U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH



EMPLOYEE:

[Name Deleted]

CLAIMANT:

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBER:

4846-2004

DECISION DATE:

November 23, 2004

 

 

REVIEW OF THE WRITTEN RECORD

AND NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act).  See 42 U.S.C. § 7384 et seq.  Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act.  Accordingly, your claim for benefits is denied.

 

STATEMENT OF THE CASE

 

On August 1, 2001, you filed a claim, Form EE-1, for benefits under the EEOICPA.  You identified the diagnosed condition being claimed as chronic beryllium disease (CBD).  You provided medical documentation showing findings consistent with CBD as of January 31, 2000.  You provided a pulmonary function test report, dated February 5, 2002, which shows an obstructive ventilatory defect of moderate severity and the report of a beryllium lymphocyte proliferation test, based on blood drawn on January 31, 2000, which was normal.  A pathology report of a biopsy specimen taken on January 31, 2000, shows findings of non-necrotizing granulomas, which the pathologist stated is a feature consistent with a clinical diagnosis of pulmonary berylliosis.  Dr. Raed A. Dweik reviewed the results of that test and reported on March 17, 2000, that non-necrotizing granulomas were superimposed on features of emphysema.  He states that these findings are consistent with CBD superimposed on emphysema.

 

You also provided a Form EE-3 (Employment History) in which you state that you worked for Pinkerton Guard at Brush Wellman Inc., in Elmore, OH, from 1976 to 1980.  Based on evidence from Brush Wellman Inc., information in a doctor’s narrative filed in support of an Ohio Bureau of Workers’ Compensation claim, and information in a Journal Entry and Opinion from the Cuyahoga Court of Common Pleas, it was determined that you had been employed as a subcontractor employee at Brush Wellman Inc., in Elmore, OH, from at least the end of 1975 to the beginning of 1978.  The Brush Beryllium Co. in Elmore, OH, is recognized as a covered beryllium vendor from 1957 to 2001.  See DOE Office of Worker Advocacy Facility List.

 

You also provided a copy of a tort suit that you had filed against Brush Wellman Inc. in which you alleged that you had developed CBD due to exposure to beryllium in the course of your employment.  The date of filing of this tort suit was not indicated.

 

On January 17, 2003, the Cleveland district office sent you a letter which advised you that you must report the outcome of your lawsuit against Brush Wellman.  You were instructed to report whether the suit had been dismissed, if you had received a settlement, and the amount of any such settlement.  On January 30, 2003, the district office received your statement that you had filed the suit in early February or March 2000 and that you had taken no action regarding the suit as of January 26, 2003.  In a telephone conversation with the district office on April 17, 2003, you stated that you had not dropped the lawsuit, but would consider doing so within the next 30 days.  You were advised that, if the suit was not dismissed by December 30, 2003, benefits could not be paid even if you were found to be otherwise entitled to compensation under the EEOICPA.  This conversation was followed by a letter to you from the district office on April 24, 2003, in which you expressed your awareness that you must dismiss the suit prior to December 31, 2003, in order to be eligible for benefits under the EEOICPA.  You were provided a pamphlet titled, “How a Tort Action Affects Your Right to EEOICPA Benefits.”

 

On August 26, 2003, the district office sent you a letter in response to a telephone call from your wife in which she had stated that your lawsuit had been dismissed.  You were requested to provide evidence that the suit was dismissed and a statement of any monies paid to you or your wife by Brush Wellman within 14 days of that letter.  On October 2, 2003, the district office received a copy of a Notice of Dismissal from the Court of Appeals, Eighth Appellate District, Cuyahoga County, filed with the court on September 26, 2003, requesting the court to issue an order dismissing the appeal with prejudice.  On October 15, 2003, the district office received a letter from your authorized representative stating that neither you, nor any other person, had received compensation from a third party, other than Ohio Workers’ Compensation benefits, as a result of any legal action filed on your behalf.  On November 11, 2003, the district office received a Journal Entry and Opinion of the Cuyahoga Court of Common Pleas stating that defendant Brush Wellman’s Motion for Summary Judgment was granted.  The document is undated.

 

On February 5, 2004, the district office issued a recommended decision concluding that you are a covered beryllium employee who has been diagnosed with CBD and that you are entitled to compensation in the amount of $150,000 pursuant to 42 U.S.C. § 7384s(a)(1).  The district office also concluded that you are entitled to medical benefits for CBD, effective August 1, 2001, as those benefits are described in 42 U.S.C. § 7384t.

 

On February 10, 2004, the Final Adjudication Branch (FAB) received written notification that you waive any and all objections to the recommended decision.  Also on that date, the FAB obtained a copy of the docket of your tort suit from the Cuyahoga Court of Common Pleas.  The docket shows that you filed your complaint on July 18, 2000.  The Motion for Summary Judgment by Brush Wellman was granted on July 18, 2003.  You filed a Notice of Appeal on August 18, 2003.  On October 8, 2003, your Notice of Dismissal was treated by the court as a Motion to Dismiss and was granted.

 

Because the FAB was unable to determine on the facts in the record of your case whether your tort action was pending or had been dismissed as of December 31, 2003, within the meaning of 42 U.S.C. § 7385d, your claim was remanded to the Cleveland district office for further development of this issue.

 

The district office referred the issue of whether or not you had dismissed your tort action by December 31, 2003, to the Branch of Policies, Regulations, and Procedures of DEEOIC for guidance.  The Branch ascertained that the matter was a covered tort case within the meaning of 42 U.S.C. § 7384d(d), and had to have been dismissed before December 31, 2003, to preserve your potential eligibility for benefits under the EEOICPA.  Therefore, because your tort suit was not dismissed prior to that deadline, you are not eligible for benefits by operation of law.

 

On June 21, 2004, the Cleveland district office issued a recommended decision concluding that you are not eligible for compensation under the Act because you had filed a tort case before October 30, 2000, which had remained pending as of December 28, 2001, and that your tort case was not dismissed before December 31, 2003, as required by 42 U.S.C. § 7384d(a).

 

On June 29, 2004, the FAB received your statement objecting to the recommended decision and requesting an oral hearing.  You were advised by letter of July 19, 2004, that a hearing was scheduled for August 20, 2004.  In a letter dated August 26, 2004, the FAB indicated that your communications had agreed that you were withdrawing your request for a hearing and that a period of 30 days was being allowed for you to submit additional evidence and/or arguments regarding your objection.  On September 1, 2004, the FAB received additional arguments and evidence regarding your objection to the recommended decision of June 21, 2004.

 

FINDINGS OF FACT

 

  1. You filed a claim for benefits on August 1, 2001.

 

  1. You were employed at the Brush Beryllium Company in Elmore, OH, as a subcontractor employee with Pinkerton, from approximately 1975 to 1978.

 

  1. The medical evidence is consistent with a diagnosis of CBD from at least January 31, 2000.

 

  1. You had filed a tort case against Brush Wellman Inc., on July 18, 2000, which remained pending on December 28, 2001, and was not dismissed before December 31, 2003.

 

CONCLUSIONS OF LAW

 

The regulations provide that a claimant may object to any or all of the findings of fact or conclusions of law in the recommended decision.  Further, the regulations provide that the Final Adjudication Branch will consider objections by means of a review of the written record, in the absence of a request for a hearing.  See 20 C.F.R. §§ 30.310 and 30.312.

 

You filed a claim for benefits under the EEOICPA based on CBD due to exposure to beryllium while employed by a beryllium vendor listed in 42 U.S.C. § 7384l(6).  You provided evidence sufficient to establish that you had been exposed to beryllium while employed at Brush Beryllium Company in Elmore, OH, (later known as Brush Wellman Inc.), and provided medical findings consistent with a diagnosis of CBD.

 

The EEOICPA requires an election of remedy for beryllium employees.  The law states that, if an otherwise eligible individual filed a tort case alleging a claim against a beryllium vendor before October 30, 2000, and if such case remained pending on December 28, 2001, the date of enactment of the National Defense Authorization Act for Fiscal Year 2002, and if such individual does not dismiss such tort case before December 31, 2003, such individual shall not be eligible for compensation or benefits under the Act.  See 42 U.S.C. § 7385d(a) and (d).

 

The evidence shows that you filed a tort case on July 18, 2000, against Brush Wellman Inc.  This case was filed against a beryllium vendor listed in 42 U.S.C. § 7384l(6)(B) and was filed before October 30, 2000.

 

On August 1, 2001, you filed a claim for benefits under the Act based on CBD due to exposure to beryllium while employed at Brush Beryllium Company, later known as Brush Wellman Inc.  On August 14, 2001, the district office received a copy of the complaint (tort case) which you had filed against Brush Wellman Inc.  The date of filing was not shown on that document.  On December 28, 2001, the National Defense Authorization Act for Fiscal Year 2002 was enacted.

 

On January 17, 2003, the Cleveland district office sent you a letter which advised you that you must report the outcome of your lawsuit against Brush Wellman.  You were instructed to report whether the suit had been dismissed, if you had received a settlement, and the amount of any such settlement.  On January 30, 2003, the district office received your statement that you had filed the suit in early February or March 2000 and that you had taken no action regarding the suit as of January 26, 2003.

 

In a telephone conversation with the district office on April 17, 2003, you stated that you had not dropped the lawsuit, but would consider doing so within the next 30 days.  You were advised that, if the suit was not dismissed by December 30, 2003, benefits could not be paid even if you were found to be otherwise entitled to compensation under the EEOICPA.  This conversation was followed by a letter to you from the district office on April 24, 2003, which stated that you had expressed your awareness that you must dismiss the suit prior to December 31, 2003, in order to be eligible for benefits under the EEOICPA.  You were provided a pamphlet titled, “How a Tort Action Affects Your Right to EEOICPA Benefits.”


On July 18, 2003, a Motion for Summary Judgment, filed by Brush Wellman, was granted.  You filed a Notice of Appeal in the Court of Appeals, Eighth Appellate District, Cuyahoga County, Ohio, on August 18, 2003.  On October 8, 2003, your Notice of Dismissal was treated by that court as a Motion to Dismiss and was granted.

 

In your objection you agree that you filed a tort case against Brush Wellman Inc., on July 18, 2000.  You state that a summary judgment was granted in favor of Brush Wellman Inc., on July 17, 2003, and that an appeal of that judgment was filed with the Eighth District Court of Appeals.  You argue that, by appealing this matter, you preserved all right to the underlying lawsuit until a review of the matter was conducted by the higher court and that, on that basis, the case was still “alive and viable” during the appeal process.  You state that you filed a Notice of Dismissal with the Appeals Court on October 9, 2003, which the court granted.  Each of these stipulations is, essentially, consistent with the evidence described above.

 

You argue that Ohio law governs the dismissal action and the FAB agrees with that argument.  You further state that by dismissing your appeal of the Summary Judgment of the Court of Common Pleas, you “voluntarily allowed the dismissal of [your] underlying suit to become effective.”  However, there is no evidence showing that your underlying suit was dismissed when your appeal from the Summary Judgment of the Court of Common Pleas was dismissed.  Your “Notice of Dismissal”, stamped as filed with the Clerk of Courts of Cuyahoga County on September 26, 2003, requests the court for an order “dismissing his appeal with prejudice.”  A copy of the docket of your case as recorded by the Cuyahoga Court of Common Pleas contains an entry dated October 8, 2003, which states, “Appellant’s notice of dismissal is treated as a motion to dismiss and is granted at appellant’s costs.”  The subsequent entry, dated October 9, 2003, states, “***C/A***J.E. sua sponte, appeal is dismissed per entry No. 352851. . .Notice issued.”  The FAB agrees that the appeal was voluntarily dismissed.  However, the evidence of record makes no mention of any change of status in the summary judgment granted in favor of Brush Wellman Inc. on July 18, 2003.  On the basis of the evidence of record, that summary judgment stands as the final action on your tort case against Brush Wellman Inc.; originally filed on July 18, 2000.  No evidence has been presented to show that, under Ohio law, your underlying suit was dismissed.

 

You argue that a reasonable reading of 20 C.F.R. § 30.618(a) would lead one to conclude that any dismissal as a result of a “final court decision against (the claimant)” in suits prior to December 28, 2001, would not be fatal to your claim.  Alternatively, you argue that if you did not dismiss your claim because there was an adverse ruling in the lower court, then “Section 30.618 of the Rules recognizes this situation and creates a mechanism by which [you] can still receive benefits.”  The cited section, 20 C.F.R. § 30.618, is titled, What happens if this type of tort suit is filed after December 28, 2001?”  This section of the regulations corresponds with 42 U.S.C. § 7384d(c), and both the statute and the regulation specifically apply to tort cases filed after December 28, 2001.  As demonstrated by the evidence and as you have stipulated, your tort case was filed before October 30, 2000.  As such, the status of your claim for benefits under the EEOICPA is governed by 42 U.S.C. § 7385d(a) and 20 C.F.R. § 30.616.  The cited section, 20 C.F.R. § 30.618(a), does not apply to your case.

You argue that administrative agencies are required to adhere to their own precedents or to explain any deviations from them.  You cite three EEOICPA cases in which the claimants had a summary judgment against them in the lower court, appealed that judgment, subsequently dismissed their appeal, and were awarded compensation under the Act.  You state that you relied on the procedures in those cases and would not have dismissed your appeal but for the fact that you believed that benefits were available to you under the Act.  However, neither the statute nor the Department of Labor’s implementing regulations provide that final decisions under the Act are always precedential in nature.  You were advised in April 2003 that your tort case must be dismissed prior to December 31, 2003.  In spite of that notice you elected to continue with litigation of your case, resulting in a summary judgment against you in July 2003.  Your continuation of litigation after you had been placed on notice that your case must be dismissed in order to be eligible for compensation under the EEOICPA is an election of litigation as your remedy rather than compensation under the Act.  The manner in which similar cases may have been decided has no bearing on the application of statutory requirements to the facts in your claim.

Finally, you state that the administration, Congress, and various agencies have publicly stated that their policy was to give the benefit of the doubt to the worker when determining eligibility for awards.  You refer to the dose reconstruction regulations of the National Institute for Occupational Safety and Health, 42 C.F.R. part 82, which states that any uncertainties in a dose reconstruction will be handled to the advantage, rather than the detriment, of a claim.  The standard for accomplishing dose reconstruction is found in 42 U.S.C. § 7384n(b) which provides that cancer shall be determined to have been sustained in the performance of duty if, and only if, the cancer was at least as likely as not sustained in the performance of duty.  Because of that statutory standard, a probability of causation of 50% or more is sufficient to establish that a cancer was sustained in the performance of duty.  That standard was also adopted by NIOSH for consideration of other aspects of dose reconstruction.

However, the Act does not specify the standard of proof to be used by the Office of Workers’ Compensation Programs (OWCP) in determining entitlement to benefits under the Act.  The OWCP published 20 C.F.R. § 30.111(a) to specify the claimant’s responsibility with regard to burden of proof.  That regulation provides that, “[e]xcept where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category.”

 

Even if the standard of proof was to give the benefit of the doubt to the claimant, you have not established that any doubt existed in the processing of your claim.  You were advised that you must dismiss your tort case in order to be eligible for payment of compensation under the Act, but chose to proceed with your litigation against Brush Wellman, resulting in a summary judgment in their favor.  That judgment of the court was not vacated and the tort suit was not dismissed before December 31, 2003.  On the basis of those facts there is no “doubt” to be resolved in your favor.

 

Your lawsuit was filed on July 18, 2000, and was still pending before the Court of Common Pleas for Cuyahoga County, Ohio, as of December 28, 2001, thus 42 U.S.C. § 7385d(a)(2) governs this matter.  That section provides that a claimant with a covered tort case within that time frame must “dismiss such tort case before December 31, 2003,” in order to be eligible for EEOICPA benefits.

 

The mere dismissal of your appeal to the Court of Appeals was insufficient to satisfy the requirement of 42 U.S.C. § 7385d(a)(2) that the tort case be dismissed.  Without more, the dismissal of your appeal of your tort suit only resulted in the underlying judgment for the defendant becoming final.  The statutory requirement cannot be met by an order allowing summary judgment on the merits to become final and effective.

 

Under Rule 41(A) of the Ohio Rules of Civil Procedure, a plaintiff may not “voluntarily dismiss” an action in a Court of Common Pleas once judgment has been entered.  Thus, in order for you to have timely dismissed your tort suit you would have had to have obtained an order of the Court of Appeals vacating the Court of Common Pleas’ entry of summary judgment or otherwise gotten the Court of Common Pleas judgment vacated and, once successful in vacating the judgment, then dismissed your tort suit prior to December 31, 2003.

 

Since you did not dismiss your tort case prior to December 31, 2003, as required by 42 U.S.C. § 7385d(a)(2), your claim must be denied because your entitlement to benefits under the Act is barred by operation of law.

 

 

 

Cleveland, Ohio

 

 

 

_______________________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch