Docket Number: 95118-2010

U.S. DEPARTMENT OF LABOR

OFFICE OF WORKERS' COMPENSATION PROGRAMS DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION FINAL ADJUDICATION BRANCH

Case Information

EMPLOYEE:	[Name Deleted]
CLAIMANTS:	[Name Deleted] [Name Deleted]
FILE NUMBER:	[Number Deleted]
DOCKET NUMBERS:	95118-2010 109246-2010
DECISION DATE:	July 12, 2010

NOTICE OF FINAL DECISION

AFTER REVIEW OF THE WRITTEN RECORD

This is the decision of the Final Adjudication Branch (FAB) concerning two claims for survivor 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 claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and bone cancer is approved for compensation in the amount of $150,000.00 under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s condition of metastatic liver cancer is denied under Part B. The claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer is denied under Part B. The Estate of [Employee] is also entitled to reimbursement of medical expenses that were paid by the employee for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the Seattle district office.

STATEMENT OF THE CASE

On February 1, 2005, [Employee] filed a claim for benefits (Form EE-1) under EEOICPA. He identified bone cancer, bladder cancer and kidney failure as the conditions resulting from his employment at a Department of Energy (DOE) facility. On May 30, 2007, the district office received the death certificate of the employee which shows that he died on February 3, 2007. The district office administratively closed the employee’s claim on July 21, 2007.

On April 25, 2008, [Claimant #1] filed a claim for survivor benefits (Form EE-2) as the surviving common-law wife of the employee. She identified bladder cancer, lung cancer and liver cancer as the conditions resulting from the employee’s work at a DOE facility. On February 16, 2010, [Claimant #2] filed a claim for survivor benefits (Form EE-2) as a surviving child of the employee. He identified lung cancer as the employee’s condition resulting from his employment at a DOE facility.

The employee completed an employment history form (Form EE-3) on January 19, 2005 . He stated he worked as an electrician and electrical superintendent for REECo at the Nevada Test Site in the 1970’s and from 1981 until 1991.[1] DOE verified that the employee worked for REECo at the Nevada Test Site from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972 as a wireman and operations superintendent and assistant superintendent.

The employee and both claimants submitted the following medical reports: a pathology report from Dr. Kokila S. Vasanawala, dated November 7, 2002, with a diagnosis of papillary transitional cell carcinoma of the bladder; a report on whole body bone scan from Dr. Mihai Iancu, dated January 17, 2003, with a diagnosis of metastatic bone cancer; a pathology report from Dr. Leena Shroff, dated November 7, 2005, with a diagnosis of adenocarcinoma of the right upper lung lobe; a consultation report from Dr. James A. Corwin, dated November 15, 2002, with the diagnosis of “widespread metastatic disease” including the bone; and a pathology report from Dr. Terry R. Burns, dated January 16, 2007, with a diagnosis of metastatic adenocarcinoma of the liver.

The employee’s death certificate states that he died on February 3, 2007, at the age of 74 years, and that there was no surviving spouse.

[Claimant #1] submitted evidence in support of her status as the common-law wife of the employee. She submitted a letter dated August 22, 2009, which enclosed a certified copy of a Final Decree of Divorce between [Claimant #1] and [Claimant #1’s ex-husband] which changed her name to [Claimant #1] and a Marital Settlement Agreement between [Employee] and [Employee’s ex-wife] issued by the Clark County, Nevada District Court on November 10, 1992. She also submitted a letter dated September 4, 2009, in which she detailed her relationship with the employee beginning on July 5, 1993, in the State of Texas, when she and the employee exchanged vows at her sister’s home in Midland, Texas and continuing until the employee’s death on February 3, 2007. She describes in the letter that she and the employee lived together in Texas for several years after exchanging vows until they went to other states to find work. She related that they returned to Midland, Texas in October 2000 and lived there together until the employee’s death. She also submitted numerous documents showing she and the employee engaged in joint financial transactions, including applying for credit accounts and holding title real and personal property together. The Form EE-1 signed by the employee states she is his dependent and common-law wife. [Claimant #2] submitted a written statement on September 21, 2009, that he knew the employee and [Claimant #1] to have been together since 1983 and that he regarded them as married until she told him they were not. Numerous signed statements were submitted from third parties, including non-relatives, to the effect that the employee and [Claimant #1] were considered husband and wife. [Claimant #2] submitted his birth certificate which shows that he is a biological child of the employee born on October 25, 1966. His mother’s name is shown as [Employee’s ex-wife].

On April 6, 2010, the district office issued a decision recommending that the claim of [Claimant #1] for survivor benefits based on the employee’s conditions of bladder cancer, lung cancer and liver cancer be denied under Part B of EEOICPA. The basis for the recommendation was the district office’s conclusion that the probability of causation (PoC) that the employee’s bladder cancer and liver cancer were related to his exposure to radiation during his covered employment was less than the 50% threshold PoC required for compensation under Part B of EEOICPA. The district office also concluded that [Claimant #1] was the surviving spouse of the employee under Part B based on its determination that she was married to him as his common-law spouse under the laws of the State of Texas on the date of the employee’s death and for at least one year prior to that date. The district office also recommended that the claim of [Claimant #2] for survivor benefits based on the employee’s condition of lung cancer be denied under Part B. The basis for the decision was the conclusion that he did not qualify as an eligible survivor of the employee under Part B. The district office deferred making a decision on both of the claims for survivor benefits under Part E of EEOICPA. Accompanying the recommended decision was a letter explaining the claimants' rights and responsibilities with regard to findings of fact and conclusions of law contained in the recommended decision.

On April 28, 2010, FAB received an undated letter from [Claimant #2] objecting to the decision issued by the Seattle district office on April 6, 2010. On May 7, 2010, FAB sent a letter acknowledging receipt of [Claimant #2]’s letter of objection and advising him that if he had additional evidence for FAB to consider prior to issuance of a final decision, he should submit that evidence by June 7, 2010. The claim file does not show that he submitted any additional evidence in response. His letter of objection is part of the evidence of record. His objections were as follows:

He stated he is the son of the employee and the only living survivor of the employee. He is in prison, he was diagnosed with hepatitis C in October 2005, and he cannot work in the food or culinary arts industries in which he has been trained because of his medical condition. He stated he intended to file a claim for benefits under Part E only and not under Part B. He stated his authorized representative was supposed to get medical records in support of his claim that he was incapable of self-support at the time of his father’s death, and that is the reason he asked the district office to grant a sixty-day extension of time to respond to its letter dated February 25, 2010. He claimed [Claimant #1] forced his father to sign documents while he was sick acknowledging her as his common-law wife. He concluded that he believes he is the one entitled to receive any benefits available under EEOICPA on account of his father.

 

On July 9, 2010, FAB received a signed statement from [Claimant #1] that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on an independent review of the evidence of record, the undersigned hereby makes the following:

FINDINGS OF FACT

1. On February 1, 2005, [Employee] filed a claim for benefits under EEOICPA for bone cancer, bladder cancer and kidney failure resulting from his employment at a DOE facility.

2. The employee worked for REECo, a DOE contractor, at the Nevada Test Site, a DOE facility, from August 11, 1982 until March 15, 1991, from August 18, 1981 until September 21, 1981, and from October 23, 1970 until September 22, 1972. The employee worked for an aggregate of at least 250 work days at the Nevada Test Site between January 1,1963 and December 31, 1992.

3. The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on January 17, 2003, lung cancer on November 7, 2005, and adenocarcinoma of the liver on January 16, 2007. These diagnoses were at least five years after the employee’s first exposure during covered employment.

4. The employee died on February 3, 2007, at the age of 74 years.

5. [Claimant #1] and the employee exchanged vows before others and entered into a common-law marriage on July 5, 1993 in Texas which continued until the employee’s death on February 3, 2007. During that period of time they lived together in Texas and represented to others in Texas that they were married to each other. [Claimant #1] was married to the employee on the date of his death and for at least one year prior to the employee’s death.

6. [Claimant #2] was born on October 25, 1966. He is a biological child of the employee. He is 43 years of age. He is not the recognized natural child or adopted child of [Claimant #1].

7. [Claimant #1] stated that neither she nor anyone else has filed for or received any settlement or award from a lawsuit related to the employee’s exposure to toxic substances or filed for or received any payments, awards or benefits from a state workers’ compensation claim based on the employee’s lung cancer and that she has never pled guilty to or been convicted of fraud in connection with an application for or receipt of any federal or state workers’ compensation benefits.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

This final decision, and the Seattle district office decision issued April 6, 2010, addresses [Claimant #2]’s claim for benefits under Part B of EEOICPA only. It does not address his claim for benefits under Part E. His objections related to his incapacity for self-support relate only to his eligibility as a surviving child under Part E and are not relevant to the determination whether he is an eligible child under Part B. The district office may have been unaware he did not want to pursue a claim under Part B. Regardless, it was proper for the district office to address whether he is an eligible survivor of the employee under Part B of EEOICPA.

In order for the employee’s son to be eligible as a surviving child of the employee under Part B, he must be a minor on the date Part B benefits are paid and not the recognized natural child or adopted child of [Claimant #1]. That is because FAB has determined that [Claimant #1] qualifies under Part B as a surviving spouse of the employee based on her common-law marriage to the employee. His allegation that [Claimant #1] forced the employee to sign documents is not supported by any evidence and is contradicted by his own statement submitted to the district office on September 21, 2009. It is also contradicted by the numerous documents and written statements from other individuals submitted by [Claimant #1]. His allegation is not credible and is insufficient to change the conclusion by FAB that [Claimant #1] and the employee were in a valid common-law marriage under the laws of Texas and she is the eligible surviving spouse of the employee.

Eligibility for EEOICPA compensation based on cancer may be established by demonstrating that the employee is a member of the Special Exposure Cohort (SEC) who contracted a specified cancer after beginning employment at a DOE facility (in the case of a DOE employee or DOE contractor employee). 42 U.S.C. §§ 7384l(9)(A), 7384l(14)(A).

On April 25, 2010, the Secretary of Health and Human Services designated a class of employees as an addition to the SEC under § 7384l(14)(C) of EEOICPA. This new class included all employees of DOE, its predecessor agencies, and its contractors and subcontractors who worked at the Nevada Test Site from January 1, 1963 through December 31, 1992, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of the SEC. This designation became effective on May 5, 2010. See EEOICPA Bulletin No. 10-13 (issued May 5, 2010 ). This addition to the SEC was not in effect when the district office issued its decision recommending that the claims be denied under Part B.

The employee worked for an aggregate of at least 250 work days for a DOE contractor at the Nevada Test Site between January 1, 1963 and December 31, 1992. The totality of evidence therefore demonstrates that the employee qualifies as a member of the SEC.

The employee was diagnosed with bladder cancer on November 7, 2002, metastatic bone cancer on January 17, 2003, lung cancer on November 7, 2005, and metastatic liver cancer on January 16, 2007 . Those diagnoses occurred more than five years after he began employment at a covered facility. Lung cancer and bone cancer are specified cancers when diagnosed after first exposure, as they were in his case. 20 C.F.R. § 30.5(ff)(2), (3). Bladder cancer is also a specified cancer when diagnosed more than five years after first exposure, as it was in his case. 20 C.F.R. § 30.5(ff)(5)(iii)(K). As a member of the SEC who was diagnosed with a specified cancer, the employee is a “covered employee with cancer.” 42 U.S.C. § 7584l(9). The employee’s liver cancer is not a specified cancer because it was diagnosed as a metastatic cancer. Liver cancer is a specified cancer only when it is a primary cancer. 20 C.F.R. § 30.5(iii)(O).

A covered employee, or the survivor of that employee, shall receive compensation for the disability or death of that employee from that employee’s occupational illness in the amount of $150,000.00. The evidence of record establishes that the employee is deceased. Part B provides that where a covered employee is deceased at the time benefits are to be paid, payments are to be made to the employee’s eligible surviving spouse if that person is living. 42 U.S.C. § 7384s(e)(1)(A). The eligible spouse of an employee is the husband or wife of the employee who was married to the employee for at least one year immediately before the death of the employee. 42 U.S.C. § 7384s(e)(3)(A). The Act does not define marriage, so the Division of Energy Employees Occupational Illness Compensation (DEEOIC) looks to the law of the most applicable state to determine whether a claimant was married to the employee. Federal (EEOICPA) Procedure Manual, Chapter 2-1200.5.b(2) (August 2009). If state law recognizes the existence of a marital relationship, that relationship must be recognized by DEEOIC in its adjudication of EEOICPA survivor claims. Common-law Marriage Handbook, p. 10 (April 2010).

[Claimant #1] claimed to be the surviving spouse of the employee based on a common-law marriage entered into by her and the employee in Texas. The undersigned concludes the law of Texas is the most applicable law to use in determining whether [Claimant #1] was married to the employee. Texas recognizes common-law marriages contracted within its borders when three elements are satisfied concurrently. Those elements are: (1) the parties agreed to be married; (2) after the agreement, they lived together in Texas as husband and wife; and (3) they held themselves out to others as husband and wife. Common-law Marriage Handbook, Appendix p. 9 (April 2010). The undersigned has considered the totality of the evidence including the 10-page letter submitted by [Claimant #1] describing her relationship with the employee, the numerous financial, legal and other documents she submitted, and the statements of numerous third parties. I find the totality of the evidence establishes that [Claimant #1] and the employee agreed to enter into a common-law marriage on July 5, 1993, that after entering into that agreement they lived together in Texas as husband and wife for two periods of time (from July 5, 1993 until approximately January 1, 1996 and from October 2000 until the employee’s death on February 3, 2007), and that during those periods of time they held themselves out to others as husband and wife. I therefore find that [Claimant #1] is the eligible surviving spouse of the employee.

Under Part B of the Act, if there is an eligible surviving spouse of the employee, then payment shall be made to such surviving spouse unless there is also a child[2] of the employee who is not a recognized natural child or adopted child of the surviving spouse and who is a minor at the time of payment. 42 U.S.C. § 7384s(e)(1)(F). The evidence establishes that [Claimant #2] is a biological child of the employee and not a recognized natural child or adopted child of [Claimant #1]. Accordingly, because he is not also a minor, I find that he is not an eligible surviving child of the employee and his claim for survivor benefits based on the employee’s condition of lung cancer under Part B of the Act is denied.

Therefore, [Claimant #1] is the only person to whom compensation may be paid under Part B of EEOICPA. Her claim for survivor benefits based on the employee’s conditions of bladder cancer and lung cancer under Part B is approved for compensation in the amount of $150,000.00. As the maximum benefits provided for under Part B are being paid to her based on the employee’s conditions of bladder cancer and bone cancer and there is no possible benefit to her in adjudicating her claim for the employee’s condition of metastatic liver cancer, her claim for survivor benefits based on the employee’s condition of metastatic liver cancer under Part B is denied.

The statute provides that medical benefits should be provided to a covered employee with an occupational illness for the treatment of that covered illness. These benefits are retroactive to the employee’s application date. The evidence of record establishes that the employee is a covered employee with the occupational illnesses of bladder cancer and bone cancer under Part B. He filed a claim for benefits based on bladder cancer and bone cancer prior to his death. He is entitled to medical benefits for treatment of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007. Accordingly, the Estate of [Employee] is awarded medical benefits for the employee’s condition of bladder cancer and bone cancer beginning February 1, 2005 and ending February 3, 2007.

A decision on the claims of [Claimant #1] and [Claimant #2] for survivor benefits under Part E of EEOICPA is deferred pending further development by the Seattle district office.

Washington, DC

William B. Talty

Hearing Representative

Final Adjudication Branch