La Jicarita News – Community Advocacy for Northern New Mexico

Nuclear Workers Struggle with an Unworkable Claims Process
By Mark Schiller

In the October 2007 issue of La Jicarita News I wrote an article about the dysfunction and corruption that pervades the administration of the program to compensate workers who have developed cancer and respiratory diseases as a result of being exposed to radiation and other toxic substances while working in federal nuclear weapons facilities. This month I’m going to follow up on that article by detailing the frustrating process a claimant seeking compensation must negotiate and how this compares to another government compensation program for victims of radiation exposure.
A Typical Claim

This information is based on the case of a former Los Alamos National Laboratory (LANL) employee, who wishes to remain anonymous, and was supplied by Dr. Maureen Merritt, a former U.S. Public Health Service doctor who provides advocacy services for Energy Employee Occupational Illness Compensation Act (EEOICPA) claimants and has been instrumental in drawing attention to the inequities of the claims system.

EEOICPA created two programs through which claimants can seek compensation: Part B which provides a one time compensation package of $150,000 plus medical expenses for workers who have contracted one of twenty-two designated cancers because of job related radiation exposure; and Part E, which provides up to $250,000 for lost wages and disabilities that resulted from job related employment. The Department of Labor (DOL), which administers the EEOICPA claims program (The Department of Energy administered the EEOICPA claims program until November 2005 when, because of numerous instances of incompetence and corruption, Congress transferred administration to the DOL.), operates Resource Centers (RC) near nuclear weapons facilities throughout the country that are supposed to help claimants initiate their claims and guide them through the process. However, according to Dr. Merritt and other EEOICPA claimant advocates, RC staffers have been expressly warned not to do advocacy for the claimants. In fact, both Dr. Merritt and Dr. Ken Silver, a professor of Environmental Health who worked as a consultant to the environmental health project at UNM for six years and recently testified before a Senate committee investigating complaints about EEOICPA, cite numerous cases in which RC staffers were “rude, inconsiderate,” and made claimants feel as is they were “asking for a handout.”

In the case we’re examining the claimant is a 61 year-old male who had worked at LANL for 30 years when he was diagnosed with colon cancer, one of the twenty-two cancers covered under EEOICPA. In 2001, after surgical removal of a portion of his colon and a year of chemotherapy, which left him incapacitated (constant nausea, memory loss, joint and muscle pain and general weakness), the claimant filed an EEOICPA compensation claim with the “help” of the RC in Española.

Things went badly from the start. The intake staff got the claimant’s Social Security number wrong on his application causing serious delays and missed deadlines. Between the claimant’s initial application in 2001 and 2006, when a decision was rendered, the Resource Center never updated the claimant on the progress of his claim and contacted him only once, via telephone, for additional information. In early 2006, during the changeover in administration from DOE to DOL, the Resource Center informed the claimant that all his records had been lost, causing further delays. When Dr. Merritt wrote a letter on the claimant’s behalf in February of 2007 requesting all pertinent information regarding the claimant’s application, the RC never responded.

Dr. Merritt also notes that during the claimant’s initial interview he was extremely weak and confused because of his cancer and the treatments he was receiving for it. The RC staff, she told me, made no effort to help him develop an accurate history of his exposure, which is a critical component of the Dose Reconstruction program that determines compensation eligibility under Part B of EEOICPA. (The Dose Reconstruction program theoretically constructs a history of the claimant’s radiation exposure based upon information about the facility in which the claimant worked and personal interviews about where and when he worked in that facility. It then attempts to determine the “probability” of whether the claimant’s cancer was caused by that exposure.) Moreover, when she sent a Freedom of Information Act request via registered mail to the DOL office in Washington D.C. requesting all records related to the claimant’s Dose Reconstruction, she received no response despite numerous follow-up calls to all the agencies involved. Dr. Merritt also told me that while the claims process forces the claimant to adhere to strict short-term deadlines, the government routinely fails to comply with timeliness its own regulations set to process applications. In this case it took the government five years to process the claim, which resulted in a denial of benefits. When the claimant appealed the decision, both the claimant and his advocate, Dr. Merritt, found the appeals process “hostile and intimidating.”

Ironically, after six years of going through this agonizing process, LANL claimants who worked at least 250 days between the years 1943 and 1975 were granted Special Exposure Cohort (SEC) status. SEC is a concession that the government does not have enough reliable information to reconstruct the radiation exposure of employees at a facility during a specified period of time. It therefore grants compensation to all claimants who worked at the facility during that time period and contracted one of the twenty-two designated cancers. As a result, the claimant was notified in 2007 that he qualified for $150,000 plus medical benefits under Part B of EEOICPA. He is currently still fighting for disability and lost wages compensation under Part E.
Dose Reconstruction Program

This claimant’s nightmare experience, and the thousands of other equally horrifying experiences of EEOICPA claimants throughout the United States, many of whom have received no compensation, obviously brings into question the reliability and cost effectiveness of the entire Dose Reconstruction Program. According to Dr. Silver’s recent Senate testimony: “[Dose Reconstruction] Program statistics in a recent presentation by OCAS (the Office of Compensation, Analysis and Support) point to a program that is fundamentally broken. From 2001 till 2007 NIOSH [National Institute for Occupational Safety and Health, which administers the Dose Reconstruction program for DOL] has received $280 million to perform dose reconstructions. NIOSH work has resulted in payments to claimants of $869,000,000. Administrative costs are therefore equal to 32.2% of payments (about one-third). Members of this committee are more familiar with the comparable administrative expense rate for other entitlement programs. For SSDI [Social Security Disability Insurance] it’s 2.5%. The average cost per case was $14,534 per dose reconstruction.”

Professor Silver went on to note that “DOL has rejected . . . about one quarter (24.5%) [of NIOSH’s dose reconstructions] and sent them back to NIOSH to be reworked, mainly because NIOSH updated its methods without redoing the earlier cases. GAO [the General Accounting Office, which issued a report just after Professor Silver’s testimony underscoring the numerous problems inherent in NIOSH’s administration of the Dose Reconstruction program] will have more to say about these numbers. But clearly, despite an unlimited budget, the two agencies responsible for the program don’t agree on what is valid in one-quarter of the cases. Little surprise then that many claimants have lost faith in how the program is administered.”

Dr. Silver’s critique of the Dose Reconstruction program is underwritten by DOL’s recent admission that the cases of 730 Nevada Test workers who were denied benefits would be reopened because an audit “found flaws in the documents used to assess them.” (This figure does not include 180 claims DOL returned to NIOSH for “dose estimate revisions.”) According to a November 23, 2007 article by reporter Keith Rogers in the Las Vegas Review-Journal, “NIOSH officials acknowledged last week that an audit . . . resulted in a ‘total rewrite’ of at least two of six sections of the test site’s technical basis document known as a site profile.”

Site profiles, which contain “historical information about tests and activities involving radioactive materials or releases,” are critical to the dose reconstruction process and claimants and their advocates have been outspoken in denouncing the inaccuracies and omissions contained in many of these reports. The article goes on to interview former test site worker John Funk (the director of the non-profit advocacy group Atomic Veterans and Victims of America and a cancer victim whose EEOICPA claim has been denied), who said that he was pleased that NIOSH was revising the site profile but was still concerned that it could take up to two years for NIOSH to implement the changes and then reprocess the affected claims. “And I also wonder,” he said, “why NIOSH was recommending only last month to deny Nevada Test Site workers special exposure [cohort] status [SEC status] when they knew damn well these changes [in the site profile] would impact that decision.”

This too is not an isolated instance. In November of this year it was revealed that an entire building at the Rocky Flats nuclear weapons facility in Colorado was omitted from a proposal for SEC status and more than 800 workers who should have been granted SEC status were not included. The entire Colorado Congressional Delegation has noted that the SEC covers “only a small portion of Rocky Flats workers who deserve to be covered” and urged the DOL to extend the SEC to all Rocky Flats workers who have contracted radiation-related cancers.

These shocking examples are typical of the claims process throughout the United States. Compensation for EEOICPA claims runs from just 10% to 30% depending on the facility. Facilities that have union organization and advocacy generally fair better than facilities that don’t. LANL, where most claimants must fend for themselves, has one of the lowest compensation records in the country.
EEOICPA vs. RECA

Now let’s compare EEOICPA to the Radiation Exposure Compensation Act of 1990 (RECA), which provides “payments to individuals who contracted certain cancers and other serious diseases as a result of their exposure to radiation released during above-ground nuclear testing or as a result of their exposure to radiation during employment in underground uranium mines” during the period 1942 to 1971. This act grants fixed compensation benefits in the following amounts: “$50,000 to individuals residing or working ‘downwind’ of the Nevada Test Site; $75,000 for workers participating in above-ground nuclear weapons tests; and $100,000 for uranium miners, uranium millers, and ore transporters.” RECA, which is administered by the Department of Justice, requires no dose reconstruction or other proof of contamination and generally take less than 18 months to process. As a result almost 71% of all claims have been approved.

So why was the government’s approach to these two obviously related groups of claimants completely different? The reason seems obvious: RECA has a much smaller pool of potential claimants and benefits are more limited. As of November 1, 2007, over the course of fifteen years, there have been 27,234 total RECA claims resulting in approximately $1.25 billion in compensation benefits. By contrast, under EEOICPA there have been 14,921 claims at the Oak Ridge Gaseous Diffusion Plant alone, resulting in compensation of just 30% of those claims amounting to $540,332,439. Nationwide, even at an average compensation rate of 25%, EEOICPA will be paying billions of dollars in benefits. Bear in mind also that RECA claims are capped within the 1942-1971 time period, whereas EEOICPA is open-ended so that the pool of claimants is constantly expanding. Clearly the government is trying to limit its liability by making the claims process as cumbersome and difficult as possible. Moreover, as I noted in my October article, the White House Office of Management and Budget, the Department of Health and Human Services, The Department of Labor, and the Department of Energy covertly conspired to limit the expansion of the SEC program. And the DOL’s Budget Request for benefits under Part B, which inexplicably dropped from $460 million in fiscal year 2006 to $277 million in fiscal year 2007, obviously reflects those efforts.

This issue is a national tragedy: thousands of people, who believed they were contributing to national security, are suffering and, in many cases, dying while the government drags them through a totally unrealistic and unworkable claims process. The real beneficiaries of the Dose Reconstruction program are the DOL, NIOSH, and their contractors, who pad their budgets with the program’s outrageous administrative costs. Congress should do away with Dose Reconstruction all together and extend EEOICPA benefits to all workers who’ve been made ill by the government’s failed policy of “nuclear diplomacy.”