EEOICPA Claims Assistance
Congress passed the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), effective July 1, 2001, to provide compensation to people who have developed certain illnesses as a result of exposure to radioactive and toxic substances while employed in atomic weapons programs.
Can we help you?
At Stephens & Stephens, we understand the EEOICPA. The attorneys at Stephens & Stephens help individuals, or their eligible survivors, to collect compensation from the government under the EEOICPA. We help you with the preparation and submission of claims under the EEOICPA. We assist you in obtaining all documentation necessary for your claim, including difficult-to-obtain medical and employer records, from a variety of sources. We work directly with government agencies in the processing of your claim. Learn more about our free EEOICPA Claim Assistance.
Our fees for assisting with claims under EEOICPA Part B are set by statute (42 U.S.C. 7385g), and we do not collect any fees unless and until your claim is paid. No attorneys’ fees are charged for unsuccessful claims. If we are filing an initial claim for payment of lump-sum compensation under EEOICPA Part B, our fees are two percent (2%) of the total payment made. For example, upon payment of a $150,000 claim, Stephens & Stephens collects $3,000, and the remainder is paid to the client. If we are objecting to a recommended decision denying payment of lump-sum compensation under EEOICPA Part B, our fee is ten percent (10%) of the total payment made. Expenses payable in addition to the statutory attorney fee will be discussed in advance. For example, if it is necessary to order documents to support your claim, we may request that you provide payment for the actual cost of the document before we order it, or we may request that you provide such payment when your claim is paid.
Overview of the
Energy Employees Occupational Illness Compensation Program Act
The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) (42 U.S.C. § 7384 et seq.) was passed on Oct. 30, 2000, effective July 31, 2001. It was later amended by the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107, § 3151(b)) and the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375; § 3161).
Under Subtitle B of the EEOICPA, “covered employees” can receive compensation ($150,000 and medical benefits from the date a claim is filed) for working at a DOE facility or an Atomics Weapon Employer (AWE) facility. Compensation amounts are provided by an entitlement fund in the United States Treasury which is replenished as necessary. The funding may be limited or removed only by act of Congress.
In cases of “covered employees” who are deceased at the time of payment of compensation, payments are made first to the spouse, then (if no spouse) in equal shares to living children, then (if no spouse and no children) in equal shares to living parents, then (if no spouse, children, or parents) in equal shares to living grandchildren, then (if no spouse, children, parents, or grandchildren) in equal shares to living grandparents. 42 U.S.C. § 7384s(e)(1). If an eligible “covered employee” dies before filing a claim, a survivor entitled to payment under 42 U.S.C. § 7384s(e)(1) may file the claim. 42 U.S.C. § 7384s(e)(2). Such survivors may also file claims on behalf of eligible individuals who have died before filing a EEOICPA claim. The eligible survivor must be alive to receive the payment. 20 C.F.R. § 30.101(c) (“A survivor must be alive to receive any payment under EEOICPA; there is no vested right to such payment”).
Special Exposure Cohort (SEC) Claims
A “covered employee” under Subtitle B includes a “covered employee with cancer.” 42 U.S.C. 7384l(1). Eligibility may also be established by beryllium disease or silicosis. A “covered employee with cancer” with Special Exposure Cohort (SEC) status may be compensated without having to go through the lengthy process of proving causation like other claimants. Compare requirements for SEC claimants under 42 U.S.C. § 7384l(9)(A) with requirements for non-SEC claimants under 42 U.S.C. § 7384l(9)(B). SEC status allows for fast-track compensation, without the need for a NIOSH “dose reconstruction” and a DOL determination as to “probability of causation” (see below). The SEC is a defined category of employees (see 42 C.F.R. Part 83 (“Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort under the [EEOICPA] of 2000”)) who:
- Have any of 22 “specified cancers”: Bone cancer; Renal cancers; Leukemia (other than chronic lymphocytic leukemia), provided the onset of the disease was at least two years after first exposure; Lung cancer (other than in-situ lung cancer that is discovered during or after a post-mortem exam); or the following diseases, provided onset was at least 5 years after first exposure: Multiple myeloma, Lymphomas (other than Hodgkin’s disease), or Primary cancer of the Bile ducts, Brain, Breast (female), Breast (male), Colon, Esophagus, Gall bladder, Liver (except if cirrhosis or hepatitis B is indicated), Ovary, Pancreas, Pharynx, Salivary gland, Small intestine, Stomach, Thyroid, Urinary bladder
- Worked for at least 250 aggregated days of employment in a class or classes at any of the SEC Work Sites. A class is a group of employees who worked at the same facility and for whom the availability of exposure information is comparable for purposes of dose reconstruction. For example, a given SEC work site may have classes of employees for only certain dates of operation. The total number of days of employment in a class at each facility can be combined together to meet the 250-day requirement. See list of current SEC sites.*
For more on the Special Exposure Cohort, see 42 C.F.R. Part 83.
EEOICPA Part E Claims
Former Subtitle D of the Act, managed by DOE, provided assistance to nuclear workers in obtaining state workers’ compensation benefits as a result of work-related toxic substance illnesses. The program under Subtitle D was replaced in October 2004 by a new program under Subtitle E, managed by DOL, which provides compensation (and medical benefits under certain circumstances) to covered employees (or their surviving spouses and/or their surviving children who, at the time of the worker’s death, were under the age of 18, or full-time students under the age of 23, or of any age and incapable of self-support), for illnesses caused by exposure to any toxic substance while working at a DOE facility. Compensation is based on the amount of disability ($2,500 for each percentage point of impairment; e.g., $25,000 for 10% disability) and/or loss of income prior to your normal Social Security retirement age ($10,000 for each year of 25%-50% wage loss, and $15,000 for each year of wage loss greater than 50%, plus an additional 45% if you suffered a 75% wage loss for 3 years). If you have not previously filed for benefits under the former Subtitle D, you will need to apply for benefits under the new Subtitle E.
Some individuals who have received payments under EEOICPA Subtitle B or RECA may be eligible for other federal payments if qualified under EEOICPA Subtitle E.
EEOICPA Claim Process: What to Expect
1. DOL Referral to NIOSH
For claims other than SEC claims, when a claim is filed under EEOICPA, the DOL makes an initial determination as to whether the claimant worked at a covered facility during a covered time period and has a qualifying health condition. If the health condition at issue is cancer, the case is sent to the National Institute for Occupational Safety and Health (NIOSH) (part of the Centers for Disease Control (CDC), an agency of the United States Department of Health and Human Services (DHHS)) for “dose reconstruction,” the process of estimating a worker’s past exposure to radiation, based upon exposure monitoring and other information. Between Oct. 12, 2005 and May 31, 2007, Batelle, a NIOSH subcontractor, assisted in dose reconstruction on a task-order basis at certain work sites.
NIOSH then sends an “Acknowledgment Letter” to the claimant, notifying the claimant that NIOSH received the case from DOL for dose reconstruction. While a case is pending with NIOSH for dose reconstruction, claimants are given a NIOSH Tracking Number which allows them to obtain their current case status online. NIOSH Tracking Numbers are assigned in the order the case is received from DOL. NIOSH currently completes 300-400 dose reconstructions per month.
2. NIOSH “Dose Reconstruction” Process
The purpose of the “dose reconstruction” process is to characterize the occupational radiation environment to which the claimant was exposed. NIOSH first collects an initial set of records, which may include personal monitoring records, area monitoring records, and/or process descriptions. NIOSH requests exposure monitoring information (worker and facility records and data) from DOE, and DOE is expected to provide a response (or acknowledgement and status) within 60 days. Claimants may also submit copies of exposure monitoring records, if they have them. NIOSH sends monthly reports to DOE as to requests more than 60 days overdue. (Employees may obtain a copy of the DOE records received by NIOSH upon written request to NIOSH/OCAS, 4676 Columbia Pkwy., Mailstop C-45, Cincinnati, OH 45226, E-mail: email@example.com, Fax: (513) 533-6826.) NIOSH attempts to use personal exposure information (film badge readings, x-rays, urinalysis results, incident reports, etc.) whenever possible. If little or no personal exposure information is available, NIOSH will use technical documents (site profiles, etc.) and coworker data to provide reasonable dose estimates to fill in the gaps. Once the NIOSH contractor has received enough information to conduct the dose reconstruction, NIOSH selects a Health Physicist(s) to work on the particular case.
Questionnaires are sent to claimants, the answers to which are submitted via telephone interviews. Telephone interviews are conducted by Oak Ridge Associated Universities (ORAU), a university consortium in partnership with national laboratories, government agencies, and private industry, and/or its partners, Dade Moeller & Assocs., Inc. and MJW Technical Servs., Inc. The telephone interviews are conducted to offer claimants/survivors an opportunity (optional/voluntary) to provide additional information not described in the radiation exposure information. A written “telephone interview summary report” is sent to the claimant following the interview, to provide an opportunity for review and to submit corrections/additional information (also via telephone). Following the telephone interview, NIOSH performs an analysis and prepares a report of ranges of estimates including “worst case” figures.
The draft dose reconstruction report is sent to the claimant for review. Within two weeks of receipt of the draft report, NIOSH conducts a “closing interview” with the claimant (optional/voluntary), to review the results and the basis for their calculation, and to address any remaining questions/concerns. If NIOSH revises the draft report, the claimant will be sent a revised copy, and a new closing interview will be scheduled. Otherwise, if a claimant disagrees with the NIOSH draft dose reconstruction report, he/she may state such disagreement only later upon receipt of DOL’s recommended decision in the case (see below). The claimant is required to sign and return an OCAS-1 form (OCAS is the NIOSH Office of Compensation Analysis and Support) within 60 days from the date of receipt of the draft dose reconstruction report, stating that he/she has no information to add and authorizing NIOSH to forward the complete report to DOL for a decision. NIOSH will send the claimant a copy of the final dose reconstruction report upon its receipt of a signed OCAS-1 form. If NIOSH does not receive the OCAS-1 form, NIOSH will “administratively close” the case and refuse to forward it to DOL. The case may be reopened once the signed OCAS-1 form is submitted. In the case of multiple claimants, partial compensation will only be awarded to those individuals who return a signed OCAS-1 form. The Advisory Board on Radiation and Worker Health (comprised of scientific, medical, and worker perspectives) reviews dose reconstructions for scientific validity and accuracy.
For more on dose reconstruction, see the Dose Reconstruction Rule at 42 C.F.R. Part 82.
3. DOL Determination re: “Probability of Causation”
Once the dose reconstruction is completed by NIOSH, the case is returned to DOL. DOL reviews the dose reconstruction report, as well as medical, employment, and other information from the employee/survivor. DOL then makes a determination as to “probability of causation,” expressed as a percentage (0% – 100%) – the probability that the cancer was “at least as likely as not” due to the employee’s occupational exposure to ionizing radiation during employment at a covered facility during a covered time period (i.e., periods in which nuclear weapons-related production occurred). Also, facilities having “significant contamination” may have quantities of residual radioactive material that “could have caused or substantially contributed to the cancer of a covered employee.” A percentage value greater than or equal to 50% at the upper 99th percentile credibility limit constitutes a finding that it is “at least as likely as not” that the radiation dose caused the employee’s cancer. DOL will recommend compensation for those cases for which the probability of causation is 50% or greater, but not for those cases for which the probability of causation is less than 50%. DOL may determine that the cancer was caused not by occupational radiation exposure, but otherwise by environment, lifestyle, or heredity, based upon identified behaviors, characteristics, and activities (risk factors). DOL uses a computer program developed by NIOSH, known as NIOSH-IREP, to calculate probability of causation. The main determinants of “probability of causation” are cancer risk models (i.e., mathematical models based upon the dose-response relationship determined for a given cancer type, taking into account the cancer type, year of birth, year of cancer diagnosis, years of exposure, radiation type, and dose, but not taking into account any other occupational, environmental, or dietary carcinogens with the exception of smoking for lung cancer and ethnicity for skin cancer) and radiation dose levels (i.e., the amount of radiation dose to which an employee was exposed, based on estimation methods erring in favor of the claimant). DOL uses the dose reconstruction results developed by NIOSH, as well as the employee’s personal characteristics, employment, and medical information.
For more on probability of causation, see the Probability of Causation Rule at 42 C.F.R. Part 81.
Requirement of Notification to DOL of Attorney Representative
Claimants who would like to authorize another to represent them or to speak on their behalf are required to contact the DOL District Office where the claim was originally filed and notify DOL that they would like to appoint someone to represent them under EEOICPA. DOL will only recognize one individual representative at any one time, and therefore one authorization must be withdrawn before another individual representative may be appointed.
Additional Records to Supplement Claim
MEDICAL: Additional medical information related to the same cancer may be sent to NIOSH at any time and added to the file for consideration. Additional medical information related to a new/additional primary cancer, not originally reported, requires contacting DOL, because DOL had not had an opportunity to verify the new/additional cancer before originally sending the file to NIOSH for dose reconstruction.
EMPLOYMENT: Additional employment information must be sent to DOL, not NIOSH, because DOL had not had an opportunity to verify the new/additional employment information before originally sending the file to NIOSH for dose reconstruction.
AFTER DOL DECISION: Additional information about a case may be submitted to DOL after DOL has made a decision, and DOL will decide whether or not to reopen the case and return it to NIOSH for rework.