David Hous. v. U.S. Dep't of Labor

318 F. Supp. 3d 1028
CourtDistrict Court, W.D. Kentucky
DecidedMarch 26, 2018
DocketCIVIL ACTION NO. 5:16-CV-00113-GNS-LLK
StatusPublished
Cited by1 cases

This text of 318 F. Supp. 3d 1028 (David Hous. v. U.S. Dep't of Labor) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Hous. v. U.S. Dep't of Labor, 318 F. Supp. 3d 1028 (W.D. Ky. 2018).

Opinion

Greg N. Stivers, Judge

Plaintiff David Houston ("Houston") brings this action for review of the Department of Labor's ("DOL") denial of his claims under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (the "EEOICPA" or the "Act"), 42 U.S.C. §§ 7384 - 7385s-16. For the reasons stated below, Plaintiff's claim is DENIED .

I. BACKGROUND

A. Statutory and Regulatory Background

The EEOICPA provides compensation to individuals who suffer from illnesses as a result of exposure to toxic substances during the course of their work for the Department of Energy ("DOE") and its predecessor agencies. 42 U.S.C. § 7384. Part B of the Act entitles covered employees who develop occupational illnesses to a lump sum payment of $150,000.00. Id. §§ 7384s(a)(1), 7384l(7), (15). Part E of the EEOICPA provides additional benefits to certain DOE contractor employees for permanent impairment due to a covered illness. Id. § 7385s(2).

1. Filing a Claim for Benefits

To obtain benefits under Part B of the Act, a claimant must file a claim with the Office of Workers' Compensation Programs ("OWCP") demonstrating that he developed an illness due to his exposure to toxic substances while employed at a DOE facility. Id. §§ 7384l(7), 7384l(15), 7384s(a). Only three types of illnesses are compensable under Part B: (1) certain beryllium illness, such as chronic beryllium disease ("CBD"); (2) certain cancers ; (3) and chronic silicosis. Id. §§ 7384s(a)(1), 7384l(7), 7384l(8), 7384l(15); 20 C.F.R. §§ 30.100, - .101.

Sarcoidosis is not compensable under Part B. Federal (EEOICPA) Procedure Manual, Chapter 2-1000.10 (Sept. 2015).1

*1031Nonetheless, the Division of Energy Employees Occupational Illness Compensation ("DEEOIC") has "recognize[d] that a diagnosis of pulmonary sarcoidosis... could represent a misdiagnosis for CBD," which is compensable. Id. The DEEOIC's procedure manual therefore requires claim examiners to evaluate Part B claims for sarcoidosis as claims for CBD if the claimant has "a documented history of beryllium exposure."2 Federal (EEOICPA) Procedure Manual, Chapter 2-1000.10 (Sept. 2015). As a result, a claimant with a history of beryllium exposure who brings a sarcoidosis claim under Part B must meet the statutory criteria necessary to establish a claim for CBD. Id. Those criteria are:

(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).

42 U.S.C § 7384l(13).

Under Part E of the Act, a DOE contractor employee can obtain additional benefits due to permanent impairment and/or wage loss due to a covered illness resulting from work-related exposure to toxic substances at a DOE facility. 42 U.S.C. § 7385s-1. Part E defines the term "covered illness" as any "illness ... resulting from exposure to a toxic substance." Id. § 7385s. Both sarcoidosis and CBD are therefore compensable under Part E. Federal (EEOICPA) Procedure Manual, Chapter 2-1000.10 (Sept. 2015). In keeping with its recognition that a diagnosis of sarcoidosis can constitute a misdiagnosis for CBD, however, the DEEOIC directs claims examiners evaluating claims for sarcoidosis under Part E to consider whether the claimant has CBD if the claimant's medical records show that he has tested positive on a beryllium lymphocyte proliferation test ("BeLPT") or beryllium lymphocytes transformation test ("BeLTT"). Id. A claimant's medical records must show both a positive BeLPT or BeLTT and a diagnosis of CBD for the claim to be *1032treated as one for Part E CBD. Id. at 2-1000.9.

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Bluebook (online)
318 F. Supp. 3d 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-hous-v-us-dept-of-labor-kywd-2018.