Docket Number: 10074228-2009

U.S. DEPARTMENT OF LABOR

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

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 10074228-2009

DECISION DATE: September 30, 2010

REMAND ORDER

This remand order of the Final Adjudication Branch (FAB) concerns 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 for lung cancer under Part E of EEOICPA is remanded to the Jacksonville district office for further consideration and the issuance of a new decision consistent with this remand order.

On April 11, 2008, the employee filed a Form EE-1 claiming benefits for asbestos-related lung disease. On December 9, 2009, he also filed a claim for lung cancer.

On November 3, 2008, FAB issued a final decision to accept the claim for asbestosis under Part E and found that the employee was a covered Department of Energy (DOE) contractor employee at the Oak Ridge National Laboratory (X-10) and Y-12 facilities in Oak Ridge, Tennessee. On March 13, 2009, FAB issued another final decision that awarded him impairment benefits in the amount of $127,500.00 for his 51% whole body impairment due to asbestosis. At the time of that decision, the employee confirmed that he had filed a tort suit based on asbestos exposure and a state workers’ compensation claim based on asbestosis, but had not received any settlements.

On August 25, 2010, the Jacksonville district office issued a recommended decision to accept the claim for lung cancer under Part E. The district office based its recommendation on the opinion of a district medical consultant (DMC) who stated that the employee’s lung cancer was at least as likely as not caused, contributed to, or aggravated by his asbestos exposure at both X-10 and Y-12. The district office calculated a surplus of $7,486.13 due to the receipt of tort suit settlements from the employee’s asbestos exposure lawsuit, which would be absorbed from payments for his medical treatment and from future lump-sum compensation payments.[1]

Section 7385 of EEOICPA directs that 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 the Act. Before paying any benefits, all necessary steps must be taken to determine the correct amount of any offset. 20 C.F.R. § 30.505(a).

The district office used a Client Summary Settlement Detail and an Open Case Expenses report provided by the employee’s attorney to calculate the offset.[2] The Open Case Expenses report indicates that there are two line items of $750.00 and $51.45 that are due to medical providers but have not yet been paid by the employee or deducted from a settlement amount. Reasonable out-of-pocket costs and expenses involved in bringing a lawsuit are included in the calculation of the offset; this includes filing fees, travel expenses, record copy services, witness fees, court reporter costs, postage and long distance telephone calls.[3] However, costs of suit must be paid before they can be used in the offset calculations. The district office included these amounts in their calculation of the costs of the suit, although there was no indication that the employee had paid the bills. Elimination of those two items from the calculation results in a surplus amount of $8,281.95, a larger surplus than that calculated by the district office. Since it appears likely that further settlement payments will be forthcoming, the deduction of these costs may occur at a future date, when additional compensation under Part E becomes payable.

The regulations provide that at any time before the issuance of its decision, FAB may remand the claim to the district office for further development without issuing a decision. 20 C.F.R. § 30.317. Therefore, in light of the fact that calculation of the correct surplus amount is required, FAB is not issuing a final decision and the case is remanded to the district office.

Upon remand, the district office should review the tort suit settlement documents, verify that these are correct and complete, and correctly calculate and subtract the offset amount from the employee’s entitlement. This will require contact with the attorney of record to clarify the pending status of the costs in question. After obtaining the appropriate information and reviewing the facts, the district office should issue a new recommended decision under Part E.

Jacksonville, FL

Sidne M. Valdivieso

Hearing Representative

Final Adjudication Branch