2006 Second Annual Report Executive Summary
While their claims are being processed, many claimants seek out this Office to inquire as to the status of their case about 13% of the claimants contacting our office seek assistance in this area. These inquiries are usually addressed, with the claimant's permission, by referral to DEEOIC.
In addition, this Office also receives inquiries from individuals who have EEOICPA Part B or RECA claims, but not EEOICPA Part E claims (as well as inquiries about other statutes administered by the Department of Labor or other agencies). Because our statutory authority directs us to provide assistance to Part E EEOICPA claimants, we cannot provide significant assistance to these other inquirers. We do, of course, try to ensure that they are referred to more appropriate sources of assistance; DEEOIC, the National Institute of Occupational Safety and Health (NIOSH) and the Department of Justice RECA staff have all been helpful in ensuring that the issues raised by RECA and Part B claimants are addressed. The creation of an Ombudsman by NIOSH, who will assist claimants in the dose reconstruction process and petitioners engaged in the Special Exposure Cohort (SEC) petitioning process, should be of great value to Part B claimants.
Concerns and inquiries from individuals can generally be categorized under one of three headings: (1) Statutory Issues; (2) Regulatory, Policy and Procedural Issues; and (3) Administrative or Miscellaneous Issues.
Limitations on Survivor Eligibility (52 comments): Under Part E, there are three general categories of eligible claimants: 1) covered living employees who have a covered illness; 2) surviving spouses of covered employees; and 3) surviving children of covered employees who, at the time of their parent's death, were younger than 18 years of age, younger than 23 years of age and full-time students, or any age and incapable of self-support. Survivors who meet these eligibility requirements qualify for benefits by showing that the employee would have been entitled to compensation under Section 7385s-4 for a covered illness and by showing that the employee's death was related to that covered illness. Claimants, primarily adult children who do not meet Part E's eligibility requirements, continue to contact the Office of the Ombudsman to express concern about the limitations imposed by the statute's eligibility requirements for survivors.
Definition of a Covered DOE Facility (11 comments): Claimants contacted this Office to ask why the facility at which they (or, in the case of a survivor, the worker) worked is not a considered a covered DOE Facility for purposes of Part E. Atomic weapons employees and employees of beryllium vendors (both groups are covered by Part B, but not Part E), for example, are not considered employees of DOE facilities. These workers have described their employment as characterized by exposure over time to the same hazards as those to which covered employees were exposed, and they question why others are entitled to compensation while they are not.
The Statutory Provisions Governing Special Exposure Cohorts Result in Disparity (11 comments): Some covered workers were employed at a DOE facility with Special Exposure Cohort (SEC) status but do not qualify for benefits under Part B's SEC provisions because they either do not have one of the 22 statutorily-specified cancers to which the SEC provisions apply or they do not qualify for the SEC because they cannot establish the necessary employment history. Depending upon the specific findings supporting the SEC's creation, these workers may receive very limited dose reconstructions which, in turn, may yield very low probabilities of causation (PoC). By statute, a Part B award for cancer requires a PoC of 50% or higher; by regulation, DEEOIC requires a PoC of 50% or higher for radiogenic cancers under Part E. Thus, a low PoC may lead to denials of both Part B and Part E benefits.
Qualified Claimant's Death Prior to Payment of Award May Nullify Claim or Reduce Compensation (6 comments): Under Part E, successful claimants must be living at the time their claim is paid in order to receive compensation. Consequently, if a worker claimant or surviving spouse claimant files a claim but then dies before it is finally decided in his or her favor, the award due to the worker or survivor generally cannot be paid a new claim must be filed by a survivor who is eligible for benefits in his or her own right under Part E. In addition, in the case of a worker claimant, a surviving spouse or child may be eligible for benefits in his or her own right under Part E, but the amount of benefits awarded might well be reduced the maximum payable to a worker claimant is $250,000; the maximum payable to a survivor is $175,000. In addition, the death of the surviving spouse claimant often means that no Part E compensation will be paid to the worker's family, because many children are not considered "covered children" and so are not eligible to receive Part E compensation.
Regulatory, Policy and Procedural Issues
Difficulties Retrieving Employment, Exposure and Medical Records (64 comments): Because the burden of proving a case ultimately rests with the claimant (see 20 C.F.R. § 30.111), many claimants particularly survivor claimants have the onus of attempting to obtain employment, exposure and medical records from many years ago, or of developing new medical evidence based upon missing or incomplete records. While DEEOIC provides assistance to claimants in attempting to locate relevant records, we continue to hear from some claimants who believe this assistance is not sufficient. In any case, in many instances the necessary records are not located (or may not exist) and thus some claimants ultimately cannot successfully prove their cases. In addition, claimants must specifically ask for copies of the evidence developed by DEEOIC. Thus, claimants who are not aware that they can request this evidence do not realize that some of the records they need are already in DEEOIC's file. Ultimately, if neither DEEOIC nor the claimant locates the records necessary to document employment, exposure or medical conditions, it may be impossible for a claimant to receive benefits. Many claimants have expressed their frustration with trying often unsuccessfully to locate necessary records.
Difficulties in Proving Causation Issues (65 comments): Many claimants believe that they face great difficulties in proving causation issues for example, proving that a particular disease is related to toxic exposures, or proving that a worker's death was related to a covered illness. The most significant of these complaints involved EEOICPA Bulletin No. 06-10, which establishes criteria for claims examiners deciding claims "where there is no known relationship between certain illnesses and occupational exposure to toxic substances under Part E of the EEOICPA." EEOICPA Bulletin No. 06-10 informs claims examiners that DEEOIC "has identified certain illnesses with no known causal link to toxic substances." The illnesses are listed in an attachment to the bulletin and the bulletin instructs claims examiners in deciding claims which involve the identified illnesses.
Regulatory Restrictions on Challenges to Dose Reconstruction (16 comments): Under 20 C.F.R. § 30.318, the Final Adjudication Branch's (FAB) review of a claimant's dose reconstruction, which is prepared by NIOSH and used by DEEOIC in both Part B and E claims to calculate PoC, is limited to a review of the factual findings upon which NIOSH based its dose reconstruction. The FAB does not consider NIOSH's dose reconstruction "methodology." See 20 C.F.R. § 30.318(b). Claimants are confused both about the distinctions between "methodology" and "application" of methodology, and about whether, given the restrictions on the FAB's review, there are any available means for challenging NIOSH's dose reconstruction methodology as part of the process of deciding an individual's claim.
Administrative or Miscellaneous Issues
Concerns about Claimant Interactions with DEEOIC Personnel (62): Claimants have expressed a variety of concerns about their interactions with DEEOIC personnel, such as difficulties in reaching a claims examiner or receiving a return call; and changes in claims examiners or district offices.
Difficulties in Comprehending Communications from DEEOIC (53 comments): In the course of developing a claimant's case and in deciding claims, DEEOIC personnel correspond and speak with claimants on a regular basis. After developing a claim, DEEOIC also issues a recommended decision from the claims examiner, followed by a final decision from the FAB. Some claimants have significant difficulties in understanding the correspondence and decisions they receive, or in understanding what is said to them orally, and have contacted this Office for assistance.
The Processing of Claims Has Taken and Will Take Too Much Time (57 comments): The delay attendant to the processing of claims is still a common complaint from EEOICPA claimants. Many of the claimants are elderly; some are dying. This fact, combined with their recognition that their claim for compensation may die with them because their adult children will not be eligible survivors, leads to significant frustration.
Locating Experts (26 comments): Some claimants have encountered problems in locating physicians who are able and willing to provide "fully rationalized" medical opinions on causation issues (for both "covered" and "consequential" illnesses), impairment ratings, and wage loss, particularly in more rural, remote areas of the country. DEEOIC does offer claimants the option of having their own physician or a DEEOIC district medical consultant provide an impairment rating. DEEOIC also sometimes obtains expert opinions on causation and on wage loss issues. Some claimants, however, believe that DEEOIC's consultants are not objective and many claimants simply prefer to have a physician of their own choosing provide the opinion.
DEEOIC Personnel and Resource Centers Sometimes Provide or Use Incorrect or Incomplete Information (23 comments): Some individuals indicate that they have been provided with incorrect or incomplete information by a resource center or DEEOIC, or that DEEOIC has used incorrect information in correspondence or decisions.
Medical Benefits Issues (38 comments): Claimant complaints about medical benefits included unexplained rejections of pharmacy bills which had previously been paid by the program; DEEOIC's requests for documentation which claimants believe they or their physicians previously provided; and difficulties with ICD-9 codes that have resulted in some treatments for a covered illness being covered, but the treatment of other related effects of an illness not being covered.
Difficulties in Obtaining Copies of Evidence from DEEOIC (13 comments): In general, claimants can obtain copies of evidence developed by DEEOIC and considered in their cases simply by asking DEEOIC, in writing, for a copy of the evidence they want to see or for a copy of their entire file if they are unsure about what to request. Many claimants have been successful in obtaining evidence via this request procedure. Some claimants, however, report that their requests have been overlooked or delayed, or that they have received incomplete copies. Some claimants also have commented that DEEOIC should send copies of evidence (as well as copies of correspondence sent by DEEOIC to experts about individual claims, particularly correspondence to claimants' physicians) to the claimants routinely, rather than requiring claimants to specifically request it.