[Senate Hearing 110-737]
[From the U.S. Government Publishing Office]
S. Hrg. 110-737
EEOICPA: IS THE PROGRAM CLAIMANT
FRIENDLY FOR OUR COLD WAR HEROES?
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE EFFICACY OF THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM (EEOICPA), FOCUSING ON OUR COLD WAR HEROES
__________
OCTOBER 23, 2007
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
senate
----------
U.S. GOVERNMENT PRINTING OFFICE
38-648 PDF WASHINGTON : 2009
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
(ii)
C O N T E N T S
----------
STATEMENTS
TUESDAY, OCTOBER 23, 2007
Page
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico,
opening statement.............................................. 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, statement........................................... 2
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio,
statement...................................................... 2
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado,
statement...................................................... 3
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
statement...................................................... 4
Prepared statement........................................... 5
Hallmark, Shelby, Director, Office of Workers' Compensation
Programs, Department of Labor, Washington, DC.................. 7
Prepared statement........................................... 8
Reid, Hon. Harry, a U.S. Senator from the State of Nevada,
statement...................................................... 16
Prepared statement........................................... 19
Howard, John, M.D., Director, National Institute for Occupational
Safety and Health, Washington, DC.............................. 22
Prepared statement........................................... 23
Nelson, Malcom D., Ombudsman, Energy Employee Compensation
Program, Department of Labor, Washington, DC................... 27
Prepared statement........................................... 28
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska,
prepared statement............................................. 36
Melius, James, M.D., DrPh., Member, Advisory Board on Radiation
and Worker Health, National Institute for Occupational Safety
and Health, Albany, NY......................................... 39
Prepared statement........................................... 41
Silver, Ken, Assistant Professional, Environmental Health
Sciences, East Tennessee State University, Johnson City, TN.... 45
Prepared statement........................................... 47
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Enzi................................................. 65
Senator Harkin............................................... 66
Senator Clinton.............................................. 67
Senator Obama................................................ 68
Senator Schumer.............................................. 71
Senator Salazar.............................................. 73
Representative Mark Udall.................................... 74
(iii)
Prepared statements of:
Mark Ayers, President, The Building and Construction
Trades Department, AFL-CIO, Washington, DC............. 78
Sylvia Dodson, Knoxville, TN............................. 80
Deb Jerrison, Yellow Springs, OH......................... 80
Daniel Yaeger, Worker, U.S. Department of Energy Fernald
site................................................... 83
Response to Questions of Senators Kennedy, Murray, Brown, and
Reid by Malcom D. Nelson................................... 84
Response to Questions of Senator Murray by James Melius,
M.D., DrPH................................................. 89
Rocky Mountain News Article by Laura Frank................... 91
EEOICPA: IS THE PROGRAM CLAIMANT FRIENDLY FOR OUR COLD WAR HEROES?
----------
TUESDAY, OCTOBER 23, 2007
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m. in
Room SD-430, Dirksen Senate Office Building, Hon. Jeff
Bingaman, presiding.
Present: Senators Bingaman, Murray, Brown, Alexander,
Murkowski, and Allard.
Also present: Senator Reid.
Opening Statement of Senator Bingaman
Senator Bingaman. This is an oversight hearing on the
Energy Employees Occupational Illness Compensation Program Act.
First, let me thank the witnesses for being here and taking the
time to testify. I know that some of you have traveled a
distance to be here, and I thank you for that.
This is the first oversight hearing this Congress on this
Energy Employees Occupational Illness Compensation Program Act.
Last Congress the House Judiciary Committee held five oversight
hearings regarding claimed efforts by OMB to trim back the
program in order to control costs for budget reasons. I believe
that phase is over, and this committee does not have to focus
on that issue, specifically, this year.
I've been working on this act, as many of my colleagues
have, since it was first put into law in 2000, and that
includes the major restructuring of the act that occurred in
2004. The principle purpose in formulating the program was to
provide compensation to persons who'd become sick as a result
of work in the nuclear weapons program. And to do so under
assumptions that were favorable to the claimant, given in many
cases the fact that exposure data was lacking at some of the
older facilities that we had in the country.
Since many of these workers are either ill or elderly, an
inherent assumption was made that the claimant--to have a
claimant-friendly determination, with minimal confusion and
frustration on behalf of the worker.
Today's hearing will look at whether the Program's being
administered to meet this overarching principle. Let me thank
all of the witnesses again, and Senator Alexander, did you have
any opening statements you'd like to make at this point?
Statement of Senator Alexander
Senator Alexander. Thanks Senator Bingaman, I would like to
make a couple of comments.
First, I'd like to thank Senators Bingaman and Bunning,
especially, for their leadership on this issue over the years.
We've all worked on it, and are concerned about it.
Tennessee has a special concern about these claims, and I
have a special feeling about it, I grew up near Oak Ridge, TN,
and watched people from my county drive over there from World
War II on through. And, we always had great respect for what
they did, they never talked about what they did, a lot of it
was secret, and we expected that the government knew what it
was doing.
Turns out the government didn't know what it was doing in
terms of the health of many of these workers.
As a result, these cold warriors, as I would call them,
became sick from risks that, largely, had to do with being
around nuclear radiation.
Tennessee has more than 24,000 compensation claims that
have affected 10,000 workers. We have twice the number of
claims of any other State. Sixteen percent of all of the claims
come from Tennessee, and so Senator Corker and I, and others in
our delegation, are very interested in making sure that we do
everything we can to make sure the claims are fairly and
promptly resolved.
What I'm especially interested in hearing about today is
how we can speed things up. Since the law that we passed in
2004, based upon the information I have, Senator Bingaman, the
average wait time for processing claims has actually increased.
Now, there's some reasons for that, but that still seems to
be a fact and a discouragement to sick nuclear workers who are
growing older, and who--if they were to die--their families
wouldn't, in many cases, receive the benefit of the claim.
I'm also interested in making sure that claimants or
potential claimants are treated courteously, the same way we
like for our staff members on our Senate staffs to treat
everyone.
And, so those are the two things I want to look at: Are we
doing this as efficiently and promptly as we can? And are we
treating each of these claimants with dignity in making sure
that their needs are respected.
I thank the witnesses for coming, I look forward to the
testimony.
Senator Bingaman. Let me just see if Senator Brown and
Senator Allard are both here, if either of them have a short
statement.
Go right ahead, Senator Brown.
Statement of Senator Brown
Senator Brown. I thank you, Mr. Chairman, thank you for
holding this hearing. Senator Alexander, thank you, and my
statement will be brief.
My home State of Ohio has played a major, significant role
in the Department of Energy programs that eventually resulted
in the creation of the Energy Employees Occupational Illness
Compensation Program we're discussing here today.
In Miamisburg, near Dayton, the Mound Laboratory was the
top secret research center involved in the processing of
plutonium and polonium, and Hamilton and Butler counties just
north--just in Cincinnati and north of Cincinnati, the feed
materials production center produced uranium for nuclear
weapons, and in southern Ohio, we've enriched uranium for
nuclear submarines and power plants.
This short history doesn't include the other Department of
Energy facilities in Lucky and Painesville, in Ashtabula and
the larger city of Columbus. Every month, literally, my office
receives requests from constituents asking for help in
navigating this complex and complicated program.
In August, Deb Garrison, from Yellow Springs community in
Green County near Dayton, shared her EEOICPA experience with my
office. She told me how her father died in 1960, just 3 years
after retiring from his 8 years of service at the Mound Lab in
Miamisburg. She described how her mother, attempting to file
for compensation, could not complete her claim as a result of
her own failing health. Picking up where her mother left off,
Ms. Garrison, after months and months of work, is still
navigating the bureaucracy. She's now in a fourth dose
reconstruction, has no real idea when her mother's claim will
finally be resolved.
Sadly, her story is not unique. I'm sure all of us here
today have heard similar stories from Tennessee constituents,
New Mexican constituents, others.
The list of hurdles this program faces is not short, many
of the program's claimants are older, sometimes ill, often
dealing with rare diseases that the medical community is still
learning about. Records needed to substantiate work histories
and job descriptions are still classified, sometimes, simply,
they don't exist.
But these obstacles can't be excuses. Reports of the
program's delays and inaction and ineffectiveness are not
simply just disheartening and disappointing, they're a breach
of trust from our government to our citizens.
Former nuclear workers shouldn't have to navigate an overly
complex and seemingly never-ending bureaucratic maze, or be
required to prove the un-provable. They deserve a program that
treats them with dignity and respect, they deserve fair
judgments, and timely, transparent process. They deserve the
compensation promised to them.
As this hearing moves forward, our priorities must not be
to point fingers, we must focus on the claimants and their
experiences examining the details of the program from their
perspective. We must stay focused on Ms. Garrison and all of
the people like her, struggling to make sense of this program.
Thank you, Mr. Chairman.
Senator Bingaman. Senator Allard.
Statement of Senator Allard
Senator Allard. Mr. Chairman, I do have a brief statement,
and first of all, I just want to thank you and Senator
Alexander both for putting together this hearing.
This is important to those of us who come from States where
we have Department of Energy employees who have worked around
nuclear facilities.
I appreciate the testimony of the witnesses here today, and
I would like to extend a special welcome to the workers and
their families who are in the audience. This hearing presents
an opportunity to discuss very important issues facing the
system, and process in place to compensate employees and their
families who worked in nuclear weapons facilities during the
cold war.
Enacted in 2001, and then amended again in 2004, the Energy
Employees Occupational Illness Compensation Act is essentially
a Federal workers compensation program designed to provide
benefits to certain nuclear workers and their survivors.
In my home State of Colorado, men and women of Rocky Flats
and their nuclear weapons facility sites on the Western Slope
have struggled for some time to receive compensation, but have
seen little resolution.
I've been supportive of the Rocky Flats workforce, and will
continue to be an advocate of their efforts. As a Member of
Congress who helped authorize the EEOICPA program, I know
firsthand that Congress' intent was to honor and care for our
cold war veterans, our Nation's heroes, who have become ill
while working at Rocky Flats, and other DOE facilities.
This program is about people and science, and doing the
right thing, not politics. Thank you, Mr. Chairman.
Senator Bingaman. Senator Murray, did you have a statement
you want to make?
Statement of Senator Murray
Senator Murray. A very brief one. Thank you very much, Mr.
Chairman, and Senator Alexander, for calling this hearing.
This is an important issue to me, because it does affect
many families in my home State of Washington. We have thousands
of workers at the Hanford plant near the tri-cities, who
produced plutonium for the Manhattan Project, and helped
America win World War II and the cold war. Now many of these
brave men and women are ill, as a result of their service, and
they and their families are suffering some of the painful
consequences of their commitment to our national security.
We're here today because it is our responsibility to ensure
that these men and women are receiving the compensation we
promised them, in a fair and timely manner. I'm really glad
we're holding this hearing, because I do have some questions
about how the Federal Government is administering this
compensation program. I'm concerned about how long it takes to
process claims, because many people are waiting far too long
for a final decision.
I'm very troubled that workers and their families find it
very difficult to get information about the status of their
claims, and I want to know what we can do to make this process
more transparent.
I'm especially interested to hear more about a recent
request by some of our Hanford workers, to get a special
classification that will make it easier for them to get their
benefits.
Our government has a responsibility to those who gave so
much of themselves to our country. These sick workers and their
families shouldn't have to struggle with a frustrating
bureaucracy as they seek their compensation.
Mr. Chairman, thank you very much for holding this hearing,
and I look forward to hearing from all of our witnesses today.
[The prepared statement of Senator Murray follows:]
Prepared Statement of Senator Murray
Thank you, Mr. Chairman, for calling this important hearing
to help us determine whether the Federal Government's
compensation program for our Nation's energy workers is serving
our cold war heroes adequately.
Many of these brave men and women and their families have
suffered painful consequences from their commitment to our
national security. We're here today because it's our
responsibility to ensure they're receiving the compensation
promised them in a fair and timely manner. I'm glad we're
holding this hearing, because I have questions about how the
Federal Government is administering the program:
I'm concerned about how long it takes to process
claims--too many people have been waiting far too long for a
final decision.
I'm also troubled that workers and their families
find it difficult to get information about the status of their
claims.
And I want to know what we can do to make the
process more transparent.
I know that many of the Senators here with me represent
States where these heroes worked for years. They've heard first
hand how exposure to dangerous radiation and toxic substances
affected families for generations. Unfortunately, the same is
true for the workers in my home State of Washington.
The Hanford facility, near the Tri-Cities in Washington
State, began more than 60 years ago as a plutonium production
site on the Columbia River. During its peak years, nearly
50,000 employees worked at Hanford, where they played a vital
role in the Manhattan Project. Residents of the surrounding
area sacrificed to help America win World War II and the cold
war.
Today, it is the Nation's most contaminated nuclear site
and the largest environmental cleanup project in U.S. history.
Nearly half the size of the State of Rhode Island--the site is
imposing. Approximately 11,000 workers are part of the cleanup
effort. We know that working with such hazardous materials
impacted the environment and harmed many of the workers who
dutifully served their country at a difficult time during our
Nation's history.
I've heard countless stories of workers and survivors
who've waited too long for a response to their concerns or
claims. Thousands in Washington State and across the country
are stuck in a long and arduous filing process that often
continues after the worker has lost their life to dangerous
exposures. The pain that accompanies illness and loss should
not be compounded by bureaucratic and administrative
frustrations.
During my time in the Senate, I've pushed the Federal
Government to do the right thing by those at Hanford--to
adequately compensate workers and their families and cleanup
the Hanford site for the well-being of those who live and work
in the surrounding communities. It's hard to believe that it's
been 6 years since I helped to create the Senate Nuclear
Cleanup Caucus--a bipartisan effort to increase funding for
nuclear waste cleanup. And I'll continue that fight until the
job is done.
Because of the incompetence of officials in processing
claims at the Department of Energy, 2 years ago a number of us
worked to move this compensation program to DOL. I'm anxious to
learn how things are going and what we can do better for those
who've suffered so much. As I said earlier, I have concerns
about how the program is being carried out. We must ask those
responsible for administering the program some basic questions:
How can we shorten the time it takes for a
claimant to get a final decision from the Department of Labor?
How can the Department better assist claimants in
retrieving their records?
How can the Department communicate more clearly
and openly with claimants?
How can we make the entire applicant process more
accessible, transparent, and user-friendly?
And I'm particularly interested to hear more about a recent
request by Hanford workers to get a special classification that
will make it easier for them to get benefits.
As we examine these critical questions, I would encourage
the agencies involved to hold themselves accountable to these
heroes and their families by measuring their service and making
the process as transparent as possible.
I would also encourage the Department of Labor to maintain
the office of the ombudsman so that applicants have a place to
go for help navigating such a complex program. I applaud the
work that the office has done over the last 2 years.
Mr. Chairman, our government has a responsibility to those
who gave so much of themselves for our country. These sick
workers and their families shouldn't have to struggle with a
frustrating bureaucracy as they seek compensation. I look
forward to hearing from the witnesses about the government's
progress with this program, and learning more about how we can
make it more responsive to the thousands of claimants still
waiting for a decision.
Senator Bingaman. Well, thank you very much.
We have two panels of witnesses. On the first panel we have
Shelby Hallmark who is the Director of the Office of Workers'
Compensation Programs in the Department of Labor, thank you
very much for being here.
Dr. John Howard, who is the Director of the National
Institute for Occupational Safety and Health, thank you very
much for being here.
Mr. Malcolm Nelson who is the Ombudsman with the Energy
Employee Compensation Program in the Department of Labor. Thank
you very much.
Also, Senator Harry Reid has indicated that he would like
to come and make a statement to the committee. Because of his
time pressures, if he does come, I may insert him in between
one of you witnesses, I'm sure you can understand that. But why
don't we go right ahead and hear from each of you in the order
that I introduced you, and then we will have some questions.
Mr. Hallmark.
STATEMENT OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, WASHINGTON, DC.
Mr. Hallmark. Good morning, Mr. Chairman, and committee
members. It's my pleasure to be here to discuss the Department
of Labor's management of the Energy Employees Occupational
Illness Compensation Program Act or as we call it, EEOICPA. The
Program actually got off to a slow start, because it takes so
long to read the name.
The question today, is EEOICPA being administered well and
is it claimant friendly.
DOL recognizes nuclear weapon workers' service to our
Nation, and the hardships many have endured. We know how long
they've waited for compensation; first for the passage of this
statute, and then for their claims to be processed, in some
cases, multiple times.
We are also aware that most of our claimants are elderly
and seriously ill. My written testimony explains at length the
many ways that our program at DOL reaches out to inform, assist
and support these workers and their families, often helping to
prove claims in ways that the families aren't even aware of.
But, I also hear about special efforts that we've made on a
particular case. Just last Wednesday, our office in
Jacksonville learned of a former Oak Ridge worker who had been
given no more than 24 hours to live. They had already done an
expedited award for this gentleman, but forms needed signing,
and there was little time. Our resource center manager there at
Oak Ridge went to the hospital personally, and obtained the
signatures from this sick individual. Staff in Washington, DC.
talked Treasury into issuing a same-day payment--which they
don't like to do--and on Thursday, this gentleman was comforted
to learn that his family had the money in-hand. He,
unfortunately, died on Friday.
These kinds of stories are repeated time and again. On
October 1, for example, Jacksonville got a brand-new claim from
a terminally ill Oak Ridge woman. Somehow, they managed to
issue payments totaling $387,500 on October 9. Had they not
done that, her entire benefit would have died with her, because
she did not have eligible survivors. She died on October 14.
Beyond the question of service and assistance, however, the
true test of this program is whether those Congress intended to
be compensated are, in fact, getting paid. By this measure,
EEOICPA is clearly exceeding expectations. In just over 6
years, DOL has paid out more than $3.2 billion to nearly 35,000
recipients. That is a real achievement.
Very few of these workers won State Workers' Comp benefits,
and in 4 years of the old Part D program, the Department of
Energy, only a million dollars was paid out.
CBO assumed in 2000 that only 460 individuals would be paid
via the dose reconstruction process in 10 years. In fact, there
have been 4,900 such payments in only 6 years. And CBO
estimated an $840 million payoff for Part E in 10 years, and
DOL has exceeded that amount in less than 3 years.
When clearly invalid applications are set aside, more than
half of Part B and Part E cases are being approved. The current
program, whatever its faults, is delivering benefits.
The last key measure of claimant friendliness is the speed
with which decisions are rendered. Workers and their families
deserve an expeditious decision, even though their cases are
complicated. In this arena, we have not been as successful as
we would like. The dose reconstruction process is complex and
time-consuming. Although it's getting quicker now, on average,
since the beginning of the program, it's taken 2 years for a
case to clear through NIOSH, and nearly 3 years when DOL's
additional processing to those cases is added.
I don't blame claimants for being frustrated with that kind
of delay. We are able to decide Part B cases that don't go to
NIOSH more rapidly, at about 250 days. That's still not fast
enough.
With the advent of Part E in 2005, DOL is obliged to take
on an entirely new program, it's huge AIDs backlog, and to meld
it with our existing one. We promised those who have been
waiting for years at DOE that they would not have to go to the
back of the line. And we followed through on that promise.
Our key goal last year was to issue at least an initial
determination on every single one of those cases we inherited
from DOE, that was 26,000 cases. I'm proud to say we met that
goal on the last day of the fiscal year. That group of
claimants has now received almost one-half billion dollars in
Part E benefits.
Unfortunately, the need to focus on those old cases, plus
the addition of new, special exposure classes, and the need to
reopen and send thousands of cases back to NIOSH due to changes
in their procedures, has slowed DOL processing of the newer
claims. I'm not satisfied with our current processing speed,
but we will fix it. We're committed to erasing the backlog of
claims and reach a steady stayed posture by the end of this
fiscal year. To do so, I've authorized staffing up immediately
from our 525 current Federal employees, to nearly 600 FTE.
We work hard to get payments to eligible claimants, but
some don't meet the legal criteria and it's also our job to
promptly, objectively and sympathetically tell those claimants
no. This isn't easy for anyone to hear. Most are convinced that
their work caused their illness, and some are sure that denials
mean that the government is simply abusing them all over again.
I can't speak for the cold war past, but the Department of
Labor is delivering this program in accordance with the law,
and with all the fairness, compassion and speed we can muster.
I'll be happy to answer your questions.
[The prepared statement of Mr. Hallmark follows:]
Prepared Statement of Shelby Hallmark
Good morning Chairman Kennedy, Ranking Member Enzi and members of
the committee. My name is Shelby Hallmark and I am the Director of the
Office of Workers' Compensation Programs, a component of the Employment
Standards Administration of the U.S. Department of Labor (DOL). I am
pleased to appear before the committee today to discuss our efforts to
fulfill the promise made to veterans of the cold war with the enactment
of the Energy Employees Occupational Illness Compensation Program Act
(EEOICPA). During the cold war era, thousands of workers served the
Nation in building its nuclear defense programs. Many of these workers
were exposed to radioactive and toxic substances that caused serious
illness or death. The EEOICPA compensation and benefits provided at the
Federal level are intended to minimize the financial hardships of
claimants who have developed occupational illnesses related to the
production and testing of nuclear weapons.
In previous testimony, I have highlighted the dedication of the DOL
staff to ensure that we adjudicate claims and provide benefits to
eligible workers and their survivors in a manner that is timely, fair,
consistent, and according to the law as enacted by Congress. We do our
best to administer the program in the best interest of the workers and
survivors for which it was intended, and as outlined in the statute--
and we believe the results demonstrate that the promise of the statute
is being kept.
``is eeoicpa being administered in a claimant friendly manner?''
DOL has been working since the inception of EEOICPA to address the
concerns of stakeholders. We have designed and implemented our program
to provide a wealth of assistance and multiple opportunities for
claimants to obtain information, request reconsideration of decisions,
and otherwise better understand the process. I will outline some of
those efforts below.
In any compensation program, including EEOICPA, the administering
agency has a dual role of service to claimants and program stewardship.
Stewardship means we must adhere to the statute's eligibility criteria
established in law, and thus some claims will be unsuccessful. Even for
denied cases, however, DOL seeks to provide as clear, helpful, and
prompt a process as possible, so that claimants fully understand why
they received the decision they did, and what their options are if they
disagree.
the adjudication process
Our adjudication process is the primary means whereby we assist
claimants in pursuing and perfecting their claims. At the outset, DOL
moved quickly to establish a fair but streamlined and flexible
adjudication structure. Thanks to the dedication of our staff and
managers, we have been able to modify our strategies over the years to
address the frequent and substantial changes in this program. From the
start we have been keenly aware that EEOICPA is a complex law and that
our claimants are generally ill and elderly, and have been awaiting
compensation for their sacrifices for a long time. Our staff works hard
to process claims fairly and promptly, and has made extraordinary
efforts to help suffering nuclear workers and their families.
DOL strives to clearly inform claimants about EEOICPA requirements
and benefits as well as DOL's adjudication process, including the
process for objecting to our decisions. In the first phase, DOL (via
our Resource Centers) helps claimants gather information and file
applications for benefits. Next, the claim is forwarded to a DOL
district office for development and adjudication. During the
development phase, claims examiners do all they can to help claimants
collect evidence to support their claims. Following collection and
review of the evidence, the district office will issue a recommended
decision to accept or deny benefits.
If the case involves a claim of radiation-induced cancer, and is
not covered by a Special Exposure Cohort (SEC) class (i.e., the cancer
was not 1 of the 22 listed cancers for which SEC covered claims are
presumed to have been caused by workplace radiation, or the work was
not at an SEC facility, or the work was at an SEC facility but did not
meet the 250-work day requirement), DOL must request and receive a dose
reconstruction report from the National Institute for Occupational
Safety and Health (NIOSH) before issuing a recommended decision. DOL
then uses the information in NIOSH's report to determine if the
worker's exposure meets the statutory minimum test that the illness had
a 50 percent or greater probability of being caused by work-related
exposure. In these cases, the ``probability of causation'' outcome is
the key determinate in the recommended decision.
All recommended decisions are sent to the claimant with a detailed
explanation of the decision, as well as an explanation of the
claimant's rights and the process for formally objecting to the
recommendation. At this point, the recommended decision is also
forwarded to the Final Adjudication Branch (FAB) for a final decision.
The FAB is a separate and independent component from the district
office. In the final decision phase, claimants can object to the
recommended decision and have a formal review of the written record or
an oral hearing. The FAB may also remand a decision back to the
district office if further development of the case is needed.
Ultimately, the FAB reviews all recommended decisions and any evidence/
testimony submitted by the claimant and issues a final decision.
The last administrative step, reconsideration, is for the
claimant's benefit. If the claimant objects to the final decision, he/
she may request a reconsideration of the claim within thirty (30)
calendar days. As a further protection for claimants, we do not close
the evidentiary record when our administrative process is completed. A
claimant may request a reopening of his or her claim at any time if
there is new or compelling evidence. Lastly, the claimant may appeal a
final decision to the U.S. District Court.
This procedural structure provides the foundation for a system of
claims adjudication that allows for multiple opportunities for
claimants to perfect their claim. However, we do not rely only on our
administrative procedures to provide claimants every possible
opportunity to receive a positive outcome; we make efforts at each
stage of the process to assist them. We strive to foster an
organizational culture wherein our claims staff knows their job is to
ensure that all eligible claimants are compensated, not merely to close
claims as quickly as possible.
dol claimant assistance, customer service and outreach
The EEOICPA is complex in terms of its clientele, the exposures and
types of diseases involved, the science used in determining causation,
the multiple agencies engaged in delivering the program, and the
various types of compensation and medical benefits available. A total
of 64,187 workers are represented by the 108,172 cases reported under
the EEOICPA. This includes employees who worked in a broad range of
occupations and professions at one (or more) of the 130 facilities
identified as Department of Energy (DOE) facilities, 200-plus
facilities identified as atomic weapons employers (AWEs), 70-plus
beryllium vendors, and 4,000-plus uranium mines or mills covered by the
EEOICPA. These workers suffer from a broad range of illnesses. In some
cases, we have experienced difficulty in locating employment records to
support claims. Many claimants have found it difficult to obtain
documentation that can establish exposure to radiation and toxic
substances due in large part to the secrecy and lack of information
available about nuclear weapons production processes. Others struggle
to locate medical records. Nearly all find it difficult to understand
the complexities of the statute, and the differing eligibility rules
under its various provisions. Their advanced ages and poor health only
magnify these difficulties. If the worker is deceased, the survivors
may not even be aware of their parent's, grandparent's or other family
member's work history and may not have access to the documents and
records required to support a claim.
All of these factors have required extraordinary efforts by DOL to
not only inform the public about EEOICPA but to assist covered workers
and their families who may be eligible for benefits. DOL continues to
employ a wide range of outreach activities to educate the public and to
provide specific assistance to claimants in completing forms,
navigating through the process of submitting evidence and other
information, and understanding the adjudication process from start to
finish.
assistance in obtaining employment verification
DOL understands the difficulties claimants may have in locating
employment records that are necessary to substantiate a claim, and has
taken steps to provide meaningful assistance. DOL and DOE use a DOE
database for on-line employment verification of some claims. DOL also
has a contract with the Center to Protect Workers' Rights (CPWR) to
secure employment information for subcontractors. For example, CPWR
helps to obtain information about construction workers who may have
been exposed at DOE sites but whose employment information was not
captured in DOE's prime contractor data sets. DOL also works with DOE's
Former Workers Program, and with other contractors, to locate
appropriate records that are not immediately available through DOE.
These key relationships help relieve the burden on the claimants to
attempt to locate records. Another source of information is the Social
Security Administration; with the claimant's permission, we can request
earnings data to verify a claimant's work history.
resource centers
DOL operates 11 Resource Centers (RCs)\1\ where knowledgeable staff
work one-on-one with claimants to file forms, and gather and submit
pertinent information for their claims. These RCs are located near
major nuclear weapon production and testing facilities to serve
locations with the highest claimant populations. The RCs handle the
initial intake of information from claimants (i.e., claims forms,
occupational history, and employment verification \2\ and send
completed claims to the DOL's district offices. RC staff meets face-to-
face with claimants and works via DOL's toll-free telephone service to
provide all relevant information at the initial stages of claim
submission and to answer any questions. They also participate in
numerous local events to communicate with various stakeholder groups
and potential claimants. We monitor the performance of the RCs via
accountability reviews and direct feedback from our district offices,
and they continue to provide high-
quality service to claimants.
---------------------------------------------------------------------------
\1\ Resource Center locations include: Livermore, California;
Westminster, Colorado; Idaho Falls, Idaho; Paducah, Kentucky; Las
Vegas, Nevada; Espanola, New Mexico; Amherst, New York; Portsmouth,
Ohio; North Augusta, South Carolina; Oak Ridge, Tennessee; and
Richland, Washington.
\2\ To date, RCs have processed more than 16,600 employment
verifications and over 15,400 occupational history questionnaires.
---------------------------------------------------------------------------
special impairment and wage-loss benefits projects (part e)
In 2006, DOL recognized that many claimants (including those who
received a positive causation determination) were not submitting Part E
claims for impairment and wage-loss benefits, due to their confusion
over the complexity of the benefit structure. In response, we
immediately tasked the RCs with the critical role of helping claimants
understand their potential eligibility for Part E benefits. RC staff
contacted eligible claimants to explain impairment and wage-loss
benefits and offered one-on-one assistance to individuals who sought to
file claims.
Because of our concern that many living workers appeared to be
uncertain about filing for Part E impairment or wage-loss benefits, we
established a special performance target for the district offices to
ensure that at least half of the cases potentially eligible for such
benefits would receive a decision on that issue in fiscal year 2007. We
exceeded that goal, with 58 percent of the cases receiving a decision
or an affirmative determination that the claimant did not want to
pursue such benefits. As a result of this effort, we made over 1,250
impairment-rating payments in fiscal year 2007--a six-fold increase
from fiscal year 2006.
avoiding ``extinguished claims''
Because many of our claimants are elderly and very ill, we try to
see to it that eligible claimants who are near death receive their
benefits. However, when a claimant dies before a decision is made or
before receipt of benefits, DOL will work with the survivors to reapply
and to speed that process. While the death of even a single eligible
employee or survivor prior to payment is extremely unfortunate, our
records show that this rarely occurs. Of the more than 20,000 Part B
cases and 14,000 Part E cases that have an initial decision awarding
benefits, only 64 cases involved eligible workers or survivors who died
before payment and the benefits were ``extinguished'' (that is, no
other member of the family was eligible). In 35 of the 64 cases, the
family received Part B payments, but could not receive Part E benefits,
primarily because the definition of ``survivor'' in the Part E statute
is narrower than that specified in Part B. For the remaining 29 cases,
no payments were made under either Part B or Part E of the Act. We
regret that any family suffers in this way, and our staff continues to
work as diligently as possible to prevent this unfortunate scenario
from occurring.
roundtables on toxic exposures
DOL also understands the difficulties claimants have in locating
exposure records that are necessary to substantiate their claims. DOL
has sent teams to DOE facilities to work jointly with DOE to collect
records that describe the types of toxic materials present at DOE work
sites and how these materials were used. Since 2006, DOL has conducted
86 roundtable meetings nationwide, meeting face-to-face with 918
workers from 48 DOE sites. The roundtable meetings have allowed DOL to
identify toxic materials present at DOE sites, learn how the toxic
materials were used, investigate how workers may have been protected
from those substances, and find out whether there were any toxic
material incidents. During these meetings, workers were encouraged to
provide documents that might shed light on the use of toxic substances
at the site or to provide information they may have regarding where
such documents may be found. These efforts have proven invaluable and
have resulted in over 100 toxic substances being identified and
verified at DOE sites that may not have otherwise been found. DOL also
has interviewed former workers of Radiation Exposure Compensation Act
(RECA)-covered facilities in the uranium mining and milling industry.
district medical consultants (dmcs)
DOL also contracted with more than 200 physicians throughout the
country to assess medical evidence used in issuing decisions related to
causation and impairment. The DMCs work with DOL to review particularly
difficult claims and assist in cases where claimants do not otherwise
have access to a physician who can provide an impairment evaluation
utilizing the AMA Guides.
site exposure matrices (sem) database
Another way that we help claimants in assembling their evidence is
through the Site Exposures Matrices (SEM) database. In fact, for the
great majority of claimants, the SEM relieves some of the burden of
providing information and records regarding workplace exposures. After
years of work with DOE, we developed the SEM in 2006 to be a repository
of information on toxic substances present at covered facilities. This
information can be accessed by our claims examiners and by claimants
(via DOL's public Web site). While inclusion in the SEM is sufficient
evidence of the presence of specific toxic substances, our claims staff
makes additional efforts if claimants allege exposure to substances not
found in SEM. The SEM database now houses information on 2,581 toxic
substances/chemicals at 33 DOE sites, as well as 4,170 uranium mines,
48 uranium mills, and 17 uranium ore-buying stations covered under RECA
and EEOICPA.
extensive dol eeoicpa web site
This year, DOL updated and improved its EEOICPA Web site. The Web
site allows claimants to access claim forms and to complete and file
claims electronically. The Web site also provides searchable access to
the program's regulations, procedures, and instructive final decisions;
a link to the list of covered facilities; the program's current
statistics, including claims status and payments made at every EEOICPA
site; links to NIOSH, DOE and the Department of Justice (DOJ); a page
for medical providers; and information on the medical billing process.
The public also may access an online version of our SEM database and
may submit information relative to worksite toxic substances. This
effort has resulted in several hundred substances being identified and
added to the SEM.
access to dol district offices and final adjudication branch
Each of our four district offices and the Final Adjudication Branch
have toll-free telephone lines and provide prompt response to thousands
of inquiries each year. The quality and promptness of staff responses
to telephone calls and letters is monitored at the office and
individual employee level, and improving the accuracy and timeliness of
responses will receive increased focus in fiscal year 2008.
town hall meetings
DOL remains dedicated to reaching out to the public to increase
awareness of the EEOICPA and to alleviating the burden on the claimants
by assisting them at all stages of the adjudication process. Since the
beginning of the program, our Traveling Resource Centers have provided
program information and claims assistance to people who live outside
the immediate areas of our district offices and RCs. DOL also held
numerous, well-publicized Town Hall Meetings in various locations
throughout the country where there was a significant population of
individuals currently or formerly employed at covered facilities. DOE,
DOJ, and NIOSH have participated in these meetings, providing
information and answering questions about their responsibilities under
the statute. DOL has continued these meetings as new regulations and
procedures are developed. We also have held Focus Group meetings with
claimants, as we have realized that claimants' questions about medical
benefits and Part E benefits have demanded more personal attention.
In 2007, Town Hall and Focus Group Meetings were held (or will soon
be held) in Oak Ridge, Tennessee; Kennewick, Washington; Albuquerque
and Santa Fe, New Mexico; and North Augusta, South Carolina. These
meetings give DOL officials the opportunity to meet with claimants who
were identified as having a positive causation determination, to
explain additional wage loss and impairment benefits available to them
under Part E, as well as to obtain feedback on the claims process. The
focus groups give claimants an opportunity to discuss the difficulties
they have encountered with the medical bill payment process. As a
result of the feedback we have received, DOL is increasing our outreach
efforts to medical providers and is taking steps to simplify the
medical provider enrollment process. DOL has also developed an action
plan to make our processes more claimant-friendly.
outreach to reca claimants (uranium miners, millers and transporters)
DOL has also strengthened its outreach to RECA claimants. There are
three federally funded programs assisting uranium workers potentially
eligible for some form of Federal compensation: (1) EEOICPA--
administered by DOL; (2) the Radiation Exposure Screening and Education
Program--administered by the Department of Health and Human Services
(HHS); and (3) RECA--administered by DOJ. These agencies are hosting
town hall meetings to provide general program information to uranium
workers regarding EEOICPA benefits and those of the HHS and DOJ
programs. Meetings were held on October 2, 2007 in Grand Junction,
Colorado, and on October 4, 2007 in Moab, Utah. Additional town hall
meetings are scheduled for November 14, 2007 in Shiprock, New Mexico,
and November 15, 2007 in Grants, New Mexico.
significant administrative challenges remain for eeoicpa
DOL has faced major challenges as the program has matured and
changed--with the resultant shifts in workload and priorities. Most
notably, in 2004, after nearing steady state in our handling of Part B
claims, we were tasked with the new Part E program. During fiscal year
2005-2007 we devoted the lion's share of our attention to implementing
Part E, which involved our management of 25,000 aged cases from the
DOE's old Part D operation. Unfortunately, most of the old Part D (now
Part E) cases were already 4 years old when we received them. Part of
our representation to Congress at that time was that these individuals
would not have to ``go back to the end of the line,'' and we have
worked hard to keep that commitment. I will address our actions to
fulfill that promise in greater detail later on, but as of September
30, 2007, all cases that we had inherited from DOE have received at
least an initial determination.
In addition, to ensure that Part E claimants receive all benefits
due, we focused on identifying and paying valid impairment rating cases
during fiscal year 2007. These initiatives were successful, but as a
result of our necessary focus on older cases, the speed with which DOL
could address newer claims, both Part B and Part E, was diminished.
Similar impacts have been, and will continue to be, felt by DOL as
a result of program changes emanating from NIOSH. These include the
creation of new Special Exposure Cohort (SEC) classes and NIOSH changes
to its dose reconstruction procedures--activities that consume the time
of both DOL and NIOSH to identify cases that need to be either
withdrawn from or returned to NIOSH for a new dose reconstruction.
These issues are described in greater detail below. The addition of new
SEC classes (24 classes to date) has required analysis and dialogue to
fully understand this evolution and its potential impact on the
program.
new sec designations
In the early years of the program, it was believed that few, if
any, additions to the SEC would be made, and that any new classes would
be narrowly drawn. NIOSH was confident that they could do a dose
reconstruction for almost any case. As the program matured, NIOSH found
that many types of data were missing or could not be relied upon for
dose reconstructions--giving rise to the addition of new SEC classes.
As HHS determines and introduces new SEC classes into the claims
process, DOL's role is to adjudicate claims based on the definitions of
these classes, explain the effect of HHS's SEC decisions to
stakeholders, and ultimately, assist DOJ in defending compensation
decisions in Federal district court.
For each new class, DOL, in consultation with NIOSH, advises its
claims staff on how to interpret the class definition, and how to
identify which cases are covered by the class (and thus need immediate
processing under presumptive rules) and which are not. When an HHS SEC
designation contained an imprecise class definition such as the first
Y-12 designation--DOL staff encountered greater problems in
adjudicating the coverage of the class, and those cases took longer to
decide. DOL now works with NIOSH to ensure that the class definitions
are precise and can be properly interpreted by DOL staff. This has
resulted in increased timeliness.
Under the statute, the designation of a class as an SEC means that
members of the class who suffer from one of the cancers listed in the
statute are presumptively entitled to Part B benefits. Since each new
SEC class designation is unique in its rationale and in its impact on
how (or if ) dose reconstruction can be done for those cancers that do
not have presumptive entitlement, DOL and NIOSH have had to coordinate
unique procedures for each class. For example, if a worker from an SEC-
covered facility has a non-presumptive illness, typically NIOSH will
only be able to conduct a ``partial dose reconstruction'' because some
data has been found to be missing or unusable. If the outcome is
negative for the worker, DOL staff must then explain to the claimant
why the SEC designation had this negative impact on him or her.
When a new SEC class is designated, DOL takes steps to ensure that
workers' claims are reviewed timely for potential inclusion in the SEC
and rapid payment for those who are covered. However, the complexity of
this process and the slow unfolding of new SEC classes have reduced the
overall speed and efficiency of the claims process, and often leaves
claimants and other stakeholders confused while waiting for a
determination. For example, an SEC class was declared for a small
subset of buildings within the Los Alamos National Laboratory in
December 2006, only to be subsumed in a larger SEC class declared 6
months later. Similarly, before NIOSH determined that an SEC class was
required for the Hanford site for the World War II era, it had already
completed 328 of 378 relevant dose reconstructions (86 percent of cases
involving the years in the SEC).
the dose reconstruction process
The dose reconstruction process is complex, confusing to the
public, and time-
consuming. Our records show that, on average, cases requiring dose
reconstruction have taken over 2 years and 10 months to reach a final
decision. Of that time, the case remains with NIOSH for an average of
over 2 years. I should note that during the past year, NIOSH's time to
produce dose reconstructions has been reduced significantly. In these
cases, DOL must wait for NIOSH to perform the dose reconstruction and
return the results to DOL before we can adjudicate the claim. Since the
inception of the programs, our statistics on cases where no dose
reconstruction is required from NIOSH indicates that it takes DOL an
average of 6 months to issue a recommended decision, and an additional
73 days to issue a final decision. Unfortunately, in fiscal year 2007,
the DOL-only average for Part B recommended decisions rose by about 60
days as we focused on eliminating the old Part D backlog that we
inherited from DOE. We will continue to work to reduce the average time
it takes to complete our processes, and expect this measure to improve
over time. For SEC claims that had to be withdrawn from NIOSH, our
records show that these SEC claims have taken an average of 1,278 days
to reach a final decision. Of that time, the case remained with NIOSH
for an average of 905 days. The following chart demonstrates these
comparisons.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
DOL's claims process requires that a claims examiner, after
receiving a dose reconstruction report from NIOSH, review the report
for accuracy and consistency prior to issuing a recommended decision on
a case. Therefore, claims examiners will check for anomalies in the
reports which require further analysis. For example, if a dose
reconstruction was conducted based on a different cancer than the one
used by NIOSH in its initial dose reconstruction, or additional
evidence was received following or during a dose reconstruction that
reveals additional employment evidence and/or medical evidence, a
claims examiner will initiate a rework of the dose reconstruction. In
all instances, if the information may change the outcome of the dose
reconstruction or can affect the accuracy of the case, DOL will request
a rework.
As of March 31, 2007, Labor had returned 2,811 cases to NIOSH for
rework. Many of these cases were returned to NIOSH as a result of new
evidence. The vast majority (87 percent) of the cases returned for
rework did not previously meet the statutory minimum of having at least
a 50 percent probability of causation (POC) based on NIOSH's initial
dose reconstruction, and thus the affected claimants would likely not
have received compensation. After the rework, 385 of the denials/
negative cases were switched to approvals; and 41 of the positive cases
were switched to denials. While reworks often lead to favorable
decisions for some claimants, they represent another workload factor.
Recently, the pace at which cases must be returned to NIOSH for
rework of the dose reconstruction has substantially increased because
of the modifications NIOSH has made to its scientific procedures for
performing a dose reconstruction. Neither NIOSH nor DOL want to add
further unnecessary paperwork and heartache for claimants who were
previously told they were ineligible--only to have that bad news
repeated as a result of the rework. However, if it is possible that the
change may alter the dose reconstruction so that a previous denial may
be overturned, DOL and NIOSH have agreed that these claimants should
receive a new dose reconstruction report so their due process rights
are protected. If NIOSH cannot determine the potential impact of the
change in its procedure, we refer the case to NIOSH for a determination
if a new dose reconstruction is necessary. To date, we are in the
process of returning over 4,400 cases to NIOSH for new dose
reconstructions based on NIOSH's identification of cases that may be
affected by the new procedures, and we are referring about 5,000
additional cases to NIOSH for case-specific determinations on the need
for a new dose reconstruction.
We work as closely as possible with NIOSH on all of these issues,
conferring at the staff level on at least a weekly basis to streamline
the handling of the SEC class and dose reconstruction issues. However,
as indicated by the sheer numbers of cases requiring return, rework,
SEC consideration, partial dose reconstructions, or notification of
NIOSH evaluation of a possible rework--these changes have created a
substantial and growing burden on DOL's adjudication process and
decisional timelines.
program accomplishments
Despite these challenges, DOL has made great progress since 2001 in
implementing Part B of the Act--and similar progress since October 2004
in implementing Part E. We have set ambitious performance targets--and
consistently exceeded those targets--to ensure that workers and their
families, who have waited so long for compensation, receive prompt and
accurate decisions. An analysis of the overall program statistics shows
that the Energy Compensation program is moving forward, despite its
complexity and ongoing change. We continually seek new ways to improve
and streamline our compensation system and embrace the valuable input
of the workers and families we serve.
It has been 6 years since Secretary of Labor Elaine L. Chao issued
the first EEOICPA benefit check on August 9, 2001. Since then, DOL has
paid nearly $3.2 billion in total EEOICPA compensation and medical
benefits to workers and their survivors. Under Part B, DOL has issued
more than 27,000 payments with compensation totaling nearly $2.2
billion. Under Part E, DOL has made nearly 7,400 payments with
compensation totaling nearly $850 million.
Despite these significant accomplishments, some suggest that DOL
has denied a high percentage of claims for budget reasons and is
antagonistic toward claimants. No such animus exists, and I believe
that impression rests in part on a misunderstanding of the statute's
requirements. While anyone can file a claim, many applications have
been filed that do not meet the statute's basic requirements for
eligibility. This is especially true for those who filed Part B claims
early in the program, as many of these individuals did not have one of
the three medical conditions required for Part B eligibility.
Similarly, many ``adult children'' of deceased workers filed Part D
(later Part E) claims who did not meet the narrower survivor definition
that Congress created for Part E.
If we set aside those applications that do not meet the statutory
minimum requirements, our records show that over half of the remaining
claims have been approved under both Parts B and E. Specifically, since
2001, DOL has received over 59,000 Part B cases and has issued final
decisions on 83 percent of them. Almost 20,000 have been approved for
payment (55 percent when non-covered applications are set aside), with
nearly $2.2 billion in compensation so far.
After Part E's enactment in 2004, DOE transferred over 25,000 aged
Part D cases to DOL. In response to this new workload, DOL identified
certain quick decision claims that met specific, straightforward
criteria contained in the amendment. Within 2 months of Part E's
enactment, DOL was paying claimants under the newly established Part E.
Further, DOL is especially proud of its success in addressing the
backlog of aged DOE cases. DOL has focused on doing everything it can
to speed the processing of these cases, which clearly deserved to be
prioritized, given the long wait these claimants have endured. For
fiscal year 2007 we set and met a goal to issue at least an initial
determination for all 25,000 cases inherited from DOE. Additionally,
DOL has paid nearly $500 million in Part E benefits to this group of
claimants.
Our total Part E workload of 48,925 claims includes more than
23,000 new Part E claims. Notably, more than 8,000 (17 percent) Part E
claims were ``non-covered,'' mostly from ``adult children'' who did not
meet the basic requirements for eligibility. To date, DOL has issued at
least one final decision on over 70 percent of the (old and new) Part E
cases. When non-covered claims are set aside, our approval rate on
covered Part E cases is over 51 percent. To date, DOL has approved
about 13,500 Part E cases, with payments totaling nearly $850 million.
summary
The record of DOL's administration of EEOICPA demonstrates that our
Nation's promises made to our cold war veterans are being kept. Over
34,000 eligible workers and their survivors have received more than
$3.2 billion in benefits and medical reimbursements; we have eliminated
the Part D backlog; and litigation remains remarkably low.
DOL continues to strengthen its processes and procedures, maintain
its outreach efforts, improve its service to claimants, and adjudicate
and pay eligible claims as promptly and accurately as possible. We have
continually re-evaluated the program's performance goals and
strategies, and we remain proactive in addressing the many program
changes that have challenged our operation. I am proud of the efforts
of our staff in carrying out the important mission of this program.
I will be glad to answer any questions the committee may have.
Senator Bingaman. Thank you very much. As I indicated,
Senator Reid wanted to make a statement on this issue, and why
don't we go ahead and hear from him, because I'm sure he has
other commitments this morning.
So, Senator Reid, go right ahead?
Statement of Senator Reid
Senator Reid. Mr. Chairman, thank you very much, I
appreciate the attendance of the other members.
This hearing is very important, dealing with securing
compensation for sick atomic weapons workers. I've been working
on this for a long period of time.
Our country has made progress over the past decade, but the
Employees Compensation Program is still finding thousands of
cold war veterans who now have cancer and other illnesses. The
meetings I hold with these folks in Nevada is really sad--a
room full of people who are very, very sick.
The program needs some help, and this hearing is a step in
the right direction. Eight years ago, I joined with my
colleagues to pass bipartisan legislation to recognize the
sacrifices made by these weapons workers. We passed the Energy
Employees Occupational Illness Compensation Program Act to
provide workers and their survivors with compensation medical
reimbursement.
But sadly, years after this program was created, many
Nevadans with cancer, caused by their service working on atomic
weapons programs, still are concerned about the lack of care,
lack of attention. They tell me their sacrifices are being
ignored, and I hope this committee, as I know it will, begin to
find some solutions for them today.
Mr. Chairman, the workforce of the State of Nevada, at the
Nevada test site was huge, at least by Nevada standards, we had
over 11,000 workers there for many years. It's, of course,
dropped significantly.
Of the nearly 117,500 covered applications, 35,000 have
received compensation nationally. The situation is worse for
atomic weapons workers in Nevada. Fewer than 20 percent of
Nevada test site workers with qualifying illnesses have
received compensation.
This program has the right intentions, but it is failing
thousands of Americans who helped in the cold war. These
workers did not wear the military uniforms, they weren't even
military, but they're just as responsible as anyone else for
winning the cold war.
When the Energy Employees Occupational Illness Compensation
Program was crafted, we knew that the Department of Energy did
not consistently monitor atomic weapons workers for radiation.
These classified programs were highly secretive, and over the
years, records were lost or even thrown away. It's also nearly
impossible to estimate radiation exposure from some worker
deaths.
Mr. Chairman, to hear the stories of these workers, they
were exposed, they have dust all over them. They were told to
not even take a shower, continue working. On one occasion I was
told about a whole dormitory, they learned that the exposure
was more than it should have been, they were awakened in the
middle of the night, they were taken outside, they were sprayed
with a hose, water.
Information about nuclear testing is held very tightly, and
it's difficult, we understand, to verify some of these stories.
But there are witnesses, it's not as if a person is coming in,
basing it entirely on hearsay. I've heard these stories time
after time, and I would invite the committee to either send an
investigator out to hear some of these stories, or in some way,
I'd be happy to work with the committee to get some of these
stories so we can look at them, some of the horrible things
that went on. These are people who now are very, very sick, and
said they were not exposed to these real things that make you
sick.
Workers near Ground Zero at the Nevada Test Site, for
example, would be told not to wear these badges that were
supposed to indicate how much exposure to radiation you had, so
they could continue working even after they'd already received
a full year's dose of radiation. You're supposed to get so much
in a year, someone would get it in 3 months, someone would get
it in 1 day. And, if they wanted to keep working, they didn't
wear their badges anymore.
The government knew that these workers were exposed to
cancer-causing materials. If they didn't know, they should have
known. And these men, and a few women, were encouraged--and
sometimes ordered--to cover up information about the radiation
exposure levels.
We can't change what's already happened, but we can right
the government's wrongs. We can give these workers and their
survivors an easier path toward compensation. This program made
sure that streamlining the process was an option for special
classes, a special class of claimants. Within this program,
atomic workers can apply for Special Exposure Cohort status. If
they receive this designation, workers with qualifying cancers
are paid benefits without undergoing complicated dose
reconstruction. Reconstruction dose is difficult, if not
impossible, especially with the limited radiation monitoring
data and lost records.
All Nevada test site workers should have this Special
Exposure Cohort status. There were approximately 1,000 tests
held at the Nevada test site, the last one, 15 years ago. Men
and women who served at the test site after 1963 still have to
struggle through the program's red tape to be able to be even
considered for compensation for their illnesses. Only half of
these claimants even received a final decision.
Test site workers helped America win the cold war. Now that
we finally have a program to recognize their sacrifices,
thousands upon thousands of sick atomic weapons workers are
still being ignored.
Mr. Chairman, I have been to the test site, I call it, in
Hanford, Washington where you have these huge tanks of nuclear
waste, some of it leaking out, hopefully none of it going into
the river. Workers exposed to this, the test site, they were
asked to go back into these tunnels and shafts after a bomb had
gone off, quickly. Had to keep the work going, more tests were
coming.
The government then, they did this because they thought
they were doing the right thing, and they were told it wouldn't
make them sick. The government's implementation of the rest of
the Energy Employees Occupational Illness Compensation Program
should be drastically improved. The existing adjudication
process is failing to uphold the statutory mandate that the
process be claimant-friendly.
And Mr. Chairman, I don't really impugn the hard work of
Mr. Hallmark, I'm sure he's doing the best he can. But, I am
very troubled with the lack of quality assurance and
transparency and the Labor Department's claim adjudication
procedures. It's unacceptable that a government program of this
significance has so few quality controls in place. We need to
restore faith in the claims adjudication process.
Mr. Chairman, we tried to help World War II veterans. And
one of the reasons we try to work on some of the programs as
quickly as we can is they're dying, and it's the same with
these test site workers--they're dying. A significant obstacle
for sick atomic workers is the burden of proof they face to
receive compensation.
Under the Energy Employees Occupational Illness
Compensation Program, a claimant has the ultimate burden to
prove that his or her illness was related to radiation or
hazardous materials exposure at work.
This might seem like a standard burden, but remember, it's
the government's responsibility to maintain employment records
and information about radiation to which the workers were
exposed, and in many cases there isn't any. All they have is
the word of the workers and their colleagues who were there
with them.
And these stories that they tell about being awakened in
the middle of the night, put outside--they were not even told
to wash their clothes, they wore the same clothes, day after
day. Even with--and a lot of it had, now we've learned,
radiological dust on what they were working, and the clothes
they were working in. But the Labor Department doesn't have the
records for these people to prove their case, because some of
them didn't exist.
Even with our Labor Department's assistance developing
their cases, sick claimants ultimately pay the price. If their
employment and medical records are insufficient to meet the
high burden of proof or the government lost their records,
these workers likely won't receive compensation.
None of us intended for the program to be this unforgiving
to our cold war veterans. Workers were placed in harms' way,
yet they're asked to work through a complex process and
shoulder a substantial burden in showing that the cancer or
other illness was work-related. The least we can do is find a
way to give sick workers a better chance of meeting this
burden, so the program actually works in their favor.
Recently, Labor Secretary Elaine Chao acknowledged the need
to improve the processing of compensation claims. She noted
that the time is running out for many families, and that's an
understatement. It's simply taking too long to compensate many
workers.
So, Mr. Chairman, members of this committee, I appreciate
you giving me this opportunity to address the committee. The
Energy Employees Occupational Illness Compensation Program was
developed for a good purpose, but it has the potential to be
even more helpful to our Nation's atomic weapons workers. I
look forward to working with you and our colleagues to improve
this program, and to secure compensation for these people who
really are veterans in the true sense of the word.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Reid follows:]
Prepared Statement of Senator Reid
Thank you Chairman Bingaman for holding this hearing today.
Securing compensation for sick atomic weapons workers is
something that we've been working on together for a long time.
There is no doubt that our country has made progress over the
past decade. But, the energy employees compensation program is
still failing thousands of our cold war veterans who now have
cancer and other illnesses. We must fix this program, and I
think this hearing is a step in the right direction.
Eight years ago, I joined my colleagues to pass bipartisan
legislation to recognize the sacrifices made by atomic weapons
workers and help them live with terrible diseases caused by
exposure to radiation and other hazardous materials. We passed
this law, the Energy Employees Occupational Illness
Compensation Program Act, to provide workers and their
survivors with compensation and medical reimbursement in some
cases. Sadly, 8 years after EEOICPA was created, I still hear
from many Nevadans who have cancer caused by their service on
government nuclear weapons programs. They tell me that their
sacrifices are still being ignored. I am confident we can begin
to find some solutions for them today.
Of nearly 117,500 covered applications--covered
applications are from applicants whose employment and
sicknesses are covered by EEOICPA--fewer than 35,000 have
received compensation nationally. That is less than 30 percent.
The situation is even worse for atomic weapons workers in
Nevada. Fewer than 20 percent of Nevada Test Site workers with
qualifying illnesses have received compensation. Chairman
Bingaman, I think this program has the right intentions, but it
is clearly failing thousands of Americans who helped us win the
cold war.
When EEOICPA was crafted, we knew that the Department of
Energy did not consistently monitor atomic weapons workers for
exposure to radiation. These classified programs were highly
secretive, and over the years records have been lost or even
thrown away. It is also nearly impossible to estimate radiation
exposure from some nuclear tests, and monitoring for certain
cancer-causing radionuclides was simply inadequate. Information
about nuclear testing is held so tightly, it's sometimes
difficult to verify workers' stories.
And I've heard the same terrible stories time after time.
For example, workers near ground zero at the Nevada Test Site
would be instructed to not wear their dosimeter badges so they
could continue working, even after they've already received a
full year's dose of radiation. Think about that . . . the
government knew these atomic workers were exposed to cancer-
causing materials. And these men were encouraged to--sometimes
ordered--to cover up information about their radiation exposure
levels.
We cannot change what has already happened, but we can
right our government's wrongs. We can give workers and their
survivors an easier path towards compensation. EEOICPA made
sure that streamlining the process was an option for special
classes of claimants.
Under this program, atomic workers can apply for Special
Exposure Cohort status. If they receive SEC designation,
workers with qualifying cancers are paid benefits without
undergoing complicated dose reconstruction. Reconstructing dose
is difficult--especially with limited radiation monitoring data
and lost records. And we all knew when we passed EEOICPA that
there could be tens-of-thousands of nuclear weapons workers who
fit in this category.
I strongly believe that all Nevada Test Site workers should
have SEC status. Nine hundred and twenty-eight nuclear tests
took place in Nevada--the last one in 1992. Men and women who
served at the Test Site after 1963 still have to struggle
through the program's red tape to be considered for
compensation for their cancers. Only half of these claims have
even received a final decision. NTS workers helped America win
the cold war, and now that we finally have a program to
recognize their sacrifices, thousands of sick atomic weapons
workers are still being ignored.
While I think that NTS workers should receive SEC status, I
also recognize that the government's implementation of the rest
of Parts B and E should be drastically improved. One reason we
are here today is because there are serious concerns that the
existing adjudication process is failing to uphold the
statutory mandate that the process be claimant friendly. I am
troubled by the lack of quality assurance and transparency of
the Labor Department's claims adjudication procedures. It is
unacceptable that a government program of this magnitude and
significance has so few quality controls in place. We need to
restore faith in the claims adjudication process.
A significant obstacle for sick atomic workers is the
burden of proof they face to receive compensation. Under
EEOICPA, a claimant has the ultimate burden to prove that his
or her illness was ``at least as likely as not'' related to
radiation or hazardous materials exposure at work. This might
seem like a standard burden; but remember, it is the government
and its contractors' responsibility to maintain employment
records and information about the radiation to which workers
were exposed. Even with the Labor Department's assistance in
developing their cases, sick claimants ultimately pay the
price--if their employment or medical records are insufficient
to meet the high burden of proof, or the government lost their
records, these workers probably will never receive
compensation.
I don't think any of us intended for EEOICPA to be this
unforgiving to our cold war veterans. Workers were placed in
harms way by the government, yet they are asked to work through
a complex process and shoulder a substantial burden in showing
that their cancer or other illnesses were work-related. I think
the least we can do is find a way to give sick workers a better
chance of meeting this burden so the program actually works in
their favor.
Recently Labor Secretary Elaine Chao acknowledged the need
to improve the processing of EEOICPA claims. She noted that
``time is running out'' for many families. It is simply taking
too long to compensate many workers.
Chairman Bingaman, again I appreciate you giving me this
opportunity to address the committee. I think EEOICPA has a
good purpose, but it has the potential to be so much more
helpful to our Nation's atomic weapons workers. I look forward
to working with you and our colleagues to improve EEOICPA and
to secure compensation for cold war veterans in Nevada and
throughout our country.
Senator Bingaman. Thank you very much, Senator Reid, and I
know the importance of this to you and to your constituents,
and we appreciate your testimony very much. Let me----
Senator Reid. I suppose I might also say, some of them are
being rejected because they didn't work there long enough. Mr.
Chairman, sometimes they were there at the wrong time. They
happened to be called back in a tunnel too quickly, and many of
them had been working there a year, or 2 years, but they're
really sick, and they're being turned down, a lot of times,
because they didn't work there long enough. So, thank you very
much.
Senator Bingaman. Well, thank you, thank you very much,
again, for your testimony.
Our next witness is Dr. John Howard, the Director of NIOSH,
the National Institute for Occupational Safety and Health, why
don't you go right ahead, Doctor?
STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL INSTITUTE
FOR OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, DC.
Dr. Howard. Thank you, Mr. Chairman, I'm pleased to be here
representing the Department of Health and Human Services and
telling you about some of the progress that we've made under
the act.
As of October 16 of this month, 25,494 claims have been
referred to us by the Department of Labor, action has been
completed by us on approximately 80 percent of those claims,
leaving 5,127 claims in active status.
Twenty-four classes of workers representing 19 facilities
have been added to the Congressional Special Exposure Cohort,
to date. Nine of those twenty-four, we have added on our own
motion and presented them to the Presidential Advisory Board on
Radiation and Worker Health.
We always strive to improve the level of service we offer
to claimants, and we welcome any criticism and suggestions that
anyone has to help us improve the process.
To assist the claimants and petitioners in navigating the
process, which is complex, we have made available two claimant
ombudspersons, including Ms. Denise Brock, who is a former
petitioner, who successfully petitioned us for the addition of
a class at the Mallinckrodt Plant in St. Louis.
We continue to proactively conduct worker outreach, to
obtain input on program technical and procedural approaches, we
sponsor 77 outreach meetings, five town hall meetings, four
public meetings. We've held five workshops to explain the dose
reconstruction process, and six SEC worker outreach meetings to
collect specific information about a particular SEC evaluation
report.
In all of our interactions with claimants we strive to, not
only listen, but to hear, to consider, and to act on the
information that they provide us in the dose reconstruction
process. To enhance our external communication with claimants,
we've revised the packet that we send to claimants, including a
video. We prepare all of these materials, in preparing these
materials, we've sought input from the Board, from the claimant
ombudspersons, and from claimants. We're committed to resolving
informational and scientific uncertainties, because we do rely
on science as our first evaluation in the dose reconstruction
process.
But we try to resolve all of our uncertainties consistent
with the act, with the Executive Order and with the regulations
developed through public rulemaking. We believe that our dose
reconstructions are grounded in the best available science, but
when there is uncertainty, we use claimant-favorable
assumptions to complete the dose reconstruction. These
assumptions and methods have led to a compensability rate by
the Department of Labor of 30 percent, which compares to an
initial expectation in this program of about 10 percent, which
relates to attributable risk of radiation in population-
generated cancer in our society.
Claimant favorability is built into the act in many, many
ways. When determining the probability that a claimant's work
exposures to radiation caused their cancer, the act mandates
that the inherent uncertainty in calculating such a probability
will be higher than the actual value, or the true value, which
none of us can really know, 99 times out of 100. We rely on a
series of other claimant-favorable assumptions, when science
provides no answer at all--when data is missing when we have
incomplete information.
The Special Exposure Cohort process also has many steps to
ensure the decisions are as scientifically sound as they can
be. They're reviewed by the Advisory Board, which analyzes the
petition report that we give them, they obtain information from
petitions also, they spend many hours assessing whether the
information on exposure is adequate or inadequate to estimate
the radiation dose with sufficient accuracy. The Board is
involved in all aspects of the HHS program, and has met 50
times since it was first chartered.
HHS is dedicated to transparency in all aspects of the
program, we welcome anyone's interest in expanding that
transparency, and letting us know that we can do a better job.
For instance, we recently went beyond the requirements of
the Federal Advisory Committee Act by providing verbatim
transcripts and detailed minutes of all Advisory Board
meetings, including those of the working groups, and making
them available to the public on our Web site, we're striving to
post those minutes within 30 days of occurrence of the meeting.
So, in conclusion, we've made a great deal of progress in
carrying out our responsibilities under the act, but we
continue to strive to serve claimants better, and we are very
open to hearing any suggestions about how we can do a better
job.
Thank you.
[The prepared statement of Dr. Howard follows:]
Prepared Statement of John Howard, M.D.
Chairman Kennedy and members of the committee, my name is John
Howard, and I am the director of the National Institute for
Occupational Safety and Health (NIOSH), part of the Centers for Disease
Control and Prevention (CDC) within the Department of Health and Human
Services (HHS). I am pleased to appear before you today to update you
on the progress HHS has made under the Energy Employees Occupational
Illness Compensation Program Act of 2000 (``EEOICPA'' or ``the act'')
(Pub. L. No. 106-398). I will describe several of our initiatives to
provide better service, and I assure you that we are committed to
continuing to improve the program to better serve former workers and
their survivors and honor their service to our country.
The role of HHS in the program focuses on the science of conducting
dose reconstructions, including the related issue of considering and
deciding upon petitions from classes of employees wishing to be added
to the Special Exposure Cohort (SEC), and providing support for the
Advisory Board on Radiation and Worker Health (Advisory Board). The
Department of Labor (DOL) has the lead responsibility in the program
for administering EEOICPA, including carrying out activities such as
processing and paying claims.
progress to date
I would like to start by describing the progress and
accomplishments NIOSH has made in implementing EEOICPA, followed by
highlighting NIOSH initiatives to provide the best possible service to
claimants.
At a meeting of the Advisory Board 3 weeks ago, DOL reported that
the program has paid more than $869 million to claimants, based on
either a completed dose reconstruction, which DOL determined was
compensable, or by membership in a non-statutory, HHS-designated SEC
class.
Dose Reconstructions
As of October 16, 2007, DOL has referred 25,492 claims to NIOSH,
and NIOSH has returned 17,280 of these claims to DOL with a completed
dose reconstruction. Of the remaining claims, NIOSH has returned to DOL
1,466 claims for a determination of SEC eligibility; DOL has
``pulled,'' or taken back, 648 claims for various reasons; and there
are 971 claims with completed dose reconstruction reports, which are
currently being reviewed by claimants. This leaves approximately 20
percent of the claims at NIOSH in an active status.
Our efforts have been and are focused on completing the oldest
claims in our system. As a result, of the first 5,000 claims that NIOSH
received from DOL, we have completed or sent to DOL for adjudication
98.7 percent of those claims (compared with about 80 percent for the
program overall). Of the remaining 64 claims for which we have not
completed a dose reconstruction, 20 claimants worked at a facility for
which NIOSH recommended adding an SEC class. NIOSH considers completion
of the oldest claims in the system to be a top priority so claimants
can have their cases resolved.
Special Exposure Cohort
Through NIOSH's efforts, 24 classes of workers, representing 19
facilities, have been added to the SEC to date. NIOSH has initiated
almost 40 percent (9) of the 24 classes that have been added, based on
the authority under our rules (42 CFR Part 83) to initiate petitions
when NIOSH determines that we lack data to estimate radiation doses
with sufficient accuracy.
service to claimants and petitioners
NIOSH constantly strives to improve the level of service we offer
to claimants. I will tell you about the most recent steps we have
taken. We have made available two staff members to help claimants and
petitioners navigate this complex program. We continue to reach out to
former workers to seek their input and incorporate it into our
scientific and technical work products. We also have developed new
communications materials to promote claimants' understanding of the
program.
Claimant Resources
NIOSH has created two new staff positions to aid petitioners with
the petitioner-initiated SEC process. These are the SEC Petition
Counselor and the NIOSH Petitioner/Claimant Ombudsman, both of whom
have toll-free telephone numbers and other contact information posted
on the NIOSH Web site. The SEC Petition Counselor, Ms. Laurie Breyer,
helps petitioners through the submission, development, qualification,
evaluation, and Advisory Board deliberation processes of SEC petitions.
Petitioners may also seek assistance from the NIOSH Petitioner/Claimant
Ombudsman, Ms. Denise Brock, a former petitioner whose efforts led to
the addition of a class of employees at Mallinckrodt Chemical Works in
Missouri. In addition to responding to phone calls and e-mails, the SEC
Petition Counselor and the Petitioner/Claimant Ombudsman have jointly
held two SEC outreach meetings (one in Idaho Falls, Idaho, and one in
Calabasas, California) and are in the process of arranging a third
meeting in Augusta, Georgia, in November. The purpose of these meetings
is to increase claimant and public understanding of the SEC process.
Ms. Breyer and Ms. Brock have also attended, by invitation, meetings
held by potential petitioners and/or union groups to explain the SEC
process. These meetings took place in New Mexico, Washington, DC., New
York, and Pennsylvania.
Worker Outreach
NIOSH continues to proactively conduct worker outreach. In an
effort to obtain input on program technical and procedural approaches,
NIOSH has sponsored 77 worker outreach meetings, five town hall
meetings, and four public meetings. NIOSH has held five dose
reconstruction workshops to explain the dose reconstruction process to
workers, union officials, and claimant advocates. NIOSH also has held
six SEC worker outreach meetings to collect information specific to
preparation of a NIOSH SEC evaluation report.
Improved Communications Products
To enhance external communication, NIOSH has revised the
acknowledgement packet sent to each claimant once NIOSH receives his or
her claim from DOL. The new acknowledgment packet provides a more
descriptive explanation of the dose reconstruction process and the
steps that a claim will go through in that process. We have developed,
distributed, and made available on our Web site the following new
materials:
probability of causation fact sheet,
SEC fact sheet,
residual contamination fact sheet,
technical documents used in dose reconstruction fact
sheet,
dose reconstruction fact sheet,
overview of the dose reconstruction process,
detailed steps in the dose reconstruction process,
glossary of terms, and
answers to frequently asked questions.
We have also created a video explaining the dose reconstruction
process; the video may be viewed on our Web site and is also available
at Advisory Board meetings and by request in CD, DVD, and VHS formats.
In preparing all of these materials, NIOSH sought input from the
workers, the Advisory Board, and the NIOSH Petitioner/Claimant
Ombudsman to make the information as clear as possible. NIOSH has also
implemented and maintains an external mailing list so that interested
individuals will receive automatic e-mail updates when new information
is added to the NIOSH Web site.
In addition to these outreach initiatives and the development of
new communication information, NIOSH responds to numerous letters,
telephone calls, and e-mails from claimants, the public, and Congress.
NIOSH has received and responded to over 9,000 e-mails to our general
program inbox, and NIOSH and our technical support contractors have
received and responded to over 300,000 telephone calls since the
inception of the program. NIOSH has responded to over 4,000
congressional requests for information, provided over 100 congressional
briefings, and hosted a congressional delegation visit to our
Cincinnati office where NIOSH's EEOICPA work is performed.
addressing uncertainty
NIOSH is committed to resolving uncertainties in all aspects of
NIOSH's work in the program in a manner consistent with the act, the
Executive Order, and the rules developed through public rulemaking.
Based on the act's direction that the purpose of the program is to
provide ``timely, uniform, and adequate compensation'' and the
statement in Executive Order 13179, which allocates responsibilities
among agencies under the act, that compensation should be
``compassionate, fair, and timely,'' the HHS procedures for dose
reconstruction (contained in 42 CFR Part 82) address the need for
efficient processes to better serve claimants. The Preamble of the dose
reconstruction procedures, which were promulgated through public
rulemaking procedures and took into consideration comments from the
public and the Board, ``give the benefit of the doubt to claimants in
cases of scientific or factual uncertainty or unknowns.'' The SEC rule
(42 CFR Part 83) reiterates that the act intends for the program to
provide ``timely compensation'' and ``uniform, fair, scientific
consideration.'' I will now briefly discuss several examples of methods
that NIOSH has incorporated to give the benefit of the doubt to
claimants to account for uncertainty in dose reconstructions,
probability of causation (POC), and the SEC process.
Dose Reconstruction
Dose reconstructions are grounded in the best available science and
when there is uncertainty NIOSH may use the following claimant-
favorable assumptions, when appropriate, to complete the dose
reconstruction:
use of factors that would yield the highest estimated dose
when there are equally plausible scenarios; for example, assuming that
a worker is directly next to the exposure source instead of a further
distance away;
application of missed internal and external dose to
compensate for the limits of the monitoring programs at the time;
assignment of neutron doses to workers with little
evidence of neutron exposures to compensate for the technical
limitations of monitoring of neutrons at the time;
assumption of certain external doses as acute or chronic
to maximize dose; for example, there are instances in which an
assumption of an acute exposure of a certain dose may yield a higher
estimated dose than an assumption of a chronic exposure, and vice
versa;
assumption of external dose even if it is not clear that
there was an appreciable potential for exposure; and
use of maximum ambient doses for workers in administrative
areas; for example, even though workers in administrative areas may not
have been exposed to doses in the work environment, NIOSH nevertheless
includes the work environment exposure.
Such assumptions and methods, following the dose reconstruction
procedures established through public rulemaking, have led to a
compensability rate by DOL of slightly more than 30 percent.
Probability of Causation
The act mandates that all POCs must be established at the 99th
percentile confidence interval. The use of the 99th percentile
confidence level is the most significantly claimant-favorable aspect of
the program. NIOSH built upon this foundation in establishing the POC
guidelines (42 CFR Part 81) for DOL. DOL uses these POC guidelines,
along with dose reconstruction information provided by NIOSH, to
determine the POC for a given claim. Using the 99th percentile
confidence interval, as opposed to the median or average POC value,
means it is unlikely that an individual could have developed cancer
covered by the program and not be compensated.
In creating the guidelines, HHS provided DOL with procedures to
follow when there is uncertainty. For example, when DOL is unable to
identify the primary cancer, and only secondary cancers are identified,
the NIOSH-authored POC guidelines require DOL to use as the primary
cancer the cancer that will yield the highest POC in making the
compensation decision. Another example is when multiple cancer risk
models may apply, the POC guidelines require DOL to apply the model
that will result in the highest POC.
Special Exposure Cohort
The SEC process likewise has many provisions to assist petitioners.
NIOSH offers assistance to petitioners in preparing submissions and
throughout the SEC process. As previously indicated, two full-time
staff are dedicated to assisting petitioners in the SEC process.
Further, if information that is needed to evaluate a petition will not
be available in a timely manner, the SEC rule allows NIOSH to determine
that such information is not available for purposes of the evaluation,
allowing the petition to move forward. SEC petitions also receive
careful review by the Advisory Board, which analyzes the NIOSH petition
evaluation report, obtains input from petitioners, and spends numerous
hours assessing whether information is adequate to estimate radiation
dose with sufficient accuracy. In the SEC rule, NIOSH provided
petitioners with two opportunities for administrative review of non-
favorable decision. Finally, as mentioned earlier in the testimony,
NIOSH may initiate an SEC petition if NIOSH determines that there is a
lack of data to estimate radiation doses with sufficient accuracy,
placing less burden on affected claimants.
oversight of niosh's application of the science
The Advisory Board, which advises HHS on the science underlying our
implementation of EEOICPA, provides an important source of outside
review that helps inform our work. The Advisory Board focuses on the
scientific detail that is necessary to oversee such a program, and it
makes use of rigorous peer review to accomplish its work. The Advisory
Board is very involved in all aspects of HHS program activities. The
full Board has met a total of 50 times, either in person or by
teleconference. The subcommittees have met 20 times, and the Advisory
Board's working groups (of which there are more than a dozen), which
focus on technical scientific issues, have met a total of 48 times. HHS
provides administrative services, funds, facilities, staff, and other
necessary services to support the Advisory Board's work. CDC has
obtained a technical support contractor, Sanford Cohen & Associates
(SC&A), to assist the Advisory Board in reviewing NIOSH's dose
reconstruction estimates, site profile documents, and SEC petition
evaluations.
Since NIOSH is dedicated to transparency in all aspects of the
program, all Advisory Board meetings, including working group meetings,
are publicly announced in the Federal Register and open to the public,
except where closure is required. We go beyond the requirements of the
Federal Advisory Committee Act (5 U.S.C. App. 2) by providing verbatim
transcripts and detailed minutes of all Advisory Board meetings,
including those of working groups, and making them available to the
public on our Web site.
summary
In conclusion, NIOSH has made a great deal of progress in carrying
out the responsibilities of HHS under EEOICPA. We will continue to
strive to serve claimants better by communicating with them more
effectively and processing their claims more quickly.
Thank you again for the opportunity to testify today. I am happy to
answer any questions you may have.
Senator Bingaman. Thank you very much.
Mr. Nelson, we're glad to have you here. Go right ahead.
STATEMENT OF MALCOLM D. NELSON, OMBUDSMAN, ENERGY EMPLOYEE
COMPENSATION PROGRAM, DEPARTMENT OF LABOR, WASHINGTON, DC.
Mr. Nelson. Thank you, Mr. Chairman, and members of the
committee. Before I begin, I'd like to acknowledge that
Secretary Chao has extended the term of the Office of the
Ombudsman until legislation is passed.
I also want to personally thank Secretary Chao for
extending to me, the privilege of continuing to serve as
ombudsman. So, thank you, Secretary Chao.
Since my appointment as ombudsman I have attended four town
hall meetings, and my office has received hundreds of telephone
calls, e-mails and letters from claimants and potential
claimants. Based on these contacts, and in response to the
question asking whether this program is claimant-friendly, I
can say that a majority of the people with whom my office has
spoken are of the opinion that this program is not living up to
its promise of being claimant-friendly.
Time will not allow me to address all of the complaints and
grievances that my office receives, however, let me take a few
minutes to summarize some of these issues.
One of the biggest concerns involves the length of time
that it takes to process a claim. Many claimants are of
advanced age. Many suffer from debilitating illnesses. We
continuously hear from claimants who tell us that if they are
made to wait too long, they feel that they will not be around
to enjoy their benefits.
Further compounding this anxiety, is the realization that
under Part E, if they pass away before benefits are paid, in
most instances their adult children will not be eligible to
receive their benefits.
Trying to establish work at a covered facility and the
extent of exposure to toxins are a source of many complaints.
The Department does offer assistance in locating these records.
However, where records have been lost or destroyed, many
claimants believe that this assistance is not sufficient. Where
such records cannot be located, a refrain we often here is, if
the government can not find these records, how can anyone
expect us to find them?
On the other hand, where records are located, claimants
often question their accuracy. Moreover, many claimants are
confident that their employers manipulated or destroyed
records.
The burden of establishing that one's illness was caused by
exposure to toxins at work, is also a source of many
complaints. Many claimants report that they are unable to find
a doctor who will assist them. Where the claimant does retain a
doctor, many nevertheless become frustrated when their evidence
is deemed insufficient to satisfy their burden of proof.
Claimants also tell us that it is extremely frustrating to
establish causation, where their illness has been identified by
Bulletin 6-10 as ``one with no known causal link to toxic
substances.'' Claimants question the evidence relied upon in
creating this bulletin, and they question the quality of
evidence necessary to establish entitlement in such cases.
We also hear complaints suggesting that the decisions
denying benefits often do not adequately explain why claimants'
evidence was not sufficient. Moreover, many claimants report
that it is simply difficult to comprehend the letters and
documents that they receive.
In addition, many claimants tell us that it is impossible
to find an attorney or representative to assist them, and many
believe that this lack of representation has worked to their
disadvantage.
Overall, my interactions with claimants and their families
are usually very frank encounters where people are very blunt
in expressing their frustrations with this program. I often
have to remind people that my office cannot change the results
of their decision. However, I always promise that I will record
their complaints, and that when I have the opportunity, I will
express those complaints to the Program office, and to
Congress.
So, in concluding, let me reiterate that a majority of the
people who contact my office strongly believe that this program
is not living up to its promise of being claimant-friendly.
Thank you very much for your attention, I will be more than
happy to answer any questions the committee may have.
[The prepared statement of Mr. Nelson follows:]
Prepared Statement of Malcolm D. Nelson
Good morning. I am Malcolm D. Nelson, the Ombudsman for the Energy
Employees Occupational Illness Compensation Act, Part E, and I would
like to thank the Committee on Health, Education, Labor, and Pensions
for inviting me to testify today.
The 2004 amendments to the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA) repealed Part D of the program which
had been administered by the Department of Energy, and enacted Part E,
effectively transferring responsibility for administration of
contractor employee compensation from the Department of Energy to the
Department of Labor. These amendments also created the Office of the
Ombudsman and directed that it be an independent office located within
the Department of Labor. The statute outlines three duties for the
Office of the Ombudsman:
1. To provide information on the benefits available under this part
and on the requirements and procedures applicable to the provision of
such benefits;
2. To make recommendations to the Secretary regarding the location
of resource centers for the acceptance and development of claims for
benefits; and
3. To submit to Congress by February 15th of each year, a report
outlining the number and types of complaints, grievances, and requests
for assistance received by the Office during the preceding year, and an
assessment of the most common difficulties encountered by claimants and
potential claimants.
Since our establishment in 2004, outreach has been an important
aspect of the Office of the Ombudsman, and our office strives to reach
out to as many claimants and potential claimants as possible. As a
result of our outreach efforts, as well as the efforts of others, we
are contacted on a daily basis by claimants and potential claimants
regarding their grievances, complaints and requests for assistance. Our
most recent annual report was submitted to Congress on February 15,
2007, and since that time, we have heard from hundreds of new
claimants. We look forward to reporting on their concerns, grievances
and requests for assistance in our report for 2007.
The essential characteristics of any Ombudsman's office are:
independence, impartiality, and confidentiality.
Consistent with these characteristics, and with the statutory
responsibilities outlined above, the Office of the Ombudsman provides
assistance and guidance to those who request it. We do not possess
investigatory authority and we cannot advocate on behalf of individual
claimants as a private attorney might. Rather, we direct claimants to
the appropriate resources, we answer their questions (to the extent
that we are able), and in some instances, we simply record their
concerns. Based upon a review of our records, and relying upon my
personal interactions with claimants either at town hall meetings or in
one-on-one conversations, I am confident in stating that a large
percentage of the claimants and potential claimants with whom we have
spoken do not believe that this program is, or has been, claimant
friendly. There are many reasons for this and it would take too long to
discuss every concern and grievance that we have received. However, let
me take a few minutes to discuss a few of the more common complaints
that this office hears.
Before I begin, however, I should note that in light of the mission
given to the Office of the Ombudsman, we generally only hear from those
who have complaints, grievances, and/or requests for assistance. This
in no way detracts from the validity of their concerns; rather I simply
want to note that we tend to only hear of the problems.
delays
The fact that it often takes years to adjudicate a claim is a
concern that many claimants express to us. We continue to hear from
claimants who initially filed a Part B or Part D claim, meaning that
they filed their claim prior to October 2004, and yet they are still
awaiting a final resolution. In many other instances, while the claim
may not have been pending since 2004, there still has been a lengthy
wait. Even where there is an explanation for the delay, many claimants
nevertheless assert that the wait is too long, especially since you are
referring to a program that is intended to be claimant friendly. Many
of the people with whom we speak are elderly, and quite a lot of them
are sick, often suffering from malignant and debilitating illnesses.
Claimants have been quite blunt in telling us that they fear that if
they are made to wait too long, they will not be around to receive
benefits.
In addition, generally under Part E, if the worker dies prior to
the awarding of benefits, only surviving spouses or certain surviving
children are eligible for benefits. In light of this, many claimants
voice a concern that if benefits are not awarded during their lifetime,
their family will not receive anything from this program--regardless of
the severity of their illness. Moreover, there are claimants who simply
need the money--sometimes to help pay for their health costs, and other
times, for any number of reasons. I recently spoke to a woman who is
anxious to receive her benefits so that she can pay for the
installation of a new heater.
burden of proof
Under Part E, the claimant has the burden to establish entitlement
to benefits. In general, in order to establish entitlement to benefits
under Part E, a living worker claimant must establish:
employment at a covered DOE facility;
an illness;
that the illness is related to exposure to a toxic
substance;
that the exposure to the toxic substance is the result of
employment at the covered DOE facility; and
impairment and/or wage loss (if the claimant wishes to be
compensated for impairment and/or wage loss) due to the illness.
We hear a large number of complaints from claimants who believe
that the burden on them is virtually impossible to meet. For instance,
a number of claimants have indicated that in developing evidence of
their employment at a covered facility or of their exposure to toxic
substances, they were stymied because relevant records had been either
lost or destroyed. Where such claims are ultimately denied on the
ground that the claimant failed to present sufficient evidence of
covered employment or of toxic exposure, the claimants often turn to us
with the same questions, ``if the government cannot find these records,
how can I be expected to find them?'' and ``why should I lose because
this evidence has been lost or destroyed?'' Although, the Program
Office, as well as this Office, will sometimes suggest other means of
developing necessary evidence, following through on these suggestions
is often beyond the capabilities of the claimant.
Moreover, even where the records are available, many claimants
question the accuracy of these records. A common complaint that we hear
is that employment records fail to recognize that during the day the
employee was routinely ``ordered'' to go to other sites around the
facility. Transportation workers and security guards often tell us that
they were not required to wear dosimetry badges, yet their duties often
required them to travel throughout the facility and to have contact
with a broad spectrum of the workforce. Furthermore, we encounter
claimants who strongly believe that their employers manipulated or
destroyed exposure data. The most common assertion that we hear is that
employees were sometimes ``ordered'' to take off their dosimetry
badges.
We also hear complaints relating to the burden of establishing that
one's illness was caused by exposure to toxic substances at work
(causation). Many claimants tell us that they simply cannot find a
doctor who will assist them. Moreover, even when claimants are able to
retain a doctor, many become frustrated when their doctors' reports are
ultimately deemed insufficient to satisfy their burden.
EEOICPA Bulletin 06-10 is a source of many complaints. Bulletin 06-
10 informs claims examiners that DEEOIC ``has identified certain
illnesses with no known causal link to toxic substances.'' Where a
covered worker is determined to have one of these conditions, Bulletin
06-10 instructs the claims examiner to send a letter to the claimant
stating this finding and telling the claimant that ``it is necessary to
submit factual or medical documentation to show a relationship between
the claimed medical condition(s) and exposure to a toxic substance.''
In response to this bulletin, some claimants assure us that they are
aware of (or have) medical/
scientific evidence drawing a link between their illness and a toxic
substance, and thus question the evidentiary basis for the conclusions
in Bulletin 06-10. (Bulletin 06-10 states that ``DEEOIC specialists
researched authoritative scientific publications, medical literature,
and occupational exposure records,'' but does not specifically identify
the publications, literature or records consulted.) There are also
claimants who believe that Bulletin 06-10 imposes an even higher burden
on what is supposed to be a claimant friendly program. In addition, we
encounter many claimants who assert that they have no appreciation of
the quantum or quality of evidence necessary to overcome Bulletin 06-
10.
lack of clarity/explanation
Similarly, many claimants who contact our office contend that the
decisions denying benefits do not adequately explain why their evidence
was not sufficient to support an award of benefits. According to many
claimants, an explanation as to why their previous evidence was
insufficient, as well as clear guidance concerning the quantum and
quality of evidence needed to meet one's burden, would assist them
tremendously in their efforts to develop evidence.
Many claimants also find it a challenge to understand the letters
and other documents that they receive. These documents often discuss
legal and medical matters which simply are beyond the grasp of some
claimants. For instance, many claimants are potentially eligible under
Part B, as well as Part E, yet it is not unusual to talk to a claimant
who, in spite of receiving correspondence from DEEOIC, still cannot
confidently state whether the application that they filed has become a
Part B or Part E claim, or both.
lack of legal representation/expert medical assistance
The inability to obtain an attorney or other representative to
assist them often exacerbates the problems that claimants encounter as
they attempt to establish entitlement to benefits. Also, finding
medical evidence to support one's claim often requires diligence and
perseverance. We, however, encounter claimants who do not have the
physical stamina to engage in this level of activity. In addition,
assuming that evidence can be located, much of it will be extremely
technical in nature. Many claimants simply are unable to fully
comprehend such technical information. The fact that some claimants do
not have access to a computer or are not computer-savvy adds to these
problems.
For example, I recently spoke to a woman who has been denied
benefits on the ground that there is no evidence linking her husband's
death to any of the toxins at his worksite. If this woman wishes to
continue to pursue her claim, she will need to find a link between her
husband's death and one of the toxins now identified on the Site
Exposure Matrices--a tool developed by DEEOIC to catalogue, to date,
which particular toxic substances were present at a Department of
Energy facility during a particular claimant's employment.
Consequently, this woman needs to review medical literature to try to
find this link. Unfortunately, this woman is elderly, she does not live
near a library, she does not drive, she does not have access to the
internet, and she does not have anybody who is actively assisting her.
At this point it is impossible to say whether this woman will prevail;
however, it is safe to say that this woman will need assistance if she
wishes to continue to pursue this matter.
miscellaneous
As I indicated at the beginning, I am not going to try to discuss
all of the complaints and grievances that claimants have reported to
our office. However, I do want to note that many claimants tell us that
they believe that it is unfair that under Part B adult children can
receive benefits if the eligible parent dies, yet under Part E, adult
children generally are not eligible. It should be noted that some of
these Part E adult children were not eligible to receive benefits under
Part B because their parent did not have one of the illnesses covered
by Part B. We also continue to hear complaints concerning the
courteousness and professionalism of some of the staff involved with
this program. Moreover, even when benefits are awarded, we hear from
claimants who do not understand or disagree with the methodology used
to determine if a coordination of benefits is needed for a previous
non-EEOICPA award of benefits or compensation.
conclusion
Many of the claimants who attend our town hall meetings or who call
our office come to us with a sense of frustration. It does not matter
where the claimant lives, or whether the claimant is the worker or a
survivor of a worker, we continue to hear many of the same complaints
and grievances. Unfortunately, in response to many of these complaints
and grievances, we often must remind claimants that this Office cannot
change the result, we cannot award benefits and we cannot rewrite the
statute. However, we then inform these claimants that the Office of the
Ombudsman can and will take their concerns and express them to the
program agency and to Congress. I realize that I cannot adequately
describe the depths of their frustration, but in order for me to live
up to the promise that I have made to these claimants and potential
claimants, I want to conclude by again stating that a large percentage
of the claimants and potential claimants who contact our Office very
strongly and unequivocally believe that this program is not living up
to its promise of being claimant friendly.
Thank you very much for your time and attention.
Senator Bingaman. Thank you very much, let me just, for the
information of all Senators, indicate we've got four votes
scheduled sometime after 11 o'clock, and we're not sure how
quickly, and we also have a second panel of witnesses that we
hope to get to.
Let me ask a question, and then defer to Senator Alexander
for any questions he has.
Dr. Howard, let me just ask you, this dose reconstruction
process seems to be a very long, drawn-out process, in many
cases takes several years to accomplish. I gather that's not
unusual. Is there anything we could do, that you could do or
that the Congress could do to short-circuit that, and get that
process completed more quickly?
Dr. Howard. I think, Senator, from our perspective within
the program, we are trying to shorten that process,
considerably. If you look at the program, as a whole, since it
began, and got the data for the median length of time it's
taken us to do a dose reconstruction as the Department of Labor
has indicated, it is probably around 2 years.
But, when we started the Program, our dose reconstruction
regulations were not done before we began to receive cases. If
you look at just the last 2 years of our program, we've reduced
that down to less than a year.
It is almost impossible to reduce it to a level that a
claimant may feel is their ideal--within weeks or months of
filing a claim. That's often very difficult, because the
process is complex.
But when we have enough data, scientifically, enough
monitoring data from the site--and when we don't, and we're
applying claimant-favorable assumptions--it is a more complex
process to be able to calculate, especially if there's multiple
cancers, if there's multiple exposures to different
radioisotopes.
Dose reconstruction, in general, is not the easiest
process, and it certainly isn't the easiest process to explain
to claimants.
Senator Bingaman. Senator Alexander.
Senator Alexander. So that we can get to the next panel,
I'll just ask one question, too. But, let me focus--as Senator
Bingaman did--on NIOSH. As I understand it, it takes about 3
years, did you say, Mr. Hallmark? Three years is waiting for
NIOSH to process a claim, and then 1 year is for the Department
of Labor?
Mr. Hallmark. That's the rough average, since the beginning
of the program.
Senator Alexander. Since the beginning of the program?
Mr. Hallmark. Since the beginning of the program. What we
did a few years ago, out of respect for the Department of
Labor's better record, we transferred all of these claims over
there.
Senator Alexander. Now, we have in Tennessee 24,000 claims,
18,500 of which have received a final decision, 5,500 are in
process, waiting. Are there more than 5,500? Are there new
claims coming in all of the time? Or, do you have all of the
claims that you're likely to get yet?
Mr. Hallmark. No sir, the claims continue to come in. We
received somewhere in the neighborhood of 15,000 new claims for
Part B and Part E, combined, in 2007 and we expect the same
levels in 2008, and continuing. The program has no sunset, as
long as people get sick, they can come forward and file claims,
and obviously there is still a lot of people who can do that.
Senator Alexander. So, Dr. Howard, based on your
experience, and you've been able, you say, to reduce the time--
as follow up to Senator Bingaman's question, should we change
some law? Should we ask you to do some different regulation? Is
there a different way of evaluating some of these claimants
that would save time, and still come to a fairly accurate
result? Based upon your experience, can you think of ways that
we can speed things up, from just the part of the review that
you have?
Dr. Howard. One of the ways that we're speeding things up,
is by taking claims that we're unable to do individual dose
reconstructions on, that may represent only one or two claims
from a particular site. We are proposing to the Board that they
approve them, those claims being added to the Special Exposure
Cohort, so we're doing that on our own.
The limitation, of course, is that we have to prepare a
report to the Board, the Board meets only a certain number of
times a year, they can only consider a certain number of those
claims. So, we're constantly presenting to them, usually 2, 3,
or 4 per meeting. So, we're trying to expand that number.
For instance, in the first 5,000 claims that we received
from the Department of Labor which are our oldest claims, we
only have 64 claims left. So, those 64 claims that we have
left, we are now preparing what's called an 8314 process in the
regulation, which allows us to say, ``We cannot do dose
reconstruction, we would like the Board to designate these
particular claims as part of a class.'' We're trying to speed
that process up.
But, I think ultimately, unless you decide to re-do the act
such that it is just a presence requirement of employment, and
a radiogenic cancer--unless you do away with the dose
reconstruction process altogether, it is very difficult--
although we are trying to reduce the envelope that dose
reconstruction is within, in terms of time limits. But, other
than taking it out of the process, it's very difficult.
Senator Alexander. Thank you, Senator Bingaman.
Senator Bingaman. Senator Murray.
Senator Murray. I understand the time constraints, so I'll
just ask a few questions. Dr. Howard, I wanted to ask you about
a group of workers in Washington State who were recently added
to this Special Exposure Cohort, making it easier for them to
apply for benefits.
I understand that a second class of workers petitioned to
be part of the SEC, but NIOSH's recommendation to the Advisory
Board earlier this month contained only a subset of that class.
I understand the Advisory Board is reviewing the petition,
independently, before making a determination on NIOSH's
recommendation. Can you explain to me in layman's terms, why
NIOSH did not endorse the petitioner's full request?
Dr. Howard. Yes. The petition requested from 1942 to 1990.
We were able to recommend to the Board that two classes be
added, 1946 to 1959, and 1949 to 1968. We had data for 1968 to
1990, monitoring data that allows us, under the scientific
principles of dose reconstruction to actually reconstruct the
dose. We did not have data available for the years prior to
that.
So, what we did, then, is select out those years that we're
able to do individual dose reconstructions, and say to the
Board, ``We can do that on an individual level, but we cannot
do it for these years.'' So, it's a matter of the availability
of scientifically-sound data.
Senator Murray. OK.
Can you tell me what the average time is NIOSH expects to
fully evaluate and complete an SEC?
Dr. Howard. That's really an excellent question. In the
legislation we are given 180 days to complete our activity, and
often times, in the SEC process, data collection sometimes
takes awhile. What we do is stop the clock while the petitioner
is trying to obtain information, or we're working with the
petitioner.
But, in the 42 cases that we have, all but four of the
petitions that have been qualified for SEC, we've met in the
180 days. But, the four that we haven't met, for example, Rocky
Flats and a couple of others, were highly complex SECs. We
tried to meet it, we were unable to meet it.
But in 90 percent of the time, we've met the congressional
language.
Senator Murray. OK. You do track that information on how
long it takes?
Dr. Howard. Yes, Senator.
And we can provide additional data for you on each of the
sites, and how long it took.
Senator Murray. OK.
I do have additional questions that I hope to submit for
the record.
Senator Bingaman. Yes, we will have questions for the
record for all witnesses.
Senator Allard.
Senator Allard. Thank you, Mr. Chairman.
In 2005, the Rocky Flats Steel Workers of Colorado filed a
Special Exposure Cohort, and under the requirements outlined by
EEOICPA, it was amended in 2004 to include the SEC petition
procedure. The workers, after 2\1/2\ years, got a decision
back, that was just June 12, 2007. That seems to me like
anything but a speedy process.
I have looked back on the Department, and the Department
has performance evaluations conducted on it from time to time.
Part of that evaluation, they said the Program's statutory laws
that we passed reduces its effectiveness. They say, and I
quote, ``The program's design requires the involvement of
multiple agencies and certain claims, decisions, and resulting
in delays.'' Is there something we could do, legislatively, to
deal with that issue that was raised, when they looked at their
performance?
And also, how are Federal managers and program partners
held accountable for cost schedule and claims processing?
Dr. Howard. On the latter question, which is an easy one,
through performance appraisals, directly. We do that in every
program. Also, we do program reviews to look at the program in
aggregate.
But if you're going to the first----
Senator Allard. Have you had some that haven't measured up
on their performance?
Dr. Howard. Yes, sir.
Senator Allard. What happens as a result of that?
Dr. Howard. Well, there's a progressive process of
identifying the issues, counseling the individual, looking for
performance improvements.
Senator Allard. And if they still don't perform, what
happens?
Dr. Howard. Well, then we make changes to the program----
Senator Allard. What happens? Do they get transferred, or
they get laid off ? If they don't do their work, do they get
fired?
Dr. Howard. Well, I'd have to look back at the specifics,
Senator. I don't have the specifics right now.
Senator Allard. I'd appreciate knowing the detail. If we
have nonperformers in the programs affecting people's lives,
and their families lives. I think there's a serious problem.
Dr. Howard. I agree with you.
Senator Allard. The people responsible for that need to be
held accountable. So, go ahead and finish your response to my
question.
Dr. Howard. I just wanted to add that, not only with our
own HHS employees, but also with our contractor employees.
Senator Allard. Yes.
Dr. Howard. In terms of the larger issue, which I think
relates to the timeframe and the multiple levels of review,
some of the Special Exposure Cohorts do require additional
information, oftentimes from DOE and we also have a very
detailed peer review process that we undergo with the Advisory
Board on Radiation Worker Health, as well as their contractor
looks in excruciating detail at many issues, especially when
our petition evaluation says, we want to deny the petition.
I think that it is important for that peer review to take
place, for everyone to look very carefully at our assumptions
that we've made, to make sure that they're sound.
So even though there may be a significant amount of time
there, I don't think it's important that peer review take
place.
Senator Allard. Now, did you address the legislative
issues?
Dr. Howard. In terms of?
Senator Allard. The performance.
Dr. Howard. Oh, yes.
Senator Allard. They suggest that there's multiple agencies
and certain claims disclosure, and that's resulted in
inefficiencies. Is there something we can do legislatively?
Dr. Howard. Well, I'm not a legislator, but I would
imagine----
Senator Allard. Yes, but you're responsible for
administering the program.
Dr. Howard. Yes.
Senator Allard. Do you have some recommendations you might
submit to the committee?
Dr. Howard. Exactly. I would say that, one of the issues
for us, of course, looking at discretionary deadlines, versus
mandatory deadlines, that sends different signals to a program.
So, I would suggest that mandatory deadlines are a different
thing than discretionary deadlines.
Senator Allard. Thank you for your comments.
Senator Bingaman. Senator Murkowski.
Senator Murkowski. Chairman, thank you, and I do have a
statement that I would like you to put into the record.
Mr. Hallmark, with many of the workers that were out on
Amchitka when the nuclear weapons test was done out there, we
had a situation where the individuals were not necessarily paid
by the Department of Energy, they were employees of
subcontractors, they were then paid by the Department of
Defense. Do we have any idea how many employees might be out
there, in this situation--any estimates in terms of the cost of
extending the EEOICPA program to cover, not only the active
duty military, but the DOE defense subcontractor employees?
And, I know this may be more of an OMB-type of a question, but
it is a situation for us in Alaska where we're looking at them,
and they just don't fit into the neat categories.
Mr. Hallmark. The question of coverage of contractors
working on DOD contracts, as opposed to DOE contracts was one
that was debated and discussed at length when the statute was
enacted back in 2000.
It's my understanding that a decision was made to draw a
bright line, and not cover DOD contractor-employees. The result
of that is that there are these circumstances where there are
people who are working closely together at a number of these
sites around the entire complex, who are working on various DOD
activities. The statute even excludes, specifically, people
working for the Naval Nuclear Propulsion Activity, and then the
radiation associated with that.
I can't tell you why that decision was made by Congress in
2000. Clearly, if there is a desire to look into expanding the
statute, that's something that would need legislation.
As to how many people are in that category, the question
has not been put to me, and I don't have a basis right now, and
I don't know whether I could find the basis, but I certainly
don't have any information currently available about the number
of DOD contract employees who might, under a different
structure of the legislation, be covered.
Senator Murkowski. We may want to follow up with that. It's
one of those where, as you say, you can have two individuals
exposed to the exact same situation, and depending on where
they got their paycheck from, one gets covered, and the other
one doesn't. It doesn't seem fair.
Let me ask you, Mr. Nelson, very quickly--you've indicated
that those that are coming to you do not believe that this
process is claimant-friendly, as you have been working in your
capacity as Ombudsman, have you seen an increase in the level
of frustration, is it getting any better, are we doing anything
right that we can take some credit here for?
Mr. Nelson. I think, yes, there are some things that are
being done right. The problem for many of the claims is that,
it takes so long that, with some of the claimants, even if they
are ultimately awarded benefits, or finally, get their final
decision, they are so frustrated because it has taken so long,
that they can't get over that frustration.
The other problem I find, is that while we are doing a lot
of things, sometimes the things we think are helping the
claimants, aren't really helping them. It's not translating----
Senator Murkowski. Such as?
Mr. Nelson. One process that I've seen--because many of
these claims take a long time, there's often a process where
claims are moved around to different claims examiners. This is
an attempt to help the claimants to make sure the claims are
moving faster.
Unfortunately, for many of the claimants, they see the fact
that they have 3 or 4 claims examiners handling their claims as
a problem. They think that they've developed a relationship
with one claims examiner, only to have that claims examiner
move off, now they have a new claims examiner, they have to
establish a new relationship with that one.
As I said before, it's done to help the claimants,
unfortunately in the minds of the claimants, they see it as
another delay.
Senator Murkowski. Thank you, Mr. Chairman.
Let me just follow up on that--is it actually delaying the
process? Or is it just viewed as a delay? Because there's a
difference there.
Mr. Nelson. Yes. Again, I hear it from the claimants, their
view is that it's actually delaying, I mean, they'll tell me
stories where they said, ``We thought our claim was at one
process, was at one level in the process, however, we get a new
claims examiner, all of a sudden, we're back to square one. Or,
we've had claimants, they've asked us all of these questions,
now we have a second claims examiner, they're asking us all of
the same questions over again.
Whether that's actually causing the delay, or whether it
simply has the perception of a delay, I can say clearly, for
the claimants, it has the perception of delay.
Senator Murkowski. Sure. Thank you, Mr. Chairman.
[The prepared statement of Senator Murkowski follows:]
Prepared Statement of Senator Murkowski
Mr. Chairman, a sincere thank you for holding this hearing
into the workings of the Energy Employees Occupational Illness
Compensation Program Act--EEOICPA for short.
Coming from Alaska where more than 2,000 workers toiled for
the Department of Energy to prepare for three large nuclear
weapons tests on Amchitka Island in the late 1960s and early
1970s, I know first hand just how important this legislation is
to provide help to workers who volunteered to help America's
nuclear program at the height of the cold war. It is important
because, unfortunately, in all too many cases these workers
have been suffering horrible health consequences as a result of
occupational exposures either to radiation or other
contaminants that they faced.
Developing a compensation program was difficult three and
four decades after the fact when Congress first passed it in
2000. The complexities spawned changes in 2004 when Congress
repealed Part D because of the difficulties of implementing it
and substituted Part E to speed compensation for lost wage
claims because of disabilities caused by nuclear ailments and
illness. The delays in implementation caused Congress to
replace the Department of Energy with the Department of Labor
to process claims.
It also caused Congress to create an Ombudsman to help the
tens of thousands of employees thread their way through the
complex claim application and review process.
While the Department of Labor certainly is doing a far
better job of processing old claims and new ones stemming from
Part E, the calls and letters my offices are receiving indicate
that there are still problems with the nuclear worker program--
problems that Congress may need to again address.
Clearly, we need to extend the authorization for the
Ombudsman's office, since there is clear evidence that
employees likely will continue to need assistance to apply for
and get through the adjudication process for their compensation
claims. While the Senate has already voted to extend the office
as part of the Defense Authorization Act, until that bill is
actually conferenced and signed into law, I join many on this
committee in hoping that the Department of Labor will
administratively keep the Office open until a formal
reauthorization passes and becomes law.
The bigger question is whether there are still fundamental
problems with the structure of the compensation program that
Congress needs to fix. That is what I hope this hearing will
shed light on.
My office has certainly received a host of complaints in
the past several years about the compensation process. The
complaints have generally fallen into a half dozen areas. They
include:
1. Complaints about delays in adjudicating claims, that the
wait is too long. In some cases workers are quite ill and
afraid that they will die before their claims are approved,
complicating the receipt of assistance to their families.
2. Complaints about what workers have to prove--the burden
of proof--to be entitled to benefits. The problems stem from
workers having trouble finding firm evidence that they actually
worked on projects, especially those who worked for DOE
subcontractors. The employment records and the length of
employment documentation are a challenge after nearly half a
century. Worse, employment records are frequently so sketchy
that they complicate, not help, workers to show their radiation
or contaminate exposures.
3. This flows into the problem of ``dose reconstruction.''
While I know we will have testimony today about how much better
the National Institute for Occupational Safety and Health
Centers are doing in developing radiation dose information--
vital for the adjudication of disability claims--still I'm
getting a host of complaints about lengthy delays in processing
the requests and sometimes in the physician panels that are
involved in determining disability compensation. A related
problem is that workers are developing cancers that are not
solely radiation dependent, but ones like prostate cancer,
where radiation exposure could have played a large contributing
role. I'm also getting complaints that the requirements for the
amount of time at a job site--the exposure information--may be
inaccurate.
4. I'm getting complaints about the inadequacy of
explanations about why claims are denied. Many say after long
waits they are being denied aid because their evidence was
insufficient, but that they are not getting enough guidance on
how to remedy the filing shortfalls. The frustration for
workers denied aid is growing.
5. I'm getting complaints from relatives about the
compensation process. For example under Part B adult children
can receive benefits if the eligible parent dies, but under
Part E, adult children generally are not eligible for
compensation. One woman who called my office said the program
was actually tearing her family apart, since of 10 children,
only 1 was a minor and qualified to gain all of the aid, the
other nine children feeling unfairly treated. This is clearly
an issue for Congress, not the Department of Labor to settle.
6. And finally I'm getting complaints from my State from
workers on the Amchitka weapons tests who were employees of
subcontractors who effectively were paid by the Department of
Defense, not the Department of Energy. While active duty
military gained regular military benefits, DOE subcontractor
employees who often did the same work as DOE-funded
subcontractors, currently are not entitled to any benefits.
Another issue may be whether compensation is owed to non-
contract employees who visited radiation sites. For example
Alaska's then Secretary of State, now what is called our Lt.
Governor, at the request of the military toured the mine staffs
at Amchitka between tests. He developed and died of a
radiation-cancer but his widow is not entitled to compensation
because he was not an actual employee.
There clearly is an issue of fairness here that we dodged
in both 2000 and at the time of the improvements in the act in
2004.
Many of these complaints and many others, are expressed in
the testimony by the Ombudsman and by others that we will hear
about today. I hope this committee can fashion just and
reasonable solutions to speed fair compensation to those who
stepped up to the plate to help America in its time of need.
These workers and their families now need our help. I hope
we can make this program fulfill its promise and truly help our
Nation's nuclear workers. Thank you Mr. Chairman.
Senator Bingaman. Thank you all, very much. I think this
was useful testimony.
Senator Murray. Dr. Howard are you getting all of the
information from DOE that you are requesting, in a timely
fashion?
Dr. Howard. It's much improved. We are--DOE is working very
hard on a number of our cases, Chapman Bell being one of them
that they are trying to expeditiously get us information. If I
could compare 2002-2003 to 2006-2007, there's a remarkable
difference.
Mr. Hallmark. I would second that. Our relationship with
them has been outstanding in recent years, and they're very,
very prompt.
Senator Murray. OK, thank you.
Senator Bingaman. Again, thank you all very much for your
testimony, why don't we go ahead right to the second panel.
This panel consists of Dr. James Melius, who is a member of
the Advisory Board on Radiation and Worker Health at the
National Institute for Occupational Safety and Health in
Albany, and also Dr. Ken Silver, who's Assistant Professor of
Environmental Health Sciences at East Tennessee State
University in Johnson City, TN.
Thank you all for being here. If each of you could take a
few minutes to summarize your testimony, that would be great,
and then we'll have questions, assuming we still have time to
do that.
So, Dr. Melius, why don't you go right ahead? Is that the
correct pronunciation, Melius?
Dr. Melius. Yes, it is.
Senator Bingaman. Please push the button there so that we
can all hear you, thank you.
STATEMENT OF JAMES MELIUS, M.D., DrPh, MEMBER, ADVISORY BOARD
ON RADIATION AND WORKER HEALTH, NATIONAL INSTITUTE FOR
OCCUPATIONAL SAFETY AND HEALTH, ALBANY, NY
Dr. Melius. Senator Bingaman, Senator Alexander, other
members of the panel, I greatly appreciate the opportunity to
testify before you today about the EEOICP.
I'm an occupational physician epidemiologist, worked in the
past at NIOSH, and had considerable experience working at
evaluating health problems at DOE facilities in the past. And
it's been going for the last several years, I've served as a
member of the Advisory Board for the Program, attended over 50
meetings to discuss various aspects of that program, and had
the opportunity to hear from hundreds of claimants who've
attended the public sessions of our Advisory Board.
You've already heard today from the Department of Labor and
NIOSH about their efforts to make the program more claimant-
friendly, and I believe that both agencies have made
considerable efforts to do so.
However, it's quite evident from hearing from the claimants
at our public meetings of the Advisory Board, that there's
widespread dissatisfaction with the program. And, I think that
in evaluating the reasons for this, I think it's important that
we understand that claimants friendliness is more than
technical adjustments in the dose calculations. It should be to
provide timely, fair and accurate compensation decisions and
provide such decisions in a consistent and transparent manner.
While the claimants may not always be satisfied with the
final results of the determination--their claim is turned
down--they should believe that they've been treated in a fair
manner, their claims were thoroughly and adequately researched,
and that they have the opportunity to submit information they
believe is relevant to their claim. This information was
reviewed, and more appropriate, was taken in to account in
their dose calculations and claim decisions. I think that's
particularly important in this program--I think what you've all
said here today--this program goes back many years, there's a
great deal of secrecy, and a great deal of sacrifice on the
part of the people working at these facilities to serve their
country and they did so in a very remarkable way. Now they
deserve a good, transparent, and sound compensation program.
Now, in my testimony, I've laid out a number of the reasons
why I believe that the claimants, many of the claimants do not
feel they're being treated in a claimant-favorable way. Some of
it is technical, just the nature of missing records, the fact
that these dose calculations, claim decisions are very
technical, require complex calculations that may be difficult
to understand.
However, there are also a number of administrative issues,
I think, that greatly contribute to the claimants
dissatisfaction with the program. First of all, and I think
most importantly, claimants do not believe that their input to
the program really is taken into account, that it matters.
And the nature of the interview process with NIOSH, in
particular, with the Subtitle B part of the program, the cancer
claims, it is the same interview for everybody, no matter where
you worked. If you worked at Amchitka, if you worked at Los
Alamos, you get the same questions.
So even though those two facilities are extremely very
different in terms of activities and the kind of work that's
done there. And in my testimony, I've laid out some of the
other problems with that.
But it's important that the lack of taking into account the
claimants' experiences and their input into the claim
decisions--it's not just a matter of how clean and friendly
does the program appear. I think it's also a serious technical
shortcoming.
As Senator Reid has spoken today, and we hear this
repeatedly from people from many different sites, there are a
great number of situations where people have problems with
high, very high exposures, incidents which are not recorded,
and often there isn't any record kept of that particular
incident and that exposure. And therefore, if it's not picked
up in an interview, they don't have a chance to provide that.
It ends up with an inaccurate claim, dose reconstruction.
There are some other issues that I've laid out with the
program. And then, I also believe that, I made three areas of
recommendations, which I think would greatly improve the
program without necessarily requiring that there be a change in
the law.
The first recommendation would be to improve the interview
process. I think that needs to be tailored to the particular
site and I think it needs to be set forth in a way that the
claimants can feel that their input is appropriately followed
up on.
Recently we had a report, a graph report from the Board's
contractor reviewing part of what's called the close-out
interview. And that report found some pretty serious incidents
where information put forth by the claimants was not being
followed up on. And the claimants weren't aware of that, they
found.
I also believe that the process for reviewing SEC petitions
needs to be improved. And we need to make sure that people, the
worker representatives and the petitioners, have an adequate
time to participate in that process and can be fully made aware
of what's going on. I think NIOSH has taken some steps recently
to improve that, but I think more needs to be done.
And finally, we need to improve the timeliness of the
program. Now that is, I think, a difficult ``to do'' within the
constraints of the law and the way the program is set up. But,
I think it's critical. We shouldn't have 64 claims, whatever's
left over from 5 years ago, that have not been processed.
That's not fair to anybody involved. And, now they're taking
steps, I think that's--glad to hear that, but at the same time,
we need to take other steps, particularly, I think, a much more
active program to look at where those reconstructions are not
going to be feasible to do.
Under the current program, the way the law's written and
the regulations, has the determination that those
reconstructions can not be done with sufficient accuracy. And,
that process ends up with this very long, drawn-out evaluation
that Dr. Howard has described, the Board reviewing it, and so
forth. And it just doesn't work.
I think it ends up taking 2 or 3 years to go through that
process for the petitioners. This is the process that should
allow you to speed up the program and take into account that
records are missing, that we can't do it, can't do the dose
reconstructions in a scientifically sound way. And we need to
make that process work better. And I think there's some changes
in the regulations and some changes in the administration of
the program that could be done in a way that would greatly
speed up that process. And I think also, lower the burden on
NIOSH for the many thousands of those reconstructions that they
would have to do if they do not take adequate advantage of that
Special Exposure Cohort process.
So, let me end there. I'd be glad to answer questions at
the appropriate time.
[The prepared statement of Dr. Melius follows:]
Prepared Statement of James Melius, M.D., DrPH
Honorable Chairman Kennedy, Ranking Member Enzi, and other members
of the Health, Education, Labor, and Pensions Committee, thank you for
the opportunity to testify here today regarding the Energy Employees
Occupational Illness Compensation Program Act (EEOICPA).
I am an occupational health physician and epidemiologist currently
working for a labor-management health and safety organization
affiliated with the Laborers' International Union of North America and
its contractors in New York State. Over my past 25 years of work in
occupational and environmental health, I have considerable experience
evaluating occupational illness issues at Department of Energy nuclear
weapons facilities while working for the National Institute for
Occupational Safety and Health and later as a member of various review
and advisory committees including the Advisory Board on Radiation and
Worker Health established under EEOICPA. As a member of that Board, I
have attended over 50 meetings to discuss various aspects of that
program and have had the opportunity to hear from hundreds of claimants
and their families about their experiences with the program. I should
note that I do not testify here today on behalf of the Advisory Board
on Radiation and Worker Health.
energy employees occupational illness compensation program act
EEOICPA was established to address the work-related cancers and
other illnesses suffered by the thousands of men and women who helped
build and maintain our Nation's nuclear weapons starting during World
War II and continuing into the present time. Especially during the
early years of the program, these people worked under very difficult
conditions. They worked under tight deadlines using new manufacturing
processes that involved handling very dangerous materials, often with
minimal protection from exposure to dangerous radioactive elements.
They also worked under great secrecy, facing severe criminal penalties
for any breach of secrecy. Often they were given very minimal
information about the materials that they worked with and the potential
health consequences of their exposures.
I want to emphasize that these people worked under these conditions
willingly, knowing the critical importance of their work to our
Nation's security. However, many of these people and their families are
now angry that this past secrecy and those difficult working conditions
have not been acknowledged and have been used to deny their past claims
for work-related illnesses. The credibility of the EEOICPA program to
these people is very dependent on the fairness, timeliness, and
transparency of the program's procedures.
As a consequence of this work, these workers are at increased risk
of developing cancer and other occupational illnesses. Because
information on the exposures and the consequent health risks were
hidden from these workers for so many years, Congress established the
Energy Employees Occupational Illness Compensation Program in 2000 to
provide some compensation to these workers and their survivors for
their work-related health problems. In doing so, Congress recognized
that attempting to provide fair and equitable compensation for people
working at these facilities for the past 50 years or more was difficult
and, in many cases, would not fully compensate these people or their
families for their suffering and sacrifice for our country.
is the program claimant friendly?
You have already heard today from the Department of Labor and from
NIOSH about their efforts to make the program more claimant friendly. I
believe that both agencies have made considerable efforts to do so.
However, it is quite evident when hearing from the claimants or their
representatives at the public meetings of the Advisory Board or in
other settings that there is widespread dissatisfaction with the
program. Most of my experience with the program has been regarding the
Subtitle B Claims (i.e., dose reconstructions and special exposure
cohort petitions) rather than the Subtitle E program that is
administered solely by the Department of Labor. Therefore, most of my
remarks will be about the Subtitle B program. However, I believe that
many of the same issues are also relevant to the Subtitle E program.
Before discussing the reasons for this dissatisfaction, I would
like to discuss how I evaluate the degree to which this program is
claimant favorable. I believe that it is more than just performing dose
calculations in a manner that provides an appropriate adjustment for
the level of uncertainty in the available monitoring records,
monitoring methods, etc. A claimant favorable program should provide
timely, fair, and accurate compensation decisions and provide such
decisions in a consistent and transparent manner. While the claimants
may not always be satisfied with the decision in their case, they
should believe that they were treated in a fair manner, that their
claims were thoroughly and adequately researched, that they had the
opportunity to submit information that they believe is relevant to
their claim, and that this information is reviewed and, where
appropriate, used in their dose calculation. I believe that these
criteria also apply to other parts of the EEOICP including the Special
Exposure Cohort petition process. A transparent, credible process is
especially important in the EEOCIP because the compensation process is
so complex, and the ability of the claimants to appeal these decisions
is limited by this complexity and their limited resources.
Why are so many claimants dissatisfied with the EEOICPA program? I
would like to briefly discuss several reasons.
First, the dose reconstruction and SEC evaluation processes are
very complex and difficult for a person not trained in health physics
or dose reconstruction to understand. When individual exposure records
are available, the calculations of dose are often technically
complicated and may require multiple calculations of many different
types of exposure over the person's career at the facility. In many
cases the exposure records need to be adjusted to take into account
deficiencies in the monitoring program at that facility. In other
instances, individual exposure records are not available, and
complicated methods are used to estimate exposures based on data from
co-workers, information about the radioactive materials and processes
at that facility, or utilizing data from other facilities. Many of
these procedures are complicated and difficult for someone not trained
to do these procedures to understand. Many of these procedures require
considerable judgment on the part of the person doing the dose
reconstruction about how to apply these procedures to an individual
case. Many claimants question the fairness of these methods and
extrapolations and whether the methods and assumptions are appropriate
for their individual case.
Second, many of these claims relate to exposures during the early
days of nuclear weapons development. Exposure monitoring methods were
not available or under development. In some cases, little or no
monitoring was done. Some of the information needed to evaluate these
early monitoring data is not available, and many of the people involved
with the early monitoring programs have died. Many of the claimants
from these early years are dead, and their survivors often know very
little about their work or work exposures (due to the secrecy of the
program). The methods used for these older cases often involve more
assumptions about exposure conditions, and more use of data from other
sites. These factors make it very difficult for the claimants or their
survivors to understand and trust the dose reconstruction process that
is being used to process these claims from the early years of the
nuclear weapons program.
There are also a number of administrative issues that contribute to
the claimants' concerns about the program.
First, the dose reconstruction process was designed to be largely
based on the exposure records and related site documents. In the vast
majority of cases, information from the claimant plays little or no
role in the dose reconstruction process. Each claimant or their
survivor is interviewed. However, the initial interview is the same for
all claimants and follows a script approved by OMB before the dose
reconstruction process was fully developed. Many of the interview
questions are confusing, involve technical terminology that the
claimant or their survivor may not understand, and ask about
information or exposures that is not relevant to the site where the
claimant worked. This is very confusing to the claimant or their
survivor. Often they believe that their answers to these irrelevant
questions may be important to processing their claim when they are not.
Conversely, those being interviewed may be led to believe that
important information about their exposures is actually not important
because they were not asked about it in the interview.
Although claimants or their survivors have the opportunity to
provide additional information at the end of the interview and during
the dose reconstruction close out process, it appears that information
provided by the claimants is often ignored or not fully utilized. A
recent draft report from the audit contractor working for the Advisory
Board on Radiation and Worker Health documented this lack of follow
through on information provided by the claimants. Many people speaking
at the public comment sessions at the Board meetings have reported
similar complaints. As the interviews are the main opportunity for the
claimants to interact with people who are handling their claim and one
of the few opportunities that they have to provide such information, it
is important that their input be appropriately ascertained and
addressed.
In addition to being a source of dissatisfaction with the program,
this lack of adequate consideration of information from the interviews
with the claimants is also a serious technical shortcoming in the dose
reconstruction process. The people doing the work at the specific
facilities are often best able to report on actual working conditions
and circumstances that may have impacted their exposures (e.g., high
exposure incidents, times when they were not monitored, etc.) Often
these individual situations were not fully documented (or the records
are lost), and often they may account for a very high exposure for the
claimants. We have repeatedly obtained credible information from
claimants and worker representatives that often contradicts the
information available from the official exposure records. We have
repeatedly been told about credible instances where workers have been
told to not utilize their monitoring badges for a particular operation
because the exposures would be too high. The lack of adequate methods
for obtaining and utilizing such information from the claimants is a
serious flaw in the program and also a major source of frustration to
the claimants. This problem also extends to the handling of the SEC
petitions and the development and review of the site profiles and other
technical documents.
Another problematic aspect of the program is that the dose
reconstruction methods are continually changing. In order to address
the large number of claims when the program first started, NIOSH and
their contractors rapidly developed so-called Site Profiles and related
technical documents to provide a summary of the technical information
about a particular site that was judged to be important for dose
reconstruction for people who worked at that site. NIOSH recognized
that these profiles were not complete and would need modification once
NIOSH had more time to do so. NIOSH has worked to continually update
and modify these documents and to add new technical procedures to
assist in dose reconstruction.
NIOSH and DOL have also established a policy that when these
documents are modified, any dose reconstruction that could be changed
by the modified information would be reviewed. Those claims that would
become compensable because of the change (i.e., their probability of
causation increases) would then be compensated. Although this is
helpful to many claimants, it is confusing for those whose claims are
being reexamined through this process but whose modified dose
reconstruction does not reach a level where it is compensated. All
claimants whose dose reconstructions are being reevaluated are notified
of the process, although many will become more frustrated and
dissatisfied when their claims are again denied. However, this
continual updating and changes in technical documents means (in effect)
that a given claim is never closed and that claims may be reopened and
found to be compensable many years after first being turned down. It
also raises the issue why adequate dose reconstruction documents were
not developed in the first place.
A related issue concerns the timeliness of the SEC petition
evaluation process. Once NIOSH approves an SEC petition, NIOSH staff
usually complete their evaluation of the SEC petition within the
required 180 days. However, the evaluation of these petitions often
takes a much longer time period. For example, a petition regarding the
Rocky Flats plant qualified in June 2005; NIOSH's evaluation report was
received in April 2006; and the Board's final recommendation was made
in July 2007. A petition for the Fernald facility in Ohio qualified in
April 2006; an evaluation report was published in October 2006; and
that evaluation report is still being reviewed by the Board. Similarly,
a petition for the Blockson facility in Illinois qualified in March
2006; a second NIOSH evaluation report was produced in July 2007; and
that evaluation report is still being reviewed by the Advisory Board.
There are many reasons for the delays including the complexity of these
sites and the long time periods involved in these petitions. However,
often the review of NIOSH's technical reports by the Advisory Board or
its contractor finds significant deficiencies that need to be
addressed. These lead NIOSH to revise the technical documents used for
that site which can involve considerable time to search for additional
documentation and to make such revisions. This is frustrating for the
petitioners and very confusing as the methods being used for dose
reconstruction at that site are continually changing. Individual dose
reconstructions are being delayed while this review is under way. The
long review benefits the claimants by helping to improve the dose
reconstruction process, but the long time period and the technical
complexity of the review and deliberations are quite frustrating for
the petitioners and claimants.
Recently, the SEC evaluation process has also been delayed by
questions about which parts of the facility and/or what time periods
are covered by the program. This problem has involved at least three
sites (Blockson Chemical, Dow Madison, and Chapman Valve). The
determination of what facilities (or parts of a facility) are covered
and about the time period of coverage involves evaluations and
determinations by the Department of Labor and Department of Energy. The
process for coordinating between the three agencies involved in this
process has not been well worked out and is also frustrating for those
involved in those facilities.
I have tried to enumerate some of the problems with the current
EEOICPA program. I also would like to make some recommendations to
address these problems and improve the program. I believe that all of
these recommendations can be accomplished within the current framework
of the program and without legislative changes:
1. Improve the Interview Process. The current interview should be
revised to be easier for the claimants or their survivors to understand
and should incorporate questions directed at specific facilities (or
types of facilities), types of work, and exposures. This would be
helpful to the claimants and could greatly improve the dose
reconstruction process. There should be a better procedure for
documenting how information provided by the claimants has been utilized
in the dose reconstruction process, and if it has not been utilized,
the claimant should be informed. NIOSH with input from the Advisory
Board should also institute a vigorous quality assurance program to
make sure that information provided by the claimants is being
appropriately recorded and utilized.
2. Improve the Process for Review and Participation by Petitioners
and Worker Representatives. Although NIOSH has taken some steps to
provide better input by SEC petitioners and worker representatives in
the review of their technical documents, better efforts are needed. The
current technical documents are largely based on input from people who
managed the radiation monitoring programs at these facilities. In
addition to a transparent and stringent conflict of interest program,
NIOSH needs to ensure that SEC petitioners and worker representatives
have adequate opportunity to review and provide input on the documents
that are used in evaluating SEC decisions and conducting dose
reconstructions. NIOSH's past practice has often been to meet with
those representatives after the documents were completed. In fact, the
Board has often been presented with SEC evaluation reports for sites
where NIOSH has never held a public meeting to get input on their
recommendations. NIOSH needs to continue to address this problem. In
particular, NIOSH should assure that SEC petitioners and others
involved in that process have full and timely access to all of the
information that is being used for making decisions about a petition.
3. Improve the Timeliness of the Program. This is the most
difficult problem to address. Due to the complex technical nature of
the program and the time and effort required to find and process past
monitoring records, it is difficult to speed up the program and, at the
same time, maintain a sound technical basis for the dose
reconstructions and SEC petition reviews. One recommendation is to make
sure that there are adequate resources to conduct the program for NIOSH
and for the review of the technical documents by the Board and its
contractors. This summer NIOSH was forced to stop much of its contract
activities due to a funding shortfall, and this stoppage has
significantly delayed many SEC petition reviews, technical document
updates, etc. More importantly, NIOSH needs to reevaluate its approach
of attempting to first conduct individual dose reconstructions and only
after that fails to consider placing groups of workers in the SEC.
There is no reason that over 5 years after the start of the program,
that some of the initial few thousand claims should not have been
completed. NIOSH often recommends that a group be added to the SEC in
response to a petition in situations where NIOSH has already completed
many dose reconstructions for that group. In other words, there never
was an adequate basis for those dose reconstructions and the inadequacy
of the data should have been recognized in the site profile and dose
reconstruction development. NIOSH has a small program to self identify
additions to the SEC cohort (so-called 83.14 petitions). This program
should be expanded, and NIOSH should review their dose reconstruction
and SEC regulations to better delineate situations where dose
reconstructions are not feasible including situations where even
determining feasibility may require several years of effort. Former DOE
workers deserve a timely resolution of their claims and petitions.
I appreciate the opportunity to appear before you today and would
be glad to answer any questions.
Senator Bingaman. Thank you very much.
Dr. Silver, go right ahead.
STATEMENT OF KEN SILVER, ASSISTANT PROFESSOR, ENVIRONMENTAL
HEALTH SCIENCES, EAST TENNESSEE STATE UNIVERSITY, JOHNSON CITY,
TN
Mr. Silver. Thank you very much, Senator Bingaman, Senator
Alexander, and other members of the committee.
Senator Bingaman. You might push the button there on your
speaker. There.
Mr. Silver. Most of my education in environmental health
sciences was supported by Federal training programs, but some
of the Government's own facilities were at the bottom of the
class when it comes to protecting workers' health. Contributing
to a remedy for this situation, for the benefit of cold war
workers, has educated my heart.
I want to acknowledge the presence today of Terry and
George Barry of the Alliance of Nuclear Worker Advocacy Groups
and others. I hope you and your staff will take time to hear
their ideas.
The phrase ``cold war heroes'' is beginning to lose its
shine of sincerity outside the beltway, as the promises made in
enacting this law have turned to dross for many families. They
deserve better than the delays and dubious excuse-making that
are occurring and recurring systemically at each of the major
steps in the claims process, involving each of the agencies
with duties under the act. I'll be citing cases from Los
Alamos, but you'll find many similar stories from claimants at
Oak Ridge, in my written statement.
Claimants are still experiencing major obstacles to getting
medical and exposure records out of DOE sites. Alex Smith of
Albuquerque, diagnosed with mercury poisoning in 1948, battled
neuro-psychiatric problems, which forced him to retire in 1982,
shy of his Social Security retirement age.
After a field hearing in March 2000, I helped him find
smoking gun evidence, the original memos and industrial hygiene
reports. What's interesting, is that when Mr. Smith filed his
claim in 2002, DOE turned over his supposedly complete medical
file, but it contained almost no evidence of the mercury
episode. Only when Congressman Tom Udall made another request
on his behalf, were the handwritten notes of the diagnosing
physician released.
What has become of the hundreds of other claimants who
couldn't access smoking gun documentation, or whose first
language isn't English, or who didn't receive excellent
constituents services, or were not among the most visible
public citizens, like Mr. Smith was, in campaigning for the
law. Many of the intended beneficiaries of this program are
simply giving up.
DOL has lost records submitted by claimants trying to meet
the criteria of Part E. A few years ago, I helped Ben Ortiz of
Nambe, NM compile a loose leaf binder of documentation for his
wage loss claim. Each item was cross-referenced to specific
clauses in DOL's regulations. It was submitted by the
Congressman to DOL's Denver office in September 2005. In
conference calls over the next few months, Mr. Ortiz and his
daughters, who's his authorized representative, were unable to
locate the contents of the notebook in the DOL bureaucracy. His
tax returns for the last 3 years on the job were also submitted
via the Congressman's office, but recently, a claims examiner
told his daughter his wage loss claim was stalled because they
supposedly don't have his tax returns.
In early 2007, the local DOL resource center offered a
startling explanation for the delays in this case. Each time
congressional staff got involved, the explanation went, the
paper file is sent from the District Office to DOL
headquarters, where specialists in responding to congressional
inquiries take over. Without the paper file in hand, claims
examiners stop working on the case.
Now, if there is truth to this explanation, it's kind of an
embarrassing admission of DOL's inability to walk and chew gum
at the same time, on some of these cases.
Many NIOSH dose reconstructions have become a matter of
what we call in science modeling, garbage in, garbage out. The
agency relies on dosimetry data, which the site contractor, at
the DOE facility, has typically had a chance to rework and
edit. An insider told me that data NIOSH is using at Los Alamos
had been ``massaged'' and ``taken care of '' before this
program passed, to the point that, ``Lionel can feel very
comfortable saying these are the official records of Los
Alamos.''
Historical occurrence reports have been underutilized. So,
I'm pleased to announce the public distribution of a CD-ROM
containing more than 350 Los Alamos occurrence reports made
public by CDC. Copies of the disc will be mailed to 20 key
stakeholders in New Mexico, and this could get interesting.
The claimant community may be getting on in years, with
little time or energy to fight an increasingly Kafka-esque
system, but they know what's going on here. And we need your
good offices to fix it.
So, No. 1, amend the statute to create an independent
advisory board for external review and oversight of Part E.
Under the radiation part of this law, we've learned that
without outside checks and balances, Federal agencies will go
badly astray.
No. 2, remove the perverse incentive--real or perceived--
that DOL may currently have to stall in order to save on
benefit costs, under Part E. Amend the statute so that Part E
benefits can be paid to the estate of a claimant who dies
before a pending claim is resolved. Physically locate a
representative of the Ombudsman Office in each of the DOL
resource centers, and give this Office expanded powers to work
on Part B claims, and advocate, and when necessary, litigate
for claimants. We also need technical assistance and advocacy
grants for nonprofits doing this work, and we need to look at
ways to create incentives for graduates of occupational
medicine residency programs to go into practice in rural and
community clinics near DOE facilities.
There are nine other recommendations for reform in my
written statement which will help make this law fulfill its
promise as being claimant friendly.
Thank you for your attention.
[The prepared statement of Dr. Silver follows:]
Prepared Statement of Ken Silver
background
My name is Ken Silver. I am an Assistant Professor of Environmental
Health at East Tennessee State University. From 1997 to 2003 I lived in
New Mexico. In 1999, as a consultant to an environmental health project
at the University of New Mexico, I sat down with Mr. Ben Ortiz, a
former Los Alamos worker made ill by toxic chemical exposures, to
review his medical and exposure records. On seeing the names and
affiliations of prestigious doctors and scientists who had examined him
10 years earlier, and attributed his respiratory and neurological
illnesses to job exposures, I thought ``Why wasn't he compensated a
long time ago?'' We built a mailing list of people in New Mexico with
similar concerns. Through action alert postcards, phone banking, op-
eds, a private meeting of families with Dr. David Michaels, and two
large public meetings, we generated grassroots support for the
legislative efforts of New Mexico political leaders in passing EEOICPA,
the compensation law that is the subject of today's hearing.
overview
In my testimony today I call for increased congressional oversight
of the activities of both DOL and NIOSH in administering this program.
Administrative costs are exorbitant in comparison to the outcomes
achieved. If the claimant community were getting what was expected, no
one would begrudge the agencies a few extra dollars for administration.
But worker knowledge is not being incorporated into radiation dose
reconstructions. Close-out interviews are perfunctory. Site profiles do
not reflect workers' concerns. Conflicts of interest are ignored. Quite
incomprehensibly, historical occurrence reports, which represent a
highly valuable source of information on workers' past exposures to
radiation have been underutilized. The 2006 report of the DOL Office of
the Ombudsman listed the top three concerns of claimants to be: (1)
Difficulties in Proving Causation Issues; (2) Difficulties in
Retrieving Employment, Exposure and Medical Records; and (3) Concerns
About Claimant Interactions with DEEOIC Personnel. These problems are
illustrated through three cases at Los Alamos, two of them Part E
claims. Greater public oversight and involvement are recommended by
means of: a Part E Advisory Board to DOL; initiatives to expand
independent occupational medicine services at DOE sites; and funding
for public interest participation.
congressional oversight is needed
109th Congress. This committee and this Congress have a duty to
pick up where the 109th Congress left off in conducting oversight of
the EEOICPA program. The House Subcommittee on Immigration, Border
Security and Claims held four oversight hearings between March and
December 2006. Chairman John Hostettler summarized the oversight
committee's findings: ``Backroom manipulation'' had occurred in a
program which was ``supposed to assure workers the deceit was over and
their government was finally going to do right by them.'' He said
``those tasked with implementing the program'' ``need to be exposed for
what they've done.'' And he encouraged continued congressional
oversight: ``The babysitting of these individuals must continue.''
Those of you in Washington who work on these issues are already
familiar with the Office of Management and Budget's notorious pass-back
memo which laid out five policy options for ratcheting down on the
Advisory Board on Radiation and Worker Health (ABRWH) and its
independent contractor, as well as the public petition process for
membership in the Special Exposure Cohort (SEC).
Outside of Washington, we had an ``Ah-ha'' moment upon learning of
the pass-back memo. Until then we couldn't comprehend why a rising New
Mexico labor leader and an outstanding public health physician were
about to be removed from the Board. And it seemed Orwellian that anyone
would raise conflict-of-interest issues about the only group of outside
analysts hired to work on this issue in the public interest, SC&A, the
audit contractor to the Advisory Board on Radiation Worker Health
(ABRWH). Meanwhile, conflict of interest statements for the site
profile team members at Los Alamos were not posted on the Web, as
required by the official conflict of interest policy. Further, we were
puzzled by a turnabout in Resource Center personnel from barnstorming
tours of signing up claimants to publicly rationalizing the denial of
claims in terms of ``saving tax dollars.'' And we saw few claims being
paid at sites like Los Alamos.
In skimming the document trove in Part V of the House Subcommittee
hearings I noticed that chapters of the Los Alamos site profile (the
Technical Basis Document or ``TBD'' were provided to DOL months before
they were made available to the public. In fact, we had to wait until
just 2 weeks before a meeting in June 2005, where Los Alamos workers
and advocates were to discuss the site profile with NIOSH and ORAU, for
the chapter on external dosimetry to be made available to us. But DOL
had its copy a year earlier (e-mail from J. Kotsch to P Turcic,
February 10, 2004). The reason for the delay is now obvious. DOL was
concerned about passages in a draft version which described DOE
dosimetry techniques as ``inadequate'' and old monitoring methods at
Los Alamos as ``primitive'' and working conditions as ``deplorable by
present-day standards.''
DOL got its way: none of this language is in the final public
version. Because DOL's role in the program is supposed to be that of a
neutral adjudicator of claims, I must ask: When did DOL become known
for its specialized expertise in health physics or the histories of DOE
facilities. In one fell swoop, DOL program managers undermined the
transparent process Congress intended and put at risk the reputation of
NIOSH for scientific independence and responsiveness to labor concerns,
which the agency rightly earned prior to EEOICPA.
This calls for a response from Congress that is much sterner than
``babysitting.''
110th Congress. I require my students who are researching any
environmental or occupational health policy issue to read and cite
congressional committee hearings. They are the holy writ of the
people's business. One Congress may talk about an issue, but they
always leave a record in case the next one is ready to take action. The
five volumes compiled by the House Subcommittee in the last Congress
tell an important story about this part of the people's business.
So, as this committee establishes its agenda for oversight of the
EEOICPA program, I hope you'll begin where the House Subcommittee
hearings left off. Your first order of business should be to secure all
of the loose-leaf binders of internal documents which DOL assembled
under threat of subpoena, but which House Subcommittee staff were only
allowed to take notes on.
Failure to continue the aggressive oversight activities begun in
the last Congress will permit trends unfriendly to claimants to
continue. SEC petitions that have been ostensibly approved could be
subjected to upwardly creeping criteria for proving membership in the
cohort. How will families of deceased Los Alamos construction workers
employed prior to 1976 obtain documentation that places their loved one
at one of the technical areas that is included in the SEC, when we know
that most construction workers typically worked ``everywhere?'' Widows
of construction trade workers, many of them now elderly, were among the
main intended beneficiaries of former State Representative Harriet
Ruiz's successful SEC petition. Will the Los Alamos SEC become a redux
of Y-12, where claimants now have to furnish evidence of the specific
buildings their loved ones worked in more than 60 years ago?
Will competent attorneys avoid a program that provides insurance-
like benefits--but only if a claim meets increasingly tort-like
standards of proof?
In my testimony I make several suggestions for reforms. These are:
(p. 6) Copies of the documentation specific to the claim used by
the dose reconstructor should be routinely provided to Part B cancer
claimants.
(p. 6) Claimants should also have a right to seek repeated
extensions to 60-day requirement of signing the OCAS-1 form.
(p. 10) Occurrence reports collections at DOE facilities hold the
potential for a portion of dose reconstructions to be based on primary
documentation.
(p. 10) DOL regulations could be revised to allow claimants who
receive a probability of causation of 40 to 49 percent to submit expert
medical opinion on the causation issue.
(p. 12) DOL's adoption of an electronic records management system
is an important area for congressional oversight.
(p. 15) Allow coverage of non-cancerous diseases known to be caused
by levels of ionizing radiation encountered in occupational settings,
such as benign brain tumors and polycythemia vera.
(p. 16) Ensure that the Part E Advisory Board (see below) has
purview under the statute to independently audit all aspects of claims
management by DOL, including (but not limited to) the training and
performance standards of claims examiners.
(p. 17) Revise DOL regulations so Part E benefits can be paid to
the estate of a claimant who dies before a pending claim is resolved
(through the appeals level).
(p. 17) An independent Subtitle E board should be created by
amending the statute.
(p. 18) Adopt authorizing legislation for technical assistance and
advocacy grants for EEOICPA activities.
(p. 19) The purview of the DOL Office of the Ombudsman should be
expanded to include Part B claims. Explicitly authorize the Ombudsman
to ``advocate'' for claimants.
(p. 19) Physically locate a representative of the Ombudsman's
office in each of the DOL Resource Centers.
(p. 19) Intra- and extramural funding mechanisms should be created
for CDC to provide technical assistance to claimants' physicians and
claimants' organizations involved in the development of causation
evidence for Part E and Part B.
(p. 19) Incentives should be created for graduates of occupational
medicine residency programs to practice in rural and community clinics
near DOE facilities.
Administrative Costs Are Exorbitant in Relation to Outcomes Achieved
Program statistics in a recent presentation by OCAS (the Office of
Compensation, Analysis and Support) point to a program that is
fundamentally broken. From 2001 to 2007 NIOSH has received $280 million
to perform dose reconstructions. NIOSH work has resulted in total
payments to claimants of $869,000,000. Administrative costs are
therefore equal to 32.2 percent of payments (about one-third). Members
of this committee are more familiar with the comparable administrative
expense rate for other entitlement programs. For SSDI it's 2.5 percent.
The average cost per case was $14,534 per dose reconstruction.
DOL has rejected 4,726 cases, or about one-quarter (24.5 percent),
and sent them back to NIOSH to be reworked, mainly because NIOSH
updated its methods without redoing the earlier cases.
GAO will have more to say about these numbers. But clearly, despite
an unlimited budget, the two agencies responsible for the program don't
agree on what is valid in one-quarter of the cases. Little surprise
then that many claimants have lost faith in how the program is being
administered.
Worker Knowledge is Not Being Incorporated Into Radiation
Dose Reconstructions
close-out interviews are perfunctory and lack quality controls
A key step in the processing of an EEOICPA claim is the close-out
interview when the claimant must sign the OCAS-1 form. This completes
the gathering of facts from the claimant for dose reconstruction. The
next step is administrative review by the DOL, where the probability of
causation is determined. Decisions to award or deny compensation can
hinge on the close-out interview.
Survivor Claimants. At cold war era nuclear facilities, spouses and
children of employees have little knowledge of the work that was done.
Spouses with claims are often elderly, with nowhere to turn for
documentation of exposure-related issues. An illustrative case is
Gertrude Finley's claim, one of the first filed in New Mexico in 2001,
for her husband's death due to non-Hodgkin's lymphoma (see below). From
Knoxville, TN Kathy Bates told her family's Kafka-esque story to the
House Subcommittee. It begins with her mother receiving a preliminary
dose reconstruction for the wrong person, not her deceased husband. She
followed a NIOSH case worker's instructions to discard the report, only
to receive a call a short time later from another case worker who was
bent on conducting the close-out interview, before the report on the
correct person was even in-hand. After several years of continued back-
and-forth, they are now in the midst of their third dose reconstruction
with NIOSH.
SC&A Study. But survivor issues are not the only concern. The
ABRWH's auditor, Sanford Cohen and Associates, recently issued a report
based on auditors listening in on three close-out interviews. In two
cases specific information provided by the claimants was ignored. No
attempt was made to obtain reports or review data. In essence, the
claim's fate was already sealed, but the claimant didn't know it.
The auditors found ``potential for inconsistency and arbitrariness
in how concerns are researched, communicated and resolved.'' Most
shocking is that key decisions are made by personnel called ``HP
Reviewers'' who, in fact, lack health physics qualifications or
experience in dose reconstruction The auditors recommend that HP
Reviewers at least make detailed notes about what was done to address
claimants' concerns that are raised in close-out interviews.
Los Alamos Ironworker. Ron Chavez, a member of Ironworkers' Local
495, has been treated for non-Hodgkin's lymphoma. He worked at Los
Alamos from 1994 to 2000. With his claim pending, in September 2007 he
requested from NIOSH copies of his dosimetry data as well as the
educational background of the dose reconstructor assigned to his case.
He alleges that a manager surprised him by threatening to turn that
very phone call into the close-out interview. Mr. Chavez felt this was
an arbitrary attempt to close-out his claim prematurely.\1\
---------------------------------------------------------------------------
\1\ Mr. Chavez did receive his dosimetry data. He notes that it
shows a zero for the first quarter of 2002. That strikes him as
implausible: he still has his badge from that quarter. His last day of
work was February 4, 2002. He never turned in his dosimetry badge. To
his way of thinking, this casts doubt on the rest of his dosimetry
data, which is entirely comprised of zeros. ``My buddies have the same
thing,'' he told me. ``Zeros all the way through.''
---------------------------------------------------------------------------
Administrative Reform. Copies of the documentation specific to the
claim used by the dose reconstructor should be routinely provided to
Part B cancer claimants. This would provide a simple check on sloppy
close-out interviews harming claimants' interests. This documentation
should be provided long before the close-out interview takes place.
Claimants would then have an opportunity to generate and pursue leads
to additional information, or seek independent technical assistance in
critically analyzing the data.
Regulatory Reform. Claimants should also have a right to seek
repeated extensions to 60-day requirement of signing the OCAS-1 form.
technical basis documents do not reflect workers' concerns
The problem of assessing the probability that a given cancer was
caused by or contributed to by radiation exposure can be approached
using at least four types of knowledge:
1. radiation dosimetry data,
2. models,
3. historical knowledge of processes, operations and occurrences,
and
4. expert opinion.
The current system used by NIOSH is heavily weighted toward
radiation dosimetry data and models (#1 and #2), despite serious
misgivings in the wider scientific community. While the Technical Basis
Documents (site profiles) compile some historical knowledge of
processes and operations, they are deficient in the use of occurrence
reports. As described below, this deficiency serves to exclude the
first-hand knowledge of workers. In the end, the reliance on dosimetry
data and models tilts the site profile away from a workers'
perspective. Site managers are considered ``experts.'' As a result,
site profile documents rely heavily on written Standard Operating
Procedures (SOPs) which delineate how radiation ``ought'' to have been
measured. Workers' expertise is seldom represented on ORAU site profile
teams; their insights into what actually occurred is given short
shrift.
Worker Submissions Ignored. In December 2003, worker Glenn Bell
provided NIOSH and ORAU with two documents (accompanied by release
forms) pertaining to historical operations and processes in the Y-12
complex at Oak Ridge. Mr. Bell believed they contained facts which
could introduce a few more claimant-friendly assumptions into dose
reconstructions for Y-12 claimants. He reiterated his concerns at the
January 2006 meeting of the ABRWH in Oak Ridge. Yet the documents
remain ``under review'' by ORAU. The facts they contain have not yet
been incorporated into the site profile for dose reconstructions at Y-
12. Mr. Bell wonders how many other key documents have been ignored.
Conflicts of Interest Ignored. The Los Alamos site profile was
developed by a 19-member team, a majority of whom are current or former
Los Alamos employees with responsibility for radiation safety. In
testimony before the House Subcommittee on Immigration, Border Security
and Claims on May 4, 2006 Congressman Tom Udall expressed concern over
the fact that conflict of interest disclosure statements had not been
posted on the ORAU Web site for 8 of these 10 team members. More than a
year later, the situation has changed--for the worse. None of the 10
current or former Los Alamos employees have disclosure statements
posted at the current time.
Occurrence Reports Not Fully Utilized. Site profiles are based
mainly on the written SOPs for radiation monitoring which were prepared
by management at each DOE site. ``SOPs'' are written expressions of how
radiation doses ``ought'' to have been measured. They do not document
how it actually was measured under upset or accidental conditions in
the field. Many workers recall incidents in which SOPs were ignored due
to expediency, time pressures, or inadequate staffing.
In contrast to SOPs, occurrence reports document what actually
happened under abnormal conditions, when workers are most likely to
have been overexposed. These reports could provide an important
antidote to NIOSH's over-reliance on idealized SOPs and the perspective
of facility managers in the site profiles.
At the June 2005 meeting between ORAU and former Los Alamos
employees in Espanola, it was noted that the site profile contained no
information from the LANL historical occurrence reports collection.
This is a collection of paper reports, memoranda and monitoring data
which documents hundreds of radiation spills, leaks, environmental
releases and worker contamination episodes from 1946 to 1990. Part of
my doctoral dissertation research was based on reports of off-site
environmental release contained in this collection. For each occurrence
in which radioactive contaminants escaped off-site, I found roughly
five times as many reports which involved worker-only contamination.
Elsewhere I have estimated that there are likely to be hundreds of
``worker only'' occurrence reports from the era of the Manhattan
Project through the 1980's.
Potential Usefulness of Occurrence Reports
Numerous workers and survivors have voiced frustration upon
reviewing their supposedly ``complete'' medical and exposure records
from DOE facilities, only to find key pieces of documentation missing--
occurrence reports, finger ring dosimetry data, internal bioassay
results, etc. This problem could be addressed by a more aggressive
approach by NIOSH in utilizing historical occurrence reports
collections at DOE facilities. Occurrence reports contain individual
identifiers such as names, employee identification numbers and group
affiliation. These reports could be used to improve the quality of dose
reconstructions in several ways.
First--and most obviously--the listing of an individual's employee
identification number in an occurrence report is conclusive evidence of
the worker's presence at an incident where a dose was likely incurred,
a dose which may not be documented elsewhere. This applies particularly
to internal radiation doses received in contamination incidents which
took place before internal bioassay programs were fully implemented.
Second, in cases where the claimant (or interviewee) describes an
incident but is unable to provide precise dates, occurrence reports
should be mined in pursuit of contemporaneous documentation. For
example, an individualized docket notebook was compiled by an advocacy
group for an EEOICPA leukemia claimant at Los Alamos using a
``Surrogate Incident Report'' form. Its purpose was to alert dose
reconstructors to the possible availability of documentation for
incidents which the worker recalled from memory. The claim was
ultimately awarded under Parts B and E.
Third, exposures resulting from incidents which were never
documented, but are described in sufficient detail by interviewees,
could be quantitatively modeled using similar incidents that are
documented in an occurrence reports collection.
Fourth, radiation dosimetry records do not capture information on
dermal contact with radioactive materials. However, many occurrence
reports do provide detailed information about levels of contamination
on workers' clothing, shoes and skin.
Example: Clean-up Crews at Los Alamos. Phillip Schofield, a former
plutonium glove box worker and facility inspector at LANL, provided a
compelling rationale for relying more on occurrence reports than on
individuals' badge data in some cases. When a spill occurred, many
employees would be summoned to clean it up. On several occasions Mr.
Schofield was one of those employees. Stationed at the entrance to the
room was a radiation control technician (RCT) who would collect the
radiation badge of each entering clean-up worker. That's right: each
worker removed his badge and handed it to the RCT. The rationale was
that if the badge became contaminated with bulk quantities of
radioactive dust or liquid, then it would give an inaccurate
measurement of the dose to the individual.
The standard procedure for estimating each clean-up worker's dose
was to use the RCT as a proxy for everyone on the job. A problem arises
when the RCT remained stationed at the door for most of the clean-up:
the RCT had less potential for exposure than the actual clean-up crew.
Thus, individuals' official dosimetry records will represent an
underestimate of the true dose received. This bias may be partially
remedied by incorporating environmental measurements and other facts
from occurrence reports into individual dose reconstructions in the
four ways described above.
Example: Clean-up Workers at Oak Ridge Y-12. Large spills of
radioactive liquids at the Y-12 plant during World War II triggered a
standard procedure in which clean-up crews first built retaining
structures and then recovered the spilled materials. Survivors of two
of the men doing this work believed that their claims, both for colon
cancer, would be covered by the Special Exposure Cohort for Y-12.
However, under recent interpretations of this SEC, the families have
been presented with an additional burden. They are now required to
provide direct evidence of the handling of radioactive materials or
employment in a specific building--60 years ago. Attorney Bob Warren of
Black Mountain, North Carolina obtained an affidavit from a priest to
one of the workers who remembers his parishioner's clothing have been
burned due to contamination incurred on one clean-up operation.
However, DOL has indicated to Attorney Warren that the affidavit is
insufficient evidence of contact with radioactive materials.
This is precisely the kind of situation in which access to
historical occurrence reports collections at the covered facilities
would give families a reasonable opportunity to meet EEOICPA's often
murky standards of evidence.
cd-rom of los alamos occurrence reports
I am pleased to announce public distribution of a CD-ROM containing
more than 350 Los Alamos occurrence reports. For many years these were
for ``official use only.'' The Centers for Disease Control's Los Alamos
Historical Documents Retrieval and Assessment Project (LAHDRA) has made
these documents available to the public for the first time. Individual
identifiers have been removed. If a claimant recalls an incident but
lacks documentation, then there is a possibility that it is contained
on this disk. The disk has been indexed and formatted for quick
retrieval.
Twenty copies of the disk were placed in the mail yesterday to key
stakeholders in New Mexico: cancer claimants, workers, widows and
advocates on EEOICPA issues, along with a few journalists who cover the
issue. Copies will also be provided to the five congressional offices
representing New Mexicans.
This collection is incomplete, however. The LAHDRA project is
concerned with off-site releases of radioactive materials. The
occurrence reports on this disk were selected on that basis, but many
of them happen to have entailed worker exposure as well. The ``Total
List'' file includes dates and a few details on numerous worker-only
incidents for which the actual occurrence reports are not yet
available.
Importantly, each site in the DOE complex is likely to have a
similar collection of historical occurrence reports which could be
helpful to EEOICPA claimants. Only in later years were these kinds of
reports digitized. At Los Alamos occurrences after 1990 are in an
online system.
primary documentation to verify workers' knowledge
A key area of ongoing oversight on the EEOICPA issue is the extent
to which NIOSH dose reconstructions have taken account of information
other than individuals' official radiation dosimetry records. Are NIOSH
and ORAU really tapping into workers' knowledge? Is this knowledge
being incorporated into site profiles (TBDs) and individuals' dose
reconstructions' SC&A's audit of close-out telephone interviews
suggests otherwise. Rather than dismissing workers' recollections as
``anecdotal'' information, are NIOSH and ORAU aggressively searching
for confirmatory evidence in historical occurrence reports collections?
A truly ``claimant friendly'' dose reconstruction process would leave
no stone unturned in locating documentation to verify workers'
knowledge.
Administrative Reform. Occurrence reports collections at DOE
facilities hold the potential for a portion of dose reconstructions to
be based on primary documentation. Use of primary documentation could
serve as a quality check on dose reconstructions performed with
internal dosimetry data which some DOE sites have provided only after
long delays and re-formatting.
medical opinion in part b
Another source of expert opinion which is not yet accommodated in
assessing the probability of causation under Part B is that of
physicians who have diagnosed and treated the individual claimant. It
is not unprecedented for a cancer specialist to submit a written
opinion asserting the work-relatedness of a claimant's cancer, but the
claim to be denied because dosimetry data and models produced a
probability of causation of less than 50 percent.
Administrative/Legislative Reform. DOL regulations could be revised
to allow claimants who receive a probability of causation of 40 to 49
percent to submit expert medical opinion on the causation issue. This
claimant-friendly reform would represent a candid admission of the
imprecision of Probability of Causation determinations made from
dosimetry data and models. In these borderline cases, medical opinions
of sufficient probative value could tip the balance in the claimant's
favor.
DOL Resource Centers and Regional Offices
The offices of the EEOICP most frequently encountered by claimants
are Resource Centers and DOL's district offices. Claims examiners are
located in the district offices. Abundant evidence indicates that
neither of these points of contact is living up to a standard of
``claimant-friendly.''
In the 2006 ``. . . Report to Congress'' by the Office of the
Ombudsman, the top three categories of claimants' concerns were:
1. Difficulties in Proving Causation Issues;
2. Difficulties in Retrieving Employment, Exposure and Medical
Records; and
3. Concerns About Claimant Interactions with DEEOIC Personnel.
These issues are illustrated in detail by the experiences of:
1. Ben Ortiz, a former Los Alamos electromechanical technician,
whose on-the-job exposure to chemicals led to his ``medical
termination'' from Los Alamos in 1989 with reactive airways dysfunction
syndrome (RADS) and chronic solvent encepha-
lopathy;
2. Alex Smith, a former Los Alamos chemical technician and
machinist who was diagnosed with mercury poisoning in 1948 and suffered
neuropsychiatric conditions in the ensuring years; and
3. Gertude Finley, the 86-year-old widow of Jack Finely who died
from non-Hodgkin's lymphoma after working for Los Alamos in the
transport of shipments of nuclear weapons and radioactive materials.
1. ben ortiz
Espanola Office to Claimant: Congressional Constituent Services
Will Delay Your Claim. Ben Ortiz was among the first former Los Alamos
workers to file a claim under EEOICPA, having been the principal
grassroots organizer in the New Mexico campaign for the law's passage
in 1999. (See ``Background'' above). He received a favorable
determination for his respiratory ailments from a DOE Physician's Panel
under Subtitle D. Except for limited medical coverage, by the end of
2006 he had not yet received benefits under Part E. Mr. Ortiz should be
eligible for wage loss and impairment benefits.
In early 2007 the Espanola Resource Center proffered a startling
explanation for the delays in DOL's processing of Mr. Ortiz's claim.
Repeated involvement by constituent services staff from congressional
offices had delayed the claim. Each time congressional staff got
involved, the explanation went, Mr. Ortiz's paper file was sent from
the regional office to DOL headquarters in Washington, DC. where
specialists in responding to congressional inquiries would take charge.
Without the paper file in hand, claims personnel in the regional office
would stop working on the case.
If there is truth to this explanation, it is an embarrassing
admission of DOL's limited infrastructure for smoothly administering
claims under a program with a high degree of congressional interest.
The old saw about a dolt who ``Can't walk and chew gum at the same
time'' comes to mind.
Oversight. DOL's adoption of an electronic records management
system, however belated, is an important area for congressional
oversight.
Regional Offices and Claims Examiners. In 2005 I assisted Mr. Ortiz
and Marla Gabaldon (his daughter and authorized representative), in
compiling a three-ring loose-leaf binder of medical and exposure
documentation. Each item was cross-referenced to specific paragraphs
and clauses in DOL's regulations for Subtitle E causation and wage loss
determinations. Included in the notebook was a medical report from a
nationally recognized occupational medicine specialist who evaluated
Mr. Ortiz in 1990 at the University of California San Francisco. Also
included were neurocognitive tests performed by a specialist, who
trained at the Environmental Sciences Laboratory of Mt. Sinai Hospital
in New York. Excerpts from Mr. Ortiz's symptom diary in the months
leading up to his medical termination were also included.
The 3-ring binder was submitted by Congressman Tom Udall's staff to
the DOL's Denver office in September 2005. In periodic conference calls
held during the next several months, Mr. Ortiz and his daughter were
unable to ascertain where in the DOL bureaucracy the notebook wound up.
A changing cast of claims examiners has not helped. Mr. Ortiz
estimates he has had at least six different claims examiners since DOL
took over administration of the program. On a recent conference call he
was told that DOL had not received his documentation of wage loss. In
fact, Mr. Ortiz's IRS tax returns for the years in question (1986-1989)
had been submitted by Congressman Udall's office to DOL months earlier.
``And,'' his daughter writes in an e-mail,
``as if that wasn't bad enough, during the phone conference
they are flipping through the file to find the stuff they've
asked us for. The claims examiners are not examining the
files.''
She continues:
``Information he has gotten from the Resource Center is
incorrect. Most recently he was misinformed about the
impairment rating. He'd been told that if he signed a waiver,
then a DOL medical consultant would use the information already
in his file to develop the impairment rating. We later learn
that my dad would need to send in documentation for the
impairment rating.''
When I last saw Ben Ortiz in August he mentioned that the Resource
Center was asking him to submit the standard form affirming that he is
not receiving SSDI. He clearly remembers already having submitted this
form to the Resource Center months ago.
2. alex smith
1948 Mercury Poisoning. Senator Bingaman and staff are familiar
with the case of Mr. Alex Smith of Albuquerque, (thanks to excellent
constituent services provided by the Senator's office and by
Congressman Tom Udall). When Mr. Smith testified at the March 18, 2000
field hearing in Espanola, convened by then Assistant Secretary of
Energy Dr. David Michaels, he recounted how he and several co-workers
were diagnosed with mercury poisoning in 1948 by Dr. Harriet L. Hardy.
She ordered the crude mercury still they were operating in K-Stockroom
to be shut down. Then she took the men to medical grand rounds in Los
Alamos to teach local doctors about the signs and symptoms of mercury
poisoning. Among these signs was the classic blue line in the workers'
gums.
Early Retirement. Mr. Smith told the March 2000 hearing about how
he suffered neuropsychiatric problems in the ensuing years, leading to
his early retirement from LANL in early 1982. Although he repeatedly
cited the earlier mercury poisoning episode in discussions with Lab
doctors, and requested documentation of the incident, none was provided
by the Lab medical department. Maybe the Lab doctors didn't know where
to look for the documentation. Or, more likely, the institution's
restrictive practices governing access to documentation of the health
impacts of Lab operations barred the doctors from furnishing this
important personal health data to Mr. Smith. Plain and simple, in Mr.
Smith's words, a ``cover-up'' took place. At the time of his early
retirement, he recalls feeling like the Lab doctors were intimating he
might be a little crazy, as if he'd made up the whole incident.
``Smoking Gun'' Evidence. At the May 2002 field hearing at the
Convento in Espanola, where DOE Assistant Secretary Beverly Cook was
called to account for Subtitle D's dismal performance, Mr. Smith held
up the 1948 memos for all to see that he wasn't crazy. (Shortly after
his March 2000 testimony I found Dr. Hardy's memoranda about the 1948
mercury poisoning episode in an online DOE data base. The episode is
also described in her autobiography and older editions of her
textbook). Congressman Udall's staff assisted him in filing a Privacy
Act request with DOE to obtain one of the memos with his name
unredacted. Despite this ``smoking gun'' evidence, Subtitle D produced
nothing of benefit to Mr. Smith.
Medical Records. Congressional intervention again led in 2006 to
LANL releasing Mr. Smith's supposedly ``complete'' medical record. An
item-by-item comparison of this file the one initially released to the
Espanola Resource Center upon Mr. Smith filing his claim in 2002
reveals a striking difference. Only with the congressional intervention
did Mr. Smith receive Dr. Hardy's original hand-written clinical notes
dated February 19, 1948 in which she first suspected mercury poisoning.
However, Mr. Smith has not yet obtained a report cited elsewhere in his
record which is likely to contain the results of the urinalyses he
remembers Dr. Hardy ordering. Her textbook account of the episode
refers to the urinalyses. But her autobiography recounts battles with
classification officers over disclosing uses of mercury at the Lab.
Soon upon leaving Los Alamos, Dr. Hardy published an article in
Physics Today to alert the nascent atomic energy industry to the
hazards of mercury. It does not mention the episode in K-Stockroom.
Wage Loss Claim. Mr. Smith's Subtitle E claim was initially
rejected by DOL. But with the help of Albuquerque attorneys Robert
Maguire and Matt Hoyt, on appeal in March 2007 Mr. Smith won a
Recommended Decision for payment of wage loss. Key pieces of evidence
were reports from occupational medicine and neuro-
toxicology specialists at a Boston area institution. Mr. Smith traveled
there at his own expense.
3. gertrude finley
The case of Gertrude Finley of Albuquerque, now 86-years-old, is
illustrative of the problems faced by survivors with cancer claims
under Part B. Her husband Jack Finley worked from 1961 to 1977 as a
Security Shipment Specialist responsible for escorting shipments of
nuclear weapons and radioactive materials. Mr. Finely was diagnosed
with non-Hodgkin's lymphoma in 1990. The Finley's were among the first
families in New Mexico to file a claim on July 8, 2001.
Ms. Finley is represented by Attorney Margret Carde of New Mexico
Legal Aid (which is an indication of the widow's financial situation).
Attorney Carde has prepared a 6-page, 50-item chronology of letters,
form-filings, phone calls and reports.\2\ It is punctuated by
involvement by Senator Bingaman's staff. On one level, Ms. Finley is
one of the lucky ones: only once did she receive correspondence
addressed to the wrong person (a ``Mr. Spencer'').
---------------------------------------------------------------------------
\2\ The 50-item chronology of a widow's interactions with the
EEOICPA program over 7 years brings to mind the words of Labor
Secretary Willard Wertz. Testifying before a hearing of the Joint
Committee on Atomic Energy in 1967 about the failure of all levels of
government to address job hazards to uranium miners, he said: ``It is a
record, nevertheless, of literally hundreds of efforts, studies,
meetings, conferences and telephone calls--each of them leading only to
another--most of them containing a sufficient reason for not doing
anything then--but adding up over a period of years to totally
unjustifiable ``lack of needed consummative action.''
---------------------------------------------------------------------------
In October 2003, a computer-assisted telephone interview was
conducted with Mrs. Finley who, according to Attorney Carde, had ``no
idea of what Jack did because he worked in a classified area.'' The
dose-reconstruction proceeded, with Mr. Finley's multiple skin cancers
also included.
On August 1, 2005 she received a Recommended Decision. In the
``Finding of Fact'' section, point #7 states:
``It was shown that Jack Finley's nonhodgkins lymphoma, basal
carcinoma of the left ear and right hand, and multiple squamous
cell carcinomas were 50 percent or greater probability (more
likely than not) caused by his occupational radiation exposure
during his employment with DOE.''
But then point #8 states:
``The probability of causation for the nonhodgkins lymphoma,
basal carcinoma of the left ear and right hand, and multiple
squamous cell carcinomas diagnosed on various dated [sic] from
1990 through 2001 was determined to be 42.69 percent.''
Fortunately, Mrs. Finley has an attorney to try to figure out what
exactly this means, and to address other inconsistencies and omissions.
The Recommended Decision was remanded by the Final Adjudication Branch.
A revised dose reconstruction led to the conclusion that ``further
research and analysis would not produce a level of radiation dose
resulting in a probability of causation of 50 percent or greater.'' Ms.
Carde had two conference calls with a NIOSH representative to question
why the second dose reconstruction resulted in a lower probability of
causation than the first dose reconstruction, despite the evidence of
two additional new cancers.
Other Illustrative Cases. Consistent with the Finley family's
confusing ``Recommended Decision,'' in which points #7 and #8 were
frankly contradictory, a worker advocate at Oak Ridge says: ``I've yet
to see a Recommended Decision without mistakes in it.''
A compelling example of mismanagement of a claim is that of
pancreatic cancer in an Oak Ridge construction worker on whose dose
reconstruction report employment at K-25 for most of the 1970's is
listed. Clearly, this employee was eligible for inclusion in the SEC
for K-25. A dose reconstruction wasn't even necessary. This is further
evidence of the ``gross ineptitude'' cited at the November 15, 2006
House Subcommittee hearing which resulted in members of the SEC at the
Nevada Test Site having their claims needlessly delayed by dose
reconstruction.
The Eichler Family of Knoxville, TN won a remand from a DOL
administrative law judge of a recommended decision to deny compensation
for Dr. Eugene Eichler's testicular cancer and for a fatal brain tumor.
DOL rejected the brain tumor because of a medical report which
identified the brain tumor as a ``meningioma.'' In DOL's view that
meant it was ``histologically benign.'' Pointing to another medical
report which described it as ``malignant'' the judge remanded,
explicitly citing the claimant-friendly intent of the law. The judge
also ordered a closer look at Dr. Eichler's employment history which is
especially well-documented. Yet in April 2006 the brain tumor was again
rejected for coverage. There is no record of colleagues and co-workers
whose names were provided to the dose reconstructors ever having been
contacted. And the family feels the employment history has been
disregarded. As for the testicular cancer, a second dose reconstruction
was of no avail, because it used almost the exact same information as
the first one.
Reform. Amend Part E to allow coverage of non-cancerous diseases
plausibly caused by levels of ionizing radiation encountered in
occupational settings, such as benign brain tumors and polycythemia
vera.
The chair of the Beryllium Support Group at Y-12 (Oak Ridge)
reports some of his members have complained of rudeness on the part of
claims examiners. Equally distressing are cases in which claims
examiners are ignorant of basic facts about common occupational
diseases. In an Oak Ridge case of CBD which was ultimately fatal due to
cor pulmonale, the worker advocate representing the claimant was
dismayed to find that the claims examiner was unaware of the cardiac
complications of CBD. ``It's not the claims examiner's fault,'' the
advocate says. ``He just didn't know. He wasn't trained.''
In a case of asbestosis in a construction worker who had never
worked anywhere but Hanford, another worker advocate voiced frustration
over having been told by a claims examiner she would ``have to prove''
that asbestos exposure occurred at Hanford. Asbestos was ubiquitous in
large nuclear and industrial facilities during the era in question--a
fact which is obvious to students of occupational health.
An occupational health professional at a DOE facility describes the
DOL program as a ``nightmare'' for employees of the site who have
beryllium sensitivity or CBD. ``Lost files'' and ``long delays'' are
even affecting claims which are fully supported by the DOE site
contractor. Claimants ``overwhelmingly can't get through'' or ``get a
response'' from the district DOL office. This perspective was shared
with me on the condition that I not name the facility. (Occupational
health professionals are not immune to job retaliation). Suffice it to
say that this institution and its staff are not accustomed to being
ignored. What happens to claimants who have less formal education when
they submit documentation about their claims to DOL?
Legislative Reform. Ensure that the Part E Advisory Board (see
below) has purview under the statute to independently audit all aspects
of claims management by DOL, including (but not limited to) training
and performance standards for claims examiners.
implications for other claimants
``Concerns about Claimant Interactions with DEEOIC Personnel'' was
the third-ranked issue identified by the 2006 report of the Office of
Ombudsman. Frequent changes in claims examiners and changes in the
district office to which a claim is assigned were cited in the report.
Loss of documents and duplicative requests to submit paper work were
also cited. This is especially cruel in view of the causation standard
for Part E:
``by a preponderance of evidence the type of toxic substance(s)
they were exposed to, when and where this exposure(s) took
place, and the extent and time period that the exposure(s) took
place.''
Even claimants who meet this standard cannot be assured that their
records won't go missing.
The experiences of Ben Ortiz and Alex Smith are not isolated
incidents. That these difficulties affected claimants who were so
visible in the campaign for passage of EEOICPA, and have worked closely
with congressional constituent services, makes one shudder to think how
claimants with lower public profiles are being treated. Their best hope
may be to find legal counsel when their claim is denied, and try to
prevail on appeal.
What has become of the hundreds of other claimants who could not
gain access to ``smoking gun'' or contemporaneous documentation of
their exposures and illnesses? What about those who did not have
written, occupational diagnoses from internationally recognized
physician-scientists, backed up by evaluations performed by specialists
using the latest methods of clinical and neurobehavioral testing? What
about claimants who can't pay out-of-pocket for specialized medical
evaluations? Or those whose first language isn't English? Or those who
didn't receive effective constituent services from their congressional
offices?
What happens in those households at the end of a long, drawn out
process of retrieving records from a DOE contractor, submitting
documentation to DOL, and the system responds with ``What medical and
exposure records?''
It is not surprising to hear from claimants' advocates that many of
the intended beneficiaries of the program are simply giving up. The
hurdles have simply become too difficult for an increasingly elderly
claimant population.
Regulatory/Legislative Reform. Revise DOL regulations so Part E
benefits can be paid to the estate of a claimant who dies before a
pending claim is resolved (through the appeals level). Under current
law, nothing is paid when an elderly claimant passes on. This will
remove the perverse incentive, real or perceived, that DOL has to stall
in order to contain program benefit costs.
Part E Advisory Board to DOL
A key lesson from the first 6 years of EEOICPA implementation is
that an independent oversight board can keep government agencies that
have been charged with carrying out a ``claimant-friendly'' program
from going astray. Through its external review and oversight functions,
the ABRWH has provided essential checks and balances on the activities
of NIOSH staff. The Board's meetings have also brought needed
transparency to the dose reconstruction process. Especially
illuminating have been the special projects conducted by the Board's
auditor, Sanford Cohen and Associates.
Meanwhile, DOL's implementation of Subtitle E has occurred with no
independent oversight. Determinations of occupational disease causation
are being made routinely by claims examiners and district medical
consultants. Few of the guideposts used to make these determinations
are publicly available. Nor have the qualifications of the district
medical examiners been subjected to outside evaluation.
Legislative Reform. An independent Subtitle E board should be
created by amending the statute. Its role will be to provide external
review and oversight of the DOL's occupational disease determinations,
coverage of consequential conditions, and overall implementation of
Part E. Like the ABRWH, members would be selected from relevant
disciplines (i.e., epidemiology, toxicology, occupational medicine) and
sectors (claimants, workers, health professions, government agencies).
Public Interest Participation
Claimants face many high hurdles in accessing and interpreting
records, seeking diagnoses, and advocating for themselves. The nature
of the preparation work is similar to a tort case, while the benefits
are comparable to an insurance program. The statute contains caps on
legal fees. These factors may discourage competent attorneys from
getting involved. Further, many DOE sites are located in remote rural
regions of the country where occupational medicine practitioners with a
worker orientation are hard to find. After several years of being out
of work due to chronic illnesses, few claimants can afford to travel to
see big city ``occ docs.'' Union locals at DOE sites that have closed
down are no longer able to assist claimants due to obvious resource
limitations. Technical assistance on responding to the intricacies of
dose reconstruction and Part E causation standards is generally
unavailable through the DOL Resource Centers.
The Ombudsman's office at DOL is the subject of many favorable
comments from the community of claimants' advocates. At a minimum,
Congress should expand the Ombudsman's purview to Part B claims.
Administratively, DOL should physically locate a representative of the
Ombudsman's office in each of the DOL Resource Centers so they are
available to trouble-shoot and advocate for claimants at any step of
the process. Another simple enhancement would be to routinely inform
and assist claimants with Privacy Act requests for DOE records.
However, as part of the very institution they are expected to keep
watch over, the Office of the Ombudsman can only go so far in
advocating for change. Broader problems can be addressed by a technical
assistance grants program for claimant advocacy organizations and
incentives for graduates of occupational medicine residency programs to
practice near DOE sites (see below).
Technical Assistance Grants. Congress needs to remind the agencies
responsible for administering this program that the public's interest
on occupational health issues are often best articulated by advocacy
organizations. Funding of these organizations for claimant education,
commenting on agency regulations, petitioning for SEC status, and
traveling to important meetings is essential. The disparity between the
multi-million dollar contract for dose reconstruction services and many
claimants' subsistence on fixed incomes is glaring. People who have
``gone without'' often have ideas for reducing wasteful government
spending. But to have a voice, they must be able to get to the meeting
fully prepared, ideally as part of an organization of like-minded
citizens who are willing to extend a helping hand.
At the second House Subcommittee Oversight hearing on May 4, 2006,
Congressman Tom Udall voiced support for a technical assistance
program.
Legislative Reform. Congress should adopt authorizing legislation
for technical assistance and advocacy grants for EEOICPA activities.
Legislative Reform. The purview of the DOL Office of the Ombudsman
should be expanded to include Part B claims. Explicitly authorize the
Ombudsman to ``advocate'' for claimants.
Administrative Reform. Physically locate a representative of the
Ombudsman's office in each of the DOL Resource Centers so they are
available to trouble-shoot and advocate for claimants at any step of
the process.
Occupational Medicine Services
In the 2006 Ombudsman's report the top-ranked concern under
Subtitle E was ``Difficulties Proving Causation Issues.'' Several areas
are ripe for reform to make Subtitle E more claimant-friendly on
causation issues.
The Ombudsman's report correctly notes that many claimants shy away
from allowing DOL doctors to make causation determinations. However,
when they go to their physician of choice, it quickly becomes apparent
that the evidentiary requirements under Part E are beyond the expertise
of many doctors. ``DOL wants verse and script in my doctor's opinion,''
says a former Los Alamos worker with radiation dermatitis and apparent
multiple chemical sensitivity. ``It's beyond his expertise, and that of
most doctors, to apply the AMA Guidelines to occupational illnesses,''
he said.
Although considerable occupational health expertise resides in
NIOSH, the agency currently does not have a program of technical
assistance to physicians who are developing EEOICPA claims. Applicable
resources may also reside in ATSDR and NCEH.
Communities around DOE facilities are often described as ``company
towns.'' Physicians in private practice have little to gain--and much
to lose--by lending their credibility to EEOICPA claims.
Legislative and Administrative Reform. Intra- and extramural
funding mechanisms should be created for CDC to provide technical
assistance to claimants' physicians and claimants' organizations
involved in the development of causation evidence for Part E and Part
B.
Legislative Reform. Incentives should be created for graduates of
occupational medicine residency programs to practice in rural and
community clinics near DOE facilities. These incentives should be
tenable only at clinics that are independent of the DOE site. One such
incentive might be more flexible visas for foreign nationals who have
completed OEM residencies in the United States.
Medical Care
Because I am not trained in the clinical sciences, I do not try to
assist claimants who are experiencing problems with the medical
coverage provided by EEOICPA. However, I would be remiss if I did not
draw the committee's attention to two cases of beneficiaries whose
requests for home health care were grievously delayed by DOL. Requests
from the family of George Hackworth (84-years-old) of Tennessee fell on
deaf ears as he deteriorated with terminal colon cancer. DOL verbally
denied the request for care and called the family on the day Mr.
Hackworth died to inform them that the doctor's order for skilled
nursing services was ``unnecessary.''
Submitted for the record is a letter from Greg Austin of
Professional Care Management. His company responded to the Hackworths'
desperate pleas and did provide several days of care, while waiting for
the authorization which never came from DOL. Mr. Austin's letter
describes another cancer case in which the ``request for home health
care lay pending authorization for 197 days with the DOL despite having
all the required documentation to make a decision.''
acknowledgement
I want to publicly express the deep respect and gratitude many
people concerned with nuclear worker issues feel for the tireless and
often miraculous work of Richard Miller, previously of the Government
Accountability Project. If every occupational health issue had a
Richard Miller, ``That'd be alright.'' (As in the song by Alan
Jackson). Those who work on Capitol Hill are fortunate to have him as a
colleague now.
Senator Bingaman. Thank you both for your excellent
testimony.
Let me ask first, Dr. Melius, your suggestion here to speed
things up--I need to understand better how this dose
reconstruction issue is being dealt with. In situations where
dose reconstruction is determined not to be feasible, in that
circumstance NIOSH has decided to go ahead and lump these all
together, is that the testimony we just heard?
Dr. Melius. Yes, what you just heard was they are doing
that, I believe, as I understood it----
Senator Bingaman. You might push that button again.
Dr. Melius. As I understand it, they are planning to do
that with the first, I think, 70 cases that were left over from
the first 5,000 claims. There's a number of them involving
small facilities and other circumstances like that.
They have a program where they can, on their own, initiate
their own, essentially, start the process for adding people to
the Special Exposure Cohort. That is, follows the same steps as
the ones for the petition process, which is the more common one
that usually involves the larger facilities, and so forth. But,
for the smaller facilities and for smaller groups of workers
within facilities, they have in the past--and apparently are
going to try to continue to expand that program where they
would initiate the SEC process, Special Exposure Cohort
process.
Senator Bingaman. Is there any reason why they just can't,
on their own, do that? I guess they've concluded that the law
permits them to do it--is there something we need to be doing
to urge them to do it?
Dr. Melius. Definitely. I think that's the single-best way
of speeding up this program. Which would be for NIOSH to take a
much stronger stance and much stronger program to identify
situations where they are unable to do the dose
reconstructions--not to go through a very lengthy process in
trying to, repeatedly trying to do dose reconstructions.
One of the very frustrating things about the program is,
people will submit a Special Exposure Cohort petition, an
outside, a group from a facility. And that, NIOSH--in the
process of doing your evaluation of that, will discover that
there's serious shortcomings in their dose reconstruction
process, the way they've been doing those reconstructions and
basically, have to start all over again with the background
technical work to develop a dose reconstruction program,
process. Either the Advisory Board has to accept that on faith,
they can do it, or you have to wait a process of a year or two
while that's underway, having time for the Board and its
contractor to evaluate that, and it just delays the whole
process. If they would have a much more vigorous process to
basically being willing to admit that it's just not going to be
possible to do the dose reconstructions, that it isn't
feasible, and it can't be done in a timely way.
And, I think what Dr. Howard said--that if there were some
real deadlines in the program, if you cannot complete a dose
reconstruction within a set time period, or you cannot go
through the process for the SEC petition evaluation in a set
time period, then those people should automatically be added to
the Special Exposure Cohort. If not, it's justice delayed a
long time.
With the Rocky Flats situation, it was a very long, lengthy
process and one that was not set to my----
Senator Bingaman. But you're saying they have that
authority now, under the law, and it does not violate either
the statute or their own regulations for them to do exactly
that.
Dr. Melius. Correct.
Senator Bingaman. OK.
Dr. Melius. They need the incentive.
Senator Bingaman. Dr. Silver, let me just ask you one
question--could you give a little more expansive description of
that CD that you held up there, as to what that contains and
what the significance of it is, as you understand it?
Mr. Silver. Yes. Dr. Melius referred to claimants who
remember episodes that they were involved in during their
working careers--spills, accidents, contamination. When they
receive their dosimetry records, there were zeroes. So there's
a discrepancy between the worker's very clear recollections and
the data that's being used by NIOSH for the dose
reconstruction.
At every Department of Energy and for that AEC facility,
when spills, accidents, contamination episodes occurred,
reports were often written. These are historical occurrence
reports. Frequently nothing was recorded. In Los Alamos there's
a vault of ``Official Use Only'' documents, we call it the
historical occurrence reports collection, going back to 1945,
and I did part of my dissertation on those reports, during the
era of openness in the DOE complex.
To my great dismay, there has not been a systematic effort
to link those episodes to the job histories of people who are
undergoing dose reconstructions. The Centers for Disease
Control has an environmental dose reconstruction project going
on at Los Alamos, they are looking at off-site doses. So,
they've been through that open vault, and they've compiled a
public database of reports that resulted in off-site releases,
and they have made lists available of worker-only occurrences,
that did not have off-site releases.
So, this disc has the reports of releases that went off-
site, many of them have worker contamination involved, and
lists of worker-only occurrences.
So, I'm going to put into the hands of claimants and
claimant advocates in New Mexico, many of them have already
been through the dose reconstruction process, they have their
dosimetry data that shows goose eggs, as they say, and they'll
do a little comparison. And I strongly suspect that we'll find
people who finally have documentation of the episodes they
remember, and they'll bring it back to NIOSH, and hopefully
have their dose reconstructions redone.
Senator Bingaman. All right, thank you.
Senator Alexander.
Senator Alexander. Dr. Melius, on your suggestion, just so
I understand, you say that the Department of Labor and NIOSH
could decide today that a dose reconstruction wouldn't be able
to be done within a certain period of time, we just
automatically add that person to a cohort, is that correct?
Dr. Melius. Correct. There's a process for doing that, it
has to go up----
Senator Alexander. It could do that.
Dr. Melius. Yes.
Senator Alexander. What would you suggest the timeframe
should be? Six months? Four months? A year?
Dr. Melius. I think there's no reason that the whole
Special Exposure Cohort review process should last less than a
year. That for the dose reconstruction, there's no reason dose
reconstruction should take more than a year to complete.
Senator Alexander. So, if they were to say, if dose
reconstruction on this individual claim can't be done within a
year, it moves over to this other category, that would be a
suggestion you made.
Dr. Melius. Correct.
Senator Alexander. Do either of you know--businesses do
customer satisfaction surveys, I believe the testimony was that
the taxpayers have paid $3.2 billion to 35,000 people--those
would be the successful claims. If those figures are correct,
do you know whether there's ever been a survey done of those
35,000 people to see whether they're happy with that? Or
whether they're, as the ombudsman indicated, they may have been
so frustrated in the process, and by the time they got the
money, they weren't happy with it?
Dr. Melius. As far as I know, there's been no survey and
the NIOSH has been--I believe the Department of Labor has also
been reluctant to do a survey because of concerns about claim
adjudication and what might be found in a review of claims and
so forth. But I think that kind of process could be done in a
way that would be very helpful to the program, as well as
would--I don't think they need to disturb the claims
adjudication process.
Senator Alexander. Typically those kinds of surveys are
done, not necessarily to embarrass people, but to just simply
to improve service and to learn things that one would want to
do.
Dr. Silver, you made the suggestion that I wondered about,
too, which is that a claim doesn't expire when a person dies,
and the money could be paid to the estate. I can understand how
that anxiety might contribute a great deal to the claimant and
the family.
And we heard the example of Herculean efforts to make sure
that the money arrived just a few hours or a day before someone
died. Have you done any research to know what effect that might
have on claimants, if they knew that, even if they died, their
claim might still be processed and money available to the
estate, and what it might cost the taxpayer if that were done?
Mr. Silver. I haven't approached it from a research
standpoint. I view the work I do with claimant families as part
of my public service, as a university-affiliated person. I
think it's really a matter of trust. When there are so many
delays and so many incidents where documents have been
misplaced in the claimants file, there's a growing perception
of the part of claimants and their families that--as a man in
New Mexico told me, ``They're just waiting for us to die,''
under Part E, which does not allow the claim to pass to
survivors.
Senator Alexander. But how many instances are there like
that and do you know or have you made any estimate of how much
it would cost the taxpayer if that recommendation were adopted?
Mr. Silver. I don't have quantitative information, but I
think we could probably find you a couple of cases to submit to
the record of this hearing where that, in fact, occurred. But I
think the larger issue is trust. People----
Senator Alexander. Oh, I understand that. But, does this
involve 10 people or 10,000 people? And is it a matter of
billions of dollars or a few dollars? Or maybe you could tell
me who could help me answer that question, if you can't?
Mr. Silver. I think the advocacy groups for claimants will
have a litany of cases where people are near-terminal death, or
a handful of cases where it has actually occurred.
Senator Alexander. Thank you.
Dr. Melius, do you have anything to add to that?
Dr. Melius. Yes, I would add to that, that I think there
are a significant number. I'm not sure 10,000, but certainly
because of the number of people with cancer that are processed
through the program, both through Subtitle B and E. And, I
think it's also important to remember that people's medical
bills are not paid, only from the time that they file the
claims. So, going back in time, we all know problems that
people have with health insurance and the high cost of medical
care. So it's been a significant financial burdens on many of
these families, because of having to take care of the medical
care, let alone, loss of income and so forth. So, I think it's
very worthwhile to look into that recommendation.
Senator Alexander. Thank you.
Senator Bingaman. Senator Murray.
Senator Murray. Yes.
Dr. Melius, I would assume that even though each SEC
petition is unique, that the Board's review process is very
similar. Can you, based on your experience as an Advisory Board
member, explain that process to us?
Dr. Melius. Yes. The process starts when the Board receives
the evaluation from NIOSH.
The first process, the petition is reviewed by NIOSH. If
it's accepted, they then do their evaluation, normally within
180 days of receiving it. That evaluation then goes to the
Board. The Board, through our contractor, outside contractor,
then has that contractor review NIOSH's evaluation, identify
issues, technical issues that need further review and follow
up. And then we'll make recommendations to the Board,
technically, should this be accepted or not, or whatever.
Particularly in some of the larger sites, such as Hanford
and Rocky Flats and so forth that are so complex, that process
will identify a number of different technical issues and that
process can go back and forth for quite a while, because if the
Board's contractor finds a problem, a technical problem, NIOSH
then responds. And that may be by starting all over again or
developing a new method for doing those dose reconstructions.
That's currently what's underway with the Hanford site.
Senator Murray. Right. Can you tell me why the Board chose
to investigate further before making a decision on the SEC
petition for Hanford?
Dr. Melius. Yes. I believe, the reasons for that were, one,
the Board had received that report, the most recent one, just
shortly before our last meeting. So there had not been adequate
time.
Second, to review it, based on some of the work that we had
already done at the Board--and I should add that I'm the chair
of the work group of the Board that's reviewing that.
Senator Murray. Right.
Dr. Melius. We also thought that we needed to, we would not
be accepting of that recommendation from NIOSH on its face
value, particularly that their recommendation, even though it
recommended parts, some groups be added to the Special Exposure
Cohort, a large part of that, the rest of the petition would
not be by NIOSH's recommendation. And we thought that that part
of it needed much further scrutiny, based on what we already
knew about problems with some of the methods that NIOSH was
proposing that they use.
What we're in the process of now, is essentially trying to
evaluate whether we can stage the process for reviewing the
NIOSH's evaluation report, so that the parts where they have
recommended that a group be added to the Special Exposure
Cohort, can be dealt with first, and obviously in a more timely
fashion. And then, the other parts where they have made the
recommendation that the petition not be granted, we look at in
more detail and that will inevitably take a longer period of
time.
Senator Murray. Can you share with us your opinion about
some of the unique conditions at Hanford that the Advisory
Board ought to be considering as they move forward?
Dr. Melius. Yes. I think there are several things. One is
the complexity of the site and what we've heard from people
that have worked out there about conditions, particularly
conditions where people were exposed to very high amounts of
radiation and were not being monitored at the time.
We've heard people describe to us that they were given 30
seconds to go in and do a job, and if they didn't have that job
done in 30 seconds, they had to leave the area because the
radiation was so great. And they were not monitored during that
process. And so, getting that information is not possible.
Second, the Board has, in our review of information from
the Hanford site, serious questions about the adequacy of the
records in the past, for the monitoring of neutron exposures,
which is a significant part of the exposure for people at that
facility. And frankly, NIOSH has questions about that also,
because they're re-looking at their methods for doing dose
reconstructions, based on the available records, particularly
on neutron exposures.
Senator Murray. And if you don't have the records, then?--
--
Dr. Melius. Then we recommend that it be added to the
Special Exposure Cohort, that NIOSH's evaluation would be
rejected.
Senator Murray. OK. All right.
Thank you very much, Mr. Chairman.
Senator Bingaman. Senator Allard.
Senator Allard. Mr. Chairman, thank you.
In October--I want to direct this to Dr. Melius--the Rocky
Mountain News, a newspaper in Denver, wrote an article where
they talked about an internal audit by the White House Advisory
Board on Radiation Workers' Health's auditor. This included
listening to what they call a close-out session. Apparently
this is part of the routine, part of the claims process.
According to this article, two out of three claims that
were audited, the information was not considered in the
process. In fact, they pointed out to one case, where a
decision was already made before that part of the interview was
done.
I've always been one to advocate that we use science and
that we follow the process routinely. And I'm concerned that it
appears, that maybe in these cases, it may not have been
followed. Do you view this as a problem that's pretty pervasive
within the interview, and within the claims process, or is it
systemic?
Dr. Melius. Senator, yes. I believe that that is a
pervasive problem. It has to do with, one, the nature of the
initial interview and the way that that's conducted. The lack
of asking questions about specific facilities and processes at
facilities. It also continues throughout the process, including
the close-out interview process that you referred to. I think
it's a serious shortcoming and I think it needs to be
addressed. In my testimony, I've included some recommendations,
both for improving the interview process, as well as setting up
a quality control process to make sure that people are listened
to.
And in the case of the close-out interview, part of the
problem is determining whether or not the information was from
the interviewer, and was then properly communicated to the
person doing the dose reconstruction. Those are different
people. And whether there's adequate follow up. And something
happened in that process, and the Board is still--and our
contractor is still in the process of reviewing what that is,
trying to determine how pervasive that particular issue is.
But I tend to think it's very serious. It's something we
hear repeatedly, claimants complaining about their information,
and all the problems in the DOE facilities with missing
records, and lack of recording of exposures, and so forth. It's
very, very important that claimants and their survivors have
the opportunity to put this information forward and that it be
evaluated and followed up on.
Senator Allard. Thank you for your comments. We'll closely
review your testimony and see in detail what you've
recommended. We have a vote that's just up. I'd just like to
make a closing comment that I understand the Advisory Board's
set up to take up this issue in their December meeting. I
encourage further discussion and review of this issue by the
Presidential Advisory Board and other parties involved.
Thank you.
Senator Bingaman. Thank you both for your testimony. I
think it's been useful. We got some good recommendations from
you that we can try to follow up on.
So, that will conclude our hearing today.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Enzi
Thank you for holding this important hearing, Mr. Chairman.
I want to welcome all of the witnesses today, most especially
Senator Reid. We very much appreciate everyone's time and
willingness to participate in today's hearing.
The Energy Employees Occupational Injury Compensation
Program, known as EEOICPA, was created 7 years ago through a
bipartisan effort here in the Senate. The program's mission is
to provide compensation for certain nuclear workers who have
become ill as a result of radiation and other toxic
occupational exposures while working in federally funded
nuclear programs. EEOICPA provides lump-sum compensation and
health benefits to eligible employees as well as lump-sum
compensation to certain survivors if the worker is deceased.
It is entirely appropriate for this committee to conduct
oversight of the EEOICPA program's administration from the
perspective of the claimant. We need to know if the program is
working as Congress intended. As most of us know, EEOICPA
duties are distributed among three separate cabinet
Departments--Energy, Labor, and Health and Human Services--and
also involve an independent Board and an Ombudsman. This
complex administration has required some readjustment over the
years as it became apparent that claimants were not all as
well-served as possible. Like the original legislation, the
changes made in 2004 were again accomplished through bipartisan
efforts. That approach served the beneficiaries of the
legislation well, and will hopefully serve as a guide for any
future actions.
How well is EEOICPA working? Certainly, improvements have
been made, and there is no question that many Americans have
benefited. Thirty-four thousand four hundred and nine
individuals have received over $3 billion in payments under
EEOICPA to date. Of those, about 25,000 are actual employees,
and the rest are survivors. In my home State of Wyoming, more
than $6.5 million has been distributed to just over 100
claimants.
Is the program sufficiently claimant friendly? There are
obviously many ways to measure an answer. The scientists who do
the very technical work of determining what each employee may
have been exposed to have recommended compensation for a far
greater percentage of applicants than was initially projected.
Over the program's short existence there has been a great deal
of valid concern about the backlog of claims bottle-necked at a
number of different administrative junctions and agencies. As
I'm sure our first panel of witnesses will attest, that backlog
has been greatly reduced and I hope we will congratulate them
for that.
Additionally, the Department of Labor has established 11
Resource Centers to assist workers and their families apply for
benefits under the Program. The Department has strategically
located those Resource centers in areas likely to have a large
number of potential claimants. The centers also assist
potential claimants over the phone so geography is not an
impediment. Four EEOCIPA claim processing district offices are
also geographically distributed across the country to provide
claimants direct access to their claim processors. The
Department of Labor has also taken its show on the road. The
Division of Energy Employee Occupational Illness Compensation
[``DEEOIC''] has held over 150 Town Hall Meetings, and
sponsored some 27 Traveling Resource Centers to explain the
program and provide filing information and assistance. DEEOIC
has also hosted over 80 site exposure matrix roundtables
designed as a resource for claimants to connect any
occupational exposures to disease experience.
Finally, the EEOICPA program has an independent Ombudsman
who provides assistance to claimants under the program's Part
E, which targets contractor employees. The EEOICPA Ombudsman
has also reached out to provide assistance to claimants by
holding a half dozen special Town Hall Meetings to assist
filers. Earlier this month, the Senate passed legislation
extending the EEOICPA Ombudsman authorization another 5 years
to 2012.
Today we will be able to look beyond the numbers such as
the number of claimants served, the percentages compensated,
and the amount of assistance and resources available. I look
forward to hearing more from today's witnesses about the
program's ``claimant friendliness.'' If there are problems,
let's get them out in the open and start discussing solutions.
Prepard Statement of Senator Harkin
Mr. Chairman, I thank Senator Bingaman for chairing this
critical hearing, and salute him for his long steadfast
dedication to this issue. This has been a long hard road for
all of us involved, but a longer and harder road for these
workers, who by definition are very sick and have to fight not
just the illnesses they contracted in service to our country
but a complex and sometimes very confusing program.
My involvement with compensating sick workers began with a
letter I received from a sick worker, Bob Anderson, back in
1997. As a part of a community college course, he was supposed
to write a letter to a Member of Congress. He decided to write
about something very close to his heart--I am sick, and I think
it is because I used to work for a contractor here in Iowa that
manufactured nuclear weapons. At that time, very few people
knew the Iowa Army Ammunition Plant was ever even involved in
such manufacturing.
Over the years, we worked to get the veil of secrecy
lifted. We worked to find lost records and create a program to
compensate these sick workers. Two years ago, NIOSH approved
the designation of a Special Exposure Cohort for many of these
sick workers. It is hard to describe the feeling of winning
such a long, hard-fought victory.
To date, over $2 billion in claims and medical expenses
have been paid under part B, and thanks in large part to the
program amendments in 2004, almost $850 million has been paid
under Part E. But far more claims have been denied or are still
waiting for approval due to lack of information.
We have a long way to go. This is an incredibly complicated
issue, involving difficult scientific analysis of dose
reconstruction, patterns of illness, even material questions of
employment histories. There is no question in my mind that the
Special Exposure Cohort designation process takes too long or
that it is too difficult. Claimants have to deal with a very
difficult process, marked by complicated paperwork, burdensome
burden of proof requirements, and problems contacting the right
agency and getting answers that are understandable. There is a
lack of uniformity in the application of the law with regard to
proof of employment and proof of disease.
At the outset of this hearing, I would say to the involved
agencies that in helping us to compensate these sick workers
that we remain focused on the best available science and
exposure information. The cost of doing what we need to do to
be fair to these folks is going to be significant. But, you
cannot and should never put a price on justice. We, as a
society, owe these workers for giving up their health and
sometimes their lives to do what was asked of them by their
government.
I think there are a number of things that Congress can do
to improve communication between agencies, make the process
more transparent, improve the SEC process, and make it easier
for claimants to navigate the process. I hope to work together
with my colleagues to do so in the 110th Congress, and look
forward to the information and cooperation that this panel has
to offer to us in that process.
Prepared Statement of Senator Clinton
Mr. Chairman, thank you for allowing me to submit testimony
on this important matter.
When Congress passed EEOICPA in 2000 and then amended the
statute in 2004, the law promised timely compensation to former
workers in the Nation's nuclear weapons complex. Unfortunately,
the program has been implemented in a way that falls far short
of this goal. One of the major failings of the program has been
the dose reconstruction process, which has been too reliant on
inadequate information. I have seen this in detail at the
Bethlehem Steel site in Lackawanna, NY.
Like workers at many other sites around New York and our
country, Bethlehem Steel employees were essential to our cold
war effort. These people literally built our nuclear arsenal in
the decades after World War II and helped us eventually to win
the cold war. In the late 1940s and early 1950s, the government
contracted with Bethlehem Steel, which is in Buffalo, to roll
uranium at their plant. But the workers weren't told what they
were working with. They weren't provided with safety equipment
to shield them from radiation. They weren't monitored to
determine how much radiation they were being exposed to. But if
you talk to the workers who I've spent time talking to, or to
their spouses, or their children of workers who have passed on,
you know that this was hot, dirty work. Uranium dust was thick
in the air. They breathed it. They coated their hands with it.
They would sit on areas in the plant to eat lunch and put their
lunch down and the uranium dust would be on their sandwiches.
They ingested it. It covered their work clothes.
So it's not surprising that many of them got cancer. And
for decades they petitioned their government for help and have
been denied. Congress finally did the right thing in 2000 with
the act that you are examining in this hearing today. This was
a landmark law and it was such in the tradition of our country
to acknowledge the wrong that the government had done, and
promise timely compensation to workers and their survivors.
As workers and their survivors brought forward information,
it became clear that there were great disparities between the
site profile that NIOSH had developed and actual conditions at
the plant. As a result, I became convinced that reconstructing
doses for Bethlehem Steel workers is an impossible task. It
shouldn't be surprising. After all, we're talking about work
that occurred in secret 50 years ago and before modern
radiation monitoring and safety practices had been developed.
When Congress passed the law in 2000, it recognized that
reconstructing doses would be impossible in many cases, and
that's why the special cohort process was included in the law.
The statute to my reading is pretty clear. It says that if the
government doesn't have the information to reconstruct doses
then workers should be given the benefit of the doubt and their
claims should be paid. More precisely it provides for classes
of workers to be added to a special exposure cohort if it's not
feasible to estimate the radiation doses with sufficient
accuracy, and there is reasonable likelihood that the radiation
dose may have endangered their health. I don't think we could
have a clearer case than Bethlehem Steel, where not a single
worker wore a radiation badge; where the only radiation
measurements we have are a handful of air samples; where the
workers rolled uranium and where many of them contracted
radiation-related cancers.
Unfortunately, this Administration has implemented EEOICPA
in a way that refuses to give workers the benefit of the doubt
in cases where the available data makes dose reconstruction
impossible or highly unreliable. The Bethlehem Steel workers
have a petition pending with the Advisory Board, and I have
urged them to approve it. But I believe Congress needs to amend
the Special Exposure Cohort process in light of the way the law
is being implemented. To that end, I have introduced
legislation with Senator Schumer, and I urge the committee to
consider this legislation as you move forward after this
hearing.
Prepared Statement of Senator Obama
Senators Kennedy and Enzi, let me thank and commend you for
holding this very important hearing to assess whether the men
and women who developed our Nation's nuclear weapons program
are being treated fairly by the Federal Government as they
apply for benefits under the Energy Employees Occupational
Illness Compensation Program Act (EEOICPA).
As you are well aware, there remain many questions as to
whether those Americans who qualify for benefits under EEOICPA
are having their claims processed fairly and in a timely
manner.
I first began hearing about the plight of Illinois' former
nuclear weapons workers shortly after taking office in 2005. I
have since met with many workers and their families, and my
office has written dozens of letters to, and held numerous
meetings with, the agencies responsible for implementation of
this program. We have sought to clarify agency processes and
decisions, encourage program changes to benefit claimants, and
secure thousands of pages of classified and previously
unreleased documents in an effort to bring greater
understanding to the often secret and undocumented work these
claimants performed.
To date, hundreds of Illinois' former nuclear weapons
workers have received compensation under EEOICPA, although my
advocacy has been for the most part limited to helping workers
of the Dow Chemical Corporation (Madison), General Steel
Industries (Granite City), Blockson Chemical (Joliet) and
Allied Chemical (Metropolis, IL) plants, which have the
majority of claims among Illinois' 29 EEOICPA-covered sites.
My advocacy for these nuclear weapons workers has at times
required me to give voice to the frustrations claimants have
had with the agencies who administer EEOICPA, including Health
and Human Services (HHS), the National Institute for
Occupational Safety and Health (NIOSH), Department of Labor
(DOL), and the Department of Energy (DOE). Although I recognize
the very difficult and complex task these agencies have,
improvements are necessary to EEOICPA because legitimate
questions have been raised about the program's fairness and
efficiency.
For the most part, the frustrations expressed to me by
claimants and their families are related to the timeliness with
which claims are processed and the fact that many do not have
confidence in the scientific decisions on which their claims
are based.
With regard to timeliness, dozens, if not hundreds, of
workers at the former Dow Chemical Plant in Madison, IL still
have not received a final decision on their claim. Most of the
claimants began filing their claims in 2001, nearly 7 years
ago. Currently, most of these claims are still undergoing the
process of dose reconstruction, as performed by NIOSH.
Six years is far too long to wait for a claim to be decided
in any compensation program. In this case, when we are dealing
with the men and women who performed the dangerous work
required to develop our Nation's nuclear weapons program and
who now are elderly and sick, getting decisions made in a
reasonable timeframe is critical to this compensation program's
credibility.
I encourage the committee to explore legislation which
would impose a statutory deadline for when a final decision
must be rendered on each claim. For example, the committee
should explore the feasibility of imposing a 12-month time
limit on the dose reconstruction process. Under this time
limit, the Department of Labor would have 90 days to forward a
claim to NIOSH, which would then have 365 days to complete a
dose reconstruction and return the claim to the DOL, which
would then have 90 days to review NIOSH's recommendation and
provide a final decision to the claimant.
Under such a time constraint, the entire EEOICPA claims
process would be completed within 18 months. If the Department
of Labor and NIOSH could not process a claim within this time
period, the claim should be paid immediately. In those cases
where a delay is caused by the claimant, usually because they
are trying to obtain medical records or verification of their
employment at an EEOICPA-covered facility, the claim should be
re-opened and the time limit extended as needed.
With respect to concerns that final claims decisions have
not been made through a process in which claimants can have
confidence, I offer the following recommendations:
1. The committee should investigate a legislative remedy
which will provide compensation to claimants on either a
sliding scale based on Probability of Causation (POC) scores or
based on years of employment.
As of September 27, 2007, 11,911 claims had a completed
dose reconstruction (DR) with a POC less than 50 percent, with
4,427 claims having a POC between 30 percent and 49 percent.
Given the numerous questions that exist about how the dose
reconstruction process is conducted--including questions about
the weight DOL and NIOSH give to worker testimony and the
recent finding that DOL claims examiners often ignore worker
testimony provided in DOL worker interviews--the POC scores
assigned to claims should be viewed with a healthy amount of
skepticism.
Congress could act to compensate claims as a percentage of
the POC score. For example, claimants with a score of 42
percent would receive 42 percent of $150,000. As of September
27, 2007, 1,875 cases had a POC score between 40 and 49
percent. It is difficult to understand from a scientific basis
how one claimant with a POC score of 50.1 percent deserves
$150,000 but a claimant with a score of 49 percent deserves no
compensation at all. As Advisory Board on Radiation and Worker
Health member and occupational pulmonary physician Dr. James
Lockey noted in a June 4, 2007 letter to me:
``This all or nothing dividing line will continue to
be a source of contention and should be revisited. The
process should not put workers in conflict with each
other or with the various Federal agencies and Congress
who are trying to be responsive.''
Congress could also examine whether compensating workers
based on years of employment would be a more credible
compensation method. As Dr. Lockey explains:
``It is my suggestion that a simpler and less
contentious award compensation process for nuclear
production workers be based on the years employed in
the nuclear production industry within potential
radiation exposure job tasks. The monetary award should
be based on cumulative years worked and executed in a
linear fashion.''
2. The Congress should act to address the lack of
transparency with which claimant decisions are made. For
example, any information used to deny a claim or an SEC
petition should be made automatically available to the claimant
and or petitioner. Additionally, if the final decision about
whether a claim should be approved or denied rests on
classified information that cannot be made available to the
claimant, there should be a presumption in favor of approving
the claim.
After recently listening in on the ``close-out'' interviews
of claimants as conducted by Department of Labor personnel, the
Advisory Board auditor, Sanford, Cohen and Associates (SC&A),
issued a report which says in part that auditors found
``potential for inconsistency and arbitrariness in how concerns
are researched, communicated and resolved.'' This finding
supports concerns I have had for some time that testimony given
by workers as to the conditions they worked under, the
chemicals, metals or other substances they worked with,
processes used, or safety measures implemented, is not factored
into decisions by Labor or NIOSH staff in a systematic and
transparent way.
3. Numerous concerns still exist about the Advisory Board
on Radiation and Worker Health, including the balance of member
perspectives on the Board. The legislation establishing EEOICPA
addresses this issue:
``The President shall make appointments to the Board
in consultation with organizations with expertise on
worker issues in order to ensure that the membership of
the Board reflects a balance of scientific, medical and
worker perspectives.''
Unfortunately, the President has ignored congressional
intent on this subject, and questions remain as to whether or
not the board is stacked against claimants. Currently, there
are 12 members of the Advisory Board; six members have a
science perspective, four maintain a worker perspective and
only two represent a medical perspective.
An October 2007 GAO report entitled ``Energy Employees
Compensation--Actions to Promote Contract Oversight,
Transparency of Labor's Involvement, and Independence of
Advisory Board Could Strengthen Program,'' notes in part:
The process by which board members are appointed is
also not clearly established or uniform, presenting a
challenge to the advisory board's independence . . .
neither the act nor the executive order implementing
the act specifies criteria for nominating and selecting
board members . . . members of Congress and the
claimant community have raised concerns about potential
influence by Labor and NIOSH to reduce the number of
worker representatives in order to shape the outcome of
the board's decisions on SEC petitions. These concerns
were precipitated by internal Labor correspondence in
2005 that characterized the advisory board as being
essentially a worker advocacy organization and noted
that a change in membership would be critical to
counteracting the pressure to add more classes to the
SEC.
I urge the committee to consider potential legislative
remedies to correct the imbalance on the Advisory Board and the
resulting perception that this imbalance affects the fairness
of the Board's decisions.
In summary, I applaud the committee for holding a hearing
on this important issue and believe that additional hearings
would be useful to determine what steps we can take in the
Congress to improve the efficiency, transparency, and
credibility of EEOICPA. Thank you.
Prepared Statement of Senator Schumer
Thank you for the opportunity to address this issue. I
appreciate the opportunity to share my views on the
administration of EEOICPA. This is an incredibly important
program, and I am disappointed that for many claimants it has
not lived up to the mandate which Congress gave the
Administration: that all claims must be decided in a claimant-
friendly manner. I am hopeful there will be changes that will
make the administration of this program more efficient, timely,
and just.
The Energy Employees Occupational Illness Compensation
Program Act (EEOICPA) was created by Congress to compensate
cold war-era laborers who became sick as a result of their work
at nuclear production facilities directly managed or financed
by the Federal Government. This law was designed to bring
justice to these unsung heroes and find the swiftest, fairest
way to speed compensation to victims of radiation exposure.
The administration of this program has a clear record--it
is not being administered in a claimant-friendly manner. It's
time that this administration step up to the plate and bring
these cold war heroes the compensation they deserve.
I have spoken with and received correspondence from many
former workers and the spouses and children of former workers
who were employed at such facilities all across New York State.
They have told me heartbreaking stories of debilitating
cancers, and have expressed frustration over the program's
seemingly endless bureaucracy, and delays. In many cases, the
application process has lasted 5, 6, even 7 years--often beyond
the litespans of the claimants and their spouses. This
excessive review period and bureaucratic process confound the
law's purpose and its spirit.
The administration spends unwarranted amounts of time
reviewing applications and arriving at decisions on site
profiles. Dose reconstructions are frequently based on faulty
or insufficient data and special exposure cohort status claims
are locked in seemingly endless review. Sick and dying workers
are denied their due compensation because of these problems in
calculation and administration.
This program is delaying justice for an increasingly aging
population of cold war heroes. It mires decent people in a
bureaucracy that is insensitive to the pain and hardship these
claimants have already suffered for their country.
I have several kind suggestions for putting the program
back on track.
First, expedite dose reconstructions and bring answers to
the families of cold war heroes. so compensation can be
delivered with all due speed. The lengthy waits for
compensation are unacceptable, particularly as aging claimants
and their spouses are, sadly, already beginning to pass away.
In these cases, and particularly under Part E of the EEOICPA,
justice deferred is justice never conferred. Delay and
bureaucracy are enemies of a claimant-friendly process, and
more efforts must be made to streamline the review process and
speed compensation.
Second, promptly expand the number of classes to the
Special Exposure Cohort (SEC). This designation was created by
Congress because of deficiencies in data for sites where
records are insufficient to document the full breadth of
radiation exposure workers have experienced. Ill workers and
their hopeful families are being denied compensation for their
sacrifices not because they aren't deserving of justice, but
because the administration of the program is inaccurately
assessing the probability of the government's responsibility
for their diseases. Since there is no way to verify whether
comparisons between similar plant sites are accurate, there is
no way to determine whether proxy data is claimant-friendly or
not, and therefore cannot meet the legal requirement under
EEOICPA that the dose reconstructions are also claimant-
friendly. It is the clear intent of the EEOICPA to permit
Special Exposure Cohort (SEC) status in these situations, and
all evidence points to administration practices that deny and
delay the determination of this status at sites where the lack
of evidence should give every benefit of the doubt to claimants
who worked at these sites. That tendency should be reversed
immediately so justice can be assured.
Every effort must be made by the administration to pare
down bureaucratic delays and missteps that are denying
compensation to our cold war heroes. These men and women need
their government's assistance, and their families need to be
assured that their country acknowledges their sacrifices and is
deeply grateful to them. Thank you for your consideration.
Prepared Statement of Senator Salazar
Thank you, Chairman Kennedy and Ranking Member Enzi, for
holding this hearing today. The issue of whether the Energy
Employee Occupational Injury Compensation Program (EEOICP) is
claimant friendly is critically important and timely. Reports
from the Office of the Ombudsman for the EEOICP Part E, and
past congressional hearings have revealed considerable claimant
dissatisfaction with the Program and a concerted effort to deny
compensation to many workers. I hope that the evidence
collected through this hearing will inspire swift congressional
action to grant compensation to our cold war heroes and enact
necessary Program reforms. Although I am not a member of this
committee, I look forward to working with you to ensure that
these goals are met.
The Energy Employee Occupational Injury Compensation
Program Act (EEIOCPA) was enacted to compensate American
workers (and certain survivors) who put their health and life
on the line to serve our Nation during the cold war. These
brave men and women worked in laboratories and factories in the
United States building nuclear weapons that led to the fall of
the former Soviet Union. Sadly, many of these cold war Veterans
were exposed to toxic and carcinogenic properties that made
them very sick.
But while thousands of workers are successfully applying
and receiving benefits, too many face incredible obstacles as
they try to demonstrate that they qualify for benefits. Some
workers may not be able to prove that their cancers were caused
by their work in nuclear weapons facilities, whether due to the
lack of records or other problems that make it difficult or
impossible to determine the dose of radiation they received. To
protect these workers, Congress designated a Special Exposure
Cohort (SEC), a provision in the EEOICPA to enable workers to
receive benefits if they suffered from one of the specified
cancers known to be linked to radiation exposure.
From 1951 to 1988, approximately 23,000 individuals worked
at the Rocky Flats plant located 16 miles Northwest of Denver,
Colorado. Throughout the years, many Rocky Flats workers
processed plutonium, one of the most dangerous substances that
exists, and crafted it into triggers for atomic weapons.
Through five decades, Rocky Flats workers were exposed to toxic
and carcinogenic properties, including beryllium, radiation and
other hazards.
On February 15, 2005, Rocky Flats workers filed a SEC
petition to receive compensation. After 3 years of patiently
and diligently making their case to the Federal Government, the
Advisory Board on Radiation and Worker Health made its
recommendation on June 12, 2007. The Board recommended SEC
inclusion for only those plutonium workers employed at Rocky
Flats from January 1, 1959 to December 31, 1966. In other
words, the Board voted (6 to 4) to exclude from the SEC all
pre-1966 workers other than plutonium workers and all post-1966
Rocky Flats workers. This should limit the number of Rocky
Flats workers who receive benefits to approximately 2,000 to
3,000 workers. Secretary Leavitt recently approved the Board's
recommendation.
The men and women who worked at Rocky Flats served a
critical role in a program deemed essential to our national
security by a succession of Presidents and Congresses. Several
of these workers have died without receiving the healthcare or
compensation they deserve. In fact, a combination of missing
records and bureaucratic red tape has prevented many Rocky
Flats workers from accessing benefits. Our government failed
these workers when they maintained shoddy, inaccurate, and
incomplete records.
Furthermore, after years of research and review, many
questions remain about the reliability of data and the ability
of National Institute of Occupational Safety and Health to
accurately measure exposure to toxic materials. On March 1,
2007, I introduced S. 729, The Rocky Flats Special Exposure
Cohort Act. S. 729 would extend SEC status to workers employed
by the Department of Energy or its contractors at Rocky Flats
according to the stringent requirements of the act.
With the SEC designation, a Rocky Flats worker suffering
from 1 of the 22 listed cancers can receive benefits despite
the inadequate records maintained by the Department of Energy
and its contractors. I urge this Congress to act now to stop
impeding Rocky Flats workers' ability to receive the
compensation they deserve. The cold war veterans of Rocky Flats
have waited long enough.
In conclusion, I am eager to work with members of this
committee to develop and implement much needed reforms to the
EEOICP. I also urge the Senate to swiftly take up and pass S.
729 to grant compensation to Rocky Flats who put their health
and life on the line for the Nation.
Prepared Statement of Representative Mark Udall
Chairman Kennedy and members of the committee, thank you
for allowing me to submit this statement for the record of this
important oversight hearing.
The Energy Employees Occupational Injury Compensation
Program Act (EEOICPA) is very important for Colorado because
thousands of Coloradans worked at Rocky Flats--a nuclear-
weapons site near Denver that has now been cleaned up and
closed--as well as some other sites covered by the law. Many of
them developed beryllium disease, cancer, or other ailments
from being exposed to beryllium, radiation, or other hazards.
Since coming to Congress in 1999, I have worked with our
colleagues on both sides of the aisle and both ends of the
Capitol to enact a compensation program for them and others
with similar problems from their work at other sites in the
nuclear-weapons complex.
After the Clinton administration, led by Secretary of
Energy Bill Richardson, reversed the position of previous
Administrations--that claims for compensation were to be
resisted--and asked Congress to establish a compensation
program, a number of us introduced legislation to accomplish
that objective, and was among those who strongly supported the
EEOICPA provisions that were finally enacted into law.
However, shortly thereafter a new Administration--that of
our current President--came into office. And, regrettably, it
has not been as strong an advocate of the program as its
predecessor.
To put it bluntly, the Bush administration inherited this
program, and since then they have both mismanaged it and tried
to undermine it.
The part run by the Department of Energy (DOE) was so
mismanaged that a Republican-controlled Congress took it away
from DOE and assigned it to the Labor Department (which already
ran the rest of the program) in 2004. Before that transfer, DOE
had spent over $90 million for administrative costs in 4 years,
but only about 5 percent of the over 25,000 claims filed had
been completely processed.
In connection with that transfer, to make the program more
claimant-friendly, the Defense Authorization Act of 2005
created the Office of the Ombudsman for a 3-year period to
provide information to claimants and potential claimants on the
benefits available under the new Part E of the Act.
Under that legislation, the independent Ombudsman was
assigned four primary responsibilities:
to provide information to claimants, potential
claimants, and other interested parties on the benefits
available under the new Part E and the requirements and
procedures applicable to the provision of those benefits;
to make recommendations to the Secretary of Labor
regarding the location of resource centers across the country,
which claimants can contact for assistance in the acceptance
and development of Part E claims;
to issue an Annual Report to Congress detailing
the number and type of complaints, grievances and requests for
assistance received by the Office of the Ombudsman that year,
and an assessment of the most common difficulties encountered
by claimants and potential claimants during that year; and
to make recommendations for improving the
administration of Part E of EEOICPA.
The authorization for the Ombudsman's office expired on
October 1, the start of the current fiscal year. During the
markup of the Defense Authorization bill for fiscal year 2009
in the House's Armed Services Committee, I won adoption of an
amendment to extend the office and expand its authority so it
can more fully serve claimants. And during its floor debate,
the Senate adopted an amendment by Senator Levin, on behalf of
Senator Kennedy, to extend the Ombudsman's authority.
Along with other members of the Armed Services Committee, I
expect to be a conferee on the authorization bill, and will
work to have the conference report provide for keeping the
Ombudsman in business.
And, with Representative Tom Udall of New Mexico and
several others--including Representatives Slaughter of New
York, Wamp of Tennessee, Whitfield of Kentucky, and Hastings of
Washington--I am sponsoring legislation (H.R. 2255) to make the
office permanent and to expand its duties.
Under our bill, the Ombudsman would be directed:
1. To assist individuals in making claims;
2. To provide information on the benefits available and on
the requirements and procedures applicable to the provision of
such benefits;
3. To act as an advocate in appropriate instances, as
determined by the Ombudsman;
4. To make recommendations to the Secretary of Labor
regarding the location of resource centers for the acceptance
and development of claims for benefits; and
5. To carry out such other duties as the Secretary of Labor
shall specify.
The bill would also authorize the Ombudsman to inform
Congress regarding changes in administrative practices mitigate
difficulties encountered by claimants and potential legislative
changes which may be appropriate to mitigate such difficulties.
And it would authorize the Ombudsman to hire or contract for
supplies or services, including the services of experts in
relevant disciplines, including health physics, medicine,
industrial hygiene, and toxicology, as the Ombudsman may
consider appropriate.
However, as I mentioned, right now the Ombudsman's office
is somewhat in legal limbo because its formal authorization has
lapsed.
I understand the Labor Department is prepared to make
arrangements to enable it to continue its work, at least for a
while, while Congress considers the question of its future
status. I hope that happens, and I hope that the Labor
Department and the rest of the Administration will work with us
to assure its continuation with additional authority. But I am
somewhat wary, because of past experiences.
I say that because there is strong evidence to suggest that
not very long ago the Labor Department led an effort to distort
an important part of the overall EEOICPA program--the provision
for adding additional workers to the Special Exposure Cohort
through an unbiased, science-based review of petitions.
Fortunately, that behind-the-scenes effort was exposed when
the press, and then the House's Judiciary Committee, came into
possession of an OMB ``passback'' document that revealed what
was afoot.
As I read it, the document showed that the Administration
seemed ready to put concern about dollars above concern for
sick cold war veterans.
And that was not just my interpretation. Representative
Hostettler, the Republican from Indiana who chaired the
Judiciary Committee's subcommittee that looked into the matter,
said that the OMB document ``sets out a plan to . . . base SEC
status approvals on budget concerns rather than the scientific
basis mandated by law.'' In my opinion, he hit the nail right
on the head.
Since that public rebuke, the Administration has repeatedly
stated that it has abandoned the idea of cost-containment as an
approach to implementing the law.
I hope that is true, but I have to say that I remain
concerned that the Administration is prepared to treat the
nuclear-weapons workers like the wounded veterans at Walter
Reed. Nobody in the Defense Department planned to inflict harm
on wounded soldiers--the problem was negligence and
indifference--and, at its best, the OMB document suggested the
same with regard to at least part, and perhaps all, of the
EEOICPA program. But while Secretary Gates insisted on
accountability for the Army's failures at Walter Reed, I am not
convinced that the Administration will insist on the same
degree of accountability when it comes to EEOICPA. So, Mr.
Chairman, I think that the attitude of Congress--including this
committee--should be the same as President Reagan's attitude
toward agreements with the Soviets--trust, maybe, but verify
for sure.
Accordingly, I applaud you for holding this hearing. I will
carefully review the testimony that will be presented and look
forward to working with you and our colleagues in the Congress,
to take whatever steps are needed--including further
legislation to the extent that is necessary or desirable--to
improve this very important compensation program.
In that connection, I want to call your attention to
legislation pending in this body that specifically deals with
the case of the people who worked at Rocky Flats.
It is S. 729, the Rocky Flats Special Exposure Cohort Act.
Introduced by Senator Salazar, it is the Senate companion to
H.R. 904, my bill of the same name. Both bills would amend the
compensation act so as to include as members of the Special
Exposure Cohort all those who were employed at Rocky Flats by
DOE or a DOE contractor or subcontractor for an aggregate of at
least 250 work days before January 1, 2006.
The result would be to help provide the act's benefits to
any of those workers who contracted a radiation-linked cancer
specified in the act after beginning employment at Rocky Flats.
As you know, before a worker who is suffering from a
covered cancer but not included in the special exposure cohort
can receive benefits, it must be established that the cancer is
as likely as not to have resulted from on-the-job exposure to
radiation. That sounds like a reasonable requirement--and it
would be appropriate for Rocky Flats if we had adequate
documentation of radiation exposures for the years when it was
producing nuclear-weapons components as well as for the more
recent time when DOE and its contractors have been working to
clean it up and prepare it for closure. However, in fact there
were serious shortcomings in the monitoring of Rocky Flats
workers' radiation exposures and in the necessary
recordkeeping--to say nothing of the slowness of the current
administrative process for making the required determinations
concerning links between exposure and employment.
So there is a risk that a significant number of Rocky Flats
workers who should be able to benefit from the act will not
obtain its benefits in a timely manner or will be denied them
entirely. Our legislation would prevent this miscarriage of
justice, by recognizing that Rocky Flats workers have been
plagued by the same kinds of administrative problems that
entangled workers at some other locations--problems that were
addressed through inclusion in the act of the provisions
related to the ``Special Exposure Cohort.''
The Rocky Flats workers have sought to be added to the
cohort through the petition process provided for in the act--
the same process that would have been the target of the cost-
containment program the Administration clearly contemplated but
now says it has renounced. Their petition was strongly
supported by the entire Colorado delegation, in both the Senate
and the House of Representatives, as well as by Governor
Ritter. Regrettably, however, it was approved only in small
part, leaving most of the afflicted former Rocky Flats workers
still confronting the daunting challenge of trying to obtain
compensation through the labyrinthine process that you will be
exploring at today's hearing.
Secretary Leavitt's decision on the Rocky Flats petition is
under administrative appeal, but regardless of the outcome of
that appeal there remains the question that is the subject of
the hearing--Is the Program Claimant Friendly for Our Cold War
Heroes?
My answer is that it is not--or at least not sufficiently.
I look forward to learning what your witnesses will have to say
and what this committee will conclude after hearing their
testimony.
In conclusion, I would just reiterate what you already
know, Mr. Chairman and members of the committee--this
compensation program is not just about money. It is about the
government's honor and the honor of our country. The nuclear-
weapons workers served America well, and honor demands that
they be well served in return.
Thank you for the opportunity to submit this statement.
Prepared Statement of Mark Ayers, President, The Building and
Construction Trades Department, AFL-CIO, Washington, DC.
Mr. Chairman and members of the committee, on behalf of the
Building and Construction Trades Department, AFL-CIO, its affiliated
unions and their members, we are seeking your assistance in redressing
a wrong that continues to plague current and former construction
workers employed at Department of Energy (DOE) nuclear facilities.
Many of these workers have, through no fault of their own, been
denied benefits under the Energy Employees Occupational Illness
Compensation Program Act.
A central issue for these workers is the lack or inadequacy of
radiological exposure records for their period of employment at the
facilities. It was the responsibility of DOE and its contractors to
require and maintain such records. Now many workers with radiological
cancers find themselves in the untenable position of trying to prove
radiation exposure when the necessary records either do not exist or
are inadequate.
Although the law provides for a system to address this issue, the
administrative process is slow, complicated, cumbersome and often
subject to an insensitive bureaucracy at the Departments of Labor (DOL)
and Health and Human Services (DHHS). Both the DOL Ombudsman as well as
an independent study commissioned by NIOSH documents many of these
failures.
The numbers speak for themselves. Out of a total of 85,676 claims
filed for radiological cancer compensation under ``Part B'' of the
program, only 20,362 have been paid. The Department of Labor has
rejected nearly 70 percent of the claims.
While there is no question that the system and the bureaucracy can
be improved, the fundamental problem is the law itself.
Subpart B of EEOICPA provides Federal compensation of $150,000
(plus future medical benefits) for radiological cancers, beryllium
disease, and silicosis. Subpart B is administered by DOL but requires
the DHHS/NIOSH to:
(1) Conduct individual dose reconstructions for every claim to
determine if radiation could be the cause of the illness claimed by the
worker; or
(2) Absent a dose reconstruction, determine whether the claimant
should be included in a Special Exposure Cohort (SEC) which presumes
that radiation caused 1 or more of 22 different cancers, and pays
claimants if they have one of these cancers.
Dose reconstructions are very difficult, if not impossible, where
exposure records are either missing or inadequate. Under current law
and regulations, the burden of proof lies with the claimant, rather
than the government, even though the government was responsible in the
first place for producing and maintaining the records.
Special Exposure Cohort: Congress recognized that many workers
employed in nuclear weapons facilities were either unmonitored or
inadequately monitored for occupational exposure to ionizing radiation
and therefore faced an insurmountable hurdle of establishing their
radiation dose to prove their claim for cancer. Moreover, there was
ample evidence that radiation exposure records were missing,
incomplete, unreliable or altered. This is particularly true for
construction workers.
The act therefore created ``Special Exposure Cohorts (SEC)'' by
which, claimants from SEC sites are not subject to dose reconstruction
requirements and are presumed to have had the radiation dosage that
caused their compensable cancer.
By legislative mandate, the original act designated four sites as
SEC: three Gaseous Diffusion Plants (Portsmouth, Paducah, Oak Ridge)
and the Amchitka Island Test Site. All the workers at these sites had
to prove was (1) they worked at the sites for a specified period of
time and (2) they had one of the compensable Part B diseases.
In addition, the act included provisions that allowed claimants to
petition to become members of an SEC. Unfortunately, the petition
process is slow, cumbersome and hamstrung by bureaucratic inertia.
Moreover, there is evidence of political tampering in an effort to
retard the petition process.\1\
---------------------------------------------------------------------------
\1\ See House Committee on Judiciary, Subcommittee on Immigration,
Border Security & Claims, United States House of Representatives, 109th
Congress, ``The Energy Employee Occupational Illness Compensation
Program Act: Are We Fulfilling the Promise We Made to These Veterans of
the Cold War when We Created the Program.''
---------------------------------------------------------------------------
Thus far only 22 such petitions have been approved covering a
limited number of workers, and many of these were the result of
specific legislative initiatives and congressional pressure.
We believe that the time has come for the Congress to remedy this
unfair situation by amending the act to fix the problems inherent in
the SEC process. The same presumptions that underlie the original SECs,
should apply to all otherwise qualified workers.
Specifically, we recommend that Subpart B be amended to streamline
and simplify the SEC process by providing:
(a) Workers who meet the following criteria would be automatically
included in an SEC if they were (1) engaged in covered employment in a
covered facility; (2) had a covered illness; (3) worked more than 250
days in a covered facility; and (4) their radiation monitoring records
cover less than 75 percent of the employment period.
(b) For workers not covered under the above, the process of
petitioning for inclusion in the SEC should be simplified by: (1)
setting a deadline of 90 days for DHHS/NIOSH to review petitions; (2)
simplifying and reducing the need for review of DHHS/NIOSH decisions by
the DHHS/NIOSH Advisory Committee; (3) establishing that NIOSH may
incorporate groups of workers into the SEC so that this does not have
to be done on a worker-by-worker basis; (4) applying the same
decisionmaking used for the Gaseous Diffusion Plants that currently are
included in the SEC.
The effect of section (a) will be to include within the statutory
SEC determination workers from major nuclear weapons facilities such as
Savannah River, Hanford, Los Alamos, Oak Ridge (in addition to the
already included Gaseous Diffusion Plant Workers) and the Nevada Test
Site.
In addition, we believe that there should be five technical
amendments designed to: (1) cover certain illnesses linked to hazardous
exposures that are peculiar to DOE but that were not covered in the
act; (2) pay for diagnostic evaluation by experts in occupational
medicine where a health problem appears to be linked to DOE work; (3)
provide additional independent assistance to claimants so that the
process becomes less burdensome; and (4) cover certain subcontractor
employees that were inexplicably excluded from the original legislation
and (5) change the date of eligibility for benefits from the current
requirement, which is the date when the application for compensation is
filed to the date when the covered illness was diagnosed.
The EEOICPA was enacted with the best of intentions. For those
workers and their families fortunate enough to qualify for benefits, it
has been a godsend. However, far too many who are no less deserving
have been left out and denied. The amendments we have suggested would
go far in redressing this egregious situation for those who, in many
cases, gave their lives to protect this country during, the darkest
days of the cold war.
Towards that end we urge this committee to consider our request for
this proposed legislation.
Prepared Statement of Sylvia Dodson, Knoxville, TN
I would like to submit a statement for the hearing. I would like to
request that when there is no living spouse that the surviving children
be compensated under Part E. Our father died of lung cancer and bone
cancer and cancer in every organ of his body. He worked 41 years at Oak
Ridge K-25. His many years of exposures to toxins and chemicals and
uranium took his life at the age of 63. Compensating his surviving
children is the least our government should do. No one can put a price
on a person's life. We know these years of exposure are what shortened
his life and caused his death. Compensating the surviving children
would help give us some sort of closure of the horrible memories of
pain and suffering he went through.
Thank you, surviving daughter's of J.O. Dodson--Sylvia Dodson and
Bettye Kaye Richeson.
Prepared Statement of Deb Jerrison, Yellow Springs, OH*
In 2005 my mother asked me to help her with her EEOICPA claim as
the process had become too complicated for her. Over the last 2\1/2\
years, I have helped other claimants as a volunteer. During this time I
have noticed many problems and feel that EEOICPA has moved very far
from the original intent of Congress. Here are some of my observations.
---------------------------------------------------------------------------
* Submitted on Behalf of: Deb Jerison; Janet B. Goode; Carolyn
Jones; David Goode; Jim Goode; Bob Neff; Virginia Hudgens; Jeff
Hudgens; Melissa Webb; Fred Radwanski, PE., Boulder City, Nevada; Eric
Parker, Former USW Union President and Local Coordinator for Mound/
WHPP; and Paige Gibson, Former Health and Safety Officer for USW, Nurse
and Local Coordinator for Mound/WHPP.
1. The OCAS-1 form, which all claimants must sign to have their
dose reconstruction progress from NIOSH to DOL, is missing statutory
language. When a claimant requested a time extension to look for
further information she was told this was not possible and that if she
did not sign the OCAS-1 within the time limit her claim would be
administratively closed. DOL told her that the only option was to close
her claim and reopen it if she found more information. This was
inappropriate and inaccurate. The statute clearly states the steps to
be followed for claimants to be allowed a time extension. This language
needs to be on the OCAS-1 form so claimants know of this option.
2. Notice given by NIOSH for signing the OCAS-1 may not be long
enough. One claimant received a letter dated Oct. 3 from NIOSH which
stated that they needed a signed copy of the OCAS-1 in their office by
Oct. 17 or the claim would be administratively closed. This claim had
been put on hold while the claimant waited on Freedom of Information
Act (FOIA) requests and she is still waiting for the information.
Previously her claim had been erroneously administratively closed. This
is very distressing to claimants.
3. The program is cumbersome, complicated, and difficult for
claimants to navigate, particularly in the case of the elderly, ill, or
disabled. Claimants give up on the program because they can not
understand it or do not have the energy or special knowledge needed to
pursue their claims. The Resource Centers are a great idea, but are
very limited in what help they can offer claimants. Congress set a 2
percent fee cap on the initial claim to protect claimants from
unethical attorneys, but instead this has severely limited the number
of attorneys or advocates available to help claimants. The Part E
ombudsman's office is helpful. Part B now has an ombudsman, Denise
Brock, who can help claimants but she is overwhelmed. The need for
claimant assistance is great. Even a simple claim takes many hours of
work and special knowledge to bring to fruition. More help for
claimants is needed and the process needs to be simplified.
4. Although delays in processing claims can be a problem, a more
insidious problem is that NIOSH and DOL are not investigating the
claims thoroughly enough. Claims are often rushed through, relying on
incomplete monitoring records and mathematical calculations. NIOSH does
not talk to co-workers, investigate the papers from a site, or look for
additional information on an individual worker. NIOSH prefers
mathematical calculations to hard evidence on an individual worker. If
a worker was a production worker doing the same thing with the same
materials as other production workers this may work. But it does not
work at all for research personnel, material control workers or others
who worked in small groups or alone.
One claimant worked with every chemical that came into Mound
Laboratory. She opened all containers and measured all chemicals out
into packaging. She had been given no mask or protective clothing to
wear. She contracted two cancers, one of which was a rare soft tissue
cancer. DOL was provided with an extensive list of materials she
handled, the buildings and dates she handled them and documentation
linking the chemicals to her cancer from reliable chemical databases
including Haz-Map and still turned down the claim. She died in April
2007, minus one breast, one lung and one leg. Because her claim was not
approved and her medical insurance was exhausted, her family is left
with huge medical bills.
One claimant provided NIOSH with documentation from personal
records, written in the 1950s, showing he had analyzed all radioactive
and non-radioactive materials that came into Mound. NIOSH would not
give this evidence credence and told the claimant they would only use
official monitoring records.
It is difficult, if not impossible, to get NIOSH to give someone
dose for radionuclides that are not listed as being 1 of the 12
radionuclides NIOSH lists as being at Mound, even with proof from
Mound's own documents. When questioned about this, NIOSH told the
claimant that the worker's dosimetry badge would have picked up all
radiation and he was covered this way. This would only be true if the
radionuclide gave off the same types of radiation that the worker was
being monitored for.
5. Burden of Proof is a problem for many people. Many workers died
long ago. Hospitals and doctor's offices have closed. It is very hard
to locate old medical records. Older records were written to a
different standard than current records. As Chronic Beryllium disease
(CBD) was not widely known for years, it may not be recognizable in
older records, even with the pre-1993 criteria. A DOL claims examiner
told one claimant that since the claimant's specific medical finding
could be interpreted either for his cancer or CBD, DOL would interpret
it as the cancer instead of CBD, although the finding was ``consistent
with CBD.'' The worker had died in 1960.
Another issue is the records that DOE was supposed to maintain. One
claimant had all 11 of her husband's chest X rays destroyed by DOE a
year and a half after she opened her claim. These X rays would have
provided invaluable information on whether or not the worker had CBD.
We've all heard of the 435 boxes of Mound records that were buried in a
radioactive waste dump. In these boxes were laboratory notebooks that
one claimant needed to assist with her claim. As mentioned before,
bioassay and dosimetry records are missing.
Claimants who are looking for DOE documents to assist with their
claims do not have access to these documents. Although NIOSH has
access, they will not look for the documents, even when claimants
request specific documents. Claimants can and do file Freedom of
Information Act (FOIA) requests, but because the records are in such
disarray, the cost to claimants is often prohibitive. One claimant just
received a cost estimate of $45 an hour for Legacy Management to search
for documents needed for a claim, with no assurance that the records
were in the boxes to be searched. Another claimant was given an
estimate of over $30,000 for a list of chemicals she handled while
doing her job. There is no archive of documents that claimants have
access to. Records at the NARA Federal Records Center in Dayton Ohio
are not available to claimants, although records at other NARA centers
are. So if claimants cannot afford the exorbitant search fees charged
for FOIA requests they cannot get the information they need.
6. The playing field is unlevel. DOL/NIOSH has access to all the
records and claimants have very limited access as described above.
Part E claimants do not have access to the Site Exposure Matrix
(SEM) that DOL uses to determine whether or not to pay a claim.
Although there is a public version of the SEM online, it is merely a
list of chemicals used somewhere at the site at some time since the
site opened. This means claimants must remember the exact name of the
chemicals they used, what building or location they were in at the time
and what the date was. (Try remembering the name or chemical
composition of the dish detergent you used 20 years ago!) When a
claimant advocate complained about this to a DOL employee recently she
was told that if claimants had access to the same information DOL did
they could ``tailor'' their claims to the information. The converse is
true; because claimants do not have access to the Part E matrices,
there is no way to monitor to make sure DOL is using the material
appropriately.
There also needs to be a clear statement from DOL on what proof,
studies, etc., are needed to create an acceptable link between an
illness and a chemical exposure and the steps a claimant should use to
make the link available to claimants. I have been told that DOL can
only use NIH's Haz-Map data base. While this is a good starting point,
it does not list all occupational illnesses. This can, and has, caused
valid claims to go unpaid.
7. NIOSH's method of overestimating probability of causation (POC)
causes confusion and agony to claimants. I have been told that NIOSH
overestimates probability of causation on claims that they feel will
come in at under 45 percent. If they feel a claim will come in above 45
percent or the claimant has two or more cancers they will do an actual
estimate. This is a problem because it is very upsetting to claimants
to have a POC of 44 percent for one cancer and then when the claimant
gets an additional cancer the POC drops to 20 percent for both cancers.
Claimants do not understand this and feel that NIOSH is playing with
the numbers.
It also makes it very hard for a person working the claim because
it is impossible to know how many more rem you need to find or where
the claim really stands. NIOSH is unable, or unwilling, to give
claimants a firm, or ballpark, number of how many rem it would take to
put the claim at the 50 percent or better mark.
The draft dose reconstructions do not give the claimants the POC,
although NIOSH must compute this to determine whether a claim hits the
50 percent mark. If a claimant wants to know how close he is to the
magic 50 percent he has to input numbers in tiny print at the end of
the draft dose reconstruction into NIOSH's online IREP program. This is
beyond many claimants.
Also, the POC seems to jump all over the place from one dose
reconstruction to the next. One claimant had a first dose
reconstruction that came in with a POC around 18 percent with 44 rem.
Several things changed and the second dose reconstruction came in at
44.7 percent with 126 rem. The third dose reconstruction had a POC of
38 percent with 159 rem. How could the POC drop as the rem increased?
When questioned about this, NIOSH said the second dose reconstruction
was in error. This does not generate trust in NIOSH's calculations and
methods.
8. Some of the decisions NIOSH makes are more arbitrary and
capricious than scientifically based. NIOSH will not supply claimants
with written documentation or bases for decisions. One claimant sent a
report to NIOSH stating the worker had gotten a piece of hot stainless
steel in his eye. NIOSH told the claimant that since the word ``hot''
was not in quotation marks this meant heat rather than radioactivity.
When questioned, NIOSH referred the claimant to OTIB-0022 ``Guidance on
Wound Modeling for Internal Dose Reconstruction,'' which did not
address this issue. When the claimant directly asked for what this
decision was based on NIOSH declined to answer. When the claimant
supplied NIOSH with an official document, MLM-1996 (OP) ``Design
Features of Mound Laboratory's Medical Decontamination Facility,''
which stated that Mound could not measure radioactivity in a wound at
the time of the incident, NIOSH did not respond.
NIOSH was, and still may be, converting reps to rems incorrectly.
In the 1950s neutron dose was at times reported in reps. When a
claimant asked about this, NIOSH stated there was a one to one
conversion between reps and rems. The 1950 AEC publication, ``Control
of Radiation Hazards in the Atomic Energy Program,'' states that for
neutrons and protons one rep is the equivalent of 10 rem. The claimant
supplied NIOSH with a copy of the document but NIOSH did not respond to
questions on whether this has been changed. No changes were made to the
dose reconstruction in question.
NIOSH revises incident reports written years ago to say what they
think they should have said rather than what was reported. A claimant
sent NIOSH an incident report which stated, ``his next move was to
replace the gauntlets, thereby preventing further contamination of the
lab.'' NIOSH says the incident report is incorrect and should have
said, ``to prevent further potential contamination.'' Because of this
they gave the claimant no dose for the radionuclide in question.
The computer program that NIOSH uses to determine tritium dose
measurements at Mound gives tritium measurements prior to the date that
tritium was monitored at the site. This mistake can actually help
claimants, as it allows for missed dose.
At Mound, Health Physics logbooks report many air reversals and
ventilation problems in glove boxes and buildings which spread
radiation through the building. When a claimant sent copies of these to
NIOSH she was told that these would not have added any dose to the
claim since the worker was not mentioned by name. When she asked that
the logbooks be used for all applicable claimants who were referenced
by name, NIOSH said that they could not do this because of a ``privacy
issue.''
NIOSH denies that there are gaps in the dosimetry/bioassay record
although claimants remember bioassay samples being taken whose results
are not in the record. Since NIOSH does not have records, it does not
assign dose. This results in inaccurate dose reconstructions. A
claimant clearly remembered an incident in 1950 when her husband was
sent home from work and remained off for several days. His dosimetry
records indicate that he did not work in his lab for 11 days following
the incident. While off work, the worker drove urine and feces samples
to Mound each day and was sent home, presumably because the samples
were too hot to allow his return. MLM-177 ``Monthly Health Information
Report'' outlines Mound's policy on exposure for this time period. It
states that a worker with a count higher than
12c/min/50ml is removed from his job and put to work in an area where
the possibility of exposure is more remote, or he is barred from the
operating area altogether. It says nothing of what would cause a person
to be removed from the site for several days. There is no surviving
record of these samples.
When there are gaps in the workers' monitoring records, not only do
they not receive dose for the materials they were working with but they
also do not receive ``missed dose.'' One worker was a research
physicist at Mound in the early years. His monitoring records are
missing at least 24 months of bioassay/dosimeter readings. The papers
he wrote during this time indicate he was working with radionuclides.
NIOSH states that he was obviously working only with non-radioactive
materials at this time and will not assign dose or missed dose for this
time which results in an inaccurate dose reconstruction.
9. Can GAO investigate how much money is being spent on salaries to
administer this program as opposed to how much is being spent to
compensate workers? The percentage of claimants who are being paid
compared to the number of cases filed is abysmally low. DOL and NIOSH
keep adding additional staff to administer the program. It seems like
it would be a better idea to spend the money paying claimants, since
this was the intent of the law, rather than paying staff.
Prepared Statement of Daniel Yaeger, Worker, U.S. Department of Energy
Fernald Site
I worked at the U.S. Department of Energy's Fernald site from 1987
until 2005. In 2006, I was diagnosed with kidney cancer. Kidney cancer
is a recognized radiation cancer. I am now struggling with the
financial expense of this disease. I filed a claim with the U.S.
Department of Labor (DOL) under the Energy Employee Occupational
Illness Compensation Program Act (EEOICPA) in 2006. The claim was
referred to the National Institute for Occupational Safety & Health
(NIOSH) for a dose reconstruction. NIOSH issued a dose reconstruction
report that concluded the radiation dose I received from working at
Fernald was not sufficient to be ``at least as likely as not'' the
cause of my kidney cancer. To be eligible for benefits, the dose
reconstruction has to find that a worker received a radiation dose
above the causation threshold of ``at least as likely as not'' (51
percent).
NIOSH does not have complete and accurate monitoring records for
the Fernald site to reliably conduct a dose reconstruction. As a result
NIOSH primarily based its dose reconstruction on models and what it
represents are claimant favorable assumptions. NIOSH doesn't want to
acknowledge its lack of monitoring records because it doesn't want
Fernald workers to be classified as a Special Exposure Cohort (SEC).
Workers in a SEC who incur a specified cancer, qualify for compensation
without the completion of a radiation dose reconstruction or
determination of the probability of causation. The act allows for the
classification as an SEC if there is inadequate information to estimate
a worker's radiation dose. A petition was filed with the DOL to
designate certain Fernald workers as a SEC. NIOSH has reviewed the
Fernald SEC petition and has recommended that it be denied. The matter
is now pending before the Advisory Board on Radiation and Worker
Health. If this petition were approved, I would be eligible for
benefits.
Over 20 other sites already have classes of workers that are
included in a SEC. Fernald does not have any more reliable monitoring
data than these sites and its workers should not be treated
differently. Many NIOSH officials who are responsible for the dose
reconstruction program worked at Fernald and were responsible for
radiological safety and monitoring. There is a real conflict of
interest for those who were responsible for the Fernald monitoring
program to be the same individuals who are responsible for reviewing a
petition that cites deficiencies in the program. This conflict cannot
be avoided by contracting the task to a third party. In its evaluation
of the Fernald SEC petition, NIOSH concluded there is sufficient and
accurate monitoring data to estimate doses for Fernald workers. As
discussed below, this is simply not the case. I urge you to represent
Fernald workers interest in the SEC petition process.
The dose reconstruction process has become a job welfare program
for bureaucrats. Taxpayers don't need to fund a large bureaucracy to
engage in junk science to deny benefits to ill workers. The money
funding this bureaucracy should be channeled to the workers. The dose
reconstruction is fundamentally flawed and inefficient and should not
be the basis for determining whether to help ill workers. This
expensive dose reconstruction program should be eliminated and all
workers should be treated as a cohort. Specifically, if a DOE worker
develops a specified radiation illness, the worker should be eligible
for benefits. Additionally, medical insurance should be part of the
benefits provided to ill workers similar to what is provided to
retirees. Ill workers face great difficulties in obtaining and
affording medical coverage. I urge you to sponsor legislation that
would make these changes. The savings from eliminating the expensive
dose reconstruction program should make this legislation revenue
neutral.
Thank you for your help and assistance.
Response to Questions of Senators Kennedy, Murray, Brown, and Reid
by Malcom D. Nelson
senator kennedy
Question 1a. Many claimants mistrust the government's motives in
administering EEOICPA. They fear that the government would rather deny,
than grant, claims. The 2006 Annual Report by your office found that
claimants have difficulty finding appropriate medical experts on their
own, yet they are hesitant to use the Department of Labor Division of
Energy Employees Occupational Illness Compensation Program medical
staff because of concern that they will not review claimant's files
objectively. How do you think the Department of Labor can increase
claimants' trust in its medical staff?
Answer 1a. To offset the mistrust (hesitation) that many claimants
have with respect to utilizing medical experts provided by DEEOIC,
claimants ought to be afforded more information concerning this
process.
Question 1b. Do you think that providing contact information for
qualified medical professionals who are not affiliated with the
Department would help claimants find the medical resources they need?
Answer 1b. Providing claimants with contact information for
qualified medical professionals who have no affiliation with the
Department would assist claimants in finding the medicare resources
that they need.
Question 2. Dr. Silver noted in his testimony that the Advisory
Board on Radiation and Worker Health provides important independent
oversight for Part B claimants and suggests a similar mechanism be
created for Part E. Do you think this is a good idea? Why or why not?
Dr. Silver's other suggestions include giving grants to claimant
advocacy groups and qualified medical experts in order to assist
claimants from rural areas who have great trouble getting skilled
assistance. Is this a good idea? Why or why not?
Answer 2. Because my responsibilities involve Part E, rather than
Part B, I only have a cursory appreciation of the operations of the
Advisory Board on Radiation and Worker Health. Thus, I do not have a
sufficient basis with which to answer whether a similar mechanism
should be created for Part E.
As our annual report and my written testimony indicate, the Office
of the Ombudsman receives requests for assistance from claimants who
find the claims process challenging and burdensome. Some of these
claimants would benefit from advocacy to assist them with developing
their claims and providing medical and legal experts when necessary.
Nevertheless, before responding to the specific question of whether it
is a good idea to give grants to claimant advocacy groups and qualified
medical experts I would prefer to have the opportunity to review the
specifics of such a proposal.
Question 3. By all accounts, the Part E Ombudsman program has been
a success in providing help and guidance for Part E claimants. Is there
any reason the ombudsman's authority should not be expanded to cover
Part B?
Answer 3. This decision clearly rests with Congress. Therefore, the
Office of the Ombudsman will not take a position on this matter.
Question 4a. Do you think the Ombudsman's office needs more power?
Answer 4a. As the Office is currently structured, we have
successfully performed our mission. However, access to claimant records
which are in the possession of the Program Agency would enhance the
efficiency of the Ombudsman's Office and would save claimants both time
and money,
Question 4b. In addition to giving basic advice, should you be
entrusted with an advocacy role when you see a languishing need?
Answer 4b. Based on my experience as Ombudsman for Part E of
EEOICPA, it is clear that many of the claimants who contact this Office
want an advocate who is on their side and one who will zealously
represent their interests, as would a private attorney. Because many
claimants face difficulty finding attorneys/representatives who are
willing to represent them, some have indicated that they would like the
Ombudsman to assume a more forceful role.
In general, however, an Ombudsman's office has three essential
characteristics: independence; impartiality; and confidentiality. See
Coalition of Federal Ombudsmen and Federal Interagency ADR Working
Group Steering Committee, A Guide for Federal Employee Ombuds, Section
C (May 2006); American Bar Association, Standards for the Establishment
and Operation of Ombuds Offices (February 2004). Consequently, if the
office were entrusted with an advocacy role, I would envision that
advocacy remaining consistent with the responsibility to remain
independent, impartial and confidential.
senator murray
Question 1. Does the office of the ombudsman have the resources it
needs to assist in providing a timely ``claimant friendly'' process? If
not, what is needed?
Answer 1. With our existing resources, the Office of the Ombudsman
has managed to carry out its mission. Nevertheless, the uncertainty
that surrounded the status of the office, which had been scheduled by
statute to sunset and was continued by the Secretary of Labor
administratively in October 2007 pending congressional action to
continue the Office legislatively, impacted the Office in a number of
ways, including our ability to engage in long term planning. The
extension of the Office should provide us with needed consistency, and
will better enable us to maintain the level of staffing necessary to
expeditiously serve claimants.
However, as we currently operate, if a claimant wants us to review
the documents associated with their claim, the claimant either has to
provide us with the relevant documents or (in cases where the claimant
does not have the relevant documents) contact their claims examiner to
obtain copies, and then provide the copies to us. This is often time
consuming and sometimes results in claimants incurring the costs for
mailing, faxing, duplicating, etc. It would be faster and easier for
claimants if the Office of the Ombudsman could obtain these documents
directly from the Program Agency.
Question 2. Should the Ombudsman's authority be expanded to include
Part B claims? What resources would be needed to make this necessary?
Answer 2. The Office of the Ombudsman is committed to serving
claimants and potential claimants, and consequently, will carry out its
mission consistent with the authority granted by Congress. Because the
decision as to whether to expand the Ombudsman's authority to include
Part B claims rests with Congress, the Office of the Ombudsman will not
take a position on this matter.
However, there are sonic issues, including some very technical
medical and radiation issues that are unique to Part B. If the
authority of this Office is expanded to include Part B claims, it will
be necessary to ensure that the Office has the capabilities to address
these unique Part B issues.
Question 3. In your written testimony you state that some
applicants are frustrated with differing eligibility requirements and
constraints in Part ``B'' and ``E.'' In your opinion would it make the
claims process more efficient for claimants and those reviewing claims
to have these requirements standardized?
Answer 3. Standardizing the eligibility requirements of Parts B and
E will not necessarily make the process more efficient. Claimants
frustrated by the different eligibility requirements and constraints
under Part B and Part E generally see this as an issue of ``fairness,''
rather than an issue of efficiency.
Question 4. Under Part ``E'' the burden to establish entitlement of
benefits is on the claimant who, as you and others have testified, is
often elderly or suffering from debilitating diseases. It is concerning
that some of the most deserving are not receiving benefits due to their
inability to navigate the claims process or afford a personal attorney
to do so for them. What other options do these people have?
Answer 4. For many claimants the only option is to navigate the
system on their own. In fairness, the Department of Labor does offer
assistance to claimants in proving their claims. However, many
claimants believe that the offered assistance is not sufficient, or
does not go far enough. Moreover, many claimants regard this as an
adversarial process and thus do not trust the government (DOE/DOL) to
aggressively pursue their claim for benefits.
There are some lay representatives who have experience with this
Program, and in some areas of the country there are groups, often
former workers, who will assist claimants, however there are not very
many.
The Office of the Ombudsman can offer advice and suggestions, but
we do not have the personnel (or the authority) to engage in the
``footwork,'' i.e., the research, the writing of letters, the
contacting of the claims examiners, that is often necessary to support
a favorable claim. Thus, in the end, the only option available for many
claimants is to navigate the system on their own or with the assistance
of family members.
senator brown
Question 1. In terms of the program budget, what is the relative
ratio of the cost of administering the program versus the amount of
money paid out in compensation?
Answer 1. The Office of the Ombudsman does not possess the
information needed to answer this question. The Office of the Ombudsman
is an independent office, originally created by Congress in 2004 and
continued by the Secretary of Labor administratively in 2007, with a
three-fold mission:
to provide information to claimants and potential
claimants on the benefits available under Part E and the requirements
and procedures applicable to the provision of such benefits;
to make recommendations to the Secretary of Labor
regarding the location of resource centers; and
to issue an Annual Report to Congress no later than
February 15 of each year detailing the number and type of complaints,
grievances and requests for assistance received by the Office and an
assessment of the most common difficulties encountered by claimants and
potential claimants.
In light of our mission, we do not possess the information required
to answer this question.
Question 2. Can you speak to the OMB memorandum sent to the
Department of Labor regarding the ``cost containment options?''
According to the GAO, one of the proposed cost containment options was
to, ``require administration clearance of special exposure cohort
determination.'' Can you speak to this memo and if any of its five
recommendations have been implemented in any small way?
Answer 2. No, I am not in a position to speak to this memo. The
issues surrounding this memo arose prior to my appointment as
Ombudsman. Although, as stated in the Office's Annual Report for 2006,
this Office received inquiries from claimants regarding this memo, the
Office's knowledge of this memo is limited to what we read in
newspapers and other publicly available sources.
Question 3. What is the current backlog of cases? At the current
rate, and if no more cases are opened, how long would it take to offer
a ruling on all the current cases?
What is the backlog in Ohio? Is there a plan to address the
backlog?
Is there an overabundance of backlog cases specific to any one Ohio
site, in other words, is there any one site in Ohio that has much
larger backlog than another?
Answer 3. While the Program Office provides statistics addressing
the claims filed at various sites, see http://www.dol.gov/esa/regs/
compliance/owcp/eeoip/Statistics/WebPages, I do not have sufficient
information, such as how long these claims have been pending, with
which to fully evaluate backlogs.
Question 4. Can you outline the subcontracting process, including
what criteria are used to determine whether to subcontract, when and
how contractors are evaluated? Please also include as an attachment to
your answers a Request for Proposal.
Answer 4. The Office of the Ombudsman does not have any contracts
or subcontracts. Moreover, to my knowledge, the Office of the Ombudsman
has not utilized any contracts or subcontracts (other than purchase
orders for furniture, equipment, etc., for the Office, which do not
appear to be the concern of your question).
Question 5. Currently, are there any NIOSH officials that
previously worked for or did work related to the Fernald site in Ohio?
Have any of those NIOSH officials who worked at Fernald been a part of
any discussion concerning the Fernald SEC petition, the Fernald Site
Profile, or a Fernald worker's dose reconstruction?
Answer 5. The Office of the Ombudsman does not possess the
information needed to address this question. (Part B-related
information.)
senator reid
Question 1a. In your testimony, you note that the Office of the
Ombudsman does not have investigatory authority and it cannot advocate
on an individual claimant's behalf. You also state that a lack of legal
representation and expert assistance ``exacerbates'' the problems with
establishing their entitlement to Part E compensation.
If you, as the Claimant Ombudsman for the Department of Labor were
given the authority to act as an advocate on behalf of these claimants
individually, how would you exercise this authority? Specifically,
please identify what you could do for them, how you would do it, and
how claimants would benefit.
If you were given investigatory authority and the power to act as a
claimant's advocate, how would it change the speed of the process?
Answer 1a. A full discussion on how the Office of the Ombudsman
would exercise the authority to advocate on behalf of claimants
requires additional research and thought, and would depend on the
specifics of the ``authority'' given to the Office. Nevertheless, here
are some general concepts:
Traditionally, an ombudsman not only works for the
resolution of particular issues, but also, where appropriate, makes
recommendations for the improvement of the general administration of
the entity they serve. Thus, overall the Ombudsman would advocate for
fairness in the process.
Consistent with the ``traditional'' role of an Ombudsman,
the Office would not substitute as someone's lawyer, representative, or
counselor.
The Office would provide information, advice and
assistance to claimants.
The Office would evaluate claims objectively and would
advocate for change or relief when the facts support the claim.
The question also asks how claimants would benefit from granting
the Ombudsman the authority to act as an advocate. In my opinion, even
though the Office would not act as a private attorney, claimants in
general would benefit from the ``fruits'' of our advocacy.
Question 1b. If you were given investigatory authority and the
power to act as a claimant's advocate, how would it change the speed of
the process?
Answer 1b. Nevertheless, a mere grant of investigatory authority
would not change the overall speed of the process. While probing from
the Ombudsman may, in certain instances, prompt action on a case, I do
not believe that merely having investigatory authority will change the
speed of the process.
Question 2a. Your testimony discusses complaints from claimants
that they cannot fully establish their claims because the relevant
records have been either lost or destroyed by the DOE contractor by
whom they were employed. You also state that follow through on locating
or finding replacements for missing evidence is beyond the capabilities
of the claimant.
What could the Ombudsman's office do about this were it to have
additional powers to act as an advocate for individual claimants?
Answer. 2a. Quite honestly, in situations where relevant records
have been lost or destroyed there is very little that anyone can do.
When confronted with such situations, the Ombudsman's office tries to
offer suggestions on where to look for relevant evidence, and of
course, we will continue to do that. However, where records do not
exist, either because they are lost, were never kept, or destroyed,
there really is not much that anyone can do to recreate or find these
records.
Question 2b. What specifically in the law or DOL's rules make a
claimant responsible for producing evidence, which is typically in the
possession of the Department of Energy or a contractor, in order to
establish the claimant's entitlement to compensation under Part E?
Answer 2b. 42 U.S.C. Section 7384v. Assistance for claimants and
potential claimants specifies the program's responsibility to assist
claimants in securing evidence. The provisions provides:
(a) ASSISTANCE FOR CLAIMANTS--The President shall, upon the receipt
of a request for assistance from a claimant under the compensation
program, provide assistance to the claimant in connection with the
claim, including--
(1) assistance in securing medical testing and diagnostic services
necessary to establish the existence of a covered beryllium illness,
chronic silicosis, or cancer; and
(2) such other assistance as may be required to develop facts
pertinent to the claim.
(b) ASSISTANCE FOR POTENTIAL CLAIMANTS.--The President shall take
appropriate actions to inform and assist covered employees who are
potential claimants under the compensation program, and other potential
claimants under the compensation program, of the availability of
compensation under the compensation program, including actions to--
(1) ensure the ready availability, in paper and electronic format,
of forms necessary for making claims;
(2) provide such covered employees and other potential claimants
with information and other support necessary for making claims,
including--
(A) medical protocols for medical testing and diagnosis to
establish the existence of a covered beryllium illness, chronic
silicosis, or cancer; and
(B) lists of vendors approved for providing laboratory
services related to such medical testing and diagnosis; and
(3) provide such additional assistance to such covered employees
and other potential claimants as may be required for the development of
facts pertinent to a claim.
Claimant's burden to establish entitlement is outlined at 42 U.S.C.
Section 7385s-4(c) (governing living worker claimants) which provides
in pertinent part that:
(c) OTHER CASES.--(1) In any other case, a Department of Energy
contractor employee shall be determined for purposes of this part to
have contracted a covered illness through exposure at a Department of
Energy facility if--
A. it is at least as likely as not that exposure to a toxic
substance at a Department of Energy facility was a significant
factor in aggravating, contributing to, or causing the illness;
and
B. it is at least as likely as not that the exposure to such
toxic substance was related to employment at a Department of
Energy facility.
42 U.S.C. Section 7385s-2(a) (governing survivor claimants) which
provides in pertinent part that:
CATEGORIES OF COMPENSATION.--The amount of contractor employee
compensation under this part for the survivor of a covered DOE
contractor employee shall be determined as follows:
(1) CATEGORY ONE.--The survivor shall receive the amount of
$125,000, if the Secretary determines that--
(A) the employee would have been entitled to compensation
under section 7385s-4 for a covered illness; and
(B) it is at least as likely as not that exposure to a toxic
substance at a Department of Energy facility was a significant
factor in aggravating, contributing to, or causing the death of
such employee.
(2) CATEGORY TWO.--The survivor shall receive the amount of
$150,000, if paragraph (1) applies to the employee and the Secretary
also determines that there was an aggregate period of not less than 10
years, before the employee attained normal retirement age (for purposes
of the Social Security Act), during which, as the result of any covered
illness contracted by that employee through exposure to a toxic
substance at a Department of Energy facility, the employee's annual
wage did not exceed 50 percent of the average annual wage of that
employee, as determined under section 7385s-2(a)(2)(A)(ii).
(3) CATEGORY THREE.--The survivor shall receive the amount of
$175,000, if paragraph (1) applies to the employee and the Secretary
also determines that there was an aggregate period of not less than 20
years, before the employee attained normal retirement age (for purposes
of the Social Security Act), during which, as the result of any covered
illness contracted by that employee through exposure to a toxic
substance at a Department of Energy facility, the employee's annual
wage did not exceed 50 percent of the average annual wage of that
employee, as determined under section 7385s-2(a)(2)(A)(ii).
In addition, the relevant provision of the implementing regulations
is:
Section 30.111 (20 CFR Section 30.111) which provides that:
a. 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 Sec. 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 in this part, the claimant also bears the burden of
providing to OWCP 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.
b. In the event that the claim lacks required information or
supporting documentation, OWCP will notify the claimant of the
deficiencies and provide him or her an opportunity for correction of
the deficiencies.
c. Written affidavits or declarations, subject to penalty for
perjury, by the employee, survivor or any other person, will be
accepted as evidence of employment history and survivor relationship
for purposes of establishing and may be relied on in determining
whether a claim meets the requirements of the act for benefits if, and
only if, such person attests that due diligence was used to obtain
records in support of the claim, but that no records exist.
d. A claimant will not be entitled to any presumption otherwise
provided for in these regulations if substantial evidence exists that
rebuts the existence of the fact that is the subject of the
presumption. Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. When
such evidence exists, the claimant shall be notified and afforded the
opportunity to submit additional written medical documentation or
records.
Subsections 30.112, 113, and 114 of the regulations further discuss
the burden of proof and the kinds of evidence necessary to meet those
burdens. Taken together, these regulations make it clear that the
burden of proof ultimately has been placed on the claimant.
Response to Questions of Senator Murray by James Melius, M.D., DrPH
Question 1. In your testimony, you expressed concern about the
timeliness of the SEC petition evaluation process. In your experience,
what is the average time it takes to complete a petition review by the
Advisory Board?
Answer 1. The time taken by the Advisory Board to conduct a SEC
petition review depends on the technical effort required to complete
that review. For sites where NIOSH recommends that the petition be
granted, the review time is usually short. Often, the petition review
and recommendation can be completed at the meeting where the petition
evaluation report is presented by NIOSH.
If the situation is more complex and NIOSH is not recommending that
the petition be granted (or large portions of the petition be granted),
the Board's review can last much longer. In these cases, the Board
requests that our contractor conduct a detailed technical review of
issues relevant to the petition, and then the Board and its contractor
work with NIOSH to resolve any disagreements between our evaluation of
these technical issues and that of NIOSH (or its contractors).
Resolution of these issues is time consuming and can often take several
months, particularly for the large DOE facilities.
Question 2. Do Advisory Board members get information from DOE
sufficiently in advance of meetings so that they can review the
information before having to make a decision? In your opinion, should
all parties, including the petitioners (workers and survivors who filed
the petition) get all reports prior to the Advisory Board meeting?
Do petitioners regularly have the opportunity to address the Board
and ask questions about the Board's decisionmaking process?
Answer 2. In general, DOE and NIOSH have tried to get information
to the Board before meetings in order for the Board to have sufficient
time to review the information before taking action. In many instances,
the Board has refused to take actions without adequate time to review
documents and other necessary information. However, there have been
significant difficulties for the petitioners in obtaining information
prior to the Board taking action on an issue. Many of the documents
generated by the Board's contractor or by NIOSH and utilized by the
Board for decisionmaking are required to undergo Privacy Act review
before they are released to the general public (some also require
security review). This review can delay the availability of the
documents for several weeks or longer. Recently, the Board has worked
with NIOSH to establish a mechanism to better track documents needing
review and to ensure that these documents are transmitted to the
petitioners and other interested parties prior to any action by the
Board.
In general, the petitioners have the opportunity to address the
Board and ask questions at any meeting where their petition is being
considered. They are also invited to participate in most work group
meetings where their petition is being discussed. However, many of
these meetings take place at sites distant from the DOE facility in
question, and the petitioners often have to participate by conference
call. The complex technical nature of the discussions also makes
participation in these meetings difficult. The petitioners often
represent diverse work groups at a facility, and the petitioners are
often not knowledgeable about other parts of the facility or processes
being discussed at a particular meeting. The process would be greatly
improved by more active outreach to the petitioners and other
interested parties including efforts to obtain more input on the
specific technical issues under consideration in the review of that
petition.
Question 3. In your written testimony you expressed concern about
claimant input in the dose reconstruction process, noting that their
comments often go ignored and are not fully utilized. In your opinion,
how would the claims process be improved if their input was included
and valued?
What advice would you give NIOSH and DOL in seeking out and
including worker knowledge in their evaluation process?
Answer 3. The claims process for many claimants would be greatly
improved by more consideration being given to input from the claimants.
The current claims process is largely dependent on the use of exposure
records and monitoring data. Often complete records for an individual's
career are not available, and there are many other deficiencies in
these records (inadequate monitoring methods and techniques, etc.) When
individual records are not available, NIOSH relies on various methods
to estimate exposures including the use of exposure records from other
works and indirect exposure estimates. Such records can be useful, but
they miss the great variability in individual work activity in the DOE
complex. Individual workers have a much better understanding of their
actual work environment and factors that could have impacted their
exposures. The improved utilization of such information would greatly
improve the dose reconstruction process by helping to evaluate their
exposures during times when records are missing (or otherwise
inadequate) and by pointing out additional sources of exposure (e.g.,
exposure incidents).
In order to better ascertain information from the claimants, I
would advise NIOSH to revamp their interview process. Rather than
relying on a single interview to cover all sites, NISOH should develop
site specific interviews that ask information relevant to that DOE site
and give the claimant greater opportunity to provide information on
their work exposures, particularly during times when records are not
available. The current ``generic'' site questionnaire is very confusing
to many of the claimants. The interviewers should be better trained and
should focus on just a few specific sites rather than attempting to
cover all sites. This interview process should be supplemented by
better follow-back by the person doing the dose reconstruction to
obtain additional clarification that will help them complete the dose
reconstruction.
This process should be supplemented by a more active outreach
program to obtain input from former workers and their representatives
about working conditions at each site and other factors that could
affect exposures throughout the site. Unfortunately, the credibility of
the program has been damaged by NIOSH's reliance on former DOE site
health physics staff as the major source of information about each site
and the lack of opportunity for workers from each site to have
meaningful input into the documents and procedures used for dose
reconstruction at that site. This imbalance needs to be corrected.
Question 4. In your experience as a member of the Advisory Board,
how prevalent do you think the removal of dosimetry badges was for
nuclear workers covered under this program?
Should NIOSH, DOL, and the Advisory Board take the removal of
badges into consideration when evaluating a petition? If so, how much
weight should such information receive in the decisionmaking process?
Given that many records are incomplete or inaccurate, how should
agencies determine whether or not badges were removed? What role should
the claimant play in the determination?
Once confirmed, what role should this information play in the
determination process for each agency?
In your experience as the Chair of the Hanford Working Group, how
prevalent was this practice at Hanford? How should this information
influence the Board's consideration of SEC petitions for Hanford
workers?
Answer 4. Circumstances where workers were not properly monitored
for radiation exposures (such as removal of badges) must be taken into
account when evaluating a petition or performing an individual dose
reconstruction. The weight given to such reports will depend on many
factors including the extent of the possible exposure (how frequent,
how high was the potential exposure, etc.), the ability to
appropriately estimate that exposure based on other information, and
other factors. If NIOSH is going to estimate the exposure based on
other information, then NIOSH must be sure that their estimate
adequately accounts for radiation dose that the claimants may have
experienced. I have serious concerns about whether many of the methods
utilized by NIOSH are appropriate for use in individual dose
reconstruction. A claimant should never be penalized for the failure of
DOE or its contractor to properly monitor their exposures.
In some instances, the practice of removing badges may be recorded
in the monitoring records or apparent from discrepancies in those
records. However, in most instances, the initial report of such
practices would be made by the claimants or petitioners. The reports by
petitioners or claimants who experienced or witnessed these practices
should be given considerable weight when considering such information.
To the extent that other workers or supervisory personnel can
corroborate this information is also helpful but should not be required
(many of these situations occurred over 50 years ago). In follow up,
NIOSH also must take steps to try to obtain further information about
these practices from DOE and other workers. The petitioners or
claimants should not be burdened with having to make the considerable
effort that is required to access and review DOE records.
If the reports of removing badges are credible, then this
information must be taken into account when considering the petition.
If the practice was not just isolated to a few instances, then NIOSH
would not be able to adequately perform individual dose reconstruction
for that group of workers or process and should grant the SEC petition
unless NIOSH can demonstrate that individual dose reconstruction can be
done with sufficient accuracy based on other monitoring or exposure
information.
In our Advisory Board public meetings in Hanford, the Board heard
many reports of instances where Hanford workers performed work
involving very high radiation exposures and were not wearing their
dosimetry badges. This was apparently a common practice for those
situations, and supervisory personnel were aware or had approved the
removal of the badges. These reports were confirmed by several people
in attendance at the public meeting. In evaluating the SEC petition for
Hanford, the Advisory Board work group will obtain further information
about such practices at the Hanford site in order to determine the
extent of badge removal and will need to take that practice into
account when evaluating the petition. While it is too early to reach
any firm conclusions about this practice, what I have learned to date
at Hanford certainly raises serious doubts about the ability of NIOSH
to conduct individual dose reconstructions for these groups of workers.
______
[Rocky Mountain News, October 4, 2007]
Shortcomings Found in Review Process for Ill Nuclear Workers--
Outside Study Says Federal Officials Ignored Evidence
(By Laura Frank)
Some former Rocky Flats employees and others who have sought
Federal compensation for ill nuclear weapons workers have long
suspected that the government ignored information they provided to
prove their cases.
A draft of the first outside review of that process says their
suspicions may be right.
Investigators listened in as government officials conducted three
final interviews with workers or their survivors.
This ``close-out interview'' gives claimants their last chance to
make sure the government has all the necessary information to determine
their past exposures to toxic or radioactive substances. The interview
is also the first time workers or their survivors see the information
compiled by the government as it assesses whether a claimant's work
caused the illness.
In two of the three observed interviews, claimants provided
significant information to government officials. The officials promised
to consider it, but never did, the review found.
The draft report, presented Tuesday to the White House Advisory
Board on Radiation and Worker Health, says the process has ``serious
gaps'' and ``does not ensure'' claimants concerns are fully addressed.
It's up to the board now to decide how to proceed.
``It appears to the claimants that the government is ignoring the
evidence they're submitting,'' said Terrie Barrie, of Craig, a national
advocate for ill workers like her husband George, who helped build
atomic bomb triggers at the former Rocky Flats plant northwest of
Denver.
``If they have to develop new procedures because of this, they're
going to have to reopen cases all over again,'' she said.
Wanda Munn, who heads the board subcommittee that received the
report, said she could not predict what may happen next. No decision
will be made before the group's next meeting on Dec. 6.
Investigators observed the interviews with the permission of the
claimants and the National Institute of Occupational Safety and Health.
The report reads: ``The evidence is that the underlying data were
not reviewed in one case, and no attempt was made to obtain the
relevant reports in the other.''
The report notes that in one case, the final decision letter
actually predated the close-out interview, ``despite the fact that the
employee provided detailed new information during the close-out
interview.''
``What are the chances we just happened to pick three cases at
random and bam, bam, this happened? '' said John Mauro, project manager
for SC&A, the contractor in charge of the investigation.
He said the presidential advisory board will now have to determine
whether the problems are pervasive.
Tell us what you think of the most recent review of compensation
for ill nuclear weapons workers. Are you a former nuke worker--or a
survivor--who has applied for Federal compensation under the Energy
Employees Occupational Illness Compensation Program Act, or EEOICPA?
Tell us your experiences with the process here, including your name and
the site where you worked.
Tell us your story.
[Whereupon, at 11:37 a.m., the hearing was adjourned.]