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2007 Third Annual Report — Executive Summary

Introduction

In light of our mission, the Office of the Ombudsman generally does not receive, and thus this report generally does not contain, comments that are complimentary of the Part E program administration. Rather, throughout the year, individuals contact this Office in order to obtain information or to express their complaints and grievances. At one end of the spectrum, we hear from individuals trying to determine if they are eligible for Part E benefits. We have encountered individuals who while generally aware of EEOICPA, did not understand the distinction between Parts B and E, or did not know how to initiate a claim. Especially during our town hall meetings in Kayenta, AZ and Shiprock, NM we encountered individuals who did not realize that they were potentially eligible for compensation under the Radiation Exposure Compensation Act (RECA), as well as Parts B and E, or else, while aware of their potential eligibility, did not realize that they had to separately file for compensation under each program. On the other end of the spectrum, we are contacted by individuals who have been awarded benefits, yet have questions concerning the impact of a state workers' compensation or tort award; or want to determine if they must pay federal income tax on their EEOICPA award; or simply want to know how long it will take to actually receive benefits. We also receive calls from individuals — usually individuals who have had claims denied - inquiring if specific statutory provisions have been revised. Nevertheless, most of the individuals who contact our Office either have a pending claim, or were recently denied benefits. The concerns expressed by these individuals range from a request for the status of their claim, to assistance in acquiring medical help, to complaints concerning the burden of proof.

This Office also receives inquiries from individuals who do not have an EEOICPA Part E claim, but rather an EEOICPA Part B or RECA claims. Because our statutory authority directs us to provide assistance to Part E EEOICPA claimants, we cannot provide significant assistance to these inquirers. In these instances, we provide basic information and try to ensure that these individuals are referred to more appropriate sources of assistance; DEEOIC, the National Institute for Occupational Safety and Health (NIOSH) and the Department of Justice RECA staff have all been helpful in ensuring that the issues raised by these individuals are addressed. Where available, we also direct these individuals to relevant web-sites. In addition, the creation of the position of an Ombudsman to NIOSH has provided our Office with an excellent referral for those claimants who need assistance in the dose reconstruction process and for petitioners engaged in the Special Exposure Cohort (SEC) petitioning process.

There are many ways that we could present the concerns and inquiries that we have received. However, the method that we utilized in our two previous reports and one that we find very effective is to categorize the concerns and inquiries under one of three headings: (1) Statutory Issues; (2) Regulatory, Policy and Procedural Issues; and (3) Administrative or Miscellaneous Issues. Nevertheless, it must be recognized that people do not express themselves using the categories and subcategories utilized in this report. We also find that, when talking to us, most people take the opportunity to express more than one grievance or concern, and moreover, every claim has its own unique set of facts. Nevertheless, based on our experiences, these categories are an effective way to present the grievances and concerns that have been expressed to us. Therefore, we will continue to utilize these categories in our 2007 report. As a result, the discussion of some issues will be a "carry over" or a continuation of the discussion presented in previous years — this reflects that some issues continue to be a concern for many claimants. Yet, there are some issues where new concerns and problems have been added to previous issues. Below is a summary of the major issues discussed in this year's report — a fuller discussion of each issue is provided in the report itself.


Statutory Issues

Note: Claimants did not limit the expression of their concerns to just those aspects of EEOICPA which could be addressed administratively. Rather, some of their complaints concerned provisions of the legislation itself, which only Congress can address. Accordingly, the legislation-based concerns discussed in this Report are presented with the understanding that the Department of Labor has no authority to resolve any such concerns.

Limitations on Survivor Eligibility (57 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. Individuals, 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. Because a person can be potentially eligible under both Parts B and E, some claimants are aware that Part B and Part E have different eligibility requirements, and as a result, there are claimants who contact our Office seeking an explanation for this difference.

Definition of a Covered DOE Facility (18 comments): For purposes of Part E, the worker must have been employed at a covered DOE facility. Claimants have questioned, and in some instances, challenged, the failure to designate their worksite as a covered DOE facility.

Atomic weapons employees and employees of beryllium vendors, both who are covered under Part B but not under Part E, have contacted our Office asserting that their employment was characterized by exposure over time to the same hazards as those who are covered under Part E. Consequently, these atomic weapons employees and employees of beryllium vendors believe that they ought to be eligible for compensation under Part E.

Qualified Claimant's Death Prior to Payment of Award Nullifies Claim or Reduces Compensation (7 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 or surviving spouse dies before payment is made, the award due to the worker or survivor cannot be paid. Instead, a new Part E claim must be filed by a survivor who is eligible for benefits in his or her own right. Even if there is an eligible survivor, the death of the covered worker may result in a reduction of compensation. Claimants whose claims have been pending for an extended period of time have voiced their fear that if the process takes too much longer, their claim will in effect be nullified (by their death). Moreover, in a couple of instances, we were contacted by the families of terminally ill claimants who were very concerned that the claimant would die prior to the completion of the claims process.


Regulatory, Policy and Procedural Issues

Difficulties Retrieving Employment, Exposure and Medical Records (92 comments): Claimants have contacted us in order to express their frustration with trying — often unsuccessfully — to locate necessary records. Because the burden of proving a case ultimately rests with the claimant (see 20 C.F.R. § 30.111), some 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. Claimants report to us that employment, as well as hospital and other medical records have been lost or destroyed. In some instances, because of their health, claimants do not have the capacity to assist their families in pursuing these claims. We have encountered family members who tell us that their loved ones (as instructed) never talked about their employment. Especially where the worker died prior to the promulgation of the Act, survivors have told us that it is virtually impossible to produce the quality or quantity of evidence required to meet their burden of proof.

While DEEOIC provides assistance to claimants in attempting to locate relevant records, we continue to hear from claimants who believe that this assistance does not go far enough. There are instances where the necessary records cannot be 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 often do not realize that some of the records they need may already exist in DEEOIC's files. 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 any benefits.

Difficulties in Proving Causation Issues (96 comments): Many of the people who contact the Office of the Ombudsman report that they encounter great difficulties attempting to prove causation issues, i.e., that a particular disease is related to toxic exposures, or that a worker's death was related to a covered illness. These claimants often believe that their evidence is required to meet very stringent standards. We also hear complaints concerning the lack of a clearly defined standard with respect to the evidence that claimants must produce. In addition, there have been claimants who found it especially troubling when their illness was listed on EEOICPA Bulletin No. 06-10 (updated 8/1/2006 with Bulletin 06-14) which informs claims examiners that DEEOIC "has identified certain illnesses with no known causal link to toxic substances." Some of these claimants have contacted this Office inquiring as to what they must do in order to overcome this bulletin.

Part B Issues (71 comments): While the Office of the Ombudsman does not have any statutory authority with respect to Part B claims, we nevertheless receive inquiries concerning that part. In most instances, we try to refer the inquirer to more appropriate sources of assistance. Nevertheless, there are a few common complaints regarding Part B that we hear.


Administrative or Miscellaneous Issues

Concerns about Claimant Interactions with DEEOIC Personnel (96 comments): Claimants have expressed a variety of concerns about their interactions with DEEOIC personnel. These concerns include difficulties in reaching a claims examiner or in having a telephone call returned; changes in claims examiners or district offices; DEEOIC losing evidence; repeated requests for the same evidence; and lengthy delays in obtaining requested information.

Requests for Assistance in Understanding Communications (193 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 Final Adjudication Branch (FAB). Some claimants have significant difficulties understanding the correspondence and decisions they receive, and thus contact this Office for assistance.

The Processing of Claims Has Taken and Will Take Too Much Time (52 comments): Claimants complain about the delays attendant to the processing of EEOICPA claims. The health of many claimants 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 (34 comments): The inability to find a qualified physician willing to provide a medical opinions on causation issues (for both "covered" and "consequential" illnesses), as well as impairment ratings is a problem that affects some claimants, particularly those 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 wage loss issues. However, we hear from claimants who would prefer to utilize a physician of their own choosing. Other claimants have expressed to us their belief that the assistance offered by DEEOIC does not go far enough.

Medical Benefits Issues (12 comments): Claimants have complained that they are unable to locate providers who are willing to accept the medical card issued by DEEOIC. Claimants also report that difficulties with ICD-9 codes have resulted in some treatments for a covered illness being covered, but the treatment of other related effects of an illness not being covered. In addition, some claimants are not aware of how they should proceed if they wish to obtain coverage for consequential illnesses that develop after the award of benefits.

Offset and Coordination of Benefits (13 comments): Some claimants have contacted us with questions concerning offsets and coordination of benefits. Where there has been a workers' compensation or tort award, claimants may be asked to present information concerning that award. Where the award involved a class action or other multi-party law suit claimants have encountered difficulties obtaining the information requested by DEEOIC. In addition, there have been instances where the tort or compensation award was drafted in such a way that the information requested by DEEOIC was not readily apparent and/or impossible to discern.


Assessment

Hearings held by the Senate Health, Education, Labor and Pension Committee in October 2007 asked if this program was "claimant-friendly." This question pinpoints the essence of most of the complaints fielded by this Office — most complaints address fairness and transparency (i.e., the ability to clearly understand the process). Most of the people who contact this Office have had their claims denied. Yet, their complaints are not simply a request for money. Rather, most of the complaints that we hear involve the perception that the process is unfair or involve a request for assistance in navigating this process. Where evidence has been destroyed or is missing, and former colleagues are dead or scattered around the country, claimants believe that it is unfair to ask them to prove what the government cannot prove (or disprove). Claimants do not understand why opinions by their treating physicians are not deemed sufficient to meet their burden. In this environment, events such as the change in claims examiners (especially where advanced notice of the change was not provided) or the delay in the processing of a claim are viewed in a negative light.

For many of the people whom we encounter, the Office of the Ombudsman is not able to offer an immediate solution or remedy. In many instances, all that we can offer is a promise that we will listen to and record their complaints and grievances, and that at an appropriate time we will report these grievances and complaints to Congress. Within these pages we have tried to accurately summarize the numerous complaints, grievances and requests for assistance directed to us throughout the year.

 

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