Docket Number: 20160927-7341-5

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 June 26, 2017 request for reconsideration of the June 6, 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 September 1995, 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 found that you did not have a job earning wages in September 1995, nor did you have any income from wages during the entire calendar year 1995, and therefore your claim for wage-loss benefits based on an alleged “trigger month” of September 1995 had to be denied because the case file lacked any evidence that you first lost wages in September 1995 due to your consequential illnesses, as you alleged.

In support of the June 26, 2017 reconsideration request, your authorized representative did not submit any new factual or medical evidence. FAB subsequently wrote to your representative on June 30, 2017 to invite her to submit such evidence and on July 6 and 21, 2017, she did so. She also submitted a number of arguments in her June 26, 2017 and July 6, 2017 submissions; taken together, they fall into two general areas:

· Your current claim for wage-loss benefits based on a “trigger month” of September 1995 was “treated in a completely different manner than other wage loss claims filed and decided during the same time period.” In support of this argument, your representative submitted copies of the July 2009 version of Chapter 2-1400 of the Federal (EEOICPA) Procedure Manual and EEOICPA Transmittal No. 15-07 (issued July 2015), a written discussion of how your claim compared to three other unspecified wage-loss claims, a selection of redacted documents and decisions from those other three claims, redacted copies of two other final decisions she felt supported your wage-loss claim, and copies of approximately 104 pages from your own case file.

· The Cleveland district office of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) did not follow the Director of DEEOIC’s instruction in her order reopening your earlier wage-loss claim based on an alleged “trigger month” of January 1993.

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

With respect to the first argument in support of your representative’s request, I note that two of the first three wage-loss claims (with docket numbers 10011321-2008 and 20120416-19693-1) submitted in support of that argument are easily distinguishable from your wage-loss claim, since they were both adjudicated under the “Special Rules for Certain Survivor Claims Under Part E of EEOICPA” found at 20 C.F.R. § 30.815, and those special rules do not apply to your current claim for wage-loss benefits, based on an alleged “trigger month” of September 1995. As even your representative recognizes in her July 6, 2017 submission, the use of these special rules is the reason for the perceived differences between the way these survivor claims were adjudicated, and the way your current wage-loss claim has been adjudicated. In addition, the two redacted decisions she submitted on July 21, 2017 are also easily distinguished from your claim, because in both of those other claims, the case file contained probative evidence from the Social Security Administration showing that both of those claimants had experienced an actual loss of wages due to their accepted illnesses, while the file for your claim is devoid of any such evidence of a first loss of wages in September 1995.

Turning to the documents your representative submitted for the remaining third wage-loss claim in the first group of decisions, as well as EEOICPA Transmittal No. 15-07 and the July 2009 version of Chapter 2-1400 of the Procedure Manual, she argues that those documents provide support for her contentions: (1) that you were required to submit more factual and medical evidence than is necessary or required by the statute; and (2) your other wage-loss claim based on your covered illness of chronic atrophic gastritis, which was denied by FAB in a September 30, 2010 final decision, should have been developed and adjudicated using the procedures that were in effect in 2009. The second of these two contentions regarding this first wage-loss claim of yours, which is not being addressed in the adjudication of your current wage-loss claim, seems to be the focus of the vast majority of your representative’s attention in her June 26, 2017 and July 6, 2017 submissions. However, as both you and your representative have previously been informed, your claim for wage-loss benefits based on chronic atrophic gastritis was denied by FAB on September 30, 2010 and was not reopened by the Director of DEEOIC when she issued her order in your case. Therefore, your representative’s many assertions regarding the manner in which this other wage-loss claim was adjudicated are entirely irrelevant to the only matter before me, which is the request for reconsideration of the denial of your third wage-loss claim based on your two accepted consequential illnesses, with an alleged “trigger month” of September 1995.

The first of these two contentions—that you were somehow held to a higher burden of proof—is simply not true and finds no support in the case file. As you have been informed on multiple occasions, since you are alleging that you first experienced a loss of wages due to your accepted consequential illness in September 1995, you have the burden of proof to provide factual evidence that you had a job from which you were earning wages at that time, and that you first experienced an actual loss of those wages in the month alleged, i.e., September 1995. Your failure to submit that factual evidence has been, and remains, the sole reason why your current wage-loss claim has been denied. Regardless of how firmly you and your representative believe otherwise, proving that you physically did not have the capacity to earn wages in the month of September 1995 is not a factor in determining eligibility for wage-loss benefits under Part E of EEOICPA. Rather, 42 U.S.C. § 7385s-2(a)(2)(A)(i) explicitly focuses on “the calendar month during which the employee first experienced wage loss as the result of any covered illness contracted by that employee through exposure to a toxic substance at a Department of Energy facility.” (emphasis added) Put another way, it is impossible to prove that you “first experienced wage loss” unless you also prove that you were earning wages before you “first experienced wage loss.” This you have not been able to do, resulting in the denial of your wage-loss claim.

And as for the second argument raised by your authorized representative in her June 26, 2017 and July 6, 2017 requests regarding the Director of DEEOIC’s reopening order, an examination of that 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 in the adjudication of your second wage-loss claim with an alleged “trigger month” of January 1993. 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] This 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 not supported by the record. More importantly, not only is this argument irrelevant to your entirely separate and distinct wage-loss claim based on an alleged “trigger month” of September 1995, it was also raised by your representative at the April 12, 2017 hearing and rejected by FAB in the June 6, 2017 decision. Merely repeating arguments that have already been considered and rejected by FAB is not an acceptable ground for requesting reconsideration of a final decision.

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 June 6, 2017 final decision on your wage-loss claim, and the June 6, 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

David F. Howell

Hearing Representative

Final Adjudication Branch