[Senate Hearing 108-334]
[From the U.S. Government Publishing Office]
S. Hrg. 108-334
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
TO CONDUCT OVERSIGHT OF THE IMPLEMENTATION OF THE ENERGY EMPLOYEES
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM
__________
NOVEMBER 21, 2003
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Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
Pete Lyons, Professional Staff Member
C O N T E N T S
----------
STATEMENTS
Page
Alexander, Hon. Lamar, U.S. Senator from Tennessee............... 20
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 2
Bunning, Hon. Jim, U.S. Senator from Kentucky.................... 1
Burton, John F., Jr., Ph.D., Professor, Rutgers University....... 48
Card, Robert G., Under Secretary, Department of Energy,
accompanied by Beverly Cook, Assistant Secretary for
Environment, Safety and Health................................. 22
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 3
Elisburg, Donald, Attorney, on behalf of the American Federation
of Labor and Congress of Industrial Organizations (AFL-CIO) and
the Building Construction Trades Department (BCTD)............. 76
Grassley, Hon. Charles E., U.S. Senator from Iowa................ 7
Harkin, Hon. Tom, U.S. Senator from Iowa......................... 4
Kennedy, Hon. Edward M., U.S. Senator from Massachusetts......... 5
Michaels, David, Ph.D., Professor, George Washington University.. 58
Miller, Richard, Senior Policy Analyst, Government Accountability
Project........................................................ 64
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 14
Owens, Leon, President, PACE Local 5-550, Paducah, KY............ 51
Robertson, Robert E., Director, Education, Workforce, and Income
Security Issues, General Accounting Office..................... 39
Schumer, Hon. Charles E., U.S. Senator from New York............. 5
Talent, Hon. James M., U.S. Senator from Missouri................ 18
Voinovich, Hon. George V., U.S. Senator from Ohio................ 6
APPENDIXES
Appendix I
Responses to additional questions................................ 93
Appendix II
Additional material submitted for the record..................... 101
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT
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FRIDAY, NOVEMBER 21, 2003
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m. in room
SD-366, Dirksen Senate Office Building, Hon. Jim Bunning
presiding.
OPENING STATEMENT OF HON. JIM BUNNING,
U.S. SENATOR FROM KENTUCKY
Senator Bunning. The committee will come to order. We are
temporarily detained because Senator Grassley is making some
phone calls on the energy bill. I am going to make my opening
statement and then hopefully Senator Grassley will be here for
his testimony.
Today's hearing focuses on the Department of Energy's role
in the Energy Employees Occupational Illness Compensation
Program. We are having this hearing because of the findings
from an ongoing GAO investigation that I requested because of
concerns that the Department of Energy workers at the Paducah
Gaseous Diffusion Plant in Paducah, Kentucky, and the DOE
workers at other sites have expressed to me about subtitle D of
the program.
This program was created in 2000 to compensate employees of
the Department of Energy or its contractors who developed
illnesses due to their work for the Nation's nuclear weapons
program. There are two major parts of the program that are
administered by two agencies, the Department of Labor and the
Department of Energy. The Department of Labor under subtitle B
of the act has made a final decision on about 53 percent of all
filed cases and has paid more than $700 million in claims. In
contrast, the Department of Energy under subtitle D of the act
has made a decision on only 6 percent of all filed cases and
none--I repeat, none--have received workers compensation. The
DOE's current track record for processing claims disturbs me
and causes me serious concern about whether the Department has
the capability to handle the compensation program.
As most of my colleagues on the committee know, we have
been dealing with contamination at the Paducah plant for some
time now. During the 106th Congress I sat on the Energy
Committee and we conducted field hearings in Paducah that
brought to light the actual extent of the contamination in the
workplace and the problems at that plant.
We discovered that workers at the plant were exposed to
radioactive materials for over 50 years at the Department of
Energy site across this country. Many workers sacrificed their
health and safety and were placed unknowingly in harm's way to
make nuclear weapons for our country.
Many of the workers at the Paducah plant have received
compensation for the illnesses due to radiation and beryllium
under subtitle B. However, over 2,400 former Paducah workers
exposed to toxic substances still are waiting to have their
cases heard to receive compensation for their illnesses. I hope
that this hearing and the GAO's final report on this issue will
bring to light a way for us to end the backlog of those
thousands of cases that have not received any compensation.
We begin today with Senator Charles Grassley in the first
panel. On the second panel, the Department of Energy Under
Secretary Robert Card will be the person testifying. On the
third panel we have six witnesses: Mr. Robert Robertson,
Director of Education, Workforce, and Income Security Issues
with the U.S. General Accounting Office; Dr. John Burton, a
professor at Rutgers University who was appointed by President
Nixon to and served as Chairman of the National Commission of
State Workman's Compensation Laws; Mr. Leo Owens, president of
the Paducah, Kentucky, chapter of the PACE union--I am honored
that Leon has taken the time to come to testify before this
committee today--Dr. David Michaels, now a professor at George
Washington University and formerly the Assistant Secretary of
Energy for Environment, Safety, and Health; Mr. Richard Miller,
a Senior Policy Analyst with the Government Accountability
Project; and last but not least, Mr. Donald Elisburg, an
attorney with the AFL-CIO in the Building Construction Trades
Department.
I will get to your opening statements in a minute. Let us
let Senator Grassley go ahead and do his testimony. I know how
busy he is. Senator Grassley, go ahead.
[The prepared statements of Senators Bingaman, Domenici,
Harkin, Kennedy, Schumer, and Voinovich follow:]
Prepared Statement of Hon. Jeff Bingaman, U.S. Senator
From New Mexico
Let me first thank all the witnesses from coming here today.
Several years ago, I held with Representative Tom Udall, a public
meeting in Espanola, New Mexico to discuss the compensation of workers
at Los Alamos. The gathering was attended by over 300 present and
former nuclear weapons workers. There is one particular story about one
New Mexican being exposed to mercury.
Mr. Alex Smith of Espanola, operated a mercury still at the Los
Alamos National Laboratory. Mr. Smith displayed all the signs of both
acute and chronic mercury poisoning. He approached LANL's physician
seeking treatment and protection only to be told he was not suffering
from mercury illness. Later, discovery by investigators revealed a
different story. In fact, the physician did suspect Mr. Smith was
suffered from mercury toxicity but for reasons we can only speculate on
now failed to act.
As a result of this and other stories about sick DOE workers, I,
while a member of the Senate Armed Services Committee, along with
Senators Bunning, Domenici, McConnell, Voinovich, Thompson, and other
colleagues in the Senate, worked hard to add the Energy Employee's
Occupational Illness Act into the National Defense Authorization Act
for fiscal year 2000. The provision was so controversial that it almost
brought the conference to a halt but we succeeded.
Three years later, we are now examining how this program is being
implemented at the Department of Energy.
I have a few concerns on the overall program and its progress.
The enabling legislation asked for a legislative proposal on how to
implement and improve this program no later than March 1, 2001. To my
knowledge I have not seen these recommendations.
I am concerned about the issue of whether the Department of Labor
is not the best place to carry out the compensation program in subtitle
D, which is currently carried out at the DOE. The Department of Labor
has a long history, infrastructure, and culture of carrying worker
compensation programs. The slow progress the DOE has shown to date with
a relatively inexperienced contractor, and increasing appropriations
requests, three years after the program started, indicates to me that
the DOE is slowly building up an infrastructure and expertise that may
already exist at the Department of Labor.
Finally, from a policy sense, I am concerned about whether part D
can work even if the DOE successfully implements the program. Part D
has the federal government entering into a state compensation system,
which is inherently an adversarial one. Under the Atomic Energy Act,
the private contractors who run the nuclear weapons facilities perform
an inherently governmental function.
Perhaps it is better to replace part D with a program similar to
the Federal Employee's Compensation Act, or FECA, to be run out of the
Department of Labor. Similar to FECA the atomic worker's claims are
paid for directly by the Federal Government, through the appropriations
process. I am sure an FECA-like program would eliminate the adversarial
nature that part D inherently encounters in accomplishing its mission.
So, let me again thank the witnesses for coming today and I look
forward to this hearing, and the insight the witnesses have to offer
here today on this important program.
______
Prepared Statement of Hon. Pete V. Domenici, U.S. Senator
From New Mexico
Today's hearing is devoted to discussion of the DOE role in the
Energy Employees Occupational Illness Compensation Program.
This complex program was created in 2000, with the goal of
compensating employees of the DOE or its contractors who developed
illnesses due to their support of the nation's nuclear weapons
programs.
The two major parts of the program are administered by two
agencies, the Departments of Labor and Energy. The part administered by
Labor is far simpler, and it is progressing at a more rapid rate than
the part with Energy.
Some will argue that a ``solution'' is to shift all the
administration to Labor, and in the course of today's hearing that
position can be examined.
From my initial study of the issues in this program, I'm not
convinced that a simple shift to Labor will solve all the issues. There
may be fundamental flaws in the legislation which created this program,
and this hearing should help us understand the range of possible
remedies that Congress may wish to consider.
We begin today with Senator Charles Grassley in the first Panel.
Department of Energy Under Secretary Robert Card will be in the
second panel.
In the third panel, we have six witnesses:
Mr. Robert E. Robertson, Director for Education, Workforce,
and Income Security Issues with the U.S. General Accounting
Office;
Dr. John Burton, a Professor at Rutgers University, who was
appointed by President Nixon to, and served as Chairman of, the
National Commission on state Workmen's Compensation Laws;
Mr. Leon Owens, President of the Paducah Kentucky Chapter of
the PACE union;
Dr. David Michaels, now a Professor at George Washington
University and formerly the Assistant Secretary of Energy for
Environment, Safety and Health;
Mr. Richard Miller, a Senior Policy Analyst with the
Government Accountability Project; and
Mr. Donald Elisburg, an attorney with the AFL-CIO and the
Building and Construction Trades Department.
Statements have also been introduced for the record from Senators
Voinovich and Kennedy.
______
Prepared Statement of Hon. Tom Harkin, U.S. Senator From Iowa
Mr. Chairman, I received a letter in December 1997, from Bob
Anderson, a constituent in Burlington, Iowa. He said that he had been
diagnosed with non-Hodgkins lymphoma, as were some of the other people
he had worked with at the Burlington Atomic Energy Commission Plant in
nearby Middletown, Iowa. At that time, I had no idea the federal
government had manufactured nuclear weapons in Iowa. Neither did the
Department of Energy.
We've been on a long, bumpy road to justice for these workers since
I got that letter almost six years ago. As it turns out, the Iowa Army
Ammunition Plant (IAAP) included a nuclear weapons assembly plant from
1947 to 1975. In 1999, I worked with DOE to include the plant in its
programs for the nuclear weapons complex and to find, declassify, and
release thousands of documents about the plant. I brought Secretary
Richardson to Burlington to listen to the former workers at IAAP and to
assure them they could talk about problems at the plant. And I have
worked to change the Pentagon policy that prevents them from even
admitting that nuclear weapons work went on at the site.
I've obtained funding for and supported a health study of the
former nuclear weapons workers conducted by the University of Iowa,
which is doing an outstanding job of carefully considering this issue,
and shows tremendous concern and compassion for sick workers.
I cosponsored the bill to provide compensation of $150,000 and
health care for workers who were harmed by exposure to radiation at
IAAP and other nuclear weapons plants, and I continue to press to make
the program work for Iowa's workers.
I have been working to speed the cleanup of the IAAP site, and
worked to get limited sampling that discovered chunks of depleted
uranium on the ground and a burial site for barium. I persuaded the
Army to accommodate neighbors, who were worried about the safety of
their well water, by connecting their houses to the public water
system.
Mr. Chairman, I mention all of these things because it's very
important to look at this matter from a worker's perspective. If I were
sick with cancer from my job, the role of the Department of Energy in
the administration of subtitle D of the Energy Employees Occupational
Illness Compensation Program Act is just another complicated obstacle
that I don't have the strength to deal with. If I'm sick with cancer, I
just want my claim processed expeditiously. And I want the area clean
and safe for my children and grandchildren.
However, today, the processing of claims under the EEOICPA is the
topic at hand. There are two main problems with the way that this
program is affecting the Iowa workers. First, we have a serious problem
with finding a responsible party to pay claims. It's as though IAAP is
a ``forgotten site.'' There is no longer a DOE contractor on site. Iowa
workers compensation (as in most states) has a statute of limitations.
The only way around this dilemma is to have a ``willing payor,'' which
normally would be a current DOE contractor that can charge the expense
to DOE. But there is no such contractor at IAAP.
DOE has said in the recent past that they are working to find
creative ways to find payors. However, I have yet to see any proposed
solutions for Iowa.
The other major problem--which has also been of great interest to
my colleague from Iowa, Senator Grassley--is the excessively long time
DOE is taking to process employee compensation claims. While 90 percent
of the claims that fall under DOL have been processed (except those
awaiting action from another agency), a very small percentage of DOE
claims have been processed. I have worked hard to increase funding, but
the GAO has clearly stated that more money is not the answer.
Fundamental changes must take place. Whether that means moving the
processing to DOL or some other kind of fundamental structural change,
I do not know. But I would like to see major changes taking place that
will address this very serious concern.
Obviously, DOE could be processing all the claims expeditiously.
But without a two-tiered approach that also solves the ``willing
payor'' problem, Iowans are still in the same predicament, with no way
to receive compensation for their illnesses. Late in the last Congress,
I was pleased to work with Senators Bingaman, Bunning, Allard, Clinton,
and Reid to introduce a bill that would have designated the Department
of Labor as the willing payor. I look forward to revisiting this with
my colleagues in the near future.
So, Mr. Chairman, I very much look forward to hearing the
Department's ideas about how it plans, at long last, to process and pay
these long-delayed claims. I believe that the way these forgotten
nuclear workers have been treated by our government is truly one of the
gravest injustices I've seen in my state. People whose only reward for
years of hard work is illness and premature death cannot and should not
be disregarded and forgotten by their government.
______
Prepared Statement of Hon. Edward M. Kennedy, U.S. Senator
From Massachusetts
Today, thousands of brave men and women in uniform are serving our
country with great courage and dedication in Iraq and many other
nations, and here at home as well. Our military strength and national
security depend heavily on them, and also on the efforts of countless
Americans who help to build our defenses here at home.
But we have not always given them the support they deserve. For
decades during the Cold War, hundreds of thousands of workers served
the United States well in the production of nuclear weapons. But in
doing so, they were often exposed to radioactive materials and other
toxic substances whose long-term health affects were poorly understood,
and many of them contracted disabling and even fatal cancers and other
serious illnesses.
In 2000, to respond to this plight, Congress passed the bi-partisan
Energy Employees' Occupational Illness Program Act to provide fair
compensation to employees of the Department of Energy or its
contractors who had suffered because of this exposure.
Parts of the Act have been a great success. Tens of thousands of
workers have received needed health care and compensation for their
illnesses. The Department of Labor has processed over 30,000 claims
within its area of responsibility, and $710 million in benefits have
been paid to employees or their survivors.
The Department of Energy, however, has been far less responsive. By
earlier this month, it had not even begun processing 14,000 claims--
three-quarters of the total it has received. According to the General
Accounting Office, it will take the Department seven years to process
the current backlog. The Department has not identified a willing payor
for valid claims in many states. As a result, large numbers of workers
and their families in these states are waiting for the compensation
they deserve.
These delays are unacceptable, and I strongly support the
legislation proposed by Senator Grassley and Senator Murkowski to use
the expertise and capacity of the Department of Labor to expedite these
claims. Shifting this responsibility to the Labor Department will not
resolve all of the problems under the current law but will be a major
improvement over the current flawed system that is so unfair to these
dedicated men and women who sacrificed their health and even their
lives in service to our country. I want the country to do all it can to
see that they receive as soon as possible the care and compensation the
nation owes them.
______
Prepared Statement of Hon. Charles E. Schumer, U.S. Senator
From New York
I have come here today to address the issues surrounding the
Department of Energy's implementation of the Energy Employees
Occupational Illness Compensation Program (EEOICP), first enacted three
years ago to provide compensation to employees of the Department of
Energy and its contractors who developed illnesses from exposure to
radiation and other toxic substances.
The EEOICP was created for the purpose of providing necessary
compensation to sick workers in a fair and timely manner. However,
thousands of affected workers in my home state of New York and across
the country have gone uncompensated, despite filing claims with the
government under this program.
Most of these people are suffering from serious illnesses and
simply do not have the time to sit around waiting for their claims to
be processed through a system that is clearly broken. These workers
have been severely harmed by the poor administration of the Energy
Employees Occupational Illness Compensation Program and it is
imperative that we make the necessary changes to help these brave
people.
Since this program's conception three years ago, the Department of
Energy-administered portion of this program has processed only 109 out
of nearly 21,000 applications nationwide. That is a mere 0.5%. To the
best of my knowledge, none of claims approved by the Physician Panels
have been paid. DOE has not even begun processing 75% of its claims.
Currently, the vast majority of New York cases are awaiting
development despite being filed over two years ago with DOE. In New
York State, the Physician Panels have not reviewed a single case
because DOE has deemed all of them ineligible, thus blocking any of
them from coming before medical doctors for review. I want to know why
every single claim processed by DOE has been denied a review by a
physician's panel in 3 years.
Furthermore, why have no claims been paid to sick New York workers
in 3 years? A target date from DOE to complete claims for EEOICPA Part
D needs to be set.
We need to enact reform that results in greater accountability and
efficiency. New York is home to 36 sites covered under the Energy
Employees Occupational Illness Compensation Program. All are either
atomic weapons employer facilities, DOE facilities or Beryllium
vendors. Thousands of workers have labored in these plants over the
decades, yet none have received assistance under DOE's program in New
York.
Nationwide, DOE has set up only 10 resource centers to help their
former employees who have acquired work-related illnesses. However,
none of these facilities are in New York State. That may be one reason
why there has been a disproportionately low amount of applications
filed over the last 3 years from my home state.
It begs the question, why does New York State have no resource
centers used for outreach to former employees of DOE when we have the
most combined DOE and contractor facilities in the country? The closest
resource center is in Ohio. This is unacceptable.
New York was at the epicenter of the effort to develop the
country's nuclear weapons program and provide the deterrent that was
needed to keep the Soviets at bay during the Cold War. Workers across
my state, from Niagara and Buffalo to West Valley and Brookhaven, were
asked to devote themselves to this cause, with no regard to their
health or safety. Scores of people were exposed to toxic levels of
radiation and now have cancer.
To recognize their sacrifice, Congress passed a law to help these
people cover their medical bills and leave something to their families.
But the system has apparently failed to implement this law effectively.
In so doing, it has essentially turned its back on these unsung heroes
of the Cold War.
I have traveled to New York and met with these workers and the
United States government owes them their due in compensation.
When thousands of people apply to a program and the vast majority
are rejected, something is not right. The point of this program was to
say thank you to these people who sacrificed themselves in order to
protect America.
We now have the obligation to assist them in gaining compensation
for their sacrifice. It is my sincerest hope that this hearing will
serve as a means to creating a program that runs with greater
efficiency and accountability.
______
Prepared Statement of Hon. George V. Voinovich, U.S. Senator
From Ohio
Mr. Chairman, I would like to express my appreciation to you for
holding this hearing this morning to discuss the oversight of the
Energy Employees Occupational Illness Compensation Program Act
(EEOICPA).
Since the end of World War II, at facilities all across America,
tens of thousands of dedicated men and women in our civilian federal
and contract workforce helped keep our military fully supplied and our
nation fully prepared to face any threat from our adversaries around
the world by developing and building our nation's nuclear weapons
stockpile. The success of these workers in meeting this challenge is
measured in part with the end of the Cold War and the collapse of the
Soviet Union.
However, for many of these workers, their success came at a high
price. They sacrificed their health, and even their lives--in many
instances without knowing the risks they were facing--to preserve our
liberty. I believe these men and women have paid a high price for our
freedom, and in their time of need, this nation has a moral obligation
to provide some financial and medical assistance to these Cold War
veterans.
To meet that goal, I worked with a bipartisan group of my
colleagues three years ago to create a program that would provide
financial compensation to Department of Energy contract workers whose
impaired health has been caused by exposure to beryllium, radiation or
other hazardous substances. Our bill also provides that compensation be
paid to survivors of workers who have died and suffered from an illness
resulting from exposure to these substances.
Under EEOICPA, a federal program was created for workers suffering
from beryllium disease, silicosis or cancer due to radiation exposure
because of their work in out national security programs. Workers
suffering from illnesses due to other chemical exposures are to be
covered under state workers compensation programs. The Department of
Energy's Office of Workers' Compensation Advocate was to help employees
apply for compensation with their particular state's worker
compensation program.
The Department of Labor was assigned primary responsibility for
administering and adjudicating claims for compensation for cancer
caused by radiation, beryllium disease and certain other conditions
under Part B of the Act. Part B also tasked the National Institute of
Occupational Safety and Health with the responsibility to perform dose
reconstruction for claims of cancer caused by radiation.
Under Part D, the Department of Energy would assist claimants
filing for compensation through state worker compensation programs if a
physicians panel found an occupational illness caused by chemical or
other toxic exposure at a DOE site. Additionally, DOE was required to
instruct the DOE operating contractor involved not to contest the
validity of this claim.
The compromise package that was ultimately agreed to by Congress
and signed into law was not what I originally supported. In 2000, I
introduced S. 2519, which called for a federal program administered
entirely by the Department of Labor. During congressional negotiations
on the language authorizing EEOICPA, I agreed to this multi-agency
concept in order to reach a compromise creating the program.
I was skeptical of the capability of the Department of Energy to
administer this program because of their lack of experience in
administering worker compensation programs. Additionally, I was
concerned about the role of state Bureau's of Worker Compensation
outlined in Part D. As a former Governor, I was doubtful that a federal
program such as this would be able to work with each individual state
program.
Three years after enactment, the Department of Energy is
experiencing significant delays in developing claims. According to
information released publicly, while almost 21,000 claims have been
received by the Department, only 800 claims have been developed and 109
claims have been reviewed by the physicians panels and returned to DOE
and the claimant. While I recognize that it took time to develop and
publish the regulations, as long as there are delays in reviewing
claims, there will continue to be delays in compensating workers who
are entitled to this compensation.
I believe that today's hearing is an important step in
congressional oversight into this program. I am confident that this
hearing will lead to legislative improvements to the existing program.
I recently supported Senator Grassley's attempt to move
administration of Part D from the DOE to the DOL. DOL has significant
experience in administering worker compensation programs.
Unfortunately, that language was not included in the Energy and Water
Appropriations conference report which passed earlier this week.
Additionally, I believe that Congress must take action to address
the so-called willing payor issue. I understand that it will be
difficult for DOE to fulfill congressional intent in Ohio because there
is not a contractor in place at the sites in Ohio that can be compelled
to pay the claims. In response, the Ohio Bureau of Workers'
Compensation (OBWC) has submitted a proposal to the Department
suggesting that OBWC serve as a contractor for DOE in the absence of a
viable, self-insured employer contractor. Unfortunately, DOE determined
that they were unable to enter into such an agreement with a state
because of limitations in the law. It is imperative that Congress
consider creative solutions such as this to the willing payor problem
as we look at the administration of this program.
I am pleased that the Energy Committee is holding this hearing
today. I believe it is important for Congress to reconsider the role
DOE plays in administering EEOICPA. I also firmly believe that
legislative changes are necessary to address many of the problems my
constituents, and thousands like them nationwide, have experienced in
applying for compensation.
I look forward to working with my colleagues in the coming year to
address these short-comings in the original bill.
Thank you.
STATEMENT OF HON. CHARLES E. GRASSLEY, U.S. SENATOR
FROM IOWA
Senator Grassley. Thank you very much for holding this
oversight hearing. This is a first step, I hope, to resolving
the problems that you have described.
Congress passed the Energy Employees Occupational Illness
Compensation Act to provide benefits and compensation to
employees and contractors of the Energy Department who
developed cancer. Subtitle B of that act is administered by the
Department of Labor. It provides a lump sum payment to former
employees of certain illnesses. Subtitle D is administered by
the Department of Energy as opposed to the Department of Labor
in the other case. It is intended to help former employees and
contractors to file State worker compensation claims for
illnesses from this exposure.
The Federal Government's implementation of this program has
been an insult to the Americans who served our country working
at this ammunition plants for our military. These people worked
in ultra-hazardous facilities assembling nuclear deterrent
during the Cold War.
There are two facilities in my State of Iowa that are
covered by subtitle D. To date over 600 claims have been filed
by former employees of the Army plant located at Middletown,
Iowa. In Iowa these former ammunition plant workers may have
been made ill and some of them made terminally ill by exposure
to toxic substances. To the best of my knowledge, not one of
these 600 claims has been reviewed by a physicians panel at
Energy. Instead, Iowans who are sick and battling life-
threatening illnesses are left to wait and rely on what have so
far been empty promises from the Department.
The Federal Government has told these veterans of the Cold
War that help is on the way, but reality is that the prospects
of meaningful assistance from Energy does not appear any closer
today than it did the day that Congress passed the law. Let me
tell you why I say that. According to the information of the
Department of Energy, between August 2002 year when the
Department of Energy finalized its rules and April 2003 a mere
14, just 14, of 15,000 claims had been processed to the
physicians panel. In addition, in April 2003 the Department of
Energy had not even touched almost half the 15,000 claims
because fewer than 15 claims were being processed every week.
When I learned of this situation in April, I immediately
contacted Secretary Abraham. He said the goal was to be able to
render final determination on 100 claims per week by August
this year. 3 months later in July, I discovered that the
Department was processing fewer than 40 claims per week. What
is more, the Department of Energy had by now received almost
19,000 claims. Of these 19,000 claims, more than 10,000 of them
had never been touched and only 53 claims had made it to the
physicians panel.
So I asked more questions. In late July, Under Secretary
Bob Card told me that in order to reach the goal of processing
100 claims a week the Department of Energy would need another
$20 million on top of the current $16 million. I also learned
of a separate proposal within the Department of Energy to
expedite the processing of all the backlog claims by
reprogramming $43 million.
Now, this made sense to me until I saw that the Department
of Energy was still processing claims at an abysmally slow
rate. On September 15, the General Accounting Office released
findings from the investigation of the program. The findings of
the GAO were stunning even though they were, unfortunately, not
surprising. As of June 30, only 6 percent of the claims had
been completely processed, more than 50 percent were untouched.
On top of it all, the GAO said that increased funding alone
would probably not result in more timely determination. In
other words, more money was not the solution to the problem of
endless delays.
Clearly, the Department of Energy had a substandard
operation when it came to implementing this compensation
program. The people Congress wanted to help deserved so much
better than they got.
In response, I offered an amendment in September with your
colleague here Senator Murkowski co-sponsoring the amendment.
It would have transferred the responsibility for processing
claims under subtitle D from Energy to the Labor Department.
There were two main reasons for making this change. One, the
GAO had told us in its preliminary report that most of the
claims made to the Department of Energy had also made claims
with the Department of Labor. Two, the Department of Labor had
demonstrated its competence in processing claims for four other
such compensation programs.
There was strong bipartisan support in the Senate for the
bill that Senator Murkowski and I had written. We got letters
to the conferees on behalf of our amendment. Seven Senators
added their signatures. Those Senators were members of this
committee as well as others. Unfortunately, we were up against
opposition from the Department of Energy, its contractor, and
OMB. We could not overcome that opposition and our amendment
was knocked out in the conference report.
The only public statement of opposition made by the Office
of Management and Budget about the Grassley-Murkowski amendment
was a letter from the Director to the House Appropriations
Committee. In an October 16 letter, Director Bolton said: ``The
subtitle D program should work to help beneficiaries. The
provisions would create an unworkable and overly complex
administrative structure that may detract from the program's
service delivery.''
Now, remember at the time--remember that at this time the
Department of Energy has fully processed only 81 of the now
20,000 claims. The Department of Energy has not even started
working on more than 74 percent of the claims it has received.
The General Accounting Office is estimating that the Department
of Energy is going to need 7 years to work off the backlog. Yet
we have OMB expressing concern that our amendment would
``create an unworkable and overly complex administrative
structure that may detract from the program's service
delivery.'' Mr. Chairman, that is out of touch with reality.
I was not willing to give up and I asked the administration
to commit to a reasonable benchmark if it could not support the
Grassley-Murkowski amendment. Surely they could agree that the
Department of Energy needed to demonstrate that it could do a
better job. A letter from the OMB Director Bolton on November 6
stated that the Department of Energy had committed to the full
process--to fully process 25 percent or more of the existing
part D claims within 6 months of receiving funding for the
fiscal year.
So how high is a benchmark of 25 percent in 6 months? It is
snail's pace. It is an insult to the Americans who worked at
these plants. It is an insult to their family members who are
left behind. Processing 25 percent of the claims in 6 months is
about 156 per week. To clear the backlog, the Department of
Energy needs to process 288 claims a week. So I am not going to
applaud the Department of Energy's 6 months down the road
program because it manages to process just 25 percent of them.
I hope that the committee is beginning then to understand
the frustration that I have experienced and Senator Murkowski
has experienced with the Department of Energy's failure to take
responsibility for this abysmal performance. I will note that
it is not just my opinion or even the findings of the General
Accounting Office. The Department of Energy hired an
independent consultant, the Hays Group, to assess the
compensation program and to make recommendations for
improvement. The findings of the Hays Group further reinforced
the need to move claims processing from the Department of
Energy to the Department of Labor, as the Grassley-Murkowski
amendment sought to do.
Many of the nearly 50 recommendations in the draft Hays
report are what I call no-brainer recommendations. Overall, the
Hays report says this compensation program was set up all wrong
in the first place and it is too late to fix it, so now we have
to make do with some sort of a flawed system. The Hays report
says that the Department of Energy uses at least three
different computer systems to process claims, but those
computer systems do not talk to each other.
In addition, the Hays report debunks one of the myths used
to oppose the Grassley-Murkowski domestic. Some argued that my
amendment would not help the supposed backlog at the physicians
panel. The draft report found that only 60 of the 105 doctors
available for the physicians panel were working. I do not know
why you have a backlog when about half of the doctors do not
have to work to do it.
Finally, the report says ``When making recommendations for
the system, we cannot focus on a simply amplification of
resources in the existing process.'' The statement is
consultant-speak for, in my words, more money alone is not
going to fix the problem.
I have dedicated a majority of my time today to describe
what I believe are fundamental flaws in the Department of
Energy's ability to process claims efficiently and effectively.
Unfortunately, there are other problems. One of those is the
matter of a lack of a willing payor in many States, including
my State of Iowa. The lack of a willing payor likely will
prevent a significant number of eligible claimants ever
receiving compensation.
First, we need to get to the bottom of the problem created
by the bureaucratic maze at the Department of Energy. The
bottom line is that they are ill equipped to deal with this
compensation program. It has demonstrated that time and again.
I am willing to keep challenging bureaucrats, fighting for
amendments, and making the case to leaders who serve on this
committee as long as it takes. In the meantime, we have former
nuclear ammunition plant workers and their survivors who do not
have the help they are owed or even an answer of yes or no, and
that is not right.
Again, this hearing is an important step forward and I
thank you for having it.
[The prepared statement of Senator Grassley follows:]
Prepared Statement of Hon. Charles E. Grassley,
U.S. Senator From Iowa
Thank you for holding this oversight hearing and inviting my
testimony. Chairman Domenici and others on your committee have
expressed their commitment to resolving problems with the Energy
Employees Occupational Illness Compensation program. This hearing is a
first step. In addition to my testimony, I would like to respond to
questions that anyone on this committee has for me in writing.
Congress passed the Energy Employees Occupational Illness
Compensation Act of 2000 to provide benefits and compensation to
employees and contractors of the Department of Energy who developed
cancer and other illnesses after they were exposed to toxic substances
or radiation through their work. Subtitle B of that act is administered
by the Department of Labor. It provides a lump-sum payment to former
employees and contractors for certain illnesses.
Subtitle D is administered by the Department of Energy. It is
intended to help former employees and contractors to file state workers
compensation claims for illnesses that were caused by exposure to toxic
substances. The subject of today's hearing is Subtitle D and
mismanagement of it by the Department of Energy. The federal
government's implementation of this program has been an insult to the
Americans who served our country working the ammunition plants of the
U.S. military. These people worked in ultra-hazardous facilities
assembling our nation's nuclear deterrent during the Cold War.
There are two facilities in Iowa that are covered under Subtitle D
of the Act. There are many more in at least 15 other states across the
country. To date, over 600 claims have been filed by former employees
of the Army Ammunition Plant located in Middletown, Iowa. In Iowa,
these former ammunition plant workers may have been made ill--and some
of them made terminally ill--by exposure to toxic substances at the
plant. To the best of my knowledge, not one of these 600 claims has
been reviewed by a physician panel of the Department of Energy.
Instead, the Iowans who are sick and battling life-threatening
illnesses are left to wait and rely on what have so far been empty
promises from the Department of Energy.
The federal government has told these veterans of the Cold War that
help is on the way. But the reality is that the prospect of meaningful
assistance from the Department of Energy does not appear any closer
today that it did the day Congress passed the law.
Let me tell you why I say that. According to information from the
Department of Energy, between August 2002--when the Department of
Energy finalized its rule and April 2003, a mere 14 of 15,000 claims
had been processed to the physician panels. In addition, on April 1,
2003, the Department of Energy had not even touched almost half of the
15,000 claims because fewer than 15 claims were being processed every
week. At that rate, it would take about 20 years for the Department of
Energy to get through these claims. That's unacceptable.
When I learned of this situation in April, I immediately contacted
the Secretary of Energy. I wanted to let him know that the situation
had to be fixed and that I wanted to help fix it. Secretary Abraham
expressed his support for the program and his commitment to fully
implement the law in a way that was both efficient and effective. He
also said that the Department of Energy had made progress in developing
a system to gather information and process applications. He said the
goal was to be able to render final determinations on 100 claims per
week by August 2003.
Three months later, in July, I discovered that the Department of
Energy was processing fewer than 40 claims a week. What's more, the
Department of Energy had by now received almost 19,000 claims
altogether. Of these 19,000 claims, more than 10,000 of them had never
been touched. And, only 53 claims had made it to the physician panels.
So I asked more questions. In late July, Energy Under-Secretary Bob
Card told me that in order to reach the goal of processing 100 claims a
week, the Department of Energy would need another $20 million on top of
its current budget of $16 million. I also learned of a separate
proposal within the Department of Energy to expedite the processing of
all the backlogged claims by re-programming $43 million. This proposal
said that by using $16 million in fiscal year 2004 funds plus $43
million in reprogrammed funds, the Department of Energy could clear
every claim in one year. Now this made sense to me until I saw that the
Department of Energy was still processing claims at an abysmally slow
rate.
On September 15, the independent General Accounting Office released
preliminary findings from its investigation of the program. Subtitle D
required that the General Accounting Office assess the effectiveness of
the benefit program. I had also asked the General Accounting Office to
look at the program and the Department of Energy's performance. The
findings of the General Accounting Office were stunning even though
they were unfortunately not surprising. As of June 30, only six percent
of claims had been completely processed. More than 50 percent were
untouched. More than 90 percent of claims filed after September 2002
remain untouched.
On top of it all, the General Accounting Office said that increased
funding alone would probably not result in more timely determination.
In other words, more money was not the solution to the problem of
endless delays.
Clearly, the Department of Energy had a sub-standard operation when
it came to implementing this important compensation program. The people
Congress wanted to help deserved so much better.
In response, I offered an amendment in September to the Energy and
Water appropriations bill. Sen. Lisa Murkowski co-sponsored this
amendment. It would have transferred the responsibility for processing
claims under Subtitle D from the Department of Energy to the Department
of Labor. There were two main reasons to make this change. One, the
General Accounting Office had told us in its preliminary report that
most of the claims made to the Department of Energy had also made
claims with the Department of Labor. Two, the Department of Labor had
demonstrated its competence in processing claims for four other such
compensation programs. For example, under Subtitle B of the Energy
Employees Occupational Illness Compensation program, the Department of
Labor has closed more than 94 percent of the 35,000 cases filed.
The Grassley-Murkowski amendment was accepted by the two managers
of the appropriations bill. They agreed to both authorize and fund the
Department of Labor to administer Subtitle D. They agreed that the
Department of Energy should transfer every record to the Department of
Labor. The Senate voted on the bill and we continued to fine tune the
amendment so that there would be no delay in transferring these
responsibilities. We worked hard to accommodate the technical
recommendations made by officials from the Department of Labor. We
wanted to make sure the amendment was just right.
By this time, there was strong bipartisan support in the Senate for
making this transfer. Sen. Murkowski and I wrote a letter to conferees
on behalf of our amendment, and seven senators added their signatures
to our letter. Those senators were Sens. Voinovich, Bunning, Bingaman,
Cantwell, DeWine, Kennedy and Hollings. I ask that our letter be placed
in the committee record.*
---------------------------------------------------------------------------
* The letter has been retained in committee files.
---------------------------------------------------------------------------
Unfortunately, we were up against opposition from the Department of
Energy, its contractor and the Office of Management and Budget. We
could not overcome that opposition, and our amendment was knocked out
of the conference report.
The only public statement of opposition made by the Office of
Management and Budget about the Grassley-Murkowski amendment was a
letter from the director to the House Appropriations Committee
Chairman. In an October 16 letter, Director Bolton said that the
administration would object strongly if our amendment was included in
the final bill. His letter said, ``The Subtitle D program should work
to help beneficiaries, but the provision would create an unworkable and
overly complex administrative structure that may detract from the
program's service delivery.''
Now, remember that at this time the Department of Energy has fully
processed only 81 of the now 20,000. The Department of Energy hasn't
even started what it calls claims development on more than 74 percent
of the claims it had received. The General Accounting Office is
estimating that the Department of Energy is going to need seven years
to work off the backlog. Yet, we have the Office of Management and
Budget expressing concern that our amendment would ``create an
unworkable and overly complex administrative structure that may detract
from the program's service delivery.'' Mr. Chairman, that is out of
touch with reality.
I wasn't willing to give up, and I asked the administration to
commit to a reasonable benchmark if it could not support the Grassley-
Murkowski amendment. Surely they could agree that the Department of
Energy needed to demonstrate that it could do a better job. I got a
response on November 6 in a letter from the Office of Management and
Budget. Director Bolten wrote that the Department of Energy had
committed to fully process 25 percent or more of the existing Part D
claims within six months of receiving funding for fiscal year 2004.
Now, keep in mind that the Department of Energy had said in July
that its goal was to process all 15,000 backlogged claims in one year
by reprogramming $43 million. Congress had already approved $9.7
million and is likely to approve the remaining $33 million request when
it's received. At this rate, one might expect the Department of Energy
to process all claims in one year.
So, how high is a benchmark of 25 percent in six months? It's a
snail's pace. It's an insult to the Americans who worked in these
plants. It's an insult to their family members who are left behind.
Processing 25 percent of claims in six months is about 156 claims a
week. To clear the backlog, the Department of Energy needs to process
288 claims a week. So, I'm not going to applaud the Department of
Energy six months down the road because it manages to process 25
percent of the claims. Instead, I'm going to ask the Department of
Energy how it intends to process an average of 469 claims a week during
the next six months to clear the backlog within its own time line.
I hope that the committee is beginning to understand the
frustration I've experienced with the Department of Energy's failure to
take responsibility for its abysmal performance. I'll note that it' not
just my opinion or even the findings of the General Accounting Office.
The Department of Energy hired an independent consultant, the Hays
Group, to assess this compensation program and make recommendations for
improvements. The findings of the Hays Group further reinforce the need
to move claims processing from the Department of Energy to the
Department of Labor, as the Grassley-Murkowski amendment sought to do.
Many of the nearly 50 recommendations in the draft Hays report are
what I call no-brainer recommendations. It's fair to ask why the
Department of Energy and its contractor haven't been doing these things
from the beginning.
Overall, the Hays report says this compensation program was set up
all wrong in the first place, but it's too late to fix it, so now we
have to make do with a flawed system. The Hays report says that the
Department of Energy uses at least three different computer systems to
process claims, but those computer systems don't talk with each other.
Does that make any sense?
In addition, the Hayes Report debunks one of the myths used to
oppose the Grassley-Murkowski amendment to move responsibility for
processing claims to the Labor Department. Some argued that my
amendment would not help the supposed backlog at the physician panels.
Well, first, my amendment moved those panels to the Labor Department
where they would be managed better. More importantly, the draft report
found that only 60 of the 105 doctors available for the physician
panels were working. I don't know why you have a backlog when about
half the doctors don't have work to do.
Finally, the report states, ``when making recommendations for the
system, we can't focus on a simple amplification of resources in the
existing process.'' That statement is consultant-speak for ``more money
alone is not going to fix the problem.''
I've dedicated a majority of my time today to describe what I
believe are the fundamental flaws in the Department of Energy's ability
to process claims both efficiently and effectively. Unfortunately,
there are other problems with this compensation program. One of those
is the matter of a lack of a ``willing payor'' in many states,
including Iowa. The lack of a ``willing payor'' likely will prevent a
significant number of eligible claimants from ever receiving
compensation.
But first we need to get to the bottom of the problem created by
the bureaucratic maze that the Department of Energy has created. The
bottom line is that the Department of Energy is ill-equipped to deal
with this compensation program. It has demonstrated that reality time
and again. I'm willing to keep challenging bureaucrats, fighting for
amendments and making the case to the leaders who serve on this
committee as long as it takes. But in the meantime, we have former
nuclear ammunition plant workers and their survivors who don't have the
help their owed or even an answer yes or no. That's not right.
Again, this hearing is an important step forward. The expert
witnesses you've assembled will provide important testimony. I look
forward to continuing to work with you and with the administration to
fix this program. Thank you for the opportunity to testify today.
Senator Bunning. Thank you, Chairman Grassley. We
appreciate your testimony.
Senator Grassley. Thank you very much.
Senator Bunning. Now we will finish with our opening
statements. Senator Murkowski, do you have an opening statement
that you would like to present?
Senator Murkowski. I do.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I appreciate
you holding the hearing this morning.
I would like to thank Chairman Domenici and certainly
Senator Grassley for all of his hard work on this. As the
chairman undoubtedly knows from my contacts with him and from
numerous discussions between staff, this is a very important
issue to me and to many Alaskans, and it was for this reason
that I very willingly have been working with Senator Grassley
to co-sponsor this Grassley-Murkowski amendment.
This amendment is intended to address one of the two major
failures in the implementation of the Energy Employees
Occupational Illness Compensation Act. That is the extremely
slow pace of processing by the Department of Energy of claims
filed under subtitle D of that act. If we are not able to pass
the Grassley-Murkowski amendment this session, I expect that we
will return to this issue certainly in January.
The other critical problem with the act, one which we must
also address and Senator Grassley mentioned at the end of his
comments, is this willing payor issue. We must make sure that
claimants found eligible for benefits are promptly compensated.
Currently we have Alaskans who are found eligible for
compensation, they are finding that their claims are being
aggressively contested by attorneys for the insurance companies
of the DOE's Amchitka contractors.
When we look at who these Alaskan claimants are, they are
older widows of Amchitka workers or seriously ill former
workers. They are facing countless hours of depositions,
prehearings, document requests, and other litigation tactics.
In many cases we have had Alaskans dying while waiting for
their claims to be resolved. Essentially, they are being
litigated to death, which is absolutely unacceptable, just
unacceptable.
Now, Mr. Chairman, Senator Grassley spoke as well as you
did about some of just the cold hard numbers that are involved
here, the number of claims that have been submitted versus the
number of claims that have actually been processed. When we
look at the numbers and the statistics, they are not
acceptable. They do not work.
But rather then reiterating some of the facts that you have
mentioned and that have been mentioned by Senator Grassley, I
want to put on the record this morning a more personal set of
facts. I want to read some excerpts quickly from one survivor
of a nuclear worker from Alaska. This is a woman by the name of
Sylvia Carlson. Mrs. Carlson's husband was a mineshaft worker
on the Project Canakin at the Amchitka nuclear test site in
1970-71. He was exposed to ionizing radiation in the course of
his employment for a prime contractor of the Atomic Energy
Commission. He was 32 years old at the time of his exposure. He
died before his 41st birthday in 1979 of colon cancer.
Mrs. Carlson filed a Congress for workers comp under the
Alaska Workers Comp Act, as suggested by DOE. I am going to
quote from her statement, which I will ask the chairman to
include in the record for this hearing. I will also ask the
chairman to include a similar statement from Bev Ellick, who is
another widow of an Amchitka worker.
Mrs. Carlson says this:
I was assured by DOE that the contractor would be notified
and asked to accept primary liability for my claim and would
also be asked not to raise any affirmative defenses in my case.
The exact opposite of DOE's letter and determination occurred.
My workers compensation claim is being aggressively opposed by
two different attorneys representing two different insurance
carriers, the contractor and adjusters.
I requested information from DOE Secretary Abraham about
DOE's not contacting the contractor. I did not receive an
answer to my inquiry. I was informed 6 months after my inquiry
via e-mail from Tom Rello, Director, Office of Worker Advocacy,
that his office would not be able to give further assistance.
In the meantime, I have spent countless hours in
depositions, prehearings, conferences, and meetings in defense
of my workers compensation claim. I have also had to meet
demands from opposing counsel for volumes of documents, which
has imposed a financial burden on me. If the Alaska Workers
Compensation Board rules in my favor, I have been assured that
the opposing attorneys fully intend to appeal the decision to
Alaska's Supreme Court, thus tieing up my claim for at least 2
to 4 years.
This has been the experience of an Alaska widow of a
nuclear test facility worker. Her claim--Mrs. Carlson was found
eligible for compensation. Her husband's illness and death was
determined to have resulted from his work at Amchitka. This
kind of treatment was not what Congress had contemplated for
survivors when it passed the act.
Mrs. Carlson further goes on to state:
Since January 2003, nine former Amchitka workers have died,
all of cancer, and none to my knowledge have received benefits
under subtitle D. The tragedy is that many more will follow. I
am aware of at least 150 claimants who are awaiting responses
from DOE. Opposing attorneys are not even waiting for those
claimants to receive a physicians panel determination. A number
of Amchitka claimants have been receiving demands for medical
records, for social security records, for other information,
and many of those claimants are very ill and unable to respond.
Over 90 days ago, seven Amchitka claimants were told by DOE
that they would be receiving their physicians panel
determinations within a few days. Since then DOE has told each
a different story, i.e., the physician doing the determination
is ill, the physician reviewing your case died, the person
handling your case went on vacation, and we cannot find your
records.
I would like to reiterate that nearly all the Amchitka
claimants are ill with cancer, many unable to even make
inquiries about the status of their claims, and all are being
completely stressed by the tactics used by the opposing
attorneys.
Mrs. Carlson concludes her statement by contrasting DOE's
claims processing with that of Department of Labor and she
says:
In direct contrast to DOE's lack of performance under the
act, the Department of Labor has managed its obligations under
subtitle B with professionalism, sensitivity, and rapid
response. For example, the Department of Labor became aware
that Amchitka workers were experiencing problems with the
medical cards it had issued to some of the claimants. DOL sent
two of its staffers to Anchorage to resolve the problem.
In addition, when the DOL Director was informed that
opposing attorneys in my case were raising affirmative defenses
that involved subtitle D payments, he offered to send his legal
counsel to Anchorage for the hearing. The law is quite clear
that subtitle B payments are not considered offsets. However,
opposing attorneys in my case are pressing the issue.
DOL representatives have not only been responsive to
claimants, but, unlike DOE representatives, they have been
honest and willing to assist wherever they can. Had DOL been
given the responsibility for implementing the act, including
processing of claims and resolving the willing payor issue, we
would not be talking about the problems right now.
Mr. Chairman, I do have a full text of my comments which I
would like to have submitted for the record, as well as the
full statement of Mrs. Carlson and Mrs. Bev Ellick.
When we talk about the statistics, which are very, very
compelling, we also need to recognize that behind each
statistic is somebody who is trying to get their claim
processed and to get on with their life, and that is what this
legislation needs to do.
Thank you, Mr. Chairman.
[The prepared statement of Senator Murkowski follows:]
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator From Alaska
I'd like to thank Chairman Dominici for holding this hearing today
on the implementation of the Energy Employees Occupational Illnesses
Compensation Program Act. As the Chairman undoubtedly knows from my
contacts with him and from the numerous discussions between our staffs,
this is a very important issue to me and to many Alaskans. In fact, the
importance of this issue led me to co-sponsor the Grassley-Murkowski
amendment. The Grassley-Murkowski amendment is intended to address one
of the two major failures in the implementation of the Energy Employees
Compensation Act; that is, the extremely slow pace of processing by the
Department of Energy of claims filed under Subpart D of that Act. If we
are unable to pass Grassley-Murkowski this session, I expect we will
address this issue when we return in January.
The other critical problem with the Act--one which we must also
address--is the so-called ``willing payor'' issue. That is, we must
make sure that claimants found eligible for benefits are promptly
compensated. Currently, Alaskans who are found eligible for
compensation are finding their claims aggressively contested by
attorneys for the insurance companies of the DOE's Amchitka
contractors. And who are these Alaskan claimants? In many cases these
are older widows of Amchitka workers or seriously ill former workers
who are facing countless hours of depositions, prehearings, document
requests and other litigation tactics by well financed insurance
defense counsel. In a number of instances, Alaskans have died while
waiting for their claims to be resolved. They are quite literally being
litigated to death. This is simply unacceptable. Let me repeat--this is
unacceptable.
Mr. Chairman, as you know, we recently spent many days in this room
debating various provisions of the Energy bill. We talked about the
repeal of the Public Utility Holding Company Act and changes to certain
provisions of the Public Utility Regulatory Policies Act. We discussed
standard market design, RTOs, participant funding and--protecting
native load. These are complex issues. Often, detailed economic theorem
and modeling are helpful in understanding these matters. Indeed, we
heard credible, persuasive and often opposing arguments on both sides
of these issues.
Mr. Chairman, the Energy Employees Act is not complex. The facts
concerning its implementation are not convoluted. Economic modeling is
not necessary to understand what must be done. It is simply a matter of
what is right. Alaskans--and citizens of many other states in our
nation worked in nuclear facilities owned by the federal government in
past decades. Their efforts helped America win the Cold War. Many of
them have become ill and many have died as a result of their work in
these facilities. Our nation owes them a debt of gratitude.
Congress clearly recognized this when it passed the Energy
Employees Occupational Illness Compensation Program Act. Sadly, the
implementation of a portion of that Act--Subpart D--has not been
consistent with what is right and what Congress intended when it passed
the Act. These workers and their survivors are entitled to far better
treatment then many of them have endured.
Mr. Chairman, I generally don't like to talk about cold, hard
numbers; particularly when we have an issue that has had such a
devastating personal impact on so many Alaskans and other Americans.
However, I believe that briefly discussing some cold, hard facts will
help my colleagues understand why this issue is so important to me and
why I co-sponsored the Grassley-Murkowski amendment.
The Energy Employees Occupational Illnesses Compensation
Program Act was passed in 2000. The Department of Labor
implements Subpart B of the program and the Department of
Energy implements Subpart D.
In March 2003, DOE committed to the House Energy & Commerce
Committee that it would be processing 100 claims per week by
August 2003.
As of October 10, 2003, DOE had sent only a total of 81
claims, that is less than 4/10ths of one percent, through its
physicians panels for a final determination out of over 20,000
claims DOE has received--while spending around $15 million on
the program.
DOE has not even commenced claims development on more than
74%--over 15,000, of the claims it has received.
The GAO estimates DOE will need 7 years to work off its
backlog.
Conversely, the Department of Labor has completed processing
work on almost 95% of the approximately 35,000 cases filed
under Subpart B.
I recognize that the DOE just issued a press release saying they
processed 106 claims last week and assigned responsibility for this
program to Undersecretary Card. While this is encouraging, it is only
one week's total. Even if the DOE is able to continue at this rate, it
will still take them almost 4 years to complete their current backlog
of claims.
Enough cold, hard facts. Let me tell you about one survivor of a
nuclear worker from Alaska. Her name is Sylvia Carlsson. Ms. Carlsson's
husband was a mine shaft worker on the Project Cannikin at the Amchitka
nuclear test site in 1970 and 1971. He was exposed to ionizing
radiation in the course of his employment for a prime contractor of the
Atomic Energy Commission. He was 32 years old at the time of his
exposure. He died before his 41st birthday in 1979 of colon cancer. Ms.
Carlsson filed a claim for workers compensation under the Alaska
Workers Compensation Act as suggested by DOE. Let me quote from her
statement which I will ask the Chairman to include in the record of
this hearing. I will also ask the Chairman to include a similar
statement from Bev Aleck, another widow of an Amchitka worker. Ms.
Carlsson states:
I was assured [by DOE] that the contractor would be notified
and asked to accept primary liability for my claim and would
also be asked not to raise any affirmative defenses in my case.
The exact opposite of DOE's letter and determination occurred.
My workers compensation claim is being aggressively opposed by
two different attorneys representing two different insurance
carriers, the contractor and adjusters. I requested information
from DOE Secretary Abraham about DOE's not contacting the
contractor. I did not receive an answer to my inquiry. I was
informed six months after my inquiry via e-mail from Tom
Rollow, Director, Office of Worker Advocacy that his office
would not be able to give further assistance.
Ms. Carlsson continues:
In the meantime, I have spent countless hours in depositions,
prehearings conferences and meetings in defense of my workers
compensation claim. I have also had to meet demands from
opposing counsel for volumes of documents which have imposed a
financial burden on me. . . . If the Alaska Workers
Compensation Board rules in my favor, I have been assured that
the opposing attorneys fully intend to appeal the decision to
Alaska's Supreme Court, thus tying up my claim for at least two
to four years.
This has been the experience of an Alaskan widow of a nuclear test
facility worker. Please remember, Ms. Carlsson was found eligible for
compensation under the Energy Employees Compensation Act. Her husband's
illness and death was determined to have resulted from his work at
Amchitka. This was not the treatment Congress contemplated for
survivors when it passed the Act.
Ms. Carlsson also discusses another issue important to this today's
hearing. Her statement helps explains why I co-sponsored the Grassley-
Murkowski amendment. As Ms. Carlsson states:
Since January 2003, nine former Amchitka workers have died,
all of cancer and none to my knowledge having received benefits
under Subtitle D of the EEOICPA. The tragedy is that many more
will follow. I am aware of at least 150 claimants who are
awaiting responses from DOE. Opposing attorneys are not even
waiting for those claimants to receive a Physician's Panel
Determination. A number of Amchitka claimants have been
receiving demands for medical records, for social security
records, for other information and many of those claimants are
very ill and unable to respond.
Over 90 days ago, seven Amchitka claimants were told by DOE
that they would be receiving their Physician Panel
Determinations within a few days. Since then, DOE has told each
a different story, i.e., the physician doing the determination
is ill; the physician reviewing your case died; the person
handling your case went on vacation and we can't find your
records. I would like to reiterate that nearly all the Amchitka
claimants are ill with cancer, many unable to even make
inquiries about the status of their claims and all are becoming
completely stressed by the tactics used by the opposing
attorneys.
Ms. Carlsson concludes her statement contrasting DOE's claim's
processing with that of Department of Labor:
In direct contrast to DOE's lack of performance under the
EEOICPA, the Department of Labor has managed its obligations
under Subtitle B with professionalism, sensitivity and rapid
response. For example, the Department of Labor became aware
that Amchitka workers were experiencing problems with the
medical cards it had issued to some of the claimants. DOL sent
two of its staffers to Anchorage to resolve the problems.
In addition, when the DOL Director was informed that opposing
attorneys in my case were raising affirmative defenses that
involved Subtitle B payments, he offered to send his legal
counsel to Anchorage for the hearing. The law is quite clear
that Subtitle B payments are not considered offsets; however,
opposing attorneys in my case are pressing the issue. DOL
representatives have not only been responsive to claimants, but
unlike DOE representatives, they have been honest and willing
to assist wherever they can. Had DOL been given the
responsibility for implementing the EEOICPA including
processing of claims and resolving the Willing Payer issue, we
would not be talking about the problems right now.
Mr. Chairman, as I said at the beginning of my statement, I
appreciate your holding this hearing. I look forward to hearing the
witnesses testimony. However, after the hearing it is time for prompt
action. We must address both the claims processing and the willing
payor issues. The workers and their survivors deserve no less.
Senator Bunning. Without objection, your full statement
will be put into the record.
I would like to suggest that anyone who has a cell phone on
either turn it off or leave the hearing, because we do not
appreciate them going off and being answered during a hearing.
Senator Talent, you are up.
STATEMENT OF HON. JAMES M. TALENT, U.S. SENATOR
FROM MISSOURI
Senator Talent. Mr. Chairman, I had an opening statement
prepared, but unfortunately it simply recounts a lot of the
same facts and statistics with regard to Missouri people as we
have already heard from Senator Grassley and Senator Murkowski,
and I am not going to take the time of the subcommittee by
doing that. I will just sum it up by saying in Missouri we have
had 520 claims filed, some of them from people who were exposed
to radiation of up to 2,400 times what would be considered
acceptable today. 14 of those claims have been completed, which
is at the 3 percent level. That is lower even than the national
average.
You know, the only thing I can say, Mr. Chairman, it
reminds me of the situation that we used to have with the
Department of Veterans Affairs when we had such a long backlog
in processing disability claims by veterans with service-
connected disabilities, and the rather dark joke in the
veterans community was what they were doing was spinning out
the claims long enough, hoping that all the claimants would die
and then they would not have to pay anything.
Now, Secretary Principi has done a great job of reducing
that backlog at Veterans Affairs. I am hopeful of seeing the
same kind of response and vigor in the Department of Energy in
response to this problem, which obviously exists and which we
are all talking about.
I would just like to ask unanimous consent that my full
statement be put in the record, Mr. Chairman, along with an
article from the St. Louis Post-Dispatch about the situation
for former employees of the Mallinkrodt Chemical Company.
[The prepared statement of Senator Talent follows:]
Prepared Statement of Hon. James M. Talent, U.S. Senator From Missouri
Mr. Chairman: .Thank you for holding a much-needed hearing
on the Department's E-E-O-I-C-P. This is an issue of great
importance to me because it affects so many Missourians. In
Missouri, 520 claims have been filed. Only 14 have been
completed. In two years, only 14 have been completed.
I have real concerns regarding the pace at which the
Department of Energy (DOE), Department of Labor (DOL), and the
National Institute for Occupational Safety and Health (NIOSH)
are processing these claims.
Over the past few months, I have received many complaints
from former workers at Mallinckrodt Chemical Co. in St. Louis
who received doses of radiation up to 2,400 times those
considered acceptable today. These workers were exposed, in
most instances unknowingly, to dangerous levels of radiation.
Many of those who eventually developed cancer have already died
before they could be compensated for their illness.
I have a recent article from the St. Louis Post-Dispatch
that outlines the lax safety precautions at the plant. I would
like to submit this for the record.
When this legislation passed, it was a great victory for
these workers. However, government bureaucracy and red tape are
preventing these individuals from obtaining the compensation
that, without question, they deserve. There is no reason why,
after two years, only 14 of 520 claims have been completed in
Missouri. There is no reason why only six percent have been
completed nationally. I recognize that many of these claims
require some measure of research to verify or deny a worker's
claim, but when less than three percent of the claims filed in
my state have been completed in two years, that is inexcusable.
The Department's record here, tragically, reminds me of the
backlog on disability claims filed by veterans to the
Department of Veterans Affairs. The backlog prior to Sec.
Principi's tenure was so bad that the dark joke among older
veterans was that the Department was waiting them out, hoping
they would pass away before the claims process, which
oftentimes ran on for years, was completed. We must ensure that
situation does not occur here.
I look forward to the testimony today and I look forward to
continuing to monitor this important issue.
St. Louis Post-Dispatch, October 30, 2003
Cold War-era nuclear workers at Mallinckrodt Chemical Co.
in St. Louis received doses of radiation up to 2,400 times
those considered acceptable today, according to an
unprecedented government report.
As high as that level is, incomplete data means that actual
exposure levels at the defunct nuclear fuel facility north of
downtown may have been even worse.
Dusty, sloppy and hazardous conditions were routine at
Mallinckrodt's uranium-processing plant, which operated from
1942 to 1957, according to a report presented at a meeting in
St. Louis on Wednesday. One section describes a worker scooping
uranium by hand with a piece of cardboard because mechanized
equipment had failed.
``I would characterize this as a pretty messy operation,''
said Jim Neton, a health physicist with the National Institute
for Occupational Safety and Health, which ordered the report as
part of a federal nuclear workers' compensation program.
No more detailed collection of data about radiation
exposure at the site has ever been produced. The 125-page
document will help determine whether hundreds of sick, aging
Mallinckrodt workers, some of whom are still living in Missouri
and Illinois, are eligible for $150,000 payments under the
program.
Radiation has been linked to many types of cancer, even
years after exposure. Despite the level of detail in the
report, worker advocates and some officials said Wednesday that
the report missed key information that could have revealed even
more dangerous conditions.
A contractor relied on company data and government
documents to create the report, but did not interview thousands
of former workers or their survivors. Some workers claim their
employer covered up accidents and fudged radiation tests.
Additionally, the report acknowledges that workers were not
monitored for radiation exposure at all in the first three
years the plant was open, from 1942 to 1945. Only sketchy data
exists for the next two years, until a full-scale health
program was implemented in 1948.
Worker interviews should be factored into site profiles, an
advisory panel overseeing the workers' compensation program
said Wednesday. The Advisory Board on Radiation and Worker
Health voted to ask NIOSH to develop a process for soliciting
worker input before the profiles are released.
Failing to interview workers for the, reports ``seriously
undermines the credibility'' of the workers' compensation
program, said board member Dr. James Melius, director of the
New York State Laborers Health and Safety Trust Fund.
The occupational safety institute already has released four
site profiles and has 15 more pending. About 350 former nuclear
sites nationwide are part of the compensation program,
including eight other sites in the St. Louis region.
``The goal is to put these (site profiles) out as quickly
as possible,'' said Larry Elliott, director of the Office of
Compensation Analysis and Support within NIOSH. The sooner the
site profiles are completed, the sooner claimants can get paid,
he said.
Elliott called the site profile a ``living document'' and
said that public comments are welcome.
Dolores Stuckenschneider, 68, of Ballwin, is one of the ex-
workers who doesn't trust data collected by Mallinckrodt and
the government. Stuckenschneider worked for nine years as a
clerk at Mallinckrodt's downtown plant and at a plant at Weldon
Spring. She was diagnosed with breast cancer in 1985.
According to the site profile, clerks like Stuckenschneider
were assumed to work in an office and spend ``some time'' in
the uranium production area. That description may not account
for the polluted air and dust that Stuckenschneider said she
encountered daily. ``Every day, we had dust half an inch thick
on our desks we had to clean off,'' she said at the meeting.
The plant was ``as dusty as the dickens, and all we had was
dust masks,'' said Bob Leach, a former worker who also lives in
Ballwin. Leach said federal officials couldn't possibly create
accurate exposure estimates.
James Mitulski of Farmington, Mo., said his father, Jim
Mitulski, was told to shower repeatedly in order to bring his
radiation reading down to an acceptable level. Only when his
father was ``clean'' would company officials record an official
radiation reading, the younger Mitulski said.
``You're not going to get a valid assessment of what was
going on until you talk to the men,'' James Mitulski said.
The report considered 20,000 radiation film badge readings,
40,000 urine sample results and radon breath tests. Data could
not be found for every worker, but federal officials say they
can re-create exposure estimates by comparing data from workers
in similar jobs, or by extrapolating data gathered at another
time.
Senator Bunning. Without objection.
Senator Alexander.
STATEMENT OF HON. LAMAR ALEXANDER, U.S. SENATOR
FROM TENNESSEE
Senator Alexander. Thanks, Mr. Chairman. Thanks for having
the hearing and thanks for your leadership and that of Senators
Grassley and Murkowski on this issue.
Early in World War II, President Roosevelt called Senator
Kenneth B. McKeller of Tennessee down to the White House. He
was chairman of the Appropriations Committee. He said: Mr.
Chairman, we need to hide a billion dollars in the budget for a
project that will win the war. Chairman McKeller, Senator
McKeller, said to the President: That would be no problem, Mr.
President; just where in Tennessee will this project be?
It turned out that that is how Oak Ridge, Tennessee, got
started. Thousands of men and women who have worked at Oak
Ridge during World War II today have always felt part of our
national security system. They did help win the war with the
Manhattan Project and they continue to be an important part of
our national security system.
Many of them have described themselves as Cold War
veterans. There are 3,700 Cold War veterans from Oak Ridge who
are sick and who are getting the run-around from the Department
of Energy, and it needs to stop. We have heard eloquent
testimony already today, but just to put by comparisons the
programs as they affect Tennesseans: In Tennessee there have
been 3,762 claims filed with the Department of Energy, 7,208
claims filed with the Department of Labor. In the Department of
Energy there are now 12 final decisions. In the Department of
Labor there are 3,200 final decisions.
In the Department of Energy, of the Tennesseans who filed
claims 104 cases are completed, 74 were deemed ineligible.
Department of Labor, 305 recommended decisions. Department of
Energy, no payments; Department of Labor, 1,506 payments
totaling $171 million.
I would like to ask to put into the record letters from two
of those workers, Jeanine L. Anderson of Maryville, Tennessee,
my home town, Harry Lee Williams of Oak Ridge, Tennessee, and
to read just a paragraph or so from Ms. Anderson's letter is
especially touching. She said she in 1978--``I began my
employment as an administrative assistant at K-25, Oak Ridge
Gaseous Diffusion Plant at Oak Ridge, Tennessee. It was always
assumed that it was safe to work at Oak Ridge, that we knew
what we were doing there.'' It turned out we did not when it
comes to the safety of the men and women who were working
there.
She lists various problems she has had as her health has
deteriorated over time. She points out that she filed a claim 2
years ago and that she received her first response from the
Department of Energy Office of Worker Advocacy 2 months ago.
Her last paragraph says:
``My days are still filled with doctor appointments,
medical testing, and physical therapy. I, like thousands of
other nuclear workers, have become totally discouraged with the
way the Department of Energy has handled their
responsibilities. There has been a total disregard for these
sick Cold War veterans who gave so much for their country and
have received nothing but mere excuses from the Department of
Energy as to why they have not helped yet, why their claims
have been denied, or why DOE needs more funding and more time
to handle these claims.''
Mr. Chairman, this is a serious matter for a great many
Tennesseans and a great many Americans. We should be treating
our Cold War veterans with the same respect that they have
treated our country and their employment.
Thank you.
Senator Bunning. Would you like that all entered into the
record?
Senator Alexander. If this letter, the letter from Ms.
Anderson, and the letter from Mr. Williams could be entered in
the record.
Senator Bunning. Without objection, so ordered.
Senator Alexander. Thank you, Mr. Chairman.
Senator Bunning. We will have the Honorable Robert G. Card,
Under Secretary, Department of Energy, as the next panel.
Mr. Card, you may begin at any time.
STATEMENT OF ROBERT G. CARD, UNDER SECRETARY, DEPARTMENT OF
ENERGY, ACCOMPANIED BY BEVERLY COOK, ASSISTANT SECRETARY FOR
ENVIRONMENT, SAFETY AND HEALTH
Mr. Card. Mr. Chairman, if it is all right with you I would
like to have Assistant Secretary Cook, who will not be giving
oral testimony, but will be here in case there are questions.
Senator Bunning. There will be plenty of questions, so she
can assist you at any time.
Mr. Card. Good morning, Mr. Chairman and members of the
committee. My name is Robert Card and I am the Under Secretary
for the U.S. Department of Energy. I want to thank the
committee for their interest in this important program, the
Energy Employees Occupational Illness Compensation Program Act
of 2003, and for providing the Department the opportunity to
discuss our progress and challenges in implementing it.
I would like to make the following summary points from my
written testimony that was submitted for the record. First,
while significant improvements have been made in the program,
DOE did not respond as quickly as it should have to the
explosive growth in the number of claims filed. We now have met
our initial improvement target of 100 claims per week, but that
will be inadequate to deal with the near tripling of claims
volume estimates made just 2 years ago, which was in turn
higher than that contemplated in the legislation.
I think, to respond to many of the comments made this
morning, what is important is the--actually, what I am going to
do is--second, DOE is committed to make up the gap. However, it
will need the help of this committee and Congress to do so. We
will soon be seeking more than $30 million in additional fiscal
year 2004 funding and we are reviewing legislative improvements
that could substantially expedite the processing rate----
Senator Bunning. Mr. Card, would you please move the
microphone a little closer to you. Thank you.
Mr. Card. Thank you.
We note that, while the Department of Labor has done a
commendable job of claims processing, its administrative
funding has been nearly four times that of DOE. We intend to
reduce this funding gap to dramatically expedite claims
processing.
Third, DOE will exercise all options within its control to
improve flow through the physicians panels, which have become
the bottleneck now that we have improved our claims processing
rate. An example of this would be to require only one or two
physicians to initially review each case. Cases with initial
negative determinations would still have access to all three
physicians. Other examples have been provided in my written
testimony.
Fourth, we need to work together with the Congress to do a
better job of communicating what this program is about. As you
know, part D of this act which we are discussing today contains
no direct benefit to the employee. It only supports their
application for State workers compensation, which the employee
has a right to do with or without this law. It also directs
DOE, where legal, to prevent DOE-funded challenges to the
claim. We are concerned that many people confuse the Department
of Labor-operated part B, which is the federally funded
benefits program, with the Department of Energy-operated part
D, which is purely an assistance program.
Lastly, DOE has a responsibility to prevent the need for
these types of programs in the future by better protecting our
existing workforce. We take this responsibility seriously, and
in that regard I am pleased to report that we have driven
safety incidents and accidents to record lows. We have also
held our aggregate exposure rates to low levels, in spite of
the significantly increased work from the accelerated cleanup
program. The accelerated cleanup program is achieving dramatic
risk reductions for the communities that surround our sites in
addition to site workforce.
I just want to close with saying that I personally feel for
the workers that you are talking about. I worked, was one of
them. I worked among them. So that is why in a way there is
some emotion in this for me, and I am disappointed in the way
that this has worked out and we are on track and I vow that we
are going to fix it.
However, I also believe this is a very confusing issue and
a lot of the comments we have heard this morning use different
dates, different times, and different circumstances. So I look
forward to responding to your questions and hopefully we can
clear up where we are and where we are going.
Thank you.
[The prepared statement of Mr. Card follows:]
Prepared Statement of Robert G. Card, Under Secretary,
Department of Energy
Thank you for the opportunity to testify about the Department of
Energy's implementation of the Energy Employees Occupation Illness
Compensation Program Act of 2000 (EEOICPA). Broadly speaking, DOE has
two areas of responsibility under EEOICPA--(1) gathering employment and
workplace information to assist the Department of Labor (DOL) and the
Department of Health and Human Services (HHS) with their work in
carrying out the EEOICPA Part 3 compensation program, and (2)
implementation of EEOICPA Part D, which focuses on providing assistance
to DOE contractor workers in their efforts to obtain State workers'
compensation benefits. My testimony today will primarily focus on DOE'S
activities under Part D.
DOE has heard loud and clear that Congress is frustrated with the
pace at which we are processing Part D applications. We too are greatly
concerned. Progress has been made in gathering records and processing
cases. When Secretary Abraham spoke of this program last spring, we
were processing less than 20 cases for physician panels a week. We have
now exceeded 20 cases per day. However, in spite of these significant
improvements, DOE simply has not processed cases with the speed or
efficiency desired by the Congress or by Secretary Abraham. Therefore,
I want to be very specific in my remarks to you today. The Department
did not react quickly enough when it became apparent that the EEOICPA
was a much larger program that originally anticipated. More resources
are required.
Therefore, we will be providing a request for approval of another
transfer of funds to the appropriate Congressional committees very
shortly. I ask for your timely support of this transfer of funds. Also,
I am asking that the Committee support changes to the statute that
would assist us in expediting the physician panel process even further.
I have included an attachment * to my testimony that provides more
detail concerning the issues I will discuss today, including some of
the original expectations of the program, processes used by DOE and DOL
to implement EEOICPA, our progress to date, and what we have learned
from outside reviews of our work. I have also included information
about the current safety record of DOE for your information.
---------------------------------------------------------------------------
* The attachment has been retained in committee files.
---------------------------------------------------------------------------
Part D of EEOICPA sets up a somewhat cumbersome and complicated
process that DOE'S contractor workers must navigate if they are to
benefit from Part D of the program. If a DOE contractor worker believes
they may have an illness caused by exposure to a toxic substance while
working at a DOE facility, the law allows the worker to file an
application with DOE for assistance in filing a state workers'
compensation claim. After determining that the applicant is eligible
for the Part D program, DOE gathers records from around the country
relating to the workers' occupational histories and their health
conditions, and then refers the application to a panel of doctors. The
physician panel then determines whether the worker's illness arose from
exposure to a toxic substance while working at a DOE facility.
If the panel finds in the affirmative and DOE finalizes the
finding, the workers are notified of the favorable finding. The workers
may choose to file a State workers' compensation claim. Of course, the
workers are free to file with their State workers' compensation office
at any time, but hopefully the case file put together for the worker by
DOE plus the positive physician panel finding will provide the worker a
better chance of receiving benefits through their State workers'
compensation agency. The statute then allows DOE, to the extent
permitted by law, to direct the contractor who employed these workers
not to contest State workers' compensation benefits for workers that
have received a positive finding. Individual States' workers'
compensation laws and rules determine benefits for that particular
state. The EEOICPA statute does not provide for direct monetary
benefits to Part D applicants from the Federal government.
At the present time, DOE has received more than 20,000 Part D
applications with applications continuing to be filed at approximately
150 per week. In addition, there are currently more that 40,000
applications filed under Part B, the DOL Federal entitlement portion of
the program, for which DOE provides information.
This is in stark contrast to some of DOE'S original expectations
for EEOICPA. Secretary of Energy Richardson, in an April 2000 press
release, stated ``The Administration's proposal, if enacted into law by
Congress, would compensate more than 3,000 workers with a broad range
of work-related illnesses throughout the Energy Department's nuclear
weapons complex.'' This was prior to the enactment of EEOICPA, but the
release did discuss a program that was very similar to the current law,
including lump sum benefits and help in obtaining State workers'
compensation benefits.
The press release further identified the total program costs for
all agencies, including administrative costs and worker benefits, to be
about $120 million annually over the first three years the program was
fully operational, declining to about $80 million per year after the
backlog of claims was reduced. The basis for these estimates is not
clear, but the implication is that it would take at least three years
to clear a 3,000-claim backlog, and then several years beyond that to
complete all claims. In fact, expected expenses for all of EEOICPA for
all agencies just through fiscal year 2004 is expected to be $1.5
billion.
DOE's budget projections for Part D in 2001, after the statute was
passed, are based on a projection of about 7500 applications to DOE
under Part D and 10 years to complete the program. Clearly, DOE
expected significantly fewer applications to this program than we are
currently receiving, and consequently fewer resources were requested.
In fact, we have received nearly three times as many applications as
originally projected when budgets profiles were developed.
Despite the fact that thousands more applications have been filed
than were expected and despite the cumbersome processes established for
Part D, DOE has worked very hard to carry out its Part D
responsibilities. This work has occurred while we have also been
obtaining and providing to the DOL and HHS the records for thousands of
employees who have submitted Part B applications.
The Department has continuously worked to improve our processes.
First, because the number of applications was far exceeding our
original estimates, we sought in July 2003 and the Congress approved in
October the transfer of an additional $9.7 million in FY-03 money to be
used for the DOE's activities in gathering records and processing Part
D applications. As we already have discussed with many of you, we soon
plan to seek approval for the transfer of more than $30 million in
additional funds in FY-04 to be used for this same purpose. These
additional funds will go a long way towards allowing DOE to work off
the large backlog of applications for which we are currently gathering
records for physician panel review. In fact, we are now averaging 100
cases per week up to physician panel review. I have included statistics
on our progress in the Attachment, and you can also see our weekly
progress on the DOE Office of Worker Advocacy web site.
Second, several months ago DOE retained the Hays Group, Inc. to
critically evaluate our Part D activities and suggest improvements and
enhancements that would allow us to more effectively implement the Part
D program. The Hays report is final, and is available on the Office of
Worker Advocacy web site. I promise that we will work diligently to
address the improvements identified in the report. We are also
interested in the suggestions of the General Accounting Office (GAO)
after it completes its critical review of the Part D program.
Third, the Secretary has directed that I personally take charge of
DOE'S implementation of its EEOICPA duties. I have recently made
changes so that the Office of Worker Advocacy, the office that
administers this program within DOE, will report to me directly.
We believe these funding and programmatic initiatives will go far
towards expediting the processing of Part D applications that have been
filed with DOE. We believe that these approaches are preferable to
moving the administration of some parts of the Part D processing work
to another agency, as was recently proposed as an amendment to the
Energy and Water Appropriations Rill. DOE and its contractors possess
the employment and exposure records for Part D applicants, and DOE has
spent almost three years carrying out Congress's directive to DOE to
develop the processes and procedures to gather records and implement
the Part D program. Moving portions of the program will not accelerate
the processing of applications, and will, in my opinion, counteract the
progress we have made to date.
While we believe that our recent efforts to speed the processing of
Part D cases puts us on the right path to accommodate the large number
of backlogged claims, we believe more can be done. Additional resources
are certainly required. However, we are also evaluating DOE'S Federal
Rule that implements Part D to determine whether it might be
appropriate to propose changes that could expedite the processing of
Part D applications, especially in the area of physician panel reviews.
Finally, and as I noted earlier, the EEOICPA statute itself places
a number of constraints and limitations on the Part D process that
serve to slow down the pace at which DOE can process applications. A
good example is the physician panels. Current statutory requirements
may limit the population of physicians below a tenable level for the
sufficiently speedy processing of applications through the panels, a
problem which may be exacerbated by the Department's Rule requiring
three physicians on every panel. We are exploring with other Executive
agencies legislative changes that may be needed to make more physicians
available for panels, as well as developing possible changes to DOE
Rules to best utilize the physicians we have. The statute also caps the
level of pay for physician panel members at a level well below the
market rate for such services. An initial description of those barriers
that may benefit from legislative changes is included in the
attachment.
The statute contains other limitations that have been barriers to
the processing of Part D applications. A table listing many of the
barriers and possible changes is provided in the Attachment. I am
looking for support from this committee as we evaluate the
effectiveness of making these changes to deal with these barriers.
I also look forward to hearing any suggestions the next panel may
have for improving DOE'S implementation of Part U, within the existing
statutory constraints and requirements. Various parties sometimes
present recommendations to DOE about how its Part D processes might be
changed, but often those recommendations ignore the limitations placed
on us by the statute itself. In addition, some of these recommendations
seem unaware of where the Department's responsibilities lay, a
misperception that I believe is widespread throughout the community of
former workers and those interested in their cases.
The fact of the matter is that the Department of Energy's
responsibilities end, by statute, when the Department provides the
Physician Review Panel findings to the worker, and where allowed,
direct the contract employer to not contest the findings or claim with
State workers' compensation agencies. No benefit is tied to this
program, only the advocacy services of the Department. All benefits are
determined in accordance with an individual State's workers'
Compensation rules. We appreciate any suggestions and recommendations
from any party that respects the boundaries as set by the Congress.
DOE is committed to carrying out its responsibilities under EEOICPA
Part D. We are committed to providing DOE contractor workers with the
assistance they deserve under Part D as established by the Congress. In
addition, we are committed to working with the Congress, to keep you
informed about our progress and to address improvements in DOE'S
processes and in the statute itself.
I also want to assure all members of this committee that the
Department of Energy as an agency and I personally as the Under
Secretary of Energy believe that the safety of our workers is our most
important responsibility. We do not want to leave an additional trail
of injured and ill workers with legacy costs for the taxpayors. This is
why I have included some of the safety statistics regarding our current
operations in the Attachment. The DOE injury and illness rates have
declined to a historic low in 2003. Our rates are less than half of
private industry. DOE is one the safest places to work in the country.
We fully intend to continue this performance while striving to improve
our methods of protecting our workers, the public and the environment.
At this time, I would be glad to answer any questions you may have.
Senator Bunning. Thank you for your testimony.
I will start off the questioning because I have got so many
I do not think I can get them all in in the 5 minutes. Please
put me on the same 5 minutes.
The only one who seems to be confused is the Department of
Energy in regards to the law that was written. As of November
10, 2003, the Paducah plant has had 2,445 applications filed
with the Department of Energy under subtitle D. The DOE has
sent one--one--of these claims to the physicians panel, one,
with 82 having been found ineligible or withdrawn.
Some of my constituents filed their claims more than 3
years ago and are still waiting to hear about whether they will
qualify for benefits. Why, Mr. Card, has it taken so long for
the Department of Energy to process claims at the Paducah
plant?
Mr. Card. First I would lay it out, the original estimates
for this program had substantially fewer claims anticipated and
a longer time frame for processing them. I think perhaps the
case was because this is not the benefits part of the program,
but assistance with a right the workers already had. It is
clear that expectation was not acceptable in today's
environment and we are trying to respond to it.
Initial estimates were as low as 3,000 claims and 7,500 I
think were anticipated shortly after the law was passed. We are
at 20,000 now and seeing 150-plus per weeks still coming in. As
I said in my testimony, the Department was too slow to
recognize the change in the size of the program and the change
in expectations of how fast was acceptable. We are trying to
address that now.
I think our recent progress--there is a graph in the
testimony that shows that we are making substantial progress
now that we have more funding. I think funding is an absolutely
essential key issue here, and I would comment that when we get
the funding we also need time to complete the hiring process
and staffing to make that work. So to comment, to just add to
Senator Grassley's comment, the reason why we said 25 percent
in 6 months is we cannot just turn on the spigot and all of a
sudden people show up and are trained tomorrow. We have to get
that infrastructure established.
We now have an infrastructure established that we believe
confidently we can process 100 per week, 5,000 a year. So these
early claims should be getting worked off and already there is
more progress than are in your records at Paducah, but they are
nothing to brag about yet.
Senator Bunning. In February of this year, Secretary
Abraham testified before this committee and told me that by
August the Department of Energy was going to process 100 claims
per week. Those are his words. Only last week, coincidentally
right before this hearing, did the Department meet this goal.
The GAO estimates that if the Department processes 100 claims
per week it will take 4 years for it to process the backlog of
claims.
Does the Department expect that it can continue to process
100 claims per week? How much more will the Department commit
to processing and eliminating the backlog?
Mr. Card. Obviously, 100 cases a week will not work the
backlog off because we are receiving more than that. The
Secretary made a commitment and we made a commitment to him
internally that within 12 months of receiving full funding,
which would be included in this reprogramming request, we would
process all of the then-current backlog of 15,000 claims within
12 months. We believe we can do that.
Senator Bunning. 15,000?
Mr. Card. Within 12 months of receiving the $30 million.
Senator Bunning. In other words, of the 2,400-plus that we
have filed at Paducah and one has been settled----
Mr. Card. All these Paducah claims that were filed at the
time of that hearing should be to the physicians panels and
hopefully, with our work with the physicians panels, through--
--
Senator Bunning. You are telling me all 2400 applications?
Mr. Card. I believe these 2,400 were largely filed at the
time of the hearing, so our commitment was the cases that were
filed at the time of that hearing would be done 12 months after
we receive funding.
Senator Bunning. That is just--go ahead, Senator Murkowski.
And I am going to hold the 5-minute rule so we can go back and
forth.
Senator Murkowski. I appreciate it. Thank you, Mr.
Chairman.
Mr. Card, you have mentioned that perhaps this is confusing
because we are talking about different dates, different
circumstances, different numbers. So I want to just keep my
questions as they relate to my Alaskan constituent. You have
heard about Mrs. Carlson's situation with her husband and his
death. It has been confirmed. There is no disputing. She is
eligible.
Yet you heard her statement that she was informed 6 months
after her inquiry that there would be no assistance given to
her and now she is facing this series of litigation,
deposition, prehearing. You have indicated that there are
several things that you need. You need the funding, you have
suggested perhaps reducing the number of physicians to expedite
things.
But the third one, you said we need to communicate what
this program is about. This program, subtitle D, is about
assistance. Well, Mrs. Carlson has asked for assistance and she
has been told: Sorry, you are out of luck. Can you explain
exactly what DOE is doing to assist these claimants, my Alaskan
claimant Mrs. Carlson, who has received a positive physicians
panel determination, in her effort to get compensation under
subtitle D?
Mr. Card. Sure. And you bring up a very important point.
The law sets out a framework where our assistance is preparing
packages like these [indicating]--and we can go into those and
the difficulty of putting those together--for people like Mrs.
Carlson. When that package is done and the physicians panel has
made the final determination, we read the laws that that is
where our statutory authority stops at that point.
The applicant has the choice then of using that package,
which hopefully provides more support than would have been
available otherwise, to process their case through whatever the
existing State workers compensation system is. It does not
appear that the law contemplated us then working through the
actual State workers compensation process.
It is my understanding that Mrs. Carlson, who you pointed
out was a part B recipient, asked us for legal help in
prosecuting her claim. While that might have been a wonderful
thing to have provided, we clearly viewed it as out of bounds
of what was intended for us to do in our authority.
Senator Murkowski. Do you have, does DOE have, a specific
individual who Alaskans can contact to determine the status of
their claims and get other questions answered?
Mr. Card. All individuals have access to a 1-800, or it is
888, I think, number, a toll-free number. Our web site is
continuously being improved and my goal is to get it as good as
FedEx or others like them, where people can follow their case
every step of the way. We are a long ways there. But there are
hot lines that are regularly used to find out where cases are
and how to get in touch with us.
Senator Murkowski. Well, there is a big difference between
going to a 1-800 number and getting somebody who has never
heard of you versus having a person in Kentucky, in Tennessee,
in Alaska, that is working these claims. I would hope that you
could be more personally responsive.
Can you explain what specific steps DOE has taken to
establish a willing payor in Alaska?
Mr. Card. What DOE has done is an extensive research of
active contract vehicles that would allow us to, again within
the framework that we view the statute laid out, to find a
willing payor. So far we have not been able to find any active
contract vehicles in Alaska for us to be able to help.
Senator Murkowski. Have you advised the Alaskan claimants
that there is no willing payor?
Mr. Card. At this point we are unable to find one that we
can put pressure on to engage.
Senator Murkowski. So do the claimants who are making
application, do they believe that there is a willing payor out
there and that there will be some benefit in them moving
forward with this application?
Mr. Card. I do not specifically know the answer to that.
All I know is that this program was set up for us to get them
to the point where they can successfully engage, as
successfully as possible, in that workers compensation program
by having these medical histories. So I am certain there is a
variety of expectations among the claimants, but I am not aware
specifically of how many may or may not believe there is a
willing payor when there is not.
Senator Murkowski. Well, if there is not, I would certainly
hope we are not leading people down a path that is obviously
very difficult to have to go through if your spouse has died as
a consequence of exposure, as Mrs. Carlson's husband. And if
there is no expectation that--or there is no understanding that
you are going to have a willing payor on the other end, I would
certainly hope that we are not putting people down a path with
unrealistic expectations.
Thank you, Mr. Chairman.
Senator Bunning. Thank you.
Senator Talent.
Senator Talent. Thank you, Mr. Chairman.
Mr. Card, in your testimony you said that there were about
three times as many claims as you had anticipated; is that
correct?
Mr. Card. That was the anticipation 2 years ago, which was
more than appeared to be----
Senator Talent. Right, I understand. When the law passed
the budget request you made was based on an assumption of about
a third the number of claims that you have got. Are we on the
same page here, about?
Mr. Card. When we did our research and looked through the
budget preparations for, I think it was, fiscal year 2002, it
appeared that about 7,000 claims was what was anticipated, and
that would be worked off over a number of years.
Senator Talent. Well, in Missouri we have had 3 percent of
the claims completed. So I mean, even if the claims had been at
the level that you requested or, excuse me, that you
anticipated, we would still have only 9 percent of the claims
completed; and you would not suggest that that is an
appropriate figure after 2 years, would you?
Mr. Card. No, I am not defending the historical performance
of the program.
Senator Talent. Good, because what I am getting to is--and
I have been around long enough now to have seen this a lot--
there is some vast non-feasance by an agency, it just does not
do its job, and then what we end up doing about it after all
the complaining that happens on the Hill is we end up providing
more money. So what happens is the agency by not doing its job
gets more money.
What I would like to see is somebody held responsible,
because it just seems to me that, even if it was inadequately
funded--and I think maybe we should have funded it more--you
could have done a better job than you did. I mean, 6 percent.
There had to be something beyond just a lack of funding here.
I am loath to say you did a terrible job, so here is more
money. I know we are going to have to do that, but to me that
is not the right answer. You do not have to comment on it if
you do not want to.
Mr. Card. If you do not mind, I just encourage you, there
is an attachment in here that compares the DOE budget and the
DOL budget, simply the administrative, not the benefits
portions, that I would encourage you to look at to make your
own decision whether there has been adequate funding.
Senator Talent. I am not saying the funding has been
adequate. But I am saying that the performance has been
inadequate even given the fact that there has been a funding
shortfall. I would hope that there is some attempt to initiate
management solutions, which ought to involve holding somebody
responsible. I know that is not always easy to do, but, my
gosh, I am sure that these workers would appreciate knowing
that--if they performed this well on the job or this poorly on
the job, they would not be confronting this situation because
they would not have worked all those years that they worked, I
will tell you that.
Let me ask you one other thing. Do you have any suggestions
for what we ought to do as a government, either
administratively or statutorily, for the situation where there
is not a willing payor? Because I mean, to be fair, that is
probably a lot of the problem, when there is nobody you can
direct to pay the claim, and then we have State agencies or
funds or whatever contesting it. Do we need more legislative
action here? What would you propose?
Mr. Card. Well, that is a complex issue. There is a number
of different benefits programs that DOE workers qualify for in
addition to these. So if one was going to make that
determination, it would seem that you would want to look at all
the various benefits available and determine if there is a
statistically significant group of people who are being
underbenefited because of the way this is working. Then perhaps
one would want to look at that.
But it is not clear to me right now in the total scheme of
things--and part of the problem admittedly is we do not have
enough data--that in fact these workers have not had access to
the right, to adequate benefits in other vehicles. So at this
time, until we get more experience with the program, we are not
proposing a change in the benefit. But as I said in the
testimony, we are actively looking at proposed legislative
changes to the process that will enable us to expedite our
processing.
Senator Talent. Thank you, Mr. Chairman.
Senator Bunning. Senator Alexander.
Senator Alexander. Mr. Card, I would like to look to the
future a little bit. Without assessing blame for the past,
looking to the future, would one solution just be to give it
all to the Department of Labor? I know they deal with different
issues, but they apparently have a larger administrative
budget, they seem to be doing a good job on what they are
doing. You have lots of other things to do in your Department.
Looking at it from the point of view of, say, the 3,700
Tennessee claims that are filed and the 12 final decisions, the
104 cases completed, would it be easier and better for the
claimants, not for you, to transfer it to Labor?
Mr. Card. Senator, I took a hard look at the proposal,
which was certainly well intended, to involve the Department of
Labor in this. The problem that I came up with is the
fundamental issue here is that data is possessed within the DOE
system. So there was no way to cleanly hand this program over
to anybody, and DOE was still going to--the hard part of the
program was still going to rest with DOE and there is no
logical way to make that separation.
So the way we thought that very well intended amendment is
it would have simply added another interface point, which are
already difficult issues in this program, and when we looked at
the numbers that were being informally cast about for funding
we also--we would have had no money left over to support doing
that so the Department of Labor could have done what it was
supposed to do. So it would have actually increased the funding
requirement considerably.
So at the end of the day--and then there is the issue of
new rules, do new rules need to be made, and will that put
delays in the program? So when you look at the graph showing
the ramp-up in processing rate now that we have office space
and we are fully staffed at that rate, it looked to us like
right as we are getting ready to actually get moving on this
thing that it might put a step change delay in the program.
Senator Alexander. Well, let me ask this, then. Let us say
you--and I respect the fact that you are a former worker
yourself and you have a feeling about this. Let us say you are
outside the Government right now and the administration and the
Congress calls you in and says: We have got a mess here. We
intended to apologize to our Cold War veterans and create a
system whereby we could acknowledge what happened to them, but
it is not working. We want it badly to work.
If you were to start from scratch today and say to us a way
to change things so that it could be done better, what would
you do?
Mr. Card. If I was starting all over again today, I frankly
would not be in a lot different place than we are today. I
would not have got here the way we got here. I mean, I think we
should have--this should have had a higher level of visibility.
We should have recognized the institutional realities of this,
that the 5 to 10-year processing time that was contemplated
when this was passed was not going to be acceptable to our
constituents, our joint constituents. We should have ramped up
to the point we are now earlier.
Senator Alexander. Would you have used--asked for a
different process maybe? Based on what you have seen now, do we
need all of these papers that are stacked up there?
Mr. Card. There are limitations. There are limitations,
particularly relating to the amount and type of physicians that
we have access to, that we are concerned about in the statute.
We are reviewing those inside the administration right now. I
think we certainly would have addressed that earlier.
Our DOE rule, as we have said in the testimony, sets up a
three-physician process which unnecessarily uses more resources
than we probably need to do to get the job done. We have talked
with the Department of Labor about their strategy of using
cohorts or large aggregations of people, which we are going to
take a hard look at.
The struggle I have, though, is that the Department of
Labor program, remember, they are the judge, jury, witness, and
everything. We are preparing this for an independent body over
which we have no control to make a decision, and may be
contested if we do not have influence.
Senator Alexander. But my point, and I know I am about out
of time, is if you were setting a different procedure, I mean
if you came in and we all called you in and said, come in and
take a look at this, we had a goal and the method we set up did
not work--maybe it was because the Department did not do its
job, maybe it was because the Congress set up a mechanism that
was impractical. If it is impractical, I think it would help us
if we were told that and told, instead of doing this, let us do
that, and maybe there is something we could do about it.
Mr. Card. We will have some recommendations for you.
Senator Bunning. Thank you.
Missouri is at 3 percent. Kentucky is at .04 percent of
claims filed. So we are still a little behind you, Jim.
Senator Talent. If you only had a third of the claims you
would be at 1.2 percent.
Senator Bunning. There you go. We can make progress.
Even if the Department begins processing claims at a
quicker pace, and you said you are doing that, the GAO has said
that the current physicians panels can only handle 200 cases
per month. At that rate it would take more than 7 years to
process all current pending cases. That does not count any
future cases that might be filed.
Can the DOE give any recommendations on how to fix the
problem with the physicians panels, since half of them are
working and half of the physicians are not working?
Mr. Card. Okay. First of all, all physicians that are able
to work today are working. So the number that was set----
Senator Bunning. In other words, the people that you chose
are incapable of work, or what was it?
Mr. Card. We do not--the Department of Energy does not
choose the physicians. We request the physicians. When the
physicians are referred to us, then the physicians themselves
get to decide when they want to work, what cases they want to
take at that period of time.
Senator Bunning. Then the pool could be bigger. Maybe you
could make the pool bigger.
Mr. Card. The current interpretation of the statute limits
the pool size to a certain specialty which does not have a
robust amount of physicians in it.
I will just walk down the steps that we are looking at to
improve that process. First of all, we are looking at if we can
get one physician to make a positive determination we can move
forward with that. If they make a negative determination, we
will continue to the three until we get a final one. That would
substantially increase the resources available to us.
We have asked for more physicians. We have not received
fulfillment of our request yet. We are looking at the
legislation to see do we need all these certain types of
physicians to do this. The legislation also sets salary caps
which are fairly unreasonable to ask these physicians to work
under. We are also seeing if we can employ these physicians
essentially on a full-time basis rather than ad hoc.
We think if we can deal with all of those issues we can get
this done. But we will need the help of this committee in
addressing some of them.
Senator Bunning. All right. One other suggestion for the
Department to move claims along faster is to group claims
together according to where the claimants worked, so that the
Department does not have to keep recreating toxic exposure
profiles. Why has the Department not grouped claims together so
that claims will move faster?
Mr. Card. We are taking a hard look at that. One of the
issues is during the development of our rule a large group of
people felt it was very important to have a first in, first out
process. The Hays report recommended we revisit that. We are
listening to what you want us to do. It is very important
because this is an issue of balancing constituent interests. If
we make a determination that we misread the constituent
interest and they would really rather speed this up by doing
the things you are talking about, we are open to revising our
process.
Senator Bunning. Well, we are on a vote now and since I
still have some time I am going to--all the people that are on
the third panel, please submit all of your testimony for the
record because we are going to be at least two votes and then
we will come back, unless--go ahead.
Senator Murkowski. Thank you, Mr. Chairman. I appreciate
the opportunity to ask a couple more questions here.
I understand that the act allows DOE to enter into
agreements with the States whereby DOE will assist workers
filing claims under State workers compensation programs. DOE
and Alaska have entered into a memorandum of understanding and
our MOU provides that DOE may agree to indemnify a DOE
contractor or insurer for the State of Alaska workers
compensation claims.
My question to you, Mr. Card, is pursuant to this MOU how
many DOE contractors, insurers, has DOE agreed to indemnify so
that Alaskans with positive physicians panel determinations
like Mrs. Carlson can actually receive compensation?
Mr. Card. For DOE to indemnify a contractor requires that
we have a contract, and the problem in Alaska, as I mentioned
earlier, is we have been unable to find an active contract with
a relevant contractor in Alaska. So while I am not absolutely
certain of this, I am pretty sure that the answer will be zero
to your question.
Senator Murkowski. So if it is none, if it is zero--and we
have also made that assumption, that there are none--what was
the purpose of putting this language in the MOU?
Mr. Card. Well, in the States we have--Assistant Secretary
Cook can answer this if she would like, but we attempt to have
a fairly standard agreement with the States, so my guess is
that was a standard clause. I do not know, Assistant Secretary
Cook; do you want to----
Ms. Cook. That was not a clause in the actual MOU. The
MOU's specifically state that we will share information with
the State worker comp systems. It does not say in that MOU that
we will indemnify anyone.
Senator Murkowski. Well, I am looking at the language that
was pulled from the MOU and the language as I am reading
provides that: ``Provided that, consistent with subpart D, such
a determination will prevent DOE and may prevent a DOE
contractor from contesting an applicant workers compensation
claim, and DOE may agree to indemnify a DOE contractor-insurer
for State of Alaska workers compensation claims.'' So perhaps
we need to----
Ms. Cook. It says ``may'' within the legal constraints, and
that is what we followed up with. We indemnify our contractors
that we have legal arrangements with, but it turns out we do
not have a legal arrangement in Alaska.
Senator Murkowski. So you do not have a legal arrangement
in Alaska. So again, perhaps we are giving a mixed message to
those claimants.
You had indicated, Mr. Card, to Senator Talent you were
talking about the willing payor issue and you indicated that at
some point in time you would be coming forth with some
recommendations. The willing payor issue appears to me to be a
huge one, a potential train wreck. When does DOE plan to
provide Congress with recommendations on how best to resolve
this?
Mr. Card. Well, just to correct, I may have said this
wrong. Right now DOE is not engaged in evaluating the willing
payor issue. I said if somebody wanted to look at it these are
the things to have to do. Right now we are focused on getting
these claims processed.
Senator Murkowski. Well, how can you get the claims
processed with no understanding on the other end as to how you
are going to make the payment? Processing the claim just gets
Mrs. Carlson through the system, but then she gets to the end,
where she has an expectation that, having gone through the
system, having had her claim processed, having been determined
eligible, she gets nothing.
Why would you suggest that you are not even looking to
getting to that step?
Mr. Card. Well, Senator, a couple things. First of all, as
we read the statute Congress expressed its intent of what it
wanted in the statute. DOE has not at this time said let us go
question that, because we have not engaged in a comprehensive
benefits analysis for this workforce. So first of all, we did
not read it as our obligation or charter to go look at the
willing payor issue.
Secondly, we could be willing to relook at whether we
should even process these claims where there does not appear to
be--we reviewed our charter again in the statute. We are going
to help people no matter what would happen at the end. So but
if we would like to at the start make that determination, we
would be glad to take a look at that. The problem is that is a
State of Alaska issue. The State could change the way it runs
its workers compensation program. So we did not want to
prejudge what a State may do, since our only job is to assist
in configuring this claim for its best possible chance within
the State workers compensation system.
So I understand the frustration with the willing payor
issue. We really do not view that is in our purview right now.
Senator Murkowski. Mr. Chairman, I might suggest that I do
not believe it was Congress's intent that we just run people
through a bureaucratic nightmare just so that they can say we
processed their claims.
Senator Bunning. All I can tell you is that I was carrying
the water between the House and the Senate when this was being
done and it was our intent that each worker have a final
determination and be paid. Of course, the Department of Energy
has interpreted it slightly different than the Congress
intended it. Now we are going to have to either correct it
legislatively or we are going to get a new Department of Energy
to work with. That is all there is to it.
We have tried to work with the old Department of Energy and
got the same run-around that we are getting with the new
Department of Energy, and we are not going to tolerate it. I
just want the Department to be on notice of that. Getting this
thing done was not an easy task, both subtitle B and subtitle
D, and there was a commitment of almost $2.4 billion for the
two titles, subtitles, and you are telling me that we are not
going to assist anyone after the fact, after the claim has been
filed and after the claim has been approved, and then you are
going to drop them off at the non-payor window? I am telling
you that is not what the intent of the Congress was.
I am going to kind of calm down and then get some more
questions, since they have not started the vote.
Over $17 million has been spent for SEA, Science and
Engineering Associates, to process 109 claims through the
physicians panels and to develop 1100 eligible claims to be
ready for the physicians panel in 2 years. According to my
calculation, this works out to be about $15,000 per claim. Why
has the Department spent so much money on this portion of the
program when all SEA appears to be doing is putting case files
together for the physician review?
In other words, the person is not getting anything, but
people that are working up the claimants seem to be getting
more than the claimant is getting at the end.
Mr. Card. Well, I think the complexity of processing this
is certainly a significant concern to me, because this does not
look like a great program at this point in terms of the
administrative cost versus what the payout may be, although we
do not know what that is at this point.
Senator Bunning. We are not having any problems with the
Labor Department payout. I mean, it is pretty clear that they
have paid out a lot of claims and it is a lot easier and a lot
more simple to determine if someone has passed away and whether
they have been eligible for these claims that you now say that
there may not be a willing payor for.
Mr. Card. The benefit at the Department of Labor system
again is that they have a smaller, more defined set of causes
of diseases that are somewhat easier to qualify and research,
and then they get to decide on paying out the benefit. In the
case of subtitle D, any toxic substance for any disease that
might be caused by it is required to be researched and then it
is up to the State workers compensation system.
So that is why you end up with cases like these, because we
have to do a lot more research of what was going on at the
facility and with the claimant as to their medical history to
make those connections in a way that may be convincing for a
party that we do not control, the State workers compensation
system, to make that decision.
Senator Bunning. The Department of Energy has processed
about 6 compensation of the subtitle D cases and found almost--
almost--90 percent of those processed cases to be ineligible.
What are the main reasons why employees are being found
ineligible for workers compensation benefits?
Ms. Cook. Actually, the amount of ineligibles relate to the
total number that have come in. We do handle each case that
comes in and do initial screening for eligibility.
Senator Bunning. Am I wrong in my percentages?
Ms. Cook. Yes, because the----
Senator Bunning. But GAO says I am right.
Ms. Cook. Well, I understand, but they were not looking
at--they did not realize we were looking at all cases that came
in. So the ineligibles that we have, which right now is a
little over 1,000, are 1,000 out of the 20,000 that have
applied are ineligible.
Senator Bunning. But you have not processed how many of
those claims yet?
Ms. Cook. Right now, right now where we are, we have 1,296
that are processed, 317 at physicians panels, and 800 are
sitting with workers trying to decide whether they want us to
move forward with their cases. So we have got about----
Senator Bunning. So you are talking about a little over
2,000 total?
Ms. Cook. We have about 12 percent of our cases that we
have finished our work and are in various stages.
Senator Bunning. Am I wrong about the 90 percentile?
Ms. Cook. You said 90 percent of what we had done were
ineligible.
Senator Bunning. Yes.
Ms. Cook. No. 90 percent of the 20,000 are ineligible.
Senator Bunning. How can you tell that until you process
the claim?
Ms. Cook. I am sorry----
Mr. Card. I think where you are----
Ms. Cook. The ineligible is----
Senator Bunning. The GAO report is pretty accurate.
Ms. Cook. The ineligibles have to do--it is 1,000 out of
20,000 that are ineligible.
Mr. Card. I think----
Senator Bunning. The follow-up question--wait a minute,
Bob. The follow-up question is how many of the 20,000 claims
have you gone through the process of determining whether they
are eligible or not eligible?
Ms. Cook. All 20,000.
Senator Bunning. You have done that? The physicians panel
has examined all 20,000 of them?
Ms. Cook. Eligible means they are eligible for our program
at all, not did they get a positive finding.
Senator Bunning. Well then, the process is not finished.
Ms. Cook. I understand.
Mr. Card. This is correct. The first screening step is----
Senator Bunning. Well then, your number is completely
wrong, if they have not gone through the process.
Ms. Cook. GAO's ineligible, I believe their definition was
the same as ours, eligible for the program.
Senator Bunning. Go ahead, Senator.
Senator Murkowski. Thank you, Mr. Chairman.
This goes back to our discussion about resolving the
willing payor issue. I understand that on June 27, 2002 the
DOE's Worker Advocacy Committee sent a letter to the Department
of Energy with respect to the willing payor problem saying
basically, what are you going to do about it. DOE responded on
August 9, 2002, stating ``The issue of mechanisms of payment of
claims where there is no current contractor with responsibility
for paying a claim remains a concern. We will continue to
explore possible remedies with the WAAC, the general counsel,
and Congress to correct this inequity.''
This letter was I guess about 15 months ago. I have asked
you to give me some indication as to when we might expect
something. You have been working on it now for 15 months. Where
are we in the process of getting something, some kind of
recommendation on willing payor?
If I understand your last response to me, you said: We are
not working on it.
Mr. Card. In response to that letter, we researched this
issue and concluded that the statute does not provide for us to
find or induce a willing payor. So in terms of that, we feel
that issue is closed out. There would be another issue as to
whether we undertake some sort of study to evaluate whether
there should be or what is the total benefits package that I
discussed earlier. We are currently not engaged in such a
study, but I think right now our view is the statute as we read
it does not empower DOE to go deal with the willing payor
issue, other than to look as hard as we can for one, which we
are doing. We are not stopping that and, just as we responded
to you in Alaska, while we do not see one yet, we have not
stopped looking.
Senator Murkowski. You have not stopped looking, but you
have got memorandums of understanding that talk about an
indemnity, but we cannot do it because we do not have our
willing payor. You have the individuals, the claimants, go
through a process. You do not tell them that you do not have a
willing payor out there.
It seems like what we are doing is we are setting people up
here and giving them some hope that you go through this
process, you go through the process and at the end there is
going to be some resolution. I am not hearing from the way it
is set up in DOE that you can provide. You are saying the
statute does not allow you to go that far. This is a great
concern to me.
Is the DOE defending its physicians panel determinations
when they are challenged by insurance companies, and if not why
not?
Mr. Card. I believe--no.
Senator Murkowski. Why not?
Mr. Card. Again, we view that the statute tells us to
provide the support to include in the application for workers
compensation, but not beyond that.
Senator Murkowski. So this goes back to your opening
statement, when you said we need to communicate what our
program is all about; our program is all about assistance.
Define for me then what DOE figures your role is in assistance?
If you are not helping on the back end in terms of the willing
payor issue, you are not defending the physicians panel
determinations when they are challenged by an insurance
company, what kind of assistance do you provide then?
Mr. Card. The way I read the statute, there are two core
things that seem to be trying to get done. One is to provide
this technical medical assistance so that there would be less
argument with the State workers compensation system about cause
and effect of the disease. That is represented there
[indicating]. The other kind is, where legal, to stop the
Department or its contractors from opposing such claims. We are
vigorously pursuing both of those pathways.
Just let me follow up on your earlier comment. I have taken
to heart this communication issue and I will tell you that we
are going to take a hard look at what sort of communications we
can do up front, because it does seem to be unfair and, while I
have not figured out how we would do it because it prejudges a
system over which we have no control, we will take an action
item to take a look at that.
Senator Murkowski. Go ahead, Mr. Chairman. Thank you.
Senator Bunning. Thank you.
This will be the last question because we are in the wrap-
up, so you can go over and vote if you would like.
Senator Murkowski. We are in a vote?
Senator Bunning. Senator Frist is wrapping up now.
Last question, and it is similar to Senator Murkowski's. We
have found in Paducah that half, 50 percent, of the claims,
there is no willing payor on the other end. Even if the
claimant is successful in going through all the hoops to get to
the end of the line and get a determination, there is no
willing payor for 50 percent of the claims.
So you are telling me that you do not think that the
Department of Energy has any responsibility after that?
Mr. Card. It is my opinion the statute does not convey to
DOE responsibility for that issue. At Paducah it is not clear
whether there is no willing payor or just nobody----
Senator Bunning. I did not say--in less than 50 percent of
the cases.
Mr. Card. There is a contractor there that we cannot--we do
not have the legal authority to direct not to oppose the
claims.
Senator Bunning. And you are not going to pursue any,
either through the courts or anything? You are just going to
drop it? The claimant will be at the end of the process with no
willing payor, so they will be in the same situation as the
person in Alaska. There will be no one to pay the bill, even if
that person has been determined eligible?
Mr. Card. If in fact there is no organization with which
DOE has a valid contract to become a willing payor and the
State system does not provide for it, the answer would be yes.
Senator Bunning. That is all the questions I have, Mr.
Card. I will be seeing some of your people on December 6 in
Paducah and we are not finished with this issue, believe me, as
we go through the process. Thank you.
If the third panel will be seated, we will be back as
quickly as we can after the vote. Thank you.
[Recess from 10:55 a.m. to 11:20 a.m.]
Senator Bunning. The committee will reconvene and we will
hear testimony from the third panel. Mr. Robertson, if you
would begin. We are going to make you stick to the 5-minute
rule if you do not mind.
STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION,
WORKFORCE, AND INCOME SECURITY ISSUES,
GENERAL ACCOUNTING OFFICE
Mr. Robertson. Actually, I think in the interest of time I
am going to scrap my prepared comments and summarize those
summarized comments.
Senator Bunning. Well, we will accept your full statement
for the record.
Mr. Robertson. Very good. Basically what I would like to do
is make three points this morning. Having said that, as you
alluded to earlier, our testimony today is based on ongoing
work of looking at how well DOE has implemented the subtitle D
portion of the Energy Employees Occupational Illness
Compensation Program Act.
The three points I would like to make this morning are
along these lines. The first is to state the obvious--and
sometimes that is a good thing to do--that is that DOE has been
slow to get a start on processing these claims. Now, very
recently we have seen some rather large increases in the speed
at which they are developing cases on the front end of the
process--they are up to 100 cases per week. I think the
question here is whether or not they are going to be able to
sustain that speed. That is point number one.
Point number two is, even if they maintain that speed at
the front end, we have still got to be concerned about what is
happening at the back end, at the physicians panel side of
things. That is something that I think this committee and DOE
needs to focus attention on. There is only a limited number of
qualified, credentialed physicians who can serve on these
panels and these panels could become another bottleneck. So
that is the second point.
The third point--and we have talked about this, or you have
talked about it earlier--concerns the willing payor issue. We
have, as is indicated in our testimony, estimated that most of
the folks who we have looked at in our sample of DOE facilities
will have willing payors.
I would like to say, however, that while there may not be
as many people who are in situations where there are not
willing payors, I think, as the committee has indicated
earlier, we need to focus attention on how to deal with them.
But the thing that I would not like to lose sight of is, even
when you have the willing payor, situations where you have
claimants with willing payors, that does not guarantee that
they are going to get paid. So just let us not lose track of
that.
The other thing is, again talking about the willing payor
situation, we have talked with contractors who basically have
said: Yes, we are willing payors, but we need to get some
guidance on how to calculate compensation amounts.
So those are the three points I would like to make this
morning. I will be happy to answer questions at the appropriate
time.
[The prepared statement of Mr. Robertson follows:]
Prepared Statement of Robert E. Robertson, Director, Education,
Workforce, and Income Security Issues, General Accounting Office
Mr. Chairman and Members of the Committee:
I am pleased to be here today to discuss our work regarding the
effectiveness of the benefit program under Subtitle D of the Energy
Employees Occupational Illness Compensation Program Act of 2000
(EEOICPA) in assisting contractor employees in obtaining compensation
for occupational illnesses. Congress mandated that we study this issue
and report to the Senate Committees on Energy and Natural Resources and
Appropriations and the House Committees on Energy and Commerce and
Appropriations.
For the last several decades, the Department of Energy (Energy) and
its predecessor agencies and contractors have employed thousands of
individuals in secret and dangerous work in the nuclear weapons
production complex. Over the years, employees were unknowingly exposed
to toxic substances, including radioactive and hazardous materials, and
studies have shown that many of these employees subsequently developed
illnesses. The Energy Employees Occupational Illness Compensation
Program provides for compensation to these employees who developed
occupational illnesses and, where applicable, to their survivors.
Congressional Committees, as well as individual members of Congress,
claimants, and advocates have raised concerns regarding Energy's
processing of claims and the availability of benefits once claims have
been decided.
As title XXXVI of the Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001, which was signed into law on
October 30, 2000, this legislation has two major components. Subtitle B
provides eligible workers who were exposed to radiation or other toxic
substances and who subsequently developed illnesses such as cancer and
lung disease a one-time payment of up to $150,000 and covers future
medical expenses related to the illness. The Department of Labor
administers these benefits, payable from a compensation fund
established by the same legislation. Subtitle D allows Energy to help
its contractor employees file state workers' compensation claims for
illnesses determined by a panel of physicians to be caused by exposure
to toxic substances in the course of employment at an Energy facility.
The legislation did not set aside funding for payment of benefits under
Subtitle D.
My testimony today reflects our ongoing review of the effectiveness
of Energy's implementation of Subtitle D. We focused our work on three
key areas: (1) the number, status, and characteristics of claims filed
with Energy; (2) the extent to which there will be a ``willing payor''
of workers' compensation benefits; that is, an insurer who--by order
from, or agreement with, Energy--will not contest these claims; and (3)
the extent to which Energy policies and procedures help employees file
timely claims for state workers' compensation benefits.
In summary, as of June 30, 2003, Energy had fully processed about 6
percent of the nearly 19,000 cases received, and more than three-
quarters of all cases were associated with facilities in nine states.
Energy had not begun processing over half of the cases received. While
some other case characteristics can be determined, such as illness
claimed, systems limitations prevent reporting on other case
characteristics, such as the reasons for ineligibility or basic
demographics.
While the majority of cases (86 percent) associated with major
Energy facilities in nine states potentially have a willing payor of
workers' compensation benefits, actual compensation is not certain. In
certain states such as Ohio and Iowa, there are likely to be many cases
that lack willing payors, and in some instances may be less likely to
receive compensation than a comparable case with a willing payor in a
different state. The 86 percent figure reflects the number of cases for
which contractors and their insurers are likely to not contest a
workers' compensation claim, rather than the number of cases that will
ultimately be paid.
For all claimants, actual compensation is not certain because of
additional factors such as variations in state workers' compensation
programs or contractors' uncertainty on how to compute the benefit.
Claims for workers' compensation have been delayed by two bottlenecks
in Energy's claims process. First, Energy's case development process
has not always produced sufficient cases to keep physician panel:
operating at full capacity. While additional resources may allow Energy
to move a sufficient number of cases through its case development
process, the physician panel process will continue to be a second and
more important bottleneck.
The number of panels, constrained by the scarcity of physicians
qualified to serve on panels, will limit Energy's capacity to decide
cases more quickly, using its current procedures. Energy officials are
exploring ways that the panel process could be made more efficient.
To perform our review, we analyzed data extracted from Energy's
Subtitle D case management system for applications filed through June
30, 2003.\1\
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\1\ We collected data as of this date to enable us to assess the
reliability of Energy's data by: (1) performing electronic testing for
obvious errors in accuracy and completeness; (2) reviewing available
documentation; and (3) interviewing agency officials and contractors
knowledgeable about the data. We determined that the data elements used
were sufficiently reliable for our purposes.
---------------------------------------------------------------------------
We also reviewed the provisions of, and interviewed officials with,
the workers' compensation programs in nine states accounting for more
than three-quarters of Subtitle D cases filed, and we interviewed the
contractors operating the major facilities in these states. In
addition, we conducted site visits to three Energy facilities in Oak
Ridge, Tennessee, the state with facilities accounting for the largest
number of Subtitle D claims. We also interviewed key program officials
and other experts. We conducted our review from April 2003 through
October 2003 in accordance with generally accepted government auditing
standards.
background
Energy oversees a nationwide network of 40 contractor-operated
industrial sites and research laboratories that have historically
employed more than 600,000 workers in the production and testing of
nuclear weapons. In implementing EEOICPA, the President acknowledged
that it had been Energy's past policy to encourage and assist its
contractors in opposing workers' claims for state workers' compensation
benefits based on illnesses said to be caused by exposure to toxic
substances at Energy facilities.\2\ Under the new law, workers or their
survivors could apply for assistance from Energy in pursuing state
workers' compensation benefits, and if they received a positive
determination from Energy, the agency would direct its contractors to
not contest the workers' compensation claims or awards. Energy's rules
to implement the new program became effective in September 2002, and
the agency began to process the applications it had been accepting
since July 2001, when the law took effect.
---------------------------------------------------------------------------
\2\ Executive Order 13179 of December 7, 2000.
---------------------------------------------------------------------------
Energy's claims process has several steps, as shown in figure 1.*
First, claimants file applications and provide all available medical
evidence. Energy then develops the claims by requesting records of
employment, medical treatment, and exposure to toxic substances from
the Energy facilities at which the workers were employed. If Energy
determines that the worker was not employed by one of its facilities or
did not have an illness that could be caused by exposure to toxic
substances, the agency finds the claimant ineligible. For all others,
once development is complete a panel of three physicians reviews the
case and decides whether exposure to a toxic substance during
employment at an Energy facility was at least as likely as not to have
caused, contributed to, or aggravated the claimed medical condition.
The panel physicians are appointed by the National Institute for
Occupational Safety and Health (NIOSH) but paid by Energy for this
work. Claimants receiving positive determinations are advised that they
may wish to file claims for state workers' compensation benefits.
Claimants found ineligible or receiving negative determinations may
appeal to Energy's Office of Hearings and Appeals.
---------------------------------------------------------------------------
* All figures have been retained in committee files.
---------------------------------------------------------------------------
Each of the 50 states and the District of Columbia has its own
workers' compensation program to provide benefits to workers who are
injured on the job or contract a work-related illness. Benefits include
medical treatment and cash payments that partially replace lost wages.
Collectively, these state programs paid more than $46 billion in cash
and medical benefits in 2001. In general, employers finance workers'
compensation programs. Depending on state law, employers finance these
programs through one of three methods: (1) they pay insurance premiums
to a private insurance carrier; (2) they contribute to a state workers'
compensation fund; or (3) they set funds aside for this purpose as
self-insurance. Although state workers' compensation laws were enacted
in part as an attempt to avoid litigation over workplace accidents, the
workers' compensation process is still generally adversarial, with
employers and their insurers tending to challenge aspects of claims
that they consider not valid.
State workers' compensation programs vary as to the level of
benefits, length of payments, and time limits for filing. For example,
in 1999, the maximum weekly benefit for a total disability in New
Mexico was less than $400, while in Iowa it was approximately $950. In
addition, in Idaho, the weekly benefit for total disability would be
reduced after 52 weeks, while in Iowa benefits would continue at the
original rate for the duration of the disability. Further, in
Tennessee, a claim must be filed within 1 year of the beginning of
incapacity or death. However, in Kentucky a claim must be filed within
3 years of exposure to most substances, but within 20 years of exposure
to radiation or asbestos.
energy has fully processed few cases, and systems limitations
complicate program management
As of June 30, 2003, Energy had completely processed about 6
percent of the nearly 19,000 cases that had been filed, and the
majority of all cases filed were associated with facilities in nine
states. Forty percent of cases were in processing, but more than 50
percent remained unprocessed. While some case characteristics can be
determined, such as illness claimed, systems limitations prevent
reporting on other case characteristics, such as the reasons for
ineligibility or basic demographics.
About 6 Percent of Cases Have Been Fully Processed
During the first 2 years of the program, ending June 30, 2003,
Energy had fully processed about 6 percent of the nearly 19,000 claims
it received. The majority of these claims had been found ineligible
because of either a lack of employment at an eligible facility or an
illness related to toxic exposure. Of the cases that had been fully
processed, 42 cases--less than one-third of 1 percent of the nearly
19,000 cases filed--had a final determination from a physician panel.
More than two-thirds of these determinations (30 cases) were positive.
At the time of our study, Energy had not yet begun processing more than
half of the cases, and an additional 40 percent of cases were in
processing (see fig. 2). The majority of cases being processed were in
the case development stage, where Energy requests information from the
facility at which the claimant was employed. Less than 1 percent of
cases in process were ready for physician panel review, and an
additional 1 percent were undergoing panel review.
A majority of cases were filed early during program implementation,
but new cases continue to be filed. Nearly two-thirds of cases were
filed within the first year of the program, between July 2001 and June
2002. However, in the second year of the program--between July 2002 and
June 30, 2003--Energy continued to receive more than 500 cases per
month. Energy officials report that they currently receive
approximately 100 new cases per week.
While cases filed are associated with facilities in 38 states or
territories, the majority of cases are associated with Energy
facilities in rune states (see fig. 3).\3\ Facilities in Colorado,
Idaho, Iowa, Kentucky, New Mexico, Ohio, South Carolina, Tennessee, and
Washington account for more than 75 percent of cases received by June
30, 2003. The largest group of cases associated with facilities in
Tennessee.
---------------------------------------------------------------------------
\3\ See Energy's Web site at: http://tis.eh.doe.gov/advocacy/
index.html for more information on the current distribution of cases
across facilities and states.
---------------------------------------------------------------------------
Workers filed the majority of cases, and cancer is the most
frequently reported illness. Workers filed about 60 percent of cases,
and survivors of deceased workers filed about 36 percent of cases. In
about 1 percent of cases, a worker filed a claim that was subsequently
taken up by a survivor. Cancer is the illness reported in more than
half of the cases. Diseases affecting the lungs accounted for an
additional 14 percent of cases. Specifically, chronic beryllium disease
is reported in 1 percent of cases, and beryllium sensitivity, which may
develop into chronic beryllium disease, is reported in an additional 5
percent. About 7 percent of cases reported asbestosis, and less than 1
percent claimed silicosis.
Systems Limitations Complicate Program Management
Systems limitations prevent Energy officials from aggregating
certain information important for program management. For example, the
case management system does not collect information on the reasons that
claimants had been declared ineligible or whether claimants have
appealed decisions. Systematic tracking of the reasons for
ineligibility would make it possible to identify other cases affected
by appeal decisions that result in policy changes. While Energy
officials report that during the major systems changes that occurred in
July 2003, fields were added to the system to track appeals
information, no information is yet available regarding ineligibility
decisions. In addition, basic demographic data such as age and gender
of claimants are not available. Gender information was not collected
for the majority of cases. Further, insufficient edit controls--for
example, error checking that would prevent claimants' dates of birth
from being entered if the date was in the future--prevent accurate
reporting on claimants' ages.
Insufficient strategic planning regarding data collection and
tracking have made it difficult for Energy officials to completely
track case progress and determine whether they are meeting the goals
they have established for case processing. For example, Energy
established a goal of completing case development within 120 days of
case assignment to a case manager. However, the data system developed
by contractors to aid in case management was developed without detailed
specifications from Energy and did not originally collect sufficient
information to track Energy's progress in meeting this 120-day goal.
Furthermore, status tracking has been complicated by changes to the
system and failure to consistently update status as cases progress.
While Energy reports that changes made as of July 2003 should allow for
improved tracking of case status, it is unclear whether these changes
will be applied retroactively to status data already in the system. If
they are not, Energy will still lack complete data regarding case-
processing milestones achieved prior to these changes.
while a majority of cases potentially have a willing payer, actual
compensation is not certain
Our analysis shows that a majority of cases associated with major
Energy facilities in nine states \4\ will potentially have a willing
payor of workers' compensation benefits. This finding reflects the
number of cases for which contractors and their insurers are likely to
not contest a workers' compensation claim, rather than the number of
cases that will ultimately be paid. The contractors considered to be
willing payors are those that have an order from, or agreement with,
Energy to not contest claims. However, there are likely to be many
claimants who will not have a willing payor in certain states, such as
Ohio and Iowa. For all claimants, additional factors such as state
workers' compensation provisions or contractors' uncertainty on how to
compute the benefit may affect whether or how much compensation is
paid.
---------------------------------------------------------------------------
\4\ The cases in these nine states represent more than three-
quarters of the cases filed nationwide. The results of our analysis
cannot necessarily be applied to the remaining 25 percent of the cases
filed nationwide.
---------------------------------------------------------------------------
A Majority of Cases in Nine States Will Potentially Have a Willing
Payer
A majority of cases in nine states will potentially have a willing
payor of workers' compensation benefits, assuming that for all cases
there has been a positive physician panel determination and the
claimant can demonstrate a loss from the worker's illness that has not
previously been compensated. Specifically, based on our analysis of
workers' compensation programs and the different types of workers'
compensation coverage used by the major contractors, it appears that
approximately 86 percent of these cases will potentially have a willing
payor--that is, contractors and their insurers who will not contest the
claims for benefits. It was necessary to assume that all cases filed
would receive a positive determination by a physician panel because
sufficient data are not available to project the outcomes of the
physician panel process.
More specifically, there are indications that the few cases that
have received determinations from physician panels may not be
representative of all cases filed, and sufficient details on workers'
medical conditions were not available to enable us to independently
judge the potential outcomes. In addition, we assumed that all workers
experienced a loss that was not previously compensated because
sufficient data were not available to enable us to make more detailed
projections on this issue.
As shown in table 1, most of the contractors for the major
facilities in these states are self-insured, which enables Energy to
direct them to not contest claims that receive a positive medical
determination.\5\ In addition, the contractor in Colorado, which is not
self-insured but has a commercial policy, took the initiative to enter
into an agreement with Energy to not contest claims. The contractor
viewed this action as being in its best interest to help the program
run smoothly. However, it is unclear whether the arrangement will be
effective because no cases in Colorado have yet received compensation.
In such situations where there is a willing payor, the contractor's
action to pay the compensation consistent with Energy's order to not
contest a claim will override state workers' compensation provisions
that might otherwise result in denial of a claim, such as failure to
file a claim within a specified period of time. However, since no
claimants to date have received compensation as a result of their cases
filed with Energy, there is no actual experience about how contractors
and state workers' compensation programs treat such cases.
---------------------------------------------------------------------------
\5\ EEOICPA allows Energy, to the extent permitted by law, to
direct its contractors not to contest such workers' compensation
claims. In addition, Energy's regulations prohibit the inclusion of the
costs of contesting such claims as allowable costs under its contracts
with the contractors; however, the costs incurred as the result of a
workers' compensation award are allowed as reimbursable costs to the
full extent permitted under the contracts.
---------------------------------------------------------------------------
About 14 percent of cases in the nine states we analyzed may not
have a willing payor. Therefore, in some instances these cases may be
less likely to receive compensation than a comparable case for which
there is a willing payor, unless the claimant is able to overcome
challenges to the claim. Specifically, these cases that lack willing
payors involve contractors that (1) have a commercial insurance policy;
(2) use a state fund to pay workers' compensation claims; or (3) do not
have a current contract with Energy. In each of these situations,
Energy maintains that it lacks the authority to make or enforce an
order to not contest claims. For instance, an Ohio Bureau of Workers'
Compensation official said that the state would not automatically
approve a case, but would evaluate each workers compensation case
carefully to ensure that it was valid and thereby protect its state
fund.
Table 1: EXTENT TO WHICH CASES IN NINE STATES WILL POTENTIALLY HAVE WILLING PAYERS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of case as
Types of workers' compensation coverage Energy facility, State reported in Energy
data
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cases that will potentially have a willing payor
--------------------------------------------------------------------------------------------------------------------------------------------------------
Self-insurance
Idaho National Engineering Lab, Idaho 724
Paducah Gaseous Diffusion Plant, Kentucky 978
Los Alamos National Lab, New Mexico 1,043
Savannah River Site, South Carolina 2,873
Oak Ridge K-25, X-10, and Y-12 Plants, Tennessee 3,325
Hanford Site, Washington 1,664
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial policy, agreement with Energy not to contest claims Rocky Flats Plant, Colorado 1,488
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subtotal of cases with a willing payor 86%, or 12,095
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cases That May Not Have a Willing Payer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial policy, no agreement with Energy to not contest claims; leases Paducah Gaseous Diffusion Plant, Kentucky 977
Energy facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
State fund Portsmouth Gaseous Diffusion Plant, Ohio 506
--------------------------------------------------------------------------------------------------------------------------------------------------------
No current contractor Iowa Ordnance Plant, Iowa 563
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subtotal of cases without a willing payor 14%, or 2,046
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Energy data and interviews with current contractors.
Note: The table includes the cases from the facilities in these states with the largest number of case filed but does not include the remaining 721
cases (5 percent) from other facilities in these states.
While an Energy contractor previously operated the Paducah Gaseous Diffusion Plant, the plant is currently operated by a private entity that leases the
facility. In addition, an Energy contractor is currently performing environmental cleanup at the facility. We split the cases filed for the Paducah
facility evenly between the current operator and the cleanup contractor, based on discussions with the cleanup contractor.
Concerns about the extent to which there will be willing payors of
benefits have led to various proposals for addressing this issue. For
example, the state of Ohio proposed that Energy designate the state as
a contractor to provide a mechanism for reimbursing the state for
paying the workers' compensation claims. However, Energy rejected this
proposal on the ground that EEOICPA does not authorize the agency to
establish such an arrangement. In a more wide-ranging proposal,
legislation introduced in this Congress \6\ proposes to establish
Subtitle D as a federal program with uniform benefits administered by
the Department of Labor.
---------------------------------------------------------------------------
\6\ H.R. 1758, sponsored by Representative Ted Strickland, was
introduced on April 10, 2003.
---------------------------------------------------------------------------
Multiple Factors Make Compensation Not Certain
In contrast to Subtitle B provisions that provide for a uniform
federal benefit that is not affected by the degree of disability,
various factors may affect whether a Subtitle D claimant is paid under
the state workers' compensation program or how much compensation will
be paid. Beyond the differences in the state programs that may result
in varying amounts and length of payments, these factors include the
demonstration of a loss resulting from the illness and contractors'
uncertainty on how to compute compensation.
Even with a positive determination from a physician panel and a
willing payor, claimants who cannot demonstrate a loss, such as loss of
wages or medical expenses, may not qualify for compensation. On the
other hand, claimants with positive determinations but not a willing
payor may still qualify for compensation under the state program if
they show a loss and can overcome all challenges to the claim raised by
the employer or the insurer.
Contractors' uncertainty on how to compute compensation may also
cause variation in whether or how much a claimant will receive in
compensation. While contractors with self-insurance told us that they
plan to comply with Energy's directives to not contest cases with
positive determinations, some contractors were unclear about how to
actually determine the amount of compensation that a claimant will
receive. For example, one contractor raised a concern that no guidance
exists to inform contractors about whether they can negotiate the
degree of disability, a factor that could affect the amount of the
workers' compensation benefit. Other contractors will likely experience
similar situations, as Energy has not issued guidance on how to
consistently compute compensation amounts.
While not directly affecting compensation amounts, a related issue
involves how contractors will be reimbursed for claims they pay. Energy
uses several different types of contracts to carry out its mission,
such as operations or cleanup, and these different types of contracts
affect how workers' compensation claims will be paid. For example, a
contractor responsible for managing and operating an Energy facility
was told to pay the workers' compensation claims from its operating
budget. The contractor said that this procedure may compromise its
ability to conduct its primary responsibilities. On the other hand, a
contractor cleaning up an Energy facility was told by Energy officials
that its workers' compensation claims would be reimbursed under its
contract, and therefore paying claims would not affect its ability to
perform cleanup of the site.
bottlenecks in energy's claims process delay filing of workers'
compensation claims
As a result of Energy's policies and procedures for processing
claims, claimants have experienced lengthy delays in receiving the
determinations they need to file workers' compensation claims. In
particular, the number of cases developed during initial case
processing has not always been sufficient to allow the physician panels
to operate at full capacity. Moreover, even if these panels were
operating at full capacity, the small pool of physicians qualified to
serve on the panels would limit the agency's ability to produce more
timely determinations. Energy has recently allocated more funds for
staffing for case processing, but it is still exploring methods for
improving the efficiency of its physician panel process.
Sufficient Cases Have Not Always Been Available for Physician Panel
Review
Energy's case development process has not consistently produced
enough cases to ensure that the physician panels are functioning at
full capacity. To make efficient use of physician panel resources, it
is important to ensure that a sufficient supply of cases is ready for
physician panel review. Energy officials established a goal of
completing the development on 100 cases per week by August 2003 to keep
the panels fully engaged.
However, as of September 2003, Energy officials stated that the
agency was completing development of only about 40 cases a week.
Further, while agency officials indicated that they typically assigned
3 cases at a time to be reviewed within 30 days, several panel
physicians indicated that they received fewer cases, some receiving a
total of only 7 or 8 during their first year as a panelist.
Energy was slow to implement its case development operation.
Initially, agency officials did not have a plan to hire a specific
number of employees for case development, but they expected to hire
additional staff as they were needed. When Energy first began
developing cases, in the fall of 2002, the case development process had
a staff of about 14 case managers and assistants. With modest staffing
increases, the program quickly outgrew the office space used for this
function.
Though Energy officials acknowledged the need for more personnel by
spring 2003, they delayed hiring until additional space could be
secured, in August. As of August 2003, Energy had more than tripled the
number of employees dedicated to case development to about 50, and
Energy officials believe that they will now be able to achieve their
goal of completing development of 100 cases a week that will be ready
for physician panel review.
Energy officials cited a substantial increase in the number of
cases ready for physician panel review during October 2003, and
reported preparing more than a hundred cases for panel review in the
first week of November 2003.
Energy shifted nearly $10 million from other Energy accounts into
this program in fiscal year 2003, and plans to shift an additional $33
million into the program in fiscal year 2004, to quadruple its case-
processing operation. With additional resources, Energy plans to
complete the development of all pending cases as quickly as possible
and have them ready for the physician panels. However, this would
create a large backlog of cases awaiting review by physician panels.
Because most claims filed so far are from workers whose medical
conditions are likely to change over time, creation of such a backlog
could further slow the decision process by making it necessary to
update medical records before panel review.
The Ability to Produce More Timely Decisions May Be Limited by the
Small Pool of Qualified Physicians and Gaps in Information They
Need to Quickly Decide Cases
Even if additional resources allow Energy to speed initial case
development, the limited pool of qualified physicians \7\ for panels
will likely prevent significant improvements in processing time.
Currently, approximately 100 physicians are assigned to panels of 3
physicians. In an effort to improve overall processing time, Energy has
requested that NIOSH appoint an additional 500 physicians to staff the
panels. NIOSH has indicated that the pool of physicians with the
appropriate credentials and experience (including those already
appointed) may be limited to about 200.
---------------------------------------------------------------------------
\7\ The criteria NIOSH uses to evaluate qualifications for
appointing physicians to these panels include: (1) board certification
in a primary discipline; (2) knowledge of occupational medicine; (3)
minimum of 5 years of relevant clinical practice following residency;
and (4) reputation for good medical judgment, impartiality, and
efficiency.
---------------------------------------------------------------------------
Even if Energy were able to increase the number of panel physicians
to 200, with each panel reviewing 3 cases a month, the panels would not
be able to review more than 200 cases in any 30-day period, given
current procedures. Thus, even with double the number of physicians
currently serving on panels, it could take more than 7 years to process
all cases pending as of June 30, 2003, without consideration of the
hundreds of new cases the agency is receiving each month.\8\
---------------------------------------------------------------------------
\8\ This 7-year estimate assumes that none of the pending cases
would be determined ineligible on the basis of non-covered employment
or illnesses because we did not possess a sufficient basis for
projecting the number of additional cases that would be determined
ineligible in the future.
---------------------------------------------------------------------------
Energy officials are exploring ways that the panel process could be
made more efficient. For example, the agency is currently planning to
establish permanent physician panels in Washington, DC. Physicians who
are willing to serve full-time for a 2- or 3-week period would staff
these panel. In addition, the agency is considering reducing the number
of physicians serving on each panel--for example, initially using one
physician to review a case, assigning a second physician only if the
first reaches a negative determination, and assigning a third physician
if needed to break a tie. Energy staff are currently evaluating whether
such a change would require a change in their regulations.
Agency officials have also recommended additional sources from
which NIOSH might recruit qualified physicians and are exploring other
potential sources. For example, the physicians in the military services
might be used on a part-time basis. In addition, physicians from the
Public Health Service serve on temporary full-time details as panel
physicians.
Panel physicians have also suggested methods to Energy for
improving the efficiency of the panels. For example, some physicians
have stated that more complete profiles of the types and locations of
specific toxic substances at each facility would speed their ability to
decide cases. In addition, one panel physician told us that one of the
cases he reviewed received a negative determination because specific
documentation of toxic substances at the worker's location was lacking.
While Energy officials reported that they have completed facility
overviews for about half the major sites, specific data are available
for only a few sites. Agency officials said that the scarcity of
records related to toxic substances and a lack of sufficient resources
constrain their ability to pursue building-by building profiles for
each facility.
Mr. Chairman, this completes my prepared statement. I would be
happy to respond to any questions you or other members of the Committee
may have at this time.
Senator Bunning. Dr. Burton.
STATEMENT OF JOHN F. BURTON, JR., Ph.D., PROFESSOR, RUTGERS
UNIVERSITY
Dr. Burton. Senator Bunning, thank you. My name is John
Burton and I am here on my own behest, I guess, at the request
of the committee. I served as a member of the Workers Advocacy
Advisory Committee for the Department of Energy in 2001 and
2002. I previously served as the chairman of the National
Commission on State Workman's Compensation Laws, which
submitted its report in 1972.
My views on the proper method to compensate workers who
participated in the nuclear weapons program have evolved. My
starting point reflected the attitude of the National
Commission, which supported Federal standards for State workers
compensation programs but opposed federalization of those State
programs. My preference for State-administered programs led me
to support the initial concept of subtitle D of the act, which
essentially relied on State workers compensation programs to
deliver benefits to workers from the nuclear weapons industry.
Many of these workers did not qualify for workers
compensation benefits under the compensability rules included
in most State workers compensation programs. Nonetheless, I
assumed that those parties interested in State workers
compensation programs would welcome the opportunity to rectify
the deficiencies of these State programs because of the
compelling case presented by disabled workers or their
survivors in the industry and because of the interest of the
parties in workers compensation to demonstrate that the State
programs could adapt to the demonstrated deficiencies.
My views have changed over the 3 years since the act was
enacted about the desirability and the feasibility of the
approach used in subtitle D. There are several reasons why my
views have changed. First, my conversations and meetings with
State workers compensation administrators indicated that many
of them did not view the act as an effort to preserve essential
elements of State workers compensation programs, but rather as
a Federal program incompatible with the purposes of the State
programs. These administrators essentially say they would
prefer a pure Federal program that does not force them to bend
the normal compensability rules in their State programs.
Second, some States have gone beyond the mere expression of
uneasiness with the prospects of bending the spirit of the act,
namely to reach out to workers who historically did not meet
the compensability test for workers compensation benefits, they
have gone beyond uneasiness to establishing a hostile
environment for workers with subtitle D claims.
A third reason why I have serious doubts about the subtitle
D approach is that even in States where the workers
compensation agency is sympathetic to the spirit of the act and
is willing to stretch the legal rules as far as possible, there
are serious legal problems in processing claims. For example,
even if a claim is accepted, how is the extent of disability to
be determined.
If, for example, a worker has a condition that the employer
concedes is compensable and the worker asserts she is 80
percent disabled, but the employer feels she is only 30 percent
disabled, can the employer present evidence to support the
employer's view? If so, will the Department of Energy reimburse
the employer for the expenses associated with presenting this
evidence?
A fourth reason why the subtitle D approach is questionable
is that there apparently are a significant number of workers
for whom there is no willing payor. We have heard testimony on
that certainly this morning. At a minimum, there appear to be
15 percent of workers who would qualify for benefits but for
whom there are no contractors or insurers who can be ordered or
even encouraged to pay benefits.
These reasons have persuaded me that the current approach
to compensating workers from the nuclear weapons industry
contained in subtitle D is fatally flawed. I reluctantly
concluded that the approach that attempts to blend Federal and
State procedures and criteria for benefits will not work. My
suggestion is that subtitle D be abandoned in favor of a
Federal program of benefits for disabled workers or their
survivors in the nuclear weapons industry who can establish
that their medical conditions are a result of occupational
conditions or exposures in the industry.
I will not try to specify the details of such a program
here. The compensability rules being used by the physicians
panels should be the starting point for determining
eligibility. The starting point for benefits should be the
Model Workers Compensation Act which was published by the
Council of State Governments in the 1970's.
The current issue about whether the administration of
subtitle D benefits should be transferred from the Department
of Energy to the Department of Labor is in my view of secondary
importance to establishing a viable program of benefits for
those workers covered by subtitle D. The Department of Labor
appears to be doing a commendable job of administering the
subtitle B benefits, especially those included in the special
exposure cohort.
However, if the current subtitle D claims were transferred
to the Department of Labor without changes in the basic design
of the program, the Department of Labor would face most of the
fundamental reasons specified above why the subtitle D claims
are not viable, such as the problems of recalcitrant, if not
hostile, State workers compensation agencies and the lack of
willing payors. These problems are not going to disappear by
moving the files from Independence Avenue to Constitution
Avenue.
[The prepared statement of Dr. Burton follows:]
Prepared Statement of John F. Burton, Jr., Ph.D., Professor,
Rutgers University
Mr. Chairman and members of the committee: My name is John Burton.
I am appearing at the request of the Committee on Energy and Natural
Resources. I am a Professor in the School of Management and Labor
Relations at Rutgers: The State University of New Jersey. I am
currently the Chair of the Steering Committee on Workers' Compensation
of the National Academy of Social Insurance and a member of the
Advisory Council on Workers' Compensation for the Commissioner of the
New Jersey Department of Labor. I am, however, submitting this
statement on my own and not as a representative of these organizations
I served as a member of the Workers Advocacy Advisory Committee
(WAAC) for the Department of Energy in 2001-02. I previously served as
the Chairman of the National Commission on State Workmen's Compensation
Laws, which submitted its report to the President and the Congress in
1972.
I am attaching a statement submitted to a Hearing on Proposed
Physician Panel Rules held by the Department of Energy on October 10,
2001.* Subsequent to that hearing, I attended various meetings of the
WAAC, and I chaired a meeting of the Contractors and Insurers
Cooperation Subcommittee of the Workers Advocacy Advisory Committee in
December 2002. Since the demise of the WAAC at the end of 2002, I have
been much less involved in monitoring developments under the EEPOCA,
although I have read a number of reports, news articles, editorials,
and documents concerning recent developments under the program.
---------------------------------------------------------------------------
* The attachment has been retained in committee files.
---------------------------------------------------------------------------
My views on the proper method to compensate workers who
participated in the nuclear weapons program have evolved. My starting
point reflected the attitude of the National Commission on State
Workmen's Compensation Laws, which supported federal standards for
state workers' compensation programs, but opposed federalization of the
state programs. I use the term ``federalization'' to mean a uniform set
of standards established by the Federal government and operation of the
program by federal employees. My aversion to federalization was based
in part on my perception that historically federal workers'
compensation programs, notably the Federal Employees Compensation Act
(FECA), were not particularly well designed or administered.
My preference for state-administered programs led to me support the
initial concept of Subtitle D of the EEOICPA, which essentially relied
on state workers' compensation programs to deliver benefits to workers
from the nuclear weapons industry. Many of these workers did not
qualify for workers' compensation benefits under the compensability
rules included in most state workers' compensation programs.
Nonetheless, I assumed that those parties interested in state workers'
compensation programs, including state administrators, private
insurance carriers, and employers, would welcome the opportunity to
rectify the deficiencies of the state programs because of the
compelling case presented by disabled workers or their survivors in
this industry and because of the interest of the parties in workers'
compensation to demonstrate that the state programs could adapt to the
demonstrated deficiencies.
My views have changed over the three years since the EEOICPA was
enacted about the desirability and feasibility of the approach used in
Subtitle D, which largely relies on state workers' compensation
programs to provide benefits to deserving workers and their families.
There are several reasons why my views have changed. First, my
conversations and meetings with state workers' compensation
administrators indicated that many of them did not view the EEOCIPA as
an effort to preserve essential elements of state workers' compensation
programs, but rather as a federal program incompatible with the
purposes of the state programs. These administrators essentially said
they would prefer a pure federal program that does not force them to
bend the normal compensability rules in their state programs. Second,
some states have gone beyond the mere expression of uneasiness with the
prospects of blending the spirit of the EEOCIPA (namely to reach out to
workers who historically did not meet the compensability tests for
workers' compensation benefits) to establishing a hostile environment
for workers with Subtitle D claims.
A third reason why I have serious doubts about the Subtitle D
approach is that even in states where the workers' compensation agency
is sympathetic to the spirit of the EEOICPA and is willing to stretch
the legal rules as far as possible, there are still serious legal
problems in processing claims. For example, even if a claim is
accepted, how is the extent of disability to be determined? A
contractor may follow DOE directives and not contest the compensability
of the claim, but the most vexing issue in many workers' compensation
cases is the extent of disability. The most expensive and controversial
type of workers' compensation claim is one in which the worker is
permanently and partially disabled. If the worker has a condition that
the employer concedes is compensable, and the worker asserts she is 80
disabled but the employer feels she is only 30 disabled, can the
employer present evidence to support the employer's view? If so, will
the DOE reimburse the employer for the expenses associated with
presenting this evidence?
A fourth reason why the Subtitle D approach is questionable is that
there apparently are a significant number of workers for whom there is
no willing payor. At a minimum, there appear to be 15 percent of
workers who would qualify for benefits but for whom there are no
contractors or insurers who can be ordered or even encouraged to pay
benefits. (The failure to have a better estimate of the magnitude of
this problem is frustrating, because the WAAC encouraged the Department
of Energy to devote resources to clarifying this issue on several
occasions with little success. For example, we suggested that a random
sample of several hundred cases be drawn from all the applicants and
the payor status of these cases be examined. To the best of my
knowledge, the DOE has never implemented this suggestion.)
These reasons have persuaded me that the current approach to
compensating workers from the nuclear weapons industry contained in
Subtitle D is fatally flawed. I have reluctantly concluded the approach
that attempts to blend federal and state procedures and criteria for
benefits will not work. (I want to make clear that I still support
federal standards for state workers' compensation programs of the type
recommended by the National Commission on State Workmen's Compensation
Laws.)
My suggestion is that Subtitle D be abandoned in favor of a federal
program of benefits for disabled workers (or their survivors) in the
nuclear weapons industry who can establish that their medical
conditions are a result of occupational conditions or exposures. I will
not try to specify the details of such a program here. The
compensability rules being used by the physicians' panels should be the
starting point for determining eligibility. The starting point for
benefits should be the Model Workers' Compensation Act (Revised), which
was published by the Council of State Government in the 1970s. (The
Federal Employees Compensation Act is not an appropriate starting
point.)
The current issue about whether the administration of Subtitle D
benefits should be transferred from the Department of Energy to the
Department of Labor is, in my view, of secondary importance to
establishing a viable program of benefits for those workers covered by
Subtitle D. The Department of Labor appears to be doing a commendable
job of administering the Subtitle B benefits, especially those included
in the special exposure cohort (SEC). However, for those claimants
under Subtitle B for whom the Department of Labor relies on NIOSH to
construct individual dose reconstruction or to designate additional
members of the SEC, the Department of Labor has processed only a small
percentage of claims, which suggests there is no inherent advantage to
having the Department of Labor responsible for administering claims.
Moreover, if the current Subtitle D claims were transferred to the
Department of Labor without changes in the basic design of the program,
the Department would face most of the fundamental reasons specified
above why the Subtitle D claims are not viable, such as the problems of
recalcitrant if not hostile state workers' compensation agencies and
the lack of willing payors. These problems are not going to disappear
by moving the files from Independence Avenue to Constitution Avenue.
Senator Bunning. You are the first person what ever did it
exactly in 5 minutes. Congratulations.
Mr. Leon Owens.
Dr. Burton. There must be a Nobel Prize or something.
Senator Bunning. Something, something special.
STATEMENT OF LEON OWENS, PRESIDENT, PACE LOCAL 5-550, PADUCAH,
KY
Mr. Owens. Good morning, Senator Bunning.
Senator Bunning. Good morning.
Mr. Owens. My name is Leon Owens. I am employed as a
production cascade operator at the Paducah Gaseous Diffusion
Plant in Paducah, Kentucky. Before the privatization of the
United States Enrichment Corporation, I was employed by DOE
contractors. I serve as the president of PACE Local 5-550 in
Paducah, which represents 750 hourly maintenance, production,
and environmental cleanup workers at the site. I also serve on
the Federal Advisory Board on Radiation and Worker Health,
which by law is required to advise and audit the NIOSH
radiation dose reconstruction process. However, I am here in my
capacity as president of the local union which represents
workers at Paducah.
Until the Washington Post article appeared on August 8,
1999, most Paducah workers, including myself, did not realize
they were potentially exposed to toxic substances, such as
plutonium, neptunium, and technetium compounds. Senate Energy
Committee field hearings held by you and subsequent investments
by the Department of Energy confirmed that workers were exposed
for decades to these extremely radiotoxic elements, up to 2,000
times the maximum threshold levels. Furthermore, adequate
respiratory protection and radiation monitoring were not
provided for over 40 years.
A March 11, 1960, memorandum from the Director of the
Atomic Energy Commission's Division of Biology and Medicine
states: ``There are possibly 300 people at Paducah who should
be checked out for neptunium exposure, but they hesitate to
proceed to the intensive studies because of the union's use of
this as an excuse for hazard pay.''
The memo further stated to ``get post-mortem samples on any
of these potentially contaminated men for correlation of tissue
content with urine output, but I am afraid the policy at this
plant is to be wary of the unions and any unfavorable public
relations.''
In 1999, the Department of Energy medical screening program
was initiated at Paducah. Approximately 1900 workers have been
screened and physicians have diagnosed lung diseases for which
there is an occupational contribution in 24 percent of the
workers they have examined. In addition, 42 individuals have
had at least one positive blood test for beryllium sensitivity.
2,215 subtitle D claims have been filed in Paducah and to
my knowledge only one claim has been moved through the
physicians panel and not a single claim has been paid. Even if
a valid claim had been approved through the physicians panel,
it is unclear whether there will be a willing payor because DOE
cannot direct USEC to abide by physicians panel determinations
and private insurers on any of the claims from the Union
Carbide era. The memorandum of agreement that DOE entered into
with the State of Kentucky makes it plain that DOE cannot
direct the State of private insurance companies to honor DOE's
physicians panel findings.
Mr. Chairman, when this historic piece of legislation was
enacted Congress knew that subsequent enabling legislation was
needed. That is why it directed the administration to submit
subsequent enabling legislation no later than March 15, 2001,
and it further directed the General Accounting Office to
evaluate the effectiveness of DOE's implementation of subtitle
D no later than February 1, 2002.
The DOE lacks the capacity to effectively administer claims
processing responsibilities. Furthermore, its performance and
broken commitments justify a change. The union supported the
Grassley-Murkowski amendment as well as the Energy Workers
Compensation Act which was filed in the 107th Congress by
Senator Bingaman and Senator Bunning. These legislative
vehicles would rectify the existing problems with subtitle D by
transferring the administration of subtitle D claims to the
Department of Labor and provide for a willing payor for all
valid claims.
The DOL has swiftly implemented a well-run program in
administering subtitle B claims and the DOL has not only the
expertise and infrastructure to correct DOE's flawed program,
but also the excess capacity to process more claims because it
has worked off most of its backlog.
Mr. Chairman, we understand that DOE has received
recommendations from the Hays Company, a consultant it brought
in to tell its contractor how to do better. The recommendations
call for shifting the burden back to the employee when there is
little or no known medical causation. Using this new standard,
DOE could clear out its backlog of claims in a matter of
months. This recommendation prejudges cases even before they
arrive at the physicians panel.
We urge legislative reforms because time is running out for
many of these sick workers, who performed an essential function
and mission for the U.S. Government and have been put at
needless risk and harmed by DOE and its contractors.
Thank you very much.
[The prepared statement of Mr. Owens follows:]
Prepared Statement of Leon Owens, President,
PACE Local 5-550, Paducah, KY
My name is Leon Owens. I am employed as a ``cascade operator'' at
the Paducah Gaseous Diffusion Plant (PGDP) in Paducah, Kentucky. I have
been employed by Department of Energy (DOE) contractors, USEC (the
government-owned corporation) contractors, and I am now employed by
USEC, Inc. I serve as President of Local 5-550 of the Paper, Allied-
Industrial, Chemical & Energy Workers Union (PACE), which represents
hourly maintenance, production and environmental cleanup workers at the
Paducah plant. My address is 315 Palisades Circle, Paducah, KY 42001.
Phone: 270-554-7818 (h).
I serve on the Advisory Board on Radiation and Worker Health
(ABRWH), which advises the Secretary of Health and Human Services on
the implementation of NIOSH's responsibilities under the Energy
Employees Occupational Illness Compensation Program Act (EEOICPA).
operations at paducah were extremely hazardous and workers were
unprotected from radiological and toxic chemical hazards
On September 20, 2000, Senator Jim Bunning held an Energy Committee
field hearing in Paducah to investigate claims about how workers at the
Paducah Gaseous Diffusion Plant (``PGDP'') were exposed to highly
radiotoxic substances, particular plutonium and neptunium, for over 40
years without ever knowing or being monitored. During the cold war, the
number one priority at the PGDP was the production of enriched uranium,
and this took precedence over safety.
During the process of working with irradiated recycled uranium and
converting it into uranium hexaflouride (``UF6'')--the feed material
for the uranium enrichment plant--workers were unknowingly exposed to
uranium dusts laced with plutonium-239, neptunium-237, and technetium-
99. Until a Washington Post article appeared on August 8, 1999, most
workers, including myself, did not know we were potentially exposed to
plutonium.
When ambient air sampling was conducted in the 1960's, airborne
concentrations were found in excess of 100 times the PGDP's maximum
permissible level for neptunium-237. When the PGDP Health Physics
Department surveyed the Convertor Shop (C-720) in 1980, airborne levels
of alpha emitting radiation exceeded the plant guidance by a factor of
1,680 for uranium, by a factor of 2,121 for neptunium-237, and by a
factor of 2,483 for plutonium-239.\1\ AEC implemented a plan to keep
workers in the dark about their exposures for over 40 years.
---------------------------------------------------------------------------
\1\ Phase II Independent Investigation of the Paducah Gaseous
Diffusion Plant, Environment, Safety and Health Practices 1952-1990,
U.S. Department of Energy, Office of Oversight/Environment, Safety and
Health.
---------------------------------------------------------------------------
A 1960 Atomic Energy Commission memo entitled Neptunium-237
Contamination Problem, Paducah, Kentucky, stated: \2\
---------------------------------------------------------------------------
\2\ Neptunium-237 Contamination Problem, Paducah, Kentucky,
February 4, 1960, C.L. Dunham, MD, Director, AEC Division of Biology
and Medicine and H.D. Brunner, MD, Chief of Medical Research, AEC
Division of Biology and Medicine.
``There are possibly 300 people at Paducah who should be
checked out [for neptunium exposure], but they are hesitant to
proceed to intensive studies because of the union's use of this
as an excuse for hazard pay.'' (Attachment ``A'') *
---------------------------------------------------------------------------
* Attachments have been retained in committee files.
Neptunium-237 concentrates in the liver and bones, and by mass, is
10,000 times more radiotoxic than uranium-238.\3\ With respect to the
adequacy of respiratory protection, the memo added:
---------------------------------------------------------------------------
\3\ EPA Guidance Report No. 11.
``I don't have too much faith in masks, and the dust
particles here are about 0.5 micron, the very worst size
---------------------------------------------------------------------------
biologically speaking.''
Masks in that time period were WW-II vintage. There were filthy,
hot, rarely worn, and would not have filtered particles that small. The
memo also urged DOE's contractor, Union Carbide, to:
``get post mortem samples on any of these potentially
contaminated men for correlation of tissue content with urine
output, but I'm afraid the policy at this plant is to be wary
of the unions and any unfavorable public relations.''
Until 1991--40 years after the memo was issued--DOE's contractor
did not offer to test workers for uptake of neptunium, plutonium or
technetium compounds.
What this memo and monitoring data makes clear is that the workers
at PGDP were put in harm's way knowingly and without adequate
protections or monitoring. This was not mere happenstance. Conscious
decisions were made not to notify or monitor workers for certain
hazards out of public relations or fears of union demands.
Our members' loyalty to the national defense mission of enriching
uranium has never been in question. If called upon, we would do it
again under the same conditions. However, this loyalty was not
reciprocated by the government or its contractors.
Health and safety controls were quite minimal over most of the life
of this plant. We had no external oversight from OHSA or the Nuclear
Regulatory Commission until the Energy Policy Act of 1992 required the
two enrichment plants in Ohio and Kentucky be subjected to external
regulation. Tens of millions were needed to upgrade safety and health
conditions before the NRC would provide a certificate of compliance.
The Paducah site did not have a contamination control
program for 40 years, leading to contamination of workers'
clothes, shoes and skin. The absence of controls led to workers
tracking radioactive contamination off site and into their
homes.
Uranium fires self-ignited after workers dumped uranium
chips into open pits. Workers poured dirt over the burning
uranium to try to snuff it out, and had no respiratory
protection.
After the processing of neptunium and plutonium contaminated
uranium stopped in the C-410 building, DOE converted it into an
employee locker room and electrical repair shop for 13 years.
Radiation was measured up to 350,000 dpm fixed in locker rooms.
Shower and toilet areas had 175,000 dpm fixed. These areas
should have been posted as contamination areas as this exceeded
DOE's 5000 dpm (fixed) threshold by 35-70 times.
summary of findings from doe's investigations
After the Washington Post articles about the whistleblower lawsuits
at Paducah, the Department of Energy launched an in-depth assessment of
historical worker safety practices at the three uranium enrichment
plants. DOE's 76-page Independent Investigation of the Paducah Gaseous
Diffusion Plant, 1953-1990, details many of the hazards, including:
Acute and chronic exposures to chemical hazards such as
trichloroethylene, PCBs and hydrogen fluoride (``HF'')
occurred, and the potential risks of such exposures were not
fully recognized by workers or the Health Physics and Hygiene
department. Exposures to HF resulting in burns, respiratory
distress, and bleeding were frequent in the 1950s and 1960s,
and the potential long term health effects are unknown.
There was a widespread belief that uranium did not present a
significant health risk to workers. Consequently, eating,
drinking and smoking in contaminated areas; failure to wash or
remove contaminated clothing before entering the cafeteria; and
wearing of contaminated clothing off site without monitoring
occurred during this period.
Asbestos has been a significant hazard at the plant since
construction (1952). Asbestos fibers are carried into the body
as airborne particles, and these fibers can become embedded in
the tissues of the lung and digestive system. Once these fibers
become trapped in the alveoli, they cannot be removed. However,
asbestos hazards were not recognized, and routine monitoring of
asbestos did not begin until the 1980s.
Until February 2000, DOE had never informed workers that beryllium
was found at Paducah, although it had been previously identified in
1994, and was machined as part of a Cold War weapons dismantlement
project. Worker testing for beryllium did not begin until September
2001 through the former worker medical screening program. Up to this
point no one was protected from beryllium exposure.
medical monitoring has uncovered occupational disease and saved lives
The DOE Worker Medical Screening Program at Paducah has screened
approximately 1900 workers to date. Physicians have diagnosed lung
disease for which there is an occupational contribution in 24% of the
workers they have examined. These pulmonary diseases include asbestos
related conditions, chronic bronchitis, silicosis and emphysema. In
addition, 42 individuals had at least one positive blood test
(beryllium lymphocyte proliferation test) for beryllium sensitivity and
1 case of chronic beryllium disease was identified.
We are grateful that the Appropriations and Armed Services
Committees have directed DOE to fund the enhanced medical screening
program at Paducah, Portsmouth and Oak Ridge K-25. This screening
program includes a mobile early lung cancer detection unit that uses a
low-dose CT scanning technology. This lung screening is saving lives
because the low dose CT scanner is successfully identifying cancers at
stage 1--the earliest stage--and increasing the odds of survival for
type of cancer that is fatal 85% of the times when it is detected at
stage 3.
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\4\ Larynx cancer should be added as a listed cancer for members of
the Special Exposure Cohort. Epidemiology studies of workers at Linde
in Tonowanda, NY indicate a SMR of 4.47 for larynx cancer.
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special exposure cohort and the implications for subtitle d
Paducah workers were placed into a Special Exposure Cohort as part
of EEOICPA. Claimants receive a presumption of causation if (1) they
contract one of 2 radiosensitive ``specified cancers'', (2) were
employed for at least one year in a job that requires a radiation
dosimeter, and (3) there is a 5-year minimum latency from first
exposure to diagnosis for most cancers. Dose reconstruction is not
required for those with the 22 ``specified'' cancers.
The Special Exposure Cohort is similar to the presumption provided
to certain Atomic Veterans who contract a listed cancer. And although
we were not on the battlefield, we worked in a government defense plant
with ultra-hazardous materials as part of the nation's defense, and as
were every bit in harm's way. Claimants confront an insurmountable
burden of proof in a claim for compensation because the contractor
decided not to monitor us for uptakes of extremely radioactive
transuranic compounds for over 40 years.
DOE has not indicated how it will develop claims for radiation
induced cancers for Special Exposure cohort sites, because NIOSH is not
going to be performing radiation dose reconstruction on the workers who
are in the Special Exposure Cohorts. H.R. 1758 proposes that the
presumptions for membership in the Special Exposure Cohort also be
applied to Subtitle D claims. A DOE policy is needed for those who are
in Special Exposure Cohorts and filed cancer claims under Subtitle D.
claims processing: doe vs. dol at paducah
At Paducah, only 1 out of 2,215 claims that were filed at Paducah
under Subtitle D have moved through the DOE physicians panel as of 11/
1//03. Not a single claim has been paid through DOE's Subtitle D
program at Paducah.
By contrast, the Department of Labor has issued 2,469 recommended
decisions out of 3,393 cases filed by Paducah claimants, with 918
recommended approvals and 1,551 recommended denials. DOL has paid
$125.2 million paid to Paducah claimants as of October 29, 2003. Most
of these payments are to members of the Special Exposure Cohort. DOE's
performance is simply inexcusable.
the harding case
On August 9, 2001--a week after the program formally started
operations--DOL issued its first payment of $150,000 to Clara Harding,
the widow of Joe Harding.
This first payment was very significant. Mr. Harding died at age 58
in March 1980 of abdominal cancer. He worked at the Paducah plant for
nearly 20 years, from 1952 until 1971, and was found with dramatically
elevated levels of uranium in his bones after he died. Mrs. Harding
battled DOE for 15 years to gain a survivor benefit under Kentucky's
state worker compensation law, and failed on a legal technicality--
statutes of limitations--after the DOE and its contractor spent in
excess of $1 million to defeat a claim that would have settled for
$50,000. The DOE's efforts to defeat Mr. Harding's case were detailed
in a front page Washington Post story in 1999. It is cases like Mrs.
Harding's that underscore the need to get DOE out of the business of
fighting sick workers.
issuing regulations: doe vs. dol
Although DOE staff had developed regulations by June 2001, DOE's
management failed to make this rulemaking a priority and did not
finalize Physician Panel regulations for 18 months until September
2002.
By contrast, DOL issued its Interim Regulations on May 15, 2001 and
they were used for deciding claims when EEOICPA formally began
operations on July 31, 2001.
there is no willing payor for many claimants at paducah
Besides the glacial pace of claims processing, many of the valid
claims at Paducah will not have a ``willing payor.'' A willing payor is
an entity which DOE can meaningfully direct to pay claims after a
Physicians Panel renders a positive determination.
GAO indicates in its preliminary briefings to Congress that at
least 50% of the Paducah claimants will not have a ``willing payor.''
We suspect that GAO's final conclusions will indicate that this
percentage is higher. There are several reasons for the absence of a
willing payor at Paducah.
DOE cannot direct USEC, Inc., which was privatized and
leases the Paducah Gaseous Diffusion Plant, to serve as a
``willing payor.''
DOE cannot direct Aetna or other insurance companies to pay
claims on insurance policies they issued decades ago for
Paducah contractors like Union Carbide. DOE has not clarified
if Bechtel Jacobs, which is self-insured, will assume
responsibility at Paducah for all claims that were ``owned'' by
Aetna or others.
Many of Paducah's subcontractors used private worker
compensation insurance carriers to provide worker compensation
insurance. Private insurers are not bound by DOE physician
panel determinations.
Let me give you an example. My co-worker, Rod Cook, age 54, is a
plant Superintendent at USEC who contracted pleural fibrosis from his
years of breathing asbestos in the course of his job as a plant
operator. Last year he started coughing up blood. Surgeons had to
remove a portion of his lung and several feet of lung tissue removed
that had built up around his lung.
In May 2002, Rod filed a claim with DOE under Subtitle D of the
Act. He didn't get a claim number for 18 months--until a couple of
weeks ago. He was finally asked for his medical records for the first
time a few weeks ago. What took so long?
Rod is back to work, luckily, and has only lost 20% of his lung
function at this time, but should he become disabled, he has no way to
replace his lost income.
In the meantime, Rod is seeking to have his out of pocket medical
costs paid related to his lung surgery under Subtitle D. USEC is not a
willing payor. Aetna insured Union Carbide when they ran the plant.
Aetna is not a willing payor. Who will own responsibility for paying
Rod's claim? If Rod becomes disabled, as many are, will they have to
wait for years while DOE looks for a willing payor? Or should Congress
step in and assure a willing payor for valid claims?
The September 13, 2002 Memorandum of Agreement between the
Commonwealth of Kentucky and DOE makes it plain that DOE cannot bind
the state or private insurance companies to honor the findings of a DOE
physicians panel. The MOA states in Section 2:
``A positive determination pursuant to [DOE's Physician
Panel] has no effect on the scope of State workers'
compensation proceedings, the conditions for compensation, or
the rights and obligations of participants in the proceedings;
provided that consistent with subtitle D such a determination
will prevent DOE and may prevent a DOE contractor from
contesting an applicants worker compensation claim.'' \5\
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\5\ Memorandum of Agreement between the U.S. Department of Energy
and the Commonwealth of Kentucky, September 13, 2003.
Even a non-lawyer like myself can see that this Memorandum of
Agreement allows the Commonwealth of Kentucky, if it so chooses, to
disregard a Physicians Panel determination when evaluating a state
worker compensation claim. Moreover, Kentucky will not agree to bind an
insurer or employer to a DOE Physicians Panel finding.
when eeoicpa was passed, congress knew subsequent enabling legislation
was needed
When EEOICPA was finalized in the House-Senate Conference Committee
of the FY 01 Defense Authorization Act in October 2000, many important
implementation issues were left unresolved. Thus:
1) EEOICPA required GAO to assess of the effectiveness of the
Subtitle D program and report to Congress by February 1, 2002. However,
DOE's slow progress in developing its Subtitle D program added another
year to the wait before GAO could provide recommendations; and
2) EEOICPA required that not later than March 15, 2001, the
President shall submit to Congress a proposal for legislation to
implement the compensation program, including costs, number or workers
covered and specific recommendations (including draft legislation) of
the President for the following:
``(1) The types of compensation and benefits, including lost
wages, medical benefits, and any lump-sum settlement payments,
to be provided under the compensation program.
(2) Any adjustments or modifications necessary to
appropriately administer the compensation program under part B
of this subchapter
(3) Whether to expand the compensation program to include
other illnesses associated with exposure to toxic substances.
(4) Whether to expand the class of individuals who are
members of the Special Exposure Cohort (as defined in section
7384l(14)) of this title.'' (42 U.S.C. 7384f)
This administration did not forward a legislative proposal, and the
one provided to Congress by the Clinton Administration in 2001 in the
hours prior to the inauguration of President Bush was never considered.
If the Administration has no solutions to offer, we would be grateful
if Congress stepped in and designed a fix.
congress should reform eeoicpa by directing dol to process claims, run
the physicians panels and serve as a willing payor
The architecture of Subtitle D is based on the premise that DOE
could assist claimants with securing state worker compensation claims.
This is plainly unworkable. Moreover, DOE lacks the capacity to
effectively carry out the basic claims development and management of
physicians panels. The Grassley-Murkowski amendment was a constructive
first step. A November 9, 2002 Paducah Sun editorial entitled Failure
Rewarded noted that ``common sense'' got ``trashed'' with the defeat of
the Grassley amendment (Attachment ``B'').
A willing payor must be established soon. The Energy Workers
Compensation Act (S. 3058) introduced last year by Senators Bingaman
and Bunning established DOL as the ``willing payor'' for all valid
claims. It relies upon the Federal Employee Compensation Act (FECA) as
a framework for setting benefit levels. It is plain that DOE cannot
assure that every valid claim will have a ``willing payor.'' To give
workers a Physicians Panel determination and then tell them ``Sorry
there is no one to pay the claim'' perpetrates a cruel and unfortunate
hoax. So far the only winner is under Subtitle D is SEA, DOE's support
service contractor, who makes money no matter how badly workers fare in
this system.
A credible solution to fixing this program is to move all three key
responsibilities to the DOL (1) claims processing, (2) physicians
panels, and (3) payment responsibilities. Records retrieval will remain
with DOE.
summary
DOE's poor performance and broken commitments make it clear that it
is time to change agencies. DOE has failed in its claims processing
responsibilities, and has yet to solve the problem of ``willing
payors.'' Three years is plenty long enough for DOE to get the program
operational.
Claimants are ill and dying and really don't have time for DOE to
learn on the job. A cynical person might observe that the costs of this
program decline as people die off. DOE's consultants have warned that
EEOICPA Subtitle D may generate unanticipated costs for DOE's
Environmental Management Program.\6\ Thus, the perverse logic of delay
may not be far off the mark.
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\6\ Workers' Compensation Costs in the DOE/EM Program, PWC
Consulting, March 18, 2002. The report stated at Section 2.3: ``Four of
six sites we interviewed expressed significant concerns about the
Potential for an increase in new state WC claims from former workers.
Two drivers were generally cited: EEOICPA, and DOE-sponsored health
screening programs for former workers.
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What is equally troubling is that the Office of Management and
Budget refuses to provide any adult supervision. Rather they are
embracing failure by increasing funding while the federal officials and
their contractors--no matter how well intentioned--are still learning
on the job. There are professionals who can do a better job at the DOL
and it is time to turn it over to them. Congress should not invest any
longer in a failing program.
Thank you for your consideration.
Senator Bunning. Thank you, Mr. Owens, for your testimony.
Dr. David Michaels.
STATEMENT OF DAVID MICHAELS, Ph.D., PROFESSOR, GEORGE
WASHINGTON UNIVERSITY
Dr. Michaels. Thank you, Mr. Chairman.
I served as Assistant Secretary of Energy for Environment,
Safety and Health from 1998 to January 2001. I am honored the
committee invited me to provide testimony today. The first time
I testified in Congress was my Senate confirmation hearing in
this very room just over 5 years ago.
I will summarize my written testimony. Before the late
1990s----
Senator Bunning. We will accept the whole thing for the
record.
Dr. Michaels. Thank you, sir.
The Department of Energy had a longstanding policy to fight
all claims made by nuclear weapons workers that chemicals and
radiation may have caused them to be sick. This ended with the
historic initiative culminating in Congress passing this
legislation on a bipartisan, virtually unanimous basis. Most of
us believed that the new structure authorized in subtitle D
would overcome that old policy, known in the Forrestal Building
as ``deny and defend,'' and would ensure that the goal shared
by Congress and the administration of providing timely,
adequate, and uniform levels of compensation could be reached.
Senator, I am here to tell you that we were wrong. The
structure I recommended has failed. It is with real sadness and
disappointment that I have returned to this chamber to report
that DOE has demonstrated it is either unwilling or incapable
of implementing this program. As a result, it is now time for
the Congress to reevaluate the role and responsibility of the
Energy Department in helping sick workers.
My written statement reviews the genesis of the program.
One anecdote I should just repeat here. Pete Lopez, who
testified in front of Congress when this was being considered,
was diagnosed with beryllium sensitivity. DOE's contractor
physician made the diagnosis, helped him fill out the Texas
State Workers Compensation form, sent it in to DOE's third
party administrator because DOE was self-insured, and DOE's
third party administrator did what it always did for DOE: It
denied Mr. Lopez's claim.
I attached the form to my testimony that Mr. Lopez received
in the mail. It is a standard form saying: ``Carrier denies
this claim because it is an ordinary disease of life to which
the general public is exposed.'' It was that sort of attitude
we were trying to overcome. This is beryllium disease. Mr.
Lopez did not get beryllium disease on the golf course. He got
it assembling nuclear weapons at Pantex.
This did not occur in the bad old days. Mr. Lopez filed his
claim in the year 2000. He received his denial in 2000.
But the purpose of subtitle D was not merely to determine
work-relatedness. It was for DOE to step up to the plate and
start acting like a responsible employer. If a panel of
independent physicians determined the case was work-related,
DOE would actively assist that worker in getting State worker
compensation benefits. That is why we called the office ``the
Office of Worker Advocacy.''
One of the things I did as Assistant Secretary is I got on
the phone and called contractors up when cases were work-
related and said: This case should be taken care of, and they
were. I probably got more people--I did get more people
compensated just by getting on the phone than DOE has done in
this entire program.
DOE made a series of decisions that resulted in a program
that will compensate as few people as possible, as slowly as
possible, and I outline them in my testimony. I think they
hired a contractor with no background in workers compensation.
More tragically, they ignored the expert advice of the advisory
committee, several members of whom--Don Elisburg and John
Burton--are sitting on this panel, and then eventually had to
bring in an outside consultant to tell them some of the same
things the advisory committee could have told them 2 years
earlier.
I do not agree with DOE's interpretation that nothing can
be done, that they have no authorization to go beyond
essentially putting the worker through a physicians panel and
helping them fill out a form. I think there are a number of
solutions they could take on. But putting that aside, I think
everyone in this room understands that when DOE--DOE leadership
is not shy about suggesting new authorization language for
initiatives it supports. Yet in the many months since this
program has begun, DOE has never suggested a legislative
solution or any other solution to this problem.
What advice would I give you now? There is no question in
my mind this program could be managed far more effectively and
efficiently by the Department of Labor. Secondly, there are
many workers in this country for whom no benefit payor has been
identified. This is a situation reminiscent of the Radiation
Exposure Compensation Act of a few years ago. Congress
recognized the government cannot tell a sick worker or worker's
survivor that, yes, your disease was caused by helping the
Nation win the Cold War, you are deserving of benefits, but we
just cannot pay you. We need to resolve that.
Finally, another resource the Department of Energy has is
its former worker medical surveillance program. Rather than
using this resource to help adjudicate claims, which DOE has
orders to allow it to do, DOE has announced it is phasing out
the program. I would like to see Congress intervene in that as
well.
Senator Bunning, it is only 3 short years since the members
of this body enacted EEOICPA on a bipartisan, unanimous basis.
Together, 3 years ago we mounted this noble effort to make
peace with the past, to repay those who made great sacrifices
for their country. I ask you not to let this historic
initiative fail.
[The prepared statement of Dr. Michaels follows:]
Prepared Statement of David Michaels, Ph.D., Professor,
George Washington University
Thank you Mr. Chairman.
My name is David Michaels. I served as Assistant Secretary of
Energy for Environment, Safety and Health from 1998 to January 2001. In
that role, I had chief responsibility for protecting the health of
workers, communities and the environment around the nation's nuclear
facilities. I am honored that the Committee invited me to provide
testimony here today. The first time I testified in Congress was my
Senate confirmation hearing, in this very room, just over five years
ago.
I was no doubt invited to testify today because I am considered to
be the architect of the EEOICPA. Under Secretary Bill Richardson's
direction, I conceived of the original proposal, sheparded it through
the inter-agency process, and worked closely with Congress, including
several members of this Committee, through its passage and enactment
into law. I helped write the Executive Order, which assigned
responsibilities for the program to the Departments of Labor, Health
and Human Services, Energy and Justice. I continue to be associated
with the program--I am currently a consultant to the Department of
Labor. Needless to say, the views expressed in my testimony today are
purely my own.
Before the late 1990s, the Department of Energy had a long-standing
policy to fight all claims made by nuclear weapons complex workers that
chemicals and radiation may have caused them to become sick. This ended
with the historic initiative that culminated with passage of EEOICPA.
The Secretary of Energy, Bill Richardson, apologized to workers who had
been lied to. On a bipartisan, virtually unanimous basis, Congress
passed EEOICPA, providing a new workers compensation program in the
nuclear weapons industry. Most of us thought that this was a permanent
change, and that the Energy Department was poised to help workers. Most
of us believed that the new structure described in Subtitle D would
overcome that old policy--known in the Forrestal Building as ``Deny and
Defend''--and would ensure that the goal shared by Congress and the
Administration--providing timely, adequate and uniform levels of
compensation--could be reached.
Senators, I am here to tell you that we were wrong. The structure I
recommended has failed.
As many of you will recall, when you and your colleagues were
considering how to compensate these civilian cold war veterans, Senator
Voinovich introduced bipartisan legislation (S. 2519) that would have
placed the entire EEOIPCA program at the Department of Labor.
I personally assured Senator Voinovich, Senator Bingaman and other
members of Congress that the Department of Energy was the appropriate
place to house the program that would assist these workers to obtain
state workers compensation benefits
In retrospect, it is now clear to me that this is not the case. It
is with real sadness and disappointment that I have returned to this
chamber to report that the Department of Energy has demonstrated that
it is either unwilling or incapable of implementing the program
authorized in the EEOICPA.
Rather than serve as advocates for sick workers, DOE's leadership
appears to have designed an implementation strategy that will not
fulfill the clearly stated objectives of the EEOICPA legislation--not
merely to operate physician panels but to assist and advocate for sick
workers to ensure that they actually get compensation in state
programs. Sadly the DOE strategy is working--it is more than three
years since the Congress enacted EEOICPA, and DOE has not yet paid
compensation benefits to a single sick worker under subtitle D of the
Act.
As a result, it is now time for the Congress to re-evaluate the
role and responsibility of DOE in helping sick workers.
I'd like to spend a few moments reviewing the genesis of the
program.
In my confirmation hearing in front of this Committee in 1998, the
Chairman, Senator Frank Murkowski, asked me to examine the claims of
widows of DOE contractor employees who had been exposed to radiation
working around a series of underground nuclear detonations in Amchitka,
Alaska. I subsequently heard from sick workers and their survivors, and
from members of Congress representing these individuals, from
Washington State to South Carolina, from Los Alamos to Oak Ridge.
I talked to these workers, and their survivors, in public meetings
around the country. Members of Congress attended these meetings, and
heard, with me the stories of these cold war veterans, civilians who
put themselves in harm's way so that our nation could triumph, first in
World War Two, and then in the Cold War.
At these public meetings, and through my staff's investigations
into working conditions in the nation's nuclear weapons plants, we
documented the disturbing history of the U.S. government's denial of
the obvious--the Atomic Energy Commission (AEC), and then the DOE, hand
in hand with its contractors, had a policy of denying that working with
some of the most hazardous materials ever invented had made workers
sick. When workers claimed to be sick, boundless resources were
expended to fight them.
Two documents from the earliest years of the AEC, uncovered in the
investigation into human radiation experiments,\1\ are illustrative of
this policy. The first is a 1947 memo from Oak Ridge Operations to AEC
headquarters. It highlights the AEC's desire to limit liability and
fear associated with hazardous exposures:
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\1\ Advisory Committee on Human Radiation Experiments. Final
Report. Oxford University Press, 1996.
Papers referring to levels of soil and water contamination
surrounding Atomic Energy Commission installations, idle
speculation on future genetic effects of radiation and papers
dealing with potential process hazards to employees are
definitely prejudicial to the best interests of the government.
Every such release is reflected in an increase in insurance
claims, increased difficulty in labor relations and adverse
public sentiment.\2\
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\2\ Franklin, JC. Manager, Oak Ridge Operations, to Carroll L.
Wilson, AEC General Manager, 26 September 1947 (``Medical Policy'')
(ACHRE No. DOE-113094-B-3).
A similar sentiment is seen in a 1948 memo about a Los Alamos study
that found health effects from gamma radiation exposure at levels
previously thought to be safe. The memo, from the AEC's Insurance
Branch to the Declassification Branch, called for ``very careful
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study'' before releasing the report:
We can see the possibility of a shattering effect on the
morale of the employees if they become aware that there was
substantial reason to question the standards of safety under
which they are working. In the hands of labor unions the result
of this study would add substance to demands for extra-
hazardous pay knowledge of the results of this study might
increase the number of claims of occupational injury due to
radiation and place a powerful weapon in the hands of a
plaintiff's attorney.\3\
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\3\ Wilson, CE. Chief, Insurance Branch, to Anthony C. Vallado,
Deputy Declassification Officer, Declassification Branch, 20 December
1948 (``Review of Document by Knowlton'') (ACHRE No. DOE120894-E-32).
This attitude appeared to continue throughout the Cold War period.
In 1999, a suit was filed alleging that the contractor at the Paducah
Gaseous Diffusion Plant had concealed evidence of environmental
contamination by plutonium and other transuranic substances. In
response, I sent a team to investigate. Their work wasn't easy--the
oversight team I sent down, a group of very talented and dedicated
civil servants, had to search through documents that had been stored in
barrels that were contaminated with radioactive waste.
The team documented a legacy of poor safety and health practices
that went on for decades. Paducah workers were never warned that the
uranium that was contaminated with plutonium and neptunium.
Among the documents that we uncovered was one written by two senior
AEC physicians who were evaluating the neptunium 237 contamination
problem in the Paducah plant in 1960. Permit me to read some passages
from that memo:
The workers are supposed to wear special face masks but they
are not controlled too closely . . .
Np237 [neptunium] can now be detected in urine but not
consistently . . .
Np237 seems to be found only in reclaimed feed materials
provided by Hanford . . .
There are possibly 300 people at Paducah who should be
checked out but they hesitate to proceed to intensive study
because the union's use of this as an excuse for hazard pay.\4\
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\4\ Dunham, CL, Director, AEC Division of Biology and Medicine and
Brunner, HD, Chief of Medical Research, AEC Division of Biology and
Medicine. Neptunium-237 Contamination Problem, Paducah, Kentucky,
February 4, 1960.
But, you're probably saying, that was along time ago, in the bad
old days. Senators, I wish that were true. I want to tell you a story I
heard from Pete Lopez, who was exposed to beryllium assembling and
disassembling nuclear weapons at the Pantex facility, in Amarillo
Texas. (I am using Mr. Lopez's name here because it is public he
testified at the hearing of the House Judiciary Committee in 2001, and
told his story there, as well.\5\)
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\5\ Lopez, P. Testimony Before the Subcommittee on Immigration and
Claims of the Committee on Judiciary, U.S. House of Representatives,
September 21, 2000 Concerning Obstacles to Workers Compensation for
Beryllium Disease at the Pantex Facility. Available at: http://
www.house.gov/judiciary/lope0921.htm
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Beryllium causes a progressive, sometimes fatal lung disease. There
are hundreds of cases of beryllium disease or among workers exposed in
the weapons complex, because beryllium is an important component in
nuclear weapons.
Mr. Lopez was diagnosed as having beryllium sensitivity, an early
stage of beryllium disease, by a DOE contractor's physician. The doctor
encouraged Mr. Lopez to apply for Texas state workers compensation, and
helped him fill out the form. It was sent to DOE's third party
administrator because the Pantex facility is self-insured for workers
compensation. Predictably, DOE's third party administrator did what it
had always done for DOE, it denied Mr. Lopez's claim. A copy of the
claims denial is appended to my testimony; * I'd like to read you what
Mr. Lopez was told:
---------------------------------------------------------------------------
* Retained in committee files.
Carrier is filing a formal denial that the employee has
sustained an injury or occupational disease within the course
and scope of employment or has sustained a work related injury
or disease. Carrier further denies the occupational disease in
that it is an ordinary disease of life, to which the general
---------------------------------------------------------------------------
public is exposed.
Please remember: this did not occur decades ago, in the bad old
days. Mr. Lopez filed his workers' compensation claim in 2000. Mr.
Lopez isn't alone. There are thousands of other workers who have
illnesses that may be associated with exposure in the nuclear weapons
plants.
In listening to these workers' stories and reading these documents,
it became clear to me that DOE did not have the credibility to
determine whose diseases were work-related and whose weren't, so we
crafted a legislative proposal that would allow an independent
adjudication of claims.
But it was more than that. The purpose of Subtitle D was not merely
to determine work-relatedness. It was for DOE to step up to the plate
and start acting like a responsible employer. If the panel of
independent physicians determined a case was work related, DOE would
actively assist that worker in getting state compensation benefits.
This would involve instructing the contractor to accept the claim
(and there is clear language that DOE would tell contractors they could
not reject the claim). In many cases, the costs of that claim would be
sent directly back to the appropriate DOE office.
It was understood that DOE, or its contractors, could legally
accept compensation claims even if the statute of limitations had
passed. And that DOE would actively work to get sick workers, the ones
found by physician panels to have occupational illnesses into the
system.
To jump start the program, Secretary of Energy Richardson issued
Order 350.6, which enabled DOE and its contractors to begin
compensating workers with obvious occupational illnesses without having
to wait for the physician panels. Under 350.6, DOE contractors were
required to accept as work-related the diagnoses of occupational
illness made by the physicians they employed, or those employed by
DOE's former worker medical surveillance program, and not to contest
these claims.\6\
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\6\ DOE Order 350.6. Acceptance of Valid Workers' Compensation
Claims. January 12, 2001. Available at: http://www.directives.doe.gov/
pdfs/doe/doetext/neword/350/n3506.pdf
---------------------------------------------------------------------------
If DOE had truly wanted to make this program work, it could have
immediately implemented Order 350.6. Instead, workers who DOE has
already acknowledged to have work related illnesses will have to wait
years, in some cases, many years, to have their records reviewed by
additional physicians. In the end, they will likely make the same
diagnoses, but at the additional cost of several thousand dollars.
I have heard DOE leadership claim that they were overwhelmed by the
volume of cases, and that it is far more cases than we (and
specifically I) predicted. Those in this room who were involved in the
enactment of EEOICPA will remember that the Administration's
legislative proposal, and the version passed by the senate, was quite
different than the final legislation. In our proposal, Subtitle B
included wage loss benefits and was the exclusive remedy for workers
with beryllium disease and radiation related cancer. This was changed
significantly, and in my view unfortunately, in negotiations between
the Senate and the House. As a result, thousands of workers who in the
original proposal could only have applied to the DOL program, now apply
to both.
Congress recognized in the initial legislation that this was a work
in progress; the legislation specifically called for further
legislative improvements. The drafters recognized that problems like
the ones being discussed today might arise, and prompt oversight by the
GAO. Unfortunately, the GAO could not provide that oversight because
the DOE program had not progressed enough to warrant GAO's effort.
I am disappointed to report to this committee that DOE leadership
made a series of decisions to set up a program that will compensate as
few people as possible, as slowly as possible.
In the more than three years since the legislation was enacted, DOE
has failed to hire a manager for this program who has any experience or
expertise in managing workers compensation programs. Then, DOE
compounded the problem by hiring a contractor with no background in
workers compensation systems. With this contractor's help, DOE designed
a system from which it is difficult to get even the most basic
statistical information, such as what illnesses are described by
claimants or where claimants worked.
DOE ignored the expert advice of an Advisory Committee composed of
some of the nation's leading thinkers on workers compensation, and
designed procedures without consulting with the Advisory Committee.
After the minimum period, DOE disbanded the Advisory Committee. I am
told that DOE has finally hired a consulting firm to provide, at
significant cost and delay, much of the same information the Advisory
Committee was trying to provide two years ago.
Another valuable resource DOE could have utilized is the network of
clinics and physicians of DOE's own former worker medical surveillance
program. Order 350.6 was written expressly to enable DOE to call on
these physicians, many of whom have international reputations, to
assist in adjudicating these claims. Instead, Assistant Secretary Cook
has announced that most of these programs will be ended shortly. While
Assistant Secretary Cook claims the phase-out will allow her office to
fund new medical surveillance programs in locations not previously
served, the recently released ``Strategic Plan for the Office of
Environment, Safety and Health, 2003-2006'' \7\ fails even to mention
the program, suggesting its permanent demise is planned.
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\7\ Strategic Plan for the Office of Environment, Safety and
Health, 2003-2006. Available at: http://tis.eh.doe.gov/portal/feature/
EH Strategic Plan FINAL.pdf
---------------------------------------------------------------------------
And, most tragically, while spending millions to administer this
program and process paper, DOE has apparently decided that their job
ends with the physician panel it will do nothing to get workers into
state compensation systems.
Again, I call your attention to the Strategic Plan. There is no
mention of assisting sick workers get the compensation they deserve.
The primary objective listed for EEOICPA is to ``process applications
for Subpart D.'' The strategic indicators focus on improving efficiency
and reducing backlog, but not on helping workers.
When the Administration proposed this program, and when Congress
enacted it, it was envisioned that DOE would advocate for its workers
DOE would actively try to help the people made sick making nuclear
weapons. Instead, DOE leadership has interpreted the EEOICPA
legislation as narrowly as possible, to ensure that the assistance
given sick workers will be kept to a minimum. DOE leadership says no
mechanism can be found to compensate sick workers in Iowa, or Ohio, or
Alaska, or in other situations where there is no willing payor.
I have heard DOE's claim that the EEOICPA authorization is limited,
and little can be done beyond submitting a claim to a physician panel
and helping a sick worker fill out a claim form. I do not agree with
this interpretation, but, putting that aside, I think everyone in this
room knows that DOE leadership is not shy about suggesting new
authorization language for initiatives it supports. Yet in the many
months since this program began, DOE has never suggested a legislative
solution (or any other solution) to this problem.
What advice would I give you now?
It is clear that DOE leadership cannot, or will not, operate this
program effectively. Trust in the agency has been lost and cannot
easily be regained. There is no question in my mind that this program
could be managed far more effectively and efficiently by the Department
of Labor, which already operates Subtitle B of EEOICPA, as well as the
FECA program, the largest workers compensation program in the country,
a program that covers most of the people in this room.
Secondly, there are many workers around the country for whom no
benefits payor has been identified. The situation in which sick workers
are given positive determinations of work-relatedness by DOE physician
panels, and then have no one to turn for workers compensation benefits
is reminiscent of the crisis facing the Radiation Exposure Compensation
Act a few years ago. In that situation, Congress recognized that the
government cannot tell a sick worker, or that worker's survivor, that
yes, your disease was caused by helping the nation win the Cold War,
and you are deserving of benefits, but we just can't pay you.
To address this, legislation is needed to provide mandatory funding
for compensation benefits for claimants who are found to have work-
related conditions under this program.
Finally, Congress should not permit DOE to abandon its commitment
to providing medical surveillance for former workers throughout the
complex.
Senators, it is only three short years since the members of this
body enacted EEOICPA on a virtually unanimous bipartisan basis.
Together, three years ago, we mounted this noble effort to make peace
with the past, to repay those who made great sacrifices for their
country. I ask you not to let this historic initiative fail.
Senator Bunning. Thank you for your testimony, doctor.
Mr. Richard Miller, please.
STATEMENT OF RICHARD MILLER, SENIOR POLICY ANALYST, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Miller. Thank you, Mr. Chairman. My name is Richard
Miller. I serve as a Senior Policy Analyst at the Government
Accountability Project. GAP tracks the implementation of this
law and serves as an information hub for claimants, unions,
injured worker groups, and the media.
Again, as Dr. Michaels said, I want to commend both you for
your efforts in the course of trying to get this legislation
passed. We all know how difficult that conference was, and
there were a number of questions that were left unresolved. We
also particularly appreciate your effort to provide both
oversight, promote reforms, and to bring this hearing to
fruition.
I have two basic points I would like to leave you with
today, in many respects restating what you have heard earlier.
First, in the 3 years since enactment DOE has failed to
competently implement subtitle D in the primary areas of its
responsibility--claims development, physicians panel
operations, and assuring that there is a willing payor.
Secondly, that legislative reforms in our view should
direct the Labor Department, which runs four separate worker
compensation programs, including the Federal Employee
Compensation Act, the Longshore and Harbor Workers Act, the
Black Lung Benefits Program, and of course subtitle D of this
program, to process claims and also serve as the willing payor,
while DOE recovers the needed records and receives the
resources to do so.
When Congress defined the law's purpose, it said it wanted
to provide for timely, uniform, and adequate compensation of
covered employees. That is right up front at the beginning of
the law. So I guess we differ with the interpretation that Mr.
Card has. What we do not disagree on, I hope, is that that goal
is not being met today.
DOE's main product under subtitle D is a physicians panel
determination, and what we know about subtitle D is that
subtitle D did not provide a means to assure, guarantee, the
payment of claims. Thus even if claims payment were proceeding
apace as we would hope, the physicians panel determinations
carry no legal weight with the States, and in our view we have
to establish a willing payor for everyone, not just those with
self-insured prime contractors.
We also believe that the GAO's initial assessment, which
was approximately 15 percent do not have a willing payor, may
understate the case because DOE's database it now turns out is
unauditable with respect to who was the last employer, and thus
GAO has had great difficulty in finding out how big the problem
is.
In evaluating DOE's actions over the past 3 years, as
opposed to its words and intentions, we have concluded that DOE
seems disinclined or incapable of remedying the basic flaws in
this program. One of the operative questions for me is why is
DOE fighting so hard to keep this program from being
transferred to the Labor Department?
Now, the Grassley-Murkowski amendment was an interim step.
It only dealt with claims processing and management of
physicians panels. It did not deal with the willing payor. And
it was an incremental step that was proposed. But why did DOE
fight that? When Mr. Card testified earlier, he said because it
would lead to undue delays. Yet the Grassley amendment
eliminated the need, for example, to be delayed while new
rulemaking was done because they would use the Energy
Department's old rules in the interim. They would also provide
for the Energy Department to have resources to recover records.
So in our sense, why is it that DOE is so attached to a
failing program? Why do they not want to let it go? It has
nothing to do with, in our view, accountability, because today
under subtitle B claims are taken out of DOE and they are
shifted over to the Department of Labor, just as they would be
if subtitle D were transferred and moved from one agency to the
other. DOE would do what it has its core capacity to do, which
is direct its contractor to produce records.
We are troubled that DOE has not begun development on 71
percent of its claims. By contrast, the Labor Department began
paying claims a mere 75 days after its regulations were issued.
And DOE's own consultants that were brought in to advise its
contractor, DOE's contractor, said that the program suffers
from ``design flaws.''
We are also troubled that DOE has stonewalled State worker
compensation programs who have actually offered to solve the
willing payor problem. For example, the State of Ohio Bureau of
Worker Compensation Programs proposed last December to become a
willing payor and after DOE rejected this offer, handed to them
on a silver plate, here is what the Ohio BWC Director said:
``What troubles me more than the length of time it has taken
DOE to respond is the lack of alternatives your staff has
proposed to help get this program off the ground.'' That letter
is attached to our testimony.
When DOE presented its fiscal year 2003 budget request to
Congress, it promised to move claims quickly by developing
exposure profiles. But to date DOE has completed none of these
exposure profiles.
Moreover, of the 56 claims approved by the physicians
panels to date nationwide, we are not aware of any of those 56
being paid and, moreover, DOE has no system to even track the
payment status of those claims. As you noted in a question
earlier, it appears the only one getting money out of this
program is DOE's support service contractor and, with a large
budget increase to DOE, it will be tens of millions more.
I see my time is running out. In conclusion, some have
suggested that DOE retain non-risk-bearing third party
administrators to serve as a payor. We think DOL should be both
the claims administrator and the willing payor, using the
Federal Employee Compensation Act as guidance for benefit
levels. We recommend that either NIOSH or the DOE former worker
medical screening program do the exposure assessments that have
not been done.
In conclusion, it makes no more sense for Congress to
assign a major worker compensation program to DOE than it does
to assign a nuclear weapons production program to the
Department of Labor.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of Richard Miller, Senior Policy Analyst,
Government Accountability Project
Mr. Chairman and Members of the Committee, I am Richard Miller, a
senior policy analyst at the Government Accountability Project
(``GAP'').\1\
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\1\ Miller testified on EEOICPA before the Senate HELP Committee,
Subcommittee on Employment, Safety, & Training, May 15, 2000, and the
House Judiciary Committee, Subcommittee on Immigration & Claims (http:/
/www house.gov/judiciary/mill0921.htm) on September 21, 2000. GAP
assists claimants and monitors the activities of the three federal
agencies implementing EEOICPA, in addition to its core work on behalf
of whistleblowers.
---------------------------------------------------------------------------
Subtitle D of EEOICPA was intended to take the Department of Energy
(``DOE'') out of the business of fighting valid state workers'
compensation claims brought by sick nuclear workers who were employed
by DOE contractors. Congress intervened to reverse DOE's history of
fighting claims. Congress defined EEOICPA's purpose: ``to provide for
timely, uniform, and adequate compensation of covered employees . .
.''. That goal is not being met today.
What Subtitle D provides is a Physicians Panel determination,
which, if positive, would lead to DOE directing its contractors not to
contest claims with state worker compensation systems. What Subtitle D
didn't provide is a means to assure payment of claims. States are not
bound by DOE Physicians Panel findings. Even if claims development were
proceeding at a reasonable pace, the basic design of Subtitle D suffers
from a basic flaw: Physicians Panel determinations carry no legal
weight with states. To make Subtitle D work, a ``willing payor'' must
be established for all valid claims.
The DOE's program has deficiencies in three areas: (1) claims
development; (2) physician panel operations; and (3) claims payment
through a ``willing payor''. Despite advice from its Advisory Board and
Congress, DOE seems disinclined or incapable of remedying the basic
flaws in this program. We suggest that Congress shift Subtitle D to the
Department of Labor (``DOL''). No matter how well intended the
Secretary and DOE staff may be, DOE is still learning on the job and
claimants are dying without resolution of their claims.
i. doe's claims performance is abysmal; prospects for dramatic
improvement are limited; and all ``willing payor'' proposals have been
rejected
Despite a commitment by the Secretary to the Senate Energy
Committee in February 2003 to move 100 claims per week through
its Physicians Panels by August 2003, DOE processed a total of
only 109 out of 19,690 eligible applications (0.5%) through the
Physicians Panels by November 11, 2003. There are 56 positive
and 53 negative determinations. These determinations are DOE's
main ``product'' under Subtitle D.
Congressional inaction with respect to funding does not
explain DOE's failure to meet this commitment. When Congress
asked DOE on three occasions whether it needed more funding in
early 2003, DOE wrote ``no'' we have enough funding. DOE
announced it needed a 368% budget increase on July 30, 2003
when it was clear that the100 claims/week commitment by August
wasn't going to be honored.
Under Subtitle B, the DOL has completed 95% of its 35,000+
claims including medical evaluations within its area of
responsibility, and paid out almost $700 million in benefits to
energy workers and uranium miners in 2+ years. DOL takes an
average of 80-102 days to process a claim under Subtitle B
(FY03--4th quarter). DOL processes claims based on records and
employment data received from DOE. Splitting responsibility
between DOL and DOE has not resulted in a loss of
accountability.
DOE has not even begun development on 75% of its claims. By
contrast, DOL began paying claims a mere 75 days after its
regulations were issued. DOE could have processed thousands of
beryllium, silicosis and asbestosis claims very rapidly, had it
geared up.
When DOE presented its FY 03 budget to Congress, it promised
to move claims quickly by developing ``exposure profiles'' that
detail toxic chemical exposures at each of its major sites.
Specifically DOE wrote:
``As more information is developed about exposures at
specific sites through site profiles and we continue to work
with sites to optimize processes, the Department expects that
it will be processing claims at a rate of 100 per week by
August 31, 2003.'' \2\
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\2\ Response to written question 3(a) from U.S. Representative Ed
Whitfield to Deputy Secretary McSlarrow, at a March 2003 House Energy &
Commerce Committee hearing.
To date, DOE has completed none of these exposure profiles. By
comparison, NIOSH has issued six detailed site profiles, and will have
another dozen profiles completed at DOE sites by year end. What
explains DOE's failure to meet its commitment to develop these
---------------------------------------------------------------------------
``exposure profiles?''
DOE has stonewalled state compensation programs who offered
to solve the willing payor problem. For example, Ohio proposed
to become a willing payor for DOE a year ago. After DOE
rejected this offer, the Ohio BWC Director wrote: ``What
troubles me more than the length of time it has taken DOE to
respond is the lack of alternatives your staff has proposed to
help get this program off the ground.'' (Attachment ``A'') *
---------------------------------------------------------------------------
* The attachments have been retained in committee files.
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To our knowledge, none of the claims approved by the
Physicians Panels have been paid yet. DOE has no system to
track whether such claims have been filed with the state or
their payment status.
In FY 04 DOE has proposed a 368% budget increase to $59
million this year; however, DOE has not committed to meaningful
progress. OMB will only require DOE to process 25% of 15,000
claims (not to exceed 3,750) up to the doorstep of Physicians
Panel (not through it) in the next six months.\3\ This OMB
commitment is inconsequential, because in six months DOE will
have almost the same size backlog as it has today--due to an
average of 571 new claims being filed each month.\4\
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\3\ Letter from Joshua B. Bolten, Director of OMB to Senator
Charles E. Grassley, November 6, 2003.
\4\ GAO Briefing on Preliminary Findings for Staff of Honorable
Pete V. Domenici, Chairman, Committee on Energy & Natural Resources,
U.S. Senate, October 10, 2003, pp. 16.
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The FY 02 President's Management's Agenda calls for imposing
consequences on failing programs. It states: ``Underperforming
agencies are sometimes given incentives to improve, but rarely
face consequences for persistent failure. The all-carrot-no-
stick approach is unlikely to elicit improvement from troubled
organizations.'' Rather than overhauling a failing program, the
Administration is rewarding failure by providing DOE with
increased funding while blocking Congressional reforms to
improve performance.\5\
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\5\ The President's FY 02 Management Agenda states: ``Many agencies
and programs lack rigorous data or evaluations to show they work. Such
evidence should be a pre-requisite to continued funding.'' Even though
DOE cannot demonstrate that any part of its program works, OMB blocked
reforms proposed in the Grassley-Murkowski Amendment to move this
program to DOL.
---------------------------------------------------------------------------
DOE has failed to meet its commitments to improve the rate
of claims processing so far. It has stonewalled efforts to find
a willing payor, even when one is handed to them on a platter
by Ohio. How many more times will DOE be allowed to
underperform?
ii. doe is on a slow learning curve, and its own consultants have
identified design flaws in its claims development process
First, DOE's own consultants indicated that this program suffers
from ``design flaws'' DOE could be ``triaging'' its cases into groups
that could be moved efficiently. DOE could be setting up ``super
panels'' for common conditions and common illnesses. Some of these
include claims evaluated and approved by DOL. Others come with easily
rendered diagnoses.
Second, as we look back, DOE wasted its Physicians Panels' scarce
time by failing to prepare concise case summaries of medical facts and
evidence. Extracting the relevant medical information into summaries is
a staple of compensation programs in order to make it more efficient
for doctors to decide claims. Of course, full documentation should be
referenced and attached.\6\ We have interviewed participating
physicians. Until recently, DOE has been giving doctors hundreds and
hundreds of pages of documents to review. Even today, DOE is
overloading doctors with paper for simple beryllium sensitivity cases
that require a few pages of medical information. Some doctors have
reported disorganized files, with duplicates that must be sorted out,
wasting valuable time. DOE is now refining its approach, but only as a
result of a process of trial and error that comes from learning on the
job.
---------------------------------------------------------------------------
\6\ In the Fernald II Settlement, detailed case summaries were
prepared for the 3 doctor panels in neatly tabulated binders. DOE could
have simply replicated this process.
---------------------------------------------------------------------------
Third, DOE wasted the time of Physicians Panels by sending them
claims for cases that had already been approved in state worker
compensation systems!
Fourth, DOE abandoned Notice 350.6, which directs contractors not
to contest state claims if a physician in the DOE's Former Worker
Medical Screening Program diagnosed a work-related illness \7\ Notice
350.6 expired in January 2002.\8\ DOE could have reduced the backlog of
claims sent to the Physicians Panel, if it had renewed and updated this
Notice. It's failure to do so is inexplicable.
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\7\ The DOE Former Worker Medical Screening Program provides
medical screening for occupational illnesses that may have been caused
by exposure to radiation or toxic substances at DOE defense nuclear
facilities. It was authorized pursuant to Section 3162 of the FY 93
Defense Authorization Act (42 USC 7274(i)).
\8\ http://www.directives.doe.gov/cgi-bin/explhcgi?qry1988382291;
doe-526.
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Fifth, DOE ignored the February 26, 1998 directive issued by former
Deputy Secretary of Energy Elizabeth Moeller, which barred contractors
from contesting diagnoses of chronic beryllium disease in state worker
compensation proceedings (Attachment ``A''). Despite the availability
of a tool to streamline its case load, DOE insists on processing
beryllium disease claims through its Physicians Panels, including those
already approved by the Department of Labor. Why is DOE clogging up its
panels with cases that could be readily disposed of through this
directive?
Sixth, DOE has failed to train its physicians on the requirements
in the Physicians Panel regulations (10 CFR 852), and has not provided
clear guidance on the proper ``standard of causation'' to use when
evaluating cases. In one case, this misleading guidance forced an
appeal for a former Rocky Flats worker. The Office of Hearings and
Appeals vacated the decision and remanded it back to a physicians panel
to re-review the case and apply the proper standard of causation.\9\
This was a waste of resources.
---------------------------------------------------------------------------
\9\ Case Number TIA-0025 (June 30, 2003)
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iii. legal consequences of doe's poor performance
These delays have adverse legal and human consequences. While
claimants are waiting for cases to go through the Office of Worker
Advocacy, the statutes of limitations have been expiring in certain
states. Lawyers in Ohio have advised claimants to stay away from the
DOE ``assistance'' program because they have no assurance that the
DOE's physicians panel will reach a decision before the statutes of
limitations runs out under Ohio's state workers' compensation program.
An Oak Ridge attorney contacted DOE for assistance when his client was
denied the right to file in Tennessee because the statutes of
limitations ran out while his claim was awaiting review by DOE's Office
of Worker Advocacy. DOE was asked to change its policies so that the
DOE's contractors would agree to ``toll'' statutes of limitations if a
case was taking longer than the statutes of limitations in Tennessee
and there was an adverse Physicians Panel outcome. Despite a reasonable
request from the worker's attorney, DOE refused to change its policy.
The worker has lost his right to file with state, and as a consequence,
DOE's delays have compromised the rights of this and many other
claimants.
iv. doe contractors' role in claims valuation must be defined or
claimants will find themselves enmeshed in litigation
DOE has yet to define what posture contractors should adopt in
resolving disputes over claims valuation. One area which is commonly
disputed is the ``degree of disability'' (e.g., partial vs total
disability) and this disability finding impacts the size of the
payment.
How should claims valuations issues be resolved? Most state worker
compensation programs have an adversarial ``claims valuation'' process.
Subtitle D mixes a non adversarial ``causation'' finding with a
potentially adversarial state ``claims valuation'' process. Should DOE
contractors be allowed an unlimited right to litigate disability claims
with which they disagree? If DOE uses a Third Party Administrator to
pay claims, how will disputes over the value of a claim be resolved?
What role will the Office of Worker Advocacy take in guiding the
contractors' posture to guide settlements?
To harmonize this program, the dispute resolution process should be
non-adversarial at every stage, such as the one used by the Department
of Labor under EEOICPA Subtitle B.
v. the forthcoming physicians panel bottleneck can be mitigated with
several key reforms
In the future there will be a bottleneck at the Physicians Panels
absent some reforms. To date 123 physicians have been appointed to
DOE's Physicians Panels by NIOSH. Physicians are selected by NIOSH--
instead of the DOE in order to provide a measure of independence. The
first doctors were appointed in July 2001. It is expected that another
37 will be appointed this month. At least six physicians have withdrawn
since the commencement of the program.
Congress must eliminate the statutory cap of $60 per hour to
pay doctors who serve on a Physicians Panel.\10\ Physicians
with a clinical practice cannot afford to take these cases
without incurring a loss. This problem was identified by DOE
staff and the DOE Advisory Committee more than a year ago, but
DOE has proposed no solutions. Both the Reform of Energy
Workers Compensation Act (H.R. 1758),\11\ and the Grassley-
Murkowski amendment to the FY 04 Energy and Water
Appropriations Act, as amended, offered solutions. Although
eliminating or raising the cap will attract a number of
physicians with clinical practices who presently cannot afford
to serve on Physicians Panels, it is by no means a silver
bullet for what ails the program.
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\10\ 42 U.S.C. 7385o(d)(2)(B) states: ``Each member of a panel
shall be paid at the rate of pay payable for level III of the Executive
Schedule for each day (including travel time) the member is engaged in
the work of a panel.''
\11\ H.R. 1758 raises the cap to approximately $100 per hour. The
Grassley-Murkowski amendment deleted the statutory cap and allowed DOL
to set the physicians compensation levels, as they do in all of their
other compensation programs.
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A properly prepared case summary will allow more efficient
use of physicians by reducing the physician-hours per case.
Physicians Panels could use two physicians and only call in
a third when a tie breaker is needed. This would mathematically
increase the availability of doctors.
Reinstatement of DOE Order 350.6 will make the physicians in
the DOE former worker medical screening program more widely
available.
The physician shortage does not explain DOE's backlog today, but
this issue is looming on the horizon as a matter requiring
Congressional action.
vi. doe has abolished its advisory committee and ignored expert advice
DOE has ignored, or only slowly accepted, the expert advice
provided by the Worker Advocacy Advisory Committee (WAAC). On January
1, 2003, DOE allowed the charter of this Federal Advisory Committee to
expire and has not reconstituted it, despite promises to members of
Congress and the public.
What explains DOE's abolition of its expert advisory committee? Was
the glare of public oversight too uncomfortable? Clearly, this expert
Advisory Committee had not outlived its utility if it was attached to
an agency that wanted to receive its advice.
vii. doe's use of an underqualified contractor coupled with doe's lack
of institutional expertise has led to a poorly performing program
On November 21, 2001, DOE entered into a Memorandum of Agreement
(``MOA'') with the Navy's Space and Naval Warfare Information
Technology Center (``SPAWAR'') to provide the services of a support
service contractor, Science and Engineering Associates (``SEA''), to
the DOE.\12\ SEA provides all of the manpower for running the claims
development under Subtitle D. FY 04 projected revenues exceed $30
million, compared with $15.8 million in FY 02 and 03.\13\
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\12\ The Space and Naval Warfare Systems Command Information
Technology Center web site is http://www.spawaritc.navy.mil. This rapid
growth in revenues from DOE explains SEA's opposition to transferring
the program to DOL.
\13\ Source: Response to written question 3(d) from U.S.
Representative Ed Whitfield to Deputy Secretary McSlarrow, at a March
2003 House Energy & Commerce Committee hearing.
---------------------------------------------------------------------------
Nothing on SPAWAR's website states that it has any subject area
expertise in worker compensation issues. Similarly, nothing SEA's
resume indicates any specific expertise in worker compensation claims
processing.
There are government agencies, particularly the DOL, which
specialize in worker compensation programs, but the Navy's SPAWAR is
not among them. Similarly, there are firms which specialize in worker
compensation claims processing, but SEA is not amongst them. DOE has
not demonstrated, nor can it, that only SEA was qualified. What logic
led DOE to enter into a MOA with the Navy, instead of the DOL?
While DOE purports to have entered into the MOA under the authority
of the Economy Act, that law requires DOE to issue a ``Determination &
Finding'' that, among other things, the services are not economically
available to DOE by DOE contracting directly with a private entity
through full and open competition (see: 48 CFR 17.503). Agencies are
forbidden to use interagency acquisition as a mean of avoiding full and
open competition.\14\ DOE has not made this certification public,
despite requests from Congress. It will be interesting to learn how DOE
could make such justification where SEA has no history of establishing
worker compensation claims programs, while other firms offer such
specialized expertise without a learning curve.
---------------------------------------------------------------------------
\14\ Government Contracts Reference Book, Nash, Schooner, 1992, pp.
229.
---------------------------------------------------------------------------
It also appears that DOE lacks the specialized expertise needed to
assure that SEA's performance is adequately defined, supervised, and
evaluated. Today, there are roughly six federal employees running DOE's
program in the Office of Worker Advocacy (``OWA'') who are overseeing
approximately 70 SEA contractor employees. There is only one federal
official in OWA who has a resume with previous worker compensation
program experience, and they are not overseeing SEA. DOE's use of SEA
may have been prudent, if SEA had the requisite expertise to set up an
efficient program, or DOE had the expertise to direct the contractor.
However, neither the GAO nor the Hays Company consulting report
determined that DOE has established an efficient program. Indeed, we
estimate that the administrative cost for developing each claim over
the past year is approximately $15,000.
viii. doe's claims processing problems are not overly complex or
insurmountable if the agency has the commensurate skills and
infrastructure
DOE would like Congress to believe that their poor performance
relative to DOL is that it has an exhaustive records recovery task and
medical evaluation process. This is true for a small percentage of
cases, but significantly overstates the difficulty of their task.
Let's turn the question around: if Subtitle B claims had been given
to DOE, would DOE have issued regulations, set up field offices,
processed 95% of the 35,000+ claims received and issued payments of
approximately $700 million in the same time frame as the DOL?
Based on a DOE-DOL assessment several months ago which compared
claimants using social security numbers, approximately 95% of the DOE's
Subtitle D claims were also filed with the DOL. Subtitle C of EEOICPA
allows claimants who qualify under Subtitle B to also file with state
worker compensation programs for wage replacement if they are disabled.
DOL has developed portions of those cases which overlap, and they are
sharing these files with DOE.
First, roughly 80-85% of the DOE's cases can be handled without a
major document recovery burden. Only 15-20% of the DOE's cases will
require extensive exposure assessments and research by DOE. Moreover,
DOE says it has to dig into 50 years worth of contractor medical
records. That is not needed. DOL relies upon the claimant's personal
medical records.
Second approximately 60% of the overlapping cases also had medical
conditions covered under Subtitle B, and thus DOL was required to fully
develop the case. DOE can use DOL's case development, which makes their
task relatively simple. DOE is wasting the time of Physicians Panels
asking them to reconstruct radiation doses.
Third, approximately 30% of the overlapping claims do not have a
covered condition under Subtitle B. With respect to these cases, over
1300 (>7%) claims involve ``fingerprint'' occupational diseases like
asbestosis or silicosis, which are comparatively easy to diagnose and
do not require extensive research.\15\ Another 1,100 cases (>6%)
involve beryllium disease or beryllium sensitivity. These cases have
already been developed by the DOL, and could have been processed en
masse without having to dig out any additional medical or exposure
records. Lacking a credible explanation for its performance, DOE is
making a mountain out of a molehill.
---------------------------------------------------------------------------
\15\ Source: GAO Briefing on Preliminary Findings for Staff of
Honorable Pete V. Domenici, Chairman, Committee on Energy and Natural
Resources, United States Senate, October 10, 2003, pp. 16.
---------------------------------------------------------------------------
ix. dol can move much more quickly than doe in processing claims
because it has the expertise, the infrastructure and the experience
DOL has the infrastructure. DOL has been handling worker
compensation claims for 90 years through four programs
including: the Federal Employee Compensation Act, the Longshore
& Harbor Workers Act, the Black Lung Benefits Program and
EEOICPA Subtitle B. DOL has 200 trained EEOICP claims examiners
at four offices ready to start work as soon as they are
assigned. DOE will face delays in ramping up its program
because SEA (its contractor) has to hire 140 claims processing
staff and train them.
Three years have passed and DOE is still trying to design a
functional claims processing system. Hay Company had identified
``design flaws'' in DOE's case processing systems.
By contrast, DOL established a credible claims program in a
matter of months, not years.
Splitting responsibility between DOL and DOE has not
resulted in a loss of accountability under Subtitle B, and
would not do so if processing was shifted to DOL.
Due to the 95% overlap between claims filed with DOE and
DOL, DOL has already finished aspects of claims development,
including employment verification and medical records
evaluation. On day one, DOL would begin with a major head start
over DOE, because they have already developed, in part, many of
the DOE's languishing claims.
x. the grassley-murkowski amendment would have repaired the front end
of the claims process by transferring claims processing and physicians
panel responsibilities to department of labor
The Grassley-Murkowski amendment, as amended, would have shifted
claims processing and Physicians Panels from DOE to DOL. If adopted, it
would:
1) provide authority for the Secretary of Labor to assume
responsibility for claims processing, Physicians Panels, a non-
adversarial appeals process, and development of information
needed for physicians to make an informed decision;
2) require DOL to utilize DOE's existing Physician Panel
regulations for up to 180 days until DOL promulgated interim
regulations in order to prevent delay;
3) eliminate the cap on payments to physicians and allow DOL
to set the rate for physician panels;
4) require DOL to maintain the DOE's existing standard of
causation, protect against conflict of interest, require a
simple majority for a panel determination and assist claimants
if added medical information is needed by the Physicians Panel;
5) authorize use of the DOE former worker medical screening
programs to assist in the development of exposure assessments
and medical determinations;
6) require DOE to transfer records to DOL; and
7) transfer $35 million from DOE to DOL for FY 04.
This approach enjoyed bipartisan support from certain Senators in
states where 85% of the claims have been filed so far, and should be
reconsidered as part of a reform proposal.
xi. doe and sea's opposition to dol taking over the claims programs are
bedrocked on unsupported contentions
DOE and its contractor SEA opposed the Grassley-Murkowski
Amendment, saying it would lead to added delays. DOE argued that if it
received the $59 million it asked for in FY04 it would process 100% of
its backlog of nearly 20,000 claims. However, when pinned down for a
hard commitment, OMB would only commit DOE to processing more than
3,750 claims out of its backlog in 6 months. Not all 20,000 in the next
year.
The reason for the delay: SEA cannot accelerate processing of
claims because it faces delays related to hiring and training 140
staff. By contrast, DOL doesn't face this steep ramping up process; it
hits the ground running much faster.
DOE/SEA maintain that delays from additional hiring and training
are acceptable, but potential delays in transferring the program to DOL
are objectionable and unacceptable. DOE's double standard is not
supportable.
After the Grassley-Murkowski Amendment was stripped from the Energy
and Water bill, we now learn that DOE is not willing to honor its
previous claims development targets of finishing 100% of its claims
backlog in 12 months with funding.
SEA's lobbyists assert that it is unfair to compare SEA's
performance with DOL's, because DOL runs a simple ``pay/no pay''
system. This is inaccurate and misleading.
DOL performs detailed medical determinations to verify medical
conditions under Subtitle B in order to comply with the EEOICPA
criteria for determining causation. For claims involving beryllium
disease or silicosis, the Act established medical criteria that must be
met in order for a claimant to establish a covered disease.
Each cancer must be verified and the location of the primary cancer
must be determined. DOL claims examiners must review the medical
evidence in the file, evaluate the results of medical tests, and
determine if the case meets the criteria of the Act, regardless of the
presence or absence of a specific diagnosis. DOL has had to develop
numerous policies and a significant expertise to accomplish these very
complex adjudications. Additionally, DOL must determine which medical
conditions are ``consequential illnesses'' in order to determine what
medical costs the government is responsible for.
xii. dol is more cost effective
DOL's requirement for FY 04 to run this program is $35 million, far
less than the DOE's requests for appropriations and fund reprogramming
of $59 million. DOL has one of the lowest overhead rates for its worker
compensation claims programs in the country.
xiii. reforms are urgently needed to assure that valid claims have
``willing payor''
Once a Physicians' Panel issues a positive determination, DOE is
required to provide the claimant with ``assistance'' in filing their
claim with a state workers' compensation commission. Pursuant to
Subtitle D of EEOICPA, DOE must direct contractors not to contest the
state workers' compensation claims, to the extent allowable by law, and
DOE may not reimburse contractors for legal costs of contesting such
claims.
However, this doesn't necessarily mean that the claim will be paid.
Although DOE's prime contractors can be directed to pay claims, some
``payors'' are not under DOE's control and are unwilling to pay (e.g.,
prime contractors participating in exclusive state funds and
contractors who have a policy with a worker compensation insurance
company). Moreover, DOE's recent state agreements appear to allow
contractors to contest the valuation of claims. Finally, no specific
source of funds has been identified for paying such additional claims,
other than the appropriations provided by DOE for its contractors
personnel accounts.
Today, there are no state commissions or insurance companies who
have agreed to be bound by DOE Physician Panel determinations. Although
DOE entered into Memorandum of Agreements (MOA) with 14 states (AK, CA,
CO, ID, IA, KY, MI, NM, NV, OH, SC, TN, TX, MI), none of these
agreements require states to accept the findings of a Physicians'
Panel. All 14 states reserve the right to impose their own provisions
of state law rather than abide by the findings of DOE or its
Physicians' Panel.
For example, the DOE-Alaska Commission Agreement of 9/13/02 is
typical of the boilerplate language used in these agreements:
``A positive determination pursuant to Part 852 [DOE's Rule]
has no effect on the scope of State worker compensation
proceedings, the conditions for compensation, or the rights and
obligations of the participants in the proceeding; provided
that consistent with Subtitle D, such a determination will
prevent DOE and may prevent a DOE contractor from contesting an
applicant workers compensation claim, and DOE may agree to
indemnify a DOE contractor/insurer for State of Alaska workers
compensation claims.''
Claims payment hinges on whether DOE's current site contractors are
self-insured for workers' compensation to pay the claims. These
contractors will then be reimbursed by DOE from appropriated funds.
However, not all DOE contractors are self-insured. DOE has not
identified a ``willing payor'' in IA, OH, KY, AK, MO and NV (prior to
1993). Moreover, large groups of workers subcontractor employees,
construction workers, security guard forces--across all DOE sites have
no ``willing payor'' because their employers frequently purchased
worker compensation insurance. A ``willing payor'' is an entity which
DOE can meaningfully direct to pay claims after a Physicians Panel
determines that a claim is work related.
doe has not defined the size of the ``willing payor'' problem
In 2002, DOE's General Counsel verbally indicated that up to 50% of
valid claims may not have a ``willing payor''. Nine Members of the
House Energy & Commerce Committee in March 2002 asked DOE to assemble a
list of locations where it had self-insured contractors and where it
lacked a ``willing payor.'' On June 7, 2002 DOE stated, ``We are
currently compiling, updating and confirming for accuracy this
information. We will provide it to the Committee as soon as possible.''
\16\ No such information was ever produced.
---------------------------------------------------------------------------
\16\ June 7, 2002 letter from Beverly Cook, Assistant Secretary of
Energy to U.S. Representative Ted Strickland, pp. 3.
---------------------------------------------------------------------------
In March 2003, U.S. Representative Ed Whitfield again asked DOE
which locations had a willing payor and which locations didn't. DOE
responded:
EEOICPA did not confer on DOE any authority to identify or
seek ``willing payors.'' It simply directed DOE to exercise its
contract administration authority with respect to its existing
contractor in a manner that would encourage those contractors
not to contest workers' compensation claims filed by their
employees who had received a favorable final determination from
a DOE Physician Panel. DOE is so directing its current
contractors.
This 2003 answer from DOE refuses to provide an analysis which,
back in 2002, DOE said it would provide to the Energy & Commerce
Committee ``as soon as possible.''
GAO has indicated from a preliminary review of 9 sites that only
14% of the cases lack a willing payor. We believe this underestimates
the problem, because GAO has run into obstacles trying to audit DOE's
data base to determine how many claims have a ``willing payor.'' For
example, claims cannot be sorted by last employer, so the insurance
status cannot be determined.
DOE's former Worker Advocacy Advisory Committee (WAAC) warned the
Secretary in August of 2001, and again in June of 2002, that the
absence of a ``willing payor'' was a large, unresolved problem which
would pose a ``gross inequity'' to claimants.
On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the
Northeastern University Law School) wrote on behalf of the Committee:
``WAAC Members thought that there was no legal impediment to
payment of these claims by DOE. But we also think that if DOE
is unwilling or unable to pay these claims, it's absolutely
essential for DOE to seek additional appropriations or support
alternative legislative solutions that will result in payment
of these claims without throwing them into the state workers'
compensation systems to be litigated. If the latter occurs,
insurers and state funds will not be required to waive any
technical or other defenses to these claims, and it is highly
likely (after considerable administrative expense) that few, if
any, of these claims will be paid.''
In response, Assistant Secretary Cook wrote (8/9/02):
``The issue of mechanisms of payment of claims where there is
no current contractor with responsibility for paying a claims
remains a concern. We will continue to explore possible
remedies with the WAAC, the General Counsel and Congress to
correct this inequity.''
Neither DOE nor the Administration has proposed solutions to this
``inequity,'' despite repeated requests from Governors, state worker
compensation commissions and Congress.
In Alaska, DOE's failure to identify a willing payor has created
chaos for claimants. Sylvia Carllson was one of the first Alaskans to
receive a positive Physicians Panel determination from the Office of
Worker Advocacy (DOE). She is a widow/survivor. Her husband was a shaft
miner on Project Cannikin at Amchitka Island from 1970 through 1971. He
was exposed to ionizing radiation in the course of his employment for
Kiewit-Centennial, a prime contractor of the Atomic Energy Commission.
He died before his 41st birthday in 1979 of colon cancer. Ms. Carllson
has detailed her situation in a November 5, 2003 memo, and I have
included excerpts below:
Beverly Cook, DOE Assistant Secretary, in her April 16, 2003,
letter to me suggested that I apply for workers compensation
based on the positive and unanimous finding by the Physicians
Panel. Her letter also stated that a cognizant contracting
officer would notify the contractor to accept primary liability
for my claim and would instruct the contractor not to raise
affirmative defenses against my claim.
I filed a claim under the Alaska Workers Compensation system.
Contrary to Secretary Cook's letter to me, two different
attorneys representing the contractor, Kiewit-Centennial and
two different insurance carriers and adjusters have been
aggressively, almost savagely contesting my claim.
Affirmative defenses raised by opposing attorneys include the
following: 1) Is the Employer (Kiewit-Centennial) entitled to
an offset to any amounts recovered by the Claimant (me) under
the EEOICPA; and 2) Does the release (under Subtitle B) signed
in the federal arena bar recovery under state workers'
compensation? Other actions taken by the opposing attorneys
include:
a six-hour deposition with questions based primarily
on my claims submitted to DOE under Subtitles B and D
of the EEOICPA. I would characterize the entire
deposition as insulting, intimidating and a waste of
time and money.
demands for volumes of documentation relating to my
claims under Subtitles B and D of the EEOICPA; for
medical information; Social Security applications and
personal information regarding my husband. The cost of
reproducing documents for two different law firms, the
contractor, adjusters and the Alaska Workers
Compensation Board has amounted to over several hundred
dollars.
attending pre-hearings and hearings scheduled by the
Alaska Workers Compensation Board. Although I am now
represented by an attorney, I am participating fully in
the defense of my claim.
The merits of my case were originally scheduled to be heard
before the Alaska Workers Compensation Board November 4, 2003.
Opposing attorneys have begun petitioning the AWCB for
continuances. So far, opposing attorneys have been successful
in obtaining two continuances. I expect this practice of
petitioning for stays to continue. My case may be heard
sometime in 2004 if I'm lucky.
Opposing attorneys in my case have led the effort in Alaska
of requesting that all insurance companies involved in the
Amchitka cases pool their resources in order to retain medical
experts to counter the Subtitle D determination. Fred Mettler,
Jr., MD, MPH, Professor Emeritus with the University of New
Mexico Department of Radiology and John R. Frazier, PhD, CHP
with Auxier and Associates have been retained to assist
opposing attorneys in defeating my claim. Incidentally, John R.
Frazier is senior analyst with a firm that has been contracted
to produce site profiles for NIOSH under the EEOICPA, a
definite conflict of interest in my opinion. It is my
understanding that both Drs. Mettler and Frazier are being
compensated to testify against my claim at the rate of one
thousand dollars per hour.
DOE has pointed out that they were successful in negotiating
a Memorandum of Understanding with the State of Alaska which
allowed them to accept my Subtitle D application. The MOU is
meaningless. No one in the Alaska Workers Compensation office
in Anchorage or in Juneau understands the significance of the
MOU. It neither helped nor hindered my workers' compensation
claim.
Had DOE fulfilled its obligations under the EEOICPA, I would
not have been put in the position of defending my claim under
the Alaska Workers Compensation system. Had DOE addressed the
``willing payor'' issue, the matter of adjudicating my claim
under the AWCB would have been unnecessary. DOE has steadfastly
refused to even respond to inquiries about the Willing Payer
issue.\17\ Governor Frank Murkowski, who worked with a
bipartisan congress to pass the EEOICPA, called upon Secretary
Abraham to find a solution to the Willing Payer issue. Governor
Murkowski's May 2003 letter is to this day unanswered. U. S.
Senator Lisa Murkowski and Congressman Don Young from Alaska
have both asked Secretary Abraham to resolve the willing payor
issue, without success. It appears to me that Secretary Abraham
and his staff have taken the term ``stonewalling'' to new
heights on the issue of finding a willing payor. My question is
why has the Department of Energy been allowed to continue its
miserable performance of implementing Subtitle D of the
EEOICPA.
---------------------------------------------------------------------------
\17\ See Attachment ``C"
---------------------------------------------------------------------------
I am respectfully requesting that this Committee recognize
that DOE is simply unable and unwilling to fulfill the
obligations it was charged with under the EEOICPA. If DOE
cannot answer why it is unwilling or unable to meet the
responsibilities it has to Subtitle D applicants, then it
should at the very least step aside so that another agency can
complete the job.
Ms. Carllson is encountering precisely what the Advisory Committee
warned against. In three years, DOE has taken no meaningful steps to
resolve the willing payor problem. DOE officials blame this on Congress
and a poorly crafted statute. But, DOE has proposed no credible
solutions, and rejected responsible bi-partisan legislative reforms
such the Reform of Energy Workers Compensation Act (H.R. 1758), whereby
the DOL could serve as the Third Party Administrator to pay all claims
using a benefit level set under the Federal Employee Compensation Act
(5 U.S.C. 8101 et seq).
Further, DOE will not intervene in the Alaska proceeding to defend
its own Physicians Panel determination in Alaska. Precisely what
``assistance'' is DOE providing in the Carllson case, if it cannot
provide a willing payor and won't even defend its own Physician Panel
decisions?
One proposal is for DOE to retain a non-risk bearing Third Party
Administrator. In Colorado, DOE's contractor, Kaiser-Hill, is required
to contest valid worker compensation claims as a result of a $1 million
``top layer'' insurance policy. Kaiser-Hill has reportedly entered into
an arrangement with Pinnocol Insurance to serve as a Third Party
Administrator to pay valid occupational illness claims. According to
the State of Colorado, authority to proceed to pay claims has not been
granted due to the absence of a waiver from the predecessor contractors
and most importantly--an assured source of funding to cover multi-year
obligations. This proposed agreement has not been made public and
should be.
xiv. physicians will be driven out of the program without a willing
payor
Physicians have been subpoenaed in this Alaska worker compensation
case, and subjected to interrogatories. Allowing physicians to be
enmeshed in litigation will eventually drive some out of the program at
a time when the program has a shortage of physicians. The physicians
are in no position to be summoned to Alaska, nor has DOE committed to
cover such costs in connection with defending Physicians Panels
determinations.
xv. recommended solution to fix subtitle d
DOL should be assigned the primary responsibility to administer the
program for compensating DOE contractor employees made ill from
exposure to toxic substances at Department of Energy facilities,
including: (a) the processing and evaluation of claims; (b) the
management of Physicians Panels; (c) and serving as the payor for such
claims.
DOL would evaluate disability claims and use the Federal Employee
Compensation Act (FECA) as the template for setting benefit payment
levels. DOL would use its existing EEOICPA staff now used for Subtitle
B claims, inasmuch as the DOL has worked off its backlog. Benefits
could be funded with discretionary appropriations whereby DOE would
reimburse DOL for the cost of benefits, similar to the model in place
today for FECA. Alternatively benefits could be appropriated through
direct spending to the EEOICPA Fund at the DOL. Subtitle B is funded
through direct spending. The Reform of Energy Workers Compensation Act
(H.R. 1758) establishes DOL as the willing payor using this model.
Under this reform, DOE would be tasked with providing individual
employment and workplace information necessary to the Secretary of
Labor. DOE would be relieved of funding its self-insured contractors
with discretionary appropriations to pay approved claims.
We recommend that either NIOSH and/or DOE former worker medical
screening programs be tasked to provide exposure assessments for each
of the major Department of Energy sites. Further NIOSH should continue
to appoint Physician Panels, and should assist DOL in developing
diagnostic presumptions, where possible, for illnesses related to
exposure to toxic substances.
Moving Subtitle D, including claims payment functions, to DOL makes
sense because: 1) it simplifies public understanding by providing 1-
stop shopping for claimants; 2) DOL has the expertise and
infrastructure to implement the entire program, including claims
processing and claims valuation; 3) DOL has credibility because it has
met its previous commitments, and (4) DOL has demonstrated that it can
start up work with minimal delays.
Outlined below is a comparison of options to reform Subtitle D:
----------------------------------------------------------------------------------------------------------------
Function Current Law H.R. 1758 Proposed Reform
----------------------------------------------------------------------------------------------------------------
Records Recovery................ DOE DOE DOE
Claims Processing............... DOE DOE DOL
Physician Panel/Causation....... DOE DOE DOL
Appeals of Panel................ DOE DOE DOL
Determination of Disability..... State DOL DOL
Determination of Amount $....... State DOL DOL
Appeals of Disability/$......... State DOL DOL
Payment of Claim................ 50-75% DOE contractor DOL DOL
25-50% no payor DOL DOL
----------------------------------------------------------------------------------------------------------------
xvi. summary
The DOE's program has 3 key elements, all of which are in need of
reform none of which DOE seems capable or inclined to fix. No matter
how well intentioned, DOE's failure to make a meaningful dent in its
backlog or move more than a handful of claims over the past three years
speaks for itself. Claimants need a willing payor, not litigation
headaches. Doctors may be driven away from the program if they are
unwittingly ensnared in litigation that they never intended to join.
Sick workers do not have time for DOE to learn on the job, nor can
they withstand the legal machinery awaiting them in states where there
is no willing payor. So far the only winner has been a support service
contractor generating healthy revenue gains, which has fought reforms
in order to maintain the status quo. It is time to give this job to
those who have the skills and infrastructure to perform. It is time for
the public interest to prevail.
It makes no more sense for Congress to assign DOE a worker
compensation program than it does to assign a nuclear weapons program
to the Department of Labor (DOL). By adopting comprehensive reforms
which shifts this program to the DOL, Congress can honor its commitment
to cold war veterans who have been put at needless risk and harmed by
DOE, its predecessor agencies, and their contractors.
Senator Bunning. Thank you, sir.
Mr. Donald Elisburg.
STATEMENT OF DONALD ELISBURG, ATTORNEY, ON BEHALF OF THE
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS (AFL-CIO) AND THE BUILDING CONSTRUCTION TRADES
DEPARTMENT (BCTD)
Mr. Elisburg. Thank you, Mr. Chairman. If I may offer our
full statement for the record.
Senator Bunning. Absolutely, without objection.
Mr. Elisburg. I appreciate the opportunity to appear here.
I will do my best to try to anchor this very distinguished
group of colleagues here without being overly repetitious,
because I think they have all really made the same points.
My name is Don Elisburg. I am appearing today on behalf of
the AFL-CIO and the Building and Construction Trades
Department. I have been asked to testify because of my prior
experience in implementing similar compensation programs in the
past. I testified in support of the legislation that ultimately
became EEOICPA before the Congress, specifically in support of
assigning this program to the Secretary of Labor when this law
was under consideration. I was also a member of the Workers
Advisory Committee at the Department of Energy from January
through December 2002.
[Room lights flicker.]
Senator Bunning. Hold on just a second. Let us see if we
can correct our problem.
[Pause.]
Senator Bunning. Voila. Go ahead. Thank you.
Mr. Elisburg. Obviously, the point of our appearing here is
that the AFL-CIO and its affiliate members have a significant
interest in the implementation of this program. They have been
involved since the weapons program began as the Manhattan
Project in the early 1940's, when the members of the affiliates
built and maintained the many facilities used to develop and
maintain nuclear weapons. The members of the AFL-CIO and its
affiliates have also served as the principal production and
operating personnel of these weapons facilities.
For decades the AFL-CIO, the BCTD, the Metal Trades
Department, PACE, the Laborers, and other unions have worked to
secure safety and health rights and protections and just
compensation for these workers.
Unfortunately, the experience with the implementation of
this program is just not what the sick workers or their
survivors deserve, nor does it meet the objectives Congress set
forth in the act. Energy workers with radiation-induced cancers
and toxic exposures need timely compensation and that is not
happening with these many thousands of claimants, as has been
stated over and over again today.
I would like to point out that our statement does deal with
both subpart B and D. Subpart B is, for the record, relating to
the dose reconstructions, but we do want to make clear that,
despite the efforts of the Department of Labor in moving the
claims along, the dose reconstruction that NIOSH is responsible
for has also been set up for long delays and imperfect results,
and basically that workers at places like Los Alamos, Savannah
River, Rocky Flats are in the same situation as in the gaseous
diffusion plants and Amchitka and that NIOSH should recognize
that there are not sufficient records and information and
simply put all of these workers in the special exposure cohorts
with the same presumptions and benefits and move those claims
along.
As to subtitle D, I have to agree with much of the
testimony of my colleagues today. As currently interpreted, it
cannot work. The Department of Energy is neither structured nor
is interpreting the statute to make it work as it might have.
It was for that reason that the AFL-CIO was supportive of the
Grassley-Murkowski amendment as indeed the first step in at
least trying to alleviate some of this claims-handling process.
Obviously, there are other issues that need to be dealt
with, such as the willing payor and so forth. But it is very
clear that the Department of Energy does not really have it.
The statute is supposed to be interpreted to pay claimants. It
was not devised to need another series of barriers and hurdles.
The way in which the process is being interpreted turns
Congress and its direction on its head.
The concept was to determine the causation and then arrange
through the State compensation system to have the claim paid by
the contractor. The notion that you would spend a couple of
years determining causation and then send them in for another
couple of years to relitigate makes no sense and is simply
denying claimants the relief that the Government admitted they
owed.
Certainly, when the Secretary of Energy signs off on a
claim, they expect to pay. We cannot see how they have
interpreted the relationships to simply say, yes, we will take
you and your files and dump you on the doorstep of the agency,
and you figure out how to get our contractor to pay money that
we will then reimburse them anyway, because in the end it is
all DOE money.
I would also want to tell you personally that I do agree
with the statements pretty much of Professor Burton and Richard
Miller as to the sort of aggregate problems here and how they
could be improved.
I would like to--I know my time is up--sort of in
conclusion say that as a member of the advisory committee we
asked many of these questions. We told them from the beginning
that the first in, first out probably made no sense, that they
needed to move some claims that could be paid so they could see
how the process would work.
We raised the issue of willing payor over and over again.
Aside from the documentation you have seen, we personally
talked to Secretary Cook each meeting and we asked about the
willing payor, should we turn the lobbyists loose on Congress,
should we write a letter saying that something should be done?
And each time we were told: No, we think we have a way out, we
think there is a way to pay them, we think there is a way to do
this; it is not necessary, etcetera, including, I might say to
Leon, the gaseous diffusion plant at Paducah, which was
specifically raised.
I was somewhat surprised to hear the Department of Energy
say, well, we sort of dumped it and we are not paying any
attention to it.
Finally, in the 2 years of the advisory committee activity
I frankly never heard them raise the question that they did not
have enough money to do their job. In addition, the questions I
have not heard are, in addition to the question of the willing
payor and those contractors they cannot find out there, at
least half of these claims or more are going to be contractors
where they know who they are and they will reimburse them, and
those still are not moving forward to be paid.
In short, Mr. Chairman, we think that this program has
simply not met the points that Congress asked them to meet.
[The prepared statement of Mr. Elisburg follows:]
Prepared Statement of Donald Elisburg, Attorney, AFL-CIO,
Building & Construction Trades Department
Mr. Chairman and Members of the Committee: My name is Donald
Elisburg and I am appearing today on behalf of the AFL-CIO and the
Building Construction Trades Department (BCTD), I have been asked to
testify because of my prior experience implementing similar
compensation programs in the past. I testified in support of the
legislation that ultimately became EEOIPCA before the Congress,
specifically in support of assigning this program to the Secretary of
Labor when this law was under consideration. I was also a member of the
Workers Advocacy Advisory Committee of the Department of Energy from
January 2001 through December 2002. That Advisory Committee was
appointed to assist the Department of Energy in implementing its
responsibilities under EEOICPA.
I want to thank you for the opportunity to testify on the
implementation of the EEOICPA.
The AFL-CIO and our affiliates have a significant interest in the
implementation of this program because our involvement since the
nuclear weapons program began as the Manhattan Project in the early
1940's when members of our affiliate unions built, and maintained the
many facilities used to develop and maintain nuclear weapons. Our
members have also served as the principal production and operating
personnel of these weapons facilities. For decades, the AFL-CIO, the
Building and Construction Trades Department, Metal Trades Department,
PACE, the Laborers and other unions have worked to secure safety and
health rights and protections and just compensation for these workers.
As we have testified before Congress many times, these workers were
engaged and continue to be engaged in activities vital to the security
of the United States. They deserve to be treated with fairness and
dignity.
EEOICPA was passed in recognition of the fact that the work at
these facilities put workers at risk of injury, illness and death from
exposure to radiation and various toxic chemicals and materials used in
the nuclear weapons program. Secrecy put these workers at additional
risk. EEOICPA was Congress' recognition and determination to compensate
workers and their families even if it would not make them whole.
Congress directed the President to implement this program. By
Executive Order the program was assigned to the Departments of Energy,
Labor and HHS.
Unfortunately, the experience with the implementation of this
program is just not what these sick workers or their survivors deserve,
nor does it meet the objectives Congress set forth in the Act. Energy
workers with radiation-induced cancers need timely compensation and
that is not happening with many thousands of claimants. Problems exist
with both Subpart B--administered by DOL and NIOSH--and with Subpart
D--administered by DOE.
subtitle b issues
Subtitle B of the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA), 42 U.S.C. Sec. Sec. 7384-7385,
enacted in 2000, established a federal program to compensate workers at
Department of Energy atomic weapons and contractor facilities for
illnesses resulting from radiation, beryllium, and silica. The program
provides a $150,000 lump sum payment and prospective medical benefits
to covered employees or a lump sum payment to their survivors. To date,
the Department of Labor has paid over $672 million in benefits. But
there is a huge backlog of claims pending--more than 14,000--awaiting
dose reconstruction by the National Institute for Occupational Safety &
Health (NIOSH). Claims of workers with cancer who are awaiting payment
because NIOSH has not completed their dose reconstruction arise in
states throughout the country.
NIOSH should streamline the procedures for evaluating these claims
so workers and their survivors can be compensated in a timely manner as
Congress intended. The fairest and most efficient way to do this is to
streamline the procedures to add groups of workers to the Special
Exposure Cohort so their claims can be considered on an expedited
basis.
radiation dose reconstruction and special exposure cohorts under
eeoicpa
When EEOICPA was passed, the Congress designated certain groups of
workers with cancers linked to radiation exposure to be included in a
special exposure cohort (SEC) because DOE's radiation exposure records
were so poor it was not possible accurately to reconstruct each
employee's radiation dose. Under the Act, workers employed at DOE
gaseous diffusion plants in Oak Ridge, Tennessee, Paducah, Kentucky or
Portsmouth, Ohio were automatically included in the SEC. Also, workers
involved in testing activities on Amchitka Island, Alaska were
designated as SEC members. For these employees, compensation is paid
without regard to an employee's individual radiation dose if the
claimant has one of the designated cancers and meets the Act's general
exposure/employment criteria. These claimants receive compensation for
cancer promptly.
But for workers with cancer from all other DOE facilities, or for
those with cancers other than those specified as presumptively linked
to radiation exposure, different, complicated procedures were
established--requiring either individual dose reconstruction or a
lengthy process to designate additional members of the SEC. NIOSH has
been given responsibility for both of these activities, but because of
the complexities involved, has fallen years behind. More than 14,400
claims are now pending dose reconstruction and no new members have been
added to the SEC. So far, NIOSH has forwarded completed dose
reconstructions to DOL for only about 700 claims. At the rate NIOSH is
going, it will be years before these backlogged claims are processed
and victims receive compensation. Meanwhile, DOE workers with cancer do
not have the medical or cash benefits Congress provided and their
widows grow old without the economic security to which they are
entitled.
backlog of pending claims at niosh awaiting dose reconstruction
The backlog of pending claims at NIOSH is a problem that affects
workers throughout the country and is particularly severe at some of
the larger DOE weapons facilities where large numbers of workers were
exposed to radiation. These facilities including Rocky Flats (CO), Iowa
Ordnance Plant (IA), Idaho National Lab (ID), Fernald (OH), Los Alamos
(NM), Nevada Test Site (NV), Savannah River (SC), Oak Ridge National
Lab (TN), and Hanford (WA). The table below shows the number of claims
(and individual cases) from all Department of Energy facilities
awaiting dose reconstruction at NIOSH by state (for states with more
than 50 claims).
----------------------------------------------------------------------------------------------------------------
Claims Accepted
State Claims Filed * Pending at NIOSH
----------------------------------------------------------------------------------------------------------------
Alaska....................................................... 286 106 64
California................................................... 1,594 145 810
Colorado..................................................... 3,214 1,488 788
Florida...................................................... 1,251 146 613
Idaho........................................................ 1,097 56 652
Illinois..................................................... 1,120 95 540
Iowa......................................................... 1,079 30 599
Kentucky..................................................... 3,523 844 775
Massachusetts................................................ 419 9 207
Michigan..................................................... 233 16 102
Missouri..................................................... 1,016 69 529
Nevada....................................................... 1,680 142 815
New Jersey................................................... 132 10 56
New Mexico................................................... 3,577 1,225 642
New York..................................................... 2,293 141 1,279
Ohio......................................................... 2,854 709 1,008
South Carolina............................................... 2,458 42 1,516
Tennessee.................................................... 7,208 1,506 3,143
Texas........................................................ 1,234 129 601
Washington................................................... 2,388 107 1,669
West Virginia................................................ 508 34 90
----------------------------------------------------------------------------------------------------------------
* Accepted claims include claims for chronic beryillum disease, silicosis, as well as radiation cancer.
One of the major reasons for this delay is that for many workers
DOE radiation exposure records are incomplete, inaccurate or
nonexistent. When NIOSH reconstructs a radiation dose, it must make
educated guesses as to what an employee's dose was likely to have been.
While NIOSH claims that its process is employee friendly, nobody can
gauge whether NIOSH dose reconstructions bear any reasonable
relationship to an employee's actual radiation dose. We cannot state
too strongly the need to be sure that this aspect of the program is
transparent and credible to the claimants and their families.
As stated earlier, this entire compensation program has to be
measured against the very long and well documented history of secrecy
and deceit on the part of the Department of Energy and its predecessor
agencies tracing back to the earliest days of the Manhattan Project.
This long history and the resultant distrust of the DOE requires an
open and transparent program. This is especially true given the
technical complexity of dose reconstruction and the reliance on DOE to
provide the dose data.
Many thousands of our members served their country in the cold war
by working at these facilities often under very difficult conditions.
They deserve to be treated with respect and should have a compensation
program that they can trust and understand.
Unfortunately, some of the activities that NIOSH has undertaken
appear to be at cross purposes with this goal of an open and
transparent program. As an example, NIOSH has recently implemented a
plan to develop site profiles for each major site as a framework for
individual dose reconstructions. These profiles would include the major
sources of exposure data for the site.
However, NIOSH's procedure included no opportunity for input into
these site profiles by unions, interested parties, etc. until after the
profiles were complete and being used by NIOSH. This procedure only
compounds the past mistakes made by DOE to hide information from the
exposed workers and their families. The Advisory Board raised
objections to this approach and has asked NIOSH to develop a more open
process involving the local unions and other interested parties in the
development and review of these site profiles in order to ensure the
credibility of the dose reconstruction program.
The Savannah River Site is a prime example. The site profile was
released in August without any discussion or review with the local
unions or other interested parties. NIOSH's initial excuse, that there
were no unions at SRS, totally missed the fact that there have been
union workers engaged in building and maintaining the SRS facility
since the first construction activity a half century ago. We would note
for the record, that after extensive protest, NIOSH finally conducted a
meeting at SRS earlier this week to discuss this profile with the local
unions and interested parties. These activities should not have to be
undertaken only after claimant protests.
Similiar concerns about the uncertainty of dose reconstruction have
been raised about Department of Defense radiation dose estimates for
military personnel. Unlike DOE nuclear workers, under veterans'
compensation benefits, all veterans with specified cancers are presumed
entitled to compensation. Dose reconstruction is used to determine
whether to compensate veterans for other diseases. The National Academy
of Science's Institute of Medicine recently evaluated the DOE dose
reconstruction process. It concluded:
Because specific exposure conditions for any individual often
are not well known, many participants did not wear film badges
during all possible times of exposure, and the available survey
data used to input the models often are sparse and highly
variable, the resulting estimate of total dose form many
participants are highly uncertain.
problems with proposed niosh sec procedures
There are major problems with the proposed procedures for the
designation of additional members the SEC. Under EEOICPA, additional
members of the SEC may be designated when it is not feasible to
estimate with sufficient accuracy the radiation dose of the affected
workers. (Section 3626). This spring, NIOSH proposed procedures for
designating additional members of the SEC. The NIOSH proposal was
strongly criticized by the Advisory Committee on Radiation and
representatives of DOE workers. Decisions on adding additional members
to the SEC can be expected to take at least two more years--almost five
years from the enactment of EEOICPA. Employees seeking designation as
members of the SEC will have to meet a high burden of proof--a burden
not imposed on fellow workers from gaseous diffusion plants who have
already received compensation for their radiation induced cancers.
Workers at DOE facilities such as Hanford, Rocky Flats, and
Savannah River, and other locations, are treated unfairly under
EEOICPA. Their colleagues at gaseous diffusion plants, like veterans,
are presumed eligible for compensation if they get certain cancers and
many have received compensation. Meanwhile, these other workers, whose
radiation doses likely were just as high and for whom radiation dose
records are just as sparse, must individually demonstrate their right
to compensation. The process for doing so, dose reconstruction, is too
slow and inherently uncertain. Only a handful of workers outside the
SEC have actually received compensation for their cancers since EEOICPA
was passed.
streamlining sec procedures and expediting compensation for victims
EEOICPA needs to be fixed so DOE workers with radiation induced
cancers or their survivors receive timely compensation. The following
modifications to the program would accomplish this goal by simplifying
and streamlining the procedures for adding additional groups of workers
or facilities to the special exposure cohort. NIOSH has the authority
to implement each of these policies, but has so far failed to do so:
Set deadlines for NIOSH to respond to petitions to add
workers to the Special Exposure Cohort--providing 90 days for
response and an additional 45 days where NIOSH requests review
of the petition by the Advisory Committee on Radiation.
Allow NIOSH to determine which petitions for adding groups
to the SEC need to be reviewed by the Advisory Committee.
(Currently all petitions, even those pertaining to small groups
of workers must be referred to the Advisory Committee.)
Clarify that NIOSH may add a group of workers to the SEC if
it determines that representative records of radiation doses
for the individual are incomplete or missing and that radiation
may have caused or contributed to specified cancers among
members of the group. (These were the criteria that were used
to designate workers at gaseous diffusion plants as members of
the SEC in the original Act.) Currently, NIOSH attempts to
reconstruct doses even if individual monitoring records are not
available.
Establish the same criteria for compensation for new groups
of workers added to the SEC as those set for gaseous diffusion
workers in the original Act.
These revised procedures will streamline the process for evaluating
petitions for expanding the SEC, and for those groups of workers who
are added, expedite the process for evaluating their individual claims
for compensation. Once added to the SEC, the same criteria for
compensation will apply to these workers as applies to workers at the
gaseous diffusion plants. The recommended procedures do not expand the
number of workers eligible for compensation, nor should it change the
anticipated costs of the program. Most of these claimants are already
eligible for compensation. They are just required to wait far too long
to receive the compensation they are due. Streamlining the process and
clarifying the criteria by which these employees may be added to the
SEC simply changes the procedures by which the merits of their claims
are judged and speeds up the compensation process.
Mr. Chairman, our organizations have a longstanding relationship
with the Department of Labor and with NIOSH. We supported the
assignment of this program to them. We believe that the Department of
Labor has done a very commendable job so far in getting its program up
and running. As the comments submitted by our respective organizations
to NIOSH make clear, we believe that NIOSH is simply misreading its
responsibilities under the existing law and has proposed a regulatory
scheme that will not work and which will result in both a costly
process and an intolerable wait by claimants for relief.
If NIOSH persists in interpreting the statute with such restrictive
requirements, then, we see no alternative but to support changes to the
law that will ensure equal treatment of all claimants under this
program. Frankly, it would be appropriate for Congress to designate the
former workers from the other major weapons sites as members of Special
Exposure Cohorts and simply bring to an end this long, costly and
dubious process of dose reconstruction as well as a complex and costly
process to establish separate SEC's site by site. Workers at Los
Alamos, Hanford, Rocky Flats and Savannah River, for example, should be
treated the same under this Act as those from the Gaseous Diffusion
Plants or Amchitka.
Mr. Chairman, I would like now to turn to other serious problems
with EEOICPA, namely the Subtitle D program administered by the
Department of Energy.
background on subtitle d of eeoicpa
Subtitle D of the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA) was intended to take DOE out of the
business of fighting state workers' compensation claims brought by sick
nuclear workers who were employed at DOE defense nuclear sites.
Benefits are provided for workplace-related disabilities and medical
costs. In September 2002--almost two years after the enactment of
EEOICPA--DOE issued a rule governing the operations of the Physicians'
Panel (10 CFR Part 852). The rule established the criteria for
Physician Panels to determine whether an illness or death arose out of
and in the course of employment by a DOE contractor and exposure to a
toxic substance. That criteria is whether ``exposure to a toxic
substance at a DOE facility during the course of employment by a DOE
contractor was a significant factor in aggravating, contributing to or
causing the illness or death of the worker at issue.'' (See: 10 CFR
Part 852.8).
A simple majority of a Panel (two of three doctors) must agree in
order to issue a determination. The rule prohibits contractor
involvement in contesting Physician Panel findings, but allows
claimants to appeal adverse Physician Panel findings within the DOE's
Office of Hearings and Appeals. A total of 26 appeals have been decided
to date. DOE estimated benefits and administrative costs for this rule
at $130 million/10 years during the rulemaking. Physicians are selected
by NIOSH--instead of the DOE--in order to provide a measure of
independence. There are approximately 120 doctors who have been
approved by NIOSH for the DOE Physicians Panel. Due to the low rates of
compensation ($55-60/hour), some physicians with clinical practices
have withdrawn from participation. Once a Physicians' Panel issues a
positive determination, DOE is required to provide the claimant with
assistance in filing their claim with a state workers' compensation
commission.
Pursuant to EEOICPA, DOE must direct contractors not to contest the
state workers' compensation claims, to the extent allowable by law, and
DOE may not reimburse contractors for legal costs of contesting such
claims. Practically, this means DOE will instruct its contractors to
send a letter to the state workers' compensation board indicating that
they will not contest the claim. However, this doesn't necessarily mean
that the claim will be paid, because some ``payors'' are not under
DOE's/contractor's control and are unwilling to pay (e.g., exclusive
state funds and insurers).
States and insurance companies are not agreeing to be bound by DOE
Physician Panel determinations. Although DOE entered into Memorandum of
Agreements (MOA) with 12 states (AK, CA, CO, ID, IA, KY, NM, NV, OH,
SC, TN, TX) during 2002, none of these agreements require states to
accept the findings of a Physicians' Panel. All 12 states reserve the
right to impose their own provisions of state law rather than abide by
the findings of DOE or its Physicians' Panel.
For example, the DOE-Alaska Commission Agreement of 9/13/02 says:
``A positive determination pursuant to Part 852 [DOE's Rule]
has no effect on the scope of State worker compensation
proceedings, the conditions for compensation, or the rights and
obligations of the participants in the proceeding; provided
that consistent with Subtitle D, such a determination will
prevent DOE and may prevent a DOE contractor from contesting an
applicant workers compensation claim, and DOE may agree to
indemnify a DOE contractor/insurer for State of Alaska workers
compensation claims.''
To get valid claims paid, DOE is counting on its current site
contractors, many of which are self-insured for workers' compensation,
to pay the claims and the DOE will reimburse them (using appropriated
funds). At a number of DOE sites in IA, OH, KY, AK and CO, the DOE has
not identified a ``willing payor.'' A ``willing payor'' is an entity
which DOE can meaningfully direct to pay claims after a Physicians
Panel determines that a claim is work related. DOE's General Counsel
has indicated that up to 50% of valid claims may not have a ``willing
payor'' but others within DOE have offered widely varying estimates of
how many claims lack a willing payor. Nobody knows at which locations
DOE lacks a willing payor. Indeed, DOE has not even surveyed its
contracts to determine which ones contain successor liability clauses--
and thus require the existing contractor to pay the claims of former
contractors.
Congress can easily assure that these cases are paid promptly.
DOE's Worker Advocacy Advisory Committee (WAAC) warned the Secretary in
August of 2001, and again in June of 2002, that the absence of a
willing payor was a large, unresolved problem which would pose a
``gross inequity'' to claimants (as we are witnessing today in Alaska).
On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the
Northeastern University Law School) wrote on behalf of the Committee:
``WAAC Members thought that there was no legal impediment to
payment of these claims by DOE. But we also think that if DOE
is unwilling or unable to pay these claims, it's absolutely
essential for DOE to seek additional appropriations or support
alternative legislative solutions that will result in payment
of these claims without throwing them into the state workers'
compensation systems to be litigated. If the latter occurs,
insurers and state funds will not be required to waive any
technical or other defenses to these claims, and it is highly
likely (after considerable administrative expense) that few, if
any, of these claims will be paid.''
The Advisory Committee accurately described the problem that has
now arisen in Alaska.
The Committee concluded:
These claims should be handled in the same manner as the
claims of current contractors, through a central non-risk
bearing third party administrator, with a source of payment
designated by the Department.
In response to this recommendation, Assistant Secretary Cook wrote
(8/9/02):
``The issue of mechanisms of payment of claims where there is
no current contractor with responsibility for paying a claims
remains a concern. We will continue to explore possible
remedies with the WAAC, the General Counsel and Congress to
correct this inequity.''
DOE allowed the Advisory Committee's charter to expire 1/1/03.
Neither DOE nor the Administration has proposed any solutions, despite
repeated requests from Governors, workers' compensation commissions and
Members of Congress.
DOE has received approximately 18,823 claims for assistance as of
August 29, 2003. In the year since its rule has finalized, DOE has made
very little progress on its backlog.
Only 74 (0.3%) have been decided by the Physicians Panel (45
accepted and 29 rejected) and 132 (0.6%) are in the Physicians Panel
process. DOE has not even started case development work on 14,434 cases
(71%). DOE estimates a backlog of 5 years. Others foresee a much longer
time to process claims. In testimony before the Senate Energy Committee
in February, Secretary of Energy Spencer Abraham committed to have 100
claims per week completed by August of 2003. But the DOE failed to meet
that goal.
DOE has received a significant amount of funding to run the Workers
Advocacy Office. The resources have been there, but the ability to get
the program off the ground is lacking. DOE has also taken the position
that it will assist claimants only to the point of advising them as to
the process of filing a claim with the respective State agency. We
believe that the OWA has been much to timid in its approach to claimant
assistance and, as a result, many claimants, left to navigate the
complexities of the various State workers compensation procedures on
their own will continue to be frustrated in their efforts to receive
the compensation due to them.
speedup claims processing
There are many possibilities for speeding up claims processing
including requesting the assistance of the Department of Labor in
developing claims and using the existing former worker programs to
assist in developing claims, just to name a few actions.
willing payor
There are several options available to resolve the willing payor
issues:
DOE could enter a into cost-reimbursement arrangements with a
national (or site specific) non-risk bearing Third Party Administrator
(TPA) to serve as the willing payor where (a) DOE contractors are no
longer present at DOE sites, (b) where DOE contractors were not self
insured and an insurance company ``owns'' the claim, or (c) where there
is an exclusive state fund (OH, NV and WA).
Claims payments would be subject to appropriations. Levels of
benefits would be set by state compensation agencies. The TPA would
assume full liability in lieu of employers, insurers or others who
could object to a claim. Presumably disability determinations would
still have to be made by a state compensation panel. The Advisory
Committee suggested this approach.
DOE could enter into contracts with exclusive state funds, insurers
or TPAs to assume payment of claims in each instance where there is no
willing payor. Ohio's exclusive state fund has made such a proposal.
future of the doe former worker program
``And I think for one time in my life, I believe DOE is trying to
do something.'' Testimony from Mr. S given at a DOE-sponsored public
meeting in Las Vegas on February 25, 2000, on the Former Workers
Program.
The Former Workers Program (FWP) was created at the Department of
Energy in 1993 in response to the Congressional passage of Public Law
102, the Defense Authorization Act of 1993. Section 3162 of this law
required DOE to evaluate the long-range health conditions of current
and former employees who, as a result of their employment at DOE sites,
may be at significant risk for health problems. The key objective has
been to provide these former workers with medical evaluations to
determine whether workers have experienced significant risk due to
workplace exposure to hazards.
This determination has been made through twelve pilot programs
established at eleven DOE sites across the country. Initially in 1996,
six programs received funding to begin the pilot programs; in 1997 four
additional programs became involved, and since then two more have been
added as well. These pilot programs use a variety of investigative
tools to establish whether workers face significant health risk
including: risk assessment, worker history interviews and medical
screening tests.
These programs have documented several significant findings.
Sixty percent (60%) of the participants have significant
health problems that can be ascribed to their work at the DOE
sites.
Workers have experienced a high prevalence of exposure to
multiple hazards while working at DOE sites.
The FWP's have comprehensively summarized work hazards for
site worker populations.
It is possible to locate and contact many of the former
workers from these DOE sites.
A significant proportion of the workers contacted want to
participate in the program.
Participants in the program have expressed a very high
degree of satisfaction with the services provided by the
independent former workers program.
The approach to organizing these programs is highly cost
effective in comparison to other medical programs within the
DOE complex.
When the EEOICPA was being implemented the DOE Office of Worker
Advocacy and the Department of Labor stressed the importance of these
programs as a crucial resource to help workers with their claims. In
fact, item 15 on the DOE form, Request for Review by Physician Panel
(DOE Form F350.3), lists each of the FWPs and asks applicants to check
off if they have participated in one of these.
We believe that the former worker programs could significantly aid
in implementation of Subtitle D by providing exposure assessments and
diagnostic testing for workers seeking compensation benefits. But
rather than take advantage of this potential method for speeding claims
processing, DOE has moved in the opposite direction. In a Guidance to
the FWPs dated October 21, 2003 DOE proposed to phase out all but three
of these programs and replace them with an unspecified new activity
using a 1-800 call in process.
The sites to be phased out include Amchitka Island, Hanford, Idaho
National Laboratory, Iowa Army Ammunition Plant, Los Alamos National
Laboratory, Oak Ridge Construction Workers, Rocky Flats and Savannah
River. These sites represent the bulk of workers potentially affected
by this Act. The proposed action of DOE makes absolutely no sense.
These former worker programs, which operate on a relatively modest
budget and have medical and exposure data on tens of thousands of
workers, will be forced to destroy this data and disband the
institutional knowledge of worker activity and exposure that has been
created with great difficulty..
Most important, thousands of workers are still waiting to be
examined at the very sites the DOE proposes to abandon. As an example,
at the Savannah River site, it took one of the two programs operating
there 5 years to get the DOE to provide a data base of 13,000 eligible
workers. This list of former workers only became available in a usable
format this summer. Why the list was withheld for all of these years is
inexplicable. Regardless, these workers should have a right to be
examined through the former workers program now, but that will not be
possible under this shift in policy.
We do not understand the underlying motivations of DOE in this
case, since the agency is unwilling to explain its motivation to the
organizations conducting the former worker program. The proposed phase
out, at best, reflects a failure of coordination between two different
program offices under the jurisdiction of the Assistant Secretary for
Environment, Health and Safety.
At worst, it is another example of DOE's refusal to carry through
its responsibilities to its work force. Given the massive problems that
DOE currently has in carrying out its responsibilities under this
compensation program, the decision to stop its one successful activity
defies comprehension. This proposed phase out of the successful FWP
programs is truly an example that good deeds seldom go unpunished. We
urge the Committee to oppose the disbanding of these programs in the
strongest terms.
conclusion
Congress has made a firm promise that each nuclear worker with
radiation cancer will receive compensation. That promise must be kept.
We must also work to fix the problems with the DOE program, so those
with other work-related illnesses caused by toxins at the DOE complex
will receive workers' compensation payments.
Thank you.
Senator Bunning. Thank you very much for your testimony.
I have so many questions, but I will start on the willing
payor portion. At sites in Iowa, Ohio, Kentucky, Arkansas, and
Colorado, DOE has not, I say has not, identified a willing
payor. A willing payor is a title which DOE can direct the
payment claim after going through all the process, the 2 years
sometimes that it takes finally to get--up to 50 percent of the
valid claims may not have a willing payor at DOE sites.
Now, this is highlighted in the GAO report. At Paducah,
Leon, even after the fact that they have gone through, even
after 83 people have gone through the claim and 82 have been
refused and one has been found eligible for benefits, that
person has not been paid. We have to have some solution to
that, and we would like your suggestions on how we can get that
done, because we are going to have to do it by law. DOE is
going to sit on their you know what, their hands, until we do
it by implementing some kind of law that requires either the
Department of Labor or someone else to do it, because we are
not getting any cooperation between the DOE and the workers
comp people.
Mr. Owens. I think, Senator Bunning, the first thing that
Congress should consider is to ensure that there is a uniform
level of compensation, and that could be based off of the
Federal Employees Compensation Act, where you have certain wage
replacement for loss of use of function.
The counterargument from some might be that you are in a
way federalizing State workers compensation. We disagree with
that argument. From the standpoint of this program, subtitle B,
you have an entitlement program where appropriations were made
by the Congress and individuals receive compensation based from
that. So in no way do we feel that by having a uniform
compensation mechanism that this Congress would be federalizing
State workers compensation.
Senator Bunning. Mr. Miller, do you agree that that is one
of the ways, or Mr. Elisburg?
Mr. Elisburg. Yes, sure. You could have the Department of
Labor do it. You do not necessarily have to use the FECA system
as much as you could set up a fund. You could set up something
similar to subtitle D. There are any number of ways, and simply
have some form of Federal payment.
Senator Bunning. We thought we had done that.
Mr. Elisburg. I think you did. I think all you thought was
the States were going to be----
Senator Bunning. You know, what we had to do was carry it
across to the House of Representatives in person to the Speaker
to get what we got done done. And we thought we had set up that
kind of a program. Obviously, the Department of Energy does not
believe that that is that kind of a program.
Mr. Elisburg. I think that is right, and I think it goes to
the issue that in fact these contractors are creates of the
Federal Government. All the money comes from the Federal
Government and whatever payment that is going to go out is a
Federal payment in one fashion or another. It never comes out
of anybody else's pocket.
Senator Bunning. Mr. Miller.
Mr. Miller. I think at the end of the day it is a question
of money and where will it come from and who is on the hook for
it. From our perspective, whether, as Don Elisburg said, it is
FECA, which either provides for 66\2/3\ of your average weekly
wage, which is what you would get at the State level if you
were getting paid through State worker compensation, or some
lump sum settlement if it is a permanent disability, the
question then becomes how would you fund those benefit streams.
Today, as Don Elisburg and others have said, if you had a
self-insured contractor, like at Paducah you have Bechtel-
Jacobs and they are self-insured for worker compensation at
Paducah, and you can direct Bechtel-Jacobs using the energy and
water appropriations that they are given each year to carry out
their functions to pay claims with.
The question arises that if you then move that same
function and the Labor Department is evaluating disability and
they are setting some benefit level, whether it be FECA or some
lump sum alternative, and you still have to figure out, do you
want that to be an entitlement spending, direct spending like
we went through 3 years ago, as you talked about--and I
remember working vividly with you and Senator McConnell and
others trying to get that very ball over the hump--or do you do
it subject to appropriations?
The Federal Employee Compensation Act today operates
subject to appropriations. Every Federal agency--the Department
of Treasury, the Department of Homeland Security, the
Department of Defense civilian employees--all reimburse the
Department of Labor's fund on an annual basis for their
outlays. So that each agency's budget includes a chunk to repay
under FECA.
So you could have the Department of Energy with a special
line item replenishing the fund.
Senator Bunning. No, I do not want the Department of Energy
involved in it. I am going to get it out of there as soon as I
can.
I will come back to you, Dr. Burton. But Senator Murkowski,
go ahead.
Senator Murkowski. Thank you, Mr. Chairman, and I have a
whole series of questions that I will submit for the
individuals so they can respond in writing.
But just generally and kind of focusing on the GAO's review
of the claims, we have heard that it does not work. I think
certainly Senator Bunning and myself are in total agreement
that it is not working, we have got to figure out a way to fix
it. Is it the structural flaws in the system? Is it management
issues? Is it--do we need more specialized expertise? Is it all
just a question of funding? If you throw enough money at it, do
we fix it? Or is it structurally flawed to the point where it
is just not going to work?
Mr. Michaels, I understand that when this act was first
passed you had supported DOE implementing subtitle D and now I
understand that you have changed your mind. You folks as well
as anybody out there understand what has happened and I would
like to think can offer some substantive input in terms of what
do we do, how do we deal with Mrs. Carlson's problem.
So have at it. Mr. Michaels, do you want to comment first?
Dr. Michaels. Thank you, Senator Murkowski. You are
absolutely right, I was a strong supporter of this and believe
it could have worked. But I think the currency has been spent
and it would be very difficult to reconstruct this program at
the Energy Department.
I think probably what needs to be done is we really need to
sit down. I think there are a number of really important
thinkers in workers compensation. I would actually--probably
first is reconvene the advisory board that DOE disbanded and
begin to work through this and say--I would actually probably
suggest that in the short run if legislation to shift it--I
would support first shifting this to the Labor Department in
the short run, just for administrative purposes. I realize that
does not solve the issues that Mr. Miller raised around, and I
think John Burton raised as well, around disability
evaluations, a number of different issues.
But once we essentially move the program to get people
through the system, I think we should sit down and really think
through what is the best way to do this. I think it should be
probably a program that looks very much like the Federal
Employee Compensation Act, which Mr. Owens suggested, because
in fact these are close to Federal workers. While these are
State workers, they are covered by State systems, the reality
is they are working under Federal rules. The Department of
Energy regulates all these facilities.
We the Department of Energy--I was part of the Department
of Energy--sets the wage rate, sets the conditions. When the
contractor changes in one of these facilities, the top 12
people change; the workers remain the same. It is not Union
Carbide or Martin Marietta or Bechtel. These are people who are
working for the U.S. Government, but just paid through a
contractor mechanism.
In some ways the easiest thing might be to say let us treat
them in terms of benefit levels like Federal workers. I think
that would be a big step forward.
Senator Murkowski. Mr. Elisburg.
Mr. Elisburg. Yes, Senator. With respect to Mrs. Carlson's
claim, which has been publicized, it seems to me that this is a
dramatic example of the Department of Energy walking away from
its responsibilities, and there is no two ways about it. They
led this woman along, they encouraged the claim, and then they
dropped her.
With respect to what is going on in Alaska, without getting
into all the details of the litigation, it has been a massive
attack on this program by some contractors and the insurance
folks in Alaska, for reasons that are unclear since it will
never be any of their money. It will in fact be the Department
of Energy's money.
It seems to me the Department of Energy ought to be up
there up front defending its physicians panel determination. It
ought to be defending the scope of the statute. it ought to be
defending all of those basic issues which go to whether or not
this is an appropriate Federal program.
One of the advisory committee recommendations, which might
or might not work in a place like Alaska, was where you cannot
find a contractor the whole point is to have someone who you
can pay money to to run it through the system. The advisory
committee suggested looking at creating a third party
administrator, appoint them as the contractor in fact to deal
with this claim, work an agreement with the State to accept
them as the contractor that will supervise the payments, the
medical payments--in a death case there is no medical
payments--supervise the payments in this case, and in effect
they are a contractor of record.
That provision, that was promoted rather heavily with the
Department of Energy and we never did understand why it was not
accepted. In fact, it was pushed by the contractor community
that was a part of our advisory committee.
So that is just a few notions. But to simply stand by and
say, well, we sent her there and there is nothing we can do I
would say is not the appropriate response.
Senator Murkowski. I appreciate that. Thank you.
Mr. Miller.
Mr. Miller. I would just like to underscore one additional
point, which is the Department of Labor's program today is,
quote, ``non-adversarial.'' The Energy Department does not
intervene as an adverse party with a case it does not agree
with. The contractors cannot intervene. There is no secret hand
reaching into the hearing room or to the claims examiners when
they evaluate the claim.
In effect, the Labor Department acts as the insurance
company for the U.S. Government. They are the ones that
evaluate whether it meets the statutory criteria. When you have
a non-adversarial program, you have no lawyers, you have no
litigation, the claim is either accepted or not, and you have
an appeals process within, and if you want to the Federal
courts.
We think that a non-adversarial structure is appropriate
where you have claims, just as you do with other claims
programs, for example, which cover the Radiation Exposure
Compensation Act for uranium miners. Again, it is a claims
program, and if this is structured as a claims program it
should not be adversarial in its ultimate outcome.
Senator Bunning. Thank you.
Senator Murkowski. Thank you.
Senator Bunning. I want to go back to some of the things
that you have said, because Senator Bingaman and I put forth
one suggestion for fixing the willing payor problem in
legislation last Congress. In the legislation, workers comp for
DOE employees was federalized--a bunch of you have suggested
that--to avoid the willing payor issue.
Is there anyone here that would think that that is a bad
idea? Go right ahead.
Mr. Robertson. Being with GAO, I have to be a little
cautious.
[Laughter.]
Senator Bunning. Well, speak up.
Mr. Robertson. Just to remind you, our work at DOE is
ongoing and we have just started the work at DOL. So, we are
not in a position to make a commitment on that.
Senator Bunning. I understand GAO's position.
Mr. Robertson. Could I add another point?
Senator Bunning. Go right ahead.
Mr. Robertson. We have been talking about a number of
alternatives, some of which are dramatically different to the
program that is in place now. I would just also say that we
ought to look for what is happening in the real short run,
which is DOE still has the program. I would just like to
reiterate what Senator Talent talked about earlier--and I think
you did, too--and that is, in the mean time while we are
thinking about all these other options and alternatives, that
there is some mechanism put in place to hold DOE accountable
for implementing the program that it was given to implement.
Senator Bunning. Well, there are a lot of things we can do.
One is to cut off their money and make them a nonexistent
Department if they do things like that. But those are radical
things and a lot of us do not like to do those kind of things.
But to stimulate their participation, their active positive
participation in this program, we have to do something
different than what we are doing, because they are obviously
adversaries of those filing claims and that is not the way it
was set up.
GAO has indicated that the Department of Energy does not
have an adequate computer system in place to track the status
of claims and the reason for determining a claim ineligible, a
claimant ineligible. How does the DOE computer system compare
with claims processing operations you have evaluated in other
agencies? Is the DOE program vulnerable to legal challenges
because it has failed to ensure consistency in processing its
claims?
Mr. Robertson. Here is what has happened with the system
they had in place, and it is one of the reasons, frankly, why
we cut off our data analysis at June 2003. We had done a data
reliability test on the system that DOE had in place at that
time. In July they made some changes to that system that were
supposed to correct some of the problems that we identified and
that you alluded to. We have not gone back and seen whether,in
fact, they have been corrected. So we will be doing that as
part of our ongoing review.
Senator Bunning. Given the complexities involved with the
claims that have been filed, do you think that, like the
Department of--and I would like to hear from Dr. Burton on
this--that the Department of Labor, assigned the same
responsibilities, would have encountered similar problems that
DOE has encountered? You seem to think that the Department of
Labor is not a good place to go.
Dr. Burton. Well, I think the Department of Labor may be
better than the Department of Energy, but I think we need to be
realistic about what you are going to gain by shifting this
from DOE to Department of Labor. For example, the Department of
Labor has some types of cases which are readily--can be readily
processed.
But there are a set of claims that the Department of Labor
currently has responsibility for that require dose
reconstructions from NIOSH, and those have not been processed
very rapidly. Now, it is not the Department of Labor's fault.
The point is there is nothing inherent about getting claims-
handling at the Department of Labor that is going to make
things go faster. I think if you simply transferred over the
title D as it now exists you are going to have pretty much the
same set of obstacles to processing these claims no matter who
is handling them.
Senator Bunning. So you would have to change the way that
the claimants file and process the claims?
Dr. Burton. Well, let me make clear again. I think probably
if it was a Department of Energy transfer to the Department of
Labor things are going to go faster. Certainly the experience
we had on our committee was frustration about the fact that
things were not being done very efficiently or effectively at
the Department of Energy.
But I think there is only a limited amount of gain you are
going to get by switching it to Department of Labor, unless you
fundamentally change the program. That is why I have suggested,
for various reasons, and I think based on the experience of the
last couple of years, several of us have come around, Dr.
Michaels and myself included, to the notion that the whole
scheme that is in title D of meshing State and Federal programs
is not going to work.
The only thing I would differ from what other persons on
the panel is Mr. Owens seemed to be reticent to call that
federalization of title D. I would call a spade a spade. Let us
federalize title D, get the States out of it.
Senator Bunning. We tried. We put--Senator Bingaman and I
tried very hard to do that.
Dr. Burton. Well, obviously I am not the politician here. I
am simply the person trying to--from my standpoint I do not
think the mixed State-Federal program is going to work, no
matter who is running it, and therefore I think we need to drop
back and redo it. I realize that that may be difficult to do,
particularly between now and the end of this session.
Senator Bunning. Mr. Owens--well, we are not going to be
able to do it between now and the end of the session. Maybe
next year some time.
Mr. Owens.
Mr. Owens. Senator Bunning, I respectfully disagree with
Dr. Burton, from the standpoint of not gaining much if we
transfer the program from the Department of Energy to the
Department of Labor. I think there are two issues. One is
transparency, the other is credibility. By transparency what I
mean is a full understanding by the claimants, by these sick
workers, by these widows, of what the program intent, what its
intention is.
Credibility. As of right now there is very little
credibility within the DOE complex by any of these workers with
anything that DOE does. That is a problem that will continue to
exist, notwithstanding the adversarial process that they
continue to bring to the table. So that would be an immediate
benefit.
We do not want to see sick workers not file claims because
of a process that is so convoluted that, number one, they are
going to die before they even see any type of realization of
their claim even being processed, let alone receive any
compensation. So those are the immediate benefits that I see.
Senator Bunning. Mr. Elisburg, go ahead.
Mr. Elisburg. Mr. Chairman, two points I would like to make
about your question. The first is that even if you were to send
this to the Department of Labor, where I think you would have
far more efficiency and movement, it is clear that, because of
this so-called willing payor issue, there needs to be made
clear--that is, if you are still going back to these
contractors to process it--that in the absence of a contractor
the Department of Energy will assume responsibility for payment
or something quite that simple to fix this willing payor in
language.
That is one way to get out from under that issue, so that
there is somebody out there.
[Room lights flicker.]
Senator Bunning. I think they are trying to tell us
something.
Mr. Elisburg. The second point of this, having listened to
the testimony this morning, is--and it goes to I think Leon's
discussion of perhaps credibility--it seems very clear that the
Department of Labor in this program has been a willing payor
and the Department of Energy has not been a willing payor, and
I think that goes to the heart of how do you make this program
work.
Mr. Miller. If I could just underscore one point, Senator.
Senator Bunning. Make it quick.
Mr. Miller. The only point is that the DOE serving as a
``willing payor,'' quote unquote, raises a very profound
question: Can they actually manage that? If they cannot even
manage to move their claims, can they possibly manage the
complexity of being the willing payor?
Senator Bunning. Okay. Those of you who wish to submit
testimony or questions for the record should do so by the end
of the day on Monday, November 24. We also may submit questions
on behalf of the committee to each and every one of you that we
have not asked today.
I thank you for your testimony and the committee is
adjourned.
[Whereupon, at 12:14 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Department of Energy,
Congressional and Intergovernmental Affairs,
Washington, DC, January 20, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: On November 21, 2003, Robert G. Card, Under
Secretary of Energy, testified regarding the status of implementation
of the Energy Employees Occupational Illness Compensation Program.
Enclosed are the answers to 21 questions submitted by Senators
Murkowski, Schumer, and Campbell to complete the hearing record.
If we can be of further assistance, please have your staff contact
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.
Sincerely,
Rick A. Dearborn,
Assistant Secretary.
[Enclosures]
Responses to Questions From Senator Murkowski
Question 1. I understood you to state at the November 21, 2003
hearing that the Department of Energy (DOE) does not believe that
Congress intended in the Energy Employees Occupational Illness
Compensation Program (EEOICPA) that the DOE: i) defend findings by DOE
Physician Panels when they are challenged by counsel for DOE
contractors or insurance companies; or ii) affirmatively seek to find a
willing payor for claims by Alaskans or citizens of other states with
nuclear facilities:
a) Is my understanding correct? Please provide a detailed narrative
explaining the legal, statutory interpretation or other bases for DOE's
answer to these questions.
Answer. In accordance with EEOICPA Part D, DOE ``may to the extent
permitted by law, direct the Department of Energy contractor who
employed the applicant not to contest such claim or such award.'' DOE
issues such directives to the extent permitted by law, and expects
contractors subject to such direction not to challenge Physician Panel
determinations.
However, with respect to contractors or insurance companies where
DOE has no legal authority to provide direction, DOE has no legal
ability to prevent the contractor or insurance company from challenging
Physician Panel findings. In those situations, DOE only can provide
assistance to the applicant by providing the applicants with physician
panel determinations on whether the claimed condition(s) were related
to work at a DOE facility. The ``assistance'' provided by DOE, in
accordance with the statute, is to assist the employee with obtaining
evidence of injury or illness, and to provide to the employee the
opinion of a Physicians Panel. The process for adjudicating a claim for
such an employee takes place in a state system, outside DOE control.
With respect to so-called ``willing payors,'' DOE does
affirmatively seek to find a willing payor for all claims. If, in
accordance with the statute, DOE can legally order a contractor not to
contest a claim, it does so. In other cases, state law may dictate that
workers' compensation claims be paid by a state fund or insurance
coverage. DOE has addressed this very complex willing payor issue on a
case by case basis because, in dealing with scores of DOE sites,
hundreds of contractors, differing state laws, and covering 50 years,
the answers vary widely. Because of the complexity and importance of
this issue, DOE has taken the initiative to review and identify which
contractors at the major DOE sites where most of the applications are
being filed are subject to a directive by DOE not to contest workers'
compensation claims. Results of this review should help clarify the
status of the contractual relationships between contract employees,
Department of Energy contractors, and the Department of Energy.
With respect to the Amchitka Project in Alaska, DOE has not found a
legal way to order former Amchitka subcontractors to not contest
workers' compensation claims. In those cases, those workers will have
to depend on the Alaska State workers' compensation process to identify
payors, such as commercial insurance companies. With respect to cases
involving the four major DOE contractors at Amchitka from 1965-1972,
the responsibility for satisfying workers' compensation claims by
employees of those contractors has contractually passed through the
years to a current DOE contractor. The study discussed above or the
first case presented in the Alaska workers' compensation system will
confirm these payor relationships.
Question 2. Please explain why DOE terminated the Worker Advocacy
Advisory Committee.
a) I understand DOE indicated it plans to reconstitute the
Committee. Is this correct? If not, why not? If yes, when does DOE plan
to have the reconstituted Committee operating?
Answer. The Federal Advisory Committee Act requires federal
agencies to set an expiration date for advisory committees, typically
two years from the date the charter is approved. The expiration date
for the Worker Advocacy Advisory Committee was January 2, 2003. The
committee's charter was to advise the Department on the establishment
of the Office of Worker Advocacy (OWA). By January 2003, the Office of
Worker Advocacy was well underway, and the Department determined that
the committee had fulfilled its charter. So, the committee's charter
was allowed to expire as scheduled, on January 2, 2003.
OWA recognizes the value of advisory committees, and we are in the
process of forming a new committee, the Workers' Compensation
Assistance Advisory Committee. DOE will work with this new Advisory
Committee to develop recommendations for moving forward. We believe the
new committee should be up and running in March 2004.
Question 3. On June 27, 2002, the Worker Advocacy Advisory
Committee sent a letter to DOE which, among other things noted that if,
``DOE is unwilling or unable to pay these claims, it is absolutely
essential for DOE to seek additional appropriations or support
alternative legislative solutions that will result in payment of these
claims without throwing them into the state workers' compensation
systems to be litigated.'' On August 9, 2002, DOE responded stating, in
part:
``The issue of mechanisms of payment of claims where there is no
current contractor with responsibility for paying a claim remains a
concern. We will continue to explore possible remedies with the WAAC,
the General Counsel and Congress to correct this inequity.''
a) Has DOE made any proposals to Congress to address and remedy the
willing payor problem since this letter was sent? If not, why not?
Please provide a detailed answer to this question including cites to
any legal authority on which DOE may rely to answer this question.
b) Does DOE plan to provide Congress with a comprehensive plan to
address and remedy the willing payor issue? If yes, when?
Answer. a) DOE recognizes Congress's concern that under the terms
of EEOICPA Part D, DOE is not permitted to direct certain contractors
to not contest workers' compensation claims of their employees, nor is
DOE allowed to overrule State workers compensation laws, nor is it
allowed to pay claims independently. DOE representatives have had
numerous discussions with Congressional staff members and stakeholder
groups about this issue. DOE is working through the complexity of the
legal and regulatory frameworks, and the various stakeholders' goals in
relation to the States' workers' compensation programs and the legal
relationships between the Department and its contractors.
b) DOE is developing a plan to eliminate the entire backlog of Part
D EEOICPA cases.
It should be noted that the lack of a ``willing payor,'' as this
term is normally understood in the EEOICPA Part D context, does not
mean the Part D applicant cannot receive workers' compensation. It
simply means DOE cannot direct the contractor employer not to contest
the claim. Applicants can still apply to the Department's Part D
program, still make application for workers' compensation through their
State agencies, and if they are entitled to benefits under State law,
they will receive those benefits.
Question 4. At the hearing, there was extended discussion of DOE's
claims processing record under Subpart D of EEOICPA. Please provide a
detailed explanation of DOE's commitment concerning claims processing.
Please include the following information in your answer:
a) the number of claims DOE will process per month beginning
December 2003 and extending through the time DOE believes it will
eliminate the claims backlog.
i) based on DOE's experience to date, please include in this
answer, on a monthly basis, the number of claims DOE expects it
will reject because the claimants are not eligible; and
ii) the number of claims DOE will process and provide to the
Physician Panels.
b) Please state the funding level DOE believes will be necessary to
achieve the claims processing level DOE plans to achieve in FY 2004 and
2005.
Answer. The Department is developing a plan to eliminate the entire
backlog of Part D EEOICPA cases currently on file with DOE.
With respect to cases, DOE is on track with its interim goal of
processing 100 Part D cases per week up to the Physician Panels. DOE
has entered into discussion with representatives from the medical
community regarding their views on changes required to increase output
by the Physician Panels (the backlog awaiting physician review is
growing at approximately 80 cases per week while the physicians are
processing 17 to 20 cases per week). The medical community has
indicated that process improvements alone will not achieve the output
required to eliminate the current and growing backlog, and must also
include additional funding, as will be requested in the FY04
reprogramming request and the FY05 Budget Request.
With respect to ineligible cases, DOE conducts an initial review of
every case it receives to determine eligibility under Part D of
EEOICPA. As a result, DOE has already identified most of the ineligible
applications currently filed. As shown on our web site (http://
www.eh.doe.gov/advocacy), as of January 2, 2004, DOE has received
21,861 Part D applications of which 1,110 have been found ineligible,
or 5 percent. Assuming that 5 percent of all new cases are found
ineligible and that applications continue to arrive at 130 per week,
approximately 6 to 7 applications per week might be found ineligible.
The funding levels necessary to implement the plan DOE is
developing to eliminate the entire backlog will be transmitted to
Congress promptly.
Question 5. Please provide an explanation of DOE's position on the
Grassley-Murkowski amendment. If DOE supports the amendment, please
provide a detailed narrative explanation of the reasons for DOE's
support including any legal citation supporting DOE's position.
a) If DOE opposes the amendment, please provide a detailed
narrative explanation of the reasons why, including any legal citation
supporting DOE's position.
Answer. Based on the latest internal process reviews of the EEOICPA
Part D process, DOE believes the Grassley-Murkowski amendment, in the
form that amendment was passed by the Senate several months ago, would
not improve the efficiency of processing Part D applications.
The amendment did not address the critical bottleneck at the
Physicians' Panels, or otherwise reform the requirements and processes
for Part D applications. Moreover, the amendment bifurcated between two
agencies the processing of application up to the Physician panels. This
would create new/uncharted coordination issues and eliminate clear
demarcations for responsibility.
Question 6. Did the DOE have any contact with any Member of
Congress or their staffs or the staff of any Congressional Committees
concerning the Grassley-Murkowski amendment? By contact, I mean
communications of any kind including oral, written, telephonic, e-mail
or other electronic form of communications. If yes, please provide the
following information:
a) individuals in DOE present or participating in each
communication
b) date of each communication
c) name and position of each individual in Congress with whom
a communication took place
d) name of individual(s) who initiated each communication
e) summary of the substance of each communication
f) if the communication was in written or electronic form, a
copy of the communication.
Answer. Certain DOE employees with responsibility for communicating
with Congress on DOE-related matters had contact with Members of
Congress or their staffs concerning the Grassley-Murkowski EEOICPA
amendment that the Senate passed as an amendment to H.R. 2754, the
Fiscal Year 2004 Energy and Water Development Appropriations bill.
Deputy Secretary McSlarrow had a telephone conversation with Senator
Grassley on this subject on or about October 27, 2003. Various
employees in DOE's Office of Congressional and Intergovernmental
Affairs communicated on this subject with Members of Congress or staff
from the offices of Sen. Murkowski, Sen. Nickles, Sen. Breaux, the
House Energy and Water Development Appropriations Subcommittee, and the
Senate Energy and Water Development Appropriations Subcommittee.
In general, during these communications DOE stated its position
that it did not support the Grassley-Murkowski amendment and expressed
its belief that the amendment would not solve the problems that exist
with the current EEOICPA Part D program. DOE does not have records
identifying the dates that these communications occurred. DOE believes
one or more of those communications may have been in written or
electronic form, but does not possess copies or records of such
communications.
Question 7. Does DOE have in its possession any document in
electronic or any other form concerning the Grassley-Murkowski
amendment? If yes, please provide a copy of the document. This question
includes documents generated by DOE or received by DOE from any entity
outside DOE.
Answer. DOE staff prepared a brief legislative analysis of the
Grassley-Murkowski amendment. The text of that document is as follows:
``The Grassley Amendment, in effect, transfers one part of DOE's
process to the DOL, namely the case assembly. DOE would retain the
responsibility to receive applications (which DOE does jointly with DOL
for both subparts B and D), to collect worker employment/exposure/
medical records from the field, to manage the physicians panel process,
and to order contractors where DOE legally can to not contest workers'
compensation claims.
``DOE does not support the amendment for the following reasons:
The Amendment appears to have no benefit to the subpart D
program applicant.
DOE has submitted a reprogramming request to accelerate
subpart D case production.''
DOE received a copy of OMB's letter to the Chairman of the
Committee on Appropriations of the U.S. House of Representatives, dated
October 16, 2003, in which the Administration stated its position on
the Grassley-Murkowski amendment. This letter states:
``The Administration would strongly object if the conference
report included a provision in the Senate bill that would
transfer certain duties under Subtitle D of the Energy
Employees Occupational Illness Compensation Act from the DOE to
the Department of Labor. The Subtitle D program should work to
help beneficiaries but the provision would create an unworkable
and overly complex administration structure that may detract
from the program's service delivery. Further, the provision to
transfer $7.5 million from this activity (a 47-percent
reduction) to the National Institute of Occupational Safety and
Health to conduct epidemiological research would undermine
DOE's efforts to expedite the backlog of unprocessed claims.''
Question 8. It is my understanding that DOE has hired Scientific
Engineering Associates (SEA) to design, implement and manage DOE's
claims processing under Subpart D of the EEOICPA. Is this correct?
a) If yes, how many SEA personnel will be involved in FY 2004 and
2005?
b) Please provide the total funds paid SEA for all their services
for DOE in managing the DOE EEOICPA Subpart D claims processing in FY
2001, 2002, and 2003. What is the total funding DOE plans to give SEA
for their work on Subpart D of EEOICPA in FY 2004 and 2005?
c) How many DOE/federal personnel were involved in the EEOICPA
Subpart D claims processing effort in FY 2001, 2002, and 2003? How many
DOE/federal personnel will be involved in FY 2004 and 2005?
Answer. DOE has entered into an Interagency Agreement with the
Department of the Navy to provide support for EEOICPA activities. SEA
is the Navy's contractor. The Interagency Agreement expires at the end
of calendar year 2004; as a result, DOE cannot project whether SEA will
continue to perform work for DOE beyond that date. Under current budget
plans, SEA employs approximately 110 personnel on this project, which
could double if the reprogramming request currently being prepared by
DOE is approved.
Prior year funding to the Navy for this work was as follows:
FY 2001--$0
FY 2002--$3.6 million
FY 2003--$8.1 million
Under the current budget and with the FY04 reprogramming request,
DOE expects to provide $11 million in funding for SEA in FY 2004.
DOE Federal staff involved in EEOICPA efforts started with one
Federal staff member in FY 2001. Currently, the DOE Office of Worker
Advocacy consists of 9 Federal staff. If the FY 2004 reprogramming
request that DOE is developing is approved and anticipated FY 2005
budgets are achieved, DOE expects to add 3 to 12 additional Federal
staff to oversee and effectively manage the program.
Question 9. As DOE noted during the hearing, there are presently no
willing payors in Alaska. How does DOE plan to address this issue and
ensure that Alaskans found eligible for compensation by Physician
Panels are provided with compensation? Please include all legal
citations, statutory interpretation and any other bases that support
DOE's response to this question.
a) Does DOE believe that the EEOICPA provides it with the authority
to compensate Alaskans who receive positive findings from Physician
Panels? Please include all legal citations, statutory interpretation
and any other bases that support DOE's response to this question.
i) If not, does DOE have any proposal about how to address
the willing payor issue?
Answer. The EEOICPA statute does not authorize DOE to pay claims
directly. However, the statue does state that DOE ``may to the extent
permitted by law, direct the Department of Energy contractor who
employed the applicant not to contest such claim or such award.''
With respect to contractors or insurance companies where DOE has no
legal authority to provide direction, DOE has no legal ability to
prevent the contractor or insurance company from challenging Physician
Panel findings. In those situations, DOE only can provide assistance to
the applicant by providing the applicants with physician panel
determinations on whether the claimed condition(s) were related to work
at a DOE facility. The ``assistance'' provided by DOE, in accordance
with the statute, is to assist the employee with obtaining evidence of
injury or illness, and to provide to the employee the opinion of a
Physicians Panel. The claim adjudication process takes place in a State
workers compensation system, outside DOE control.
With respect to so-called ``willing payors,'' DOE does
affirmatively seek to find a willing payor for all claims. If, in
accordance with the statute, DOE can legally order a contractor not to
contest a claim, it does so. In other cases, State law may dictate that
workers' compensation claims be paid by a State fund or insurance
coverage. DOE has addressed this very complex willing payor issue on a
case by case basis because, in dealing with scores of DOE sites,
hundreds of contractors, differing state laws, and covering 50 years,
the answers vary widely. Because of the complexity and importance of
this issue, DOE has taken the initiative to review the willing payor
issue at the major DOE sites where most of the applications are being
filed.
Question 10. Until May 2003, in response to questions from members
of Congress (Senator Bunning and Congressmen Turner and Whitfield), DOE
told Congress they did not need additional funds to implement Subpart D
of the EEOICPA. What was the basis for this position?
a) Please explain why DOE has changed its position and asked for
more funds to implement Subpart D.
b) When did this change in position occur?
Answer. Around the time that EEOICPA was passed in 2000, and, given
the complexity of the process mandated in the authorizing legislation
and the expected complexity of the physician panel reviews to be
conducted, the Department of Energy was planning on ten years to
completely review all applications. However, as the number of
applications has more than tripled original expectations, and as it has
become clear how great the applicants' immediate need for this data is
to effectively pursue State workers' compensation claims, the
Administration has implemented specific reforms such as budget
reprogramming and process improvements and is developing a
comprehensive three-year program to completely eliminate the backlog of
applications. The summer of 2003 reprogramming request provided needed
resources to match dramatic increases in applications relative to
initial expectations.
Question 11. During briefings for members of Congress and their
staffs Assistant Secretary Cook stated that DOE was working to ``reach
out and touch'' its contractors and other entities to assure that there
would be a willing payor for valid claims. Please provide a detailed
review of specific actions taken by DOE to assure claimants in Alaska
and other states that there will be willing payors for claimants who
are found eligible for compensation.
Answer. DOE does affirmatively seek to find a willing payor for all
claims. If, in accordance with the statute, DOE can legally order a
contractor not to contest a claim, it does so. In other cases, state
law may dictate that workers' compensation claims be paid by a state
fund or insurance coverage. DOE has addressed this very complex willing
payor issue on a case by case basis because, in dealing with scores of
DOE sites, hundreds of contractors, differing state laws, and covering
50 years, the answers vary widely. Because of the complexity and
importance of this issue, DOE has taken the initiative to review the
willing payor issue at the major DOE sites where most of the
applications are being filed.
Question 12. During the November 21 hearing on the EEOICPA, the DOE
indicated that once claims are processed promptly, Physician Panels may
be unable to review and act on the number of claims being processed in
a timely manner. Please provide a written narrative explaining DOE's
proposal to address this issue.
a) If DOE has no proposal to address this issue, please explain why
DOE does not believe it has authority to address this issue and provide
citations to all legal authority which support DOE's decision not to
address this issue.
Answer. In order to eliminate the current and growing backlog
awaiting Physician Panel review, these panels will need to increase
output significantly from the current 17-20 cases per week. Despite
significant performance improvements in the EEOICPA Part D process, the
significant gap between the number of applications received and the
productivity of the process cannot be addressed solely by additional
performance improvements, and will require additional funds, as is
being requested in the FY04 reprogramming request and the FY05 Budget
Request. Furthermore, the Department is currently developing a plan to
eliminate the backlog of claims.
Responses to Questions From Senator Schumer
Question 1. Why have no claims been paid to sick New York workers
in three years under the DOE-administered program?
Answer. Part D of the Energy Employees Occupational Illness
Compensation Program Act (EEOICPA) authorizes DOE to assist applicants
by collecting their record's and presenting their case file to a
Physician Panel which determines if the applicant's illness was due to
their work in a DOE facility. DOE provides this Physician Panel
determination to the applicant. The applicant may use the case file and
a positive Physician Panel determination to support an application for
State workers' compensation. In addition, the Department of Energy will
not contest, and will direct its contractors to the extent permitted by
law not to contest, such state workers compensation applications
derived from positive Physician Panel determinations. The Department is
currently developing a plan to eliminate the current and future
backlog, and the Administration is conducting a review of the willing
payor issue.
Question 2. Does DOE have a target date to complete claims for
EEOICPA Part D?
Answer. The Department is developing a plan to eliminate the entire
backlog of Part D EEOICPA applications. Currently, the backlog awaiting
physician review is growing at approximately 80 cases per week while
the physicians are processing 17 to 20 cases per week. This significant
gap between applications received and the productivity of the process
cannot be addressed simply through additional performance improvements
and will require additional funds, as is being requested in the FY04
reprogramming request and the FY05 Budget Request.
Question 3. Why has every single claim from New York processed by
DOE been denied a review by a physician's panel in three years?
Answer. No claims from New York have been denied a review. Rather,
the Part D applications filed with DOE by residents of New York still
are being developed for review. The Department is developing a plan to
eliminate the entire backlog of Part D EEOICPA applications, including
those from New York.
Question 4. Experts estimate that tens of thousands of people
worked as employees of DOE and contractor facilities over the last 50
years in New York. Yet, few people have applied. To date, DOE has
received only 181 applications. They need to establish a better channel
of communication with their former employees. This situation begs the
question, why does New York State have no resource centers used for
outreach to former employees when we have the most combined DOE and
contractor facilities (36) in the country?
Answer. Most New York facilities were not DOE facilities; instead,
they were privately owned and operated. Under EEOICPA, these facilities
are defined as Atomic Weapons Employers and Beryllium Vendors. Workers
at these facilities are covered only by Part B, which is administered
by the U.S. Department of Labor (DOL). DOL's website (http://
www.dol.gov/esa/reps/compliance/owcp/eeoicp/Statistics/ny.htlm)
indicates that there are over 2,400 claims filed for Part B.
For the DOE Part D program, 187 applications have been received
from applicants in New York.
DOE and DOL have performed extensive outreach in New York,
including four visits by Traveling Resource Centers and over 3,000
letters to DOE contractors and Atomic Weapons Employers retirees and
union members. In addition, DOE and DOL provide assistance via toll-
free numbers. While DOE has located its fixed resource centers in close
proximity to major DOE facilities, DOE's implementation of the EEOICPA
statue includes multiple communication channels for both workers
covered under EEOICPA Part D and anyone with questions regarding this
program.
Responses to Questions From Senator Campbell
Question 1. Could you please explain where the trouble spots are so
that our workers can get the help that they desperately need and
deserve?
Answer. Currently, the backlog awaiting physician review is growing
at approximately 80 cases per week while the physicians are processing
17 to 20 cases per week. DOE is currently investigating and
implementing process improvements to increase throughput to the
Physician Panel review process. DOE is also pursuing process
improvements in the Physician Panel determinations. Despite significant
performance improvements in the EEOICPA Part D process, the significant
gap between applications received and the productivity of the process
cannot be addressed solely by additional performance improvements and
will require additional funds, as is being requested in the FY04
reprogramming request and the FY05 Budget Request.
Question 2. I understand that DOE does not actually pay the
workers. Could you please explain for clarify who actually does the
paying?
Answer. DOE assists applicants by collecting their records and
presenting their case file to a Physician Panel which determines if the
applicant's illness arose from the worker's exposure to a toxic
substance while working in a DOE facility. DOE provides this Physician
Panel ruling to the applicant. The applicant may use the case file and
a Physician Panel ruling to support an application for State workers'
compensation. If the State determines that the employee should be
awarded workers compensation, the employee is paid that compensation as
directed by that State's laws.
Question 3. I have heard from constituents in my state that DOE's
subcontracting Third Party Administrator is not processing claims.
Could you explain whether this is true, and if it is, what do you
recommend so that we can correct this problem?
Answer. Rocky Flats is looking at ways to improve and streamline
its process for expediting claims through the State Worker Compensation
Program in Colorado through a specially designated Third Party
Administrator. They are in the initial stages of pulling together the
program. Contractual and legal issues need to be coordinated with
previous contractors before the program can be fully implemented.
However, all applicants, who have received positive Physician Panel
rulings and who have filed for Colorado State workers' compensation,
are in process with this Third Party Administrator.
Question 4. Some folks have expressed concern with the physician
panel's denial of claims, citing a denial rate of around 50% of those
that actually have been processed. Could you clarify how the physician
panels determine causation of illnesses?
Answer. The Physician Panels evaluate each case individually, based
upon the established criteria. The Department of Energy does not have
any expectations with respect to how many cases will receive positive
or negative determinations from the panels. One reason that many Part D
cases are denied is that we have a very welcoming policy, encouraging
as many potential applicants as possible to participate in the Part D
program. Given the complexities of the Part D program and the wide
variety of eligibility criteria for State Workers' Compensation, we
want to cast as wide a net as possible.
Question 5. Implementing this program is incredibly complex, with
several parties involved. Sorting this out is certainly a difficult
job, but the people who are sick don't have the luxury of waiting for
us to do so. In your opinion, what can Congress do to help the
beneficiaries who are due compensation?
Answer. The Department is developing a plan to eliminate the entire
backlog of Part D EEOICPA cases. However, the backlog awaiting
physician review is growing at approximately 80 cases per week while
the physicians are processing 17 to 20 cases per week. This significant
gap between applications received and the productivity of the process
cannot be addressed only by additional performance improvements and
will require additional funds, as is being requested in the FY04
reprogramming request and the FY05 Budget Request.
Appendix II
Additional Material Submitted for the Record
----------
Coalition for a Healthy Environment,
Knoxville, TN, March 28, 2000.
Senator Lamar Alexander,
Hart Senate Office Building, Washington, DC.
Dear Senator Alexander: Let me begin with thanking the Senator
raising the worker health problems to open senate committee process and
receiving written testimony in order to accurately address the extent
of the problems and seek more effective remedies such as removing DOE
from the Compensation Act (EEOCIPA).
I submit my testimony as a former Security Police Officer, Police
Supervisor and police Training Commander with knowledge of problems at
the K-25 site and DOE sites in general.
I apologize for the structure of this testimony and the grammatical
errors . I have lost a lot of my former abilities.
Kindest regards,
Harry Williams,
President.
Statement of Harry Lee Williams, President,
Coalition for a Healthy Environment
introduction
Mr. Harry Lee Williams worked as a Security Police Officer (SPO)
SPO Supervisor and Training Officer at the K-25 plant in Oak Ridge,
Tennessee, 1976 to 96. He was negligently exposed by DOE on its
inherently dangerous K-25 site to cyanide, hydrogen fluoride, nickel,
mercury, other heavy metals, radiation, criticality and other presently
unknown toxic hazards at the chemically and radiologically contaminated
K-25 Plant (K-25).
The plant process and research programs also involved many
classified compounds. The Department of Energy is guilty of negligence,
including failure to enforce and apply DOE orders or proper oversight
and management of its primary contractor, Lockheed Martin Energy
Systems (LMES or LOCKHEED), which resulted in physical, mental and
emotional damage by DOE and its agent and contractor, LOCKHEED. The
respondent did not hire into a active national defense facility nor did
he intend to. This was a job that on its face enriched uranium to 3 to
4% to power commercial reactors.
Respondent asked frequently/periodically if he was being exposed to
any substance that would cause him harm. His employer always insisted
the workplace was safe in fact safer than at home. We now know better!
I was told recently by former plant Shift Superintendents of the mid
night (undocumented) purging releasing large volumes of UF6 etc. to
atmosphere. The K-25 site has more ghosts and horrible stories than any
other gaseous diffusion plant.
We in Oak Ridge are also haunted by the operations and legacies of
Y-12 and ORNL (X-10). The government has a duty to expose and correct
these problems. GOD HELP OAK RIDGE. Respondent recently received
multiple diagnosis of diseases that have impacted my respiratory and
nurelogical functions resulting in a workers compensation settlement
against DOE and its contractor through the normal state system. I could
not get a timely review of my situation through Sub Part D of the
EEOIPA costing me 28,500.00 in attorneys fees.
1. Describe the Nature and Extent of Each Injury
Mr. Williams suffers from Depression; fatigue; suicidal ideation;
short-term memory loss; loss of concentration; muscle and joint
soreness throughout body; tingling and numbness of extremities; reduced
abilities to work with his hands; chronic heart disease (two heart
attacks, heart aneurysm, two heart surgeries (angioplasty and a stint)
palpitations; atreal fiberlation, diagnosed with a rare form of
bronchitis, abnormal blood test (LPT) for beryllium disease, National
Jewish Pulmanolgist stated that my lung lavage had abnormalities
consistent with Chronic Beryllium Disease (CBD), shortness of breath,
even with small exertions or sedentary activities; extreme and abnormal
sensitivity to heat, painful at room temperatures, comfortable for most
people; extreme sweating and hot flashes for no apparent reason,
diffuse and extreme sweating on small exertions; night sweats;
excretion of unexplained elevated levels of calcium from the urine;
significant weight gain and loss, particularly in the abdomen and
stomach; reduced desire for sex; eye and nose irritation; immune system
disorders, such as Diabetes; poor gas exchange in my lungs, my larynx
operates abnormally consistent with toxic chemical exposures; heavy
metal and toxic body burdens are confirmed by laboratory tests to
include extremely high levels of PCBs, Arsenic, Cyanide, and Mercury
etc..
1. DOE and its contractor negligently failed to relocate Harry Lee
Williams from the Oak Ridge K-25 Site from January 13, 1989 until
November 27, 1993. On March 8, 1996, through July 23, 1996, Respondent
became aware of toxic poisoning of his body and asked for removal from
the toxic K-25 workplace. On March 28, 1996, Dr. Joel Perkerson,
Primary Care Physician (PCP) removed Williams from this unhealthy
environment DOE's negligence has resulted in significant compromise to
Respondent's quality of life, ability to earn a living, mental health,
and physical health to the extent of being permanent and irreparable.
Mr. Williams is now suffering on long term disability.
2. DOE is guilty of negligence by failure to inform Respondent and
other workers of the toxins and contaminants present in his workplace
and of the dangers these substances posed to his health and well being.
3. DOE is guilty of negligence in allowing LMES to inadequately
acknowledge and investigate his complaints of an unsafe workplace.
Therefore DOE is guilty/responsible for various toxins entering his
body.
4. By April 1995, DOE's contractor was on notice that workers at
the K-25 plant were getting sick and wanted to be moved to other off
site/reservation facilities. DOE negligently failed to enforce its
contracts and federal law and failed to adequately monitor, audit,
guide, manage and train its contractor in responding to these serious
environmental health and safety concerns. As a result of this life-
threatening DOE negligence, Respondent and other workers were met by a
hostile employer with resistance, delays and rudeness from LOCKHEED,
which sought to suppress health concerns about the K-25 uranium
enrichment plant site. Respondent was not initially accepted by LMES as
a participator in the so called cyanide working group. Respondent was
further denied access to the National Institute of Safety and Health
Surveys by LMES. Respondent had to locate Mrs. Worthington through the
Internet on his own initiative outside the workplace.
5. Since March 28, 1996, Respondent has been on short term and then
on long term disability. He is unable to work at any occupation.
6. Respondent was diagnosed with Chemical encephalopathy and other
impairments from toxic exposures by Dr. Kaye H. Kilburn, M.D., from the
University of Southern California's Environmental Medicine Clinic. He
submitted results from two hair samples submitted to his PCP. These
hair analysis show heavy metal poisons and heavy metals, including
arsenic, chromium, lead, tin, calcium, magnesium, Antimony, Arsenic,
Beryllium, Bismuth, Cadmium, Mercury, Silver, Aluminum, Iron, Nickel,
Thorium, Uranium, and Germanium, Rubidium, Titanium, Zirconium,
magnesium, Cobalt, Vanadium, Molybdenum, Boron, Lithium, Phosphorous,
Selenium are present in Respondent's body, due to his occupational
exposures at DOE's negligently managed K-25 and Y-12 sites.
7. DOE's contractor resisted filing medical reports and discouraged
Respondent from raising concerns about his health. DOE's negligent
failure to enforce its contracts, orders and standards and other
federal and international legal obligations caused damages to
Respondent.
8. Respondent's future medical conditions from exposure to these
toxins and the synergistic effects from the combination of these toxins
within his body are not fully known at this time because of the long
latency periods associated with these conditions.
9. Respondent's injuries occurred at DOE's K-25 and Y-12 sites in
Oak Ridge, Tennessee. Respondent's employment at the K-25 Site
commenced on September 26, 1976 as a Security Policeman. Respondent was
physically located at the K-25 Site until November 17, 1993 when he was
transferred to the Y-12 Nuclear Weapons site which is another LMES
managed site and it too is heavily contaminated similar to K-25. Then
in October 1, 1994, Respondent was transferred back to the Central
Training Facility a property of the K-25 site. Also at the CTF
Respondent was exposed to the pollution from the SEG Incinerator, which
also burns radioactive and other hazardous waste, releasing toxins and
furans. Also the IT Corporation (Known to be a contaminated
facility),these industrial facilities are located about 1/8 to
1/4 mile upwind from Respondents Central Training Facility a K-25 work
site.
10. During his years at the polluted, contaminated K-25 site, he
occupied office space at Buildings K-1020, K-1008 (old filter test
facility), K-1652, K-303-8 (K-25 Building), Y-12 Security Police
Headquarters, temporary Trailer and a Trailer at the CTF K-1654 located
in the center of track. During his periods of employment at K-25 site
Respondent while in performance of his duties was frequently in the 75
major buildings and infrequently in the lesser buildings and burial
grounds.
11. Such work responsibilities often required him to work
throughout the site; however, he often conducted job surveillance for
other personnel to perform work at these facilities to report any known
hazards such as radiation and radiological contaminants and report to
management. DOE and its contractor LMES Union Carbide did not make
these hazards known for many years.
12. K-1420, recently listed as one of the top ten most dangerous
DOE facilities in the nation, served as a facility for decontamination
of equipment, processing of waste, and electroplating. K-1420 confined
at the time were highly contaminated throughout with contamination
often loose and un-contained. Its immediate premises were host to
several hundred drums of waste and was used to store this waste as well
as to package and reprocess the waste. Radiological contamination was
extensive even throughout the surrounding asphalt parking lot, the
change areas, and even in the lunchroom. The metal plating facility
once was located in the K-1420 Building was a source of cyanide and
other chemical toxins. As a Security Police Officer and Supervisor,
Respondent was not aware of the radiological condition of the facility,
and had no training or knowledge about the chemical hazards present.
DOE's negligent failure to enforce contracts, orders and standards led
to this lack of information. Mr. Williams was to be transferred to the
K-1420 Building after his first heart attack in 1989. This attempt
shows a chilled management structure that is grossly incompetent.
13. Respondent was concerned about airborne transmission of
hazardous chemicals and radioactivity to his body and believes to this
day that air monitoring at the entire K-25 plant for such was severely
inadequate. There was no continuous real time air monitoring, and he
knew of no air monitoring for toxins. For several years in the early to
late 80's the radiation monitors/alarms were disabled on the K-25 and
K-27 buildings.
14. Work assignments at K-1037 were primarily in areas where atomic
laser isotope separation (AVLIS) was taking place. This was an
experimental process being developed for the enrichment of uranium to
the isotope of U-235. Once again, Respondent is deeply concerned about
the air that he breathed while working in these areas and realized that
his knowledge of the past building application the classified Gaseous
Diffusion Barrier Plant (still a classified process as are some of the
metal and chemical association. Respondent now has reason to believe
that the legacy contamination of the classified compounds may still be
present and that the uranium was substantially altered, but he was not
instructed or informed with knowledge of the process to know about
chemical components or the inherent legacy contamination as well as the
AVLIS contributions to the buildings contaminations.
15. Other job duties were at K-1435, the Toxic Substances Control
Act Incinerator (TSCAI). He routinely conducted supervisory patrols
and/or surveillance and monitoring of Security Police personnel. These
surveillance included walking in the close vicinity of empty drums that
had stored waste. He was not informed by labels or by instruction of
the prior contents. In 1987/88 Respondent performing duties as the
shift Security Police Supervisor responded to several accidents and
spills at the Westinghouse incineration demonstration pilot plant in
the Portal Eight parking lot. At no time was Respondent advised of the
contamination or the health risk associated with this project.
16. On many occasions while working at the K-25 plant Respondent
responded to process releases relative to process system failures.
Respondent conducted both patrols and supervisory patrols of the major
process buildings, laboratories, machine shops, metal plating
facilities, etc.. Respondent was never properly informed as to the
extent of associated hazards risks; was not provided with proper safety
equipment.
17. Very often while working in the proximity of the waste tanks,
he would be aware of suspicious looking cylinders (later to be
identified as Manhattan Project era cylinders). Respondent asked Vicki
Tharp (plant spokes-person on health and safety issues) on more than
one occasions about the health hazards at the K-25 plant to which she
replied we were safer at the plant than at home. The yellow and
sometimes green and grainy appearing substance was not only found on
the Manhattan Project Cylinders but on various pipes, valves, all
throughout the K-25 and K-27 buildings. He was not told or did not know
then but realizes now that these compounds were in fact a product of
the of the process and were thought to be enriched uranium ranging from
a 5 to 90% depending where in the process one visited. Not only was
this a carcinogen, heavy metal, and a radiation hazard. Lockheed Martin
stated in 1992 that DOE and its contractor were practicing principles
of ALARA (As Low As Reasonably Achievable) for chemical exposures, DOE
and LOCKHEED failed to keep that promise with respect to the exposures
suffered by Respondent and other K-25 workers. Respondent had frequent
occasion for many years to patrol in very close proximity to UF6
storage cylinders in various parts of the plant including the Hydrogen
Fluoride tank Farm and various waste containers.
18. DOE and its contractor negligently failed to impart any
knowledge of the contents of these waste tanks and storage cylinders
relative to hazards and volatility involved even though a routine part
of his work was around them.
19. DOE and its contractor negligently failed to provide adequate
training and information for Respondent regarding chemical hazards,
risks, or protective measures, including his right to have his medical
records maintained and available at the facility responsible for
Respondent day to day medical care: also available if there was an
emergency response to provide treatment to Respondent due to his
several chronic illnesses. Respondent, was actually denied the good
medical practice of having his medical records maintained at the plant
providing care. For a period of months in 1995 and 1996 Respondent was
informed by both the nurses and doctors that his medical files were
missing or maybe misplaced. DOE and the contractor was negligent in
there failure to respond to Respondent environmental, health and safety
concerns, including imminent threats to human life such as he reported
to LOCKHEED on several occasions. To provide and example Respondent was
required participate in a fire training exercise at the fire training
facility located in the main plant containment area on the north side
of K-25. This facility burnt waste motor oil and transformer lube oil
(contaminated with PCB's). The thick black smoke from this facility
would be so thick at times it interfered with viability in a large area
of the plant.
20. Limited chemical training covered Material Safety Data sheets
(MSDS). K-25 plant pollutants continued to be concealed by frustrating
employee efforts to get MSDS for the chemicals used in connection with
the K-25 Insituform sewer line lining project.
21. On May 30, 1996, DOE's contractor and subcontractor violated a
1996 ``stop work order'' by K-25 plant manager Harold Conner on the
sewer lining process because of concerns regarding diisocyanate. Mrs.
Sherry Farver, a friend and co-worker /peer of Respondent raised
concerns with DOE and LOCKHEED about the violation of the stop work
order but never received a response from either DOE or LOCKHEED.
LOCKHEED managers lied about the violation of the stop-work order. The
Material Safety Data Sheet for the diisocyanate compound showed that
the compound had a Threshold Limit Value (TLV) of 5 parts per billion,
a highly toxic chemical, and that it was not to be used around hot
water, to prevent ``vigorous'' and ``violent'' reactions. DOE's
subcontractor used this diisocyanate compound in exactly this manner--
in conjunction with hot water for curing--unreasonably risking
Respondent's life and the lives of other employees due to DOE's failure
to enforce OSHA, EPA and other standards that are mandatory. ``Let's
don't put anything in writing,'' Harold Conner, the LOCKHEED K-25 plant
manager told a group of workers on May 22, 1996 in a meeting about the
stop-work order. DOE's negligent management allowed this to happen.
22. On occasion, Respondent was required to respond to TSCA during
the trail burns and original start up process where an accident or
release had occurred and/or a failure of the TSCA waste processing
systems. He was never told by DOE or its contractor of a mechanism
called the Thermal Release Vent--which opens and directly vents TSCA
emissions to the atmosphere when the system malfunctions. He now
wonders what combination of contaminants that he breathed as a result
of this and subsequent releases.
23. TSCA has had thirteen known accidental releases for durations
of two or more hours each and at least two very serious accident/
incident at the incinerator pilot project located in the Portal Eight
parking lot. DOE negligently failed to protect workers from the
synergistic effects of hazardous waste incineration as well as the
increased hazards associated with products of incomplete combustion
from hazardous waste incineration such as cyanide, dioxin, and furans.
Hazardous materials and waste were mislabled and disposed in violation
of EPA--TDEC 24. The later incidental K-25 Site toxic exposures did not
consist of field worked. Respondent worked as an instructor, and
training officer.
25. When he first realized that he was being poisoned, Respondent
assumed the exposures were from his past assignments in the field. As
he learned of more workers who experienced the same poisoning, he
realizes that many of these workers had never worked in waste
processing areas of the site. Some of the workers were cafeteria
workers and solely administrative office workers. Respondent and the
others lived in different surrounding counties and performed a number
of diversified jobs at the site, but it was quite apparent their one
common link was the Oak Ridge K-25 or the Y-12 Site.
26. On September 27, 1976, Respondent began his career employment
at Oak Ridge K-25 Site.
27. In 1989, preceding and specifically following his first heart
attack his depression and fatigue became extreme. In 1993, Respondent
began treatment with antidepressants.
28. During 1989-1995, Respondent's physical and mental health
declined. Fatigue and malaise were relentless and increasing. Angina
pain became a frequent occurrence. Incontinence (both of the bowel and
urinary tract) accidents occurred frequently. Other symptoms developed,
including severe short-term memory loss, tingling and numbness of his
extremities, muscle twitches and sleep apnea. heat intolerance,
sweating, muscle/joint pain, eye and nose irritation develop and
constant moderate level ringing in my ears, dizziness, extremity
condonation and control, and a significant loss of old factory senses.
29. On March 8, 1996, Respondent was examined by his PCP (general
practitioner) and asked for a urine thiocyanate test.
30. On March 8, 1996, Respondent learned that the urine thiocyanate
test was 29 micrograms/milliliter with normal range for a non-smoker
being only 1-4 micrograms/milliliter.
31. On or about March 16, 1996, Respondent met with his manager
Michael Knazovich to discuss his concerns and to request an
investigation of his work area as two employees who were tested had
high thiocyanate levels. LOCKHEED refused Respondent's request to take
biological samples from other workers in the CTF and specifically his
peers in his trailer. The CTF is located approximately 1/4 mile down
wind of the SEG incinerator. On the stated basis that Lockheed believed
there was no concern to workers.
32. On or before April 26, 1981 To March 1983, Respondent was
exposed to what now and then is characterized as an unsafe laser, that
Respondent believes has damaged his eyes contributing to his poor
vision.
33. Respondent did phone/file a medical incident report on April
25, 1996: on this date Respondent was sick at home. Acting upon
instructions from Dr. Edelman of the Vanderbilt Medical Center, he
stated that Respondent should file with Workman's Comp (Willis Caroon).
To meet the requirements for filing Workman's Comp. Respondent had to
file a medical incident report. Upon information and belief, other
workers were deprived of the ability to file medical incident reports
in the time period since K-25 was closed. This negligently deprived DOE
of operations information that would have allowed it to devote
sufficient resources to environmental, safety and health information at
the K-25 plant.
34. Respondent was under his PCP's on going care on March 28, 1996,
with Visits at least every six weeks if not more often. Respondent PCP
stated that he didn't know how to treat the various toxic issues.
Respondent had raised concerns about. This lead to my visits to Dr.
Kilburn, USC and a request to see Dr. James Bond a Neuro-opthamologist
that my Insurance would not approve.
35. During January 1996, ill workers petitioned NIOSH for a health
hazard evaluation of the K-25 site.
36. On March 28, 1996, Respondent was told by his PCP that his
health required he be placed on short term disability. Respondent had
to remove himself from the unhealthy work environment that exist at K-
25 and Y-12 plants and for that matter the other ORO plant sites.
37. On February 8, 1996, NIOSH personnel arrived in Oak Ridge.
38. On or about February 9, 1996, Respondent was not scheduled by
Lockheed Martin (as requested) to meet with NIOSH Nurse Karen
Worthington. Respondent had to locate Worthington via Internet and talk
to her by phone; Worthington requested medical records and signed
release forms Respondent complied. There has been no further contact
with NIOSH.
39. On April 4, 1996, Respondent was seen by Dr. Phillip Edelmen by
directive of his PCP. Edelman report was inconclusive by design.
Williams not knowing that Edelman was the contract DOC for LMES was
subjected to the influence of LMES management involvement in his
personal medical care.
40. Respondent worked very competently and diligently, earning
several favorable written recommendations and the respect of managers
and co-workers alike. DOE owed him a duty of care to protect him from
harm from ultra-hazardous operations, including ``legacy
contamination'' from such operations, which contamination was known to
DOE.
41. This is a case of res ipsa locutor negligence, by keeping
Respondent in a harmful work environment first at K-25 for a decade or
more and then at Y-12 for 11 months and some days and then Back to K-25
for another year or more. Never once providing a safe work place; after
he was found to have poisons in his body.
46. Respondent' Primary Care Physician Dr. Joel Perkerson wrote in
his 1997 patient notes that Respondent medical problems could be
attributed to possible environmental exposures.
47. DOE's negligence has again resulted in a worker's unusual
illnesses and chemical sensitivities, due to DOE's indifference to the
value of human life of Oak Ridge contractor employees. This can be
confirmed by the March 1998 meeting at Pollard Auditorium with a team
of doctors and contract Health Physics Technician. Where what appears
to be at least several standard deviations above normal of beryllium in
the topsoil in and around the K-25 site. Respondent also learned that
the K-25 Powerhouse area was also contaminated with Beryllium legacy
waste. As a security police training officer Williams participated in
several tactical weapons exercises in and around the area and
buildings. This powerhouse area was known to be highly contaminated by
the DOE and its prime contractor Union Carbide/Lockheed Martin Energy
Systems.
48. Respondent seeks not only compensation, but thorough reforms to
halt Oak Ridge Operations' negligent conduct of its environmental,
health, safety and nuclear criticality functions, in violation of
federal law, DOE Orders and contractual responsibilities.
49. DOE negligently failed to enforce its own safety and whistle
blower protection rules and contractual provisions, resulting in
personal injury to Respondent due to the presence of dangerous
chemicals and radiation. DOE's negligence abused the trust of K-25
workers, to whom DOE owed a duty of care, protection and loyalty.
50. The radiation in K-25 was negligently termed by DOE as
``historical'' or ``legacy'' radiation (due to the time when it was
deposited), as if that obviated the requirement to decontaminate and
decommission a uranium enrichment plant with thousands of missing pipe
segments, some removed due to criticallity or near-criticallity.
51. DOE now admits that K-25 presented significant life, safety and
health risks to workers. The radiation and chemical exposure was
ongoing for K-25 workers. DOE negligently failed to ever inform any
workers that K-25 was a Superfund Site, or that workers were being
exposed to chemicals and radiation on a daily basis.
52. DOE's negligently misleading ``historical'' or ``legacy''
radiation designation, DOE's yellow radiation ropes and DOE's vague
assurances did not fulfill DOE's legal and moral duty to clean up the
radiation and toxins, with K-25 shut down in 1985. These acts and facts
have been documented in the Nashville Tennessean in 1997.
53. DOE's duty to follow its own safety, health, environmental and
radiological standards at K-25 after the end of the Cold War is not a
``discretionary duty'' under the Federal Tort Claims Act (FTCA). DOE's
breach of its duty is the proximate cause of Respondent's damages. DOE
put K-25 workers in harm's way with a risk of nuclear criticality and
chemical releases ever-present, radiation alarms not working, and
strange smells, asbestos, cyanide, and other hazards permeating the
buildings. The confinement of human beings in this K-25 site was
tantamount to a warped, negligent ``experiment'' with some 3500
peoples' lives, without moral or legal justification or excuse, in
violation of the Geneva Convention and the Nuremberg Principles.
54. When Respondent was moved in may of 1992 to K-303-8 (now closed
and barricaded) DOE had been negligent in failing to perform its duties
to protect worker and public health from the incompetence of DOE's
contractor, Lockheed Martin, which had previously placed other workers
in harms' way in unsuitable office space in unsafe locations, a fact
that was known to DOE.
55. DOE/AEC signed in 1971 a memorandum of understanding (MOU) with
the Department of Labor Occupational Safety and Health Administration,
pledging to obey all OSHA standards. DOE Orders require that safety be
protected. Such agreement and orders were negligently not complied
with, to the detriment of Respondent and K-25 workers.
56. DOE failed to supervise its contractor properly in performing
annual, weekly and other required, necessary and proper maintenance
chores at the uranium enrichment plant and the nearby incinerators, as
well as storage of radioactive and toxic materials on the K-25 site,
some in leaking containers.
57. DOE failed to give directions required by DOE Orders to clean
up the K-25 plant. No proper deactivation, decontamination or
decommissioning of the K-25 site was not started until the 1999 several
years after respondent went on disability, with uranium and other
tonics left in the pipes of the plant, with thousands of missing
segments of process pipes and visible uranium dust and other
contaminants strewn about the K-25 plant.
58. Respondent now has a number of health conditions that are
chronic and relate to chemical sensitivity (diagnosed with chemical
encefolaphy), which health conditions were created by the unsafe
conditions in DOE's dangerous workplace, the K-25 site. Those health
conditions interfere with Respondent's ability to enjoy life with his
family and a loss of consortium with his wife and lives as elderly
person before his time.
59. After the Cold War ended, DOE's negligent placement of workers
in such hazardous areas as the K-25 plant--and DOE's failure to see
that training and safety information was given to workers in such
hazardous areas--was beyond the pale of any ``discretionary function.''
There was no justification or excuse as asserted in the Cold War for
failing to inform workers about the risks of K-25, which was closed in
1985 and negligently not decontaminated or decommissioned during the
ensuing twelve (14) years.
60. Respondent expressed to the management of DOE and Lockheed
Martin Energy Systems his serious concerns regarding his being moved to
the K-303-8 (a very hazardous plant area) to an office at the K-25
plant. LOCKHEED took approximately 18 months to move Respondent from K-
303-8, furthering his chemical, radiological, and asbestos exposures.
DOE's failure to enforce its contractual and DOE Order provisions
regarding workplace safety put Respondent in harm's way and worsened
his illnesses. DOE's failure to act on Respondent's employee concern
kept him in harm's way.
61. For years, Respondent's concerns were largely ignored.
negligent acts by department of energy
62. Respondent DOE demonstrated negligence and unfitness to protect
worker safety, which failure exacerbated the health effects upon
Respondent and other K-25 workers, needlessly exposed to a uranium
enrichment plant that was negligently not decontaminated and
decommissioned, sitting in dangerous condition twelve years after its
abandonment, in close proximity to an improperly managed incinerator
burning both radioactive and toxic wastes in a manner that assured a
``blowback'' of toxins onto the K-25 plant site. DOE negligently:
a. Failed to perform or supervise or provide proper deactivation,
decontamination and decommissioning;
b. Failed to perform or supervise or provide proper oversight;
c. Failed to perform or supervise or provide occurrence reporting;
d. Failed to perform or supervise or provide maintenance;
e. Failed to perform or supervise or provide proper biological
monitoring of employees;
f. Failed to perform or supervise or provide proper medical care
for employees;
g. Failed to perform or supervise proper workplace radiological,
chemical or heavy metal monitoring;
h. Failed to perform or supervise or provide medical services,
negligently failing to adhere to the provisions of DOE Orders;
i. Failed to perform or supervise or provide proper industrial
hygiene or health physics protection;
j. Failed to take care that DOE's contractual requirements and
orders were executed by its contractor;
k. Failed to investigate adequately in response to Respondent's
safety complaints to DOE;
l. Failed to provide a full and fair investigation and report in
response to Respondent's employee concerns and other worker safety and
health concerns;
m. Chilled worker concerns about health threats with DOE's
``scorched earth'' and negligent policy of unjustly and
indiscriminately fighting workers' concerns about workplace hazards, as
demonstrated by former AEC Order 0521, as was documented by Clifford T.
Honicker without rebuttal by DOE--in the New York Times Magazine. DOE
managers and minions negligently continued to conceal information on
DOE plant hazards even after the end of the Cold War in 1991. This
policy of fighting the just claims of contractor workers with federal
tax dollars involves a scheme or plan whereby DOE and LOCKHEED contract
and combine to spend millions of tax payor dollars, in order to have a
chilling effect on workers who reveal safety, health and environmental
problems involving DOE and LOCKHEED negligence. This negligent policy
insulates negligent managers from criticisms, negligently furthering
the environment in which DOE's negligence persists.
n. Massively resisted any change that would end its negligence in
an inherently dangerous facility, while in deep denial that any
problems exist at the facility, to the extent that DOE Oak Ridge
Operations Manager Jim Hall refused to meet with three reporters from
the Nashville Tennessean newspaper regarding environmental, safety and
health problems at the K-25, X-10 and Y-12 plants in Oak Ridge. As
Leonard Schroeter writes:
Much like the tobacco industry, the nuclear industry, which
was wholly indemnified by the United States government, has a
policy of full-scale war against any person with the temerity
to suggest that radiation might be bad for their health. Thus,
despite the new O'Leary policy of disclosing what a half
century of nuclear secrecy, questions still remained as to
whether the United States government continued to be committed
to no accountability, no responsibility, and no compensation
for the powerless victims.*
---------------------------------------------------------------------------
* Leonard W. Schroeter, ``Human Experimentation, The Hanford
Nuclear Site and Judgment at Nuremberg,'' Gonzaga Law Review 147, 161.
o. Committed other negligent acts of commission and omission, acts
presently concealed by negligent use of classification, including acts
related to the use of heavy metals including but not limited to
mercury, arsenic, copper, chromium, molybdenum, lithium, lead, tin,
strontium, Nickel powder concoction and magnesium, etc. at the K-25
site.
p. Continues to subject Respondent and other workers, residents and
citizens to negligence, including the ``re-industrialization'' taking
place without proper protections for workers, with DOE employee
concerns personnel telling LOCKHEED workers expressing concerns about
K-25 to stop calling their offices, e.g., about new personnel working
for new employers who have located at K-25 as part of ``re-
industrialization,'' without adequate training, information or
radiation and chemical protection, including workers observed eating
and smoking in radiological areas in contaminated buildings;
q. Continues to ignore concerns about retaliation, including the
incredible, request by PCP to remove Respondent from an unhealthy work
environment. Respondent raised concerns about his work place from
October 1993 to April 28, 1994. Respondent was moved out of harms way
until Colonel Willis Leon Clement (Retired) was presented with the
April 28, letter from Respondent' PCP. Colonel Clements failed to
Forward this letter to medical. Respondent had Dr. Zannoli put this
letter into his medical file. Respondent was repeatedly retaliated for
protected activity by LTC Lorry Ruth (Retired) a direct report to
Colonel Clements. This harassment was detrimental to respondents cardio
pulmonary health.
66. This hostile K-25 working environment was utterly intolerant
toward worker concerns about K-25. DOE officials were ``frozen in the
ice of their own indifference.'' As a result of DOE's negligence in
allowing it to persist, Respondent and numerous K-25 workers already in
harm's way were kept in unhealthy work environments longer.
relief requested
67. Respondent requests that health care be provided and DOE pay
loss wages and compensatory damages.
68. Respondent further requests that DOE provide for lifetime
medical monitoring and treatment by independent physicians of the his
choosing, and for all employees so exposed.
69. Respondent requests that DOE agree to: B. Immediate and
unconditional declassification, pursuant to the Freedom of Information
Act, the Privacy Act, the community ``right to know'' laws, the
publicly announced declassification orders of Secretary of Energy Hazel
O'Leary, and the recommendations of the Report of the President's
Commission on Protecting and Reducing Government Secrecy, of all
documents on toxic hazards on the Oak Ridge reservation, including the
use and abuse of chemicals and compounds, including but not limited to
cyanide, mercury, arsenic, copper, chromium, molybdenum, lithium, lead,
tin, strontium, magnesium and nickel. at K-25, other K-25 hazards and
the nearly 100 still-classified compounds to which workers were exposed
in Oak Ridge, and the contents of the Records Holding Task Group (RHTG)
in Oak Ridge, Tennessee. Rather than forcing plaintiffs to seek this
necessary and proper declassification ad hoc, piecemeal, one case at a
time, and risk missing relevant information, Respondent hereby makes
this urgent, generic request for all information on such hazards should
be declassified at last. The Cold War ended six years ago. Inasmuch as
a Q-cleared attorney is ready to conduct the review. the
declassification should not be delayed by one more day DOE should not
be allowed to use the 911 incident and the Patriots Act as an excuse to
hide proof of the dastardly deeds and hazards associated with legacy
operations.
conclusion
70. We are ready, willing and able to assist you and the committee
good offices in its work. Please call upon us when we can help you
understand what DOE ORO did to Respondent and other workers similarly
situated.
71. DOE paid for and sponsored a contract team of doctors to
evaluate the first 53 employees claiming illnesses connected to the
work place. This evaluation was supposed to last 6 months has taken 6
years (1997 to 2003 resulting in many of these employees diagnosed with
work place related illnesses. This DOE sponsored evaluation is proof
enough to support workers complaints of exposures and health concerns.
72. We (CHE) were the primary group that brought forth the very
idea of what came to be known as the OCCUPY and we have been very
active in trying to reform EEOCIPA to where it treats all disabling
illnesses attributed to the DOE/Contractor work place equally, doing
away with sub part D and move its exposure and illnesses to Sub Part B
of the EEOCIPA.
______
Anchorage, AK, November 10, 2003.
Hon. Lisa Murkowski,
U.S. Senator for Alaska, Hart Building, Washington, DC.
Re: EEOICP Hearing--11/14/03
Dear Senator Murkowski: I respectfully request my statement and
attachments are entered into the above Hearing Record.
Statement of Beverly Aleck, Widow, Nick Aleck (Deceased) Amchitka,
Alaska, Cannikin-Miner
background
1. My husband, Nick Aleck, was one of the miners of the 6,000-foot
underground cavity on the Cannikin atomic test from 1970 to 1972 at
Amchitka, AK. We were both ignorant about radiation exposure. He died
five years later from leukemia (CML) of the blast crisis, on Christmas
Day 1975.
2. With numerous medical expenses and Nick Aleck's death, union
attorney's suspected radiation connected with the Atomic Tests caused
Nick's leukemia. On April 1976, we filed State Worker's Comp and
Federal District Court claims, and were refused documents requested;
they were labeled as `classified' or `secret', wherein my claim's were
dismissed in 1980-82 without prejudice.
3. Following passage of the 1988 Atomic Veterans Act, and the 1990
RECA act by Congress, Energy Secretary Hazel O'Leary on December 7,
1993 announced the beginning of the end of the Department of Energy's
policies of secrecy and repression concerning the United States'
nuclear weapons testing program, wherein I immediately renewed my
efforts to obtain information concerning the radiation exposures that
led to Nick's death. I obtained an important report, a copy of the
``Amchitka Island Long Term Hydrological Monitoring Program'' (marked
For Internal Use Only), on February 25, 1994, through the Alaska
Department of Environmental Conservation (ADEC).
4. On October 31, 1996, Alaska's Governor Knowles ordered an
investigation of the effect of the Atomic tests on its workers, the
environment and the Aleute residents in the Aleutian chain, and
demanded test site records. An oversite advisory committee was formed--
ATAG. I was designated by the Alaska State District Council of Laborers
to represent Alaska's Amchitka test site workers.
5. DOE radionuclide documents and work records made available by
1997-1998, were used by Dr. Rosalie Bertell, to prepare ``Estimating
the Exposure to Ionizing Radiation Incurred by the Workers at the
Amchitka, Alaska Test Site''. Thereafter, DOE and the State of Alaska
ADEC entered into an agreement (AIP) to fund the 1999 Amchitka
Workforce Medical Surveillance Program.
6. In 1999, the Alaska State Legislature passed a unanimous
resolution, SJR-21, demanding the United States Department of Energy
resolve all Alaskan's claims relating to Amchitka's Atomic Tests, and
requested our congressional delegation to take appropriate action. In
2000, U.S. Senator Frank Murkowski obtained a SEC for Amchitka workers
in passage of the EEOICP Act by Congress.
7. The Medical Surveillance Program began in 1999. In July 2001,
the Alaska Resource Center was opened, which has been effective in
assisting claimants establish their work histories, and file for DOL
and RECA lump sum payments, and file DOE-OWA and State WC Claims (now
deadlocked). I personally helped many claimants file DOL and DOE-OWA
State WC claims under the Act, including FECA claims by government
contractor employees. See Newspaper clipping attached.*
---------------------------------------------------------------------------
* All attachments has been retained in committee files.
---------------------------------------------------------------------------
8. Thereafter, I was assigned to special research work by Dr. Knut
Ringen. Backed with a large accumulative background of research of DOE
and other documents, including locating an additional 371 boxes of
records; Contacts with hundreds of former Amchitka workers; Personal
knowledge of the early years workers, their survivors; and the Early
years Contractors, and Subcontractors. I have just recently retired
from my work with the Alaska State District Council of Laborers.
summary--doe-owa--procedure: state workers' compensation claim
Recently, I experienced my own survivor's DOE Subtitle D ``test''
procedure as follows:
Oct. 31, 2002. Request for Review by Physician Panel was filed.
Extensive work history of the Cannikin shaft/cavity including 38 photos
of underground activity was provided to the panel.
April 8, 2003. A Physician Panel Positive Determination was issued.
April 28, 2003. Fax: To Bechtel, ``First Report of Injury'';
Physician Panel Positive Determination; DOE Transmittal--Accepted Panel
Determination--Instructed Bechtel (accept Primary Liability).
May 5, 2003. Fax: Bechtel--Requested Medical Records, Death
Certificate and Marriage Certificate.
May 27, 2003.``First Report of Injury'' filled out by employer
``Bechtel'' (Holmes & Narver's successor), validated by Darryl
Campbell, WC specialist, and filed with Alaska Workers' Compensation
Div.
June 20, 2003. WC Div faxed Questions: Employer/Bechtel (Holmes &
Narver); verify Ins./Address.
July 8, 2003. Darryl Campbell, Bechtel-Nevada, confirmed Bechtel's
Alaska Div. WC filing, and Holmes & Narver Ins. Phone and E-mails
outlined the process. ``He would not be the adjuster. The Ins. Co. sets
up the claim and pays all appropriate benefits. His main responsibility
is administrative. Receives notices from DOE, sends paperwork/notify
the insurance Co's, and reimburses the carriers''.
July 10, 2003. Notice: AK State AWCD Claim number issued, Holmes &
Narver--Insurer/Adjuster.
July 11-18, 2003. E-Mails Bechtel: ``Notice of Injury'' was sent to
wrong insurer, will resend to Hartford Ins. This is a ``trial by fire''
to confirm who the insurer is and contact to insure they know of the
DOE program. This is the first case from prior contractors of Bechtel,
and is our ``test'' case to learn as we go along. Talked with Roberta
Highstone at ``Harbor Adjustment Services''. They are in process of
setting up the claim, you should be hearing from the Adjuster.
STATE WC--INSURERS--LEGAL ACTIONS:--(also served Bechtel)
July 18, 2003. Legal Appearance--Robert L. Griffin: Petition to
join claim with Carlsson case.
July 21, 2003. Objection to Petition, and (4) Questions, filed by
Beverly Aleck, claimant.
Aug. 18, 2003. R.L. Griffin: Filed a Petition to ``Withdraw
Petition'' to join Carlsson case.
Although Bechtel-Nevada (DOE' current Contractor) made an effort to
carry forth DOE-OWA's intent to reimburse this Alaska WC claim, under
the current limitations of Subtitle ``D'' of the Act, the claim is now
deadlocked, unable to move forward due to vicious legal action by the
insurers attorneys, who are not being informed of potential
reimbursement because there is ``NO Willing Payer'' language provision
in the Act, to permit reimbursement to insurers, or direct payment of
DOE physician panel approved claims, enabled by the signed MOU between
the State of Alaska and Department of Energy. See: Alaska State/DOE MOU
attached.
Subtitle--D Climants Are Now Deadlocked
I am deeply concerned that Subtitle D Claimants are now deadlocked
from moving forward with their Alaska State WC claims. Former AEC (DOE)
Amchitka contractors and numerous prior insurers are no longer in
business. In order for DOE-OWA WC claims to move forward, and enable
the Primary Liable Contractor ``Role'' attempted by DOE Bechtel-Nevada
(or any other DOE Primary Liable Contractor/Successor or Current
Agency), a Third-Party Willing Payer amendment to the EEOICPA 2000 Act
Subtitle D, should be implemented by Congress immediately. See:
Suggested Amendment--Subtitle D, Sec. 3661.
There are only a few claims (approximately 49) that have a DOE-OWA
positive physician panel determination. To only appropriate funds to
government agencies to process these claims @ $20,000 or more per
claim, while ignoring this small number of claimants entitled to
compensation, is inexcusable. It is important these claims can be
compensated promptly, timely, because the statues of limitations are
running under current State WC law, while claimants are dying. Under
Alaska State Workers Compensation law, survivors have to file for Death
Benefits within one year, from the date of the DOE-OWA Physicians Panel
positive determination.
By contrast, injured Amchitka workers who were AEC (DOE) Government
Contractor employees are able to file WC claims under FECA, and be
compensated without any delay. It is unconscionable of Congress to
ignore the blue color construction workers who sacrificed their health
and lives for all American's to be secure today, while 30 years (or
more) later their claims are deadlocked in this existing process.
Congress cannot sanction Federal employees FECA compensation over
civilian workers, creating two classes of U.S. citizens at the same DOE
work site. Alternatively, civilian workers could be compensated as a
designated FECA employee, by Congress.
By further contrast, the victims of 9-11 have not had to wait 30
years for just compensation. Mr. Fineberg's chart sets $250,000 the
minimum for pain and suffering, plus lost income estimated @ $175,000-
$4,000,000 per claimant--authorized by Congress to pay directly from
the U.S. Treasury. There are nearly 3,000 9-11 claimants, and only 49
DOE claimants with physician panel approvals. Congress has a moral
responsibility to immediately pay these approved claims, under a law
that was passed three years ago.
Amchitka claimants, and all DOE Test Site claimants will greatly
appreciate your effort to amend Subtitle D, enabling prompt, just
compensation for all claimants, and bring belated final closure to this
personal tragedy.
______
Maryville, TN.
Senator Lamar Alexander,
Hart Senate Office Building, Washington, DC.
Dear Senator Alexander: In 1978, I began my employment as an
administrative assistant at the K-25 Oak Ridge Gaseous Diffusion Plant
in Oak Ridge, Tennessee. When I began working at the K-25 Plant site I
was 25 years of age and in excellent health. It was not long after I
started working at this DOE nuclear site that my overall health began
to decline and I began experiencing a number of serious health issues.
For the past twenty years of my life I have gone from physician to
physician, had numerous surgeries to remove glands, cysts, fibroid
tumors, and most recently a large tumor and approximately one-fifth of
my liver removed. I was in surgery a total of three and a half hours
and shortly after the surgery was informed that my right lung had
collapsed and that I had pneumonia in both of my lungs. On the second
day after my surgery I told my husband that I did not believe that I
was going to survive from this and ever be able to leave Duke Hospital.
It is with many prayers from friends, co-workers, and my family that I
managed to make it through this most painful and difficult time.
A week ago, I received a diagnosis upgrading my Beryllium
Sensitivity to Chronic Beryllium Disease. Once I began working at the
K-25 Plant I started having asthma type symptoms along with chronic
pneumonia and pleurisy which was later diagnosed by a K-25 medical
screening process as being Beryllium Sensitivity. Chronic beryllium
disease, or CBD, is an inflammation in the lungs that can occur when a
person is exposed to respirable beryllium fumes, dusts or powder, and
subsequently demonstrates an allergic reaction to beryllium. CBD is an
occupational disease that may occur in the manufacture of metallic
beryllium, beryllium oxide ceramic, or alloys containing beryllium.
This disease can lead to clinical symptoms that include scarring and
damage of lung tissue, causing shortness of breath, wheezing and/or
coughing. Extreme cases of CBD can cause disability or death.
For years I have been searching for answers to the many illnesses I
have been diagnosed with and found somewhat of a relief in July 1999,
when the Clinton/Gore administration made a historic announcement and
apology to all of the nuclear workers and their families across the
country that we had been put in harms way and that there were times
when DOE had consistently placed production objectives ahead of worker
health or safety. On Dec. 7, 2000, the President signed the Energy
Employees Occupational Illness Compensation Act (EEOICPA) of 2000,
which has since been administered by the DOL along with the DOE. Within
this program, it was the initial desire of congress to assist workers
with their worker's compensation claims for occupation diseases
relating to working in a DOE nuclear facility.
However, instead of following the congressional intent of creating
a uniform system, DOE implemented regulations placing numerous
obstacles contained in state worker's compensation programs that
congress had sought to circumvent through a federal assistance program.
This was not surprising to some as indicated in the National Economic
Council report of 2000, which documented that state worker's
compensation systems were particularly ill-suited to provide workers
compensation for occupational disease due to statues of limitations,
varying and difficult burdens of proof with respect to causation, and
proving which employer was responsible for each illness when there were
many contractors who worked at these DOE nuclear sites.
Congress' intent was to assure a non-adversarial process be set
forth within DOE to assure that these sick workers who suffered from
illness or disease from exposures at their workplace to toxic
substances would be paid by the DOE contractors without a legal battle.
It was clearly stated, the government had taken the responsibility for
the harm suffered by these workers and their families and that they
should not have to wait years to receive assistance through DOE and
state worker's compensation programs. It was also clearly understood
that some of these workers may not survive long enough to receive aid
through the DOE program and that there was an urgent need to implement
this program and to help these workers and their families.
In October 2003, the General Accounting Office, the investigative
arm of Congress, had been asked to look into the bottlenecks of the DOL
and DOE's system set up to handle compensation claims filed by sick
nuclear workers from the Cold War era, or their survivors. An estimated
650,000 to 750,000 people worked in our nation's nuclear defense
program and thousands of them have sustained disabling or fatal
illnesses and diseases as a result of their exposure to some of the
most harmful substances known to mankind.
The preliminary GAO report showed that of the nearly 19,000 cases
filed with the Department of Energy (DOE), only six percent had been
completely processed (42 wfth physician panel determinations and 1,170
found ineligible or withdrawn at request of claimant). More than fifty
percent (10,109 claims) had not begun processing. Nearly two-thirds of
pending cases were filed within the first year of the program, which is
an average of 571 cases being filed on a monthly basis since July 2002.
My question to Congress is, were the claims which were denied by
the Department of Energy, denied for any of the above reasons as
indicated in the National Economic Council Report of 2000, in their
recommendations as to why the state workers compensation program would
not work for these nuclear workers. If the initial intent of Congress
was to compensate these workers and their families for their pain and
suffering, why are these claims not being processed in a timely manner
as indicated in the GAO report and why are so many of them being denied
if this process, is in fact, going to work?
On July 31, 2001, the Energy Employees Compensation Claims Center
opened in Oak Ridge, Tennessee, and on August 8, 2001, I filed my claim
with the DOL for my beryllium sensitivity and with the DOE for my heavy
metal toxicity and relating illnesses/diseases. The DOL approved my
claim for my beryllium sensitivity a little over a year ago; however,
it has been over two years since I have heard anything from the
Department of Energy regarding my personal claim.
I was placed in an extremely difficult financial situation due to
my health issues and was forced to file for bankruptcy in 2001. In
1999, my out-of-pocket medical expenses were in excess of $7,000 with
an annual income of less than $30,000 which put a tremendous burden on
myself and my daughter who at that time was a high school student. I
was unable to obtain any health or life insurance due to my pre-
existing conditions and was unable to work due to being placed on
permanent medical disability. I was mentally and financially devastated
and still had heard nothing from DOE regarding my claim for illnesses.
My only prayers were that I would be able to keep a roof over our heads
until my child graduated from high school.
Approximately two months ago I received a call from the DOE, Office
of Worker Advocacy regarding the claim that I had filed on August 8,
2001. They advised me that they were going to begin working on my state
workers compensation claim and that I would be hearing from a nurse who
would be handling this. This week, two months after I had received my
initial call from the claims office, I received a call from my claims
advisor and was then informed that I would be receiving a call from the
Oak Ridge claim office to go and meet with someone there to go over my
medical history.
I received that call yesterday, and have an appointment set up for
the first week of December. Other than the above mentioned calls that I
have received, I have never gotten any written correspondence in
acknowledgement of my initial filing of my claim with the Department of
Energy and still have not received my claim number. To my knowledge,
over 3,700 claims have been filed from the DOE Oak Ridge facilities and
to date only 7 of those claims have been processed through the
Physician's Panel. These figures are unacceptable and DOE should not be
permitted to further delay the handling of any of these claims.
The following is a list of my illnesses/diseases since I have
worked at the K-25 Gaseous Diffusion Plant which may help others to see
how complex these health issues are for the nuclear workers who are
suffering and still have not received any compensation:
Reoccurring pneumonia and pleurisy with asthma which was
later diagnosed as beryllium sensitivity and recently upgraded
to Chronic Beryllium Disease;
Degenerative bone and joint disease, acute muscle/joint pain
and swelling;
Crippling fluid buildup on knees, heels, and toes;
Osteoarthritis;
Fibromyalgia;
Diseased sublingual/submaxillary glands in left side of neck
which were surgically removed;
Heart disease, including arrhythmia;
Chronic fevers and swelling of lymph nodes with flu like
symptoms;
Chronic cystitis and nephritis;
Right ovarian cysts and removal of right ovary;
Multiple hemangiomas in liver . . . On June 4, 2003 had giant
hemangiomas and one-fifth of liver removed . . . diagnosed with
NAFLD (Nonalcoholic fatty liver disease);
Severe tremors, speech difficulty;
Eating disorder;
Sleep disorder;
Night sweats;
Restless Leg Syndrome;
Depression;
Anxiety and panic attack syndrome;
Gallbladder removed;
Fibroid tumor in left breast was biopsies for cancer;
Abdominal hysterectomy due to chronic endometritus and
multiple fibroid tumors;
Pancreatitis;
Hyperlipidemia;
Type II diabetes;
Metabolic syndrome;
Thyroid disease with multiple nodules in neck;
Neuropathy;
Severe memory loss;
Cluster migraines;
Auto-immune disorder;
Chronic Epstein-Barre virus;
Chronic Fatigue Immune Deficiency Syndrome;
Hyadal hernia with GERD;
Tested positive on bladder cancer tumor antigen test;
Tested positive on one blood hemicult test for colon cancer;
Daily flushing of ears, face, and neck;
Intestinal problems.
My days are still filled with doctor appointments, medical testing,
and physical therapy and I, liked thousands of other nuclear workers
have become totally discouraged with the way DOE has handled their
responsibilities. There has been a total disregard for these sick cold-
war veterans who gave so much for their country and have received
nothing but mere excuses from the Department of Energy as to why they
have not been helped yet, why their claim has been denied, or why DOE
needs more funding and more time to handle these claims. The Department
of Energy has had the money and the time to implement and make this
program work and yet continues to disregard the rights of citizens in
this nation and their rights as cold-war veterans whose lives have been
changed forever.
I wish to thank you for taking the time to read my testimony. My
continuing prayers are that this administration will see that DOE is
held accountable for their failures to make this program work as was
intended, and that these families will be given the immediate attention
and help they so badly need and deserve. Time is not on our side. We
appreciate any and all help you can give us.
Sincerely,
Janine L. Anderson.
______
Statement of Sylvia M. Carlsson, Widow/Survivor, Anchorage, AK
I was one of the first Alaskans to receive a positive Subtitle D
Physicians Panel Determination from the U.S. Department of Energy,
Office of Worker Advocacy (DOE). I am a widow/survivor. My husband was
a shaft miner on Project Cannikin at Amchitka Island from 1970 through
1971. He was exposed to ionizing radiation in the course of his
employment with Kiewit-Centennial, a prime contractor of the Atomic
Energy Commission, now DOE. He was 32 years old at time of exposure. He
died before his 41st birthday in 1979 of colon cancer.
I filed a claim for workers compensation under the Alaska Workers
Compensation System as suggested in the April 16, 2003, Determination
letter from Beverly Cook, DOE Assistant Secretary. I was assured that
the contractor would be notified and asked to accept primary liability
for my claim and would also be asked not to raise any affirmative
defenses in my case. The exact opposite of DOE's letter and
determination occurred. My workers compensation claim is being
aggressively opposed by two different attorneys representing two
different insurance carriers, the contractor and adjusters. I requested
information from DOE Secretary Abraham about DOE's not contacting the
contractor. I did not receive an answer to my inquiry. I was informed
six months after my inquiry via e-mail from Tom Rollow, Director,
Office of Worker Advocacy, that his office would not be able to give
further assistance. He did not mention the Willing Payer issue at all.
Governor Frank Murkowski requested that DOE Secretary Abraham find
an immediate solution to the problem of the lack of a Willing Payer.
Governor Murkowski's May 2003 letter has yet to be answered. Since
then, Alaska's Senator Lisa Murkowski and Congressman Don Young have
written individual letters requesting that DOE address the Willing
Payer issue. Alaska's Comissioner of Labor, Glenn O'Cleary; Alaska's
Senator, Con Bunde, Chairman of Labor and Workforce Committee, also
wrote letters requesting that the Willing Payer issue be addressed in
order to assist Amchitka workers in their claims before the Alaska
Workers Compensation Board. None of those inquiries have been answered
to my knowledge.
In the meantime, I have spent countless hours in depositions, pre-
hearing conferences, hearings, and meetings in defense of my workers
compensation claim. I have also had to meet demands from opposing
attorneys for volumes of documents which has imposed a financial burden
on me.
The affirmative defenses raised by opposing attorneys include: 1)
is Kiewit-Centennial (the contractor) entitled to an offset to any
amounts recovered by me (the claimant) under the EEOICPA; and 2) Does
the release I signed under Subtitle B in the federal arena bar recovery
under state workers' compensation. If the Alaska Workers Compensation
Board rules in my favor, I have been assured that the opposing
attorneys fully intend to appeal the decisions to Alaska's Supreme
Court, thus tying up my claim for at least two to four years.
The merits of my case will be heard sometime in 2004 when opposing
attorneys give up their game of petitioning the AWCB for continuances.
So far, they have been successful in two continuances so I am uncertain
whether or not my claim will be heard anytime soon.
Opposing attorneys in my case have retained medical experts to
counter DOE's Subtitle D Physician Panel Determination. Fred A.
Mettler, Jr., MD, MPH, Professor Emeritus from the University of New
Mexico School of Medicine and John R. Frazier, PhD, CHP with Auxier and
Associates will be testifying against my claim. I am told,
incidentally, that Dr. Frazier is a senior analyst with Auxier and
Associates, which has a contract with NIOSH to do site profiles under
the EEOICPA. I have made inquires of NIOSH about this very obvious
conflict of interest but have had no response.
Since January 2003, nine former Amchitka workers have died, all of
cancer and none, to my knowledge, having received benefits under
Subtitle D of the EEOICPA. The tragedy is that many more will follow. I
am aware of at least 150 claimants who are awaiting responses from DOE.
Opposing attorneys are not even waiting for those claimants to receive
a Physician's Panel Determination. A number of Amchitka claimants have
been receiving demands for medical records, for social security
records, for other information and many of those claimants are very ill
and unable to respond.
Over 90 days ago, seven Amchitka claimants were told by DOE that
they would be receiving their Physician Panel Determinations within a
few days. Since then, DOE has told each a different story, i.e., the
physician doing the determination is ill; the physician reviewing your
case died; the person handling your case went on vacation and we can't
find your records. I would like to reiterate that nearly all the
Amchitka claimants are ill with cancer, many unable to even make
inquiries about the status of their claims and all are becoming
completely stressed by the tactics used by the opposing attorneys.
Had DOE been honest and forthcoming in its communications with
claimants, we would not be having the problerns we are having now. In
October 2002, Beverly Cook came to Anchorage and met with over 150
claimants. She was explicit in her statement that she would have no
problem in ``reaching out and touching contractors'' in order to ensure
payment of the Subtitle D applications once a positive physician's
panel determination had been rendered. In addition to making this
announcement, she met with individual claimants and made the same
promise. She did not retract that public announcement and has not
responded to any inquiry regarding the Willing Payer issue. In my
opinion, she harmed claimants by making such statements. Many believed
her and now those claimants are having to fight opposing attorneys,
some without the benefit of counsel.
In direct contrast to DOE's lack of performance under the EEOICPA,
the Department of Labor has managed its obligations under Subtitle B
with professionalism, sensitivity and rapid response. For example, the
Department of Labor became aware that Amchitka workers were
experiencing problems with the medical cards it had issued to some of
the claimants. DOL sent two of its staffers to Anchorage to resolve the
problems.
In addition, when the DOL Director was informed that opposing
attorneys in my case were raising affirmative defenses that involved
Subtitle B payments, he offered to send his legal counsel to Anchorage
for the hearing. The law is quite clear that Subtitle B payments are
not considered offsets; however, opposing attorneys in my case are
pressing the issue. DOL representatives have not only been responsive
to claimants, but unlike DOE representatives, they have been honest and
willing to assist wherever they can. Had DOL been given the
responsibility for implementing the EEOICPA including processing of
claims and resolving the Willing Payer issue, we would not be talking
about the problems right now.
It is ironic that many are being compensated by the EEOICPA
including the Science and Engineering Associates (SEA); the C2 Lobbying
group; the staff of the Office of Worker Advocacy at DOE; medical
consultants Fred Mettler and John Frazier; at least nine attorneys in
Alaska and possibly 10 times that many across the nation; and many
others. But those for whom the legislation was written are not being
compensated because of the poor performance by DOE.
I am requesting that this committee undo the harm that is being
done to EEOICPA Subtitle D claimants, not only to those in Alaska but
elsewhere by taking action to either demand that DOE fulfill its
obligations without delay under the EEOICPA or relinquish the program
to another agency that can do the job.