EEOICPA BULLETIN NO.02-05
Issue
Date:
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Effective
Date:
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Expiration
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Subject: Effect of tort suits against beryllium
vendors and atomic weapons employers on eligibility for compensation under
EEOICPA
Background:
Section 7385(d) of the Energy Employees Occupational Illness Compensation
Program Act (EEOICPA), per December 28, 2001 amendments to the National Defense
Authorization Act for 2002, determines the effect of tort suits filed against a
beryllium vendor or atomic weapons employer on the rights of otherwise eligible
individuals to receive compensation under the EEOICPA.
Reference:
42 U.S.C. 7385(d)
Purpose:
To notify the District Offices of the effect of tort suits against
beryllium vendors and atomic weapons employers on eligibility for compensation.
Applicability: All staff.
Actions:
1.
If an otherwise eligible individual filed such a tort suit before
October 30, 2000, and the suit remained pending as of the date of enactment of
the National Defense Authorization Act for 2002 (December 28, 2001), then the
individual is not eligible for compensation under EEOICPA unless he or she
dismisses the tort action before December 31, 2003.
2. If an otherwise
eligible individual filed a tort suit against a beryllium vendor or atomic
weapons employer between October 30, 2000, and December 28, 2001, that
individual is not eligible for compensation under EEOICPA unless he or she
dismisses the tort action before the later of April 30, 2003, and the date that
is 30 months after the date that he or she becomes aware that the covered
employee may have a covered illness connected to exposure in the performance of
duty under section 3623.
3. If an otherwise
eligible individual files such a tort suit after
4. If no final
decision is entered in a tort suit filed after December 28, 2001, then the
otherwise eligible individual will not be eligible for compensation unless he
or she dismisses the tort suit before the later of April 30, 2003, and the date
that is 30 months after the date that he or she becomes aware that the covered
employee may have a covered illness connected to exposure in the performance of
duty under section 3623.
5. Section 7385(d) of the EEOICPA, as amended,
affects only the rights of the individual otherwise eligible for compensation
under the Act. Typically, the “otherwise
eligible individual,” who must take action to avoid forfeiting compensation,
will be either a “covered beryllium employee” or a “covered employee with
cancer,” as those terms are defined in the regulations at 20 C.F.R. §§ 30.205
and 30.210. Such an “otherwise eligible
individual” also could be a survivor of a deceased covered employee with no
cause of action in his or her own right.
In either of those situations, where the only plaintiff is an individual
who is otherwise eligible for benefits under EEOICPA, the entire tort suit
would have to be dismissed in a timely manner in order to preserve either the
covered employee’s or the survivor’s entitlement to EEOICPA benefits.
6.
Tort suits covered by section 7385(d) can also have multiple plaintiffs
with separate causes of action, however.
For example, a tort suit brought by a living covered employee could
include his or her spouse as a plaintiff with the spouse’s own cause of action
for loss of consortium due to the covered employee’s exposure to beryllium or
radiation. If such another plaintiff is
not an “otherwise eligible individual,” he or she need not take any action
pursuant to section 7385(d). Thus, if a
covered employee is living, his wife is not eligible for compensation under
EEOICPA and the continued pendency, or settlement, of a suit in which the wife
is advancing her own cause of action would have no effect on the covered
employee’s eligibility for compensation.
Similarly, in a case where the covered employee is deceased and a spouse
is eligible for EEOICPA compensation, other family members, such as children,
who may also have brought suit based upon the covered employee’s death, would
not have to dismiss their causes of action.
Only the individual who is “otherwise eligible” for compensation under
EEOICPA is required to take action regarding his or her tort suit in order to
preserve his or her eligibility.
Finally, tort suits that terminate, either by settlement, final
decision, or withdrawal, before December 28, 2001, do not effect eligibility
for compensation under EEOICPA, but the amounts recovered in such actions may
be offset against compensation awarded under the Act.
7.
Section 3641 of the EEOICPA provides that the payment of benefits to an
individual, or to a survivor of that individual, must be offset by the amount
of a payment made pursuant to a final award or settlement on a claim based on
injuries incurred by that individual on account of the exposure of an employee
covered by the EEOICPA to beryllium, radiation or silica. In a situation that involves multiple plaintiffs
where OWCP confirms that the covered employee has timely dismissed his or her
cause of action for injuries due to exposure to beryllium or radiation but the
covered employee’s spouse (the only other plaintiff in this example) has
settled or won his or her cause of action for loss of consortium, OWCP will not
offset the EEOICPA benefits that are payable to the covered employee by the
amount of the settlement paid to the spouse.
Section 3641 only applies to awards or settlements paid to or for
covered employees for occupational illnesses covered by the EEOICPA. Therefore, because the settlement of the
spouse’s cause of action for loss of consortium is not paid to or for the
covered employee, OWCP will not offset the covered employee’s EEOICPA benefits
by the amount of the settlement payment to the spouse. Care should be taken, however, to determine
that the settlement or award actually represents a recovery only by someone
other than the individual “otherwise eligible” for benefits under EEOICPA.
Disposition:
Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER
M. TURCIC
Director,
Division of Energy Employees
Occupational
Illness Compensation