Worker’s Radiation Exposure|Lawsuit Still Glowing

     POCATELLO, Idaho (CN) – Battelle Energy Alliance cannot duck a claim that it knowingly exposed workers to radiation at an Idaho nuclear facility, a federal judge ruled in refusing to dismiss the case.
     Brian Simmons sued the company in 2014, claiming he was exposed to “radioactive dust” while repackaging radioactive fuel plates at the Idaho National Laboratory.
     The nuclear research facility is in southeast Idaho’s high desert, near Idaho Falls and Arco, the nation’s first nuclear-powered city.
     Battelle, a Delaware LLC, operates the secured facility.
     Simmons worked at the Zero Power Physics Reactor in the Materials and Fuels Complex (MFC) where, as a “nuclear operator,” he regularly handled plutonium and other “special nuclear” radioactive materials that are shipped, received or stored in the vault.
     He still works at the MFC, in a different capacity.
     Simmons claims he met with Battelle’s nuclear operations to warn him about operational safety concerns, and that he and his co-workers were not allowed to use personal safety equipment required to handle radioactive materials. He said that in certain instances they were not provided safety equipment at all.
     Simmons warned the director that if things didn’t change, the company would eventually be fined and that “people would get hurt.”
     The prediction came true on Nov. 8, 2011 when he and other workers came across damaged fuel plates wrapped in plastic and tape. Despite the inherent danger, Simmons says, he was told to repackage the plates, but he stopped when he saw “black powder falling from the wrapped fuel plate.”
     “The events precipitated an uncontrolled release of radioactive material, resulting in the contamination of 16 workers and the facility,” Simmons said in his lawsuit.
     He said Battelle did not provide adequate medical treatment after his exposure, that he suffered immediate physical harm and still does not know whether he will suffer health problems. Exposure to radioactivity can precipitate cancer, which may not be detected for years.
     Simmons also claimed that Battelle retaliated against him for speaking out about the contamination, that he was “ejected” from a 2012 public news conference for approaching a reporter, and disciplined for showing “negative body language.”
     He sued Battelle under the Energy Reorganization Act and the Price-Anderson Act, and amended the complaint in October 2014.
     Battelle moved for dismissal in April, claiming Simmons’ exposure was a typical industrial accident that falls under Idaho’s worker’s compensation system.
     U.S. District Judge B. Lynn Winmill rejected Battelle’s argument that Simmons’ exposure claim qualifies as an exception under the federal Price-Anderson Act.
     Citing Dominguez, ex rel. Hamp v. Evergreen Res., Inc., a 2005 Idaho case, he wrote: “Injuries that result from the willful or unprovoked physical aggression of the employer are exempted from this exclusive rule.”
     Winmill added: “Given the similarity between the facts alleged in Dominguez and the facts alleged in the amended complaint, the court holds that the amended complaint alleges that Simmons’ injuries were caused by the willful or unprovoked physical aggression of Battelle. As a result, the worker’s compensation exception to the PAA does not apply and the court has subject matter jurisdiction over Simmons’ corresponding claims.”
     In his July 30 ruling, Winmill cited the Idaho Supreme Court’s 1996 ruling Walters v. Indus. Indem Co. of Idaho in addressing Simmons’ state laws claims, which Battelle also claimed fall under Idaho’s worker’s compensation system.
     In Walters, the court found: “If there is any provision under the worker’s compensation law under which the alleged claim could be said to arise, the commission has exclusive jurisdiction.”
     Winmill said, however, that Simmons’ claims for negligence are based on Battelle’s duties under federal law, in this case to calculate the amount of radiation to which he was exposed.
     “Battelle responds that it also owed a duty under Idaho’s worker’s compensation laws to provide medical treatment to Simmons and, therefore, Simmons’ claims arise under Idaho’s worker’s compensation laws,” Winmill wrote. “But the court has just held that Simmons’ allegations at least raise the question whether the physical aggression exception applies. That is sufficient to deny Battelle’s motion at this stage in the litigation.”
     Simmons’ attorney DeAnne Casperson, with Holden Kidwell Hahn & Crapo in Idaho Falls, said Battelle stands to lose less under Idaho worker’s compensation laws.
     “Worker’s compensation provides limited recovery for whatever illness or injury a worker claims,” Casperson said. “It would be more beneficial for them to have the claims fall under the worker’s compensation laws because the Price-Anderson Act allows a greater amount of damages and a jury would decide that instead of a chart that dictates what the recovery is.”
     Casperson said Simmons, who suffered nausea, vomiting and “malaise” immediately after his radiation exposure, is worried about long-term health problems.
     “The dose amounts of radiation are being calculated by experts, so we don’t have the final numbers on that, but it is clear from medical records that he suffered illness directly after the event,” she said.
     “With radiation, aside from the up-front exposure, there could also be latent disease that occurs. There can be changes in blood work, but unfortunately, they [Battelle] didn’t follow up with the blood work. The medical treatment after the event was inadequate. They tried to suggest he had a viral infection. You would think they would have sent him to an expert who deals with radiation exposure.”
     Battelle did not address Simmons’ retaliation claims in its motion for dismissal.
     “Discovery is ongoing for the retaliatory claims,” Casperson said. “The retaliation claims will have to be settled by a jury, but we hope that all the claims will be decided by a jury.”
     Battelle’s attorney Kimberly Evans Ross did not immediately return a phone call.

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