Below are Final Decisions of the Final Adjudication Branch of the Department of Labor Office of Workers Compensation Programs related to the category of Election of Remedies Under Part B. We hope these decisions are helpful. Please add your experiences in the comments section.
Election of Remedies Under Part B
In general
EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, 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
EEOICPA Fin. Dec. No. 5781-2002 (Dep’t of Labor, 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:
- You argue that bases for your claims in your tort suit are environmental in nature.
- 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
- 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
EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, 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
EEOICPA Fin. Dec. No. 5781-2002 (Dep’t of Labor, 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:
- You argue that bases for your claims in your tort suit are environmental in nature.
- 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
- 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
EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, 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
- You filed a claim for benefits on August 1, 2001.
- You were employed at the Brush Beryllium Company in Elmore, OH, as a subcontractor employee with Pinkerton, from approximately 1975 to 1978.
- The medical evidence is consistent with a diagnosis of CBD from at least January 31, 2000.
- 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
EEOICPA Fin. Dec. No. 80675-2007 (Dep’t of Labor, December 19, 2006)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or the Act), 42 U.S.C. § 7384 et seq. For the reasons stated below, your claim for benefits is denied.
STATEMENT OF THE CASE
On November 23, 2004, the FAB issued a final decision on [Employee]‘s claim for benefits for chronic beryllium disease (CBD) under Part B of EEOICPA.[1] The FAB found that [Employee] 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. For that reason, the FAB denied his claim because entitlement to benefits under the Act is barred by operation of law under those circumstances.
On September 22, 2005, the U.S. District Court for the Northern District of Ohio, Western Division, dismissed [Employee]‘s petition seeking review of the November 23, 2004 final decision.[2] The Court held that [Employee] did not dismiss his case within the time required by the EEOICPA.
On September 21, 2006, you filed a Form EE-2 claiming benefits as the surviving spouse of [Employee]. You identified the diagnosed condition being claimed as CBD. You did not provide a copy of a marriage certificate showing that you and [Employee] were husband and wife for at least one year immediately prior to his death. You submitted a copy of [Employee]‘s death certificate showing that he died on June 16, 2006, and identifying [Employee’s wife] as his surviving spouse.
A review of the complaint filed against Brush Wellman, Inc. on July 18, 2000 identifies you as a plaintiff in that tort action. A motion for summary judgment filed by Brush Wellman, Inc. was granted by the court on July 18, 2003.
On October 5, 2006, the Cleveland district office recommended denial of your claim for compensation as you are not eligible for compensation because you were a party to a tort suit, filed before October 30, 2000, which had not been dismissed by December 31, 2003, as required by the Act. For that reason, the district office recommended that your claim be denied.
After considering the recommended decision and all the evidence in the case file, the FAB hereby makes the following:
FINDINGS OF FACT
1. You filed a claim for benefits on September 21, 2006.
2. You filed a tort suit against Brush Wellman, Inc. on July 18, 2000, which remained pending on December 28, 2001 and was not dismissed before December 31, 2003.
Based on the above-noted findings of fact in this claim, the FAB hereby makes the following:
CONCLUSIONS OF LAW
I have reviewed the recommended decision issued by the district office on October 5, 2006. I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a) and 30.316(a).
The FAB finds that because the tort suit, filed on July 18, 2000, in which you were a plaintiff against Brush Wellman, Inc. and which was based on [Employee] having incurred CBD during his employment at that facility, was resolved by the granting of summary judgment for Brush Wellman, Inc. on July 18, 2003. Your tort suit was pending on December 28, 2001 and, as required by 42 U.S.C. § 7385d(a)(2), must have been dismissed by December 31, 2003. As explained by the U.S. District Court in its decision of September 22, 2005, “[t]he Act required [you] to either choose between statutory benefits or attempt recovery through a tort suit against the employer. By pursuing [your] claim until an adverse summary judgment, [you] elected litigation.”
For the above reasons, the FAB concludes that entitlement to benefits under the Act is barred by operation of law. Accordingly, your claim for benefits is denied.
Cleveland, OH
Anthony Zona, Hearing Representative
Final Adjudication Branch
[1] EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, November 23, 2004).
[2] [Employee] v. Chao, 395 F. Supp. 2d 625 (N.D. Ohio 2005).