Office of Workers' Compensation Programs (OWCP)

Division of Energy Employees Occupational Illness Compensation (DEEOIC)

On This Page Adopted Children Burden of Proof Child Eligibility Marriage & Divorce Non-claiming Individuals Reimbursement of Deceased Employee's Medical Expenses Spouse Stepchild

Survivors

Below are the head notes for the final FAB decisions relating to the topic heading, Survivors. The head notes are grouped under the following subheadings: Adopted children, Burden of proof, Child, Choice of compensation under Part E, Eligibility, Marriage and Divorce, Non-claiming individuals, Reimbursement of deceased employee’s medical expenses, Spouse, and Stepchild. In order to view a particular decision in its entirety, click on the hyperlink for that decision at the end of the head note.

Adopted Children

• An adopted Navajo child may claim EEOICPA benefits only as a survivor of her adoptive father and not her natural father because under the Navajo Nation Code the natural parents of an adoptive child are “relieved of all parental responsibilities for such child or to his property by descent or distribution or otherwise.” EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).

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Burden of Proof

• In a case where a surviving spouse is listed on the employee’s death certificate, person claiming benefit as a survivor bears the burden of proving that the surviving spouse is deceased. EEOICPA Fin. Dec. No. 55344-2004 (Dep’t of Labor, November 23, 2004).

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Child

• Child of employee found ineligible for EEOICPA benefits under Part B where there was a surviving spouse. EEOICPA Fin. Dec. No. 4267-2004 (Dep’t of Labor, October 8, 2004); EEOICPA Fin. Dec. No. 11264-2004 (Dep’t of Labor, November 4, 2004).
• One of the claimants was the surviving spouse of a covered Part E employee and two other claimants were surviving covered children. One of the children was the child of the surviving spouse and the other was the child of the employee from a prior marriage. As required by the terms of EEOICPA, half of the benefits that were payable were awarded to the surviving spouse, and the remaining half was awarded to the two covered children of the employee, in equal shares. EEOICPA Fin. Dec. No. 74593-2007 (Dep’t of Labor, March 2, 2007).
• Surviving child met the definition of a “covered” child entitled to Part E survivor benefits under § 7385s-3(d) since at the time of the employee’s death, she was under the age of 23 and a full-time student who had been continuously enrolled since attaining the age of 18. Although there was a lapse of several months when she was not enrolled in full-time studies, the lapse was due to circumstances beyond her control because she had to wait for an opening at the institution. EEOICPA Fin. Dec. No. 10003238-2005 (Dep’t of Labor, October 28, 2005).
• Child who was 54 years old when his father died met the definition of a “covered child” under Part E because he was “incapable of self-support” at the time of the employee’s death. The evidence showed that he was 100% disabled (for which he was receiving veterans’ benefits) due to post-traumatic stress disorder and other disabling conditions. The Social Security Administration and the Department of Veterans’ Affairs provided information that the claimant had no earnings from at least 2000 to 2004. EEOICPA Fin. Dec. No. 10012834-2006 (Dep’t of Labor, February 21, 2007).
• Woman who was 60 years old at the time of her mother’s death filed a claim under Part E as a surviving “covered child” on the ground that she was incapable of self-support. Her physician submitted evidence that she had diabetes mellitus, fibromyalgia, crippling arthritis and other medical conditions, and opined that she was definitely incapable of self-support in October 1999. However, the medical evidence in the case file only addressed the time period after her mother’s death and was insufficient to establish that she was incapable of self-support at the time of her mother’s death. EEOICPA Fin. Dec. No. 10017360-2006 (Dep’t of Labor, August 22, 2006).
• Surviving child awarded benefits under Part B was not eligible for a Part E award because she did not meet the definition of a “covered” child eligible for Part E benefits pursuant to § 7385s-3(d) since at the time of the employee’s death, she was not under the age of 18, nor was she a full-time student under the age of 23 who was continuously enrolled full-time in an institution of higher learning, nor was she incapable of self-support. EEOICPA Fin. Dec. No. 10037246-2005 (Dep’t of Labor, November 2, 2005).

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Choice of Compensation Under Part E

• If a covered Part E employee dies after filing a claim but before compensation is paid, and death is caused solely by a non-covered illness or illnesses, the survivor may choose to receive the compensation that would have been payable to the employee. Here, the covered illnesses were found to have aggravated, contributed to, or caused the covered Part E employee’s death. Consequently, his surviving spouse could not choose the compensation that would have been payable to the employee if he had not died before receiving payment, but she was entitled to survivor benefits in the amount of $125,000. EEOICPA Fin. Dec. No. 10055714-2007 (Dep’t of Labor, April 11, 2007).

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Eligibility

• Under § 7384s(a)(1), eligibility under Part B of the Act is limited to either a covered Part B employee or eligible survivor(s), but not both. A deceased employee’s estate is not eligible to receive compensation. EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005).
• An employee’s sibling is not eligible for survivor benefits under Part B. EEOICPA Fin. Dec. No. 60958-2005 (Dep’t of Labor, February 24, 2005).
• Where surviving spouse entitled to Part B lump-sum payment died prior to the date that the payment was electronically deposited in her account, the payment was reversed and the final decision awarding benefits to her was vacated. A new final decision was issued awarding benefits to the surviving children. EEOICPA Fin. Dec. No. 72762-2006 (Dep’t of Labor, December 2, 2005).

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Marriage & Divorce

• Under the Act, the “spouse” of a deceased individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual. EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002).
• Probative value of official documents issued by the Vital Records and Tribal Enrollment Program of the Navajo Nation documenting employee’s divorce far outweighed conflicting factual statements from putative surviving spouse and information on death certificate provided by one of her children who was merely repeating second-hand information. EEOICPA Fin. Dec. No. 63743-2006 (Dep’t of Labor, November 21, 2006).

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Non-claiming Individuals

• The share of survivor’s compensation for a potentially eligible survivor who did not claim his portion of the award must remain in the EEOICPA fund. EEOICPA Fin. Dec. No. 47856-2005 (Dep’t of Labor, July 21, 2005).

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Reimbursement of Deceased Employee's Medical Expenses

• Where employee died before payment could be issued based on his CBD, survivors who subsequently filed claims were entitled to reimbursement of the medical expenses for his CBD, retroactive to the date he filed his original claim, through the date of his death. EEOICPA Fin. Dec. No. 59062-2004 (Dep’t of Labor, September 13, 2004).

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Spouse

• The “spouse” of a deceased individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual. EEOICPA Fin. Dec. No. 9855-2002 (Dep’t of Labor, August 26, 2002).
• To establish her eligibility as a surviving spouse, in addition to submitting a copy of her marriage certificate and her late husband’s death certificate, claimant needed to submit documentation concerning her name change from the employee’s last name to a different last name. EEOICPA Fin. Dec. No. 22269-2004 (Dep’t of Labor, September 17, 2004).
• The marriage certificate confirmed the marriage of spouse and employee. This evidence suggests that the claimant is the surviving spouse of the employee. EEOICPA Fin. Dec. No. 30971-2002 (Dep’t of Labor, March 15, 2004).
• Surviving spouse with a valid claim under the Act is not bound by an otherwise legally valid agreement, such as a prenuptial agreement, in which she promised to forego that award. EEOICPA Fin. Dec. No. 45670-2004 (Dep’t of Labor, October 6, 2005).
• Claimant’s survivor claim was denied since the covered employee had previously received $150,000 under Part B of the EEOICPA. No additional compensation is available to claimant under Part B. EEOICPA Fin. Dec. No. 53272-2004 (Dep’t of Labor, March 31, 2004).
• Surviving spouse did not waive her right to survivor benefits under EEOICPA when she signed a prenuptial agreement since at that time she was not yet a spouse and had no entitlement to or interest in survivor benefits that she could have attempted to waive. EEOICPA Fin. Dec. No. 56001-2004 (Dep’t of Labor, November 15, 2005).
• Under Part B, where a marriage certificate was unavailable to prove existence of marriage, surviving spouse provided proof of survivorship through submission of the employee’s death certificate, Oak Ridge Plant documents establishing fact of marriage, and the birth certificate of employee and spouse’s mutual child indicating that the employee and spouse were in fact married. EEOICPA Fin. Dec. No. 62217-2005 (Dep’t of Labor, January 13, 2005).

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Stepchild

• Because it did not appear that claimant was a biological child of the employee, the FAB directed the district office to provide the claimant an opportunity to establish that she was a stepchild who lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 366-2002 (Dep’t of Labor, June 3, 2003).
• In cases involving a stepchild or stepchildren who were adults at the time of the covered employee’s marriage, supporting evidence that they lived in a regular parent-child relationship may consist of documentation showing that the stepchild was the primary contact in medical dealings with the deceased employee, the stepchild provided financial support for the deceased employee, and/or had the deceased employee living with him/her, etc. In addition, evidence consisting of medical reports, letters from the physician, receipts showing that the stepchild purchased medical equipment, supplies or medicine for the employee may be helpful. Also, evidence such as copies of insurance policies, wills, photographs showing attendance at a stepchild’s wedding as the father or mother or at other types of family gatherings, and newspaper articles like obituaries or any other documentation that refer to the stepchild and the decease employee in a familial way may be used. EEOICPA Fin. Dec. No. 32000-2002 (Dep’t of Labor, September 13, 2004); EEOICPA Fin. Dec. No. 32576-2004 (Dep’t of Labor, November 19, 2004).
• Under EEOICPA, a child includes a stepchild who lived with an individual in a regular parent-child relationship. There is no minimum or maximum time period that a person has to have lived in the same household as the employee in order to be a stepchild. Here the evidence indicated that the stepchildren lived with the employee for at least three years and were listed as his children in the employee’s obituary. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
• A child was determined to be the employee’s stepchild since the employee’s name was listed as the father on the birth certificate and there was no evidence the child was formally adopted by the putative natural father. EEOICPA Fin. Dec. No. 54583-2004 (Dep’t of Labor, November 2, 2006).
• Even though claimant was an adult at the time his mother and stepfather (the employee) were married, he submitted evidence sufficient to establish that he lived with the employee in a regular parent-child relationship. EEOICPA Fin. Dec. No. 55831-2004 (Dep’t of Labor, July 29, 2005).
• Claimant established that she was a stepchild of the employee who lived with the employee in a regular parent-child relationship by providing a copy of her permanent school record naming the employee as her father, a copy of the employee’s will naming the claimant as one of his children and a letter written by one of the employee’s biological children confirming that the claimant was her sister and was raised in the same household as the employee’s biological children. EEOICPA Fin. Dec. No. 68949-2005 (Dep’t of Labor, September 21, 2005).