Docket Number: 10017018-2006

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10017018-2006

DECISION DATE: July 18, 2007

 

NOTICE OF FINAL DECISION AFTER REVIEW

OF THE WRITTEN RECORD

 

This is the decision of the Final Adjudication Branch (FAB) concerning 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. After a review of the record, FAB accepts the claim for impairment benefits under Part E of EEOICPA based on the covered illness of pharyngeal cancer and consequential condition of an unspecified disorder of the teeth and supporting structures.

 

STATEMENT OF THE CASE

 

On February 19, 2002, [Employee] filed a request for a review by a Physicians Panel under the former Part D of EEOICPA with the Department of Energy (DOE), and on July 16, 2003 he filed a Form EE-1 claiming for benefits under Part B with the Department of Labor. Both of these claims were based on cancer of the tongue, throat and lymph nodes.

 

On May 21, 2002, FAB issued a final decision accepting [Employee]’s claim for pharyngeal cancer under Part B. In that decision, FAB concluded that he was a member of the Special Exposure Cohort because he belonged to the class of employees who worked at the Amchitka Island Nuclear Explosion Site and had been diagnosed with a “specified” cancer (of the pharynx) on October 31, 2001. FAB therefore awarded [Employee] $150,000.00 and medical benefits for cancer of the pharynx.

 

On March 31, 2006, FAB also issued a final decision accepting [Employee]’s claim for pharyngeal cancer under Part E, as well as for a consequential condition of an unspecified disorder of the teeth and supporting structures. In that second decision, FAB concluded that he was a covered DOE contractor employee with a “covered” illness (pharyngeal cancer), and that he had contracted that covered illness through exposure to a toxic substance while working at a DOE facility. FAB therefore awarded him medical benefits under Part E of EEOICPA, retroactive to February 19, 2002, for both his pharyngeal cancer and the consequential condition of an unspecified disorder of the teeth and supporting structures.

 

On May 10, 2006, the district office received [Employee]’s letter requesting an impairment rating for his cancer of the pharynx and his accepted consequential condition. An impairment rating was performed by a District Medical Consultant (DMC), Dr. Coleen Weese. In her March 16, 2007 report, Dr. Weese concluded that [Employee] had a 15% permanent impairment of the whole person due to his pharyngeal cancer with metastasis to the lymph nodes.

 

The district office then referred the claim to another DMC, Dr. Marc Bodow, for a complete impairment rating that also included the accepted consequential condition of an unspecified disorder of the teeth and supporting structures, including xerostomia. In his April 7, 2007 report, Dr. Bodow indicated that [Employee] had a 21% impairment of the whole person due to the pharyngeal cancer (with metastasis) and the disorder of the teeth and supporting structures.

 

The Seattle district office conducted a telephone interview with [Employee] in which he stated that he had received a settlement of $18,231.62 of state workers’ compensation benefits related to the medical conditions for which he had claimed EEOICPA benefits. The record includes a Compromise and Release from the Alaska Workers’ Compensation Board that establishes that he received a settlement of $18,231.62 for his cancer due to radiation exposure on Amchitka Island.

 

On April 12, 2007, the Seattle district office issued a recommended decision to accept [Employee]’s claim for permanent impairment based on his cancer of the pharynx and the consequential disorder of the teeth and supporting structures under Part E. The district office found that he had a 21% impairment of the whole body as the result of those covered illnesses, and that he was entitled to $2,500.00 for each percentage point (21 x $2,500.00 = $52,500.00), which had to be coordinated with the $18,231.62 he had received in state workers’ compensation benefits, leaving a net recommended award of $34,268.38.

 

On April 23, 2007, FAB received [Employee]’s affirmation that neither he nor anyone in his family had ever filed for or received any settlement or award from a tort suit related to his exposure to radiation, and that he had not pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation. He also confirmed that he had filed for and received an $18,231.62 settlement of a state workers’ compensation claim for the same medical conditions he had claimed for under EEOICPA.

 

OBJECTIONS

 

On May 7, 2007, FAB received [Employee]’s letter objecting to the recommended decision, indicating that he felt that 21% was not completely fair, and that he could only do 30% of what he used to do before he was diagnosed with cancer in 2001. In that letter [Employee], listed a number of ways in which he alleged that his quality of life had decreased, such as the weakness he experienced due to the radiation treatments he was receiving for his cancer, and his inability to enjoy activities or travel. Lastly, he disagreed with the coordination of his Part E benefits with the settlement he had received from the Alaska Workers’ Compensation program.

 

In a subsequent June 4, 2007 submission, [Employee] provided FAB with letters written by his two best friends with their observations of his condition. He also indicated that he had had an appointment three weeks ago with his physician, who had told him that his exhaustion was due to the radiation doses he had been receiving in his neck and throat. Once the recommended decision on impairment has been issued and forwarded to FAB for the issuance of a final decision, an employee may submit new medical evidence or an additional impairment evaluation to challenge the evaluation upon which the recommended decision was based. However, the employee bears the burden of proving that the new medical evidence or new impairment evaluation is of greater probative value than the evaluation used by the district office to determine the impairment rating. 20 C.F.R. § 30.908 (2007). In this case, [Employee] did not provide any medical evidence or an impairment evaluation that is of greater probative value than the impairment evaluation received from the second DMC. In his report, that DMC provided medical rationale supporting his whole body permanent impairment rating of 21%, and explained how he had arrived at that percentage using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides).

 

As for the state workers’ compensation benefits [Employee] received, 20 C.F.R. § 30.626 notes that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) must reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits. If a covered Part E employee or a survivor of such employee receives benefits through a state workers’ compensation program pursuant to a claim for the same covered illness, DEEOIC will first determine the dollar value of the benefits received from a state workers’ compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness. DEEOIC will then deduct the reasonable costs of obtaining those state workers’ compensation benefits, such as attorney fees and certain itemized costs (like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to DEEOIC for its consideration. The Part E benefits that will be reduced consist of any unpaid monetary payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid Part E benefits, DEEOIC will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first. If the amount to be subtracted exceeds the monetary payments currently payable, DEEOIC will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).

 

The record establishes that [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for mouth and throat cancer due to his work-related exposure to radiation at Amchitka Island. It also establishes that his employers and the employers’ insurance carriers paid a separate amount of $6,768.38 for his attorney fees.

 

After considering the evidence of record, FAB hereby makes the following:

 

FINDINGS OF FACT

 

1. On February 19, 2002, [Employee] filed a claim under EEOICPA with DOE, and also with the Department of Labor on July 16, 2003.

 

2. FAB issued a final decision accepting [Employee]’s Part B claim for cancer of the pharynx on May 21, 2002.

 

3. FAB also issued a final decision accepting [Employee]’s Part E claim for cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures on March 31, 2006.

 

4. [Employee] has a 21% whole body permanent impairment due to cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth and supporting structures, resulting in a gross impairment award of $52,500.00. Following coordination of this gross award with [Employee]’s state workers’ compensation benefits of $18,231.62, the net impairment award payable is $34,268.38.

Based on the above-noted findings of fact, FAB hereby also makes the following:

 

CONCLUSIONS OF LAW

 

[Employee] has previously been determined to be a covered DOE contractor employee who contracted cancer of the pharynx with metastasis to the lymph nodes and a consequential disorder of the teeth through exposure to a toxic substance (radiation) at a DOE facility, the Amchitka Island Nuclear Explosion Site. Applying the provisions of 42 U.S.C. § 7385s-2 and 20 C.F.R. § 30.901, he has an impairment rating of 21% in accordance with the Guides and the gross amount of his impairment award is $52,500.00. However, [Employee] received a state workers’ compensation settlement in the amount of $18,231.62 for the same accepted conditions. Therefore, his Part E benefits must be coordinated with those state workers’ compensation benefits, and the net amount of impairment benefits payable following coordination is $34,268.38.

 

The undersigned notes [Employee]’s objections to the recommended decision; however, they do not change the outcome of this case. FAB is bound by the provisions of EEOICPA and the regulations, and has no authority to depart from them. Accordingly, [Employee] is entitled to compensation for his permanent impairment in the amount of $34,268.38 under Part E.

 

Seattle, Washington

 

 

 

 

Kelly Lindlief

Hearing Representative

Final Adjudication Branch