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Scott v. U.S. Department of Labor

United States District Court, W.D. Kentucky, Paducah Division

December 12, 2016



          Greg N. Stivers, Judge.

         Plaintiff Betty J. Scott (“Scott”) brings this action for review of the Department of Labor's (“DOL”) denial of her claims for survivor benefits under Parts B and E of the Energy Employee Occupational Illness Compensation Program Act of 2000 (“EEOICPA” or “Act”), 42 U.S.C. §§ 7384 to 7385s-16. For the reasons stated below, Scott's claim is DENIED.


         Scott's husband, Warren E. Scott, worked at the Paducah Gaseous Diffusion Plant (“PGDP”) from February 3, 1953 to December 31, 1994. (Administrative R. 12, DN 20-1 [hereinafter AR]). In the Complaint, Scott alleges that her husband was exposed to hazardous substances during his time at the PGDP, which caused various illnesses. (Compl. ¶ 9, DN 1). Scott's husband passed away on September 28, 2007. (AR 12).

         Scott first sought compensation for survivor benefits under EEOICPA Part E in January 2008. (AR 555-558). She alleged that her husband's chronic obstructive pulmonary disease (“COPD”) was the result of his employment at the PGDP and that COPD caused his death. (AR 555-558). In April 2008, the district office of DOL's Office of Workers' Compensation Programs (“OWCP”) recommended that Scott's claim be denied. (AR 504-507). In July 2008, the Final Adjudication Branch (“FAB”) within OWCP issued a final decision consistent with the district office's recommendation. (AR 490-493).

         Subsequently, in April 2012, Scott filed claims for survivor benefits under EEOICPA Part B and E for her late husband's alleged chronic beryllium disease (“CBD”) and for his death, allegedly due to CBD. (AR 470-471). After a hearing, FAB issued a final decision denying Scott's claims in April 2013. (AR 288-291). In May 2013, Scott submitted a timely request for reconsideration of FAB's decision in which she mainly disputed conclusions drawn from her husband's chest x-rays. (AR 253-282). FAB denied Scott's request because she did not present any new evidence or argument in support of her CBD claim. (AR 246-247). In August 2013, however, Scott requested that both her Part B and Part E claim be reopened. (AR 217-242). That request was granted by order of the Unit Chief for Policies, Regulations, and Procedures within OWCP's Division of Energy Employees Occupational Illness Compensation and, as a result, FAB's April 2013 decision was vacated. (AR 205-211).

         The order instructed the district office to refer the x-ray reports submitted by Scott to a medical consultant for an opinion regarding “whether the findings are characteristic of CBD” and to issue a new recommended decision on Scott's claims under Part B and E. (AR 211). The consultant retained by the district office concluded that the x-ray reports did not show characteristics consistent with CBD. (AR 199). The consultant's report specifically provided:

Question: Do the [x] -ray and CT reports submitted show characteristics consistent with [CBD]?
Answer: No.
The DEEOIC guidelines are quite specific with regard to the chest x-ray characteristics of CBD. The primary finding is small round and/or irregular areas of opacity distributed throughout all of the lung fields, which Mr. Scott's x-rays do not display. Linear fibrosis is sometimes found with advanced CBD which results in progressive loss of lung volume. The fibrosis can be accompanied by honeycombing and upper lobe retraction.
Mr. Scott's chest x-rays are normal, except for some calcifications, up until 1991, when he starts to show hyperinflation compatible with COPD. At about the same time, there is the first mention of fibrotic change. This is reported on 8/8/91, 8/9/94 (called scarring in this report), and 9/30/98. The term “mild interstitial prominence” is used in the report from 10/19/98. However, the reports dated 9/15/98, 11/8/99, and 11/14/00 make no mention of fibrosis, scarring or interstitial lung disease. This implies that the fibrosis was not very impressive and certainly not progressive. There is certainly no mention of honeycombing or upper lobe retraction. It was also never accompanied or preceded by the small nodular opacities that almost always characterize CBD.

(AR 189).

         Following the medical consultant's advice, a recommended decision was issued denying Scott's claims. (AR 179-181). After another hearing, in September 2014, FAB issued a final decision denying Scott's claims. (AR 8-15). No requests to reconsider or reopen were made. The current lawsuit followed in October 2014. Scott requests review of only the September 2014 FAB decision denying her claims for CBD under Part B and E. (Compl. ¶¶ 17-26).


         This Court has jurisdiction under 28 U.S.C. § 1331 because federal questions under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706, and 42 U.S.C. § 7385s-6(a) are presented.

         III. ...

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