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Russell v. United States Department of Labor

United States District Court, E.D. Tennessee, Knoxville

May 2, 2018

DAVID A. RUSSELL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.

          MEMORANDUM OPINION

          Debra C. Poplin United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 27].

         Now before the Court is Plaintiff's Motion for Judgment [Doc. 34]. Defendant responded [Doc. 36] in opposition to the Motion, and Plaintiff has filed a Reply [Doc. 37]. The Motion is now ripe for adjudication.

         Plaintiff David A. Russell brought this action against the United States Department of Labor (“DOL”), alleging that its decision to deny him benefits under Part E of the Energy Employees Occupational Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. § 7385s-1, is arbitrary and capricious, an abuse of discretion, and otherwise inconsistent with the law. Plaintiff requests that the Court reverse Defendant's decision to deny him benefits, or in the alternative, to remand the claim for further consideration. Accordingly, for the reasons set forth below, the Court finds Plaintiff's Motion [Doc. 34] not well taken, and it is DENIED.

         I. BACKGROUND

         The facts relevant to Plaintiff's Motion for Judgment are as follows.

         A. The History of Plaintiff's Claim

         On February 1, 2011, Plaintiff filed a claim for benefits under Part E of the EEOICPA for his chronic obstructive pulmonary disease (“COPD”). [Administrative Record (“AR”), Vol. II at 996-97]. On May 9, 2013, the District Office recommended that Plaintiff's claim be denied because the evidence was insufficient to establish that it was “at least as likely as not” that exposure to a toxic substance at the Oak Ridge facilities was a significant factor in aggravating, contributing, or causing Plaintiff's COPD. [Id. at 639].[1] Plaintiff objected to the recommendation, and a hearing was held on July 30, 2013, before the Final Adjudication Branch (“FAB”). [Id. at 634-53]. On October 11, 2013, FAB issued an order remanding Plaintiff's claim to the District Office. [Id. at 600-05]. FAB explained that the District Office did not explain why a report from Plaintiff's treating physician, Marty Wallace, M.D., (“Dr. Wallace”) was given no probative value. [Id. at 604-05].

         On February 4, 2014, the District Office again recommended that Plaintiff's claim be denied, listing five specific reasons as to why it gave more probative value to the two Contract Medical Consultants' opinions as opposed to Dr. Wallace. [AR, Vol. I at 577-80]. The District Office also noted that Plaintiff had been a patient of East Tennessee Pulmonary Associates since at least October 2009. [Id. at 579]. The District Office explained that R. Hal Hughes, M.D., (“Dr. Hughes”) with East Tennessee Pulmonary Associates did not indicate that Plaintiff's COPD was caused by occupational exposures until May 31, 2013, and that Dr. Hughes's May 31 diagnosis did not demonstrate knowledge of the frequency or level of Plaintiff's exposure to asbestos. [Id.].

         Plaintiff objected to the recommendation, and a hearing was held on May 22, 2014. [Id. at 523-31, 571]. In a decision dated July 30, 2014, FAB ordered that the case be remanded to the District Office. [Id. at 512-15]. FAB explained as follows:

In instances when the evidence on file is not clear in reference to an employee's occupation, the work processes engaged in, and/or the amount of occupational exposure, a referral to an industrial hygienist is necessary. The Jacksonville district office did not request clarification from an industrial hygienist regarding the nature, extent, and duration of your exposure to toxic substances in the course of your covered DOE subcontractor employment. Instead, the district office provided the CMC [Contract Medical Consultant] with unverified and perhaps erroneous information regarding the nature, extent, and duration of your exposure to toxic substances in the course of your employment. There are no industrial hygiene records in your DOE employment records, and there is no information in your records regarding the nature, duration, or extent of your exposure to toxic substances.

[Id. at 514].

         In a decision dated March 18, 2015, however, the Director of the Division of Energy Employees Occupational Illness Compensation (“Director”), through her discretionary authority, vacated FAB's decision. [Id. at 488-96]. The Director found that Plaintiff's covered employment was twenty-seven (27) months and that the doctors' opinions in this case were based on an overestimate of the covered employment. [Id. at 490, 494]. Specifically, the Director noted, “Both Dr. Hughes and Dr. Wallace based their opinions on the premise that [Plaintiff] worked as a carpenter for DOE for 16 years[, ] and the CMC/DMCs based their opinions on the district office['s] finding that you had 5 years and 8 months of covered employment.” [Id. at 494]. In addition, the Director explained that FAB neglected to note that the District Office specifically stated that the case was not appropriate for an industrial hygienist's review. [Id.]. The Director instructed FAB to issue a new and final decision concerning Plaintiff's claim of COPD under Part E of the EEOICPA. [Id. at 495].

         On March 25, 2015, FAB issued a Notice of Final Decision, denying Plaintiff's claim. [Id. at 478]. FAB explained that there was “insufficient evidence to establish that exposure to a toxic substance was at least as likely as not a significant factor in aggravating, contributing to, or causing [Plaintiff's] COPD.” [Id. at 482]. Plaintiff filed a Request for Reconsideration, but it was denied on May 28, 2015. [Id. at 457-59, 470].

         On October 27, 2015, the Director vacated the March 25 and May 28 FAB orders. [Id. at 443-47]. The Director explained as follows:

As set out above, both the development and adjudication of Mr. Russell's claim for COPD under Part E of EEOICPA has been convoluted for several reasons, such as the recently discovered intermittent nature of his employment as a carpenter for a DOE subcontractor, and the effect this revelation has had on the evidentiary value of the earlier development actions taken by DEEOIC. While I am properly concerned with the amount of time and resources both Mr. Russell and DEEOIC have already expended to reach this point, I have given this matter considerable thought and I am persuaded that the March 25, 2015 denial of Mr. Russell's claim and the May 28, 2015 denial of his request for reconsideration should be vacated.
My most important reason for taking this action is my concern that once DEEOIC has reliably verified that Mr. Russell had worked intermittently as a carpenter in Oak Ridge for an aggregate total of 27 months as detailed previously, the prior development actions that had occurred were essentially discarded as being either of little or no evidentiary value to Mr. Russell's claim. The better option, in my view, would have been for DEEOIC to take that reliable employment evidence and use it as the basis for developing properly supported findings on his exposures, and referring the claim to another CMC for probative medical opinion on causation. Taking these steps would have provided a firmer foundation upon which to base a final decision on Mr. Russell's Part E claim.

[Id. at 445]. The Director referred Plaintiff's claim to the Cleveland District Office to further develop and to provide a recommendation. [Id. at 446]. The Director ordered the District Office to refer the matter to an industrial hygienist for an opinion regarding the level and intensity of Plaintiff's work-related exposures to toxic substances. [Id.]. In addition, the Director ordered the District Office to refer Plaintiff's claim to another CMC for an appropriate medical opinion on the purported causal relationship of the exposures to his COPD. [Id.].

         The industrial hygienist, David Levitt, issued a report on November 19, 2015, and issued an addendum on December 7, 2015. [Id. at 349-51, 298-300]. In the November 19 report, Levitt concluded that while Plaintiff worked intermittently as a carpenter at the Oak Ridge Reservation for a total of twenty-seven (27) months, he was “significantly exposed to asbestos and wood dusts.” [Id. at 350]. Levitt continued that his exposures to both of these agents would have likely been frequent (i.e., a daily basis) and that his exposure to asbestos would have ranged from low to moderate levels, while his exposure to wood dust would have ranged from moderate to high levels. [Id. at 351]. With respect to the December 7 report, Levitt reviewed whether it was plausible that Plaintiff would have had significant exposure to crystalline silicon dioxide during his employment. [Id. at 298]. Levitt stated that there was no evidence that Plaintiff “engaged in any activities that would have resulted in him being significantly exposed to crystalline silicon dioxide (i.e., sandblasting, mixing and applying drywall compound, mixing dry cement, jackhammering, etc.).” [Id. at 299]. He concluded that it was “highly unlikely that [Plaintiff] was significantly exposed to this agent” and that “[a]ny exposures that he might have received would have been incidental in nature (occurring in passing only) and not significant.” [Id.].

         The CMC, Akshay Sood, M.D., (“Dr. Sood”) issued a report on December 21, 2015. [Id. at 282-89]. Dr. Sood made the following assessments:

For asbestos exposure to be a significant factor in aggravating, contributing to and/or causing the employee's claimed condition of COPD, the exposure must be of adequate duration, intensity and latency. The latency of the exposure is appropriate (approximately four decades), the duration of exposure is not appropriate (approximately two years) and the intensity of exposure is not appropriate (described as low to moderate). I believe that asbestos exposure was therefore not a significant factor in aggravating, contributing to and/or causing the employee's claimed condition of COPD.
For crystalline silicon dioxide exposure to be a significant factor in aggravating, contributing to and/or causing the employee's claimed condition of COPD, the exposure must be of adequate duration, intensity, and latency. The latency of exposure is approximate (approximately four decades), the duration of exposure is not appropriate (approximately two years) and the intensity of exposure is not appropriate (described as incidental) for crystalline silicon dioxide to be a contributing factor toward COPD risk.
For wood dust to be a significant factor in aggravating, contributing to and/or causing the employee's claimed condition of COPD, the exposure must be of adequate duration, intensity, and latency. The latency of exposure is appropriate (approximately four decades), the duration of exposure is not appropriate (approximately 2 years) and the intensity of exposure is appropriate ...

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