United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION & ORDER
N. Stivers, United States District Judge.
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.
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,
(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],
(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
(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
(V) Immunologic tests showing beryllium sensitivity (skin
patch test or beryllium blood test preferred).
Id. § 7384l(13).
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
(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).
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).
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. (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).
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[, ]” ...