Docket Number: 10033309-2006

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10033309-2006

DECISION DATE: November 9, 2007

NOTICE OF FINAL DECISION FOLLOWING A HEARING

 

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. For the reasons set forth below, the claim is approved for an award of impairment benefits under Part E of EEOICPA in the amount of $17,300.00 (an award of 17% in impairment benefits of $42,500.00, reduced because of the required coordination with state workers’ compensation benefits by $25,200.00) based on the employee’s covered illness of lung cancer. A decision on the claim for prostate cancer under both Parts B and E is deferred pending further development.

 

STATEMENT OF THE CASE

 

On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E (which was formerly Part D) of EEOICPA. At that time, he identified lung cancer as the condition resulting from your employment at a Department of Energy (DOE) facility. DOE confirmed that [Employee] was employed at the K-25 Plant in Oak Ridge, Tennessee from July 6, 1953 to April 7, 1961, and at the Y-12 Plant in Oak Ridge, Tennessee from January 16, 1967 to July 31, 1985. In support of his claim, [Employee] submitted an August 11, 1994 surgical pathology report, signed by Dr. Stephen H. Harrison, showing a diagnosis of moderately to poorly differentiated adenocarcinoma of the left lung.

 

On January 7, 2002, FAB issued a final decision accepting his claim under Part B, finding that he was a member of the Special Exposure Cohort, that he had been diagnosed with lung cancer, which is a “specified” cancer under EEOICPA, and awarding him compensation in the amount of $150,000.00 and medical benefits under Part B for lung cancer. On April 17, 2006, FAB also accepted [Employee]’s claim under Part E, finding that he had contracted lung cancer through exposure to a toxic substance at a DOE facility, and awarded him medical benefits for his “covered” illness of lung cancer under Part E.

 

On June 5, 2006, the district office received [Employee]’s request for an impairment evaluation under Part E and elected to have a Department of Labor physician perform the rating. To determine his impairment rating, the district office referred [Employee]’s case file to a District Medical Consultant (DMC). In a March 29, 2007 report, the DMC reviewed the medical evidence of record and concluded that it established that [Employee] had reached maximum medical improvement. Using the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), the DMC concluded that [Employee] had a 5% whole person impairment due to his accepted lung cancer.

 

On November 8, 2006, the district office received a copy of [Employee]’s state workers’ compensation settlement of $25,200.00 for the condition of lung cancer.

 

On March 15, 2007, the Jacksonville district office issued a recommended decision finding that [Employee]’s covered illness of lung cancer resulted in a 5% whole body impairment and that he was entitled to $12,500.00 in impairment benefits under Part E of EEOICPA. The district office also recommended that the $25,200.00 state workers’ compensation settlement be coordinated with his impairment benefits, leaving a surplus of $12,700.00 to be recovered out of future medical benefits until it was absorbed.

 

OBJECTIONS

 

On May 14, 2007, [Employee] timely filed a written objection to the recommended decision’s proposed award and requested an oral hearing to present his objections, which was held on August 1, 2007 in Oak Ridge, Tennessee. [Employee] was represented by Christopher H. Hayes, an attorney with the Energy Workers’ Legal Resource Center. On August 8, 2007, a copy of the transcript of the hearing was sent to [Employee].

 

[Employee] submitted exhibits at the hearing, as follows:

 

• A copy of his state workers’ compensation settlement agreement, showing that he was paid $25,200.00.
• A copy of an April 5, 2005 report by Dr. William R.C. Stewart, III, concluding that [Employee] had a 15% impairment to the whole person based on his lung cancer, without recurrence, which also noted that his impairment would be much higher if the cancer returned.
• A copy of an August 23, 2006 letter and attached medical report from Dr. R. Hal Hughes, noting that [Employee] was seen in his office on that date and that he had a 50% impairment to the whole person, based on the Fifth Edition of the Guides, Table 5-12.
• A copy of a June 13, 2007 report of a medical examination, in which Dr. Norm Walton concluded that [Employee] had a 17% impairment of the whole person based on his lung cancer.

 

At the hearing, [Employee] presented the following objections:

 

1. He stated that he was seen by Dr. Stewart to obtain an impairment rating of 15% in 2005, and that that was the report upon which his state workers’ compensation settlement was based. [Employee] also stated that on August 23, 2006, Dr. Hughes, his current treating physician, supplied a letter referencing a 50% impairment to the whole person. He stated that he saw Dr. Norm Walton at his attorney’s request on June 13, 2007, and that he gave him a 17% impairment rating to the whole person after a “hands-on examination” and “repeat breathing tests.”
2. [Employee] stated that when he is seen in a doctors’ office, it is usually after he has taken his medication, such as an inhaler, which improves his breathing function. He stated that his condition varies from day to day and within the day, being worse at night, especially if he does sleep propped up, and that he is not able to do activities such as “mow the yard.” [Employee] argued that the DMC’s report did not take these considerations into account. He also stated that he was not given the opportunity to review the DMC’s report and object prior to the issuance of the recommended decision.
3. [Employee] argued that, as to the probative value of these varying impairment rating reports, three of the four doctors writing reports had actually examined him, and that these physicians in terms of their opinions, present a picture that’s more probative to the Department of Labor and present a more clear, clinical assessment of his impairment than the DMC’s evaluation based on the records with which he was provided. He argued that the report of his treating doctor, Dr. Hughes, would have the most probative opinion, as pulmonary function testing may be “somewhat variable” despite his being at maximum medical improvement, and he is Dr. Hughes’ regular patient.
4. [Employee] also stated that his pulmonary function has been getting progressively worse, as compared to the mid-1990s when he had his surgery. Thus, he alleged that he was worse than he was in 2005, when Dr. Stewart did his evaluation.

 

Regarding these objections, FAB notes that impairment ratings are based on an individual’s current condition at maximum medical improvement, and that [Employee] has four separate impairment rating reports in his file from four different physicians. The DMC’s opinion is the only one given without benefit of a physical examination and gave a 5% impairment rating. [Employee] alleges that his condition has worsened since the 2005 examination by Dr. Stewart, which gave a 15% impariment rating. His treating physician gave a 50% impairment rating on August 23, 2006, and he states that this is the doctor who is most familiar with his condition. The latest impairment rating in the file, that of 17% by Dr. Walton, was done based on a physical examination on June 13, 2007 and was specifically obtained for [Employee]’s Part E claim.

 

Under the regulations implementing Part E of EEOICPA, the employee bears the burden of proving that the new impairment evidence he has submitted has more probative value than the evaluation used by the district office to determine the impairment rating. The weighing of the probative value of these impairment ratings must take many variables into consideration, such as whether that the opining physician possesses the requisite skills and requirements to provide a rating as set out under the regulations, whether the evaluation was conducted within 1 year of its receipt by the Division of Energy Employees Occupational Illness Compensation, whether the report addresses the covered illness, and whether the whole body percentage of impairment is listed with a clearly rationalized medical opinion as to its relationship to the covered illness. See Federal (EEOICPA) Procedure Manual, Chapter E-900(10)(b).

 

As noted above, the DMC never actually examined [Employee] and the 2005 impairment rating was done more than 1 year before it was submitted to FAB. Thus, neither of these reports has the most probative value for EEOICPA purposes. FAB also notes that both Dr. Hughes and Dr. Walton submitted medical reports that are clear and well-rationalized with regard to the causal relationship of [Employee]’s impairment to the covered illness of lung cancer. [Employee] testified that his condition is getting progressively worse and has been since his 1994 diagnosis and subsequent surgery for lung cancer. The most recent impairment rating in the file was done in June 2007 by Dr. Walton, nearly a year after the next more recent, which was done in August 2006 by Dr. Hughes. Dr. Walton’s impairment rating also appears to be more consistent with the other impairment ratings that have been done for [Employee] by other physicians, in terms of the percentage of impairment. Thus, FAB concludes that the most probative opinion with regard to [Employee]’s current level of impariment is the most current impariment rating by Dr. Walton, which gives a 17% impairment rating of the whole person.

 

At the hearing, [Employee] acknowledged that if his condition worsened, he could claim for additional impairment based on the same covered illness after the passage of two years from his award. FAB also notes that [Employee] has a pending claim based on the condition of prostate cancer and that he may seek an impairment rating on a different covered illness before the passage of two years. See 20 C.F.R. § 30.912.

 

Following an independent review of the evidence of record, the undersigned hereby makes the following:

 

FINDINGS OF FACT

 

1. On November 4, 2002, [Employee] filed a claim for benefits under Part B and Part E of EEOICPA. At that time, he identified lung cancer as the condition resulting from his employment at a DOE facility.

 

2. On January 7, 2002, FAB issued a final decision that accepted [Employee]’s claim under Part B, finding that he was are a member of the Special Exposure Cohort, that he had been were diagnosed with lung cancer (a “specified” cancer), and awarding him a lump-sum of $150,000.00 and medical benefits for lung cancer.

 

3. On April 17, 2006, FAB also accepted [Employee]’s claim under Part E, finding that he had contracted his lung cancer through exposure to a toxic substance at a DOE facility and awarding him medical benefits for lung cancer under Part E.

 

4. On March 5, 2007, a DMC reviewed the medical evidence of record and determined that according to the Guides, [Employee] had a 5% whole person impairment resulting from his accepted covered illness of lung cancer.

 

5. On June 14, 2007, Dr. Norm Walton examined [Employee] and determined that he had a current impairment raring of 17% to the whole person as a result of his lung cancer.

 

6. [Employee] received a state workers’ compensation settlement of $25,200.00 for his claimed condition of lung cancer.

 

Based on the above-noted facts, the undersigned also hereby makes the following:

 

CONCLUSIONS OF LAW

 

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by his or her “covered illness.” See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a). The impairment rating of an employee shall be determined in accordance with the Fifth Edition of the Guides. 42 U.S.C. § 7385s-2(b). Section 7385s-2(a)(1) provides that for each percentage point of the impairment rating that is the result of a covered illness, the covered DOE contractor employee shall receive $2,500.00.

 

As noted above, [Employee] is a covered DOE contractor employee with the covered illness of lung cancer, and he has an impairment rating of 17% of the whole person as a result of his covered illness based on the Guides. The physician giving this impairment rating, Dr. Walton, evaluated [Employee]’s condition based on a physical examination and also carefully reviewed his medical records, and his is the most probative medical opinion on impairment in the file, as discussed above. [Employee] is therefore entitled to $42,500.00 in impairment benefits (17 x $2,500.00 = $42,500.00) under Part E of EEOICPA. This amount must be coordinated with the amount [Employee] received in a state workers’ compensation settlement for his lung cancer, which was $25,200.00. Thus, his net award of impairment benefits based on his lung cancer is $17,300.00. A decision on [Employee]’s claim under Parts B and E for prostate cancer is deferred pending further development.

 

Washington, D.C.

 

 

 

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch