United States District Court, E.D. Tennessee, Knoxville
DAVID A. RUSSELL, Plaintiff,
UNITED STATES DEPARTMENT OF LABOR, Defendant.
C. Poplin United States Magistrate Judge.
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].
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.
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
facts relevant to Plaintiff's Motion for Judgment are as
The History of Plaintiff's Claim
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]. 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].
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.
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
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
[Id. at 514].
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].
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].
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
[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.
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
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 ...