EEOICPA - Energy Employees Occupational Illness Compensation Program Act

Mr. Chairman and Members of the Subcommittee:

My name is Donald Elisburg and I am appearing today on behalf of the AFL-CIO. I have been asked to testify because of my prior experience with implementing similar programs in the past. I testified in support of the legislation that ultimately became EEOIPCA before the Congress, specifically in support of assigning this program to the Secretary of Labor when this law was under consideration. I was also a member of the Workers Advocacy Advisory Committee of the Department of Energy from January 2001 through December 2002. That Advisory Committee was appointed to assist the Department of Energy in implementing its responsibilities under EEOICPA.

I want to thank you for the opportunity to testify on the implementation of the EEOICPA.

The AFL-CIO and our affiliates have a significant interest in the implementation of this program because our involvement since the nuclear weapons program began as the Manhattan Project in the early 1940’s when members of our affiliate unions built, and maintained the many facilities used to develop and maintain nuclear weapons. Our members have also served as the principal production and operating personnel of these weapons facilities. For decades, the AFL-CIO, the Building and Construction Trades Department (BCTD), Metal Trades Department, PACE, the Laborers and other unions have worked to secure safety and health rights and protections and just compensation for these workers.

As we have testified before Congress many times, these workers were engaged and continue to be engaged in activities vital to the security of the United States. They deserve to be treated with fairness and dignity.

EEOICPA was passed in recognition of the fact that the work at these facilities put workers at risk of injury, illness and death from exposure to radiation and various toxic chemicals and materials used in the nuclear weapons program. Secrecy put these workers at additional risk. EEOICPA was Congress’ recognition and determination to compensate workers and their families even if it would not make them whole.

Congress directed the President to implement this program. By Executive Order the program was assigned to the Departments of Energy, Labor and HHS.

Unfortunately, the experience with the implementation of this program is just not what these sick workers or their survivors deserve, nor does it meet the objectives Congress set forth in the Act. Energy workers with radiation-induced cancers need timely compensation and that is not happening with many thousands of claimants.

Subtitle B of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), 42 U.S.C. §§7384-7385, enacted in 2000, established a federal program to compensate workers at Department of Energy atomic weapons and contractor facilities for illnesses resulting from radiation, beryllium, and silica. The program provides a $150,000 lump sum payment and prospective medical benefits to covered employees or a lump sum payment to their survivors. To date, the Department of Labor has paid over $672 million in benefits. But there is a huge backlog of claims pending--more than 14,000--awaiting dose reconstruction by the National Institute for Occupational Safety & Health (NIOSH). Claims of workers with cancer who are awaiting payment because NIOSH has not completed their dose reconstruction arise in states throughout the country.

NIOSH should streamline the procedures for evaluating these claims so workers and their survivors can be compensated in a timely manner as Congress intended. The fairest and most efficient way to do this is to streamline the procedures to add groups of workers to the Special Exposure Cohort so their claims can be considered on an expedited basis.

When EEOICPA was passed, the Congress designated certain groups of workers with cancers linked to radiation exposure to be included in a special exposure cohort (SEC) because DOE’s radiation exposure records were so poor it was not possible accurately to reconstruct each employee’s radiation dose. Under the Act, workers employed at DOE gaseous diffusion plants in Oak Ridge, Tennessee, Paducah, Kentucky or Portsmouth, Ohio were automatically included in the SEC. For these employees, compensation is paid without regard to an employee’s individual radiation dose if the claimant has one of the designated cancers and meets the Act’s general exposure/employment criteria. These claimants receive compensation for cancer promptly.

But for workers with cancer from all other DOE facilities, or for those with cancers other than those specified as presumptively linked to radiation exposure, different, complicated procedures were established -- requiring either individual dose reconstruction or a lengthy process to designate additional members of the SEC. NIOSH has been given responsibility for both of these activities, but because of the complexities involved, has fallen years behind. More than 14,400 claims are now pending dose reconstruction and no new members have been added to the SEC. So far, NIOSH has forwarded completed dose reconstructions to DOL for only 700 claims. At the rate NIOSH is going, it will be years before these backlogged claims are processed and victims receive compensation. Meanwhile, DOE workers with cancer do not have the medical or cash benefits Congress provided and their widows grow old without the economic security to which they are entitled.

The backlog of pending claims at NIOSH is a problem that affects workers throughout the country and is particularly severe at some of the larger DOE weapons facilities where large numbers of workers were exposed to radiation. These facilities including Rocky Flats (CO), Iowa Ordnance Plant (IA), Idaho National Lab (ID), Fernald (OH), Los Alamos (NM), Nevada Test Site (NV), Savannah River (SC), Oak Ridge National Lab (TN), and Hanford (WA). The table below shows the number of claims (and individual cases) from all Department of Energy facilities awaiting dose reconstruction at NIOSH by state (for states with more than 50 claims).

*Accepted claims include claims for chronic beryillum disease, silicosis, as well as radiation cancer.

One of the major reasons for this delay is that for many workers DOE radiation exposure records are incomplete, inaccurate or nonexistent. When NIOSH reconstructs a radiation dose, it must make educated guesses as to what an employee’s dose was likely to have been. While NIOSH claims that its process is employee friendly, nobody can gauge whether NIOSH dose reconstructions bear any reasonable relationship to an employee’s actual radiation dose. We cannot state too strongly the need to be sure that this aspect of the program is transparent and credible to the claimants and their families.

As stated earlier, this entire compensation program has to be measured against the very long and well documented history of secrecy and deceit on the part of the Department of Energy and its predecessor agencies tracing back to the earliest days of the Manhattan Project. This long history and the resultant distrust of the DOE requires an open and transparent program. This is especially true given the technical complexity of dose reconstruction and the reliance on DOE to provide the dose data.

Many thousands of our members served their country in the cold war by working at these facilities often under very difficult conditions. They deserve to be treated with respect and should have a compensation program that they can trust and understand.

Unfortunately, some of the activities that NIOSH has undertaken appear to be at cross purposes with this goal of an open and transparent program. As an example, NIOSH has recently implemented a plan to develop site profiles for each major site as a framework for individual dose reconstructions. These profiles would include the major sources of exposure data for the site. However, NIOSH's procedure included no opportunity for input into these site profiles by unions, interested parties, etc. until after the profiles were complete and being used by NIOSH. This procedure only compounds the past mistakes made by DOE to hide information from the exposed workers and their families. The Advisory Board raised objections to this approach and has asked NIOSH to develop a more open process involving the local unions and other interested parties in the development and review of these site profiles in order to ensure the credibility of the dose reconstruction program. The Savannah River Site is a prime example. The site profile was released in August without any discussion or review with the local unions or other interested parties. NIOSH’s initial excuse, that there were no unions at SRS, totally missed the fact that there have been union workers engaged in building and maintaining the SRS facility since the first construction activity a half century ago. We would note for the record, that after extensive protest, NIOSH is now undertaking a meeting at SRS in November to discuss this profile with the local unions and interested parties. These activities should not have to be undertaken only after claimant protests.

Similiar concerns about the uncertainty of dose reconstruction have been raised about Department of Defense radiation dose estimates for military personnel. Unlike DOE nuclear workers, under veterans’ compensation benefits, all veterans with specified cancers are presumed entitled to compensation. Dose reconstruction is used to determine whether to compensate veterans for other diseases. The National Academy of Science’s Institute of Medicine recently evaluated the DOE dose reconstruction process. It concluded:

Because specific exposure conditions for any individual often are not well known, many participants did not wear film badges during all possible times of exposure, and the available survey data used to input the models often are sparse and highly variable, the resulting estimate of total dose form many participants are highly uncertain.

There are major problems with the proposed procedures for the designation of additional members the SEC. Under EEOICPA, additional members of the SEC may be designated when it is not feasible to estimate with sufficient accuracy the radiation dose of the affected workers. (Section 3626). This spring, NIOSH proposed procedures for designating additional members of the SEC. The NIOSH proposal was strongly criticized by the Advisory Committee on Radiation and representatives of DOE workers. Decisions on adding additional members to the SEC can be expected to take at least two more years--almost five years from the enactment of EEOICPA. Employees seeking designation as members of the SEC will have to meet a high burden of proof--a burden not imposed on fellow workers from gaseous diffusion plants who have already received compensation for their radiation induced cancers.

Workers at DOE facilities such as Hanford, Rocky Flats, and Savannah River, and other locations, are treated unfairly under EEOICPA. Their colleagues at gaseous diffusion plants, like veterans, are presumed eligible for compensation if they get certain cancers and many have received compensation. Meanwhile, these other workers, whose radiation doses likely were just as high and for whom radiation dose records are just as sparse, must individually demonstrate their right to compensation. The process for doing so, dose reconstruction, is too slow and inherently uncertain. Only a handful of workers outside the SEC have actually received compensation for their cancers since EEOICPA was passed.

EEOICPA needs to be fixed so DOE workers with radiation induced cancers or their survivors receive timely compensation. The following modifications to the program would accomplish this goal by simplifying and streamlining the procedures for adding additional groups of workers or facilities to the special exposure cohort. NIOSH has the authority to implement each of these policies, but has so far failed to do so:

These revised procedures will streamline the process for evaluating petitions for expanding the SEC, and for those groups of workers who are added, expedite the process for evaluating their individual claims for compensation. Once added to the SEC, the same criteria for compensation will apply to these workers as applies to workers at the gaseous diffusion plants. The recommended procedures do not expand the number of workers eligible for compensation, nor should it change the anticipated costs of the program. Most of these claimants are already eligible for compensation. They are just required to wait far too long to receive the compensation they are due. Streamlining the process and clarifying the criteria by which these employees may be added to the SEC simply changes the procedures by which the merits of their claims are judged and speeds up the compensation process.

Mr. Chairman, our organizations have a longstanding relationship with the Department of Labor and with NIOSH. We supported the assignment of this program to them. We believe that the Department of Labor has done a very commendable job so far in getting its program up and running. As the comments submitted by our respective organizations to NIOSH make clear, we believe that NIOSH is simply misreading its responsibilities under the existing law and has proposed a regulatory scheme that will not work and which will result in both a costly process and an intolerable wait by claimants for relief. If NIOSH persists in interpreting the statute with such restrictive requirements, then, we see no alternative but to support changes to the law that will ensure equal treatment of all claimants under this program.

Mr. Chairman, I would like now to turn to other serious problems with EEOICPA, namely the Subtitle D program administered by the Department of Energy.

Subtitle D of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) was intended to take DOE out of the business of fighting state workers’ compensation claims brought by sick nuclear workers who were employed at DOE defense nuclear sites. Benefits are provided for workplace-related disabilities and medical costs. In September 2002--almost two years after the enactment of EEOICPA--DOE issued a rule governing the operations of the Physicians' Panel (10 CFR Part 852). The rule established the criteria for Physician Panels to determine whether an illness or death arose out of and in the course of employment by a DOE contractor and exposure to a toxic substance. That criteria is whether “exposure to a toxic substance at a DOE facility during the course of employment by a DOE contractor was a significant factor in aggravating, contributing to or causing the illness or death of the worker at issue.” (See: 10 CFR Part 852.8).

A simple majority of a Panel (two of three doctors) must agree in order to issue a

determination. The rule prohibits contractor involvement in contesting Physician Panel findings, but allows claimants to appeal adverse Physician Panel findings within the DOE's Office of Hearings and Appeals. A total of 26 appeals have been decided to date. DOE estimated benefits and administrative costs for this rule at $130 million/10 years during the rulemaking. Physicians are selected by NIOSH--instead of the DOE--in order to provide a measure of independence. There are approximately 120 doctors who have been approved by NIOSH for the DOE Physicians Panel. Due to the low rates of compensation ($55-60/hour), some physicians with clinical practices have withdrawn from participation. Once a Physicians' Panel issues a positive determination, DOE is required to provide the claimant with assistance in filing their claim with a state workers’ compensation commission.

Pursuant to EEOICPA, DOE must direct contractors not to contest the state workers’ compensation claims, to the extent allowable by law, and DOE may not reimburse contractors for legal costs of contesting such claims. Practically, this means DOE will instruct its contractors to send a letter to the state workers’ compensation board indicating that they will not contest the claim. However, this doesn't necessarily mean that the claim will be paid, because some “payors” are not under DOE’s/contractor’s control and are unwilling to pay (e.g., exclusive state funds and insurers).

States and insurance companies are not agreeing to be bound by DOE Physician Panel determinations. Although DOE entered into Memorandum of Agreements (MOA) with 12 states (AK, CA, CO, ID, IA, KY, NM, NV, OH, SC, TN, TX) during 2002, none of these agreements require states to accept the findings of a Physicians' Panel. All 12 states reserve the right to impose their own provisions of state law rather than abide by the findings of DOE or its Physicians’ Panel.

For example, the DOE-Alaska Commission Agreement of 9/13/02 says:

To get valid claims paid, DOE is counting on its current site contractors, many of which are self-insured for workers’ compensation, to pay the claims and the DOE will reimburse them (using appropriated funds). At a number of DOE sites in IA, OH, KY, AK and CO, the DOE has not identified a “willing payor.” A “willing payor” is an entity which DOE can meaningfully direct to pay claims after a Physicians Panel determines that a claim is work related. DOE’s General Counsel has indicated that up to 50% of valid claims may not have a “willing payor”. DOE has not inventoried those locations where it lacks a “willing payor.” DOE’s Worker Advocacy Advisory Committee (WAAC) warned the Secretary in August of 2001, and again in June of 2002, that the absence of a willing payor was a large, unresolved problem which would pose a “gross inequity” to claimants (as we are witnessing today in Alaska).

On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the Northeastern
University Law School) wrote on behalf of the Committee:

The Advisory Committee accurately described the problem that has now arisen in Alaska.
The Committee concluded:

In response to this recommendation, Assistant Secretary Cook wrote (8/9/02):

“The issue of mechanisms of payment of claims where there is no current contractor with responsibility for paying a claims remains a concern. We will continue to explore possible remedies with the WAAC, the General Counsel and Congress to correct this inequity.”

DOE allowed the Advisory Committee’s charter to expire 1/1/03. Neither DOE nor the Administration has proposed any solutions, despite repeated requests from Governors, workers’ compensation commissions and Members of Congress.

DOE has received approximately 18,823 claims for assistance as of August 29, 2003. In the year since its rule has finalized, DOE has made very little progress on its backlog.

Only 74 (0.3%) have been decided by the Physicians Panel (45 accepted and 29 rejected) and 132 (0.6%) are in the Physicians Panel process. DOE has not even started case development work on 14,434 cases (71%). DOE estimates a backlog of 5 years. Others foresee a much longer time to process claims. In testimony before the Senate Energy Committee in February, Secretary of Energy Spencer Abraham committed to have 100 claims per week completed by August of 2003. But the DOE failed to meet that goal.

DOE has received a significant amount of funding to run the Workers Advocacy Office. The resources have been there, but the ability to get the program off the ground is lacking.

There are many possibilities for speeding up claims processing including requesting the assistance of the Department of Labor in developing claims and using the existing former worker programs to assist in developing claims, just to name a few actions.

There are several options available to resolve the willing payor issues:

DOE could enter a into cost-reimbursement arrangements with a national (or site specific) non-risk bearing Third Party Administrator (TPA) to serve as the willing payor where (a) DOE contractors are no longer present at DOE sites, (b) where DOE contractors were not self insured and an insurance company “owns” the claim, or (c) where there is an exclusive state fund (OH, NV and WA). Claims payments would be subject to appropriations. Levels of benefits would beset by state compensation agencies. The TPA would assume full liability in lieu of employers, insurers or others who could object to a claim. Presumably disability determinations would still have to be made by a state compensation panel. The Advisory Committee suggested this approach.

DOE could enter into contracts with exclusive state funds, insurers or TPAs to assume payment of claims in each instance where there is no willing payor. Ohio’s exclusive state fund has made such a proposal.

Congress has made a firm promise that each nuclear worker with radiation cancer will receive compensation.  That promise must be kept.  We must also work to fix the problems with the DOE program, so those with other work-related illnesses caused by toxins at the DOE complex will receive workers’ compensation payments.

Thank you.

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