Docket Number: 20130911-32747-2

U.S. DEPARTMENT OF LABOR

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

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted claim for survivor benefits filed 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 stated below, the claim is hereby accepted.

STATEMENT OF THE CASE

On June 29, 2013, the above claimant filed a claim under Parts B and E of EEOICPA as an alleged surviving child of the employee. In support of her claim, she submitted evidence showing that the employee was employed at the Savannah River Site (SRS), that he had been diagnosed with multiple myeloma after beginning work at the SRS, and that multiple myeloma contributed to his death on May 25, 2003. She also submitted evidence showing that she was born on August 17, 1961, and that she was 41 years old at the time her father died.

After a class of employees at the SRS was added to the Special Exposure Cohort (SEC), the Jacksonville district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued a September 11, 2013 recommended decision to accept the claimant’s Part B claim due to her father’s membership in the SEC and his “specified” cancer of multiple myeloma, and to deny her Part E claim due to a lack of evidence that she was “incapable of self-support” as of the date her father died. FAB then issued a final decision accepting the claimant’s Part B claim on November 25, 2013.

Previously on November 7, 2013, the claimant’s authorized representative had objected to the recommended denial of his client’s Part E claim and argued that she had been on May 25, 2003, and continued to be to this day, incapable of self-support. In support of his argument, the representative submitted the following:

· Medical evidence dated October 23, 2013 from Dr. Brandon R. Sick, a Board-certified family practitioner, in which he reviewed the claimant’s history and his findings made on physical examination, diagnosed Turner Syndrome and concluded that she was “not able to support herself on May 25, 2003 as well as before then, and since then.” Dr. Sick noted that the “well-known” consequences of Turner Syndrome “has rendered her incapable of being able to support herself since she became an adult in the late 1970’s.” He also stated that “[s]ince then, her condition has continued to deteriorate notably from a cerebrovascular accident in 2003 with left-hemiparesis.”

· Factual evidence dated October 15, 2013 from Glen K. Adams, a vocational consultant, in which Mr. Adams exhaustively reviewed the claimant’s work history and vocational abilities, noted his findings made during an in-person assessment conducted on October 10, 2013, and listed her earnings history as supported by the case file. He noted that she earned the following from her part-time employment in the fast-food industry: $6,349 in 2003, $10,362 in 2002, $7,802 in 2001, $7,233 in 2000, $7,129 in 1999 and $1,300 in 1998. Based on this history and his vocational findings, Mr. Adams opined that the claimant “has never demonstrated her ability to maintain a self-supporting wage” due to her Turner Syndrome.

In a January 23, 2014 final decision, FAB denied the claimant’s Part E claim. As part of that decision, FAB noted the submission of the above factual and medical evidence, but concluded that it did not show “how [the claimant’s] Turner Syndrome and other medical conditions prevented [her] from being employed on May 25, 2003, as other evidence in the case record demonstrates she was working.” Based on this conclusion, FAB found that the claimant had not met her burden of proof to establish that she was “incapable of self-support” on the date the employee died, and therefore she was not a “covered” child under Part E of EEOICPA.

On February 19, 2014, the claimant’s representative requested reconsideration of the January 23, 2014 final decision. In support of this request, the representative disputed FAB’s findings regarding the claimant’s ability to support herself on May 25, 2003, and submitted a follow-up report dated April 3, 2014 from Dr. Sick. In this report, Dr. Sick expanded on his prior discussion of the effects of Turner Syndrome and noted that they “contribute to the social isolation and limited number of attempts in the work force. She lived with her parents until she was married and in the event she were widowed, given that both her parents are now deceased, she would be unable to live alone.” Dr. Sick also attached a peer-reviewed journal article entitled Cognitive Profile of Turner Syndrome.

FAB denied this request for reconsideration on April 23, 2014. In that denial, FAB found that the claimant’s representative did not submit any new arguments or evidence that would justify reconsideration of its prior decision on her Part E claim. The representative then wrote to the Secretary Labor on May 19, 2014, after which this matter was brought to the attention of the Director of DEEOIC, who issued a Director’s Order dated June 2, 2014. In her order, the Director noted that the representative asserted that the denial of his client’s Part E claim was inconsistent with Chapter 2-1200.8b(2)(b) (August 2010) of the Federal (EEOICPA) Procedure Manual, which states the following, in pertinent part:

(b) Incapable of Self-Support. To establish eligibility for benefits as a covered child who was incapable of self-support at the time of the employee’s death, the child must have been physically or mentally incapable of self-support, regardless of marital status or dependency on the employee for support, regardless of the temporary or permanent nature of the incapacity.

(1) A child is incapable of self-support if, at the time of the employee’s death, his/her physical or mental condition was such that he/she was unable to obtain and retain a job or engage in self-employment that could provide he/she with a sustainable living wage.

(2) Medical evidence must show that the child was diagnosed with a medical condition establishing that he/she was physically/mentally incapable of self-support at the time of the employee’s death.

(3) Documentation to support the incapability of self-support can include medical records, social security disability records, tax returns showing that the covered child was claimed as a dependent, state guardianship documents, and affidavits.

SSA or State disability records alone, showing lack of self-support, should not be used to establish that the child is incapable of self-support. The CE must consider the evidence as a whole to determine if it demonstrates that the person was/is incapable of self-support for purposes of the EEOICPA.

In her June 2, 2014 order, the Director noted that that pursuant to subparagraph (1) above, a child will be found to be “incapable of self-support if, at the time of the employee’s death, his/her physical or mental condition was such that he/she was unable to obtain and retain a job or engage in self-employment that could provide he/she with a sustainable living wage,” while subparagraph (3) states that in making these findings, DEEOIC “must consider the evidence as a whole. . . .” (emphases added) After considering these matters, the Director concluded that the denial of the claimant’s Part E survivor claim was inconsistent with DEEOIC’s established procedures because the evidence in the file clearly shows that the claimant has Turner Syndrome, and that this medical condition has had, and continues to have, an adverse effect on her ability to earn a sustainable living wage. The Director pointed out that FAB had improperly focused, in its January 23, 2014 final decision, on the fact that the claimant did earn some wages in 2003 (the year the employee died), and found in her June 2, 2014 order that the totality of the factual and medical evidence showed that the claimant was incapable of earning a sustainable living wage at the time of the employee’s death. The Director therefore vacated FAB’s January 23, 2014 final decision and April 23, 2014 reconsideration denial, and returned the claim to FAB with instructions to issue a final decision accepting the claim and awarding the claimant $125,000.00 under Part E of EEOICPA.

Therefore, after considering the record of the claim forwarded by the Director, FAB hereby makes the following:

FINDINGS OF FACT

1. The employee worked for a Department of Energy contractor at the SRS from March 15, 1954 to July 31, 1979.
2. The employee was diagnosed with multiple myeloma on November 15, 2002, which was after beginning employment as the SRS, and more than 5 years after he was first exposed to radiation at work.
3. The employee is a member of the SEC who was diagnosed with a specified cancer.
4. The employee died on May 25, 2003.
5. The claimant filed a Part E claim as a surviving child of the employee, and was 41 years old on the date of the employee’s death.
6. The totality of the evidence establishes that on May 25, 2003, the claimant was unable to earn a sustainable living wage, and was there incapable of self-support on that date.

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

CONCLUSIONS OF LAW

The benefits available under Part E of EEOICPA are only payable to claimants who satisfy the eligibility requirements set out in the statute. In this Part E claim, the claimant alleges that she is a “covered” child of the employee who was incapable of self-support when he died on May 25, 2003. In light of the above discussion and findings of fact, FAB agrees.

As pointed out above in the discussion of the Director’s June 2, 2014 order, the factual and medical evidence in the case file, when viewed in its totality, is sufficient to establish that the claimant has Turner Syndrome, and that this medical condition had an adverse effect on her ability to earn a sustainable living wage when the employee, her father, died on May 25, 2003.

Accordingly, FAB concludes that the claimant qualifies as a “covered” child of the employee pursuant to § 7385s-3(d)(2)(C) of EEOICPA, and hereby awards her survivor compensation of $125,000.00 under Part E.

Washington, D.C.

Tonya H. Fields

Hearing Representative

Final Adjudication Branch