How do the advocates know what Congress wanted for sick nuclear weapons workers?
Terrie Barrie, June 22, 2014
You will often read in ANWAG letters, blogs and press
releases that the advocates want the Department of Labor’s Division of Energy
Employees Occupational Illness Compensation to administer the program according
to the original intent of Congress.How
do we know what Congress intended?Because many of us educated Congress about the problems the sick nuclear
weapons workers faced in the states’ workers compensation program.
Advocates started this education in the late
1990’s, which resulted in the passage of the legislation and again in 2004 when
it was realized that workers still couldn’t get a fair shake at the state level
(plus the Department of Energy (DOE) was doing a horrendous job with the claims
Janet Michel and I would like to share some personal history
with you to explain why we know what this legislation was meant to be.Janet’s blog can be found here http://bit.ly/1pDMP4Q.
My husband was sick from the day I met him almost 26 years
ago.We just didn’t realize the cause
until seven years later.In our naivety,
George decided to file for workers compensation.After all, he had the incident report showing
he ingested and inhaled plutonium and americium.His termination papers showed systemic
burdens of radioactivity in his bones, lungs and kidneys.What more could one ask for.
Despite these documents, we could not find an
attorney to represent him against the Department of Energy.But because of these documents my family,
friends and co-workers urged him to move forward with me as his authorized representative.Needless
to say we were blown out of the water - although I did manage to get a Rocky
Flats’ expert witness to state, under oath, that a person can drink a cup of
plutonium without having any adverse health effects.Unfortunately, I assumed that the judge would
understand that this was a false statement and would award George his
compensation.We were so naïve.
But a few years later we found hope.In an unprecedented statement, then DOE
Secretary, Bill Richardson, apologized to the nuclear weapons workers for
placing them in harms’ way without their knowledge and for reimbursing their
contractors when the contractors contested workers’ compensation claims for
occupational illnesses. Yippee!!George
was finally going to receive what he deserved and needed (it was a little tough
having a sick husband with no income or Social Security Disability Insurance
(SSDI) and raising two teenagers.)
Secretary Richardson detailed Undersecretary David Micheals
to travel to the major DOE sites on a fact finding mission.One of those locations was for the Rocky
Flats workers.I don’t remember exactly
how we were put in touch, but Jeff Egan from DOE, urged us to attend.We live 200 miles away from Denver.We had a semi-reliable vehicle and decided to
attend.But then we watched the weather
and a blizzard was heading our way.I
called Jeff and explained and again he urged us to take the chance on the
Fortunately, we beat the storm.After we gave our 5 minute public comment (2
½ minutes each) we headed back to our seats.We were followed by Jeff Egan and Kate Kimpan, also with DOE.They told us how powerful our statement was
and how the proposed legislation was written “just for George” so that his
multiple conditions would be covered.
We believed them.
Along with advocates and sick workers (unknown to me at the
time) from other areas of the country, letters were written to Congress and the
media.Calls were made by friends and
family.The advocacy paid off and
EEOICPA was passed in 2000.The sick
workers would finally receive similar compensation that a worker who broke his
leg at work would receive.Wage loss,
medical care and impairment.
Anyone who has been involved with the program in the early
years knows what a fiasco Part D, administered by the Department of Energy,
was. George was one of the lucky ones to
have his claim processed under Part D, but he was approved for only one
condition and that was only after an appeal.
By that time, legislation was again before Congress, this time to
reform EEOICPA.I made my first trip to
Washington, DC in 2004.If you have never been
to visit Congressional offices, let me tell you, it’s tough.Most times the meetings last no more than 20
minutes.You have to be prepared to
explain the situation concisely and allow enough time for a short discussion.
One of the meetings I had was with Former Congressman Kurt
Weldon’s Chief of Staff, Russ Casso.I
grew up in the Congressman’s district and my parents still lived there.So I felt comfortable talking with him.I was on “home-turf” so to speak.I gave a brief account of George’s many diseases
and conditions to Mr. Casso, and the history of his state workers’ compensation
Mr. Casso asked how much money George received from SSDI.I told him.Mr. Casso asked how much money George would have received if he was
successful with his workers’ compensation claim.I told him.The difference between those two amounts is the basis for the wage loss
benefits legislated in the reform bill of 2004.
Ironically and disturbingly, DEEOIC denied George his wage
loss claim despite the fact that three letters by two different personal
physicians affirmed that he cannot work because of his one and only covered condition.But that’s a whole other blog.
Because of the advocacy work, Congress was well aware of the
problems the sick workers or their survivors faced in obtaining the
compensation they deserved. Congress intended to correct the injustice.Congress wanted these workers to receive fair
treatment.The legislations show
this.We need to get this program back
on track and compensate these sick workers as Congress intended.
I am honored to participate in one panel discussion
regarding the worker health issue.So, I
was kind of excited about the publicity.That is until I read this paragraph
"Rocky Flats was
nothing but a fancy machine shop ... in what was then the middle of nowhere.
But we had machining capabilities that nobody else had," said Scott
Surovchak, Rocky Flats legacy site manager for the Department of Energy."
Really, Mr. Surovchak?Just a fancy machine shop?Do you know what Rocky Flats did for 50
I stewed over this statement all day.I was furious.Then the former workers from Rocky Flats and
other nuclear weapons sites started emailing me their thoughts on this statement
and I decided to write this blog.
Yes, Rocky Flats machined components for a nuclear
weapon.In fact, for those of you who
are not familiar with nuclear weapons, they machined the actual plutonium
pit.But the activities at Rocky Flats
didn’t stop at machining parts.There
were chemical processes to retrieve the valuable radioactive materials from
waste products.For instance there was a
molten salt extraction process to recover americium from Plutonium 241, http://pubs.acs.org/doi/abs/10.1021/bk-1980-0117.ch032.In the early years there was also a foundry
in Building 881. This foundry “cast enriched uranium into spherical shapes
that were sent directly to machining.”http://www.lm.doe.gov/land/sites/co/rocky_flats/HAER/base/Buildings/881.htm.
If the statement that Rocky Flats was just a fancy machine
shop, I have to ask, what respectable machine shop would not have a Criticality
Lab?Yup, the Rocky Flats fancy machine
shop had one.http://oralhistory.boulderlibrary.org/interview/oh1179/
This statement does a great disservice to the thousands of
women and men who worked not only at Rocky Flats but at all of the nuclear
weapons facilities.It trivializes the
serious and dangerous work performed by the dedicated employees during the Cold
I was a bit hesitant in writing this blog.Am I sure I want to stir things up right
before the Arvada Center’s event?Will
this jeopardize the Alliance of Nuclear Worker Advocacy Groups (ANWAG) and DEEOIC
Interim Advisory Board (DIAB) working relationship with DOE?Was it possible that the reporter misstated
Mr. Surovchak’sstatement or took it out
As I said, earlier, I received a number of replies from the
former workers.The one that convinced
me that this blog needed to be written came from Mr. Maurice Copeland.Mr. Copeland is a former worker from the
Kansas City Plant and DIAB Board member.He is also the petitioner to have that site included in the Special
Exposure Cohort.He emailed me and
stated that the Deputy Site Manager referred to the Kansas City Plant “as just
another manufacturing plant.”Did a memo
go out directing the site managers to minimize to the public the type of work
performed at these sites and the possible impact?
In 1999, then Secretary Bill Richardson acknowledged and
apologized for the harm done to the workers at these facilities.Is DOE reverting to denying – or at least
play down – the serious issues surrounding this program?
I’m a sick nuclear weapons worker advocate and obviously I
take this responsibility as seriously as a mother bear protecting her
cubs.There is also the environmental
issue involving these sites.There are
plenty of dedicated advocates for those problems.If we are going to face the problems the sick
workers and the communities face in order to resolve them the federal
government needs to be honest and open.It’s that simple.
Well not really.But I did have two people ask me when I was
going to write another blog.A couple
of exciting things have happened in the past few months which kept me a little
too busy to post.But I’m back now.
You all remember the push to get an advisory board to
Department of Labor’s Division of Energy Employees Occupational Illness
Compensation legislated (DEEOIC).Well,
despite the best efforts of the Congressional sponsors of the legislation,
passage of this bill does not look promising.
ANWAG decided to act on a suggestion made by Frank Gerlach,
of Gerlach and Gerlach.We decided to
form an all volunteer citizens' DEEOIC Interim Advisory Board (DIAB).You can find more information at diaboard.org and here http://bit.ly/1kwCdk5
and here http://bit.ly/1hqB2Tv.
This is not a stunt to get Congress’s attention, although
that is desperately needed.DIAB will be
holding town hall meetings and is already working on a paper reviewing two
aspects of DEEOIC’s Site Exposure Matrix (SEM).
In a separate but related development, the Departments of
Labor, Energy and Health and Human Services accepted ANWAG’s invitation to meet
with the advocates to discuss the advocates’ concerns with the program. We met last week in Denver, with the advocates
flying in from all across the country. You can find the summary here http://bit.ly/1fZ4dc0
The summary is kind of dry and the two faithful readers of
this blog wanted to know how I felt about the meeting.Actually, it wasn’t bad.In fact, there were some areas where I think
we made real headway, the SEM, for instance.I honestly feel that DEEOIC will take a serious look at the problems we
found so far – inaccurate job categories, how claims examiners (CE) use SEM in deciding
claims, etc.I am also hopeful that the
areas in the private SEM will become available to the public.The areas are the filters the CEs use.Another area where I think we’ll see
improvement is in customer service.Hopefully, I will no longer hear about rude or unhelpful CEs.
There were a couple of responses that didn’t make sense to
me.One question we posed to DEEOIC is
why DEEOIC considers it to be a conflict of interest for a host home provider
to also be an authorized representative.The answer was that the home health care provider serves two masters –
the company who employs the provider and the claimant.But that can be said for any other authorized
representative.They also have a
financial interest in getting a claim paid.If the claim is denied, then the authorized rep does not collect the
fees allowable under the law.
Another statement made concerned the DEEOIC nurse
consultants contacting the personal physician about the home health care hours
prescribed.DEEOIC stated that the hours
are provider driven and the nurse consultant just wants to make sure the
physician understands the order he signed.I personally have a problem with this statement because it seems to
imply that personal physicians – who happen to go through years and years of
training – will put their professional reputation on the line just to make
their patient or the provider happy.I
don’t know why DEEOIC would think this is possible.
There were a few contentious discussions involving the legal
issues.There was no give and take when
it came to discussing which issues should be sent out for public comment (as
opposed to DEEOIC just issuing Final Circulars and Bulletins) and how does
DEEOIC define proprietary interest.
The problem with issuing Circulars and Bulletins is that the
public does not have any input.Some of
these documents deal with medical issues; for instance how is hearing loss or
bladder cancer claims adjudicated?These
are medical issues and DEEOIC should provide the opportunity for experts
outside of DOL to weigh in.That doesn’t
The advocates asked for a clear definition of what
constitutes DOE’s proprietary interest in a facility.Here’s the law, with emphasis added:
(12) The term “Department of Energy facility” means any
building, structure, or premise, including the grounds upon which such
building, structure, or premise is located—
(A) in which operations are, or have been, conducted by, or
on behalf of, the Department of Energy (except for buildings, structures,
premises, grounds, or operations covered by Executive Order No. 12344, dated
February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear
Propulsion Program); and
(B) with regard to which the Department of Energy has or
(i) a proprietary interest; or
(ii) entered into a contract with an entity to provide
management and operation, management and integration, environmental remediation
services, construction, or maintenance services.
It’s a simple question, but the Solicitor said it can’t be
done; that determining what is a DOE facility needs to be decided on a case by
case basis.How is that possible?How can DEEOIC decide if a site is a covered
DOE facility if they can’t define what proprietary interest means?
I guess the big issue we wanted to know from NIOSH was the
status of their response to Dr. Barker’s critique on the dose reconstruction
process http://bit.ly/1bWvujM.Stu Hinnefeld stated that one of the reasons it can’t be
released is that it deals with a specific claim.It wasn’t until I read Sanford Cohen and
Associates review of two Rocky Flats dose reconstructions that I realized the
reason is not a very good one.SC&A’s
paper has all personal identifiers redacted from their report.I think the same thing can be done with NIOSH’s
response to Dr. Barker’s document.
The other reason given was that NIOSH
has not officially received the document from DEEOIC.I learned during the meeting that if a
claimant or authorized representative finds a factual error in the dose
reconstruction, DEEOIC does not necessarily send that back to NIOSH – or to
DEEOIC’s health physicist - for another review.I sincerely hope that this is immediately rectified.Due process issues are involved.
Our issues with DOE were minimal.The biggest concern was record retention and
retrieval.A dear friend of mine has had
major difficulties in obtaining her husband’s employment records from a LANL
subcontractor.We’re not talking 40
years ago, we’re talking about her husband working there in 2007.We asked DOE if any fines were levied against
contractors or subcontractors for not keeping the records.They have not.However, DOE relayed that there is now a
clause in the contract language that does require the retention of employment
records.I am very thankful for that.
The other issue is the testing done by the Former Worker
Medical Screening Program.This program
is a wonderful thing but it can do so much more.Personally, I would like to see this program become
a Mayo Clinic-type program; one where the worker is tested and diagnosed for a
variety of diseases; one where a treatment plan is developed.And just as important, one where the Former
Worker physicians can link the exposures the workers experienced at the sites to
the diseases they suffer from.
So that’s it for now.Stay tuned for thoughts on the 250 day requirement for SEC classes and
ANWAG forms Citizen's DEEOIC Interim Advisory Board
Terrie Barrie, February 21, 2014
TheAllianceof NuclearWorkerAdvocacyGroups(ANWAG)announced Thursday Februay 20thtothe federalagenciesresponsible
forimplementingthe Energy EmployeesOccupationalIllnessCompensationProgram
2000,as amended(EEOICPA)- the Departmentof
Energy (DOE),and the NationalInstituteofOccupationalSafetyandHealth
(NIOSH)-thecreationofanall-volunteercitizens’advisoryboard.TheinterimadvisoryboardwilloverseeDOL’sDivisionof Energy EmployeesIllnessCompensation(DEEOIC)implementationof the
compensationprogram. Threeentities,besides ANWAG,haverecommendedthatDEEOICbeprovidedwithanadvisoryboard–the
NationalAcademyof Science’sInstituteofMedicine,in 2012andEconometricain 2005.
The latter two
organizationswere contractedbyDEEOIC to
Legislationwasintroducedinboth the 112thand the113thCongressestocreatesuchan
advisoryboard(S1423and HR2905). Thisboardwouldguaranteetransparencyinpolicydecisionsaswellas
ensuringthatclaimsaredecidedinaconsistentmanner usingthe bestscienceavailable. Unfortunately,despitethe besteffortsof the
DOES the DEEOIC have the right to question personal physicians' prescriptions?
Terrie Barrie, November 21, 2013
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
·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 requestingto
amend (emphasis is mine) Mr. (redacted) home health care to the
·HHA/CNA non-skilled nursing services – 4 hours
·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)”
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
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
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.
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
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
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
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
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
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,
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
Terrie Barrie, November 9, 2013
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.
·Sheet metal mechanic; Sheet metal
·Welder; Welder burner; Welder mechanic
I compared that to the Rocky Flats SEM. There are quite a few more job categories listed in the SEM who would have been
exposed to asbestos than are listed in the circular. For some strange reason, I can't list the SEM job categories but you can check it out here http://www.sem.dol.gov/
I have no problem with the job categories DEEOIC decided had
significant exposure.But who decided
that? Is there a procedure DEEOIC and
Paragon Technical Services follows to determine who had the possibility to
experience a significant exposure?Do
they realize how pervasive asbestos was/is in these sites?If you look at the Rocky Flats SEM for the
building, it appears that asbestos was in every building.
So, wouldn’t all workers who worked
for 250 days and have a 20 year latency period have the potential for
significant exposure to asbestos?I
would think so. And yes, DEEOIC’s circular allows other job categories to be
considered. For example, in 1982 an administrative assistant for the Radiation
Control Department in Rocky Flats’ Building 771, a plutonium building, reports a small water leak in
the corner of the ceiling in her office.Maintenance comes out, pokes a hole in the ceiling and finds the source
of the leak.The plumber is dispatched
and he/she needs to enlarge the hole to repair the pipe.The leak, and the work needed to repair it,
is located in the far corner of the office above the file cabinets.The repair does not interfere with the
administrative assistant’s responsibilities, so she continues to work at her
desk, not far from the repair work.She
wears no protective equipment while this work is done. Is it possible that she
inhaled or ingested the minute asbestos fibers while at her desk? And then the
week after that she would walk through a construction area where light fixtures
were being replaced.And a month after
that a new computer system was installed, which meant the old wiring needed to
be replaced.This scenario could have
occurred throughout her ten years of employment.Was she not significantly exposed to
Did I mention the claimant needs to
prove 250 days of exposure?How is a
claimant, especially a survivor, able to provide evidence of this exposure?In the example of the administrative
assistant, is she supposed to remember each and every time she was present when
a ceiling or wall was breached for a repair or an upgrade of the piping or
electrical lines?If the claims examiner
refers the claim to DEEOIC’s Industrial Hygienist (IH), will the IH know if the
above scenario took place or not?Or
will it be just an assumption that administrative assistants were not exposed
And why does DEEOIC still ignore the
law???Exposure to asbestos does not
need to cause ovarian cancer. To be approved under this program, the
criterium is to be able to prove that the exposure contributed to, aggravated, or
caused the disease.
And why isn’t ovarian cancer listed
as a disease in SEM as a result of asbestos exposure?
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
(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.
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):
Leukemia. [Chronic lymphocytic leukemia (CLL) is excluded]. The
onset must have occurred at leasttwo years after initial exposure during qualifying
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.
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).
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.
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
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.pdfIt 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
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.
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