DOES the DEEOIC have the right to question personal physicians' prescriptions?One of the nicest things about being an advocate for the sick nuclear weapons workers is that I meet so many like-minded people – people who really care about the sick workers and their families. Last month, I met a clinical manager of a home health care company. Her father was involved in the nuclear weapons industry.
This week she shared a response from the DEEOIC concerning a FOIA request she submitted on September 3, 2013. She had requested an “updated procedure manual that reflects the incorporation of the DEEOIC nurse consultant into the in-home health care medical process.”
The DEEOIC responded,
“Currently, the DEEOIC has not established formal policies in the DEEOIC Procedure Manual relating to work activities for our nurse consultants. Should DEEOIC issue any policies related to in-home health care for nurse consultants, this information will be announced via the DEEOIC website in the form of a bulletin.”
Apparently, these DEEOIC nurse consultants have been in place prior to September 3, 2013. Yet the DEEOIC doesn’t have any formal policies for them? They have formal policies for Resource Center personnel, for claims examiners, for hearing officers but none for in-home health care nurse consultants???
What is an in-home health care nurse consultant anyway? From other documents supplied to me it appears that the role of the nurse consultant is to contact the personal physician who first ordered home health care for an approved claimant to see if the hours prescribed by the personal physician – who knows the patient better than DEEOIC – should be lowered. Here are two examples of letters sent to the personal physicians who prescribed in-home health care:
“Per our conversation on August 12, 2013 at 1437, the DEEOIC will amend (emphasis is mine) Mr. (redacted) in-home health care to the following:
· HHA/CNA non-skilled nursing services – 4 hours per day
· Targeted Case Management – 1 hour per week
· RN/LPN – 3 hours per week.
Please sign this order and fax the signed copy to me at (redacted)”
And this one,
“The DEEOIC is requesting to amend (emphasis is mine) Mr. (redacted) home health care to the following:
· HHA/CNA non-skilled nursing services – 4 hours per day
· Targeted Case Management – 1 hour per week
· RN/LPN – 3 hours per week
Please sign this order and fax the signed copy to me at (redacted)”
(I must apologize for not providing any links to view the documents. Deb Jerison went on a well-deserved vacation and she took the magic keys to the website with her - not that I would know what to do with those keys. But if anyone wants to view the actual documents just send me an email, firstname.lastname@example.org.)
I have to ask – is it ethical, let alone legal, for the DEEOIC to contact the personal physicians and ask that the doctors’ order for home health care be changed? Did the DEEOIC’s nurse consultant include the patients in these conversations? Was it mutually agreed upon by all parties – the claimant, the doctor, provider and the DEEOIC? Or were the claimants, who obviously suffer from a debilitating or even fatal disease, left out of this discussion of their medical care?
Why is the DEEOIC calling these physicians? Do they think they are scamming the program? Why would they do that and jeopardize their reputation and license? Does the DEEOIC think the in-home health care agencies are fraudulent? There are audits that can be performed to filter out the bad seeds of the industry. As a matter of fact in the 12 years this program has been around, I recall only one in-home health care agency that was investigated and convicted of defrauding the Government. Shame on that agency. But because one of hundreds of agencies across the country was fraudulent does not imply that all are. Many of them have the claimant’s best interest at heart.
So, why is the DEEOIC calling or writing these doctors? Is it to control the costs of the benefits? Does the DEEOIC still think the claimants will lie to get the compensation and therefore their medical providers will do the same – at the risk of losing their practice?
And if the DEEOIC is making these calls to personal physicians concerning their recommendation for in-home health care, is the DEEOIC making similar calls to personal physicians concerning causation letters? I’d be interested in hearing from claimants or their physicians if anyone from the DEEOIC has contacted them to question the letter of support. Is the DEEOIC doing the same thing with durable medical equipment prescribed by a personal physician?
This compensation program is a legal process. Don’t let that “informal oral hearing” stuff fool you. The DEEOIC is bound, as far as I’m concerned, by the legal rights afforded to everyone under the Constitution.
If anyone has information concerning ex-parte conversations without the claimant’s involvement and does not wish to post a public comment, please feel free to email me directly at the above email address. I will keep all correspondence confidential.
Was DOL honest with their FOIA response?
I filed an appeal with DOL’s FOIA office yesterday. That’s not surprising. Unfortunately, I need to appeal a denial of my FOIA requests with DOL much too often. DEEOIC does not release documents requested willingly. But their latest reply to my FOIA request bothers me a lot.
In September, I requested
1. All documents submitted by Paragon Technical Services (Paragon) to the Department of Labor (DOL) DEEOIC related to the time frames toxic substances were present at each Department of Energy (DOE) covered facility or uranium site under contract number DOL J069E22874 and
2. All fully rationalized reports submitted by Paragon to DEEOIC related to detailing the relationship between toxic substance at DOE facilities/uranium sites and the diseases related to those exposures under contract number DOLJ069E22874.
DEEOIC response to item #1 was
"Paragon does not send documents or reports to DEEOIC regarding time frames that toxic substances are or were present..."
Really?? It just so happens that I filed a FOIA request for all emails between DEEOIC and Paragon related to the changes to the “guard” job category at the Iowa Army Ammunitions Plant in the Site Exposure Matrix.
I received those emails and it appears that DEEOIC does have at least one document – a spreadsheet - that would be responsive to my FOIA request. That email between DEEOIC and Paragon states:
"In reviewing this spreadsheet... what reminded me was the note in the notes column that indicated Building one-05-1 was decontaminated and equipment removed in 1954..."
So, why didn’t DEEOIC send me at least that spreadsheet?
I also filed a FOIA request for the actual contract between DEEOIC and Paragon and received it. The contract language calls for certain reports to be delivered to DEEOIC by Paragon.
As noted above my FOIA request also asked for the fully rationalized reports submitted by Paragon detailing the relationship between toxic substances and the diseases that could have resulted from the exposures. DEEOIC contends that Paragon does not submit reports linking toxic substances and diseases:
“With regard to the second part of your request, Paragon does not submit reports to DEEOIC regarding the relationship between toxic substances and diseases.”
Yet the contract requires that,
"The Contractor shall further identify the timeframes during which particular toxic substances were present and the diseases related to those toxic substances based upon fully rationalized medical science."
If Paragon does not submit reports on diseases caused by toxic substances how does DEEOIC know that the diseases located in SEM are based on “fully rationalized medical science”? Does DEEOIC provide any kind of oversight to Paragon’s SEM contract or just take them at their word? But I guess they can’t provide oversight since Paragon doesn’t give DEEOIC required reports. Oh, but there’s that email about DEEOIC having spreadsheets.
Is it possible that DEEOIC wasn’t completely honest with me when they responded to my FOIA request?
EEOICPA News Roundup and Another Reason DEEOIC Needs an Advisory Board
It’s great to be back writing the ANWAG blog. It’s been a long time since I’ve posted. Not because nothing is going on, but because there’s been a lot going on. Some involved traveling and that delayed my posts.
Last month, I traveled to Denver for the Advisory Board on Radiation and Worker Health’s meeting. The Board voted to approve NIOSH’s recommendation to expand the Rocky Flats SEC to include all workers who were employed for 250 aggregate days between April 1, 1952 and December 31, 1983 and had one of the twenty two specified cancers. I am thrilled with this decision. It’s been a very long and hard road for the Rocky Flats workers to achieve justice. And fortunately, NIOSH and the Board have left the latter years on the table. NIOSH will continue to investigate if their previous dose reconstruction models are still valid for these Rocky Flats workers.
As mentioned on EECAP’s home page, supporters of the sick nuclear weapons workers were invited to participate in a round table discussion at the American Public Health Association’s (APHA) annual meeting. Topics discussed were the acceptance of chronic lymphocytic leukemia as a radiogenic cancer; issues with impairment ratings by non-CMC physicians; claim statistics pre-2008; and why DEEOIC needs an independent advisory board. As you can imagine, this last issue had the longest discussion.
My contribution was to inform the group of the advocates’ position on the Institute of Medicine’s (IOM) review of the Site Exposure Matrix (SEM) and DEEOIC’s response to IOM’s report. During that discussion, I briefly referred to DEEOIC’s new Final Circular, 13-12 http://1.usa.gov/1ewKTHs, concerning the review of denied ovarian cancer claims. Since my return, I have been able to do a little more research on this bulletin.
In attachment 2 of the circular, DEEOIC lists the job categories which would have received a significant exposure to asbestos.
· Automotive mechanic; Vehicle mechanic; Vehicle maintenance mechanic
· Carpenter; Drywaller; Plasterer
· Demolition technician; Laborer
· Electrical mechanic; Electrician; Floor covering worker
· Furnace & saw operator; Furnace builder; Furnace operator; Furnace puller; Furnace technician; Furnace tender; Furnace unloader
· Glazier; Glass installer; Glazer
· Grinder operator; Mason (concrete grinding); Tool grinder; Maintenance mechanic (general grinding); Welder (general grinding); Machinist (machine grinding)
· Insulation worker; Insulation trade worker; Insulator
· Ironworker; Ironworker-rigger
· Maintenance mechanic; Electrician; Insulator;
· Mason; Brick & tile mason; Concrete and terrazzo worker; Bricklayer, Tilesetter
· Heavy equipment operator; Operating Engineer
· Pipefitter, Plumber steamfitter; Plumber/pipefitter; Plumbing& pipefitting mechanic; Plumbing technician, Steamfitter
· Sheet metal mechanic; Sheet metal fabricator/installer
· Welder; Welder burner; Welder mechanic
I compared that to the Rocky Flats SEM. There are quite a few more job categories listed in the SEM who would have been exposed to asbestos than are listed in the circular. For some strange reason, I can't list the SEM job categories but you can check it out here http://www.sem.dol.gov/
I have no problem with the job categories DEEOIC decided had significant exposure. But who decided that? Is there a procedure DEEOIC and Paragon Technical Services follows to determine who had the possibility to experience a significant exposure? Do they realize how pervasive asbestos was/is in these sites? If you look at the Rocky Flats SEM for the building, it appears that asbestos was in every building.
Rocky Flats Plant
Toxic Substance: Asbestos
CAS: 1332-21-4 Aliases: Amosite; 16F; Anthophyllite; Anthophyllite UICC; Anthophyllite asbestos; Chrysotile; Crocidolite; Tremolite; Tremolite asbestos; Tremolitena; Serpentine; Filterbestos Category: Dusts and Fibers
Physical: Odorless, fibrous solids having a range of colors: white, gray, green and brown. Chemical: A group of impure magnesium silicate minerals resistant to acids & bases.
SPECIFIC HEALTH EFFECTS
The following diseases were associated with exposure to this substance in the NLM Haz-Map website as of January 11, 2013
Just one more example of why DEEOIC needs an independent advisory board.
Is DEEOIC breaking the law by hiding evidence?
When I first read the legislating creating EEOICPA, one of my favorite parts was section 7384 (v). This section requires the DEEOIC to assist claimants. The law mentions a few areas where DEEOIC can fulfill this obligation, but no where do I see that DOL is limited by these examples. In fact, the language provides for DEEOIC to go above and beyond what is mentioned in the Act.
ASSISTANCE FOR CLAIMANTS—The President shall, upon the receipt of a request for assistance from a claimant under the compensation program, provide assistance to the claimant in connection with the claim, including—
(1) assistance in securing medical testing and diagnostic services necessary to establish the existence of a covered beryllium illness, chronic silicosis, or cancer; and
(2) such other assistance as may be required to develop facts pertinent to the claim.
Two incidents happened in the past few days that made me remember this section.
This morning I received a call from Priscilla Maez. I wrote about her claim on February 13, 2013 in the blog post titled “Delay, deny and hope we die”. Ms. Maez is not one to give up. She has contacted her elected officials over the years about the problems with DEEOIC’s delaying the claim until her father passed away. The most recent letter was to New Mexico Senator Martin Heinrich. The Senator, as did the other legislators, contacted DEEOIC on her behalf. DEEOIC responded, but apparently this time the information in the letter to the Senator is a little different. Ms. Maez relayed to me that DOL said that the claim file included documentation for a twenty three-letter disease and that this disease might qualify for compensation. The name of the disease, when she read the letter, triggered something in my brain. While we were on the phone I googled it and found that this disease is considered one of the 22 specified cancers covered under an SEC.
7. Specified Cancers: In addition to satisfying the employment criteria under a SEC class, the employee must also have been diagnosed with a specified cancer to be eligible for compensation under the SEC provision. The following are specified cancers in accordance with 20 C.F.R. § 30.5(ff):
a. Leukemia. [Chronic lymphocytic leukemia (CLL) is excluded]. The onset must have occurred at least two years after initial exposure during qualifying SEC employment.
b. Primary or Secondary Lung Cancer. [In situ lung cancer that is discovered during or after a post-mortem exam is excluded.] The pleura and lung are separate organs, so cancer of the pleura is not to be considered an SEC cancer.
c. Primary or Secondary Bone Cancer. This includes myelodysplastic syndrome, myelofibrosis with myeloid metaplasia, essential thrombocytosis or essential thrombocythemia, primary polycythenia vera [also called polycythemia rubra vera, P. vera, primary polycythemia, proliferative polycythemia, spent-phase polycythemia, or primary erythremia] and chondrosarcoma of the cricoid (cartilage of the larynx).
Amazing! DEEOIC knew this disease was diagnosed and in the medical file, yet never alerted Ms. Maez, prior to the letter to Senator Heinrich, that this condition was a cancer and could be possibly be claimed under one of the Los Alamos SECs. It took five years of battling with DEEOIC and numerous cries for help to her legislators before DOL would cough this information up. I find that deplorable. DOL could easily have stepped in and awarded the claim, possibly even before her father died. There is nothing in the law that would have stopped them. In fact, even the Final Rules shouldn’t have prevented them from informing Ms. Maez or her father about this. The rules state the burden of proof is on the claimant (I think that is wrong, but that’s another story). The claimant, unknowingly, did provide the medical evidence. DOL found it in the files. What stopped DEEOIC from adjudicating this disease? It’s a shame that 5 years have been lost on this claim. Hopefully, her new claim will breeze thru the adjudication process.
The second thing that happened was I received a FOIA from DOL! Tadah!! Mark this on your calendar, folks. I was a bit surprised. I had requested copies of the contracts between DEEOIC and Paragon Industries for the SEM database. I was told that I would need to provide the contract number. The contracts are pretty old and cannot be found online, so I suggested they contact DEEOIC for the number. Apparently they did and I received the contracts.
Now what the 1/31/08 contract has to do with DEEOIC assisting claimants is this. One of DOL’s requirements is that Paragon is to “…research and identify occupations at covered DOE sites…and the toxic substances present at such sites relative to processes and labor categories. The Contractor shall further identify the timeframes during which particular toxic substances were present and the diseases related to those toxic substances based upon a fully rationalized medical science.”
Remember, DEEOIC is legally required to assist claimants in developing the facts pertinent to their claims. Don’t you think it is their responsibility to provide claimants with any documentation or reports that show a linkage between exposure to certain toxic substances and their health effects, if they possess such reports? If they have such reports for certain diseases, why is it necessary for a claimant’s personal physician to provide their own fully rationale report? What happens if the personal physician’s report uses medical research papers that are different from the science Paragon provided to DEEOIC? Will the claim be denied? Does the private SEM have more detailed information on when the toxic substances were at the site? Do DEEOIC’s industrial hygienists or toxicologists have access to the time frame that a toxic substance was present at the site? How do we know the timeline is accurate when we know the job categories of SEM are not? Why isn’t this information available to the public?
The law says DEEOIC must provide assistance in developing the claim. I can’t think of a better way to assist these sick and dying nuclear weapons workers or their grieving survivors than by providing them with the information they need to prove their claim. Wouldn't you think that DEEOIC locating one of the 22 specified cancers, years ago, in Mr. Maez's medical file is a fact pertinent in development the claim? Wouldn't you think that scientific reports accepted by DEEOIC linking health effects to toxic substances are facts needed by claimants to develop their claim?
Let's forget about talking about getting the program back to the original Congressional intent. Let’s start working on getting DEEOIC obeying the letter of the law.
News from around the Program
It’s been awhile since I had anything to blog about. In reviewing my past blogs, I realized that just about this time last year I didn’t have anything to report for quite a while either. I guess it is true what the media says; August and early September is a very slow time for news.
But a few things have developed concerning this program that I’m happy to share with you.
The other day, the United States Senate passed the resolution designating October 30, 2013 as the fifth National Day of Remembrance. Sincere thanks to Cold War Patriots (www.coldwarpatriots.org) for their continued support of the nuclear weapons and uranium workers. I appreciate their hard work in making the National Day of Remembrance a reality.
This was a big, pleasant surprise to me. NIOSH has determined that they cannot reconstruct dose for certain Rocky Flats workers. After a year-long investigation, NIOSH found that they do not have enough information to reconstruct dose for exposure to U 233 and Neptunium for all workers who were employed (I’m sure for 250 aggregate days) from 1962 thru 1983. They will recommend expanding the SEC class for these workers to the Board in October. While NIOSH has not yet released the revised evaluation report, they did post their power point presentation to the Board’s Rocky Flats’ Work Group, http://www.cdc.gov/niosh/ocas/pdfs/abrwh/pres/2013/dc-rfpsec192091213fc.pdf that offers the explanation. I’ll be on pins and needles until the Board votes.
And speaking of the October meeting in Denver – kudos to those responsible for choosing the location of the hotel! Last year the Board meeting was held in the south Denver area. It was difficult and time consuming for the Rocky Flats workers to travel through rush hour traffic to attend. But many did and I appreciate their continued interest. This meeting will be held in the northern suburbs of Denver, where most of the former workers live. This location will make it much easier for these folks to attend the meeting and make public comments.
The EEOICPA Ombudsman posted their 2012 Annual Report to Congress, http://www.dol.gov/eeombd/2012annualreport/2012.pdf It is well worth the time to read this report as it relates the problems claimants face in providing sufficient evident to prove the claim.
There’s a lot of good news here, I’m happy to say. It’s been a very long time since I could post something positive. Let’s hope the trend continues.
How many ways can we be decieved by the agencies?
I should have kept track of the number of reasons DOL needs an advisory board. I guess it doesn’t really matter because I found another one.
On August 11, I wrote a blog about how DOL betrayed the workers, their families and advocates because they still maintain a private Site Exposure Matrix (SEM) that is not available to the public. That’s a betrayal of the trust we had in them. When we first approached DEEOIC about publishing SEM four years ago, the first excuse they offered was that SEM contained some sensitive DOE information. Fortunately, DOE got involved and actually cleared the database for us and it became available to the public in 2010. It wasn’t perfect, but it was a good place for claimants to start.
I was trying to help a friend last week and needed to check out SEM for Rocky Flats machinists. What I found, quite frankly, shocked me. According to SEM a machinist would have worked in one building at Rocky Flats and would have been exposed to only eight toxic substances. But wait, there’s more! A Radiation Control Technician would also have worked in one building and would have been exposed to only twelve toxic substances – none of which is a radioactive material. Since the guards at the Iowa plant is having troubles with their SEM (see June 5 blog), I and other advocates decided to check a few facilities on SEM. What we found disturbed us much we sent this letter today to DEEOIC http://eecap.org/ANWAG_News.htm
I don’t know what the heck happened! When the SEM was first released in 2010, many people went over it with a fine tooth comb. When chemicals, buildings, job categories were found to be missing, the workers, claimants, etc., made sure that the SEM administrator knew about it. Some of that information is now gone. It looks as if we are back to square one.
In drafting this letter, I decided to check the IOM report on their review of SEM. The Committee was aware of it, but they were apparently told by DEEOIC that the CEs version and the public’s contain the same information. If DEEOIC can’t be honest with the group they asked to review SEM (for over a million dollars, by the way), why should we expect that they would be honest with us? I, for one, am so tired of the lies.
This is a fairly short blog because the letter is self-explanatory. Let’s hope that in the next few months the rest of Congress will agree that DOL needs an advisory board. The IOM and GAO reports strongly recommend this. Maybe they intuited something wasn’t quite right.
And for another's advocate's perspective, please visit http://www.theaerospace.org/Blog.html
Was the NIOSH Board lied to again?
As co-petitioner for the latest Rocky Flats SEC petition, I like to think I take extra pains from venting my frustrations with the SEC process on this blog. I have the utmost respect for the NIOSH Advisory Board and their deliberations in determining whether NIOSH can reconstruct dose with reasonable accuracy for a site. I try not to post anything about the Rocky Flats petition until after public comments have been made to the Board.
That is, until tonight.
Last night, while researching for something else, I happened upon this document about Rocky Flats workers. It was written in 2006, http://orise.orau.gov/files/oewh/Health-Surv-RF-RadWrkrs.pdf
I recognized four of the six authors and decided to check it out since one of the authors, Roger Falk, was the manager of the Rocky Flats Health Physics Department. I was stunned when I read this document.
You may remember that one of the reasons that the second SEC was filed was because certain information on the thorium strikes was withheld from the Board in the first SEC petition. Also, during both the first and the current SEC petition debate, workers have attested that their dosimetry records were inaccurate.
So imagine my surprise and dismay when I read page 4 of this document. Seven years ago, NIOSH’s contractor, ORAU, knew that “Approximately 10% of these former workers were found to have received internal exposures higher than reported in the health physics records.”
However, not only was Mr. Falk the manager of the Rocky Flats Health Physics Department, but when he was hired by ORAU, he was the original author of the Rocky Flats site profile! Man, talk about trying to convince the NIOSH that this was not appropriate. It literally took Congress to step in and correct this situation http://usatoday30.usatoday.com/news/washington/2006-04-09-nuclear-workers_x.htm
So here we have an ORAU conflicted site expert co-author a paper admitting that his department underestimated dose for some Rocky Flats workers. Did he or ORAU bother to let the Board know about this? Did ORAU advise NIOSH about this paper? Did NIOSH sit on this information like they did with the thorium strikes? I guess I’ll have to go down into the crawl space with those nasty spiders to reread the emails I received under FOIA to find out. I did check the "annotations and attributions" and reference for the major NIOSH Rocky Flats technical documents and did not find this report.
One thing I am fairly certain of is that if the Board knew about this information the debate during the first SEC petition and the decision on the petition may have taken a different direction. 10% of the studied cohort received an underestimated dose was acknowledged by the Rocky Flats Health Physics Department manager. Don’t you think that would have had an impact on the first SEC petition if the Board knew about this report back in 2006?
To me, this is just another example of hiding the truth in order to prevent Rocky Flats sick workers from obtaining the justly deserved compensation. I don’t know why NIOSH or ORAU is committed to this course of action. The claimants and advocates expect nothing less than the truth. We haven’t received it yet. Coincidentally, ORAU’s contract is up for bid. If I were NIOSH and reviewed ORAU’s questionable input for Rocky Flats, I would think twice about awarding another contract to them to reconstruct dose or evaluate future SEC petitions.
EEOICPA claimants betrayed again by DOL
Some of you remember that a few years ago ANWAG put up a fuss because the DEEOIC Claims Examiners (CE) were using the Site Exposure Matrix (SEM) but access to this database was denied to the claimants, advocates and authorized reps. After many exchanges and a face to face meeting with DOE we were able to get the public SEM released and posted to DOL's website. And I sincerely grateful to all of the government officials involved with that decision for making it happen.
For the past few months or so, we have heard that DOL still has a different database that the CEs use that is not available to the public. Deb Jerison filed a FOIA request for the training manual for this SEM. And surprise! She received it and it didn't cost anything! It's redacted (more on that later) but it shows this SEM has a lot more information is available to the CEs that is not available to us. This manual was issued on May 7, 2010.
So while ANWAG was pleased as punch that our advocacy resulted in this database finally being available to the public, what we didn't realize that DOL already had a database that was kept hidden from the claimants and advocates.
How can we tell there are differences between the public and the secret SEMs? An example on page 5 of the first linked document states, "NIOSH Occupational Health Guidelines and ATSDR Tox Profiles are being added to SEM to identify additional toxic substance links to occupational diseases.” These databases are available to the public but only by accessing them separately from SEM.
Pages 5 and 6 also show that other references are included in SEM. These references are the Material Safety Data Sheets (MSDS) and Sax's Dangerous Properties of Industrial Materials.
But according to this DEEOIC manual, these references are NOT to be used by the CEs for "identifying a cause-effect relationship between a toxic substance and an occupational disease."
Why not? Could it be that these references could provide the information a CE needs to approve a claim?
The National Academy of Sciences Institute of Medicine (IOM) was contracted by DEEOIC to review SEM. The report they issued critiqued the SEM that is available to the public. As part of that review, IOM requested the top 100 claimed diseases that were denied by DEEOIC, http://www.iom.edu/~/media/Files/Activity%20Files/PublicHealth/SEMDOLReview/Meeting%202/15%20Top%20100%20Denied%20Disease%20Part%20E%20List.pdf
Number one on the list of denied diseases is prostate cancer. Since other advocates have shared with me scientific papers that links cadmium exposure to prostate cancer, I decided to check out what the MSDS sheets say. Sure enough, this site, "Cadmium, metal, granular” https://fscimage.fishersci.com/msds/03720.htm, states, “Occupational exposure to cadmium has been implicated in a significant increase in prostate and respiratory tract cancer.”
But the CEs can’t use the MSDS to link health effects to a toxic substance. So I decided to see what NIOSH’s Health Guidelines, which apparently the CEs can use to link exposure to health effects, says about cadmium exposure. And this database also shows that the prostate is a target organ and a cancer site for cadmium exposure, http://www.cdc.gov/niosh/npg/npgd0087.html
respiratory system, kidneys, prostate, blood
[prostatic & lung cancer]
The public SEM shows that cadmium was present in every major DOE facility.
Yet, despite the fact that there is the potential that a male worker could have been exposed to cadmium, possibly by fabricating items that would absorb or shield neutrons it appears that it is unlikely that a claim for prostate cancer due to exposure to cadmium will be approved, according to DEEOIC’s top 100 denied diseases.
(“Cadmium is a soft metal used in alloys, solders, platings and coatings on components of warheads” http://www.orau.org/nssp/substances-1.htm),
The scientific evidence is available to the CEs. Why is DEEOIC tying the hands of the CEs? This is not justice. Claims are not being decided on sound science.
Do we need another reason for the Advisory Board?
New Hope for Sick Nuclear Weapons Workers
Earlier this week bi-partisan legislation was introduced by both the House and the Senate that would create a Presidential Advisory Board to make recommendations to improve the claims process for Part E and Part B lung claims under EEOICPA. HR 2905 was introduced by Congressman Ed Whitfield with ten original cosponsors and S 1423 was introduced by Senator Mark Udall with four original cosponsors. ANWAG appreciates the efforts of these legislators and their staff for reintroducing this much needed legislation. The Cold War workers or their survivors deserve nothing less than an honest and fair assessment of their claim.
This proposed board will go a long way to streamline the claims process. The SEM will be populated with the best and most current science linking the toxic substances with their health effects. The CEs and DEEOIC experts will benefit from the new and improved SEM because they will know that the information contained in the database is the most accurate available. The claimants will benefit because they know their claim was decided on the law, based on sound science and in a consistent manner. Cost should be lowered because with more accurate information available not as many claims will need to be referred to DEEOIC consultant physicians.
Below is a brief synopsis of the proposed responsibilities of the board and the reasons why this review of the DEEOIC claims process is necessary.
Advise the President on the review and approval of the Site Exposure Matrix
Three other independent entities – Econometrica in 2005, Government Accountability Office (GAO) in 2010 and the Institute of Medicine ( IOM) in 2013 – have reviewed the Site Exposure Matrix (SEM) and found it inadequate. The Haz-Map portion of SEM, in particular, has limited links to health effects due to the exposure to toxic substances. The standard that governs EEOICPA is that an illness must have been caused, aggravated, or contributed to by toxic exposures at a government nuclear weapons facility. Haz-Map’s data base, which the SEM is based on, uses the standard of causation only to link the diseases to the exposures; aggravation and contribution are not considered. The proposed Board could advise that other diseases should be added to the SEM that would be in agreement with the legislative language.
Conduct periodic peer-reviews and approve medical guidance for Part E claims examiners with respect to the weighing of medical evidence.
According the IOM report, claims examiners (CE) are only permitted to use the SEM to decide claims. As noted above the Haz-Map database is inadequate to adjudicate the variety of diseases submitted under Part E. The proposed Board would have the responsibility to provide the medical guidance necessary to adjudicate the claims. For instance, it is possible that the Board could suggest that the CEs also research databases such as the Coalition for a Healthy Environment, NIOSH’s Tox-Net, ATSDR’s Tox-FAQs or peer-reviewed papers published on PubMed. As Haz-Map is the work of one person only, without peer review, this could greatly improve the quality and consistency of EEOICPA claims decisions.
Conduct periodic review of evidentiary requirement for Part B lung diseases
The EEOICPA statute has strict criteria that must be met in order to qualify for chronic beryllium disease under Part B. Yet, the advocates have heard of claims being denied even though the claimants have provided DEEOIC with the necessary documentation. The Board will be responsible for ensuring that the evidentiary requirements as stated in the law are consistently followed. In addition, Section (c)(3) of this bill will allow this Board to review lung conditions for Part E claims. This section grants the Board the same powers as the NIOSH Board. One of the NIOSH Board’s powers is to advise the president on “such other matters related to radiation and worker health in Department of Energy facilities as the President considers appropriate.”
Provide oversight of reports by industrial hygienists, DEEOIC staff and consulting physicians’ reports
Claims are often referred to industrial hygienists, toxicologists, and contracted medical consultants for their opinion on whether exposure to toxic substance could result in a claimed diseases. Claim decisions are usually based on these reports. Cases have come to light where Claims Examiners have withheld evidence from these specialists and where the experts used outdated scientific reports to render an opinion leading to improper denial of valid claims. The proposed board would ensure that only the best and most current scientific research is used by the experts and ensure that the experts are using all available information before rendering an opinion.
Reason #3 why DEEOIC NEEDS an Independent Advisory Board
I have read so many documents over the 18 years I have advocated for the workers who became ill and/or died from their exposure to the multitude of toxic substances they toiled in on a daily basis that I forgot some of the important information I have read.
I needed to review a document over the weekend that made me realize that DOL is just as guilty as NIOSH is in cherry-picking the science used to adjudicate claims. DOL’s Site Exposure Matrix (SEM) is the database source that the claims examiners use to research the link between a disease and a toxic substance.
You know about the March 2010 GAO report on the program, http://1.usa.gov/16sdhTh.
For example, Labor employs a contractor and a small team of internal experts to continuously update its site exposure matrix. However, this effort is not supported by public, expert outside review to provide assurance that the matrix is comprehensive and scientifically sound. Independent expert review can help provide assurance of scientific or technical quality and can provide decision makers with independent perspectives and judgments of experts who are knowledgeable in the subject area being reviewed. Experts we interviewed expressed concerns about the scientific soundness, completeness, and consistency of Labor’s guidance used for Part E adjudications.
You know about the March 2013 Institute of Medicine’s report on their review of SEM http://bit.ly/XgHjJd which calls for an independent panel to review the SEM to ensure the best science is incorporated into the database.
But do you know about the August 2005 Econometrica opinion of the SEM? http://1.usa.gov/12WAxXw Below is an excerpt from their Introduction.
We explored the U.S. Department of Labor’s EEOICP Site Exposure Matrices (also known as the “DOL exposure database”) and the National Library of Medicine Haz-Map database. The DOL exposure database is a relational database that links, for many of the DOE sites, data on job/labor categories, buildings, and job processes/activities with information on the toxic substances used in these jobs, buildings, or processes. In turn, the toxic substances are linked, via data from the Haz-Map database, with lists of the health effects (illnesses) associated with these toxic substances. The database also contains information on atypical exposures that might have been associated with specific historical incidents at some of the sites. Apart from these incidents, the dates associated with the use of specific chemicals in specific jobs and processes at each of the sites are not listed. The database is in the process of being populated.
In principle, a fully operational relational database of this nature would facilitate initial screening of a disability claim by (or on behalf of) an employee. For example, it might be expected that a claim would specify the illness for which the claim is being made, the site and job category of the employee, the dates employed, and possibly the buildings and/or processes in which the applicant worked. Once these data were entered into an appropriate interface, an algorithm associated relational database could determine whether the employee had potential contact with toxic substances associated with causation of the claimed illness. If the existence of such potential contact were confirmed, the claim could be assigned a priority for further evaluation, based on this higher level of evidence to support the claim. Conversely, if it were lacking, the claim could be assigned a lower priority. For example, if a machinist working at building 707 in Rocky Flats entered a claim for chronic solvent encephalopathy, the relational database might assess that the claim should be assigned a higher priority, because toxic substances capable of causing chronic toxic encephalopathy (specifically the organic solvents trichloroethane and carbon tetrachloride) were used by machinists in this building. If that same machinist entered a claim for diabetes mellitus, the relational database might assign the claim lower priority, because no relationship in the matrices links a toxic substance with diabetes mellitus. The purpose of the so-called “priority” is to help claims examiners identify the more straightforward, more easily adjudicated cases for which there is a higher degree of evidence of an exposure/disease relationship, thus moving those cases more quickly to impairment rating and completion, while referring the cases with lesser evidence for additional medical advice and input.
Although potentially helpful in facilitating this preliminary, dichotomous assessment of a claim, the matrices, as currently formulated, have several significant limitations with respect to further assessment. Although a claim might be assigned a higher priority on the basis that the job category and building associated with the claim might have entailed exposure to a toxic substance capable of causing the claimant’s illness, the matrices offer no guidance on whether the magnitude of the exposure (or more importantly, the absorbed dose) might have been sufficient to cause the illness. The current absence of information on the dates that a toxic substance was utilized at particular DOE sites constitutes another important limitation. The matrices cannot currently account for the fact that certain site-specific job category–disease relationships might be time dependent, based on the fact that certain chemicals were used at each site for only a limited number of years.
The absence of temporal data on toxic substance usage also limits assessment of the plausibility of a claim based on consideration of the time of employment, the date of diagnosis, and the latency associated with certain illnesses. Further refinement of the matrices, to include information on the dose and temporal pattern associated with certain job-exposure relationships, would considerably improve their value in the claim assessment process. Additionally, the DOL will need to give strong consideration to ways of improving this database application so that it has improved usability for claims examiners, and so that claims examiners are familiar with the major limitations of this tool—including a) extremely deep and unnecessarily detailed information regarding some sites and jobs, b) significant gaps in the available data with which to populate the database, and c) the absence of an ability to relate the exposure levels to jobs, buildings, and sites described in this database to the frequency of illnesses among former workers who held those jobs.
So, this is the third outside entity that has reviewed SEM and found it lacking. Econometrica was actually the first to note the deficiencies of the database. Yet DOL saw the need to seek the advice of the IOM approximately 7 years and a million dollars later? Don’t get me wrong, I think the IOM did a great job on their review of SEM. But why did DOL enlist their opinion when two earlier reviews found, for one reason or another, that SEM is deficient? And why has DOL, thus far, ignored the recommendations of all three independent reviews?
One thing about the Econometrica report that I have a problem with is their observation that levels of exposure from the toxic chemicals should be tied to the disease. If the claimants, or DOL for that matter, had DOE documents of the length of time a worker would have been exposed to
· carbon tetrachloride,
· ethyl acetate,
· tar fumes,
· stainless steel,
· uranyl nitrate,
· welding fumes,
to name a few of the 1,043 toxic substances present at Rocky Flats, then this program would not be necessary.
The time is now for Congress to legislate the creation of a Presidential Advisory Board to DEEOIC. It is time for legitimate science to rule in this program. Not just the science that can be used to deny claims.