N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
RICHARD J. MALIN,
Petitioner

v.

DEPARTMENT OF JUSTIC E, Respondent

______________________

2015

- 8001

______________________

Petition for review of a decision of the Bureau of Ju stice Assistance in PSOB Claim No. 2010

- DIS

- 028.

______________________

Decided: August 6, 2015

______________________

R ICHARD J. M ALIN
, Cairo, NY, pro se.

J OSHUA A. M ANDLEBAUM
, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC

, for respondent. Also represen ted by B ENJAMIN C. M IZER
, R OBERT E. K IRSCHMAN
, J R
., E LIZABETH M. H OSFORD ; R AFAEL A LBERTO M ADAN
, J ASON P. C OOLEY
, J OEL F EIL
, Office of General Counsel, Office of Justice Programs, United States Department of Justice, Washington, DC.

______________________MALIN v. DOJ 2

Before R EYNA
, W ALLACH
, and H UGHES
, Circuit Judges.

P ER C URIAM
Richard Malin appeals the Board of Justice Assi stance ’s final determination that he has not established that the deterioration of his medical condition was the “direct and proximate” result of alleged exposures to contaminants in the line of duty, as is required by th e Public Safety Officer’s Benefits Act

. See 42 U.S.C. § 3796(b). Because substantial evidence supports the BJA’s final determination, we affirm

. B ACKGROUND

Mr. Malin served as an environmental -conservation police officer for the New York State Department of Environmental Conservation from May 1977 to December
1996. His primary duties included investigating env ironmental crimes dealing with the illegal application of
toxins and toxic wastes. In the fall of 1988, Mr. Malin was diagnosed with carcinoid tumors affecting his liver and small intestines. After taking leave to treat the tumors, Mr. Malin returned to work in early 1989

. In 1993, Mr. Malin was assigned to the Region 3 office
in New Paltz, NY. The Region 3 office was built on land that had previously been used as an apple orchard and had allegedly been contaminated with pesticides . During this assignment, Mr. Malin worked at the Region 3 office between three and five days a week. By the fall of 1996,
Mr. Malin’s condition had worsened significantly

. Mr. Malin testified that he began to experience shortness of breath, wheezing, diarrhea, and energy loss. According
to Mr. Malin, his primary doctor, Dr. Ri chard Warner, informed him that he had developed seven tumors in his liver and small intestine. Following Dr. Warner’s advice,
Mr. Malin stopped working in December 1996

. Mr. Malin’s condition appears to have continued to deter iorate and , as of August 2 014, he was experiencing a deepMALIN v. DOJ 3

venous thrombosis, a complication of his chemotherapy for his liver cancer.

Mr. Malin claims that his condition deteriorated as a result of his work at the Region 3 office. He cites a Fe bruary 1997 memorandum from Ward B. Stone, the head of wildlife pathology for New York, stating that the New Paltz office grounds were “contaminated with arsenic, lead, and DDT [dichlorodiphenyl trichloroethane]” and that Mr. Malin “had many exposures to carcinogens when investigatin g chemical spills, visiting dumps containing chemicals, and while working in the orchards in the New Paltz area.” In 2009, Mr. Stone sent Mr. Malin an email stating that Mr. Malin had “a potential to be exposed on a daily basis to toxins at the office as well as in the field.”

The New York State Department of Health also i nspected the New Paltz offices and issued a report in April 1995. That report found that the potential for employees to be exposed to lead, arsenic, and DDT at the Region 3 office was “low.” The report explained that the property is generally covered by grass

, and employees are not likely

to come into contact with contaminants during “routine activities such as walking and picnicking on the grounds.”

Shortly after the Department of H ealth’s report was issued , the Director of Occupational Health and Safety

, Jean C. Edouard, issued a memorandum concurring with the Department of Health ’s findings. Jean Edouard specifically questioned Mr. Stone’s conclusions, stating
that elevated levels of contaminants on the Region 3 grounds “cannot be related to any risk of occupational exposures because there is no evidence that these su bstances are actually present where employees might come into contact with them.” In response to a request from
Jea n Edouard, the New York State Department of Labor, Public Employee Safety and Health Bureau took air and surface wipe samples for lead and DDT inside the Region 3 office. The resulting Contamination Report found thatMALIN v. DOJ 4

the levels of these two contaminants did not rise above “the detection limits of the testing methodologies.” 1

In October 1997, Mr. Malin filed a claim for workers’ compensation benefits before the Workers’ Compensation Board of New York State . Two months later, Dr. Warner, wrote a letter stating that throughout Mr. Malin’s career, Mr. Malin had “repeated exposures” to arsenic, lead, and DDT. He further stated that he felt that it was “logical to conclude that deterioration of [Mr. Malin’s] condition has been accelerated by exposure to these toxic contam inants.” During a deposition conducted as a part of the workers’ compensation claim, Dr. Warner was asked, assuming that “tests .

. . would indicate that there was arsenic and lead and DDT in the place in which [Mr. Malin] worked at least t hree days a week, seven to eight hours a day ,” could he render an opinion on whether this exposure contributed to the worsening of Mr. Malin’s symptoms. Dr. Warner answered that “nobody can give you a definite answer” but that he could “give you an opinio n, which is probably yes.” Dr. Warner also opined that it was “possible” that Mr. Malin’s condition worsened without additional exposure to contaminants, but that “it would have been a little bit unusual to abruptly do so over that period of time to the extent that he became debilita ted.” As a part of the w orkers’ c ompensation proceeding,
Dr. Justin Scheer also rendered a report, concluding that, because the cause of carcinoid tumors is unknown, “it is not possible, with any degree of certainty, to attribu te [Mr. Malin’s] cancer to toxic exposure at work.” Nevertheless, the Board credited Dr. Warner’s testimony and awarded Mr. Malin workers’ compensation benefits.

1 The Contamination Report did not describe ars enic levels because the applicable occupational safety

stan d ards exempted arsenic exposure from pesticide applic a tions.MALIN v. DOJ 5

In connection with a separate claim for benefits before
the New York State and Local Retire ment System,
Dr. Jeffrey Perkins testified that , having reviewed records provided by the State, Mr. Malin h ad been exposed to contaminants . He further testified that he would be comfortable stating that Mr. Malin’s occupation was “causally connected” to his development of carcinoid

tumors

. Based mainly on Dr. Perkins’ testimony,
Mr. Malin was awarded disability retirement benefits.

In December 2009, Mr. Malin filed a claim for disabi lity benefits under the Publ ic Safety Officer’s Benefits (PSOB) Act with the Bureau of Justice Assistance (BJA)

. To evaluate Mr. Malin’s claim, the BJA obtained a med ical report from Dr. William Oetgen. Dr. Oetgen stated that the cause of carcinoid tumors is unknown and that
Drs. W arner’s and Perkins’s assertions linking
Mr. Malin’s cancer with exposures to contaminants at the Region 3 office “represent speculation” that “are not supported by hard evidence in the medical literature.” In
Dr. Oetgen’s view, “there is no reasonable ce rtainty that
Mr. Malin’s occupational exposure was a substantial factor in either his development of carcinoid tumors or their progression.” On the contrary, “[i]t appears lik ely that other underdetermined factors contributed to the development of his disease to a great er extent tha n this occupational exposure.”

Based on Dr. Oetgen’s findings

, the BJA initially d enied Mr. Malin’s claim, determining , among other things, that “[t]he record does not demonstrate

. . . that Officer Malin’s disability was the direct result of an injury su stained in the line of duty .

. . .” Mr. Malin then requested a determination of his claim by a hearing officer, who also
concluded that Mr. Malin did not establish the requisite
causation

. Mr. Malin appe aled the Hearing Officer’s decision to the BJA Director. The Director affirmed, finding that sheMALIN v. DOJ 6

could not conclude that “Officer Malin suffered any exp osure, or traumatic condition attributable to an exposure at the New Paltz Office such that it would constitute an ‘injury’ under the PSOB program.” J .A. 154

. The Dire ctor noted that although there was evidence of arsenic, lead, and DDT in the soil around the Region 3 office, there was no evidence that these contaminants were present in locations where employees would come into contact with them. It was significant , according to the Director, that the air and surface samples detailed in the Contamin ation Report had no detectable levels of contaminants. Even assuming that Mr. Malin’s field work put him at increased risk for developing or worsening carcinoid tumor, such increased risk is, according to the Director, “equivalent to ‘occupational disease

, ’” which is not an “injury” under the PSOB Act. J.A. 155

. Mr. Malin appeals the BJA’s final determinatio n . We have jurisdiction under 42 U.S.C. § 3796c

- 2.

D ISCUSSION
We review the BJA's final determination to deny claims under the PSOB Act to determine “(1) whether there has been substantial compliance with statutory requirements and provisions of implementing regulations; (2) whether there has been any arbitrary or capricious action on the part of the government officials involved; and (3) whether substantial evidence supports the dec ision denying the claim.” Moore v. Dep ’ t of Justice , 760 F.3d 1369, 1372 (Fed. Cir. 2014) (internal quotations omitted). “Substantial evidence” is “such relevant ev idence as a reasonable mind might accept as adequate to support a conclusion.” Consolo v. Fed. Mar. Comm ’n , 383 U.S. 607, 620 (1966) (quoting Consolidated Edison Co. of
New York v. NLRB , 305 U.S. 197, 229 (1938)). Here, we review the BJA’s final determination to determine whet her substantial evidence supports its finding that
Mr. Malin did not establish that he was exposed to co n-MALIN v. DOJ 7

taminants at th e Region 3 office and that this exposure caused the deterioration of his condition.

The PSOB Act provides that where “ the [BJA] determines that a public safety officer has become permanently and totally disabled as the direct and proximate result of

a p ersonal injury sustained in the line of duty, the Bureau shall pay the same benefit to the public safety office

. . . .” 42 U.S.C. § 3796(b) (emphas e s added). The PSOB Act’s implementing regulations provide that an “injury” means:

a traumatic physical wound (or a traumatized physical condition of the body) directly and prox imately caused by external force (such as bullets, explosives, sharp instr u ments, blunt objects, or physical blows), chemicals, electricity, cl i matic conditions, infectious di s ease, rad iation, virii, or bacteria, but does not include
— (1) Any occupational disease; or

(2) Any condition of the body caused or occasioned by stress or strain.

28 C.F.R. § 32.3

. An “ occupational disease ” is “a disease (including an ailment or condition of the body) that ro utinely constitutes a special hazard in, or is commonly regarded as a concomitant of, an individual ’ s occupation .”
Id. The implementing regulations further define “direct and proximate cause” as a “substantial factor.” Id. A factor is a “substantial factor” if it is one that was “sufficient to have caused” the injury or “[n]o other factor (or combination of factors) contributed to the [injury] to so great a degree as it did.” Id.

Mr. Malin argues that the BJA erred because the ev idence he cited clearly supports a finding that the exp osure to contaminants at the Region 3 office exacerbated his carcinoid tumors . Appellant’s Br. 7

– 8. As Mr. Malin points out, Dr. Warner stated in his December 1997 letter that it was “logical” to conclude th at the deterioration ofMALIN v. DOJ 8

Mr. Malin’s condition was accelerated by exposure to contaminants at the Region 3 office. J.A. 11. Dr. Warner further testified that Mr. Malin’s alleged exposure to the contaminants played some role in the worsening of his symptom s. J.A. 86

– 87.

Dr. Warner ’s testimony , however, assumed that
Mr. Malin had been exposed to contaminants. See J.A.
86. The Contamination Report calls this assumption into question as it found no detectable levels of lead or DDT in the Region 3 office

. Supplemental App’x. (S.A.) 58. The New York State Department of Health also found that it was unlikely that an employee would be exposed to co ntaminants outside of the Region 3 office because the property is generally covered by grass. S.A. 48. Simila rly, Jean Edouard concluded that contaminated soil was “bound by vegetation and not free to become airborne.” S.A. 53. I t was not clear that the contaminants posed a threat for occupational exposures because there was “no evidence that these substances are actually present where employees might come into contact with them.” Id. Based on these findings, Dr. Oe tgen concluded “there is no reasonable certainty that Mr. Malin’s occupational exposure was a substantial factor in either his develo pment of carcinoid tumors or their progression. ” S.A. 44. S ubstantial evidence thus supports the BJA’s finding that
Mr. Malin has not established that he was exposed to contaminants at the Region 3 office. Because such an exposure is a prerequisite to Mr. Malin’s claim, substa ntial evidence supports the BJA’s determination that the deterioration of Mr. Malin’s condition was not a “direct and proximate” result of his work at the Region 3 office.

Mr. Malin also suggests that he should receive PSOB benefits based on the fact that he was granted workers’ compensation and disability retirement benefits. See Appellant’s Br. 5

– 6. The workers’ compensation award

, however, was expressly predicated on a finding that
Mr. Malin suffered an “occupational disease,” J.A. 103,MALIN v. DOJ 9

wh ich is not an “injury” u nder the PSOB Act. 28 C.F.R. § 32.3. The disability retirement award was similarly based on various unspecified exposures, J.A. 107

– 08, which amount to an occupational disease. 28 C.F.R. § 32.3. Accordingly, Mr. Malin’s successf ul claims for workers’ compensation and disability retirement benefits do not establish error in the BJA’s decision.

C ONCLUSION
For the foregoing reasons, we affirm the final dete rmination of the BJA.

AFFIRMED

No Costs.