Advisory Board on Radiation and Worker Health – November 30th, 2016
February 16, 2017
Benefits Available to Workers and Residents Affected by the Nuclear Weapons Industry
February 17, 2017

The following is taken from the transcript of the Advisory Board on Radiation and Worker Health, Department of Labor, 200 Constitution Ave., N.W., Washington, D.C.

Causation Under Parts B and E of the Energy Employees Occupational Illness Compensation Program Act

“Thank you, Dr. Markowitz.

I just wanted to say a few words about causation. We have been talking about causation in the program. One thing I want to say is, first of all, the normal causation standard, preponderance of the evidence, is applicable in the program for most things; if you need to supply a birth certificate to show that you are a survivor, for example.

So, the preponderance of the evidence is the typical standard and it is at work within the program. I think, under Part B and E, the idea is that we need a reduced standard, the 50/50 standard, the tie-goes-to-the-runner standard, because of the lack of evidence and the difficulty that you run into determining whether radiation caused your cancer or whether your exposure to occupational hazardous substances in your occupation caused your illness.

And so, when you look at causation under Part B, we have the 50/50 standard. And so, under Part B, if the dose reconstruction shows that radiation is at least as likely as not to have caused your cancer, then you are paid.

The causation standard under Part E that we have talked a lot about includes contribution and aggravation, and so, is a further reduced standard. And it is a more typical standard that you run into in the workers’ compensation context, the idea being that workers should be compensated more liberally probably than in the civil litigation system. And so, I think we can all agree that Part E is a reduced standard.

But, when it comes to radiation and whether it is considered under Part E as a potential hazardous substance causing, contributing to, or aggravating a cancer or another illness — and I think there is increasing evidence that radiation can cause, can be a contributing cause of both malignancies and other types of illnesses or conditions. And we have been able to have at least one claim approved where radiation was identified, in addition to asbestos, as potentially contributing to a claim for cancer.

And so, I think this is becoming more important. And what I would like to throw out there as just the idea is, when they determine that radiation is at least as likely as not, and that is defined as causing your cancer or enough to consider it to have caused your cancer, the problem is they are also in this program treating that same evidence, the fact that you did not reach the 50-percent threshold in the dose reconstruction, as meaning that radiation did not contribute to or aggravate, primarily contribute to.

And I think there is within the program this conflation of the idea of contribution into causation, because I think there is a sense that, if it doesn’t cause it, how can it contribute to it? But we know that there are contributory portions of the process. I think we are understanding the process of how cancer comes about better and how radiation might play a role in the many steps leading up to cancer.

And so, one thing we can consider is maybe for my clients I would prefer that the threshold be 1 percent. If you have 1 percent probability of causation, you ought to get paid under Part E, even though you fail under Part B.

For the Department of Labor, who knows what it is? But somewhere between 1 percent and 49.9 percent, we might have — there is a reduced standard. And so, under Part E, we should consider at what point with significant radioactive radiation exposure acknowledged in the dose reconstruction, when could it be considered to have contributed?

With that, I will let everybody go home. Thank you very much. I appreciate all your work.”

Full text here:
https://www.dol.gov/owcp/energy/regs/compliance/advboard/transcript_042716.pdf

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