Docket Number: 10013332-2007

U.S. DEPARTMENT OF LABOR

EMPLOYMENT STANDARDS ADMINISTRATION OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the employee’s 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 additional impairment benefits is accepted under Part E of EEOICPA.

STATEMENT OF THE CASE

On May 20, 2003, the employee filed Form EE-1 with the Department of Labor, claiming benefits under Part B of EEOICPA, and also a request for assistance under former Part D of EEOICPA with the Department of Energy (DOE), for the condition of lung cancer. Thereafter, on October 28, 2004, Congress repealed Part D of EEOICPA and enacted new Part E. Because of this, DEEOIC proceeded to adjudicate the employee’s Part D claim under Part E and on August 31, 2007, the FAB issued a final decision awarding the employee impairment benefits for a 10% whole-body impairment due to his “covered illness” of lung cancer.

On December 13, 2007, the employee filed another Form EE-1, claiming additional benefits under Part E for the illness of asbestosis. On February 1, 2008, the FAB issued a final decision finding that he was diagnosed with the covered illness of asbestosis on November 2, 2007, and concluding that he was a DOE contractor employee entitled to medical benefits for the accepted illness of asbestosis under Part E of the Act.

On February 5, 2008, the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) received the employee’s request for increased impairment benefits based on his additional covered illness of asbestosis. The employee elected to have Dr. Ronald R. Cherry, of Sweetwater Hospital Association in Sweetwater, Tennessee, rate his impairment.[1] In a February 27, 2008 impairment evaluation, Dr. Cherry determined, using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Table 5-12, that the employee had reached maximum medical improvement and that he had a whole-body impairment of 37% based on his covered illnesses of both lung cancer and asbestosis.

On March 4, 2008, the Jacksonville district office of DEEOIC issued a recommended decision finding that the employee’s whole-body impairment of 37% for both asbestosis and lung cancer, less the previously paid impairment benefits of 10% for lung cancer, yielded a net increased whole-body impairment of 27%. Accordingly, the district office recommended that the employee be awarded a lump-sum of $67,500.00 for his additional 27 percentage points of whole-body impairment.

On March 10, 2008, the FAB received the employee’s statement waiving the right to object to the recommended decision. Accordingly, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On May 20, 2003, the employee filed a claim under former Part D of EEOICPA for lung cancer and under Part E on December 13, 2007 for asbestosis.

2. On August 31, 2007, the FAB issued a final decision awarding the employee benefits under Part E of a 10% whole-body impairment due to lung cancer.

3. On October 18, 2007, the FAB issued a final decision concluding that the employee was also entitled to Part E benefits for the additional covered illness of asbestosis.

4. The employee’s whole-body impairment rating for lung cancer and asbestosis is 37%.

Based on the above-noted findings of fact, the undersigned hereby makes the following conclusions of law:

CONCLUSIONS OF LAW

The implementing regulations state that if a claimant “waives any objections to all or part of the recommended decision, the FAB may issue a decision accepting the recommendation of the district office, either in whole or in part.” 20 C.F.R. § 30.316(a).

Because the employee has a whole-body impairment due to the covered illnesses of lung cancer and asbestosis, he is eligible for impairment benefits under Part E of the Act. 20 C.F.R. § 30.900(b). The employee’s whole-body impairment rating of 37% for asbestosis and lung cancer, less the previously paid 10% whole-body impairment for lung cancer alone, yields a remaining balance of 27% whole-body impairment. Therefore, the employee is entitled to payment of an additional $67,500.00. This amount represents the remaining balance for both conditions of 27% whole-body impairment ($2,500.00 multiplied by 27 percentage points of impairment).

Jacksonville, FL

Armando J. Pinelo

Hearing Representative

Final Adjudication Branch