DOJ Hanford Workers’ Compensation Lawsuit Update

Bruce Burk

A federal judge is poised to rule on a new lawsuit brought against the state of Washington regarding the Hanford Site — a nuclear production complex operated by the U.S. Government. The lawsuit was brought over relaxed workers’ compensation requirements for workers at the site.

The lawsuit is brought over a complaint that Washington state law violates the Supremacy Clause of the Constitution. The Supremacy Clause is located in Article IV Section 2 states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Federal Government alleges that the Washington state law tries to improperly regulate the federal government and discriminates against the government with increased liability for workers’ compensation benefits.

More specifically, the list of covered conditions that would have to be covered at the Hanford Site includes illnesses that should not be linked to workers at that site, the government alleges. The legislation is based on a report compiled by the Washington Legislature that you can read here. The new Washington state law requires that a myriad of conditions be presumed to be caused by work, including:

  • Respiratory disease
  • Beryllium sensitization and acute and chronic beryllium disease
  • Heart problems, experienced within 72 hours of exposure to fumes, toxic substances, or chemicals at the site
  • Certain cancers as specified
  • Neurological disease

The measure also presumes that the following types of cancers are caused by the Hanford Site if the worker had a pre-employment physical with no evidence of the condition:

  • Leukemia
  • Primary or secondary lung cancer, including bronchi and trachea, sarcoma of the lung, other than in situ lung cancer discovered during or after a postmortem examination, but not including mesothelioma or pleura cancer
  • Primary or secondary bone cancer (including specific forms listed in the bill)
  • Primary or secondary renal cancer
  • Lymphomas, other than hodgkin’s disease
  • Waldenstrom’s macroglobulinemia and mycosis fungoides
  • Primary cancer of the:
    • Thyroid
    • Male or female breast
    • Esophagus
    • Stomach
    • Pharynx
    • Small intestine
    • Pancreas
    • Bile ducts
    • Gall bladder
    • Salivary gland
    • Urinary bladder
    • Brain (with certain limitations)
    • Colon
    • Ovary, including fallopian tubes if both organs are involved; and liver (except if cirrhosis or hepatitis b is indicated )

The parties in the lawsuit have agreed that the matter can be decided via a summary judgment after arguments. The DOJ is seeking to have the law overturned. If that occurs, the state of Washington could file an appeal in the 9th Circuit.

Courts typically want to begin the analysis that the statue is not constitutional. Moreover, the court could take the position that parts of the law are constitutional without overturning the entire statute. The substance of the statute is not uncommon as many states have presumptions that certain conditions for individuals in certain accidents or certain professions should be presumed to be caused by their employment. Presumptions then require the employer/carrier to present sufficient evidence to overturn the presumption. If the judge does decide to overturn this statute, it could put pressure on the U.S. Congress, which could then pass a law to help aid these injured workers.

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