Election of Remedies Under Part B

Below are the head notes for the FAB decisions and orders relating to the topic heading, Election of Remedies Under Part B. The head notes are grouped under a single subheading: In general. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

In general

• Under § 7385d(c) of EEOICPA, employee who filed a covered tort suit against a beryllium vendor after December 28, 2001 and did not dismiss the lawsuit on or before the later of April 30, 2003 or the date that was 30 months after the date the individual first became aware of his covered beryllium illness was not eligible for benefits under Part B. EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, December 1, 2004); EEOICPA Fin. Dec. No. 5781-2002 (Dep’t of Labor, September 12, 2006).
• Employee became aware of his covered beryllium illness as early as the date of his first abnormal BeLPT but did not become fully “aware” of such illness until the date of a medical report that described his abnormal proliferative response to beryllium, reduced lung capacity, and bronchoscopy yielding 19.8% lymphocytes, all of which evidenced a diagnosis of beryllium illness. EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, December 1, 2004).
• Under § 7385d(c) of EEOICPA, employee who filed a tort suit against a beryllium vendor alleging both employment-related and environmental exposures to beryllium was required to dismiss the portion of his tort suit involving the employment-related exposure to beryllium prior to the appropriate statutory deadline in order to preserve his potential eligibility. EEOICPA Fin. Dec. No. 2442-2004 (Dep’t of Labor, December 1, 2004); EEOICPA Fin. Dec. No. 5781-2002 (Dep’t of Labor, September 12, 2006).
• Under § 7385d(a)(2) of EEOICPA, employee who filed a covered tort suit against a beryllium vendor before October 30, 2000 that was still pending as of December 28, 2001, and which the employee did not dismiss before December 31, 2003, was not eligible for compensation under Part B. EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, November 23, 2004).
• Under 7385d(a)(2) of EEOICPA, employee who filed a covered tort suit against a beryllium vendor that resulted in the lower court’s entry of summary judgment for the beryllium vendor, who then appealed that judgment and later dismissed his appeal, did not satisfy the requirement that he dismiss the tort suit in order to preserve his potential eligibility for benefits under Part B. The employee’s dismissal of the appeal of his tort suit only resulted in the underlying summary judgment for the beryllium vendor becoming final and effective. EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, November 23, 2004).
• Under § 7385d(a)(2) of EEOICPA, employee who filed a covered tort suit against a beryllium vendor that resulted in the lower court’s entry of summary judgment for the beryllium vendor and who was required to dismiss his tort suit before December 31, 2003 to preserve his potential eligibility for benefits under Part B, would have had to have obtained an order of the Court of Appeals vacating the lower court’s entry of summary judgment or otherwise gotten the lower court judgment vacated and, once successful in vacating the judgment, then dismissed the tort suit prior to December 31, 2003. EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, November 23, 2004).
• Under § 7385d(a)(2) of EEOICPA, which sets forth the circumstances under which an individual must dismiss his covered tort suit in order to remain eligible for benefits under Part B, such dismissal is governed by the rules and procedures of the state court where the tort action was filed. EEOICPA Fin. Dec. No. 4846-2004 (Dep’t of Labor, November 23, 2004).
• Surviving spouse of a deceased covered beryllium employee filed for benefits on the basis that her spouse contracted CBD due to his work-related exposure at a beryllium vendor. Claimant and husband had previously filed a tort suit against the vendor for this same exposure in state court, and summary judgment was entered against them. When DEEOIC denied the Part B claim of employee for failing to comply with the statutory election of remedies provision, employee filed suit in U.S. District Court, which held that EEOICPA provides a timeframe within which he was required to choose whether to pursue a tort suit or file for statutory benefits, and that pursuing the tort suit until entry of an adverse summary judgment constituted an election to litigate against the beryllium vendor instead of filing for statutory benefits, notwithstanding dismissal of subsequent state court appeal within the timeframe. DEEOIC then concluded that claimant was not eligible for survivor benefits because such benefits can only be paid to a surviving spouse if the deceased employee would have been entitled to benefits if still alive. EEOICPA Fin. Dec. No. 80675-2007 (Dep’t of Labor, December 19, 2006).