EEOICPA videos: Hugh Stephens, Esq. continues his description the Dose Reconstruction process of the EEOICPA (video 6)
Video #6 of our ongoing efforts to keep the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) both accessible and understandable sees Hugh continue his clarification of the Dose Reconstruction process.
Here he pays particular attention to the dosimeter badges that atomic weapons workers wore while employed at nuclear bomb making facilities, how the National Institute for Safety and Health (NIOSH) interprets the data from those badges, and how various factors related to this aspect of the Dose Reconstruction process can complicate an EEOICPA claim.
EEOICPA videos: Hugh Stephens, Esq. describes the Dose Reconstruction process of the EEOICPA (video 5)
Below, in the fifth of our series of videos explaining the sometimes tricky minutae of the EEOICPA claims process, Hugh outlines the Dose Reconstruction process used by the National Institute for Occupational Safety and Health (NIOSH) to determine the Probability of Causation (POC) in EEOICPA claims, or whether an atomic weapons worker’s illness(es) were at least as likely or not (50% or higher) caused by exposure to radiation and toxic chemicals while making atomic weapons for the Department of Energy (DOE).
Here, in the fourth video of our series dedicated to making the Energy Employees Occupational Illness Compensation Act (EEOICPA) more accessible, Hugh talks about the 22 specific cancers that may have been caused by a worker’s exposure to radiation and toxic substances during the atomic bomb making process and so therefore are covered under the Act. He also discusses the Act’s distinction between primary and secondary cancers and discusses why certain cancers may or may not be compensated under the Act.
Below you will find the third in our series of videos geared toward making the EEOICPA more understandable. In this video, Hugh describes the reasons why the Special Exposure Cohort (SEC) process exists within the framework of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), as well as how it works, both ideally and practically.
Below you will find the second in our series of videos geared toward making the EEOICPA more understandable. In this vdeo, Hugh explains Part B of the EEOICPA and how it applies to both Department of Energy (DOE) facilities and Atomic Weapons Employer (AWE) facilities, and how the main issue of concern is whether a worker’s cancer was caused by radiation. He then discusses how the different cancers that a worker might have as a result of their exposure to radiation at these sites are viewed under the EEOICPA.
This video can also be viewed on Youtube by clicking here.
In our continuing efforts to make the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) both more accessible and more understandable, we have created a series of short videos in which Hugh Stephens explains the Act itself, along with the various finer points that must be taken into consideration in order to be successfully compensated under the Act.
Above, in the first video of the series, Hugh introduces the EEOICPA, speaks about the types of facilities that are were involved in the atomic weapons manufacturing process and what kind of benefits workers at those facilities might be eligible for under the EEOICPA. Hugh explains the Act and what it might mean for former workers at facilities that produced atomic weapons for the Manhattan Project and Cold War efforts in unsafe conditions and are now suffering with various forms of cancer. Hugh also explains the process whereby such illnesses may be compensated under the EEOICPA. He then describes the different types of illness or condition that are addressed by the Act, specifically cancer, chronic beryllium diease and beryllium sensitivity, and silicosis. Finally, he explains how NIOSH (the National Institute of Occupational Safety and Health) goes about determining the probablity that a worker’s cancer or other condition was caused by their exposure to radiation and toxic chemicals at an atomic weapons manufacturing facility.
This video can also be viewed on Youtube by clicking here.
Claims Examiners in the Department of Energy Employee Occupational Illness Compensation (DEEOIC) within the Office of Workers Compensation (OWCP) of the Department of Labor (DOL) often attempt to discourage claimants from engaging EEOICPA Counsel (an EEOICPA Attorney or an EEOICPA Lawyer) to assist with an EEOICPA claim. I think it is important for Energy Workers and their Survivors (EEOICPA Claimants) to hear the other side of the story. So here is a list of reasons to hire EEOICPA Counsel:
(1) Depending on the claim, it is worth somewhere between $150,000 and $400,000 plus extraordinary medical benefits. This is a relatively significant level of compensation and should not be managed by an amateur.
(2) The Claims Examiner works for the Department of Labor and is not necessarily interested in seeing your claim paid. He or she is actually prevented from advocating for you. If you failed to claim the condition that is most likely to lead to the most compensation in the shortest amount of time, the claims examiner is not encouraged to advise you of that fact. While some claims examiners are extra helpful and some are generally less than helpful, it is important to understand that their job is to adjudicate claims in an efficient manner. They are not paid based on how many claims are paid but are evaluated on the number of claims adjudicated and the timeliness of the adjudication. While there are times when it is in the interest of the claims examiner to help you, there are times when the timely adjudication of the claim is more easily accomplished with a denial.
(3) The Resource Center is paid for by the government. The employees working at the resource center are there to assist with the filing of claims. They are not there to give advice about the best way to file a claim. The role of the Resource Center is not necessarily to make sure your claim is approved. While the individuals who work for the Resource Centers are good people and try to help, like the Claims Examiners, their role is not to make sure you obtain compensation but that your claim is properly filed. The interests of the representatives of the Resource Center and the Claims Examiners are distinct from those of the Workers and their Survivors and there are times when a claim suffers because of something the Resource Center employee or the Claims Examiner has done.
(4) The only goal of EEOICPA counsel is to make sure you receive all the benefits you are entitled to as quickly as possible.
(5) The cost to the Energy Worker or his or her survivors is limited by the EEOICPA statute to 2% of the compensation paid on an initial claim plus 10% of the compensation paid on a claim that has been recommended for denial. This cost of EEOICPA counsel is paid only after the compensation is received by the claimant(s). A Worker or Survivor is not obligated to pay anything unless the compensation is paid and the Worker or Survivor is not obligated to pay anything until the compensation is paid.
(6) EEOICPA Counsel is licensed to practice law by the state bar where that attorney or lawyer practices. Since the EEOICPA is a federal program an attorney or lawyer who is admitted to the bar of any state can be an Authorized Representative for any claimant in the program no matter where that claimant happens to live.
(7) Most lawyers or attorneys have professional liability insurance that protects their clients in the event a mistake is made.
(8) EEOICPA Counsel is capable of assessing the potential that there may be other claims that arise out of the injuries or conditions that have caused you to file an EEOICPA claim. For example, certain workers can file personal injury lawsuits associated with the injury or condition that has caused them to make a claim. Many personal injury lawsuits are pursued in state court and require an attorney licensed in the state to pursue the state claim, but EEOICPA Counsel will be sensitive to these issues. Please make sure to raise this issue with your attorney so that he or she can assess the viability of any claim in addition to your EEOICPA claim.
(9) EEOICPA Counsel will be sensitive: (1) to the possibility of a state workers compensation claim arising out of the same injury or condition that caused you to file your EEOICPA claim, (2) to the interaction of your EEOICPA claim and your personal injury or workers compensation claim, as well as (3) to the impact your claim might have on Social Security Disability (SSD) payments, on Medicare eligibility, and on whether benefits are taxable. A surviving spouse might be struggling with medical bills and estate issues and may even be considering how the compensation would be treated in a bankruptcy.
(10) Last but perhaps most importantly, we know and work with occupational physicians who have experience within the Program. These doctors know how to write the types of reports that are necessary to the acceptance of certain claims. These physicians can also prepare proper Impairment Evaluations using the American Medical Association Guides to Whole Person Impairment (5th Edition). While some of the doctors, performing Impairment Evaluations for Claims Examiners, under contract with the Program, known as Contract Medical Consultants (CMCs), perform proper Impairment Evaluations, we have found that some Impairment Evaluations are poorly prepared and unnecessarily under assess the level of impairment. This has required us in some cases to have a second Impairment Evaluation prepared. In those cases the claimant was required to pay for the second Impairment Evaluation because the Department of Labor only pays for one Impairment Evaluation every two years. Claims Examiners are not generally at liberty to discuss the qualifications of a Contract Medical Consultant (CMC) or provide any information concerning whether that doctor tends to provide favorable or unfavorable impairment ratings or causation opinions and are often unwilling even to identify who that physician will be.
While there are “Professional” advocates assisting EEOICPA claimants, there are benefits to having your claim filed and managed by EEOICPA Counsel. As an attorney with federal litigation experience, I can file a lawsuit in federal court challenging a Final Decision on an EEOICPA claim. So far, I have found that the Program is managed by reasonable people who work hard to compensate claims that should be compensated and have not found it necessary to challenge their work in federal court. But for the reasons described above, we think we more than earn our modest fees and we would welcome your call. Thank you for your time and good luck with your claim. Hugh Stephens (716) 208-3525.
We had a hearing recently that involved a hearing loss claim. The requirements for a hearing loss claim under the Energy Employees Occupational Illness Compensation Program (EEOICP) are interesting because of the way they reflect a process similar to the process used by NIOSH for Dose Reconstructions under Part B.
Under Part B, a Dose Reconstruction is performed using what are described as efficiency measures. The goal under the Part B Dose Reconstruction is to determine whether the worker’s cancer was at least as likely as not caused by exposure to radiation at a Department of Energy (DOE) or Atomic Weapons Employer (AWE) facility. Since a Dose Reconstruction is a time consuming task, the Health Physicist who prepares the Dose Reconstruction prepares an overestimate of dose for a claim that will not be successful or an underestimate of dose for a claim that will be successful. This allows the Health Physicist to perform a partial Dose Reconstruction based on what are described as claimant favorable assumptions for a claim that will not be successful or based on program favorable assumptions for a claim that will be successful. For example, in a Dose Reconstruction that will be compensated, the health physicist might perform a partial dose reconstruction on three skin cancers and consider only one facility. These three skin cancers and the one facility will be sufficient to exceed the 50% Probability of Causation (POC) without consideration of the other 6 skin cancers or the other two facilities where the worker worked. In a Dose Reconstruction that will not be compensated the Health Physicist will assume there were significant exposures even though the likelihood that those exposures were actually experienced is low. In spite of these overestimates addressing all of the potential exposures and all of the primary cancers, the health physicist concludes that even using these overestimates, the estimated dose does not exceed the amount required to reach the 50% POC and therefore the claim should not be compensated. These efficiency methods lead to the disturbing result that when a new cancer is diagnosed and a new Dose Reconstruction is prepared, the new Dose Reconstruction results in a lower POC even though a new cancer has been added. Claimants find this perplexing and even appalling given the context out of which the claim arises. If the result of the Dose Reconstruction appears to come close to 50% Probability of Causation (POC), a Best Estimate becomes necessary. These Dose Reconstructions are the longest and the most time consuming. Each exposure and each cancer must be addressed with a best estimate. If a dose reconstruction is a best estimate, it will likely be quite close to 50% POC. After a Best Estimate, a newly diagnosed cancer should increase the POC. Incidentally, Basal Cell Carcinoma (BCC) skin cancers give rise to much more POC than Squamous Cell Carcinomas (SCC).
Sensorineural hearing loss is covered under Part E when a worker is exposed to certain solvents and can show that he or she worked in a job that lead to such exposure continuously for 10 years prior to 1990. The procedure manual suggests that if there is less than the full 10 years, the claim must be referred to a National Office toxicologist.
We believe this is an efficiency measure. Claims Examiners are not qualified to assess solvent exposure and its link to sensorineural hearing loss. Without an expert opinion, the decision is not based on competent evidence and can be accurately described as arbitrary and capricious.
Please respond with your thoughts on our view of this issue.
Hugh Stephens (716) two zero eight – 3525.
We have been thinking about posting what we consider to be some best practices for EEOICPA claim presentation and development. Please comment with questions, suggestions or if you have thoughts about other best practices.
Under Part B one of the first steps is the filing of the claim which includes information about the relevant period of employment. We tend to be expansive in our view of what should be included in the relevant period of employment. If you include 1950 to 1955 as your best recollection of your parent’s period of employment, employment that you did not know about in 1945 may be inadvertently excluded from the social security records search. So a period of 1944 through 1961 might lead to more information from social security. The Department of Labor (DOL) assists with the request for records to Social Security. This is useful because if you take this record collection task on yourself the turn around may be much slower. The Claims Examiner (CE) has prepared many requests for Social Security earnings statements and will obtain that record relatively quickly. If the CE uses a restrictive potential employment period, the effort involved in making an additional request can be significant and unnecessary.
So we generally tend to include the dates around the period of known employment to attempt to capture unknown employment especially where we represent survivors who are not completely sure of where their relative worked and when. The employment usually occurred long ago, so we should try not to assume we know exactly when it commences and when it was completed unless we have pretty specific information. From time to time our claimants learn late in the claims process that the worker involved had qualifying employment outside the time period addressed in the initial social security earnings statement.
If you find yourself in this circumstance or have questions about obtaining a social security earnings statement, give us a call at (716) 852-7590.
Under Part E we often find that the trouble begins after a doctor has been asked to write a letter linking occupational exposure to a toxic or otherwise hazardous substance to a current illness or condition such as asbestosis or COPD. Many claimants, doctors, and advocates know the standard under Part E which requires a showing that the occupational exposure be at least as likely as not (50% or greater likelihood), a significant factor in, the aggravation of, contribution to, or causation of, the illness or condition. But what many claimants, doctors and advocates do not focus on is the requirement (1) that the letter report contain detailed objective findings, based, if possible, in part on clinical testing, imaging and other tests and (2) a detailed rationale for the finding that describes the objective testing and other relevant information which supports the conclusion that there is a causal connection between the occupational exposure and the illness or condition. The rationale should also be supported by citations to relevant peer reviewed literature. We encourage claimants, advocates and doctors to treat the government like any other business or insurance company that seeks to require detailed support before paying claims. While it sometimes seems that the Department of Labor is never satisfied, the payments made under the program are significant and the procedures are designed to prevent the payment of claims without sufficient supporting evidence. The work of the Claims Examiners is reviewed by the Hearing Representatives of the Final Adjudication Branch. The work of the Hearing Representatives is also closely reviewed and the Claims Examiners and Hearing Representatives want their decisions to withstand this scrutiny. And yes this sometimes verges into the ridiculous.
This is especially important because once a doctor has written what he or she believes to be a helpful note, a second more complex note can be difficult to obtain. Doctors are busy and sometimes ambivalent about lengthy communications with a federal agency about a subject, his or her patient’s occupational exposure to toxic or hazardous substances years and just as often decades ago. A good letter from a doctor is much more likely the product of an ordering of the necessary operations. We generally try to examine the Site Exposure Matrix to understand if there is a causal connection established between the illness or condition and a hazardous or toxic substance found at the facility where the worker worked. If there is an established connection to the illness or condition and the hazardous or toxic substance which is recognized in the Site Exposure Matrix, this information should be presented to the doctor before he or she writes the letter in support of your claim. This helps give the doctor some comfort that he or she can rely not simply on your account of your occupational exposure but can also rely on the Department of Labor’s acknowledgement of the potential connection.
We have been running into some interesting language in the opinions of Contract Medical Consultants (CMCs, formerly known as District Medical Consultants (DMCs)) as we manage PART E Energy Employees Occupational Illness Compensation Program Act (EEOICPA) claims. As many of you know these CMCs are the experts hired by the Department of Labor (DOL) to address issues of a scientific nature whether medical, occupational or toxicological. It appears that the standard against which every claim is being measured is whether there exists a “population based occupational, epidemiological” study providing a causal connection between the hazardous or toxic substance at issue and the claimed condition or illness. This has given rise to certain less than rational conclusions as the CMCs attempt to fit what we believe to be the DOL dictated requirement into certain of the less straightforward claims. For example, one of our claimants was exposed to albi-duraclad fibers which irritated his lungs thereby contributing to an empyema which, in turn, required the removal of a large portion of his lung. This factual situation caused the CMC to go out in search of a population based, occupational, epidemiological study causally linking albi-duraclad fibers, also referred to at times as rock wool fibers empyema. But the situation is not that simple or perhaps there would be little need for an expert. In this case, the claimant’s treating physician has provided a well rationalized letter explaining that the albi-duraclad fibers irritated the claimant’s lungs and made them susceptible to infection. The infection, in turn, gave rise to the empyema. We believe that a requirement that there be a population based, occupational, epidemiological study showing that albi-duraclad or rock wool causes empyema is a requirement over and above that which is mandated by the statute and the regulations and is ultra vires, or beyond the power of the Department of Labor to impose. The proper standard addresses whether the hazardous or toxic substance was a significant factor in the aggravation, contribution to or causation of the occupational illness. The imposition of this extraordinarily stringent and inflexible condition upon each claim under Part E of EEOICPA is beyond the power of the Department of Labor to impose and should be set aside as a requirement that exceeds the requirements established in the legislation. If congress wishes to restrict compensation under the EEOICPA, it can do so, but the Department of Labor is not permitted to do so in its implementation of the statute or in its regulations. At the same time, the Department of Labor has much more room to implement the statute through the use of regulations which are subject to public comment and other due process protections. But to impose this type of restriction in what we believe is an unpublished, or at least a less than widely circulated, document, that appears to be distributed to CMCs and not to claimants, is an unlawful incursion into the sovereign territory rightfully occupied solely by the legislature.