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Stone v. U.S. Department of Labor

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

March 21, 2018

CHARLES STONE, PLAINTIFF
v.
U.S. DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION, OFFICE OF WORKERS COMPENSATION PROGRAMS, DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION, FINAL ADJUDICATION BRANCH, DEFENDANT

          MEMORANDUM OPINION

          THOMAS B. RUSSELL, SENIOR JUDGE.

         This matter is before the Court on the briefing of the parties, Plaintiff Charles Stone (“Stone”) and Defendant U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Division of Energy Employees Occupational Illness Compensation, Final Adjudication Branch (the “DOL”). In this action, Stone seeks this Court's judicial review of the DOL's decisions denying Stone's claim for benefits under Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. §§ 7384-7385s-15. The Court has reviewed the parties' briefing, the Administrative Record (“AR”), and the applicable law, and finds that the DOL's denial of Stone's claims should be set aside and this matter should be remanded to the DOL for a consideration of whether, based on various omitted medical records, Stone's claims for EEOICPA benefits may succeed.

         BACKGROUND

         A. Statutory and Regulatory Background

         The EEOICPA establishes a federal compensation program intended to provide monetary “benefits to individuals who have illnesses that were caused by exposure to radiation or beryllium in the course of their work for the Department of Energy (“DOE”).” Freeman v. United States Dep't of Labor, 653 F. App'x 405, 407 (6th Cir. 2016) (citing 42 U.S.C. § 7384). Employees eligible under Part B of the Act “can receive a lump-sum payment of $150, 000 (and coverage of medical expenses) for covered beryllium illnesses, specified cancers, and other specified illnesses, ” including Chronic Beryllium Disease (“CBD”), which Stone claims in this case. Id. (citing 42 U.S.C. § 7384n-s; § 7384l). “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.” Lahndorff v. U.S. Dep't of Labor, No. 5:15-CV-00022-GNS-LLK, 2017 WL 4445984, at *1 (W.D. Ky. Oct. 5, 2017) (citing 42 U.S.C. § 7385s(2)). “

         In order to establish entitlement to benefits under Part B for CBD, a claimant must first demonstrate that he is “a covered beryllium employee, ” meaning that the claimant may have been exposed to beryllium while employed at a covered facility. 20 C.F.R. § 30.205. “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 in the absence of substantial evidence to the contrary.” Freeman, 653 F. App'x at 407 (citing 42 U.S.C. § 7384n). If the claimant establishes that he is a covered beryllium employee under Part B, he must next show that he was diagnosed with CBD. 42 U.S.C. § 7384l(13). Timing becomes relevant here; “[t]hose who were allegedly diagnosed with CBD before January 1, 1993 must satisfy different criteria than those were allegedly diagnosed after that date.” Freeman, 653 F. App'x at 407. Here, the parties agree that the pre-1993 criteria apply to Stone's claim.

(B) For diagnoses before January 1, 1993, [a claimant must prove] 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 chronic beryllium disease.
(IV) Clinical course consistent with a chronic respiratory disorder.
(V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

42 U.S.C. § 7384l(13)(B).

         Under Part E of the EEOICPA, the “DOL must find that a DOE contactor employee has a covered illness . . . if it has already determined that the employee is entitled to compensation under Part B for the same illness, ” such as CBD. Lahndorff, 2017 WL 4445984, at *1 (citing 42 U.S.C. § 7385s-4(a)). If the employee does not bring a claim under Part B or the DOL does not find that the employee is entitled to benefits under Part B, the employee can still succeed on a Part E claim if he establishes that:

(A) it is at 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 is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility.

42 U.S.C.A. § 7385s-4(c)(1).

         B. Stone's Claim for Benefits Under the EEOICPA

         Stone was employed at the Paducah Gaseous Diffusion Plant, which is a covered DOE facility, from February 2, 1970 to March 31, 1992. [AR at 77, 329.] Stone filed his instant claim for Part B and Part E EEOICPA benefits on August 1, 2014, claiming that he developed CBD while employed at the Plant. [AR at 356.] Although the Final Adjudication Branch (FAB) initially denied Stone's claim on June 29, 2015 and denied Stone's request for reconsideration on October 21, 2015, the Division of Energy Employees Occupational Illness Compensation (“DEEOIC”) Director vacated those decisions on February 11, 2016 through a Director's Order. [Id.] The Director's Order

instructed the district office to prepare a statement of accepted facts that focused on the remaining issues that needed to be addressed in [Stone's] Part B claim, and to request a medical opinion from a new Contract Medical Consultant (CMC) that answered the question of whether [Stone's] medical records prior to 1993 established a clinical course consistent with a chronic respiratory disorder (Criterion IV).

[Id.] Because Criteria I and II were already established by the evidence in the file, the Director's Order did not instruct the CMC to analyze whether those Criteria were established. [Id.] On remand, the district office referred Stone's case to a CMC, Dr. Robert Hoffman, MD, for analysis of whether Stone met Criterion IV, a clinical course consistent with a chronic respiratory disorder. [See AR at 362.] In his Case File Review Report dated April 1, 2016, Dr. Hoffman stated that, “in [his] opinion, the medical records ...


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