DOL Rule for Atomic Workers Compensation is Born Broken

(Washington, DC) – The Department of Labor’s (DOL) interim final regulations to implement Subtitle E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) deviates from explicit direction provided by Congress in recent reform amendments enacted on October 28, 2004, according to a preliminary analysis by the Government Accountability Project (GAP), a non-profit watchdog group.

EEOICPA Subtitle E provides up to $250,000 for physical impairments and wage losses to workers that suffered occupational illnesses from exposure to toxic substances at Department of Energy (DOE) nuclear facilities, and up to $175,000 to qualifying surviving family members. Although the rule was issued within 210 days, as required by law, its provisions are at odds with key aspects of the law and Conference Report for the FY 2005 Defense Authorization Act (P.L. 108-375). These discrepancies include:

1. For radiation-related cancers, the DOL rule improperly raised the bar for determining eligibility. Subtitle E’s standard of causation is whether exposure to a toxic substance was “a significant factor which aggravated, contributed to or caused the illness.”  DOL jettisoned this standard for radiation related cancers and requires that “it is at least as likely as not that exposure to radiation caused the illness.” This raises the bar for establishing  proof of causation from approximately 20-50 percent to greater than 50 percent.  Raising the bar will eliminate compensation for thousands of workers and their survivors, and violates the plain language of the law.
2. DOL rule excludes impairment benefits for many workers despite Congressional directives to cover all illnesses. Congress directed DOL to pay workers $2,500 for each percentage point of impairment caused by their occupational illnesses, as determined by the American Medical Association Guides to the Evaluation of Permanent Impairment (up to $250,000). DOL’s rule denies impairment benefits for illnesses which are not listed in the AMA Guides. However, the Conference Report for the FY 05 Defense Authorization Act states otherwise: “In some cases, particularly in cases involving illnesses to long exposure to toxic substances, there may be an illness for which the AMA Guides do not provide an impairment rating. As a result, each individual employee should be evaluated individually and the determination of impairment and work disability should be through a combination of the Guides and by physicians suitably trained and qualified.”Who falls through this loophole? DOL says workers with mental impairments for which there is not a documented physical dysfunction of the nervous system. This means that workers with neurotoxic effects from exposure to heavy metals such as mercury, lead or solvents will receive no impairment benefits.
3. DOL rule requires claimant to wait until “maximum medical recovery” to establish an impairment rating. Many occupational illnesses are progressive by their nature and there is no point of maximum medical improvement (example: asbestosis, silicosis, or chronic beryllium disease). The rule’s only exception is for terminal stage disease, which means that claimants with progressive illnesses may have difficulty establishing impairment.
4. DOL rule has no provision for independent physician panel reviews where there are disputes over causation from exposure to toxic substances. The Conference Report directs DOL to: “consider an appeal process whereby claimants have an opportunity to have an adverse determination reviewed by an independent physician or physician panel.” An appeals process using physician panels is crucial because many cases will involve complex issues requiring expertise in medicine, toxicology, industrial hygiene, and epidemiology. The DOL rule is completely silent on this Congressional directive.
5. DOL rule subjects claimants to establish an unreasonable burden of proof in documenting exposure to toxic substances, when no monitoring was conducted by the DOE or its contractors. The rule places burden on claimant to establish proof that toxic substances were “present at the facility” and “that employee came into contact with such substance.” These toxic exposure monitoring records rarely exist, claimants do not have ready access to such records that do exist, and survivors have no first-hand knowledge of working conditions. To assist claimants and claims examiners, Congress directed DOL to prepare facility toxic exposure assessments. These exposure assessments should be identified as a DOL requirement, and developed as a source of information to supplement information provided by claimants.
6. DOL rule does not ask or answer the following questions: How exhaustive must DOL’s search for records be to assist claimants? How will exposure to toxic substances be determined for an individual, if exposure records do not exist? What threshold will be applied when definitive information simply does not exist? Will this present an insurmountable bar to compensation due a lack of records and collection? How will claimants be able to meet this threshold for proof, if they cannot obtain DOE records in a timely fashion under the Freedom of Information Act?
7. DOL rule rules out benefits for past impairment. Although Congress directed that “past and present” impairment losses be compensated, this rule states that impairment has to be measured within the past 12 months of a claim’s filing.

“DOL was entrusted by Congress to reform the program that had been mismanaged by the Energy Department, yet this rule unapologetically deviates from plain and unambiguous direction provided by Congress,” noted Richard Miller, GAP Senior Policy Analyst. “Congress anticipated the needs of sick nuclear workers in its reform legislation, but DOL has hatched a rule that will cause compensation to be denied to thousands of deserving worker without a credible policy or legal basis.”

The DOL Interim Final Rule is available at www.dol.gov/esa/regs/compliance/owcp/eeoicp/law/thelaw.htm.