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.
DOE or DOD, Department of Energy (DOE) Employees and Department of Defense (DOD) Civilian Employees and Compensation under the EEOICPA Program Administered by the Department of Labor
A number of claimants have contacted our office recently concerning whether employment at an Energy Employees Occupational Illness Compensation Program Act (EEOICPA) designated facility gives rise to compensation under the EEOICPA program. The workers involved were employed at the designated facility and that employment was during a Special Exposure Cohort (SEC) time period. They also had one of the 22 designated cancers which normally would have qualified them for compensation as a member of the Special Exposure Cohort (SEC). As many of you already know, the SEC is a group of employees for whom the National Institute of Safety and Health (NIOSH) has determined that its health physicists are unable to prepare a sufficiently accurate radiation dose estimate to support an accurate Dose Reconstruction Report. So such claims would typically be compensated as long as the claimant can show that the worker worked at least 250 days during the SEC time period.
But for reasons clear perhaps only to those who drafted the EEOICPA legislation, Department of Defense civilian employees are not generally qualified for compensation under the Energy Employees Occupational Illness Compensation Program (EEOICP). We do not believe Civilian DOD employees are entitled to compensation provided by the Department of Veteran’s Affairs. These workers are, of course, qualified for Federal Workers’ Compensation but entitlement to that type of compensation is difficult to establish. Establishing that cancer was caused or contributed to by radiation presents a serious evidentiary challenge. Some workers are not even aware of the existence of this type of compensation. Those that become aware of Federal Workers’ Compensation often come into this knowledge after the applicable statute of limitations has expired.
Many of these workers were employed at a time when the military was engaged in atmospheric nuclear weapons testing. Those workers often qualify for compensation under the Radiation Exposure Compensation Act (RECA). Those workers and their survivors often face a difficult decision because if a claimant takes compensation under RECA, usually $75,000 for an on-site participant, that claimant waives any potential payment under the EEOICPA. Where claimants who are survivors, including children and grandchildren, do not know exactly where the worker worked, or for whom, and for how long, it is difficult to decide whether to take the RECA compensation. We have generally recommended that these claimants file an EEOICPA claim to be sure that there is no qualifying employment and that they are not entitled to the compensation available under EEOICPA.
We generally give similar advice to claimants who may qualify for benefits provided by the Department of Veteran’s Affairs. Our general view is that filing a claim is often the best way to determine whether benefits are available.
Please comment below if you have experience with these issues.
Recently, we have been gathering together all primary source documents concerning the EEOICPA and creating pdf files of them, so that they may be readily accessible and easily searchable. These documents, current as of August 2013, can be found by clicking HERE.
EEOICPA PART B
One of the many areas of confusion under the Energy Employees Occupational Illness Compensation Act (EEOICPA) is the relationship between Part B and Part E. Under Part B a worker who was exposed to radiation can receive compensation of $150,000 (1) if his or her cancer is one of 22 cancers caused by radiation, under the program and (2) that cancer can be shown to be at least as likely as not (50% or greater probability of causation) to have been caused by radiation exposure at a Department of Energy (DOE) or Atomic Weapons Employer (AWE). The probability of causation (POC) is determined by the Department of Labor (DOL) from data contained in a Dose Reconstruction performed by the National Institute of Occupational Safety and Health (NIOSH). The Dose Reconstruction analyzes qualifying employment such as employment for a DOE or AWE employer or a contractor or subcontractor of a DOE or AWE employer and radiation exposures experienced by that specific worker. The worker can be compensated on his or her own claim or his or her spouse, children, grandchildren or parents can file the claim if the worker is deceased (generally in that order). There is no time limit on these claims other than the requirement that a spouse, child, grandchild or parent be available to file a claim. The difficulty of obtaining medical evidence of cancer can represent a practical time limit where medical records are not available because they cannot be located or have been destroyed in the time between the onset of the cancer and the filing of the claim – a period of time that sometimes exceeds 30 years.
EEOICPA PART E
If a claim is established under Part B the claimant or claimants will receive a total of $150,000 under Part B. If a claim is established under Part B and the employer was a Department of Energy (DOE) employer, certain claimants can receive compensation under Part E. Part E is designed to substitute or supplement state workers’ compensation benefits. So if the worker is the claimant and the claim is established under Part B, and the worker was employed by a DOE employer, including a contractor or subcontractor of the DOE employer, then the worker is entitled to benefits under Part E. Part E benefits include valuable medical coverage for the occupational illness – in this example cancer. Part E benefits for a DOE worker also include compensation for impairment. If a worker is 100% impaired by the occupational illness he or she would be entitled to $250,000 of compensation. If that same worker were 50% impaired, he or she would be entitled to $125,000. The impairment rating is performed by a qualified physician.
PART E – SURVIVING SPOUSE
If the worker is deceased, the surviving spouse is entitled to receive benefits under Part B ($150,000) and under Part E (between $100,000 and $150,000 based upon the worker’s age at death) – if death was caused by the occupational illness. The analysis when death is a result of an illness or accident unrelated to the worker’s occupation will be the subject of a future post.
PART B – CHILDREN ELIGIBLE
PART E - CHILDREN – INELIGIBLE EXCEPT CHILDREN WHO ARE DEPENDENT AT THE TIME OF THE WORKER’S DEATH
Generally the surviving adult children of a worker whose spouse is also deceased are entitled to benefits under Part B ($150,000) but are not entitled to benefits under Part E (between $100,000 and $150,000 based on the worker’s age at death). There is an exception to this rule for dependent children. Dependent children under Part E include children under 18 at the time of the worker’s death as well as children who are under 23 and are still in school (i.e. have been full time students continuously since graduating high school). The final group of qualifying dependent children under Part E are those who are incapable of self support. This is one of the more controversial areas of Part E because some adult children who are not capable of self support cannot produce the type of medical records or other evidence on which to base the finding.
PART E WHERE A WORKER IS NOT ENTITLED TO PART B COMPENSATION
Where the worker is not entitled to compensation under Part B, that worker can still qualify for benefits under Part E. Part E provides compensation only for those workers who worked at a Department of Energy (DOE) facility. Those workers who were employed only by an Atomic Weapons Employer (AWE) are not entitled to Part E compensation. But where the worker was exposed to a hazardous substance other than ionizing radiation at a Department of Energy (DOE) facility, and that exposure caused an illness or contributed to or aggravated a preexisting illness, Part E compensation is available. The Site Exposure Matrix (SEM) is a website that provides information relevant to which hazardous substances were present at DOE facilities and also provides information relevant to which illnesses are caused by which hazardous substances. The process involves entering the name of the DOE facility or facilities at which the worker was employed which will produce a list of the hazardous substances present at the facility. The next step involves entering the worker’s illness or illnesses which produces a list or lists of hazardous substances that have been shown to cause that illness. The current list has been reported to list only those substances shown to cause illnesses but the requirements of the program are more expansive including both illnesses caused by occupational exposure and illnesses contributed to or aggravated by occupational exposure. Once the two lists are compared the substances that appear on both lists should be examined for the potential that a relationship between a hazardous substance and the illness can be established. Establishing the relationship involves understanding and articulating how the exposure occurred such that the necessary connection can be further investigated. The final step in the process is obtaining a well reasoned and properly supported opinion of a qualified physician that supports the necessary connection between the hazardous substance and the occupational illness.
If you have questions or comments about this post or would like to learn more about how an EEOICPA lawyer or attorney can assist you with the claim filing and adjudication process call me at (716) 852-7590 or email me at email@example.com.