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:

2442-2004

DECISION DATE:

December 1, 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 July 25, 2001, you filed a Form EE-1 (Claim for Employee Benefits under the EEOICPA). You identified beryllium sensitivity and tuberculosis as the conditions being claimed. As the claim was submitted prior to the start of the program, the date of filing is considered to be July 31, 2001, the effective date of the Act.

You also provided a Form EE-3 (Employment History) in which you stated that you were employed at a Beryllium Plant in Reading, Pennsylvania sometime between 1943 and 1945. On April 29, 2003, the corporate verifier for NGK Metals Corporation/Beryllium Corporation (Berylco) verified that you were employed at Berylco from February 6, 1945 to October 23, 1945. Berylco is recognized by the Department of Energy (DOE) as a covered beryllium vendor from 1943 to 1979. See DOE, Office of Worker Advocacy Facility List.

You submitted medical records in support of your claim including three reports of abnormal beryllium lymphocyte proliferation tests (BeLPT’s) performed on January 23, March 1, and May 11, 2001; as well as, a report of pulmonary testing performed on May 10, 2001. Also submitted was a letter from Milton D. Rossman, M.D., dated May 29, 2001, stating that you were referred for beryllium evaluation as a result of abnormal BeLPTs and slightly reduced pulmonary function test (PFT) results. The letter further stated that the PFTs exhibited reduced lung capacity and that a fiber-optic bronchoscopy yielded 19.8 percent lymphocytes. Dr. Rossman also identified abnormal findings in you chest x-rays. However, Dr. Rossman could not definitively state whether or not your symptoms were due to interstitial lung disease or congestive heart failure.

Based on the information submitted, the Cleveland district office determined that sufficient medical evidence existed to award medical benefits for beryllium sensitivity monitoring. Prior to issuing a decision awarding benefits, the district office on March 4, 2002, sent you Form EE/EN-15, and requested that you sign, complete, and return the documents, as they were required to determine whether or not you were a party to any litigation against a covered “beryllium vendor” or had received a settlement or court judgment arising out of litigation against a “beryllium vendor.”

On April 2, 2002, you via legal counsel, requested withdrawal of your claim. Subsequently, on April 3, 2003, you via legal counsel, later verified as your authorized representative, requested a reopening of your claim. On May 8, 2003, the district office again sent you Form EE/EN-15, and requested that you sign, complete, and return the documents. On June 9, 2003, the district office received a completed Form EN-15 signed by your authorized representative. In addition, your authorized representative indicated that you had not filed a tort suit against a beryllium vendor or atomic weapons employer in connection with either an occupational illness or a consequential injury for which you would be eligible to receive compensation under the EEOICPA. He listed the tort suit [Employee], et al. v. Cabot Corporation, et al. and attached a copy of the complaint. The complaint seeks relief for damages allegedly sustained as a result of your alleged exposure to beryllium as “down-winders” living within six miles of the defendants’ facility in Reading, Pennsylvania. Also, the complaint includes allegations that were based on your employment at the defendant’s Reading, Pennsylvania facility. On June 10, 2003, the district office again sent you Form EE/EN-15, and requested that you sign, complete, and return the documents, as your authorized representative does not have the authority to sign on your behalf. See Federal (EEOICPA) Procedure Manual, Chapter 2-1200 (January 2002).

On June 30, 2003, the district office received a completed Form EN-15 signed by you, indicating the same effects initially indicated by your authorized representative. You also provided additional medical evidence in support of chronic beryllium disease (CBD) including a narrative report and pulmonary function studies from Milton D. Rossman, M.D., dated March 14, 2002, indicating a condition consistent with CBD. You submitted a computerized axial tomography (CT) scan of the chest dated April 11, 2002, showing scattered bilateral calcified and non-calcified lung nodules indicative of granulomas. Further, you provided a narrative report and pulmonary function studies from Dr. Rossman, dated August 5, 2002, indicating a condition consistent with CBD.

On July 7, 2003, the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD; however, it appeared that your lawsuit’s cause of action was in part based on your covered employment, as well as, your beryllium illness, and thus could have an adverse affect on your claim for compensation. You were also notified that your complaint would be forwarded to our National Office, as well as, the Department of Labor’s Solicitor’s Office, to determine if the district office’s interpretation of your lawsuit’s cause of action was accurate. In addition, you were notified that according to the district office’s present interpretation of your lawsuit’s cause of action, as well as, the governing statute and regulations, you would not be eligible for compensation benefits. Further, the district office informed you that based on the medical evidence submitted you would have to dismiss your lawsuit by September 1, 2003, to not be disqualified for compensation.

On July 30, 2003, the district office received a statement from your authorized representative that “any reasonable interpretation of the Complaint, particularly viewing Paragraphs 16 through 20 inclusive of the Complaint, makes clear that [Employee]’s lawsuit is based upon his exposure as a resident near the Reading plant and nothing more.” It is further indicated that the facts the district office is considering are “incidental to the main cause of action which is one for environmental harm.”

In order to resolve the issue of whether or not your complaint against Cabot Corporation constituted a tort claim your case was forwarded to the Office of the Solicitor (SOL) for review and opinion. On January 15, 2004, the SOL concluded that, “since the date that [Employee] was required by § 7385d(c) to dismiss the portion of his tort suit that involved his employment-related exposure to beryllium passed before he did so, he is no longer potentially entitled to any EEOICPA benefits.” Thus, you were required to and did not dismiss any parts of the complaint falling within that description on or before April 30, 2003, also because more than 30 months elapsed before your tort suit was dismissed your potential entitlement to EEOICPA benefits were barred by operation of law. See 42 U.S.C. § 7385d(c)(2).

On July 30, 2004, the Branch Chief of Policies, Regulations & Procedures, DEEOIC, sent a letter to the district office noting that, “§ 7385d of the Act states that the tort suit must be dismissed before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by subtitle B of a covered employee may be connected to the exposure of the covered employee in the performance of duty under section 3623. In this instance, a review of the medical evidence of file (and of the Form EE-1) reveals that the date you first became aware that your beryllium illness was related to employment was no later than May 29, 2001 (the date of Dr. Rossman’s report indicated that you exhibited an abnormal proliferative response to beryllium, showed reduced lung capacity, and underwent a bronchoscopy yielding 19.8 percent lymphocytes, which serves as evidence that you had been diagnosed with a beryllium illness). While there are indications that you were made “aware” of your beryllium illness as early as January 23, 2001, the date of the first abnormal BeLPT, a full review of the medical evidence indicates that you became fully “aware” of your condition on May 29, 2001.

On July 28, 2004, the district office issued a recommended decision which concluded that you are a covered beryllium employee as defined by 42 U.S.C. § 7384l(7) and were exposed to beryllium in the performance of duty under 42 U.S.C. § 7384n. You were diagnosed with a beryllium illness, which is a covered occupational illness as defined by 42 U.S.C. § 7384l(8). The recommended decision further concluded that 42 U.S.C. § 7385d establishes different deadlines, varying according to the date of the filing of a lawsuit, by which an EEOICPA claimant must make the election of remedy. Because your lawsuit was filed on April 17, 2002, subsection 7385d(c) governs this date. That provision states, in subsection (c)(2), that “an otherwise eligible individual” must “dismiss” the “covered tort suit” on or before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by Part B may be connected to the exposure of the covered employee in the performance of duty under § 3623. In this instance, the 30 month date was November 29, 2003. Therefore, the recommended decision also concluded that, since the lawsuit was not dismissed until December 17, 2003, you are not eligible for compensation under the Act. Further, the district office concluded that tuberculosis is not an occupational illness as defined by § 7384l(15) of the EEOICPA.

On September 17, 2004, an objection to the recommended decision was received via fax from your authorized representative. The objections were based on issues related to your lawsuit, as well as, evidence in support of CBD.

FINDINGS OF FACT

1. You filed a claim for benefits effective July 31, 2001 based on beryllium sensitivity and tuberculosis.

2. You were employed with Berylco, from February 6, 1945 to October 23, 1945.

3. Berylco is a beryllium vendor.

4. You are a covered beryllium employee, working at Berylco during a covered time period when beryllium was present.

5. You were diagnosed with beryllium sensitivity and submitted medical evidence in support of the post-January 1, 1993 requirements for CBD, both considered occupational illnesses under the EEOICPA.

6. Tuberculosis is not an occupational illness covered under the EEOICPA.

7. Your lawsuit against Cabot Corporation alleges a claim against a beryllium vendor arising out of a covered beryllium employee’s employment-related exposure to beryllium.

8. You did not dismiss your lawsuit by November 29 , 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. See 20 C.F.R. § 30.310. 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. § 30.312.

The Final Adjudication Branch reviewer will review the record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. See 20 C.F.R. § 30.313. Consequently, the Final Adjudication Branch will consider all of the evidence of record in reviewing the claim, including evidence and argument included with the objection(s).

In order to be afforded coverage under the EEOICPA, you must establish that you had been diagnosed with a designated occupational illness resulting from the exposure to silica, beryllium, and/or radiation: cancer, beryllium sensitivity, chronic beryllium disease, and silicosis. See 42 U.S.C. § 7384l(15); 20 C.F.R. § 30.110(a). Further, the illness must have been incurred while in the performance of duty for the Department of Energy and certain of its vendors, contractors, and subcontractors, or for an atomic weapons employer. See 42 U.S.C. § 7384l(4)-(7), (9), (11).

The Final Adjudication Branch considered your objections to the recommended decision. First, you indicate that your claim is not merely for beryllium sensitivity under the Act, but for CBD, which was diagnosed in your favor as of August 2002. In addition, you submitted several duplicate copies of Dr. Rossman’s diagnostic report dated August 5, 2002. On June 30, 2003, the district office received medical evidence in support of CBD. You submitted a narrative report and pulmonary function studies from Dr. Rossman, dated March 14, 2002, indicating a condition consistent with CBD. You submitted a CT scan of the chest dated April 11, 2002, showing scattered bilateral calcified and non-calcified lung nodules indicative of granulomas. Further, you provided narrative report and pulmonary function studies from Dr. Rossman, dated August 5, 2002, indicating a condition consistent with CBD.

The Final Adjudication Branch notes that all medical evidence submitted to date is post-1993, and thus the statutory criteria on or after January 1, 1993, would apply. For diagnoses on or after January 1, 1993, beryllium sensitivity [based on an abnormal BeLPT], together with lung pathology consistent with CBD, including one of the following: 1) a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; 2) a CT scan showing changes consistent with CBD; or 3) pulmonary function or exercise testing showing pulmonary deficits consistent with CBD. See 42 U.S.C. § 7384l(13)(A). One of the three reports of abnormal BeLPT’s performed on January 23, March 1, and May 11, 2001, respectively, in combination with the results of Dr. Rossman’s pulmonary function study, dated March 14, 2002, are consistent with a diagnosis of CBD after January 1, 1993. However, the condition of CBD is not in dispute, as the July 7, 2003 letter from the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD.

Second, you indicate that, although you did bring a tort claim against a beryllium vendor, it proceeded solely on the basis of long-standing, non-occupational exposure based upon nearby residency and employment outside of the beryllium vendor’s plant, not occupational exposure while employed by a beryllium vendor. The SOL opined that six counts set forth in your April 17, 2002 complaint, rely, at least in part, upon your exposure to beryllium while working for the defendant beryllium vendor, including one count brought by your spouse for loss of consortium. Specifically, paragraphs 6 and 21 of the complaint alleged that you had also been exposed to beryllium in the course of your employment at the defendants’ Reading plant in the early 1940’s. In addition, paragraph 24 of the complaint alleged that you had sustained CBD due to the above exposures, and paragraph 48 alleged that your spouse “has and will in the future be deprived of her husband’s services, companionship and society and hereby claims loss of consortium to her great detriment and loss.” The SOL concluded that paragraph 6 and 21 of the complaint alleged that you had been exposed to beryllium while working at the defendants’ Reading plant, and these paragraphs were incorporated into all six of the claims raised in the complaint.

Third, you indicate that based on an expert medical report prepared in connection with your legal claim concludes that your exposures from residing and working within the community was the medical cause of your CBD. In addition, you submitted several duplicate copies of the expert medical report from Lisa Maier, M.D., M.S.P.H. You specifically refer to page 17 of the report for conclusion on causation. On page 17 of the report, Dr. Maier states that “it is my medical opinion that his exposures primarily from residing and working with the community surrounding the beryllium facility caused or contributed substantially to his development of chronic beryllium disease.” In addition, on page 16 of the report, Dr. Maier states that “he may have also had some exposure while working for a very limited time in the Reading beryllium facility.” This report is in further support of your beryllium illness, which, as previously discussed, is not in dispute. Further, issues related to environmental exposure are not issues covered under the EEOICPA, as there is no provision under the EEOICPA for conditions that are not occupationally related.

The Final Adjudication Branch notes that issues related to environmental exposure will not be considered as it has no bearing on the outcome of the decision.

In the fourth, fifth, sixth, and seventh parts of your objection, you indicate the following: 1) “The Department of Labor, through its solicitor’s office, has clearly ruled in previous claims that a claimant may bring an action for his environment or non-occupational exposure to beryllium and simultaneously maintain a claim under the Act;” 2) As you are not a plaintiff in any lawsuit which requires dismissal under the Act, there is therefore, no obligation to dismiss such a lawsuit as contemplated under 42 U.S.C. § 7385d(c); 3) Notwithstanding that you did not have an obligation to dismiss a lawsuit, your lawsuit, “was marked dismissed upon the dockets, as noted by the recommended decision of July 28, 2004, on December 17, 2003;” and 4) “As the claim herein one for CBD, of which the claimant was made “aware” as defined under 20 C.F.R § 30.618(c)(2), a dismissal of a lawsuit occurred within 30 months after the date of the claimant’s diagnosis for CBD on August 5, 2002.” Based on these objections you demanded that your claim for benefits be approved.

As noted by the SOL, each of the six counts were based at least in part, upon your exposure to beryllium while working for the defendant beryllium vendor and you were required to dismiss any parts of your complaint arising out of your employment-related exposure to beryllium at the Reading facility. While as you indicated that the SOL has previously opined that an eligible claimant can maintain a lawsuit without the need for dismissal of an environmental claim and simultaneous present a claim under the EEOICPA, your complaint is not solely an environmental claim, as your environmental claim is not an issue in dispute. As discussed in the SOL’s opinion you were required to dismiss any parts of your complaint arising out of your employment-related exposure to beryllium at the Reading facility and did not do so by the date required under the Act.

In order to be eligible for benefits you must also satisfy the requirements under 42 U.S.C. § 7385d. SOL determined that in order to have preserved your eligibility for compensation under the EEOICPA, you were required to dismiss any parts of your complaint arising out of your employment related exposure to beryllium at the Reading facility by April 30, 2003. The Branch of Policies, Regulations and Procedures noted that in addition to the April 30, 2003 date, the Act provides that if the date that is 30 months after the date the individual first became aware that an illness covered by subtitle B of a covered employee may be connected to the exposure of the covered employee in the performance of duty under section 3623 is later, that later date is the date by which the complaint must be dismissed.

Section 30.111(a) of the regulations states that, "Except 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 set forth in 20 C.F.R. § 30.110. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the Act and regulations, the claimant also bears the burden of providing to the Office of Workers Compensation Programs all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations." See 20 C.F.R. § 30.111(a).

In addition to meeting the EEOICPA requirements for a covered occupational illness and for covered employment, in cases where tort claims have been filed, 42 U.S.C. § 7385d establishes different deadlines, varying according to the date of the filing of a lawsuit, by which an EEOICPA claimant must make the election of remedy. If an otherwise eligible individual filed a tort case after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2002, subsection 7385d(c) governs this date. That provision states, in subsection (c)(2), that “an otherwise eligible individual” must “dismiss” the “covered tort suit” on or before April 30, 2003 or the date that is 30 months after the date the individual first became aware that an illness covered by Part B may be connected to the exposure of the covered employee in the performance of duty under section 7384n.

On July 7, 2003, the district office advised you that the medical information submitted was sufficient to establish a potential claim for CBD; however, it appeared that your lawsuit’s cause of action was in part based on your covered employment, as well as, your beryllium illness, and thus could have an adverse affect on your claim for compensation. Further, the district office informed you that based on the medical evidence submitted you would have to dismiss your lawsuit by September 1, 2003, to not be disqualified for compensation. While there are indications that you were made “aware” of your beryllium illness as early as January 23, 2001, the date of the first abnormal BeLPT, a full review of the medical evidence indicates that you became fully “aware” of your condition on May 29, 2001. Based on the medical evidence of record, you had until November 29, 2003, in order to dismiss the portions of your lawsuit based on occupational exposure to beryllium. However, you did not do so until December 17, 2003.

I have reviewed the evidence in the record and the recommended decision issued by the district office. A review of the evidence shows that you are a covered beryllium employee as defined by 42 U.S.C. § 7384l(7) and were exposed to beryllium in the performance of duty under 42 U.S.C. § 7384n. You also were diagnosed with CBD, which is a covered occupational illness as defined by 42 U.S.C. § 7384(8)(B) and met the criteria established for this diagnosis under 42 U.S.C. § 7384l(13)(A). However, you did not dismiss the covered tort case as required by 42 U.S.C. § 7385d(c)(2).

Since no evidence was submitted establishing that the lawsuit was timely dismissed your claim for compensation is denied pursuant to the provisions of 42 U.S.C. § 7385d(c)(2). In addition your claim based on tuberculosis is denied, as tuberculosis is not a covered occupational illness defined by § 7384l(15) of the EEOICPA.

Cleveland, Ohio

__________________________

Debra A. Benedict

Acting District Manager

Final Adjudication Branch