Docket Number: 20130604-16094-1

U.S. DEPARTMENT OF LABOR

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

 

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBER:	20130604-16094-1
DECISION DATE:	February 28, 2014

 

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns your 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 claims for survivor benefits filed by [Claimant #1] and [Claimant #2] based on the employee’s lung cancer in the amount of $75,000.00 each, representing one-half or an equal share of total of $150,000.00 available as compensation under Part B of EEOICPA, are approved.

STATEMENT OF THE CASE

On April 6, 2011 and February 12, 2013, [Claimant #1] and [Claimant #2], respectively, each filed a claim for survivor benefits (Form EE-2) as a child of the employee. You (herein collectively) identified lung cancer as the condition resulting from the employee’s work at a Department of Energy (DOE) facility. You submitted signed statements which indicated that at the time of the employee’s death you were over the age of 23 and capable of self-support. You indicated that unless EEOICPA is amended, you do not intend to file under Part E.

You filed an employment history (Form EE-3) which indicated the employee worked as a quality control inspector at the Hanford Plant located in Richland, Washington for the following DOE subcontractors during the following periods: for Bartells from March 1977 to July 1978; for J.A. Jones from July 1978 to 1980; for Foley, Wismer & Becker from 1980 to 1982; and for Bestco from 1982 to 1983. A representative from DOE provided verification of the employee’s work for J.A. Jones at the Hanford Plant in Richland, Washington from July 18, 1978 to June 20, 1980.[1]

You submitted a March 6, 1997 pathology report signed by Dr. Laurence B. Liu, in which the doctor provided a diagnosis of non-small cell lung cancer.

You submitted a copy of the employee’s death certificate which showed that he died on October 12, 1997 at the age of 73, and that he was married at the time of his death. The death certificate, signed by Dr. Thomas Cooper, identified the immediate cause of the employee’s death as lung cancer. You also submitted a copy of the employee’s spouse’s death certificate.

You each submitted a copy of your birth certificates which showed that the employee is your father. [Claimant #2] also submitted a copy of her marriage certificate which showed her name change.

On June 4, 2013, the Seattle district office issued a recommended decision which determined that the employee’s work at the Hanford Plant was sufficient to establish that he was a member of the Special Exposure Cohort (SEC), and that lung cancer is a “specified” cancer for the purpose of the SEC. The district office noted that while the evidence supported that there was another potentially eligible, non-filing claimant, the evidence also showed that the individual was not entitled to compensation under EEOICPA because, on December 11, 2008, that individual was convicted of fraud in the application for benefits under EEOICPA. The district office found that the individual’s conviction on one count of making a false statement in connection with an application for benefits demonstrates that he is no longer considered an eligible survivor for purposes of receiving benefits as of the date of his conviction. Therefore, the district office concluded that no share of the potential lump-sum benefit needed to be held in abeyance, and his portion could be redistributed to the remaining eligible surviving children of the employee. Accordingly, the district office determined that you are the employee’s only eligible survivors and recommended acceptance of your claims for survivor benefits based on the employee’s lung cancer in the amount of $75,000.00 each, representing one-half share of the $150,000.00 total possible compensation payable under Part B of EEOICPA.

On June 7, 2013, FAB received your signed statements (Form EN-16s), in which each of you indicated that you have not filed a tort suit related to an exposure for which you would be eligible to receive compensation under EEOICPA. You each also indicated that you have not received any settlement or award from a claim or suit against a third party related to an exposure for which you would be eligible to receive compensation under EEOICPA, and you each indicated that you have not filed for or received any state workers’ compensation benefits on account of the claimed illness. And finally, you each indicated that you are claiming compensation under EEOICPA as a survivor of the employee and identified each other as the only persons who may be eligible to receive that compensation. On June 12, 2013, FAB received your signed waivers of your right to object to any of the findings of fact and/or conclusions of law contained in the recommended decision.

On July 9, 2013, FAB issued a remand order which noted that there is no provision in EEOICPA, the regulations or the Federal (EEOICPA) Procedure Manual that explicitly provided for a redistribution or reallocation of forfeited compensation from one survivor to another. Thus FAB determined that because the recommended decision incorrectly identified the amount of compensation awarded, your Part B claims for survivor benefits were remanded to the Seattle district office to further develop the amount of your eligible payments and issuance of a new recommended decision.

On February 3, 2014, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a Director’s Order which concluded that “there is persuasive rationale to redistribute the entitlement from a forfeited child to the remaining surviving children of a deceased employee.” Accordingly, the July 9, 2013 remand order was vacated and the file was returned to FAB for issuance of a final decision that allocated the full compensation to the two eligible survivors.

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

FINDINGS OF FACT

1. On April 6, 2011 and February 12, 2013, [Claimant #1] and [Claimant #2], respectively, each filed a claim for survivor benefits under EEOICPA as a child of the employee.

2. You identified lung cancer as the condition resulting from the employee’s work at a DOE facility.

3. The employee worked for J.A. Jones at the Hanford Plant in Richland, Washington from July 18, 1978 to June 20, 1980.

4. On March 6, 1997, the employee was diagnosed with non-small cell lung cancer.

5. The employee died on October 12, 1997, at the age of 73. The immediate cause of the employee’s death was lung cancer.

6. The employee was married at the time of his death and you submitted a copy of the employee’s spouse’s death certificate.

7. You are each the biological children of the employee and the employee’s only eligible survivors.

8. You have not filed a tort suit related to an exposure for which you would be eligible to receive compensation under EEOICPA. You have not received any settlement or award from a claim or suit against a third party related to an exposure for which you would be eligible to receive compensation under EEOICPA. You have not filed for or received any state workers’ compensation benefits on account of the claimed illness.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that, if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part. 20 C.F.R. § 30.316(a) (2013). You have waived your right to file any objections to the findings of fact and/or conclusions of law contained in the recommended decision.

The employee’s work for a DOE contractor at Hanford, a covered DOE facility during a covered DOE period is sufficient to conclude that he was a “Department of Energy contractor employee” pursuant to 42 U.S.C. § 7384l(11)(B).

On August 23, 2012, the Secretary of Health and Human Services designated the following class of employees as an addition to the SEC:

All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked at the Hanford Engineer Works in Richland, Washington, from July 1, 1972 through December 31, 1983, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.

On September 22, 2012, the Director of DEEOIC issued EEOICPA Circular No. 12-16, which provides guidance in determining whether employees qualify for inclusion in the above class, based on their work at the Hanford Engineer Works. Based on the above designation, any probative evidence that the employee was so employed is sufficient to include him or her in the SEC class. The employment evidence of record is sufficient to establish that the employee worked at the Hanford site for at least 250 workdays during the SEC period of July 1, 1972 through December 31, 1983. The employee was therefore a member of the class.

On March 6, 1997, the employee was diagnosed with non-small cell lung cancer. Lung cancer is a specified cancer for the purposes of the SEC, pursuant to 42 U.S.C. § 7384l(14) and 20 C.F.R. § 30.5(ff)(2) (2013). The employee was therefore diagnosed with a specified cancer. Accordingly, the employee was a “covered employee with cancer” pursuant to 42 U.S.C. § 7384l(9)(A).

A covered employee, or the survivor of that covered employee if the employee is deceased, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000. 42 U.S.C. § 7384s(a). In the case of a covered employee who is deceased at the time of payment of compensation under this section, whether or not the death is the result of the covered employee’s occupational illness, such payment shall be made to such surviving spouse. 42 U.S.C. §§ 7384s(a), 7384s(e). In the case of a covered employee who is deceased and if there no surviving spouse, such payment shall be made in equal shares to all children of the covered employee who are living at the time of payment. 42 U.S.C. § 7384s(e)(B).

The undersigned acknowledges that the EEOICPA requires that any individual convicted of a violation of section 1920 of Title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this subchapter or under any other Federal or State workers’ compensation law, shall forfeit (as of the date of such conviction) any entitlement to any compensation or benefit under this subchapter such individual would otherwise be awarded for any injury, illness or death covered by this subchapter for which the time of injury was on or before the date of the conviction. 42 U.S.C. § 7385i(a).

Accordingly, you are both a “child” and the only known eligible survivors of the employee pursuant to Federal (EEOICPA) Procedure Manual, Chapter 2-0200.5.b(1) and 42 U.S.C. § 7384s(e)(3)(B). Your claims for survivor benefits based on the employee’s lung cancer in the amount of $75,000 each representing one-half or an equal share of $150,000 total possible compensation under Part B of the Act are approved.

WASHINGTON, DC

Edward W. Feeny

Hearing Representative

Final Adjudication Branch