EEOICPA PART B
One of the many areas of confusion under the Energy Employees Occupational Illness Compensation Act (EEOICPA) is the relationship between Part B and Part E. Under Part B a worker who was exposed to radiation can receive compensation of $150,000 (1) if his or her cancer is one of 22 cancers caused by radiation, under the program and (2) that cancer can be shown to be at least as likely as not (50% or greater probability of causation) to have been caused by radiation exposure at a Department of Energy (DOE) or Atomic Weapons Employer (AWE). The probability of causation (POC) is determined by the Department of Labor (DOL) from data contained in a Dose Reconstruction performed by the National Institute of Occupational Safety and Health (NIOSH). The Dose Reconstruction analyzes qualifying employment such as employment for a DOE or AWE employer or a contractor or subcontractor of a DOE or AWE employer and radiation exposures experienced by that specific worker. The worker can be compensated on his or her own claim or his or her spouse, children, grandchildren or parents can file the claim if the worker is deceased (generally in that order). There is no time limit on these claims other than the requirement that a spouse, child, grandchild or parent be available to file a claim. The difficulty of obtaining medical evidence of cancer can represent a practical time limit where medical records are not available because they cannot be located or have been destroyed in the time between the onset of the cancer and the filing of the claim – a period of time that sometimes exceeds 30 years.
EEOICPA PART E
If a claim is established under Part B the claimant or claimants will receive a total of $150,000 under Part B. If a claim is established under Part B and the employer was a Department of Energy (DOE) employer, certain claimants can receive compensation under Part E. Part E is designed to substitute or supplement state workers’ compensation benefits. So if the worker is the claimant and the claim is established under Part B, and the worker was employed by a DOE employer, including a contractor or subcontractor of the DOE employer, then the worker is entitled to benefits under Part E. Part E benefits include valuable medical coverage for the occupational illness – in this example cancer. Part E benefits for a DOE worker also include compensation for impairment. If a worker is 100% impaired by the occupational illness he or she would be entitled to $250,000 of compensation. If that same worker were 50% impaired, he or she would be entitled to $125,000. The impairment rating is performed by a qualified physician.
PART E – SURVIVING SPOUSE
If the worker is deceased, the surviving spouse is entitled to receive benefits under Part B ($150,000) and under Part E (between $100,000 and $150,000 based upon the worker’s age at death) – if death was caused by the occupational illness. The analysis when death is a result of an illness or accident unrelated to the worker’s occupation will be the subject of a future post.
PART B – CHILDREN ELIGIBLE
PART E – CHILDREN – INELIGIBLE EXCEPT CHILDREN WHO ARE DEPENDENT AT THE TIME OF THE WORKER’S DEATH
Generally the surviving adult children of a worker whose spouse is also deceased are entitled to benefits under Part B ($150,000) but are not entitled to benefits under Part E (between $100,000 and $150,000 based on the worker’s age at death). There is an exception to this rule for dependent children. Dependent children under Part E include children under 18 at the time of the worker’s death as well as children who are under 23 and are still in school (i.e. have been full time students continuously since graduating high school). The final group of qualifying dependent children under Part E are those who are incapable of self support. This is one of the more controversial areas of Part E because some adult children who are not capable of self support cannot produce the type of medical records or other evidence on which to base the finding.
PART E WHERE A WORKER IS NOT ENTITLED TO PART B COMPENSATION
Where the worker is not entitled to compensation under Part B, that worker can still qualify for benefits under Part E. Part E provides compensation only for those workers who worked at a Department of Energy (DOE) facility. Those workers who were employed only by an Atomic Weapons Employer (AWE) are not entitled to Part E compensation. But where the worker was exposed to a hazardous substance other than ionizing radiation at a Department of Energy (DOE) facility, and that exposure caused an illness or contributed to or aggravated a preexisting illness, Part E compensation is available. The Site Exposure Matrix (SEM) is a website that provides information relevant to which hazardous substances were present at DOE facilities and also provides information relevant to which illnesses are caused by which hazardous substances. The process involves entering the name of the DOE facility or facilities at which the worker was employed which will produce a list of the hazardous substances present at the facility. The next step involves entering the worker’s illness or illnesses which produces a list or lists of hazardous substances that have been shown to cause that illness. The current list has been reported to list only those substances shown to cause illnesses but the requirements of the program are more expansive including both illnesses caused by occupational exposure and illnesses contributed to or aggravated by occupational exposure. Once the two lists are compared the substances that appear on both lists should be examined for the potential that a relationship between a hazardous substance and the illness can be established. Establishing the relationship involves understanding and articulating how the exposure occurred such that the necessary connection can be further investigated. The final step in the process is obtaining a well reasoned and properly supported opinion of a qualified physician that supports the necessary connection between the hazardous substance and the occupational illness.
If you have questions or comments about this post or would like to learn more about how an EEOICPA lawyer or attorney can assist you with the claim filing and adjudication process call me at (716) 852-7590 or email me at h@stephensstephens.com.
Hugh Stephens