Docket Number: 20120607-12007-1

U.S. DEPARTMENT OF LABOR

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

REMAND ORDER

This remand order of the Final Adjudication Branch (FAB) concerns the above survivor claim under Part E of 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, this survivor claim based on the employee’s death due to asbestosis and pulmonary fibrosis is remanded to the Jacksonville district office for further development, to be followed by the issuance of a new recommended decision consistent with this remand order.

On November 10, 2005, [Employee] filed a claim for benefits under Part E for the alleged conditions of asbestosis and pulmonary fibrosis. On May 29, 2009, FAB issued a final decision under Part E that accepted the employee’s claim for medical benefits, in part, for the covered illnesses of asbestosis, pulmonary fibrosis, and consequential heart disease as a covered Department of Energy (DOE) contractor employee who developed the illnesses during the performance of his duties at the Oak Ridge Gaseous Diffusion Plant (K-25) from August 28, 1953 to June 6, 1958, and at the Oak Ridge National Laboratory (X-10) from September 1958 to July 31, 1982. Both facilities are DOE facilities.[1] The awarded medical benefits were payable, however, subject to the absorption of a surplus in the amount $30,927.00 that resulted from the settlement of a tort suit for asbestos exposure. On May 3, 2010, FAB issued a second final decision under Part E, concluding that the employee was entitled to $167,500.00 for his 67% whole body impairment due to his asbestosis, pulmonary fibrosis and consequential heart disease reduced by the surplus of $30,927.00, leaving an award to him of $136,573.00. The employee died on March 28, 2012.

On August 24, 2012, the claimant filed a survivor claim under Part E of EEOICPA as the spouse of the employee, for his death due to asbestosis and pulmonary fibrosis. In support of this claim, the spouse submitted a copy of the employee’s death certificate, which verified his death on March 28, 2012, identified her as the employee’s surviving spouse, and listed the cause of death as asbestosis and pulmonary fibrosis. The claimant also submitted a marriage certificate showing that she had married the employee on June 10, 1946.

On May 10, 2012, the district office received a signed Form EN-16 in which the claimant stated that she had not received an additional settlement or award from a tort suit related to an exposure for which she or the employee would be eligible to receive compensation under EEOICPA since the issuance of the May 3, 2010 final decision. In this same form, the claimant indicated that neither she nor the employee had filed for or received any state workers’ compensation benefits on account of the employee’s covered illnesses.

On June 7, 2012, the Jacksonville district office issued a recommended decision to accept the claimant’s survivor claim under Part E based on the employee’s death due to his asbestosis and pulmonary fibrosis, and to award her $113,427.00 in survivor benefits. This recommended decision noted that the maximum amount of compensation payable on account of an employee’s covered illnesses under Part E was $250,000.00, and that the employee was paid $136,573.00 in Part E monetary benefits. It also informed the claimant that she had 60 days within which to file any objections to the recommended decision. On June 12, 2012, FAB received the claimant’s written notification that she waived any and all objections to the recommended decision.

Since the evidence establishes that the employee contracted pulmonary fibrosis from exposure to toxic substances at a DOE facility, this condition is a “covered illness” as defined under Part E of EEOICPA; therefore, the employee is a “covered DOE contractor employee.” And because the condition of pulmonary fibrosis caused the employee’s death, the claimant is entitled to survivor benefits for the employee’s death due to pulmonary fibrosis.

The basic survivor benefit under Part E of EEOICPA is $125,000.00. However, the maximum amount of compensation payable for all Part E claims related to an individual covered employee is $250,000.00. Therefore, the claimant’s award and the award to the employee together may not exceed $250,000.00. 42 U.S.C. § 7385s-12.

In this case, the district office calculated that the claimant’s entitlement to survivor benefits was $113,427.00 by subtracting the amount of the monetary award to the employee, after that award was reduced to absorb the surplus resulting from his tort settlement, from the maximum amount of compensation payable under Part E ($250,000.00 - $136,573.00 = $113,427.00). This was not correct. Doing so would result in a payment to the surviving spouse, when combined with the amount of the award to which the employee was entitled by virtue of his whole body impairment rating of 67%, that would exceed the $250,000.00 maximum cap ($167,500.00 + $113,427.00 = $280,927.00). It is important to remember that the employee received a monetary tort settlement that needed to be offset against his impairment award so as to avoid the “double recovery” that would otherwise result if he were compensated both by his tort suit and under EEOICPA.

Because accounting for a payment received due to a tort suit (as occurred here) or under a state workers’ compensation system will lower one or both of the amounts of the EEOICPA awards that are actually received, applying the maximum cap in the way that the district office did here can result in similarly situated claimants for which no offset or coordination is required being treated differently. The application of the maximum cap on EEOICPA benefits can only work fairly when it is applied uniformly. Therefore, the district office must reduce the maximum amount payable under Part E by the total impairment compensation awarded prior to the offset reduction ($250,000.00 - $167,500.00 = $82,500.00).

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 (2012). Therefore, in light of the need for recalculation of the amount of the claimant’s survivor award, FAB is not issuing a final decision and the case is remanded to the district office. Upon return of the file, the district office should determine the spouse’s entitlement to survivor benefits consistent with this order and issue a new recommended decision.

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch