Do you need an attorney for an Energy Employees Occupational Illness Compensation Program Act (EEOICPA) claim?

February 11, 2015 by · Leave a Comment 

Perhaps you or someone you love has been diagnosed with cancer or another illness after working at a Department of Energy (DOE) or an Atomic Weapons Employer (AWE) facility. Did someone work in the manufacture or testing of nuclear weapons and become ill thereafter? Perhaps you have just learned about the Energy Employees Occupational Illness Compensation Program (EEOICP) and you are trying to determine whether you have a claim. Or you recently learned of the Radiation Exposure Compensation Act (RECA) and you are trying to understand the difference between RECA and EEOICPA.

Perhaps your claim under EEOICPA or RECA has been denied or your EEOICPA claim has been accepted and you need to understand the impairment rating or the wage loss process. Or your EEOICPA claim has been accepted and you want to learn about health care coverage or reimbursement of expenses or travel and the available health care and home care benefits.

Call or email us at the numbers and addresses below as we can assist you with these matters.

As lawyers we can also address the other issues that accompany these claims. We can make sure that you become aware of your rights under State and Federal Workers Compensation laws and Social Security Disability (SSD) and Supplemental Security Insurance (SSI) programs. State Workers Compensation statutes have deadlines after which a claim cannot be timely filed. Similarly, Social Security Disability (SSD) rights are extinguished after periods of unemployment. EEOICPA compensation has special status and is exempt from certain types of taxation, should be segregated from other funds and should not be considered “resources” for purposes of certain housing assistance and other government programs. Medical bills and insurance can be overwhelming, especially for those already struggling with an illness or that of a spouse or parent. While there are those who would counsel that a lawyer is not necessary in the EEOICPA or RECA claim filing process, a lawyer can often be helpful and it is difficult to know in advance whether a lawyer would have helped with your claim or in some other capacity. We believe these claims represent a significant financial event in the life of a claimant and should be handled by a licensed professional. Sometimes mistakes in the claim process can be fixed after the fact and sometimes they cannot. For example, a claimant who qualifies for both RECA and EEOICPA benefits loses the right to claim the more advantageous EEOICPA benefits if he or she accepts RECA benefits. These are sad situations that cannot be repaired after the fact. Some claimants spend the compensation on medical bills, old and new, until they have nothing left when alternatives could have been explored. Certain insurance policies have limits, deductibles or “holes” that can be managed where an EEOICPA claim has been accepted. Finally, the Dose Reconstruction Process is almost incomprehensible for even the more educated among us. We have studied that process and have successfully overturned poorly prepared Dose Reconstructions.

While there are those who would suggest that lawyers are expensive and charge more than so-called “professional” advocates or representatives, that is simply not true. The fees charged by lawyers are limited by the EEOICPA and RECA statutes themselves. Lawyers are bound by the same limits on fees that bind unlicensed advocates and representatives. Lawyers are also held to a higher ethical standard imposed by the state bar and licensing authority and generally good ones carry professional liability insurance for the protection of their clients.

While there are unlicensed advocates and representatives who practice in the EEOIC program, under the Federal Employees Compensation Act (FECA) which provides compensation to federal workers and which is also administered together with the Longshore and Harbor Workers Compensation Act (LHWCA) and the Black Lung Compensation Act (BLCA) by the Department of Labor’s (DOL) Office of Workers Compensation Programs (OWCP), RECA claims administered by the U.S. department of Justice (DOJ) cannot be handled by unlicensed advocates or representatives.

Whether you have just learned about these programs or you have just finished your fourth impairment rating, give us a call or send us an email. We will answer your questions and put you on our mailing list to keep you up to date with developments in the program. We can be reached at (800) 548-4494 or (716) 852-7590. You can also reach Hugh Stephens on his cell phone at (716) 208-3525. Call anytime. We are managing claims 24 hours a day, 7 days a week, 365 days a year. You can also send us an email at hugh.stephens@me.com or hugh@eeoicpa.us. We are happy to help and hope to hear from you soon.

Former Worker Medical Screening Programs Under the United States Department of Energy

February 6, 2015 by · Leave a Comment 

U.S. Department of Energy Former Worker Medical Screening Program (FWP)

Section 3162 of the Defense Authorization Act for Fiscal Year 1993 requires the U.S. Department of Energy (DOE) to establish and carry out a program in order to identify and evaluate DOE employees subject to significant health risks as a result of their exposure to hazardous or radioactive substances while employed at a DOE facility. 50 U.S.C. § 2733 (2013).

The Act also requires that the DOE provide a process to:

  • Identify hazardous and/or radioactive substances that DOE employees may have been exposed to during their employment at a DOE site;
  • Identify those DOE employees who may have been exposed to such hazardous and/or radioactive substances;
  • Determine the number, scope, and frequency of the medical evaluations that are to be provided to exposed employees;
  • Make available the evaluations and tests to the exposed employee;
  • Maintain the privacy of the exposed employees; and
  • Ensure that employee participation is voluntary.

Id. at § 2733(b)(1). In addition to providing evaluations, tests, and results to the exposed employees, the Act requires the DOE to collect and assemble the information to assist in preventing the exposure and illness in current and future DOE employees. Id. at § 2733(b)(5).

The purpose of FWP is to provide voluntary medical screenings to assist DOE employees in the early detection of illnesses or conditions potentially related to their employment at a DOE facility. Not only does this provide the DOE employee with information on the status of their health, but also the DOE gains valuable information about the trends on the health effects of exposure to hazardous or radioactive substances and how to reduce those effects for future employees.

In order to remain objective, the FWP uses independent occupational health experts to administer the medical screening programs. U.S. Department of Energy, Office of Environment, Health, Safety & Security, “Former Worker Medical Screening Program,” available at http://energy.gov/ehss/services/worker-health-and-safety/former-worker-medical-screening-program. The FWP is administered through both regional screening projects, with clinics in communities near DOE sites, and nationwide screening projects, with a vast network of clinics nationwide. Id.

Nationwide Screening Projects

The National Supplemental Screening Program (NSSP)

The National Supplemental Screening Program (NSSP) provides free medical screenings to eligible Department of Energy (DOE) employees. It is operated by Oak Ridge Associated Universities (ORAU) and its partners, including National Jewish Health (NJH), Comprehensive Health Services, Inc. (CHS), Axion Health, and the University of Colorado Denver. National Supplemental Screening Program (NSSP), available at http://www.orau.org/nssp/default.htm.

Medical Screening

The NSSP provides free medical screenings to detect health issues resulting from exposure to hazardous substances and radiation while employed at a DOE facility. Eligible employees are entitled to a customized medical screening based on their work history and work site risks. In addition, special examinations are available for employees who have been exposed to beryllium (i.e. the BeLPT test), asbestos, radioactive substances, or lasers. In addition to the initial medical screening, rescreening is authorized by the DOE every three years. Initially, this rescreening was only allowed for beryllium sensitivity testing but now includes all medical testing. National Supplemental Screening Program (NSSP), “Screening Exam,” available at http://www.orau.org/nssp/nssp-screening-exam.html. Like an initial screening, rescreening is entirely voluntarily and eligible employees may elect to repeat all, some, or none of the tests available.

Eligible Workers

Former DOE employees, contractors, or subcontractors who may have been exposed to radiation and/or worked with hazardous substances are eligible for free medical screening so long as they worked at one of the covered facilities: Argonne National Laboratory, Fermi National Laboratory, or Princeton Plasma Physics Laboratory. National Supplemental Screening Program (NSSP), “Am I Eligible?” available at http://www.orau.org/nssp/am-i-eligible.html.

Former production workers are eligible if they worked at Hanford, Kansas City Plant, Pinellas Plant, Rocky Flats, or Savannah River Site. Id. Because the medical providers included under these Former Worker Programs are limited, a worker who does not meet the criteria of one of the regional FWP, as discussed below, may be referred to the NSSP if he or she no longer lives in the vicinity of a regional FWP. Id.

Building Trades National Medical Screening Program (BTNMSP)

The Building Trades National Medical Screening Program (BTNMSP) is a national screening program conducted by the CPWR – Center for Construction Research and Training in conjunction with the University of Cincinnati Medical Center, Duke University Medical Center, and Zenith American Solutions, Inc.

Medical Screening

Like the other screening programs, the BTNMSP provides free medical screening to eligible DOE employees. First, employees will undergo a comprehensive work history interview to help determine whether they have been exposed to hazardous and/or radioactive substances. Building Trades National Medical Screening Program, “Program Benefits,” available at https://www.btmed.org/benefits.cfm. Next, eligible employees are given a free medical screening examination. Id. The screening may help with the early detection of health problems and will also be used for informational purposes to better protect the health of current and former DOE employees. Id.

Eligible Workers

 To be eligible under the BTNMSP, the employee must have performed construction work, either as a contractor or subcontractor, at any time in the past for the Atomic Energy Commission (AEC) or a DOE site associated with the research or production of nuclear weapons. Building Trades National Medical Screening Program, “Who Is Eligible?” available at https://www.btmed.org/eligible.cfm. In addition, the employee must have potentially been exposed to a health hazard, such as radiation, beryllium, asbestos, silica, mercury, cadmium, nickel, lead, uranium, plutonium, and etcetera or think that he or she has developed serious health problems as a result of his or her DOE employment. Id.

Covered DOE Sites

To be eligible under the BTNMSP, the employee must have performed construction work at one of the following sites:

  • Hanford Nuclear Reservation
  • Argonne National Laboratories (West)
  • Idaho National Laboratory
  • Amchitka Island Nuclear Explosion Site
  • Rocky Flats Plant
  • Waste Isolation Pilot Plant
  • Kansas City Plant
  • Mallinckrodt Chemical Company
  • Weldon Spring Site
  • Paducah Gaseous Diffusion Plant
  • Piqua Organic Moderated Reactor
  • Mount Plant
  • GE Evendale
  • Fernald Feed Materials Center
  • Oak Ridge Reservation (K-25, X-10, Y-12)
  • Savannah River Site
  • Brush Luckey
  • Battelle Laboratories (King Avenue and West Jefferson)
  • Ashtabula (Reactive Metals Extrusion Plant)
  • Shippingport Atomic Power Plant
  • Brookhaven National Laboratory
  • National Energy Technology Plant
  • Portsmouth Gaseous Diffusion Plant
  • Huntington Pilot Plant
  • Pinellas Plant

Regional Screening Projects

Worker Health Protection Program (WHPP)

The Worker Health Protection Program (WHPP) provides free medical screening for former and some current employees at thirteen participating Department of Energy (DOE) facilities. The WHPP seeks to detect work-related illnesses at an early stage and assist employees in determining whether a current health condition is the result of their exposure to hazardous materials while employed at a DOE facility. The program is funded by a contract with the DOE and is led by the Queens College of the City of New York, in collaboration with the United Steel Workers (USW), Atomic Trades and Labor Council (ATLC), and the former Fernald Atomic Trades and Labor Council (FATLC). The Worker Health Protection Program, available at http://www.worker-health.org/index.html.

Medical Screening

The WHPP provides medical screening examinations for chronic lung diseases, kidney disease, liver disease, and hearing loss. The tests that accompany the physical examination include:

  • Spirometry, used to diagnose chronic obstructive pulmonary disease (COPD) and other chronic lung conditions;
  • Chest x-ray;
  • Audiometry, used to diagnose hearing loss;
  • Urinalysis, used to diagnose kidney disease;
  • Blood test;
  • Beryllium sensitivity test (BeLPT) for eligible employees who were possibly exposed to beryllium as a result of their employment at a DOE facility;
  • Low-dose CT scan, used to diagnose lung cancer, for eligible former Nevada Test Site, Mound Plant, and Fernald Plant employees as well as current and former Oak Ridge National Laboratory, Y-12 Plant, and Gaseous Diffusion Plant employees; and
  • Medical and occupational exposure questionnaires.

While only available to eligible workers, a beryllium lymphocyte proliferation test (BeLPT) is used to determine whether a former employee has developed an allergic reaction or sensitivity to beryllium or is at risk for developing Chronic Beryllium Disease (CBD). The Worker Health Protection Program, “Beryllium Testing,” available at http://www.worker-health.org/berylliumtesting.html. In the event that an employee receives abnormal results from his or her BeLPT test, he or she is eligible to participate in follow-up medical tests, which are used to diagnose CBD. CBD can be compensated under Parts B and/or E of the Energy Employee Occupational Illness Compensation Program Act (EEOICPA).

Eligible Workers

To obtain free medical screening under the WHPP, an employee must first be deemed eligible. If a former employee was employed at one of the participating DOE sites, listed below, for thirty days or more, he or she is eligible for free medical screening. In the event that the former employee was employed at Nevada Test Site, Lawrence Livermore National Laboratory, Lawrence Berkeley National Laboratory, or Sandia National Laboratories, the period of employment must be one year or more. While the program only covers former employees for a majority of the DOE facilities, current employees at the Paducah or Portsmouth Gaseous Diffusion Plants are also eligible for free screening. The Worker Health Protection Program, “What We Do,” available at http://www.worker-health.org/whatwedo.html.

Covered DOE Sites

The participating DOE facilities under the WHPP include:

  • Sandia/CA National Lab in Livermore, CA;
  • Lawrence Livermore National Lab (LLNL) in Livermore, CA;
  • Lawrence Berkeley National Lab (LBNL) in Berkeley, CA;
  • Nevada Test Site in Las Vegas, NV;
  • Idaho National Laboratory (INL) in Idaho Falls, ID;
  • Mound Plant in Miamisburg, OH;
  • Fernald Plant in Harrison, OH;
  • Paducah Gaseous Diffusion Plant in Paducah, KY;
  • K-25 Complex in Oak Ridge, TN;
  • Y-12 Plant/Oak Ridge National Laboratory (ORNL) in Oak Ridge, TN; and
  • Portsmouth Gaseous Diffusion Plant in Piketon, OH.

The WHPP contracts with medical facilities to provide free medical screenings near all of the covered DOE facilities. A list of participating medical facilities is provided at http://www.worker-health.org/whatwedo.html.

Pantex Former Worker Program

Former employees, who are at risk for illness due to their exposure to hazardous and/or radioactive substances while employed at Pantex Plant in Amarillo, TX, are entitled to a free medical screening. The program is administered by Drexel University School of Public Health and the University of Texas Health Science Center at Tyler. U.S. Department of Energy, Office of Environment, Health, Safety & Security, “Pantex, Former Production Workers Screening Projects,” available at http://www.energy.gov/ehss/pantex-former-production-workers-screening-projects.

Medical Exam Program for Former Workers from Los Alamos and Sandia National Laboratories

Medical Screening

The Medical Exam Program for Former Workers from Los Alamos (LANL) and Sandia National Laboratories (SNL) was established to determine whether the health of former employees from either DOE facility was affected due to their employment and exposure to hazardous substances.

The Medical Exam Program for former LANL employees focuses on exposure to asbestos, beryllium, lead, noise, radiation, and solvents. John Hopkins Bloomberg School of Public Health, “Medical Exam Program,” available at http://www.jhsph.edu/research/affiliated-programs/medical-exam-program-for-former-workers-at-los-alamos-national-laboratory/. The Medical Exam Program for SNL employees focuses on the same substances as well as silica.

The initial medical screening includes an exam and selected tests, depending on which substances the employee was exposed to. Employees are eligible for a rescreening every three years if they had past exposure to asbestos and/or beryllium. Id.

Eligible Workers

To be eligible for a free medical screening exam, former LANL employees must have worked at the LANL site anytime after 1943, been significantly exposed to one of the substances listed above, and been employed by the University of California, Zia, Pan Am World Services, Johnson Controls International, Johnson Controls of Northern New Mexico, or another subcontractor. Id.

To be eligible for a free medical screening exam, former SNL employees must have worked at the SNL site anytime after 1949, been significantly exposed to one of the substances listed above, and been employed by Z-Division Sandia Laboratories, Sandia Corporation (Western Electric), Sandia Corporation (Lockheed Martin), or Sandia National Laboratories (SNL).

Former Worker Medical Screening Program for Line 1/Division B Iowa Army Ammunition Plant and Ames Laboratory

The Former Worker Medical Screening Program provides free medical screenings to all employees of Line 1/Division B of the Iowa Army Ammunition Plant from 1949 to 1975 and Ames Laboratory in Ames, IA. The program is administered by the University of Iowa College of Public Health. The University of Iowa College of Public Health, “Former Worker Medical Screening Program (FWP),” available at http://cph.uiowa.edu/IowaFWP/line1/screening.html.

The Former Worker Medical Screening Program provides free medical screenings to eligible employees, which include a chest x-ray, a Pulmonary Function Test (PFT), a Beryllium Lymphocyte Proliferation Test (BeLPT), and general laboratory tests. Id. For those living in Iowa, medical screenings are offered in Burlington, Mt. Pleasant, Iowa City, or Ames. Id. For those not residing in Iowa, the Former Medical Screening Program refers employees to the NSSP. Id.

DISCLAIMER: The material presented in this blog post is meant for informational purposes only. It is not intended as professional advice and should not be construed as such. Transmission of this information is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with Stephens & Stephens, LLP or any member thereof. If specific legal assistance of advice is needed, the services of a competent legal professional should be sought. – See more at: http://www.stephensstephens.com/category/our-eeoicpa-blog/#sthash.xK48Y8dA.dpuf

Medical Benefits Provided By the United States under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA)

February 3, 2015 by · Leave a Comment 

Overview

                 Under the Energy Employees’ Occupational Illness Compensation Program Act (EEOICPA), employees of Department of Energy facilities, atomic weapons employers, or beryllium vendors who develop one of the covered cancers or illnesses may be entitled to up to $400,000 in compensation, as well as medical benefits, from the U.S. Department of Labor. Under the EEOICPA, medical benefits include “services, appliances, and supplies prescribed or recommended by a qualified physician” which are likely to “cure, give relief to, or reduce the degree or the period of the accepted illness.” 42 U.S.C. § 7384t(a) (2000). These services often include home health aide services and in-home skilled nursing care as well as the rental or purchase of Durable Medical Equipment (DME). DME often includes hospital beds, wheelchairs, and other equipment used in the home to aid in better quality of living.

Once a claim for an “accepted” illness is filed and approved with the U.S. Department of Labor under either Part B or Part E of the EEOICPA, a claimant is entitled to reimbursement of his or her medical expenses directly relating to that accepted illness. Before a claimant can receive these medical benefits, including services such as home health care, the expenses must first be authorized by the Division of Energy Employees Occupation Illness Compensation (DEEOIC). Prior to obtaining such services, the claimant’s DEEOIC District Office Claims Examiner must pre-approve the services. Division of Energy Employees Occupational Illness Compensation, U.S. Department of Labor, “Home Health Care Services and the EEOICPA,” available at http:///www.dol.gov/owcp/energy. The claimant must present medical evidence from a treating physician confirming the claimant’s need for care. Id. The treating physician must supply a “Plan of Care,” which is a letter of medical necessity or a written explanation of the care required by the claimant. Id. The “Plan of Care” must describe the level of care required (i.e. skilled nursing care or home health aide care), the frequency of care required (i.e. the number of hours per day), and the time period for which the claimant will require home health care. Id. Once a claimant’s home health care is approved by the DEEOIC, the claimant may choose any licensed medical provider to provide medical assistance. While some medical providers are enrolled in the Energy Employees Occupational Illness Compensation Program (EEOICP) and therefore are paid for their services directly by the DEEOIC, if a claimant chooses a provider that is not enrolled, the claimant can seek reimbursement for his or her expenses by filing a Form OWCP-915 with the U.S. Department of Labor. To determine if a provider is enrolled in the EEOICP, a medical provider database is provided at http://owcp.dol.acs-inc.com.

 What Benefits are Covered?

                Once a claimant is approved for medical benefits under the EEOICPA, the following benefits are covered:

  • Prescription drugs
  • Doctor co-pays, if applicable (co-pays are no longer required once medical care is approved)
  • Medical travel
  • Oxygen supplies
  • Home health care
  • Durable medical equipment (DME)
  • Housing modifications
  • Vehicle purchase
  • Hospice care
  • Organ and stem cell transplant
  • Nursing home
  • Assisted living
  • Extended care facilities
  • Medical alert systems
  • Health facility and spa membership
  • Chiropractic services
  • Illness screening service
  • Home exercise equipment
  • Psychiatric treatment

Nuclear Workers Institute of America, EEOICPA Health Benefits, available at http://nuclearworkers.org/eeoicpa-health-benefits/.

To be reimbursable under the EEOICPA, medical assistance must be furnished by medical officers, hospitals, and physicians that are designated or approved under the Program. 42 U.S.C. § 7384t(b). In addition to the above medical benefits, “personal care” services, whether or not those include medical services, are reimbursable under the EEOICPA as long as they are deemed medically necessary and are provided by home health aides, licensed practical nurses, or similarly trained individuals. 20 C.F.R. § 30.403 (2012). Personal care services include assistance with housekeeping, meal preparation, grooming, bathing, and etcetera. Many family members seek to assist with the personal care of the claimant. The family member must be trained and certified in order to make services reimbursable under the EEOICPA. Certain health care providers can assist with the training necessary for family members to obtain certifications.

 

Issues that Claimants Face

One of the biggest issues that claimants face in obtaining reimbursement for medical services under the EEOICPA is the requirement that the services be reauthorized every six months. Initial approval for medical services requires that the physician responsible for treating a claimant for an accepted illness submit a “Plan of Care.” Division of Energy Employees Occupational Illness Compensation, U.S. Department of Labor, “Home Health Care Services and the EEOICPA,” available at http:///www.dol.gov/owcp/energy. The “Plan of Care” includes a letter of medical necessity or an explanation of the care needed to treat the accepted illness. Id. In addition, a claimant must have received a recent physical examination, defined as “a face-to-face encounter between the requesting physician and the DEEOIC approved patient, within 60 days prior to the submission of a home health care authorization request.” Id. Following the physical examination, the physician must submit a detailed report that documents the results of the examination. Id. To obtain reauthorization every six months, the claimant must submit updated medical information and a new face-to-face evaluation within sixty days of reauthorization. Id. Failure to do so results in the denial of the reauthorization and the ineligibility of the claimant to obtain reimbursement for his or her medical expenses, including the rental or purchase price of DME. This places a burden on claimants to follow a strict timeline and attend frequent doctor’s appointments in order to retain medical benefits under the EEOICPA. It is not unusual for a primary physician to become impatient with these requirements. It is sometimes useful to have a physician who has experience with the EEOICP and is willing to write the necessary reports every six months.

A second issue that arises is the personal care of a claimant by a family member. As previously stated, personal care services are reimbursable so long as provided by a home health aide, licensed practical nurse, or a similarly trained individual. 20 C.F.R. § 30.403. Typically, family members are not trained in satisfaction of the regulations and therefore, cannot be paid for providing care. While the regulations still allow a trained individual to provide personal care, often it is preferable for a claimant to be cared for by a family member, typically a spouse or a child. Because a family member that has not been trained cannot be paid for their services, that often raises additional financial issues. Some home health care providers have addressed this issue by providing training to family members of claimants. This allows family members to provide the necessary care to a claimant while getting paid for it, lessening the burden on claimants and their families as well as home health care providers.

To address some of these issues, the Office of Workers’ Compensation Programs (OWCP), which is responsible for administering the EEOICP, is set to publish proposed regulations in April 2015. The regulations will focus on enhancing the OWCP’s ability to efficiently provide appropriate medical care for beneficiaries, explaining the increased automation of the medical authorization and billing process, and modernizing the process that OWCP uses to investigate whether medical providers are engaging in appropriate activity and the steps it takes to exclude those medical providers in the event that they engage in harmful activity.

 

Medical Providers Enrolled in the EEOICP

Medical providers enrolled in the EEOICP are paid directly by the DEEOIC for their services, whereas those providers that are not enrolled in the EEOICP must be paid by the claimant, who may then seek reimbursement for his or her medical expenses by filing an OWCP-915 Form with the Department of Labor. Some of the home health care providers enrolled under the EEOICP include Professional Case Management, Critical Nurse Staffing, Four Corners, Remain at Home Health Care, Trusted Ally Home Care, and United Energy Workers Health Care.

Many of these home health care companies provide free in-home nursing care to eligible claimants, including health status assessments, assessments of the claimant’s ability to carry out typical daily activities, communication with the claimant’s physician and pharmacy, and assistance with tasks of daily living, such as bathing, walking, and meal preparation. In addition, one provider in particular, Four Corners, provides training to family members so that they can become certified and provide personal care to the claimant.

***

                To learn more about medical benefits under the EEOICPA, please contact Hugh Stephens of Stephens & Stephens, LLP at (716) 852-7590, (716) 208-3525, or via email at hstephens@stephensstephens.com. You can also learn more by visiting our website at www.stephensstephens.com.

 

Happy Holidays from Stephens & Stephens!

December 24, 2014 by · Leave a Comment 

Happy Holidays!

We hope that you all have had a wonderful 2014!

A comprehensive outline of 2014’s activity concerning the EEOICPA at Stephens & Stephens can be read here.

We hope it will be informative for you.

Collateral Consequences of Receiving Compensation from the Energy Employees Occupational Illness Compensation Program (EEOICP) – Not Just Tax Exempt

December 18, 2014 by · Leave a Comment 

Collateral Consequences of Receiving Compensation from the Energy Employees Occupational Illness Compensation Program (EEOICP) – Not Just Tax Exempt

There are many issues that should be considered after a claimant is awarded compensation under the EEOICPA. First, claimants should be aware of whether they must claim EEOICPA compensation as income on their annual taxes. Second, if a claimant also receives workers’ compensation benefits, it is helpful to know whether receiving EEOICPA compensation will have an impact on the amount of state or federal workers’ compensation that may be received.  Similarly, if a claimant receives social security disability benefits, he or she should know whether those benefits will be affected by the receipt of EEOICPA compensation. Also, in the event that a claimant is currently or is seeking to receive housing assistance, it should be determined whether that claimant must consider his or her receipt of EEOICPA compensation as income, which determines eligibility. Lastly, in the event that a claimant is faced with bankruptcy, a claimant should be aware of whether the awarded EEOICPA compensation will be considered as part of the bankruptcy estate.

Tax Consequences of Receiving EEOICPA Compensation

The first issue that arises for those receiving EEOICPA compensation is whether that compensation is considered taxable income. Under 42 U.S.C. § 7385e, compensation received under the EEOICPA is not included within one’s “gross income” for taxation purposes. In fact, such compensation is treated as damages for human suffering for purposes of taxation. 42 U.S.C. § 7385e(1) (2004). According to § 104 of the Internal Revenue Code, damages received based on personal injury or sickness are excluded from one’s gross income, and therefore not taxable. 26 U.S.C. § 104 (2002). The effect of this is to exclude the amount of compensation received under the EEOICPA from what an individual claims as his or her income on his or her annual tax return and therefore, will not be required to pay taxes on the EEOICPA compensation.

Workers’ Compensation and EEOICPA Compensation

A second concern for those who receive compensation under the EEOICPA is whether their federal or state workers’ compensation benefits will be affected. Both state and federal workers’ compensation programs were enacted to provide medical care and cash benefits for workers who are injured or contract an illness while on the job. “Workers’ Compensation and Disability,” National Academy of Social Insurance, www.nasi.org/book/export/html/164. In addition, benefits may be provided to the family of those workers whose death is caused by such work-related injuries or illnesses.

There are three types of workers’ compensation: medical care, temporary disability benefits, and permanent partial and permanent total disability benefits. Id. Similar to benefits received under the EEOICPA, workers’ compensation pays 100 percent of medical costs for injured workers. In addition, an injured worker may receive cash benefits for lost work time. The amount of such cash benefits depends on the duration and severity of the worker’s injury. When an injury is temporary, the worker receives benefits until he or she returns to work. In contrast, if the injury is permanent, an injured worker is provided permanent disability benefits. Depending on the severity of the injury, those benefits may be considered permanent total or permanent partial.

When an injured worker receives both state workers’ compensation benefits and compensation under Part E of the EEOICPA, the benefits must be “coordinated” when they pertain to the same covered illness. 20 C.F.R. § 30.625 (2012). The amount of EEOICPA compensation received will be reduced by the amount of benefits received from a state workers’ compensation program, minus the reasonable costs spent by the claimant to obtain those benefits. Id.at § 30.626(a). To determine the amount the EEOICPA compensation is reduced, the Office of Workers’ Compensation Programs (OWCP) will first determine the amount of benefits received from a state workers’ compensation program by including all benefits, except medical and vocational rehabilitation benefits, received for the same covered illness or injury. Id. at § 30.626(c)(1). Then, the OWCP will make certain deductions to arrive at a dollar amount that will be subtracted from the EEOICPA compensation. Id. at § 30.626(c)(2). Those deductions include the reasonable costs of obtaining workers’ compensation benefits, such as attorney’s fees, the costs of a lawsuit, and any unpaid benefits payable in the future. Id. It must be remembered that this coordination of benefits will not take place unless the workers’ compensation benefits and benefits under the EEOICPA are being received for the same covered illness. If the employee is receiving workers’ compensation benefits for both a covered and non-covered illness under the EEOICPA, this coordination will not occur.

Unlike state workers’ compensation benefits, federal workers’ compensation benefits are limited to a certain class of employees. In general, federal workers’ compensation benefits are only provided to federal employees, with a few minor exceptions. 5 U.S.C. § 8101(1) (1991). Federal workers’ compensation benefits will also likely need to be coordinated with EEOICPA benefits. Federal workers’ compensation is meant to be the exclusive remedy for federal employees injured on the job. Under the Federal Employees’ Compensation Act (FECA), when an individual is entitled to receive federal workers’ compensation benefits and benefits under another federal statute, such as the EEOICPA, for the same injury due to his or her federal employment, that individual must elect which benefits he or she chooses to receive. Id. at § 8116(b). Because this is a very broad provision, it is often determined on a case-by-case basis. A claimant who faces such an issue should contact a workers’ compensation attorney for advice.

Social Security Disability and EEOICPA Compensation

Like federal and state workers compensation benefits, it is often questioned whether social security disability benefits will be affected by the receipt of EEOICPA compensation. Social security disability benefits are paid to workers with long-term disabilities who were insured for disability coverage during their employment. Unlike workers’ compensation benefits, social security disability benefits do not require that the disability be work-related. Similar to workers’ compensation, the spouse and dependent children of the disabled worker may also be eligible for benefits.

While there is an offset provision in both the Social Security Amendments of 1956 and the Omnibus Budget Reconciliation Act of 1981, it is not entirely clear whether EEOICPA compensation must be offset when the claimant is also receiving social security disability benefits. The Social Security Amendments of 1956 contained an offset against workers’ compensation payments, which required social security benefits to be reduced if the disabled worker or his or her dependents also received workers’ compensation benefits. “Characteristics of Disabled-Worker Benefits Receiving Workers’ Compensation for Public Disability Benefits Compared With Disabled-Worker Benefits Without These Additional Benefits,” Office of Disability and Income Assistance Policy: Research and Statistics Note, January 2008, pg. 2. In 1981, with the passage of the Omnibus Budget Reconciliation Act, the offset provision was extended to include “public disability benefits.” Id.

Under § 7395(e)(2), compensation or benefits under the EEOICPA should not be included as income or resources when determining one’s eligibility to receive benefits, including social security disability benefits. 42 U.S.C. § 7395(e)(2); 31 U.S.C. § 3803(c) (2014). However, there have been many complaints that claimants’ social security benefits were offset after their receipt of EEOICPA compensation. See “2008 Annual Report,” Office of the Ombudsman Energy Employees Occupational Illness Compensation Program, Part E. In addition, EEOICPA compensation is not considered under the title of “public disability benefits.” Benefits not considered for offset purposes include EEOICPA payments to Department of Energy employees, contractors, or subcontractors with a work related injury or illness. “Program Operations Manual System (POMS),” Social Security: Official Social Security Website, https://secure.ssa.gov/POMS.NFS/lnx/0500830741.

Housing Assistance and EEOICPA Compensation

A third issue that should be considered is whether receiving EEOICPA compensation will impact an individual’s eligibility for low-income, or subsidized, housing. Determining eligibility for low income housing is based on an individual’s or family’s annual income. Because income is the key to determining whether someone is eligible for housing assistance, it is critical to determine whether compensation received under EEOICPA is considered income for purposes of the program. Under § 7385e(2), benefits under a housing assistance program administered by the Secretary of Housing and Urban Development or the Secretary of Agriculture is not to be considered as income for the purpose of determining one’s eligibility to receive benefits. Therefore, EEOICPA is not to be considered when determining one’s eligibility for housing assistance.

Filing for Bankruptcy and EEOICPA Compensation

In the event that an EEOICPA claimant is filing for bankruptcy, the issue arises of whether EEOICPA compensation will be considered an “asset” and therefore part of the estate that is subject to the bankruptcy proceeding. Because bankruptcy laws vary from state to state, it is important that you become familiar with your state’s laws and bankruptcy exemptions. Under federal law, a debtor may exempt the listed property, unless the governing state law does not so authorize. 11 U.S.C. § 522(b) (2010). Property that may be exempted under federal law includes the debtor’s right to receive a disability, illness, or unemployment benefit. Id. at § 522(d)(10)(C). In addition, the debtor’s right to receive or property that is traceable to a payment to compensate for loss of future earnings of the debtor or of an individual dependent on the debtor, to the extent reasonably necessary to support the debtor and any dependent. Id. at § 522(d)(11)(E).

While the applicability of the EEOICPA compensation to a bankruptcy proceeding is dependent on your state’s laws, under federal law and the law of states which contain the same provisions, EEOICPA compensation is exempt from bankruptcy proceedings. For example, in Tennessee, United States Bankruptcy Judge held that EEOICPA compensation was exempted under Tennessee law. In re Juanita Kate Luttrell, Case No. 02-34539 (June 2004). In that case, while her bankruptcy proceeding was pending, the debtor received $150,000 in EEOICPA compensation. She claimed that the EEOICPA compensation was exempt under Tennessee Code Annotated § 26-2-111, which exempts the debtor’s right to receive “[a] disability, illness, or unemployment benefit, or a pension that vests as a result of disability” and “[a] payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor or any dependent of the debtor.” Id. at pg. 7. In response, the Trustee to the Estate argued that because the debtor received the EEOICPA compensation as a survivor and was not the employee who suffered the disability or illness which was being compensation, therefore § 26-2-111 does not apply and the compensation is not exempt. Id. at pg. 8. The Court disagreed with the Trustee and found that this was precisely the type of compensation intended to be protected by the Tennessee legislature. Id. at 11. Therefore, the Court held that EEOICPA compensation, whether received by the disabled employee or a survivor dependent on such employee, is exempt from bankruptcy proceedings under Tennessee law.

While under federal and Tennessee law, EEOICPA compensation is exempt, it must be determined whether the same is true in the state where you reside. Whether EEOICPA compensation is exempt is dependent entirely on the exemptions allowed under the state’s bankruptcy law.

 

 

DISCLAIMER:      The material presented in this blog post is meant for informational purposes only. It is not intended as professional advice and should not be construed as such. Transmission of this information is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with Stephens & Stephens, LLP or any member thereof. If specific legal assistance of advice is needed, the services of a competent legal professional should be sought.

 

Hugh Stephens, Esq. outlines the EEOICPA claims filing process (cont’d) (video 11)

December 9, 2014 by · Leave a Comment 

In the final video of our series dedicated to keeping the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) understandable and accessible, Hugh continues his explanaion of the claims filing process by discussing some of the proofs and forms required to submit a claim. He also describes how the process generally plays out and how long it should be expected to take, while taking into account various obstacles that may arise along the way.

EEOICPA videos: Claims process explained by Hugh Stephens, Esq. (video 10)

December 3, 2014 by · Leave a Comment 

The tenth video of our EEOICPA series, in which Hugh gives an explanation of the Energy Employees Occupational Illness Compensation Program Act claims filing process and discusses some of the standard forms involved, can be seen below:

EEOICPA videos: Energy Employees Occupational Illness Compensation Program Act in a Nutshell (video 9)

November 29, 2014 by · Leave a Comment 

In video number nine of our Energy Employees Occupational Illness Compensation Program Act (EEOICPA) series, Hugh thoroughly recounts the history of the Act. He then explains how certain atomic weapons workers who are suffering from various illnesses such as Silicosis, Chronic Beryllium Disease (CBD), and various cancers may be compensated under the Act after it has been determined that their employment at any of over three hundred Department of Energy (DOE) and Atomic Weapons Employer (AWE) sites across the country is at least as likely as not to have caused their illness(es).

EEOICPA videos: Survivor benefits under the EEOICPA (video 8)

November 26, 2014 by · Leave a Comment 

In the eighth video of our EEOICPA series below, Hugh discusses the meaning of Survivor Benefits (and claims) under the Act, and explains the distinction between survivor benefits under Part B and Part E of the Energy Employees Occupational Illness Compensation Program Act.

EEOICPA videos: Hugh Stephens, Esq. clarifies Part E of the EEOICPA (video 7)

November 24, 2014 by · Leave a Comment 

Below, in the seventh video of our EEOICPA series, Hugh sets out to clarify Part E of the Energy Employees Occupational Illness Compensation Program Act. He also discusses the benefits, including medical and lost wage benefits, that an atomic weapons worker might be entitled to by having been exposed to hazardous or toxic substances that caused, contributed to, or aggravated a worker’s current illness(es). He explains how impairment ratings of a workers condition determine compensation and how wages lost through physical inability to work can also be compensated through the EEOICPA.