Allen v. U.S. Department of Labor, Employment Standards Administration, Office of Workers Compensation Programs, Division of Energy Employees Occupational Illness Compensation, Final Adjudication Branch
Filing
39
MEMORANDUM OPINION & ORDER by Judge Greg N. Stivers on 8/31/2017: Plaintiff Dolores Allen (Allen) brings this action for review of the Department of Labors (DOL) denial of her claims for benefits under Parts B and E of the Energy Employees Occupatio nal Illness Compensation Program Act of 2000 (the EEOICPA), 42 U.S.C. §§ 7384-7385s-16. Because the only decision for which review is available is neither arbitrary nor capricious, Allens claim is DENIED. Dismissing Case. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-163-GNS-LLK
DOLORES ALLEN
PLAINTIFF
v.
U.S. DEPARTMENT OF LABOR
DEFENDANT
MEMORANDUM OPINION & ORDER
Plaintiff Dolores Allen (“Allen”) brings this action for review of the Department of
Labor’s (“DOL”) denial of her claims for benefits under Parts B and E of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (the “EEOICPA”), 42 U.S.C. §§ 73847385s-16. Because the only decision for which review is available is neither arbitrary nor
capricious, Allen’s claim is DENIED.
I.
A.
BACKGROUND
Statutory Background
The EEOICPA provides benefits to covered employees with illnesses caused by exposure
to toxic substances in the course of their work for the Department of Energy (“DOE”) and its
predecessor agencies, as well as certain of its vendors, contractors, and subcontractors. An
employee seeking compensation under Part B of the EEOICPA for chronic beryllium disease
(“CBD”) must first provide proof she qualifies as a “covered beryllium employee,” i.e., that she
was potentially exposed to beryllium while working at a covered DOE facility. 42 U.S.C. §
7384l(1), (7). 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. Id. § 7384n(a). To establish a diagnosis of CBD resulting from the
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 blood test preferred).
Id. § 7384l(13).
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. Id. § 7385s(2). When deciding Part
E claims, DOL must find that a DOE contactor employee has a covered illness for purposes of
Part E if it has already determined that the employee is entitled to compensation under Part B for
the same illness. Id. § 7385s-4(a). Otherwise, the employee must establish the following:
2
(A) it is as 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 was at least as likely as not that the exposure to such toxic substance was
related to employment at a Department of Energy facility.
Id. § 7385s-4(c)(1)(A)-(B).
B.
Factual Background
Allen worked at the Paducah Gaseous Diffusion Plant (“PGDP”) from July 10, 1953, to
May 21, 1992. (Administrative R. 741, DN 19-1 [hereinafter AR]). Allen alleges that she was
exposed to hazardous substances during her time at the PGDP, which caused various illnesses.
(Compl. ¶ 10, DN 1).
Allen first sought compensation under EEOICPA Parts B and E in March 2005, alleging
that she had developed chronic bronchitis and rheumatoid arthritis as a result of her employment
at the PGDP. (AR 1077-84). In July 2005, the district office of DOL’s Office of Workers’
Compensation Programs (“OWCP”) recommended that Allen’s Part B claim be denied because
neither of her claimed illnesses were covered by 42 U.S.C. § 7384l(15). (AR 1066-67). In
November 2005, the Final Adjudication Branch (“FAB”) within OWCP issued a final decision
consistent with the district office’s recommendation.1
(AR 1053-54).
Subsequently, in
November 2006, the district office recommended that Allen’s Part E claim also be denied
because she had failed to submit medical evidence establishing that she was diagnosed with
either rheumatoid arthritis or chronic bronchitis. (AR 1043-44). In January 2007, FAB issued a
final decision consistent with the district office’s recommendation. (AR 1035-36).
Allen filed a new claim under Part E in March 2009 for hypothyroidism, sinusitis,
chronic obstructive pulmonary disease (“COPD”) and osteoporosis. (AR 983). The next month,
1
Allen has not sought review of this decision. (See Compl. ¶ 1).
3
she added a Part E claim for “Parenchymal Mass (Left Lower Lobe).” (AR 805). Additionally,
and also in April 2009, Allen requested that her Part E claim for chronic bronchitis and
rheumatoid arthritis, originally denied in January 2007, be reopened. (AR 802). That request
was granted by order of a District Director of the Division of Energy Employees Occupational
Illness Compensation and, as a result, FAB’s January 2007 decision was vacated. (AR 744-45).
The order stated that new medical evidence submitted by Allen established that she was
diagnosed with rheumatoid arthritis and chronic bronchitis and that the district office would
consider the medical evidence, “complete any necessary development[,]” and issue a new
recommended decision. (AR 745). At this point, Allen had three Part E claims pending, which,
collectively, were for chronic bronchitis, rheumatoid arthritis, hypothyroidism, sinusitis, COPD,
osteoporosis, and parenchymal mass.
As part of the district office’s development of Allen’s pending Part E claims, it sent her
file to a medical consultant. The consultant was asked to opine whether it was at least as like as
not that exposure to toxic substances at the PGDP was a significant factor in causing,
aggravating, or contributing to Allen’s claims. (AR 587). Ultimately, after considering the toxic
substances Allen could have been exposed to while at the PGDP in light of the record medical
evidence, he concluded that there was insufficient evidence to support a conclusion that any of
her claimed illnesses resulted from exposure to toxic substances at the PGDP. (AR 584-87). In
so concluding, the consultant stated:
The medical records do not demonstrate that Ms. Allen has COPD or chronic
bronchitis. Her pulmonary function tests are normal. He[r] sinus condition is due
to allergy (allergic rhinitis/sinusitis) and not exposure to toxic substances at a
DOE facility. The cause of her rheumatoid arthritis and hypothyroidism are not
known and are not likely caused by toxic substances. The cause of rheumatoid
arthritis, an autoimmune disorder, is not known. The cause of hypothyroidism is
frequently not known. Osteoporosis was caused by Ms. Allen’s medical
conditions, or risk factors, that are not related to exposure substances. The
4
parenchymal mass was a lung abscess that resolved. The abscess was due to an
infection and not exposure to toxic substances at a DOE facility.
(AR 587).
In August 2009, the district office recommended that Allen’s Part E claims be denied
because the evidence of record was insufficient to establish that it was as least as likely as not
that exposure to toxic substances at the PGDP was a significant factor in causing, contributing to,
or aggravating Allen’s chronic bronchitis, rheumatoid arthritis, hypothyroidism, sinusitis, COPD,
osteoporosis, and parenchymal mass. (AR 502-05). However, after the district office rendered
its recommended decision, Allen filed an additional Part E claim for brain aneurysm. (AR 498).
In April 2010, FAB issued a final decision consistent with the district office’s recommendation
that Allen’s Part E claims for chronic bronchitis, rheumatoid arthritis, hypothyroidism, sinusitis,
COPD, osteoporosis, and parenchymal mass be denied.2
(AR 415-18). Allen requested
reconsideration of FAB’s decision, which request was denied. (AR 394-96). Subsequently, a
Unit Chief for Policies, Regulations, and Procedures within OWCP’s Division of Energy
Employees Occupational Illness Compensation vacated FAB’s final decision and returned
Allen’s file to the district office with instructions to issue a new recommended decision after
considering additional evidence submitted by Allen. (AR 367-70).
While Allen’s Part E claims for chronic bronchitis, rheumatoid arthritis, hypothyroidism,
sinusitis, COPD, osteoporosis, parenchymal mass, and brain aneurysm were pending at the
district office, Allen filed new claims under Parts B and E for CBD. (AR 302). In the course of
processing Allen’s claims, the district office sent two letters to Allen describing the pre- and
post-1993 statutory criteria for establishing a diagnosis of CBD and informing her that additional
Of course, Allen’s intermittent Part E claim for brain aneurysm was not addressed in this
decision. (See AR 415-18).
2
5
evidence was needed.
(AR 246-49, 294-98).
The district office summarized the medical
evidence Allen had submitted as follows:
A re-hire chest x-ray examination dated January 14, 1976 that showed a
few parenchymal and hilar calcification without evidence of active lung
disease.
A chest x-ray examination dated November 8, 1976 that showed a few
parenchymal and hilar calcification without evidence of active lung
disease.
A chest x-ray ray report dated October 3, 1984 that reveals “very slight
fibrosis in the right lunch base . . . which is old and does not appear
significant.” The final impression indicated a “normal chest.”
A CT-Scan of the chest for new ill-defined infiltrate in the left lower chest
dated May 7, 1993. The report references an examination that revealed a
nectrotic irregular peripheral infiltrate in the anterior segment of the left
lower lobe measuring 4 ½ x 2 ½ cm adjacent to the chest wall. The final
impression of the CT scan indicates ill-defined 4 x 3cm. parenchymal
mass in the anterior segment of the left lower lobe – consistent with
carcinoma versus necrotic pulmonary infarction versus organizing
pneumonia or abscess. Ms. Allen was directed to consult a pulmonologist
if her [hemoptysis] did not improve.
(AR 246-47). In summary, it explained, “[t]o date, there is medical evidence that establishes Ms.
Allen meet[s] one (1) of the three (3) required criteria of Pre-1993 CBD. The evidence of record
indicates that [Ms. Allen] has a clinical course report consistent with chronic respiratory disease
disorder ‘only.’” (AR 249).
On December 30, 2011, the district office recommended that Allen’s Part B claim for
CBD, as well as her Part E claims for chronic bronchitis, rheumatoid arthritis, hypothyroidism,
sinusitis, COPD, osteoporosis, parenchymal mass, brain aneurysm, and CBD be denied. (AR
194-98). Allen objected to the recommended decision and requested a hearing, which hearing
was held in March 2012. (AR 186, 121-174).
Following the hearing, on July 30, 2012, FAB issued a final decision consistent with the
district office’s recommendation. (AR 87-93). As to Allen’s Part B claim for CBD, FAB noted
that Allen had submitted the following medical evidence:
6
A May 7, 1993 CT scan indicating an impression of an ill defined
parenchymal mass in the anterior segment of the left low lobe, consistent
with carcinoma versus necrotic pulmonary infarction versus [organizing]
pneumonia or abscess.
A June 18, 2007 x-ray report, signed by Danny Hatfields, [M.D.],
documenting an impression of mild COPD and mild left basila
[atelectasis].
A March 25, 1997 report, signed by Jesse Wallace, M.D. indicating a final
impression of chronic sinusitis, chronic bronchitis, rheumatoid arthritis,
osteoporosis and chronic steroid therapy.
A hospital discharge summary report, signed by Theodore E. Davies,
M.D., documenting a hospital stay from July 25, 2001 through August 9,
2001, and documenting diagnoses of subarachnoid hemorrhage secondary
to ruptured anterior communication artery aneurysm.
A July 16, 2008 x-ray report, signed William Adams, M.D, documenting
an impression of overexpansion compatible with COPD and probable
basilar fibrotic change.
An August 1, 2008 beryllium lymphocyte proliferation test (LPT), signed
by Lisa Maier, M.D., documenting a normal lymphocyte transformation to
beryllium sulfate.
A September 16, 2008 screening examination from the Former Workers
Health Protection Program, signed by Charles R. Fikar, M.D., referencing
a chest x-ray showing no acute lung disease; a B-reading interpretation
showing no evidence of dust related abnormality; a normal spirometry
breathing test and normal urinalysis test.
A March 25, 2009 radiology report, signed by Joseph O’Bryan, M.D.,
indicating an impression of mild left perhiliar interstitial changes interstitial fibrosis favored.
(AR 87-88). After reviewing this evidence, FAB concluded that there was insufficient evidence
to establish that Allen was diagnosed with CBD as defined by Part B of the EEOICPA and
denied her claim. (AR 92-93). FAB also denied Allen’s Part E claims, determining that there
was insufficient evidence in the record to establish that her exposure to a toxic substance at the
PGDP was at least as likely as not a significant factor in aggravating, contributing to or causing
her claimed illnesses. (AR 93).
Allen asked FAB to reconsider its July 2012 decision, arguing that the district office and
FAB had ignored evidence that established three of the five statutory criteria for establishing a
pre-January 1, 1993 diagnosis of CBD and prior FAB decisions that had granted EEOICPA
7
benefits for CBD. (AR 81-82). On November 5, 2012, FAB denied Allen’s request because she
had failed to present any new evidence or argument in support of her claims under Parts B or E.
(AR 52-56). FAB rejected Allen’s argument that it had ignored evidence establishing three of
the five pre-1993 CBD criteria, and reaffirmed its earlier conclusion that she met only Criterion
IV (a clinical course consistent with a chronic respiratory disorder). (AR 54-55). It explained
that Allen’s x-ray reports from Union Carbide Corporation from 1976 through 1989 were
received and reviewed, and that the last of those x-rays was recorded as normal in June 1989.
(AR 52). It noted as follows with regard to the balance of the medical evidence Allen had
submitted:
Your x-ray results are conflicting and the B reader did not find any evidence of
dust related abnormalities [or] acute lung disease in September of 2008. While
subsequent x-rays show abnormal findings, there is no evidence to link these
findings to CBD. Even if the x-rays were considered to meet the second of five
criteria for a pre[-]1993 diagnosis of CBD, there is insufficient evidence to show
restrictive or obstructive lung physiology testing or diffuse lung capacity defect.
The pulmonary function test results in your case show that you have normal
pulmonary function. There is no evidence of diffuse lung capacity defect, which is
defined as the ability of gas to cross the alveolar-capillary membrane in the lung.
There is no medical evidence to show that blood gasses or pulmonary function is
impacted to meet this requirement. . .Your representative argues that [an] x-ray
taken on June 18, 2007, with a finding of mild left basila atolectasis meets this
criteria. But this finding has not been repeated on any subsequent x-rays and is
not indicative of a diffusion capacity defect.
(AR 54). Additionally, FAB recognized that Allen’s representative cited “prior decisions issued
by the FAB granting benefits for CBD” in support of Allen’s claim but explained that those
“cases include[d] abnormal pulmonary function test results, which” were absent in Allen’s case.
(AR 54).
In December 2012, Allen requested that her Part B and E claims be reopened. (AR 3234). But, on June 4, 2013, the District Director denied the request because the arguments made
and materials cited by Allen in support of her request to reopen did “not constitute the evidence
8
necessary to support a reopening [her] claim as stipulated in the regulations.” (AR 25-26). Allen
made a second reopening request in April 2014, arguing that her claim should be reopened
“based on exposure to a toxic substance(s) beryllium oxide, beryllium sulfate, and welding
fumes listed in the Paducah Gaseous Diffusion Plant (PGDP) Site Exposure Matrices
(SEM) . . . .” (AR 13-14). The District Director denied Allen’s second request on June 24,
2014, because “[t]here was no new medical or employment evidence submitted with the request
to reopen . . . .” (AR 3-5). The District Director explained that Allen’s claim was denied for
lack of medical evidence necessary to establish a diagnosis of CBD, not because Allen had no
exposure to beryllium at the PGDP; in fact, based on her employment at PGDP, the potential for
beryllium exposure was presumed. (AR 4).
This lawsuit followed on August 20, 2014. Allen challenges DOL’s July 30, 2012,
decision, which became final on November 5, 2012, denying her claim under Part B for CBD
and her claim under Part E for chronic bronchitis, rheumatoid arthritis, hypothyroidism, sinusitis,
COPD, osteoporosis, parenchymal mass, brain aneurysm, and CBD. Allen also challenges
DOL’s June 24, 2014, denial of her request to reopen her Part B and E claims. (Compl. ¶ 1).
II.
JURISDICTION
The Court has jurisdiction under 28 U.S.C. § 1331 because a federal question under the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706, is presented.
III.
A.
DISCUSSION
Part B Claim
1.
Standard of Review
Because the EEOICPA is silent on the procedures used in adjudicating claims for
compensation, this Court and others have employed the APA’s “arbitrary or capricious” standard
9
when reviewing DOL’s final decisions denying claims for compensation under Part B. Freeman
v. Dep’t of Labor, No. 5:14-CV-114-GNS-LLK, 2015 WL 5020697, at *2 (W.D. Ky. Aug. 24,
2015), aff’d, 653 F. App’x 405 (6th Cir. 2016); Yatsko v. U.S. Dep’t of Labor, 439 F. App’x 122,
124 (3d Cir. 2011); Hayward v. U.S. Dep’t of Labor, 536 F.3d 376, 379-80 (5th Cir. 2008). In
undertaking such a review, the Court “must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of judgment.” Ky.
Waterways All. v. Johnson, 540 F.3d 466, 473 (6th Cir. 2008) (internal quotation marks omitted)
(quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).
Arbitrary-and-capricious review is deferential, however. Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 658 (2007). Those contesting an agency’s decision must “show
that the action had no rational basis or that it involved a clear and prejudicial violation of
applicable statutes or regulations.” McDonald Welding v. Webb, 829 F.2d 593, 595 (6th Cir.
1987) (citations omitted). “If there is any evidence to support the agency’s decision, the decision
is not arbitrary or capricious.” Kroger Co. v Reg’l Airport Auth. of Louisville & Jefferson Cty.,
286 F.3d 382, 389 (6th Cir. 2002) (citation omitted). Moreover, “[w]hen it is possible to offer a
reasoned explanation, based on the evidence, for a particular outcome, that outcome is not
arbitrary or capricious.” Perry v. United Food & Commercial Workers Dist. Unions 405 & 442,
64 F.3d 238, 242 (6th Cir. 1995) (internal quotation marks omitted) (citation omitted).
2.
DOL’s Decision was neither Arbitrary nor Capricious
Review of FAB’s final decision denying Allen’s claim under Part B shows that it
considered the factors relevant to determining whether Allen established a claim for CBD under
Part B and evidences no clear error in violation of the EEOICPA or its implementing regulations.
It is undisputed that the results of a beryllium lymphocyte proliferation test submitted by Allen
10
were normal. Therefore, Section 7384l(13)(A) is inapplicable and FAB rightly applied Section
7384l(13)(B). As to Section 7384l(13)(B)(i), FAB determined that Allen worked at the PGDP, a
facility where the potential for beryllium exposure existed, and presumed beryllium exposure.
(AR 4). However, based on a totality of the medical evidence, FAB found that the medical
evidence submitted by Allen established only one of the statutory criteria listed in Section
7384l(13)(B)(ii)(I)-(V):
a clinical course consistent with chronic respiratory disorder, or
Criterion IV.
Allen argues that the medical evidence—some of which she alleges DOL failed to
consider—shows that Criterion I and II are also met and that FAB acted arbitrarily and
capriciously in concluding otherwise. As to Criterion I, FAB determined that Allen’s chest xrays did not show abnormalities consistent with CBD. In her reply, Allen contends that DOL
failed to review or acknowledge the following evidence when evaluating her Part B claim:
A Pre 1993 X-Ray Report from November 8, 1976 from Union Carbide
Corporation medical records documenting that Allen was diagnosed with
“parenchymal and hilar calcifications” in 1976. This X-Ray Report is clear
evidence that Allen’s medical records include Criteria I diagnosis. (R.
Allen 0309, X-Ray Report from Union Carbide Corporation medical
records). In the History section of DOL’s responsive brief, DOL does not
make any reference to this medical record as Allen’s record file is absent
of any review of this medical evidence that establishes her diagnosis in
1976 of Criteria I diagnosis.
A Pre 1993 X-Ray Report from October 3, 1984 diagnosing Allen with
“slight fibrosis in the right lung base. (R. Allen 0309, X-Ray Report from
Union Carbide Corporation medical records). Once again, in the History
section of DOL’s responsive brief and in the decisions made by the
government, DOL does not make any reference to this medical record as
Allen’s record file is absent of any review of this medical evidence that
establishes her diagnosis in 1984 of Criteria I diagnosis.
On October 7, 1993, as confirmed in an enhanced C- T Scan, Allen was
diagnosed with “ILL-DEFINED 4 X 3 CM. PARENCHYMAL MASS IN
THE ANTERIOR SEGMENT OF THE LEFT LOWER LOBE —
CONSISTENT
WITH
CARCINOMA
VERSUS
NECROTIC
PULMONARY INFRACTION VERSUS INFRACTION VERSUS
ORGANIZING PNEUMONIA OR ABSCESS.” Once again, in the
11
History section of DOL’s responsive brief and in the decisions made by
the government, DOL does not make any reference to this medical record
as Allen’s record file is absent of any review of this medical evidence that
establishes her diagnosis in 1993 of Criteria I diagnosis.
(Pl.’s Reply 12-14, DN 37). DOL, however, reviewed all of this evidence and concluded on
multiple occasions that it was insufficient to establish a CBD diagnosis under Section
7384l(13)(b).
For starters, while Allen represents that the CT scan revealing ill-defined
parenchymal mass occurred on October 7, 1993, the record itself is dated May 7, 1993. (AR
804). In the letters the district office sent to Allen after she filed her Part B claim for CBD, the
district office listed all of the medical records Allen cites in her reply, explained that they were
sufficient to establish only Criterion IV, and informed Allen that she needed to submit additional
medical evidence.
(AR 294-98).
The district office cited the May 1993 CT scan in its
recommended decision, (AR 194), and FAB cited it in its final decision.
(AR 87-88).
Additionally, in its denial of Allen’s request for reconsideration, FAB explained that Allen’s
Union Carbide x-ray reports from 1976 through 1989 were reviewed and that the last of such xrays was normal.
Furthermore, FAB found that “even if the x-rays were considered to meet [Criterion I],”
the record evidence was insufficient to show that Criterion II was met. (AR 54). FAB explained
that Allen’s pulmonary function tests results showed that she had normal pulmonary function,
and that there was no evidence of a diffuse lung capacity defect. Allen points to her June 18,
2007, x-ray report listing a finding of atelectasis, but FAB considered this report and rejected it
because “that finding was not repeated on any subsequent x-rays and was not indicative of a
diffusion capacity defect.” (AR 54).
Scott is essentially asking the Court to reinterpret the medical evidence that FAB
previously considered and render its own judgment based on that evidence. The Court cannot do
12
so. Freeman v. Dep’t of Labor, 653 F. App’x 405, 410 (6th Cir. 2016) (citations omitted); see
also McAlister v. Liberty Life Assurance Co. of Boston, 647 F. App’x 539, 548-49 (6th Cir.
2016) (“[W]e are not medical specialists and that judgment is not ours to make.” (internal
quotation marks and citation omitted)); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (noting that under arbitrary and capricious review, “a
court is not to substitute its judgment for that of the agency.”).
Allen also argues that DOL cannot use contract medical consultants when the medical
records of the employee establish three of the five criteria for a pre-January 1, 1993, diagnosis of
CBD. Regardless of whether that is true or not, DOL did not ask a contract medical consultant to
review Allen’s medical records relating to her CBD claim and opine whether those records
established the applicable statutory criteria. Instead, a medical consultant was asked—before
Allen even filed her Part B CBD claim—to render an opinion as to whether it was at least as like
as not that exposure to toxic substances at the PGDP was a significant factor in causing,
aggravating, or contributing to Allen’s Part E claims. Therefore, this argument is without merit.
Overall, DOL’s decision denying Allen’s Part B claim is supported by medical evidence
(or the lack thereof) and thus is neither arbitrary nor capricious. Kroger Co., 286 F.3d at 389
(6th Cir. 2002) (citation omitted). See also Freeman, 653 F. App’x at 411; Watson v. Solis, 693
F.3d 620, 626 (6th Cir. 2012) (where the claimant fails to provide evidence that is required under
the Act, the DOL does not act arbitrarily or capriciously). There was no “clear error judgment.”
Ky. Waterways All., 540 F.3d at 473 (quoting Marsh, 490 U.S. at 378). Indeed, it appears the
agency gave Allen every opportunity to succeed on her claim—it twice reopened final decisions
to consider additional evidence. Allen was simply unable to provide evidence showing that three
of the five criteria listed in listed in 42 U.S.C. § 7384l(13)(B)(ii)(I)-(V) were met.
13
B.
Part E Claims
The EEOICPA provides for judicial review of DOL’s final decisions denying claims for
benefits under Part E as follows:
A person adversely affected by a final decision of the Secretary under [Part E]
may review that order in the United States district court. . .by filing in such court
within 60 days after the date on which that final decision was issued a written
petition praying that such decision be modified or set aside. . . . Upon such filing,
the court shall have jurisdiction over the proceeding and shall have the power to
affirm, modify, or set aside, in whole or in part, such decision . . . .
42 U.S.C. § 7385s-6(a) (emphasis added).
The Court has previously ruled that compliance with the 60-day filing deadline under
Section 7385s-6(a) is a jurisdictional prerequisite for judicial review of final decisions denying
claims under Part E. Lanier v. Dept. of Labor, No. 5:14-CV-168-GNS, 2015 WL 1638495, at
*2-3 (W.D. Ky. June 8, 2015); Featherston v. Dep’t of Labor, No. 5:14-CV-00132-GNS-LLK,
2016 WL 4746211, at *4 (W.D. Ky. Sept. 12, 2016). Generally, a decision is final on the date it
is issued by FAB. 20 C.F.R. § 30.316(d). However, a claimant dissatisfied with the disposition
of her claim may ask FAB to reconsider its decision. Id. § 30.319(a). If her request for
reconsideration is denied, the FAB decision that formed the basis of the request will be
considered “final” on the date the request is denied. Id. § 30.319(c)(2).
FAB denied Allen’s Part E claim on July 30, 2012. That decision became final on
November 5, 2012, when it denied Allen’s request for reconsideration. Because Allen did not
seek judicial review until August 20, 2014, the Court lacks jurisdiction to review the portion of
FAB’s decision denying her Part E claim.
C.
Request to Reopen
Requests to reopen EEOICPA claims are reviewable under certain circumstances.
Recently, in Berry v. Department of Labor, 832 F.3d 627 (6th Cir. 2016), the Sixth Circuit held
14
that requests to reopen EEOICPA Part B claims based on new evidence, as opposed to those
based on material error in the original decision, are subject to judicial review under the APA. Id.
at 636. Here, Allen asks the Court to review DOL’s June 2014 denial of her April 2014 request
to reopen her Part B and E claims.3 Judicial review of Allen’s request to reopen her Part B claim
clearly depends on whether Berry is satisfied. And, assuming requests to reopen Part E claims
are subject to judicial review, such requests would also be subject to the requirements of Berry.
See Featherston, 2016 WL 4746211, at *5.
Allen requested that her Part B and E claims be reopened “based on exposure to the
following toxic substances: beryllium oxide, beryllium sulfate, and welding fumes, as identified
in the PGDP SEM that links the claimant’s covered illness of chronic beryllium disease . . . .”
(AR 14). However, based on her employment at the PGDP, DOL presumed that Allen was
potentially exposed to beryllium for purposes of her Part B and E claims. (AR 4). As a result,
Allen’s exposure to beryllium was not a factor in the denial of Allen’s claims and is not new
evidence.4 See Featherston, 2016 WL 4746211, at *5. Instead, Allen’s Part B and E claims
Allen has not challenged DOL’s June 2013 denial of her December 2012 request to reopen.
(See Compl. ¶ 1).
4
To the extent Allen argues that the SEM somehow represents new evidence as to her Part E
claim for CBD, she is incorrect. In the absence of a final decision under Part B approving CBD,
a positive beryllium lymphocyte proliferation test and a rationalized medical report including an
explicit diagnosis of CBD from a qualified physician is required to establish CBD under Part E.
See, e.g., Chapter 2-1000.9b, Federal (EEOICPA) Procedural Manual (Oct. 2009),
https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/
unifiedpm/Unifiedpm_transmittals/Transmittal_10-05.pdf;
Chapter 2-1000.9b, Federal (EEOICPA) Procedural Manual (July 2011),
https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/
unifiedpm/Unifiedpm_transmittals/Transmittal_11-04.pdf;
Chapter 2-1000.9b, Federal (EEOICPA) Procedural Manual (April 2013),
https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/
unifiedpm/Unifiedpm_transmittals/Transmittal_13-04.pdf;
Chapter 2-1000.9b, Federal (EEOICPA) Procedural Manual (September 2015),
3
15
were denied because she failed to submit sufficient medical evidence. Allen submitted no new
medical or employment evidence in support of her request to reopen those claims. Therefore, the
Court concludes that Allen’s request was based on a purported material error in DOL’s decision.
Under Berry, such reopening requests are not reviewable.
IV.
CONCLUSION
First, as to her Part B claim, Allen failed to establish the statutory criteria for a diagnosis
of CBD. FAB’s decision so concluding was logical and based on record evidence; it was neither
arbitrary nor capricious. Second, the Court lacks jurisdiction to review the denial of Allen’s Part
E claims. Last, the denial of Allen’s request to reopen her claims is unreviewable under Berry v.
Department of Labor.
Greg N. Stivers, Judge
United States District Court
August 30, 2017
cc:
counsel of record
https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/proceduremanualhtml/
unifiedpm/Unifiedpm_transmittals/Transmittal_15-08.pdf.
16
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