United States District Court, W.D. Kentucky, Paducah Division
BETTY J. SCOTT PLAINTIFF
U.S. DEPARTMENT OF LABOR DEFENDANT
MEMORANDUM OPINTION & ORDER
N. Stivers, Judge.
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
STATEMENT OF FACTS AND CLAIMS
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).
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).
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
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
Question: Do the [x] -ray and CT reports submitted show
characteristics consistent with [CBD]?
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.
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).
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.