Docket Number: 20160927-7341-4

U.S. DEPARTMENT OF LABOR

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

ORDER DENYING REQUEST

FOR RECONSIDERATION

This is the response to the timely May 10, 2017 request for reconsideration of the April 11, 2017 decision of the Final Adjudication Branch (FAB) on your claim for wage-loss benefits, based on your two accepted consequential illnesses of osteopenia and degenerative disc disease with an alleged “trigger month” of January 1993, under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. In that decision, FAB noted that your consequential illnesses were accepted because the medical evidence established that you developed them as a consequence of long-term use of proton pump inhibitors, which had first been prescribed to treat your underlying covered illness of chronic atrophic gastritis on March 29, 1995. Therefore, FAB concluded that since your wage-loss claim was based on the allegation that you first lost wages in January 1993 due to your consequential illnesses, but you were not prescribed the proton pump inhibitors that were the accepted cause of those consequential illnesses until more than two years later on March 29, 1995, your claim for wage-loss benefits had to be denied because the case file lacked “any evidence whatsoever to demonstrate that you began losing wages during the month and year alleged as a result of your consequential illnesses.”

In support of the May 10, 2017 reconsideration request, your authorized representative did not submit any new factual or medical evidence, nor did she submit any such evidence in response to a June 6, 2017 letter from FAB that invited her to do so by June 27, 2017. Your representative did, however, submit additional arguments in support of her May 10, 2017 request on June 26, 2017. Taken together, these two submissions raise the following arguments, to the extent I can understand them:

1. The Cleveland district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) did not “develop the radiation exposure reported in the claim, as it relates to osteopenia and degenerative disc disease,” as ordered by the Director of DEEOIC when she reopened your wage-loss claim.

2. The intent of Congress was to compensate workers for their work-related wage-loss, and DEEOIC “does not have the authority to change the law or its intent” by issuing regulations and internal procedures that have “limited that compensation. . . .”

3. DEEOIC wrongly “presumes an immediate diagnosis in [Employee]’s claim by requiring a diagnosis in the month of claimed wage loss.”

4. “Ample evidence is in this claim file shows [sic] that [Employee] has been injured by his covered employment under this program, and that he has experienced wage loss due to his accepted conditions. Yet [DEEOIC] continues to deny wage loss because [Employee] became too sick to work before he had a definitive diagnosis. The determination that wages were lost due to a covered condition should be the starting point. Then determining the percentage of wage loss can be determined from the last wages earned. Zero wages earned does not mean the claimant has lost no wages, only that they cannot earn wages anymore.”

5. Your claim for wage-loss benefits commencing January 1993 was incorrectly adjudicated in the June 30, 2015 recommended decision and December 3, 2015 final decision.

6. And finally, your authorized representative argues that your claim for wage-loss benefits commencing January 1993 was decided in a manner that was inconsistent with the similar wage-loss claims of other unspecified claimants. As part of this argument, your representative alleged that she was submitting copies of final decisions in these alleged claims; however, her June 26, 2017 submission was not accompanied by the alleged “Attachment.”

After careful consideration of the above arguments, and for the reasons set out below, the request for reconsideration is hereby denied.

With regard to the first argument, an examination of the Director’s order reveals that your representative had alleged that your two consequential illnesses were actually “covered” illnesses in their own right that were due to your “work-related exposure to plutonium,” and that the Director ordered that these allegations “should be considered” by the district office. The file shows that this is exactly what transpired. As part of the district office’s consideration of your representative’s allegations, it investigated the long history of your case and verified that the very same allegations had already been considered and rejected: (1) by the Department of Energy on March 10, 2004 when it accepted the Physicians Panel’s negative review of those allegations during the Department of Energy’s consideration of your August 16, 2001 request for assistance with a claim for state workers’ compensation under former Part D of EEOICPA; (2) by FAB in its May 2, 2007 final decision; and (3) by the United States District Court for the District of Colorado in its January 29, 2009 decision.[1] The Cleveland district office then wrote to both you and your representative on June 21, 2016 to inform you of the results of its investigation, as follows:

I also want to point out that although Dr. Lundeen opined in her December 17, 2014 report that your osteopenia and degenerative disc disease may be related to your radiation exposure at work, as distinguished from being consequences of your taking medication prescribed for treatment of your chronic atrophic gastritis, your EEOICPA claim for those two illnesses (and others) was denied by [FAB] on May 2, 2007, and that portion of FAB’s May 2, 2007 decision was affirmed by Judge Babcock on January 29, 2009. So neither of these other claims are before me.

The above discussion shows that the district office fully complied with the Director’s instruction that it “consider” the allegations in question, and your representative’s belief otherwise is simply not supported by the evidence of record.

As for the second argument, DEEOIC has ample authority to engage in a notice-and-comment rulemaking to implement the wage-loss provisions contained in 42 U.S.C. § 7385s-2(a)(2). This authority was set out explicitly by Congress in § 7385s-10(e) of EEOICPA, and DEEOIC availed itself of that authority when it promulgated the current regulations. In addition, there is no dispute that DEEOIC also has the inherent administrative authority to issue internal procedural guidance to its claims staff describing the manner in which they should develop and adjudicate wage-loss claims. And as for the contention that DEEOIC’s regulations and procedures have wrongly “limited” the ability of claimants to obtain wage-loss benefits, those same regulatory and procedural requirements have found favor with the courts. For example, one court noted the following:

For a claimant to recover under Part E, he must first demonstrate that he held a job at which he was earning wages. Mr. Trego satisfied this condition. The claimant must next demonstrate that he experienced a loss in those wages during a particular month. Mr. Trego also satisfied this condition. Critically, a claimant must then demonstrate that he suffered wage-loss in that month as a result of his covered illness, i.e., that he “would have continued to earn wages in that month from that job but for the covered illness.” There is substantial evidence that Mr. Trego suffered wage-loss in January 1997, the “trigger month,” not because of his covered illness, but because he was laid off as part of a reduction in force. Mr. Trego’s second argument fails for this reason.

Trego v. U.S. Dep’t of Labor, 681 F.Supp.2d 894, 898 (E.D. Tenn. 2009) (citations to the record and footnote omitted). These regulatory and procedural requirements were explained to both you and your authorized representative in FAB’s April 11, 2017 decision, and a mere disagreement with them does not provide a valid basis to reconsider that decision.

With respect to the third argument, your representative seems to be disagreeing with a clear and plain requirement of the statute. Section 7385s-2(a)(2)(A)(i) refers to “wage loss as the result of any covered illness,” and a medical condition simply cannot be considered a “covered illness” until it has been diagnosed by a physician. And as for her assertion that this somehow prevented you from being able to establish your entitlement to wage-loss benefits, this is not what led to the denial of your claim for those benefits. Rather, your claim alleged that you first experienced wage-loss more than two years before you were first prescribed the medications that caused you to develop your consequential illnesses, and it was this temporal impossibility that was fatal to your claim.

I note that your representative’s fourth argument attempts to transform the statutory framework of 42 U.S.C. § 7385s-2(a)(2) from one that explicitly focuses on an actual loss of wages, to one that instead focuses on a potential loss of wage-earning capacity. However, this same argument has been rejected by multiple courts, and need not be discussed further in this order. See, e.g., Trego, 681 F.Supp.2d at 898 n. 2 (“The plain language of the statute speaks in terms of actual wages, not earning capacity.”); Lott v. U.S. Dep’t of Labor, 2014 WL 5169078 *4 (D. Nev. 2014) (“The EEOICPA’s wage-loss test requires an employee to prove the cause of his actual lost wages, not simply the cause of any future inability to earn wages thereafter.”).

With respect to the fifth argument concerning the manner in which your wage-loss claim was previously adjudicated in the June 30, 2015 recommended decision and December 3, 2015 final decision, it appears that your authorized representative’s concern on this point is misplaced. The reasons for this are simple: (1) because the Director of DEEOIC essentially agreed on this point when she reopened your wage-loss claim for possible further development and the issuance of new recommended and final decisions; and (2) because once FAB’s December 3, 2015 final decision was vacated and your wage-loss claim was reopened, that prior adjudication no longer had any effect on the subsequent adjudication that ultimately led to FAB’s April 11, 2017 decision.

And finally, as for your representative’s sixth argument, I have already pointed out above that she did not submit the alleged “Attachment” that she discussed in her June 26, 2017 submission. Therefore, I have no basis upon which to evaluate your representative’s many assertions of inconsistency on the part of DEEOIC.

Accordingly, I must deny your representative’s request for reconsideration because she did not submit any pertinent and relevant new arguments or evidence that would justify reconsideration of the April 11, 2017 final decision on your wage-loss claim, and the April 11, 2017 decision of FAB is therefore final on the date of issuance of this order. See 20 C.F.R. § 30.319(c)(2).

Washington, DC

Betty Jo Fortune

Hearing Representative

Final Adjudication Branch