Barrie v. U.S. Dept. of Labor, Case No. 07-cv-01751-LTB.

• Decision Date: 29 January 2009
• Docket Number: Case No. 07-cv-01751-LTB.
• Citation: 597 F.Supp.2d 1235
• Parties: George W. BARRIE, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Employment Standards Administration, Office of Workers Compensation Programs, Division of Energy Employees Occupational Illness Compensation, and Final Adjudication Branch, Defendants.
• Court: U.S. District Court — District of Colorado

597 F.Supp.2d 1235

George W. BARRIE, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Employment Standards Administration, Office of Workers Compensation Programs, Division of Energy Employees Occupational Illness Compensation, and Final Adjudication Branch, Defendants.

Civil Case No. 07-cv-01751-LTB.

United States District Court, D. Colorado.

January 29, 2009.

COPYRIGHT MATERIAL OMITTED

George W. Barrie, Craig, CO, pro se.

Terry Fox, U.S. Attorney's Office, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Plaintiff, George W. Barrie, seeks reversal of a decision of the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor ("DOL") dated May 2, 2007. Jurisdiction is proper under 42 U.S.C. § 7385s-6 and 28 U.S.C. § 1331. Oral argument would not materially assist the determination of this appeal. After consideration of the papers and the administrative record, and for the reasons stated below, I AFFIRM in part, REVERSE in part, and REMAND the May 2, 2007, decision to OWCP for further proceedings consistent with this Order.

I. BACKGROUND

Plaintiff is a former contract employee of the Department of Energy ("DOE") who worked as a journeyman machinist at the Rocky Flats Plant in Golden, Colorado, from 1982 to 1989. Plaintiff claims numerous illnesses as a result of exposure to toxic compounds and radiation during his employment.

In August 2001, Plaintiff filed a claim under the Energy Employees Occupational Illness Compensation Program Act ("EEOICPA" or "the Act"). DOE referred Plaintiff's claim to a physician panel for review. The physician panel determined none of Plaintiff's illnesses were related to exposure to toxic substances during his employment at Rocky Flats. [Administrative Record "AR" 1727-29].

Plaintiff requested administrative review of the panel's determination. [AR 1265]. The review panel—comprised of the same three physicians as the initial panel—determined one of Plaintiff's illnesses, chronic atrophic gastritis, was related to his exposure to toxic substances, but Plaintiff's other maladies were not. [AR 1277, 1272-1300]. On January 12, 2006, OWCP issued a Final Decision awarding Plaintiff medical benefits for chronic atrophic gastritis, and remanding Plaintiff's claims for medical benefits as to the other illnesses for additional factual development. [AR 1003-06]. OWCP also remanded Plaintiff's claim for wage loss for additional factual development. [AR 1003].

Following further review, including review of additional records submitted by Plaintiff, DOL's regional office recommended all Plaintiff's claims for wage loss, and all claims for medical benefits other than those awarded for chronic atrophic gastritis, be denied. [AR 617-32]. Plaintiff requested an informal hearing that was conducted on September 26, 2006. [AR 295-339]. During and following the hearing, Plaintiff submitted additional evidence to support his contentions. Plaintiff chose Dr. Mayer of National Jewish Hospital to evaluate Plaintiff's permanent impairment due to his chronic atrophic gastritis, which she determined to be thirteen percent. [AR 248-54]. Incorporating Dr. Mayer's findings, OWCP recommended Plaintiff be awarded $32,5000—offset by $17,402.40 already paid under Colorado Workers' Compensation—for a total EEOICPA award of $15,097.60. [AR 203].

Plaintiff's objections to OWCP's findings regarding his other illnesses were referred to a toxicologist, Dr. Stokes. Dr. Stokes opined "with reasonably scientific certainty" that exposure to toxic substances at Rocky Flats was not "at least as likely as not" a significant factor in aggravating contributing to, or causing Plaintiff's illnesses. [AR 192]. Dr. Stokes referred Plaintiff's case to a Dr. Brooks, who also opined Plaintiff's illnesses were not related to exposure to toxic substances at Rocky Flats. [AR 180].

On May 2, 2007, OWCP issued a Final Decision awarding Plaintiff $15,097.60 for his chronic atrophic gastritis impairment. [AR 65]. OWCP denied all Plaintiff's claims for wage-loss benefits, and also denied medical benefits for the other claimed illnesses. [AR 68]. Plaintiff filed a request for reconsideration of the May 2, 2007, decision, which was denied on June 20, 2007, on grounds that Plaintiff failed to present "any new argument or evidence that directly contradicts the conclusions reached in the final decision." [AR 33]. Plaintiff then filed his appeal with this Court.

II. CLAIMS PROCEDURE UNDER EEOICPA

Under the EEOICPA, DOE employees are entitled to compensation for "illnesses incurred by such employees in the performance of duty for the Department of Energy and certain of its contractors and subcontractors." 42 U.S.C. § 7384d. Plaintiff initially filed claims under both Part B and Part D—which was subsequently repealed by Congress and replaced with Part E—of the EEOICPA. Plaintiff did not appeal DOL's denial of his Part B claims, so only his Part E claims are addressed here.

Under Part E, an employee of a DOE facility—including a worker employed by a DOE contractor or subcontractor—is eligible for compensation if he develops a "covered illness" as a result of work-related exposure to a toxic substance. 42 U.S.C. §§ 7385s-1 and 7385s-2. The Act defines the term "covered illness" to mean "an illness or death resulting from exposure to a toxic substance." 42 U.S.C. § 7385s(2). A "toxic substance" is "any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature." 20 C.F.R. § 30.5(ii).

A claimant must show by a preponderance of the evidence that: (1) he was a DOE contractor employee; (2) he contracted a covered illness; and (3) he contracted the covered illness through exposure to a toxic substance at a DOE facility. 20 C.F.R. §§ 30.5, 30.110, and 30.111. A claimant will be determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility if: "(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." See 42 U.S.C. § 7385s-4(c)(1). Where—as here—a claimant also seeks benefits for lost wages resulting from being unable to work due to a covered illness, the claimant bears the additional burden of submitting "rationalized medical evidence of sufficient probative value to establish that the period of wage-loss at issue is causally related to the ... employee's covered illness." See 42 U.S.C. § 7385s-2(a)(2); 20 C.F.R. § 30.805(b).

The district OWCP office is charged with making an initial determination whether the claimant is entitled to benefits. 20 C.F.R. § 30.300. OWCP then forwards its recommendation to the Final Adjudication Branch ("FAB"), at which point the claimant is given an opportunity to file an objection to the OWCP recommendation. 20 C.F.R. § 30.300. If a claimant objects, he may request a hearing or may request review of the recommendation on the written record. 20 C.F.R. §§ 30.310 and 30.312. In either case, the FAB will allow the claimant to submit additional evidence supporting his claim before issuing its final decision. 20 C.F.R. §§ 30.313, 30.314, and 30.316.

Claimants are given an additional opportunity to request reconsideration of the FAB's final decision. 20 C.F.R. § 30.319. Claimants must make the request in writing within thirty days of the date of decision, and are not entitled to a hearing. 20 C.F.R. § 30.319. If the FAB determines on reconsideration that additional factual development is necessary, the FAB may return the claim to the OWCP district office. 20 C.F.R. §§ 30.317 and 30.319.

III. STANDARD OF REVIEW

The EEOICPA limits the scope of judicial review, allowing courts to set aside a final agency decision only if it is found to be arbitrary and capricious. 42 U.S.C. § 7385s-6(a). An agency's action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The party challenging the agency action bears the heavy burden of proving that it was arbitrary and capricious. See Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008).

Although review under the "arbitrary and capricious" standard is narrow, I am required to engage in a substantial inquiry and "a probing in-depth review" to ensure the agency's action is supported by specific facts. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Lamb v. Thompson, 265 F.3d 1038, 1046 (10th Cir.2001); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1576 (10th Cir.1994). Such review is limited to the administrative record before the agency at the time the agency decision was made and considers only the grounds for decision invoked by the agency. See Sandoval v. Aetna Life and Cas. Ins. Co., 967 F.2d 377, 381 (10th Cir.1992).

Agency actions are presumed to be valid. See Motor Vehicle Mfrs. Ass'n, supra, 463 U.S. at 43, 103 S.Ct. 2856. Accordingly, I will uphold the agency's action so long as the agency considered the relevant factors, and articulated a rational connection between the facts found and the choices made. See id. I will affirm the agency's decision if it is based upon substantial evidence, that is, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."...