Docket Number: 80675-2007

EMPLOYEE: [Name Deleted]

CLAIMANT: [Name Deleted]

FILE NUMBER: [Number Deleted]

DOCKET NUMBER: 80675-2007

DECISION DATE: 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