Hayward v. U.S. Dept. of Labor, 08-10024 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 536 F.3d 376
• Docket Number: No. 08-10024 Summary Calendar.,08-10024 Summary Calendar.
• Parties: Margaret A. HAYWARD, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT of LABOR, Secretary of Labor, Defendant-Appellee.
• Decision Date: 16 July 2008

536 F.3d 376 Margaret A. HAYWARD, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT of LABOR, Secretary of Labor, Defendant-Appellee. No. 08-10024 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 16, 2008.

[536 F.3d 377]

Daniel J. Smith, Smith & Smith, Fort Worth, TX, for Hayward.

Tami C. Parker, Dallas, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DAVIS and HAYNES, Circuit Judges.

PER CURIAM:

Margaret Hayward appeals the decision of the district court affirming the Department of Labor's (DOL) decision to deny survivor benefits for the death of her husband. The Energy Occupational Illness Compensation Program Act, 42 U.S.C. § 7384 et seq. (the Act), provides, among other things, for the lump-sum payment to survivors of persons who contracted cancer as a result of exposure to radiation during employment in the United States nuclear weapons program. Survivors may receive benefits under the Act "only if" there is a 50% or greater probability that the decedent contracted cancer from exposure to radiation during employment in a covered facility. Id. at §§ 7384l(9)(B), 7384n(b). To make this determination, the DOL is required to use interactive software that estimates the probability of causation for various types of cancer using certain "default settings." 42 C.F.R. §§ 81.20, 81.21. The sole issue in this appeal is whether the DOL acted arbitrarily and capriciously in refusing to adjust these default settings in light of the decedent's exceedingly rare form of prostate cancer. Under the deferential standard of review required, because the DOL set forth a rational connection between the relevant factors and its decision to retain the default settings, the district court did not err in granting summary judgment upholding the DOL's decision. As a result, we affirm.

I. STATUTORY SCHEME

Congress enacted The Energy Occupational Illness Compensation Program Act to provide benefits to employees with illnesses caused by exposure to radiation and other toxic substances in the course of their work for the Department of Energy (DOE) or its predecessor agencies, and certain of its contractors and subcontractors. See 42 U.S.C. § 7384. Under Part B of the Act, employees or their eligible survivors can receive a lump-sum payment of $150,000 for certain illnesses, including cancer, caused by exposure to radiation in the course of employment at Department of Energy facilities. Id. at §§ 7384l(9)(A) and (B), 7384s(a)(1). An employee or his or her survivors are entitled to compensation under Part B of the Act "if, and only if, the cancer ... was at least as likely as not related to employment" in a covered facility. Id. at § 7384n(b).

An individual seeks benefits under Part B of the Act by filing a claim with the DOL's Office of Workers' Compensation Programs (OWCP).¹ See 20 C.F.R.

536 F.3d 378

§§ 30.100, 30.101. When a claim is made, the OWCP gathers the employee's relevant factual and medical information and transfers it to the National Institute for Occupational Safety and Health (NIOSH)² to perform a radiation dose reconstruction. The dose reconstruction estimates the amount of radiation received by the employee during covered employment using a variety of factors including the employee's age, gender, employment history, workplace characterization data, and any other information useful for characterizing workplace radiation exposure. 42 C.F.R. § 82.14. The OWCP uses the completed dose reconstruction to determine whether the employee's cancer is "at least as likely as not related to employment" in a covered facility. See 42 U.S.C. § 7384n(b).

The OWCP bases its probability calculation on an interactive-computer-software program specifically designed for adjudication of claims under Part B of the Act, the NIOSH-IREP. 42 C.F.R. § 81.20. The NIOSH-IREP "models the dose-response relationship between ionizing radiation and 33 cancers using morbidity data from the ... Japanese atomic bomb survivor cohort." Id. at § 81.10(a). The program uses these models coupled with NIOSH's dose reconstruction to calculate the probability that the employee developed cancer due to radiation exposure during employment in a covered facility. The program's default settings account for uncertainty from several sources, including statistical uncertainty in the various cancer risk models. Id. at § 81.11. The program, however, contains a feature entitled "User Defined Additional Uncertainty" that "can be adjusted to account for the presence of additional uncertainty and bias correction not presently" accounted for by the program's default settings. The program's manual states that the default settings should only be adjusted "after sufficient justification accompanied by a written rationale."

After OWCP finishes its probability of causation calculation, it issues a recommended decision on the claim. 20 C.F.R. § 30.305(a). The claimant can file objections within 60 days of the date of the recommended decision. Id. at § 30.310(a). Once adjudication of the claim is complete, the Final Adjudication Branch within the OWCP issues the DOL's final decision.

II. FACTUAL AND PROCEDURAL BACKGROUND

Margaret Hayward is the surviving widow of Milton Hayward. Mr. Hayward worked in the DOE's nuclear weapons program for over fifteen years, during which time he was exposed to ionizing radiation. On February 3, 1997, doctors diagnosed Mr. Hayward with sarcomatoid carcinoma, an exceedingly rare form of prostate cancer.³ The cancer spread rapidly and he died shortly thereafter.

Ms. Hayward filed a claim for compensation under Part B of the Act based on her husband's death. As required by the Act, the OWCP gathered Mr. Hayward's relevant factual and medical information

536 F.3d 379

and transferred the claim to NIOSH to perform a radiation dose reconstruction. OWCP then used the dose reconstruction and the NIOSH-IREP program to calculate a 21.41% probability that Mr. Hayward developed cancer from radiation exposure during his employment with the DOE. Based on this figure, the OWCP issued a recommended decision denying Ms. Hayward's claim.

Ms. Hayward objected to the OWCP's recommended decision and requested a hearing. Although she lodged several objections, she primarily contended that the OWCP significantly underestimated the probability that radiation caused Mr. Hayward's cancer due to its failure to consider the rarity of sarcomatoid carcinoma and its alleged higher correlation with radiation exposure (as compared to other forms of prostate cancer). At the hearing, Ms. Hayward provided medical literature regarding cancer patients treated with radiation therapy and a letter from Mr. Hayward's doctor to support these claims. Ms. Hayward contended that this evidence justified adjusting the default settings of the "User Defined Uncertainty Distribution" within the NIOSH-IREP program.

Following the hearing, the DOL hearing representative sought guidance from a DOL physicist concerning the propriety of adjusting the default settings of the NIOSH-IREP program based on Ms. Hayward's objections. Nearly a month later, and after consulting with a representative of the developer of the program, the DOL physicist concluded that Ms. Hayward's objections did not justify altering the program's default settings. Thereafter, the OWCP's Final Adjudication Branch issued a final decision denying Ms. Hayward's survivor claim.

Ms. Hayward filed an original complaint in the Northern District of Texas, alleging that the DOL acted arbitrarily and capriciously in refusing to adjust the default settings of the NIOSH-IREP program to account for the rarity of Mr. Hayward's cancer. Subsequently, the Director of the Division of Energy Employees Occupational Illness Compensation Program, acting under his regulatory authority, vacated the OWCP's final decision and...