Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Offset of Benefits. We hope these decisions are helpful. Please add your experiences in the comments section.
Offset of Benefits
EEOICPA Fin. Dec. No. 10008601-2006 (Dep’t of Labor, March 20, 2009)
NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD
This decision of the Final Adjudication Branch (FAB) concerns the above claim under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for impairment benefits under Part E is accepted.
STATEMENT OF THE CASE
On March 4, 2003, the employee filed Form EE-1, claiming for benefits under EEOICPA for asbestosis (among other conditions). On November 4, 2008, FAB issued a Final Decision accepting the Part E claim for the covered illness of asbestosis and awarding medical benefits for asbestosis, subject to the absorption of a surplus of $22,466.37.[1]
The employee subsequently filed a claim for impairment benefits for his accepted asbestosis on December 4, 2008 and selected a private physician to perform the impairment rating. In a December 15, 2008 report, Dr. Norm Walton rated the employee’s impairment based on his asbestosis and calculated that the employee’s whole body impairment was 10%, in accordance with the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA’s Guides). Dr. Walton indicated that the employee’s asbestosis had reached maximum medical improvement and listed the tables and pages from the AMA’s Guides used in the rating.
The employee indicated that he had not received any additional settlement or award from a tort suit or state workers’ compensation claim in connection with the covered illness of asbestosis.
On December 24, 2008, the Jacksonville district office issued a recommended decision to accept the employee’s impairment claim in the amount of $2,533.63 for a 10% whole body impairment due to his asbestosis, after absorbing the outstanding surplus of $22,466.37.
On January 6, 2009, FAB received the employee’s objection letter, which is discussed below.
OBJECTION
In the objection letter, the employee’s attorney questioned the recommendation to absorb the surplus by deducting it from the gross amount of the impairment award. The attorney argued that the surplus should not be absorbed out of the gross amount of the employee’s impairment benefits for asbestosis because the tort suit recovery that required an offset of EEOICPA benefits (and the resulting surplus) concerned the exposures that led to the development of both the employee’s asbestosis and his colon cancer. In support of this argument, the attorney referred to the exception to the required coordination of Part E benefits with state workers’ compensation benefits when the beneficiary of those state workers’ compensation benefits receives them for an illness other than the “covered illness” under Part E, or for both a covered and a non-covered illness.[2]
However, the exceptions referenced by the employee’s attorney in support of his argument that the surplus remaining after the required offset to reflect the employee’s tort recovery should not be absorbed out of this impairment award involve an entirely separate and distinct statutory requirement, that being the requirement to coordinate Part E benefits with certain types of state workers’ compensation benefits received for the same covered illness. As a result, the statutory and regulatory rules governing the coordination of Part E benefits are obviously different from those governing the offset of EEOICPA benefits to reflect certain tort recoveries and cannot be applied as the attorney suggests. See 42 U.S.C §§ 7385, 7385s-11; 20 C.F.R §§ 30.505, 30.626 (2008).
Section 7385 of EEOICPA specifically states that a payment of compensation to an individual, or to a survivor of that individual, shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for workers’ compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under EEOICPA. Please remember that the basis of the tort suit that resulted in the recovery that was used to calculate the offset (and the remaining surplus that is the focus of this objection), as noted by FAB in the November 4, 2008 Final Decision, was for asbestos exposure–the very same exposure used to accept the employee’s asbestosis claim.
Furthermore, the regulations establish that the EEOICPA benefits that will be reduced to reflect an offset consist of any unpaid payments payable in the future. See 20 C.F.R. § 30.505(b)(2)(iii). Therefore, the district office’s recommendation that the outstanding surplus be absorbed by using it to reduce the amount of impairment benefits payable to the employee is consistent with both the statute and the regulations.
After considering the evidence in the case file and the objection to the recommended decision of the district office, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee filed a claim for impairment benefits under Part E based on the covered illness of asbestosis.
2. A previous Final Decision accepted the employee’s claim for asbestosis and awarded him medical benefits under Part E for that illness, subject to the outstanding surplus in the amount of $22,466.37.
3. The employee’s whole body impairment due to asbestosis is 10%.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision and I conclude that the employee was a DOE contractor employee with asbestosis due to exposure to a toxic substance (asbestos) at a DOE facility. 42 U.S.C. §§ 7385s(1), 7385s-4(b). The medical evidence of record establishes that the employee has a whole body impairment of 10% as result of the covered illness of asbestosis. 20 C.F.R. § 30.900.
The gross amount of impairment benefits payable for a whole body impairment of 10% would be $25,000.00.[3] However, because an outstanding surplus of $22,466.37 exists and must be absorbed out of this gross amount, the net amount of compensation awarded to the employee for his permanent impairment is $2,533.63.
Jacksonville, FL
Wendell Perez
Hearing Representative
Final Adjudication Branch
[1] In another Final Decision dated May 4, 2007, FAB awarded the employee impairment benefits for the covered illnesses of colon cancer and bladder cancer.
[3] The number of percentage points multiplied by $2,500.00 results in a gross award of $25,000.00. See 20 C.F.R. § 30.902.
EEOICPA Fin. Dec. No. 10014306-2006 (Dep’t of Labor, August 23, 2006)
FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). Your claim under Part E of the Act is hereby accepted as compensable for medical benefits for asbestosis (subject to absorption of a surplus due to a tort settlement) and chronic obstructive pulmonary disease (COPD), and denied for medical benefits for beryllium sensitivity and chronic beryllium disease (CBD).
STATEMENT OF THE CASE
On September 17, 2002 and August 2, 2004, you filed Claims for Benefits under EEOICPA, claiming benefits for the conditions of asbestosis, beryllium sensitivity, and chronic beryllium disease.
On the Form EE-3, Employment History, you stated you were employed as an insulator at the Savannah River Site in Aiken, South Carolina, from 1982 to 2002. The district office verified that you worked for DuPont at the Savannah River Site from May 16, 1983 to October 21, 1983; January 29, 1985 to June 11, 1997; and August 13, 1997 to December 2, 2002.
You submitted medical evidence establishing you were diagnosed with asbestosis on August 12, 1982 and chronic obstructive pulmonary disease (COPD) on July 13, 1983. You did not submit any medical evidence that provided a diagnosis of beryllium sensitivity or chronic beryllium disease. A positive Physicians Panel report determined that you were diagnosed with asbestosis prior to employment at the Savannah River Site, but the employment by a contractor at the Department of Energy (DOE) facility likely contributed to your illness.
The district office performed a search of the U. S. Department of Labor Site Exposure Matrices (SEM). The source documents used to compile SEM establish that an insulator could have been exposed to asbestos and borosilicates at the Savannah River Site, and that asbestosis is a specific health effect of exposure to asbestos. The district office also referred the medical evidence of record to a district medical consultant (DMC) for an opinion.
On July 20, 2006, the Jacksonville district office recommended acceptance of your claim for compensation under Part E of the Act, finding that your diagnosed asbestosis and COPD were covered illnesses caused by exposure to a toxic substance in the course of your employment at the Savannah River Site. The recommended decision found that you are entitled to compensation for medical benefits for asbestosis, less an offset amount of $12,235.01 for payments received from a lawsuit. The offset surplus is to be paid down by any medical benefits due for asbestosis from the date of filing until the surplus is absorbed. The district office also recommended acceptance of your claim for medical benefits for COPD, and denial of your claim for beryllium sensitivity and chronic beryllium disease under Part E of the Act.
On July 25, 2006, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision.
FINDINGS OF FACT
- On September 17, 2002, you filed a claim under the Act for asbestosis, beryllium sensitivity, and chronic beryllium disease.
- You were diagnosed with asbestosis on August 12, 1982 and COPD on July 13, 1983.
- You were employed by DuPont at the Savannah River Site from May 16, 1983 to October 21, 1983; January 29, 1985 to June 11, 1997; and August 13, 1997 to December 2, 2002, and were exposed to asbestos during this employment.
CONCLUSIONS OF LAW
I have reviewed the evidence of record and the recommended decision.
You were employed as a covered DOE employee at a covered DOE facility for more than one year and were exposed to asbestos during that employment. Your asbestosis was diagnosed prior to first exposure at a DOE facility, but was contributed to by that exposure. Based upon a review of the case file materials, the U.S. Department of Labor Site Exposure Matrices (SEM), and the opinion of the district medical consultant, the evidence of record establishes that it is at least as likely as not that exposure to asbestos at the Savannah River Site was a significant factor in aggravating, contributing to or causing your asbestosis, and it is at least as likely as not that the exposure to asbestos was related to your employment at the Savannah River Site. 42 U.S.C. § 7385s-4(c). Therefore, I conclude that you are entitled to medical benefits for asbestosis retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.
However, under § 7385 of the Act, a payment of compensation to an individual shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable. 42 U.S.C. § 7385. The evidence of record indicates that you have received settlements totaling $20, 273.11, with a resulting surplus of $12,235.01. This surplus will be absorbed out of medical benefits payable for asbestosis under the Act (and any further lump-sum payments due in the future in Part E claims).
The district office submitted the medical evidence of record to a district medical consultant (DMC) for review. In his report of June 13, 2006, Dr. John Ellis stated that COPD was due to exposures to toxic substances at the Savannah River Site, including asbestos and borosilicates. Based upon a review of the case file materials, and the district medical consultant’s report, the evidence of record establishes that it is at least as likely as not that exposure to toxic substances at the Savannah River Site was a significant factor in aggravating, contributing to or causing your COPD, and it is at least as likely as not that the exposure to toxic substances was related to your employment at the Savannah River Site. 42 U.S.C. § 7385s-4(c). Therefore, I conclude that you are entitled to medical benefits for COPD retroactive to September 17, 2002. 42 U.S.C. § 7385s-8.
Beryllium sensitivity is established by an abnormal beryllium lymphocyte proliferation test (LPT) or a diagnosis of beryllium sensitivity. You have not submitted any LPT results or a diagnosis of beryllium sensitivity. The medical evidence is insufficient to establish that you were diagnosed with the claimed condition of beryllium sensitivity. 20 C.F.R. § 30.207. Therefore, you are not entitled to medical benefits under Part E of the Act for beryllium sensitivity.
There is no medical evidence to establish that you were diagnosed with the claimed condition of chronic beryllium disease. 20 C.F.R. § 30.207. Therefore, you are not entitled to compensation or medical benefits under Part E of the Act for that condition.
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
EEOICPA Fin. Dec. No. 18655-2002 (Dep’t of Labor, December 15, 2005)
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| The FAB decision or order you are about to view is no longer considered to be of precedential value and will not be considered binding on DEEOIC in its adjudication of future claims under the EEOICPA. This could have occurred because a later FAB decision was issued that overturned one or more of the conclusions of law contained in this decision or order, or because a portion of the EEOICPA relevant to this decision was amended by Congress after it was issued by the FAB. Even though the FAB decision or order you are about to view is no longer considered to be of precedential value, it has been retained in the database you are searching to document that there has been a change. |
NOTICE OF FINAL DECISION
This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.[1] A copy of this decision is being sent to your power of attorney.
STATEMENT OF THE CASE
On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the chronic beryllium disease (CBD) of your late spouse, [Employee], hereinafter referred to as “the employee.” Previously, you filed a Request for Review by Medical Panels for the asbestosis of the employee.
On the Form EE-3, Employment History, you stated the employee was employed as a senior production supervisor by Dupont at the Savannah River Site in Aiken, South Carolina, for the period of January 1953 through December 31, 1985. The Jacksonville district office found the employee worked at the Savannah River Site for the period of January 26, 1953 through December 31, 1953.
The medical evidence in the case file includes a September 2, 1993 chest x-ray report that shows interstitial pulmonary fibrosis and a November 19, 1993 CT scan report that shows local interstitial fibrosis. The file also includes a report of a pulmonary function test performed on March 29, 1994 that shows a mild obstruction. The medical evidence also shows the employee had chronic obstructive lung disease, a chronic respiratory disorder, since October 1992.
In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on August 20, 1949, and the employee’s death certificate, showing you were the employee’s spouse on the date of his death, May 4, 1997.
A Physicians Panel review under former Part D of the Act was completed. The Secretary of Energy accepted the Panel’s affirmative determination that the employee’s asbestosis and chronic obstructive pulmonary disease (COPD) were due to exposure to a toxic substance at a DOE facility. On April 22, 2005, the DOE advised you of the Panel’s affirmative determination.
The employee’s death certificate shows that the cause of his death was cardiac arrest as a consequence of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis.
On May 25, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits in the amount of $125,000 for the employee’s death caused by asbestosis.
On June 1, 2005, the Final Adjudication Branch received written notification from your power of attorney that you waived any and all objections to the recommended decision. The power of attorney also informed the Final Adjudication Branch that you had received settlements from several manufacturers of asbestos for the death of the employee.
On June 3, 2005, the claim was remanded for additional development because the Final Adjudication Branch had received evidence that that you had received a lawsuit settlement that may require offset.
On August 10, 2005, the Jacksonville district office received documentation of the third party settlements received by you for the employee’s asbestos exposure. The documentation included the Summons for Relief and Complaint, filed on November 5, 1996, and an accounting of the gross settlement in the amount of $47,873.50.
The settlement was paid to the estate of the employee and to you as the spouse and to your daughter; therefore, the district office applied a standard allocation of 50% to the award and subtracted a percentage for the costs of the suit and the attorney’s fees, which left a net settlement of $13,789.85. This amount was used to reduce your EEOICPA survivor benefits of $125,000, which left a balance of $111,210.16 due to you.
On October 7, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits of $125,000, less a $13,789.85 offset, for a total of $111,210.16 for the employee’s asbestosis and COPD.
On October 12, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision of October 7, 2005.
On November 17, 2005, the Jacksonville district office issued a recommended decision, concluding that you are entitled to $150,000 in survivor benefits for the employee’s CBD.
On November 25, 2005, the Final Adjudication Branch received written notification that you waived any and all objections to the recommended decision of November 17, 2005.
FINDINGS OF FACT
1. On April 4, 2005, you filed a Form EE-2, Claim for Survivor Benefits, for the CBD of your late spouse. You also filed a Request for Review by Physicians Panel for the asbestosis of your late spouse.
2. The employee was employed by Dupont at the Savannah River Site in Aiken, South Carolina, for the period of January 26, 1953 through December 31, 1953. Beryllium was present at this facility during the time of this employment.
3. A Physicians Panel review under former Part D of EEOICPA has been completed and the Secretary of Energy accepted the Panel’s affirmative determination that your spouse’s asbestosis and COPD were due to exposure to a toxic substance at a DOE facility.
4. The employee’s death certificate shows that the immediate cause of his death was cardiac arrest as a consequence of hypoxemia due to pulmonary fibrosis as a consequence of asbestosis. Therefore, asbestosis is established as contributing to the employee’s death.
5. Third party settlements for the employee’s asbestosis were received in the gross amount of $47,873.50.
CONCLUSIONS OF LAW
The Final Adjudication Branch has reviewed the record and the recommended decision of October 7, 2005, and concludes that the employee was a DOE contractor employee with asbestosis and COPD due to exposure to a toxic substance at a DOE facility and that asbestosis caused his death. 42 U.S.C. §§ 7384s(1), 7385s-4. Under the Act, you are the covered spouse and survivor. 42 U.S.C. §§ 7835s-3(d)(1), 7385s-3(c)(1).
A gross settlement was received from third parties for the employee’s asbestos exposure which must be used to offset your entitlement to survivor benefits in the amount of $125,000. 42 U.S.C. §§ 7385, 7385s-3(a)(1). The Final Adjudication Branch has independently computed the amount of the offset using the EEOICPA Part B/E Benefits Offset Worksheet, and finds the net settlement amount to be $13,789.96. 20 C.F.R. § 30.505. Therefore, the Final Adjudication Branch concludes that you are entitled to survivor benefits in the amount of $111,210.04 for the employee’s asbestosis. 42 U.S.C. § 7385s-3(a)(1).
Further, the Final Adjudication Branch has reviewed the medical evidence and finds that it is sufficient to establish that the employee had CBD. Under Part B of the Act, CBD may be established by the following:
(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including–
(i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
(ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.
(B) For diagnoses before January 1, 1993, the presence of–
(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
(ii) any three of the following criteria:
(I) Characteristic chest radiographic (or computed tomography (CT) abnormalities;
(II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
(III) Lung pathology consistent with chronic beryllium disease;
(IV) Clinical course consistent with a chronic respiratory disorder;
(V) Immunologic tests showing beryllium sensitivity.
42 U.S.C. § 7384l(13).
The case file does not contain evidence to establish a diagnosis of beryllium sensitivity, therefore the criteria for a diagnosis of CBD after January 1, 1993 cannot be met.
Applying the criteria for a diagnosis of CBD prior to the 1993, the evidence in the case file includes a September 2, 1993, chest x-ray report that shows interstitial pulmonary fibrosis and a November 19, 1993, CT scan report that shows local interstitial fibrosis. These findings are characteristic chest radiographic abnormalities of CBD which meets criteria I. The file also includes a report of a pulmonary function test taken on March 29, 1994, that shows a mild obstruction that meets criteria II; and the employee is shown to have a clinical course consistent with a chronic respiratory disorder since October 1992 which meets criteria IV. Therefore, the evidence in the case file meets three of the criteria for a diagnosis of CBD before January 1, 1993 and a diagnosis of CBD is established under the Act.
The record and the recommended decision of November 17, 2005 have been reviewed and the employee is a covered beryllium employee, as that term is defined in the Act; and the employee’s CBD is a covered occupational illness under Part B of the Act and implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13), 20 C.F.R. § 30.207.
The November 17, 2005 recommended decision is in accordance with the facts and the law in this case, and you are entitled to lump-sum survivor benefits in the amount of $150,000 for the employee’s chronic beryllium disease, pursuant to Part B of the Act. 42 U.S.C. § 7384s(a).
Jacksonville, FL
J. Mark Nolan
Hearing Representative
[1] This is the third decision on your claim by the Final Adjudication Branch (FAB). On July 22, 2002, the FAB denied your claim for the reason that the evidence in the case file did not establish that the employee had an occupational illness covered under the Act. On June 3, 2005, the claim was remanded for additional development because the FAB had received evidence that you had received a lawsuit settlement that may require offset.
EEOICPA Order No. 10074228-2009 (Dep’t of Labor, September 30, 2010)
REMAND ORDER
This remand order of the Final Adjudication Branch (FAB) concerns the above claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, the claim for lung cancer under Part E of EEOICPA is remanded to the Jacksonville district office for further consideration and the issuance of a new decision consistent with this remand order.
On April 11, 2008, the employee filed a Form EE-1 claiming benefits for asbestos-related lung disease. On December 9, 2009, he also filed a claim for lung cancer.
On November 3, 2008, FAB issued a final decision to accept the claim for asbestosis under Part E and found that the employee was a covered Department of Energy (DOE) contractor employee at the Oak Ridge National Laboratory (X-10) and Y-12 facilities in Oak Ridge, Tennessee. On March 13, 2009, FAB issued another final decision that awarded him impairment benefits in the amount of $127,500.00 for his 51% whole body impairment due to asbestosis. At the time of that decision, the employee confirmed that he had filed a tort suit based on asbestos exposure and a state workers’ compensation claim based on asbestosis, but had not received any settlements.
On August 25, 2010, the Jacksonville district office issued a recommended decision to accept the claim for lung cancer under Part E. The district office based its recommendation on the opinion of a district medical consultant (DMC) who stated that the employee’s lung cancer was at least as likely as not caused, contributed to, or aggravated by his asbestos exposure at both X-10 and Y-12. The district office calculated a surplus of $7,486.13 due to the receipt of tort suit settlements from the employee’s asbestos exposure lawsuit, which would be absorbed from payments for his medical treatment and from future lump-sum compensation payments.[1]
Section 7385 of EEOICPA directs that payment of compensation to an individual, or to a survivor of that individual, shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for workers’ compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under the Act. Before paying any benefits, all necessary steps must be taken to determine the correct amount of any offset. 20 C.F.R. § 30.505(a).
The district office used a Client Summary Settlement Detail and an Open Case Expenses report provided by the employee’s attorney to calculate the offset.[2] The Open Case Expenses report indicates that there are two line items of $750.00 and $51.45 that are due to medical providers but have not yet been paid by the employee or deducted from a settlement amount. Reasonable out-of-pocket costs and expenses involved in bringing a lawsuit are included in the calculation of the offset; this includes filing fees, travel expenses, record copy services, witness fees, court reporter costs, postage and long distance telephone calls.[3] However, costs of suit must be paid before they can be used in the offset calculations. The district office included these amounts in their calculation of the costs of the suit, although there was no indication that the employee had paid the bills. Elimination of those two items from the calculation results in a surplus amount of $8,281.95, a larger surplus than that calculated by the district office. Since it appears likely that further settlement payments will be forthcoming, the deduction of these costs may occur at a future date, when additional compensation under Part E becomes payable.
The regulations provide that at any time before the issuance of its decision, FAB may remand the claim to the district office for further development without issuing a decision. 20 C.F.R. § 30.317. Therefore, in light of the fact that calculation of the correct surplus amount is required, FAB is not issuing a final decision and the case is remanded to the district office.
Upon remand, the district office should review the tort suit settlement documents, verify that these are correct and complete, and correctly calculate and subtract the offset amount from the employee’s entitlement. This will require contact with the attorney of record to clarify the pending status of the costs in question. After obtaining the appropriate information and reviewing the facts, the district office should issue a new recommended decision under Part E.
Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative
Final Adjudication Branch
[1] The district office did not discuss the employee’s state workers’ compensation claim, but the most recent documentation from his attorney’s office indicates it has not been settled yet.
[2] Federal (EEOICPA) Procedure Manual, Chapter 3-0400 (September 2009).
[3] These amounts reduce the amount of the offset. Disallowable expenses include co-counsel fees or normal office expenses such as secretary/paralegal services or in-house copying costs. Federal (EEOICPA) Procedure Manual, Chapter 3-400.5b.
EEOICPA Order No. 20120607-12007-1 (Dep’t of Labor, July 12, 2012)
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EMPLOYEE: |
[Name Deleted] |
| CLAIMANT: | [Name Deleted] |
| FILE NUMBER: | [Number Deleted] |
| DOCKET NUMBER: | 20120607-12007-1 |
| DECISION DATE: | July 12, 2012 |
REMAND ORDER
This remand order of the Final Adjudication Branch (FAB) concerns the above survivor claim under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons set forth below, this survivor claim based on the employee’s death due to asbestosis and pulmonary fibrosis is remanded to the Jacksonville district office for further development, to be followed by the issuance of a new recommended decision consistent with this remand order.
On November 10, 2005, [Employee] filed a claim for benefits under Part E for the alleged conditions of asbestosis and pulmonary fibrosis. On May 29, 2009, FAB issued a final decision under Part E that accepted the employee’s claim for medical benefits, in part, for the covered illnesses of asbestosis, pulmonary fibrosis, and consequential heart disease as a covered Department of Energy (DOE) contractor employee who developed the illnesses during the performance of his duties at the Oak Ridge Gaseous Diffusion Plant (K-25) from August 28, 1953 to June 6, 1958, and at the Oak Ridge National Laboratory (X-10) from September 1958 to July 31, 1982. Both facilities are DOE facilities.[1] The awarded medical benefits were payable, however, subject to the absorption of a surplus in the amount $30,927.00 that resulted from the settlement of a tort suit for asbestos exposure. On May 3, 2010, FAB issued a second final decision under Part E, concluding that the employee was entitled to $167,500.00 for his 67% whole body impairment due to his asbestosis, pulmonary fibrosis and consequential heart disease reduced by the surplus of $30,927.00, leaving an award to him of $136,573.00. The employee died on March 28, 2012.
On August 24, 2012, the claimant filed a survivor claim under Part E of EEOICPA as the spouse of the employee, for his death due to asbestosis and pulmonary fibrosis. In support of this claim, the spouse submitted a copy of the employee’s death certificate, which verified his death on March 28, 2012, identified her as the employee’s surviving spouse, and listed the cause of death as asbestosis and pulmonary fibrosis. The claimant also submitted a marriage certificate showing that she had married the employee on June 10, 1946.
On May 10, 2012, the district office received a signed Form EN-16 in which the claimant stated that she had not received an additional settlement or award from a tort suit related to an exposure for which she or the employee would be eligible to receive compensation under EEOICPA since the issuance of the May 3, 2010 final decision. In this same form, the claimant indicated that neither she nor the employee had filed for or received any state workers’ compensation benefits on account of the employee’s covered illnesses.
On June 7, 2012, the Jacksonville district office issued a recommended decision to accept the claimant’s survivor claim under Part E based on the employee’s death due to his asbestosis and pulmonary fibrosis, and to award her $113,427.00 in survivor benefits. This recommended decision noted that the maximum amount of compensation payable on account of an employee’s covered illnesses under Part E was $250,000.00, and that the employee was paid $136,573.00 in Part E monetary benefits. It also informed the claimant that she had 60 days within which to file any objections to the recommended decision. On June 12, 2012, FAB received the claimant’s written notification that she waived any and all objections to the recommended decision.
Since the evidence establishes that the employee contracted pulmonary fibrosis from exposure to toxic substances at a DOE facility, this condition is a “covered illness” as defined under Part E of EEOICPA; therefore, the employee is a “covered DOE contractor employee.” And because the condition of pulmonary fibrosis caused the employee’s death, the claimant is entitled to survivor benefits for the employee’s death due to pulmonary fibrosis.
The basic survivor benefit under Part E of EEOICPA is $125,000.00. However, the maximum amount of compensation payable for all Part E claims related to an individual covered employee is $250,000.00. Therefore, the claimant’s award and the award to the employee together may not exceed $250,000.00. 42 U.S.C. § 7385s-12.
In this case, the district office calculated that the claimant’s entitlement to survivor benefits was $113,427.00 by subtracting the amount of the monetary award to the employee, after that award was reduced to absorb the surplus resulting from his tort settlement, from the maximum amount of compensation payable under Part E ($250,000.00 – $136,573.00 = $113,427.00). This was not correct. Doing so would result in a payment to the surviving spouse, when combined with the amount of the award to which the employee was entitled by virtue of his whole body impairment rating of 67%, that would exceed the $250,000.00 maximum cap ($167,500.00 + $113,427.00 = $280,927.00). It is important to remember that the employee received a monetary tort settlement that needed to be offset against his impairment award so as to avoid the “double recovery” that would otherwise result if he were compensated both by his tort suit and under EEOICPA.
Because accounting for a payment received due to a tort suit (as occurred here) or under a state workers’ compensation system will lower one or both of the amounts of the EEOICPA awards that are actually received, applying the maximum cap in the way that the district office did here can result in similarly situated claimants for which no offset or coordination is required being treated differently. The application of the maximum cap on EEOICPA benefits can only work fairly when it is applied uniformly. Therefore, the district office must reduce the maximum amount payable under Part E by the total impairment compensation awarded prior to the offset reduction ($250,000.00 – $167,500.00 = $82,500.00).
The regulations provide that at any time before the issuance of its decision, FAB may remand the claim to the district office for further development without issuing a decision. 20 C.F.R. § 30.317 (2012). Therefore, in light of the need for recalculation of the amount of the claimant’s survivor award, FAB is not issuing a final decision and the case is remanded to the district office. Upon return of the file, the district office should determine the spouse’s entitlement to survivor benefits consistent with this order and issue a new recommended decision.
Jacksonville, FL
Jeana F. LaRock
Hearing Representative
Final Adjudication Branch
[1] See http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm (retrieved July 2, 2012).
EEOICPA Fin. Dec. No. 1861-2006 (Dep’t of Labor, March 7, 2006)
NOTICE OF FINAL DECISION
This decision of the Final Adjudication Branch (FAB) concerns your claim for survivor benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). Your claim is approved for compensation in the amount of $275,000.
STATEMENT OF THE CASE
On August 2, 2001, you filed a claim (Form EE-2) for survivor benefits under EEOICPA with the Department of Labor (Part B) as the surviving spouse of [Employee]. The file contains a marriage certificate documenting [Employee]‘s marriage to [Employee’s spouse] on January 26, 1948 and the death certificate of [Employee] stating that he was married to [Employee’s spouse] (maiden name) at the time of his death on July 4, 1991.
On October 27, 2003, you also filed a claim (Form DOE 350.3) for assistance under EEOICPA with the Department of Energy (former Part D). On October 28, 2004, the President signed into law an amendment that replaces the former Part D program with a new program called Part E. Accordingly, the Part D claim you filed with the Department of Energy (DOE) was transferred to the Department of Labor for adjudication under Part E.
On the claim forms, you identified lung cancer as [Employee]‘s diagnosed condition for which you sought compensation. A pathology report, dated November 26, 1990, shows [Employee]‘s diagnosis of undifferentiated carcinoma, bronchial tissue and an operative note, signed by Vijay R. Patil, M.D., provides [Employee]‘s pre and post operative diagnosis as non-small cell carcinoma, right upper lobe. In addition, [Employee]‘s death certificate identifies “carcinoma – right lung” as “other significant condition” contributing to his death.
On the Employment History Form (EE-3), you stated that [Employee] worked for Union Carbide at the Y-12 and X-10 plants from 1950 through 1969. The Department of Energy (DOE) verified [Employee]‘s employment with Union Carbide at the X-10 plant from March 15, 1948 through November 20, 1953 and again from October 6, 1958 through August 1, 1969 and at the Y-12 plant from May 25, 1954 through January 27, 1956 and November 12, 1956 through July 11, 1958[1].
To determine the probability of whether [Employee] sustained lung cancer due to exposure to radiation during his employment at the Y-12 and X-10 plants, on November 19, 2002 the district office forwarded a complete copy of the case record to the National Institute for Occupational Safety and Health (NIOSH) for dose reconstruction. On December 6, 2005, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreed that it identified all of the relevant information provided to NIOSH. On December 12, 2005, NIOSH provided the district office with a copy of the dose reconstruction report. Using the dose estimates provided by NIOSH and the software program NIOSH-IREP version 5.4, the district office calculated the probability of causation for your spouse’s lung cancer as 69.72%.[2]
On January 17, 2006, the district office received your written confirmation that neither you nor the employee had received state workers’ compensation benefits in connection with the accepted condition, and that you do not believe the employee experienced wage-loss due to this illness. You also stated that the employee, at the time of death, had no minor children or children incapable of self support, who were not your natural or adopted children.
In addition, you stated that you received a settlement in the amount of $119,933.15 (less 1/3 attorney’s fee and $2,430.52 in expenses) in connection with a third party asbestos exposure personal injury lawsuit. The file contains a copy of the short form complaint you filed in the circuit court for Knox County, TN, which shows the cause of action taken against various employers for [Employee]‘s lung cancer due to asbestos exposure.
On January 26, 2006, the Jacksonville district office issued a recommended decision finding that you are entitled to compensation under EEOICPA in the amount of $275,000. On February 6, 2006, the FAB received written notification that you waive any and all objections to the January 26, 2006 recommended decision.
After considering the evidence of record and your waiver of objections, the FAB hereby makes the following:
FINDINGS OF FACT
1. [Employee] worked for a covered contractor, Union Carbide, at covered DOE facilities, the Y-12 and X-10 plants, during a covered period intermittently from March 15, 1948 through August 1, 1969.
2. [Employee] was diagnosed with a lung cancer after beginning employment at the Y-12 and X-10 plants.
3. The probability of whether [Employee]‘s lung cancer was caused by exposure to radiation during his employment at the Y-12 and X-10 plants was computed to be 74.89%.
4. You are the surviving spouse of [Employee].
5. You confirmed in writing that neither you nor the employee had received state workers’ compensation benefits in connection with the accepted condition, and that the employee, at the time of death, had no minor children or children incapable of self-support, who were not your natural or adopted children.
6. You confirmed in writing, and provided supporting documentation, that the settlement you received from a lawsuit due to your spouse’s lung cancer was based on his exposure to asbestos.
Based on the above noted findings of fact, the FAB hereby also makes the following:
CONCLUSIONS OF LAW
To facilitate a claim for cancer under Part B, the Act defines a “covered employee with cancer” as, among other things, a DOE or DOE contractor employee who contracted that cancer after beginning employment at a DOE facility, if and only if that individual is determined to have sustained that cancer in the performance of duty. 42 U.S.C. § 7384l(9)(B). To establish that the employee “sustained that cancer in the performance of duty,” § 30.115 of the implementing regulations instructs OWCP to forward a complete copy of the case record to NIOSH for dose reconstruction to determine whether the cancer was “at least as likely as not” (50% probability or higher) caused by exposure to radiation while employed at a DOE facility. 20 C.F.R. § 30.115.
The dose reconstruction was performed in accordance with 42 C.F.R. Part 82, Methods for Radiation Dose Reconstruction under the EEOICPA and the probability of causation was computed in accordance with 42 C.F.R. Part 81, Guidelines for Determining the Probability of Causation Under the EEOICPA. The FAB independently analyzed the information in the NIOSH report, confirming that the factual evidence reviewed by NIOSH was properly addressed, and that there is a 74.89% probability that [Employee]‘s cancer was related to his employment at the Y-12 and X-10 plants. Since the probability of causation is greater than 50%, it is determined that your spouse incurred cancer in the performance of duty at a DOE facility. Therefore, the evidence of record establishes your spouse as a “covered employee with cancer” as defined above.
The evidence of records further establishes that you are the employee’s “spouse,” as defined by 42 U.S.C. § 7384s(e)(3), and his sole eligible beneficiary. As such, the FAB hereby finds that you are entitled to compensation under Part B of EEOICPA in the amount of $150,000 pursuant to 42 U.S.C. § 7384s(e)(1)(A).
To facilitate a claim under Part E, the Act defines a “covered DOE contractor employee” as a DOE contractor employee determined to have contracted a covered illness through exposure at a DOE facility. 42 U.S.C. § 7385s(1). To establish that the employee contracted an illness through toxic exposure, § 7385s-4 provides that “A determination under part B that a Department of Energy contractor employee is entitled to compensation under that part for an occupational illness shall be treated for purposes of this part as a determination that the employee contracted that illness through exposure at a DOE facility.” 42 U.S.C. § 7385s-4(a). Moreover, in order to receive the basic survivor benefits payable under Part E, which provides additional compensation for DOE contractor employees, the evidence must further show that the accepted condition was a significant factor in aggravating, contributing to or causing the employee’s death.
Based on the acceptance of your claim for the employee’s lung cancer under Part B of EEOICPA in this decision, it is further determined that your spouse contracted lung cancer due to exposure to a toxic substance, radiation, at a DOE facility. Therefore, the evidence of record establishes your spouse as a “covered DOE contractor employee,” as defined above, with a covered illness which aggravated, contributed to, or caused his death. 42 U.S.C. §§ 7385s-4(a) and 7385s-3(a).
The evidence of record further establishes that you are the employee’s “covered spouse,” as defined by 42 U.S.C. § 7385s-3(d), and his sole eligible beneficiary. As such, the Final Adjudication Branch further finds that you are entitled to compensation under Part E of EEOICPA in the amount of $125,000 pursuant to 42 U.S.C. § 7385s-3(a)(1).
Section 7385 of the Act states that compensation under EEOICPA shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for workers’ compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under this subchapter. 42 U.S.C. § 7385. The evidence of file shows that you received a settlement award based on your spouse’s exposure to asbestos. Since compensation awarded to you in this decision is based on exposure to radiation, the FAB concludes that an offset is not required.
Accordingly, your claim for compensation under EEOICPA in the amount of $275,000, as provided for under 42 U.S.C. §§ 7384s and 7385s-3(a)(1), is hereby approved.
Washington, DC
Vawndalyn B. Feagins
Hearing Representative
Final Adjudication Branch
[1] The Y-12 plant is identified on the DOE Covered Facility List as a DOE facility with Union Carbide listed as a covered contractor from 1947 through 1984. The X-10 plant is identified as a DOE facility with Union Carbide listed a covered contractor from 1948 through 1984. http://www.eh.doe.gov/advocacy/faclist/showfacility.cfm (As of March 1, 2006)
[2] Effective February 28, 2006, NIOSH-IREP lung model version 5.5 replaced version 5.4 which increased [Employee]’s PoC to 74.89%.
EEOICPA Fin. Dec. No. 10010854-2006 (Dep’t of Labor, June 7, 2006)
NOTICE OF FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD
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, 42 U.S.C. § 7384 et seq. For the reasons set forth below, your claim is accepted.
STATEMENT OF THE CASE
On November 10, 2003, you filed a Request for Review by Physicians Panel with the Department of Energy, based on the lung cancer of your late spouse, [Employee], hereinafter referred to as “the employee.” A pathology report establishes the employee was diagnosed with lung cancer on July 3, 2000.
The evidence of record establishes that the employee worked for Maxon Construction and Charles Hobson Company at the K-25 gaseous diffusion plant for a period in excess of 250 workdays prior to 1992 and was monitored through the use of dosimetry badges for exposure to radiation.
A previous Final Decision was issued by the Department of Labor under Part B of the Act on April 12, 2005, concluding that you were entitled to compensation for the employee’s lung cancer since he was a member of the Special Exposure Cohort with a specified cancer. This mandates a finding that the employee’s illness was contracted through exposure to a toxic substance at the DOE facilities where he worked. 42 U.S.C. § 7385s-4(a). The employee’s death certificate shows that the employee died as a consequence of lung cancer. 42 U.S.C. § 7385s-3.
In support of your claim for survivorship, you submitted your marriage certificate and the employee’s death certificate. The marriage certificate, showing you married the employee on May 6, 1953, and the employee’s death certificate, showing you were married to the employee on the date of his death, October 5, 2001, establishes that you were the employee’s spouse for at least a year prior the date of his death.
On August 23, 2005, the district office received your written confirmation that neither you nor the employee had received any settlement or award from a workers’ compensation claim in connection with the accepted condition, and that the employee, at the time of his death, had no minor children or children incapable of self-support,who were not your natural or adopted children, and that you were not asserting a claim for wage-loss.
On April 14, 2006, the Jacksonville district office issued a recommended decision, concluding that you are entitled to survivor benefits of $125,000 for the employee’s death due to lung cancer. The recommended decision also offset this award by $17,705.37 based on your recovery in a tort suit.
OBJECTION
On April 20, 2006, the Final Adjudication Branch received written notification that you objected to this offset because the tort suit arose out of the employee’s toxic exposure to asbestos.
The statute states that, “payment of compensation to an individual, or to a survivor of that individual, under this subchapter shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for worker’s compensation), against any person, that is based on injuries incurred by that individual on account of the exposure for which compensation is payable under this subchapter.” 42 U.S.C. § 7385. This statute states that the offset requirement is triggered when the compensation payable under EEOICPA and the lawsuit settlement are based on the same exposure.
The tort complaint filed on October 26, 1994, by you and the employee in the Circuit Court for Knox County, Tennessee, was based strictly on exposure to asbestos.
In contrast, the April 14, 2006 recommended decision concluding that you were entitled to $125,000 was based on 42 U.S.C. § 7385s-4(a) which states that a determination under Part B that the employee was a Department of Energy (DOE) contractor employee entitled to compensation for an occupational illness is treated as an automatic determination that the employee contracted that illness through work-related exposure to a toxic substance at the DOE facility under Part E.
Since the Part B claim was based on the finding that the employee contracted lung cancer due to exposure to radiation, the automatic determination under Part E that the employee was entitled compensation must necessarily be based on the same radiation exposure that led to the award under Part B.
Therefore, as the claim under Part E and the lawsuit were based on exposure to two different toxic substances – radiation and asbestos – the offset requirement of 42 U.S.C. § 7385 is not triggered. There is no need for any offset of the Part E award due to the lawsuit settlement that was received.
FINDINGS OF FACT
- On November 10, 2003, you filed a Request for Review by Physicians Panel with the Department of Energy under EEOICPA.
- The evidence of record establishes that the employee was employed by Maxon Construction and Charles Hobson Company at the K-25 gaseous diffusion plant.
- You submitted medical evidence establishing that the employee was diagnosed with lung cancer on July 3, 2000.
- A final decision was issued by the Department of Labor under Part B of the Act on April 12, 2005, concluding that the employee was a covered employee, and that you were entitled to compensation for the employee’s lung cancer. This requires a finding that the employee’s illness was contracted through exposure to a toxic substance at the K-25 gaseous diffusion plant, a DOE facility.
- The employee’s death certificate shows that his death was a consequence of lung cancer.
- You meet the definition of a survivor under Part E.
- You confirmed in writing that neither you nor the employee had received any settlement or award from a lawsuit (based on exposure to radiation) or workers’ compensation claim in connection with the accepted condition, and that the employee, at the time of his death, had no minor children or children incapable of self-support, who were not your natural or adopted children.
- On April 14, 2006, the Jacksonville district office issued a recommended decision which included an offset for your tort award.
- On April 20, 2006, the Final Adjudication Branch received written notification that you objected to this offset because the tort suit arose out of the employee’s exposure to asbestos.
CONCLUSIONS OF LAW
The Final Adjudication Branch has reviewed the record and the recommended decision of April 14, 2006, and concludes that the employee was a DOE contractor employee with lung cancer due to exposure to a toxic substance at a DOE facility and that his death was a consequence of this condition. 42 U.S.C. §§ 7385s-1, 7385s-4. Therefore, the Final Adjudication Branch hereby concludes that you are entitled to survivor benefits of $125,000 for the employee’s lung cancer. 42 U.S.C. § 7385s-3(a)(1).
As the claim under Part E and the lawsuit were based on exposure to two different toxic substances – radiation and asbestos – the offset requirement of 42 U.S.C. § 7385 is not triggered. There is no need for any offset of the Part E award due to the lawsuit settlement that was received.
Jacksonville, FL
Douglas J. Helsing
Hearing Representative