Docket Number: 10055714-2007

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10055714-2007

DECISION DATE: April 11, 2007

NOTICE OF FINAL DECISION FOLLOWING A HEARING

This decision of the Final Adjudication Branch (FAB) concerns your claim for compensation 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 benefits under Part E of the Act is accepted for survivor benefits, but your claim for impairment benefits under the Act is denied.

STATEMENT OF THE CASE

On January 31, 2003, [Employee] (hereinafter referred to as “the employee”) filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer. In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition.

On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act. Another final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000 based on a 96% impairment rating for his pharynx cancer and lung cancer. However, the employee died on July 1, 2006, prior to the payment of the funds awarded for impairment. By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim.

On July 24, 2006, you submitted a claim for survivor benefits under the Part E of the Act. In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on February 6, 1981, and the employee’s death certificate, showing that you were the employee’s spouse on the date of death, July 1, 2006, and that the employee died of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis.

On September 30, 2006, the district office issued a recommended decision that you are entitled to receive a lump-sum survivor award of $125,000.00.

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. On October 16, 2006, the FAB received your letter of objection and request for a hearing dated October 16, 2006. The hearing was held on December 12, 2006 in Birmingham, Alabama.

A claimant is allowed thirty days after the hearing is held to submit additional evidence or argument, and twenty days after a copy of the transcript is sent to them to submit any changes or corrections to that record. By letter dated December 22, 2006, the transcript was forwarded to you. No response was received.

OBJECTIONS

At the hearing, you testified that the Jacksonville district office issued a recommended decision to accept the employee’s claim for impairment benefits in the amount of $240,000.00. The money was to be paid by electronic funds transfer (EFT) into an account held jointly by you and the employee. The account had been opened as a SouthTrust Bank account. SouthTrust and Wachovia completed a merger in October of 2005.

You provided testimony, supported by documents submitted by your attorney and the case record, that you completed an EN-20 form, and provided account information to the Department of Labor (DOL) with the account number [Number deleted]. Your son, [Employee’s child], faxed and over-night mailed the EN-20 form to the DOL on June 28, 2006. On June 29, 2006, the Treasury Department attempted to send the electronic funds transfer (EFT) but the EFT could not be completed. DOL notified you of this occurrence on that same day and requested that you provide new account information. On June 29, 2006, [Employee’s child] again faxed and over-night mailed a new EN-20 form to the DOL. On the new EN-20, you provided the Wachovia account number [Number deleted]. The employee passed away on July 1, 2006. On or about July 6, 2006, the Treasury Department transmitted the funds to your account. DOL subsequently determined that the employee had died before the $240,000.00 was actually paid the second time, and the $240,000.00 EFT was removed from your account.

You testified that the only difference between the SouthTrust account number and the Wachovia account number is that the Wachovia number has a “1000” at the beginning and a “1” at the end; the middle “[Number Deleted]” is identical in both numbers. You stated that you continue to use the SouthTrust account number.

Both at the hearing and in a December 13, 2006 letter, your attorney argued that since the Treasury Department paid the money before the employee died, the receipt of the money is immaterial. He cited the Procedure manual at E-600(8)(a)(1) which states, “If a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies.”

The issue here is whether you are entitled to receive the impairment award issued prior to the employee’s death, but rejected by your bank.

Your attorney argues that the procedure manual actually states if a clamant is alive at the time a final decision is issued and is to be paid via an EFT, the EFT should not be cancelled if the claimant subsequently dies. The section of the Procedure Manual quoted by your attorney, in its entirety, states:

If a paper check has been mailed to the employee, the payment must be cancelled. The employee must be able to endorse the check. If the payment is made via electronic fund transfer (EFT), the payment should not be cancelled. For more information on cancellation procedures, refer to EEOICPA Bulletin No. 04-10.[1]

EEOICPA Bulletin Nos. 02-12 (issued July 31, 2002) and 04-10 (issued March 16, 2004) describe the payment process as beginning when payment is authorized by DEEOIC and ending either when the payment is received in the beneficiary’s account, or when Treasury (or the beneficiary) cancels the payment. If Treasury cancels the payment, the National Office voids the payment record and a new payment process is initiated. Action Item No. 9 in Bulletin No. 04-10 states that “The District Director must determine whether a repayment to the current payee will be required. For example, if the payment is cancelled because the employee or claimant died before receipt, he/she is not going to be paid a lump sum.”

Therefore, in accordance with the policies of the DEEOIC, since the employee did not receive the impairment payment prior to his death, a new determination must be made concerning your entitlement as a survivor.

After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:

FINDINGS OF FACT

1. On January 31, 2003, the employee filed a claim for benefits under the Act for the conditions of throat, tongue, and larynx cancer.

2. In a final decision dated April 16, 2003, the FAB accepted the employee’s cancer of the pharynx with metastasis, and awarded the employee $150,000.00 and medical benefits for cancer of the pharynx and complications of that condition.

3. On May 26, 2006, a final decision was issued accepting the employee’s claim for pharynx and lung cancer for medical benefits under Part E of the Act.

4. A final decision was issued on June 21, 2006, finding that the employee was entitled to an impairment award of $240,000.00 based on a 96% impairment rating for his pharynx cancer and lung cancer.

5. The employee died on July 1, 2006, prior to the payment of the funds awarded for impairment.

6. By Director’s Order of August 25, 2006, the June 21, 2006 decision was vacated and the case was returned to the district office for further development of a survivor claim.

7. On July 24, 2006 you filed a claim for survivor benefits under the Act.

8. You were the employee’s spouse at the time of death and at least a year prior.

9. Squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung, with metastasis caused or contributed to the employee’s death.

Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:

CONCLUSIONS OF LAW

I have reviewed the record, the recommended decision issued by the Jacksonville district office on September 30, 2006 and the subsequently submitted objections.

You meet the definition of a survivor under Part E of the Act. 42 U.S.C. § 7385s-3(d)(1).

A prior final decision under Part B of the Act concluded that the employee was an employee of a contractor or subcontractor entitled to compensation for an occupational illness. A determination under Part B of the Act that a DOE contractor employee is entitled to compensation under that Part for an occupational illness is treated as a determination that the employee contracted that illness through exposure at a DOE facility. 42 U.S.C. § 7385s-4(a). Therefore, the employee is a covered DOE contractor employee with a covered illness. 42 U.S.C. §§ 7385s(1) and 7385s(2). The employee died as a result of squamous cell carcinoma of the larynx, and non-small cell adenocarcinoma of the left lower lobe of the lung.

Under the Act, if a covered Part E employee dies after filing a claim for monetary benefits but before those claimed benefits are paid, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the compensation that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment. The survivor is not entitled to the $125,000.00 lump-sum payment because death was not caused by the claimed covered condition.

However, if the covered illness or illnesses aggravated, contributed to, or caused a covered Part E employee’s death, then the survivor does not have the option to choose to receive the compensation that would have otherwise been payable to the covered Part E employee if living.[2]

I conclude that the employee was a DOE contractor employee with cancer of the pharynx and lung cancer due to exposure to a toxic substance at a DOE facility. 42 U.S.C. §§ 7385s(1) and 7385s-4(b). The employee’s death was a result of squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung. Therefore, you are entitled to benefits in the amount of $125,000.00 for the employee’s death due to squamous cell carcinoma of the larynx, non-small cell adenocarcinoma of the left lower lobe of the lung. 42 U.S.C. § 7385s-3.

Jacksonville, FL

Jeana F. LaRock, Hearing Representative

FinalAdjudication Branch