Docket Number: 20131227-64263-2

U.S. DEPARTMENT OF LABOR

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

NOTICE OF FINAL DECISION REVERSING TO ACCEPT

This is the decision of the Final Adjudication Branch (FAB) concerning the above claim for benefits 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, the December 27, 2013 recommended denial of the claim is reversed, and the claimant is awarded the $42,500.00 in unpaid additional impairment benefits under Part E of EEOICPA for which the employee had filed before his death.

STATEMENT OF THE CASE

On December 1, 2006, the employee filed a claim under Parts B and E of EEOICPA in which he asserted that he had contracted diabetes, high blood pressure and “possible lung disease” as a result of his work at uranium mines. He also asserted that he was in the process of applying for an award under Section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. § 2210 (note). On March 26, 2008, the Denver district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) obtained verification from the Department of Justice that the employee had received the $100,000.00 payment available under Section 5 of RECA for pneumoconiosis, silicosis, pulmonary fibrosis and fibrosis of the lung. On April 28, 2008, the employee filed a new claim for benefits under Parts B and E of EEOICPA for those four lung conditions. The district office then issued a recommended decision on May 6, 2008 to accept his claim under Parts B and E for his lung conditions based on his RECA award, and to deny his Part E claim for diabetes and high blood pressure. The employee did not object to this recommendation, after which FAB issued a June 26, 2008 final decision that awarded him the $50,000.00 supplemental payment under Part B, and medical benefits under Parts B and E for his accepted conditions. Also in that decision, FAB denied his Part E claim for diabetes and high blood pressure.

On August 11, 2008, the employee filed his first claim for impairment benefits under Part E. Following the development of the medical evidence and the Denver district office’s issuance of a recommended decision, FAB issued a second final decision on May 8, 2009 awarding the employee $7,500.00 in impairment benefits for his 3% whole-person impairment due to his covered illnesses. Two years later, the employee filed a claim for additional impairment benefits on June 24, 2011. After developing this second claim, the district office issued a November 21, 2011 recommended decision to award the employee impairment benefits for his additional 17% whole-person impairment.

However, before FAB issued a final decision, the employee’s representative notified FAB that his client had died, and submitted a copy of a death certificate showing that the employee’s death on November 21, 2011 was due to atherosclerotic and hypertensive cardiovascular disease, with diabetes mellitus as another significant condition contributing to his death. Consequently, and without rendering a final decision, FAB issued a remand order on February 3, 2012, returning the employee’s Part E claim to the district office for administrative closure due to his death.

On October 23, 2012, the claimant filed her claim under Part E as the surviving spouse of the employee. On February 7, 2013, the claimant’s representative (who had also represented the employee) informed the Denver district office that his new client had filed this claim in order to receive her deceased husband’s Part E award for additional impairment, and was not seeking the usual Part E survivor benefits. The next day on February 8, 2013, the district office issued a recommended decision to accept the claimant’s Part E claim and to award her the $42,500.00 in unpaid impairment benefits for the employee’s 17% increased whole-person impairment. On April 5, 2013, FAB issued a final decision consistent with the February 8, 2013 recommendation.

However, before payment was issued to the claimant, the Director of DEEOIC issued an order on July 11, 2013 that vacated FAB’s April 5, 2013 final decision, on the ground that the claimant was not eligible to receive the employee’s unpaid additional impairment award. In her order, the Director cited Chapter 2-1200.12b (August 2009) of the Federal (EEOICPA) Procedure Manual, which states, in pertinent part, that “if the employee received any compensation for impairment or wage-loss, prior to his death, such payment voids the election of benefit option” provided in § 7385s-1(2)(B) of EEOICPA. Since it was undisputed that the employee had received a Part E award of $7,500.00 in impairment benefits before he died, the Director concluded that the election in § 7385s-1(2)(B) was not available to his widow and therefore FAB’s April 5, 2013 final decision was in error. The Director further noted that the claimant had not submitted any medical evidence to show that the employee’s covered illnesses caused, contributed to, or aggravated his death, as is required for receipt of the survivor benefits provided by § 7385s-3 of EEOICPA. Based on the above, the Director returned the case file to the Denver district office for issuance of a new recommended decision consistent with her order.

Following return of the case file, the district office sent the claimant a letter on September 3, 2013, requesting medical evidence to establish that the employee’s death was due in any way to any of his covered illnesses, or to file a claim for the illnesses listed on his death certificate. When no response was received, the district office issued a December 27, 2013 recommended decision to deny the claimant’s Part E claim for her husband’s unpaid impairment benefits. The claimant subsequently objected to that recommended denial and alleged that Chapter 2-1200.12b of the Procedure Manual was inconsistent with § 7385s-1(2)(B) of EEOICPA.

On June 5, 2014, FAB issued a final decision, based on the same findings and conclusions reached by the Director, denying the claim. In its decision, FAB noted the claimant’s objections to the Denver district office’s recommended decision and responded that the statutory provision at issue, § 7385s-1(2)(B), had been interpreted in the regulations at 20 C.F.R. § 30.509(a) (2014), and that that regulatory provision did not provide a survivor with the opportunity to elect the compensation an employee would have otherwise received had he or she been alive at the time of payment when such employee has already received a payment of either impairment benefits or wage-loss benefits under Part E of EEOICPA. FAB further pointed out language in the preamble of the interim final rule that first contained § 30.509(a), which stated that a survivor of a covered Part E employee may choose to exercise the option in § 7385s-1(2)(B) “only if the employee died after filing his or her Part E claim. . .but prior to receiving any compensation under the Act” and the covered Part E employee’s death was solely caused by a non-covered illness. FAB also noted that contrary to the claimant’s assertion, Chapter 2-1200.12b of the Procedure Manual, upon which the Director had based her July 11, 2013 order, was consistent with the regulatory interpretation of the statute. Lastly, FAB concluded that the claimant had not alleged, nor did the evidence in the case file establish, that the employee’s death was due in any way to any of his covered illnesses, and therefore she was not entitled to the usual survivor’s benefits provided by § 7385s-3 of EEOICPA.

By letter dated July 3, 2014, the claimant requested reconsideration of FAB’s June 5, 2014 final decision. However, on September 5, 2014, FAB issued an order denying her reconsideration request because she had failed to submit any new evidence or arguments with her request. Thus, the June 5, 2014 FAB decision became final on September 5, 2014.

On November 4, 2014, the claimant filed suit in the United States District Court for the District of New Mexico, seeking judicial review of the denial of her claim for her late husband’s unpaid award of $42,500.00 in additional impairment benefits under Part E. In its August 5, 2016 ruling, the court held that the language of § 7385s-1(2)(B) was unambiguous, such that it could only be read to say that if an employee files a claim for Part E monetary benefits and dies before payment of those same monetary benefits, and that his or her death is caused solely by something other than the employee’s covered illness or illnesses, then the employee’s survivor could choose to stand in the employee’s shoes to receive the unpaid award. And although the court held that § 30.509 of the regulations was consistent with, and a reasonable interpretation of, that language, Chapter 2-1200.12b of the Procedure Manual, which the Director had relied upon in her July 11, 2013 order, was not. Accordingly, the court granted judgment for the claimant, declared that Chapter 2-1200.12b of the Procedure Manual was “void” and ordered that the claimant be paid the $42,500.00 she was seeking under Part E of EEOICPA.

Following the issuance of the court’s ruling, this matter was brought to the attention of the Director of DEEOIC. In order to comply with the ruling, the Director issued an August 10, 2016 order vacating FAB’s June 5, 2015 final decision and September 5, 2014 order, and directed FAB to issue a new final decision awarding the employee’s unpaid $42,500.00 in additional impairment benefits to the claimant.

Based on its review of the evidence of record, and consistent with both the court’s ruling and the Director’s order, FAB hereby makes the following:

FINDINGS OF FACT

1. The deceased employee has already been found by FAB to be a covered Part E employee who contracted the four covered illnesses of pneumoconiosis, silicosis, pulmonary fibrosis and fibrosis of the lung.

2. The employee filed his initial claim for impairment benefits under Part E on August 11, 2008, and on May 8, 2009, FAB awarded the employee impairment benefits of $7,500.00 for a 3% whole-person impairment due to his covered illnesses.

3. On June 24, 2011, the employee filed a claim for additional impairment benefits. The medical evidence establishes that the employee had an additional whole-person impairment of 17% due to his covered illnesses.

4. However, before he could be paid, the employee died on November 21, 2011, and the evidence establishes that his death was due solely to a cause or causes other than his covered illnesses.

5. The claimant filed her survivor claim on October 23, 2012, seeking the unpaid award of $42,500.00 in impairment benefits. The record establishes that she is the surviving wife of the employee, and was married to him for the entire one-year period immediately prior to his death.

6. On December 27, 2013, the Denver district office issued a recommended decision to deny this claim, on the ground that the claimant was not eligible to make the election set out in 42 U.S.C. § 7385s-1(2)(B) because the employee previously received an award of $7,500.00 for a 3% whole-body impairment due to his covered illnesses.

In light of the above-noted findings of fact, FAB also hereby makes the following:

CONCLUSIONS OF LAW

As set out earlier in this final decision, this matter has been returned to FAB with instructions to issue a new final decision consistent with the August 10, 2016 Director’s Order.

As found by the court in its August 5, 2016 ruling, the language of 42 U.S.C. § 7385s-1(2)(B) is unambiguous and must be read to say that if a covered employee files a claim for Part E monetary benefits but dies before payment of those same monetary benefits occurs, and the employee’s death is due solely to a cause other than his or her covered illness or illnesses, then the employee’s survivor can elect to stand in the deceased employee’s shoes to receive the unpaid award in lieu of the usual survivor benefits available under § 7385s-3 of EEOICPA. This means that in the present case, the claimant is eligible to make the election to receive the deceased employee’s increased impairment benefits, which were claimed on June 24, 2011, but were not paid before his death on November 21, 2011, under § 7385s-1(2)(B). The undisputed fact that the employee earlier claimed for and received an award of impairment benefits prior to his death does not act as a bar on the claimant’s right to make this statutory election.

Therefore, and in light of the above findings of fact, FAB concludes: (1) that the claimant meets the definition of a survivor under Part E of EEOICPA; (2) that the record establishes that she has elected to receive the employee’s unpaid award of increased impairment benefits; (3) that the weight of the medical evidence establishes that the employee had an increased whole-person impairment of 17%; and (4) that the increased impairment results in a Part E monetary award of $42,500.00.

Accordingly, and in conformance with the Director’s August 10, 2016 instructions and the court’s August 5, 2016 ruling, FAB hereby reverses the Denver district office of DEEOIC’s December 27, 2013 recommended decision, and awards the employee’s unpaid award of $42,500.00 for his increased impairment benefits under Part E to the claimant.

Denver, Colorado

Sandra Vicens-Pecenka

Hearing Representative

Final Adjudication Branch