Docket Number: 10008601-2006

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	10008601-2006
DECISION DATE:	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