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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.

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