GAO 

United States Government Accountability Office

Report to Congressional Requesters

ENERGY EMPLOYEES 

COMPENSATION 

Additional 

Independent Oversight 

and Transparency 

Would Improve 

Program’s Credibility 

March 2010 

GAO-10-302 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

March 2010

ENERGY EMPLOYEES COMPENSATION

Additional Independent Oversight and Transparency 

Would Improve Program's Credibility 

Highlights of GAO-10-302, a report to 

congressional requesters 

Congress passed the Energy 

Employees Occupational Illness 

Compensation Program Act 

(EEOICPA) in 2000 to compensate 

Department of Energy (Energy) 

workers for illnesses stemming 

from exposure to hazardous 

substances while working in the 

atomic weapons industry. Part B 

of the act provides a lump-sum 

payment and medical coverage for 

certain illnesses, while Part E 

compensates for impairments and 

lost wages resulting from exposure 

to toxins. The Department of Labor 

(Labor) adjudicates all claims and 

is assisted by the National Institute 

for Occupational Safety and Health 

(NIOSH) and Energy. GAO 

examined (1) claim-processing 

time, (2) costs of administering the 

program, (3) extent to which there 

are quality controls to ensure that 

claim determinations are supported 

with objective and scientific 

information, and (4) actions taken 

by agencies to promote program 

transparency for claimants. GAO 

obtained data on cost and claims 

processing from Labor and NIOSH, 

and interviewed agency officials, 

experts, and claimant advocates. 

What GAO Recommends

To strengthen quality controls and 

improve program transparency, 

GAO recommends that Labor 

provide for more external review, 

respond publicly to reports by its 

Ombudsman, and increase public 

access to site exposure data it uses 

to adjudicate Part E claims. 

Meanwhile, Congress may wish to 

consider amending EEOICPA to 

create an independent review 

board for the Part E program. 

Cases that do not require dose reconstruction can take about a year to 

adjudicate, but those that do can take a total of 3 or more years. Such cases 

require an extensive scientific process to “reconstruct’” the historical 

evidence on exposure, and this has made dose reconstruction the primary 

reason for lengthier processing times. The availability of claimant data and 

the need to rework some cases in view of new claimant information or 

changes to scientific methodologies involved in determining exposures can 

also affect processing times. Meanwhile, Labor and NIOSH have each 

developed ways to expedite case processing. 

The administrative cost of EEOICPA reflects the requirements of a complex, 

science-based adjudication process. In 2008 this cost amounted to $106 

million for the Part B program and almost $57 million for Part E. 

Administrative costs have averaged about 20 percent of the total program cost 

for Part B and 14 percent for Part E. A substantial factor underlying the 

greater administrative cost of the Part B program is dose reconstruction, 

which was required for about a third of all Part B cases. 

Quality controls in the form of multiple internal reviews are in place for both 

Part B and E programs. However, only the Part B program employs external 

expert reviews, required by statute, which provide independent verification of 

the work. EEOICPA does not specifically require external review of the Part E 

program. As a result, Labor’s processes related to the adjudication of Part E 

cases, in particular, are not informed by any independent expertise outside 

the agency’ s purview. For example, though Labor employs a contractor and a 

small team of internal experts to update its Part E database of work sites, 

toxins, and their associated diseases, the composition of this database lacks 

external review to ensure that it is as comprehensive and scientifically sound 

as possible. In addition, there is no oversight or independent review to ensure 

the quality of consultant physicians’ work for Part E. 

The agencies have taken various steps to assist claimants and make more 

program information public; however, program transparency remains 

somewhat limited, in part because of national security considerations. NIOSH 

has worked with Energy to clear information for publication in the site 

profiles developed for use in reconstructing doses for Part B cancer claims. 

However, Labor has not taken similar steps with Energy to release data in the 

site exposure matrix used to adjudicate Part E claims. Meanwhile, NIOSH has 

established an ombudsman to help Part B claimants with their claims. While 

the act established an ombudsman within the Department of Labor, GAO 

found that Labor does not respond publicly to his annual reports on claimant 

concerns. As a result, claimants have little knowledge that their concerns are 

heard or that they are being addressed. 

View GAO-10-302 or key components.

For more information, contact Andrew Sherrill 

at (202) 512-7215 or sherrilla@gao.gov. 
Page i GAO-10-302 

Contents 

Letter 1

Background 3 

Cases Can Require a Year to Adjudicate, but Dose Reconstruction 

Can Add 2 or More Years to the Process 11 

Administrative Costs Reflect Requirements of Science-Based 

Adjudication 22 

Part B Quality Controls Generally Include Internal and 

Independent Reviews, while Part E Processes Lack Independent 

and Expert Review 25 

Despite Agencies’ Actions, EEOICPA Program Transparency 

Remains Somewhat Limited 36 

Conclusions 42 

Recommendations for Executive Action 43 

Matter for Congressional Consideration 44 

Agency Comments and our Evaluation 44 

Appendix I Objective, Scope, and Methodology 48 

Appendix II Labor and NIOSH’s Claim-Processing Steps 51 

Appendix III NIOSH and Labor’s Performance Measures 52 

Appendix IV Comments from the Department of Energy 54 

Appendix V Comments from the Department of Labor 55 

Appendix VI GAO Contact and Staff Acknowledgments 57 

Related GAO Products 58 

 Energy Employees Compensation 
Tables 

Table 1: Comparison of EEOICPA Parts B and E Eligibility and 

Benefits 4

Table 2: Approval Rates for EEOICPA Cases as of January 28, 2010 10

Table 3: Average Days Added to Processing Times for Cases Labor 

Returned to NIOSH for Rework 14

Table 4: Part B Benefits Paid and Direct Administrative Costs 23

Table 5: Part E Benefits Paid and Direct Administrative Costs 23

Table 6: NIOSH Performance Measures for Fiscal Year 2009 52

Table 7: Department of Labor Performance Measures in 2008 52

Figures 

Figure 1: Claims That Require Dose Reconstructions Are Processed 

Differently than Claims That Do Not 8 

Figure 2: Processing Times for Cases Decided in Fiscal Year 2008 12 

Figure 3: Average Processing Times for Part B and Part E Cases by 

Year Decided, Fiscal Years 2002-2008 13 

Figure 4: NIOSH Efficiency Process Using Rough Estimates for 

Dose Reconstructions 20 

Abbreviations 

AFL-CIO American Federation of Labor-Congress of Industrial 

Organizations 

ANWAG Alliance of Nuclear Worker Advocacy Groups 

EEOICPA Energy Employees Occupational Illness Compensation 

Program Act 

FAB Final Adjudication Branch 

GPRA Government Performance and Results Act 

IG inspector general 

NIOSH National Institute for Occupational Safety and Health 

OMB Office of Management and Budget 

PART Program Assessment Rating Tool 

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Page ii GAO-10-302 Energy Employees Compensation
Page 1 GAO-10-302 

ed 

s 

t wage 

vivors totaling over $5 billion. 

 

United States Government Accountability Office

Washington, DC 20548 

 

March 22, 2010 

Congressional Requesters 

For the last several decades, the Department of Energy (Energy) and its 

predecessor agencies1

 and contractors employed hundreds of thousands 

of individuals in secret and dangerous work in nuclear weapons 

production in over 350 facilities in almost every state in the United States, 

such as the Rocky Flats Plant in Colorado and the Los Alamos National 

Laboratory in New Mexico. Over the years, especially early on, many 

workers were unknowingly exposed to toxic substances, including 

radioactive and other hazardous materials, and subsequently develop

serious illnesses, including cancer and lung disease. To provide 

compensation to these workers, Congress enacted the Energy Employee

Occupational Illness Compensation Program Act of 2000 (EEOICPA). The 

Department of Labor (Labor) has the primary responsibility for 

administering this program, which provides for medical benefits, los

replacement, and/or onetime financial compensation. In addition, the 

Department of Health and Human Services, through its National Institute 

for Occupational Safety and Health (NIOSH), and Energy each have 

assigned duties under the act.2

 As of January 2010, Labor had awarded 

compensation for work-related illnesses for over 56,000 claims to workers 

or their sur

Within a few years of EEOICPA’s enactment, claimants and Members of 

Congress began raising questions about implementation of the program. 

Instead of receiving timely compensation for their work-related illnesses, 

claimants have reported difficulty navigating the program, years of delay, 

and perceived inconsistencies in the adjudication process. Meanwhile, 

several articles critical of the program have appeared in the press. 

Following a highly critical series of articles in the Denver, Colorado, 

Rocky Mountain News in 2008, 17 Members of Congress asked GAO to 

review how EEOICPA is being implemented. We reviewed the (1) average 

claim-processing times and factors that affect these, (2) costs of 

administering the program, (3) extent to which quality controls are in 

1

The Energy Research and Development Administration and the Atomic Energy 

Commission. 

2

NIOSH is part of the Centers for Disease Control and Prevention, which is an agency in the 

Department of Health and Human Services. 

 Energy Employees Compensation 
 

place to help ensure that claims determinations are supported with 

objective and scientific information, and (4) actions agencies have taken 

to make the program more transparent for claimants. 

To determine the time it takes to process claims and associated costs, we 

obtained reports on processing times for different types of claims, 

administrative costs, and performance measurement from Labor, NIOSH, 

and Energy. To determine which factors affected processing times, we 

obtained claim-processing times by type of claim to ascertain whether 

there were significant and consistent differences between the processing 

times based on the type of claim. We interviewed relevant officials 

regarding the reliability of the data, checked for outliers and 

inconsistencies, and determined that their claims management data were 

sufficiently reliable for the purposes of this report. We did not 

independently verify the accuracy of the data from any agency. To assess 

the quality controls and transparency of the claims adjudication process 

for our third and fourth objectives, we reviewed EEOICPA, relevant 

regulations, and agency technical and procedural guidance for EEOICPA; 

interviewed officials from Labor, Energy, and NIOSH; and interviewed 

members of the Advisory Board on Radiation and Worker Health, the 

presidentially appointed board that oversees the scientific validity of 

NIOSH’s work, and its contractor. We obtained additional expert opinion 

on technical issues and further insight on topics of concern by 

interviewing representatives of the occupational and environmental health 

and other medical professions; claimant ombudsmen with Labor, NIOSH, 

and the state of New Mexico; and claimant representatives from a 

nationwide coalition of grassroots advocacy groups.3

We conducted this performance audit from November 2008 to March 2010 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. For more information on our 

scope and methodology, see appendix I. 

 

3

Physicians we contacted included members of specialty societies such as the American 

College of Occupational and Environmental Medicine, two former Medical Directors for 

Part E, and occupational specialists who are actively involved in assisting claimants. 

Page 2 GAO-10-302 Energy Employees Compensation
 

EEOICPA, as amended, provides compensation and wage replacement for 

Energy workers employed over the last several decades in the production 

of U.S. nuclear weapons who developed illnesses related to their exposure 

to radiation and many other toxins.4

 During and shortly after World War II, 

U.S.-sponsored nuclear weapons development and production included a 

small network of scattered, privately owned facilities. During the Cold 

War, this network expanded into a complex of as many as 365 industrial 

sites and research laboratories throughout the country that employed 

more than 600,000 workers in the production and testing of nuclear 

weapons. 

Background 

Some of the production sites were owned by Energy and its predecessor 

agencies and operated by contractors; others were privately owned but 

operated under contract with Energy; still others provided Energy and its 

contractors with needed services and supplies. Workers in these facilities 

used manufacturing processes that involved handling very dangerous 

materials, and they often were provided inadequate protection from 

exposure to radioactive elements, although protective measures have 

increased over time. Because of national security concerns, they also 

worked under great secrecy, often facing severe criminal penalties for 

breaches of secrecy. Workers were also often given minimal information 

about the materials with which they worked and the potential health 

consequences of their exposure to the materials. Active production of 

nuclear weapons was halted at the end of the Cold War, and federally 

sponsored cleanup of some of these sites has been under way since that 

time. Other sites remain active for research, storage, uranium production, 

and weapons assembly and disassembly. As noted by Congress in 

EEOICPA, it had been Energy’s long-standing policy to help its contractors 

litigate claims filed by their employees for state workers’ compensation 

when they became ill.5

 As a result of the many years of secrecy, the lack of 

information, and the years of denial that their conditions were related to 

exposure, many claimants find it difficult today to trust that the federal 

government is fairly evaluating their claims under the program established 

by EEOICPA. 

 

4

42 U.S.C. §§ 7384 – 7385s-15. 

5

42 U.S.C. § 7384(a)(4). See also Executive Order 13179, December 7, 2000. 

Page 3 GAO-10-302 Energy Employees Compensation
 

EEOICPA established two compensation programs: Part B and Part E.6

While both pay for future medical expenses, there are significant 

distinctions. Part B of the act provides for a onetime payment of $150,000 

to Energy employees or their survivors as well as certain contractor 

employees or their survivors, while Part E of the act covers Energy 

contractor employees or their spouses and dependent children and 

replaces lost wages and compensates for impairment up to $250,000.7

Each program also covers different types of exposure: The Part B prog

covers those who have developed cancer as the result of exposure to 

radiation and lung diseases resulting from exposure to beryllium and 

silica. The Part E program compensates for illnesses, including cancer, 

that result from exposure to toxic substances. Table 1 summarizes 

covered workers and illnesses, and the benefits paid under each program. 

Structure of the 

Compensation Programs 

ram 

Table 1: Comparison of EEOICPA Parts B and E Eligibility and Benefits 

Covered employees Covered survivors Covered illnesses Compensation 

Part B Energy employees 

Energy contractor or 

subcontractor employees 

Employees of atomic weapons 

employers 

Employees of beryllium vendors 

Uranium miners, millers, and ore 

transporters awarded under 

Section 5 of the Radiation 

Exposure Compensation Act 

Next of kin (in order of 

precedence) 

-Spouse 

-Children 

-Parents 

-Grandchildren 

-Grandparents 

Cancer related to radiation 

Chronic beryllium diseasea 

Chronic silicosisa 

Beryllium sensitivityb 

$150,000 lump sum ($50,000 if 

awarded payment under 

Section 5 of the Radiation 

Exposure Compensation Act) 

Plus medical coverage for 

future medical expenses 

related to the illness 

 

6

Part E replaced Part D, which had authorized Energy to enter into agreements with states 

to assist Energy contractor employees in filing state workers’ compensation claims. In our 

prior work, we had found that the structure of the Part D program could result in 

inconsistent benefit outcomes for claimants. See GAO, Energy Employees Compensation: 

Even with Needed Improvements in Case Processing, Program Structure May Result in 

Inconsistent Benefit Outcomes, GAO-04-516 (Washington, D.C.: May 28, 2004). Part E was 

created in 2004 with the goal of creating a fair and equitable alternative to state workers’ 

compensation programs under which workers had encountered chronic delays and 

inefficiencies. 

7

Under Part B, compensation of $50,000 and payment of medical expenses is also available 

for employees exposed to uranium who have previously been awarded benefits by the 

Department of Justice under Section 5 of the Radiation Exposure Compensation Act. 

Page 4 GAO-10-302 Energy Employees Compensation
 

 Covered employees Covered survivors Covered illnesses Compensation 

Part E Energy contractor employees 

Uranium miners, millers, and ore 

transporters covered under 

Section 5 of the Radiation 

Exposure Compensation Act 

Spouse 

Children 

-Under 18 at time of death, 

-Under 23 and enrolled fulltime in school, or 

-Incapable of self-support 

Illnesses related to 

exposure to toxic 

substances at Energy 

weapons facilities 

Wage loss and impairment up 

to $250,000 

Plus medical coverage for 

covered illnesses 

Source: GAO analysis of the EEOICPA statute. 

a

Chronic beryllium disease primarily affects the lungs and is caused by people inhaling beryllium dust 

or fumes. Chronic silicosis is a lung disease caused by overexposure to crystalline silica, a major 

component of sand, rock, and mineral ores. Chronic silicosis is covered only for individuals who 

worked in nuclear test tunnels in Nevada and Alaska. 

b

There is no monetary compensation for beryllium sensitivity. Only medical monitoring is provided. 

Agency Roles in 

Implementing EEOICPA 

Labor adjudicates claims for compensation under the Part B and Part E 

programs. NIOSH conducts the technical and scientific research to 

support the adjudication of radiation-related cancer claims under Part B. 

Energy provides administering agencies and claimants with information 

relevant to worker exposures. EEOICPA required the President to 

establish the Advisory Board on Radiation and Worker Health and appoint 

members who reflect a balance of scientific, medical, and worker 

perspectives.8

 The board advises the Department of Health and Human 

Services on the scientific quality and validity of NIOSH’s work and has 

retained a contractor to provide technical expertise and support. In a prior 

report, we found that issues pertaining to the Part B Advisory Board’s 

funding structure, appointment process, and staff support presented 

challenges to independence, leaving the board vulnerable to potential 

outside influence. We identified various options to enhance the board’s 

independence in each area for congressional consideration.9

Labor’s adjudication of claims entails first determining whether a claimant 

meets the eligibility requirements of the act, such as whether the claimant 

worked in a facility covered by the act or meets the definition of a covered 

survivor. Then Labor reviews evidence of the worker’s employment 

history, exposure to radiation or other toxic substances, and medical 

records. To determine whether the claimed illness is compensable, Labor 

 

8

42 U.S.C. § 7384o. 

9

GAO, Energy Employees Compensation: Actions to Promote Contract Oversight, 

Transparency of Labor’s Involvement, and Independence of Advisory Board Could 

Strengthen Program, GAO-08-4 (Washington, D.C.: Oct. 26, 2007). 

Page 5 GAO-10-302 Energy Employees Compensation
 

must find that the illness is related to radiation or toxic exposure during 

employment at a covered facility. 

For radiation-related cancer claims, Labor relies on NIOSH’s estimates of 

the type and level of radiation exposure received by the worker and the 

associated radiation dose to each organ affected by cancer. This extensive 

process of estimating the radiation dose to each affected organ is referred 

to as dose reconstruction. The radiation dose associated with cancer risk 

depends on many variables: the type of radiation, dose pathway (for 

example, inhalation of particles, contact with skin, or ingestion of 

contaminated food or water), and the way radiation interacts with each 

organ or body system. Research to determine the radiation levels to which 

an individual worker was exposed requires gathering information such as 

the site’s radiation level readings over time, readings from a worker’s 

monitoring badge (if available), records of claimant interviews about 

working conditions, and work-required medical screenings. For cases in 

which NIOSH cannot fully characterize the likely level of radiation 

exposure, it estimates the level of exposure using reasonable scientific 

assumptions that give the claimant the benefit of the doubt. 

Since nuclear weapons research and production occurred over several 

decades and at sites throughout the country, many of which are now 

defunct, Labor, with assistance from NIOSH and Energy, must research 

and inventory these sites for the evidence needed to review workers’ 

claims. Much of this evidence is maintained at the individual facilities 

where the work took place. Energy maintains and catalogs records from 

these facilities and provides experts to assist Labor and NIOSH in 

collecting this information. NIOSH has prepared detailed facility-specific 

information in site profiles, which describe the buildings, manufacturing, 

and other processes used, and the types of radioactive elements at each 

major covered facility. 

Despite these research efforts, there are groups of workers for whom it is 

not feasible to estimate the radiation doses with sufficient accuracy. In 

such cases, the act provides that workers may be designated as part of the 

Special Exposure Cohort, qualifying them for compensation without dose 

reconstruction if they have 1 of 22 specified types of cancer and meet 

Page 6 GAO-10-302 Energy Employees Compensation
 

certain other requirements.10 NIOSH may recommend additions to the 

Special Exposure Cohort when, in its research, it determines that site 

records are inadequate to support dose reconstruction with sufficient 

accuracy. Claimants or their representatives may petition to add classes of 

workers to the Special Exposure Cohort if they identify a class of workers 

for whom dose reconstruction is not feasible. If a petition includes all 

required information, NIOSH will evaluate the petition, assessing the 

sufficiency and quality of available information and either proposing 

methods of reconstructing the dose or agreeing that the workers should be 

treated as part of the Special Exposure Cohort. The Advisory Board 

reviews the petition and NIOSH’s evaluation and advises the Secretary of 

Health and Human Services on whether another class of workers should 

be added. 

To determine eligibility for Part E compensation for illnesses resulting 

from exposure to toxic substances, Labor relies heavily on a complex 

database of information that, with the help of a contractor, has been 

drawn from the facility records and toxicology research. Known as the site 

exposure matrix, it specifies a myriad of site-specific information, such as 

what toxins were present at each facility, job descriptions, and production 

processes.11 Moreover, it cross-references the toxins known to be at each 

site with diseases for which there is an established link. This portion of the 

site exposure matrix was drawn from the National Library of Medicine’s 

database of hazardous toxins and associated diseases—known as the HazMap. When records are unavailable or insufficient to determine whether 

workers were exposed to toxins (other than radiation), there is no process 

similar to the Special Exposure Cohort petition process for radiationrelated cancer claims. 

 

1042 U.S.C. § 7384q. The act initially designated workers from four specific sites as 

members of the Special Exposure Cohort. As of March 2010, 51 additional classes of 

workers had been added to the Special Exposure Cohort since that time. On March 5, 2010, 

the Advisory Board on Radiation and Worker Health recommended to the Secretary of HHS 

the addition of five additional classes of employees to the Special Exposure Cohort. These 

five classes are awaiting approval by the Secretary. According to NIOSH, if approved, the 

additional classes of employees will also become part of the Special Exposure Cohort in 

early May 2010. 

11According to Labor officials, the site exposure matrix database does not include 

radioactive substances except those whose properties may have toxic effects independent 

of radiation. For example, inhalation of soluble forms of uranium may cause kidney 

disease. 

Page 7 GAO-10-302 Energy Employees Compensation
 

Upon receipt of a claim, Labor first determines whether the Part B 

claimant meets the eligibility requirements for any one of the following 

types of claims: Radiation Exposure Compensation Act Section 5 

supplement, chronic beryllium disease, chronic silicosis, or Special 

Exposure Cohort cancer claims. If so, these claims are adjudicated 

exclusively by Labor (see fig. 1). All radiation-related cancer claims not 

covered by the Special Exposure Cohort are referred to NIOSH for dose 

reconstruction. 

Part B Claim Processing 

Figure 1: Claims That Require Dose Reconstructions Are Processed Differently than Claims That Do Not 

Source: GAO analysis of Labor and NIOSH claim processes.

Labor recieves

claims and 

determines

whether the 

claimant meets

the eligibility 

requirements

Beryllium

 Silicosis

Special Exposure Cohort claims

Labor refers this type

of claim to NIOSH for

dose reconstruction

Claims

examiner 

sorts

claims

by type

NIOSH submits dose

reconstruction to Labor

Radiation Exposure Compensation Act

Claims involving cancers

not covered by Special

Exposure Cohort provisions

Labor

develops a

recommended

decision

NIOSH estimates the

employee’s level of

exposure to radiation

DOSE RECONSTRUCTION

Section 5 

Using scientific and other collected information, NIOSH performs a dose 

reconstruction and provides the results to Labor. NIOSH’s dose 

reconstruction estimates the amount (dose) of radiation to the organ 

affected by the worker’s cancer, erring on the side of higher exposure and 

greater cancer risk whenever specific exposure data are limited. Labor 

uses the dose reconstruction results to determine whether it is at least as 

likely as not that the worker’s cancer is related to his or her employment 

at a covered Energy or contractor facility.12 As required by EEOICPA, 

Labor uses regulatory guidelines developed by the Department of Health 

 

1242 U.S.C. § 7384n(b) and (c). 

Page 8 GAO-10-302 Energy Employees Compensation
 

and Human Services to make that determination.13 Those guidelines 

provide that a cancer was at least as likely as not related to radiation 

exposure incurred by the worker in the performance of duty if the 

probability of causation is estimated to be 50 percent or more.14 See 

appendix II for detailed information about the claim-processing steps used 

by Labor and NIOSH. 

Part E Claim-Processing Part E claims are adjudicated by Labor using information it collects in the 

site exposure matrix on the types of toxic substances at Energy facilities.15

This information is analyzed by claims examiners, and sometimes with the 

assistance of medical consultants, to determine if it is at least as likely as 

not that exposure to a toxic substance at a covered Energy facility is 

considered a significant factor in the development of the illness.16 Labor’s 

claims examiners refer to the site exposure matrix for a historical 

description of the types of industrial toxins present and the processes in 

which they were utilized, as well as information on known links between 

these toxins and occupational illness documented in peer-reviewed 

professional journals. When considering compensability under Part E for 

radiation-related cancers, Labor generally uses the dose reconstruction 

process and the NIOSH probability of causation regulatory guidelines it 

uses for Part B claims. 

Cases versus Claims Since the inception of the EEOICPA programs, over 188,000 claims have 

been filed by either workers or their survivors. These claims represent 

about 129,000 actual worker cases—because there is more than one 

survivor involved in some cases. Labor estimates that the claims it has 

handled to date represent closer to 75,000 individual workers. Therefore, 

we provide data for the numbers of cases processed, which refers to the 

individual workers represented by one or more claims. 

 

1342 U.S.C. § 7384n(b). 

14The Department of Health and Human Services’ NIOSH has issued the required guidelines 

at 42 C.F.R. Part 81 which state in § 81.2 that, as required by EEOICPA, the guidelines 

“produce a determination as to whether it is at least as likely as not (a 50 percent or greater 

probability) that the cancer of the covered employee was related to radiation doses 

incurred by the employee in the performance of duty.” 

15Also at Radiation Exposure Compensation Act Section 5 facilities. 

1642 U.S.C. § 7385s-4(c). 

Page 9 GAO-10-302 Energy Employees Compensation
 

As shown in table 2, Labor had adjudicated approximately 89 percent of 

EEOICPA cases filed as of January 2010, of which just over 39 percent 

were approved. Approval rates excluding cases that did not meet initial 

eligibility requirements are over 56 percent. 

Table 2: Approval Rates for EEOICPA Cases as of January 28, 2010 

Cases filed Cases processed (percent) Cases approved (percent)

Part B 69,039 62,526 (91%) 

Includes 48,036 final decisions 

plus 14,490 noncovereda 

(21% of cases filed) 

27,298 (40%)

Part E 60,364 52,553 (87%) 

Includes 41,605 final decisions 

plus 10,948 noncovereda

(18 % of cases filed) 

22,646 (38%)

Source: GAO analysis of Labor data. 

a

Noncovered cases are those for which the medical condition claimed is not one of the covered 

occupational illnesses (applies only to Part B cases), the employee’s covered employment has not 

been established (Parts B and E), or a survivor did not meet eligibility requirements (Part E). Ineligible 

survivors constitute the majority of the noncovered cases under Part E. Claims that do not have a 

covered occupational illness constitute the majority of the noncovered cases under Part B. 

As part of a November 2008 report, Labor’s Office of Inspector General 

reviewed a sample of 140 claims that had received final decisions or were 

administratively closed from October 2005 through June 2007 and 

determined that Labor issued claim decisions that complied with 

applicable federal laws and regulations and were based appropriately on 

the evidence supplied by or obtained on behalf of claimants.17

 

17Department of Labor’s Office of Inspector General, Energy Employees Occupational 

Illness Compensation Program-DOL Could Do More to Assist Claimants and Further 

Improve Timeliness, (Washington, D.C.: Nov. 12, 2008), 04-09-002-04-437. 

Page 10 GAO-10-302 Energy Employees Compensation
 

Cases that do not require dose reconstruction can take about a year to 

adjudicate, but those that do can take a total of 3 or more years, and other 

factors can delay processing even further. Dose reconstruction is the 

primary factor affecting processing time, and changes to the information 

provided or the scientific methods used to determine compensability can 

lengthen the processing time for any case requiring dose reconstruction. 

The availability of claimant information and agency workload also affect 

the processing times. Labor and NIOSH have developed strategies to 

expedite case processing and performance measures to monitor 

timeliness. These efforts have helped reduce the case backlog and shorten 

processing times of certain steps in the claims cycle. 

Cases Can Require a 

Year to Adjudicate, 

but Dose 

Reconstruction Can 

Add 2 or More Years 

to the Process 

Dose Reconstruction Is a 

Key Determinant of 

Processing Time—Adding, 

on Average, 2 or More 

Years 

Cases requiring dose reconstruction, which constitute a third of all Part B 

cases, have taken an average of 3 or more years to process.18 Since 

determining the causation of cancer requires extensive data collection and 

scientific estimates, dose reconstruction is a lengthy and meticulous 

scientific process. Dose reconstruction is not needed for Part B beryllium 

or silicosis cases or Part E cases that do not involve radiation-related 

cancers; therefore, the processing times for these cases are much shorter. 

According to data from Labor, Part B cases requiring dose reconstruction 

for which final decisions were issued in fiscal year 2008 took 1,132 days, 

on average—just over 3 years—to process, compared with 377 days for 

non-dose reconstruction Part B cases for which final decisions were 

issued in fiscal year 2008.19 By contrast, Part E cases for which final 

decisions were issued in 2008 averaged 351 days to process. Similarly, 

minimum and maximum processing times were also greater for those 

cases that underwent dose reconstruction compared with those that did 

not (see fig. 2). 

 

18This and the following calculations are based on individual cases, which for some include 

more than one claim or claimant. 

19Processing times are calculated from the date of filing to the date of the final decision. 

This time includes the average days spent preparing the case, performing dose 

reconstructions, preparing recommended decisions, and issuing final decisions. 

Page 11 GAO-10-302 Energy Employees Compensation
 

Figure 2: Processing Times for Cases Decided in Fiscal Year 2008 

Source: GAO analysis of data from the Department of Labor’s Energy Case Management System for claims receiving final decisions

in fiscal year 2008.

2 3 4 5 6 7

0

500 1,000 1,500 2,000 2,500

Part B

(With dose

reconstruction)

161 days Average 1,132

Median 932

2,591

Part B

(Without dose

reconstruction)

Average 377

Median 232

7 2,512

Part E

Average 351

Median 252

9 1,184

Days

Years 0 1

a

a

While some Part E cases require dose reconstruction, those cases are not included in the figure. 

Labor does not report on Part E cases requiring dose reconstruction because there is no consistent 

calculation available. 

Processing times were shorter earlier in the program and subsequently 

became longer. This was due, in part, to the fact that NIOSH chose to 

process simpler cases first in order to expedite them, which effectively 

postponed the handling of cases that were likely to be more difficult. As a 

result, the processing time for all Part B cases was greatest in 2006 and has 

only slightly decreased since then (see fig. 3). On the other hand, 

processing time for cases under Part E has gradually increased since the 

program was implemented in 2005. 

Page 12 GAO-10-302 Energy Employees Compensation
 

Figure 3: Average Processing Times for Part B and Part E Cases by Year Decided, Fiscal Years 2002-2008 

Source: Department of Labor’s Energy Case Management System for Part B claims receiving final decisions from fiscal years 2002

through 2008, and Part E claims receiving final decisions from fiscal years 2005 through 2008.

0

200

400

600

800

1,000

1,200

2002 2003 2004 2005 2006 2007 2008

Average days

to process

Part B cases without dose reconsctruction

Part B cases with dose reconsctruction

Part E cases

177

254 271

228

753

298

977

42

422

1,223

165

410

1,105

377

1,132

351 324

412

Note: Labor calculated the average processing times from the date the case was filed to the date 

Labor issued its final decision for the case. If there was more than one filing date for a given worker, 

Labor used the first final decision. These times were calculated based on the year in which a final 

decision was reached, rather than the year the case was filed. While some Part E cases require dose 

reconstruction, those cases are not included in the table. Labor does not report on Part E cases 

requiring dose reconstruction because there is no consistent calculation available. 

Though Special Exposure Cohort cases are not subject to dose 

reconstruction, cases processed in fiscal year 2008 nonetheless took 

almost 21⁄2 years to process, on average. Moreover, total processing times 

for cases identified for inclusion in the Special Exposure Cohort in 2008 

varied widely, from a minimum of 3 days to as much as 2,584 days—just 

over 7 years. One reason that cases were in process for several years may 

have been that they were filed before the case became a part of the Special 

Exposure Cohort. As such, the case would have been sent to NIOSH to 

undergo dose reconstruction before it could be determined that site or 

other data needed to complete a dose reconstruction were insufficient. 

This determination could have taken years before the case was designated 

to the Special Exposure Cohort and then fast-tracked for adjudication. 

Page 13 GAO-10-302 Energy Employees Compensation
 

Within the scientific process underlying dose reconstruction, there are 

several factors that can delay dose reconstruction. For any one dose 

reconstruction, NIOSH may complete many steps to gather information 

before issuing a final dose reconstruction.20 While NIOSH tracks time 

spent on major steps of its process, the agency does not track time spe

on every specific step of the process. However, NIOSH does track th

additional time it takes to rework dose reconstructions to take into 

account new information added to the case in the form of an amendment. 

Processing amendments adds, on average, 25 percent more time to the 

dose reconstruction process, according to NIOSH.

nt 

e 

21 Amendments are filed 

most often when Labor or claimants identify new information, for 

example, about additional cancers, personal data such as a correction in 

date of birth or death, or employment information that may affect the 

estimated dose. Amendments are filed for about one-third of all cases 

requiring dose reconstruction, and about one-fourth of all amended cases 

have been amended multiple times, according to NIOSH. Each subsequent 

amendment adds more time to the process. For example, according to 

data provided by Labor, sending a case to NIOSH a second time adds, on 

average, 235 days to the dose reconstruction process, as shown in table 3. 

Dose Reconstruction Can 

Be Delayed by the Receipt 

of New Information or the 

Availability of Site Profiles 

Table 3: Average Days Added to Processing Times for Cases Labor Returned to 

NIOSH for Rework 

Number of times Labor 

sends case to NIOSH 

Number of 

cases

Average 

cumulative days 

at NIOSH 

Average days 

added to 

processing time

1 19,112 701 Not applicable

2 4,634 936 235

3 615 1,109 408

4 60 1,253 552

5 6 1,317 616

Source: Data from the Department of Labor’s Energy Case Management System for cases returned to NIOSH for rework for fiscal 

years 2002 through 2008. 

 

20NIOSH requests records, compiles data, evaluates exposure records, interviews the 

claimant, develops detailed information, identifies coworkers, reports to the claimant 

summarizing information from the interview, incorporates additional claimant information, 

requests additional records from Energy, reviews the adequacy of monitoring data and 

completeness of the records, characterizes internal and external exposure environments, 

and conducts a final dose reconstruction calculation. 

21This is the average time added to the process and includes cases with single and multiple 

amendments. 

Page 14 GAO-10-302 Energy Employees Compensation
 

Even after a case is determined to be noncompensable, new information—

from the claimant, NIOSH, or Labor—may prompt Labor to send the case 

back to NIOSH to perform a new dose reconstruction. These reworks 

incorporate new information specific to a single worker, such as an 

additional cancer diagnosis or a newly discovered record of employment, 

or reflect revisions to either the site profile or the dose reconstruction 

method that was used.22 NIOSH was not able to report on the additional 

time needed for reworks resulting from revisions to its technical 

documents.23 However, these revisions often result in the reconsideration 

of cases that were previously denied. When NIOSH revises dose 

reconstruction methods, it publishes program evaluation reports 

describing the change so that completed cases that may be affected by the 

changes may be identified. According to NIOSH, it selects cases for 

rework based on technical revisions only if those cases had been 

previously denied. Thus, while performing new dose reconstructions on 

such cases may lengthen overall processing time, it might also result in a 

favorable outcome for the claimant if his or her previously denied claim is 

reconsidered for compensation. 

Another factor that affects the timeliness of completing dose 

reconstructions is the time it initially took NIOSH to research and develop 

the site profiles and dose reconstruction guidance for the more than 300 

covered facilities.24 From the program’s outset, NIOSH has given the 

highest priority to developing site profiles and dose reconstruction 

 

22The vast majority (97 percent) of cases returned to NIOSH for rework because of new 

information about the individual worker were cases that had been previously denied or 

recommended for denial based on NIOSH’s initial dose reconstruction. That is, they did not 

initially meet the 50 percent probability of causation threshold. Of the 3 percent of cases 

returned for rework that initially met the 50 percent probability of causation threshold, 15 

percent were later found not to meet the threshold. Of the 97 percent of cases returned for 

rework that did not initially meet the causation threshold, only 10 percent were later found 

to have met the threshold. Almost half of the 97 percent of cases that did not initially meet 

the threshold that were sent to NIOSH for rework have not been returned from NIOSH to 

Labor. Another 10 percent had been returned, but Labor had not yet issued a final decision. 

Fifteen percent of cases that had initially met the threshold for approval and were sent to 

NIOSH for rework had not been returned from NIOSH to Labor, while another 7 percent 

that were returned were still awaiting a final decision from Labor. 

23NIOSH does not track how much more time is added to the process as a result of these 

revisions to site profiles or dose reconstruction methods, because claims are returned to 

NIOSH for many different reasons—including amendments. 

24Site profiles contain information about the work site necessary to establish exposure 

parameters—namely historical information on radioactive materials at sites, activities at 

sites, worker monitoring programs, and detection limits. 

Page 15 GAO-10-302 Energy Employees Compensation
 

guidance for sites with the largest numbers of prospective claimants. For 

example, according to NIOSH, there are nine sites where 0 percent of dose 

reconstructions have been completed by NIOSH, affecting only nine 

claimants. NIOSH officials stated that the number of these sites with 0 

percent of completed dose reconstructions is expected to decrease. 

Availability of Claimant 

Data and Fluctuating 

Agency Workloads Can 

Also Delay Processing 

Time 

Irrespective of dose reconstruction, processing time for EEOICPA cases 

can be affected by the availability of claimant data, such as personal 

exposure and employment data, as well as by the agencies’ workloads. 

Since many facilities employed workers several decades ago—before the 

advent of electronic data—some records are difficult for Energy to locate 

and obtain. Some older sites do not have well-organized or computerized 

methods of locating documents, so locating records requires a more timeconsuming search. For example, at the Hanford site, older records must be 

searched by hand. According to Energy, the search is especially difficult 

when records are needed for claimants who worked for subcontractors 

many years ago because in most cases, employee records remained with 

the subcontractors who worked on Energy facilities and oftentimes, these 

companies no longer exist or have been bought and sold multiple times.25

Also, Labor may ask claimants to provide additional employment, 

exposure, or causation evidence that is not always readily available or no 

longer exists from their work site. Labor has contracted with the Center 

for Construction Research and Training to help research and document 

the information needed by workers in the construction trades to file 

claims, but it is often difficult to obtain the needed data.26

In addition, Labor reported that claims examiners’ workloads—which 

range from 25 to 45 cases—may surge when new Special Exposure Cohort 

classes are designated and Labor must identify affected cases to review. In 

2009, for example, when a class created for the Hanford Site was added to 

 

25Even after information is found, Energy must review the information to determine if it is 

classified, which can delay the information gathering process. Energy has procedures in 

place that allow NIOSH scientists access to the classified documents. 

26The Center for Construction Research and Training (formerly known as the Center to 

Protect Workers’ Rights) is a nonprofit organization created by the Building and 

Construction Trades Department of the American Federation of Labor-Congress of 

Industrial Organizations (AFL-CIO). Since 1990, it has conducted applied research and 

provided training and service to the construction industry. When Labor is unable to find a 

claimant’s employment information from Energy or his or her employer, the center 

researches and provides information for construction and trade worker claims. 

Page 16 GAO-10-302 Energy Employees Compensation
 

the Special Exposure Cohort, Labor’s district office in Seattle reported 

that it expected to be required to review an additional 1,600 cases for this 

new class without receiving additional staff to handle the work. 

Staff turnover may also delay claim-processing time, although Labor 

reported that it has processes in place to limit the additional time that staff 

turnover adds to adjudication. Labor stated that turnover rates vary among 

district offices, depending on local job markets. According to Labor 

officials, some turnover occurs because of term-limited positions—some 

claims examiners are appointed to 4-year terms and seek more permanent 

employment elsewhere when the term is complete.27 These positions 

constitute 31 percent of Labor’s claims examiners. Labor officials reported 

that these term-limited positions were instituted in 2002, when the 

program was new and the number of claims that would be filed was not 

known. A 2008 report by Labor’s Ombudsman noted claimants’ concerns 

that changing the claims examiner while claims were still being processed 

had resulted in processing delays.28 The Deputy Director of Labor’s 

Division of Energy Employees Occupational Illness Compensation 

program acknowledged that delay can occur when claims examiners leave 

and claims are transferred to others, but explained that district office 

managers mitigate delays by effectively monitoring the transfer of claims 

after one examiner leaves and ensuring that the new claims examiner is 

quickly brought up to speed. 

Delays may also occur when new claims examiners are hired by Labor, 

because training and educating new claims examiners can be timeconsuming given the complexity of the program. According to the Deputy 

Director, it usually takes, on average, 1 year for new claims examiners to 

confidently handle and adjudicate claims. 

 

27Labor reported that several claims examiners left for other government compensation 

programs. 

28Department of Labor, Office of the Ombudsman for Part E, 2008 Annual Report of the 

Ombudsman for Part E to Congress, (Washington, D.C.: Feb. 13, 2009). The Ombudsman’s 

office and the annual report to Congress are required under EEOICPA. 42 U.S.C. § 7385s-15. 

Although the Ombudsman’s authority was initially limited to Part E, in October 2009, the 

EEOICPA was amended to expand the Ombudsman’s authority to Part B. Pub. L. No. 111-

84, Div. C, Title XXXI, Subtitle D, § 3142(a). 

Page 17 GAO-10-302 Energy Employees Compensation
 

To help shorten processing times, both NIOSH and Labor have developed 

strategies to use in expediting certain cases. Because dose reconstruction 

is a complex process that requires considerable time, NIOSH has 

developed strategies to more efficiently complete dose reconstructions. 

First, NIOSH regularly reviews cases that were filed at the beginning of the 

program that have not yet been processed because of case complexity to 

determine the source of the delay. As a result, of the first 5,000 Part B 

cases sent to NIOSH for dose reconstruction, by 2008, NIOSH had 

completed dose reconstructions on all but 9.29 NIOSH is currently targeting 

the next 10,000 cases filed to determine which of these are still awaiting 

final dose reconstructions from NIOSH and will subsequently complete 

these cases.30 This strategy of targeting older cases, including legacy 

cases—those that have been at NIOSH for 2 or more years—has 

contributed to NIOSH reducing its backlog from a high of 6,546 cases in 

fiscal year 2004 to 826 cases in fiscal year 2008.31

NIOSH and Labor Have 

Procedures to Expedite 

Certain Cases 

Another strategy to reduce processing times is NIOSH’s use of rough dose 

estimations to expedite cases that would be clearly above or below the 50 

percent threshold of probability of causation.32 Figure 4 provides an 

overview of this process. NIOSH stated that this efficiency measure has 

minimized time spent reconstructing doses while maintaining the 

 

29These 5,000 cases are the oldest Part B cases sent to NIOSH in the beginning of the 

program; 4,991 have received final dose reconstructions or were withdrawn by Labor, 

administratively closed, qualified for a Special Exposure Cohort, sent with draft dose 

reconstruction reports to the claimant for review, or returned to NIOSH by Labor for 

rework. 

30NIOSH has identified approaches to moving forward on the remaining 9 cases. 

31In addition, NIOSH’s start-up process of developing most site profiles, establishing 

procedures, and hiring staff is now complete and does not affect processing time for cases 

reviewed by NIOSH, as we previously reported in September 2004: GAO, Energy 

Employees Compensation: Many Claims Have Been Processed, but Action Is Needed to 

Expedite Processing of Claims Requiring Radiation Exposure Estimates, GAO-04-958

(Washington, D.C.: Sept. 10, 2004). 

32The practice of rough estimation, described in NIOSH’s regulations at 42 CFR 82.10(k), 

allows NIOSH to more quickly complete dose reconstructions for certain kinds of claims. 

According to NIOSH, this process of rough estimation prioritizes cases based on their 

likelihood of compensation. It allows for the reconstruction of doses only so far as to 

provide an unambiguous compensation decision to Labor. NIOSH may substantially 

overestimate the potential dose received by an employee when compensation seems 

unlikely based on the type of cancer and length of employment. In this instance, if the 

probability of causation still does not reach or exceed 50 percent, despite the 

overestimation of the exposure dose, NIOSH can easily determine that the case will not be 

compensated. 

Page 18 GAO-10-302 Energy Employees Compensation
 

reliability of the outcome. In 2005, NIOSH invested in new software 

technology that allows for faster calculations for some dose 

reconstructions. According to the agency, this technology has reduced the 

time it takes to calculate certain types of dose estimates from months to 

hours. In fact, the average processing times for dose reconstructions 

began to decrease in 2006. Finally, NIOSH created several staff positions 

to assist claimants through the Special Exposure Cohort and dose 

reconstruction processes, because the completeness of the information 

submitted by claimants can directly affect the time it takes to process their 

claims. Two of these positions, NIOSH’s Special Exposure Cohort Petition 

Counselor and the Ombudsman, help ensure that petitioners include all of 

the required and appropriate information when filing petitions. Similarly, 

NIOSH designated its Ombudsman to inform claimants of the information 

required for dose reconstructions. 

Page 19 GAO-10-302 Energy Employees Compensation
 

Figure 4: NIOSH Efficiency Process Using Rough Estimates for Dose Reconstructions 

Source: GAO analysis of The NIOSH Radiation Dose Reconstruction Program.

PRECISE ESTIMATE

NIOSH considers

the organ(s) affected,

the type of radioactive 

elements, and how the 

exposure occurred.

ROUGH ESTIMATES

Cancer LIKELY to be

caused by radiation exposure

Threshold

not met

Threshold

not met

Threshold met

or exceeded

Threshold met

or exceeded

Threshold met

or exceeded

Threshold

not met

Cancer UNLIKELY to be

caused by radiation exposure

Exposure

calculated using

overestimated

dose

Exposure calculated

with complete dose

reconstruction

Exposure calculated

with complete dose

reconstruction

Exposure

calculated using

under estimated

dose

Exposure

calculated using

overestimated

dose

Exposure

calculated using

underestimated

dose

Low probablity

of causation that

cancer is related

to exposure

High probablity

of causation that

cancer is related

to exposure

Labor prioritizes claims for terminally ill claimants in an effort to issue 

final decisions as quickly as possible for these claimants. Under Part E, 

about 98 percent of workers who filed claims survived long enough to 

receive Labor’s final decision. Part B had similar results, where 97 percent 

of Part B eligible workers who filed claims survived to receive a final 

decision from Labor. 

Page 20 GAO-10-302 Energy Employees Compensation
 

In 2007, NIOSH established performance targets for fiscal year 2008 for its 

processes in response to the results of the Office of Management and 

Budget’s (OMB) Program Assessment Reporting Tool (PART) evaluation. 

The agency now has five measures it uses to track its performance in 

completing dose reconstructions and evaluating Special Exposure Cohort 

petitions. NIOSH uses these to track its progress toward completing a 

percentage of certain types of cases and petitions within specified time 

frames. See appendix III for a list of the performance measures and 

results. In 2008, NIOSH set baselines for two of the five measures. 

Program officials reported that NIOSH has not established timeliness 

measures for specific steps of the dose reconstruction process because its 

data system does not track specific job activities. 

NIOSH and Labor Have 

Established Performance 

Measures and Goals to 

Monitor Timeliness 

Labor’s annual operational plan for the program includes program 

workload and timeliness targets. Labor has established separate 

performance measures that correspond to 18 discrete steps of its 

adjudication process (excluding the activities of NIOSH). At the end of 

fiscal year 2008, Labor met 14 of the goals but did not meet the other 4 

(see app. III for more detailed information). Labor’s performance in 2008 

surpassed that in 2007, during which the agency met just over half of its 

goals. Moreover, Labor has adjusted its measures over time to target 

higher levels of performance. In 2008, the agency adjusted targets for onethird of its measures. 

In addition, Labor received a rating of “adequate” for its administration of 

the program in OMB’s 2007 PART evaluation. This rating calls for more 

ambitious goals for monitoring agency performance.33 Nevertheless, the 

program has improved efficiency over time by increasing the average 

number of decisions per full-time claims examiner from about 117 decisions 

per full-time employee in fiscal year 2005 to 161 decisions in fiscal year 2008. 

In its 2008 report that, in part, reviewed the timeliness of Labor’s claim 

processing, Labor’s Inspector General (IG) noted that while the agency 

had many performance measures that target specific steps in the process, 

it did not report the overall processing time for claims from start to 

finish.34 The IG therefore recommended that Labor track and report 

 

33Office of Management and Budget, Detailed Information on the Energy Employees 

Occupational Illness Compensation Program Assessment, Assessment Year 2007. 

34Department of Labor’s Office of Inspector General, Energy Employees Occupational 

Illness Compensation Program-DOL Could Do More to Assist Claimants and Further 

Improve Timeliness (Washington, D.C.: Nov. 12, 2008), 04-09-002-04-437. 

Page 21 GAO-10-302 Energy Employees Compensation
 

overall claim-processing time, including time spent at NIOSH fo

reconstruction. Labor responded that it does not track overall timeliness 

because it does not have control over the activities of the other agencies 

involved.

r dose 

 

35 Labor added that such a measure would not be an accurate 

representation of its adjudication process and would render its 

performance measures useless. Nevertheless, Labor has begun posting 

information on overall claim-processing time on its Web site. The IG also 

recommended that Labor create interim milestones for the initial claimprocessing phase since Labor did not meet its timeliness goals for this part 

of the process. Labor did not concur with this recommendation.36

In 2008, EEOICPA’s administrative costs were over $106 million for Part B 

and almost $57 million for Part E claims. That same year, over $484 million 

dollars in benefits was paid for Part B, and $456 million was paid for Part 

E claims.37 (See tables 4 and 5 for direct administrative costs and benefits 

paid over the life of the programs.) The administrative costs in any given 

year are not necessarily related to the benefits paid because paid claims do 

not reflect the number of claims processed in that same year. Payments 

represent only claims paid out in that year. The administrative costs reflect 

the costs of processing all claims, including those that were denied and 

those that have not yet been decided. 

Administrative Costs 

Reflect Requirements 

of Science-Based 

Adjudication 

Over the life of the program, direct administrative costs have averaged 

about 20 percent of the total program cost for Part B and 14 percent for 

Part E. Yearly ratios, however, are affected by factors unrelated to 

efficiency, namely the approval rate and the amounts paid. A higher 

approval rate or higher benefit or both would result in a lower ratio of 

administrative costs to benefits paid. 

35While Labor is the designated agency responsible for administering the program, the 

Department of Health and Human Services is responsible for administering the dose 

reconstruction process, as established in Executive Order 13179. 

36In addition to these recommendations to improve timeliness measures, the IG also 

recommended that Labor expand the responsibility of Resource Centers to include 

assisting claimants by providing them more information about the claims process, improve 

the methods through which Labor obtains claimant information, improve interagency 

agreements to more clearly outline data-gathering methods, institute a comprehensive 

workload tracking system to monitor the status of claims at other agencies and to monitor 

the caseload of claims examiners, and increase communication with claimants. Labor 

agreed with these recommendations in part. 

37These amounts do not include medical benefits paid. 

Page 22 GAO-10-302 Energy Employees Compensation
 

Table 4: Part B Benefits Paid and Direct Administrative Costs 

(Actual obligations in thousands of dollars) 

2001 2002 2003 2004 2005 2006 2007 2008 Total 

Benefits paida $3,450 $350,970 $305,236 $251,051 $325,792 $461,385 $463,889 $484,380 $2,646,153

Administrative 

costs 

 18,429 68,299 66,058 81,195 115,703 107,629 108,362 106,046 671,721

 NIOSHb 2,403 33,161 26,006 44,857 55,235 63,606 55,270 55,519

 LABOR $16,026 $35,138 $40,052 $36,338 $60,468 $44,023 $53,092 $50,527

Total program cost $3,317,874

Percentage of cost that is administrative 20

Source: GAO presentation of unaudited NIOSH and Labor data. 

Note: Energy’s costs average about $6 million per year. Energy did not report cost data prior to 2006. 

Additionally, Energy does not separate costs by Part B and Part E. 

a

Benefits paid do not include medical benefits paid. Medical benefits for illnesses covered under Part 

B averaged $62 million per year for 2005-2008. 

b

NIOSH’s costs reflect both direct and indirect administrative costs. 

Table 5: Part E Benefits Paid and Direct Administrative Costs 

(Actual obligations in thousands of dollars) 

2005 2006 2007 2008 Total 

Benefits paida $194,522 $280,130 $360,867 $456,734 $1,292,254

Administrative costs 34,939 52,361 63,268 56,878 207,446

Total program cost $1,499,700

Percentage of cost that is administrative 14

Source: GAO presentation of unaudited NIOSH and Labor data. 

Note: Energy’s costs average about $6 million per year. Energy did not report cost data prior to 2006. 

Additionally, Energy does not separate costs by Part B and Part E. 

a

Benefits paid do not include medical benefits paid. Medical benefits for illnesses that were covered 

only under Part E averaged $1 million per year for 2005-2008. Medical benefits for illnesses covered 

under both Parts B and E are recognized under Part B, not Part E. 

The cost of administering EEOICPA reflects its science-based adjudication 

process and the highly technical nature of the claims. About 60 percent of 

Labor’s direct costs for Part B are for personnel and benefits. Eighty-seven 

percent of NIOSH’s direct costs are for contracts, primarily for dose 

reconstruction and the development of site profiles. Unlike other workers’ 

compensation programs, EEOICPA compensates for diseases caused by 

exposure to radiation and toxic substances that are not generally found in 

most workplaces. Confirmation that these conditions are the result of 

exposure to radiation or toxic substances requires the skills of many 

specialists, including health physicists, industrial hygienists, occupational 

Page 23 GAO-10-302 Energy Employees Compensation
 

medicine physicians, and claims examiners. Dose reconstructions for 

cancer claims conducted by NIOSH health physicists are often the most 

technically complex part of the adjudication process. They require 

gathering and analyzing extensive data about working conditions and 

exposures for the entire facility before individual exposures can be 

estimated. Labor’s adjudication process for claims of beryllium disease, 

silicosis, and illnesses related to exposure to toxic substances is also labor 

intensive because it requires expert review at several levels. 

While some claims require more time to adjudicate than other claims and 

can therefore be more costly to process, Labor does not collect and 

analyze data on administrative costs by individual claim or claim type. 

Therefore, we could not determine how much Labor spends on 

adjudicating approved claims compared with adjudicating claims that 

were denied. We also could not determine how costly each phase of the 

process is—other than dose reconstruction—because Labor does not 

break out costs in detail. 

On the basis of the number of total Part B dose reconstruction cases that 

NIOSH processed and its costs over the lifetime of the program, NIOSH 

estimates its direct administrative costs for each case to be about 

$12,000.38 Using the same method, we calculated Labor’s direct cost per 

case to be about $8,000 for all Part B cases (about one-third of which 

require dose reconstruction) and about $6,000 for Part E cases. We were 

not able to calculate the administrative costs for each case by year and 

compare trends over time because NIOSH had significant start-up costs, 

which were relatively recent, and because Labor and NIOSH may spend 

more than a year processing each case.39

 

38NIOSH counts initial dose reconstructions and reworks as separate cases. Counting them 

as one case would result in a cost per case of about $15,000 rather than $12,000. 

39We could not calculate the administrative costs for each case for Energy because Energy 

does not have data going back to the inception of the program and because Energy tracks 

requests for its services but does not track them by case, so one case may generate 

multiple requests, such as a request from Labor and a request from NIOSH. 

Page 24 GAO-10-302 Energy Employees Compensation
 

Part B Quality 

Controls Generally 

Include Internal and 

Independent Reviews, 

while Part E 

Processes Lack 

Independent and 

Expert Review 

Both Parts B and E of the Energy Employees Occupational Illness 

Compensation Program have quality controls in place in the form of 

multiple reviews within the agencies; there is also an extensive 

independent review process for NIOSH’s work on radiation-related cancer 

claims under Part B, provided for by the act. While there is no statutory 

requirement for an independent review of Labor’s policies regarding 

occupational lung disease claims under Part B or claims regarding 

illnesses resulting from exposure to toxic substances under Part E, those 

policies have not undergone outside review, and the policy development 

process is mostly done internally. 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. 

NIOSH’s Work for Part B 

Cancer Adjudication 

Undergoes Independent 

Expert Review 

NIOSH’s work to support Labor’s adjudication of Part B cancer claims is 

independently reviewed by the Advisory Board required by EEOICPA. The 

board reviews the scientific validity and quality of NIOSH’s dose 

reconstruction efforts, and it recommends whether to add new classes of 

workers to the Special Exposure Cohort—those for whom dose 

reconstruction is not feasible because of inadequate site data. Aided by its 

contractor, Sanford Cohen & Associates, the Advisory Board reviews 

NIOSH’s technical documents including its site profiles, sample dose 

reconstructions, and NIOSH evaluations of petitions to add classes to the 

Special Exposure Cohort. When the board’s contractor reports concerns 

or questions about any of these documents to NIOSH through the Advisory 

Board, NIOSH responds through an established resolution process, 

revising its documents and methods as needed. If warranted, NIOSH 

identifies and reconsiders all denied claims potentially affected by the 

revision, documenting the process in reports posted on its Web site. 

NIOSH issues these reports more often in response to changes in site 

profiles than to dose reconstruction audits, and does so on its own 

initiative as well as in response to a finding by the board. 

Technical documents and site profiles. The board, in conjunction with 

its contractor, audits NIOSH’s technical documents and site profiles for 

Page 25 GAO-10-302 Energy Employees Compensation
 

adequacy and completeness of data sources, scientific validity, accuracy of 

data, and consistency among site profiles. Because the site profiles are 

used to support dose reconstructions, the audits also assess whether the 

site profile instructions are clear, accurate, complete, and auditable and 

whether NIOSH’s methods and assumptions are scientifically valid and 

favorable to the claimant. Like NIOSH, the board’s contractor traveled to 

many of the sites for its own independent research, including meeting with 

site experts and former workers to hear testimony about facility 

conditions and practices. NIOSH characterizes its technical documents 

and site profiles as living documents, subject to revision as new 

information and methods become available. For example, in 2006, NIOSH 

revised its site profile and dose reconstruction methods for Bethlehem 

Steel in response to findings from the Advisory Board contractor’s audit 

that assessed the dose reconstruction data, assumptions, and methods. 

Dose reconstruction reports. To carry out its responsibility to review 

the scientific validity and quality of NIOSH’s dose reconstructions, the 

Advisory Board, in conjunction with its contractor, periodically audits 

sampled dose reconstructions. These audits address whether sampled 

dose reconstructions (1) are consistent with records provided by Energy 

and the claimant interview; (2) comply with applicable procedures, both 

general and specific to the relevant facility; and (3) are supported by 

scientifically defensible and/or claimant-favorable assumptions. For a 

portion of sampled dose reconstructions, the board’s contractor performs 

its own dose reconstructions to determine if it can validate the results and 

evaluates the information and methods NIOSH applied. Using a detailed 

checklist, the contractor identifies areas of concern and their potential 

significance to the estimated dose. The contractor also notes whether it 

found similar problems in more than one dose reconstruction audit and 

identifies opportunities for NIOSH to revise ambiguous instructions or 

overly complex procedures. Following each audit, the Advisory Board and 

NIOSH engage in a resolution process to address the audit findings. In 

cases where comment resolution requires changes to the method used for 

the reconstruction, NIOSH publishes a Program Evaluation Report 

describing the change and identifying all claims that may have been denied 

under the earlier method to assess whether they should be reconsidered. 

NIOSH reported that, as of March 2009, the board’s contractor had 

completed audits of its first sample of 100 NIOSH dose reconstructions, 

and as a result, one claim that had previously been denied was approved. 

Special Exposure Cohort petition evaluations. Under EEOICPA, the 

Advisory Board advises the Secretary of Health and Human Services on 

the addition of new classes of workers to the Special Exposure Cohort. 

Page 26 GAO-10-302 Energy Employees Compensation
 

The Advisory Board’s deliberations address whether it is feasible to 

estimate workers’ radiation dose with sufficient accuracy and whether 

there is a reasonable likelihood that the radiation dose endangered the 

workers’ health.40 When a claimant or other authorized party petitions to 

add a new class to the cohort and the petition contains all required 

information, NIOSH prepares an evaluation report, which may agree that a 

new class is warranted or, alternatively, describe the basis for its position 

that dose reconstruction is feasible for those workers.41 To support the 

Advisory Board’s deliberations, the board’s contractor reviews and reports 

on all such NIOSH petition evaluations. When the contractor identifies 

shortcomings in NIOSH’s proposed dose reconstruction methods, or when 

new information about a site is discovered, the Advisory Board considers 

the implications on the feasibility of dose reconstruction. In some cases, 

NIOSH responds to the board’s concern with revised dose reconstruction 

methods, which the contractor reviews in turn. This ongoing revision and 

review process can be protracted: NIOSH’s initial evaluation is subject to 

statutory time limits but its revisions are not because they take place 

during the Advisory Board’s deliberation process.42

As of April 2009, NIOSH reported that 42 new classes of workers had been 

added to the Special Exposure Cohort on the basis of the Advisory Board’s 

recommendation. The Advisory Board had not recommended adding 3 

new classes for which petitions had been filed, and 12 petitions were still 

under consideration. Twenty of the 42 new classes had been proposed by 

NIOSH and 22 by petition from claimants or their representatives. In 4 of 

the 22 claimant-initiated petitions for which the Advisory Board 

recommended adding a class, NIOSH’s evaluation concluded that dose 

reconstruction was feasible, but the Advisory Board did not concur and 

recommended the addition of the class. Since April 2009, 9 additional 

 

4042 U.S.C. § 7384q(b). 

41New Special Exposure Cohort classes are initiated either by NIOSH or by petition from 

claimants or their representatives. NIOSH prepares evaluation reports for all petitions that 

qualify for evaluation. NIOSH may agree with the petitioners that facility data are too 

limited for dose reconstruction to be feasible, propose revisions to the time period or 

workers covered by the proposed petition, or propose methods of remedying the effect of 

limited data on dose reconstructions. Such dose reconstruction methods may rely on 

general knowledge about production processes and radioactive elements and/or 

incorporate radiation-monitoring data from facilities NIOSH considers comparable. 

42The act requires that NIOSH complete its evaluation within 180 days. 42 U.S.C. § 

7384q(c)(1). This requirement was added in 2004 by Pub. L. No. 108-375, Div. C, Title XXXI, 

Subtitle E, § 3166(b)(1)(B). 

Page 27 GAO-10-302 Energy Employees Compensation
 

classes have been added, bringing the total up to 51 classes as of March 

2010. 

Use of surrogate data. NIOSH uses surrogate data—basically, 

information from facilities other than the site where the worker was 

employed—to perform dose reconstruction when records on the worker’s 

own exposure or work site are insufficient for estimating the worker’s 

radiation dose.43 This practice has been criticized by claimant advocates as 

inappropriate, given that EEOICPA provides for expansion of the Special 

Exposure Cohort when it is not feasible to estimate with sufficient 

accuracy the radiation dose received. Amidst this criticism, NIOSH has 

developed protocols that specify the criteria for when such information 

might be employed, and the Advisory Board is in the process of reviewing 

these protocols. NIOSH’s protocols supplement its regulations by 

addressing in detail the information sources and methods used in dose 

reconstruction and the types of information and research needed to use 

surrogate data. On behalf of the board, its contractor reviewed the NIOSH 

protocols on surrogate data use and compared them with existing draft 

protocols developed to guide the Advisory Board’s review of NIOSH’s dose 

reconstructions that use surrogate data. The Advisory Board’s draft 

protocols specify that surrogate data may be appropriate under certain 

conditions, subject to a case-by-case determination of scientific 

soundness, stipulating that the more central the surrogate data are to the 

dose reconstruction method, the more carefully they should be justified 

and validated. While the draft protocols are the contractor’s current 

standards for reviewing NIOSH’s dose reconstruction methods that rely on 

surrogate data and are currently under consideration by the board, they 

have not as yet been formally adopted. The board’s work group on 

surrogate data, which developed the current draft protocols with the 

contractor, is planning to submit them to the full board for its 

consideration. In addition, NIOSH plans to review its approach to 

surrogate data as part of a planned internal evaluation of its EEOICPArelated work. 

 

43NIOSH’s dose reconstruction methods give the highest priority to individual worker 

radiation-monitoring records, but recognize that such records are not available for all 

workers. Its dose reconstruction regulation provides that when complete, accurate 

individual workplace monitoring records are not available, NIOSH may use a combination 

of other information sources to estimate radiation exposure (and dose to the affected 

organ). These other sources include radiation-monitoring records of coworkers with 

comparable exposure risks, facility monitoring records, and supplemental information 

about radioactive elements and production processes. See 42 C.F.R. § 82.2. 

Page 28 GAO-10-302 Energy Employees Compensation
 

Although the Advisory Board and its contractor have taken steps to weigh 

in on when the use of surrogate data is scientifically sound, some 

advocates question whether it is possible to adequately adjust for 

differences among facilities, accounting for both physical features such as 

size, layout, and ventilation, and human factors such as compliance with 

safety and reporting requirements. NIOSH maintains that dose 

reconstruction with surrogate data is reasonable when enough is known 

about the type and quantity of radioactive elements on site and the 

fabrication processes used, and it can identify monitoring or production 

records from other facilities, covering the same time frame, that are 

sufficiently comparable to estimate radiation exposure risks to workers. 

Further, NIOSH officials note that when using surrogate data or in any 

case where actual exposure records are incomplete, their practice is to 

overestimate radiation exposure, which generally results in higher 

estimates of exposure than workers were likely to have had.44

Throughout the dose reconstruction process, NIOSH incorporates 

claimant-favorable exposure assumptions that maximize estimated 

radiation dose and cancer risk. In addition, EEOICPA specifies that the 

probability that the worker’s cancer was related to covered radiation 

exposure be calculated at the 99 percent confidence interval.45 These 

approaches, along with the Special Exposure Cohort provisions for 

situations in which dose reconstruction is not feasible, were intended to 

help ensure that claimants are not disadvantaged by their employers’ lack 

of records. 

 

44NIOSH officials described this overestimation process as follows: When faced with 

equally plausible radiation exposure scenarios during dose reconstruction, the agency will 

always incorporate the scenario that results in the highest exposure to the worker. It may 

do this, for example, when a worker’s cancer is not in an organ for which NIOSH, in 

collaboration with the National Cancer Institute, has developed risk models: NIOSH will 

select among comparable “substitute” organs the one that is most susceptible to cancer 

risk from the type of radiation exposure the worker was likely to have had. Such organ 

substitution models are reviewed both internally and externally. 

4542 U.S.C. § 7384n(c)(3)(A). The technical documents use the term “credibility limit” to 

indicate the maximum acceptable level of risk of estimating an exposure that is too low. If 

a “best estimate” of the dose were to be made, a 50 percent credibility limit, which means 

that in 50 cases out of 100, the actual probability of causation would be lower than the 

estimated probability of causation. Instead, the 99 percent credibility limit is a more 

generous estimate, assigning increased cancer risk at far lower actual levels of radiation 

exposure than the best estimate. In addition, it means that in 1 case out of 100, the actual 

probability of causation would be higher than the estimated probability. Conversely, in 99 

cases out of 100, the actual probability of causation received would be lower than the 

estimated probability. 

Page 29 GAO-10-302 Energy Employees Compensation
 

Labor’s Requirements for 

Part B Occupational Lung 

Disease Claims Have Not 

Undergone External 

Expert Review 

Unlike claims for radiation-related cancer, EEOICPA does not require 

independent review of Labor’s requirements for occupational lung disease 

claims under Part B, despite the fact that these diagnoses can be 

challenging, and the disease may not manifest until years after exposure. 

Currently, these requirements do not undergo a review process by 

independent experts to ensure that they reflect current medical consensus, 

are clear, and result in consistent adjudication decisions. This can create 

unnecessary rework for the agency as well as frustration for claimants. 

For example, although occupational exposure is the recognized cause of 

lung diseases such as chronic beryllium disease, some of the diagnostic 

tests for this condition have been found to be unreliable when performed 

on patients taking certain medications. Labor has changed its approach to 

beryllium claims more than once, without the benefit of expert medical or 

scientific review. First, in 2007, Labor tightened its requirements for 

diagnostic evidence for Part B beryllium illness claims, requiring that 

living workers substantiate their claims with results from these tests or 

undergo more invasive testing. Then, in 2009, Labor once again relaxed its 

requirements and instructed claims examiners to consider a broader array 

of diagnostic evidence for living workers. As a result, Labor now plans to 

review beryllium claims that were denied when the more restrictive 2007 

policy was in effect. 

Labor’s Processes for 

Certain Part E Claims 

Provide for Internal 

Review but Not 

Independent Outside 

Expert Review 

Labor’s decisions on Part E claims for diseases related to nonradioactive 

toxic exposure undergo multiple internal reviews. First, the adjudication 

process itself provides multiple opportunities for claimants to supplement 

the evidentiary record and object to Labor’s adjudication decisions, both 

recommended and final, and request a hearing. All recommended 

decisions also undergo supervisory review within the district office and 

final adjudication branch before they are issued as final decisions. In 

addition to the levels of review built into the adjudication process, Labor’s 

quality control process includes random audits. These audits include 

annual accountability reviews performed by staff from other district 

offices or final adjudication branches. The accountability reviews include 

audits of sampled claims and address, among other things, regulatory and 

procedural compliance, the sufficiency of claim development, and the 

appropriateness of the recommended decision. 

However, unlike Part B’s provisions for oversight of NIOSH’s work on 

radiation-related cancer claims, Part E of EEOICPA does not provide for 

independent review of Labor’s scientific or technical guidance on 

nonradioactive toxic exposure claims. As a result, there is no systematic 

Page 30 GAO-10-302 Energy Employees Compensation
 

independent expert review of Labor’s Part E technical documents and 

guidance. This includes development and use of its site exposure matrix, 

its guidance for claims examiners, and the advice examiners receive from 

consulting physicians. 

Site exposure matrix. While Labor has, with the assistance of a 

contractor, developed an extensive and growing exposure and work site 

database for use by its claims examiners—the site exposure matrix—there 

is no independent expert review process in place to validate or augment 

this work. According to Labor, the site exposure matrix was created 

specifically because Labor recognized that it would be difficult for 

employees or their survivors to provide information concerning the toxic 

substances that may have been present at the facilities where the 

employees worked and the medical conditions that may relate to exposure 

to such substances. The site exposure matrix includes site-specific 

information, such as what toxins were present at each facility;46 building 

characteristics; job descriptions and activities; production processes; and 

incidents drawn from research, interviews, information from Energy, and 

submissions from the public.47 It also includes information about 

established links between specific toxins and diseases. Developing a 

comprehensive site exposure matrix is challenging for various reasons. 

Historically, employers tended to place less emphasis on documenting and 

monitoring exposure to toxic substances that were not radioactive. 

Consequently, the records are not as complete, especially for the earlier 

years of nuclear weapons production. In addition, research on the health 

effects of toxic exposure is evolving, and research into the health effects 

of some of the toxins used in the nuclear weapons industry is limited. 

Labor acknowledges that it would be impossible to compile a completely 

comprehensive database, but notes that it is constantly updating the 

matrix. In addition, Labor officials told us that the agency does not rely 

solely on this database for its determinations and added that their 

procedures and training both emphasize that the site exposure matrix is 

 

46According to Labor officials, the site exposure matrix does not include radioactive 

substances except those whose properties may have toxic effects independent of radiation. 

For example, inhalation of soluble forms of uranium particles may cause kidney disease. 

47The site exposure matrix has many features to help claims examiners perform their 

research: For example, information about chemicals may be found through searches of the 

official scientific name, trade or commercial names, or informal terms, and the matrix 

contains links to documentation about uses, properties, and acute and chronic health 

effects. 

Page 31 GAO-10-302 Energy Employees Compensation
 

not a stand-alone decision-making tool. Labor stated that while it places 

strong weight on claims supported by information in the site exposure 

matrix, the absence of information is not by itself sufficient reason for 

denying a claim. For conditions without an established link in the matrix, 

Labor officials said they consider other evidence of causation, including 

information submitted by claimants, district medical consultants, 

industrial hygienists, health physicists, and toxicologists. Labor’s guidance 

to its claims examiners specifies that this evidence must be compelling 

and probative—a well-rationalized medical opinion—in order to support 

compensation. 

Labor officials maintain that because the site exposure matrix’s inventory 

of illnesses and associated toxins is drawn from the National Library of 

Medicine’s Haz-Map, a database of peer-reviewed scientific articles, a 

formal review is not necessary and would create unnecessary delays for 

Part E claims. They also said that in addition to tracking changes in this 

database, the National Library of Medicine researcher who developed the 

database is working under contract with Labor to continually update the 

site exposure matrix to reflect ongoing research into the relationship 

between toxins and disease. The researcher works with Labor’s ad hoc 

internal site exposure matrix review committee.48

Occupational health physicians we interviewed criticized the scientific 

soundness of the site exposure matrix, noting that the absence of 

published research linking certain chemicals to diseases does not 

constitute evidence that such links do not exist. Labor officials countered 

that the lack of a causal link in the matrix does not in itself constitute the 

basis for denying claims. They cited an example of an approved claim for a 

condition that was not linked to occupational exposure in the matrix but 

resulted from unique sensitivities to substances not toxic to the general 

population. 

Occupational health physicians and claimant advocates we interviewed 

also expressed concern that the site-specific information in the matrix, 

such as the location of toxins, building characteristics, and job 

descriptions, does not account for the exposure of roving workers such as 

maintenance mechanics, security guards, firemen, and electricians, who 

 

48The committee reviews the results of the contractor’s research and determines both the 

research priorities and the additions and modifications to the site exposure matrix. The 

contractor reports weekly to the committee on changes to the matrix. 

Page 32 GAO-10-302 Energy Employees Compensation
 

were likely to spend time in multiple buildings. The physicians also noted 

that even jobs not considered hazardous could be risky, depending on 

where the offices were located. Labor explained that the site exposure 

matrix is set up to allow claims examiners to review potential exposure 

risks. Search capabilities are not limited by superficial job titles but allow 

claims examiners to review potential exposures in work areas where 

workers were located.49 Claims examiners are also encouraged to discuss 

potential exposure with claimants. Claims examiners use the matrix as 

one component of their review—and may consult its data on buildings, 

work areas, location of toxic substances, production processes, and 

incidents along with information from claimant interviews, affidavits, and 

other evidence. Nevertheless, Labor officials noted that ultimately, 

claimants must submit evidence that is sufficient to support a wellreasoned compensation decision. 

Medical guidance and consultation for claims examiners. Labor 

offers detailed guidance to its claims examiners on how to weigh a 

claimant’s medical evidence and provides a cadre of physician consultants 

for examiners to consult. However, this guidance is not reviewed by 

outside experts to ensure it is scientifically sound and reflects current 

research. 

Labor’s claims examiners are not required to have medical expertise or 

training, but they are required to reach decisions about causation of 

diseases on the basis of medical evidence. Labor has developed a claims 

examiners’ manual that specifies how to request, review, supplement, and 

clarify employment and medical records. Interpreting evidence of the 

health effects of toxic exposure for Part E claims adjudication is a 

complex, sophisticated task, yet this guidance is not reviewed by outside 

experts. Several occupational health experts we interviewed, as well as 

both former Labor medical directors for Part E, expressed concerns about 

this guidance. For example, some physicians we interviewed objected to 

Labor’s instructions that exposure to each toxic substance be evaluated 

independently. They disagreed with Labor’s position that current science 

does not support the assertion that exposure to multiple toxins has a 

 

49At our request, Labor arranged for GAO staff to view the site exposure matrix’s search 

capabilities for one site. While our observations are consistent with Labor’s description of 

the site exposure matrix’s search capabilities, we remain aware that limited public 

availability contributes to doubts about the site exposure matrix. 

Page 33 GAO-10-302 Energy Employees Compensation
 

combined effect on health.50 Because nuclear weapons facilities typically 

exposed workers to multiple hazardous substances, these physicians 

assert that it is not realistic to consider the health effects of each toxin in 

isolation. Because the matrix includes only single causal linkages and does 

not address combinations of toxins, these physicians are concerned that 

the site exposure matrix is not sufficiently sophisticated to include the 

nuances of toxic exposure research, and that some claims examiners will 

deny claims automatically if they don’t find a causal link in the matrix even 

if Labor discourages this practice. 

Oversight of consulting physicians. Although adjudication decisions 

are subject to multiple levels of internal review, Labor does not have an 

oversight process in place to ensure quality, objectivity, and consistency of 

its consultant physicians’ work.51 Of the 78 physicians retained by Labor to 

help claims examiners interpret medical evidence on diagnosis, causation, 

and impairment, 61 reported specializing in occupational medicine. These 

physician consultants review medical records and provide advice about 

causation on an as-needed basis at the request of claims examiners. 

Occupational physicians and the former medical directors for EEOICPA 

programs expressed concerns to us about the consistency of the 

consultant physicians’ reports and suggested the need for quality control 

measures such as peer review of sampled reports and trend analyses of 

multiple reports. Labor officials acknowledged the program does not have 

a system for quality review of its contractor physicians’ reports. 

Probability of causation for Part E cancer claims. Although the 

statutory language regarding eligibility for compensation is different in 

Part B and Part E, Labor has decided to use the same procedures it uses to 

adjudicate Part B radiation-related cancer claims when it adjudicates 

radiation-related cancer claims under Part E.52 As a result, Labor applies 

 

50The terms used are “additive” or “synergistic,” referring to the concept that toxic 

substances may act in combination in ways that magnify their adverse effects on health, 

doubling or even multiplying the degree of potential harm. 

51The physicians’ role is limited to helping interpret medical evidence and responding to 

questions from the claims examiners, who are responsible for making all legal 

determinations. 

5220 C.F.R. § 30.213. For Part B claims, Labor is required to use the guidelines issued by the 

Department of Health and Human Services’ NIOSH at 42 C.F.R. Part 81, which state at § 

81.2 that, as required by EEOICPA, the guidelines “produce a determination as to whether 

it is at least as likely as not (a 50 percent or greater probability) that the cancer of the 

covered employee was related to the radiation doses incurred by the employee in the 

performance of duty.” 

Page 34 GAO-10-302 Energy Employees Compensation
 

the same 50 percent probability of causation standard to determine the 

compensability of radiation-related cancer claims under Part B and Part E, 

which has raised concerns for claimant advocates about the agency’s 

implementation of Part E. The disagreement centers on the appropriate 

interpretation of the differing language in Part B and Part E. Part B 

requires a determination that the cancer is “at least as likely as not related 

to employment at the [Department of Energy or Atomic Weapons 

Employer] facility.”53 In contrast, Part E specifies that for a claim to be 

compensable, Labor must find that “it is at least as likely as not that 

exposure to a toxic substance at a Department of Energy facility was a 

significant factor in aggravating, contributing to, or causing the illness.”54

Claimant advocates maintain that a 50 percent probability of causation is 

inappropriately high and not consistent with Part E. This position is 

grounded in the concept that the Part E language regarding compensation 

for illnesses that were caused, contributed to, or aggravated by exposure 

to toxic substances merits a lower threshold of probability than Part B. 

While Labor acknowledges that the statutory language is different for the 

two programs, the agency asserts that it is clear from the scientific 

literature that it is not possible to definitively attribute any individual’s 

cancer to any particular cause and that scientific analysis does not 

distinguish between cancers that are caused or contributed to by 

radiation. Labor further asserts that its approach provides the only 

reasonable factual basis to support a determination under Part E.55 Labor 

officials also told us that the agency relies on the probability of causation 

based on NIOSH’s dose reconstruction for Part E cancer claims only when 

it is unable to support compensation based on exposure to a 

nonradioactive toxic substance. 

NIOSH scientists noted that NIOSH was only informally involved in 

developing Labor’s regulation on how to interpret dose reconstruction 

results under Part E despite that document’s discussion of sophisticated 

legal, scientific, and statistical concepts. Although Labor adopted its 

 

5342 U.S.C. § 7384n(b). 

5442 U.S.C. § 7385s-4(c). Labor must also find that it is at least as likely as not that the 

exposure to the toxic substance was related to employment at a Department of Energy 

facility. 

55See preamble to Department of Labor’s Final Rule “Performance of Functions; Claims for 

Compensation under Energy Employees Occupational Illness Compensation Program Act 

of 2000, as amended,” 71 Fed. Reg. 78520, December 29, 2006. 

Page 35 GAO-10-302 Energy Employees Compensation
 

regulation through the public notice and comment rulemaking process, 

Labor did not fully engage NIOSH experts on the more technical aspects of 

the issues during this process. Meanwhile, Labor maintains that the 

claimant-favorable nature of dose reconstruction more than compensates 

for differences between causal or contributory effects of radiation 

exposure (even if the probability models could make such distinctions, 

which Labor maintains they cannot). In particular, as noted above, use of 

the 99 percent confidence interval to estimate the probability of an 

exposure-cancer link attributes cancer risk, and compensates claimants, 

for cancers when radiation doses were very low. 

The implementing agencies have taken various steps to make information 

public, but national security considerations and the complex, sciencebased methods underlying EEOICPA claims adjudication pose challenges 

to information sharing. While NIOSH has worked with Energy to clear 

some sensitive and classified information for publication in the site 

profiles developed for Part B cancer claims, Labor has not as yet done so 

for the site exposure matrix used for Part E. Also, NIOSH has established 

an ombudsman to help claimants whose cases are undergoing dose 

reconstruction, but Labor has not publicly responded to its Ombudsman’s 

annual reports on claimant concerns. 

Despite Agencies’ 

Actions, EEOICPA 

Program 

Transparency 

Remains Somewhat 

Limited 

Agencies Have Taken 

Steps to Help Claimants 

and Make Complex 

Information about Claims 

and Methods Accessible 

The sheer complexity of the information NIOSH generates to assist Labor 

with its adjudication of cancer claims has led to concerns that the process 

is incomprehensible to claimants. According to agency officials and the 

Ombudsman, both the dose reconstruction process and the results of 

individual decisions are often difficult for claimants to grasp. NIOSH has 

taken a number of steps to assist claimants and communicate with them 

and the public about its work. Both Labor and NIOSH have also posted a 

great deal of information about program implementation and data on their 

respective Web sites. Agency measures to enhance public and claimant 

knowledge of the adjudication process include the following: 

Establishment of two claimant liaison positions at NIOSH. To help 

claimants and petitioners understand the dose reconstruction process and 

navigate the requirements for seeking Special Exposure Cohort status, 

NIOSH established a Special Exposure Cohort Petition Counselor position 

and a consultant/ombudsman position. These officials are available to 

provide specialized one-on-one consultations about NIOSH’s programs, 

documents, and the results of dose reconstruction. The Special Exposure 

Cohort Petition Counselor is responsible for ensuring that petitioners are 

Page 36 GAO-10-302 Energy Employees Compensation
 

fully informed about the requirements for a successful petition, helping 

them prepare their petitions, and keeping them informed throughout the 

petition review process. The NIOSH Ombudsman is also available to help 

petitioners compile the information they need to support their petitions 

and to help resolve claimants’ questions about the dose reconstruction 

process. 

The officials in both of these positions told us how confusing it is for 

claimants to navigate the program and keep track of all the various 

agencies and processes involved. In addition to clarifying complex 

program and regulatory requirements, both liaisons told us they take an 

active role to resolve concerns. For example, the Special Exposure Cohort 

Petition Counselor described her response to a petitioner’s concern that 

NIOSH had not reviewed a classified document important to the petition’s 

success. She first arranged for Energy to review the document and 

respond to specific questions to determine whether it might affect the 

petition, then arranged for NIOSH scientists with the appropriate 

clearance to see the document. Finally, she arranged a conference call 

between the petitioner and NIOSH health physicists to discuss NIOSH’s 

interpretation of the classified information and its decision that its 

contents would not change the petition’s outcome. The petitioner in 

question disagrees with that decision, but the NIOSH petition counselor 

ensured that the decision was reached only after NIOSH could 

demonstrate that it had not overlooked pertinent information. The 

Ombudsman told us she is able to facilitate access to information for 

claimants and arrange conference calls with the health physicists who 

prepare dose reconstructions to discuss individual dose reconstruction 

results. 

Revision of standards for written and oral communication with 

claimants by NIOSH. NIOSH officials have described the challenge of 

creating reports and letters that provide the degree of specificity needed 

for legal and technical accuracy without being so complex they are not 

understandable to a layperson. According to agency officials, the agency is 

working with its contractor and public health communications specialists 

to revise the descriptions of the results of dose reconstructions it sends to 

claimants. The new format will include a section with legal information, 

another section with enough technical specificity to describe the dose 

reconstruction process and results, and a third interpretive section that 

will convey the findings in terms designed to be accessible to readers with 

an eighth grade education. 

Page 37 GAO-10-302 Energy Employees Compensation
 

The Advisory Board has also recommended that NIOSH revise the 

information it provides to claimants when they receive the results of a 

dose reconstruction for claims in which the agency has employed an 

overestimation measure. The information provided to claimants would 

need to explain that the probability of causation could decrease later if 

NIOSH has to provide a more precise estimate because more detailed 

information has become available or the claimant develops a new cancer. 

This recommendation was made in response to complaints that claimants 

whose original dose reconstruction was overestimated were confused and 

dismayed when they developed additional cancers, and subsequent, more 

precise estimates resulted in lower doses. 

Publication of a variety of informational resources. NIOSH’s publicly 

available information includes an overview of EEOICPA, a detailed 

frequently asked questions section on its Web site about its activities, a 

video describing dose reconstruction, and a number of pamphlets that 

explain NIOSH’s activities in various levels of detail. These materials are 

designed for a variety of claimants with diverse educational backgrounds, 

ages, and health status. Labor has also developed a variety of brochures 

about the application and adjudication process and publishes its internal 

bulletins and claims examiners’ manuals on its Web site. 

Open Advisory Board meetings. Since the Advisory Board is subject to 

the Federal Advisory Committee Act, most of its meetings must be open to 

the public and announced in advance in the Federal Register. The board 

also announces its meetings on NIOSH’s Web site. Members of the public 

can attend in person or by calling a toll-free telephone number. In 

addition, transcripts of all meetings are published on the Web site, 

although according to the board’s designated federal official, the complex 

subject matter makes proofreading and rapid publication a challenge. To 

address this problem, the board Chairman decided in late 2009 to expedite 

the public availability of meeting transcripts by posting a preliminary 

version, reviewed only for Privacy Act compliance and subject to 

correction. 

Labor’s information and assistance to claimants. For its part, Labor 

manages contractor-run resource centers around the country to provide 

information about EEOICPA and to assist the public in filing claims. Staff 

at the Richland, Washington (Hanford), resource center told us they travel 

to regional events to do outreach for potential claimants. Labor has also 

established a “traveling” resource center that visits various communities to 

provide one-on-one assistance. In addition, the program director at Labor 

has participated in conference calls with claimant advocates. 

Page 38 GAO-10-302 Energy Employees Compensation
 

Public access to facility information about other types of toxins compiled in 

Labor’s site exposure matrix for Part E adjudication is far more limited than 

it is for the documents NIOSH has published about radiation exposure. This 

means that one of Labor’s key resources for Part E claims adjudication has 

not had the benefit of being reviewed by claimants and others who worked 

in those facilities. While there are detailed search capabilities for claims 

examiners, the publicly available information in the matrix for each site 

consists of a list of substances confirmed to have been present. Searches by 

disease yield either a list of toxic substances with established links or a 

statement that no toxic substances in the site exposure matrix database 

show an established link to the occupational disease at this time. As noted 

above, the matrix is a key resource for Part E adjudication, used to inform 

claims examiners’ research on the link between exposure to toxins and 

illness. However, because claimants do not have access to the full 

informational resources in the site exposure matrix, they cannot review the 

totality of the evidence that Labor considered when adjudicating their 

claims and thus may not be able to understand the basis for, or potentially 

challenge, a denial. In addition, to the extent that the information in the 

database is not available to be reviewed, there are few opportunities for 

claimants and scientists to discover and remedy any areas where 

information is missing or inaccurate. 

Public Access to Site 

Exposure Matrix for Part E 

Is Limited, but Labor and 

Energy Are Planning to 

Release More Information 

Because the information about toxic chemicals and site characteristics is 

sensitive, agency officials told us that Labor’s access to site data from 

Energy for its site exposure matrix has been based on an interagency 

agreement that the information would be used internally by Labor and 

kept secure. Labor lacks the authority to publish more of the site exposure 

matrix content before it has been cleared by Energy. The agencies have 

only recently begun to formally discuss a process for making these data 

public, and they do not yet have a schedule in place for this clearance 

process. Labor’s practice has been to release only limited excerpts in 

response to claimant requests for a copy of their claim file under the 

Privacy Act.56 Whereas NIOSH worked with Energy at the outset of the 

Part B program to, as much as possible, make the information it has 

acquired for its site profiles public, Labor only recently approached 

 

56According to Labor officials, the contents of the site exposure matrix are not classified 

and excerpts may be safely disclosed to individual claimants, but all of the data together 

could be considered sensitive. If a printout of the matrix search result is in the file, Labor 

sends it along with the rest of the claim file in response to a claimant’s Privacy Act request 

for his or her own records. However, claims examiners are not consistent about printing 

out their matrix search results. 

Page 39 GAO-10-302 Energy Employees Compensation
 

Energy about undertaking a similar process for Part E.57 Although Energy 

officials maintain that full public access could pose a national security 

risk, they are willing to work with Labor on a clearance process to 

determine what additional information may be safely made available. 

Lack of Response by Labor 

to Ombudsman’s Reports 

Hampers Effective 

Resolution of Claimant 

Concerns 

The Labor Ombudsman responds to claimant queries and reports annually 

to Congress on their concerns, but his role is relatively limited. Although 

the act provides that the Secretary of Labor may assign additional 

responsibilities, the Ombudsman’s activities have been limited to date to 

those specified in the act—to provide information to claimants regarding 

the available benefits and the relevant requirements and procedures 

involved in a claim, and to submit an annual report to Congress regarding 

the number and types of claimant requests for assistance and an 

assessment of the most common difficulties faced by claimants.58 For 

example, according to the Ombudsman, the Ombudsman’s office does not 

have access to Labor’s claims files or databases, so it cannot respond to 

questions about a claim without seeking information or access to 

documents from other Labor officials. Until late 2009, Labor required the 

Ombudsman’s office to request official decision letters from claimants 

rather than providing the Ombudsman with direct access. This is changing 

gradually: The Ombudsman reported in January 2010 that program 

officials have gradually and informally granted the Ombudsman more 

access to information and been more supportive of his activities. For 

example, the agency has begun providing more direct lines of 

communication with program staff. The activities and access are still not 

comparable to those of the NIOSH Ombudsman, who is authorized to 

review claimant files and facilitate discussions with the scientists who 

performed dose reconstructions to help address questions related to 

individual claims. Also, while the Labor Ombudsman’s reports to Congress 

can offer insights on aspects of the program that have presented problems 

for claimants, Labor is not required to respond formally to those reports, 

 

57NIOSH’s work preparing site profiles and dose reconstruction methods involves research 

into radioactive materials, production, building conditions, incidents, and worker 

monitoring and safety practices at Energy and Atomic Weapons Employer sites throughout 

the country from World War II through the present. To facilitate this research while 

protecting national security, Energy has entered into agreements with NIOSH regarding 

access to documents cleared for review and granted security clearances to allow NIOSH 

direct access to classified documents. 

58The Ombudsman is also authorized to recommend that Labor establish additional 

claimant resource center sites. 42 U.S.C. § 7385s-15(c). 

Page 40 GAO-10-302 Energy Employees Compensation
 

or take remedial actions. Labor officials reported that they do confer with 

the Ombudsman regarding his findings, and the Ombudsman related to us 

that the agency has recently become more receptive to his suggestions. 

By comparison, some federal statutes provide a more robust role for 

various ombudsmen within their respective agencies. For example, the 

National Taxpayer Advocate of the Internal Revenue Service and the 

Ombudsman for Citizenship and Immigration Services are authorized by 

statute to make recommendations to their respective agencies, which must 

then report on actions they have taken in response. In contrast, Labor is 

not statutorily required to respond to its Ombudsman’s reports. For 

example, the Ombudsman has reported since 2005 that complaints about 

customer service consistently rank high among claimant concerns, but 

Labor has not publicly responded to these concerns or developed formal 

plans for addressing the issues.59 After years of raising this as a general 

issue, the Ombudsman’s office has begun sending every complaint to the 

director of the district office involved. Although the Ombudsman’s office 

receives a copy of the director’s response, the Ombudsman told us that no 

noticeable improvements have yet resulted. 

Although EEOICPA requires only one ombudsman—the Ombudsman at 

Labor—other claimant liaison positions have been separately created.60 As 

noted above, NIOSH established two claimant liaison positions to help 

individuals interpret complex program requirements and documents.61 The 

NIOSH Ombudsman’s role extends to helping petitioners complete forms 

and prepare an effective, complete Special Exposure Cohort petition. In 

2007, New Mexico established an office of Nuclear Workers’ Advocacy for 

EEOICPA claimants. The New Mexico Advocate works on behalf of 

individual claimants, and in July 2008, the state of New Mexico reported 

that the office had assisted 220 workers and survivors to obtain EEOICPA 

 

59Labor requires claims examiners to take customer service training annually and instituted 

a program in 2007 to monitor calls between claimants and customer service 

representatives—agency representatives who can answer basic questions about the status 

of the claim. This program, however, does not monitor calls between claimants and claims 

examiners, and agency officials could not tell us whether the monitoring program had any 

effect on customer complaints. 

60The amendment to EEOICPA expanding the Labor Ombudsman’s authority to Part B also 

directed the Labor Ombudsman to work with the NIOSH Ombudsman. Pub.L.No. 111-84, 

Div. C, Title XXXI, Subtitle D, § 3142(a), (42 U.S.C. §7385s-15(g)). 

61For convenience we refer to these two positions as claimant liaisons, although each has a 

unique title. 

Page 41 GAO-10-302 Energy Employees Compensation
 

compensation of more than $4.9 million. The Advocate acts as a liaison 

among claimants who have filed EEOICPA claims, their former employers, 

Energy, and Labor—and assists claimants throughout the process, 

including appeals. The Advocate explained that because lack of 

employment records is one of the biggest barriers to obtaining benefits, 

her office has been especially effective at helping claimants obtain 

documentation from Energy contractors, even after Energy was not able 

to obtain the records. She attributed her office’s success at finding these 

records to a thorough interview process, in-depth research on behalf of 

claimants, and the relationships the office has established with local 

Energy officials. The Advocate and another New Mexico official noted that 

state funds for this work are limited and that they might not be able to 

keep up with the growing demand for these services. 

EEOICPA was established to provide compensation to nuclear weapons 

production workers performing work vital to the nation’s interests, often 

under extremely hazardous conditions, who developed cancer or other 

diseases related to on-the-job exposure. As Congress stated in the act, 

government agencies and contractors had a history of placing workers at 

risk without informing them about the hazards and deterring 

compensation claims. In light of this history, it is critical that policies and 

procedures are in place to promote program credibility and transparency. 

This is especially important in cases where Energy or its predecessor 

agencies failed to maintain records of employment, accidents, and 

exposure to radiation and other hazards. 

Conclusions 

Meanwhile, it is inevitable that there will be differences of opinion about 

the program, particularly since issues of national security are still a 

concern when it comes to full public disclosure of all nuclear site data. It 

may be, as well, that no amount of information about dose reconstruction 

will be enough to satisfy those who question its validity. Nonetheless, 

independent review is an important method of validating findings and 

enhancing the credibility of the scientific basis of claims decisions, and the 

Advisory Board serves this purpose for the aspects of the Part B program 

that it oversees. In contrast, there is no outside independent review of the 

scientific soundness of important aspects of Labor’s implementation of the 

Part E program. Moreover, while Labor has various quality control 

measures in place for the Part E program, there are some gaps, such as no 

oversight process to ensure the quality, objectivity, and consistency of its 

consultant physicians’ work and no independent expert review of the 

scientific soundness of the detailed information in the site exposure 

matrix. 

Page 42 GAO-10-302 Energy Employees Compensation
 

Labor and Energy have expressed a willingness to work together to 

determine what additional information from the Part E site exposure 

matrix may be cleared for public release. This could facilitate 

opportunities for claimants to better understand the basis for decisions on 

their claims and for claimants and others to help improve the accuracy 

and comprehensiveness of the matrix. However, a formal agreement and 

action plan for this clearance process would provide greater assurance 

that it will be carried out in an efficient and effective manner. 

Labor, NIOSH, and Energy have taken steps to assist claimants in 

navigating a program that is scientifically complex and requires an 

extensive investment of resources. In addition, the Labor Ombudsman has 

issued annual reports to Congress highlighting the most common 

difficulties claimants have faced, including persistent complaints about 

customer service. However, Labor does not respond publicly to the 

Ombudsman’s reports. As a result, claimants have little knowledge that 

their concerns are heard or that they are being addressed. 

To enhance oversight and transparency of EEOICP, we recommend that 

the Secretary of Labor take the following three actions: 

1. Strengthen the quality control measures in place for Part B lung 

disease claims and Part E processes with independent reviews. Such 

measures should include, for example, instituting periodic peer 

reviews of sampled reports by Part E consulting physicians, arranging 

for technical review of detailed information in the site exposure 

matrix, and obtaining periodic expert review of medical evidentiary 

requirements for the Part B claims related to lung diseases. 

Recommendations for 

Executive Action 

2. Establish a formal agreement and action plan with the Secretary of 

Energy to release more information, where appropriate, in the site 

exposure matrix database in order to allow greater public access and 

input. In doing so, Labor should actively seek additional information 

from worker representatives and site experts about job descriptions, 

processes, and potential exposure. 

3. Develop formal action plans, within Labor’s scope of authority, in 

response to the Labor Ombudsman’s reports regarding major claimant 

concerns and make the plans and updates on their subsequent status 

publicly available. One such plan should offer Labor’s response to the 

Ombudsman’s reports about consistent problems with customer service. 

Page 43 GAO-10-302 Energy Employees Compensation
 

To enhance oversight of claims adjudication under Part E of EEOICPA, 

Congress may wish to consider amending the act to establish an independent 

review board for Part E, similar to the Advisory Board on Radiation and 

Worker Health established under Part B of the program. Such an independent 

board could review and report on the scientific soundness of Labor’s 

implementation of Part E, including the site exposure matrix, guidance 

provided to claims examiners on medical evidence, and Part E probability of 

causation standards for radiation-related cancers. In creating such an 

independent board, it would be critical to develop appropriate provisions 

regarding its funding structure, appointment of members, and staff support. 

Our 2007 report on the Part B Advisory Board highlighted challenges that 

these three areas had presented to the board’s independence and identified 

various options to enhance board independence in each area. 

We provided a draft of this report to the Secretaries of Labor, Energy, and 

Health and Human Services for review. Health and Human Services 

provided technical comments, which we have incorporated in the report 

where appropriate. 

Matter for 

Congressional 

Consideration 

Agency Comments 

and our Evaluation 

In its comments, Energy said that with regard to our second 

recommendation, it has requested from Labor a static copy of the site 

exposure matrix database, and will screen the database and redact 

information that would pose a national security risk if released, so the 

database can be made available to the public. Comments from Energy are 

reproduced in full in appendix IV. 

In its comments on the draft, Labor said that it is always looking to 

improve the program and will be planning ways to implement changes in 

light of our recommendations. In addition, Labor provided clarification of 

the nature and uses of the site exposure matrix. With regard to making 

more of the site exposure matrix publicly available, Labor stated that the 

site exposure matrix is available on its Web site but is not in the format 

that is used by claims staff during the claims process. As we noted in our 

report, the information available to the public is much more limited than 

that available to the claims examiners. It added that Energy owns and 

controls dissemination of the information regarding toxic substances, 

locations, and processes in the nuclear complex, and that making a 

detailed version of the site exposure matrix available to the public could 

pose a threat to national security. Labor said, however, that it recognizes 

that this creates a transparency issue and stated that it has been working 

with Energy on this issue and will continue to do so. 

Page 44 GAO-10-302 Energy Employees Compensation
 

With regard to the use of the site exposure matrix, Labor clarified that the 

database was created specifically to assist claimants in making their case 

by providing information on toxic substances that may have been present 

at the facilities and any medical conditions resulting from exposure. Labor 

noted that the site exposure matrix is not used to deny claims and that its 

procedures and training reiterate that the database is not a stand-alone 

decision-making tool, and that all avenues must be pursued when 

developing a claim, even if the database does not contain a link between 

exposure and illness. We clarified our characterization of the site exposure 

matrix and how Labor uses it to adjudicate claims. Comments from Labor 

are reproduced in full in appendix V. 

In addition, this report will be available at no charge on the GAO Web site 

at http://www.gao.gov/. 

If you or your staff have any questions about this report, please contact 

Andrew Sherrill at (202) 512-7215 or sherrilla@gao.gov. Contact points for 

our Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. Key contributors to this report are listed in 

Andrew Sherr

appendix VI. 

ill 

Director, Education, Workforce, 

 and Income Security Issues 

Page 45 GAO-10-302 Energy Employees Compensation
 

List of Requesters 

The Honorable Jeff Bingaman 

Chairman 

Committee on Energy and Natural Resources 

United States Senate 

The Honorable Tom Harkin 

Chairman 

Committee on Health, Education, Labor, and Pensions 

United States Senate 

The Honorable Patty Murray 

Chairman 

Subcommittee on Employment and Workplace Safety 

Committee on Health, Education, Labor, and Pensions 

United States Senate 

The Honorable George Miller 

Chairman 

Committee on Education and Labor 

House of Representatives 

The Honorable Lamar Alexander 

United States Senate 

The Honorable Michael F. Bennet 

United States Senate 

The Honorable Sherrod Brown 

United States Senate 

The Honorable Jim Bunning 

United States Senate 

The Honorable Maria Cantwell 

United States Senate 

The Honorable Mitch McConnell 

United States Senate 

The Honorable Bill Nelson 

United States Senate 

Page 46 GAO-10-302 Energy Employees Compensation
 

The Honorable Harry Reid 

United States Senate 

The Honorable Charles E. Schumer 

United States Senate 

The Honorable Mark Udall 

United States Senate 

The Honorable George V. Voinovich 

United States Senate 

The Honorable Ed Perlmutter 

House of Representatives 

The Honorable Jared Polis 

House of Representatives 

Page 47 GAO-10-302 Energy Employees Compensation
Page 48 GAO-10-302 

Appendix I: Objective, Scope, and Appendix I: Objective, Scope, and Methodology 

Methodology 

To determine the length of time Labor, the National Institute for 

Occupational Safety and Health (NIOSH), and Energy each spent 

processing claims, and the factors affecting processing times, we obtained 

data from Labor and NIOSH from their case management systems for 

claims filed from fiscal year 2002 for Part B and fiscal year 2005 for Part E 

through September 2008. We assessed the data’s reliability and found the 

data reliable for the purposes of this study by checking for outliers and 

inconsistencies and by interviewing Labor officials. We analyzed trends in 

minimum, maximum, median, and average processing times from fiscal 

year 2002 for Part B and fiscal year 2005 for Part E through September 

2008. To determine which steps in the process are most time-consuming, 

we examined time spent by each agency and time spent between the 

milestones tracked by the agencies. To determine which factors affected 

processing times, we examined claim-processing times by type of claim 

(e.g., Parts B and E or with and without dose reconstruction cases), and by 

district offices to determine if there were significant and consistent 

differences among the processing times based on these characteristics. We 

also reviewed NIOSH’s analysis of how frequently claims move back and 

forth between NIOSH and Labor,1

 reasons for and effects of major NIOSH 

revisions to dose reconstruction methods and site profiles,2

 and how long 

it took Energy to respond to Labor and NIOSH requests for information. 

We also interviewed agency officials to obtain their views on what aspects 

of the program they believe affect processing times. We interviewed 

officials and reviewed relevant documentation to identify efforts to 

expedite claim processing. To evaluate agencies’ performance in the area 

of timeliness, we examined timeliness measures established by Labor and 

NIOSH and whether they had met their established goals. For additional 

context, we reviewed external evaluations of Labor’s implementation of 

the program such as the Program Assessment Rating Tool review and a 

report on the program by Labor’s Office of Inspector General. 

To determine the direct cost of claim processing, we obtained 

administrative cost data from program inception (fiscal year 2001 for Part 

B and fiscal year 2005 for Part E) through fiscal year 2008 from Labor and 

NIOSH and from fiscal year 2006 through fiscal year 2008 from Energy. 

 

1

Cases may move back and forth between NIOSH and Labor because NIOSH, Labor, or 

claimants may identify new information, such as new types of cancer or a change in 

employment information. 

2

Dose reconstruction methods and site profiles are revised on an as-needed basis, 

frequently triggered by new information or modified scientific approaches. 

 Energy Employees Compensation 
Appendix I: Objective, Scope, and 

Methodology 

These data have not been audited. We assessed the data’s reliability by 

checking for outliers and inconsistencies and found the data reliable for 

the purposes of this study. We also interviewed agency officials and 

reviewed relevant documentation to identify possible reasons behind the 

trends in costs (e.g., number of claims processed, complexity of claims 

processed, whether greater efficiencies have been introduced, and so 

forth). Because the same administrative resources were used for various 

parts of the process, we were not able to disaggregate costs for discrete 

steps in the claims process. Consequently, we could not determine the 

costliest parts of the process within an individual agency. 

To assess the quality controls and transparency of the claims adjudication 

process, we reviewed relevant statutes, regulations, and agency technical 

and procedural guidance for the Energy Employees Occupational Illness 

Compensation Program Act of 2000 (EEOICPA); interviewed officials from 

Labor, Energy, and NIOSH; and interviewed members of the Advisory Board 

on Radiation and Worker Health and its technical contractor. To obtain 

additional expert opinion on the technical and medical aspects of EEOICPA 

claims adjudication, we identified occupational and environmental health 

organizations and specialty societies, such as the American College of 

Occupational and Environmental Medicine. We contacted all such 

organizations we could identify through referrals, Internet searches, and 

review of Advisory Board meeting minutes and interviewed those 

physicians and scientists that made themselves available. We also 

interviewed the two former Medical Directors of Labor’s Division of Energy 

Employees Occupational Illness Compensation and occupational medicine 

specialists who are actively involved in assisting claimants. 

To obtain claimant perspectives on the quality controls and transparency 

of the claims adjudication process, we interviewed claimant ombudsmen 

with Labor, NIOSH, and the state of New Mexico, and claimant 

representatives from a nationwide coalition of grassroots advocacy 

groups, known as the Alliance of Nuclear Worker Advocacy Groups 

(ANWAG). Largely through the assistance of ANWAG, we were in touch 

with individual claimants as well as physicians and representatives of 

labor unions with experience at sites including Hanford, Santa Susana, 

Oak Ridge, Rocky Flats, Linde Ceramics, and the Portsmouth Gaseous 

Diffusion Plant. 

Regarding quality control, we also reviewed EEOICPA, the agencies’ 

regulations, and policies and procedures to determine whether there was 

adequate oversight of claim processing and oversight to ensure that 

decisions were reached using complete and accurate information. In 

Page 49 GAO-10-302 Energy Employees Compensation
Appendix I: Objective, Scope, and 

Methodology 

addition to speaking with officials in Labor’s national office, we visited the 

Seattle District Office to interview officials about quality control processes 

in place at the regional level. We did not assess the scientific validity of 

technical methodologies (for example, NIOSH dose reconstruction) or the 

accuracy of individual claims determinations or site profiles. In addition, 

we did not attempt to resolve disputes regarding individual claims or 

Special Exposure Cohort petitions. 

To examine agencies’ efforts to promote program transparency for 

claimants, we also reviewed the agencies’ policies and procedures for 

providing pertinent information to claimants, including agency 

ombudsman reports. We reviewed Freedom of Information Act and 

security review procedures, including Energy’s security plan for providing 

classified and controlled information to NIOSH and Labor, and 

interviewed agency officials about their practices. We interviewed 

claimant advocacy groups and obtained documentation about their 

experiences with requesting and obtaining documents. We interviewed 

Labor and NIOSH officials about whether the agencies were able to obtain 

the information that they need to adjudicate claims. To determine the kind 

of assistance the agencies provide to claimants, we interviewed agency 

officials about the various types of assistance available (e.g., Former 

Worker Medical Screening Program, resource centers, and ombudsman’s 

offices) and visited Labor’s Hanford Resource Center and the Hanford 

Nuclear Reservation. We also reviewed relevant agency policies and 

procedures and interviewed Labor’s Ombudsman and NIOSH’s 

Ombudsman and Special Exposure Cohort Petition Counselor about their 

claimant assistance activities. We discussed claimant concerns about 

information and assistance with agency officials. We reviewed the Labor 

Ombudsman’s reports and followed up with Labor to determine its 

response to the documented claimant concerns. We also reviewed statutes 

creating ombudsman positions in connection with other federal programs. 

Because Labor’s Office of Inspector General recently reviewed and made 

recommendations on the role of the resource centers, we designed our 

study to avoid duplicating its efforts. 

We conducted this performance audit from November 2008 to March 2010 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives. 

Page 50 GAO-10-302 Energy Employees Compensation
Appendix II: La

Process

bor and NIOSH’s Claiming Steps 

Page 51 GAO-10-302 

Appendix II: Labor and NIOSH’s ClaimProcessing Steps 

Source: GAO analysis of Labor and NIOSH claim processes.

FAB issues final decision

NIOSH interviews claimant on 

employment history, radiation 

monitoring, radiation incidents, 

medical screening, and other 

relevant information. A report 

based on the collected data

is submitted to the claimant

for review and approval

Submits claim to Labor

CLAIMANT DEPARTMENT OF LABOR NIOSH

Dose

Reconstruction

Labor’s Office of Workers’ Compensation 

Programs issues a recommended decision 

to the claimant

FAB reviews entire record, including the draft

recommended decision and any additional evidence

or testimony submitted by the claimant

FAB reviews the written record, holds an 

overall hearing, and reviews any additional 

information submitted by the claimant

NIOSH obtains worker’s

and workplace monitoring 

information from Energy and 

any other sources as needed

NIOSH assigns a health 

physicist to conduct the dose 

reconstruction using data

from the claimant, the site 

profile, and other sources

Claimant is given a draft 

dose reconstruction report 

and a chance to provide 

additional information

in a close-out interview

No

Yes

Yes

Yes

No

No

Claim refered to

NIOSH for dose

reconstruction

Claimant can request

either a written record

review or an oral hearing

from Labor’s Final

Adjudication Branch (FAB)

Claim returned to Labor’s Office

of Workers’ Compensation

Programs for development

What type

of claim

is it?

Is the information adequate

for FAB to make a decision?

Does claimant

object to the

recommended

decision?

Claims involving cancers

not covered by Special

Exposure Cohort provisions

Does claim meet eligibility requirements?

Claimant can seek reconsideration 

of FAB decision within 30 days, 

request claim be reopened with 

submission of new information,

or appeal decision to U.S. courts

After changes are made, 

claimant is required to submit 

a form to NIOSH certifying 

record can be closed.

Upon receipt of the form, 

NIOSH forwards final report

to claimant and to Labor

Beryllium

 Silicosis

Special Exposure Cohort claims

Radiation Exposure Compensation Act

Section 5 

 Energy Employees Compensation 
Appendix III: NIOSH and Labor’s 

Performance Measures 

Table 6: NIOSH Performance Measures for Fiscal Year 2009 

Goal 1: Provide a dose reconstruction to all claimants in a timely manner 

Measure Target Baseline performancea Target achieved

Complete a percentage of initial cases within 6 months of receiptb 35% 31% N/A 

Complete a percentage of legacy cases during fiscal year 2009c 50% 54% N/A 

Complete a percentage of returns from Labor within 6 months of being sent 

back to NIOSHd 

40% Baseline not set N/A 

Goal 2: Deliver an evaluation report within 180 days for §83.13 petitionse 

Complete a percentage of evaluation reports within 180 days 60% Baseline not set N/A 

Provide to the board and petitioners a schedule to complete those evaluation 

reports that were not completed within 180 days 

No target Baseline not set N/A 

Source: NIOSH. 

a

A baseline is a starting point for measuring performance, while a target is the level of performance an 

agency wishes to achieve. Actual performance for fiscal year 2009 was not available (N/A). 

b

NIOSH defines “initial cases” as cases that have been sent to NIOSH for a dose reconstruction for 

the first time. 

c

NIOSH defines “legacy cases” as cases that have been at NIOSH for 2 years or more without a 

completed dose reconstruction. 

d

NIOSH defines a “rework” as a case that has been returned to NIOSH by Labor to perform a dose 

reconstruction again using all currently approved methodologies applicable to that case.

e

These are Special Exposure Cohort petitions submitted to NIOSH from petitioners. NIOSH then 

develops an evaluation report that describes NIOSH’s determination of the petition. 

Table 7: Department of Labor Performance Measures in 2008 

Measure Target

Actual, Part 

B Actual, Part E

Target 

achieved 

1 Create claims within 5 calendar days of receipt 95% 96.8% 97.0% Yes 

2 Take initial action within 14 calendar days of creating claim 90% 96.0% 95.7% Yes 

Take initial action within 25 calendar days of creating claim 95% 97.7% 97.5% Yes 

3 Complete initial processing on claims within 180 days of 

receipt 

65% 77.6% 54.9% No 

Complete initial processing on claims within 300 days of 

receipt 

85% 89.1% 69.1% No 

4 Average number of days to complete initial processing 

(Government Performance and Results Act [GPRA] goal) 

Part B: 226 

Part E: 290

164.6 283.7 Yes 

5 Complete probability of causation calculations and issue 

recommended decisions after claims are returned from 

NIOSH within 45 days receipt 

90% 89.8% N/Aa No 

6 Actions taken on claims affected by Special Exposure Cohorts 

and Program Evaluation Plans and Program Evaluation 

Reports within 45 days 

50% 45.0% N/Aa No 

Appendix III: NIOSH and Labor’s 

Performance Measures 

Page 52 GAO-10-302 Energy Employees Compensation
Appendix III: NIOSH and Labor’s 

Performance Measures 

 Measure Target

Actual, Part 

B Actual, Part E

Target 

achieved 

Actions taken on claims affected by Special Exposure Cohorts 

and Program Evaluation Plans and Program Evaluation 

Reports within 90 days 

95% 77.8% N/Aa No 

7 Issue final decisions within 30 days of receipt of claimant’s 

waiver of the right to a hearing or a review of record 

87% 91.0% 91.0% Yes 

Issue final decisions within 75 days of receipt of claimant’s 

waiver of the right to a hearing or a review of record 

87% 96.2% 95.3% Yes 

8 Issue final decisions on all other approved or no-contest 

claims within 75 days of the recommended decision (GPRA 

goal) 

87% 92.1% 89.7% Yes 

9 Issue final decisions for review of the written record within 75 

days of receipt of the request for review of the written record 

(GPRA goal) 

87% 89.7% 89.2% Yes 

10 Issue final hearing decisions within 180 days of the receipt of 

the request for hearing (GPRA goal) 

87% 90.2% 87.5% Yes 

11 Take initial action on remands or the director’s order within 30 

days of receipt of the case 

90% 95.5% 91.0% Yes 

12 Make recommended decision after remand or director’s order 

within 120 days 

75% 92.9% 80.8% Yes 

13 Process lump-sum payments within 15 days of receiving 

claimant’s EN-20 form 

90% 99.0% 99.4% Yes 

14 Complete reopening requests in district office within 90 days 75% 88.9% 86.6% Yes 

15 District office responds to phone inquiries for both Parts B and 

E within 2 work days 

90% 94.8% 94.8% Yes 

16 Final Adjudication Branch responds to phone inquiries for 

both Parts B and E within 2 work days 

90% 94.8% 94.8% Yes 

17 Respond to requests for medical authorization within 5 

calendar days of thread opening 

75% 86% 86% Yes 

18 Complete wage loss recommended decisions within 240 days 75% N/Ab 32.3% No 

Complete impairment recommended decisions within 180 

days 

75% N/Ab 40.2% No 

Source: Department of Labor data. 

Note: Two of these measures were not met because of performance on Part B claims and two were 

not met because of performance on Part E claims. However, one missed target for Part E was 

established in 2007. 

a

This is not applicable to all Part E cases, because only Part B cases are considered for special 

exposure cohorts. 

b

This is not applicable to Part B, because only Part E cases qualify for compensation for wage loss 

and impairment. 

Page 53 GAO-10-302 Energy Employees Compensation
Appendix IV: Comments from the Department Appendix IV: Comments from the of Energy 

Department of Energy 

Page 54 GAO-10-302 Energy Employees Compensation 
Appendix V: Comments from the Department 

of Labor 

Page 55 GAO-10-302 

Appendix V: Comments from the Department 

of Labor 

Energy Employees Compensation
Appendix V: Comments from the Department 

of Labor 

Page 56 GAO-10-302 Energy Employees Compensation
Appendix VI: GAO Contact and Staff 

Acknowledgments 

Page 57 GAO-10-302 Energy Employees Compensation 

Andrew Sherrill, Director, Education, Workforce, and Income Security 

(202) 512-7215, sherrilla@gao.gov

Meeta Engle, Assistant Director, managed this assignment. Other staff who 

made key contributions to this assignment were Emily Gunn, Lara Laufer, 

and Suzanne Rubins. In addition, Jessica Botsford provided legal 

assistance; Luann Moy assisted with the methodology; Susan Bernstein 

provided writing assistance; and James Bennett produced the graphics. 

Appendix VI: GAO Contact and Staff 

Acknowledgments 

Contact 

Acknowledgments 
Related GAO Products 

Page 58 GAO-10-302 Energy Employees Compensation 

Energy Employees Compensation: Actions to Promote Contract 

Oversight, Transparency of Labor’s Involvement, and Independence of 

Advisory Board Could Strengthen Program. GAO-08-4. Washington, D.C.: 

October 26, 2007. 

Energy Employees Compensation: Adjustments Made to Contracted 

Review Process, but Additional Oversight and Planning Would Aid the 

Advisory Board in Meeting Its Statutory Responsibilities. GAO-06-177. 

Washington, D.C.: February 10, 2006. 

Federal Compensation Programs: Perspectives on Four Programs. 

GAO-06-230. Washington, D.C.: November 18, 2005. 

Energy Employees Compensation: Many Claims Have Been Processed, 

but Action Is Needed to Expedite Processing of Claims Requiring 

Radiation Exposure Estimates. GAO-04-958. Washington, D.C.: 

September 10, 2004. 

Energy Employees Compensation: Even with Needed Improvements in 

Case Processing, Program Structure May Result in Inconsistent Benefit 

Outcomes. GAO-04-515. Washington, D.C.: May 28, 2004. 

Veterans’ Benefits: Independent Review Could Improve Credibility of 

Radiation Exposure. GAO/HEHS-00-32. Washington, D.C.: January 8, 2000. 

Related GAO Products 

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