| 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: | 20170907-65303-7 |
| DECISION DATE: | November 16, 2017 |
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning your request for medical benefits 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, the evidence of record is insufficient to approve your request for a health club membership as hydrotherapy treatment of your covered illness of cataracts under Part E of EEOICPA. Therefore, your request for a health club membership is denied.
STATEMENT OF THE CASE
On November 17, 2010, FAB issued a final decision to accept your claim for cataracts under Part E of EEOICPA. In that decision, FAB concluded that you are a “covered Department of Energy (DOE) contractor employee” who was diagnosed with the “covered illness” of cataracts in both eyes, and it is “at least as likely as not” that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing your cataracts. Accordingly, FAB awarded you medical benefits for the treatment of cataracts under Part E.
On December 3, 2015, FAB issued another final decision to deny your request for reimbursement of mileage expenses traveling to and from a health club for hydrotherapy for your cataracts for the years 2007 through 2012. In this decision, FAB reviewed medical reports submitted on your behalf from Dr. Martin W. Graf, Dr. David L. Parver and Dr. J. Alberto Martinez, and determined that this evidence was insufficient to establish that hydrotherapy (i.e., walking in a pool of water with your eyes submerged) was a reasonable and necessary treatment of your post-cataracts condition. For this reason, FAB denied your reimbursement request.
On April 21, 2017, you requested that the Division of Energy Employees Occupational Illness Compensation (DEEOIC) pay your health club membership dues for 2017. You again cited to hydrotherapy available at the health club as the medical necessity for this request. By letter dated June 27, 2017, the Seattle district office informed you of the need to contact your treating physician and ask him or her to provide the necessary medical evidence in support of your request.
In response, the district office received a letter dated July 14, 2017 from your treating physician, Dr. Graf, in which he wrote:
My patient, [Employee], had marked exposure to radiation when he worked for the government, and he developed cataracts as a result of that. He found that hydrotherapy would retard the progression of his cataracts, and when he stopped the hydrotherapy, the cataracts progressed much more rapidly, so he has been taking hydrotherapy since then. I have observed this fact and recommend that he continue his hydrotherapy.
By letter dated July 26, 2017, the district office informed Dr. Graf that additional information was required regarding your post-cataract condition. Specifically, the district office requested information from Dr. Graf that would substantiate your assertion that your post-cataract condition is aided by your hydrotherapy. Both you and your authorized representative were provided a copy of this letter to Dr. Graf. The record does not contain a response from Dr. Graf. However, the district office did receive a letter dated July 30, 2017, with attachments, from your authorized representative. In this letter, your representative contends that hydrotherapy is “an important treatment to mitigate the progression [of your] loss of eyesight.” However, your representative is not a physician, and therefore his opinions do not constitute medical evidence.
Your authorized representative also contends that hydrotherapy is an important treatment for your loss of eyesight. The evidence of record reveals that your cataracts in both eyes have been accepted as a covered illness, and that your cataracts were surgically removed. Hence, your covered illness is now a post-cataract condition. The record also contains a letter from Dr. Martinez to Dr. Graf in which Dr. Martinez describes a medical history of multiple eye-related ailments including a radial keratotomy (a surgical procedure to correct myopia), pseudophakia of both eyes (a surgical procedure whereby lenses are inserted in the eyes to treat cataracts or myopia), central corneal opacity of both eyes, bilateral degenerative progressive high myopia, irregular astigmatism of both eyes, and a history of ptosis surgery (a surgical procedure involving the upper eyelids). These eye-related ailments are not accepted as covered illnesses under Part E of EEOICPA and medical benefits cannot be furnished for the treatment of these illnesses.
On September 7, 2017, the Seattle district office issued a recommended decision to deny your request for payment of a membership at a health club so you could engage in hydrotherapy for your cataracts. The district office found that the medical evidence submitted in support of your request was based on subjective reports of improvement in your condition from you, and speculation that your condition has not worsened due to hydrotherapy. The district office further found that your physician did not provide a well-rationalized statement, based on objective evidence, that would establish that hydrotherapy is a reasonable and necessary treatment of your covered illness.
After considering the evidence of record, FAB hereby makes the following:
FINDINGS OF FACT
1. On November 17, 2010, FAB issued a final decision to accept your claim for cataracts under Part E. In that decision, FAB concluded that you are a “covered DOE contractor employee” who was diagnosed with the “covered illness” of cataracts in both eyes, and awarded you medical benefits for the treatment of your cataracts.
2. On April 21, 2017, you requested that DEEOIC pay your health club membership dues for 2017.
3. Medical evidence (i.e., the well-rationalized written opinion of a physician) which establishes that hydrotherapy at a health club is likely to cure, give relief, or reduce the degree or the period of your covered illness of cataracts, which were treated by surgery, was not received.
Based on the above-noted findings of fact, FAB hereby also makes the following:
CONCLUSIONS OF LAW
The regulations at § 30.111(a) state that the claimant bears the burden of proving by a preponderance of the evidence, the existence of each and every criterion under any compensable claim category set forth in § 30.110. 20 C.F.R. §§ 30.110, 30.111(a). Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the statute and regulations, the claimant also bears the burden of providing to DEEOIC all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in the regulations. Id.
As indicated above, a prior final decision awarded you medical benefits for the treatment of cataracts in both eyes under Part E. The medical evidence documents that your cataracts were treated by surgery. You requested that DEEOIC pay your health club membership dues and cited your use of the swimming pool for hydrotherapy as evidence of the medical necessity of this expense.
EEOICPA provides that the United States shall furnish, to an individual receiving medical benefits for an illness, the services, appliances and supplies prescribed or recommended by a qualified physician for that illness, which the President considers likely to cure, give relief, or reduce the degree or the period of that illness. 42 U.S.C. § 7384t(a). In addition, the Federal (EEOICPA) Procedure Manual recognizes that membership in a health club or exercise facility, or treatment at a spa, may be authorized when recommended by the treating physician as likely to treat the effects, cure or give relief from a covered illness. Federal (EEOICPA) Procedure Manual, Chapter 29.15.a (September 2017).
However, I conclude that the medical evidence of record does not contain a well-rationalized written opinion from your treating physician which establishes that hydrotherapy at a health club facility is likely to cure, give relief, or reduce the degree or the period of your covered illness of cataracts. Therefore, you have not met your burden of proof by a preponderance of the evidence to establish your entitlement to a health club membership as hydrotherapy treatment of your covered illness of cataracts under Part E of EEOICPA, and your request is denied.
Seattle, Washington
Aaron M. Warren
Hearing Representative
Final Adjudication Branch