Docket Number: 20150227-20000844-2

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 is the decision of the Final Adjudication Branch (FAB) concerning your claim 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, FAB accepts your claim for the death of [Employee] due to colon cancer in the amount of $131,250.00 under Part E of EEOICPA.

STATEMENT OF THE CASE

You filed a survivor claim (Form EE-2) on August 26, 2013, as a surviving child under Part B and Part E of EEOICPA, based on [Employee]’s colon cancer. You provided a copy of your birth certificate identifying your date of birth as June 3, 1985 and that [Employee] is your father and a copy of a marriage certificate documenting your name change. [Employee]’s death certificate establishes that he died on July 21, 1997 due to colon cancer, that he was 37 years old and that he was divorced at the time of his death.

You also provided evidence that there may be three additional potentially eligible survivors of [Employee]. Specifically, you indicated that [Employee] provided a sperm sample that was used after his death for in vitro fertilization and resulted in the birth of triplets in May 2001 (hereinafter referred to as “the triplets”). To date, none of the triplets have filed claims for benefits.

FAB previously issued a final decision on December 30, 2013 accepting your claim for survivor benefits for [Employee]’s colon cancer under Parts B and E. In that decision, FAB concluded that [Employee] was a “covered employee with cancer” under Part B and a “covered Department of Energy contractor employee” who was diagnosed with a “covered illness” and who died not less than 20 years prior to his Social Security retirement age under Part E. Therefore, FAB concluded that [Employee]’s survivors are entitled to a total of $150,000.00 under Part B and a total of $175,000.00 under Part E. FAB then concluded that you are an eligible survivor of [Employee], and awarded you one-quarter of the available survivor benefit ($37,500.00 under Part B and $43,750.00 under Part E), with the remaining three-quarters held in abeyance pending a determination of the potential eligibility of the triplets born after the death of [Employee].

Following that final decision, the Seattle district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) referred the case to the Policy Branch for guidance as to the potential eligibility of the triplets. The Policy Branch responded by providing a memorandum dated January 23, 2015, which stated:

After reviewing the statutory language, and the guidance provided in the Federal (EEOICPA) Procedure Manual, Chapter 2-1200, the Office of the Solicitor of Labor (SOL) and the Policy Branch agree that the triplets are not eligible under Part E of the Act. They were not alive at the time of the employee's death; thus, they cannot meet the definition of a “covered” child under Part E.[1]

The Seattle district office then issued a recommended decision on February 27, 2015 to accept your claim for [Employee]’s death due to colon cancer under Part E and to award you $131,250.00, the remaining three-quarters of the available survivor benefit under Part E.

The case file contains your signed Form EN-16, by which you certify that you have not filed a tort suit related to an exposure for which you would be eligible to receive compensation under EEOICPA; 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; that you have not filed for or received any state workers’ compensation benefits on account of [Employee’s] claimed illness; and that you have not pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under EEOICPA or any other federal or state workers’ compensation law. Further, you certified that you do not know of any other persons who may also be eligible to receive compensation under EEOICPA as a survivor of the deceased employee upon whom your claim is based.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for survivor benefits on August 26, 2013.

2. By prior final decision dated December 30, 2013, your claim for [Employee]’s colon cancer was accepted under Part B and Part E. You were awarded one-quarter of the available survivor benefits, with the remaining three-quarters held in abeyance.

3. [Employee] died on July 21, 1997, due to colon cancer. [Employee] was 37 years old and divorced on the date he died.

4. [Employee]’s death is causally linked to exposure to toxic substances at a DOE facility.

5. [Employee]’s normal retirement age was 67 years, and he had not less than 20 years of lost wages due to his death.

6. You are the biological child of [Employee].

7. There are no other potentially eligible survivors of [Employee] under Part E of EEOICPA.

Based on the above findings of fact, FAB hereby also makes the following:

CONCLUSIONS OF LAW

The undersigned has reviewed the February 27, 2015 recommended decision issued by the Seattle district office. 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) (2014). You waived your right to file an objection to the findings of fact and conclusions of law in the February 27, 2015 recommended decision.

By prior final decision dated December 30, 2013, it was established that [Employee] is a “covered DOE contractor employee” as defined in Part E, that he was diagnosed with the “covered illness” of colon cancer, and that colon cancer caused his death not less than 20 years prior to his normal Social Security retirement age. You were awarded $43,750.00, or one-quarter of the total available Part E survivor benefit of $175,000.00, with the remaining three-quarters, or $131,250.00, held in abeyance pending a determination of the potential eligibility of the triplets.

In order to be a “covered child” under Part E of EEOICPA, the evidence must establish that the claimant is a child of the employee who, at the time of the employee’s death, either had not attained the age of 18 years, or had not attained the age of 23 years and was continuously enrolled as a full-time student in one or more educational institutions since attaining the age of 18 years, or was any age and incapable of self-support. 42 U.S.C. §§ 7385s-3, 7385s-3(d)(2).

[Employee] died on July 21, 1997. Prior to his death, he left a sperm sample that was later used to conceive triplets who were born in May 2001. These triplets cannot be considered “covered” children under Part E, which requires a child to establish their eligibility status as of the date of the death of the employee. When [Employee] died, the triplets had not yet been conceived, and therefore were not children able to meet any of the eligibility definitions under Part E. Thus, you are the only eligible survivor of [Employee] and you are hereby awarded the $131,250.00 previously held in abeyance by the prior final decision.

Seattle, Washington

Aaron M. Warren, Hearing Representative

Final Adjudication Branch