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:

5781-2002

DECISION DATE:

September 12, 2006

 

 

NOTICE OF FINAL DECISION FOLLOWING A

REVIEW OF THE WRITTEN RECORD

 

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, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act).  For the reasons stated below, your claim for benefits is denied, effective June 4, 2003.

 

STATEMENT OF THE CASE

 

On August 2, 2001, you filed a Form EE-1 (Claim for Benefits under EEOICPA) based on beryllium sensitivity.  You provided a copy of a report of Proliferation Studies, dated March 6, 1998, stated that a significant proliferative response to beryllium salts was observed.  The Department of Energy (DOE) verified that you worked at the Beryllium Corporation of America in Reading, PA, from January 13, 1960 to February 28, 1993.  The Beryllium Corporation of America in Reading, PA, is recognized as a covered beryllium vendor from 1947 to 1979.  See DOE, Office of Worker Advocacy, Facility List.

 

On July 29, 2002, the Cleveland district office received a completed Form EN-15, signed and dated by you on July 24, 2002.  In response to a question on that form, you stated that you had not filed a tort suit against a beryllium vendor in connection with an occupational illness for which you would be eligible to receive compensation under the EEOICPA.  Above your signature, that form notified you that you must immediately report to OWCP (Office of Workers’ Compensation Programs) any third party settlements you receive and any tort suits you file against a beryllium vendor.


On October 29, 2002, the Final Adjudication Branch (FAB) issued a final decision which concluded that, because you are a covered beryllium employee who had been found to have beryllium sensitivity, you were entitled to beryllium sensitivity monitoring beginning on August 2, 2001.

 

On June 4, 2003, you and approximately 50 other plaintiffs filed a tort suit against the Beryllium Corporation of America and its successors in the Court of Common Pleas of Philadelphia County, PA.  Paragraph 55 of the complaint stated that the plaintiffs “resided and/or worked in close proximity to the plant, commuted to and/or worked within the plant. . . .”  Paragraph 65 stated that “[d]uring each of the plaintiffs’ residence and/or employment. . .they were exposed to unlawful, dangerous and unhealthful emissions of beryllium resulting in serious and permanent injury, or the need for medical monitoring. . . .”  Under Count I (Paragraph 80) of that suit, you alleged that, as a direct and proximate result of the negligence, carelessness, and recklessness, of the defendants, you sustained, “occupational and non-occupational exposure resulting in beryllium sensitivity,” for which you demanded “judgment against the defendants. . .in an amount in excess of Fifty Thousand ($50,000) Dollars.”

 

The complaint was dismissed by the court on August 5, 2003.  The court ruled that the complaint had improperly joined multiple unrelated plaintiffs and ordered that the plaintiffs be severed.  You filed an amended complaint on September 18, 2003, and second and third amended complaints in April and May 2004.  Each amended complaint alleged damages from your occupational exposure to beryllium.  No evidence has been received to show that this tort suit has been dismissed.

 

The tort suit was reviewed by the Counsel for Energy Employees Compensation, Division of Federal Employees’ and Energy Workers’ Compensation.  The Counsel reported in a memorandum dated January 4, 2005, that an examination of your complaint revealed that your claims relied, at least in part, on your exposure to beryllium while working at the Reading plant and that your wife’s consortium claim was derivative of your work-related exposure to beryllium.  For that reason, it was determined that at least some aspects of your suit clearly fall within the statutory definition of a covered tort case subject to 42 U.S.C. § 7385d, because it includes claims against beryllium vendors that arise out of the exposure of a covered beryllium employee, while so employed, to beryllium.

 

The Counsel further noted that 42 U.S.C. § 7385d(c) explicitly bars further receipt of benefits under Part B of the Act by any beneficiary who files a tort suit covered under 42 U.S.C. § 7385d(d) after April 30, 2003, if that date is more than 30 months after the diagnosis of a covered beryllium disease.  Because you filed your suit on June 4, 2003, you could not have dismissed that suit within the time limits specified in 42 U.S.C. § 7385d(c).  For those reasons, the Counsel determined that you no longer had any eligibility for benefits under Part B of the Act, by operation of law, as of June 4, 2003.

 

The Counsel also noted that a claimant who accepts EEOICPA benefits has legal obligations under the Act.  At the time you accepted benefits, you had signed a Form EN-15 and certified that you knew you must immediately report to OWCP any tort suit you filed against a beryllium vendor.


On March 28, 2006, the Director, Division of Energy Employees Occupational Illness Compensation (DEEOIC), issued an order vacating the final decision of October 29, 2002, and directing the Cleveland district office to issue a new recommended decision terminating entitlement to benefits under EEOICPA effective June 4, 2003.  On April 19, 2006, the district office issued a recommended decision pursuant to the Director’s order.

 

OBJECTIONS

 

On June 16, 2006, the Final Adjudication Branch received your statement of objection to the recommended decision.  You presented the following objections:

 

  1. You argue that bases for your claims in your tort suit are environmental in nature.

  1. You argue that a Memorandum Opinion of an Associate Solicitor for Employee Benefits in the matter of [Name Deleted] affirmed that a claimant can maintain both a claim under the EEOICPA for occupational exposure to beryllium and a separate tort suit for environmental exposure to beryllium

  1. You argue that your complaint is identical to the one filed by [Name Deleted], Docket No. 12401-2002, who brought an exposure claim as a result of the operations of the Reading plant.  You state that your and [Name Deleted] lawsuits are identical and that [Name Deleted] was awarded benefits by the Final Adjudication Branch.

 

While a claimant may maintain a claim under the EEOICPA based on occupational exposure to beryllium and a separate tort suit based on environmental exposure to beryllium, your tort suit specifically alleges occupational and environmental exposure to beryllium.  A review of [Name Deleted]’s suit fails to reveal any reference to occupational exposure as the basis of his claim for damages.  For that reason, your tort suit and [Name Deleted]’s tort suit are not identical.

 

Because your complaint and demand for damages relies, at least in part, on your exposure to beryllium while working at the Reading plant, and because your wife’s consortium claim is derivative of your work-related exposure to beryllium, your suit is a “covered tort case” under the provisions of 42 U.S.C. § 7385d(d).  As such, 42 U.S.C. § 7385d(c) requires that your suit must be dismissed no later than April 30, 2003; as that date is later than the date that is 30 months from the date you were determined to have been sensitized to beryllium.  (Beryllium sensitivity was first identified on March 6, 1998.  September 6, 2000, is 30 months from that date.)

 

 

FINDINGS OF FACT

 

1.         You were awarded medical monitoring for beryllium sensitivity, effective August 2, 2001, by final decision issued on October 29, 2002.

 

2.                  You filed a tort suit on June 4, 2003, against a beryllium vendor based on injuries incurred on account of exposure for which you had been found to be entitled to compensation under Part B of the Act in the form of medical monitoring for beryllium sensitivity.

 

3.                  The Director, DEEOIC, vacated the final decision of October 29, 2002.


CONCLUSIONS OF LAW

 

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, pursuant to 20 C.F.R. § 30.310.  In reviewing any objections submitted, the FAB will review the written record, in the manner specified in 20 C.F.R. § 30.313, to include any additional evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case.  I have reviewed the record in this case, as well as the written objections and must conclude that no further investigation is warranted.

 

I find that the tort suit you and your wife filed on June 4, 2003, against a beryllium vendor, is a “covered tort suit” as defined by 42 U.S.C. § 7385d(d).  Because you could not have dismissed that suit by the latest date provided by 42 U.S.C. § 7385d(c)(3), April 30, 2003, I find that you are no longer entitled to medical monitoring for beryllium sensitivity effective June 4, 2003.

 

Cleveland, OH

 

 

 

 

_______________________________________

Anthony Zona

Hearing Representative

Final Adjudication Branch