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2005 First Annual Report — Executive Summary

General Statutory Provisions

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 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.

1. "Adult Children" Are Not Qualified Survivors

Under Part E, there are three general categories of eligible claimants: 1) Covered employees who have a covered illness; 2) Spouses of covered employees; and 3) 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. In contrast to Part B, in which adult children can receive compensation, Part E adult children who survive a covered employee or the covered 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 (72) of covered employees contacting this Office to register their complaint over what they view as the inherent inequity of defining them out of eligibility for Part E compensation. Many such adult children have 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 emphasize that they did it for love, with no expectation of reward. By the same token, they argue that since 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. This is exacerbated by virtue of the fact that many occupational diseases are characterized by latent manifestation, i.e., symptoms and death do not occur until 20 or more years after exposure. In a great many cases, this makes it almost impossible 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, 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 permitted the same situation to be repeated under E, and ask whether it will be rectified.

2. Qualified Survivor's Death Prior to Award Vitiates Claim

A subset of the "adult children" comment pertains to adult children whose parent 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 payment of compensation, so that if a surviving spouse files a claim and 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 to which the recently deceased parent would have been entitled. For example, due to the long delays in the processing of Part D claims by DOE (followed by the 2004 amendments to EEOICPA), many spouses of deceased employees have been waiting for extended periods of time (up to four years) to be awarded what is now Part E compensation, and some of these spouses have died before awards could be paid. In several cases, the death has occurred shortly before the check was to be issued, heightening the anomaly of this situation. 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 a "vested" benefit.

3. Many Claimants Will Exceed the $250,000 Cap on Part E 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 (5) 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 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.

Regulatory Burdens

1. Difficulty Finding Pertinent Exposure and Medical Records

Despite the fact that the Part E program is promoted as being claimant-friendly, it is clear that the burden of proving exposure and causation ultimately rests with the claimant (20 C.F.R. § 30.111). With the exception of the Special Exposure Cohort (SEC) designation, there are no presumptions, irrebuttable or otherwise, as to exposure or causation. As a result, many claimants are saddled with the burden of attempting to obtain pertinent exposure and medical records from more than 50 years ago.

A significant number of claimants (30) have expressed frustration at the lack of records concerning the covered employee's exposure to toxic substances. Their frustration stems from their recognition that in many cases, records were not maintained at the time of exposure, or if made, were lost or destroyed. In other cases, it stems from recognition of having worked for a series of contractors, who, if they compiled records at all, did not preserve them for subsequent contractors. Based on these tenets, many claimants feel that their burden of producing pertinent exposure and medical records is an insurmountable one.

This situation is exacerbated for those Part B claimants who work at facilities granted SEC status, but who are not covered by the SEC because their radiogenic cancer is not one of the 22 specified in Part B. The SEC designation of facilities (in addition to the four specified in the Act) is granted, based in part, on a finding that the exposure records necessary to enable the National Institute for Occupational Safety and Health (NIOSH) to perform a Dose Reconstruction are not available. SEC claimants suffering from radiogenic cancers have noted in particular that while their cancer may be as deadly as any of the 22 cancers specified in Part B, they will not be able to establish a 50% Probability of Causation (PoC) under either Part B or E, for the same reason that formed the justification for approving the SEC — no available records.

2. Concerns Regarding the Use of NIOSH Dose Reconstruction for Part E Claims

Under Part B, entitlement to benefits as a result of radiogenic cancer requires a determination concerning the probability that a cancer was caused by exposure to radiation at a covered site. A claimant's employment and exposure records and other information relevant to radiation exposure are reviewed by NIOSH to estimate the amount of radiation he or she received at a covered employment. If the Probability of Causation (PoC) is determined by DOL (using a NIOSH developed computer program) to be 50% or greater, an eligible claimant is awarded benefits. The Program Agency proposes to use this same analysis to determine causation under Part E for cancers solely caused by radiation. The Agency explains in the Preamble to the Interim Final Rule why it decided to utilize the NIOSH Dose Reconstruction process for radiogenic cancers in Part E as well as Part B. (70 Fed. Reg. 33590, 33593-594 (June 8, 2005)).

A number of claimants (28) have registered the following concerns regarding the Program Agency's proposed use of NIOSH Dose Reconstruction to determine causation for radiogenic cancers in Part E:

  • The dose reconstruction process takes too long, and otherwise eligible claimants may die while waiting for a result.
  • Agency should use linear model recently cited with approval by the National Academy of Sciences instead of NIOSH model.
  • Information provided to NIOSH regarding work history is oftentimes not accounted for in NIOSH dose reconstructions.
  • Claimants' employment at multiple covered facilities is not always reflected in dose reconstruction.
  • NIOSH should include copies of the documentation used to conduct the dose reconstruction when it sends out its findings.
  • NIOSH quarterly reports have been mistaken by individuals as the NIOSH dose reconstruction itself, since they are so lengthy.

3. Probability of Causation Requirement Is Too High

Under Section 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 —

  1. 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
  2. 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 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)).

Several claimants (9) 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%.

Concerns Regarding General Administration of Part E

1. Communications With District Offices are Confusing

In the course of developing a claimant's file in order to adjudicate the claim, District Offices correspond with claimants if they need additional information. When a Recommended Decision is issued, it is forwarded to the claimant with a notice of their appeal rights. Such correspondence is not always clearly written, and may not be understood by the claimant. As a consequence, a significant number of claimants (53) have called this Office for assistance in understanding what the correspondence they receive from District Offices means. As discussed at length in the body of this Report, the confusion concerns deadlines for taking appeals from Recommended Decisions, timelines for submitting additional information to District Offices, and what type of information is required to appeal an adverse decision. In this regard, there is also confusion regarding the effect of the 60-day waiver provision which accompanies the Recommended Decision. In addition, correspondence frequently includes citations to the law or regulations without accompanying text, which does not facilitate comprehension.

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; this confusion is sometimes due to unclear communication from the District Offices.

2. The Processing of Claims Has and Will Take Too Much Time

The delay attendant to the processing of claims is one of the most common complaints this Office has received regarding Part E. Many claimants who would be covered by the new Part E had previously filed their Part D claims with the Department of Energy, some as early as 2001. When Congress assigned the Part E program to the Department of Labor in October, 2004, 25,000 of these claims were still pending. 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. Claimants now think they will have to wait several more years as a result of the transfer. Many of the claimants are elderly; some are dying. This fact, combined with their recognition that their adult children will not be eligible survivors, has resulted in the perception among the claimants who have contacted this Office on this matter (48) that the agency is delaying the payment of benefits in an effort to "wait them out," i.e., wait for them to die. Recently, we have received an increasing number of calls from claimants who are being told by District Offices that Claims Examiners are still being trained on how to perform certain calculations.

3. Claims Examiners Do Not Always Return Calls

In the Part E program, the amounts of compensation are significant, many claimants who have filed under Part D have already been waiting for several years, the constituency is, by definition, sick and elderly, and compensation can only be paid to living claimants (42 U.S.C. § 7385s-3(c)). Based on the foregoing, it is not unreasonable for claimants to make regular telephone inquiries to check on the status of their pending claims. A significant number of claimants (23) have contacted this Office to complain that their calls to their Claims Examiners 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, and is unable to provide current information.

4. District Offices Do Not Provide Enough Services

Claimants are ultimately responsible for obtaining information sufficient to establish their claim. As a general rule, this means obtaining employment, exposure and medical records to prove the various elements of their claims (20 C.F.R. § 30.111). Congress directed the DOE and the DOL to undertake appropriate action to retrieve documents needed to adjudicate a claim (42 U.S.C. § 7385s-10(c)(2)). However, despite representations that the Part E program is claimant-friendly, many claimants have felt that they were on their own when it came to obtaining employment records and exposure records in support of their Part E claim. These claimants felt that the District Offices were not helpful in unearthing relevant information.

Similarly, a significant number of claimants (23) are encountering great difficulty in finding qualified physicians to perform medical impairment ratings, and have recommended that each District Office develop a list of qualified physicians whose impairment ratings will be acceptable to the Program Agency.

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 that they can consult to find a physician who will accept the card.

Emerging Trends

During its first year of administration of Part E, the Program Agency has focused on paying clear-cut claims, which could be paid directly from the statute, without the need to consult implementing regulations. This strategy facilitated compensation of eligible claimants as quickly as possible. The means used to accomplish this objective was to pay claims for which neither a Wage Loss calculation nor a Medical Impairment rating was required. Since these were the two components that comprised Part E compensation awards to living employees, this meant that no living employees would be paid in the first instance. The Program Agency has now begun to turn its attention to compensating living employees, which means having to implement procedures to deal with these two issues. This Office has recently begun to receive inquiries on both of these matters.

With respect to Medical Impairment ratings, there appear to be very few physicians who meet the requirements stated in the Interim Final Rule and Procedure Manual who will qualify to perform impairment ratings which the Program Agency will find acceptable (20 C.F.R. § 30.901(b); DEEOIC Procedure Manual E-900(4)(b)). We anticipate receiving many more inquiries and requests for assistance with respect to this issue in the coming year.

The Wage Loss calculation will require a multi-step process, and the covered employee will be compensated at one of two levels (or both), depending on how great a wage loss he suffered. First, an average salary must be established for use as a baseline against which to measure lost wages. This is done by averaging out the 36-months of annual earnings preceding the illness-induced wage loss. Next, the percentage of actual wages earned, as compared to the baseline salary, must be calculated. Finally, a multiplier of either $10,000 or $15,000 per year will be applied to the number of years of wage loss, as follows: $10,000 for years in which actual wages earned were greater than 50% but less than 75% of the baseline salary; $15,000 for years in which actual wages earned were less than 50% of the baseline salary; or, a combination of both. Due to the complexity of this calculation, and based on early inquiries, we anticipate that the Wage Loss component of the Part E compensation award to living employees will produce many inquiries and requests for assistance to this Office.

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