United States District Court, W.D. Kentucky, Paducah Division
ROBERT F. LANIER; KATHY L. CHERRY; ROSE M. GOUGH; and PATRICIA L. RENFROW PLAINTIFFS
U.S. DEPARTMENT OF LABOR DEFENDANT
MEMORANDUM OPINION & ORDER
N. Stivers, Judge.
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.
Statutory and Regulatory Background
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),
Filing a Claim for Survivor Benefits
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”). 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],
(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 ...