2005 First Annual Report Preface
This Report is Congressionally-mandated to contain "...complaints, grievances and requests for assistance." (42 U.S.C. § 7385s-15(e)(2)(B)). Consequently, this Office does not receive, and this Report does not contain, comments that are generally complimentary of Part E program administration. However, to give this Report balance, it is important to acknowledge a number of background facts surrounding the 2004 repeal of Part D and creation of Part E, and the ensuing transfer of Part D claims from DOE to DOL.
On the very first day that the transfer of responsibility from DOE to DOL for administering workers' compensation EEOICPA claims was effective, DOL opened its doors with a backlog of 25,000 new (formerly Part D) claims, inherited from DOE. As a result, DOL did not have the luxury of a four-year grace period in which to develop a measured, sustained expansion of its Part B infrastructure to handle this new program. In addition to these 25,000 old claims, DOL received 11,000 new Part E claims during the course of its first year administering the program.
Under Part E, some types of survivor claims were clearly payable based on direction in the statute. Realizing that many claimants had been waiting for as long as three years to receive compensation, the Program Agency began paying these claims even before the Part E implementing regulations were promulgated.
This approach is commendable, particularly in view of the fact that Congress did not expect the Program Agency to begin making payments until it issued its regulations, and gave the Program Agency a 210-day timeframe in which to accomplish this.
In addition to paying those claims it could, the Program Agency charted several other labor-intensive courses. Simultaneously with paying clear-cut survivor claims, it began developing an Interim Final Rule ("Rule"), scheduling two rounds of Town Hall meetings across the country, and hiring and training several hundred Claims Examiners to develop Part E claims. The Agency promulgated the Rule on May 26, 2005, thus meeting the 210-day deadline Congress had set. The first round of Town Hall meetings were held in early 2005 to explain to claimants and potential claimants the differences between Parts D and E; the second round of meetings were held in the Spring, Summer and Fall of 2005, to review the Agency's newly promulgated regulations. Finally, in terms of production, the Program Agency reviewed all 25,000 transferred Part D claims, and as of mid-December, 2005, had issued 2,749 Recommended Decisions under Part E; 2,380 of those have become final, including 1,991 decided in favor of the claimant, resulting in payment of over $254 million in Part E compensation. These challenges and accomplishments should be considered along with the problems outlined in this Report.
The Office of the Ombudsman was established by Section 3686 of Subtitle E, Contractor Employee Compensation, in an amendment to the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), as part of Public Law 108-375, the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005.
Section 3686(e) requires the Office of the Ombudsman to submit to Congress an Annual Report addressing the number and types of complaints, grievances, and requests for assistance received by the Ombudsman under Subtitle E during the preceding year, as well as an assessment of the most common difficulties encountered by claimants and potential claimants under Subtitle E during the preceding year. Please consult the Appendix for the number and types of comments received by the Office of the Ombudsman; numbers and types of comments received are also listed in the section headings of this Report.
Before the enactment of Subtitle E in October 2004, Public Law 106-398, the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, authorized Parts B and D of the Energy Employees Occupational Illness Compensation Program. The Department of Labor (DOL) began its administration of Part B on July 31, 2001, and in the past four-and-one-half years has made more than 16,000 payments of $150,000 each, totaling $1.3 billion.
Part D was enacted in 2000, with its administration entrusted to the Department of Energy (DOE). Under Part D, Congress directed the DOE to provide claimants with assistance in obtaining state-based workers' compensation. By the end of 2003, more than 23,000 applications had been filed with the Department of Energy (DOE) for benefits. Yet, after more than two years had passed, the Government Accountability Office (GAO) found that less than 10% of submitted claims had been fully processed and more than half had not been considered at all (General Accounting Office, Energy Employees Compensation: Even with Needed Improvements in Case Processing, Program Structure May Result in Inconsistent Benefit Outcomes, Report GAO 04-515, May 28, 2004).
Several major obstacles prevented efficient administration of Part D. First, many of the illnesses for which compensation was claimed are characterized by latent manifestation the onset of symptoms occurred more than twenty (20) years after exposure to the toxic substance. As many DOE contractors and subcontractors lost, destroyed, or simply did not maintain their employees' employment or medical monitoring records for adequate periods to assess possible exposures, this made proving causation extremely difficult. Second, even in cases in which employees or their eligible survivors were able to prove causation, it was not always possible to find the employer. State Workers' Compensation claims are paid by employers, not the Federal Government, so the ultimate success of a Part D claim depended on the existence of a solvent employer able to pay benefits. America's nuclear weapons program began in 1939. After the passage of sixty years, many DOE contractors were no longer in business, causing what became known as the "willing payor" problem. Thus, even the most tenacious claimants those able to prove employment, exposure, illnesses and causation at the end of the process were often left with a hollow victory, when their awards could not be paid, because their employer had ceased doing business.
In the wake of oversight hearings held in 2003 and 2004 before the Senate Energy & Natural Resources Committee, and following investigations conducted by the GAO, Congress repealed Part D and enacted Public Law 108-375, which established a new federal compensation scheme for DOE contractor employees in Part E, to be administered by the Secretary of Labor. Claimants who had met the eligibility criteria under Part D were thus assured of a federal payment of compensation under the newly enacted Part E.
Public Law 108-375 also directed the Secretary of Energy to provide all applicable records, files and other data to the Secretary of Labor and mandated that the Department of Labor issue regulations and begin administering the new Part E program within 210 days of enactment (Public Law 108-375, § 3681(e)). The Conference Report accompanying the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 urged the Secretary of Labor to appoint an Ombudsman within 120 days of enactment. (Conference Report 108-767 accompanying H.R. 4200). On February 24, 2005, Secretary of Labor Elaine L. Chao appointed Donald G. Shalhoub, Esq., a career government attorney, as Ombudsman for Part E of EEOICPA.
The office created to administer EEOICPA at the Department of Labor, the Division of the Energy Employees Occupational Illness Compensation (hereinafter, "DEEOIC" or "Program Agency") also met its congressional deadline by issuing an Interim Final Rule on May 26, 2005. The DEEOIC has received more than 500 comments from the public on its rule, and is now in the process of considering those comments.
In the fifteen months since enactment of Public Law 108-375, the DEEOIC has added hundreds of staff to its four district offices in Jacksonville, Florida; Cleveland, Ohio; Seattle, Washington; and Denver, Colorado, to begin to develop the 25,000 transferred claims from the Department of Energy and to begin processing the more than 11,000 new Part E claims filed directly with the DOL.
As of mid-December, 2005, 36,442 Part E claims were in the process of being developed by the DEEOIC. Of this number, a total of 2,749 recommended decisions have been approved and issued to claimants; 2,380 of those decisions have become final; over $254 million has been paid for 1,991 cases.
DEEOIC had also established twelve Resource Centers, strategically placed in the 48 contiguous states and Alaska1 to assist potential claimants by: supplying information about Part B and Part E of EEOICPA; answering questions about the process for applying; assisting with locating medical and work records; helping claimants with medical payment reimbursement issues; conducting initial employment verification; taking occupational histories; and, by supplying claimants with application forms and helping claimants to complete them. This usually involved an intake interview with the claimant, often lasting more than two hours.
Many claimants have made it clear to the Office of the Ombudsman that they have relied on the Resource Centers to help navigate the process of applying and being considered for compensation under Part E. At the inception of Part B, DEEOIC management and its contractor attempted to open Resource Centers in the general vicinity of those nuclear weapons facilities which they anticipated would produce the highest numbers of claims. They also made an effort to fill Resource Center management and staff positions with former managers and personnel from contractors for these same nuclear facilities. As a result, Resource Center staff often had a pre-existing personal or professional relationship with claimants they served, or at a minimum, an institutional knowledge of the processes that were found at those facilities, which helped them provide assistance.
By late 2004, DEEOIC had begun approving claims for Part E claimants who had received approvals under Part B; by early 2005, DEEOIC had scheduled Town Hall meetings to be held across the country to explain the changes from Part D to Part E. The first round of meetings were initially held to inform the public of the existence of Part E, to state who was eligible, and to explain what process would be used to consider eligibility. Once the Rule was issued in May, DEEOIC staff returned to hold a second round of meetings across the country to explain what was in the Rule and how it affected eligibility.
DEEOIC staff were frequently joined by Resource Center staff to assist those claimants and potential claimants who attended the meetings by providing application forms and information. Staff from the responsible District Office would also attend these meetings to provide claimants with information about the status of their specific claims and to answer questions from claimants. Staff from the National Institute for Occupational Safety and Health (NIOSH) were often in attendance at the meetings to provide information to claimants about the radiation Dose Reconstruction process, discussed later at pages 12-13 in this Report.
These Town Hall meetings, with staff from the DEEOIC, the responsible District Office, Resource Center and NIOSH, were generally well-attended by many claimants who had filed for Parts B and E (and D before its repeal). Both during and at the conclusion of these meetings, DEEOIC staff answered questions for several hours, resulting in many claimants or potential claimants being informed about the next steps to be taken to process or initiate their existing or potential claims.
1The Anchorage Resource Center was operated by the Center to Protect Workers' Rights, through a grant from DOE to the DOE Former Worker Screening Program. It was operated by the Laborers' International Union, which no longer wanted to conduct this function. The Resource Center has been closed, and its territory has been assigned to the Hanford Resource Center.
Since being appointed by Secretary of Labor Elaine L. Chao in February, 2005 to serve as Ombudsman for the EEOICPA Part E program, I have received numerous comments regarding various aspects of the Part E program, and have spent many hours talking to claimants and their families about their concerns. I was invited by and joined Program Agency representatives at the Town Hall meetings held across the country with interested persons in the Spring, Summer and Fall of 2005 to discuss the Part E Rule. Much of the data and information presented below is based on conversations I had with claimants at those meetings, as well as hundreds of phone calls and written and electronic correspondence, over the past ten months. The comments this Office has received have expressed concern over several of the general statutory provisions of Part E, the Interim Final Rule, and/or the general administration of the program.
For purposes of presenting this information to Congress in accordance with Public Law 108-375, the topics in the following pages have been divided into three sections: 1) General Statutory Provisions; 2) Regulatory and Procedure-Based Concerns; and 3) General Administration. This Report covers the ten-month time period from February 25, 2005 through December 31, 2005.
NOTE: Claimants did not limit the expression of their concerns to just those aspects of the Energy Employees Occupational Illness Compensation Program which could be addressed administratively. Rather, some of their complaints concerned provisions of the legislation itself, which only Congress can resolve. The legislation-based concerns discussed in this Report are presented with the understanding that the Program Agency has no authority to resolve any such concerns.
Claimants have contacted the Office of the Ombudsman in connection with:
- The Ineligibility of Adult Children (72 comments)
- Qualified Survivor's Death Prior to Award Vitiates Claim (5 comments)
- The $250,000 Cap on Part E Benefits (5 comments)
- Site Profiles (2 comments)
- Other Definitional Issues (6 comments)
Ineligibility of Adult Children
Under Part E, and in contrast to Part B, adult children who survive a covered employee or the spouse, are not eligible to receive the compensation to which their parent would have been entitled (42 U.S.C. § 7385s-3(c) and (d)). This has resulted in a significant number of adult children of covered employees contacting this Office to register their complaint over what they view as the inherent inequity of defining adult children out of eligibility for Part E compensation. Many of these adult children received Part B compensation. The fact of their eligibility under Part B, and subsequent ineligibility under Part E, heightens their sense of injustice. These same adult children have written and spoken eloquently of the hardship they endured in caring for their dying parent and the personal and financial sacrifice they gladly made to care for their terminally ill mother or father; they have related their personal stories of how they often supported one or both parents during a work-related illness by taking time off from their work for extended periods, to provide round-the-clock care in the final months or years of life. They emphasize the fact that they did it for love, and with no expectation of compensation. These adult children argue that because Part E compensation would have been available to them had they been minors, it is all the more appropriate for them to be eligible in light of the care they provided and the sacrifices they made.
Their frustration is exacerbated by the fact that many of the occupational diseases which afflicted their parent are characterized by latent manifestation symptoms and death do not occur until 20 years after exposure. This makes it almost impossible, in a great many cases, for a child of a covered employee to be younger than 18 years of age when the parent dies. The legally pure justification for their ineligibility, i.e., that they were not dependents at the time of their parent's death and therefore not eligible under the plain terms of the statute, does not mitigate the injustice they perceive.
Several adult children with historical knowledge of EEOICPA have observed that "adult children" were ineligible under Part B, until Congress changed the statute (Public Law 107-107, § 3151(a)(4)(A)). They question why Congress has allowed the same situation to be repeated under E, and ask whether it will be rectified.
Qualified Survivor's Death Prior to Award Vitiates Claim
A subset of the "adult children" comment pertains to adult children whose parent, a covered employee, dies after a meritorious Part E claim is filed but before the award is paid. Under Part E, successful claimants must be living in order to receive their award of compensation, so that if a surviving spouse files a claim but then dies before it is adjudicated in his or her favor, the award is not paid. Since the surviving child does not qualify under the statutory definition of "covered child," he or she is not entitled to receive the benefits which were due to the recently deceased parent. Given the long delays in the processing of Part D claims by DOE, followed by the repeal of Part D and the 2004 amendments to EEOICPA, many spouses of deceased employees have been waiting for long periods of time (up to four years), to be awarded what is now Part E compensation. In several cases, the claimant's death has occurred shortly before the check was to be issued, heightening the anomaly of this situation. Adult children whose living parent has a Physicians Panel approval under the old Part D, or an accepted claim under Part E, whose parent then dies before payment can be made, are outraged to discover that the approved compensation cannot be paid to them or to the parent's estate. In cases such as these, the adult children who have contacted this Office have expressed the sentiment that their Government, through its own lack of due diligence, is denying them what they feel has become, by then, a "vested" benefit.
The $250,000 Cap on Part E Benefits Does Not Provide Adequate Compensation
Under Part E, covered employees receive an award of compensation made up of two components: 1) Wage Loss; and 2) Medical Impairment. Wage Loss is paid at the rate of either $10,000 per year or $15,000 per year, depending on the extent of lost wages resulting from the covered condition and terminates after a covered employee reaches normal Social Security retirement age. Medical Impairment is paid at the rate of $2,500 for each percent of impairment, based on the AMA's Guides to the Evaluation of Permanent Impairment. The maximum amount of compensation payable to covered employees for both Wage Loss and Medical Impairment is $250,000. Several claimants have stated that they will exceed the cap based on years of Wage Loss alone. These claimants have expressed the concern that the $250,000 cap on Part E benefits will not fully compensate them for their total years of wage loss, and will not compensate them at all for their permanent physical impairment. These claimants are typically covered employees who became totally disabled as a result of their work early in their careers and have been receiving Social Security Disability Insurance benefits since then.
The maximum amount that wage loss compensation can be calculated at is $15,000 per year (42 U.S.C. § 7385s-2(a)(2)(B)(ii)). At this rate, only about 16 years of wage loss at the maximum rate can be compensated before reaching the $250,000 cap ($15,000 x 16 years = $240,000). As a result, any employee who becomes unable to work prior to reaching 49 years of age (Social Security Retirement age of 65 years prior to a 1938 birth date minus 16 years = 49), will not receive compensation commensurate with his or her years of lost wages.
In recognition of this inadequacy, claimants have recommended bifurcation of the two components of a claim for covered employees, i.e., separation of the Wage Loss component from the Medical Impairment component. Their rationale has been that former workers who have years of wage loss sufficient to reach the Part E cap of $250,000, without the addition of medical impairment compensation, should be paid based on years of proven Social Security disability. They have also noted that the establishment of a medical impairment is much more time consuming, from the initial point of gathering the required medical evidence, to the final calculation. For both reasons, they believe Wage Loss should be calculated and paid separately from Medical Impairment ratings.
DEEOIC's early practice had been not to allow deferral on the part of the claim which had not been developed. Consequently, payment for Wage Loss would be delayed until Medical Impairment could be rated, even though the Wage Loss alone may exhaust the $250,000 cap. However, the Part E Procedure Manual has now addressed this problem, and permits bifurcation of claims in appropriate cases (Part E Procedure Manual, Chapter E-800.10).
Definition of a "Covered Employee" is Too Narrow
The Office of the Ombudsman has received several calls and complaints from individuals who do not meet the statutory definition of a covered employee. Typically, these individuals have not been employed at the covered facility, but have made onsite deliveries to the facility on a regular basis. Such employees are excluded from coverage under Part E.
These complainants have described their employment as characterized by exposure to the same hazards over time as those to which covered employees were exposed. At least one has complained of being onsite at the time of a fire and explosion, with a noticeable deterioration in his health thereafter. Some have requested that there be greater flexibility in the definition of a covered employee under Part E to accommodate employees who were present at a site at a time when there was a significant release of radiation.
Site Profiles Are Inaccurate
Site Profiles are documents developed by NIOSH, to help fill in gaps in a Part B claimant's radiation exposure history. Whenever reliable exposure information from a covered facility is discovered, it is added to the Site Profile for that facility. For claimants with incomplete exposure information, data from the Site Profile is used to facilitate the development of a reliable Dose Reconstruction. For radiogenic cancer caused exclusively by exposure to radiation, the Program Agency uses the same Dose Reconstructions prepared for Part B claims to determine causation under Part E. Inaccuracies in Site Profiles will, therefore, affect both Part B and Part E claims.
Claimants have contacted the Office of the Ombudsman to express their reservations about the accuracy of Site Profiles. Covered Part E employees and families who recognize the paucity of radiation exposure records at worksites, particularly those dating back to World War II, have contacted this Office to express their concern about the wisdom of using Site Profiles in Dose Reconstructions. Specifically, employees who may have moved from location to location on a daily basis within the same facility, or on an ad hoc basis over a span of years, are concerned that Site Profiles covering only one portion of a facility result in unacceptably compromised Dose Reconstructions.
Definition of Covered Spouse is Inflexible
The Office of the Ombudsman was contacted by a claimant who had cared for a former worker at considerable personal and financial expense for many years, while the former worker's health deteriorated. They eventually got married, but the former worker died less than one year after their marriage. Hence, the widow did not meet the statutory definition for a covered spouse under Part E. She contacted us to register her complaint about what she perceived to be the artificiality of the one-year of marriage requirement.
Claimants have contacted the Office of the Ombudsman in connection with:
- Claimants' Burden of Retrieving Employment and Exposure Records (30 comments)
- The Unreliability of Dose Reconstructions (28 comments)
- The 50% Probability of Causation Requirement (9 comments)
- Delay of Wage Loss Calculations (24 comments)
- Scarcity of Doctors Who Will Accept the Medical Benefits Card (10 comments)
- Difficulty of Finding a Physician to Do a Medical Impairment Rating (23 comments)
Claimants' Burden of Retrieving Employment and Medical Exposure Records Is Too Onerous
Claimants have registered various complaints with the Office of the Ombudsman concerning the difficulty of providing employment and medical records in support of their claims. The complaints fit into three categories: 1) Inability to retrieve missing records that claimants believe will strengthen their case; 2) Understanding clearly who is responsible for producing what records; and 3) Questioning the credibility of existing records.
A large number of complaints vocalized at Town Hall meetings, in e-mails and in phone calls, concern the absence of employment records and medical information from the employment sites. Claimants have pointed out that many of these facilities are no longer operational, and in some cases, have not been for decades; and that if records were kept at all, that they were not well-maintained or preserved. They have also expressed the same concern about the feasibility of obtaining their own medical records, due to physicians retiring or dying, and clinics and hospitals moving or closing.
In cases in which dosimetry badges were worn, the readings from those badges may be missing. In cases in which claimants have had yearly medical screenings at work, the results of those screenings are often not available. In some cases, basic employment information about job duties, various positions held, and toxic substance exposures in those positions, is missing.
Former workers and families have also mentioned that the frequent changing of contractors and subcontractors at covered facilities, sometimes as frequently as year-to-year, made record retention difficult if not impossible. Claimants have commented that changes in contractor ownership, mergers, and acquisitions have also had an adverse effect on record retention.
Former workers and families have called to express their confusion about whether they or their government is responsible for compiling the records needed to adjudicate a claim. Once they understand that the claimant has the burden of producing records sufficient to sustain a viable claim, many view the evidentiary requirement as unfair, and the burden as insurmountable.
This is true both in cases where a radiogenic cancer is the Part E covered illness, and in some cases where the covered illness was caused, contributed to, or aggravated by exposure to a toxic substance. As to radiogenic cancers, claimants have expressed grave reservations over being able to produce radiation exposure records that would be adequate to establish a Probability of Causation of 50% or more. Claimants who are required to go through the Dose Reconstruction process to prove their claims regard it as a significantly flawed process, both because accurate records may not have been kept at the time of their employment, and because Site Profiles, which are documents being developed by NIOSH to cover gaps in claimants' exposure histories, do not contain complete exposure information. Similarly, those claimants who do not have radiogenic cancers but who may have another covered illness caused by exposure to toxic substances in the workplace, have also contacted this Office to register their complaints over the difficulty of meeting their evidentiary burden. These claimants have argued that producing evidence of exposures to toxic chemicals is particularly burdensome, because unlike instances in which dosimetry badges may have been worn to measure exposure to radiation, nuclear facilities did not monitor exposure to toxic substances.
Some who have contacted the Office of the Ombudsman have questioned the credibility of information collected from covered facilities. In some cases, this is due to reservations they harbor about the truthfulness or conscientiousness of managers and supervisors at facilities who were entrusted with collecting and maintaining exposure information. In other cases, their reservations are based on recorded dosimetry readings showing the absence of any radiation exposure on days during which they were aware of being exposed to releases of radiation.
Dose Reconstructions Are Unreliable
The Office of the Ombudsman received comments on Dose Reconstructions from applicants who have had Dose Reconstructions done for their Part B claims and are also applying for Part E compensation for a radiogenic cancer. If there is no additive or synergistic effect from toxic substance exposure, the Part B Dose Reconstructions will be used to establish causation under Part E. These comments often focus on the confusion caused by the process used for Dose Reconstruction and the interpretation of results, as well as the extended time required to complete Dose Reconstructions.
Claimants have contacted this Office to question the reliability of Dose Reconstructions. Among the issues they have raised is the reliability of Dose Reconstructions performed for exposures which occurred in the 1940's and 1950's, when dosimetry readings were not taken, or were taken only when radiation levels rose above a threshold. They stated that these readings failed to capture the cumulative effect of radiation exposure on target organs. Similarly, claimants have also questioned the accuracy of assessing the impact of radiation on an internal organ, while simultaneously being exposed to other toxic chemicals which might have had a synergistic effect on absorption of radiation. Several claimants have referenced the relatively recent National Academy of Sciences study, which suggests that a linear model, rather than a threshold model, be used for demonstrating the effects of radiation (Health Risks From Exposure to Low Levels of Ionizing Radiation, Committee to Assess Health Risks from Exposure to Low Levels of Ionizing Radiation, National Research Council, 2005). Claimants have suggested that this model be developed as a basis for determining PoC.
Furthermore, many claimants have expressed confusion about the purpose of the 60-day waiver period at the end of the Dose Reconstruction process. At the time claimants are given their draft Dose Reconstruction Report by NIOSH, they are notified that they have 60 days to certify that they have completed providing information and that the record for Dose Reconstruction should be closed. These claimants are uncertain about how agreeing to the waiver affects the adjudication of their claim by DOL.
Finally, claimants are uncertain about whether there are any available means for challenging either the methodology or the results of Dose Reconstructions, and if so, how they can be appealed. Claimants have received correspondence stating that 20 C.F.R. § 30.318(b) of the Rule prohibits challenges to Dose Reconstruction results. This stated prohibition has left claimants wondering how they can obtain reconsideration of a Dose Reconstruction and the grounds for requesting reconsideration. Claimants have also asked us for guidance when attempting to appeal Dose Reconstruction results as to whether new evidence should be presented to the NIOSH officials who conducted the Dose Reconstruction or whether it should be presented to the Final Adjudication Board.
50% Probability of Causation Is Too High
Under § 7385s-4(c)(1) of EEOICPA, a DOE contractor employee is determined to have contracted a covered illness through exposure at a DOE facility if
- it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or causing the illness; and
- it is at least as likely as not that the exposure to such toxic substance was related to employment at a DOE facility.
DOL's Interim Final Rule states that DOL will use HHS' regulatory guidelines at 42 C.F.R. Part 81 (Guidelines for Determining Probability of Causation under the Energy Employees Occupational Illness Compensation Program Act of 2000) in determining whether "it is 'at least as likely as not' that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the employee's radiogenic cancer claimed under Part E." DOL further states, "For cancer claims under Part E, if the PoC is less than 50% and the claimant alleges that the employee was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part." (See 20 C.F.R. § 30.213). In other words, a PoC of 50% or greater is required in order for DOL to find that exposure to radiation alone at a DOE or RECA facility caused or contributed to a radiogenic cancer. DOL's Preamble to the Interim Final Rule states the Agency's reasons for deciding to utilize the 50% or higher PoC requirement for radiogenic cancers in Part E as well as Part B. (70 Fed. Reg. 33590, 33593-594 (June 8, 2005)).
Many claimants have contacted the Office of the Ombudsman to complain generally that the 50% or greater PoC requirement for radiogenic cancers in Part E is too high and/or, more specifically, that it is contrary to the statutory language directing the agency to accept Part E claims if, among other things, it is "at least as likely as not that exposure to a toxic substance was a significant factor in aggravating, contributing to, or causing the illness" (emphasis added) (42 U.S.C. § 7385s-4(c)(1)(A)).
The individuals who question the regulation's consistency with the statute maintain that the "significant factor" language in Part E indicates that Congress intended the Agency to use a lower threshold than in Part B, which includes the "at least as likely as not" language but not the "significant factor" clause, and for which the Agency has established a PoC percentage of 50% or greater. The argument is that by using the same percentage in E as in B, the agency has given no meaning to the additional "significant factor" clause. These individuals suggest that the "significant factor" language was added by Congress to reflect a lower standard of causation utilized in Part D, and that Congress intended the Agency to use a 10%-40% threshold in Part E rather than 50%.
The Medical Benefits Card Is Not Widely Accepted
Claimants who have been determined to have a covered condition under Part E are issued a Medical Benefits Card. This card provides health insurance coverage for treatment related to the covered illness. The cost of their treatment is billed directly to the DOL, provided the physician will accept the card. Payment for medical treatment for covered illnesses, regardless of the amount, is not charged against the $250,000 maximum for Part E benefits. While claimants have expressed their appreciation for the coverage, they have also expressed several related concerns. For instance, claimants do not always understand what benefits are available to them, where to turn to find an explanation of the card's benefits, how to use it, and where they can find a physician who will accept the card in payment for services. In short, there is no readily available information on benefits and no list of approved providers to which claimants can refer. Many claimants have also expressed confusion over whether the covered Part E employee is responsible for ensuring direct payment to providers or in getting reimbursed for services the employees have paid for themselves. While DEEOIC has much of this information in their Rule and the Part E Procedure Manual, covered employees have had a difficult time finding it in those documents, and are unaccustomed to looking for medical coverage information by searching through federal regulations and manuals.
Claimants who have had some experience with managed care plans and who are familiar with the level of control exerted over physicians and providers they have access to under these plans, believe that they should contact the Department of Labor before seeking specific treatment to ensure that the particular treatment is covered. However, claimants have found it difficult to get answers to their questions. Covered Part E employees have contacted the Office of the Ombudsman to find out how to locate approved providers.
Some claimants have recommended that the Agency establish a toll-free number devoted exclusively to providing answers to insurance-related questions; these claimants have suggested that such a service would be very beneficial to those who have Medical Benefits Cards. They have stated that this would be beneficial to Part E claimants who have questions about what benefits are covered and which providers they can use or simply to be able to get forms and paperwork. Such a toll-free line would also afford treating physicians and other providers a means to find out more about the medical benefits program, such as how to submit charges for services rendered, and a schedule of payment amounts for certain procedures.
Wage Loss Calculations Are Unreasonably Delayed
The first prong of a compensation award to a covered employee is a Wage Loss calculation. The calculation is based on the extent of wage loss the covered employee experiences, and paid at the rate of either $10,000 or $15,000 for each covered year until the covered employee reaches normal Social Security retirement age, up to a maximum of $250,000. As previously stated, calculations for Wage Loss claims of living employees were deferred until the interim final rule was published. This has caused covered employees to begin inquiring when they could expect to receive compensation. The Program Agency developed a Wage Loss calculation formula during the Summer, and began training Claims Examiners on its implementation shortly thereafter. No Wage Loss awards have been paid to living employees as of December 31, 2005, prompting claimants to call this Office to complain about the amount of time which has passed since Claims Examiners began telling them, at first, that the Agency was in the process of developing a Wage Loss calculation formula, and next, that the Claims Examiners were in training to learn how to implement this formula. Claimants stated having frequently been given this explanation for delays from early Summer through late Fall. In addition, claimants have also indicated that they have had to request a Wage Loss calculation and that it was not being done automatically. Claimants have also stated that Wage Loss is often an inadequate means for compensation in cases in which there are long latency periods, since, in addition to being unable to work, they were also accumulating substantial medical expenses. For cases in which claimants became unable to work early in their careers, claimants have told us that there is often no need to delay payment to do an impairment rating because cumulative years of Wage Loss alone will exceed the $250,000 cap.
Difficulty of Finding a Physician to Do a Medical Impairment Rating
The second prong of a compensation award to a covered employee is compensation for a Medical Impairment. Medical Impairment compensation is paid at the rate of $2,500 for each percentage point of permanent impairment, as determined by the AMA's Guides to the Evaluation of Permanent Impairment. A critical issue raised by claimants in correspondence with the Office of the Ombudsman is the inability to find physicians who meet the criteria set by the DEEOIC who qualify to do an impairment rating. These criteria are spelled out both in the Rule and in the Procedure Manual (20 C.F.R. § 30.901(b), DEEOIC Procedure Manual E-900(4)(b)). The Rule requires the physician to be board-certified in the specialty of the covered condition. The Procedure Manual requires that the physician also meet the requirements of certification for the American Board of Independent Medical Examiners and/or the American Academy of Disability Evaluating Physicians.
When claimants had approached a physician who specialized in their covered illness and requested that he perform an impairment rating, the physician responded either that he did not meet the criteria or was not interested in performing an impairment rating.
Claimants have pointed out that a search of the ABIME and AADEP websites for board-certified physicians who specialize in occupational conditions common to nuclear weapons facilities' employees for example, pulmonologists reveals few or no members.
Though the Rule and the Procedure Manual for Part E offer the claimant the option of finding a physician to do an impairment rating, or of having the DEEOIC select a physician, claimants have contacted this Office to suggest changing the criteria so their own physician or specialist would be allowed to perform an impairment rating. Claimants argue that such a change would be sensible for at least two reasons: first, the change would lead to performance of the most accurate impairment rating due to the treating physician's familiarity with the case; and, second, would likely produce savings for the program given the inefficiencies of having a physician who has never seen a claimant do the impairment rating, and the likelihood of the personal physician being within a reasonable geographical proximity, so as not to have the claimant incur travel costs. If this change is not made, claimants have recommended that each District Office develop a list of qualified physicians whose impairment ratings will be acceptable to the Program Agency.
It is often only after learning and then communicating the criteria to physicians for performing impairment ratings that they discover the stringency of the criteria and the need to continue searching for a physician who can meet the program's requirements. As with other medical care provider shortages, claimants have emphasized that the difficulty in locating a physician who meets the criteria for conducting medical impairment ratings is exacerbated in more rural, remote areas of the country. These are locations that frequently suffer from shortages of medical care providers of all types regardless of credentials, and they also happen to be the areas where the nuclear weapons facilities that exposed workers to radiation and toxic substances were and are located.
In cases where claimants cannot find a qualified physician to perform an impairment rating, and opt to use one selected by the Program Agency, they question whether the impairment rating the physician renders can be challenged by the introduction of new evidence at any stage in the review of a claim before a final decision is issued. In other words, does their acceptance of the physician selected by the Program Agency preclude them from objecting to the rating he or she places on their impairment. Though claimants are not routinely supplied with a report of how their impairment rating was calculated, the Procedure Manual states that evidence of probative value can be submitted to the Final Adjudication Branch for consideration.
Some claimants have questioned the reasonableness of requiring that a medical condition be at "maximum medical improvement" as stated in the Rule before an impairment rating can be performed (20 C.F.R. § 30.911(a)). They have stated that there is a broad range of impairment levels that stretch between reaching maximum medical improvement and being terminally ill. Claimants believe that many of the illnesses caused by toxic substance exposures are subject to continuous progression, and, therefore, may never be deemed to have reached maximum medical improvement.
Claimants have contacted the Office of the Ombudsman in connection with:
- Documents From District Offices Concerning Adjudication of Claims Are Often Confusing (53 comments)
- The Delays Attendant to the Processing of Claims (48 comments)
- The Frequent Changes in Claims Examiners (10 comments)
- Claims Examiners Not Returning Calls (23 comments)
- The Program Agency Does Not Provide Enough Explanatory Materials; Outreach Efforts Need To Be Preceded By Explanatory Information (4 comments)
Documents From District Offices Concerning Adjudication of Claims Are Often Confusing
Part B claimants frequently contact this Office for assistance, though the services of the Office of the Ombudsman are statutorily authorized for use by Part E claimants only. Part B claimants often do not discern a difference between Parts B and E, finding the two programs to be indistinguishable. Claimants have expressed their concern about not being sure whether they have a filed a Part B and/or a Part E claim. At Town Hall meetings, DEEOIC staff have noted that potential claimants should simply fill out a claim form and let the District Office decide if the claim should be considered under Part B, Part E, or both parts. This has led to some confusion among claimants, as to what they are applying for, and how to monitor the status of their claim.
For instance, claimants with claims pending under both Parts B and E have noted that when they receive written correspondence from District Offices, it is not always clear whether the correspondence pertains to Part B or Part E. Similarly, Recommended Decisions do not clearly state whether they are being rendered under Part B or E, resulting in confusion among claimants who have pending claims under both Parts. Furthermore, when a final decision is made on a Part B claim, applicants have noted that the District Office does not always inform those who are eligible for Part E of the potential for applying. Others have expressed surprise upon being notified in writing that they have been enrolled in Part E, of which they knew nothing before getting the correspondence, and knowing little more than the fact of their enrollment after receiving the correspondence.
In several cases, this confusion has had a deleterious effect on the ability of the Office of the Ombudsman to provide effective assistance to Part E claimants who are uncertain as to whether they are claiming under Part B or E. Especially in cases involving Dose Reconstructions under Part B, where the potential exists for proving a Part E claim based in whole or in part on the Part B Dose Reconstruction, the inability to get information from DEEOIC hamstrings the ability of this Office to provide meaningful assistance.
Claimants are also confused by technical parts of correspondence from the District Office. In particular, time limits are one of the leading sources of confusion to claimants. Most confusing is the 60-day limitations period for challenging Recommended Decisions, and its accompanying waiver provisions. The waiver provision affords claimants who are satisfied with the compensation they have been awarded in their Recommended Decision the opportunity to forego their appeal rights, and not wait 60 days before receiving payment. The confusion arises because the waiver form does not clearly state whether the claimant is waiving his rights under Part B, waiving his rights to future benefits under Part E, or whether he can waive the 60-day waiting period for illnesses found to be covered and preserve appeal rights for conditions not accepted for coverage. Some claimants have noted that the 60-day waiver provision should be rewritten or more fully explained so that they understand what they are waiving and what ramifications that action has on the future processing of their case.
Claimants have also stated to this Office that certain provisions in Recommended Decisions, particularly those dealing with the kind of specific information they must provide in order to appeal, cannot be fully understood without help from a lawyer. Claimants have noted that many of the citations are to statutory or regulatory sources, and cannot be easily understood; they have suggested that the cited statutory or regulatory text be included.
The Processing of Claims Has and Will Take Too Much Time
One of the most common complaints the Office of the Ombudsman has received regarding Part E concerns the amount of time it takes to process a claim. Claimants who originally filed with the Department of Energy under Part D are frustrated at the years that have gone by without their claim being adjudicated. With the repeal of Part D and the assignment for administering the new Part E to the Department of Labor, some claimants now think they will have to wait several more years for their claim to be adjudicated as a result of the transfer. This has resulted in the perception among some claimants who contact this Office that the agency is delaying the payment of benefits in an effort to "wait them out," i.e., wait for them to die. This perception has been keenly felt by covered employees, due to the Program Agency's decision to compensate eligible survivors under Part E first, with living, former employees to follow.
Wage Loss calculations and Medical Impairment ratings are the two components of a Part E compensation award for living employees. Many covered employees have been anxiously awaiting Wage Loss determinations under Part E. Their requests for the status of this calculation were first met by assertions from Claims Examiners that they were waiting for the National Office to develop a formula, and next, that they are being trained on its implementation. These claimants have complained to us that the longer the "in-training" explanation is used, the less credibility it conveys.
Much of the same frustration applies to delays in calculating Medical Impairments. As a result, claimants have urged bifurcation of their claims. That is, if their cases have a completed Wage Loss calculation but not a Medical Impairment rating, then a partial disbursement should be made with the balance to follow. This is especially significant in cases for which there are no eligible survivors once the covered employee dies.
Claims Examiners Do Not Always Return Calls/Assignment of Claim Examiners Frequently Changes
Beyond concerns about the length of time taken to process claims, claimants have also been frustrated in their routine attempts to contact their Claims Examiner in District Offices. A significant number of claimants have contacted this Office to complain that their calls are not always being returned. When calls are returned, it is often by a different Claims Examiner, only recently assigned to the claim, who has no in-depth familiarity with the file. One claimant recently told this Office that she had counted 12 Claims Examiners with whom she has worked over the past five years, which, to be fair, would also include those assigned to her Part B claim. While this may be an extreme case, it has raised concern in the minds of two claimants who have contacted this Office about the effect the recurrent reassignment of Claims Examiners has on the confidentiality of a claimant's medical information.
Though recognizing and acknowledging that staff in District Offices began work on October 28, 2004 with 25,000 claims inherited from the Department of Energy and have continued to receive a growing number of Part E applications since then, claimants often draw the inference that the assignment of a new Claims Examiner means: "I am starting over from scratch." This sentiment is particularly strong among those claimants who initially filed under Part D with the Department of Energy, in many cases as far back as 2001.
The Program Agency Does Not Provide Enough Explanatory Materials; Outreach Efforts Need To Be Preceded By Explanatory Information
Claimants have noted that their burden of establishing causation would be facilitated by providing a step-by-step procedure for their personal physician to follow in providing useful information to the District Office. Treating physicians in areas where covered facilities are located are generally not well-versed in how to relate workplace exposures to causation of illness. In one instance in which the physician was attempting to give a diagnosis that established causation, he reported that it was "not unlikely" that the workplace exposure caused the condition, instead of "at least as likely as not," which are the words of the statute. Claimants have stated that this step-by-step process would also be helpful to their physicians if an impairment rating is needed. Several claimants have indicated that this would avoid unnecessary delays in the processing or consideration of claims in cases where District Offices request claimants to provide more medical information to establish causation.
Some claimants have recommended that a package of materials be prepared that could be used as an introduction to the EEOICPA program with information as to who is covered, how to apply, and how claims are processed. Similarly, claimants are encountering great difficulty in finding qualified physicians to perform Medical Impairment ratings, as discussed in this Report on pages 16-17. Likewise, claimants whose personal physicians are unwilling to accept the Medical Benefits Card are upset to find that there is not a general list of accepted providers available that they can consult to find a physician who will accept the card.
The Program Agency has conducted Town Hall meetings in various regions of the country at times and venues to ensure that all claimants and potential claimants are afforded an opportunity to learn about the new Part E and changes that have been made to its administration in the months after enactment of the law; claimants have expressed their appreciation to this Office for that outreach.
Conversely, claimants have also noted the complexity of the statute in comments made to this Office at these same Town Hall meetings. Claimants have expressed appreciation for the efforts of Program Agency staff to inform the Town Hall meeting audiences of all of the intricacies of Part E, and have acknowledged the difficulty of trying to give applicable information to all those in attendance. At the same time, claimants feel overwhelmed by the amount of information presented to them at the Town Hall meetings. Many told the Office of the Ombudsman that the presentations were too technical and unhelpful; a few walked out shortly after the start of these meetings after reaching the same conclusion.
Claimants have recommended that providing them with an introductory package of materials to review prior to attending a Town Hall meeting would be more advantageous than distribution of FAQ's at the meeting and would help counter their feeling of being overwhelmed by technical information. Some felt they had to digest too much information at the meeting, and that, as a result, they were missing some key points.
Others expressed a need for more attention to be paid by the DEEOIC staff to their individual claims. While these claimants appreciated the efforts of the DEEOIC staff in staging the Town Hall meetings, they also felt that there was a point beyond which the broader meetings were less effective, and that more interactive meetings, such as Open Houses at District Offices, would be more beneficial.
Resource Centers Have Been Helpful
One of the Ombudsman's specified duties is to make recommendations to the Secretary of Labor regarding the location of Resource Centers. (42 U.S.C. § 7385s-15(c)(2)). Prior to my appointment in February 2005, Resource Centers had been established in eleven key locations: 1) Oak Ridge, Tennessee; 2) Portsmouth, Ohio; 3) Anchorage, Alaska2; 4) Denver, Colorado; 5) Idaho Falls, Idaho; 6) Paducah, Kentucky; 7) Las Vegas, Nevada; 8) Espanola, New Mexico; 9) Savannah River, South Carolina; 10) Hanford, Washington; and 11) Livermore, California. It was the sense of the Congress, stated in Public Law 108-375, that a Resource Center was needed in Western New York or Western Pennsylvania, to provide assistance to the significant number of claimants in that region. This Resource Center was established in Amherst, New York on July 25, 2005. The number and location of Resource Centers, at this time, seems adequate and appropriate to serve the Part E claimant population.
This Office has received very favorable comments about the helpfulness of staff at the Resource Centers. Resource Center staff were actively involved at Town Hall meetings across the country, providing information, assistance, and claims acceptance. It should also be noted that the Program Agency was scrupulous in its effort to recruit personnel who had been formerly employed at the covered nuclear facility to staff its Resource Centers. Staffing Resource Centers with these personnel provided two advantages: first, Resource Center staff had pre-existing personal or professional relationships with many of the claimants; and second, Resource Center staff usually had an institutional knowledge of the facilities' processes, which helped them guide the claimant through the Part E process. This arrangement appears to be a mutually beneficial one, for both claimants and the Program Agency.
Claimants have reported to this Office that staff from Resource Centers have made regular lengthy trips to see claimants in person to help them complete claim forms with supporting documentation. Overall, they believe the establishment of Resource Centers and staffing decisions there have resulted in high-quality, effective customer service.
2 The Anchorage Resource Center was operated by the Center to Protect Workers' Rights, through a grant from DOE to the DOE Former Worker Screening Program. It was operated by the Laborers' International Union, which no longer wanted to conduct this function. The Resource Center has been closed, and its territory has been assigned to the Hanford Resource Center.
Assessment of Common Difficulties and Conclusion
Congress has directed that the Annual Report contain "an assessment of the most common difficulties encountered by claimants and potential claimants under Part E (42 U.S.C. § 7385s-15(e)(2)(B)). In addition, the legislative history to Part E provides that "[t]he conferees also expect the Ombudsman to make recommendations the Ombudsman considers appropriate for the improvement of the practices of DOL in administering subtitle E of EEOICPA." (Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 Conference Report to accompany H.R. 4200, H.R. Rep. No. 108-767 (2004)). The assessment required by Congress, as well as recommendations to improve the administration of Part E, as required by the conferees, follows.
All of the comments and concerns discussed in this Report have been communicated by telephone, telefax, e-mails and letters to this Office, as well as in personal conversations I have had with claimants at 35 Town Hall meetings. A common thread in these comments is general confusion regarding a complex statutory program. I would encourage the EEOICPA program to continue the outreach efforts it has been conducting across the country, as I have witnessed first-hand the success the Program has had in reaching claimants and providing relevant information. I would suggest, however, that the EEOICPA program discontinue its Town Hall format, and instead provide well-publicized Open Houses at District Offices and Resource Centers across the country, which would permit claimants to personally meet agency personnel and discuss the status of their individual claims.
I would also encourage the EEOICPA program to focus on improving communications between claimants and the District Offices. It appears that much of the information being imparted by the District Offices is not being clearly understood by claimants, who subsequently call this Office in an attempt to make sense out of the answers they have received. After this initial year of administering the Part E program, the Program Agency might want to consider ways in which designated and knowledgeable District Office personnel are freed up to focus on providing clear and consistent explanations of the program, including explanations of the procedures for assignment of Claims Examiners and case handling. In this way, claimants will understand not only the status of their claim, but how their claim will be handled. It has been my experience that many claimants merely want to know generally what to expect in the process, rather than to have a specific question about the program answered.
Another matter related to communications with District Offices deals in general with customer service. Claimants who are sick and elderly, and anxious for their claims to be adjudicated, feel there is no corresponding sense of urgency in their Claims Examiners. This is manifested by delays in response to, or failure to return, telephone calls, as well as the recurring reassignment of Claims Examiners. While the main responsibility of a Claims Examiner should be to process claims, a fair balance needs to be struck between this responsibility and their customer service role.
The Program Agency is embarking on its second year of administering EEOICPA Part E compensation. This will mark the start of delivery of benefits to living employees, whose award will be comprised of a Wage Loss and Medical Impairment component. I would urge the Agency to send out a mailing to potentially eligible claimants, outlining the sequence of when this next category of claims will be developed, in very general terms. Many of the requests for assistance this Office receives are pleas for very general information. Claimants may not be satisfied with the proposed timeline, but they will at least know what to anticipate.
Finally, I would encourage the Program Agency to publish a Final Rule on the EEOICPA program as quickly as possible. As explained in this Report, claimants have expressed concern over many aspects of this program. The Agency's final statement on the administration of its program in the form of a Final Rule will bring conclusion for many of these individuals on what has been a long process. Publication of a Final Rule will also permit the EEOICPA program to proceed in a consistent manner with the handling of the many Part E claims currently pending before it.
In the coming year, I look forward to having the opportunity to work cooperatively and collegially with the Program Agency, within the bounds of my independence, to improve the delivery of Part E compensation to eligible recipients, in the timely and uniform manner envisioned by Congress.