United States District Court, W.D. Kentucky, Paducah Division
B. RUSSELL, SENIOR JUDGE.
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.
Statutory and Regulatory Background
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)). “
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
(IV) Clinical course consistent with a
chronic respiratory disorder.
(V) Immunologic tests showing beryllium
sensitivity (skin patch test or beryllium blood test
42 U.S.C. § 7384l(13)(B).
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).
Stone's Claim for Benefits Under the EEOICPA
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 ...