2006 Second Annual Report Preface
This report is Congressionally-mandated to contain "...complaints, grievances and requests for assistance." See 42 U.S.C. § 7385s-15(e)(2)(A). Consequently, this Office generally does not receive, and this report generally does not contain, comments that are 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 Part E (formerly Part D) claims, inherited from DOE. As a result, DOL did not have the luxury of developing 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; as of December 29, 2006, DOL had received a total of 58,943 Part E claims.
Under Part E, some survivor claims were clearly payable based on guidance provided 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 was commendable, particularly in view of the fact that Congress did not expect the Program Agency to begin making payments until regulations were issued (the Program Agency was given 210 days to publish regulations).
In addition to paying certain claims, the Program Agency charted several other labor-intensive courses. Simultaneously with paying clear-cut survivor claims, it began developing an Interim Final Rule (IFR). The Agency prescribed the IFR on May 26, 2005, thus meeting the 210-day deadline set by Congress. Town Hall meetings were held in early 2005 to explain to claimants and potential claimants the differences between Parts D and E; a second round of meetings were held in the Spring, Summer and Fall of 2005, to review the Agency's newly promulgated regulations. On December 29, 2006, after review and consideration of 533 comments received on the IFR, the Agency prescribed the Final Rule, which will become effective on February 27, 2007.
DEEOIC also provides services through eleven resource centers, strategically located to assist potential claimants by supplying information about Part B and Part E of EEOICPA:
- California Resource Center (Livermore, California)
- Denver Resource Center (Westminster, Colorado)
- Espanola Resource Center (Espanola, New Mexico)
- Hanford Resource Center (Richland, Washington)
- Idaho Falls Resource Center (Idaho Falls, Idaho)
- Las Vegas Resource Center (Las Vegas, Nevada)
- New York Resource Center (Amherst, New York)
- Oak Ridge Resource Center (Oak Ridge, Tennessee)
- Paducah Resource Center (Paducah, Kentucky)
- Portsmouth Resource Center (Portsmouth, Ohio)
- Savannah River Resource Center (North Augusta, South Carolina)
DEEOIC's resource centers are located 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 have a pre-existing personal or professional relationship with claimants they serve or, at a minimum, an institutional knowledge of the facilities, which helps them to provide assistance.
The resource centers respond to questions about the process for applying for EEOICPA benefits; assist claimants with locating medical and work records and with medical payment reimbursement issues; conduct initial employment verification; take occupational histories; supply claimants with application forms; and provide assistance to claimants in completing these forms. The latter usually involves 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.
Also during 2006, DEEOIC developed a tool called the Site Exposure Matrices (SEM), which includes information from a variety of sources, such as DOE, former worker medical survey programs, and epidemiological studies about the particular toxic substances present at particular DOE facilities. DEEOIC personnel use the SEM in determining whether particular toxic substances were present at a DOE facility during a particular claimant's employment. DEEOIC also indicates that SEM currently includes information on twenty DOE and Atomic Weapons Employer sites, as well as 4,000 mines covered by the Radiation Exposure Compensation Act (RECA, whose claimants also may be entitled to Part E benefits). According to DEEOIC, lists of toxic substances at individual DOE facilities will be available to the public through the DOL Web Site shortly.
DEEOIC also issued procedural guidance for its claims examiners that provides significant help to claimants in establishing entitlement to Part E benefits: EEOICPA Bulletin No. 06-08 (April 2006), "Establishing causation for specific medical conditions under the Energy Employees Occupational Illness Compensation Program Act" (updated by EEOICPA Bulletin 06-13, issued in July 2006), identifies several illnesses for which the DEEOIC has developed criteria under which a claims examiner can find a causal link between a diagnosed medical condition and toxic substance exposure. For example, if the evidence establishes that a covered employee has laryngeal cancer, that they were exposed to asbestos for at least 250 aggregate work days in covered employment, and if a required 15-year latency period is met, the claims examiner can find that the employee's cancer is causally related to their exposure to asbestos. The bulletin assists claimants in establishing causation under Part E by relieving them of the burden of producing medical evidence specifically establishing causation by work-related exposure.
Finally, in terms of production, as of December 29, 2006, the Program Agency had received 58,943 Part E claims and had issued 35,583 Part E recommended decisions (compared to 2,749 as of mid-December 2005); 28,594 of those recommended decisions had become final (compared to 2,380 as of mid-December 2005), including 8,861 claims decided in favor of the claimant (compared to 1,991 as of mid-December 2005). The result was payment of over $534 million in Part E compensation by December 29, 2006 (compared to over $254 million as of mid-December 2005). These challenges and accomplishments should be considered along with the issues outlined in this report.