Docket Number: 70540-2005

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 70540-2005

DECISION DATE: October 26, 2005

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim for benefits under §§ 7384 and 7385s of the Act is accepted.

STATEMENT OF THE CASE

On July 21, 2005, you filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA[1], based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone. A CT scan shows the employee was diagnosed with lung cancer on June 24, 2005.

Your claim was based, in part, on the assertion that the employee worked for a Department of Energy (DOE) contractor at a DOE facility. You asserted on the Form EE-2 that the employee was a member of the Special Exposure Cohort (SEC). The evidence of record establishes the employee worked at the K-25 gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996. The employee indicated on his Form EE-3, Employment History, that he wore a dosimetry badge during this employment. In addition, the employee worked at the Y-12 plant in Oak Ridge from December 3, 1962 to March 28, 1965, and from May 15, 2002 to June 28, 2005.

In support of your claim for survivorship, you submitted your marriage certificate, showing you married the employee on October 24, 1959, and the employee’s death certificate, showing you were married to the employee on the date of his death, September 26, 2005. The death certificate shows the employee died as a result of metastatic lung cancer.

On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation for the employee’s lung cancer in the amount of $150,000 under § 7384 of the Act and $125,000 under § 7385s of the Act. In addition, the district office recommended that you be entitled to medical benefits for the employee’s metastatic lung cancer from September 3, 2002 to June 28, 2005.

You submitted information showing the employee received a state workers’ compensation settlement.

On September 26, 2005, the Final Adjudication Branch received written notification that you waive any and all objections to the recommended decision.

FINDINGS OF FACT

1) On July 21, 2005, you filed a Form EE-2 based on the employee’s basal cell carcinoma and lung cancer with suspected metastases to the bone.

2) The employee was diagnosed with lung cancer on June 24, 2005.

3) The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, from March 29, 1965 to February 16, 1996, and from August 29, 1996 to August 31, 1996.

4) The employee wore a dosimetry badge during this employment.

5) You were married to the employee for at least one year immediately before his death.

6) On September 20, 2005, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the amount of $150,000 for the employee’s lung cancer.

CONCLUSIONS OF LAW

In order for the employee to qualify as a member of the SEC, the following requirements must be satisfied:

The employee was so employed for a number of work days aggregating at least 250 work days before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee, and, during such employment - -

(i) was monitored through the use of dosimetry badges for exposure at the plant of the external parts of employee’s body to radiation; or

(ii) worked on a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.

42 U.S.C. § 7384l(14)(A).

The employee worked at the gaseous diffusion plant in Oak Ridge, Tennessee, for more than 250 work days prior to February 1, 1992, and wore a dosimetry badge during this employment. Therefore, the employee is a member of the SEC. 42 U.S.C. § 7384l(14).

The employee’s lung cancer is a specified cancer under § 7384 of the Act and implementing regulations. 42 U.S.C. § 7384l(17)(A); 20 C.F.R. § 30.5(ff)(2).

You indicated in a letter received September 22, 2005 that the employee received a state workers’ compensation settlement for his skin cancer only. You submitted a document concerning this settlement. While the document did not indicate the medical condition upon which the lump sum settlement was based, the document shows the employee was the recepient of the settlement. Survivor benefits under § 7385s of the Act are reduced when a survivor receives some form of state workers’ compensation benefits.[2] Since you did not receive such a benefit, a reduction is not necessary.

On the other hand, the recommended award of medical benefits is based on the employee’s entitlement under § 7385s, since he filed his claim prior to his death. If the workers’ compensation settlement was due to the accepted lung cancer, these medical benefits would have to be reduced. Although the medical condition is not listed on the workers’ compensation document, the document was issued on February 5, 2003. Since the employee’s lung cancer was not diagnosed until June 24, 2005, our office may safely assume that the workers’ compensation settlement is unrelated to the present entitlement to lung cancer under § 7385s of the Act.

You have established that you are a survivor. 42 U.S.C. §§ 7384s(e)(3), 7385s-3(d)(1).

I conclude that you, as the eligible survivor of the employee as defined by § 7384 of the Act, are entitled to compensation in the amount of $150,000 pursuant to § 7384 of the Act on the basis of the employee’s lung cancer. 42 U.S.C. §§ 7384s(e)(1)(A), 7384s(a).

A determination under § 7384 that a DOE contractor employee is entitled to compensation for an occupational illness is treated as a determination that the employee contracted that illness through exposure to a toxic substance at a DOE facility. 42 U.S.C. § 7385s-4(a). Since the employee died of this illness, lung cancer, you are entitled to compensation in the amount of $125,000. 42 U.S.C. § 7385s-3(a)(1).

In addition, since the employee filed the claim for benefits prior to his death, you are entitled to seek reimbursement for out-of-pocket medical expenses and/or payment of any outstanding medical expenses for the employee’s lung cancer with bone, liver, and lymph node metastases from September 3, 2002 to June 28, 2005.

Jacksonville, FL

Mark Stewart

Hearing Representative