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

• Decision Date: 12 December 2012
• Docket Number: Case No. 2:09–cv–01892–GMN–RJJ.
• Citation: 928 F.Supp.2d 1236
• Parties: Charlen SMITH, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. District Court — District of Nevada

928 F.Supp.2d 1236

Charlen SMITH, Petitioner,

v.UNITED STATES DEPARTMENT OF LABOR, Respondent.

Case No. 2:09–cv–01892–GMN–RJJ.

United States District Court, D. Nevada.

Dec. 12, 2012.

Jake D. Kelsey, Evan D. Schwab, Barker Washburn, Scott R. Davis, Office of the Attorney General, Las Vegas, NV, for Petitioner.

Patrick A. Rose, Patrick A. Rose, U.S. Attorney's Office, Las Vegas, NV, for Respondent.

ORDER ACCEPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE JOHNSTON

GLORIA M. NAVARRO, District Judge.

Before the Court for consideration is the Amended Report and Recommendation (ECF No. 28) of the Honorable Robert J. Johnston, United States Magistrate Judge, entered October 26, 2012. No objections have been filed. The Court has conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1) and Local Rule IB 1–4, and determines that Magistrate Judge Johnston's Recommendation should be ACCEPTED.

IT IS THEREFORE ORDERED that Petitioner's Petition for Judicial Review (ECF No. 1) is denied. The Clerk is directed to enter judgment accordingly.

AMENDED REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

(Petition for Judicial Review (# 1))

ROBERT J. JOHNSTON, United States Magistrate Judge.

This matter came before the Court on Petitioner Charlen Smith's Motion for Judicial Review of Final Agency Decision (# 1). The Court has reviewed Petitioner's Opening Brief (# 17), Respondent's Response (# 18), and Petitioner's Reply (# 20), as well as the administrative record (# 10).

BACKGROUND

Petitioner Charlen Smith seeks judicial review of a final decision of the Department of Labor denying her claim for survivor benefits under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. §§ 7384–7385s–15. On April 27, 2005, Smith filed a claim as the surviving spouse of Floyd Smith, alleging that her husband's metastatic lung cancer and prostate cancer resulted from his work at the Nevada Test Site, a Department of Energy facility.

A. Administration of the Energy Employees Occupational Illness Compensation Program Act of 2000

The Energy Employees Occupational Illness Compensation Program Act of 2000 establishes a federal compensation program to “provide for timely, uniform, and adequate compensation of covered employeesand, where applicable, survivors of such employees, suffering from 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. Part B of the Act provides lump sum benefits up to $150,000, as well as related medical expenses, to workers who contracted certain diseases (e.g. cancer) as a result of exposure to radiation and other toxic substances while working for Department of Energy, its contractors, or subcontractors. 42 U.S.C. § 7384, 7384d. Part E of the Act provides compensation to covered employees based on the level of impairment and/or wage loss if they develop an occupational illness as a result of exposure to toxic substances at a Department of Energy facility. 42 U.S.C. § 7385s–2. Survivors of deceased workers may also be eligible to receive compensation. 42 U.S.C. § 7385s–1.

1. Claims under Part B

For claims of cancer caused by exposure to radiation during employment at a Department of Energy facility an individual must file a claim with the Department of Labor's Office of Workers' Compensation Programs. The individual may qualify for compensation under Part B of the Act by demonstrating that his or her cancer is “at least as likely as not” caused by exposure to hazardous materials while working on federal nuclear activities. An individual or survivor's claim with the Department of Labor's Office of Workers' Compensation Programs will be forwarded to the National Institute for Occupational Safety and Health for a reconstruction or estimation of the amount of radiation exposure during employment. See 20 C.F.R. §§ 30.100, 30.101, 30.115, 30.210. The dose reconstruction takes into account a number of factors, including duration of employment. Subject to any additional information provided by the claimant and revision of the report following the closing interview, the claimant is required to return a signed statement to National Institute for Occupational Safety and Health certifying that he or she has no further information to provide and that the record for dose reconstruction should be closed. 42 C.F.R. § 82.10(m).

Causation of the cancer is statutorily presumed if the claimant qualifies as a member of the Special Exposure Cohort as defined under the Act. 42 U.S.C. § 7384 l (14). The President may designate new classes of workers for addition to the Special Exposure Cohort with the assistance of the Advisory Board on Radiation and Worker Health. 42 U.S.C. §§ 7384 o, 7384q. If a claimant falls within the Special Exposure Cohort and has a specified cancer, a recommended decision awarding benefits will issue without requiring any further development of the claim. In 2006, a new class of workers was added to the Special Exposure Cohort. This class is comprised of Department of Energy employees, or Department of Energy contractor or subcontractor employees, who worked at the Nevada Test Site from January 27, 1951, through December 31, 1962 for at least 250 days. Petitioner Smith claims that her husband would fall into this category. In filing her initial claim, Smith indicated that her husband had been employed by Reynolds Electric and Engineering Company (REECo), a Department of Energy contractor, at the Nevada Test Site for an unspecified time period. (AR 581).

2. Claims under Part E

Under Part E of the Act, an employee of a Department of Energy facility including a worker employed by a Department of Energy contractor or subcontractor is eligible for compensation if he develops a “covered illness” as a result of work-relatedexposure to a toxic substance. 42 U.S.C. §§ 7385s–1, 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 Department of Energy contractor or subcontractor employee; (2) he contracted a covered illness; and (3) he contracted the covered illness through exposure to a toxic substance at a Department of Energy facility. 20 C.F.R. §§ 30.5, 30.110, 30.111. A claimant will be determined to have contracted a covered illness through exposure to a toxic substance at a Department of Energy 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).

The district Department of Labor's Office of Workers' Compensation Programs office is charged with making an initial determination whether the claimant is entitled to benefits. 20 C.F.R. § 30.300. The Department of Labor's Office of Workers' Compensation Programs then forwards its recommendation to the Final Adjudication Branch at which point the claimant is given an opportunity to file an objection to the Department of Labor's Office of Workers' Compensation Programs 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, 30.312. In either case, the Final Adjudication Branch will allow the claimant to submit additional evidence supporting his claim before issuing its final decision. 20 C.F.R. §§ 30.313, 30.314, 30.316. Claimants are given an additional opportunity to request reconsideration of the Final Adjudication Branch'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 Final Adjudication Branch determines on reconsideration that additional factual development is necessary, the Final Adjudication Branch may return the claim to the Department of Labor's Office of Workers' Compensation Programs district office for further evaluation. 20 C.F.R. §§ 30.317, 30.319.

B. Facts

On April 27, 2005, Smith filed a claim as the surviving spouse of Floyd Smith, alleging that her husband's metastatic lung cancer and prostate cancer resulted from his work at the Nevada Test Site, a Department of Energy facility. Petitioner Smith claims that her husband is a member of the Special Exposure Cohort, indicating on the employment history form submitted with her claim that Floyd Smith had been employed by REECo, a Department of Energy contractor, at the Nevada Test Site for an unspecified time period. (AR 581). Department of Labor's Office of Workers' Compensation Programs requested verification of Floyd Smith's employment from Department of Energy, which verified that he was employed at the Nevada Test Site by REECo from January 10, 1955 to March 14, 1955, and by Ute, a Department of Energy subcontractor, for one day on July 11, 1967. (AR 566–568). Petitioner Smith contacted Department of Labor's Office of Workers' Compensation Programs, stating that she disagreed with the verified employment history and that she had a friend “who knew for a fact” that Floyd Smith worked at Nevada Test Site from 1955 to 1959. (AR 534). Petitioner Smith later provided evidence from her friend, Myrtle Green, concerning Floyd Smith's employment history.¹

On September 12, 2007, Department of Labor's Office of Workers' Compensation Programs received National Institute for Occupational Safety and Health's...