DEEOIC responds to advocate's call for investigation
One of the best things about the Alliance of Nuclear Worker
Advocacy Groups (ANWAG) is how individual members go off to investigate an
issue on their own and then share their findings with the group.
A case in point is Donna Handâ€™s request to Department of Labor (DOL) Secretary Acosta for an investigation into the Division of Energy Employees Occupational Illness Compensation Program (DEEOIC). Her letter and the response from Rachel Leiton, the Director of the program, can be found here and here .
I wonâ€™t be getting into each topic Ms. Hand presented to Secretary Acosta but I want to call attention to a couple of the responses by Ms. Leiton which cause me some concern. I was hoping that I could fit it into one blog but thatâ€™s not possible. Some of the issues are so very complicated. Please remember that this is my own person opinion and I could be wrong. I welcome a civil exchange of opposing views.
The most serious concern I have, and the only one I will address in this blog, is Ms. Leitonâ€™s explanation of the standard of causation. The law states that a claim can be paid if it is proven that exposure to a toxic substance is â€œat least as likely as not a significant factor in aggravating, contributing to or causing the illness,â€.
Ms. Leiton explains that,
The term â€œat least as likely as notâ€ means at a minimum that â€œsomething is at least as probable as it is not probable,â€ or that there is at least a 50% chance or more. Thus, claims under Part E of the EEOICPA must be backed by empirical and persuasive evidence that establishes not only the potential for exposure, but also both the significance and probability of exposure in aggravating, contributing to, or causing a claimed illness.
I am embarrassed to admit that I had no idea what the word â€œempiricleâ€ meant and had to look it up. For those of you in a similar situation, it means â€œverifiableâ€. So, in order to get approved for a Part E claim DEEOIC is requiring absolute proof that a worker was exposed to one or more toxic substances.
So does this mean that affidavits provided by coworkers have no value?
Getting oneâ€™s head around what â€œat least as likely as notâ€ means can be difficult. It is for me, anyway. Because this legislation is remedial in nature, , which means it corrects past wrongs, I think that the legislation gives the benefit of the doubt to the claimant.
For those of you who donâ€™t know about the history of this legislation, for decades the Department of Energyâ€™s (DOE) contractors would fight tooth and nail that any disease developed by a worker was the result of working at DOE facility. This legislation was intended to correct that situation and provide medical and financial compensation to the workers.
But I am not an attorney. But Iâ€™ve been involved with this program since before it was enacted and I think Iâ€™ve picked up a thing or two.
The former DEEOIC Medical Director, Dr. Eugene Schultz, developed a manual for the District Medical Consultants, This was before DEEOIC decided to contract that service to an outside company. Page 8 of the manual provides guidance to the consultants. The guidance includes how to interpret the law for causation. It is my understanding that Dr. Schultz cleared this with the DOL attorneys. And that makes perfect sense..
The DMC Manual states that the standard of causation falls
somewhere between â€œpreponderance of evidence (usual standard in civil cases and
usually means more likely than not)â€ and â€œreasonable suspicionâ€.
So, which is it - exposure was at least 50% responsible for the disease? 50% of what? Would providing evidence that exposure was 45% responsible be sufficient to overcome the "reasonable suspicion" standard? And how does the legal term "significant factor" come into play when it deciding whether exposure to a toxic substance contributed or aggravated a disease?
I am concerned by Ms. Leiton's quote that "at least as likely as not" means, â€œsomething is at least as probable as it is not probable,â€. She offers no citation for this phrase. I have searched for the definition online and have not been able to find that definition. Is there a legal document this quote came from? Why wasn't the source cited?
Ms. Hand and ANWAG will follow up with DEEOIC for their response and we will share any information received.
I hope to get Part 2 of this blog up within a week. So much research to do!
What's in those 5000 boxes of Rocky Flats documents?
You may remember that a little over a year ago that I learned that over 5,000 boxes of Rocky Flats documents were â€œfoundâ€, I guess youâ€™d say, at Los Alamos National Laboratory (LANL). The National Institute for Occupational Safety and Health (NIOSH) requested the indices of the boxesâ€™ contents from LANL. From that list they selected approximately 40 boxes to determine whether there was evidence that magnesium thorium alloy was present at Rocky Flats.
I filed a Freedom of Information Act (FOIA) request for the unclassified indices LANL provided to NIOSH. It took quite a while, but I finally received the indices. They are almost 400 pages long. You can find them here, right below the NIOSH paragraph, http://www.eecap.org/Covered_Facilities/Colorado/Rocky_Flats.htm
When filing the FOIA, I requested and was granted a fee waiver by the National Nuclear Security Administration (NNSA). One of the reasons a federal agency will grant a fee waiver is if the requester can demonstrate the ability to disseminate the information to the public who wish to understand the inner workings of the government.
The indices show that documents for Mound, Los Alamos, and the Kansas City Plant are contained in the Rocky Flats collections. I can also see how the indices would be interesting to those outside of the compensation program. I follow a couple of people on Twitter who are working on their doctorate in nuclear physics/weapons. Anyone can file a FOIA request for any interesting documents. Just reference NNSA FOIA control number CON 18-00011-KM.
Itâ€™s important to remember that only the indices have been unclassified. The contents of the boxes may not be. In fact, some boxes are labeled â€œSigma 15â€ which is a level of security clearance. Some are marked â€œconfidentialâ€ and there are some titles where one could readily assume that they will not be released.
But there are others that hold promise for Rocky Flats claimants. For instance, there are files of neptunium and thorium analyses dated 1987, a year when those radionuclides should not have been processed at Rocky Flats.
Next step - whittle down the number of boxes I want to file in my next FOIA request.
Word to the Wise â€“ White card holders, check whether your physician is still participating in programPlease check https://owcpmed.dol.gov/portal/providersearch/agreement.do to see if you physician is still enrolled as an approved medical provider.
My husband was scheduled for a â€œroutineâ€ diagnostic procedure tomorrow. Itâ€™s something he has done every couple of years to check on the status of his covered condition. It was important to have this procedure completed quickly since he has increased symptoms.
A consultation was held with the physician performing the procedure and the date was arranged. 20 hours before the procedure, in other words today, we received a call from the physicianâ€™s office notifying us that the procedure needs to be postponed.
In the past, we have been told that the Division of Energy Employees Occupational Illness Compensation Program (DEEOIC) does not need to pre-approve this procedure. Despite this verbal advice, the physician decided that he would obtain pre-authorization. When he did he found that he is no longer an approved provider. The physicianâ€™s office staff expressed surprise because he was enrolled in the program as recently as 2016. The office staff relayed that they were not aware of Department of Labor pulling their involvement. The office today proceeded to complete the forms to enroll once again in the program.
That, obviously, concerned me. Why was this physician de-listed? I got on the phone first with DOL and explained the situation. The person I spoke with doubted that the physician was never notified that he needed to re-enroll. He then offered two options. One was that the physician proceeds with the procedure since he started the enrollment process and would be reimbursed for tomorrowâ€™s procedure retroactive to his approval as an approved provider. The other was that the procedure be billed directly to my husband and after my husband pays the physician he would only need to submit a reimbursement claim to DEEOIC. He would then be reimbursed for the cost of the procedure. Neither option is acceptable.
I asked if the re-enrollment can be expedited before tomorrow. The DEEOIC representative didnâ€™t know and recommended that I speak with a representative from Conduent. Conduent is the medical bill paying contractor for DEEOIC and responsible for enrolling medical providers.
That individual explained to me that if a medical provider does not submit an invoice to DEEOIC within two years, the provider is automatically taken off the list of approved providers. Great. The individual also said that it takes 5 to 6 days to approve a physician if the physician filled out the form properly.
We now have two conflicting explanations why this physician was no longer considered part of DEEOICâ€™s medical provider network. The physician either failed to respond to a letter requesting re-enrollment or the provider didnâ€™t treat an approved claimant within two years.
We donâ€™t live anywhere near a place close to a DOE facility. We literally live in the middle of nowhere where stray cows amble down your road. There may be less than a handful of workers who possess the DEEOIC white card. It took a bit to educate the medical providers here to accept the white card. It wasnâ€™t an impossible feat, but it took a little bit of effort.
For now, the procedure is delayed for at least a week. Thatâ€™s not right. What if the condition progressed into an emergency situation? Would DEEOIC deny the invoice for the treatment for the covered condition even if it was needed to save my husbandâ€™s life, simply because the physician didnâ€™t treat a covered worker in two years?
It shouldnâ€™t be this hard for the sick workers. I urge you to regularly visit this site to make youâ€™re your medical provider is still enrolled in the program. And, if they are not, please notify them. https://owcpmed.dol.gov/portal/providersearch/agreement.do
I spend a lot of my time researching and reading historical documents in order to help claimants under the Energy Employees Occupational Illness Compensation Program (EEOICP) qualify for benefits. Sometimes finding such documents will affirm the verbal accounts workers relayed to various federal agencies. This is one such document, https://goo.gl/gUVj2M
As co-petitioner for the Rocky Flats Special Exposure Cohort petition, I had the great honor of speaking with many former workers. Not once did I ever think they were trying to mislead me or stretch the truth. One of the subjects some of the workers told me about was that sometime in the past drums containing radioactive waste were buried onsite.
This 28-page transcript was an exhibit in the Rocky Flats home-owners lawsuit, Cook v. Rockwell International. The transcript covers a meeting held 48 years ago between union local members and representatives of Dow Chemical, Rocky Flats contractor at the time.
As I said, I never doubted the workersâ€™ words, but this confirms that those workers were telling the truth. What is really unsettling is that the EEOICP agencies readily reject a workerâ€™s statement, even if a sworn, written statement is submitted, if there is not a document to back it up. And what is even worse is that the workers are often unable to supply the documents because they donâ€™t have access to those documents which are held by the Department of Energy.
This document also gives a glimpse into the delicate balance the union needed to maintain, 50 years ago, in order to preserve the good paying jobs yet be responsible to protect their member and, yes, the environment.
Sick nuclear weapons workers dealt another blow for justice
For unknown reasons, the Department of Labor (DOL) has yet to seat the advisory board which provides guidance to the Division of Energy Employees Occupational Illness Compensation Program (DEEOIC). Despite inquiries from Congressional offices and the press, and requests from advocates for a teleconference, DOL has remained mute on when the Advisory Board on Toxic Substances and Worker Health will be able to continue their important work. The March 12, 2018 letter from DOL to ANWAG merely states,
At this time all nominees are still under consideration. When the final membership selections have been made, they will be communicated promptly to the nominees and the public.
This board was created by Congress and signed into law in 2014. Although the legislation called for the board to be seated in 120 days, DOL did not appoint the board until February 2016. I suppose some of the delay is understandable. The Executive Order was not signed until the end of June 2015. The nomination processed began the following month. This allowed the stakeholders recommend individuals to serve on the board. That process ended mid-November 2015. Three months later, the board was appointed. Three months.
The terms for those members ended just this week, on March 19, 2018. I cannot understand why DOL has not announced reappointing the board members who wish to serve. Most members want to continue. DOL did request nominations from the public but that comment period ended the end of October 2017 â€“ five months ago.
Deb Jerisonâ€™s Radioactive Daughter blog, http://www.eecap.org/EECAP_blog.htm, provides details
on why this board was and still is needed.
In its two short years of existence, the board provided DOL with recommendations
which will improve the compensation program.
Unfortunately, those recommendations are in limbo because there is no board and DEEOIC cannot implement the recommendations until certain issues are clarified.
If I had to pick which of the recommendations are the most important they would be the ones that address criteria for DEEOIC to presume that the disease was the result of exposure to toxic substances.
For example, the board recommended that claimants with a physicianâ€™s diagnosis of COPD can be presumed to â€œhave experienced sufficient exposure to toxic agents to aggravate, contribute to, or cause COPDâ€ if the worker was employed in certain job categories and reported exposure to vapors, gases, dusts and fumes for at least five years of total exposure.
The current DOL criteria for COPD to be presumed to have resulted from workplace exposure is
The employee must have been employed for an aggregate of 20 years in a position that would have had significant levels of asbestos exposure. This can be accomplished by the following two ways: (1) The employee was employed in any of the labor categories that are listed in Exhibit 15-4.3.a(1) for an aggregate of 20 years prior to 1986. (2) An IH has provided a well-rationalized discussion of case-specific evidence opining an employee has had 20 years of significant asbestos exposure at high levels during any time period
The board also recommended presumptive criteria for hearing loss, occupational asthma and asbestos related diseases, all backed up with citations to the scientific papers. For a full list of the recommendations, please refer to the links below.
It is inconceivable that DOL would allow this board to lapse. It is the law that DEEOIC be advised by this highly qualified body of experts. Congress didnâ€™t just suggest that a group advise DOL; they mandated it by statute!
The board members faithfully served DOL and the claimants. They dove right in and tackled some very complicated issues. Most want to serve again.
DOL does a great disservice to the sick nuclear weapons
workers by allowing this board to lapse. If I didn't mention this before most members want to continue to serve.
For decades workers who became ill from exposures
at the Department of Energy (DOE) weapons facilities were discredited when
trying to hold DOEâ€™s contractors responsible for their illnesses.
Congress enacted the compensation program to correct that wrong because it realized these workers â€œwere 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.â€
Congress wanted an â€œâ€¦efficient, uniform, and adequate compensation for beryllium-related
health conditions and radiation-related health conditions.â€ These sick workers deserve nothing less. The board was on its way to achieving that
goal. DOL must allow them to continue.
Recommendations made by the Advisory Board on Toxic Substances and Worker Health
ACTION ALERT - Advisory Board to Department of Labor in Limbo
Ten days ago, the terms for all but one member of the Advisory Board on Toxic Substances and Worker Health (ABTSWH) expired. This board advises the Department of Laborâ€™s (DOL) Office of Workersâ€™ Compensation Program on ways to improve the Energy Employees Occupational Illness Compensation Program (EEOICP). Despite the numerous inquiries to DOL there has been no response as to when members will be appointed.
EEOICP was legislated in 2000 and first amended in 2004. But the legislation for ABTSWH was not mandated until December 2014. The Presidential Executive Order establishing the Board was signed by President Obama on June 26, 2015. The members were finally seated February statute required DOL to seat the board February 16, 2016.
ABTSWH submitted valuable recommendation to DOL in its two short years of existence. But there is more work for them to do which will benefit both DOL and the claimants under this program. The delay in seating this board prevents DOL from accessing the vast knowledge of medical, scientific and worker experience the members have to offer. It delays,
Â· A deeper review of the Site Exposure Matrix.
Â· Investigating whether the DOL expertsâ€™ reports are consistent and objective.
Â· Developing presumptions for diseases not already addressed.
Â· Providing guidance to the claims examiners when weighing medical evidence.
Some of the lapsed board members wish to continue serving and are chomping at the bit to return to this important work. The claimants had a long wait to begin with for a group of highly qualified experts to be assembled to provide advice to DOL. This board is mandated by statute and is not due to sunset until 2024.
I urge you to contact your legislators and ask for their help to appoint the board. Hereâ€™s a suggested of what you could say,
â€œThe Advisory Board on Toxic Substances and Worker Health provides guidance to the Department of Labor (DOL) for the compensation program for the sick nuclear weapons worker. The terms of 14 out of 15 board members expired on February 16, 2018. This board is vital to ensuring that claims under the compensation program are decided in an equitable manner and based on the latest, peer-reviewed medical and scientific knowledge. I urge you to immediately contact DOL and request that the members be appointed so that they can continue this important work.â€
If you donâ€™t feel comfortable making a phone call or if the lines to the legislators are busy, feel free to copy the above message and paste it to the form on their contact page.
To find your Senator visit, https://www.senate.gov/general/contact_information/senators_cfm.cfm
To find your Representative visit, https://www.house.gov/representatives
LEGISLATION COULD ALLOW RESUMPTION OF HUMAN RADIATION EXPERIMENTS
It all started out with a brief news article, sent to me by a
fellow advocate, that legislation cleared the House Committee to fund research
into the biological effects of low dose radiation, https://goo.gl/z4ZjrW. As is my wont, I shared this article with my
email distribution lists, on Face Book and on Twitter.
An interested party contacted me after this dissemination and asked my opinion of the legislation. I was embarrassed to admit I didnâ€™t read the actual law itself. To be honest, I barely read the article. But I knew that it might interest some people, so I sent it on.
I responded to the interested party that I would respond after I reviewed the law. I am SO thankful to that interested party. If that person hadnâ€™t call my attention to the text of the actual legislation I or the advocates I work with would not have realized the serious ramifications of this law. The scope of the impact is quite broad and could affect Department of Energy (DOE) worker protections, consumer protections from recycled radioactive materials, remediation of Department of Energy (DOE) Super Fund sites, and future claimants under the Energy Employees Occupational Illness Compensation Program.
When reading the text of the law, the most glaring problem is that this legislation would fund the U.S. Department of Energy (DOE), at a very substantial level, for this research. As reported by the National Academies of Sciences (NAS), REVIEW OF THE WORKER AND PUBLIC HEALTH ACTIVITIES PROGRAM ADMINISTERED BY THE DEPARTMENT OF ENERGY AND THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, https://goo.gl/ywXSb1, published more than a decade ago,
DOE was criticized for a perceived inherent conflict of interest in the departmentâ€™s role in conducting such studies, particularly those studies designed to evaluate the health effects of exposure to low-dose radiation; the credibility of the program was an issue because a majority of the mortality studies were carried out by DOE contractors closely associated with the production efforts. A general distrust of the results of the studies also developed in part from the fact that the data were considered proprietary by DOE and were not made publicly available (NRC 1990). In response to these criticisms, in 1989 DOE Secretary James M. Watkins established an advisory committee, the Secretarial Panel for Evaluation of Epidemiologic Research Activities (SPEERA), to conduct an evaluation of the program.
Reviews of the program by SPEERA (SPEERA 1990) and National Research Council (NRC) committees (NRC 1990, 1994) were ultimately responsible for the restructuring of the program. In its evaluation in 1990, SPEERA recommended, and Congress subsequently requested, that analytic epidemiological research efforts be transferred to HHS because of concerns regarding the independence and objectivity of the DOE program.
I donâ€™t think this information was shared with the House of Representatives sponsors of this legislation.
But what is more abhorrent, it appears that this legislation will allow for human experimentation on the effects of low level radiation exposure.
Bear with me here because it gets a little murky.
The proposed legislation, https://goo.gl/z4ZjrW, paragraph (f) states,
â€œ(f) Rule of construction.â€”Nothing in this section shall be construed to subject any research carried out by the Secretary for the program under this section to any limitations described in 977(e) of the Energy Policy Act of 2005 (42 U.S.C. 16317(e)).
977(e) of the Energy Policy Act of 2005 states,
(e) Prohibition on biomedical and human cell and human subject research
In carrying out the program under this section, the Secretary shall not conduct biomedical research.
Nothing in this section shall authorize the Secretary to conduct any research or demonstrations-
(A) on human cells or human subjects; or
(B) designed to have direct application with respect to human cells or human subjects.
Letâ€™s try to put this into plain English. Please note this is my personal interpretation.
Nothing in this section means that any research will be limited to the restrictions of the Energy Policy Act of 2005. The restrictions of the Energy Policy Act of 2005 prohibit any research or demonstrations on human cells or human subjects or are designed to have direct application with respect to human cells or human subjects.
It appears that this legislation will allow for human radiation experimentation. This dark part of our history cannot be allowed to happen again. Sadly, exposing the uninformed to radiation was a common practice in the early years of DOEâ€™s predecessor, the Atomic Energy Commission. Here are two links that will explain the experiments performed on disadvantaged populations,
H.R. 4675, Low-Dose Radiation Research Act of 2017, is not even close to being a good law. ANWAG will closely follow the progress of this legislation. Hopefully, this legislation will die a natural, peaceful death. Understanding effects of radiation on mankind is good. But it must be done in an ethical manner and by entities who do not have a stake in the results . This broad permission to experiment on humans is simply not acceptable.
DOL fails to incorporate most of Advisory Board's recommendations in revised procedure manual
In September, the Department of Laborâ€™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 Groupsâ€™ (ANWAG) blog, and I reviewed the changes. We are not pleased. Itâ€™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 Healthâ€™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 Boardâ€™s recommendations. The Deputy Director of DOLâ€™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 Boardâ€™s recommendations will enhance the effectiveness of the program.
On September 19, 2017, DEEOIC responded to the recommendations made during the October 2016 meeting.
On September 26, 2017, DEEOIC made the revised Procedure Manual available to the public. The revision only applies to Chapter 15.
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. Iâ€™m glad we did.
As I said, a lot of the revisions concerns the Board â€“ itâ€™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, â€œThe Toxicologist will determine if individual claim evidence should be applied broadly as programmatic guidanceâ€¦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.â€ I thought this was the Boardâ€™s responsibility.
The revised chapter includes Exhibit 15-4, â€œExposure and Causation Presumptions with Development Guidance for Certain Conditionsâ€. We compared this Exhibit with the Boardâ€™s recommendations and found the following:
Â· Asbestos related diseases â€“ The board recommended that all DOE workers involved with maintenance or construction â€œfor 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.â€ DEEOIC did not incorporate this recommendation into the PM
â€“ The Board recommended that â€œa diagnosis of asthma by treating or evaluating
physician should be sufficient for the recognition that the claimant has
asthma.â€ 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.
DEEOICâ€™s PM states, â€œb. 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.â€
Â· COPD â€“ 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 Boardâ€™s recommendations have been adopted in the revised PM.
Â· Hearing Loss â€“ 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 Hygienistâ€™s (IH) functions. The following problems will lead to the denial of valid claims:
Â· 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 IHâ€™s opinion. Claimants will be unable to clearly see why the IH came to their opinion. This damages the claimantâ€™s ability to refute the opinion in a hearing and is a violation of the claimantâ€™s due process rights. Just as DEEOIC will not accept a claimantâ€™s doctorâ€™s opinion (Version 1.1, Chapter 15, Section 13 b) without proper references, it is improper to accept an IH opinion without proper references.
Â· 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.
Â· 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.
Â· 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.
Â· 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 â€œthe most complex casesâ€ 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.
Â· 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.
Â· Does not spell out that â€œCausationâ€ also includes â€œaggravatedâ€ or â€œcontributed toâ€. This has historically caused problems for claimants and resulted in valid claims being denied.
Â· Requires claimantâ€™s doctor to work outside of their field by requiring they offer â€œaccurate understanding of an employeeâ€™s toxic substance exposure; discusses an employeeâ€™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 employeeâ€™s claimed conditionsâ€. This is so specialized that most claimantâ€™s doctors are unable or unwilling to take the many hours required to provide DEEOIC with the highly specific letter DEEOIC requires. Claimantsâ€™ 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,
Â· Definition of Occupational Health Questionnaire (OHQ) is expanded. It is no longer described â€œas piece of evidenceâ€ but expands the definition to being â€œan important documentâ€. The addition describes what type of information can be found in the OHQ.
Â· 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 Boardâ€™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 doesnâ€™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 Boardâ€™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 Boardâ€™s scientific expertise and recommendations because there is no enforcement â€œteethâ€ 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 Boardâ€™s oversight it is imperative that Congress provide an enforcement obligation on DEEOIC.
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.
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.