Hetter v. Perez, Civ. No. 15-00489 SCY/KBM
| Decision Date | 23 August 2016 |
| Docket Number | Civ. No. 15-00489 SCY/KBM |
| Parties | DONALD HETTER Petitioner, v. THOMAS PEREZ, in his official capacity as the Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR, Respondents. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Petitioner Donald Hetter's Petition to Modify or Set Aside Final Decision and Final Agency Action. ECF No. 13. Plaintiff contends that the Department of Labor's (DOL) decision to deny him wage-loss benefits was arbitrary and capricious and must therefore be reversed. ECF No. 13 at 1. As explained below, because the Court concludes that the DOL's decision was not arbitrary and capricious, the Court DENIES Plaintiff's petition.
Because the parties are familiar with the facts and procedural history, the Court will briefly summarize the background of this case and reserve discussion of the pertinent facts for its analysis. Petitioner's claims arise under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), 42 U.S.C. §§ 7384 et seq. The EEOICPA is a federal compensation statute for covered employees or their eligible survivors of the Department of Energy, its predecessor agencies, and certain contractors, subcontractors, and vendors. 42 U.S.C. §§ 7384-7384d. The EEOICPA, in part, compensates covered employees for illnesses caused by exposure to radiation and other toxic substances at covered facilities as well as provides benefits to certain former uranium mine workers who have been found eligible for benefits by the Department of Justice under Section 5 of the Radiation Exposure Compensation Act (RECA). Id.; 42 U.S.C. § 7384u. Broadly stated, under Part B of the EEOICPA, an individual who received benefits under the RECA is also entitled to a lump sum payment of $50,000 under the EEOICPA. 42 U.S.C. § 7384u. Further, a determination that an individual is entitled to benefits under Part B of the EEOICPA is deemed to be a determination under Part E that the individual contracted a covered illness due to work-related exposure to a toxic substance at a covered facility. 42 U.S.C. 7385s-4(a). Despite this, a claimant seeking wage-loss benefits under Part E still has the burden to establish that "he or she meets the statutory criteria for those benefits[.]" Lott v. Dep't. of Labor, No. 12-00228, 2014 WL 5169078, *3 (D. Nev. Sept. 26, 2014) (unpublished).
In July 2007, Petitioner, a former uranium mine worker, sought benefits under both Part B and Part E the EEOICPA. AR 1406-12; 1420. In October 2007, the Final Adjudication Branch (FAB) of the DOL's Office of Workers' Compensation Programs (OWCP) issued a final decision accepting Plaintiff's claim under Part B and Part E for the accepted conditions of pulmonary fibrosis, fibrosis of the lung, silicosis, and pneumoconiosis. AR 1366-71. Pursuant to the decision, Petitioner was awarded $50,000 under Part B. AR 1370. Under Part E, Petitioner's whole body impairment was rated to be 38% and he was awarded $95,000. AR 1267-72. In December 2012, Petitioner filed an additional claim under Part E due to chronic obstructive pulmonary disease (COPD) and asthma. AR 835-42. In June 2013, the FAB issued a final decision awarding Petitioner medical benefits under Part E for those conditions. AR 770-76. Petitioner's whole body impairment was increased by 18% and he was awarded additional impairment compensation of $45,000. AR 321-26.
Relevant to the issues before the Court, Petitioner subsequently sought wage-loss benefits under Part E in November 2013. AR 651-52. Petitioner initially withdrew this application but re-filed in April 2014. AR 531, 539. Petitioner claimed wage-loss beginning "on or about 2005" through January 2013. AR 527, 531. In August 2014, the OWCP issued a recommended decision to deny Petitioner's wage-loss claim. AR 349-59. Petitioner filed objections to the OWCP's recommended decision and requested a hearing. AR 338-39. The FAB held a hearing in November 2014. AR 234-81. Following the hearing, Petitioner submitted further medical evidence to support his wage-loss claim. In February 2015, the FAB concluded that Petitioner failed to submit sufficient probative evidence to establish that Petitioner suffered wage-loss due to his accepted conditions. AR 179. The DOL accordingly issued a final decision denying Petitioner's wage-loss claim under Part E. AR 170-79. Petitioner requested reconsideration of the FAB's final decision which was subsequently denied. AR 1-4. Petitioner presently seeks review under 42 U.S.C. § 7385s-6(a) which grants a person adversely affected or aggrieved by a final decision of the DOL to review of that order in district court.
The standard of review for actions seeking review of final decisions under Part E is codified at 42 U.S.C. § 7385s-6(a). This provision provides the court with the power to "affirm, modify, or set aside, in whole or in part" the DOL's decision "only if the court determines that such decision was arbitrary or capricious." Id. Due to the similarity between the standard of review within Part E and the "arbitrary and capricious" standard set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), courts have looked to case law interpreting theAPA's arbitrary and capricious standard of review in actions challenging Part E denials. Stephens v. U.S. Dep't of Labor, 571 F.Supp.2d 186, 191 (D.D.C. 2008).
In reviewing agency actions under this standard, courts consider several factors, including whether the agency: (1) relied on factors not intended to be considered; (2) failed to consider an important aspect of the problem; (3) explained its decision in a manner that contradicts the evidence; or (4) reached a conclusion so implausible that it cannot be explained by a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Accordingly, the court's review, while "searching and careful," is narrow. Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1030 (10th Cir. 2001) (internal quotation marks and citation omitted).
Petitioner raises three challenges to the DOL's final decision denying him wage-loss benefits. Petitioner first argues that the DOL's decision was contrary to the evidence. ECF No. 13 at 13, 19. Second, Petitioner argues that the DOL's decision was arbitrary and capricious because the DOL relied on improper factors in denying his claim for wage-loss benefits. ECF No. 13 at 17. Third, Petitioner argues that the decision was arbitrary and capricious because the DOL failed to request an opinion from a medical consultant on whether a causal relationship existed between Petitioner's covered illnesses and his wage-loss. ECF No. 13 at 18. The Court will address these contentions in turn.
Petitioner contends that the evidence before the DOL established that he experienced wage-loss due to his accepted covered conditions during the timeframe alleged. ECF No. 13 at 13, 19. Petitioner objects to findings by the DOL that although he claimed wage-loss beginningin 2005, he continued to work until 2007. Petitioner further objects to findings by the DOL regarding the reasons Petitioner was unable to work, specifically the DOL's determination that Petitioner failed to provide sufficient medical evidence that his covered conditions prevented him from working. ECF No 13 at 21.
An individual seeking wage-loss benefits under Part E of the EEOICPA must show (1) that he experienced an actual loss of wages beginning in an identifiable month; and (2) that the actual loss of wages was caused by his covered illness. 42 U.S.C. § 7385s-2(a)(2)(A)(i); Lott, 2014 WL 5169078, *5 (D. Colo. Sept. 26, 2014) (unpublished). The burden of establishing this "rests squarely with the claimant." Trego v. U.S. Dep't. of Labor, 681 F.Supp.2d 894, 898 (E.D. 2009). Thus, the petitioner "is required to show the period of wage-loss at issue is causally related to the covered illness by a preponderance of the evidence." Barrie v. U.S. Dep't. of Labor, 597 F.Supp.2d 1235, 1242 (D. Colo. 2009).
The OWCP has promulgated regulations regarding the evidence applicable to determining whether an individual experienced compensable wage-loss under Part E of the EEOICPA. 20 C.F.R. § 30.805. The regulation states that the "OWCP...requires the submission of rationalized medical evidence of sufficient probative value to establish that the period of wage-loss at issue is causally related to the covered Part E employee's covered illness." Id. The Federal EEOICPA Procedure Manual further discusses evidence relevant to this determination. These types of evidence include narrative reports from physicians, return to work slips signed by a physician, a physician's office notes, and a contract medical consultant's opinion. Procedure Manual Chapter 2-1400.9(a)-(d). Importantly, "a physician's narrative report is to contain an explanation about the causal relationship between the covered illness and the period(s) of wage-loss and reference medical evidence that is contemporaneous to the claimed period(s) of wageloss." Id. The manual explains that "a report that is speculative in nature, or is not well-rationalized is not considered to be of sufficient probative value." Id. Further, in regard to physician's notes, the Procedure Manual states that they "are to indicate that the employee had stopped working, reduced his work hours or missed work due to the covered illnesses." Id.
Turning to the DOL's final decision in this case, the DOL found that Petitioner was a covered uranium mine worker whose claim for benefits under Part E was accepted based on the covered illnesses of pulmonary fibrosis, fibrosis of the lung, silicosis, pneumoconiosis, COPD, and asthma. AR 178. The DOL further found that Petitioner claimed wage-loss benefits beginning in 2005, but...
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