Donald v. United States Enrichment Corp Centrus Energy, 012921 KYWC, 201901053

• Case Date: January 29, 2021
• Court: Kentucky

MINNIE DONALD PETITIONER v. UNITED STATES ENRICHMENT CORP CENTRUS ENERGY and HON. TONYA M. CLEMONS, ADMINISTRATIVE LAW JUDGE RESPONDENTS Claim No. 201901053 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board January 29, 2021          APPEAL FROM HON. TONYA CLEMONS, ADMINISTRATIVE LAW JUDGE           PETITIONER/PRO SE: MINNIE DONALD USPS           COUNSEL FOR RESPONDENT: HON CHRISTION HUTSON LMS           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION AFFIRMING           STIVERS, Member.          Minnie Donald (“Donald”) appeals, pro se, from the October 23, 2020, Opinion and Order of Hon. Tonya M. Clemons, Administrative Law Judge (“ALJ”) dismissing her occupational disease claim for failing to file her claim within the applicable statute of limitations and statute of repose set forth in KRS 342.316(4)(a).          On appeal, Donald requests this Board to remand the claim to the ALJ for a correct finding regarding the date her occupational disease became manifest; resolution of the contested issues of jurisdiction, employment relationship, and exemption under KRS 342.650 and KRS 342.660; and declaratory and injunctive relief to remedy an alleged violation of her rights under the Constitution of the Commonwealth of Kentucky.          The Form 102 – OD (“Form 102), filed August 23, 2019, alleges Donald sustained work-related Chronic Beryllium Disease (“CBD”) while in the employ of the United States Enrichment Corporation (“USEC”). The Form 102 indicates Donald’s last date of exposure was December 14, 1994. Importantly, the Form 102 indicates the “date of diagnose” of Donald’s CBD is February 26, 2004.          On February 25, 2020, USEC filed a Special Answer asserting Donald’s claim is barred by the statute of limitations.          Donald testified at the August 27, 2020, hearing. She worked at USEC from July 7, 1991, to December 14, 1994. Concerning the cause of her separation from the company, she testified as follows:

I created [sic] fibromyalgia, which is arthritis of the muscle, which I had no complaints before I started working there. And I got bronchitis and asthma and COPD and sinusitis, the whole nine yards. And I was having so many complications, that’s why I went on short-term disability.

Regarding the progression of her beryllium disease, Donald testified:

A: Well, I had a chest x-ray done and it shows interstitial markings on my lungs. And they said it came from, it’s from beryllium exposure.

Q: When did you find out that you had beryllium exposure?

A: Well, I first had the test in 2010. And then they kept denying me, and so I had an arthritis representative in 2019. So she had me to take the test over. So I took the test over and it showed the same thing in 2019.

Q: So, ultimately, were you – Now when you say they denied you, who was it that denied you? You were denied benefits to begin with from the federal programs; is that correct?

A: Yes.

Q: Because if you have beryllium from the workplace, there is compensation available for that, correct?

A: Yes.

Q: And so you were denied that coverage when you first were what you thought were diagnosed with beryllium disease in 2010; is that what you’re saying?

A: Yes. But I first applied for it in 2004, but I wasn’t diagnosed then. I had all the respiratory problems, but I wasn’t diagnosed with the CBD. But when they accepted in July 2019, they went all the way back to 2004, and they said they would pay all my medical bills.

Q: And so I guess in a nutshell, then you were suffering from the effects of what would be chronic beryllium disease, I think, but they had just not named it at that time?

A: Yes.

Q: But ultimately in 2019, after it determined you have chronic beryllium disease, then the federal compensation was paid to you for that; is that correct?

A: Correct.

As to when she may have been exposed to beryllium, she explained:

A: When I first started working there on January the 7^th, 2001 – not 2001, ’91 – I started out as a janitor. And I worked every building in the plant. I worked in all the process buildings. I was exposed to all the chemicals there. We had no covering, no protection, none whatsoever. And when we had to sweep the process building, the dust was so thick you couldn’t even see across the room. But we were steadily inhaling that stuff, but we didn’t know it was as dangerous as it was.

So after I left that department, I went to the stores department as a clerk, a material handler. I called myself getting away from the chemicals, but I found out that the building I worked in, that’s where the chemicals were stored. So you can run, but you can’t hide. So I was exposed to it the whole time I was there.

Q: And I was going to ask a question, but you sort of answered it. I don’t guess the company ever told you what the chemicals that you were around, and the dust particles that you were around, what they were composed of, what type of elements did they?

A: No.

Q: Would it be a fair statement to say that only after people started becoming sick, then was it that you found out that these chemicals, including beryllium, were in the environment?

A: Right.

         Donald’s last day of work at the Paducah Gaseous Diffusion Plant was December 14, 1994. She first applied for federal benefits for CBD on February 26, 2004. Regarding her application for federal benefits, the following testimony ensued:

Q: A moment ago you answered a question about chronic beryllium disease. And I see from your federal claim that you first applied for federal benefits February 26 of 2004; is that correct?

A: Correct.

Q: Your application at that time was solely based on chronic beryllium disease, correct?

A: Correct.

Q: Was that an application for benefits under the EEOICPA, which is the Energy Employees Occupational Illness Compensation Program Act?

A: Yes.

Q: And is that what we’ve been referring to as the federal remedy for workers at facilities like the Paducah Gaseous Diffusion Plant?

A: Yes.

Donald was last employed with USEC. She testified as follows:

Q: When is the last time that you were actually able or that you actually were employed anywhere?

A: That’s the last job that I’ve had after I left there, but I have done volunteer work for the senior center and things like that. And I belong to the Red Hat Society and we do community service.

Donald testified that she was unsuccessful with her application for

         EEOICPA benefits until July 18, 2019. She explained as follows:

Q: As I look at the notice of final decision dated July 18 of 2019, I see that you were in fact awarded medical benefits for chronic beryllium disease;

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