U.S. DEPARTMENT OF LABOR OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH
 DOL Seal


NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for survivor benefits under Part E of 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, the claim is accepted.

STATEMENT OF THE CASE

On August 2, 2001, the claimant filed a claim for benefits under Part B of EEOICPA as the recipient of an award under section 5 of the Radiation Exposure Compensation Act (RECA). In support of her claim, she submitted: (1) a copy of the employee’s Washington death certificate that listed his date of death as October 16, 1980, gave his cause of death as a self-inflicted gunshot wound to his head and noted that his “severe long-standing anthro-silicosis (black lung)” was a significant condition that contributed to his death, and listed “[Claimant]” as his spouse; (2) a copy of the claimant’s Kentucky birth certificate, which indicated that she was born in 1931; and (3) an officiant’s acknowledgement of a marriage in Tennessee on December 2, 1950 between “[Employee]” and “[Claimant].”

After receiving confirmation from the Department of Justice that the claimant had received a RECA section 5 award on March 19, 1993 based on the employee’s pulmonary fibrosis, FAB accepted the Part B claim in a final decision dated October 4, 2001, and awarded the claimant compensation in the amount of $50,000.00.

On February 14, 2005, the claimant filed a claim under Part E for the employee’s death allegedly due to his accepted pulmonary fibrosis, as well as his alleged cor pulmonale and pneumoconiosis. FAB issued a final decision to deny that second claim on May 23, 2006. By letter dated May 21, 2011, the employee requested that her Part E claim be reopened, and submitted an April 17, 2011 report by Dr. Samuel Roll, a clinical psychologist, who opined that the employee’s “lung disease. . .left him psychologically depleted, depressed, and devastated. This let [sic] to his suicide. There are no feasible alternate hypotheses to explain his suicide.” On June 29, 2011, the district director of the Denver district office denied the reopening request.

On October 2, 2014, the claimant filed another claim under Part E, alleging that the employee’s death was linked to his “silicosis and consequential severe clinical depression arising due to silicosis.” In support of this latest claim, she submitted an employment history for the employee in which she alleged that he had worked for: (1) Phillips Petroleum at the “Ana Lee Uranium Mine” from June 13, 1960 through May 15, 1963; and (2) United Nuclear Corporation at the Sandstone and Section 27 uranium mines from May 15, 1963 through November 7, 1969. In addition, she submitted Site Exposure Matrices (SEM) printouts showing that: (1) the Ann Lee Section 28 14 mine was operated by the Phillips Petroleum Company from 1958 through 1963 and by United Nuclear Corporation from 1963 through 1971; (2) the Sandstone mine was operated by the Phillips Petroleum Company from 1959 through 1963 and by United Nuclear Corporation from 1963 through 1970; (3) the Section 27 T14N R9W mine was operated by United Nuclear Corporation from 1967 through 1971; (4) crystalline silicon dioxide was present at all three mines; and (5) that the health effects of “Silicosis, simple,” “Silicosis, complicated” and “Silicosis, acute” were associated with crystalline silicon dioxide.

On October 7, 2014, the Denver district office issued a recommended decision to deny this claim. By letter dated November 25, 2014, the claimant objected to the recommended decision and requested a hearing, which was held on February 12, 2015. After the hearing, the claimant submitted: (1) a March 6, 1980 discharge summary report from Dr. J. D. Hughes with St. Luke’s General Hospital, which noted that the employee had “a long history of respiratory failure due to chronic lung disease associated with restrictive lung disease, silicosis, probable fibrosis associated with uranium exposure” and a diagnosis of silicosis; and (2) a February 19, 1980 chest x-ray report by Dr. R. E. Waud noting that the employee had a “working diagnosis & history” of “silicosis acute pneumonia.”

On May 20, 2015, FAB issued an order remanding the claimant’s Part E survivor claim to the district office to consider the newly submitted medical evidence for the claimed condition of silicosis. On September 23, 2015, the district office issued another recommended decision to deny the claimant’s current claim under Part E for the employee’s death. The claimant objected to the recommended decision, and submitted documents she had received from the National Institute for Occupational Safety and Health pursuant to a Freedom of Information Act request, which confirmed that the employee worked for Ann Lee Mine from June 15, 1960 through May 1, 1962; Sandstone Mine from May 1, 1962 through January 31, 1969; and United Nuclear Corp. from January 31, 1969 through September 11, 1970.

FAB issued a final decision on June 16, 2016 consistent with the September 23, 2015 recommendation. The claimant requested reconsideration of that final decision, and in a letter dated August 7, 2016, she submitted an August 14, 2016 report by Dr. Akshay Sood, who reviewed some of the employment, exposure and medical documents discussed above, along with medical literature, and opined that:

[Employee]’s silica dust exposure during his approximately 10 year uranium mine employment (between approximately 1959-1969) was at least as likely as not a significant factor in aggravating or contributing to the silicosis component of the anthracosilicosis condition (listed on the death certificate and autopsy report) as well as the interstitial fibrosis and emphysema, (listed on the autopsy report). The dust exposure was of adequate duration of 10 years, of adequate intensity (working underground) and adequate latency (of one decade) to be a substantial contributory cause to the patient’s conditions of silicosis, interstitial fibrosis and emphysema.

On September 1, 2016, FAB issued an order denying the claimant’s request for reconsideration of FAB’s June 16, 2016 decision. However, on December 1, 2016, the Director of DEEOIC issued an order vacating FAB’s June 16, 2016 final decision and September 1, 2016 order, and returned the case back to the Denver district office. In her order, the Director stated that, contrary to FAB’s conclusions in its June 16, 2016 decision and September 1, 2016 order, the claimant had provided persuasive medical evidence to meet her burden of proof under Part E. However, the Director further found that the claimant had not provided evidence documenting her marriage to the employee, or the existence and dissolution of any marriage that she may have entered into prior to her marriage to the employee.

By letter dated December 9, 2016, the district office requested that the claimant submit additional information to establish her status as an eligible surviving spouse. On December 20, 2016, the claimant submitted: (1) a copy of a marriage certificate indicating that she married James B. Cole on April 3, 1948 in Claiborne County, Tennessee; (2) a certified copy of a “Judgement Pro Confesso and Final Decree” issued in Case No. A8822 in the Domestic Relations Court of Knox County, Tennessee on September 1, 1949, in which the Court granted Mr. Cole an absolute divorce from the claimant, and “forever dissolved” the bonds of matrimony between them; and (3) a certified copy of a “Marriage Record” issued in Claiborne County, Tennessee, which certified the claimant’s licensed marriage to the employee on December 2, 1950.

On December 23, 2016, the Denver district office issued a recommended decision in which it found that: (1) the employee worked in RECA section 5 uranium mines from June 15, 1960 through September 11, 1970; (2) that the evidence established that he developed the covered illness of silicosis based on exposure to a toxic substance at uranium mines, which later caused his consequential condition of clinical depression and his subsequent death in an unbroken chain of causation; and (3) the claimant is the employee’s eligible surviving spouse. Thus, the district office recommended acceptance of the claimant’s Part E claim for an award of $125,000.00.

The claimant submitted a completed Form EN-16, signed on December 28, 2016, declaring that she has not filed a tort suit (other than an administrative or judicial proceeding for workers’ compensation) against a beryllium vendor or atomic weapons employer related to an exposure for which she would be eligible to receive compensation under EEOICPA; that she has not received any settlement or award from a claim or suit (other than a claim for workers’ compensation) against a third party related to an exposure for which she would be eligible to receive compensation under EEOICPA; that she has not filed for or received any state workers’ compensation benefits on account of the employee’s claimed illnesses; and that she has not pled guilty to or been convicted on 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.

On December 28, 2016, FAB received the claimant’s waiver of rights to object to the recommended decision.

After considering the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On October 2, 2014, the claimant filed a claim under Part E of EEOICPA as the surviving spouse of the employee. She alleged that the employee’s death was linked to his “silicosis and consequential severe clinical depression arising due to silicosis.”

2. The employee worked in RECA section 5 uranium mines from June 15, 1960 through September 11, 1970.

3. The employee was exposed to crystalline silicon dioxide during his employment in RECA section 5 uranium mines.

4. Medical records show that the employee was diagnosed with silicosis.

5. The employee died on October 16, 1980 due to a self-inflicted gunshot wound to his head, and his anthrocosilicosis was a significant condition that contributed to his death.

6. The claimant was married to the employee on December 2, 1950 and through the date of his death.

7. Medical records show that the employee’s work-related exposures aggravated and/or contributed to his silicosis, which later caused his consequential condition of clinical depression, and his subsequent death by suicide.

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

CONCLUSIONS OF LAW

As found above, the claimant is an eligible surviving spouse of the employee. This finding is based on the Tennessee marriage certificate, which shows that she and the employee were married on December 2, 1950, and the employee’s death certificate, which shows that they were still married as of the date of his death. While the claimant had a prior marriage to Mr. Cole before she entered into her marriage to the employee, she submitted evidence to show that the prior marriage was dissolved prior to the date upon which she married the employee. Thus, the claimant meets the definition of a “covered spouse” under Part E, and she is the only eligible survivor under Part E.

An otherwise eligible survivor is only entitled to survivor benefits under Part E if: (a) the deceased employee would have been entitled to compensation under Part E for a covered illness; and (b) it is “at least as likely as not” that exposure to a toxic substance at a Department of Energy (DOE) facility was a significant factor in aggravating, contributing to or causing the death of the employee. 42 U.S.C. § 7385s-3(a)(1). Part E of EEOICPA provides compensation for the eligible survivor of a section 5 uranium miner, miller or ore transporter determined to have contracted a covered illness through exposure to a toxic substance at a section 5 mine or mill to the same extent as it applies to a survivor of a DOE contractor employee determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility. 42 U.S.C. § 7385s-5(a)(2).

The medical evidence of record includes Dr. Sood’s August 14, 2016 report, which states that the employee’s exposure to crystalline silicon dioxide in uranium mines was at least as likely as not a significant factor in aggravating or contributing to the silicosis component of the contributing illness listed on his death certificate, anthracosilicosis. In addition, Dr. Roll, a clinical psychologist, opined in his April 17, 2011 report that the employee’s lung conditions led to his suicide. This evidence is of sufficient probative value to establish that the employee developed the covered illness of silicosis based on exposure to a toxic substance at covered uranium mines. It is also of sufficient probative value to establish that the employee sustained a consequential illness of clinical depression.

It is a generally accepted principle under workers’ compensation law that the act of suicide is not an intervening cause that breaks the “chain of causation” between an employee’s injury or illness and his or her subsequent death, as explained in the following:

If the sole motivation controlling the will of the employee who knowingly decides to commit suicide is the pain and despair caused by the injury, and if the will itself is deranged and disordered by these consequences of the injury, then it seems wrong to say that this exercise of will is “independent,” or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation.

2 Arthur Larson & Lex K. Larson, Workers’ Compensation Law, § 38.03 (2016) (footnote omitted). Consistent with this generally accepted principle, it is also DEEOIC’s policy that death by suicide may be compensable under Part E: (1) if the deceased employee would have been entitled to compensation under Part E for a covered illness; and (2) it is “at least as likely as not” that exposure to a toxic substance at a DOE facility or RECA section 5 uranium mine was a significant factor in aggravating, contributing to, or causing the employee’s death by suicide in an unbroken chain of causation. Applying these principles to the facts of this case, the undersigned concludes that the medical evidence establishes that the employee’s death is compensable under Part E, since there was an unbroken “chain of causation” between the employee’s covered illness of silicosis and his October 16, 1980 death by suicide. Briefly put, the employee’s silicosis led to the development of his clinical depression, and because of that clinical depression, the employee committed suicide. Because there was no intervening event that broke this chain of causation, his death due to suicide is compensable.

For the reasons above, FAB accepts the claimant’s survivor claim under Part E of EEOICPA, and hereby awards her benefits in the amount of $125,000.00 under that Part.

Washington, DC

John P. Davidson

Hearing Representative

Final Adjudication Branch