U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH
 DOL Seal

REMAND ORDER

This 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. Pursuant to the authority granted by 20 C.F.R. § 30.317 (2007), the claim for impairment under Part E of EEOICPA based on pulmonary fibrosis and silicosis, moderate to severe, is remanded to the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) to obtain clarification from the District Medical Consultant (DMC) who performed the impairment evaluation, and for the issuance of a new recommended decision.

On December 13, 2004, [Employee] filed a claim under Part B of EEOICPA for pulmonary fibrosis and silicosis. On February 8, 2005, a final decision was issued awarding him monetary and medical benefits under Part B for the condition of pulmonary fibrosis and silicosis, moderate to severe, after confirmation was received from the Department of Justice that he was awarded $100,000.00 under section 5 of the Radiation Exposure Compensation Act (RECA) for the same conditions. Another final decision was issued by FAB on May 25, 2007, awarding him medical benefits for the treatment of pulmonary fibrosis and silicosis under Part E.

On April 16, 2007, [Employee] notified the district office of his desire to pursue a claim for impairment and wage-loss benefits under Part E. He elected to have his impairment evaluation conducted by a Department of Labor DMC in lieu of a physician of his choosing, so on October 24, 2007, the case file was referred to a DMC for an impairment evaluation. On November 13, 2007, the district office received a copy of that impairment evaluation. Evaluating the results of [Employee]’s June 13, 2007 medical history, physical examination and pulmonary function test (PFT) results, as well as a review of the medical evidence in the file, the DMC determined that he was at maximum medical improvement and rated his whole body impairment as 0%, based on the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Chapter 5.

On November 14, 2007, the Denver district office issued a recommended decision under Part E to deny the claim for impairment benefits based on the DMC’s 0% impairment rating. The case was then forwarded to FAB for the issuance of a final decision.

Upon review of the impairment evaluation, FAB notes that the DMC obviously reviewed the medical evidence with the purpose of determining whether or not the conditions accepted by the Department of Justice under RECA, and subsequently by DEEOIC under Parts B and E of EEOICPA, were supported by the medical evidence prior to assigning a rating, because fully five pages of this ten-page evaluation were devoted to an analysis of what diagnoses were supported by the objective medical evidence and which were not. However, the role of a DMC in an impairment evaluation is not to question, or to seek to disprove, a medical finding made by an adjudicatory agency, especially if that agency must use a legal/administrative definition of a disease rather than one that is generally accepted in the medical profession.

As noted above, [Employee] received an award under section 5 of RECA from the Department of Justice, based on their rules and regulations for the medical conditions of pulmonary fibrosis and silicosis. The Department of Justice has the exclusive authority to adjudicate claims filed under section 5 of RECA, and determines which, if any, of the medical conditions compensable under section 5 have been established. Under Part B of EEOICPA, DEEOIC pays an additional $50,000.00 in monetary benefits to recipients of an award under section 5 of RECA and provides the employee (if the employee was the recipient of the award) with medical benefits to treat the conditions that were accepted by the Department of Justice. These same conditions are then automatically presumed under Part E of EEOICPA to have arisen of the exposure of the employee to toxic substances at a covered facility, i.e., to be “covered” illnesses.

The following excerpts from the impairment evaluation indicate the intent of the DMC was to disprove [Employee]’s covered illnesses, rather than to assess his lung function:

[Employee] has been accepted as having been exposed to the environmental hazards of uranium mining, primarily silicosis/pulmonary fibrosis. . . . There are certain conditions required for the diagnosis of pulmonary fibrosis/silicosis. [Employee] has no radiological findings of pulmonary fibrosis/silicosis, which would include bilateral nodules and perhaps calcification of hilar lymph nodes (the radiological findings are inconsistent with silicosis/pulmonary fibrosis; positive findings are necessary for a diagnosis of silicosis/pulmonary fibrosis).

* * *

[Employee] was a uranium worker/miner, but we have no information on his actual exposure (an actual exposure history is necessary for a diagnosis of silicosis/pulmonary fibrosis). Observers are cautioned not to attribute pulmonary function testing results to silicosis when the patient has other medical problems such as obesity ([Employee] is/was obese), has asthma ([Employee] has severe persistent asthma), hay fever ([Employee] has multiple environmental allergies and rhinitis), and a history of chest trauma ([chest x-ray] revealed old scapula fracture). Consequently, due to [Employee]’s history of severe persistent asthma, COPD resultant from the asthma and/or smoking history, obesity, environmental allegories, history of chest trauma, inadequate exposure history, and reversibility of pulmonary function results with a bronchodilator, it must be concluded that [Employee]’s pulmonary function testing results are not due to his exposures while working as a uranium miner.

* * *

If there is a component of his lung disease that is due to his pulmonary fibrosis/silicosis, it is minimal at this time and cannot be used as a basis for an impairment rating. . . .

[Employee]’s impairment rating was 0% whole person impairment, even though the DMC conceded that he had considerable respiratory impairment and opined that this impairment is due to severe and persistent asthma, obesity, history of chest trauma, and respiratory allegories (environmental allergies).

The Federal (EEOICPA) Procedure Manual, Chapter E-900 (February 2006) precludes the apportionment of the permanent impairment of an organ or body function, which in this case is the lung, between an employee’s covered and non-covered illnesses. If any portion of the impairment is due to a covered illness, the entire percentage of impairment for that organ is compensable. In the present case, the DMC admits in her findings that [Employee] may have minimal impairment of the lung due to pulmonary fibrosis/ silicosis, and then proceeds to apportion the majority of that impairment to other non-covered illnesses and conditions, thereby justifying a 0% impairment based on the covered illnesses as found by both the Department of Justice and DEEOIC.

Pursuant to 20 C.F.R. § 30.317, FAB may “at any time before the issuance of its decision remand the claim to the district office for further development without issuing a decision.” Accordingly, FAB remands this case to the Denver district office of DEEOIC so it can ask the DMC who conducted [Employee]’s impairment rating to provide the percentage of impairment for the entire permanent loss of his lung function, without any apportionment. Following its receipt of this clarification, a new recommended decision should be issued on this claim for impairment benefits under Part E. If the DMC is unable to provide this clarification, then the case should be referred to another DMC for a proper impairment evaluation.

Denver, Colorado

Paula Breitling

Hearing Representative

Final Adjudication Branch