Docket Number: 96582-2008

U.S. DEPARTMENT OF LABOR

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

NOTICE OF FINAL DECISION

This decision of the Final Adjudication Branch (FAB) concerns the above-noted 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, the survivor claim under Part B and Part E is denied.

STATEMENT OF THE CASE

On July 9, 2008, [Claimant] filed a Form EE-2, claiming for survivor benefits for the renal cell hypernephroma and the death of her late grandfather, [Employee], hereinafter referred to as the employee. [Claimant] submitted evidence that she is the grandchild of the employee. However, the case file contains evidence that three of the employee’s children are still living.

Previously, on November 27, 2007, FAB issued a final decision accepting the claims of the employee’s three surviving children under Part B of EEOICPA. FAB found that they were the employee’s children and stepchildren, and that the employee’s spouse at the time of his death was no longer living. FAB therefore concluded that the three surviving children of the employee were his only eligible survivors and awarded each child an equal share of the available benefits under Part B.

On March 13, 2008, FAB also issued a final decision under Part E of EEOICPA accepting the claim of the surviving child of the employee who was under the age of 18 at the time of the employee’s death. FAB concluded that this one child of the employee was his only eligible survivor under Part E and awarded him the available benefits under that Part.

On July 10, 2008, the Jacksonville district office sent [Claimant] a development letter explaining the survivorship requirements under Part B and Part E and requested that she submit evidence that she met the requirements.

On September 5, 2008, the Jacksonville district office issued a recommended decision to deny [Claimant’s claim], concluding that as a grandchild of the employee, [Claimant] is not an eligible survivor of the employee under either Part B or Part E of EEOICPA. The district office noted in the recommended decision that under Part E grandchildren are ineligible, and that under Part B grandchildren are ineligible if there are living children of the employee.

The recommended decision informed [Claimant] that she had 60 days to file any objections, and that period ended on November 4, 2008. [Claimant] has not filed any objections.

After reviewing the evidence in the case file, FAB hereby makes the following:

FINDINGS OF FACT

1. On July 9, 2008, [Claimant] filed a claim for survivor benefits.
2. [Claimant] is a grandchild of the employee.
3. On November 27, 2007, a final decision was issued accepting the claims of the employee’s three surviving children under Part B and awarding the maximum available Part B benefits.

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

CONCLUSIONS OF LAW

The regulations provide that within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision and whether a hearing is desired. 20 C.F.R. § 30.310(a) (2008). If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted or if the claimant waives any objections to the recommended decision, FAB may issue a decision accepting the recommendation of the district office. 20 C.F.R. § 30.316(a).

Under Part B, grandchildren of the employee are only eligible survivors if there is not an eligible spouse, child or parent of the employee living at time of payment. 42 U.S.C. § 7384s(e)(1). Three of the employee’s children were living at time of payment and were determined to be the only eligible survivors under Part B in a prior final decision. Therefore, [Claimant] does not meet the definition of a survivor under Part B of EEOICPA.

Under Part E, only covered spouses or children of the employee who are living at time of payment are potentially eligible for benefits. 42 U.S.C. § 7385s-3(c). Grandchildren are not eligible for benefits under Part E. Therefore, [Claimant] does not meet the definition of a survivor under Part E of EEOICPA.

Jacksonville, FL

Jeana F. LaRock

Hearing Representative

Final Adjudication Branch