Adams v. U.S. Dep't of Labor

• Decision Date: 18 December 2018
• Docket Number: Civil Action No.: 1:16-cv-03415-JMC
• Parties: Tempie L. ADAMS, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — District of South Carolina

360 F.Supp.3d 320

Tempie L. ADAMS, Plaintiff,

v.UNITED STATES DEPARTMENT OF LABOR, Defendant.

Civil Action No.: 1:16-cv-03415-JMC

United States District Court, D. South Carolina, Aiken Division.

Signed December 18, 2018

Darrell Thomas Johnson, Jr., Warren Johnson, Darrell T. Johnson Jr. LLC, Hardeeville, SC, for Plaintiff.

Barbara Murcier Bowens, US Attorneys Office, Columbia, SC, for Defendant.

ORDER AND OPINION

J. Michelle Childs, United States District Judge

Plaintiff Tempie L. Adams ("Adams") brings this action for review of the Department of Labor's ("DOL") denial of her claim for benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act of 2000 ("EEOICPA"), 42 U.S.C. §§ 7384 – 7385s-16, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706. (ECF Nos. 1, 26.) Because DOL's decisions are arbitrary and capricious under the EEOICPA and the APA, Adams' claim is REMANDED to DOL for further administrative proceedings consistent with this decision.

I. BACKGROUND

A. Statutory and Regulatory Background

The EEOICPA establishes a compensation program for "covered employees" and "survivors of such employees" for "illnesses incurred ... in the performance of duty for the Department of Energy and certain of its contractors and subcontractors." 42 U.S.C. § 7384d(b). Congress established the compensation program because "a large number of nuclear weapons workers at sites of the Department of Energy ... were put at risk without their knowledge and consent...." 42 U.S.C. § 7384(a)(2). Additionally, Congress found that "[s]tate workers' compensation programs do not provide a uniform means of ensuring adequate compensation" for employees at nuclear sites, and "[t]o ensure fairness and equity, ... the Department of Energy and its predecessor agencies should have efficient, uniform, and adequate compensation for beryllium-related health conditions and radiation-related health conditions." 42 U.S.C. §§ 7384(a)(7)–(8).

Substantively, under Part E of the EEOICPA, covered employees¹ may obtain monetary compensation for an impairment and/or wage loss due to a "covered illness contracted ... through exposure to a toxic substance at a Department of Energy facility." 42 U.S.C. §§ 7385s-2(a)(1)(A)(ii), (a)(2)(A)(i). As opposed to the Department of Energy ("DOE"), DOL is tasked with determining whether an individual possesses a covered illness under the EEOICPA. 42 U.S.C. § 7385s-4(c)(2). In some instances, an employee is considered to have a covered illness if he or she establishes: (1) "it is at least as likely as not that exposure to a toxic substance at a [DOE] facility was a significant factor in aggravating, contributing to, or causing the illness"; and (2) "it is at least as likely as not that the exposure to such toxic substance was related to employment at a [DOE] facility." 42 U.S.C. §§ 7385s-4(c)(1)(A)–(B). See also 20 C.F.R. § 30.900 (stating that, in order to receive benefits under Part E of the EEOICPA, an employee must show that they are a "covered employee" who has contracted a "covered illness through exposure to a toxic substance at a DOE facility" and possess an "impairment" that is the result of the covered illness). A claimant requesting benefits must show that he or she is entitled to those benefits by a preponderance of the evidence.² 20 C.F.R. § 30.111(a). DOL regulations require that the preponderance of the evidence standard be met for "each and every criterion necessary to establish eligibility" for compensation under Part E of the EEOICPA. Id.

Regarding the procedural administration of the EEOICPA, Congress explicitly authorized the President of the United States to "carry out the compensation program through one or more [f]ederal agencies or officials, as designated by the President." 42 U.S.C. § 7384d(a). In 2000, President William J. Clinton authorized DOL to adjudicate claims for benefits and administer the compensation program under the EEOICPA. Exec. Order. No. 13,179, 65 Fed. Reg. 77,487 (Dec. 7, 2000). In order for an individual to claim benefits, he or she must first file a claim in writing and submit it to DOL's Office of Workers' Compensation Programs ("OWCP"). 20 C.F.R. §§ 30.5(cc), 30.100(a). An individual submitting a claim is entitled to seek benefits "for only certain conditions that are potentially compensable" under the EEOICPA. 20 C.F.R § 30.100(b).

After submitting the necessary documents to develop a claim, the OWCP issues a recommended decision, including findings of fact and conclusions of law, as it relates to a claim. 20 C.F.R. §§ 30.300, 30.306. A claimant is permitted to file an objection with the Final Adjudication Branch ("FAB") regarding the OWCP's recommended decision. 20 C.F.R. § 30.306. In addition to objecting to the OWCP's recommended decision, a claimant may request a live hearing before the FAB. Id. The FAB is required to consider objections to a recommended decision and issue a final decision. 20 C.F.R. §§ 30.312, 30.316(b). Upon the date of issuance of a final decision, a claimant has thirty (30) days to request the FAB to reconsider its final decision. 20 C.F.R. § 30.319(a). If a timely request for reconsideration is made, the final decision from the FAB is no longer deemed "final." Id. A hearing is not available during the reconsideration process, but "[i]f the FAB grants the request for reconsideration, it will consider the written record of the claim again and issue a new final decision on the claim." 20 C.F.R. § 30.319(c). However, "[i]f the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered ‘final’ upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained." 20 C.F.R. § 30.319(c)(2). While a claimant is barred from pursuing a second reconsideration decision, he or she may file a written request for a claim to be reopened based on "new evidence of either covered employment or exposure to a toxic substance[ ]...." 20 C.F.R. § 30.320.

B. Factual Background

Adams was employed at the Savannah River Site ("SRS"), by contractors³ for DOE, from August 28, 1978, to May 9, 2005. (ECF No. 26 at 2; ECF No. 28 at 4 n.3.) During her time at SRS, Adams was an electrical and instrumentation mechanic ("E & I mechanic") for approximately three (3) months, a clerk/typist for approximately ten (10) years, and a financial analyst for approximately sixteen (16) years and five (5) months. (ECF No. 22-4 at 209–10.) During Adams' tenure as a financial analyst, she performed field audits as a precious metals auditor.⁴ (ECF No. 22-1 at 249; ECF No. 22-4 at 63, 112, 219.) Well before initiating this suit, Adams filed claims for breast cancer

and beryllium sensitivity with the OWCP.⁵ (ECF No. 22-5 at 41, 159, 351.) On April 4, 2006, DOL denied Adams' claim for breast cancer. (ECF No. 22-5 at 291.) Respectively, on November 20, 2013, and June 30, 2014, Adams' claims for beryllium sensitivity were approved, and she was awarded medical monitoring benefits and sixty thousand dollars ($ 60,000.00) under Part B and Part E of the EEOICPA. (Id. at 80, 233.) Along with the aforementioned claims, Adams also pursued a claim for chronic obstructive pulmonary disease ("COPD"),⁶ the claim at issue, on August 28, 2014.⁷ (Id. at 61.)

Also occurring on August 28, 2014, and in support of her claim for COPD, Adams provided DOL with a bronchochallenge report, pulmonary function test

("PFT"), and a medical report from Dr. R. Hal Hughes ("Dr. Hughes"). (Id. at 61–68.) Dr. Hughes' report, from May 6, 2014, diagnosed Adams with occupational COPD and specifically opined that Adams' "[o]ccupational exposures [to beryllium] ... at least likely as not contributed" to her occupational COPD.⁸ (Id. at 65.) On February 12, 2015, DOL "was not able to establish that beryllium exposure [had] a known link to COPD" and requested that Dr. Hughes provide a "detailed [and scientific] rationalization" for his conclusion that Adams' COPD was linked to beryllium exposure. (Id. at 53.) Dr. Hughes responded to DOL on February 19, 2015, with a handwritten note, stating: "In my group of [b]eryllium sensitive patients—41% have documented asthma compared to the general population of 6% asthma. My opinion is that the asthma is occupational due to beryllium exposures." (Id. ) Once again, on May 11, 2015, Dr. Hughes diagnosed Adams with "mild COPD" and concluded "[o]ccupational exposures ... at least as likely as not contributed to her COPD." (Id. at 14.) After receiving more submissions from Adams regarding her occupational history, subjective complaints, and work duties, DOL confirmed her various jobs at SRS, including the length of time she spent on each specific job. (Id. at 26–37, 48; ECF No. 22-4 at 209–12.)

Eventually, DOL engaged in several important administrative actions, all of which are relevant to this dispute. First, on March 18, 2015, DOL conducted a search on its Site Exposure Matrices ("the SEM") in order to determine the toxic substances present at SRS and the effect of those substances on specific workers.⁹ (ECF No. 22-4 at 112.) The SEM "contains information regarding scientifically established links between toxic substances and illnesses." EEOICP Site Exposure Matrices Website—Home Page DOE Facilities and RECA Sites Data , U.S. DEP'T OF LABOR , https://www.sem.dol.gov (last updated May 22, 2018). Quite importantly, while "DOL continually updates these relationships in [the] SEM as new disease associations are published in Haz-Map[,] [t]he causal links shown in [the] SEM do not represent an exclusive list of the pathways necessary for an affirmative Part E causation determination."¹⁰ Id. (emphasis added). DOL's initial search on the SEM found that Adams was potentially exposed to, among many others, the following toxins while working at SRS: ammonia, asbestos, cement, chlorine, coal dust, diesel exhaust, nitrogen dioxide, sulfur...