The following is taken from the transcript of the Advisory Board on Radiation and Worker Health, Hilton Hotel, Santa Fe, New Mexico, November 30, 2016.
We hope to develop issues such as these in order to make the Energy Employees Occupational Illness Compensation Program Act that much better by improving the NIOSH dose reconstruction process.
“Hello. My name is Hugh Stephens. I am an attorney with Stephens & Stephens and we have been representing claimants since about 2010 and one thing I can report is that we challenge dose reconstructions when we can find arguments against portions of those, and for a long time the Department of Labor did not want to engage in kind of a substantive assessment of those objections.
And over the years they’ve changed their procedure and our objections are now being reviewed by, I believe, a health physicist at the Department of Labor and then sent on very often to NIOSH for response. And so I can report that the process has improved significantly with respect to dose reconstructions and the claimants’ ability to make objections to those.
We have struggled to understand the dose reconstruction process and we don’t claim to be experts in it but we can review the documents, the referenced documents and do our best to make an argument.
We have had a couple overturned on circumstances as simple as a dosimeter badge exchange rate being biweekly instead of monthly and so that doubled the dose. So we are experts in arithmetic primarily in that one.
And another one that was — that we were able to overturn related more to what we were doing today, which is improving the Site Profile and I think there was a sense today about the work that’s done here and how important it is to prioritize and very often we might spend a year or two trying to get something right and if we were to think about it for a second we’d say well, it doesn’t matter so why don’t we just skip it.
But that’s the key. So when we are talking about a Site Profile and a change, it’s very difficult for us to go back and look and try and figure out if it matters. And I don’t know that there is any kind of solution but certainly some of what we did today has a big impact on the dose reconstruction process and some has no impact at all. And in a program where we are supposed — the claimant is supposed to be able on their own to understand this whole process, the dose reconstruction process, and then review the transcript of this meeting and understand that the new Site Profile is going to have an impact on their claim and therefore they should request reopening.
These are difficult problems. I don’t claim to have a solution. But we will continue to study these Site Profiles and try and understand whether our claimants can get compensated. And so there is that issue of prioritization.
The other thing that I think everyone struggles with and I think Donna Hand referenced it in her presentation just now is when the SEC is passed, now NIOSH can’t do certain aspects of the dose reconstruction and so we then have a new assessment.
NIOSH has backed away. Their expertise cannot be brought to bear. We have made a decision what they can do is not sufficiently accurate. So from there we lead directly to a determination that we know is false which is that that person received no dose connected to that aspect of the dose reconstruction.
I don’t claim to have the answer to this one either. But zero is what we know didn’t happen or at least we know that zero is probably not the right number. When we do missed dose for external dose we know that if the limit of detection is .2, then .1 is kind of a happy medium — halfway between zero and the limit of detection.
That’s a reasonable method of dealing with the problem. But what we know is happening now on all these claims where they don’t qualify for the SEC but there is an SEC, and then you have the Site Profile and they do a partial dose reconstruction, the number that has been chosen is the one we know is wrong and that’s zero. That’s all I have. Thank you.”
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