March 22, 2017 | The following is taken from the transcript of the Advisory Board on Radiation and Worker Health meeting in Naperville, IL. 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.
Congress passed the EEOICPA in 2001 to compensate workers and their survivors who have developed certain illnesses as a result of exposure to radioactive and toxic substances. Stephens & Stephens provides free claim evaluations for anyone who thinks they may be eligible or call us at 1-800-548-4494.
Thank you, Dr. Melius and the Board. I just wanted to say a few things. I’m an attorney with Stephens & Stephens. My father and I practice together. I represent claimants all over the country and generally a lot of the claimants that we represent are claimants who’ve been denied. And so I spend a lot of time telling them that this is a good program in spite of the fact that their claim was denied and try and explain what happens here, and that these issues are addressed carefully.
The issue that I raised last time I was here before the Board was that when the SEC is passed, it’s passed, I believe, based on the idea that the dose reconstructions are not sufficiently accurate. They’re not sufficiently accurate in that there’s a likelihood that they’re understated for at least one claimant. And on that basis I think there’s a determination that even if it were just one claimant that would be enough to establish a Special Exposure Cohort to use a presumption to determine whether those workers get paid.
And what I was talking about last time is the fact that this determination is based on the idea that the dose reconstruction is somehow understated. And yet when the SEC is passed the dose reconstruction for those claimants who have skin cancer, or prostate cancer, or otherwise do not fit within the Special Exposure Cohort their dose reconstruction goes down to zero in connection with at least a portion of that dose reconstruction.
So what happens is there is a dose reconstruction – a partial dose reconstruction – because that part of the dose reconstruction for which there’s been a determination that it is not sufficiently accurate is then not done by NIOSH. And that may be appropriate in certain instances. But what I submit is that while a dose reconstruction might not be sufficiently accurate to deny a claim, it might be sufficiently accurate to accept one. And so there are sites where the data is so bad you really can’t even — you don’t know where to begin. Maybe that’s the case. I don’t know all this as well as you do as Board and certainly NIOSH does. But I think with respect to certain SEC sites there is something of a battle between NIOSH and SC&A. Sometimes SC&A wins. But NIOSH has strongly held beliefs, good faith belief that they can do these dose reconstructions. And SC&A says no, there’s some problems and you shouldn’t do it and so we should have the presumption. I think that in those cases there should not be a determination that just because it’s not sufficiently accurate to deny a claim that it is also not sufficiently accurate to accept one.
And in those cases — there’s an argument in those cases, even in those cases that it shouldn’t be reduced. The dose reconstruction shouldn’t be reduced. It should be increased based on the fact that it’s insufficiently accurate. But instead it’s not just decreased, it’s decreased to zero. So, if it’s the external dose then they can’t do external dose. It’s probably not a good example because usually it’s the internal dose, but one way or another. So we have a determination that the SEC should be passed because certain of the claimants are falling through the cracks because of the insufficient accuracy of the data.
But what we then turn to is people falling through the cracks, people who have skin cancer, prostate cancer, otherwise don’t fit within the SEC. And I know so far there’s been an effort to do the dose reconstructions, the partial dose reconstructions. But what I submit is that there are facilities in the complex where you could do the full dose reconstruction and it wouldn’t require us to do anything except use the old models that NIOSH was using and they’re not allowed to use anymore because the SEC has been passed.
We are not talking about a situation where the data is so bad that you just can’t use it. It’s not scientific. Maybe it fails the Daubert standard from a legal point of view. That’s not what we’re talking about. We’re talking about issues with the data that caused the SEC to be passed. So I would propose that each facility where the SEC has been approved, that in addition to the determination that dose reconstruction should continue to be done based on the data that’s available, but that that data that’s available should include the NIOSH dose reconstruction, the NIOSH model that was being used before the SEC was passed. And maybe that’s a difficult, impractical thing to do, but I think it could be done with respect to each SEC based on the evidence that exists.