Docket Number: 20190329-72990-5

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:	20190329-72990-5
DECISION DATE:	June 13, 2019

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation 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, FAB concludes that you are an eligible survivor entitled to receive survivor benefits under Part E of EEOICPA for the death of [Employee] due to his covered illness of lung cancer. However, you are not entitled to receive an award of $125,000.00 in survivor benefits because the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has previously determined that you have not returned funds that you improperly received after the employee’s death, which resulted in a delinquent debt of $237,500.00. A final decision on your Part B claim will be issued at a later date.

STATEMENT OF THE CASE

On June 21, 2017, FAB issued a final decision to accept and award medical benefits to the employee for his claimed illness of lung cancer under Part E of EEOICPA. In that decision, FAB noted that the employee was a covered Department of Energy (DOE) contractor employee who was diagnosed with the covered illness of lung cancer due to his toxic substance exposure at a DOE facility. On that same date, June 21, 2017, the employee’s representative provided the Jacksonville district office of DEEOIC with an April 4, 2014 report by Dr. Samuel Chan stating that the employee’s “survival is predicted to be between 3-6 months.”

On June 23, 2017, the representative submitted the employee’s request for impairment benefits under Part E. Given the employee’s terminal status, the district office expediently issued a recommended decision four days later on June 27, 2017 to accept the employee’s claim for impairment benefits, and FAB issued a final decision the next day on June 28, 2017 and awarded him $237,500.00 for his 95% whole-person impairment under Part E. Along with that final decision, FAB sent the employee and his representative a blank Acceptance of Payment Form (Form EN-20) and informed them that either the employee, his legal guardian, or a person with power of attorney to act for him had to complete, sign and return the form to DEEOIC’s Jacksonville district office before payment could be issued.

According to a phone call note in the file, on that same date, June 28, 2017, a claims examiner in the district office received a voicemail message from the representative at 2:24 pm, who indicated that she had faxed the completed Form EN-20 to the district office. The claims examiner returned the call at 10:23 am on June 29, 2017 and left a voicemail stating that the district office would expedite payment if it received documentation that the employee was “deathbed terminal.” The district office received the representative’s response on that same day, which included: (1) a Form EN-20, purportedly signed by [Employee] on June 28, 2017, instructing DEEOIC to have the award amount of $237,500.00 electronically deposited into a checking account held by “[Employee] and [Claimant]” at the SunTrust Branch in Pinellas Park, Florida; and (2) a handwritten note from the representative stating “terminal expedite payment.” According to a July 12, 2017 phone call note, the representative called the district office on that date and asked for the payment to be rushed; a payment request was sent by DEEOIC to the Department of the Treasury on July 13, 2017, and payment was made by electronic funds transfer on July 20, 2017.

Over the following six months, the district office continued to develop various other aspects of the employee’s EEOICPA claims, and sent him and his representative multiple letters during that period. On December 29, 2017, the district office received its first response to one of those letters, which consisted of your request for wage-loss benefits “for Survivors for [sic] [Employee]. . . .” According to a phone call note dated January 5, 2018, you confirmed that the employee had died on June 27, 2017.

On February 22, 2018, you filed a claim for survivor benefits as the surviving spouse of the employee under Part B based on squamous cell carcinoma of the left lung, and a claim under Part E that his death was allegedly due to that cancer.[1] In support of your claims, you submitted: (1) the employee’s death certificate, which indicated that his death on June 27, 2017 was due to lung cancer, chronic obstructive lung disease and secondary malignant neoplasm of the brain, and that you were his spouse; (2) your birth certificate; and (3) a marriage certificate documenting your marriage to [Employee] on November 30, 1985.

Thereafter, the district office came to the conclusion that the employee had died before FAB had issued its June 28, 2017 final decision, and that the employee’s $237,500.00 impairment award was received by you after his death. On June 1, 2018, the district office sent a memorandum to DEEOIC’s Policy Branch requesting review of the payment process in this case. According to a phone call note dated July 17, 2018, a policy analyst contacted the employee’s representative regarding this payment. The employee’s representative alleged that she was also your authorized representative before DEEOIC, although there was no documentation in the case file at that time to support this. The policy analyst advised the representative that DEEOIC had received information showing that the employee had died prior to the date that he received payment, and therefore the funds had to be returned to DEEOIC in accordance with 20 C.F.R. § 30.505(c) (2019), which states in pertinent part:

If the claimant dies before the payment is received, the person who receives the payment shall return it to OWCP for redetermination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.

The phone note further indicated that the representative told the policy analyst that the money belonged to you and does not have to be returned.

By letters dated December 14, 2018 and January 17, 2019, DEEOIC requested that you return the $237,500.00 that was awarded and paid to the employee after his death. Because DEEOIC did not thereafter receive payment or any communication on the matter from you, it notified you by letter dated February 26, 2019 that this improper payment was now considered a delinquent debt, and that it was therefore permitted to undertake all appropriate collection actions, including reducing any future compensation payment payable to you and also referring the matter to the Department of the Treasury and credit bureaus. In that same letter, DEEOIC notified you that you must submit appropriate documentation if you wished to have an individual represent you before DEEOIC. On March 1, 2019, DEEOIC received notification that you had authorized your husband’s former representative to also act as your representative.

Thereafter, the district office issued a March 29, 2019 recommended decision in which it found that you are the eligible survivor of the employee entitled to survivor benefits under Part E in the amount of $125,000.00, but that no additional compensation is payable to you because you have a delinquent debt in the amount of $237,500.00.[2] The district office deferred a recommendation regarding your Part B claim.

After considering the evidence of record, FAB hereby makes the following:

FINDINGS OF FACT

1. By prior final decision, FAB determined that the employee was a covered DOE contractor employee who was diagnosed with the covered illness of lung cancer under Part E of EEOICPA.

2. The employee died on June 27, 2017 due, in part, to his covered illness of lung cancer.

3. On February 22, 2018, you filed a claim for survivor benefits under EEOICPA.

4. You are the surviving spouse of the employee and were married to him for at least one year immediately prior to his death.

5. By letter dated February 26, 2019, DEEOIC notified you that you have a delinquent debt in the amount of $237,500.00, and that it may reduce any future compensation payment payable to you in order to satisfy that amount.

6. As of the date of this decision, you have not satisfied any amount of this delinquent debt.

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

CONCLUSIONS OF LAW

A claimant who receives a recommended decision from the district office is entitled to file objections within 60 days from the date the recommendation is issued. 20 C.F.R. § 30.310(a). The 60-day filing period from the district office’s issuance of its March 29, 2019 recommended decision has expired and you have not filed any such objections with FAB. Pursuant to § 30.316(a) of the regulations, if a claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.

As found above, you meet the definition of a “covered spouse” under Part E, and are the only eligible survivor under that Part. As the eligible surviving spouse of the employee, you are 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 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). The evidence of record establishes that the employee is a “covered DOE contractor employee” who was diagnosed with the “covered illness” of lung cancer, and that he would have been eligible for benefits under Part E of EEOICPA. Further, 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 the covered illness of lung cancer and the death of the employee. 42 U.S.C. § 7385s-3(a)(1)(B).

However, you are not entitled to receive an award of $125,000.00 in survivor benefits under Part E because you have a delinquent debt in the amount of $237,500.00, as established in DEEOIC’s February 26, 2019 letter.

Moreover, despite your representative’s suggestion in a telephone conversation held on July 17, 2018 that you were entitled to retain the money paid into the joint checking account you shared with the employee, you are not eligible to make an election to receive the employee’s impairment benefits, which were claimed on June 23, 2017 but were not paid before his death on June 27, 2017, under § 7385s-1(2)(B) of EEOICPA. Under that statutory provision, if a covered employee files a claim for Part E monetary benefits but dies before payment of those same monetary benefits occurs, and the employee’s death is due solely to a cause other than his or her covered illness or illnesses, then the employee’s survivor can elect to stand in the deceased employee’s shoes to receive the unpaid award in lieu of the usual survivor benefits available under § 7385s-3 of EEOICPA. Since the employee’s death was due, in part, to his covered illness of lung cancer, you are not eligible to make an election under § 7385s-1(2)(B) and you have no legal right to retain the money that you received.

Lastly, because the employee died the day before FAB issued its June 28, 2017 final decision accepting his Part E claim for impairment benefits, the following sequence of actions should have occurred, and would have if DEEOIC had been notified of the employee’s death in a timely manner. Under Chapter 26.5b of the Procedure Manual, when a claimant dies after issuance of a recommended decision but prior to issuance of a final decision, FAB is to administratively close the decedent’s claim and return the file to the district office to pursue survivor claims. Thus, had DEEOIC been notified of the employee’s death on June 27, 2017, it would not have issued a final decision the next day, and instead would have administratively closed his claim and sent the file back to the district office so that it could contact you regarding filing a survivor claim. If those steps had been taken in your case, you would not be in the present situation of having to return improperly received funds, and instead would have been entitled to receive survivor benefits under Part E.

For the reasons set out above, FAB concludes that although you are an eligible survivor entitled to receive survivor benefits under Part E of EEOICPA for the death of the employee due to his covered illness of lung cancer, no survivor compensation is payable to you because you have a delinquent debt in the amount of $237,500.00. Please be aware that DEEOIC will take all appropriate collection methods to recover the remaining unsatisfied amount of $112,500.00 of this debt, including reducing any future compensation payment payable to you and referring the matter to the Department of the Treasury and credit bureaus.

Seattle, Washington

Aaron M. Warren

Hearing Representative

Final Adjudication Branch