| U.S. DEPARTMENT OF LABOR | OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH |
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| EMPLOYEE: | [Name Deleted] |
|---|---|
| CLAIMANT: | [Name Deleted] |
| FILE NUMBER: | [Number Deleted] |
| DOCKET NUMBER: | 20130322-1058-1 |
| DECISION DATE: | October 8, 2013 |
NOTICE OF FINAL DECISION FOLLOWING A HEARING
This is the decision of the Final Adjudication Branch (FAB) on the above-noted claims 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 survivor claims of [Claimant #1] and [Claimant #2] under Part B of EEOICPA based on the employee’s lung cancer with metastases are denied.
STATEMENT OF THE CASE
On July 31, 2001, [Employee’s spouse] filed a Form EE-2 claiming survivor benefits under Part B of EEOICPA as the spouse of [Employee], hereinafter referred to as the employee. That claim was based on the employee’s lung cancer with metastases. On October 25, 2001, FAB issued a final decision accepting [Employee’s spouse]’s claim as the surviving spouse of the employee, who was a member of the class of employees in the Special Exposure Cohort who worked at the Oak Ridge Gaseous Diffusion Plant (GDP). In that decision, FAB awarded her the maximum amount of lump-sum compensation payable under Part B, $150,000.00, for the employee’s metastatic lung cancer. [Employee’s spouse] passed away on January 13, 2002.
On January 6, 2004, [Claimant #2] filed a request with the Department of Energy for assistance with a state workers’ compensation claim under former Part D of EEOICPA as a surviving child of the employee. Upon the repeal of former Part D and the enactment of Part E of EEOICPA, her Part D claim was transferred to the Department of Labor for adjudication as a claim under new Part E. On March 17, 2006, [Claimant #1] filed a Form EE-2 as a surviving child of the employee. On September 18, 2006, FAB issued a final decision that denied [Claimant #2]’s claim under Part E on the ground that she did not meet the definition of a “covered” child in Part E. On June 8, 2007, FAB also issued a final decision denying [Claimant #1]’s Part E claim on the same ground.
On August 1, 2012, December 29, 2012 and January 29, 2013, [Claimant #1] and [Claimant #2] filed Forms EE-2 seeking survivor benefits under Part B of EEOICPA for the employee’s metastatic lung cancer. Birth certificates identify [Claimant #2] and [Claimant #1] as the biological children of the employee. In addition, [Claimant #1] provided a copy of her marriage certificate documenting her name change.
On July 15, 2013, the Jacksonville district office issued a recommended decision to deny the claims of both [Claimant #2] and [Claimant #1] under Part B because [Employee’s spouse], as the employee’s surviving spouse, had already received the maximum lump-sum compensation payable under Part B for the employee’s metastatic lung cancer. Attached to the recommended decision was a notice of claimant rights, which stated that the claimants had 60 days in which to file an objection to the recommended decision and/or request a hearing.
OBJECTIONS
On May 22, 2013, FAB received [Claimant #2]’s May 16, 2013 letter objecting to the recommended decision and requesting an oral hearing. On July 30, 2013, a hearing was held where both claimants presented testimony arguing that they should be awarded compensation under Part B under the belief that the statutory order of precedence for Part B awards did not apply to them because they were claiming for awards based on their father’s alleged membership in a different class of employees added to the SEC, i.e., for employees who worked at the Clinton Engineer Works rather than at the Oak Ridge GDP.
In response to the claimants’ objections, the undersigned has reviewed the facts in accordance with EEOICPA, the implementing regulations, and the Federal (EEOICPA) Procedure Manual.
With respect to the claimants’ belief that they are entitled to compensation under Part B because the statutory order of precedence does not apply to them, those beliefs are legally incorrect. The statute clearly provides that a covered employee, or the survivor(s) of that covered employee if he or she is deceased, shall receive compensation in the amount of $150,000.000. 42 U.S.C. § 7384s(a)(1). This one-time payment of $150,000.00 is the only lump-sum amount provided for under Part B of EEOICPA, and only one lump-sum payment may be made either to or on behalf of a covered employee, regardless of how many occupational illnesses a covered employee may have contracted, or how many avenues of eligibility he or she satisfies. The statute at 42 U.S.C. § 7384s(e) explicitly provides that “[i]n the case of a covered employee who is deceased at the time of payment of compensation. . .[i]f the covered employee is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.” It is only when “[t]here is no surviving spouse” that “such payment shall be made in equal shares to all children of the covered employee who are living at the time of payment.” See also 20 C.F.R. § 30.501(a). As noted above, the employee’s surviving spouse has received the payment, and therefore no payment remains to be made to any surviving children of the employee.
With regards to the example provided where claimants had received more than one payment under Part B of the Act, the regulations provide a survivor may receive one lump-sum payment for each deceased covered Part B employee for whom he or she qualifies as an eligible surviving beneficiary under Part B of the Act. 20 C.F.R. § 30.506(d). That is obviously not the case here.
After considering the evidence of record and your objections, FAB hereby makes the following:
FINDINGS OF FACT
1. The employee was a Department of Energy contractor employee who worked at the Oak Ridge GDP from November 30, 1945 to September 30, 1986.
2. The employee was diagnosed with lung cancer with metastases on April 11, 1988 and died on December 14, 1988.
3. The employee’s spouse filed a claim and received $150,000.00) for the employee’s metastatic lung cancer.
4. [Claimant #2] and [Claimant #1] filed claims under Part B as the surviving children of the employee. They are both biological children of the employee.
5. On January 13, 2002, the employee’s spouse passed away.
Based on the above findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
The purpose of EEOICPA is to provide for “compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d(b). In cases in which a covered employee is deceased, Part B of EEOICPA provides that payment may be made “only” to a surviving spouse, children, parents, grandchildren or grandparents of the covered employee, in that respective order. 42 U.S.C. § 7384s(e).
[Claimant #2] and [Claimant #1] each meet the definition of a surviving child under Part B sett out at 42 U.S.C. § 7384s(e)(3)(B). However, with respect to their claims, the record establishes that the employee’s surviving spouse has already received the lump-sum benefit of $150,000.00 available under Part B for the employee’s metastatic lung cancer. Therefore, because the lump-sum available under Part B has already been paid, [Claimant #2] and [Claimant #1] are not entitled to any compensation under that Part, and their claims for compensation are denied.
Jacksonville, Florida
Pamela Burr
Hearing Representative
Final Adjudication Branch