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Lanier v. U.S. Department of Labor

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

November 1, 2017

ROBERT F. LANIER; KATHY L. CHERRY; ROSE M. GOUGH; and PATRICIA L. RENFROW PLAINTIFFS
v.
U.S. DEPARTMENT OF LABOR DEFENDANT

          MEMORANDUM OPINION & ORDER

          Greg N. Stivers, Judge.

         Robert F. Lanier (“Lanier”), Kathy L. Cherry, Rose M. Gough, and Patricia L. Renfrow (collectively, “Plaintiffs”), bring this action for review of the Department of Labor's (“DOL”) denial of their claims for benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000 (the “EEOICPA”), 42 U.S.C. §§ 7384-7385s-16. For the reasons set forth below, Plaintiffs' claim is DENIED.

         I. BACKGROUND

         A. Statutory and Regulatory Background

         The EEOICPA provides benefits to covered employees who die or suffer from illnesses as a result of exposure to toxic substances in the course of their work for the Department of Energy (“DOE”) and its predecessor agencies. Under Part B of the Act, a “covered beryllium employee” or her eligible survivor is entitled to a lump sum payment of $150, 000 if she develops a covered beryllium illness. 42 U.S.C. §§ 7384s(a)(1), 7384l(7), 7384l(15). In addition, Part B provides that an employee's eligible survivors include her surviving spouse, and, if there is no surviving spouse, her children. Id. §§ 7384s(e)(1)(A)-(B), 7385s-3(d)(2)(A).

         A. Filing a Claim for Survivor Benefits

         To achieve survivor benefits under Part B of the Act, a claimant must file a claim with DOL's Office of Workers' Compensation Programs (“OWCP”) demonstrating that she is an eligible survivor of a “covered beryllium employee”-i.e., an employee exposed to beryllium while employed at a DOE facility-and that the employee died of “chronic beryllium disease” (“CBD”).[1] Id. §§ 7384s(a)(1), 7384l(8); 20 C.F.R. §§ 30.100, -.101. To establish a diagnosis of CBD from an 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 ...

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