a Board-certified pulmonary specialist. In that report, Dr.
Cherry related the employee’s belief that he had mild asthma, noted that he had smoked about one
quarter pack of cigarettes a day for 10 years before he quit at age 35, and diagnosed “asbestosis” based
on the results of his laboratory studies. In a follow-up note dated August 3, 2005, Dr. Cherry repeated
his diagnosis of “asbestosis,” causally related that one illness to the employee’s work-related exposure
to asbestos dust, and opined that the employee had a 17% permanent impairment of the whole person
using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent
Impairment.
In a signed statement dated September 18, 2007, the employee confirmed that he and his wife had filed
a tort suit for damages due to his alleged asbestos exposure in the Circuit Court for Knox County,
Tennessee; he also noted that the suit was still pending and that they had received joint settlement
payments as of that date amounting to $6,339.50, less attorneys fees of $2,113.14 and court costs of
$708.62.[1] The employee also confirmed that he had received a settlement of his claim for state
workers’ compensation benefits[2] in the amount of $91,104.02, less attorney fees of $18,220.80 and
$1,281.50 of expenses, and asserted that this payment was for “the claimed condition of asbestos
related lung disease and any non-malignant respiratory injury (asthma).”
Accompanying the employee’s statement was a copy of the short-form complaint against 14 defendants
that he and his wife had filed in the tort suit, a settlement sheet showing that their law firm had received
seven separate payments as of September 11, 2007, and an itemized list of court costs from that
litigation. Also accompanying the above-noted statement was a certified copy of the March 10, 2006
“Order Approving Compromised Settlement of Workers’ Compensation Claim,” signed by Judge
Donald R. Elledge of the Circuit Court for Anderson County, Tennessee, that settled the employee’s
state workers’ compensation claim against his employer, and a list of expenses from that proceeding.
In his March 10, 2006 Order, the Judge found that the employee had contracted “asbestos-related lung
disease as a result of occupational exposure to asbestos,” and decreed that payment of $91,104.02
would exonerate the employer “from any and all further liability with regard to [state workers’
compensation] benefits which may be claimed by the [employee] or growing out of any injuries that
have resulted, or may hereafter result, to [the employee] in reference to the claimed asbestos-related
lung disease and any non-malignant respiratory injury. . . .”
On December 12, 2007, the Jacksonville district office issued a recommended decision to accept the
employee’s Part E claim for asbestosis and to pay him medical benefits, once a combined surplus due
to his receipt of payments from his tort suit and his state workers’ compensation claim in the amount of
$74,416.46 was absorbed.[3] By letter postmarked on January 29, 2008, the employee’s representative
filed an objection to the recommended decision and requested a review of the written record of the
claim. In her submission, the employee’s representative objected to the coordination of the employee’s
Part E benefits with the proceeds of the settlement of his state workers’ compensation claim, which had
accounted for $71,601.72 of the $74,416.46 “surplus” found by the district office. She alleged that the
employee’s settlement was “for the claimed conditions of both asbestos lung disease and any
non-malignant respiratory injury” (emphasis in original) based on the “Order Approving Compromised
Settlement of Workers’ Compensation Claim,” and further alleged that the employee had been
diagnosed with “asthma, a non-malignant lung injury. . . .” Given these allegations, the representative
argued that the recommendation to coordinate was improper because the employee “received his state
workers’ compensation for a covered and non-covered illness. . . .”
As noted above, FAB issued a June 6, 2008 final decision in which it confirmed the district office’s
recommendations to accept the employee’s claim for the covered illness of “asbestosis” and awarded
the employee medical benefits for his accepted illness, after the combined surplus of $74,416.46 was
absorbed. However, on June 30, FAB received a timely request that it reconsider its June 6, 2008
decision from the employee’s representative.[4] In her request, the representative alleged that the
employee had received state workers’ compensation benefits for both his covered illness of “asbestos
related lung disease and any non-malignant respiratory injury (asthma and COPD). . . .” In support of
her most recent allegation, the representative submitted office notes and accompanying consultation
reports dated February 26, 2004, June 30, 2004, October 29, 2004, February 28, 2005, August 22,
2005, May 1, 2006 and April 28, 2008 by Dr. Richard M. Gaddis, the employee’s attending osteopath.
In his office notes, Dr. Gaddis diagnosed flare-ups of both asthma and COPD due to either burning
wood in a wood stove and paint fumes; however, Dr. Gaddis did not causally relate either of these two
medical conditions to the employee’s work-related exposure to asbestos at the K-25 and Y-12 Plants.
After considering the recommended decision, the timely objections to the recommended decision, the
evidence submitted in support of the timely request for reconsideration and all of the evidence in the
case file, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for benefits under Part E of EEOICPA on August 13, 2007, and alleged
that he had contracted “asbestos related lung disease” due to his employment.
2. The employee was employed as a DOE contractor employee at two DOE facilities, the K-25 and
Y-12 Plants in Oak Ridge, Tennessee, from October 31, 1977 through August 28, 1981, and from
August 22, 1983 through March 4, 1991, respectively. This is more than 250 days of covered
employment, during which the potential for asbestos exposure existed.
3. The medical evidence of record establishes that the employee was first diagnosed with asbestosis
due to work-related asbestos exposure by Dr. Cherry in his August 3, 2005 report, more than ten years
after he was first exposed to asbestos at a DOE facility.
4. The medical evidence of record also establishes that the employee was diagnosed with asthma and
COPD by Dr. Gaddis. However, Dr. Gaddis did not causally relate either the employee’s asthma or his
COPD to the same work-related asbestos exposure that led to the employee’s asbestosis.
5. It is at least as likely as not that the employee’s exposure to asbestos at two DOE facilities, the K-25
and Y-12 Plants in Oak Ridge, Tennessee was a significant factor in aggravating, contributing to, or
causing his asbestosis.
6. It is at least as likely as not that the employee’s exposure to asbestos was related to his employment
by a DOE contractor at two DOE facilities, the K-25 and Y-12 Plants in Oak Ridge, Tennessee.
7. The employee and his wife filed a tort suit in the Circuit Court for Knox County, Tennessee, alleging
that he had been exposed to asbestos while at work. As of September 11, 2007, the employee and his
wife have received total recoveries from seven of the defendants of $6,339.50, and have paid out
allowable attorney fees of $2,113.14 and allowable costs of suit of $708.62.
8. The employee also filed a workers’ compensation complaint in the Circuit Court for Anderson
County, Tennessee seeking state workers’ compensation benefits for asbestos-related lung disease. In
an “Order Approving Compromised Settlement of Workers’ Compensation Claim” dated March 10,
2006, the judge in that matter found that the employee had contracted a single illness, “asbestos-related
lung disease as a result of occupational exposure to asbestos,” and decreed that payment of the
settlement of $91,104.02 would relieve the employer of all future liability to the employee for “the
claimed asbestos-related lung disease and any non-malignant respiratory injury.” Out of this
settlement, the employee paid allowable attorney fees of $18,220.80 and allowable costs of suit of
$1,281.50.
Based on the above-noted findings of fact in the employee’s Part E claim, FAB hereby makes the
following:
CONCLUSIONS OF LAW
The first issue in this case is whether the employee qualifies as a “covered Part E employee” under 20
C.F.R. § 30.5(p). For this case, the relevant portion of the definition of a “covered Part E employee” is
“a Department of Energy contractor employee. . .who has been determined by OWCP to have
contracted a covered illness. . .through exposure at a Department of Energy facility,” and the claimed
“covered illness” is “asbestos-related lung disease” or asbestosis.
DEEOIC has established criteria to allow for a presumption of causation in claims filed under Part E
for asbestosis. If the evidence in the claim file is sufficient to establish that the employee was
diagnosed with asbestosis, that he or she worked at least 250 aggregate days at a facility where the
presence of asbestos has been confirmed, and that there was a latency period of at least 10 years
between the employee’s first exposure and the first diagnosis of asbestosis, DEEOIC can accept that it
was at least as likely as not that the employee’s exposure to asbestos at a DOE facility was a significant
factor in aggravating, contributing to or causing his or her asbestosis.[5] See Federal (EEOICPA)
Procedure Manual, Chapter E-500.17 (June 2006).
As found above, the employee is a DOE contractor employee who was employed at two DOE facilities
in Oak Ridge by DOE contractors and who contracted a “covered illness,” as that term is defined in §
7385s(2) of EEOICPA. The “covered illness” that the employee contracted is asbestosis due to
work-related exposure to asbestos, and this is the only “covered illness” that is supported by the
medical evidence in the case file. While there is medical evidence in the file that establishes that the
employee has been diagnosed with both asthma and COPD, that same medical evidence does not
establish that either of these two other illnesses were contracted through the same work-related
exposure of the employee to asbestos (or any other toxic substance) at a DOE facility. The employee
also had more than one year of covered employment with exposure to asbestos and was first diagnosed
with asbestosis more than ten years following his initial exposure to asbestos at a covered DOE
facility. Therefore, he qualifies as a “covered Part E employee” under § 30.5(p) of the regulations for
the condition of asbestosis, and the employee’s claim for asbestosis is accepted pursuant to §
7385s-4(c) of EEOICPA. Since he is a “covered Part E employee,” the employee is entitled to medical
benefits for the “covered illness” of asbestosis pursuant to § 7385s-8 of EEOICPA, retroactive to the
date he filed his claim for benefits on August 13, 2007.
The second issue in this case is whether the employee’s Part E benefits must be offset. Under § 7385
of EEOICPA and 20 C.F.R. § 30.505(b), Part E benefits must be offset to reflect payments made
pursuant to a final judgment or a settlement received in litigation for the same exposure for which
EEOICPA benefits are payable. As found above, the employee and his wife filed a tort suit in the
Circuit Court for Knox County, Tennessee, alleging that he had been exposed to asbestos at work.
Through September 11, 2007, the employee and his wife have received total joint recoveries from
seven of the defendants of $6,339.50, and have paid out allowable attorney fees of $2,113.14 and
allowable costs of suit of $708.62. Using the “EEOICPA Part B/E Benefits Offset Worksheet,” the
employee has a “surplus” recovery from his tort action of $2,814.74; this “surplus” must be absorbed
from medical benefits and any lump-sum monetary benefits payable in the future before any Part E
benefits can actually be paid to or on behalf of the employee.
The third issue in this case is whether the employee’s Part E benefits also must be coordinated. Under
§ 7385s-11 of EEOICPA and 20 C.F.R. § 30.626, Part E benefits must be coordinated with any state
workers’ compensation benefits (other than medical or vocational rehabilitation benefits) that the
claimant has received for the same covered illness. As found above, the employee filed a state
workers’ compensation complaint in the Circuit Court for Anderson County, Tennessee seeking
workers’ compensation benefits for asbestos-related lung disease. In an “Order Approving
Compromised Settlement of Workers’ Compensation Claim” dated March 10, 2006, the judge in that
matter found that the employee had contracted a single illness, “asbestos-related lung disease as a result
of occupational exposure to asbestos,” and decreed that payment of the settlement of $91,104.02 would
relieve the employer of all liability to the employee for “the claimed asbestos-related lung disease and
any non-malignant respiratory injury.”
This does not mean, however, that the above settlement was for anything other than the employee’s
“covered illness” of asbestosis. The scope of the settlement is important because pursuant to 20 C.F.R.
§ 30.626(c)(3), DEEOIC will not coordinate a claimant’s Part E benefits with his or her state workers’
compensation benefits for the same covered illness if the state workers’ compensation benefits were
received “for both a covered illness and a non-covered illness arising out of and in the course of the
same work-related incident.” (emphasis added) A close reading of Sections II, III, IV and V of the
March 10, 2006 Order, however, reveals that the only lung disease specifically identified by the judge
as resulting from work-related asbestos exposure was the same as the employee’s covered illness—
asbestosis or “asbestos-related lung disease.” This conclusion is also consistent with the medical
evidence in the case file, which does not establish that the employee’s asthma and COPD are causally
related to the same work-related exposure to asbestos that led to the development of his asbestosis.
The mere fact that the judge in the employee’s state workers’ compensation proceeding wrote that
payment of $91,104.02 would exonerate the employer “from any and all further liability with regard to
[state workers’ compensation] benefits which may be claimed by the [employee] or growing out of any
injuries that have resulted, or may hereafter result, to [the employee] in reference to the claimed
asbestos-related lung disease and any non-malignant respiratory injury” in his March 10, 2006 Order
does not mean that that the employee actually contracted both “asbestos-related lung disease as a result
of occupational exposure to asbestos” and some other unidentified “non-malignant respiratory
injury.”[6] Therefore, coordination of the employee’s Part E benefits for the “covered illness” of
asbestosis with his $91,104.02 settlement is required. Out of this settlement, the employee paid
allowable attorney fees of $18,220.80 and allowable costs of suit of $1,281.50. Using the
“EEOICPA/SWC Coordination of Benefits Worksheet,” the employee has received “surplus” state
workers’ compensation benefits totaling $71,601.72 after deducting allowable attorney fees and costs
of suit from his gross settlement. This second “surplus” must also be absorbed from the employee’s
medical benefits and any lump-sum monetary benefits payable in the future before any Part E benefits
can actually be paid to or on behalf of the employee.
Accordingly, the employee is entitled to medical benefits for his asbestosis, retroactive to the date he
filed his EEOICPA claim on August 13, 2007. However, a total “surplus” in the amount of $74,416.46
must be absorbed pursuant to §§ 7385 and 7385s-11(a) of EEOICPA before any Part E benefits are
actually payable.
Washington, DC
Kathleen M. Graber
Hearing Representative
Final Adjudication Branch
[1] No. 2-472-05 (filed August 31, 2005).
[2] No. A5LA0307.
[3] On February 25, 2008, FAB issued a final decision confirming the district office’s recommendations to accept the employee’s claim for the covered illness of asbestosis and to award the employee medical benefits for his accepted illness, after the combined surplus of $74,416.46 was absorbed. On April 9, 2008, the employee filed a petition with the United States District Court for the Eastern District of Tennessee, seeking review of the February 25, 2008 decision (No. 3:08-cv-125). Also on April 9, 2008, FAB received an April 7, 2008 submission in which the employee’s authorized representative noted that she had submitted objections to the recommended decision, which FAB had not considered prior to
issuing the February 25, 2008 decision. Because of this, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a May 20, 2008 order vacating the February 25, 2008 decision, reopening the employee’s Part E claim and returning it to FAB for the issuance of an appropriate new final decision that considered the representative’s timely objections to the December 12, 2007 recommended decision.
[4] By doing so, the representative revoked the finality of the June 6, 2008 decision. See 20 C.F.R. § 30.316(d).
[5] The actual latency period for the development of asbestosis is a function of the duration and intensity of exposure to asbestos. Thus, if an employee’s occupation was one that is not typically exposed to asbestos, or the potential for extreme exposure existed and the employee worked less than 250 aggregate work days, or there is a latency period of less than 10 years existing between the covered DOE or RECA section 5 employment and the onset of the illness, DEEOIC will evaluate all of the evidence in the file to determine whether a causal relationship exists in those instances.
[6] This interpretation of the September 15, 2006 Order is consistent with the way a similar order settling a Tennessee workers’ compensation case was interpreted by the Tennessee Supreme Court in Wilson v. National Healthcare Corp., 2004 WL 1964909 *3 (Tenn. Workers’ Comp. Panel Sept. 7, 2004).
page 1292
EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, 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.[1]
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[2]; 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.”[3]
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
Signature Date
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.[4]
OBJECTION
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
1. The employee filed a claim for benefits under Part E of EEOICPA, including wage-loss benefits
for the period from January 1997 to August 2006 due to his covered illness of COPD.
2. The employee was a DOE contractor employee who worked at the K-25 Plant from March 10,
1975 to February 15, 1981, and at the Y-12 Plant from February 16, 1981 to January 31, 1997.
3. Effective January 31, 1997, Lockheed Martin Energy Systems terminated the employee’s
position at the Y-12 Plant as part of a Reduction-In-Force.
4. Prior to the termination of his position, the employee earned wages of $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.
Following the termination of his position, he was not employed for the balance of 1997, nor was
he employed during the years 1998 through the date of his April 30, 2008 hearing.
5. The employee was first diagnosed with COPD by Dr. LeMense in a February 26, 2004 report.
6. In a September 11, 2007 report requested by the district office, Dr. McGregor concluded that “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.”
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.[5] 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.[6]
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.
Washington, DC
Amanda M. Fallon
Hearing Representative
Final Adjudication Branch
[1] 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.
[2] 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.
[3] 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.
[4] 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.”
[5] 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.”
[6] 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.