Division of Energy Employees Occupational Illness Compensation (DEEOIC)
Below are the head notes for the FAB decisions and orders relating to the topic heading, Wage-Loss Benefits. The head notes are grouped under the following subheadings: Calculation of average annual wage, Causation not proven, Elements to be proven, Evidence required, and In general. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.
- In calculating an employee’s “average annual wage” (AAW) and adjusted earnings in subsequent years, DEEOIC considers “wages” received by a Part E employee to be all monetary payments from employment or services that were taxable as income under the Internal Revenue Code. DEEOIC has defined “wages” to include salaries, overtime compensation, sick leave, vacation leave, tips and bonuses received for employment or services. Specifically excluded from the definition of “wages” are capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits and Social Security benefits. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
- Dividend income received by a Part E employee from a subchapter S corporation under the Internal Revenue Code qualified as “wages” under Part E where evidence revealed that the employee materially participated in the operations of the corporation as its sole proprietor and 100% shareholder. The value of the health benefits received by the employee as an owner of 2% or more of shares of a subchapter S corporation qualifies as a deductible expense, and so was not taken into account when calculating his AAW. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
- Where the evidence established that the employee had lost wages because he was terminated from his job as part of a Reduction-In-Force rather than as the result of any covered illness, FAB concluded that the employee had failed to prove the required element of causation and denied his wage-loss claim. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
- In addition to satisfying the general eligibility requirements applicable to all Part E claims, an employee seeking benefits for calendar years of qualifying wage-loss must also prove the following elements: (1) that the employee held a job at which he/she was earning wages; (2) that the employee experienced a loss in those wages in a particular month (the “trigger month”); (3) that the wage-loss in the trigger month was caused by the employee’s covered illness, i.e., that he/she would have continued to earn wages in the trigger month from that job but for the covered illness; (4) his/her AAW over the 36 months that immediately preceded the trigger month; (5) his/her normal retirement age and the calendar year (the “retirement year”) in which he/she would reach that age; (6) beginning with the calendar year of the trigger month, the percentage of the AAW that was earned in each calendar year up to and including the retirement year; (7) the number of those calendar years in which the covered illness caused the employee to earn 50% or less of his/her AAW; and (8) the number of those calendar years in which the covered illness caused him/her to earn more than 50% but not more than 75% of his/her AAW. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
- To be eligible for wage-loss benefits under Part E, a DOE contractor employee must establish a loss of wages due to a covered illness. Qualifying calendar years of wage-loss will be found for any year, up to and including the calendar year that the employee reaches normal retirement age under the Social Security Act, in which the employee’s wages did not exceed 75% of his/her AAW, which is calculated based upon the 36-month period immediately preceding the first month of compensable wage-loss. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
- Rationalized medical evidence is required to establish the causation aspects of a wage-loss claim. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
- Where FAB found that there was no evidence that the employee experienced a loss of wages in the month that he was diagnosed with his covered illness that prevented him from working, i.e., the “trigger month,” the employee could not establish a wage-loss causally related to the covered illness and was not entitled to wage-loss benefits under Part E. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009); EEOICPA Fin. Dec. No. 10004605-2006 (Dep’t of Labor, September 30, 2010); EEOICPA Order No. 10076066-2009 (Dep’t of Labor, March 5, 2010).
- Part E does not provide wage-loss benefits for employees who should have been placed under restrictions and might have lost wages had those restrictions been in place. Rather, it only provides wage-loss benefits for employees who, consistent with the terms of 42 U.S.C. § 7385s-2(a)(2)(A)(i), actually experienced wage-loss caused by a covered illness. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).