Docket Number: 98835-2009

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 claims 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 accepts the claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] for survivor benefits under Part B of EEOICPA for the employee’s lung cancer. Further, FAB denies the claims of [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] under Part E for the employee’s death.

STATEMENT OF THE CASE

On July 22, 2003, [Employee’s Spouse] filed a Form EE-2 claiming for survivor benefits under Part B of EEOICPA. On July 24, 2003, she also filed a request for assistance with the Department of Energy (DOE) under former Part D of EEOICPA as the surviving spouse of [Employee]. She claimed that the employee had contracted oat cell cancer. In support of her claim and her request, she submitted an employment history indicating that [Employee] worked in security at the Lawrence Livermore National Laboratory (LLNL), from 1953 to 1996. A representative of DOE verified that [Employee] worked as a security officer at LLNL, a DOE facility, from August 30, 1954 to December 24, 1974. Employment records show that [Employee] was monitored for radiation exposure during his employment at LLNL.

The medical evidence of record includes an abstract from the Northern California Cancer Registry showing that [Employee] was diagnosed with lung cancer in June of 1967. In addition, [Employee]’s medical records include findings of a poorly differentiated carcinoma involving the right middle and right lower lobes of the lung with metastases following a thoracotomy performed on June 10, 1967.

On March 3, 2008, the Secretary of Health and Human Services (HHS) designated the following class for addition to the Special Exposure Cohort (SEC) in a report to Congress: Employees of DOE, its predecessor agencies, and DOE contractors or subcontractors who were monitored for radiation exposure while working at LLNL from January 1, 1950, through December 31, 1973, for a number of work days aggregating at least 250 work days or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort. This SEC became effective April 2, 2008.

The record shows that [Employee’s Spouse] and [Employee] were married on July 14, 1940, and a copy of [Employee]’s death certificate establishes that they were married at the time of his death on March 4, 1996. On September 4, 2008, FAB issued a final decision accepting the Part B claim of [Employee’s Spouse] for the employee’s lung cancer and her Part E claim for the employee’s death and awarded total compensation to her in the amount of $275,000.00. However, prior to receiving payment, on September 21, 2008, [Employee’s Spouse] died and her claim was administratively closed on October 8, 2008.

On October 6, 2008, [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] each filed a Form EE-2 as the surviving grandchildren of [Employee]. Copies of a marriage certificate and a death certificate show that [Employee’s Son] was the son of [Employee] and [Employee’s Spouse], while a statement from [Employee’s Spouse] indicates that [Employee’s Son] was the only child of [Employee]. The marriage certificate shows that [Son’s Wife’s Maiden Name] and [Employee’s Son] were married on September 5, 1970, and the death certificate for [Employee’s Son] shows that he was married to [Son’s Wife] at the time of his death on April 10, 2008.

[Claimant #1] provided a copy of her birth certificate showing that she is the daughter of [Name Deleted] and [Name Deleted] and was born on January 8, 1962. She was seven years old at the time her mother married [Employee’s Son]. [Claimant #1] provided evidence that she lived in a regular parent-child relationship with [Employee’s Son], evidence that she utilized the last name of [Employee’s Son], miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the bride” at her wedding. She also provided evidence of her change of name from [Claimant #1’s Maiden Name] to [Claimant #1’s Married Name].

[Claimant #2] provided a copy of his birth certificate showing that he is the son of [Name Deleted] and [Name Deleted] and was born on January 12, 1956. He was fourteen years old at the time his mother married [Employee’s Son]. [Claimant #2] provided evidence that he lived in a regular parent-child relationship with [Employee’s Son], evidence that he utilizes the last name of [Employee’s Son] along with miscellaneous group family photos including weddings and outdoor activities.

[Claimant #3] provided a copy of her birth certificate showing that she is the daughter of [Name Deleted] and [Name Deleted] and was born on January 8, 1962. She was seven years old at the time her mother married [Employee’s Son]. [Claimant #3] provided evidence that she lived in a regular parent-child relationship with [Employee’s Son], evidence that she utilized the last name of [Employee’s Son], along with miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the bride” at her wedding. She also provided evidence of her change of name from [Claimant #3’s Maiden Name] to [Claimant #3’s Married Name].

[Claimant #4] provided a copy of his birth certificate showing that he is the son of [Name Deleted] and [Name Deleted] and was born on April 1, 1957. He was thirteen years old at the time his mother married [Employee’s Son]. [Claimant #4] provided evidence that he lived in a regular parent-child relationship with [Employee’s Son], evidence that he utilizes the last name of [Employee’s Son], along with miscellaneous group family photos, and a photo of [Employee’s Son] as “father of the groom” at his wedding.

On December 17, 2008, the Seattle district office recommended acceptance of the claims of [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] for survivor benefits under Part B of EEOICPA, on the ground that the employee is a member of the SEC who was diagnosed with lung cancer. In addition to finding that the employee was now deceased, the district office also found that there was no living spouse, children, or parents of the employee. The district office therefore concluded that [Claimant #1], [Claimant #2], [Claimant #3], and [Claimant #4] are the surviving grandchildren of the employee and are entitled to equal shares of the $150,000.00 survivor benefit payable under Part B. The district office also recommended denial of their claims under Part E because grandchildren are not eligible to receive survivor benefits under Part E of EEOICPA.

On December 30, 2008, FAB received written statements from [Claimant #1], [Claimant #2] and [Claimant #4] indicating that they had never filed a tort suit or received a settlement based on the claimed condition. They also indicated that they had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed condition, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation. Further, they confirmed that [Employee] had no other biological children, stepchildren or adopted children other than [Employee’s Son]. On the same date, FAB received written notification indicating that [Claimant #1], [Claimant #2], and [Claimant #4] waived all rights to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision.

On January 2, 2009, FAB received a written statement from [Claimant #3] indicating that she had never filed a tort suit or received a settlement based on the claimed condition. She also indicated that she had never filed for or received any payments, awards or benefits from a state workers’ compensation claim in relation to the claimed condition, or pled guilty to or been convicted of any charges connected with an application for or receipt of federal or state workers’ compensation. Further, she confirmed that [Employee] had no other biological children, stepchildren or adopted children other than [Employee’s Son]. She also submitted a written notification indicating that she waives all rights to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision.

On January 28, 2009, FAB received a written statement from [Claimant #1] confirming that the parents of [Employee], [Name Deleted], and [Name Deleted] are no longer living.

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

FINDINGS OF FACT

1. On October 6, 2008, [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each filed a claim for survivor benefits as a surviving grandchild of [Employee] under EEOICPA.

2. [Employee’s Son] was the only child of [Employee], and he died on April 10, 2008.

3. [Employee]’s parents are no longer living.

4. [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each lived in a regular parent-child relationship with [Employee’s Son] and their mother was married to [Employee’s Son].

5. [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] have not filed or received any money from a tort suit or from a state workers’ compensation program based on the claimed condition, nor have they ever pled guilty to or been convicted of any charges of having committed fraud in connection with an application for or receipt of benefits under any federal or state workers’ compensation law.

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

CONCLUSIONS OF LAW

Section 30.316(a) of the EEOICPA regulations provides that 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. See 20 C.F.R. § 30.316(a) (2008). [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] each waived her/his right to file objections to the findings of fact and conclusions of law contained in the December 17, 2008 recommended decision issued on her/his claim for survivor benefits under EEOICPA.

In order to be afforded coverage under Part B, a survivor must establish that the employee was diagnosed with an “occupational illness” incurred as a result of exposure to silica, beryllium and/or radiation, i.e., cancer, beryllium sensitivity, chronic beryllium disease or silicosis. See 42 U.S.C. § 7384l(15), 20 C.F.R. § 30.110(a). Furthermore, the illness must have been incurred while the employee was in the performance of duty. See 42 U.S.C. § 7384l(4)-(7), (9), (11). These findings were made in the previous final decision on the claim of [Employee’s Spouse], which was administratively closed after she died on September 21, 2008.

The order of eligibility in a survivor claim under Part B is the employee’s spouse, then child, then parent, then grandchild, and finally grandparent. See Federal (EEOICPA) Procedure Manual, Chapter 2-0200.3 (September 2004). The term “child” includes a stepchild who lived with an employee in a regular parent-child relationship. See 42 U.S.C. § 7384s(e)(3)(B). The term “grandchild” of an employee is a child of a child of that employee. See 42 U.S.C. §§ 7384s(e)(1)(D), 7384s(e)(3)(B) and (D). [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] are the surviving children of a child of the employee under § 7384s(e)(1)(D) and they are entitled to an equal share of the total survivor compensation payable under Part B ($150,000.00), which comes to $37,500.00 each. See 42 U.S.C. §§ 7384s(e)(1)(D), 7384s(a)(1).

Under Part E of EEOICPA, the only survivors eligible for benefits are the employee’s spouse, or the employee’s children who were under the age of 18 at the time of the employee’s death, or under the age of 23 and a full-time student at the time of the employee’s death, or any age and incapable of self-support at the time of the employee’s death. The following survivors who are potentially eligible under Part B are not eligible for compensation under Part E of EEOICPA: adult children (with the exception of those incapable of self-support at the time of the employee’s death), parents, grandchildren or grandparents of the deceased employee. See Federal (EEOICPA) Procedure Manual, Chapter E-600.3a (September 2005). [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] are not eligible survivors under Part E. Accordingly, the claims of [Claimant #1], [Claimant #2], [Claimant #3] and [Claimant #4] for survivor benefits under Part E are denied.

Seattle, Washington

Keiran Gorny

Hearing Representative

Final Adjudication Branch