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Allen v. U.S. Department of Labor

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

August 30, 2017

DOLORES ALLEN PLAINTIFF
v.
U.S. DEPARTMENT OF LABOR DEFENDANT

          MEMORANDUM OPINION & ORDER

          Greg N. Stivers, United States District Judge.

         Plaintiff Dolores Allen (“Allen”) brings this action for review of the Department of Labor's (“DOL”) denial of her claims for benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (the “EEOICPA”), 42 U.S.C. §§ 7384-7385s-16. Because the only decision for which review is available is neither arbitrary nor capricious, Allen's claim is DENIED.

         I. BACKGROUND

         A. Statutory Background

         The EEOICPA provides benefits to covered employees with illnesses caused by exposure to toxic substances in the course of their work for the Department of Energy (“DOE”) and its predecessor agencies, as well as certain of its vendors, contractors, and subcontractors. An employee seeking compensation under Part B of the EEOICPA for chronic beryllium disease (“CBD”) must first provide proof she qualifies as a “covered beryllium employee, ” i.e., that she was potentially exposed to beryllium while working at a covered DOE facility. 42 U.S.C. § 7384l(1), (7). When documentation establishes employment at a DOE facility during a period of time when beryllium dust, particles or vapor may have been present, an employee's exposure to beryllium is presumed. Id. § 7384n(a). To establish a diagnosis of CBD resulting from the employee's work-related beryllium exposure, certain statutory criteria must be met depending upon whether the claimed diagnosis was prior to or on and after January 1, 1993:

(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established [by abnormal lymphocyte proliferation test performed on either blood or lung lavage cells]) together with lung pathology consistent with [CBD], including-
(i) a lung biopsy showing granulomas or a lymphocytic process consistent with [CBD]
(ii) a computerized axial tomography scan showing changes consistent with [CBD]; or
(iii) pulmonary function or exercise testing showing pulmonary deficits consistent with [CBD].
(B) For diagnoses before January 1, 1993, the presence of-
(i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
(ii) any three of the following criteria:
(I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
(II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
(III) Lung pathology consistent with [CBD].
(IV) Clinical course consistent with a chronic respiratory disorder.
(V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

Id. § 7384l(13).

         Part E of the EEOICPA provides additional compensation to certain DOE contractor employees for permanent impairment and/or wage-loss due to a “covered” illness resulting from work-related exposure to toxic substances at a DOE facility. Id. § 7385s(2). When deciding Part E claims, DOL must find that a DOE contactor employee has a covered illness for purposes of Part E if it has already determined that the employee is entitled to compensation under Part B for the same illness. Id. § 7385s-4(a). Otherwise, the employee must establish the following:

(A) it is as least as likely as not that exposure to a toxic substance at a Department of Energy Facility was a significant factor in aggravating, contributing to, or causing the illness; and
(B) it was at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility.

Id. § 7385s-4(c)(1)(A)-(B).

         B. Factual Background

         Allen worked at the Paducah Gaseous Diffusion Plant (“PGDP”) from July 10, 1953, to May 21, 1992. (Administrative R. 741, DN 19-1 [hereinafter AR]). Allen alleges that she was exposed to hazardous substances during her time at the PGDP, which caused various illnesses. (Compl. ¶ 10, DN 1).

         Allen first sought compensation under EEOICPA Parts B and E in March 2005, alleging that she had developed chronic bronchitis and rheumatoid arthritis as a result of her employment at the PGDP. (AR 1077-84). In July 2005, the district office of DOL's Office of Workers' Compensation Programs (“OWCP”) recommended that Allen's Part B claim be denied because neither of her claimed illnesses were covered by 42 U.S.C. § 7384l(15). (AR 1066-67). In November 2005, the Final Adjudication Branch (“FAB”) within OWCP issued a final decision consistent with the district office's recommendation.[1] (AR 1053-54). Subsequently, in November 2006, the district office recommended that Allen's Part E claim also be denied because she had failed to submit medical evidence establishing that she was diagnosed with either rheumatoid arthritis or chronic bronchitis. (AR 1043-44). In January 2007, FAB issued a final decision consistent with the district office's recommendation. (AR 1035-36).

         Allen filed a new claim under Part E in March 2009 for hypothyroidism, sinusitis, chronic obstructive pulmonary disease (“COPD”) and osteoporosis. (AR 983). The next month, she added a Part E claim for “Parenchymal Mass. (Left Lower Lobe).” (AR 805). Additionally, and also in April 2009, Allen requested that her Part E claim for chronic bronchitis and rheumatoid arthritis, originally denied in January 2007, be reopened. (AR 802). That request was granted by order of a District Director of the Division of Energy Employees Occupational Illness Compensation and, as a result, FAB's January 2007 decision was vacated. (AR 744-45). The order stated that new medical evidence submitted by Allen established that she was diagnosed with rheumatoid arthritis and chronic bronchitis and that the district office would consider the medical evidence, “complete any necessary development[, ]” ...


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