Docket Number: 20160112-20000844-3

U.S. DEPARTMENT OF LABOR

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

EMPLOYEE:	[Name Deleted]
CLAIMANT:	[Name Deleted]
CASE ID NUMBER:	[Number Deleted]
DOCKET NUMBER:	20160112-20000844-3
DECISION DATE:	February 11, 2016

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 survivor benefits based on [Employee]’s colon cancer under Part B of EEOICPA and awards you compensation in the amount of $112,500.00.

STATEMENT OF THE CASE

You filed a claim with the Division of Energy Employees Occupational Illness Compensation (DEEOIC) 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 natural parent and a copy of a marriage certificate documenting your name change from birth to present. [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 which 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 issued a final decision on December 30, 2013 to accept your claim for survivor benefits for [Employee]’s colon cancer under Part B and Part E. In that decision, FAB concluded that [Employee] was a member of the Hanford Special Exposure Cohort (SEC) and therefore a “covered employee with cancer” under Part B and a “covered DOE 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, [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 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). FAB held in abeyance the remaining three-quarters under Part B and Part E pending a determination of the potential eligibility of the triplets born after the death of [Employee].

The Seattle district office referred your claim to the DEEOIC national office’s Policy Branch for guidance as to the potential eligibility of the triplets born as a result of the in vitro fertilization procedure using [Employee]’s sperm.

The Policy Branch provided 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 EEOICPA because they were not alive at the time of the employee’s death, and thus they cannot meet the definition of a child under Part E. However, the definition of a “biological child” under Part B is broad and refers to all persons with either a presumed or established genetic link to the deceased employee.[1]

FAB then issued a final decision on March 31, 2015 to accept your claim for [Employee]’s death due to colon cancer and awarded you the remaining three-quarters of the available survivor benefit ($131,250.00) under Part E of EEOICPA.

Following another review by SOL, the Seattle district office was notified that DEEOIC would adopt the “local law” doctrine to determine whether an individual conceived after an employee’s death qualified as a survivor under Part B. In its opinion to the Policy Branch, SOL indicated that based on its review of the relevant laws of British Columbia, Canada, where the sperm samples were stored and the triplets were born, the triplets did not qualify under Part B of EEOICPA as surviving children of the employee.

On January 12, 2016, the Seattle district office issued a recommended decision to accept your claim for survivor benefits based on [Employee]’s colon cancer under Part B. The district office found that [Employee] was a member of the SEC diagnosed with colon cancer, a specified cancer, and as you are [Employee]’s only surviving child and only eligible survivor, as defined under Part B of EEOICPA, you are entitled to the remaining $112,500.00 in survivor benefits under Part B.

You submitted a Form EN-16 certifying that you have not filed a tort suit against a beryllium vendor or atomic weapons employer 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 the claimed illness, 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, and 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.

On January 15, 2016, FAB received written notification indicating that you waived all rights to file objections to the findings of fact and conclusions of law in the recommended decision.

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

FINDINGS OF FACT

1. You filed a claim as a surviving child of [Employee] on August 26, 2013.

2. By prior final decision dated December 30, 2013, FAB established that [Employee] was a member of the Hanford SEC and a “covered employee with cancer” under Part B.

3. FAB awarded you one-quarter of the available survivor benefit under Part B and held the remaining three-quarters in abeyance pending additional survivorship development.

4. You are the natural child of [Employee].

5. There are no other potentially eligible survivors of [Employee] under Part B.

6. You have not filed a tort suit against a beryllium vendor or atomic weapons employer 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 benefits under EEOICPA. You have not filed for or received any state workers’ compensation benefits on account of the claimed illness and 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. 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.

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

CONCLUSIONS OF LAW

The undersigned has reviewed the recommended decision issued by the Seattle district office on January 12, 2016. The program’s regulations provide that if a 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. You waived your rights to file objections to the findings of fact and conclusions of law contained in the recommended decision. 20 C.F.R. § 30.316(a) (2015).

In order to be afforded coverage under Part B of EEOICPA, it must be established that the employee was diagnosed with a designated occupational illness incurred as a result of exposure to silica, beryllium, and/or radiation, i.e., cancer, beryllium sensitivity, chronic beryllium disease and/or chronic silicosis. 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a) (2015). Further, the illness must have been incurred while in the performance of duty. 42 U.S.C. § 7384n.

By prior final decision dated December 30, 2013, FAB established that [Employee] was a member of the Hanford SEC and a “covered employee with cancer” under Part B. In that final decision, FAB awarded you one-quarter of the available survivor benefit under Part B ($37,500.00) and held the remaining three-quarters in abeyance pending additional survivorship development. As discussed above, and as determined by the Policy Branch, you are the only eligible survivor of [Employee] under Part B of EEOICPA.

Accordingly, you are hereby awarded the $112,500.00 previously held in abeyance by prior final decision.

Seattle, Washington

Aaron M. Warren

Hearing Representative

Final Adjudication Branch