Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of “State Workers’ compensation Benefits.”

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State Workers’ Compensation Benefits

Coordination with Part E award

EEOICPA Fin. Dec. No. 53489-2006 (Dep’t of Labor, December 14, 2005)

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, the Final Adjudication Branch accepts and approves your claim for compensation in the amount of $150,000 under Part B and $150,000 under Part E.

STATEMENT OF THE CASE

On January 16, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act) with the Department of Labor and Request for Review by Medical Panels with the Department of Energy, based on [Employee]‘s (the employee your spouse) condition of acute promyelocytic leukemia.  This is considered an application for survivor compensation under Part B as a surviving spouse, and under Part E as a covered spouse of the employee.

You submitted a Form EE-3 (Employment History) indicating that the employee worked at the Feed Materials Production Center in Fernald, Ohio from 1953 to 1978.  Based on information from the database of the Oak Ridge Institute for Science and Education the employee worked for National Lead of Ohio, which is a DOE contractor, at the Feed Materials Production Center (FMPC), Fernald, Ohio from December 7, 1953 to January 10, 1978.  The FMPC is recognized as a covered DOE facility site from 1951 to the present.  See DOE, Office of Worker Advocacy Facility List, http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (retrieved December 14, 2005).

The medical documentation you submitted included a December 14, 1977 pathology report showing a diagnosis of acute promyelocytic leukemia. 

To determine the probability of whether the employee sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction.  The district office received the final NIOSH Report of Dose Reconstruction dated September 9, 2005. 

The NIOSH radiation dose reconstruction report indicates that an efficiency model was used for the dose reconstruction.  Only the partially reconstructed external dose was used.  The dose reconstruction was 8.036 rem to the red bone marrow.  NIOSH Report of Dose Reconstruction, p. 4.  Thus the dose reported is an “underestimate” of the employee’s total occupational radiation dose.  NIOSH Report of Dose Reconstruction, p. 7.

Using the information provided in the Report of Dose Reconstruction, the Cleveland district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of acute promyelocytic leukemia and reported in its recommended decision that there was a greater than 50% probability that the employee’s cancer was caused by radiation exposure at the FMPC. 

The record includes a copy of your marriage certificate showing you and the employee were married on October 1, 1955, and a copy of the employee’s death certificate showing you were married to him at the time of his death on January 10, 1978.  The death certificate indicates that he passed away due to conditions including acute promyelocytic leukemia.  The employee was born on July 6, 1931 and was age 46 at the time of his death. 

You provided a letter that you signed on September 27, 2005 and attached documentation, indicating the employee had filed a State of Ohio Workers’ Compensation claim which was approved for medical expenses.  Further, you indicated that your spouse had no minor children or children incapable of self-support, who were not your natural or adopted children, at the time of his death.  You further wrote on November 2, 2005 that you never received any money as a result of the employee’s workers’ compensation claim. 

On November 9, 2005, the Cleveland district office issued a recommended decision to accept your claim based on the condition of acute promyelocytic leukemia, and to award you compensation in the amount of $150,000 per 42 U.S.C. § 7384s(a), and $150,000 per 42 U.S.C. § 7385s-3(a), for a total amount of $300,000.00.  

On November 16, 2005, the Final Adjudication Branch received written notification from you indicating that you agree with the recommended decision.   

FINDINGS OF FACT

1.   On January 16, 2004, you filed a Form EE-2 (Claim for Survivor Benefits under the Energy Employee’s Occupational Illness Compensation Program Act) with the Department of Labor under Part B and Request for Review by Medical Panels with the Department of Energy, which is accepted as a claim for benefits under Part E.   

2.   The employee worked for a Department of Energy contractor, at the Feed Materials Production Plant from December 7, 1953 to January 10, 1978. 

3.   The employee was diagnosed with acute promyelocytic leukemia on December 14, 1977, after starting work for the Department of Energy. 

4.   The NIOSH Interactive RadioEpidemiological Program indicated a 53.59% probability that the employee’s cancer was caused by radiation exposure at the FMPC. 

5.   The employee was born on March 6, 1931, and he passed away on January 10, 1978, at the age of 46, which was 18 years and some months prior to his normal retirement age of 65. 

6.   You were married to the employee on October 1, 1955, and you were his spouse on the date of his death. 

7.   The death certificate indicates the employee died due to conditions including acute promyelocytic leukemia.

8.   The evidence of record supports a causal connection between the employee’s death due to acute promyelocytic leukemia, and his exposure to radiation and/or a toxic substance at a DOE facility. 

9.   You never received any money for the employee’s cancer from a state workers’ compensation claim for the same condition being accepted.  Your spouse had no minor children or children incapable of self-support, who were not your natural or adopted children, at the time of his death.  

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, the Final Adjudication Branch 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).  You waived your right to file objections to the findings of fact and conclusions of law pertaining to the award of benefits in the recommended decision. 

The Final Adjudication Branch calculated the probability of causation for acute promyelocytic leukemia using the NIOSH-IREP software program.  These calculations confirmed the 53.59% probability of causation that the employee’s cancer was “at least as likely as not” (a 50% or greater probability) caused by radiation exposure the employee incurred while employed at the FMPC.

Based on the employee’s covered employment at a covered DOE facility site and the medical documentation showing a diagnosis of cancer, and the determination that the cancer was at least as likely as not related to the employee’s occupational exposure at the FMPC, and thus sustained in the performance of duty, the employee is a “covered employee with cancer” under EEOICPA.  See 42 U.S.C. § 7384l(1)(B), (9)(B); 20 C.F.R. § 30.213(b); 42 C.F.R. § 81.2. 

This determination that a DOE contractor employee is entitled to compensation under Part B is treated for purposes of Part E as a determination that the employee contracted that illness through exposure at a Department of Energy facility.  See 42 U.S.C. § 7385s-4(a). 

The evidence of record establishes that the employee was a DOE contractor employee as defined by 42 U.S.C. § 7385s-1.  The employee was diagnosed with a “covered illness,” as defined by 42 U.S.C. § 7385s(2).  The employee contracted that “covered illness” through exposure to a toxic substance at a DOE facility pursuant to 42 U.S.C. § 7385s-4(a). 

You are entitled to compensation pursuant to 42 U.S.C. § 7385s-3(a)(1) since the employee would have been entitled to compensation for contracting of a covered illness under Part E; and it is as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the death of the employee.  42 U.S.C. § 7385s-3(a)(1).

The employee received medical benefits under a state workers’ compensation program for the conditions of acute promyelogytic leukemia and strep sepsis.  No coordination of benefits is required under Part E because you are a spouse of the employee and you reported you did not receive any state workers’ compensation due to the death of the employee.  Federal (EEOICPA) Procedure Manual, Chapter E-1000.4 (Sept. 2005).

The employee had presumed wage-loss for a period of more than 10 years, but less than 20 years.  He passed away at age 46.  Based on the Social Security Act, the normal retirement age is the age at which an employee may receive unreduced Social Security retirement benefits.  For an employee born on July 6, 1931 (January 1, 1938 or earlier), the normal retirement age is age 65.  Federal (EEOICPA) Procedure Manual, Chapter E-800.3d (Sept. 2005).  Since the employee was age 46, 18 years and some months prior to his full retirement age of 65, there was an aggregate period of not less than 10 years, before the employee attained normal retirement age that he died, and the employee did not have an annual wage.  This amount is determined to be $150,000 under 42 U.S.C. § 7385s-3(a)(2).

You are the surviving spouse of the employee pursuant to 42 U.S.C. § 7384s(e)(3)(A) and entitled to compensation in the amount of $150,000; and the covered spouse of the employee pursuant to 42 U.S.C. § 7385s-3(d)(1) and entitled to additional compensation in the amount of $150,000. 

Accordingly, you are entitled to compensation in the total amount of $300,000.00. 

Washington, DC

Rosanne M. Dummer

Hearing Representative

EEOICPA Fin. Dec. No. 70540-2005 (Dep’t of Labor, October 26, 2005)

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 for benefits under §§ 7384 and 7385s of the Act is accepted.

STATEMENT OF THE CASE

On July 21, 2005, you filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA[1], based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone.  A CT scan shows the employee was diagnosed with lung cancer on June 24, 2005. 

Your claim was based, in part, on the assertion that the employee worked for a Department of Energy (DOE) contractor at a DOE facility.  You asserted on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC).  The evidence of record establishes the employee worked at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996.  The employee indicated on his Form EE-3, Employment History, that he wore a dosimetry badge during this employment.  In addition, the employee worked at the Y-12 plant in Oak Ridge from December 3, 1962 to March 28, 1965, and from May 15, 2002 to June 28, 2005. 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on October 24, 1959, and the employee’s death certificate, showing you were married to the employee on the date of his death, September 26, 2005.  The death certificate shows the employee died as a result of metastatic lung cancer.

On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation for the employee’s lung cancer in the amount of $150,000 under § 7384 of the Act and $125,000 under § 7385s of the Act.  In addition, the district office recommended that you be entitled to medical benefits for the employee’s metastatic lung cancer from September 3, 2002 to June 28, 2005.

You submitted information showing the employee received a state workers’ compensation settlement.

On September 26, 2005, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision. 

FINDINGS OF FACT

1)  On July 21, 2005, you filed a Form EE-2 based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone. 

2)  The employee was diagnosed with lung cancer on June 24, 2005.

3)  The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996.

4)  The employee wore a dosimetry badge during this employment.

5)   You were married to the employee for at least one year immediately before his death.

6)   On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for the employee’s lung cancer. 

CONCLUSIONS OF LAW

In order for the employee to qualify as a member of the SEC, the following requirements must be satisfied:

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – –

(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii) worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. 

42 U.S.C. § 7384l(14)(A).

The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, for more than 250 work days prior to February 1, 1992, and wore a dosimetry badge during this employment.  Therefore, the employee is a member of the SEC.  42 U.S.C. § 7384l(14).

The employee’s lung cancer is a specified cancer under § 7384 of the Act and implementing regulations.  42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(ff)(2).

You indicated in a letter received September 22, 2005 that the employee received a state workers’ compensation settlement for his skin cancer only.  You submitted a document concerning this settlement.  While the document did not indicate the medical condition upon which the lump sum settlement was based, the document shows the employee was the recepient of the settlement.  Survivor benefits under § 7385s of the Act are reduced when a survivor receives some form of state workers’ compensation benefits.[2]  Since you did not receive such a benefit, a reduction is not necessary.

On the other hand, the recommended award of medical benefits is based on the employee’s entitlement under § 7385s, since he filed his claim prior to his death.  If the workers’ compensation settlement was due to the accepted lung cancer, these medical benefits would have to be reduced.  Although the medical condition is not listed on the workers’ compensation document, the document was issued on February 5, 2003.  Since the employee’s lung cancer was not diagnosed until June 24, 2005, our office may safely assume that the workers’ compensation settlement is unrelated to the present entitlement to lung cancer under § 7385s of the Act.

You have established that you are a survivor.  42 U.S.C. §§ 7384s(e)(3), 7385s-3(d)(1).

I conclude that you, as the eligible survivor of the employee as defined by § 7384 of the Act, are entitled to compensation in the amount of $150,000 pursuant to § 7384 of the Act on the basis of the employee’s lung cancer.  42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a).

A determination under § 7384 that a DOE contractor employee is entitled to compensation for an occupational illness is treated as a determination that the employee contracted that illness through exposure to a toxic substance at a DOE facility.  42 U.S.C. § 7385s-4(a).  Since the employee died of this illness, lung cancer, you are entitled to compensation in the amount of $125,000.  42 U.S.C. § 7385s-3(a)(1).

In addition, since the employee filed the claim for benefits prior to his death, you are entitled to seek reimbursement for out-of-pocket medical expenses and/or payment of any outstanding medical expenses for the employee’s lung cancer with bone, liver, and lymph node metastases from September 3, 2002 to June 28, 2005.

Jacksonville, FL

Mark Stewart

Hearing Representative

[1] The employee originally filed claim for benefits under §§ 7384 and 7385s on September 3, 2002, for skin cancer and lung nodule. 

EEOICPA Fin. Dec. No. 70540-2005 (Dep’t of Labor, October 26, 2005)

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 for benefits under §§ 7384 and 7385s of the Act is accepted.

STATEMENT OF THE CASE

On July 21, 2005, you filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA[1], based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone.  A CT scan shows the employee was diagnosed with lung cancer on June 24, 2005. 

Your claim was based, in part, on the assertion that the employee worked for a Department of Energy (DOE) contractor at a DOE facility.  You asserted on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC).  The evidence of record establishes the employee worked at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996.  The employee indicated on his Form EE-3, Employment History, that he wore a dosimetry badge during this employment.  In addition, the employee worked at the Y-12 plant in Oak Ridge from December 3, 1962 to March 28, 1965, and from May 15, 2002 to June 28, 2005. 

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on October 24, 1959, and the employee’s death certificate, showing you were married to the employee on the date of his death, September 26, 2005.  The death certificate shows the employee died as a result of metastatic lung cancer.

On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation for the employee’s lung cancer in the amount of $150,000 under § 7384 of the Act and $125,000 under § 7385s of the Act.  In addition, the district office recommended that you be entitled to medical benefits for the employee’s metastatic lung cancer from September 3, 2002 to June 28, 2005.

You submitted information showing the employee received a state workers’ compensation settlement.

On September 26, 2005, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision. 

FINDINGS OF FACT

1)  On July 21, 2005, you filed a Form EE-2 based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone. 

2)  The employee was diagnosed with lung cancer on June 24, 2005.

3)  The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996.

4)  The employee wore a dosimetry badge during this employment.

5)   You were married to the employee for at least one year immediately before his death.

6)   On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for the employee’s lung cancer. 

CONCLUSIONS OF LAW

In order for the employee to qualify as a member of the SEC, the following requirements must be satisfied:

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment – –

(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii) worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges. 

42 U.S.C. § 7384l(14)(A).

The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, for more than 250 work days prior to February 1, 1992, and wore a dosimetry badge during this employment.  Therefore, the employee is a member of the SEC.  42 U.S.C. § 7384l(14).

The employee’s lung cancer is a specified cancer under § 7384 of the Act and implementing regulations.  42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(ff)(2).

You indicated in a letter received September 22, 2005 that the employee received a state workers’ compensation settlement for his skin cancer only.  You submitted a document concerning this settlement.  While the document did not indicate the medical condition upon which the lump sum settlement was based, the document shows the employee was the recepient of the settlement.  Survivor benefits under § 7385s of the Act are reduced when a survivor receives some form of state workers’ compensation benefits.[2]  Since you did not receive such a benefit, a reduction is not necessary.

On the other hand, the recommended award of medical benefits is based on the employee’s entitlement under § 7385s, since he filed his claim prior to his death.  If the workers’ compensation settlement was due to the accepted lung cancer, these medical benefits would have to be reduced.  Although the medical condition is not listed on the workers’ compensation document, the document was issued on February 5, 2003.  Since the employee’s lung cancer was not diagnosed until June 24, 2005, our office may safely assume that the workers’ compensation settlement is unrelated to the present entitlement to lung cancer under § 7385s of the Act.

You have established that you are a survivor.  42 U.S.C. §§ 7384s(e)(3), 7385s-3(d)(1).

I conclude that you, as the eligible survivor of the employee as defined by § 7384 of the Act, are entitled to compensation in the amount of $150,000 pursuant to § 7384 of the Act on the basis of the employee’s lung cancer.  42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a).

A determination under § 7384 that a DOE contractor employee is entitled to compensation for an occupational illness is treated as a determination that the employee contracted that illness through exposure to a toxic substance at a DOE facility.  42 U.S.C. § 7385s-4(a).  Since the employee died of this illness, lung cancer, you are entitled to compensation in the amount of $125,000.  42 U.S.C. § 7385s-3(a)(1).

In addition, since the employee filed the claim for benefits prior to his death, you are entitled to seek reimbursement for out-of-pocket medical expenses and/or payment of any outstanding medical expenses for the employee’s lung cancer with bone, liver, and lymph node metastases from September 3, 2002 to June 28, 2005.

Jacksonville, FL

Mark Stewart

Hearing Representative

[1] The employee originally filed claim for benefits under §§ 7384 and 7385s on September 3, 2002, for skin cancer and lung nodule. 

EEOICPA Fin. Dec. No. 10002848-2005 (Dep’t of Labor, July 27, 2005)

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns 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).  Your claim for survivor benefits for acute radiation syndrome under § 7385s of the Act is hereby accepted. 

STATEMENT 0F THE CASE

On September 3, 2002 you filed Form EE-2, Claim for Survivor Benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act).  You claimed that your father, [Employee], died of acute myocardial failure due to the central nervous system damage from massive ionizing radiation as a result of his employment at Los Alamos National Laboratory. 

[Employee’s] employment was verified at the Los Alamos National Laboratory from June 17, 1946 to January 1, 1959.

Evidence in the file establishes that the employee was in a massive explosion on December 30, 1958 at the Los Alamos National Laboratory.  A death certificate signed by John S. Benson, M.D. shows that [Employee] died 35 hours after the incident.

You submitted the death certificate of [Employee’s] spouse, [Employee’s Spouse] and the death certificate of your brother, [Claimant’s brother].  You also submitted a copy of your birth certificate that established you were the daughter of [Employee] and a minor child at the time of your father’s death.

Your case was forwarded to the EEOICPA Physician Panel for a review of the medical evidence and a determination as to whether the acute radiation syndrome arose out of and in the course of your father’s employment by a DOE employer and exposure to a toxic material at a DOE facility.  On July 7, 2004, the Medical Director, Office of Worker Advocacy, Office of Environment, Safety & Health, reviewed the findings and determination of the EEOICPA Physician Panel and accepted the panel findings in favor of your case. 

You indicated that your mother had received state workers’ compensation benefits for the claimed condition of acute radiation syndrome.  You submitted copies of the award granted to your mother.  It was determined that because your mother received the state workers’ compensation benefits and you did not receive the state workers’ compensation benefits, you would be entitled to an award in the amount of $175,000.00.

On July 15, 2005, the Denver district office issued a recommended decision finding that you are the eligible surviving beneficiary of the covered employee and you were entitled to monetary benefits in the amount of $175,000.00.  The case was forwarded to the Final Adjudication Branch for review.

Pursuant to the regulations implementing the EEOICPA, a claimant has 60 days from the date of issuance of the recommended decision to raise objections to that decision to the Final Adjudication Branch.  20 C.F.R § 30.310(a).  If an objection is not raised during the 60-day period, the Final Adjudication Branch will consider any and all objections to the recommended decision waived and issue a final decision affirming the district office’s recommended decision.  20 C.F.R. § 30.316(a). 

On July 27, 2005, the Final Adjudication Branch received your written notification waiving any and all objections to the recommended decision.

After considering the record of the claim forwarded by the district office, the Final Adjudication Branch makes the following findings:

FINDINGS OF FACT

1.      On September 3, 2002, you filed for survivor benefits under § 7385s of the Act.

2.      [Employee’s] employment was verified at the Los Alamos National Laboratory from June 17, 1946 to January 1, 1959.

3.      Evidence in the file establishes that the employee was in a massive explosion on December 30, 1958 at the Los Alamos National Laboratory.  A death certificate signed by John S. Benson, M.D. shows that [Employee] died 35 hours after the incident.

4.      On July 7, 2004, the Medical Director, Office of Worker Advocacy, Office of Environment, Safety & Health, reviewed the findings and determination of the EEOICPA Physician Panel and accepted the panel findings in favor of your case. 

5.      On July 15, 2005 the Denver district office issued a recommended decision finding that you are the eligible surviving beneficiary of the covered employee and you were entitled to monetary benefits in the amount of $175,000.00.

6.      You submitted the employee’s death certificate, his spouse’s death certificate, your brother’s death certificate and your birth certificate, thus establishing that you are the eligible surviving beneficiary of [Employee].

7.      The file also contains your signed statement that neither you nor the employee filed for or received any state workers’ compensation benefits for the claimed condition. 

Based on the above noted findings of fact in this claim, the Final Adjudication Branch hereby also makes the following:

CONCLUSIONS OF LAW

1.      The Final Adjudication Branch hereby finds the employee was a covered DOE contractor employee in accordance with 42 U.S.C. § 7385s-1.

2.      You have established that you are the eligible survivor of the covered employee pursuant to § 7385s-3(d)(2).

3.      [Employee] contracted a covered illness under § 7385s-4(b).

4.      You are eligible to receive compensation in the amount of $175,000 pursuant to § 7385s-3(a)(3).

Denver, Colorado

Joyce L. Terry

District Manager

Relationship of coordination and the maximum amount payable

EEOICPA Fin. Dec. No. 10032182-2006 (Dep’t of Labor, March 3, 2008)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your 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, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E.  You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.

STATEMENT OF THE CASE

On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility.  On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA.  Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B.  On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.

On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer.  You elected to have a physician selected by the Department of Labor perform the impairment rating.  You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.

The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997.  You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS.  The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung.  On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.

To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected  by your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC). 

On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment.  The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment.  Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease.  The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”

You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997.  An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment. 

You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.

On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage-loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00.  From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.

In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001).  This totals $55,000.00 in wage-loss benefits.

On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.

On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled.  The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”

On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB.  The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits. 

Following an independent review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA.  You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility. 

2. On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.

3. On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.

4. Your coronary artery disease is a consequential illness of your lung cancer.

5. On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.

6. You last had recorded wages in 1997.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.

7. You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.

8. You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.

Based on these facts, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

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).  You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides.  See 42 U.S.C. § 7385s-2(b).  The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1). 

The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease.  You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.

In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005).  You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.  You last had recorded wages in 1997 and have not had any wages since then.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.  This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.

Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00.  You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001.  This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00.  Therefore, your wage-loss eligibility ends there.

All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses.  See 42 U.S.C. § 7385s-11.  Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.

Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E.  Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40. 

Washington, DC

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch

Settlement of claim

EEOICPA Fin. Dec. No. 10013372-2006 (Dep’t of Labor, May 9, 2007)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) on your claim for benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim for medical benefits under Part E of the Act is accepted.

STATEMENT OF THE CASE

On June 1, 2004, you filed a claim for medical benefits under Part E (then Part D) of the Act, based on your diagnosis of asbestos-related lung disease on August 24, 1992.  Your Employment History asserts that you were employed by Union Carbide at Y-12 from April 1960 to December 1993.  The Oak Ridge Institute of Science and Education (ORISE) verified that you were employed at the Y-12 Plant[1] in Oak Ridge, Tennessee, from April 25, 1960 to March 22, 1965, and from March 7, 1966 to September 30, 1997.  Other employment documents on file indicate that you were employed by Department of Energy (DOE) contractor Union Carbide at the Y-12 Plant.

A medical narrative of a chest x-ray on May 21, 1992, signed by Dr. Hugh J. Mullin, reports an impression of “Parenchymal changes consistent with asbestosis.”  An Asbestos Screening Medical Report dated August 24, 1992, signed by Dr. Jeffrey S. Hecht, states that “it is probable that [Employee] has asbestos-related pulmonary disease.”  A medical report dated July 18, 2005, signed by Dr. Ronald R. Cherry, reports an impression of “asbestos-related pleural plaques” and “mild increased interstitial markings on chest x-ray, but the profusion is insufficient for the firm diagnosis of asbestosis.”  The district office concluded that the medical evidence in your case file was sufficient to establish a diagnosis of asbestos-related lung disease. 

The district office also reviewed the U S. Department of Labor’s Site Exposure Matrices (SEM) database and the National Institute of Health (NIH) HazMap Disease List.  The SEM lists possible health effects of exposure to toxins that were present at certain buildings during specified timeframes at certain DOE facilities.  The district office concluded that SEM identified asbestos as being present at Y-12 and that you could have been exposed to the toxic substance asbestos during your employment as a machinist at that facility. 

By letter dated July 10, 2006, you informed the district office that:  “Yes, a lawsuit has been filed and settlements have been received in connection with the claimed condition of asbestos-related lung disease.”  Your case file contains settlement documents and other evidence noting that your gross settlement amount for that lawsuit was $22,234.11, less attorney fees of $7,411.37 and suit costs/expenses of $776.00.   

By that same letter, you informed the district office that you “filed for and received an award of state workers’ compensation benefits for the condition of asbestos-related lung disease.”  Your case file contains settlement documents and other evidence noting that your gross settlement amount for that claim was $94,464.00, less attorney fees of $18,892.80 and suit costs/expenses of $1,323.50.   

On August 8, 2006, the district office issued a recommended decision concluding that the evidence of record satisfies the criteria for a covered illness under Part E.  Therefore, it was recommended that your Part E claim for medical benefits be accepted for the claimed condition of asbestos-related lung disease, subject to a surplus in the amount of $88,716.40.

OBJECTIONS

By letter dated August 15, 2006, your authorized representative objected to the recommended decision.  The letter indicated that you do not object to the recommended decision’s findings and conclusions relating to the tort suit that you filed, and that you do not object to the recommended offset due to the proceeds of that suit.  The letter objects, however, to the coordination of the settlement proceeds of the state workers’ compensation (SWC) claim with your EEOICPA benefits.  As the basis for the objection, your representative asserts that “the state workers’ compensation case was settled and paid for the conditions of any non-malignant respiratory injury and the asbestos-related lung disease.”  He argues that the SWC settlement was for the claimed condition plus an additional illness not claimed under the EEOICPA and that, therefore, the proceeds cannot be coordinated in such a manner as to reduce your Part E medical benefits. 

The evidence in your case file, however, does not support your representative’s assertion.  The Order Approving Compromised Settlement of Workers’ Compensation Claim, dated March 10, 2006 and signed by Judge Elledge, clearly states in paragraphs II, III, IV, V and elsewhere that the $94,464.00 settlement amount was arrived at based on disability from your “asbestos-related lung disease.”  Only once does the Order refer to “non-malignant respiratory injury” and that reference is not in the sections of the settlement Order which describe the basis for the $94,464.00 settlement amount.  Additionally, your own characterization of the SWC settlement in your July 10, 2006 letter to the district office was as follows:  “Yes, I have filed for and received an award of state workers’ compensation benefits for the condition of asbestos-related lung disease” (emphasis added), clearly indicating your own understanding that the SWC settlement was for the claimed condition of asbestos-related lung disease and not for other illnesses.      

Based on the totality of the evidence, the FAB concludes that your SWC settlement was for your claimed condition of asbestos-related lung disease, and that, therefore, the amounts recovered from that claim must be coordinated with the award of benefits granted in your claim under the EEOICPA.                   

After reviewing the evidence in your case file, the FAB hereby makes the following:

FINDINGS OF FACT

1.         On June 1, 2004, you filed a claim for medical benefits under Part E of the Act, based on the claim that you were diagnosed with asbestos-related lung disease on August 24, 1992.      

2.         You were a DOE contractor employee employed at the Y-12 Plant from April 25, 1960 to March 22, 1965, and from March 7, 1966 to September 30, 1997.

3.         You were diagnosed with asbestos-related lung disease as early as 1992.     

4.         You filed a tort suit based on your exposure to asbestos and received a gross recovery of $22,234.11, less attorney fees of $7,411.37 and suit expenses of $776.00. 

5.         You filed a state workers’ compensation claim based on your illness of asbestos-related lung disease and received a gross recovery of $94,464.00, less attorney fees of $18,892.80 and suit expenses of $1,323.50.   

Based on these facts, the undersigned makes the following:   

CONCLUSIONS OF LAW

Regulations governing the implementation of the Act allow claimants 60 days from the date of the district office’s recommended decision to submit to the FAB any written objections to the recommended decision, or a written request for a hearing.  See 20 C.F.R. §§ 30.310 and 30.311 (2006).  On August 15, 2006, a timely written objection to the recommended decision was filed on your behalf.  You did not request a hearing.  Pursuant to 20 C.F.R. §§ 30.312 and 30.313, the FAB has considered your objection by means of a review of the written record of this case.  The review did not include a review of any additional evidence because you failed to submit any new evidence.  After a thorough review of the record in this case, the FAB concludes that no further investigation of your objection is warranted, and the FAB now issues a final decision on your Part E claim.

In order to prove eligibility for medical benefits under Part E of the Act, you must establish that you were a “covered DOE contractor employee” and that you “contracted a covered illness through exposure at a Department of Energy facility.”  See 42 U.S.C. §§ 7385s-4, 7385s(1) and 7385s-8.  Part E further states that:

[A] Department of Energy contractor employee shall be determined for purposes of [Part E] to have contracted a covered illness through exposure at a Department of Energy facility if–

(A)       It is at least as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the illness; and

(B)       It is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility.”                       

See 42 U.S.C. § 7385s-4(c)(1). 

The totality of the evidence in the record establishes that you were a DOE contractor employee and that you contracted asbestos-related lung disease following the commencement of your DOE employment.  The record also establishes that you were exposed to the toxic substance asbestos at the Y-12 Plant, a DOE facility, and that your exposure at that facility covered a period of at least 250 aggregate work days.  The evidence further establishes that the latency period of your asbestosis exceeded 10 years in duration.  Thus, your case satisfies the criteria required to benefit from the presumption that your asbestos-related lung disease was caused by exposure to a toxic substance at a DOE facility.  See EEOICPA Bulletin No. 06-08 (issued April 25, 2006).  Therefore, the FAB concludes that you are a “covered DOE contractor employee” who contracted a “covered illness” resulting from exposure to a toxic substance at a DOE facility, and that, therefore, you are entitled to medical benefits under Part E.  See 42 U.S.C. §§ 7385s(1), 7385s(2), 7385s-4(b) and 7385s-8; EEOICPA Bulletin No. 06-08 (issued April 25, 2006).  

Therefore, the FAB concludes that the evidence of record is sufficient to allow an award of medical benefits under Part E of the Act.  Accordingly, your claim for Part E medical benefits is accepted and you are entitled to medical benefits retroactive to the date upon which you submitted your claim for Part E benefits, June 1, 2004, for the covered illness of asbestos-related lung disease.   

However, the Act also requires that your Part E award of medical benefits be subject to offset  based on amounts received from any tort suit judgment or settlement arising from your exposure to asbestos.  See 42 U.S.C. § 7385; 20 C.F.R. § 30.505(b) (2006).  The evidence establishes that you filed a tort suit based on your exposure to asbestos, and that you received certain amounts from various defendants, and that you incurred attorney fees and suit costs.  Based on the amounts received and expenses and attorney fees incurred, the amount of your offset for your tort suit is $14,468.34, using the EEOICPA Part B/E Benefits Offset Worksheet.  See EEOICPA Bulletin No. 07-12 (issued April 10, 2007).

The Act also requires that your Part E award of medical benefits be subject to coordination with amounts received from any state workers’ compensation claim you filed for the covered illness of asbestos-related lung disease.  See 42 U.S.C. § 7385s-11; 20 C.F.R. § 30.626.  The evidence establishes that you filed a state workers’ compensation claim based on your asbestos-related lung disease, and that you settled that claim for a certain amount, and that you incurred attorney fees and suit costs.  Based on the amounts received and expenses and attorney fees incurred, the amount of your coordination for your SWC claim is $74,247.70, pursuant to the EEOICPA/SWC Coordination of Benefits Worksheet.  See EEOICPA Bulletin 07-02 (issued October 18, 2006). 

Accordingly, your Part E medical benefits for asbestos-related lung disease, herein awarded, are subject to offset and coordination in the total amount of $88,716.04, based on the EEOICPA Part B/E Benefits Offset Worksheet and the EEOICPA/SWC Coordination of Benefits Worksheet.  Thus, your medical benefits herein awarded are reduced by $88,716.04, and the bills for treatment of your covered illness will only be payable under the EEOICPA after you, or others on your behalf, have paid the first $88,716.04 of those bills incurred on or after the effective date of June 1, 2004.

Washington, DC

Alan Kelly, Hearing Representative

Final Adjudication Branch

[1]  The Y-12 Plant is a DOE facility from 1942 to present.  Listed prime contractors include:  Tennessee Eastman Corp. (TEC) (1943-1947), Union Carbide & Carbon Corp. (1947-1984), Martin Marietta Energy Systems (1984-1994), Lockheed Martin Energy Systems, Inc. (1994-1998), Bechtel Jacobs (1998-2000), and BWXT (2000-present).  See http://www.hss.energy.gov/healthsafety/fwsp/advocacy/faclist (last visited May 4, 2007).   

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

EEOICPA Fin. Dec. No. 10068242-2008 (Dep’t of Labor, July 25, 2008)

ORDER GRANTING REQUEST FOR RECONSIDERATIONAND 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

[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