Chapter E-600 Establishing Survivorship

1. Purpose and Scope. This chapter contains the procedures to be used by the claims examiner (CE) for the development and review of survivor claims under Part E of the EEOICPA. The chapter also describes Recommended Decisions in survivor claims, survivorship entitlement(s), the time of payment, the order of payment for eligible survivors, rejected compensation, multiple payments, and an alternative to filing a survivor claim.

2. Policy. The CE is responsible for processing survivor claims and ensuring benefits are appropriately paid to eligible survivors under the provisions of 42 U.S.C. 7385s-1(2), 7385s-3 and 7385s-5.

3. Survivor Claims. If an employee, eligible for EEOICPA benefits under Part E, dies before his or her claim is accepted and/or before compensation is paid, one or more of the employee’s survivors may file a claim for compensation under Part E of the EEOICPA. Whenever a survivor files a claim, the CE is responsible for adjudicating the claim(s) filed and processing any compensation which may be payable in the order of eligibility.

a. Under Part E of the EEOICPA, the only claimants eligible for benefits are the spouse, or children of the covered employee who are under the age of 18 years at the time of the covered employee’s death, or under the age of 23 years and a full time student at the time of the covered employee’s death, or any age and incapable of self-support at the time of the covered employee’s death. Unlike under Part B of the EEOICPA, the following claimants are not eligible for compensation under Part E of the EEOICPA: adult children (with the exception of those incapable of self-support at the time of the covered employee’s death), parents, grandchildren, or grandparents of the deceased covered employee.

4. Filing a Claim for Survivor Benefits. A request for survivor benefits must be in writing. Each claimant, including children, must file a separate EE-2 form. In the case of a child under the age of 18 years, a parent or legal guardian may complete the form on his/her behalf. A legal guardian is a person with the responsibility for providing the care and management of a child and his or her estate. The survivor may choose to claim only for those occupational illnesses or covered illnesses in which a payment has not been received from a tort suit or a state worker’s compensation claim, so that the claimant would not be subject to offset or coordination of EEOICPA benefits. The survivor may withdraw his or her claim by requesting withdrawal in writing to the CE at any time prior to the issuance of a recommended decision. The CE should take the following steps in determining whether the survivor is eligible for compensation:

a. Verify the death of the employee: Verification must include a copy of the employee’s death certificate.

b. Establish that the person named as the employee had a covered illness which aggravated, contributed to, or caused his or her death and that the employee had covered employment under Part E of the EEOICPA. This development may occur simultaneously with the development for survivor entitlement.

c. Establish the relationship of the survivor to the covered Part E employee. Along with a completed EE-2 form, the claimant must provide documentation establishing his or her relationship to the covered employee. The CE should write to the claimant requesting the necessary evidence.

d. Identify Potential Survivors. The CE develops for potential survivors under Part E of the EEOICPA and requests the potential survivor to file an EE-2 when he or she is identified on the EE-2 form of another claimant or through another development action. There is no need for a survivor to file a new claim when there is an existing accepted Part B claim, or when the survivor filed a Part D claim with DOE. However, a decision under Part B and Part E of the EEOICPA must address all claimed survivors (please see Chapter E-1100 Decisions and Hearings).

(1) When requesting that a potential survivor file a claim under Part E of the EEOICPA, the CE contacts the individual(s) by letter to explain his or her right to file a survivor claim. The letter explains the benefits available under the program on a case-by-case basis based upon CE review.

(2) The letter does not indicate whether the individual is qualified to receive benefits, as this is a function of the claims process after an EE-2 form has been filed. Rather, the letter outlines the general requirements for survivor eligibility.

(3) The letter advises that both statutory and regulatory requirements must be met before compensation can be awarded.

(4) The individual is asked to complete and submit an EE-2 form within 30 days. A blank Form EE-2 must be attached to the correspondence.

(5) If the claim is not submitted within the 30 day time period, the CE can proceed with the adjudication of the case file on the assumption that a claim is not forthcoming.

5. Developing a Survivor Claim.

a. For a surviving spouse, documentation consists of a copy of his or her marriage certificate issued or recognized by a State Authority or an Indian Tribe Authority. To be an eligible surviving spouse, the spouse must have been married to the employee for one year immediately prior to the death of the employee. One year immediately prior to the employee’s death includes the date of marriage through the day prior to the date of death. For example, if an employee married on September 4, 2004 and died on September 3, 2005, the CE does not include September 3, 2005 when calculating the required 365 consecutive day term. The CE counts each calendar day from September 4, 2004 up through and including September 2, 2005.

(1) A marriage license should not be used to validate a marriage. The case file must contain sufficient evidence of a legal marriage, such as a marriage certificate, under the applicable state law.

(2) The surviving partner in a relationship in which the couple lived together in a common law marriage is considered a spouse of the deceased employee if the situation meets the appropriate state’s criteria for establishing a common law marriage. The CE must request documentation from the claimant providing proof of general reputation of marriage in the community, and continuous cohabitation as husband and wife. The CE must document in the case file the requirements used to establish a common law marriage. The evidence obtained by the CE shall be forwarded to the National Office, Branch of Policy, Regulations, and Procedures (for possible submission to the Solicitor’s Office) for a decision on the status under the rules of the state. Examples of evidence which may be used to document a common law marriage may consist of affidavits asserting that they lived together as husband and wife in a particular state and presented themselves in the community as husband and wife. Other evidence consisting of joint tax returns, joint checking or savings accounts, joint mortgage statements, joint deeds, and tax statements are also helpful.

b. To be a “covered” child under Part E, the child can be a recognized natural child of the covered employee, a stepchild who lived with the covered employee in a regular parent-child relationship, or a legally adopted child of the employee who as of the date of the employee’s death met the following criteria: had not attained the age of 18 years; had not attained the age of 23 years and was a full time student who was continuously enrolled as a full time student in one or more educational institutions since attaining the age of 18 years; or had been incapable of self-support regardless of age. Eligibility as a covered child is not dependent on marital status (i.e. the covered child can either be single or married). Documentation to support the claim includes a copy of the child’s birth certificate or an adoption certificate. If a birth or adoption certificate is not available, the CE obtains any evidence possible to establish the parent-child relationship. The CE must exercise his or her discretion in reviewing the documentation provided, and base the adjudication on logical rationale.

(1) In cases where the claimant claims to be a covered child of the deceased employee and the birth certificate does not list the deceased employee as the father or mother of the claimant, the CE must further develop the issue. Examples of supportive evidence include a paternity/maternity test, the death certificate listing the claimant as the child of the deceased employee, an obituary listing the claimant as the child of the deceased employee, affidavits from family members attesting to the paternity/maternity, life insurance policies listing the claimant as the child, employment or tax records listing the claimant as the child, and any other document in which the deceased employee recognized the claimant as his/her child. In this instance, the CE must use his/her discretion in reviewing any evidence received to support paternity/maternity and the CE must also review all evidence received in its totality.

(2) In certain instances additional eligibility may extend to a minor natural child of the employee who is not the child of the covered spouse. The non-spousal child must meet the requirements for a covered child as set out in this chapter (i.e. be under the age of 18 at the time of the employee’s death, be between the ages of 18 and 23 and be a full time student at the time of the employee’s death, or be any age and incapable of self-support at the time of the employee’s death).

(3) In order to be entitled as a covered child between the ages of 18 and 23 who was a full time student at the time of death, the child must have been continuously enrolled as a full time student in one or more educational institutions since attaining the age of 18 years and must not have reached the age of 23 years regardless of marital status or dependency on the employee for support. Enrollment as a full time student consists of a 12 month period, with a break of no more than 4 months, during each year of post high school education. The full time course of study or training at an accredited institution(s) is approximately four years of education beyond the high school level or until the student reaches age 23, whichever comes first. It is at the CE’s discretion to determine a period of reasonable duration if the student was prevented by reasons beyond his or her control, such as a brief but incapacitating illness, from continuing in school. Documentation to support eligibility includes transcripts from the accredited educational institution(s), school records, and affidavits.

(4) In order to be entitled as a covered child who has been incapable of self-support at the time of death, the child must have been physically or mentally incapable of self-support regardless of the child’s marital status or dependency on the employee for support. A child is incapable of self-support if his or her physical or mental condition is such that he or she is unable to obtain and retain a job, or engage in self-employment that provides a sustained living wage. This determination must be based on medical evidence which documents the physical or mental condition and its effects on the child’s activities. When medical evidence demonstrates incapacity for self-support, this determination will stand unless refuted by sustained work performance. A child is not incapable of self-support merely because of an inability to obtain employment due to economic conditions, lack of job skills, etc. Documentation to support the incapability of self-support includes medical records, social security disability records, tax returns showing that the covered child was claimed as a dependent, and affidavits.

(a) In the event the CE obtains SSA/state disability records indicating lack of self-support, such evidence can not be used to establish lack of self-support as it is mandated under the statute. Various different jurisdictions interpret lack of self-support differently, and the CE uses the evidence as a whole to establish this finding.

6. Simultaneous Development of Other Issues in a Survivor Claim. The CE sends development letters requesting documentation to establish medical and employment evidence to all survivors claiming benefits.

a. The CE may proceed with the development of employment and medical requirements in the case of multiple survivors when there is documentation sufficient to proceed with this development (e.g., EE-3 or supportive medical report is submitted by one or more of the survivors).

(1) A request for documentation required to support the eligibility of a specific claimant is only to be sent to that claimant.

7. Issuing Recommended Decisions. Regardless of whether a single survivor or multiple survivors have been identified, one Recommended Decision that consolidates all claims under an employee’s Social Security Number must be issued.

a. The recommended decision must include a finding in regard to entitlement to compensation for each survivor. Specifically, the CE references the names of the survivors, whether they are entitled to receive compensation, the amount of compensation payable to eligible survivors, and the basis for the conclusions reached.

b. The recommended decision may not include the addresses of all survivors. Each address must be listed on a separate certificate of service. A cover letter is addressed to each individual survivor along with a copy of the Recommended Decision.

c. Survivor’s Failure to File a Form EE-2. In certain situations, a CE may be able to affirm the existence of an eligible survivor, but be unable to contact the survivor or to have the survivor file an EE-2. If a CE encounters this situation, the CE proceeds with the issuance of a Recommended Decision.

(1) The decision includes a finding of potential entitlement for the eligible survivor even though he or she has not filed an EE-2 form (non-filing survivor). When the CE issues a recommended decision under Part E of the EEOICPA every claimant that filed a claim under Part B or Part E of the EEOICPA must be addressed in the Part E decision (please see Chapter E-1100 Decisions and Hearings). For example, three children of a covered employee file a claim under Part B and all are accepted as eligible survivors under Part B, however, only one of the children file a Part E claim. The CE develops claims for the other two children, consistent with the procedures as addressed in this Chapter, and all three of the children are addressed in the recommended decision under Part E regardless whether or not have filed a Part E claim.

(2) The compensation for the non-filing eligible survivor may not be distributed among the other survivors who have filed claims, and must be retained in the Fund until he or she comes forward to file a claim. For example, an EE-2 form completed by the child of a deceased employee identifies another eligible child. The child produces a birth certificate and evidence of the other child's current address. The child is contacted by the CE, but fails to file an EE-2 form. If there is sufficient evidence to conclude the child is eligible under the Program, the CE proceeds to include the child in the Recommended Decision. However, DEEOIC does not pay compensation to the non-filing survivor unless that survivor submits an EN-20 in response to the FD. DEEOIC pays the filing survivor and reserves the money in the fund until such time as the non-filing survivor comes forward. If at a later date, the child contacts the DO indicating his or her intent to pursue a survivor claim; he or she must file a Form EE-2. This will allow the DO to pursue payment of any compensation that may be due.

8. Survivor Issues During the Payment Process.

a. If the employee is alive when the Final Decision is issued, but dies before time of payment, the case file must be forwarded to the NO for a Director’s Order in accordance with the instructions provided in the PM 2-1400 (Reopening Process). Once the final decision is vacated, the claim must be developed for possible survivors. If survivors are identified and eligible, the district office must issue a new recommended decision which encompasses all eligible survivors.

(1) If a paper check has been mailed to the employee, the payment must be cancelled. The employee must be able to endorse the check. If the payment is made via electronic fund transfer (EFT), the payment should not be cancelled. For more information on cancellation procedures, refer to EEOICPA Bulletin No. 04-10.

b. Employee’s death. If a covered spouse is alive at the time of payment, under most circumstances such payment shall be made in full to the covered spouse. However, if there is at least one covered non-spousal child of the employee who is living at the time of payment, then half of the payment shall be made to the covered spouse, and the other half of the payment shall be made in equal shares to each covered child of the employee who is living at the time of payment without regard to whether the child is a spousal child or non-spousal child.

(1) If a covered Part E employee dies after filing a claim but before compensation is paid under Part E of the Act, and his or her death was solely caused by a non-covered illness or illnesses, then the survivor may choose the compensation that would otherwise have been payable to the covered Part E employee if he or she had not died prior to receiving payment. The survivor is not entitled to the $125,000 lump sum payment because death was not caused by the claimed covered condition.

(a) If the covered illness or illnesses aggravated, contributed to, or caused a covered Part E employee’s death, then the survivor does not have the option to choose to receive the compensation that would have otherwise been payable to the covered Part E employee if living. Instead the survivor is entitled to survivor benefits as defined in this chapter.

c. Survivor’s Death. If one of the survivors on a multiple survivor claim dies before payment is issued, the compensation is reapportioned among the remaining survivors. For example, three survivors of the deceased employee file survivor claims. One of the survivors dies before payment is made. The compensation must be divided between the two remaining living survivors of the deceased employee. The case file must be forwarded to the NO with a copy of the death certificate for a Director’s Order in accordance with the instructions provided in the PM 2-1400 (Reopening Process) if this occurs after the issuance of the FD. The district office must issue a new recommended decision which encompasses all eligible survivors. Under no circumstances can compensation be paid to the survivors of a deceased survivor.

9. Amount of Survivor Payments. In some situations, a survivor may receive more than $125,000 in compensation under Part E. This occurs when the CE determines that the deceased covered Part E employee experienced compensable wage loss prior to his or her attainment of normal retirement age under the Social Security Act, as a result of the accepted covered illness or illnesses (please see Chapter E-800 Establishing Wage-Loss Determinations).

a. If a covered Part E employee died as a result of a covered condition prior to the attainment of his or her normal retirement age, the CE presumes that the covered Part E employee experienced wage loss for each calendar year subsequent to the calendar year of his or her death through and including the calendar year in which the employee would have reached normal retirement age.

(1) For the years after the employee’s death, if the employee’s death occurred less than 10 years before his or her normal retirement age, the survivor is not entitled to any monetary compensation for wage loss, unless the employees lost wages as a result of the covered condition prior to his/her death.

(a) For example, a covered Part E employee whose date of birth is April of 1937 passes away in July of 1996. The covered Part E employee would have reached normal retirement age at the age of 65 in April of 2002. If no wage loss occurred prior to the death, the CE presumes that the deceased covered Part E employee experienced 6 calendar years of wage loss, and the survivor is not entitled to wage loss benefits.

(2) If the employee’s death occurred as a result of the covered condition between 10 and 19 years before his or her normal retirement age, the survivor is entitled to an additional $25,000 in compensation.

(a) For example, a covered Part E employee whose date of birth is April of 1937 passes away in July of 1985. The covered Part E employee would have reached normal retirement age at age 65 in April of 2002. If no wage loss occurred prior to the death the CE presumes that the deceased covered Part E employee experienced 17 calendar years of wage loss, and the survivor is entitled to an additional $25,000 in compensation.

(3) If the employee’s death occurred as a result of the covered condition 20 years or more before the employee’s normal retirement age, the survivor is entitled to an additional $50,000 in compensation.

(a) For example, a covered Part E employee whose date of birth is April of 1937 passes away in July of 1977. The covered Part E employee would have reached normal retirement age at age 65 in April of 2002. Therefore the CE presumes that the deceased covered Part E employee experienced 25 calendar years of wage loss, and an additional $50,000 is payable.

b. Wage loss can occur before and/or after the employee’s death, as long as it is prior to his or her normal Social Security retirement age. Therefore the survivor may be entitled to additional sums of compensation based upon a combination of years of wage loss experienced prior to death and through normal Social Security retirement age (please see Chapter E-800 Establishing Wage-Loss Determinations).

The above sums of entitlement, $25,000 and $50,000, are in addition to the $125,000 survivor entitlement due to the death of the covered employee from a covered illness that was caused by the employee’s work at a covered DOE facility. Therefore a survivor may be entitled to up to $175,000, dependent upon the above criteria.

10. Maximum Aggregate Compensation. Under Part E of the EEOICPA the amount of compensation provided, excluding medical benefits, may not exceed the total amount of $250,000 per accepted covered employee for an employee claim or a survivor claim where the survivor collects the amount to which the employee would be entitled. The CE does not develop for additional medical conditions once the aggregate compensation amount is reached, unless the potential for covering medical expenses exists.

11. Alternative to filing a survivor claim under Part E of the EEOICPA. A non-covered spouse or child of a deceased DOE contractor/subcontractor employee or RECA section 5 uranium worker may submit a written request to the District Office for an informal evaluation of whether that the deceased DOE contractor/subcontractor employee or RECA section 5 uranium worker contracted a covered illness under section 7385s-4(d) of the EEOICPA. The Part E final decision cover letter advises the survivor(s) of the option to elect to receive an informal evaluation for benefits under Part E of the Act. See Chapter E-1100, Exhibit 3, for exact language used in this situation. Once the alternative filing review is complete, the CE issues a determination letter to the claimant. No RD or FD is required. (See Chapter E-1100 Decisions and Hearings for ECMS coding).

a. If the survivor makes a written request for an alternative response, the CE reviews the claimed employment, exposure and medical condition.

(1) The CE sends a determination letter to the survivor stating everything in hypothetical terms (i.e. if the employee had CBD and worked at the claimed DOE facility, there is a likelihood that he or she was exposed to beryllium and that this exposure caused the employee’s medical condition).

(a) The CE advises the claimant in the determination that the information provided is based on general knowledge about the facility, the type of condition claimed, and exposures at the facility that may cause such an illness. The CE relies on exposure matrices and general knowledge about the facility and conditions to make this determination

(b) The CE must make it clear in the determination that the Office has not undertaken complete development for medical or employment and state that we are NOT stating that the employee was a “covered” employee under the Act.

(c) The determination further states that if the claimant wishes the DOL to undertake full development of the issues of coverage, he/she may request such in writing. The determination should explain the type of development that would be undertaken if the full development option is chosen, (i.e. a possible referral to NIOSH [which would include a detailed interview with the claimant], obtaining additional medical and employment documentation from the claimant, etc).

(d) The determination advises that this type of development is time consuming and intensive, yet if the claimant desires, DOL will undertake such development.

(e) The claimant is further reminded that in the event of such development, the additional determination will still not change the final decision that the survivor is not entitled.

b. The issuance of this letter will most likely be to a survivor who is not eligible, but nonetheless specifically requests this alternative as a form of closure regarding the employee’s condition and whether it was aggravated, caused, or contributed to by the covered employment.

c. If at anytime the survivor files an EE-2 form, once the development (i.e. employment, medical, and/or survivorship) has been attempted and is complete, the CE renders a recommended decision on entitlement which is then reviewed by the FAB who renders a final decision.

d. If after the initial alternative filing decision is issued and the claimant requests a full development of the alternative filing, full development of the claim is conducted and another alternative filing decision is issued based upon such development. Again, no FD or RD is issued in this instance. See Chapter E-1100 for coding. Full development requests are coding the same as requests that do not stipulate full development.