DOL EEOICPA Compensation, Medicare, Medicaid, and Private InsuranceOctober 4, 2023
The State of Washington Workers Compensation Program Federal Government LawsuitOctober 5, 2023
Washington’s Workers Compensation Program Act was passed to compensate current and former Hanford site contract workers with certain illnesses exposed to toxic chemicals and radiation at the nuclear waste site. The Hanford nuclear site is a 580 sq. mile area in Southeastern Washington state. It was designated in 1943 for the production of plutonium used to manufacture the bomb that was used to stop World War II. The last reactor at the site was closed in 1987, leaving billions of gallons of solid and liquid radioactive waste, which was hazardous to the environment, with toxic material leaking into the Columbia River. The cleanup exercise began in 1989 with the signing of the Tri-Party Agreement between the Washington State Department of Ecology, the U.S. Environmental Protection Agency, and the U.S. Department of Energy. Over 10,000 workers at the Hanford nuclear site are employed by companies contracted by the federal government. Over the years, these workers have been working without proper protection, exposing them to this toxic waste. As a result, many of them have fallen ill and gone without compensation.
Washington’s Workers Compensation Program Presumption
A 2017 Hanford Healthy Energy Workers Board report raised concerns about the compensation for non-federal employees working at the Hanford nuclear site. It indicated that about 57% of these employees were exposed to harmful nuclear material. People working at the site include federal and non-federal employees. According to the findings, most non-federal employees were not well protected from exposure to harmful nuclear reactants. And despite being at a higher risk of related illnesses, these non-federal employees were denied compensation.
The federal staff working at the Hanford site were under the Federal Employees’ Compensation Act (FECA), while the contracted staff were covered by the Washington Industrial Insurance Act (WIIA), both benefits paid for by the Department of Energy. However, the state coverage (WIIA) provided benefits for illnesses proven to have occurred in the workplace.
Following the findings, Washington state senators Patty Murray and Maria Cantwell requested the Department of Energy inspector general to investigate the compensation issue further. The DOE released its report in 2018, indicating that the department had ended its contract with Penser North America, which processed the claims.
In 2018, the Washington legislative body passed HR 1723, which provided high-risk Hanford site workers with compensation exemption. The HR 1723 presumed that former and current federal contract Hanford Site workers who developed certain illnesses were eligible and could apply for compensation.
The legislation also expanded benefits for contract workers exposed to toxic chemicals and radiation at the nuclear waste site, increasing their access to compensation. The law also limited the need to prove that exposure at the workplace resulted in their illness. It presumed that certain medical conditions affecting workers at the DOE facility resulted from their employment; thus, they qualified for compensation benefits.
The US federal government, however, contested the law in court, alleging that it violated the constitution that gives the federal government immunity from state laws. The federal government also claimed that the legislation violated the constitutional supremacy clause, discriminately imposing additional expenses on the federal government, forcing it to cover non-federal employees. The State of Washington argued that the law was protected by the waiver of federal immunity passed by Congress years ago.
In June 2022, the US Supreme Court ruled in favor of the Federal government, stating that it was unconstitutional for the State of Washington to lower the bar for federal contractors working at the former nuclear weapons plant, making them eligible for workers’ compensation benefits.
To moot the Supreme Court ruling, the Washington state legislature amended the law collectively encompassing contract workers at all nuclear waste sites in the state. On Mach 11, 2022, the legislature expanded those covered under the presumption to include all workers working at other radiological hazardous waste facilities except military installations. The presumption also excludes communicable and neurological diseases.
The previous Hanford presumptive law, passed in March 2018, only covered the workers, contractors, and subcontractors at the Department of Energy (DOE) Hanford site covered under Washington’s industrial insurance who worked an 8-hour shift or more.
Washington Presumptive Law for Radiological Hazardous Waste Facility Workers
Presumption laws related to occupational diseases began in 1987 when the legislature established that firefighters were exposed to smoke and toxic substances in their line of duty. Such occupations place workers at a higher risk of developing certain illnesses than the general public. For this reason, respiratory illnesses affecting certain workers were presumed to be occupational-related for insurance claims purposes. Consequently, conditions covered under a presumptive law are presumed to be occupation-related. However, there should be sufficient evidence of medical diagnosis.
The State of Washington nuclear workers’ compensation law took effect on March 11, 2022. The law was meant to ensure that Hanford nuclear plant workers who got ill from nuclear and chemical exposure were adequately compensated.
The act defines “an Exposed Worker” as a worker working at a radiological hazardous waste facility for at least an eight-hour shift covered under this title, including those inspecting the facility. A Radiological hazardous waste facility refers to a site with high levels of stored or disposed radioactive waste, except for military installations.
Washington’s Workers Compensation Program Presumptions
A prima facie presumption applies to exposed workers in radiological hazardous waste facilities that the conditions and diseases they suffer related to substance exposure are occupational. The presumption of occupational diseases can be disapproved through convincing evidence, such as exposure to other radioactive materials unrelated to the facility, tobacco use, lifestyle, and hereditary factors.
Diseases recognized under the prima facie presumption
- Non-communicable respiratory diseases
- Non-communicable neurological disease
- Beryllium sensitization and chronic and acute beryllium disease
- Heart problems occurring within three days of exposure to chemicals at the site
- Cancers related to nuclear chemical exposure
Cancer presumption applies to current and former nuclear waste facility workers who suffer from cancer in cases where medical examination did not show any evidence of cancer at the time of employment. The medical examination might have been carried out or wasn’t considered necessary at the time of employment.
The cancers recognized by the presumption include:
- Lung cancer- can be primary or secondary bronchi and trachea cancers, cancers of the lungs except for situ lung cancer (discovered in a postmortem examination), mesothelioma, and pleural cancers.
- Primary and secondary bone cancers, such as the bone form of solitary plasmacytoma, essential thrombocytosis or essential thrombocythemia, myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, P. vera, primary polycythemia, primary polycythemia vera or polycythemia rubra vera, primary polycythemia, proliferative polycythemia, proliferative polycythemia and spent-phase polycythemia/primary erythremia.
- Primary or secondary renal and kidney cancers
- Lymphomas, except for Hodgkin’s diseases
- Mycosis fungoides
- Waldenstrom’s macroglobulinemia
- Primary cancers of the breast, thyroid, esophagus, stomach, and all pharynx cancers (nasopharynx, oropharynx, and hypopharynx and the larynx), small intestines, salivary glands, urinary bladder, bile ducts/ampulla of vater, pancreas, gall bladder, brain malignancies except for those of th central nervous system and endocrine glands, colon (rectum and appendix), ovaries and fallopian tubes and liver with exceptions of hepatitis B and cirrhosis.
The presumption applies to exposed covered workers as follows:
- Washington’s Workers Compensation Program Presumption extends to an exposed worker’s lifetime even after employment termination at the facility.
- As stated above, survivors of workers who die from the conditions and illnesses recognized under this law are eligible for compensation under the presumption. Workers and survivors who were denied their claims by a court, department, or the board of industrial insurance appeals can file a new claim.
- The presumption applies to decisions made after June 7, 2018, regardless of the last date of exposure or the date the claim was filed.
When an appeal is made involving the presumption and the claim of benefits is allowed, the Board of Industrial Insurance Appeals will order the opposing party to pay the worker or survivor all reasonable costs, which may include attorney and witness fees. The same applies to appeals related to the presumptions made in courts, where the court orders payment of benefits.
Procedure for filing claims for Hanford site employees
Injured employees working at the Hanford site report their injuries to their physician, contractor, or Penser. The contractor’s workers’ compensation representative (WCR) assists the claimant in completing the Washington State Labor & Industries (WSL&I) claim form and forwarding it to Penser.
Once the claim is filed, Penser undertakes various activities as follows:
- Requests for a physician’s Initial Report obtains a statement from the employee and witnesses and verifies employee work records
- Where necessary, they will obtain more information from the contractor’s WCR and request the necessary medical documents
- They should also investigate the claims to ensure they meet the legal requirements and send invalid claims to WAL&I, recommending a denial. In such cases, copies of the recommendation are also forwarded to the claimant and the WCR
For denied claims, WAL&I reviews the claim, and if it agrees with the recommendations, the Washington State Labor & Industries (WSL&I) issues an Order of Denial to the worker with a copy to Penser. Workers whose claims are denied are allowed to appeal.
If the claim is allowed, PENSER and WAL&I administer it while maintaining open communication with the worker, HPMC, attending physician, and employer. They also authorize the recommended treatment as per the WSL&I regulations.
If the employee has been off duty, the WCR, HPMC, Penser, and WSL&I provide the necessary support for the worker to resume work. Where necessary, the employee can be recommended for vocational training and retraining.
They then close the claim once the treatment is completed. In case of disability, a physician assesses the employee to determine if they can continue working or are eligible for such disability benefits.
Protests and Appeals for Washington’s Workers Compensation Program
If the claimant is not content with WSL&I’s decision, they can protest and appeal to the Washington State Board of Industrial Insurance Appeals, which reviews the case and makes a decision. When need be, the claimant can appeal to a higher court that issues the final decision.