Docket Number: 64180-2005

NOTICE OF FINAL DECISION AND

REMAND ORDER

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, the Final Adjudication Branch accepts your claim for compensation based on lung cancer. Additionally, for the reasons set forth below, this case is remanded to the district office regarding the issue of entitlement to medical benefits based on skin cancer.

On August 16, 2004, [Employee] filed a claim for compensation under Part B of the EEOICPA listing skin cancer of the ear, forehead, nose, arm, and neck as the medical conditions on which his claim was based. The employee provided medical documentation showing that he had been diagnosed with basal cell carcinoma of the right temple and the nasal tip on May 23, 1995; with basal cell carcinoma of the left ear on September 11, 1997; and with basal cell carcinoma of the forehead on January 20, 2003. Additional medical documentation was also provided to show that he had been diagnosed with cancer of the left lung on October 26, 2004.

The employee had also submitted evidence showing that he was employed by several subcontractors at the Portsmouth Gaseous Diffusion Plant (GDP) in Piketon, OH. That evidence, when considered in its totality, demonstrated that, during the period of January 1952 to June 1985, he worked at the Portsmouth GDP for the contractors listed below:

*September 1954 is the earliest date from which employment qualifies for purposes of Special Exposure Cohort Membership.

On November 30, 2004, the district office issued a recommended decision to accept the employee’s claim for compensation as a member of the Special Exposure Cohort, based on lung cancer, and deferred a decision regarding entitlement to medical benefits for skin cancer pending dose reconstruction. Unfortunately, [Employee] had died on November 26, 2004, and the Final Adjudication Branch (FAB) remanded his case to the district office for administrative closure and consideration of the claim you had filed. The remand order stated that the issue of entitlement to medical benefits under 42 U.S.C. § 7384s(b) was to be addressed in any future recommended decision.

On December 17, 2004, you filed a claim for benefits under the EEOICPA listing lung cancer as the medical condition on which your claim is based. The medical documentation of record shows that your husband was diagnosed with cancer of the left lung on October 26, 2004.

The evidence of record establishes that your husband was employed at the Portsmouth GDP as specified above. The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status. See DOE, Office of Worker Advocacy, Facility List.

On January 11, 2005, the Cleveland district office issued a decision concluding that your husband is a covered employee with cancer because he is a member of the Special Exposure Cohort who has been diagnosed with lung cancer, a specified cancer under 42 U.S.C. § 7384l(17). The district office recommends that you, as his surviving spouse, are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s for lung cancer. The recommended decision also concluded that, pursuant to 42 U.S.C. § 7384s(b), your husband is entitled to medical benefits, as described in 42 U.S.C. § 7384t, from August 16, 2004, to November 26, 2004, for lung cancer. That decision noted, as a Finding of Fact, that a decision regarding entitlement based on skin cancer would not be issued because you had withdrawn your husband’s claim based on skin cancer.

On January 19, 2005, the FAB received written notification that you waive any and all objections to the recommended decision. I have reviewed the record on this claim and the recommended decision issued by the district office. I find that the recommended decision is in accordance with the facts and the law in this case with regard to your entitlement to compensation based on your husband’s lung cancer and that payment will be made for treatment of that condition. For that reason, I find that you, as the surviving spouse, are entitled to $150,000 pursuant to 42 U.S.C. § 7384s. As provided by 20 C.F.R. § 30.400(a), payment will be made for treatment of your husband’s lung cancer, as described in 42 U.S.C. § 7384t, for the period of August 16, 2004, to November 26, 2004.

In reviewing your case the FAB notes that the district office accepted your letter of December 21, 2004, as a withdrawal of your husband’s claim for benefits based on skin cancer. However, 20 C.F.R. § 30.101(b) provides that a survivor may withdraw his or her claim by so requesting in writing to the Office of Workers’ Compensation Programs (OWCP) at any time before OWCP determines eligibility for benefits. The regulations contain no provision allowing a survivor to withdraw a claim previously filed by an employee.

The basic rules for obtaining medical care, 20 C.F.R. § 30.400(a), provide that a covered employee who fits into at least one of the compensable claim categories is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness, retroactive to the date the employee filed a claim for benefits under the EEOICPA. When a survivor receives payment, OWCP will pay for such treatment if the covered employee died before the claim was paid.

Because your husband has been found to fit into the compensable claim category of “covered employee with cancer,” and because you have been determined to be entitled to payment of compensation on that basis, entitlement to payment for treatment for the claimed skin cancers is an obligation of the OWCP if they are found to be occupational illnesses. In order to determine if payment for treatment of the skin cancers claimed by the employee is in order, a decision must be made as to whether or not those cancers are occupational illnesses.

For the reasons discussed above, your case is remanded to the district office for any necessary development, to include dose reconstruction as described in 42 U.S.C. § 7384n(c), and issuance of a new recommended decision as to whether or not any or all of the claimed skin cancers are occupational illnesses, and, if so, whether or not OWCP will pay for such treatment.

Cleveland, OH

_______________________________________

Tracy Smart

Acting FAB Manager

Final Adjudication Branch