Docket Number: 10013372-2006

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	10013372-2006
DECISION DATE:	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