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Stewart v. U.S. Department of Labor

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

March 27, 2018

WILLIAM STEWART, JR.; MARK STEWART; KATHRYN RUSSELL; and CAROLYN BURNETT PLAINTIFFS
v.
U.S. DEPARTMENT OF LABOR DEFENDANT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, JUDGE UNITED STATES DISTRICT COURT

         William Stewart, Jr., Mark Stewart, Kathryn Russell, and Carolyn Burnett (collectively, “Plaintiffs”) bring this action for judicial review of the Department of Labor's (“DOL”) denial of their claims for benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (“EEOICPA”), 42 U.S.C. §§ 7384-7385s-16. For the reasons set forth below, Plaintiffs' claims are 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 employee” or his eligible survivor is entitled to a lump sum payment of $150, 000.00 if he develops an occupational illness. 42 U.S.C. § 7384s(a)(1); Id. 7384l(7), (15). Part E of the EEOICPA provides additional compensation to certain DOE contractor employees or their eligible survivors for permanent impairment and/or wage-loss due to a covered illness. Id. § 7385s(2). Under both Parts, an employee's eligible survivors include his surviving spouse, and, if there is no surviving spouse, his children. Id. §§ 7384s(e)(1)(A)-(B), 7385s-3(d)(2)(A).

         1. Filing a Claim for Survivor Benefits

         In order to achieve survivor benefits under Parts B or E of the Act, a claimant must file a claim with the DOL's Office of Workers' Compensation Programs (“OWCP”) demonstrating that he is an eligible survivor of an individual who died as a result of an occupational illness- such as “chronic beryllium disease” (“CBD”) or cancer-that the individual developed due to exposure to beryllium or radiation while employed or present at a DOE facility. Id. §§ 7384s(a)(1), 7384l(7), 7384l(8), 7384l(9), 7384l(15); 20 C.F.R. §§ 30.100, -.101. To establish a claim for CBD under Part B, the claimant must satisfy certain statutory criteria:

(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 ...

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