2005 Second Annual Report — Appendices

Appendix A

Compilation of Comments by Subject/Issue in The Office of the Ombudsman from February 24, 2005 to December 31, 2005

^*The statistics captured in this chart represent comments made by 616 claimants and potential claimants. The same person may have made more than one comment in a single contact with this Office. In these cases, separate comments were counted individually. In addition, many of these same comments were made to the Program Agency at the numerous Part E Town Hall meetings it held across the country. I attended 39 of these meetings personally, and had informal discussions with approximately 350 claimants and potential claimants at these meetings. These individuals requested general information and assistance regarding Part E matters. Accordingly, the number of these contacts (350) is reflected in the category of Requests for Assistance/Information.

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Appendix B

Donald G. Shalhoub, Esq.
Ombudsman for Part E of the Energy Employees
Occupational Illness Compensation Program Act
U.S. Department of Labor
200 Constitution Avenue, NW
Room N-2454
Washington, DC 20210

Dear Mr. Shalhoub:

Thank you for the opportunity to comment on your initial Annual Report to Congress on Part E of the Energy Employees Occupational Illness Compensation Program Act as amended, pursuant to 42 U.S.C. § 7385s.15(e). The Employment Standards Administration, Office of Workers' Compensation Programs, welcomes the Report's efforts to gather and report Part E claimant concerns and issues, and will utilize this information along with customer feedback received via other sources to assess and work to improve its processes and its information dissemination efforts.

We appreciate the acknowledgement in the Report that claimants who are satisfied with its administration of EEOICPA would not be likely to contact the Ombudsman to express those views. We also note that the Report properly characterizes many claimant comments as directed at perceived legislative defects rather than matters within our administrative control. And, we welcome the description in the Report of our extensive efforts shortly after enactment of Part E to inform the claimant population of the scope of the newly enacted Part E, and, to pay as many claimants as possible, even in advance of issuance of interim final regulations.

ESA is concerned, however, that the Report's compilation of complaints may inadvertently confuse the public regarding several issues where we believe the stated concerns are misplaced or not generally applicable to the claimants served by the program.

Since the enactment of Part E, the Office of Workers' Compensation Programs (OWCP) has received a total of nearly 35,000 Part E cases (involving over 45,000 individual claimants) either originally filed with the Department of Energy (DOE) or subsequently filed directly with OWCP. While it is not clear from the figures in the Report how many individuals complained about activities under the control of OWCP, the approximately 600 claimants whose views are discussed in the Report represent a very small and non-random sample of the claimant community. OWCP has made strong efforts to respond to the needs of EEOICPA claimants, and we believe that analysis of the concerns raised by those who contacted the Ombudsman needs to take into account the larger context, and in some cases requires clarification of how existing policies and procedures really work.

One such example is the complaint by certain claimants about not being provided a phone number to make inquiries concerning medical benefits issues. A toll-free number for this purpose is printed on the back of the Medical Benefits card provided to every covered employee whose claim is accepted, and, in the explanatory materials that accompany it. While it is useful for future reference to learn that some individuals have been confused on this point, OWCP believes that providing context to complaints such as this will help prevent the Report from potentially perpetuating misunderstandings among the claimant population. Other issues of this kind are addressed below.

The Report discloses that the Ombudsman has received 23 complaints that claims examiners do not always return phone calls. While it is certainly the case that some claimants have experienced this type of service breakdown, OWCP is working hard to avoid its happening. OWCP carefully tracks phone calls it receives from claimants and holds its employees accountable for meeting program standards for prompt response. In FY 2005, OWCP received 53,164 EEOICPA telephone calls of which 37,060 were responded to at the time of the call. Of the remaining 16,104, which required a return call, over 96 percent were completed within 2 days. The program is striving to improve upon its customer service, and will seek to better those statistics in FY 2006.

The Report suggests that a few claimants believe that OWCP's District Offices do not share their sense of urgency because their claims have been reassigned to new claims examiners. We hope that the public will recognize that such reassignments have been the unavoidable practical response to the addition of nearly 200 new employees during the past year and are part of our effort to expedite case processing. While we understand the concern and impatience of claimants who have been awaiting a decision for several years (first under the Part D program and now with OWCP we are committed to working as quickly as possible to resolve these cases, and we are keenly aware of the urgency of claimants who are ill, and in many cases, very elderly.

The Report states that among the 24 complaints received concerning delays in wage-loss benefit determinations were an unspecified number of complaints that claimants must specifically ask for wage-loss benefits. OWCP requires a claimant to request such benefits (any written request is sufficient since no particular form is required) so that the claims examiner will know a formal determination concerning such benefits is necessary, so that OWCP can track that request to ensure claims actions are taken promptly, and to avoid wasting time making determinations for those not claiming such benefits. This is necessary since claimants may be seeking only wage-loss benefits or impairment benefits, both wage-loss and impairment benefits, or medical benefits only.

It appears from the Report that some claimants believe that OWCP has or had a policy requiring all aspects of a covered employee's claim to be decided at once, thus causing a delay in awarding certain benefits while OWCP waited to decide other benefits. OWCP has never imposed such a requirement. Soon after the enactment of Part E, the determination was made to adjudicate any part of a claim for which all the necessary information was available in order to provide claimants with determinations (and benefits when entitled) as soon as possible.

A number of claimants' comments suggested that they believe the entire burden of proof to submit employment and exposure records rests on claimants. However, OWCP and NIOSH systematically gather employment and exposure information from DOE, the Former Worker Medical Screening programs, contractors who employed covered employees, the Social Security Administration, and many other sources. Thus, the vast majority of information used by NIOSH in creating a dose reconstruction is obtained from sources other than claimants. Similarly, most of the employment documentation used by OWCP in determining covered employment is obtained by OWCP from sources other than claimants, and OWCP has compiled an exposure matrix for DOE sites from a variety of sources that will supply toxic substance exposure information for most employees. It should also be noted that no Part E claim was denied based on inadequate evidence of toxic exposure during 2005.

The Report also discusses claimants' complaints about the NIOSH dose reconstruction process, including concerns about NIOSH site profile documents. It is important to understand that in developing site profiles, NIOSH uses claimant-favorable methods to estimate the maximum radiation doses that could have been received by a covered employee by analyzing information such as the source of the radiation or general monitoring data. This information is then used to supplement or in place of inadequate or non-existent personal exposure records. While certain claimants expressed concerns about the inability to challenge the results of dose reconstruction, in fact, claimants have several opportunities to do so: first upon presentation of their dose reconstruction report by NIOSH, and later, either before OWCP after it receives the dose reconstruction report, or subsequently in a United States District Court.

Another area of concern discussed in the Report is difficulty obtaining physicians qualified to provide impairment evaluations. Under OWCP's procedures concerning this process, claimants have the option of either letting DOL refer them to a qualified physician at its expense (and reimburse them for any necessary travel expenses), or they can have their treating physician or another local physician perform the tests and measurements necessary to calculate an impairment rating, even if that physician is not certified to prepare an impairment evaluation. The results of those tests and measurements can then be forwarded to an OWCP District Medical Consultant or any other physician who does have that certification. The claimant, in the latter case, would not have to be seen by the physician providing the impairment evaluation.

The Report expresses the concern of some claimants that information on medical benefits is not readily available. OWCP has made extensive efforts to inform covered employees whose claims are accepted of the medical benefits available to them and how to obtain them. When such a claim is accepted, the claimant receives a packet of information concerning the medical benefits program along with a benefits card. The packet (as well as the back of the benefits card itself) includes a toll-free number for questions about the program, as well as a description of the types of medical services that are payable with and without prior authorization. Since the claimant is entitled to a choice of being treated by any physician who is licensed to practice medicine, OWCP does not compile a list of "approved" physicians. Finally, some claimants recommended that a tollfree telephone line be established to provide responses to claimants and medical providers on medical benefits questions, apparently not recognizing that OWCP has maintained a toll-free telephone line for this purpose since the inception of the program. We regret that our efforts to explain this aspect of the program have evidently fallen short for the individuals who voiced this concern, and OWCP will redouble its efforts to ensure that information on medical benefits is delivered and made clear.

As noted above, OWCP believes that the Ombudsman has performed a valuable service by compiling concerns about the administration of Part E of EEOICPA from numerous claimants. We hope that the additional information and explanation provided here will assist the readers in evaluating the concerns expressed in the Report, and in assessing the overall performance of the program. We will utilize the concerns and questions presented in the Report to better focus our efforts to help claimants negotiate the Part B process and better understand their rights and responsibilities.

Sincerely,

Victoria A. Lipnic