| 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: 20160211-20001255-5
DECISION DATE: June 16, 2016
NOTICE OF FINAL DECISION FOLLOWING A
REVIEW OF THE WRITTEN RECORD
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, your claim under Part E for impairment benefits due to chronic obstructive pulmonary disease (COPD) is denied.
STATEMENT OF THE CASE
On September 24, 2013, you filed a claim under Part E for asthma and chronic bronchitis. On May 19, 2014, FAB issued a final decision denying your claim for asthma, finding that there was insufficient evidence of a diagnosis of this claimed condition. FAB’s denial was based on the opinion of a Contract Medical Consultant (CMC) who reviewed your medical records and opined that the records did not support a diagnosis of asthma. However, on June 16, 2014, FAB issued a second final decision that accepted the remainder of your Part E claim for the covered illness of COPD, finding that you contracted COPD through exposure to a toxic substance at the Hanford site, where you worked for a Department of Energy (DOE) contractor intermittently between July 29, 1963 and March 25, 1988. You were awarded medical benefits for COPD in the June 16, 2014 decision.
You subsequently requested impairment benefits due to your COPD on July 8, 2014, and your claim was sent to a CMC for an evaluation. In a September 8, 2014 report, the CMC opined that you had a 0% whole-person impairment due to COPD. However, the CMC also opined that you had a 22% whole-person impairment due to asthma, a non-accepted condition, and reported his understanding that it was the policy of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) that an impairment evaluation must rate, without apportionment, all of the illnesses that have an effect on an organ or body system that has been compromised by a covered illness (in this case, your lungs).
Following its receipt of the CMC’s evaluation, the district office issued a September 11, 2014 recommended decision to award you impairment benefits for a 22% whole-person impairment in the amount of $55,000.00. However, FAB issued an October 2, 2014 remand order, finding that under EEOICPA, “in order to make an impairment award we must have a triggering impairment attributed to an accepted condition.” Noting that the claimed illness of asthma had been denied in a final decision dated May 19, 2014, FAB went on to state that “without an impairment rating for the covered illness, COPD, the point of looking at the organ as an unapportioned whole cannot be reached and the condition of asthma is not in posture for an impairment rating.” Thus, FAB returned your request for impairment benefits to the district office for issuance of a new recommended decision limited to permanent impairment due to your accepted COPD only.
This issue was eventually referred to the Counsel for Energy Employees Compensation within the Office of the Solicitor of Labor for an opinion on the question of whether it is proper to consider non-accepted illnesses impacting the same organ or body system that is compromised by an accepted illness, when the accepted illness results in a 0% whole-person impairment rating. In response, the Counsel pointed out that there is a very clear condition precedent to the awarding of impairment benefits under Part E of EEOICPA in 20 C.F.R. § 30.900(b); namely, the existence of medical evidence which establishes that the employee has an identifiable and ratable impairment of either an organ or body function “that is the result of the covered illness.” It is only after such medical evidence of impairment due to a covered illness has been obtained that any consideration can be given to possible additional impairment to the same organ or body function that is due to something other than a covered illness.
After receiving the Counsel’s advice, the district office issued a February 11, 2016 recommended decision to deny your request for impairment benefits due to your accepted COPD, finding that the CMC opined that you had a 0% impairment due to this condition, even though you had a 22% impairment due to asthma, a condition that was denied in the May 19, 2014 final decision.
OBJECTIONS
On February 8, 2016, you filed a timely objection to the recommended decision and raised the following two objections:
1. You contend that the issuance of two final decisions, the first denying your claim for asthma and the second accepting your claim for COPD, put you at a disadvantage. You indicate that you would have not agreed with the denial of your asthma claim if both illnesses had been adjudicated at the same time.
2. You also take issue with the May 19, 2014 final decision denying your Part E claim for asthma, arguing that the weight of medical evidence establishes that have asthma.
In response to your objections, the denial of your claim for asthma on May 19, 2014 does not preclude a request to reopen your asthma claim based on new evidence. However, the issue of whether you have now submitted medical evidence supporting a diagnosis of asthma is not before FAB at this time and the May 19, 2014 denial of your Part E claim for asthma remains in effect.
The only issue before FAB at this time is whether the impairment evaluation of 0% for your COPD is correct, and the regulations contemplate that a successful challenge to an impairment evaluation relied upon by the district office must be based on an additional impairment evaluation submitted by you that is more probative than the evaluation relied upon by the district office. See 20 C.F.R. §§ 30.907, 30.908. In the instant case, FAB has not received an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office.
After considering your objections and the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. On September 24, 2013, you filed a claim for benefits under Part E of EEOICPA for the illnesses of asthma and chronic bronchitis/COPD.
2. A May 19, 2014 final decision denied your claim for asthma. A June 16, 2014 final decision accepted your claim for COPD.
3. You requested impairment benefits due to COPD on July 8, 2014.
4. The CMC, a physician qualified to perform impairment evaluations, determined that your impairment rating for this covered illness was 0%.
Based on the above-noted findings of fact, FAB also hereby makes the following:
CONCLUSIONS OF LAW
Claimants are responsible for establishing their entitlement to benefits and bear the burden of proving the existence of each element of a compensable claim category by a preponderance of the evidence. 20 C.F.R. §§ 30.110, 30.111(a). To qualify for impairment benefits under Part E, you must establish that you are a covered DOE contractor employee who was diagnosed with a covered illness and that, as the result of the covered illness, you have a whole-person impairment rating as determined by a qualified physician in accordance with the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. See 42 U.S.C. §§ 7385s-2(a)(1)(A) and (B), 7385s-2(b); 20 C.F.R. §§ 30.900, 30.901.
By a prior final decision, FAB accepted your claim for COPD, and the impairment evaluation of the CMC demonstrates that your whole-person impairment due to COPD is 0%. The CMC also opined that you had a 22% whole-person impairment due to asthma; however, there must be a whole-person impairment based on your COPD before other lung conditions may be taken into account. Because you have an impairment rating of 0% that has been determined by a qualified physician, your claim under Part E for impairment benefits due to COPD is hereby denied.
Seattle, Washington
Alison M. Supanich
Hearing Representative
Final Adjudication Branch