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DOL fails to incorporate most of Advisory Board's recommendations in revised procedure manual

In September, the Department of Labor’s (DOL) Division of Energy Employees Occupational Illness Compensation (DEEOIC) made the July 2017 revision to the Procedure Manual available to the public.  Deb Jerison of the Energy Employees Claimants Assistance Project (EECAP), host for the Alliance of Nuclear Worker Advocacy Groups’ (ANWAG) blog, and I reviewed the changes.  We are not pleased.  It’s not so much that DEEOIC made such drastic changes which would limit the eligibility of some claims as it is that it appears that they have, so far, ignored the majority of the Advisory Board on Toxic Substances and Worker Health’s (Board) recommendations.  DEEOIC requested guidance from the Board on a number of issues which would improve the program.

I need to explain the background so please bear with me.

The Board made, by my count, about sixteen recommendations after the October 2016 and April 2017 meetings.  Many of these recommendations involved recommendations on how the program could streamline some claims by developing presumptions for some of the more common diseases claimed, as requested by DEEOIC. 

For a little more background, ANWAG sent a letter to Labor Secretary Acosta on May 3, 2017 welcoming him and requested a status report on the Board’s recommendations.  The Deputy Director of DOL’s Office of Workers Compensation Program responded on August 23, 2017.

We are finalizing our responses to the recommendations the Board agreed to at its October 2016 meeting and will provide those to the Board in the very near future.  We are reviewing the recommendations the Board agreed to at its April 2017 meeting and will follow up with the Board accordingly.  We are committed to working constructively with the Board to improve the program and we believe many of the Board’s recommendations will enhance the effectiveness of the program.

On September 19, 2017, DEEOIC responded to the recommendations made during the October 2016 meeting.

https://www.dol.gov/owcp/energy/regs/compliance/advboard/dol_response_abtswh_recommendation.pdf

On September 26, 2017, DEEOIC made the revised Procedure Manual available to the public.  The revision only applies to Chapter 15.

https://www.dol.gov/owcp/energy/regs/compliance/PolicyandProcedures/procedure_manual_1.1-2017.09.pdf

Are you with me so far? 

I fell down on the job a couple of years ago when DEEOIC changed the chapter on wage loss.  I frequently check their website for updates.  In 2015, there was a notice that the wage loss chapter was revised.  I dutifully read the summary of the change but not the entire chapter.  That was a huge mistake because it turned out that DEEOIC severely narrowed the criteria of who qualifies for wage loss. 

I promised that I would not make the same mistake and so Deb and I split up reading the entire revised Chapter 15. I’m glad we did.

As I said, a lot of the revisions concerns the Board – it’s recommendations as well as its authority.  Below are the highlights of what we found.

Added entire section of the role of the toxicologist.  In addition to reviewing individual claims, “The Toxicologist will determine if individual claim evidence should be applied broadly as programmatic guidance…The DEEOIC Toxicologist undertakes an analysis of the referral to decide if it warrants the establishment of a new health effect or a modification to the causative thresholds applied in programmatic guidance.” I thought this was the Board’s responsibility.

The revised chapter includes Exhibit 15-4, “Exposure and Causation Presumptions with Development Guidance for Certain Conditions”.  We compared this Exhibit with the Board’s recommendations and found the following:

·         Asbestos related diseases – The board recommended that all DOE workers involved with maintenance or construction “for at least 250 days prior to January 1, 2005 and who are diagnosed 15 years or more after the initiation of such work will be presumed to have sufficient asbestos exposure.”  DEEOIC did not incorporate this recommendation into the PM

·         Asthma – The Board recommended that “a diagnosis of asthma by treating or evaluating physician should be sufficient for the recognition that the claimant has asthma.”  The recommendation acknowledges that certain medical tests may be helpful but the lack of those tests should not be required to accept the diagnosis of asthma.

DEEOIC’s PM states, “b.  A qualified physician has diagnosed the employee with asthma.  A medical diagnosis for asthma should be made when the physician is able to identify the presence of intermittent respiratory and physiologic evidence of reversible or variable airways obstruction including positive methacholine challenge test or post-bronchocodialator reversibility. However, a physician can also rely on other clinical information to substantiate his or her diagnosis of asthma.”

·         COPD – Board recommended that DEEOIC expand the presumption by decreasing the time exposure to 5 years cumulative exposure and expand causative substances to include vapors, dusts, gasses and fumes instead of just asbestos.  They recommended that DEEOIC remove the requirements that the worker must be employed prior to 1986 and that COPD was not diagnosed until 20 years after last exposure.  None of the Board’s recommendations have been adopted in the revised PM.

·         Hearing Loss – Board recommended 10 years cumulative years of exposure.  DEEOIC did not accept this recommendation in the revision of the PM and maintains that a worker must have 10 consecutive years of exposure.

The revision removes all reference of where the information which makes up the SEM comes from.  The Board specific, detailed recommendations on what sources of evidence are appropriate to be used.  Why were these recommendations not included?  If DEEOIC is no longer basing the SEM on Hazmap, what basis are they using?  Is the DEEOIC toxicologist the only person who What other evidence will DEEOIC accept as valid?

Section 11 spells out Industrial Hygienist’s (IH) functions.  The following problems will lead to the denial of valid claims:

·         Allows an IH to offer an opinion by phone, email, or formal referral.  When opinions offered by phone or email they are not at the same standard.  They do not contain references for the basis of the IH’s opinion.  Claimants will be unable to clearly see why the IH came to their opinion.  This damages the claimant’s ability to refute the opinion in a hearing and is a violation of the claimant’s due process rights.  Just as DEEOIC will not accept a claimant’s doctor’s opinion (Version 1.1, Chapter 15, Section 13 b) without proper references, it is improper to accept an IH opinion without proper references.

·         The IH Referral Form allows the CE to provide the information they think is appropriate (the Exposure Worksheet, with possible attachment of SEM search, OHQ, DAR and EE-3), but as pointed out often by the ABTSWH, a claims examiner is often not capable of making that determination properly.  The IH needs access to all the information, not just the cherry-picked information by a claims examiner. 

·         Also, the form does not include a space for the IH to present the claims examiner with any other issues they find that the claims examiner missed.  They are restricted to only the questions the claims examiner is capable of identifying.

·         A maximum of seven toxins are to be identified unless the claims examiner clears it with the National Office first.  In reality, this extra step will prevent the claims examiner from listing more than seven, which will result in valid claims being denied.  Many workers routinely worked with hundreds of toxins.  Limiting it to seven is ludicrous.

·         The Board has recommended the IH have access to the entire case file in order to make an informed decision.  This is not being done.  The IH is allowed to obtain additional information only in “the most complex cases” and at their discretion.  If a claims examiner restricts information there is no way to determine what is complex and what is not.  Claims examiners are not medical or scientific professionals and may not be able to ascertain what information is important and what is not.

 

The revision places Circular 15-05 - Occupational Exposure Relating to Asbestos into the Procedure Manual.  The Board has recommended against this circular because it is scientifically inaccurate.  It has no place in the Procedure Manual in its current form.

There are other issues that Deb and I found concerning. 

·         DEEOIC deleted guidance to the claims examiners (CE) on how and when to follow up with the Department of Energy if the Document Acquisition Request is not received within 30 days.  Instead, the revision instructs that if there is no response from DOE or no records found the CE develops exposure by other means of development.    

·         Does not spell out that “Causation” also includes “aggravated” or “contributed to”.  This has historically caused problems for claimants and resulted in valid claims being denied.

·         Requires claimant’s doctor to work outside of their field by requiring they offer “accurate understanding of an employee’s toxic substance exposure; discusses an employee’s medical history and pertinent diagnostic evidence; and applies reasonable medical judgement informed by relevant, creditable medical health science information, as to how the exposure(s) at least as likely as not significantly contributed to, caused or aggravated the employee’s claimed conditions”.  This is so specialized that most claimant’s doctors are unable or unwilling to take the many hours required to provide DEEOIC with the highly specific letter DEEOIC requires.  Claimants’ inability to obtain the highly specialized letter DEEOIC requires has led to many valid claims being denied. 

To be fair, we did identify two positive changes to the manual,

·         Definition of Occupational Health Questionnaire (OHQ) is expanded.  It is no longer described “as piece of evidence” but expands the definition to being “an important document”.  The addition describes what type of information can be found in the OHQ.

·         Affidavits now considered for proof of toxic substance and exposure potential.

As far as we can tell, DEEOIC chose to ignore the most of the Board’s work and recommendations. At least so far.  Perhaps they will do so in the future. But if they already accepted the advice on the OHQ it doesn’t seem likely that they will accept the other recommendations.

This is so unlike the process with Advisory Board on Radiation and Worker Health.  This Board advises the National Institute for Occupational Safety and Health (NIOSH) on dose reconstruction and Special Exposure Cohort (SEC) petitions.  NIOSH presents dose reconstruction methodologies and positions on SEC petitions to the Board.  The Board debates and makes a recommendation to the Secretary of Health and Human Services.  At no time does NIOSH, after the Board submits its recommendation to the Secretary, interfere or make a separate recommendation to the Secretary.  At least as far as I know.  And the reason is I only remember three times in the 16 years this program has been in existence that the Secretary overruled the Board’s recommendation.  Once was when a facility was no longer considered a covered facility and twice when the petitioner appealed.

It is clear that DEEOIC feels no obligation to follow the Board’s scientific expertise and recommendations because there is no enforcement “teeth” to the Board.  It is unfathomable that DEEOIC would find it acceptable to ignore or outright reject the recommendations of the top experts in the United States when it comes to occupational illness.  Since DEEOIC ignores the Board’s oversight it is imperative that Congress provide an enforcement obligation on DEEOIC.

 

 

 

 

 

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EEOICPA Advisory Boards Deserve Thanks

Enough has not been said about the work of the two advisory boards who review the implementation of the Energy Employees Occupational Illness Compensation Program (EEOICP).  I need to accept part of that blame. I failed to publicly commend the boards for their dedication to the responsibilities they accepted and took for granted the many hours and hard work the members put in to fulfill those responsibilities.  I will correct that oversight now.

Both boards are mandated by law and are composed of highly qualified individuals.  The membership is balanced with individuals representing the scientific fields and those of the workers, claimants and advocates communities. Both boards strongly encourage participation by the stakeholders either during the scheduled comment periods at the face to face meetings or by sending suggestions, concerns or observations to them electronically or through the U.S. mail.

You might ask, what do these boards do?  Well, let me explain.

The Board that advises the National Institute for Occupational Safety and Health (NIOSH) is the Advisory Board on Radiation and Worker Health (NIOSH Board).  This board was established by the original legislation enacted in 2000.  Their responsibility is to ensure that the dose reconstruction models developed by NIOSH are scientifically valid.  The NIOSH Board is also responsible for recommending to the Secretary of Health and Human Services additional sites to be included in the Special Exposure Cohort.

Don’t let the nature of the NIOSH Board discussions deter the stakeholders from listening to the meetings.  Yes, the Board’s discussions involve some pretty heavy scientific terminology like “the 95th percentile” or the “Super S plutonium compound”. But one of the things I admire this board the most for is that they insisted that NIOSH’s presentations during full board meetings and reports to the board be written so that a layperson with some knowledge of the sites could follow along.  Granted, it’s still a complicated issue but my eyes no longer glaze over as they used to when listening to highly scientific discussions.

You can learn more about the NIOSH Board here, https://goo.gl/G487ax

It took a lot longer than I wanted but Congress legislated an advisory board for the Department of Labor (DOL) the end of 2014.  This Board is set up differently than the NIOSH Board.  The President selects members to serve on the NIOSH Board.  The DOL Board, however, allowed the public could nominate candidates to serve.  That took a while but the results were worth the wait. 

The Board’s website, https://goo.gl/Z9E3Lh, explains their responsibilities,

The Advisory Board on Toxic Substances and Worker Health will advise the Secretary of Labor with respect to technical aspects of the EEOICPA program:

the site exposure matrices of the Department of Labor;

medical guidance for claims examiners for claims under this subtitle with respect to the weighing of the medical evidence of claimants;

evidentiary requirements for claims under subtitle B related to lung disease; and

the work of industrial hygienists and staff physicians and consulting physicians of the Department and reports of such hygienists and physicians to ensure quality, objectivity, and consistency.

 

I was worried that, since some of the board members were not familiar with EEOICP, it would take some time for them to get up to speed on the issues and the program itself.  Those worries were unfounded.  The Board dove right in and six months later they provided guidance on several areas DOL sought the Board’s advice.  You can read more about the Board’s recommendations on Deb Jerison’s Radioactive Daughter’s blog, https://goo.gl/eFhFWD.

The stakeholders have much to be grateful for with having these two boards provide guidance to NIOSH and DOL. Many people may not realize but most of the board members have responsibilities and obligations outside of this program.  I thank the board members for their commitment to carry out their duties and their continued assistance to the agencies.

 

 

 

 

 

 

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DEEOIC doesn't get what transparency means

Sometimes, I can’t help but feel that the Department of Labor’s Office of Worker’s Compensation Program’s Division of Energy Employees Occupational Illness (DEEOIC) holds meeting after meeting or, at the very minimum, exchange hundreds of emails developing ways to keep the compensation program stakeholders in the dark as often and as long as possible.

DEEOIC never notifies the public (or even their advisory board, so far, for that matter) when they issue a new Final Bulletin or Final Circular or when they change their procedure manual.   Let me clarify that, yes, they do post the changes to their website but one needs to check every day to see if anything new has been added.  This is so unlike the National Institute for Occupational Safety and Health’s Division of Compensation and Analysis Support’s (NIOSH)practice to notify anyone who signed up for their email distribution list of any changes or the addition of new information or documents.

The advocates actually requested DEEOIC to institute such a policy but apparently they decided not to do so.  Instead, I recently decided to check each and every day to see if a new policy or other information has been posted to their website. 

These policy changes (some of which we think should have gone through the rule making process) are almost never posted before 2 weeks after the claims examiners have them. Sometimes the posting is a month later.  Does that sound like a fair playing field to you?  Does that sound like DEEOIC is being transparent, especially when you compare it to NIOSH’s practice?

This is a longstanding complaint with the advocates.  But what causes me today to write this blog didn’t come from DEEOIC’s website and my constant monitoring of it.  Please don’t misinterpret this as patting myself on the back. Part of me resents that because, trust me, there are other things I’d rather be doing.   It came from a Google Alert I received on the program. 

DEEOIC is soliciting comments on the forms used by the compensation program.  That’s great!  They are engaging the public.  Except the notice is still not published on their website a week after the notice was published in the Federal Register.  If I didn’t have a Google alert set up, I still wouldn’t know about it.

But what is worse is that the forms are not easily accessible to the public.  ANWAG’s letter here, http://www.eecap.org/PDF_Files/ANWAG/2016-11-4_ANWAG_Howie.pdf, explain the problems in more detail. 

DEEOIC continues to this day to assert this program is claimant-friendly.  It’s hard to believe that claim when it is so difficult to obtain forms they want comments on.  I mean, really, how hard would it be for them to insert two links into the Federal Register Notice?  One for the current forms and one for the proposed forms? 

DEEOIC must do much, much more if they ever want to gain the trust of the stakeholders. 

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ANWAG objects to characterization that their work dishonors sick workers

When a government employee accuses people of dishonoring their friends and relatives because they question poor government actions, that employee is usually very misguided, as was the case with Mr. Howie.  In truth, it seems he is attempting to squash all criticism of his program by focusing on the messengers rather than his team’s record of denying health claims of sick workers.    

Members of the Alliance of Nuclear Worker Advocacy Groups (ANWAG) are concerned by the statement made by Leonard Howie, III, Director of the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) in the January 22, 2016 article, “Nuclear workers feel new policy will make it harder to win compensation.”

In response to the advocates’ criticism to one of the guidance documents issued last year by the Division of Energy Employees Occupational Illness Compensation (DEEOIC), Mr. Howie stated,

"This is not an adversarial program,” Howie said. “Our goal is to accept as many claims as we can under the law. Any implication to the contrary dishonors the men and women who spent their lives and sacrificed their health in service to this nation, and degrades the dedication shown by our staff every single day to provide compensation and medical benefits for those affected.”

It was a surprise to ANWAG that Mr. Howie feels that concerns and objections about certain policies when raised by the advocates “…dishonor the men and women who spent their lives and sacrificed their health in service to this nation…”

ANWAG is aware that Mr. Howie has only served as OWCP’s director for approximately one year.  Perhaps Mr. Howie is not aware of the pedigree of the majority of the advocates.  The advocates consist of three main groups.

First and foremost, some advocates are former workers.  These workers have developed disabling and possibly fatal diseases because of their exposure to toxic substances while employed at the Department of Energy’s nuclear weapons facilities.  Many of these former workers were instrumental in educating Congress back in the late 1990’s on the need to have this compensation program enacted.  These workers, some of whom were quite young when the illness(es) developed, were no longer able to be gainfully employed let alone enjoy the rest of their productive years unaffected by the illness(es).

The second set of advocates – again, some who have advocated before Congress – are the family members of the workers affected.  These are the spouses, the sons, and the daughters of sick and deceased workers.  They are/were on the front line caring for the dedicated workers whose health was compromised by the exposure to toxic substances.  They have seen, first hand, how the poisons their loved ones were exposed to have ruined the worker’s life.  The family members have sat by the worker’s bedside while the worker was dying.  The family members have picked up the worker when they were too weak to stand.  They have held their heads while the effects of chemotherapy wracked the body. 

The last set of advocates are those who have no direct family ties to the workers but have come to know and respect them for their dedication in protecting our country.

None of these advocates would ever dishonor “…the men and women who spent their lives and sacrificed their health in service to this nation…” 

Perhaps, Mr. Howie is unaware of the history behind the advocates’ concern that this directive.  Ten years ago, a memo between the former director of OWCP and the White House Office of Management and Budget surfaced. This memo offered suggestions that would help contain the growth in benefits.  (See the December 7, 2015 blog for the details).

The department has shown disdain for the workers and their plight for many years.  In an edition of the claims examiners’ training manual, this disrespect was evident when fictitious names were used in examples.  The name Freddie Kruger was used for workers and Dr. Hannibal Lecter was used for claimants’ personal physicians.  http://www.cbsnews.com/news/manual-made-jokes-about-sick-atomic-workers/

In addition, the Director of DEEOIC stated before the Advisory Board on Radiation and Worker Health that claimants will lie to receive the compensation.  This statement is unjustified by evidence from the program and demonstrates the federal government was responsible for dishonoring the claimant community.

The advocate community has endeavored for years to work with DEEOIC to ensure DEEOIC’s administration of EEOICPA not only meets the intent of congress, but that the workers and their families are treated fairly. 

 
This statement by Gary A. Steinberg, then OWCP Acting Director, acknowledged this work in an email dated May 28, 2014.

 

Thank you for your note regarding the actions from our joint meeting in Denver [on February 20, 2014].  I believe we are all committed to completing the action items in a timely manner.  As we look back to the meeting, we believe it represented a positive step forward in our outreach efforts and intent to have a more open dialogue with you and your colleagues about ways to improve the EEOICPA program.  As my friend Glenn Podonsky put it, the Denver meeting should serve as a “turning the corner” event for the program.  I hope that you share the same sentiments regarding the improvements in communications that we have achieved over the past few years.

 

It is obvious that Mr. Howie is unaware of this collaborative history.  Otherwise, it would be difficult to understand why Mr. Howie would accuse the advocates of working against the injured workers’ best interest.

The advocates will continue to work with DEEOIC to correct errors in the administration of the program regardless of DEEOIC and OWCP’s past actions and misstatements.  This will be especially important before DEEOIC implements any changes to the program.

 

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Is EEOICPA history repeating itself?

I have often been described by supporters as a person who has a wealth of knowledge about the Energy Employees Occupational Illness Compensation Program (EEOICPA).  I guess advocating for 20 years will do that to a person.  After reading the Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DEEOIC) proposed rule changes, I couldn’t help but remember the infamous OMB passback memo of 2005. 

For those of you who weren’t involved in 2005/2006, there was an exchange of ideas between the former director of DOL’s Office of Workers Compensation Programs (OWCP) and the White House’s Office of Management and Budget (OMB).  The memo offered options that could control the growth in compensation benefits due to the possible expansion of the Special Exposure Cohort.

Chairman John N. Hostettler, Chair of the House Judiciary Subcommittee on Immigration, Border Security and Claims held five hearings on this memo.  In his opening statement on March 1, 2006, Congressman Hostettler stated:

“The findings in the law as enacted state in part that, ''since the inception of the nuclear weapons program, a large number of nuclear weapons workers at sites at the Department of Energy and at sites of vendors who supplied the cold war effort were put at risk without their knowledge and consent for reasons that, documents reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay. To ensure fairness and equity, the civilian men and women who over the past 50 years have performed duties uniquely related to the nuclear weapons production and testing programs should have efficient, uniform, and adequate compensation for beryllium-related health conditions and radiation-related health conditions.'' That, in fact, was and still is congressional intent. This intent was not created out of speculation, but out of documented proof of the Government's attempt to hide the truth from workers.” (Emphasis added)

I’m not going to go into details about the memo or the hearings.  A good summary of the issue can be found here, http://www.lajicarita.org/07oct.htm, and I provided links to four of the five hearings transcripts at the end of the blog.  I can’t seem to locate the fifth.

My point in resurrecting this issue ten years later is this – is there still a push to control or even reduce the cost of the benefits?  Is the reason to change the date of injury for survivor claims to the date of death an attempt to save money?  Is the reason that multiple impairment ratings can be submitted for one claimant be an attempt to reduce the compensation benefits?

I found this document last night, a letter from the OMB providing guidance to the federal agencies for the FY 2017 Budget, so you tell me.

https://www.whitehouse.gov/sites/default/files/omb/memoranda/2015/m-15-11.pdf

“Mandatory Budget Proposals.  Your request for mandatory spending should reflect the same rigorous review as you undertake for discretionary spending.  OMB will work with you over the next several months to identify areas of mandatory spending that merit special scrutiny, including reviewing the mandatory proposals included in the FY 2016 Budget.  Agencies are particularly encouraged to identify new mandatory savings proposals as part of their FY 2017 budget submissions.  In addition, if your budget request includes any new mandatory proposals that are not at least budget neutral, they should be accompanied by new mandatory savings proposals to offset the costs.”

 

 

First Hearing March 1, 2006

http://commdocs.house.gov/committees/judiciary/hju26290.000/hju26290_0f.htm

July 20, 2006 hearing

http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg28783/pdf/CHRG-109hhrg28783.pdf

November 15, 2006 hearing

http://commdocs.house.gov/committees/judiciary/hju30840.000/hju30840_0f.htm

Dec. 6 2006 hearing

http://commdocs.house.gov/committees/judiciary/hju31312.000/hju31312_0f.htm

 

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Sick workers could be betrayed again!

How many times must the sick nuclear weapons workers or their survivors endure betrayal after betrayal by the government they worked for protecting our country?  The latest injustice comes from the Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DEEOIC) through their proposed changes to the regulations. 

Deb Jerison of EECAP has written two blogs on the subject so far, http://www.eecap.org/EECAP_blog.htm.  But the changes to the current rules is so extensive that in order for the public to understand the implications there needs to be more than one blog addressing the issues.

However, the changes can be summarized succinctly – an attempt to reduce the costs of the benefits.  It’s that simple.  Why else would DEEOIC want to change the date of injury for survivor claims from the date of the last day of exposure to the date of death of the worker?  If this change goes into effect, the survivors will not be able to recoup any out-of-pocket medical expenses the worker incurred during the illness.  For instance, a worker develops one of the 22 specified cancers but is denied coverage under Part B.  After the worker dies, the site becomes a member of the Special Exposure Cohort.  The survivors are eligible for the monetary compensation of $150,000.00 but would not be able to recoup any of the medical expenses.  Those expenses could be in the thousands and thousands of dollars. 

Another example is the proposal to have multiple impairment rating reports submitted for a worker.  This would allow DEEOIC to choose the lowest rating supplied in order to save money. 

This is wrong.  This is against the intent of the law.  The law was enacted to repay and care for the workers because they were placed in harm’s way without their knowledge or consent. 

A few advocates participated in a listening session with DEEOIC last January about the proposed rules.  According to the invitation, DEEOIC was considering the following broad issues for the proposed changes

  1. Review to process to challenge dose reconstruction at the Final Adjudication Branch

  2. Enhance its ability to efficiently provide appropriate medical care for beneficiaries and to better explain the increased automation of the medical authorization and billing processes.

  3. Modernize the process used to investigate whether medical providers are engaging in appropriate activity and the steps DEEOIC will take to exclude providers when they act in ways that are harmful to the beneficiaries.

  4. Make existing policy decisions more transparent to the public. 

Number 4 is giving the advocates a lot of heartburn, but you can read about that in Deb Jerison’s blog.

We were excited about DEEOIC developing a process to challenge dose reconstructions, but the changes in the proposed rule fell short.  The ability to have a claim returned to NIOSH for rework is still left to the discretion of the hearing officer.  Which means the hearing officer can ignore the objections if he or she wants to.

Numbers 2 and 3 concerned us last year because of the obvious cost-saving aspects.

The advocates offered a few suggestions for DEEOIC to consider before they published the proposed rules.  Some are listed below.

  1. Adopt forms from the Federal Employees Compensation Program to be used for durable medical equipment claims.

  2. Add another step in the claims appeal process by allowing a claimant the opportunity to have the objections heard by an Administrative Law Judge.

  3. Revise Section 30.111 and remove the requirement that the claimant must provide the preponderance of the evidence for each and every aspect of the claim.  The reason for this is that it is often impossible for a claimant to provide the preponderance of evidence of exposure.  DOE did not monitor for many of the toxic substances.

So far, I have not seen that DEEOIC adopted any of these suggestions and that is so very sad.  Suggestion #1 was an easy one to adopt.  It would save time for the physicians and the suppliers and it’s a form accepted by the Office of Workers Compensation Programs, so why not? 

If DEEOIC is unwilling to accept such a simple suggestion what is the likelihood that they will accept the recommendations provided by the Advisory Board on Toxic Substances and Worker Health?  I’m sure that will be the subject for a future blog once the board is finally seated.

These proposed rules are a travesty.  I join Deb Jerison and EECAP in her call to DEEOIC to withdraw this rule making.

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Federal lawsuit filed to protect Hanford workers

On this Labor Day, it is appropriate to send a heartfelt thanks to Washington State Attorney General, Bob Ferguson, Tom Carpenter of Hanford Challenge, http://www.hanfordchallenge.org/,and Pete Nicacio, Business Manager for United Association of Steamfitters and Plumbers, Local 598 for taking action on behalf of the Hanford workers who have been exposed to toxic vapor at the infamous Tank Farms, http://kng5.tv/1Nb7lHB. Over the past year, more than 50 Hanford workers were needlessly exposed to sometimes unidentified toxic substances during the course of their employment. The State of Washington warned the Department of Energy (DOE) last year that steps must be taken to protect the workers. But as recently as last month, the warning failed as additional workers were exposed. Attorney General Ferguson said “Enough is enough,” Hanford Challenge and Local 598 filed separate lawsuits in federal court to force DOE and their Hanford Contractor, Washington River Protection Solutions (WRPS), to end the decades-long unnecessary worker exposures. The lawsuits ask the court for a number of actions including: •Immediately institute protective measures for the workers •Timely implementation of the recommendations and changes detailed in the 2014 Hanford Tank Vapor Assessment Team Report. Comprehensive medical monitoring for past and present Hanford Workers. •Communication of complete information about exposure incidents to workers and the public. The Alliance of Nuclear Worker Advocacy Groups applauds this unprecedented action. DOE issued a statement, http://bit.ly/1PXcn80, stating that they are committed to protecting the employees and are working with WRPS to address the exposures at the Tank Farms. I hope this is not just lip-service from DOE. The workers must be protected. DOE must ensure that their contractors, not only at Hanford but at all of their facilities, abide by all the safety and health regulations that are designed to keep their workforce safe from unnecessary exposures. Thanks again to the State of Washington, Hanford Challenge and Local 598 for stepping up to the plate on behalf of the Hanford workers.
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Document proves Rocky Flats workers told the truth about site conditions

People have shared many documents with me over the years.  All have been important to one degree or another.  Sometimes there is only one phrase or sentence in a fifty or a hundred paged document that will provide a scintilla of information that will send me off on a search.  That happened with the Rocky Flats SEC petition 0192.  Originally, it was the National Institute for Occupational Safety and Health’s Division of Compensation and Analysis Support (DCAS) position that there was no production of neptunium production that occurred at Rocky Flats.  It took a little bit, but I found a couple of documents, complete with pictures, which detailed the neptunium production at Rocky Flats.  That evidence helped expand the Special Exposure Cohort to 12/31/1983.

This document, http://bit.ly/1LSCsXr, however, contains the richest information that may help the Rocky Flats claimants under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).  It is an audit conducted in 1988 on the safety and health issues in a variety of Buildings at Rocky Flats and reported to the Rockwell International’s Rocky Flats Plant Manager, Dominic Sanchini. This document should be able to help with the SEC petition and also Part E claims.  Many thanks to Eco-Ed, Inc., for providing this important document and to Deb Jerison for posting this. 

I remember during the first SEC petition, #0030, many workers came forward and told NIOSH and the Advisory Board on Radiation and Worker Health that air monitors were recalibrated so that alarms would not sound frequently.  Allow me to cite a few sentences that may help the SEC petition.

Page 3 -

”Neutron criticality detectors are not calibrated, and the stickers found on some of them are not readable. (Rad . Instr. personnel state that a calibration program is in development).”

 

Radiation instrumentation personnel state that one to two times daily, a selective alpha air monitor is found in the building with an improper setting, greatly increasing the level of radiation required to sound the alarm.”

Page 6 –

“Selective alpha air monitors are found with improper setting; without airflow, without adequate airflow, without airflow indicator lines, and in one case installed adjacent to an open emergency chemical shower.”

 

“Eight items of radiation instrumentation are found with calibration and airflow problems. Alpha mets are found without probe holders.”

 

Page 7 –

 

“Large areas of gloveboxes ports are unprotected by lead shields. On at least one glovebox containing shields, the inward slant of the bottom of the box and hinging of the shields on the upper side of the ports result in shields which will not stay closed.”

 

 

 

Page 10 –

 

“A selective alpha air monitor is found with indication of inadequate air-flow.”

 

“Four air sampling heads are observed without filters.”

 

Do you get the idea?  And this is only the first ten pages.  It is my opinion that if the monitoring equipment was calibrated incorrectly the radiation control technicians and health physics personnel would not know if there was a serious contamination and those potentially exposed workers may not have been bioassayed. 

 

This document is also important for Rocky Flats Part E claims.  The Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DEEOIC) requires that claimants provide evidence “… of exposure pathways in addition to evidence indicating the intensity, frequency and duration of such exposure(s) (see 17 (C) http://1.usa.gov/1vFrJbs). This evidentiary requirement is almost impossible for the claimant or a personal physician to satisfy.” (DEEOIC Interim Advisory Board http://bit.ly/1AG1TRT)

 

As you will see from the examples below, even Rockwell International management did not always know what was present. 

 

Page 2 –

 

“…long term employee exposure to unlabeled possibly contaminated waste…”

 

“…contractor personnel find that Rockwell personnel are placing bags of unlabelled and unmonitored waste in a contractor construction area after hours…”

 

Page 4 –

 

“Containers for waste, chemicals and liquids are found throughout without labels and without lids.”

 

Page 9 –

 

Drums of chemicals, adhesives, lubricants, alcohol, sulfuric acid and unidentified liquids are observed left outside with poor labelling and without labelling.”

 

Page 19 –

 

“As observed in other areas, labelling of chemicals, process materials and solvents is inconsistent. Some labels were handwritten or typed years ago and are difficult to read. Hazard labelling is spotty or non-existent. Some areas have unlabelled filled containers. One bottle with a marker label "OX

OUT ACID CONTENT” is found sitting in spill of a green liquid in a cupboard under a process drain. A bottle in a janitors' closet reads, “CONTAINS BERYLLIUM .”

 

Page 27 –

 

“Noxious fumes emanate from a distillation system in Rm. 224, causing discomfort in the proximity of the equipment; no hood requirement exists, no cover, no hazard label.”

 

“Chemical bottles in some hoods have faded labels and are not legible.”

 

What really saddens me is that workers have relayed all of this information to the agencies.  Their testimony was discounted because there was no “proof”.  I hope this document provides them with some vindication.  It is so ironic that these workers were provided with top security clearance yet their word is doubted by the agencies.

 

I have no idea if similar documents exist for other sites or if the issues identified at Rocky Flats was common to all sites.  But DCAS and DEEOIC need to rethink their position on Rocky Flats.   It is obvious that policies and procedures were not always followed at Rocky Flats.  It doesn’t matter, at this point, whether the violations were because production was placed over safety concerns or some workers were not properly trained.  What matters is that claimants from the Rocky Flats site be provided with an honest and fair consideration of the SEC petition and Part E claims.

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Every breath you take

Today, I circulated this article published in the Dayton Daily Press, “Billions Paid to Sickened Energy Plant Workers” http://bit.ly/1GhwuMt.  It was less than an hour after I emailed this article before I received a call from a Rocky Flats claimant.  Mind you, the call came in on Sunday morning.  His greeting was, “You can blame DOL for my death when I die.” 

Naturally, I was upset and asked what was wrong.  He told me that he has been waiting for two months for the Department of Labor’s Division of Energy Employees Occupational Illness Compensation Program (DEEOIC) to approve his necessary oxygen therapy equipment.  Two months!!  This claimant took exception to this statement made by DEEOIC,

It can be really hard for them to breathe,” Leiton said of beryllium disease. “They need oxygen, medications and to be monitored. It can be real tough for them.”

He said he wakes up in the middle of the night with problems breathing. If DEEOIC understands the need for claimants to have oxygen to breathe because of their covered disease, why is this worker still waiting  for this lifesaving equipment?

Back in October of 2013, DEEOIC issued a Final Bulletin on how claims for durable medical equipment (DME) would be processed.  This directive not only addressed items such as wheel chairs and hospital beds but also the equipment necessary to provide the very essence of life – oxygen – was subjected to this very complicated process.

A few months after this bulletin was released, I and other advocates received numerous complaints from claimants about the problems they were experiencing with having their oxygen equipment paid for by DEEOIC.  These claimants had been approved for years under the program and never once had a problem.  Claimants told me DEEOIC denied their previously approved equipment, with some claimants relating that the supply companies were forced to bill the claimant for thousands of dollars because DEEOIC found that the rationalization by the physician was inadequate.  Other claimants told me they just decided to let Medicare pay for this equipment because they didn’t have the strength to fight the system. 

Two months ago, the advocates had their second annual meeting with the federal agencies responsible for the program.  One advocate suggested that DEEOIC develop a form for durable medical equipment, similar to what is used for the Black Lung and Federal Employees Compensation programs.

Black lung certificate of medical necessity http://systems.acs-shc.com/DOL-PROD-DOC/CM-893.pdf

FECA form http://systems.acs-shc.com/DOL-PROD-DOC/DME_form_011205.pdf

That idea was rejected and instead this Final Bulletin was issued last month by DEEOIC, http://1.usa.gov/1KeucQJ

I understand DEEOIC needs to be vigilant and prevent fraudulent charges under the program and I applaud their efforts. But we’re talking about equipment that supplies oxygen to workers with lung damage. 

These workers have been diagnosed with a lung condition like chronic beryllium disease or silicosis and who have been accepted by DEEOIC that these conditions were the result of their work place exposures.  It should not be necessary for a personal physician to write a fully rationalized opinion on why the worker needs oxygen.  A simple form as mentioned above could supply the claims examiner the relevant documentation that the worker needs the oxygen deliver system. 

These workers are not scamming the system. DEEOIC already determined that. They are sick.  They have a firm diagnosis of a lung condition and have been accepted by DEEOIC.  They are sick and should not need to worry about whether they will receive the medical equipment and services needed to sustain life and improve its quality.

I urge DEEOIC to revise its policy and make it simpler and quicker for claimants to have their medical necessities approved.  It should not take months to approval.  There should be no delays.

 

 

 

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Welcome 2015 - I think!

Wishing everyone a healthy and happy New Year!

I am excited about new advisory board to the Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DEEOIC).  It’s been a tough road for the advocates for the Department of Energy’s sick nuclear weapons workers.  I remember one year, must have been 2010 or 2011, Cold War Patriots held an advocates meeting in the D.C. area.  One of the activities was to visit Congress to urge them to include the Udall/Alexander legislation in the National Defense Authorization Act (NDAA).  This legislation has always been the vehicle for EEOICPA.  We were split into groups so that we could reach as many congressional offices as possible.  I remember running into one group of advocates after our first meeting of the day.  They informed me that there would be no amendments attached to NDAA that year.  I was not a happy camper.  But I figured this is how legislation works.  You never get it on the first try.  We needed to educate Congress better.

Cold War Patriots and advocates continued to visit Congress since 2010 explaining the dire need for such an advisory board.  In 2013, we came “this” close to getting the amendment attached to NDAA.  It came down to the wire but the amendment was rejected because an offset to fund the board could not be found.  To say that I, and maybe some other advocates who worked so hard on this issue, was devastated would be an understatement.  The congressional staffers I worked with did their best and promised to try again in 2014.

The legislators kept that promise.  Again, Senators Mark Udall and Lamar Alexander and Congressmen   Ed Whitfield, Ed Perlmutter and Jared Polis championed the cause of the sick workers or their survivors.  While it also came down to the wire again, they were successful in convincing the other responsible offices for NDAA (House and Senate Armed Services Committees, for example) on the need for this advisory board.  To those individuals involved in making this happen, you have my deepest appreciation.

Yes, the claimants now have the board legislated.  This board will advise DEEOIC on the Site Exposure Matrix (SEM,) which should include reviewing the health effects of toxic exposure, review of Part B lung claims, provide medical guidance to the claims examiners and review the DOL expert reports to ensure quality and consistency.  It’s great!  As I said, I’m excited.  There are so many qualified and knowledgeable people who are fair in their judgments but who are also committed to seeing this compensation program administered as Congress intended who can serve on the board.  I cannot wait to see President Obama’s appointments.

Unfortunately, unlike the benefits provided claimants and administrative costs to adjudicate claims under EEOICPA or even the board that offers advice on dose reconstruction and Special Exposure Cohort petitions, funding for the DEEOIC board is not mandatory.  Funds need to be appropriated every year. ANWAG and DIAB sent letters to DOL this week requesting that sufficient funds be requested in their budget.  Other advocacy groups will be sending similar letters.  Anybody interest in a bake sale? (This is not my original ideaJ).

The downside already for 2015 is what happened in the House today.  I don’t fully understand the procedure except that I know that the effects of this rule could/will reduce the benefits a disabled worker receives from Social Security Disability Insurance (SSDI) by 20%, http://www.offthechartsblog.org/house-rule-could-hurt-vulnerable-disability-beneficiaries/

Many of the sick DOE workers are on SSDI because they are no longer able to work because of the diseases they developed from working daily in the toxic soup at the nuclear weapons facilities and they are unable to qualify for EEOICPA compensation. The ANWAG blog from June 22, 2014 mentions my recollection of how the wage loss amounts were developed ten years earlier. 

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.

I can only speak to the SSDI claimants who worked at the DOE sites – what the House did today is deplorable, especially for those workers who were denied wage loss. Reducing the paltry sum these sick and dying workers receive under SSDI is an affront to the commitment these workers made to our country.

In addition, retirees from the Rocky Flats and Oak Ridge facilities have had their insurance policies changed.  I have heard reports where, despite DOE’s past assurances,  the health insurance premiums will increase, sometimes to the extent that the premiums are too exorbitant and the life-saving medication placed out of reach for those on SSDI.

These workers’ lives were sacrificed by working to keep America safe during the Cold War without their knowledge or consent.  We must never forget that.  All must be done to compensate them fairly and not deny them what was promised.

I look forward to the DEEOIC advisory board.  I am hopeful that funding will be located to have the members start as soon as they are seated.

I am not looking forward to the future fight for SSDI benefits.  Reducing these benefits is wrong, wrong, wrong.

 

 

 

 

   

 

 

 

 

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