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How do the advocates know what Congress wanted for sick nuclear weapons workers?

You will often read in ANWAG letters, blogs and press releases that the advocates want the Department of Labor’s Division of Energy Employees Occupational Illness Compensation to administer the program according to the original intent of Congress.  How do we know what Congress intended?  Because many of us educated Congress about the problems the sick nuclear weapons workers faced in the states’ workers compensation program. 

Advocates started this education in the late 1990’s, which resulted in the passage of the legislation and again in 2004 when it was realized that workers still couldn’t get a fair shake at the state level (plus the Department of Energy (DOE) was doing a horrendous job with the claims process.)

Janet Michel and I would like to share some personal history with you to explain why we know what this legislation was meant to be.  Janet’s blog can be found here http://bit.ly/1pDMP4Q. 

My husband was sick from the day I met him almost 26 years ago.  We just didn’t realize the cause until seven years later.  In our naivety, George decided to file for workers compensation.  After all, he had the incident report showing he ingested and inhaled plutonium and americium.  His termination papers showed systemic burdens of radioactivity in his bones, lungs and kidneys.  What more could one ask for. 

Despite these documents, we could not find an attorney to represent him against the Department of Energy.  But because of these documents my family, friends and co-workers urged him to move forward with me as his authorized representative.    Needless to say we were blown out of the water - although I did manage to get a Rocky Flats’ expert witness to state, under oath, that a person can drink a cup of plutonium without having any adverse health effects.  Unfortunately, I assumed that the judge would understand that this was a false statement and would award George his compensation.  We were so naïve.

But a few years later we found hope.  In an unprecedented statement, then DOE Secretary, Bill Richardson, apologized to the nuclear weapons workers for placing them in harms’ way without their knowledge and for reimbursing their contractors when the contractors contested workers’ compensation claims for occupational illnesses. Yippee!!  George was finally going to receive what he deserved and needed (it was a little tough having a sick husband with no income or Social Security Disability Insurance (SSDI) and raising two teenagers.)

Secretary Richardson detailed Undersecretary David Micheals to travel to the major DOE sites on a fact finding mission.  One of those locations was for the Rocky Flats workers.  I don’t remember exactly how we were put in touch, but Jeff Egan from DOE, urged us to attend.  We live 200 miles away from Denver.  We had a semi-reliable vehicle and decided to attend.  But then we watched the weather and a blizzard was heading our way.  I called Jeff and explained and again he urged us to take the chance on the drive. 

Fortunately, we beat the storm.  After we gave our 5 minute public comment (2 ½ minutes each) we headed back to our seats.  We were followed by Jeff Egan and Kate Kimpan, also with DOE.  They told us how powerful our statement was and how the proposed legislation was written “just for George” so that his multiple conditions would be covered. 

We believed them. 

Along with advocates and sick workers (unknown to me at the time) from other areas of the country, letters were written to Congress and the media.  Calls were made by friends and family.  The advocacy paid off and EEOICPA was passed in 2000.  The sick workers would finally receive similar compensation that a worker who broke his leg at work would receive.  Wage loss, medical care and impairment.

Anyone who has been involved with the program in the early years knows what a fiasco Part D, administered by the Department of Energy, was.  George was one of the lucky ones to have his claim processed under Part D, but he was approved for only one condition and that was only after an appeal.

By that time, legislation was again before Congress, this time to reform EEOICPA.  I made my first trip to Washington, DC in 2004.  If you have never been to visit Congressional offices, let me tell you, it’s tough.  Most times the meetings last no more than 20 minutes.  You have to be prepared to explain the situation concisely and allow enough time for a short discussion.  

One of the meetings I had was with Former Congressman Kurt Weldon’s Chief of Staff, Russ Casso.  I grew up in the Congressman’s district and my parents still lived there.  So I felt comfortable talking with him.  I was on “home-turf” so to speak.  I gave a brief account of George’s many diseases and conditions to Mr. Casso, and the history of his state workers’ compensation claim.

Mr. Casso asked how much money George received from SSDI.  I told him.  Mr. Casso asked how much money George would have received if he was successful with his workers’ compensation claim.  I told him.  The difference between those two amounts is the basis for the wage loss benefits legislated in the reform bill of 2004.

Ironically and disturbingly, DEEOIC denied George his wage loss claim despite the fact that three letters by two different personal physicians affirmed that he cannot work because of his one and only covered condition.  But that’s a whole other blog.

Because of the advocacy work, Congress was well aware of the problems the sick workers or their survivors faced in obtaining the compensation they deserved. Congress intended to correct the injustice.  Congress wanted these workers to receive fair treatment.  The legislations show this.  We need to get this program back on track and compensate these sick workers as Congress intended.

 

 

 

 

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Rocky Flats was just a "fancy machine shop". Oh, really??

June 6 will be the 25th anniversary of the FBI raiding Rocky Flats for alleged environmental crimes.  The Arvada Center for the Arts is holding a free, three day event commemorating this event.  http://arvadacenter.org/on-stage/rocky-flats-then-and-now-2014

In anticipation of this event, the Denver Post published an article on Sunday http://www.denverpost.com/news/ci_25874064/feds-raided-rocky-flats-25-years-ago-signaling

I am honored to participate in one panel discussion regarding the worker health issue.  So, I was kind of excited about the publicity.  That is until I read this paragraph

 "Rocky Flats was nothing but a fancy machine shop ... in what was then the middle of nowhere. But we had machining capabilities that nobody else had," said Scott Surovchak, Rocky Flats legacy site manager for the Department of Energy."

Really, Mr. Surovchak?    Just a fancy machine shop?  Do you know what Rocky Flats did for 50 years?

I stewed over this statement all day.  I was furious.  Then the former workers from Rocky Flats and other nuclear weapons sites started emailing me their thoughts on this statement and I decided to write this blog.

Yes, Rocky Flats machined components for a nuclear weapon.  In fact, for those of you who are not familiar with nuclear weapons, they machined the actual plutonium pit.  But the activities at Rocky Flats didn’t stop at machining parts.  There were chemical processes to retrieve the valuable radioactive materials from waste products.  For instance there was a molten salt extraction process to recover americium from Plutonium 241, http://pubs.acs.org/doi/abs/10.1021/bk-1980-0117.ch032.  In the early years there was also a foundry in Building 881. This foundry “cast enriched uranium into spherical shapes that were sent directly to machining.” http://www.lm.doe.gov/land/sites/co/rocky_flats/HAER/base/Buildings/881.htm. 

If the statement that Rocky Flats was just a fancy machine shop, I have to ask, what respectable machine shop would not have a Criticality Lab?  Yup, the Rocky Flats fancy machine shop had one.  http://oralhistory.boulderlibrary.org/interview/oh1179/

This statement does a great disservice to the thousands of women and men who worked not only at Rocky Flats but at all of the nuclear weapons facilities.  It trivializes the serious and dangerous work performed by the dedicated employees during the Cold War.

I was a bit hesitant in writing this blog.  Am I sure I want to stir things up right before the Arvada Center’s event?  Will this jeopardize the Alliance of Nuclear Worker Advocacy Groups (ANWAG) and DEEOIC Interim Advisory Board (DIAB) working relationship with DOE?  Was it possible that the reporter misstated Mr. Surovchak’s  statement or took it out of context?

As I said, earlier, I received a number of replies from the former workers.  The one that convinced me that this blog needed to be written came from Mr. Maurice Copeland.  Mr. Copeland is a former worker from the Kansas City Plant and DIAB Board member.  He is also the petitioner to have that site included in the Special Exposure Cohort.  He emailed me and stated that the Deputy Site Manager referred to the Kansas City Plant “as just another manufacturing plant.”  Did a memo go out directing the site managers to minimize to the public the type of work performed at these sites and the possible impact? 

In 1999, then Secretary Bill Richardson acknowledged and apologized for the harm done to the workers at these facilities.  Is DOE reverting to denying – or at least play down – the serious issues surrounding this program? 

I’m a sick nuclear weapons worker advocate and obviously I take this responsibility as seriously as a mother bear protecting her cubs.  There is also the environmental issue involving these sites.  There are plenty of dedicated advocates for those problems.  If we are going to face the problems the sick workers and the communities face in order to resolve them the federal government needs to be honest and open.  It’s that simple. 

 

 

 

 

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Back by popular demand

Well not really.  But I did have two people ask me when I was going to write another blog.   A couple of exciting things have happened in the past few months which kept me a little too busy to post.  But I’m back now.

You all remember the push to get an advisory board to Department of Labor’s Division of Energy Employees Occupational Illness Compensation legislated (DEEOIC).  Well, despite the best efforts of the Congressional sponsors of the legislation, passage of this bill does not look promising.    

ANWAG decided to act on a suggestion made by Frank Gerlach, of Gerlach and Gerlach.  We decided to form an all volunteer citizens' DEEOIC Interim Advisory Board (DIAB).  You can find more information at diaboard.org and here http://bit.ly/1kwCdk5 and here http://bit.ly/1hqB2Tv

This is not a stunt to get Congress’s attention, although that is desperately needed.  DIAB will be holding town hall meetings and is already working on a paper reviewing two aspects of DEEOIC’s Site Exposure Matrix (SEM).

In a separate but related development, the Departments of Labor, Energy and Health and Human Services accepted ANWAG’s invitation to meet with the advocates to discuss the advocates’ concerns with the program.  We met last week in Denver, with the advocates flying in from all across the country. You can find the summary here http://bit.ly/1fZ4dc0 

The summary is kind of dry and the two faithful readers of this blog wanted to know how I felt about the meeting.  Actually, it wasn’t bad.  In fact, there were some areas where I think we made real headway, the SEM, for instance.  I honestly feel that DEEOIC will take a serious look at the problems we found so far – inaccurate job categories, how  claims examiners (CE) use SEM in deciding claims, etc.  I am also hopeful that the areas in the private SEM will become available to the public.  The areas are the filters the CEs use.   Another area where I think we’ll see improvement is in customer service.  Hopefully, I will no longer hear about rude or unhelpful CEs. 

There were a couple of responses that didn’t make sense to me.  One question we posed to DEEOIC is why DEEOIC considers it to be a conflict of interest for a host home provider to also be an authorized representative.  The answer was that the home health care provider serves two masters – the company who employs the provider and the claimant.  But that can be said for any other authorized representative.  They also have a financial interest in getting a claim paid.  If the claim is denied, then the authorized rep does not collect the fees allowable under the law.

Another statement made concerned the DEEOIC nurse consultants contacting the personal physician about the home health care hours prescribed.  DEEOIC stated that the hours are provider driven and the nurse consultant just wants to make sure the physician understands the order he signed.  I personally have a problem with this statement because it seems to imply that personal physicians – who happen to go through years and years of training – will put their professional reputation on the line just to make their patient or the provider happy.  I don’t know why DEEOIC would think this is possible.

 

There were a few contentious discussions involving the legal issues.  There was no give and take when it came to discussing which issues should be sent out for public comment (as opposed to DEEOIC just issuing Final Circulars and Bulletins) and how does DEEOIC define proprietary interest.

The problem with issuing Circulars and Bulletins is that the public does not have any input.  Some of these documents deal with medical issues; for instance how is hearing loss or bladder cancer claims adjudicated?  These are medical issues and DEEOIC should provide the opportunity for experts outside of DOL to weigh in.  That doesn’t happen. 

The advocates asked for a clear definition of what constitutes DOE’s proprietary interest in a facility.  Here’s the law, with emphasis added:

(12)  The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

 

(A)  in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and

(B)  with regard to which the Department of Energy has or had—

(i)  a proprietary interest; or

(ii)  entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

 

It’s a simple question, but the Solicitor said it can’t be done; that determining what is a DOE facility needs to be decided on a case by case basis.  How is that possible?  How can DEEOIC decide if a site is a covered DOE facility if they can’t define what proprietary interest means? 

I guess the big issue we wanted to know from NIOSH was the status of their response to Dr. Barker’s critique on the dose reconstruction process http://bit.ly/1bWvujM.  Stu Hinnefeld stated that one of the reasons it can’t be released is that it deals with a specific claim.  It wasn’t until I read Sanford Cohen and Associates review of two Rocky Flats dose reconstructions that I realized the reason is not a very good one.  SC&A’s paper has all personal identifiers redacted from their report.  I think the same thing can be done with NIOSH’s response to Dr. Barker’s document.

The other reason given was that NIOSH has not officially received the document from DEEOIC.  I learned during the meeting that if a claimant or authorized representative finds a factual error in the dose reconstruction, DEEOIC does not necessarily send that back to NIOSH – or to DEEOIC’s health physicist - for another review.  I sincerely hope that this is immediately rectified.  Due process issues are involved.

Our issues with DOE were minimal.  The biggest concern was record retention and retrieval.  A dear friend of mine has had major difficulties in obtaining her husband’s employment records from a LANL subcontractor.  We’re not talking 40 years ago, we’re talking about her husband working there in 2007.  We asked DOE if any fines were levied against contractors or subcontractors for not keeping the records.  They have not.  However, DOE relayed that there is now a clause in the contract language that does require the retention of employment records.  I am very thankful for that.

The other issue is the testing done by the Former Worker Medical Screening Program.  This program is a wonderful thing but it can do so much more.  Personally, I would like to see this program become a Mayo Clinic-type program; one where the worker is tested and diagnosed for a variety of diseases; one where a treatment plan is developed.   And just as important, one where the Former Worker physicians can link the exposures the workers experienced at the sites to the diseases they suffer from. 

So that’s it for now.  Stay tuned for thoughts on the 250 day requirement for SEC classes and DIAB news.

 

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ANWAG forms Citizen's DEEOIC Interim Advisory Board

The Alliance of Nuclear Worker Advocacy Groups (ANWAG) announced Thursday Februay 20th to the federal agencies responsible for implementing the Energy Employees Occupational Illness Compensation Program  Act of 2000, as amended (EEOICPA) - the Department of Labor (DOL), the Department of Energy (DOE), and the National Institute of Occupational Safety and Health (NIOSH)- the creation of an all-volunteer citizens advisory board. The interim advisory board will oversee DOLs Division of Energy Employees Illness Compensation (DEEOIC) implementation of the compensation program.  Three entities, besides ANWAG, have recommended that DEEOIC be provided with an advisory board the Government Accountability Office in 2010, the National Academy of Sciences Institute of Medicine, in 2012 and Econometrica in 2005.  The latter two organizations were contracted by DEEOIC to provide recommendations on the program, at a cost of almost two million dollars for these reports. Many of these recommendations still await implementation.

 

Legislation was introduced in both the 112th and the 113th Congresses to create such an advisory board (S1423 and HR 2905). This board would guarantee transparency in policy decisions as well as ensuring that claims are decided in a consistent manner using the best science available.  Unfortunately, despite the best efforts of the Congressional sponsors, this legislation has stalled.

 

Until Congress passes the legislation the DEEOIC Interim Advisory Board (DIAB) will provide oversight of the program and advise

DEEOIC on the various issues related to the claims adjudication process.

 

DIAB will be beneficial to both DEEOIC and the claimant population, stated Terrie Barrie ANWAG Founding Member and Secretary of DIAB.  The board includes members of academia, the legal profession, former workers and claimant advocates. All have a substantial amount of experience with this program.

 

The advocates and claimant representatives hear a variety of concerns from the claimants.  They range from job categories missing from the Site Exposure Matrix to the reduction of home health care hours, said Faye Vlieger CWP Advisory Committee Member and Chair of DIAB.  This Board will be able to identify the issues and offer recommendations to DEEOIC to correct the problems.

 

DIAB has adopted the Comments (0)

DOES the DEEOIC have the right to question personal physicians' prescriptions?

One of the nicest things about being an advocate for the sick nuclear weapons workers is that I meet so many like-minded people – people who really care about the sick workers and their families.  Last month, I met a clinical manager of a home health care company.  Her father was involved in the nuclear weapons industry. 

This week she shared a response from the DEEOIC concerning a FOIA request she submitted on September 3, 2013.  She had requested an “updated procedure manual that reflects the incorporation of the DEEOIC nurse consultant into the in-home health care medical process.”

The DEEOIC responded,

“Currently, the DEEOIC has not established formal policies in the DEEOIC Procedure Manual relating to work activities for our nurse consultants.  Should DEEOIC issue any policies related to in-home health care for nurse consultants, this information will be announced via the DEEOIC website in the form of a bulletin.” 

Apparently, these DEEOIC nurse consultants have been in place prior to September 3, 2013.  Yet the DEEOIC doesn’t have any formal policies for them?  They have formal policies for Resource Center personnel, for claims examiners, for hearing officers but none for in-home health care nurse consultants??? 

What is an in-home health care nurse consultant anyway?  From other documents supplied to me it appears that the role of the nurse consultant is to contact the personal physician who first ordered home health care for an approved claimant to see if the hours prescribed by the personal physician – who knows the patient better than DEEOIC – should be lowered.  Here are two examples of letters sent to the personal physicians who prescribed in-home health care:

“Per our conversation on August 12, 2013 at 1437, the DEEOIC will amend (emphasis is mine) Mr. (redacted) in-home health care to the following:

·         HHA/CNA non-skilled nursing services – 4 hours per day

·         Targeted Case Management – 1 hour per week

·         RN/LPN – 3 hours per week.

Please sign this order and fax the signed copy to me at (redacted)”

And this one,

“The DEEOIC is requesting to amend (emphasis is mine) Mr. (redacted) home health care to the following:

·         HHA/CNA non-skilled nursing services – 4 hours per day

·         Targeted Case Management – 1 hour per week

·         RN/LPN – 3 hours per week

Please sign this order and fax the signed copy to me at (redacted)”

(I must apologize for not providing any links to view the documents.  Deb Jerison went on a well-deserved vacation and she took the magic keys to the website with her - not that I would know what to do with those keys.  But if anyone wants to view the actual documents just send me an email, tbarrieanwag@gmail.com.)

I have to ask – is it ethical, let alone legal, for the DEEOIC to contact the personal physicians and ask that the doctors’ order for home health care be changed?  Did the DEEOIC’s nurse consultant include the patients in these conversations?  Was it mutually agreed upon by all parties – the claimant, the doctor, provider and the DEEOIC?  Or were the claimants, who obviously suffer from a debilitating or even fatal disease, left out of this discussion of their medical care?

Why is the DEEOIC calling these physicians?  Do they think they are scamming the program?  Why would they do that and jeopardize their reputation and license?  Does the DEEOIC think the in-home health care agencies are fraudulent?  There are audits that can be performed to filter out the bad seeds of the industry.  As a matter of fact in the 12 years this program has been around, I recall only one in-home health care agency that was investigated and convicted of defrauding the Government.  Shame on that agency.  But because one of hundreds of agencies across the country was fraudulent does not imply that all are.  Many of them have the claimant’s best interest at heart.

So, why is the DEEOIC calling or writing these doctors?  Is it to control the costs of the benefits?  Does the DEEOIC still think the claimants will lie to get the compensation and therefore their medical providers will do the same – at the risk of losing their practice? 

And if the DEEOIC is making these calls to personal physicians concerning their recommendation for in-home health care, is the DEEOIC making similar calls to personal physicians concerning causation letters?  I’d be interested in hearing from claimants or their physicians if anyone from the DEEOIC has contacted them to question the letter of support.  Is the DEEOIC doing the same thing with durable medical equipment prescribed by a personal physician?

This compensation program is a legal process.  Don’t let that “informal oral hearing” stuff fool you.  The DEEOIC is bound, as far as I’m concerned, by the legal rights afforded to everyone under the Constitution.

If anyone has information concerning ex-parte conversations without the claimant’s involvement and does not wish to post a public comment, please feel free to email me directly at the above email address.  I will keep all correspondence confidential.

 

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Was DOL honest with their FOIA response?

I filed an appeal with DOL’s FOIA office yesterday.  That’s not surprising.  Unfortunately, I need to appeal a denial of my FOIA requests with DOL much too often.  DEEOIC does not release documents requested willingly.  But their latest reply to my FOIA request bothers me a lot.

 

In September, I requested

 

1.       All documents submitted by Paragon Technical Services (Paragon) to the Department of Labor (DOL) DEEOIC related to the time frames toxic substances were present at each Department of Energy (DOE) covered facility or uranium site under contract number DOL J069E22874 and

 

2.       All fully rationalized reports submitted by Paragon to DEEOIC related to detailing the relationship between toxic substance at DOE facilities/uranium sites and the diseases related to those exposures under contract number DOLJ069E22874.

 

DEEOIC response to item #1 was

 

"Paragon does not send documents or reports to DEEOIC regarding time frames that toxic substances are or were present..."

 

Really??  It just so happens that I filed a FOIA request for all emails between DEEOIC and Paragon related to the changes to the “guard” job category at the Iowa Army Ammunitions Plant in the Site Exposure Matrix.

 

I received those emails and it appears that DEEOIC does have at least one document – a spreadsheet - that would be responsive to my FOIA request.  That email between DEEOIC and Paragon states:

 

"In reviewing this spreadsheet... what reminded me was the note in the notes column that indicated Building one-05-1 was decontaminated and equipment removed in 1954..."

 

So, why didn’t DEEOIC send me at least that spreadsheet?

 

I also filed a FOIA request for the actual contract between DEEOIC and Paragon and received it.  The contract language calls for certain reports to be delivered to DEEOIC by Paragon.

 

As noted above my FOIA request also asked for the fully rationalized reports submitted by Paragon detailing the relationship between toxic substances and the diseases that could have resulted from the exposures. DEEOIC contends that Paragon does not submit reports linking toxic substances and diseases:

 

“With regard to the second part of your request, Paragon does not submit reports to DEEOIC regarding the relationship between toxic substances and diseases.”

 

Yet the contract requires that,

 

"The Contractor shall further identify the timeframes during which particular toxic substances were present and the diseases related to those toxic substances based upon fully rationalized medical science."

 

If Paragon does not submit reports on diseases caused by toxic substances how does DEEOIC know that the diseases located in SEM are based on “fully rationalized medical science”?  Does DEEOIC provide any kind of oversight to Paragon’s SEM contract or just take them at their word?  But I guess they can’t provide oversight since Paragon doesn’t give DEEOIC required reports. Oh, but there’s that email about DEEOIC having spreadsheets.

Is it possible that DEEOIC wasn’t completely honest with me when they responded to my FOIA request? 

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EEOICPA News Roundup and Another Reason DEEOIC Needs an Advisory Board

It’s great to be back writing the ANWAG blog.  It’s been a long time since I’ve posted.  Not because nothing is going on, but because there’s been a lot going on.  Some involved traveling and that delayed my posts. 

Last month, I traveled to Denver for the Advisory Board on Radiation and Worker Health’s meeting.  The Board voted to approve NIOSH’s recommendation to expand the Rocky Flats SEC to include all workers who were employed for 250 aggregate days between April 1, 1952 and December 31, 1983 and had one of the twenty two specified cancers.  I am thrilled with this decision.  It’s been a very long and hard road for the Rocky Flats workers to achieve justice.  And fortunately, NIOSH and the Board have left the latter years on the table.  NIOSH will continue to investigate if their previous dose reconstruction models are still valid for these Rocky Flats workers. 

As mentioned on EECAP’s home page, supporters of the sick nuclear weapons workers were invited to participate in a round table discussion at the American Public Health Association’s (APHA) annual meeting.  Topics discussed were the acceptance of chronic lymphocytic leukemia as a radiogenic cancer; issues with impairment ratings by non-CMC physicians; claim statistics pre-2008; and why DEEOIC needs an independent advisory board.  As you can imagine, this last issue had the longest discussion.   

My contribution was to inform the group of the advocates’ position on the Institute of Medicine’s (IOM) review of the Site Exposure Matrix (SEM) and DEEOIC’s response to IOM’s report.  During that discussion, I briefly referred to DEEOIC’s new Final Circular, 13-12 http://1.usa.gov/1ewKTHs, concerning the review of denied ovarian cancer claims.  Since my return, I have been able to do a little more research on this bulletin.

In attachment 2 of the circular, DEEOIC lists the job categories which would have received a significant exposure to asbestos.    

·         Automotive mechanic; Vehicle mechanic; Vehicle maintenance mechanic

·         Boilermaker

·         Carpenter; Drywaller; Plasterer

·         Demolition technician; Laborer

·         Electrical mechanic; Electrician; Floor covering worker

·         Furnace & saw operator; Furnace builder; Furnace operator; Furnace puller; Furnace technician; Furnace tender; Furnace unloader

·         Glazier; Glass installer; Glazer

·         Grinder operator; Mason (concrete grinding); Tool grinder; Maintenance mechanic (general grinding); Welder (general grinding); Machinist (machine grinding)

·         Insulation worker; Insulation trade worker; Insulator

·         Ironworker; Ironworker-rigger

·         Maintenance mechanic; Electrician; Insulator;

·         Mason; Brick & tile mason; Concrete and terrazzo worker; Bricklayer, Tilesetter

·         Millwright

·         Heavy equipment operator; Operating Engineer

·         Painter

·         Pipefitter, Plumber steamfitter; Plumber/pipefitter; Plumbing& pipefitting mechanic; Plumbing technician, Steamfitter

·         Roofer

·         Sheet metal mechanic; Sheet metal fabricator/installer

·         Welder; Welder burner; Welder mechanic

 

I compared that to the Rocky Flats SEM. There are quite a few more job categories listed in the SEM who would have been exposed to asbestos than are listed in the circular. For some strange reason, I can't list the SEM job categories but you can check it out here http://www.sem.dol.gov/

 

I have no problem with the job categories DEEOIC decided had significant exposure.  But who decided that?  Is there a procedure DEEOIC and Paragon Technical Services follows to determine who had the possibility to experience a significant exposure?  Do they realize how pervasive asbestos was/is in these sites?  If you look at the Rocky Flats SEM for the building, it appears that asbestos was in every building.

So, wouldn’t all workers who worked for 250 days and have a 20 year latency period have the potential for significant exposure to asbestos?  I would think so. And yes, DEEOIC’s circular allows other job categories to be considered. For example, in 1982 an administrative assistant for the Radiation Control Department in Rocky Flats’ Building 771, a plutonium building, reports a small water leak in the corner of the ceiling in her office.  Maintenance comes out, pokes a hole in the ceiling and finds the source of the leak.  The plumber is dispatched and he/she needs to enlarge the hole to repair the pipe.  The leak, and the work needed to repair it, is located in the far corner of the office above the file cabinets.  The repair does not interfere with the administrative assistant’s responsibilities, so she continues to work at her desk, not far from the repair work.  She wears no protective equipment while this work is done. Is it possible that she inhaled or ingested the minute asbestos fibers while at her desk? And then the week after that she would walk through a construction area where light fixtures were being replaced.  And a month after that a new computer system was installed, which meant the old wiring needed to be replaced.  This scenario could have occurred throughout her ten years of employment.  Was she not significantly exposed to asbestos?

Did I mention the claimant needs to prove 250 days of exposure?  How is a claimant, especially a survivor, able to provide evidence of this exposure?  In the example of the administrative assistant, is she supposed to remember each and every time she was present when a ceiling or wall was breached for a repair or an upgrade of the piping or electrical lines?  If the claims examiner refers the claim to DEEOIC’s Industrial Hygienist (IH), will the IH know if the above scenario took place or not?  Or will it be just an assumption that administrative assistants were not exposed to asbestos?

And why does DEEOIC still ignore the law???  Exposure to asbestos does not need to cause ovarian cancer. To be approved under this program, the criterium is to be able to prove that the exposure contributed to, aggravated, or caused the disease.

And why isn’t ovarian cancer listed as a disease in SEM as a result of asbestos exposure?

 

Site: Rocky Flats Plant
Toxic Substance: Asbestos

IDENTIFICATION

CAS: 1332-21-4  Aliases: Amosite; 16F; Anthophyllite; Anthophyllite UICC; Anthophyllite asbestos; Chrysotile; Crocidolite; Tremolite; Tremolite asbestos; Tremolitena; Serpentine; Filterbestos   Category: Dusts and Fibers 

PROPERTIES

Physical: Odorless, fibrous solids having a range of colors: white, gray, green and brown. Chemical: A group of impure magnesium silicate minerals resistant to acids & bases.  

SPECIFIC HEALTH EFFECTS
(based on NLM Haz-Map Disease List)

The following diseases were associated with exposure to this substance in the NLM Haz-Map website as of January 11, 2013

  

Asbestosis  Aliases: Asbestos pneumoconiosis

  

Asbestos-related pleural disease  Aliases: Pleural plaques; Diffuse pleural thickening; Pleural effusions; Rounded atelectasis

  

Laryngeal cancer  Aliases: Cancer of larynx; Larynx neoplasms; Larynx cancer; Laryngeal neoplasms

  

Lung cancer  Aliases: Bronchogenic carcinoma

  

Mesothelioma, peritoneal 

  

Mesothelioma, pleural 

  

Pulmonary disease, chronic obstructive  Aliases: Bronchitis, chronic; Chronic bronchitis; Chronic Obstructive Pulmonary Disease (COPD); Chronic Obstructive Pulmonary Disease; COPD; Emphysema

 

Just one more example of why DEEOIC needs an independent advisory board.

 

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Is DEEOIC breaking the law by hiding evidence?

When I first read the legislating creating EEOICPA, one of my favorite parts was section 7384 (v).  This section requires the DEEOIC to assist claimants.  The law mentions a few areas where DEEOIC can fulfill this obligation, but no where do I see that DOL is limited by these examples.  In fact, the language provides for DEEOIC to go above and beyond what is mentioned in the Act.

 ASSISTANCE FOR CLAIMANTS—The President shall, upon the receipt of a request for assistance from a claimant under the compensation program, provide assistance to the claimant in connection with the claim, including—

 

(1)  assistance in securing medical testing and diagnostic services necessary to establish the existence of a covered beryllium illness, chronic silicosis, or cancer; and

(2)  such other assistance as may be required to develop facts pertinent to the claim.

 

Two incidents happened in the past few days that made me remember this section.

This morning I received a call from Priscilla Maez.  I wrote about her claim on February 13, 2013 in the blog post titled “Delay, deny and hope we die”.  Ms. Maez is not one to give up.  She has contacted her elected officials over the years about the problems with DEEOIC’s delaying the claim until her father passed away.  The most recent letter was to New Mexico Senator Martin Heinrich.  The Senator, as did the other legislators, contacted DEEOIC on her behalf.  DEEOIC responded, but apparently this time the information in the letter to the Senator is a little different.  Ms. Maez relayed to me that DOL said that the claim file included documentation for a twenty three-letter disease and that this disease might qualify for compensation.  The name of the disease, when she read the letter, triggered something in my brain.  While we were on the phone I googled it and found that this disease is considered one of the 22 specified cancers covered under an SEC.

7.   Specified Cancers:  In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):

 

a.   Leukemia.  [Chronic lymphocytic leukemia (CLL) is excluded]. The onset must have occurred at least two years after initial exposure during qualifying SEC employment.

 

b.   Primary or Secondary Lung Cancer.  [In situ lung cancer that is discovered during or after a post-mortem exam is excluded.]  The pleura and lung are separate organs, so cancer of the pleura is not to be considered an SEC cancer.

 

c.   Primary or Secondary Bone Cancer. This includes myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, primary polycythenia vera [also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia] and chondrosarcoma of the cricoid (cartilage of the larynx).

 

 

Amazing!  DEEOIC knew this disease was diagnosed and in the medical file, yet never alerted Ms. Maez, prior to the letter to Senator Heinrich, that this condition was a cancer and could be possibly be claimed under one of the Los Alamos SECs.  It took five years of battling with DEEOIC and numerous cries for help to her legislators before DOL would cough this information up.  I find that deplorable.  DOL could easily have stepped in and awarded the claim, possibly even before her father died.  There is nothing in the law that would have stopped them.  In fact, even the Final Rules shouldn’t have prevented them from informing Ms. Maez or her father about this.  The rules state the burden of proof is on the claimant (I think that is wrong, but that’s another story).  The claimant, unknowingly, did provide the medical evidence.  DOL found it in the files.  What stopped DEEOIC from adjudicating this disease? It’s a shame that 5 years have been lost on this claim.  Hopefully, her new claim will breeze thru the adjudication process.

The second thing that happened was I received a FOIA from DOL!  Tadah!! Mark this on your calendar, folks.  I was a bit surprised.  I had requested copies of the contracts between DEEOIC and Paragon Industries for the SEM database.  I was told that I would need to provide the contract number.  The contracts are pretty old and cannot be found online, so I suggested they contact DEEOIC for the number.  Apparently they did and I received the contracts.

Now what the 1/31/08 contract has to do with DEEOIC assisting claimants is this.  One of DOL’s requirements is that Paragon is to “…research and identify occupations at covered DOE sites…and the toxic substances present at such sites relative to processes and labor categories.  The Contractor shall further identify the timeframes during which particular toxic substances were present and the diseases related to those toxic substances based upon a fully rationalized medical science.”

Remember, DEEOIC is legally required to assist claimants in developing the facts pertinent to their claims.  Don’t you think it is their responsibility to provide claimants with any documentation or reports that show a linkage between exposure to certain toxic substances and their health effects, if they possess such reports?  If they have such reports for certain diseases, why is it necessary for a claimant’s personal physician to provide their own fully rationale report?  What happens if the personal physician’s report uses medical research papers that are different from the science Paragon provided to DEEOIC?  Will the claim be denied? Does the private SEM have more detailed information on when the toxic substances were at the site? Do DEEOIC’s industrial hygienists or toxicologists have access to the time frame that a toxic substance was present at the site?  How do we know the timeline is accurate when we know the job categories of SEM are not?  Why isn’t this information available to the public?

The law says DEEOIC must provide assistance in developing the claim.  I can’t think of a better way to assist these sick and dying nuclear weapons workers or their grieving survivors than by providing them with the information they need to prove their claim.  Wouldn't you think that DEEOIC locating one of the 22 specified cancers, years ago, in Mr. Maez's medical file is a fact pertinent in development the claim? Wouldn't you think that scientific reports accepted by DEEOIC linking health effects to toxic substances are facts needed by claimants to develop their claim?

Let's forget about talking about getting the program back to the original Congressional intent.  Let’s start working on getting DEEOIC obeying the  letter of the law. 

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News from around the Program

It’s been awhile since I had anything to blog about.  In reviewing my past blogs, I realized that just about this time last year I didn’t have anything to report for quite a while either.  I guess it is true what the media says; August and early September is a very slow time for news.

But a few things have developed concerning this program that I’m happy to share with you. 

The other day, the United States Senate passed the resolution designating October 30, 2013 as the fifth National Day of Remembrance.  Sincere thanks to Cold War Patriots (www.coldwarpatriots.org) for their continued support of the nuclear weapons and uranium workers.  I appreciate their hard work in making the National Day of Remembrance a reality.

This was a big, pleasant surprise to me.  NIOSH has determined that they cannot reconstruct dose for certain Rocky Flats workers.  After a year-long investigation, NIOSH found that they do not have enough information to reconstruct dose for exposure to U 233 and Neptunium for all workers who were employed (I’m sure for 250 aggregate days) from 1962 thru 1983.  They will recommend expanding the SEC class for these workers to the Board in October.  While NIOSH has not yet released the revised evaluation report, they did post their power point presentation to the Board’s Rocky Flats’ Work Group, http://www.cdc.gov/niosh/ocas/pdfs/abrwh/pres/2013/dc-rfpsec192091213fc.pdf that offers the explanation.  I’ll be on pins and needles until the Board votes.

And speaking of the October meeting in Denver – kudos to those responsible for choosing the location of the hotel!  Last year the Board meeting was held in the south Denver area.  It was difficult and time consuming for the Rocky Flats workers to travel through rush hour traffic to attend.  But many did and I appreciate their continued interest.  This meeting will be held in the northern suburbs of Denver, where most of the former workers live.   This location will make it much easier for these folks to attend the meeting and make public comments.

The EEOICPA Ombudsman posted their 2012 Annual Report to Congress, http://www.dol.gov/eeombd/2012annualreport/2012.pdf  It is well worth the time to read this report as it relates the problems claimants face in providing sufficient evident to prove the claim. 

There’s a lot of good news here, I’m happy to say.  It’s been a very long time since I could post something positive.  Let’s hope the trend continues.

 

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How many ways can we be decieved by the agencies?

I should have kept track of the number of reasons DOL needs an advisory board.  I guess it doesn’t really matter because I found another one. 

On August 11, I wrote a blog about how DOL betrayed the workers, their families and advocates because they still maintain a private Site Exposure Matrix (SEM) that is not available to the public.  That’s a betrayal of the trust we had in them.  When we first approached DEEOIC about publishing SEM four years ago, the first excuse they offered was that SEM contained some sensitive DOE information.  Fortunately, DOE got involved and actually cleared the database for us and it became available to the public in 2010.  It wasn’t perfect, but it was a good place for claimants to start.

I was trying to help a friend last week and needed to check out SEM for Rocky Flats machinists. What I found, quite frankly, shocked me.  According to SEM a machinist would have worked in one building at Rocky Flats and would have been exposed to only eight toxic substances.  But wait, there’s more!  A Radiation Control Technician would also have worked in one building and would have been exposed to only twelve toxic substances – none of which is a radioactive material.  Since the guards at the Iowa plant is having troubles with their SEM (see June 5 blog), I and other advocates decided to check a few facilities on SEM.  What we found disturbed us much we sent this letter today to DEEOIC http://eecap.org/ANWAG_News.htm

I don’t know what the heck happened!  When the SEM was first released in 2010, many people went over it with a fine tooth comb.  When chemicals, buildings, job categories were found to be missing, the workers, claimants, etc., made sure that the SEM administrator knew about it. Some of that information is now gone.  It looks as if we are back to square one.

In drafting this letter, I decided to check the IOM report on their review of SEM.  The Committee was aware of it, but they were apparently told by DEEOIC that the CEs version and the public’s contain the same information.   If DEEOIC can’t be honest with the group they asked to review SEM (for over a million dollars, by the way), why should we expect that they would be honest with us?  I, for one, am so tired of the lies.

This is a fairly short blog because the letter is self-explanatory.  Let’s hope that in the next few months the rest of Congress will agree that DOL needs an advisory board.  The IOM and GAO reports strongly recommend this.  Maybe they intuited something wasn’t quite right.

And for another's advocate's perspective, please visit http://www.theaerospace.org/Blog.html

 

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