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.