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S. HRG. 110–737 

EEOICPA: IS THE PROGRAM CLAIMANT 

FRIENDLY FOR OUR COLD WAR HEROES? 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON

EXAMINING THE EFFICACY OF THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM (EEOICPA), FOCUSING ON 

OUR COLD WAR HEROES 

OCTOBER 23, 2007 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/senate 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

EDWARD M. KENNEDY, Massachusetts, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

HILLARY RODHAM CLINTON, New York 

BARACK OBAMA, Illinois 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

MICHAEL B. ENZI, Wyoming, 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

LISA MURKOWSKI, Alaska 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

WAYNE ALLARD, Colorado 

TOM COBURN, M.D., Oklahoma 

J. MICHAEL MYERS, Staff Director and Chief Counsel 

KATHERINE BRUNETT MCGUIRE, Minority Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

TUESDAY, OCTOBER 23, 2007 

Page 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, opening 

statement .............................................................................................................. 1 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, statement ...................................................................................................................... 2 

Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, statement .......... 2 

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, statement ...... 3 

Murray, Hon. Patty, a U.S. Senator from the State of Washington, statement 4 

Prepared statement .......................................................................................... 5 

Hallmark, Shelby, Director, Office of Workers’ Compensation Programs, Department of Labor, Washington, DC. ................................................................. 7 

Prepared statement .......................................................................................... 8 

Reid, Hon. Harry, a U.S. Senator from the State of Nevada, statement ............ 16 

Prepared statement .......................................................................................... 19 

Howard, John, M.D., Director, National Institute for Occupational Safety 

and Health, Washington, DC. ............................................................................. 22 

Prepared statement .......................................................................................... 23 

Nelson, Malcom D., Ombudsman, Energy Employee Compensation Program, 

Department of Labor, Washington, DC. ............................................................. 27 

Prepared statement .......................................................................................... 28 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, prepared 

statement .............................................................................................................. 36 

Melius, James, M.D., DrPh., Member, Advisory Board on Radiation and 

Worker Health, National Institute for Occupational Safety and Health, 

Albany, NY ........................................................................................................... 39 

Prepared statement .......................................................................................... 41 

Silver, Ken, Assistant Professional, Environmental Health Sciences, East 

Tennessee State University, Johnson City, TN ................................................. 45 

Prepared statement .......................................................................................... 47 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Senator Enzi ..................................................................................................... 65 

Senator Harkin ................................................................................................. 66 

Senator Clinton ................................................................................................. 67 

Senator Obama ................................................................................................. 68 

Senator Schumer .............................................................................................. 71 

Senator Salazar ................................................................................................ 73 

Representative Mark Udall ............................................................................. 74 

(III) 

(IV) 

Prepared statements of: 

Mark Ayers, President, The Building and Construction Trades Department, AFL-CIO, Washington, DC. ................................................ 78 

Sylvia Dodson, Knoxville, TN ................................................................... 80 

Deb Jerrison, Yellow Springs, OH ........................................................... 80 

Daniel Yaeger, Worker, U.S. Department of Energy Fernald site ........ 83 

Response to Questions of Senators Kennedy, Murray, Brown, and Reid 

by Malcom D. Nelson .................................................................................... 84 

Response to Questions of Senator Murray by James Melius, M.D., DrPH . 89 

Rocky Mountain News Article by Laura Frank ............................................. 91 

(1) 

EEOICPA: IS THE PROGRAM CLAIMANT 

FRIENDLY FOR OUR COLD WAR HEROES? 

TUESDAY, OCTOBER 23, 2007 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:06 a.m. in Room 

SD–430, Dirksen Senate Office Building, Hon. Jeff Bingaman, presiding. 

Present: Senators Bingaman, Murray, Brown, Alexander, Murkowski, and Allard. 

Also present: Senator Reid. 

OPENING STATEMENT OF SENATOR BINGAMAN

Senator BINGAMAN. This is an oversight hearing on the Energy 

Employees Occupational Illness Compensation Program Act. First, 

let me thank the witnesses for being here and taking the time to 

testify. I know that some of you have traveled a distance to be 

here, and I thank you for that. 

This is the first oversight hearing this Congress on this Energy 

Employees Occupational Illness Compensation Program Act. Last 

Congress the House Judiciary Committee held five oversight hearings regarding claimed efforts by OMB to trim back the program 

in order to control costs for budget reasons. I believe that phase is 

over, and this committee does not have to focus on that issue, specifically, this year. 

I’ve been working on this act, as many of my colleagues have, 

since it was first put into law in 2000, and that includes the major 

restructuring of the act that occurred in 2004. The principle purpose in formulating the program was to provide compensation to 

persons who’d become sick as a result of work in the nuclear weapons program. And to do so under assumptions that were favorable 

to the claimant, given in many cases the fact that exposure data 

was lacking at some of the older facilities that we had in the country. 

Since many of these workers are either ill or elderly, an inherent 

assumption was made that the claimant—to have a claimantfriendly determination, with minimal confusion and frustration on 

behalf of the worker. 

Today’s hearing will look at whether the Program’s being administered to meet this overarching principle. Let me thank all of the 

witnesses again, and Senator Alexander, did you have any opening 

statements you’d like to make at this point? 

2 

STATEMENT OF SENATOR ALEXANDER

Senator ALEXANDER. Thanks Senator Bingaman, I would like to 

make a couple of comments. 

First, I’d like to thank Senators Bingaman and Bunning, especially, for their leadership on this issue over the years. We’ve all 

worked on it, and are concerned about it. 

Tennessee has a special concern about these claims, and I have 

a special feeling about it, I grew up near Oak Ridge, TN, and 

watched people from my county drive over there from World War 

II on through. And, we always had great respect for what they did, 

they never talked about what they did, a lot of it was secret, and 

we expected that the government knew what it was doing. 

Turns out the government didn’t know what it was doing in 

terms of the health of many of these workers. 

As a result, these cold warriors, as I would call them, became 

sick from risks that, largely, had to do with being around nuclear 

radiation. 

Tennessee has more than 24,000 compensation claims that have 

affected 10,000 workers. We have twice the number of claims of 

any other State. Sixteen percent of all of the claims come from Tennessee, and so Senator Corker and I, and others in our delegation, 

are very interested in making sure that we do everything we can 

to make sure the claims are fairly and promptly resolved. 

What I’m especially interested in hearing about today is how we 

can speed things up. Since the law that we passed in 2004, based 

upon the information I have, Senator Bingaman, the average wait 

time for processing claims has actually increased. 

Now, there’s some reasons for that, but that still seems to be a 

fact and a discouragement to sick nuclear workers who are growing 

older, and who—if they were to die—their families wouldn’t, in 

many cases, receive the benefit of the claim. 

I’m also interested in making sure that claimants or potential 

claimants are treated courteously, the same way we like for our 

staff members on our Senate staffs to treat everyone. 

And, so those are the two things I want to look at: Are we doing 

this as efficiently and promptly as we can? And are we treating 

each of these claimants with dignity in making sure that their 

needs are respected. 

I thank the witnesses for coming, I look forward to the testimony. 

Senator BINGAMAN. Let me just see if Senator Brown and Senator Allard are both here, if either of them have a short statement. 

Go right ahead, Senator Brown. 

STATEMENT OF SENATOR BROWN

Senator BROWN. I thank you, Mr. Chairman, thank you for holding this hearing. Senator Alexander, thank you, and my statement 

will be brief. 

My home State of Ohio has played a major, significant role in the 

Department of Energy programs that eventually resulted in the 

creation of the Energy Employees Occupational Illness Compensation Program we’re discussing here today. 

3 

In Miamisburg, near Dayton, the Mound Laboratory was the top 

secret research center involved in the processing of plutonium and 

polonium, and Hamilton and Butler counties just north—just in 

Cincinnati and north of Cincinnati, the feed materials production 

center produced uranium for nuclear weapons, and in southern 

Ohio, we’ve enriched uranium for nuclear submarines and power 

plants. 

This short history doesn’t include the other Department of Energy facilities in Lucky and Painesville, in Ashtabula and the larger city of Columbus. Every month, literally, my office receives requests from constituents asking for help in navigating this complex 

and complicated program. 

In August, Deb Garrison, from Yellow Springs community in 

Green County near Dayton, shared her EEOICPA experience with 

my office. She told me how her father died in 1960, just 3 years 

after retiring from his 8 years of service at the Mound Lab in 

Miamisburg. She described how her mother, attempting to file for 

compensation, could not complete her claim as a result of her own 

failing health. Picking up where her mother left off, Ms. Garrison, 

after months and months of work, is still navigating the bureaucracy. She’s now in a fourth dose reconstruction, has no real idea 

when her mother’s claim will finally be resolved. 

Sadly, her story is not unique. I’m sure all of us here today have 

heard similar stories from Tennessee constituents, New Mexican 

constituents, others. 

The list of hurdles this program faces is not short, many of the 

program’s claimants are older, sometimes ill, often dealing with 

rare diseases that the medical community is still learning about. 

Records needed to substantiate work histories and job descriptions 

are still classified, sometimes, simply, they don’t exist. 

But these obstacles can’t be excuses. Reports of the program’s 

delays and inaction and ineffectiveness are not simply just disheartening and disappointing, they’re a breach of trust from our 

government to our citizens. 

Former nuclear workers shouldn’t have to navigate an overly 

complex and seemingly never-ending bureaucratic maze, or be required to prove the un-provable. They deserve a program that 

treats them with dignity and respect, they deserve fair judgments, 

and timely, transparent process. They deserve the compensation 

promised to them. 

As this hearing moves forward, our priorities must not be to 

point fingers, we must focus on the claimants and their experiences 

examining the details of the program from their perspective. We 

must stay focused on Ms. Garrison and all of the people like her, 

struggling to make sense of this program. 

Thank you, Mr. Chairman. 

Senator BINGAMAN. Senator Allard. 

STATEMENT OF SENATOR ALLARD

Senator ALLARD. Mr. Chairman, I do have a brief statement, and 

first of all, I just want to thank you and Senator Alexander both 

for putting together this hearing. 

4 

This is important to those of us who come from States where we 

have Department of Energy employees who have worked around 

nuclear facilities. 

I appreciate the testimony of the witnesses here today, and I 

would like to extend a special welcome to the workers and their 

families who are in the audience. This hearing presents an opportunity to discuss very important issues facing the system, and process in place to compensate employees and their families who 

worked in nuclear weapons facilities during the cold war. 

Enacted in 2001, and then amended again in 2004, the Energy 

Employees Occupational Illness Compensation Act is essentially a 

Federal workers compensation program designed to provide benefits to certain nuclear workers and their survivors. 

In my home State of Colorado, men and women of Rocky Flats 

and their nuclear weapons facility sites on the Western Slope have 

struggled for some time to receive compensation, but have seen little resolution. 

I’ve been supportive of the Rocky Flats workforce, and will continue to be an advocate of their efforts. As a Member of Congress 

who helped authorize the EEOICPA program, I know firsthand 

that Congress’ intent was to honor and care for our cold war veterans, our Nation’s heroes, who have become ill while working at 

Rocky Flats, and other DOE facilities. 

This program is about people and science, and doing the right 

thing, not politics. Thank you, Mr. Chairman. 

Senator BINGAMAN. Senator Murray, did you have a statement 

you want to make? 

STATEMENT OF SENATOR MURRAY

Senator MURRAY. A very brief one. Thank you very much, Mr. 

Chairman, and Senator Alexander, for calling this hearing. 

This is an important issue to me, because it does affect many 

families in my home State of Washington. We have thousands of 

workers at the Hanford plant near the tri-cities, who produced plutonium for the Manhattan Project, and helped America win World 

War II and the cold war. Now many of these brave men and women 

are ill, as a result of their service, and they and their families are 

suffering some of the painful consequences of their commitment to 

our national security. 

We’re here today because it is our responsibility to ensure that 

these men and women are receiving the compensation we promised 

them, in a fair and timely manner. I’m really glad we’re holding 

this hearing, because I do have some questions about how the Federal Government is administering this compensation program. I’m 

concerned about how long it takes to process claims, because many 

people are waiting far too long for a final decision. 

I’m very troubled that workers and their families find it very difficult to get information about the status of their claims, and I 

want to know what we can do to make this process more transparent. 

I’m especially interested to hear more about a recent request by 

some of our Hanford workers, to get a special classification that 

will make it easier for them to get their benefits. 

5 

Our government has a responsibility to those who gave so much 

of themselves to our country. These sick workers and their families 

shouldn’t have to struggle with a frustrating bureaucracy as they 

seek their compensation. 

Mr. Chairman, thank you very much for holding this hearing, 

and I look forward to hearing from all of our witnesses today. 

[The prepared statement of Senator Murray follows:] 

PREPARED STATEMENT OF SENATOR MURRAY

Thank you, Mr. Chairman, for calling this important hearing to 

help us determine whether the Federal Government’s compensation 

program for our Nation’s energy workers is serving our cold war 

heroes adequately. 

Many of these brave men and women and their families have 

suffered painful consequences from their commitment to our national security. We’re here today because it’s our responsibility to 

ensure they’re receiving the compensation promised them in a fair 

and timely manner. I’m glad we’re holding this hearing, because I 

have questions about how the Federal Government is administering the program: 

• I’m concerned about how long it takes to process claims—too 

many people have been waiting far too long for a final decision. • I’m also troubled that workers and their families find it difficult to get information about the status of their claims. 

• And I want to know what we can do to make the process more 

transparent. 

I know that many of the Senators here with me represent States 

where these heroes worked for years. They’ve heard first hand how 

exposure to dangerous radiation and toxic substances affected families for generations. Unfortunately, the same is true for the workers in my home State of Washington. 

The Hanford facility, near the Tri-Cities in Washington State, 

began more than 60 years ago as a plutonium production site on 

the Columbia River. During its peak years, nearly 50,000 employees worked at Hanford, where they played a vital role in the Manhattan Project. Residents of the surrounding area sacrificed to help 

America win World War II and the cold war. 

Today, it is the Nation’s most contaminated nuclear site and the 

largest environmental cleanup project in U.S. history. Nearly half 

the size of the State of Rhode Island—the site is imposing. Approximately 11,000 workers are part of the cleanup effort. We know that 

working with such hazardous materials impacted the environment 

and harmed many of the workers who dutifully served their country at a difficult time during our Nation’s history. 

I’ve heard countless stories of workers and survivors who’ve waited too long for a response to their concerns or claims. Thousands 

in Washington State and across the country are stuck in a long and 

arduous filing process that often continues after the worker has 

lost their life to dangerous exposures. The pain that accompanies 

illness and loss should not be compounded by bureaucratic and administrative frustrations. 

During my time in the Senate, I’ve pushed the Federal Government to do the right thing by those at Hanford—to adequately comVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 S:\DOCS\38648.TXT DENISE
6 

pensate workers and their families and cleanup the Hanford site 

for the well-being of those who live and work in the surrounding 

communities. It’s hard to believe that it’s been 6 years since I 

helped to create the Senate Nuclear Cleanup Caucus—a bipartisan 

effort to increase funding for nuclear waste cleanup. And I’ll continue that fight until the job is done. 

Because of the incompetence of officials in processing claims at 

the Department of Energy, 2 years ago a number of us worked to 

move this compensation program to DOL. I’m anxious to learn how 

things are going and what we can do better for those who’ve suffered so much. As I said earlier, I have concerns about how the program is being carried out. We must ask those responsible for administering the program some basic questions: 

• How can we shorten the time it takes for a claimant to get a 

final decision from the Department of Labor? 

• How can the Department better assist claimants in retrieving 

their records? 

• How can the Department communicate more clearly and openly with claimants? 

• How can we make the entire applicant process more accessible, 

transparent, and user-friendly? 

And I’m particularly interested to hear more about a recent request by Hanford workers to get a special classification that will 

make it easier for them to get benefits. 

As we examine these critical questions, I would encourage the 

agencies involved to hold themselves accountable to these heroes 

and their families by measuring their service and making the process as transparent as possible. 

I would also encourage the Department of Labor to maintain the 

office of the ombudsman so that applicants have a place to go for 

help navigating such a complex program. I applaud the work that 

the office has done over the last 2 years. 

Mr. Chairman, our government has a responsibility to those who 

gave so much of themselves for our country. These sick workers 

and their families shouldn’t have to struggle with a frustrating bureaucracy as they seek compensation. I look forward to hearing 

from the witnesses about the government’s progress with this program, and learning more about how we can make it more responsive to the thousands of claimants still waiting for a decision. 

Senator BINGAMAN. Well, thank you very much. 

We have two panels of witnesses. On the first panel we have 

Shelby Hallmark who is the Director of the Office of Workers’ Compensation Programs in the Department of Labor, thank you very 

much for being here. 

Dr. John Howard, who is the Director of the National Institute 

for Occupational Safety and Health, thank you very much for being 

here. 

Mr. Malcolm Nelson who is the Ombudsman with the Energy 

Employee Compensation Program in the Department of Labor. 

Thank you very much. 

Also, Senator Harry Reid has indicated that he would like to 

come and make a statement to the committee. Because of his time 

pressures, if he does come, I may insert him in between one of you 

7 

witnesses, I’m sure you can understand that. But why don’t we go 

right ahead and hear from each of you in the order that I introduced you, and then we will have some questions. 

Mr. Hallmark. 

STATEMENT OF SHELBY HALLMARK, DIRECTOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, DEPARTMENT OF 

LABOR, WASHINGTON, DC. 

Mr. HALLMARK. Good morning, Mr. Chairman, and committee 

members. It’s my pleasure to be here to discuss the Department of 

Labor’s management of the Energy Employees Occupational Illness 

Compensation Program Act or as we call it, EEOICPA. The Program actually got off to a slow start, because it takes so long to 

read the name. 

The question today, is EEOICPA being administered well and is 

it claimant friendly. 

DOL recognizes nuclear weapon workers’ service to our Nation, 

and the hardships many have endured. We know how long they’ve 

waited for compensation; first for the passage of this statute, and 

then for their claims to be processed, in some cases, multiple times. 

We are also aware that most of our claimants are elderly and seriously ill. My written testimony explains at length the many ways 

that our program at DOL reaches out to inform, assist and support 

these workers and their families, often helping to prove claims in 

ways that the families aren’t even aware of. 

But, I also hear about special efforts that we’ve made on a particular case. Just last Wednesday, our office in Jacksonville learned 

of a former Oak Ridge worker who had been given no more than 

24 hours to live. They had already done an expedited award for 

this gentleman, but forms needed signing, and there was little 

time. Our resource center manager there at Oak Ridge went to the 

hospital personally, and obtained the signatures from this sick individual. Staff in Washington, DC. talked Treasury into issuing a 

same-day payment—which they don’t like to do—and on Thursday, 

this gentleman was comforted to learn that his family had the 

money in-hand. He, unfortunately, died on Friday. 

These kinds of stories are repeated time and again. On October 

1, for example, Jacksonville got a brand-new claim from a terminally ill Oak Ridge woman. Somehow, they managed to issue payments totaling $387,500 on October 9. Had they not done that, her 

entire benefit would have died with her, because she did not have 

eligible survivors. She died on October 14. 

Beyond the question of service and assistance, however, the true 

test of this program is whether those Congress intended to be compensated are, in fact, getting paid. By this measure, EEOICPA is 

clearly exceeding expectations. In just over 6 years, DOL has paid 

out more than $3.2 billion to nearly 35,000 recipients. That is a 

real achievement. 

Very few of these workers won State Workers’ Comp benefits, 

and in 4 years of the old Part D program, the Department of Energy, only a million dollars was paid out. 

CBO assumed in 2000 that only 460 individuals would be paid 

via the dose reconstruction process in 10 years. In fact, there have 

been 4,900 such payments in only 6 years. And CBO estimated an 

8 

$840 million payoff for Part E in 10 years, and DOL has exceeded 

that amount in less than 3 years. 

When clearly invalid applications are set aside, more than half 

of Part B and Part E cases are being approved. The current program, whatever its faults, is delivering benefits. 

The last key measure of claimant friendliness is the speed with 

which decisions are rendered. Workers and their families deserve 

an expeditious decision, even though their cases are complicated. In 

this arena, we have not been as successful as we would like. The 

dose reconstruction process is complex and time-consuming. Although it’s getting quicker now, on average, since the beginning of 

the program, it’s taken 2 years for a case to clear through NIOSH, 

and nearly 3 years when DOL’s additional processing to those cases 

is added. 

I don’t blame claimants for being frustrated with that kind of 

delay. We are able to decide Part B cases that don’t go to NIOSH 

more rapidly, at about 250 days. That’s still not fast enough. 

With the advent of Part E in 2005, DOL is obliged to take on an 

entirely new program, it’s huge AIDs backlog, and to meld it with 

our existing one. We promised those who have been waiting for 

years at DOE that they would not have to go to the back of the 

line. And we followed through on that promise. 

Our key goal last year was to issue at least an initial determination on every single one of those cases we inherited from DOE, that 

was 26,000 cases. I’m proud to say we met that goal on the last 

day of the fiscal year. That group of claimants has now received almost one-half billion dollars in Part E benefits. 

Unfortunately, the need to focus on those old cases, plus the addition of new, special exposure classes, and the need to reopen and 

send thousands of cases back to NIOSH due to changes in their 

procedures, has slowed DOL processing of the newer claims. I’m 

not satisfied with our current processing speed, but we will fix it. 

We’re committed to erasing the backlog of claims and reach a 

steady stayed posture by the end of this fiscal year. To do so, I’ve 

authorized staffing up immediately from our 525 current Federal 

employees, to nearly 600 FTE. 

We work hard to get payments to eligible claimants, but some 

don’t meet the legal criteria and it’s also our job to promptly, objectively and sympathetically tell those claimants no. This isn’t easy 

for anyone to hear. Most are convinced that their work caused their 

illness, and some are sure that denials mean that the government 

is simply abusing them all over again. I can’t speak for the cold 

war past, but the Department of Labor is delivering this program 

in accordance with the law, and with all the fairness, compassion 

and speed we can muster. 

I’ll be happy to answer your questions. 

[The prepared statement of Mr. Hallmark follows:] 

PREPARED STATEMENT OF SHELBY HALLMARK

Good morning Chairman Kennedy, Ranking Member Enzi and members of the 

committee. My name is Shelby Hallmark and I am the Director of the Office of 

Workers’ Compensation Programs, a component of the Employment Standards Administration of the U.S. Department of Labor (DOL). I am pleased to appear before 

the committee today to discuss our efforts to fulfill the promise made to veterans 

of the cold war with the enactment of the Energy Employees Occupational Illness 

9 

Compensation Program Act (EEOICPA). During the cold war era, thousands of 

workers served the Nation in building its nuclear defense programs. Many of these 

workers were exposed to radioactive and toxic substances that caused serious illness 

or death. The EEOICPA compensation and benefits provided at the Federal level 

are intended to minimize the financial hardships of claimants who have developed 

occupational illnesses related to the production and testing of nuclear weapons. 

In previous testimony, I have highlighted the dedication of the DOL staff to ensure that we adjudicate claims and provide benefits to eligible workers and their 

survivors in a manner that is timely, fair, consistent, and according to the law as 

enacted by Congress. We do our best to administer the program in the best interest 

of the workers and survivors for which it was intended, and as outlined in the statute—and we believe the results demonstrate that the promise of the statute is being 

kept. 

‘‘IS EEOICPA BEING ADMINISTERED IN A CLAIMANT FRIENDLY MANNER?’’ 

DOL has been working since the inception of EEOICPA to address the concerns 

of stakeholders. We have designed and implemented our program to provide a 

wealth of assistance and multiple opportunities for claimants to obtain information, 

request reconsideration of decisions, and otherwise better understand the process. 

I will outline some of those efforts below. 

In any compensation program, including EEOICPA, the administering agency has 

a dual role of service to claimants and program stewardship. Stewardship means 

we must adhere to the statute’s eligibility criteria established in law, and thus some 

claims will be unsuccessful. Even for denied cases, however, DOL seeks to provide 

as clear, helpful, and prompt a process as possible, so that claimants fully understand why they received the decision they did, and what their options are if they 

disagree. 

THE ADJUDICATION PROCESS

Our adjudication process is the primary means whereby we assist claimants in 

pursuing and perfecting their claims. At the outset, DOL moved quickly to establish 

a fair but streamlined and flexible adjudication structure. Thanks to the dedication 

of our staff and managers, we have been able to modify our strategies over the years 

to address the frequent and substantial changes in this program. From the start we 

have been keenly aware that EEOICPA is a complex law and that our claimants 

are generally ill and elderly, and have been awaiting compensation for their sacrifices for a long time. Our staff works hard to process claims fairly and promptly, 

and has made extraordinary efforts to help suffering nuclear workers and their families. 

DOL strives to clearly inform claimants about EEOICPA requirements and benefits as well as DOL’s adjudication process, including the process for objecting to our 

decisions. In the first phase, DOL (via our Resource Centers) helps claimants gather 

information and file applications for benefits. Next, the claim is forwarded to a DOL 

district office for development and adjudication. During the development phase, 

claims examiners do all they can to help claimants collect evidence to support their 

claims. Following collection and review of the evidence, the district office will issue 

a recommended decision to accept or deny benefits. 

If the case involves a claim of radiation-induced cancer, and is not covered by a 

Special Exposure Cohort (SEC) class (i.e., the cancer was not 1 of the 22 listed cancers for which SEC covered claims are presumed to have been caused by workplace 

radiation, or the work was not at an SEC facility, or the work was at an SEC facility but did not meet the 250-work day requirement), DOL must request and receive 

a dose reconstruction report from the National Institute for Occupational Safety and 

Health (NIOSH) before issuing a recommended decision. DOL then uses the information in NIOSH’s report to determine if the worker’s exposure meets the statutory 

minimum test that the illness had a 50 percent or greater probability of being 

caused by work-related exposure. In these cases, the ‘‘probability of causation’’ outcome is the key determinate in the recommended decision. 

All recommended decisions are sent to the claimant with a detailed explanation 

of the decision, as well as an explanation of the claimant’s rights and the process 

for formally objecting to the recommendation. At this point, the recommended decision is also forwarded to the Final Adjudication Branch (FAB) for a final decision. 

The FAB is a separate and independent component from the district office. In the 

final decision phase, claimants can object to the recommended decision and have a 

formal review of the written record or an oral hearing. The FAB may also remand 

a decision back to the district office if further development of the case is needed. 

10 

1 Resource Center locations include: Livermore, California; Westminster, Colorado; Idaho 

Falls, Idaho; Paducah, Kentucky; Las Vegas, Nevada; Espanola, New Mexico; Amherst, New 

York; Portsmouth, Ohio; North Augusta, South Carolina; Oak Ridge, Tennessee; and Richland, 

Washington. 

Ultimately, the FAB reviews all recommended decisions and any evidence/testimony 

submitted by the claimant and issues a final decision. 

The last administrative step, reconsideration, is for the claimant’s benefit. If the 

claimant objects to the final decision, he/she may request a reconsideration of the 

claim within thirty (30) calendar days. As a further protection for claimants, we do 

not close the evidentiary record when our administrative process is completed. A 

claimant may request a reopening of his or her claim at any time if there is new 

or compelling evidence. Lastly, the claimant may appeal a final decision to the U.S. 

District Court. 

This procedural structure provides the foundation for a system of claims adjudication that allows for multiple opportunities for claimants to perfect their claim. However, we do not rely only on our administrative procedures to provide claimants 

every possible opportunity to receive a positive outcome; we make efforts at each 

stage of the process to assist them. We strive to foster an organizational culture 

wherein our claims staff knows their job is to ensure that all eligible claimants are 

compensated, not merely to close claims as quickly as possible. 

DOL CLAIMANT ASSISTANCE, CUSTOMER SERVICE AND OUTREACH

The EEOICPA is complex in terms of its clientele, the exposures and types of diseases involved, the science used in determining causation, the multiple agencies engaged in delivering the program, and the various types of compensation and medical 

benefits available. A total of 64,187 workers are represented by the 108,172 cases 

reported under the EEOICPA. This includes employees who worked in a broad 

range of occupations and professions at one (or more) of the 130 facilities identified 

as Department of Energy (DOE) facilities, 200-plus facilities identified as atomic 

weapons employers (AWEs), 70-plus beryllium vendors, and 4,000-plus uranium 

mines or mills covered by the EEOICPA. These workers suffer from a broad range 

of illnesses. In some cases, we have experienced difficulty in locating employment 

records to support claims. Many claimants have found it difficult to obtain documentation that can establish exposure to radiation and toxic substances due in large 

part to the secrecy and lack of information available about nuclear weapons production processes. Others struggle to locate medical records. Nearly all find it difficult 

to understand the complexities of the statute, and the differing eligibility rules 

under its various provisions. Their advanced ages and poor health only magnify 

these difficulties. If the worker is deceased, the survivors may not even be aware 

of their parent’s, grandparent’s or other family member’s work history and may not 

have access to the documents and records required to support a claim. 

All of these factors have required extraordinary efforts by DOL to not only inform 

the public about EEOICPA but to assist covered workers and their families who 

may be eligible for benefits. DOL continues to employ a wide range of outreach activities to educate the public and to provide specific assistance to claimants in completing forms, navigating through the process of submitting evidence and other information, and understanding the adjudication process from start to finish. 

ASSISTANCE IN OBTAINING EMPLOYMENT VERIFICATION

DOL understands the difficulties claimants may have in locating employment 

records that are necessary to substantiate a claim, and has taken steps to provide 

meaningful assistance. DOL and DOE use a DOE database for on-line employment 

verification of some claims. DOL also has a contract with the Center to Protect 

Workers’ Rights (CPWR) to secure employment information for subcontractors. For 

example, CPWR helps to obtain information about construction workers who may 

have been exposed at DOE sites but whose employment information was not captured in DOE’s prime contractor data sets. DOL also works with DOE’s Former 

Workers Program, and with other contractors, to locate appropriate records that are 

not immediately available through DOE. These key relationships help relieve the 

burden on the claimants to attempt to locate records. Another source of information 

is the Social Security Administration; with the claimant’s permission, we can request earnings data to verify a claimant’s work history. 

RESOURCE CENTERS

DOL operates 11 Resource Centers (RCs)1 where knowledgeable staff work oneon-one with claimants to file forms, and gather and submit pertinent information 

11 

2To date, RCs have processed more than 16,600 employment verifications and over 15,400 occupational history questionnaires. 

for their claims. These RCs are located near major nuclear weapon production and 

testing facilities to serve locations with the highest claimant populations. The RCs 

handle the initial intake of information from claimants (i.e., claims forms, occupational history, and employment verification 2 and send completed claims to the 

DOL’s district offices. RC staff meets face-to-face with claimants and works via 

DOL’s toll-free telephone service to provide all relevant information at the initial 

stages of claim submission and to answer any questions. They also participate in 

numerous local events to communicate with various stakeholder groups and potential claimants. We monitor the performance of the RCs via accountability reviews 

and direct feedback from our district offices, and they continue to provide highquality service to claimants. 

SPECIAL IMPAIRMENT AND WAGE-LOSS BENEFITS PROJECTS (PART E)

In 2006, DOL recognized that many claimants (including those who received a 

positive causation determination) were not submitting Part E claims for impairment 

and wage-loss benefits, due to their confusion over the complexity of the benefit 

structure. In response, we immediately tasked the RCs with the critical role of helping claimants understand their potential eligibility for Part E benefits. RC staff contacted eligible claimants to explain impairment and wage-loss benefits and offered 

one-on-one assistance to individuals who sought to file claims. 

Because of our concern that many living workers appeared to be uncertain about 

filing for Part E impairment or wage-loss benefits, we established a special performance target for the district offices to ensure that at least half of the cases potentially 

eligible for such benefits would receive a decision on that issue in fiscal year 2007. 

We exceeded that goal, with 58 percent of the cases receiving a decision or an affirmative determination that the claimant did not want to pursue such benefits. As 

a result of this effort, we made over 1,250 impairment-rating payments in fiscal 

year 2007—a six-fold increase from fiscal year 2006. 

AVOIDING ‘‘EXTINGUISHED CLAIMS’’ 

Because many of our claimants are elderly and very ill, we try to see to it that 

eligible claimants who are near death receive their benefits. However, when a claimant dies before a decision is made or before receipt of benefits, DOL will work with 

the survivors to reapply and to speed that process. While the death of even a single 

eligible employee or survivor prior to payment is extremely unfortunate, our records 

show that this rarely occurs. Of the more than 20,000 Part B cases and 14,000 Part 

E cases that have an initial decision awarding benefits, only 64 cases involved eligible workers or survivors who died before payment and the benefits were ‘‘extinguished’’ (that is, no other member of the family was eligible). In 35 of the 64 cases, 

the family received Part B payments, but could not receive Part E benefits, primarily because the definition of ‘‘survivor’’ in the Part E statute is narrower than 

that specified in Part B. For the remaining 29 cases, no payments were made under 

either Part B or Part E of the Act. We regret that any family suffers in this way, 

and our staff continues to work as diligently as possible to prevent this unfortunate 

scenario from occurring. 

ROUNDTABLES ON TOXIC EXPOSURES

DOL also understands the difficulties claimants have in locating exposure records 

that are necessary to substantiate their claims. DOL has sent teams to DOE facilities to work jointly with DOE to collect records that describe the types of toxic materials present at DOE work sites and how these materials were used. Since 2006, 

DOL has conducted 86 roundtable meetings nationwide, meeting face-to-face with 

918 workers from 48 DOE sites. The roundtable meetings have allowed DOL to 

identify toxic materials present at DOE sites, learn how the toxic materials were 

used, investigate how workers may have been protected from those substances, and 

find out whether there were any toxic material incidents. During these meetings, 

workers were encouraged to provide documents that might shed light on the use of 

toxic substances at the site or to provide information they may have regarding 

where such documents may be found. These efforts have proven invaluable and have 

resulted in over 100 toxic substances being identified and verified at DOE sites that 

may not have otherwise been found. DOL also has interviewed former workers of 

Radiation Exposure Compensation Act (RECA)-covered facilities in the uranium 

mining and milling industry. 

12 

DISTRICT MEDICAL CONSULTANTS (DMCS)

DOL also contracted with more than 200 physicians throughout the country to assess medical evidence used in issuing decisions related to causation and impairment. The DMCs work with DOL to review particularly difficult claims and assist 

in cases where claimants do not otherwise have access to a physician who can provide an impairment evaluation utilizing the AMA Guides. 

SITE EXPOSURE MATRICES (SEM) DATABASE

Another way that we help claimants in assembling their evidence is through the 

Site Exposures Matrices (SEM) database. In fact, for the great majority of claimants, the SEM relieves some of the burden of providing information and records regarding workplace exposures. After years of work with DOE, we developed the SEM 

in 2006 to be a repository of information on toxic substances present at covered facilities. This information can be accessed by our claims examiners and by claimants 

(via DOL’s public Web site). While inclusion in the SEM is sufficient evidence of the 

presence of specific toxic substances, our claims staff makes additional efforts if 

claimants allege exposure to substances not found in SEM. The SEM database now 

houses information on 2,581 toxic substances/chemicals at 33 DOE sites, as well as 

4,170 uranium mines, 48 uranium mills, and 17 uranium ore-buying stations covered under RECA and EEOICPA. 

EXTENSIVE DOL EEOICPA WEB SITE

This year, DOL updated and improved its EEOICPA Web site. The Web site allows claimants to access claim forms and to complete and file claims electronically. 

The Web site also provides searchable access to the program’s regulations, procedures, and instructive final decisions; a link to the list of covered facilities; the program’s current statistics, including claims status and payments made at every 

EEOICPA site; links to NIOSH, DOE and the Department of Justice (DOJ); a page 

for medical providers; and information on the medical billing process. The public 

also may access an online version of our SEM database and may submit information 

relative to worksite toxic substances. This effort has resulted in several hundred 

substances being identified and added to the SEM. 

ACCESS TO DOL DISTRICT OFFICES AND FINAL ADJUDICATION BRANCH

Each of our four district offices and the Final Adjudication Branch have toll-free 

telephone lines and provide prompt response to thousands of inquiries each year. 

The quality and promptness of staff responses to telephone calls and letters is monitored at the office and individual employee level, and improving the accuracy and 

timeliness of responses will receive increased focus in fiscal year 2008. 

TOWN HALL MEETINGS

DOL remains dedicated to reaching out to the public to increase awareness of the 

EEOICPA and to alleviating the burden on the claimants by assisting them at all 

stages of the adjudication process. Since the beginning of the program, our Traveling Resource Centers have provided program information and claims assistance to 

people who live outside the immediate areas of our district offices and RCs. DOL 

also held numerous, well-publicized Town Hall Meetings in various locations 

throughout the country where there was a significant population of individuals currently or formerly employed at covered facilities. DOE, DOJ, and NIOSH have participated in these meetings, providing information and answering questions about 

their responsibilities under the statute. DOL has continued these meetings as new 

regulations and procedures are developed. We also have held Focus Group meetings 

with claimants, as we have realized that claimants’ questions about medical benefits 

and Part E benefits have demanded more personal attention. 

In 2007, Town Hall and Focus Group Meetings were held (or will soon be held) 

in Oak Ridge, Tennessee; Kennewick, Washington; Albuquerque and Santa Fe, New 

Mexico; and North Augusta, South Carolina. These meetings give DOL officials the 

opportunity to meet with claimants who were identified as having a positive causation determination, to explain additional wage loss and impairment benefits available to them under Part E, as well as to obtain feedback on the claims process. The 

focus groups give claimants an opportunity to discuss the difficulties they have encountered with the medical bill payment process. As a result of the feedback we 

have received, DOL is increasing our outreach efforts to medical providers and is 

taking steps to simplify the medical provider enrollment process. DOL has also developed an action plan to make our processes more claimant-friendly. 

13 

OUTREACH TO RECA CLAIMANTS (URANIUM MINERS, MILLERS AND TRANSPORTERS)

DOL has also strengthened its outreach to RECA claimants. There are three federally funded programs assisting uranium workers potentially eligible for some form 

of Federal compensation: (1) EEOICPA—administered by DOL; (2) the Radiation 

Exposure Screening and Education Program—administered by the Department of 

Health and Human Services (HHS); and (3) RECA—administered by DOJ. These 

agencies are hosting town hall meetings to provide general program information to 

uranium workers regarding EEOICPA benefits and those of the HHS and DOJ programs. Meetings were held on October 2, 2007 in Grand Junction, Colorado, and on 

October 4, 2007 in Moab, Utah. Additional town hall meetings are scheduled for November 14, 2007 in Shiprock, New Mexico, and November 15, 2007 in Grants, New 

Mexico. 

SIGNIFICANT ADMINISTRATIVE CHALLENGES REMAIN FOR EEOICPA

DOL has faced major challenges as the program has matured and changed—with 

the resultant shifts in workload and priorities. Most notably, in 2004, after nearing 

steady state in our handling of Part B claims, we were tasked with the new Part 

E program. During fiscal year 2005–2007 we devoted the lion’s share of our attention to implementing Part E, which involved our management of 25,000 aged cases 

from the DOE’s old Part D operation. Unfortunately, most of the old Part D (now 

Part E) cases were already 4 years old when we received them. Part of our representation to Congress at that time was that these individuals would not have to ‘‘go 

back to the end of the line,’’ and we have worked hard to keep that commitment. 

I will address our actions to fulfill that promise in greater detail later on, but as 

of September 30, 2007, all cases that we had inherited from DOE have received at 

least an initial determination. 

In addition, to ensure that Part E claimants receive all benefits due, we focused 

on identifying and paying valid impairment rating cases during fiscal year 2007. 

These initiatives were successful, but as a result of our necessary focus on older 

cases, the speed with which DOL could address newer claims, both Part B and Part 

E, was diminished. 

Similar impacts have been, and will continue to be, felt by DOL as a result of 

program changes emanating from NIOSH. These include the creation of new Special 

Exposure Cohort (SEC) classes and NIOSH changes to its dose reconstruction procedures—activities that consume the time of both DOL and NIOSH to identify cases 

that need to be either withdrawn from or returned to NIOSH for a new dose reconstruction. These issues are described in greater detail below. The addition of new 

SEC classes (24 classes to date) has required analysis and dialogue to fully understand this evolution and its potential impact on the program. 

NEW SEC DESIGNATIONS

In the early years of the program, it was believed that few, if any, additions to 

the SEC would be made, and that any new classes would be narrowly drawn. 

NIOSH was confident that they could do a dose reconstruction for almost any case. 

As the program matured, NIOSH found that many types of data were missing or 

could not be relied upon for dose reconstructions—giving rise to the addition of new 

SEC classes. As HHS determines and introduces new SEC classes into the claims 

process, DOL’s role is to adjudicate claims based on the definitions of these classes, 

explain the effect of HHS’s SEC decisions to stakeholders, and ultimately, assist 

DOJ in defending compensation decisions in Federal district court. 

For each new class, DOL, in consultation with NIOSH, advises its claims staff on 

how to interpret the class definition, and how to identify which cases are covered 

by the class (and thus need immediate processing under presumptive rules) and 

which are not. When an HHS SEC designation contained an imprecise class definition such as the first Y–12 designation—DOL staff encountered greater problems in 

adjudicating the coverage of the class, and those cases took longer to decide. DOL 

now works with NIOSH to ensure that the class definitions are precise and can be 

properly interpreted by DOL staff. This has resulted in increased timeliness. 

Under the statute, the designation of a class as an SEC means that members of 

the class who suffer from one of the cancers listed in the statute are presumptively 

entitled to Part B benefits. Since each new SEC class designation is unique in its 

rationale and in its impact on how (or if ) dose reconstruction can be done for those 

cancers that do not have presumptive entitlement, DOL and NIOSH have had to 

coordinate unique procedures for each class. For example, if a worker from an SECcovered facility has a non-presumptive illness, typically NIOSH will only be able to 

conduct a ‘‘partial dose reconstruction’’ because some data has been found to be 

14 

missing or unusable. If the outcome is negative for the worker, DOL staff must then 

explain to the claimant why the SEC designation had this negative impact on him 

or her. 

When a new SEC class is designated, DOL takes steps to ensure that workers’ 

claims are reviewed timely for potential inclusion in the SEC and rapid payment 

for those who are covered. However, the complexity of this process and the slow unfolding of new SEC classes have reduced the overall speed and efficiency of the 

claims process, and often leaves claimants and other stakeholders confused while 

waiting for a determination. For example, an SEC class was declared for a small 

subset of buildings within the Los Alamos National Laboratory in December 2006, 

only to be subsumed in a larger SEC class declared 6 months later. Similarly, before 

NIOSH determined that an SEC class was required for the Hanford site for the 

World War II era, it had already completed 328 of 378 relevant dose reconstructions 

(86 percent of cases involving the years in the SEC). 

THE DOSE RECONSTRUCTION PROCESS

The dose reconstruction process is complex, confusing to the public, and timeconsuming. Our records show that, on average, cases requiring dose reconstruction 

have taken over 2 years and 10 months to reach a final decision. Of that time, the 

case remains with NIOSH for an average of over 2 years. I should note that during 

the past year, NIOSH’s time to produce dose reconstructions has been reduced significantly. In these cases, DOL must wait for NIOSH to perform the dose reconstruction and return the results to DOL before we can adjudicate the claim. Since 

the inception of the programs, our statistics on cases where no dose reconstruction 

is required from NIOSH indicates that it takes DOL an average of 6 months to issue 

a recommended decision, and an additional 73 days to issue a final decision. Unfortunately, in fiscal year 2007, the DOL-only average for Part B recommended decisions rose by about 60 days as we focused on eliminating the old Part D backlog 

that we inherited from DOE. We will continue to work to reduce the average time 

it takes to complete our processes, and expect this measure to improve over time. 

For SEC claims that had to be withdrawn from NIOSH, our records show that these 

SEC claims have taken an average of 1,278 days to reach a final decision. Of that 

time, the case remained with NIOSH for an average of 905 days. The following 

chart demonstrates these comparisons. 

DOL’s claims process requires that a claims examiner, after receiving a dose reconstruction report from NIOSH, review the report for accuracy and consistency 


38648-1.eps
15 

prior to issuing a recommended decision on a case. Therefore, claims examiners will 

check for anomalies in the reports which require further analysis. For example, if 

a dose reconstruction was conducted based on a different cancer than the one used 

by NIOSH in its initial dose reconstruction, or additional evidence was received following or during a dose reconstruction that reveals additional employment evidence 

and/or medical evidence, a claims examiner will initiate a rework of the dose reconstruction. In all instances, if the information may change the outcome of the dose 

reconstruction or can affect the accuracy of the case, DOL will request a rework. 

As of March 31, 2007, Labor had returned 2,811 cases to NIOSH for rework. 

Many of these cases were returned to NIOSH as a result of new evidence. The vast 

majority (87 percent) of the cases returned for rework did not previously meet the 

statutory minimum of having at least a 50 percent probability of causation (POC) 

based on NIOSH’s initial dose reconstruction, and thus the affected claimants would 

likely not have received compensation. After the rework, 385 of the denials/negative 

cases were switched to approvals; and 41 of the positive cases were switched to denials. While reworks often lead to favorable decisions for some claimants, they represent another workload factor. 

Recently, the pace at which cases must be returned to NIOSH for rework of the 

dose reconstruction has substantially increased because of the modifications NIOSH 

has made to its scientific procedures for performing a dose reconstruction. Neither 

NIOSH nor DOL want to add further unnecessary paperwork and heartache for 

claimants who were previously told they were ineligible—only to have that bad news 

repeated as a result of the rework. However, if it is possible that the change may 

alter the dose reconstruction so that a previous denial may be overturned, DOL and 

NIOSH have agreed that these claimants should receive a new dose reconstruction 

report so their due process rights are protected. If NIOSH cannot determine the potential impact of the change in its procedure, we refer the case to NIOSH for a determination if a new dose reconstruction is necessary. To date, we are in the process 

of returning over 4,400 cases to NIOSH for new dose reconstructions based on 

NIOSH’s identification of cases that may be affected by the new procedures, and we 

are referring about 5,000 additional cases to NIOSH for case-specific determinations 

on the need for a new dose reconstruction. 

We work as closely as possible with NIOSH on all of these issues, conferring at 

the staff level on at least a weekly basis to streamline the handling of the SEC class 

and dose reconstruction issues. However, as indicated by the sheer numbers of cases 

requiring return, rework, SEC consideration, partial dose reconstructions, or notification of NIOSH evaluation of a possible rework—these changes have created a substantial and growing burden on DOL’s adjudication process and decisional timelines. 

PROGRAM ACCOMPLISHMENTS

Despite these challenges, DOL has made great progress since 2001 in implementing Part B of the Act—and similar progress since October 2004 in implementing Part E. We have set ambitious performance targets—and consistently exceeded those targets—to ensure that workers and their families, who have waited 

so long for compensation, receive prompt and accurate decisions. An analysis of the 

overall program statistics shows that the Energy Compensation program is moving 

forward, despite its complexity and ongoing change. We continually seek new ways 

to improve and streamline our compensation system and embrace the valuable input 

of the workers and families we serve. 

It has been 6 years since Secretary of Labor Elaine L. Chao issued the first 

EEOICPA benefit check on August 9, 2001. Since then, DOL has paid nearly $3.2 

billion in total EEOICPA compensation and medical benefits to workers and their 

survivors. Under Part B, DOL has issued more than 27,000 payments with compensation totaling nearly $2.2 billion. Under Part E, DOL has made nearly 7,400 

payments with compensation totaling nearly $850 million. 

Despite these significant accomplishments, some suggest that DOL has denied a 

high percentage of claims for budget reasons and is antagonistic toward claimants. 

No such animus exists, and I believe that impression rests in part on a misunderstanding of the statute’s requirements. While anyone can file a claim, many applications have been filed that do not meet the statute’s basic requirements for eligibility. 

This is especially true for those who filed Part B claims early in the program, as 

many of these individuals did not have one of the three medical conditions required 

for Part B eligibility. Similarly, many ‘‘adult children’’ of deceased workers filed Part 

D (later Part E) claims who did not meet the narrower survivor definition that Congress created for Part E. 

If we set aside those applications that do not meet the statutory minimum requirements, our records show that over half of the remaining claims have been apVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
16 

proved under both Parts B and E. Specifically, since 2001, DOL has received over 

59,000 Part B cases and has issued final decisions on 83 percent of them. Almost 

20,000 have been approved for payment (55 percent when non-covered applications 

are set aside), with nearly $2.2 billion in compensation so far. 

After Part E’s enactment in 2004, DOE transferred over 25,000 aged Part D cases 

to DOL. In response to this new workload, DOL identified certain quick decision 

claims that met specific, straightforward criteria contained in the amendment. 

Within 2 months of Part E’s enactment, DOL was paying claimants under the newly 

established Part E. Further, DOL is especially proud of its success in addressing the 

backlog of aged DOE cases. DOL has focused on doing everything it can to speed 

the processing of these cases, which clearly deserved to be prioritized, given the long 

wait these claimants have endured. For fiscal year 2007 we set and met a goal to 

issue at least an initial determination for all 25,000 cases inherited from DOE. Additionally, DOL has paid nearly $500 million in Part E benefits to this group of 

claimants. 

Our total Part E workload of 48,925 claims includes more than 23,000 new Part 

E claims. Notably, more than 8,000 (17 percent) Part E claims were ‘‘non-covered,’’ 

mostly from ‘‘adult children’’ who did not meet the basic requirements for eligibility. 

To date, DOL has issued at least one final decision on over 70 percent of the (old 

and new) Part E cases. When non-covered claims are set aside, our approval rate 

on covered Part E cases is over 51 percent. To date, DOL has approved about 13,500 

Part E cases, with payments totaling nearly $850 million. 

SUMMARY

The record of DOL’s administration of EEOICPA demonstrates that our Nation’s 

promises made to our cold war veterans are being kept. Over 34,000 eligible workers 

and their survivors have received more than $3.2 billion in benefits and medical reimbursements; we have eliminated the Part D backlog; and litigation remains remarkably low. 

DOL continues to strengthen its processes and procedures, maintain its outreach 

efforts, improve its service to claimants, and adjudicate and pay eligible claims as 

promptly and accurately as possible. We have continually re-evaluated the program’s performance goals and strategies, and we remain proactive in addressing the 

many program changes that have challenged our operation. I am proud of the efforts 

of our staff in carrying out the important mission of this program. 

I will be glad to answer any questions the committee may have. 

Senator BINGAMAN. Thank you very much. As I indicated, Senator Reid wanted to make a statement on this issue, and why don’t 

we go ahead and hear from him, because I’m sure he has other 

commitments this morning. 

So, Senator Reid, go right ahead? 

STATEMENT OF SENATOR REID

Senator REID. Mr. Chairman, thank you very much, I appreciate 

the attendance of the other members. 

This hearing is very important, dealing with securing compensation for sick atomic weapons workers. I’ve been working on this for 

a long period of time. 

Our country has made progress over the past decade, but the 

Employees Compensation Program is still finding thousands of cold 

war veterans who now have cancer and other illnesses. The meetings I hold with these folks in Nevada is really sad—a room full 

of people who are very, very sick. 

The program needs some help, and this hearing is a step in the 

right direction. Eight years ago, I joined with my colleagues to pass 

bipartisan legislation to recognize the sacrifices made by these 

weapons workers. We passed the Energy Employees Occupational 

Illness Compensation Program Act to provide workers and their 

survivors with compensation medical reimbursement. 

17 

But sadly, years after this program was created, many Nevadans 

with cancer, caused by their service working on atomic weapons 

programs, still are concerned about the lack of care, lack of attention. They tell me their sacrifices are being ignored, and I hope this 

committee, as I know it will, begin to find some solutions for them 

today. 

Mr. Chairman, the workforce of the State of Nevada, at the Nevada test site was huge, at least by Nevada standards, we had over 

11,000 workers there for many years. It’s, of course, dropped significantly. 

Of the nearly 117,500 covered applications, 35,000 have received 

compensation nationally. The situation is worse for atomic weapons 

workers in Nevada. Fewer than 20 percent of Nevada test site 

workers with qualifying illnesses have received compensation. 

This program has the right intentions, but it is failing thousands 

of Americans who helped in the cold war. These workers did not 

wear the military uniforms, they weren’t even military, but they’re 

just as responsible as anyone else for winning the cold war. 

When the Energy Employees Occupational Illness Compensation 

Program was crafted, we knew that the Department of Energy did 

not consistently monitor atomic weapons workers for radiation. 

These classified programs were highly secretive, and over the 

years, records were lost or even thrown away. It’s also nearly impossible to estimate radiation exposure from some worker deaths. 

Mr. Chairman, to hear the stories of these workers, they were exposed, they have dust all over them. They were told to not even 

take a shower, continue working. On one occasion I was told about 

a whole dormitory, they learned that the exposure was more than 

it should have been, they were awakened in the middle of the 

night, they were taken outside, they were sprayed with a hose, 

water. 

Information about nuclear testing is held very tightly, and it’s 

difficult, we understand, to verify some of these stories. But there 

are witnesses, it’s not as if a person is coming in, basing it entirely 

on hearsay. I’ve heard these stories time after time, and I would 

invite the committee to either send an investigator out to hear 

some of these stories, or in some way, I’d be happy to work with 

the committee to get some of these stories so we can look at them, 

some of the horrible things that went on. These are people who 

now are very, very sick, and said they were not exposed to these 

real things that make you sick. 

Workers near Ground Zero at the Nevada Test Site, for example, 

would be told not to wear these badges that were supposed to indicate how much exposure to radiation you had, so they could continue working even after they’d already received a full year’s dose 

of radiation. You’re supposed to get so much in a year, someone 

would get it in 3 months, someone would get it in 1 day. And, if 

they wanted to keep working, they didn’t wear their badges anymore. 

The government knew that these workers were exposed to cancer-causing materials. If they didn’t know, they should have 

known. And these men, and a few women, were encouraged—and 

sometimes ordered—to cover up information about the radiation exposure levels. 

18 

We can’t change what’s already happened, but we can right the 

government’s wrongs. We can give these workers and their survivors an easier path toward compensation. This program made 

sure that streamlining the process was an option for special classes, a special class of claimants. Within this program, atomic workers can apply for Special Exposure Cohort status. If they receive 

this designation, workers with qualifying cancers are paid benefits 

without undergoing complicated dose reconstruction. Reconstruction dose is difficult, if not impossible, especially with the limited 

radiation monitoring data and lost records. 

All Nevada test site workers should have this Special Exposure 

Cohort status. There were approximately 1,000 tests held at the 

Nevada test site, the last one, 15 years ago. Men and women who 

served at the test site after 1963 still have to struggle through the 

program’s red tape to be able to be even considered for compensation for their illnesses. Only half of these claimants even received 

a final decision. 

Test site workers helped America win the cold war. Now that we 

finally have a program to recognize their sacrifices, thousands upon 

thousands of sick atomic weapons workers are still being ignored. 

Mr. Chairman, I have been to the test site, I call it, in Hanford, 

Washington where you have these huge tanks of nuclear waste, 

some of it leaking out, hopefully none of it going into the river. 

Workers exposed to this, the test site, they were asked to go back 

into these tunnels and shafts after a bomb had gone off, quickly. 

Had to keep the work going, more tests were coming. 

The government then, they did this because they thought they 

were doing the right thing, and they were told it wouldn’t make 

them sick. The government’s implementation of the rest of the Energy Employees Occupational Illness Compensation Program 

should be drastically improved. The existing adjudication process is 

failing to uphold the statutory mandate that the process be claimant-friendly. 

And Mr. Chairman, I don’t really impugn the hard work of Mr. 

Hallmark, I’m sure he’s doing the best he can. But, I am very troubled with the lack of quality assurance and transparency and the 

Labor Department’s claim adjudication procedures. It’s unacceptable that a government program of this significance has so few 

quality controls in place. We need to restore faith in the claims adjudication process. 

Mr. Chairman, we tried to help World War II veterans. And one 

of the reasons we try to work on some of the programs as quickly 

as we can is they’re dying, and it’s the same with these test site 

workers—they’re dying. A significant obstacle for sick atomic workers is the burden of proof they face to receive compensation. 

Under the Energy Employees Occupational Illness Compensation 

Program, a claimant has the ultimate burden to prove that his or 

her illness was related to radiation or hazardous materials exposure at work. 

This might seem like a standard burden, but remember, it’s the 

government’s responsibility to maintain employment records and 

information about radiation to which the workers were exposed, 

and in many cases there isn’t any. All they have is the word of the 

workers and their colleagues who were there with them. 

19 

And these stories that they tell about being awakened in the 

middle of the night, put outside—they were not even told to wash 

their clothes, they wore the same clothes, day after day. Even 

with—and a lot of it had, now we’ve learned, radiological dust on 

what they were working, and the clothes they were working in. But 

the Labor Department doesn’t have the records for these people to 

prove their case, because some of them didn’t exist. 

Even with our Labor Department’s assistance developing their 

cases, sick claimants ultimately pay the price. If their employment 

and medical records are insufficient to meet the high burden of 

proof or the government lost their records, these workers likely 

won’t receive compensation. 

None of us intended for the program to be this unforgiving to our 

cold war veterans. Workers were placed in harms’ way, yet they’re 

asked to work through a complex process and shoulder a substantial burden in showing that the cancer or other illness was workrelated. The least we can do is find a way to give sick workers a 

better chance of meeting this burden, so the program actually 

works in their favor. 

Recently, Labor Secretary Elaine Chao acknowledged the need to 

improve the processing of compensation claims. She noted that the 

time is running out for many families, and that’s an understatement. It’s simply taking too long to compensate many workers. 

So, Mr. Chairman, members of this committee, I appreciate you 

giving me this opportunity to address the committee. The Energy 

Employees Occupational Illness Compensation Program was developed for a good purpose, but it has the potential to be even more 

helpful to our Nation’s atomic weapons workers. I look forward to 

working with you and our colleagues to improve this program, and 

to secure compensation for these people who really are veterans in 

the true sense of the word. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Senator Reid follows:] 

PREPARED STATEMENT OF SENATOR REID

Thank you Chairman Bingaman for holding this hearing today. 

Securing compensation for sick atomic weapons workers is something that we’ve been working on together for a long time. There 

is no doubt that our country has made progress over the past decade. But, the energy employees compensation program is still failing thousands of our cold war veterans who now have cancer and 

other illnesses. We must fix this program, and I think this hearing 

is a step in the right direction. 

Eight years ago, I joined my colleagues to pass bipartisan legislation to recognize the sacrifices made by atomic weapons workers 

and help them live with terrible diseases caused by exposure to radiation and other hazardous materials. We passed this law, the Energy Employees Occupational Illness Compensation Program Act, 

to provide workers and their survivors with compensation and 

medical reimbursement in some cases. Sadly, 8 years after 

EEOICPA was created, I still hear from many Nevadans who have 

cancer caused by their service on government nuclear weapons programs. They tell me that their sacrifices are still being ignored. I 

am confident we can begin to find some solutions for them today. 

20 

Of nearly 117,500 covered applications—covered applications are 

from applicants whose employment and sicknesses are covered by 

EEOICPA—fewer than 35,000 have received compensation nationally. That is less than 30 percent. The situation is even worse for 

atomic weapons workers in Nevada. Fewer than 20 percent of Nevada Test Site workers with qualifying illnesses have received compensation. Chairman Bingaman, I think this program has the right 

intentions, but it is clearly failing thousands of Americans who 

helped us win the cold war. 

When EEOICPA was crafted, we knew that the Department of 

Energy did not consistently monitor atomic weapons workers for 

exposure to radiation. These classified programs were highly secretive, and over the years records have been lost or even thrown 

away. It is also nearly impossible to estimate radiation exposure 

from some nuclear tests, and monitoring for certain cancer-causing 

radionuclides was simply inadequate. Information about nuclear 

testing is held so tightly, it’s sometimes difficult to verify workers’ 

stories. 

And I’ve heard the same terrible stories time after time. For example, workers near ground zero at the Nevada Test Site would be 

instructed to not wear their dosimeter badges so they could continue working, even after they’ve already received a full year’s dose 

of radiation. Think about that . . . the government knew these 

atomic workers were exposed to cancer-causing materials. And 

these men were encouraged to—sometimes ordered—to cover up information about their radiation exposure levels. 

We cannot change what has already happened, but we can right 

our government’s wrongs. We can give workers and their survivors 

an easier path towards compensation. EEOICPA made sure that 

streamlining the process was an option for special classes of claimants. 

Under this program, atomic workers can apply for Special Exposure Cohort status. If they receive SEC designation, workers with 

qualifying cancers are paid benefits without undergoing complicated dose reconstruction. Reconstructing dose is difficult—especially with limited radiation monitoring data and lost records. And 

we all knew when we passed EEOICPA that there could be tensof-thousands of nuclear weapons workers who fit in this category. 

I strongly believe that all Nevada Test Site workers should have 

SEC status. Nine hundred and twenty-eight nuclear tests took 

place in Nevada—the last one in 1992. Men and women who served 

at the Test Site after 1963 still have to struggle through the program’s red tape to be considered for compensation for their cancers. 

Only half of these claims have even received a final decision. NTS 

workers helped America win the cold war, and now that we finally 

have a program to recognize their sacrifices, thousands of sick 

atomic weapons workers are still being ignored. 

While I think that NTS workers should receive SEC status, I 

also recognize that the government’s implementation of the rest of 

Parts B and E should be drastically improved. One reason we are 

here today is because there are serious concerns that the existing 

adjudication process is failing to uphold the statutory mandate that 

the process be claimant friendly. I am troubled by the lack of quality assurance and transparency of the Labor Department’s claims 

21 

adjudication procedures. It is unacceptable that a government program of this magnitude and significance has so few quality controls 

in place. We need to restore faith in the claims adjudication process. 

A significant obstacle for sick atomic workers is the burden of 

proof they face to receive compensation. Under EEOICPA, a claimant has the ultimate burden to prove that his or her illness was 

‘‘at least as likely as not’’ related to radiation or hazardous materials exposure at work. This might seem like a standard burden; 

but remember, it is the government and its contractors’ responsibility to maintain employment records and information about the 

radiation to which workers were exposed. Even with the Labor Department’s assistance in developing their cases, sick claimants ultimately pay the price—if their employment or medical records are 

insufficient to meet the high burden of proof, or the government 

lost their records, these workers probably will never receive compensation. 

I don’t think any of us intended for EEOICPA to be this unforgiving to our cold war veterans. Workers were placed in harms way 

by the government, yet they are asked to work through a complex 

process and shoulder a substantial burden in showing that their 

cancer or other illnesses were work-related. I think the least we 

can do is find a way to give sick workers a better chance of meeting 

this burden so the program actually works in their favor. 

Recently Labor Secretary Elaine Chao acknowledged the need to 

improve the processing of EEOICPA claims. She noted that ‘‘time 

is running out’’ for many families. It is simply taking too long to 

compensate many workers. 

Chairman Bingaman, again I appreciate you giving me this opportunity to address the committee. I think EEOICPA has a good 

purpose, but it has the potential to be so much more helpful to our 

Nation’s atomic weapons workers. I look forward to working with 

you and our colleagues to improve EEOICPA and to secure compensation for cold war veterans in Nevada and throughout our 

country. 

Senator BINGAMAN. Thank you very much, Senator Reid, and I 

know the importance of this to you and to your constituents, and 

we appreciate your testimony very much. Let me—— 

Senator Reid. I suppose I might also say, some of them are being 

rejected because they didn’t work there long enough. Mr. Chairman, sometimes they were there at the wrong time. They happened 

to be called back in a tunnel too quickly, and many of them had 

been working there a year, or 2 years, but they’re really sick, and 

they’re being turned down, a lot of times, because they didn’t work 

there long enough. So, thank you very much. 

Senator BINGAMAN. Well, thank you, thank you very much, 

again, for your testimony. 

Our next witness is Dr. John Howard, the Director of NIOSH, 

the National Institute for Occupational Safety and Health, why 

don’t you go right ahead, Doctor? 

22 

STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL 

INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, 

WASHINGTON, DC. 

Dr. HOWARD. Thank you, Mr. Chairman, I’m pleased to be here 

representing the Department of Health and Human Services and 

telling you about some of the progress that we’ve made under the 

act. 

As of October 16 of this month, 25,494 claims have been referred 

to us by the Department of Labor, action has been completed by 

us on approximately 80 percent of those claims, leaving 5,127 

claims in active status. 

Twenty-four classes of workers representing 19 facilities have 

been added to the Congressional Special Exposure Cohort, to date. 

Nine of those twenty-four, we have added on our own motion and 

presented them to the Presidential Advisory Board on Radiation 

and Worker Health. 

We always strive to improve the level of service we offer to claimants, and we welcome any criticism and suggestions that anyone 

has to help us improve the process. 

To assist the claimants and petitioners in navigating the process, 

which is complex, we have made available two claimant 

ombudspersons, including Ms. Denise Brock, who is a former petitioner, who successfully petitioned us for the addition of a class at 

the Mallinckrodt Plant in St. Louis. 

We continue to proactively conduct worker outreach, to obtain 

input on program technical and procedural approaches, we sponsor 

77 outreach meetings, five town hall meetings, four public meetings. We’ve held five workshops to explain the dose reconstruction 

process, and six SEC worker outreach meetings to collect specific 

information about a particular SEC evaluation report. 

In all of our interactions with claimants we strive to, not only listen, but to hear, to consider, and to act on the information that 

they provide us in the dose reconstruction process. To enhance our 

external communication with claimants, we’ve revised the packet 

that we send to claimants, including a video. We prepare all of 

these materials, in preparing these materials, we’ve sought input 

from the Board, from the claimant ombudspersons, and from claimants. We’re committed to resolving informational and scientific uncertainties, because we do rely on science as our first evaluation in 

the dose reconstruction process. 

But we try to resolve all of our uncertainties consistent with the 

act, with the Executive Order and with the regulations developed 

through public rulemaking. We believe that our dose reconstructions are grounded in the best available science, but when there is 

uncertainty, we use claimant-favorable assumptions to complete 

the dose reconstruction. These assumptions and methods have led 

to a compensability rate by the Department of Labor of 30 percent, 

which compares to an initial expectation in this program of about 

10 percent, which relates to attributable risk of radiation in population-generated cancer in our society. 

Claimant favorability is built into the act in many, many ways. 

When determining the probability that a claimant’s work exposures 

to radiation caused their cancer, the act mandates that the inherent uncertainty in calculating such a probability will be higher 

23 

than the actual value, or the true value, which none of us can really know, 99 times out of 100. We rely on a series of other claimantfavorable assumptions, when science provides no answer at all— 

when data is missing when we have incomplete information. 

The Special Exposure Cohort process also has many steps to ensure the decisions are as scientifically sound as they can be. 

They’re reviewed by the Advisory Board, which analyzes the petition report that we give them, they obtain information from petitions also, they spend many hours assessing whether the information on exposure is adequate or inadequate to estimate the radiation dose with sufficient accuracy. The Board is involved in all aspects of the HHS program, and has met 50 times since it was first 

chartered. 

HHS is dedicated to transparency in all aspects of the program, 

we welcome anyone’s interest in expanding that transparency, and 

letting us know that we can do a better job. 

For instance, we recently went beyond the requirements of the 

Federal Advisory Committee Act by providing verbatim transcripts 

and detailed minutes of all Advisory Board meetings, including 

those of the working groups, and making them available to the 

public on our Web site, we’re striving to post those minutes within 

30 days of occurrence of the meeting. 

So, in conclusion, we’ve made a great deal of progress in carrying 

out our responsibilities under the act, but we continue to strive to 

serve claimants better, and we are very open to hearing any suggestions about how we can do a better job. 

Thank you. 

[The prepared statement of Dr. Howard follows:] 

PREPARED STATEMENT OF JOHN HOWARD, M.D. 

Chairman Kennedy and members of the committee, my name is John Howard, 

and I am the director of the National Institute for Occupational Safety and Health 

(NIOSH), part of the Centers for Disease Control and Prevention (CDC) within the 

Department of Health and Human Services (HHS). I am pleased to appear before 

you today to update you on the progress HHS has made under the Energy Employees Occupational Illness Compensation Program Act of 2000 (‘‘EEOICPA’’ or ‘‘the 

act’’) (Pub. L. No. 106–398). I will describe several of our initiatives to provide better 

service, and I assure you that we are committed to continuing to improve the program to better serve former workers and their survivors and honor their service to 

our country. 

The role of HHS in the program focuses on the science of conducting dose reconstructions, including the related issue of considering and deciding upon petitions 

from classes of employees wishing to be added to the Special Exposure Cohort 

(SEC), and providing support for the Advisory Board on Radiation and Worker 

Health (Advisory Board). The Department of Labor (DOL) has the lead responsibility in the program for administering EEOICPA, including carrying out activities 

such as processing and paying claims. 

PROGRESS TO DATE

I would like to start by describing the progress and accomplishments NIOSH has 

made in implementing EEOICPA, followed by highlighting NIOSH initiatives to provide the best possible service to claimants. 

At a meeting of the Advisory Board 3 weeks ago, DOL reported that the program 

has paid more than $869 million to claimants, based on either a completed dose reconstruction, which DOL determined was compensable, or by membership in a nonstatutory, HHS-designated SEC class. 

Dose Reconstructions 

As of October 16, 2007, DOL has referred 25,492 claims to NIOSH, and NIOSH 

has returned 17,280 of these claims to DOL with a completed dose reconstruction. 

24 

Of the remaining claims, NIOSH has returned to DOL 1,466 claims for a determination of SEC eligibility; DOL has ‘‘pulled,’’ or taken back, 648 claims for various reasons; and there are 971 claims with completed dose reconstruction reports, which 

are currently being reviewed by claimants. This leaves approximately 20 percent of 

the claims at NIOSH in an active status. 

Our efforts have been and are focused on completing the oldest claims in our system. As a result, of the first 5,000 claims that NIOSH received from DOL, we have 

completed or sent to DOL for adjudication 98.7 percent of those claims (compared 

with about 80 percent for the program overall). Of the remaining 64 claims for 

which we have not completed a dose reconstruction, 20 claimants worked at a facility for which NIOSH recommended adding an SEC class. NIOSH considers completion of the oldest claims in the system to be a top priority so claimants can have 

their cases resolved. 

Special Exposure Cohort 

Through NIOSH’s efforts, 24 classes of workers, representing 19 facilities, have 

been added to the SEC to date. NIOSH has initiated almost 40 percent (9) of the 

24 classes that have been added, based on the authority under our rules (42 CFR 

Part 83) to initiate petitions when NIOSH determines that we lack data to estimate 

radiation doses with sufficient accuracy. 

SERVICE TO CLAIMANTS AND PETITIONERS

NIOSH constantly strives to improve the level of service we offer to claimants. 

I will tell you about the most recent steps we have taken. We have made available 

two staff members to help claimants and petitioners navigate this complex program. 

We continue to reach out to former workers to seek their input and incorporate it 

into our scientific and technical work products. We also have developed new communications materials to promote claimants’ understanding of the program. 

Claimant Resources 

NIOSH has created two new staff positions to aid petitioners with the petitionerinitiated SEC process. These are the SEC Petition Counselor and the NIOSH Petitioner/Claimant Ombudsman, both of whom have toll-free telephone numbers and 

other contact information posted on the NIOSH Web site. The SEC Petition Counselor, Ms. Laurie Breyer, helps petitioners through the submission, development, 

qualification, evaluation, and Advisory Board deliberation processes of SEC petitions. Petitioners may also seek assistance from the NIOSH Petitioner/Claimant 

Ombudsman, Ms. Denise Brock, a former petitioner whose efforts led to the addition 

of a class of employees at Mallinckrodt Chemical Works in Missouri. In addition to 

responding to phone calls and e-mails, the SEC Petition Counselor and the Petitioner/Claimant Ombudsman have jointly held two SEC outreach meetings (one in 

Idaho Falls, Idaho, and one in Calabasas, California) and are in the process of arranging a third meeting in Augusta, Georgia, in November. The purpose of these 

meetings is to increase claimant and public understanding of the SEC process. Ms. 

Breyer and Ms. Brock have also attended, by invitation, meetings held by potential 

petitioners and/or union groups to explain the SEC process. These meetings took 

place in New Mexico, Washington, DC., New York, and Pennsylvania. 

Worker Outreach 

NIOSH continues to proactively conduct worker outreach. In an effort to obtain 

input on program technical and procedural approaches, NIOSH has sponsored 77 

worker outreach meetings, five town hall meetings, and four public meetings. 

NIOSH has held five dose reconstruction workshops to explain the dose reconstruction process to workers, union officials, and claimant advocates. NIOSH also has 

held six SEC worker outreach meetings to collect information specific to preparation 

of a NIOSH SEC evaluation report. 

Improved Communications Products 

To enhance external communication, NIOSH has revised the acknowledgement 

packet sent to each claimant once NIOSH receives his or her claim from DOL. The 

new acknowledgment packet provides a more descriptive explanation of the dose reconstruction process and the steps that a claim will go through in that process. We 

have developed, distributed, and made available on our Web site the following new 

materials: 

• probability of causation fact sheet, 

• SEC fact sheet, 

• residual contamination fact sheet, 

• technical documents used in dose reconstruction fact sheet, 

25 

• dose reconstruction fact sheet, 

• overview of the dose reconstruction process, 

• detailed steps in the dose reconstruction process, 

• glossary of terms, and 

• answers to frequently asked questions. 

We have also created a video explaining the dose reconstruction process; the video 

may be viewed on our Web site and is also available at Advisory Board meetings 

and by request in CD, DVD, and VHS formats. In preparing all of these materials, 

NIOSH sought input from the workers, the Advisory Board, and the NIOSH Petitioner/Claimant Ombudsman to make the information as clear as possible. NIOSH 

has also implemented and maintains an external mailing list so that interested individuals will receive automatic e-mail updates when new information is added to the 

NIOSH Web site. 

In addition to these outreach initiatives and the development of new communication information, NIOSH responds to numerous letters, telephone calls, and e-mails 

from claimants, the public, and Congress. NIOSH has received and responded to 

over 9,000 e-mails to our general program inbox, and NIOSH and our technical support contractors have received and responded to over 300,000 telephone calls since 

the inception of the program. NIOSH has responded to over 4,000 congressional requests for information, provided over 100 congressional briefings, and hosted a congressional delegation visit to our Cincinnati office where NIOSH’s EEOICPA work 

is performed. 

ADDRESSING UNCERTAINTY

NIOSH is committed to resolving uncertainties in all aspects of NIOSH’s work in 

the program in a manner consistent with the act, the Executive Order, and the rules 

developed through public rulemaking. Based on the act’s direction that the purpose 

of the program is to provide ‘‘timely, uniform, and adequate compensation’’ and the 

statement in Executive Order 13179, which allocates responsibilities among agencies under the act, that compensation should be ‘‘compassionate, fair, and timely,’’ 

the HHS procedures for dose reconstruction (contained in 42 CFR Part 82) address 

the need for efficient processes to better serve claimants. The Preamble of the dose 

reconstruction procedures, which were promulgated through public rulemaking procedures and took into consideration comments from the public and the Board, ‘‘give 

the benefit of the doubt to claimants in cases of scientific or factual uncertainty or 

unknowns.’’ The SEC rule (42 CFR Part 83) reiterates that the act intends for the 

program to provide ‘‘timely compensation’’ and ‘‘uniform, fair, scientific consideration.’’ I will now briefly discuss several examples of methods that NIOSH has incorporated to give the benefit of the doubt to claimants to account for uncertainty 

in dose reconstructions, probability of causation (POC), and the SEC process. 

Dose Reconstruction 

Dose reconstructions are grounded in the best available science and when there 

is uncertainty NIOSH may use the following claimant-favorable assumptions, when 

appropriate, to complete the dose reconstruction: 

• use of factors that would yield the highest estimated dose when there are equally plausible scenarios; for example, assuming that a worker is directly next to the 

exposure source instead of a further distance away; 

• application of missed internal and external dose to compensate for the limits 

of the monitoring programs at the time; 

• assignment of neutron doses to workers with little evidence of neutron exposures to compensate for the technical limitations of monitoring of neutrons at the 

time; 

• assumption of certain external doses as acute or chronic to maximize dose; for 

example, there are instances in which an assumption of an acute exposure of a certain dose may yield a higher estimated dose than an assumption of a chronic exposure, and vice versa; 

• assumption of external dose even if it is not clear that there was an appreciable 

potential for exposure; and 

• use of maximum ambient doses for workers in administrative areas; for example, even though workers in administrative areas may not have been exposed to 

doses in the work environment, NIOSH nevertheless includes the work environment 

exposure. 

Such assumptions and methods, following the dose reconstruction procedures established through public rulemaking, have led to a compensability rate by DOL of 

slightly more than 30 percent. 

26 

Probability of Causation 

The act mandates that all POCs must be established at the 99th percentile confidence interval. The use of the 99th percentile confidence level is the most significantly claimant-favorable aspect of the program. NIOSH built upon this foundation 

in establishing the POC guidelines (42 CFR Part 81) for DOL. DOL uses these POC 

guidelines, along with dose reconstruction information provided by NIOSH, to determine the POC for a given claim. Using the 99th percentile confidence interval, as 

opposed to the median or average POC value, means it is unlikely that an individual could have developed cancer covered by the program and not be compensated. 

In creating the guidelines, HHS provided DOL with procedures to follow when 

there is uncertainty. For example, when DOL is unable to identify the primary cancer, and only secondary cancers are identified, the NIOSH-authored POC guidelines 

require DOL to use as the primary cancer the cancer that will yield the highest 

POC in making the compensation decision. Another example is when multiple cancer risk models may apply, the POC guidelines require DOL to apply the model that 

will result in the highest POC. 

Special Exposure Cohort 

The SEC process likewise has many provisions to assist petitioners. NIOSH offers 

assistance to petitioners in preparing submissions and throughout the SEC process. 

As previously indicated, two full-time staff are dedicated to assisting petitioners in 

the SEC process. Further, if information that is needed to evaluate a petition will 

not be available in a timely manner, the SEC rule allows NIOSH to determine that 

such information is not available for purposes of the evaluation, allowing the petition to move forward. SEC petitions also receive careful review by the Advisory 

Board, which analyzes the NIOSH petition evaluation report, obtains input from petitioners, and spends numerous hours assessing whether information is adequate to 

estimate radiation dose with sufficient accuracy. In the SEC rule, NIOSH provided 

petitioners with two opportunities for administrative review of non-favorable decision. Finally, as mentioned earlier in the testimony, NIOSH may initiate an SEC 

petition if NIOSH determines that there is a lack of data to estimate radiation doses 

with sufficient accuracy, placing less burden on affected claimants. 

OVERSIGHT OF NIOSH’S APPLICATION OF THE SCIENCE

The Advisory Board, which advises HHS on the science underlying our implementation of EEOICPA, provides an important source of outside review that helps inform our work. The Advisory Board focuses on the scientific detail that is necessary 

to oversee such a program, and it makes use of rigorous peer review to accomplish 

its work. The Advisory Board is very involved in all aspects of HHS program activities. The full Board has met a total of 50 times, either in person or by teleconference. The subcommittees have met 20 times, and the Advisory Board’s working 

groups (of which there are more than a dozen), which focus on technical scientific 

issues, have met a total of 48 times. HHS provides administrative services, funds, 

facilities, staff, and other necessary services to support the Advisory Board’s work. 

CDC has obtained a technical support contractor, Sanford Cohen & Associates 

(SC&A), to assist the Advisory Board in reviewing NIOSH’s dose reconstruction estimates, site profile documents, and SEC petition evaluations. 

Since NIOSH is dedicated to transparency in all aspects of the program, all Advisory Board meetings, including working group meetings, are publicly announced in 

the Federal Register and open to the public, except where closure is required. We 

go beyond the requirements of the Federal Advisory Committee Act (5 U.S.C. App. 

2) by providing verbatim transcripts and detailed minutes of all Advisory Board 

meetings, including those of working groups, and making them available to the public on our Web site. 

SUMMARY

In conclusion, NIOSH has made a great deal of progress in carrying out the responsibilities of HHS under EEOICPA. We will continue to strive to serve claimants 

better by communicating with them more effectively and processing their claims 

more quickly. 

Thank you again for the opportunity to testify today. I am happy to answer any 

questions you may have. 

Senator BINGAMAN. Thank you very much. 

Mr. Nelson, we’re glad to have you here. Go right ahead. 

27 

STATEMENT OF MALCOLM D. NELSON, OMBUDSMAN, ENERGY 

EMPLOYEE COMPENSATION PROGRAM, DEPARTMENT OF 

LABOR, WASHINGTON, DC. 

Mr. NELSON. Thank you, Mr. Chairman, and members of the 

committee. Before I begin, I’d like to acknowledge that Secretary 

Chao has extended the term of the Office of the Ombudsman until 

legislation is passed. 

I also want to personally thank Secretary Chao for extending to 

me, the privilege of continuing to serve as ombudsman. So, thank 

you, Secretary Chao. 

Since my appointment as ombudsman I have attended four town 

hall meetings, and my office has received hundreds of telephone 

calls, e-mails and letters from claimants and potential claimants. 

Based on these contacts, and in response to the question asking 

whether this program is claimant-friendly, I can say that a majority of the people with whom my office has spoken are of the opinion 

that this program is not living up to its promise of being claimantfriendly. 

Time will not allow me to address all of the complaints and 

grievances that my office receives, however, let me take a few minutes to summarize some of these issues. 

One of the biggest concerns involves the length of time that it 

takes to process a claim. Many claimants are of advanced age. 

Many suffer from debilitating illnesses. We continuously hear from 

claimants who tell us that if they are made to wait too long, they 

feel that they will not be around to enjoy their benefits. 

Further compounding this anxiety, is the realization that under 

Part E, if they pass away before benefits are paid, in most instances their adult children will not be eligible to receive their benefits. 

Trying to establish work at a covered facility and the extent of 

exposure to toxins are a source of many complaints. The Department does offer assistance in locating these records. However, 

where records have been lost or destroyed, many claimants believe 

that this assistance is not sufficient. Where such records cannot be 

located, a refrain we often here is, if the government can not find 

these records, how can anyone expect us to find them? 

On the other hand, where records are located, claimants often 

question their accuracy. Moreover, many claimants are confident 

that their employers manipulated or destroyed records. 

The burden of establishing that one’s illness was caused by exposure to toxins at work, is also a source of many complaints. Many 

claimants report that they are unable to find a doctor who will assist them. Where the claimant does retain a doctor, many nevertheless become frustrated when their evidence is deemed insufficient 

to satisfy their burden of proof. 

Claimants also tell us that it is extremely frustrating to establish 

causation, where their illness has been identified by Bulletin 6–10 

as ‘‘one with no known causal link to toxic substances.’’ Claimants 

question the evidence relied upon in creating this bulletin, and 

they question the quality of evidence necessary to establish entitlement in such cases. 

We also hear complaints suggesting that the decisions denying 

benefits often do not adequately explain why claimants’ evidence 

28 

was not sufficient. Moreover, many claimants report that it is simply difficult to comprehend the letters and documents that they receive. 

In addition, many claimants tell us that it is impossible to find 

an attorney or representative to assist them, and many believe that 

this lack of representation has worked to their disadvantage. 

Overall, my interactions with claimants and their families are 

usually very frank encounters where people are very blunt in expressing their frustrations with this program. I often have to remind people that my office cannot change the results of their decision. However, I always promise that I will record their complaints, 

and that when I have the opportunity, I will express those complaints to the Program office, and to Congress. 

So, in concluding, let me reiterate that a majority of the people 

who contact my office strongly believe that this program is not living up to its promise of being claimant-friendly. Thank you very 

much for your attention, I will be more than happy to answer any 

questions the committee may have. 

[The prepared statement of Mr. Nelson follows:] 

PREPARED STATEMENT OF MALCOLM D. NELSON

Good morning. I am Malcolm D. Nelson, the Ombudsman for the Energy Employees Occupational Illness Compensation Act, Part E, and I would like to thank the 

Committee on Health, Education, Labor, and Pensions for inviting me to testify 

today. 

The 2004 amendments to the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) repealed Part D of the program which had been administered by the Department of Energy, and enacted Part E, effectively transferring responsibility for administration of contractor employee compensation from the 

Department of Energy to the Department of Labor. These amendments also created 

the Office of the Ombudsman and directed that it be an independent office located 

within the Department of Labor. The statute outlines three duties for the Office of 

the Ombudsman: 

1. To provide information on the benefits available under this part and on the requirements and procedures applicable to the provision of such benefits; 

2. To make recommendations to the Secretary regarding the location of resource 

centers for the acceptance and development of claims for benefits; and 

3. To submit to Congress by February 15th of each year, a report outlining the 

number and types of complaints, grievances, and requests for assistance received by 

the Office during the preceding year, and an assessment of the most common difficulties encountered by claimants and potential claimants. 

Since our establishment in 2004, outreach has been an important aspect of the 

Office of the Ombudsman, and our office strives to reach out to as many claimants 

and potential claimants as possible. As a result of our outreach efforts, as well as 

the efforts of others, we are contacted on a daily basis by claimants and potential 

claimants regarding their grievances, complaints and requests for assistance. Our 

most recent annual report was submitted to Congress on February 15, 2007, and 

since that time, we have heard from hundreds of new claimants. We look forward 

to reporting on their concerns, grievances and requests for assistance in our report 

for 2007. 

The essential characteristics of any Ombudsman’s office are: independence, impartiality, and confidentiality. 

Consistent with these characteristics, and with the statutory responsibilities outlined above, the Office of the Ombudsman provides assistance and guidance to those 

who request it. We do not possess investigatory authority and we cannot advocate 

on behalf of individual claimants as a private attorney might. Rather, we direct 

claimants to the appropriate resources, we answer their questions (to the extent 

that we are able), and in some instances, we simply record their concerns. Based 

upon a review of our records, and relying upon my personal interactions with claimants either at town hall meetings or in one-on-one conversations, I am confident in 

stating that a large percentage of the claimants and potential claimants with whom 

we have spoken do not believe that this program is, or has been, claimant friendly. 

29 

There are many reasons for this and it would take too long to discuss every concern 

and grievance that we have received. However, let me take a few minutes to discuss 

a few of the more common complaints that this office hears. 

Before I begin, however, I should note that in light of the mission given to the 

Office of the Ombudsman, we generally only hear from those who have complaints, 

grievances, and/or requests for assistance. This in no way detracts from the validity 

of their concerns; rather I simply want to note that we tend to only hear of the problems. 

DELAYS

The fact that it often takes years to adjudicate a claim is a concern that many 

claimants express to us. We continue to hear from claimants who initially filed a 

Part B or Part D claim, meaning that they filed their claim prior to October 2004, 

and yet they are still awaiting a final resolution. In many other instances, while 

the claim may not have been pending since 2004, there still has been a lengthy 

wait. Even where there is an explanation for the delay, many claimants nevertheless assert that the wait is too long, especially since you are referring to a program 

that is intended to be claimant friendly. Many of the people with whom we speak 

are elderly, and quite a lot of them are sick, often suffering from malignant and debilitating illnesses. Claimants have been quite blunt in telling us that they fear that 

if they are made to wait too long, they will not be around to receive benefits. 

In addition, generally under Part E, if the worker dies prior to the awarding of 

benefits, only surviving spouses or certain surviving children are eligible for benefits. In light of this, many claimants voice a concern that if benefits are not awarded 

during their lifetime, their family will not receive anything from this program—regardless of the severity of their illness. Moreover, there are claimants who simply 

need the money—sometimes to help pay for their health costs, and other times, for 

any number of reasons. I recently spoke to a woman who is anxious to receive her 

benefits so that she can pay for the installation of a new heater. 

BURDEN OF PROOF

Under Part E, the claimant has the burden to establish entitlement to benefits. 

In general, in order to establish entitlement to benefits under Part E, a living worker claimant must establish: 

• employment at a covered DOE facility; 

• an illness; 

• that the illness is related to exposure to a toxic substance; 

• that the exposure to the toxic substance is the result of employment at the covered DOE facility; and 

• impairment and/or wage loss (if the claimant wishes to be compensated for impairment and/or wage loss) due to the illness. 

We hear a large number of complaints from claimants who believe that the burden on them is virtually impossible to meet. For instance, a number of claimants 

have indicated that in developing evidence of their employment at a covered facility 

or of their exposure to toxic substances, they were stymied because relevant records 

had been either lost or destroyed. Where such claims are ultimately denied on the 

ground that the claimant failed to present sufficient evidence of covered employment 

or of toxic exposure, the claimants often turn to us with the same questions, ‘‘if the 

government cannot find these records, how can I be expected to find them?’’ and 

‘‘why should I lose because this evidence has been lost or destroyed?’’ Although, the 

Program Office, as well as this Office, will sometimes suggest other means of developing necessary evidence, following through on these suggestions is often beyond the 

capabilities of the claimant. 

Moreover, even where the records are available, many claimants question the accuracy of these records. A common complaint that we hear is that employment 

records fail to recognize that during the day the employee was routinely ‘‘ordered’’ 

to go to other sites around the facility. Transportation workers and security guards 

often tell us that they were not required to wear dosimetry badges, yet their duties 

often required them to travel throughout the facility and to have contact with a 

broad spectrum of the workforce. Furthermore, we encounter claimants who strongly believe that their employers manipulated or destroyed exposure data. The most 

common assertion that we hear is that employees were sometimes ‘‘ordered’’ to take 

off their dosimetry badges. 

We also hear complaints relating to the burden of establishing that one’s illness 

was caused by exposure to toxic substances at work (causation). Many claimants tell 

us that they simply cannot find a doctor who will assist them. Moreover, even when 

30 

claimants are able to retain a doctor, many become frustrated when their doctors’ 

reports are ultimately deemed insufficient to satisfy their burden. 

EEOICPA Bulletin 06–10 is a source of many complaints. Bulletin 06–10 informs 

claims examiners that DEEOIC ‘‘has identified certain illnesses with no known 

causal link to toxic substances.’’ Where a covered worker is determined to have one 

of these conditions, Bulletin 06–10 instructs the claims examiner to send a letter 

to the claimant stating this finding and telling the claimant that ‘‘it is necessary 

to submit factual or medical documentation to show a relationship between the 

claimed medical condition(s) and exposure to a toxic substance.’’ In response to this 

bulletin, some claimants assure us that they are aware of (or have) medical/ 

scientific evidence drawing a link between their illness and a toxic substance, and 

thus question the evidentiary basis for the conclusions in Bulletin 06–10. (Bulletin 

06–10 states that ‘‘DEEOIC specialists researched authoritative scientific publications, medical literature, and occupational exposure records,’’ but does not specifically identify the publications, literature or records consulted.) There are also claimants who believe that Bulletin 06–10 imposes an even higher burden on what is 

supposed to be a claimant friendly program. In addition, we encounter many claimants who assert that they have no appreciation of the quantum or quality of evidence necessary to overcome Bulletin 06–10. 

LACK OF CLARITY/EXPLANATION

Similarly, many claimants who contact our office contend that the decisions denying benefits do not adequately explain why their evidence was not sufficient to support an award of benefits. According to many claimants, an explanation as to why 

their previous evidence was insufficient, as well as clear guidance concerning the 

quantum and quality of evidence needed to meet one’s burden, would assist them 

tremendously in their efforts to develop evidence. 

Many claimants also find it a challenge to understand the letters and other documents that they receive. These documents often discuss legal and medical matters 

which simply are beyond the grasp of some claimants. For instance, many claimants 

are potentially eligible under Part B, as well as Part E, yet it is not unusual to talk 

to a claimant who, in spite of receiving correspondence from DEEOIC, still cannot 

confidently state whether the application that they filed has become a Part B or 

Part E claim, or both. 

LACK OF LEGAL REPRESENTATION/EXPERT MEDICAL ASSISTANCE

The inability to obtain an attorney or other representative to assist them often 

exacerbates the problems that claimants encounter as they attempt to establish entitlement to benefits. Also, finding medical evidence to support one’s claim often requires diligence and perseverance. We, however, encounter claimants who do not 

have the physical stamina to engage in this level of activity. In addition, assuming 

that evidence can be located, much of it will be extremely technical in nature. Many 

claimants simply are unable to fully comprehend such technical information. The 

fact that some claimants do not have access to a computer or are not computersavvy adds to these problems. 

For example, I recently spoke to a woman who has been denied benefits on the 

ground that there is no evidence linking her husband’s death to any of the toxins 

at his worksite. If this woman wishes to continue to pursue her claim, she will need 

to find a link between her husband’s death and one of the toxins now identified on 

the Site Exposure Matrices—a tool developed by DEEOIC to catalogue, to date, 

which particular toxic substances were present at a Department of Energy facility 

during a particular claimant’s employment. Consequently, this woman needs to review medical literature to try to find this link. Unfortunately, this woman is elderly, 

she does not live near a library, she does not drive, she does not have access to the 

internet, and she does not have anybody who is actively assisting her. At this point 

it is impossible to say whether this woman will prevail; however, it is safe to say 

that this woman will need assistance if she wishes to continue to pursue this matter. 

MISCELLANEOUS

As I indicated at the beginning, I am not going to try to discuss all of the complaints and grievances that claimants have reported to our office. However, I do 

want to note that many claimants tell us that they believe that it is unfair that 

under Part B adult children can receive benefits if the eligible parent dies, yet 

under Part E, adult children generally are not eligible. It should be noted that some 

of these Part E adult children were not eligible to receive benefits under Part B because their parent did not have one of the illnesses covered by Part B. We also conVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
31 

tinue to hear complaints concerning the courteousness and professionalism of some 

of the staff involved with this program. Moreover, even when benefits are awarded, 

we hear from claimants who do not understand or disagree with the methodology 

used to determine if a coordination of benefits is needed for a previous nonEEOICPA award of benefits or compensation. 

CONCLUSION

Many of the claimants who attend our town hall meetings or who call our office 

come to us with a sense of frustration. It does not matter where the claimant lives, 

or whether the claimant is the worker or a survivor of a worker, we continue to hear 

many of the same complaints and grievances. Unfortunately, in response to many 

of these complaints and grievances, we often must remind claimants that this Office 

cannot change the result, we cannot award benefits and we cannot rewrite the statute. However, we then inform these claimants that the Office of the Ombudsman 

can and will take their concerns and express them to the program agency and to 

Congress. I realize that I cannot adequately describe the depths of their frustration, 

but in order for me to live up to the promise that I have made to these claimants 

and potential claimants, I want to conclude by again stating that a large percentage 

of the claimants and potential claimants who contact our Office very strongly and 

unequivocally believe that this program is not living up to its promise of being 

claimant friendly. 

Thank you very much for your time and attention. 

Senator BINGAMAN. Thank you very much, let me just, for the information of all Senators, indicate we’ve got four votes scheduled 

sometime after 11 o’clock, and we’re not sure how quickly, and we 

also have a second panel of witnesses that we hope to get to. 

Let me ask a question, and then defer to Senator Alexander for 

any questions he has. 

Dr. Howard, let me just ask you, this dose reconstruction process 

seems to be a very long, drawn-out process, in many cases takes 

several years to accomplish. I gather that’s not unusual. Is there 

anything we could do, that you could do or that the Congress could 

do to short-circuit that, and get that process completed more quickly? 

Dr. HOWARD. I think, Senator, from our perspective within the 

program, we are trying to shorten that process, considerably. If you 

look at the program, as a whole, since it began, and got the data 

for the median length of time it’s taken us to do a dose reconstruction as the Department of Labor has indicated, it is probably 

around 2 years. 

But, when we started the Program, our dose reconstruction regulations were not done before we began to receive cases. If you look 

at just the last 2 years of our program, we’ve reduced that down 

to less than a year. 

It is almost impossible to reduce it to a level that a claimant may 

feel is their ideal—within weeks or months of filing a claim. That’s 

often very difficult, because the process is complex. 

But when we have enough data, scientifically, enough monitoring 

data from the site—and when we don’t, and we’re applying claimant-favorable assumptions—it is a more complex process to be able 

to calculate, especially if there’s multiple cancers, if there’s multiple exposures to different radioisotopes. 

Dose reconstruction, in general, is not the easiest process, and it 

certainly isn’t the easiest process to explain to claimants. 

Senator BINGAMAN. Senator Alexander. 

Senator ALEXANDER. So that we can get to the next panel, I’ll 

just ask one question, too. But, let me focus—as Senator Bingaman 

did—on NIOSH. As I understand it, it takes about 3 years, did you 

32 

say, Mr. Hallmark? Three years is waiting for NIOSH to process 

a claim, and then 1 year is for the Department of Labor? 

Mr. HALLMARK. That’s the rough average, since the beginning of 

the program. 

Senator ALEXANDER. Since the beginning of the program? 

Mr. HALLMARK. Since the beginning of the program. What we did 

a few years ago, out of respect for the Department of Labor’s better 

record, we transferred all of these claims over there. 

Senator ALEXANDER. Now, we have in Tennessee 24,000 claims, 

18,500 of which have received a final decision, 5,500 are in process, 

waiting. Are there more than 5,500? Are there new claims coming 

in all of the time? Or, do you have all of the claims that you’re likely to get yet? 

Mr. HALLMARK. No sir, the claims continue to come in. We received somewhere in the neighborhood of 15,000 new claims for 

Part B and Part E, combined, in 2007 and we expect the same levels in 2008, and continuing. The program has no sunset, as long 

as people get sick, they can come forward and file claims, and obviously there is still a lot of people who can do that. 

Senator ALEXANDER. So, Dr. Howard, based on your experience, 

and you’ve been able, you say, to reduce the time—as follow up to 

Senator Bingaman’s question, should we change some law? Should 

we ask you to do some different regulation? Is there a different way 

of evaluating some of these claimants that would save time, and 

still come to a fairly accurate result? Based upon your experience, 

can you think of ways that we can speed things up, from just the 

part of the review that you have? 

Dr. HOWARD. One of the ways that we’re speeding things up, is 

by taking claims that we’re unable to do individual dose reconstructions on, that may represent only one or two claims from a particular site. We are proposing to the Board that they approve them, 

those claims being added to the Special Exposure Cohort, so we’re 

doing that on our own. 

The limitation, of course, is that we have to prepare a report to 

the Board, the Board meets only a certain number of times a year, 

they can only consider a certain number of those claims. So, we’re 

constantly presenting to them, usually 2, 3, or 4 per meeting. So, 

we’re trying to expand that number. 

For instance, in the first 5,000 claims that we received from the 

Department of Labor which are our oldest claims, we only have 64 

claims left. So, those 64 claims that we have left, we are now preparing what’s called an 8314 process in the regulation, which allows us to say, ‘‘We cannot do dose reconstruction, we would like 

the Board to designate these particular claims as part of a class.’’ 

We’re trying to speed that process up. 

But, I think ultimately, unless you decide to re-do the act such 

that it is just a presence requirement of employment, and a 

radiogenic cancer—unless you do away with the dose reconstruction process altogether, it is very difficult—although we are trying 

to reduce the envelope that dose reconstruction is within, in terms 

of time limits. But, other than taking it out of the process, it’s very 

difficult. 

Senator ALEXANDER. Thank you, Senator Bingaman. 

Senator BINGAMAN. Senator Murray. 

33 

Senator MURRAY. I understand the time constraints, so I’ll just 

ask a few questions. Dr. Howard, I wanted to ask you about a 

group of workers in Washington State who were recently added to 

this Special Exposure Cohort, making it easier for them to apply 

for benefits. 

I understand that a second class of workers petitioned to be part 

of the SEC, but NIOSH’s recommendation to the Advisory Board 

earlier this month contained only a subset of that class. I understand the Advisory Board is reviewing the petition, independently, 

before making a determination on NIOSH’s recommendation. Can 

you explain to me in layman’s terms, why NIOSH did not endorse 

the petitioner’s full request? 

Dr. HOWARD. Yes. The petition requested from 1942 to 1990. We 

were able to recommend to the Board that two classes be added, 

1946 to 1959, and 1949 to 1968. We had data for 1968 to 1990, 

monitoring data that allows us, under the scientific principles of 

dose reconstruction to actually reconstruct the dose. We did not 

have data available for the years prior to that. 

So, what we did, then, is select out those years that we’re able 

to do individual dose reconstructions, and say to the Board, ‘‘We 

can do that on an individual level, but we cannot do it for these 

years.’’ So, it’s a matter of the availability of scientifically-sound 

data. 

Senator MURRAY. OK. 

Can you tell me what the average time is NIOSH expects to fully 

evaluate and complete an SEC? 

Dr. HOWARD. That’s really an excellent question. In the legislation we are given 180 days to complete our activity, and often 

times, in the SEC process, data collection sometimes takes awhile. 

What we do is stop the clock while the petitioner is trying to obtain 

information, or we’re working with the petitioner. 

But, in the 42 cases that we have, all but four of the petitions 

that have been qualified for SEC, we’ve met in the 180 days. But, 

the four that we haven’t met, for example, Rocky Flats and a couple of others, were highly complex SECs. We tried to meet it, we 

were unable to meet it. 

But in 90 percent of the time, we’ve met the congressional language. 

Senator MURRAY. OK. You do track that information on how long 

it takes? 

Dr. HOWARD. Yes, Senator. 

And we can provide additional data for you on each of the sites, 

and how long it took. 

Senator MURRAY. OK. 

I do have additional questions that I hope to submit for the 

record. 

Senator BINGAMAN. Yes, we will have questions for the record for 

all witnesses. 

Senator Allard. 

Senator ALLARD. Thank you, Mr. Chairman. 

In 2005, the Rocky Flats Steel Workers of Colorado filed a Special Exposure Cohort, and under the requirements outlined by 

EEOICPA, it was amended in 2004 to include the SEC petition procedure. The workers, after 21⁄2 years, got a decision back, that was 

34 

just June 12, 2007. That seems to me like anything but a speedy 

process. 

I have looked back on the Department, and the Department has 

performance evaluations conducted on it from time to time. Part of 

that evaluation, they said the Program’s statutory laws that we 

passed reduces its effectiveness. They say, and I quote, ‘‘The program’s design requires the involvement of multiple agencies and 

certain claims, decisions, and resulting in delays.’’ Is there something we could do, legislatively, to deal with that issue that was 

raised, when they looked at their performance? 

And also, how are Federal managers and program partners held 

accountable for cost schedule and claims processing? 

Dr. HOWARD. On the latter question, which is an easy one, 

through performance appraisals, directly. We do that in every program. Also, we do program reviews to look at the program in aggregate. 

But if you’re going to the first—— 

Senator ALLARD. Have you had some that haven’t measured up 

on their performance? 

Dr. HOWARD. Yes, sir. 

Senator ALLARD. What happens as a result of that? 

Dr. HOWARD. Well, there’s a progressive process of identifying 

the issues, counseling the individual, looking for performance improvements. 

Senator ALLARD. And if they still don’t perform, what happens? 

Dr. HOWARD. Well, then we make changes to the program—— 

Senator ALLARD. What happens? Do they get transferred, or they 

get laid off ? If they don’t do their work, do they get fired? 

Dr. HOWARD. Well, I’d have to look back at the specifics, Senator. 

I don’t have the specifics right now. 

Senator ALLARD. I’d appreciate knowing the detail. If we have 

nonperformers in the programs affecting people’s lives, and their 

families lives. I think there’s a serious problem. 

Dr. HOWARD. I agree with you. 

Senator ALLARD. The people responsible for that need to be held 

accountable. So, go ahead and finish your response to my question. 

Dr. HOWARD. I just wanted to add that, not only with our own 

HHS employees, but also with our contractor employees. 

Senator ALLARD. Yes. 

Dr. HOWARD. In terms of the larger issue, which I think relates 

to the timeframe and the multiple levels of review, some of the 

Special Exposure Cohorts do require additional information, oftentimes from DOE and we also have a very detailed peer review process that we undergo with the Advisory Board on Radiation Worker 

Health, as well as their contractor looks in excruciating detail at 

many issues, especially when our petition evaluation says, we want 

to deny the petition. 

I think that it is important for that peer review to take place, 

for everyone to look very carefully at our assumptions that we’ve 

made, to make sure that they’re sound. 

So even though there may be a significant amount of time there, 

I don’t think it’s important that peer review take place. 

Senator ALLARD. Now, did you address the legislative issues? 

Dr. HOWARD. In terms of? 

35 

Senator ALLARD. The performance. 

Dr. HOWARD. Oh, yes. 

Senator ALLARD. They suggest that there’s multiple agencies and 

certain claims disclosure, and that’s resulted in inefficiencies. Is 

there something we can do legislatively? 

Dr. HOWARD. Well, I’m not a legislator, but I would imagine—— 

Senator ALLARD. Yes, but you’re responsible for administering 

the program. 

Dr. HOWARD. Yes. 

Senator ALLARD. Do you have some recommendations you might 

submit to the committee? 

Dr. HOWARD. Exactly. I would say that, one of the issues for us, 

of course, looking at discretionary deadlines, versus mandatory 

deadlines, that sends different signals to a program. So, I would 

suggest that mandatory deadlines are a different thing than discretionary deadlines. 

Senator ALLARD. Thank you for your comments. 

Senator BINGAMAN. Senator Murkowski. 

Senator MURKOWSKI. Chairman, thank you, and I do have a 

statement that I would like you to put into the record. 

Mr. Hallmark, with many of the workers that were out on Amchitka when the nuclear weapons test was done out there, we had 

a situation where the individuals were not necessarily paid by the 

Department of Energy, they were employees of subcontractors, they 

were then paid by the Department of Defense. Do we have any idea 

how many employees might be out there, in this situation—any estimates in terms of the cost of extending the EEOICPA program to 

cover, not only the active duty military, but the DOE defense subcontractor employees? And, I know this may be more of an OMBtype of a question, but it is a situation for us in Alaska where we’re 

looking at them, and they just don’t fit into the neat categories. 

Mr. HALLMARK. The question of coverage of contractors working 

on DOD contracts, as opposed to DOE contracts was one that was 

debated and discussed at length when the statute was enacted 

back in 2000. 

It’s my understanding that a decision was made to draw a bright 

line, and not cover DOD contractor-employees. The result of that 

is that there are these circumstances where there are people who 

are working closely together at a number of these sites around the 

entire complex, who are working on various DOD activities. The 

statute even excludes, specifically, people working for the Naval 

Nuclear Propulsion Activity, and then the radiation associated with 

that. 

I can’t tell you why that decision was made by Congress in 2000. 

Clearly, if there is a desire to look into expanding the statute, 

that’s something that would need legislation. 

As to how many people are in that category, the question has not 

been put to me, and I don’t have a basis right now, and I don’t 

know whether I could find the basis, but I certainly don’t have any 

information currently available about the number of DOD contract 

employees who might, under a different structure of the legislation, 

be covered. 

Senator MURKOWSKI. We may want to follow up with that. It’s 

one of those where, as you say, you can have two individuals exVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\DOCS\38648.TXT DENISE
36 

posed to the exact same situation, and depending on where they 

got their paycheck from, one gets covered, and the other one 

doesn’t. It doesn’t seem fair. 

Let me ask you, Mr. Nelson, very quickly—you’ve indicated that 

those that are coming to you do not believe that this process is 

claimant-friendly, as you have been working in your capacity as 

Ombudsman, have you seen an increase in the level of frustration, 

is it getting any better, are we doing anything right that we can 

take some credit here for? 

Mr. NELSON. I think, yes, there are some things that are being 

done right. The problem for many of the claims is that, it takes so 

long that, with some of the claimants, even if they are ultimately 

awarded benefits, or finally, get their final decision, they are so 

frustrated because it has taken so long, that they can’t get over 

that frustration. 

The other problem I find, is that while we are doing a lot of 

things, sometimes the things we think are helping the claimants, 

aren’t really helping them. It’s not translating—— 

Senator MURKOWSKI. Such as? 

Mr. NELSON. One process that I’ve seen—because many of these 

claims take a long time, there’s often a process where claims are 

moved around to different claims examiners. This is an attempt to 

help the claimants to make sure the claims are moving faster. 

Unfortunately, for many of the claimants, they see the fact that 

they have 3 or 4 claims examiners handling their claims as a problem. They think that they’ve developed a relationship with one 

claims examiner, only to have that claims examiner move off, now 

they have a new claims examiner, they have to establish a new relationship with that one. 

As I said before, it’s done to help the claimants, unfortunately in 

the minds of the claimants, they see it as another delay. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Let me just follow up on that—is it actually delaying the process? 

Or is it just viewed as a delay? Because there’s a difference there. 

Mr. NELSON. Yes. Again, I hear it from the claimants, their view 

is that it’s actually delaying, I mean, they’ll tell me stories where 

they said, ‘‘We thought our claim was at one process, was at one 

level in the process, however, we get a new claims examiner, all of 

a sudden, we’re back to square one. Or, we’ve had claimants, 

they’ve asked us all of these questions, now we have a second 

claims examiner, they’re asking us all of the same questions over 

again. 

Whether that’s actually causing the delay, or whether it simply 

has the perception of a delay, I can say clearly, for the claimants, 

it has the perception of delay. 

Senator MURKOWSKI. Sure. Thank you, Mr. Chairman. 

[The prepared statement of Senator Murkowski follows:] 

PREPARED STATEMENT OF SENATOR MURKOWSKI

Mr. Chairman, a sincere thank you for holding this hearing into 

the workings of the Energy Employees Occupational Illness Compensation Program Act—EEOICPA for short. 

Coming from Alaska where more than 2,000 workers toiled for 

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37 

ons tests on Amchitka Island in the late 1960s and early 1970s, I 

know first hand just how important this legislation is to provide 

help to workers who volunteered to help America’s nuclear program 

at the height of the cold war. It is important because, unfortunately, in all too many cases these workers have been suffering 

horrible health consequences as a result of occupational exposures 

either to radiation or other contaminants that they faced. 

Developing a compensation program was difficult three and four 

decades after the fact when Congress first passed it in 2000. The 

complexities spawned changes in 2004 when Congress repealed 

Part D because of the difficulties of implementing it and substituted Part E to speed compensation for lost wage claims because 

of disabilities caused by nuclear ailments and illness. The delays 

in implementation caused Congress to replace the Department of 

Energy with the Department of Labor to process claims. 

It also caused Congress to create an Ombudsman to help the 

tens of thousands of employees thread their way through the complex claim application and review process. 

While the Department of Labor certainly is doing a far better job 

of processing old claims and new ones stemming from Part E, the 

calls and letters my offices are receiving indicate that there are 

still problems with the nuclear worker program—problems that 

Congress may need to again address. 

Clearly, we need to extend the authorization for the Ombudsman’s office, since there is clear evidence that employees likely will 

continue to need assistance to apply for and get through the adjudication process for their compensation claims. While the Senate 

has already voted to extend the office as part of the Defense Authorization Act, until that bill is actually conferenced and signed 

into law, I join many on this committee in hoping that the Department of Labor will administratively keep the Office open until a 

formal reauthorization passes and becomes law. 

The bigger question is whether there are still fundamental problems with the structure of the compensation program that Congress needs to fix. That is what I hope this hearing will shed light 

on. 

My office has certainly received a host of complaints in the past 

several years about the compensation process. The complaints have 

generally fallen into a half dozen areas. They include: 

1. Complaints about delays in adjudicating claims, that the wait 

is too long. In some cases workers are quite ill and afraid that they 

will die before their claims are approved, complicating the receipt 

of assistance to their families. 

2. Complaints about what workers have to prove—the burden of 

proof—to be entitled to benefits. The problems stem from workers 

having trouble finding firm evidence that they actually worked on 

projects, especially those who worked for DOE subcontractors. The 

employment records and the length of employment documentation 

are a challenge after nearly half a century. Worse, employment 

records are frequently so sketchy that they complicate, not help, 

workers to show their radiation or contaminate exposures. 

3. This flows into the problem of ‘‘dose reconstruction.’’ While I 

know we will have testimony today about how much better the National Institute for Occupational Safety and Health Centers are 

38 

doing in developing radiation dose information—vital for the adjudication of disability claims—still I’m getting a host of complaints 

about lengthy delays in processing the requests and sometimes in 

the physician panels that are involved in determining disability 

compensation. A related problem is that workers are developing 

cancers that are not solely radiation dependent, but ones like prostate cancer, where radiation exposure could have played a large 

contributing role. I’m also getting complaints that the requirements 

for the amount of time at a job site—the exposure information— 

may be inaccurate. 

4. I’m getting complaints about the inadequacy of explanations 

about why claims are denied. Many say after long waits they are 

being denied aid because their evidence was insufficient, but that 

they are not getting enough guidance on how to remedy the filing 

shortfalls. The frustration for workers denied aid is growing. 

5. I’m getting complaints from relatives about the compensation 

process. For example under Part B adult children can receive benefits if the eligible parent dies, but under Part E, adult children generally are not eligible for compensation. One woman who called my 

office said the program was actually tearing her family apart, since 

of 10 children, only 1 was a minor and qualified to gain all of the 

aid, the other nine children feeling unfairly treated. This is clearly 

an issue for Congress, not the Department of Labor to settle. 

6. And finally I’m getting complaints from my State from workers 

on the Amchitka weapons tests who were employees of subcontractors who effectively were paid by the Department of Defense, not 

the Department of Energy. While active duty military gained regular military benefits, DOE subcontractor employees who often did 

the same work as DOE-funded subcontractors, currently are not 

entitled to any benefits. 

Another issue may be whether compensation is owed to noncontract employees who visited radiation sites. For example Alaska’s then Secretary of State, now what is called our Lt. Governor, 

at the request of the military toured the mine staffs at Amchitka 

between tests. He developed and died of a radiation-cancer but his 

widow is not entitled to compensation because he was not an actual 

employee. 

There clearly is an issue of fairness here that we dodged in both 

2000 and at the time of the improvements in the act in 2004. 

Many of these complaints and many others, are expressed in the 

testimony by the Ombudsman and by others that we will hear 

about today. I hope this committee can fashion just and reasonable 

solutions to speed fair compensation to those who stepped up to the 

plate to help America in its time of need. 

These workers and their families now need our help. I hope we 

can make this program fulfill its promise and truly help our Nation’s nuclear workers. Thank you Mr. Chairman. 

Senator BINGAMAN. Thank you all, very much. I think this was 

useful testimony. 

Senator MURRAY. Dr. Howard are you getting all of the information from DOE that you are requesting, in a timely fashion? 

Dr. HOWARD. It’s much improved. We are—DOE is working very 

hard on a number of our cases, Chapman Bell being one of them 

39 

that they are trying to expeditiously get us information. If I could 

compare 2002–2003 to 2006–2007, there’s a remarkable difference. 

Mr. HALLMARK. I would second that. Our relationship with them 

has been outstanding in recent years, and they’re very, very 

prompt. 

Senator MURRAY. OK, thank you. 

Senator BINGAMAN. Again, thank you all very much for your testimony, why don’t we go ahead right to the second panel. 

This panel consists of Dr. James Melius, who is a member of the 

Advisory Board on Radiation and Worker Health at the National 

Institute for Occupational Safety and Health in Albany, and also 

Dr. Ken Silver, who’s Assistant Professor of Environmental Health 

Sciences at East Tennessee State University in Johnson City, TN. 

Thank you all for being here. If each of you could take a few minutes to summarize your testimony, that would be great, and then 

we’ll have questions, assuming we still have time to do that. 

So, Dr. Melius, why don’t you go right ahead? Is that the correct 

pronunciation, Melius? 

Dr. MELIUS. Yes, it is. 

Senator BINGAMAN. Please push the button there so that we can 

all hear you, thank you. 

STATEMENT OF JAMES MELIUS, M.D., DrPh, MEMBER, ADVISORY BOARD ON RADIATION AND WORKER HEALTH, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND 

HEALTH, ALBANY, NY 

Dr. MELIUS. Senator Bingaman, Senator Alexander, other members of the panel, I greatly appreciate the opportunity to testify before you today about the EEOICP. 

I’m an occupational physician epidemiologist, worked in the past 

at NIOSH, and had considerable experience working at evaluating 

health problems at DOE facilities in the past. And it’s been going 

for the last several years, I’ve served as a member of the Advisory 

Board for the Program, attended over 50 meetings to discuss various aspects of that program, and had the opportunity to hear from 

hundreds of claimants who’ve attended the public sessions of our 

Advisory Board. 

You’ve already heard today from the Department of Labor and 

NIOSH about their efforts to make the program more claimantfriendly, and I believe that both agencies have made considerable 

efforts to do so. 

However, it’s quite evident from hearing from the claimants at 

our public meetings of the Advisory Board, that there’s widespread 

dissatisfaction with the program. And, I think that in evaluating 

the reasons for this, I think it’s important that we understand that 

claimants friendliness is more than technical adjustments in the 

dose calculations. It should be to provide timely, fair and accurate 

compensation decisions and provide such decisions in a consistent 

and transparent manner. 

While the claimants may not always be satisfied with the final 

results of the determination—their claim is turned down—they 

should believe that they’ve been treated in a fair manner, their 

claims were thoroughly and adequately researched, and that they 

have the opportunity to submit information they believe is relevant 

40 

to their claim. This information was reviewed, and more appropriate, was taken in to account in their dose calculations and claim 

decisions. I think that’s particularly important in this program—I 

think what you’ve all said here today—this program goes back 

many years, there’s a great deal of secrecy, and a great deal of sacrifice on the part of the people working at these facilities to serve 

their country and they did so in a very remarkable way. Now they 

deserve a good, transparent, and sound compensation program. 

Now, in my testimony, I’ve laid out a number of the reasons why 

I believe that the claimants, many of the claimants do not feel 

they’re being treated in a claimant-favorable way. Some of it is 

technical, just the nature of missing records, the fact that these 

dose calculations, claim decisions are very technical, require complex calculations that may be difficult to understand. 

However, there are also a number of administrative issues, I 

think, that greatly contribute to the claimants dissatisfaction with 

the program. First of all, and I think most importantly, claimants 

do not believe that their input to the program really is taken into 

account, that it matters. 

And the nature of the interview process with NIOSH, in particular, with the Subtitle B part of the program, the cancer claims, 

it is the same interview for everybody, no matter where you 

worked. If you worked at Amchitka, if you worked at Los Alamos, 

you get the same questions. 

So even though those two facilities are extremely very different 

in terms of activities and the kind of work that’s done there. And 

in my testimony, I’ve laid out some of the other problems with that. 

But it’s important that the lack of taking into account the claimants’ experiences and their input into the claim decisions—it’s not 

just a matter of how clean and friendly does the program appear. 

I think it’s also a serious technical shortcoming. 

As Senator Reid has spoken today, and we hear this repeatedly 

from people from many different sites, there are a great number of 

situations where people have problems with high, very high exposures, incidents which are not recorded, and often there isn’t any 

record kept of that particular incident and that exposure. And 

therefore, if it’s not picked up in an interview, they don’t have a 

chance to provide that. It ends up with an inaccurate claim, dose 

reconstruction. 

There are some other issues that I’ve laid out with the program. 

And then, I also believe that, I made three areas of recommendations, which I think would greatly improve the program without 

necessarily requiring that there be a change in the law. 

The first recommendation would be to improve the interview 

process. I think that needs to be tailored to the particular site and 

I think it needs to be set forth in a way that the claimants can feel 

that their input is appropriately followed up on. 

Recently we had a report, a graph report from the Board’s contractor reviewing part of what’s called the close-out interview. And 

that report found some pretty serious incidents where information 

put forth by the claimants was not being followed up on. And the 

claimants weren’t aware of that, they found. 

I also believe that the process for reviewing SEC petitions needs 

to be improved. And we need to make sure that people, the worker 

41 

representatives and the petitioners, have an adequate time to participate in that process and can be fully made aware of what’s 

going on. I think NIOSH has taken some steps recently to improve 

that, but I think more needs to be done. 

And finally, we need to improve the timeliness of the program. 

Now that is, I think, a difficult ‘‘to do’’ within the constraints of the 

law and the way the program is set up. But, I think it’s critical. 

We shouldn’t have 64 claims, whatever’s left over from 5 years ago, 

that have not been processed. That’s not fair to anybody involved. 

And, now they’re taking steps, I think that’s—glad to hear that, 

but at the same time, we need to take other steps, particularly, I 

think, a much more active program to look at where those reconstructions are not going to be feasible to do. 

Under the current program, the way the law’s written and the 

regulations, has the determination that those reconstructions can 

not be done with sufficient accuracy. And, that process ends up 

with this very long, drawn-out evaluation that Dr. Howard has described, the Board reviewing it, and so forth. And it just doesn’t 

work. 

I think it ends up taking 2 or 3 years to go through that process 

for the petitioners. This is the process that should allow you to 

speed up the program and take into account that records are missing, that we can’t do it, can’t do the dose reconstructions in a scientifically sound way. And we need to make that process work better. And I think there’s some changes in the regulations and some 

changes in the administration of the program that could be done 

in a way that would greatly speed up that process. And I think 

also, lower the burden on NIOSH for the many thousands of those 

reconstructions that they would have to do if they do not take adequate advantage of that Special Exposure Cohort process. 

So, let me end there. I’d be glad to answer questions at the appropriate time. 

[The prepared statement of Dr. Melius follows:] 

PREPARED STATEMENT OF JAMES MELIUS, M.D., DRPH 

Honorable Chairman Kennedy, Ranking Member Enzi, and other members of the 

Health, Education, Labor, and Pensions Committee, thank you for the opportunity 

to testify here today regarding the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). 

I am an occupational health physician and epidemiologist currently working for 

a labor-management health and safety organization affiliated with the Laborers’ 

International Union of North America and its contractors in New York State. Over 

my past 25 years of work in occupational and environmental health, I have considerable experience evaluating occupational illness issues at Department of Energy 

nuclear weapons facilities while working for the National Institute for Occupational 

Safety and Health and later as a member of various review and advisory committees 

including the Advisory Board on Radiation and Worker Health established under 

EEOICPA. As a member of that Board, I have attended over 50 meetings to discuss 

various aspects of that program and have had the opportunity to hear from hundreds of claimants and their families about their experiences with the program. I 

should note that I do not testify here today on behalf of the Advisory Board on Radiation and Worker Health. 

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

EEOICPA was established to address the work-related cancers and other illnesses 

suffered by the thousands of men and women who helped build and maintain our 

Nation’s nuclear weapons starting during World War II and continuing into the 

present time. Especially during the early years of the program, these people worked 

42 

under very difficult conditions. They worked under tight deadlines using new manufacturing processes that involved handling very dangerous materials, often with 

minimal protection from exposure to dangerous radioactive elements. They also 

worked under great secrecy, facing severe criminal penalties for any breach of secrecy. Often they were given very minimal information about the materials that 

they worked with and the potential health consequences of their exposures. 

I want to emphasize that these people worked under these conditions willingly, 

knowing the critical importance of their work to our Nation’s security. However, 

many of these people and their families are now angry that this past secrecy and 

those difficult working conditions have not been acknowledged and have been used 

to deny their past claims for work-related illnesses. The credibility of the EEOICPA 

program to these people is very dependent on the fairness, timeliness, and transparency of the program’s procedures. 

As a consequence of this work, these workers are at increased risk of developing 

cancer and other occupational illnesses. Because information on the exposures and 

the consequent health risks were hidden from these workers for so many years, 

Congress established the Energy Employees Occupational Illness Compensation Program in 2000 to provide some compensation to these workers and their survivors 

for their work-related health problems. In doing so, Congress recognized that attempting to provide fair and equitable compensation for people working at these facilities for the past 50 years or more was difficult and, in many cases, would not 

fully compensate these people or their families for their suffering and sacrifice for 

our country. 

IS THE PROGRAM CLAIMANT FRIENDLY?

You have already heard today from the Department of Labor and from NIOSH 

about their efforts to make the program more claimant friendly. I believe that both 

agencies have made considerable efforts to do so. However, it is quite evident when 

hearing from the claimants or their representatives at the public meetings of the 

Advisory Board or in other settings that there is widespread dissatisfaction with the 

program. Most of my experience with the program has been regarding the Subtitle 

B Claims (i.e., dose reconstructions and special exposure cohort petitions) rather 

than the Subtitle E program that is administered solely by the Department of 

Labor. Therefore, most of my remarks will be about the Subtitle B program. However, I believe that many of the same issues are also relevant to the Subtitle E program. 

Before discussing the reasons for this dissatisfaction, I would like to discuss how 

I evaluate the degree to which this program is claimant favorable. I believe that it 

is more than just performing dose calculations in a manner that provides an appropriate adjustment for the level of uncertainty in the available monitoring records, 

monitoring methods, etc. A claimant favorable program should provide timely, fair, 

and accurate compensation decisions and provide such decisions in a consistent and 

transparent manner. While the claimants may not always be satisfied with the decision in their case, they should believe that they were treated in a fair manner, that 

their claims were thoroughly and adequately researched, that they had the opportunity to submit information that they believe is relevant to their claim, and that 

this information is reviewed and, where appropriate, used in their dose calculation. 

I believe that these criteria also apply to other parts of the EEOICP including the 

Special Exposure Cohort petition process. A transparent, credible process is especially important in the EEOCIP because the compensation process is so complex, 

and the ability of the claimants to appeal these decisions is limited by this complexity and their limited resources. 

Why are so many claimants dissatisfied with the EEOICPA program? I would like 

to briefly discuss several reasons. 

First, the dose reconstruction and SEC evaluation processes are very complex and 

difficult for a person not trained in health physics or dose reconstruction to understand. When individual exposure records are available, the calculations of dose are 

often technically complicated and may require multiple calculations of many different types of exposure over the person’s career at the facility. In many cases the 

exposure records need to be adjusted to take into account deficiencies in the monitoring program at that facility. In other instances, individual exposure records are 

not available, and complicated methods are used to estimate exposures based on 

data from co-workers, information about the radioactive materials and processes at 

that facility, or utilizing data from other facilities. Many of these procedures are 

complicated and difficult for someone not trained to do these procedures to understand. Many of these procedures require considerable judgment on the part of the 

person doing the dose reconstruction about how to apply these procedures to an inVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
43 

dividual case. Many claimants question the fairness of these methods and extrapolations and whether the methods and assumptions are appropriate for their individual case. 

Second, many of these claims relate to exposures during the early days of nuclear 

weapons development. Exposure monitoring methods were not available or under 

development. In some cases, little or no monitoring was done. Some of the information needed to evaluate these early monitoring data is not available, and many of 

the people involved with the early monitoring programs have died. Many of the 

claimants from these early years are dead, and their survivors often know very little 

about their work or work exposures (due to the secrecy of the program). The methods used for these older cases often involve more assumptions about exposure conditions, and more use of data from other sites. These factors make it very difficult 

for the claimants or their survivors to understand and trust the dose reconstruction 

process that is being used to process these claims from the early years of the nuclear weapons program. 

There are also a number of administrative issues that contribute to the claimants’ 

concerns about the program. 

First, the dose reconstruction process was designed to be largely based on the exposure records and related site documents. In the vast majority of cases, information 

from the claimant plays little or no role in the dose reconstruction process. Each 

claimant or their survivor is interviewed. However, the initial interview is the same 

for all claimants and follows a script approved by OMB before the dose reconstruction process was fully developed. Many of the interview questions are confusing, involve technical terminology that the claimant or their survivor may not understand, 

and ask about information or exposures that is not relevant to the site where the 

claimant worked. This is very confusing to the claimant or their survivor. Often they 

believe that their answers to these irrelevant questions may be important to processing their claim when they are not. Conversely, those being interviewed may be 

led to believe that important information about their exposures is actually not important because they were not asked about it in the interview. 

Although claimants or their survivors have the opportunity to provide additional 

information at the end of the interview and during the dose reconstruction close out 

process, it appears that information provided by the claimants is often ignored or 

not fully utilized. A recent draft report from the audit contractor working for the 

Advisory Board on Radiation and Worker Health documented this lack of follow 

through on information provided by the claimants. Many people speaking at the 

public comment sessions at the Board meetings have reported similar complaints. 

As the interviews are the main opportunity for the claimants to interact with people 

who are handling their claim and one of the few opportunities that they have to 

provide such information, it is important that their input be appropriately 

ascertained and addressed. 

In addition to being a source of dissatisfaction with the program, this lack of adequate consideration of information from the interviews with the claimants is also 

a serious technical shortcoming in the dose reconstruction process. The people doing 

the work at the specific facilities are often best able to report on actual working conditions and circumstances that may have impacted their exposures (e.g., high exposure incidents, times when they were not monitored, etc.) Often these individual situations were not fully documented (or the records are lost), and often they may account for a very high exposure for the claimants. We have repeatedly obtained credible information from claimants and worker representatives that often contradicts 

the information available from the official exposure records. We have repeatedly 

been told about credible instances where workers have been told to not utilize their 

monitoring badges for a particular operation because the exposures would be too 

high. The lack of adequate methods for obtaining and utilizing such information 

from the claimants is a serious flaw in the program and also a major source of frustration to the claimants. This problem also extends to the handling of the SEC petitions and the development and review of the site profiles and other technical documents. 

Another problematic aspect of the program is that the dose reconstruction methods are continually changing. In order to address the large number of claims when 

the program first started, NIOSH and their contractors rapidly developed so-called 

Site Profiles and related technical documents to provide a summary of the technical 

information about a particular site that was judged to be important for dose reconstruction for people who worked at that site. NIOSH recognized that these profiles 

were not complete and would need modification once NIOSH had more time to do 

so. NIOSH has worked to continually update and modify these documents and to 

add new technical procedures to assist in dose reconstruction. 

44 

NIOSH and DOL have also established a policy that when these documents are 

modified, any dose reconstruction that could be changed by the modified information 

would be reviewed. Those claims that would become compensable because of the 

change (i.e., their probability of causation increases) would then be compensated. Although this is helpful to many claimants, it is confusing for those whose claims are 

being reexamined through this process but whose modified dose reconstruction does 

not reach a level where it is compensated. All claimants whose dose reconstructions 

are being reevaluated are notified of the process, although many will become more 

frustrated and dissatisfied when their claims are again denied. However, this continual updating and changes in technical documents means (in effect) that a given 

claim is never closed and that claims may be reopened and found to be compensable 

many years after first being turned down. It also raises the issue why adequate dose 

reconstruction documents were not developed in the first place. 

A related issue concerns the timeliness of the SEC petition evaluation process. 

Once NIOSH approves an SEC petition, NIOSH staff usually complete their evaluation of the SEC petition within the required 180 days. However, the evaluation of 

these petitions often takes a much longer time period. For example, a petition regarding the Rocky Flats plant qualified in June 2005; NIOSH’s evaluation report 

was received in April 2006; and the Board’s final recommendation was made in July 

2007. A petition for the Fernald facility in Ohio qualified in April 2006; an evaluation report was published in October 2006; and that evaluation report is still being 

reviewed by the Board. Similarly, a petition for the Blockson facility in Illinois 

qualified in March 2006; a second NIOSH evaluation report was produced in July 

2007; and that evaluation report is still being reviewed by the Advisory Board. 

There are many reasons for the delays including the complexity of these sites and 

the long time periods involved in these petitions. However, often the review of 

NIOSH’s technical reports by the Advisory Board or its contractor finds significant 

deficiencies that need to be addressed. These lead NIOSH to revise the technical 

documents used for that site which can involve considerable time to search for additional documentation and to make such revisions. This is frustrating for the petitioners and very confusing as the methods being used for dose reconstruction at that 

site are continually changing. Individual dose reconstructions are being delayed 

while this review is under way. The long review benefits the claimants by helping 

to improve the dose reconstruction process, but the long time period and the technical complexity of the review and deliberations are quite frustrating for the petitioners and claimants. 

Recently, the SEC evaluation process has also been delayed by questions about 

which parts of the facility and/or what time periods are covered by the program. 

This problem has involved at least three sites (Blockson Chemical, Dow Madison, 

and Chapman Valve). The determination of what facilities (or parts of a facility) are 

covered and about the time period of coverage involves evaluations and determinations by the Department of Labor and Department of Energy. The process for coordinating between the three agencies involved in this process has not been well worked 

out and is also frustrating for those involved in those facilities. 

I have tried to enumerate some of the problems with the current EEOICPA program. I also would like to make some recommendations to address these problems 

and improve the program. I believe that all of these recommendations can be accomplished within the current framework of the program and without legislative 

changes: 

1. Improve the Interview Process. The current interview should be revised to be 

easier for the claimants or their survivors to understand and should incorporate 

questions directed at specific facilities (or types of facilities), types of work, and exposures. This would be helpful to the claimants and could greatly improve the dose 

reconstruction process. There should be a better procedure for documenting how information provided by the claimants has been utilized in the dose reconstruction 

process, and if it has not been utilized, the claimant should be informed. NIOSH 

with input from the Advisory Board should also institute a vigorous quality assurance program to make sure that information provided by the claimants is being appropriately recorded and utilized. 

2. Improve the Process for Review and Participation by Petitioners and Worker 

Representatives. Although NIOSH has taken some steps to provide better input by 

SEC petitioners and worker representatives in the review of their technical documents, better efforts are needed. The current technical documents are largely based 

on input from people who managed the radiation monitoring programs at these facilities. In addition to a transparent and stringent conflict of interest program, 

NIOSH needs to ensure that SEC petitioners and worker representatives have adequate opportunity to review and provide input on the documents that are used in 

evaluating SEC decisions and conducting dose reconstructions. NIOSH’s past pracVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
45 

tice has often been to meet with those representatives after the documents were 

completed. In fact, the Board has often been presented with SEC evaluation reports 

for sites where NIOSH has never held a public meeting to get input on their recommendations. NIOSH needs to continue to address this problem. In particular, 

NIOSH should assure that SEC petitioners and others involved in that process have 

full and timely access to all of the information that is being used for making decisions about a petition. 

3. Improve the Timeliness of the Program. This is the most difficult problem to 

address. Due to the complex technical nature of the program and the time and effort 

required to find and process past monitoring records, it is difficult to speed up the 

program and, at the same time, maintain a sound technical basis for the dose reconstructions and SEC petition reviews. One recommendation is to make sure that 

there are adequate resources to conduct the program for NIOSH and for the review 

of the technical documents by the Board and its contractors. This summer NIOSH 

was forced to stop much of its contract activities due to a funding shortfall, and this 

stoppage has significantly delayed many SEC petition reviews, technical document 

updates, etc. More importantly, NIOSH needs to reevaluate its approach of attempting to first conduct individual dose reconstructions and only after that fails to consider placing groups of workers in the SEC. There is no reason that over 5 years 

after the start of the program, that some of the initial few thousand claims should 

not have been completed. NIOSH often recommends that a group be added to the 

SEC in response to a petition in situations where NIOSH has already completed 

many dose reconstructions for that group. In other words, there never was an adequate basis for those dose reconstructions and the inadequacy of the data should 

have been recognized in the site profile and dose reconstruction development. 

NIOSH has a small program to self identify additions to the SEC cohort (so-called 

83.14 petitions). This program should be expanded, and NIOSH should review their 

dose reconstruction and SEC regulations to better delineate situations where dose 

reconstructions are not feasible including situations where even determining feasibility may require several years of effort. Former DOE workers deserve a timely resolution of their claims and petitions. 

I appreciate the opportunity to appear before you today and would be glad to answer any questions. 

Senator BINGAMAN. Thank you very much. 

Dr. Silver, go right ahead. 

STATEMENT OF KEN SILVER, ASSISTANT PROFESSOR, ENVIRONMENTAL HEALTH SCIENCES, EAST TENNESSEE STATE 

UNIVERSITY, JOHNSON CITY, TN 

Mr. SILVER. Thank you very much, Senator Bingaman, Senator 

Alexander, and other members of the committee. 

Senator BINGAMAN. You might push the button there on your 

speaker. There. 

Mr. SILVER. Most of my education in environmental health 

sciences was supported by Federal training programs, but some of 

the Government’s own facilities were at the bottom of the class 

when it comes to protecting workers’ health. Contributing to a remedy for this situation, for the benefit of cold war workers, has educated my heart. 

I want to acknowledge the presence today of Terry and George 

Barry of the Alliance of Nuclear Worker Advocacy Groups and others. I hope you and your staff will take time to hear their ideas. 

The phrase ‘‘cold war heroes’’ is beginning to lose its shine of sincerity outside the beltway, as the promises made in enacting this 

law have turned to dross for many families. They deserve better 

than the delays and dubious excuse-making that are occurring and 

recurring systemically at each of the major steps in the claims 

process, involving each of the agencies with duties under the act. 

I’ll be citing cases from Los Alamos, but you’ll find many similar 

stories from claimants at Oak Ridge, in my written statement. 

46 

Claimants are still experiencing major obstacles to getting medical and exposure records out of DOE sites. Alex Smith of Albuquerque, diagnosed with mercury poisoning in 1948, battled neuropsychiatric problems, which forced him to retire in 1982, shy of his 

Social Security retirement age. 

After a field hearing in March 2000, I helped him find smoking 

gun evidence, the original memos and industrial hygiene reports. 

What’s interesting, is that when Mr. Smith filed his claim in 2002, 

DOE turned over his supposedly complete medical file, but it contained almost no evidence of the mercury episode. Only when Congressman Tom Udall made another request on his behalf, were the 

handwritten notes of the diagnosing physician released. 

What has become of the hundreds of other claimants who 

couldn’t access smoking gun documentation, or whose first language isn’t English, or who didn’t receive excellent constituents 

services, or were not among the most visible public citizens, like 

Mr. Smith was, in campaigning for the law. Many of the intended 

beneficiaries of this program are simply giving up. 

DOL has lost records submitted by claimants trying to meet the 

criteria of Part E. A few years ago, I helped Ben Ortiz of Nambe, 

NM compile a loose leaf binder of documentation for his wage loss 

claim. Each item was cross-referenced to specific clauses in DOL’s 

regulations. It was submitted by the Congressman to DOL’s Denver office in September 2005. In conference calls over the next few 

months, Mr. Ortiz and his daughters, who’s his authorized representative, were unable to locate the contents of the notebook in 

the DOL bureaucracy. His tax returns for the last 3 years on the 

job were also submitted via the Congressman’s office, but recently, 

a claims examiner told his daughter his wage loss claim was 

stalled because they supposedly don’t have his tax returns. 

In early 2007, the local DOL resource center offered a startling 

explanation for the delays in this case. Each time congressional 

staff got involved, the explanation went, the paper file is sent from 

the District Office to DOL headquarters, where specialists in responding to congressional inquiries take over. Without the paper 

file in hand, claims examiners stop working on the case. 

Now, if there is truth to this explanation, it’s kind of an embarrassing admission of DOL’s inability to walk and chew gum at the 

same time, on some of these cases. 

Many NIOSH dose reconstructions have become a matter of what 

we call in science modeling, garbage in, garbage out. The agency 

relies on dosimetry data, which the site contractor, at the DOE facility, has typically had a chance to rework and edit. An insider 

told me that data NIOSH is using at Los Alamos had been ‘‘massaged’’ and ‘‘taken care of ’’ before this program passed, to the point 

that, ‘‘Lionel can feel very comfortable saying these are the official 

records of Los Alamos.’’ 

Historical occurrence reports have been underutilized. So, I’m 

pleased to announce the public distribution of a CD–ROM containing more than 350 Los Alamos occurrence reports made public 

by CDC. Copies of the disc will be mailed to 20 key stakeholders 

in New Mexico, and this could get interesting. 

The claimant community may be getting on in years, with little 

time or energy to fight an increasingly Kafka-esque system, but 

47 

they know what’s going on here. And we need your good offices to 

fix it. 

So, No. 1, amend the statute to create an independent advisory 

board for external review and oversight of Part E. Under the radiation part of this law, we’ve learned that without outside checks 

and balances, Federal agencies will go badly astray. 

No. 2, remove the perverse incentive—real or perceived—that 

DOL may currently have to stall in order to save on benefit costs, 

under Part E. Amend the statute so that Part E benefits can be 

paid to the estate of a claimant who dies before a pending claim 

is resolved. Physically locate a representative of the Ombudsman 

Office in each of the DOL resource centers, and give this Office expanded powers to work on Part B claims, and advocate, and when 

necessary, litigate for claimants. We also need technical assistance 

and advocacy grants for nonprofits doing this work, and we need 

to look at ways to create incentives for graduates of occupational 

medicine residency programs to go into practice in rural and community clinics near DOE facilities. 

There are nine other recommendations for reform in my written 

statement which will help make this law fulfill its promise as being 

claimant friendly. 

Thank you for your attention. 

[The prepared statement of Dr. Silver follows:] 

PREPARED STATEMENT OF KEN SILVER

BACKGROUND

My name is Ken Silver. I am an Assistant Professor of Environmental Health at 

East Tennessee State University. From 1997 to 2003 I lived in New Mexico. In 

1999, as a consultant to an environmental health project at the University of New 

Mexico, I sat down with Mr. Ben Ortiz, a former Los Alamos worker made ill by 

toxic chemical exposures, to review his medical and exposure records. On seeing the 

names and affiliations of prestigious doctors and scientists who had examined him 

10 years earlier, and attributed his respiratory and neurological illnesses to job exposures, I thought ‘‘Why wasn’t he compensated a long time ago?’’ We built a mailing list of people in New Mexico with similar concerns. Through action alert postcards, phone banking, op-eds, a private meeting of families with Dr. David Michaels, 

and two large public meetings, we generated grassroots support for the legislative 

efforts of New Mexico political leaders in passing EEOICPA, the compensation law 

that is the subject of today’s hearing. 

OVERVIEW

In my testimony today I call for increased congressional oversight of the activities 

of both DOL and NIOSH in administering this program. Administrative costs are 

exorbitant in comparison to the outcomes achieved. If the claimant community were 

getting what was expected, no one would begrudge the agencies a few extra dollars 

for administration. But worker knowledge is not being incorporated into radiation 

dose reconstructions. Close-out interviews are perfunctory. Site profiles do not reflect workers’ concerns. Conflicts of interest are ignored. Quite incomprehensibly, 

historical occurrence reports, which represent a highly valuable source of information on workers’ past exposures to radiation have been underutilized. The 2006 report of the DOL Office of the Ombudsman listed the top three concerns of claimants 

to be: (1) Difficulties in Proving Causation Issues; (2) Difficulties in Retrieving Employment, Exposure and Medical Records; and (3) Concerns About Claimant Interactions with DEEOIC Personnel. These problems are illustrated through three cases 

at Los Alamos, two of them Part E claims. Greater public oversight and involvement 

are recommended by means of: a Part E Advisory Board to DOL; initiatives to expand independent occupational medicine services at DOE sites; and funding for public interest participation. 

48 

CONGRESSIONAL OVERSIGHT IS NEEDED

109th Congress. This committee and this Congress have a duty to pick up where 

the 109th Congress left off in conducting oversight of the EEOICPA program. The 

House Subcommittee on Immigration, Border Security and Claims held four oversight hearings between March and December 2006. Chairman John Hostettler summarized the oversight committee’s findings: ‘‘Backroom manipulation’’ had occurred 

in a program which was ‘‘supposed to assure workers the deceit was over and their 

government was finally going to do right by them.’’ He said ‘‘those tasked with implementing the program’’ ‘‘need to be exposed for what they’ve done.’’ And he encouraged continued congressional oversight: ‘‘The babysitting of these individuals 

must continue.’’ 

Those of you in Washington who work on these issues are already familiar with 

the Office of Management and Budget’s notorious pass-back memo which laid out 

five policy options for ratcheting down on the Advisory Board on Radiation and 

Worker Health (ABRWH) and its independent contractor, as well as the public petition process for membership in the Special Exposure Cohort (SEC). 

Outside of Washington, we had an ‘‘Ah-ha’’ moment upon learning of the passback memo. Until then we couldn’t comprehend why a rising New Mexico labor 

leader and an outstanding public health physician were about to be removed from 

the Board. And it seemed Orwellian that anyone would raise conflict-of-interest 

issues about the only group of outside analysts hired to work on this issue in the 

public interest, SC&A, the audit contractor to the Advisory Board on Radiation 

Worker Health (ABRWH). Meanwhile, conflict of interest statements for the site 

profile team members at Los Alamos were not posted on the Web, as required by 

the official conflict of interest policy. Further, we were puzzled by a turnabout in 

Resource Center personnel from barnstorming tours of signing up claimants to publicly rationalizing the denial of claims in terms of ‘‘saving tax dollars.’’ And we saw 

few claims being paid at sites like Los Alamos. 

In skimming the document trove in Part V of the House Subcommittee hearings 

I noticed that chapters of the Los Alamos site profile (the Technical Basis Document 

or ‘‘TBD’’ were provided to DOL months before they were made available to the public. In fact, we had to wait until just 2 weeks before a meeting in June 2005, where 

Los Alamos workers and advocates were to discuss the site profile with NIOSH and 

ORAU, for the chapter on external dosimetry to be made available to us. But DOL 

had its copy a year earlier (e-mail from J. Kotsch to P Turcic, February 10, 2004). 

The reason for the delay is now obvious. DOL was concerned about passages in a 

draft version which described DOE dosimetry techniques as ‘‘inadequate’’ and old 

monitoring methods at Los Alamos as ‘‘primitive’’ and working conditions as ‘‘deplorable by present-day standards.’’ 

DOL got its way: none of this language is in the final public version. Because 

DOL’s role in the program is supposed to be that of a neutral adjudicator of claims, 

I must ask: When did DOL become known for its specialized expertise in health 

physics or the histories of DOE facilities. In one fell swoop, DOL program managers 

undermined the transparent process Congress intended and put at risk the reputation of NIOSH for scientific independence and responsiveness to labor concerns, 

which the agency rightly earned prior to EEOICPA. 

This calls for a response from Congress that is much sterner than ‘‘babysitting.’’ 

110th Congress. I require my students who are researching any environmental 

or occupational health policy issue to read and cite congressional committee hearings. They are the holy writ of the people’s business. One Congress may talk about 

an issue, but they always leave a record in case the next one is ready to take action. 

The five volumes compiled by the House Subcommittee in the last Congress tell an 

important story about this part of the people’s business. 

So, as this committee establishes its agenda for oversight of the EEOICPA program, I hope you’ll begin where the House Subcommittee hearings left off. Your first 

order of business should be to secure all of the loose-leaf binders of internal documents which DOL assembled under threat of subpoena, but which House Subcommittee staff were only allowed to take notes on. 

Failure to continue the aggressive oversight activities begun in the last Congress 

will permit trends unfriendly to claimants to continue. SEC petitions that have been 

ostensibly approved could be subjected to upwardly creeping criteria for proving 

membership in the cohort. How will families of deceased Los Alamos construction 

workers employed prior to 1976 obtain documentation that places their loved one 

at one of the technical areas that is included in the SEC, when we know that most 

construction workers typically worked ‘‘everywhere?’’ Widows of construction trade 

workers, many of them now elderly, were among the main intended beneficiaries of 

former State Representative Harriet Ruiz’s successful SEC petition. Will the Los AlVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
49 

amos SEC become a redux of Y–12, where claimants now have to furnish evidence 

of the specific buildings their loved ones worked in more than 60 years ago? 

Will competent attorneys avoid a program that provides insurance-like benefits— 

but only if a claim meets increasingly tort-like standards of proof? 

In my testimony I make several suggestions for reforms. These are: 

(p. 6) Copies of the documentation specific to the claim used by the dose reconstructor should be routinely provided to Part B cancer claimants. 

(p. 6) Claimants should also have a right to seek repeated extensions to 60-day 

requirement of signing the OCAS–1 form. 

(p. 10) Occurrence reports collections at DOE facilities hold the potential for a portion of dose reconstructions to be based on primary documentation. 

(p. 10) DOL regulations could be revised to allow claimants who receive a probability of causation of 40 to 49 percent to submit expert medical opinion on the causation issue. 

(p. 12) DOL’s adoption of an electronic records management system is an important area for congressional oversight. 

(p. 15) Allow coverage of non-cancerous diseases known to be caused by levels of 

ionizing radiation encountered in occupational settings, such as benign brain tumors 

and polycythemia vera. 

(p. 16) Ensure that the Part E Advisory Board (see below) has purview under the 

statute to independently audit all aspects of claims management by DOL, including 

(but not limited to) the training and performance standards of claims examiners. 

(p. 17) Revise DOL regulations so Part E benefits can be paid to the estate of a 

claimant who dies before a pending claim is resolved (through the appeals level). 

(p. 17) An independent Subtitle E board should be created by amending the statute. 

(p. 18) Adopt authorizing legislation for technical assistance and advocacy grants 

for EEOICPA activities. 

(p. 19) The purview of the DOL Office of the Ombudsman should be expanded to 

include Part B claims. Explicitly authorize the Ombudsman to ‘‘advocate’’ for claimants. 

(p. 19) Physically locate a representative of the Ombudsman’s office in each of the 

DOL Resource Centers. 

(p. 19) Intra- and extramural funding mechanisms should be created for CDC to 

provide technical assistance to claimants’ physicians and claimants’ organizations 

involved in the development of causation evidence for Part E and Part B. 

(p. 19) Incentives should be created for graduates of occupational medicine residency programs to practice in rural and community clinics near DOE facilities. 

ADMINISTRATIVE COSTS ARE EXORBITANT IN RELATION TO OUTCOMES ACHIEVED

Program statistics in a recent presentation by OCAS (the Office of Compensation, 

Analysis and Support) point to a program that is fundamentally broken. From 2001 

to 2007 NIOSH has received $280 million to perform dose reconstructions. NIOSH 

work has resulted in total payments to claimants of $869,000,000. Administrative 

costs are therefore equal to 32.2 percent of payments (about one-third). Members of 

this committee are more familiar with the comparable administrative expense rate 

for other entitlement programs. For SSDI it’s 2.5 percent. The average cost per case 

was $14,534 per dose reconstruction. 

DOL has rejected 4,726 cases, or about one-quarter (24.5 percent), and sent them 

back to NIOSH to be reworked, mainly because NIOSH updated its methods without redoing the earlier cases. 

GAO will have more to say about these numbers. But clearly, despite an unlimited budget, the two agencies responsible for the program don’t agree on what is 

valid in one-quarter of the cases. Little surprise then that many claimants have lost 

faith in how the program is being administered. 

WORKER KNOWLEDGE IS NOT BEING INCORPORATED INTO RADIATION

DOSE RECONSTRUCTIONS

CLOSE-OUT INTERVIEWS ARE PERFUNCTORY AND LACK QUALITY CONTROLS

A key step in the processing of an EEOICPA claim is the close-out interview when 

the claimant must sign the OCAS–1 form. This completes the gathering of facts 

from the claimant for dose reconstruction. The next step is administrative review 

by the DOL, where the probability of causation is determined. Decisions to award 

or deny compensation can hinge on the close-out interview. 

Survivor Claimants. At cold war era nuclear facilities, spouses and children of 

employees have little knowledge of the work that was done. Spouses with claims are 

50 

1Mr. Chavez did receive his dosimetry data. He notes that it shows a zero for the first quarter 

of 2002. That strikes him as implausible: he still has his badge from that quarter. His last day 

of work was February 4, 2002. He never turned in his dosimetry badge. To his way of thinking, 

this casts doubt on the rest of his dosimetry data, which is entirely comprised of zeros. ‘‘My 

buddies have the same thing,’’ he told me. ‘‘Zeros all the way through.’’ 

often elderly, with nowhere to turn for documentation of exposure-related issues. An 

illustrative case is Gertrude Finley’s claim, one of the first filed in New Mexico in 

2001, for her husband’s death due to non-Hodgkin’s lymphoma (see below). From 

Knoxville, TN Kathy Bates told her family’s Kafka-esque story to the House Subcommittee. It begins with her mother receiving a preliminary dose reconstruction 

for the wrong person, not her deceased husband. She followed a NIOSH case worker’s instructions to discard the report, only to receive a call a short time later from 

another case worker who was bent on conducting the close-out interview, before the 

report on the correct person was even in-hand. After several years of continued 

back-and-forth, they are now in the midst of their third dose reconstruction with 

NIOSH. 

SC&A Study. But survivor issues are not the only concern. The ABRWH’s auditor, Sanford Cohen and Associates, recently issued a report based on auditors listening in on three close-out interviews. In two cases specific information provided by 

the claimants was ignored. No attempt was made to obtain reports or review data. 

In essence, the claim’s fate was already sealed, but the claimant didn’t know it. 

The auditors found ‘‘potential for inconsistency and arbitrariness in how concerns 

are researched, communicated and resolved.’’ Most shocking is that key decisions 

are made by personnel called ‘‘HP Reviewers’’ who, in fact, lack health physics 

qualifications or experience in dose reconstruction The auditors recommend that HP 

Reviewers at least make detailed notes about what was done to address claimants’ 

concerns that are raised in close-out interviews. 

Los Alamos Ironworker. Ron Chavez, a member of Ironworkers’ Local 495, has 

been treated for non-Hodgkin’s lymphoma. He worked at Los Alamos from 1994 to 

2000. With his claim pending, in September 2007 he requested from NIOSH copies 

of his dosimetry data as well as the educational background of the dose reconstructor assigned to his case. He alleges that a manager surprised him by threatening to turn that very phone call into the close-out interview. Mr. Chavez felt this 

was an arbitrary attempt to close-out his claim prematurely.1

Administrative Reform. Copies of the documentation specific to the claim used 

by the dose reconstructor should be routinely provided to Part B cancer claimants. 

This would provide a simple check on sloppy close-out interviews harming claimants’ interests. This documentation should be provided long before the close-out 

interview takes place. Claimants would then have an opportunity to generate and 

pursue leads to additional information, or seek independent technical assistance in 

critically analyzing the data. 

Regulatory Reform. Claimants should also have a right to seek repeated extensions to 60-day requirement of signing the OCAS–1 form. 

TECHNICAL BASIS DOCUMENTS DO NOT REFLECT WORKERS’ CONCERNS

The problem of assessing the probability that a given cancer was caused by or 

contributed to by radiation exposure can be approached using at least four types of 

knowledge: 

1. radiation dosimetry data, 

2. models, 

3. historical knowledge of processes, operations and occurrences, and 

4. expert opinion. 

The current system used by NIOSH is heavily weighted toward radiation dosimetry data and models (#1 and #2), despite serious misgivings in the wider scientific 

community. While the Technical Basis Documents (site profiles) compile some historical knowledge of processes and operations, they are deficient in the use of occurrence reports. As described below, this deficiency serves to exclude the first-hand 

knowledge of workers. In the end, the reliance on dosimetry data and models tilts 

the site profile away from a workers’ perspective. Site managers are considered ‘‘experts.’’ As a result, site profile documents rely heavily on written Standard Operating Procedures (SOPs) which delineate how radiation ‘‘ought’’ to have been measured. Workers’ expertise is seldom represented on ORAU site profile teams; their 

insights into what actually occurred is given short shrift. 

Worker Submissions Ignored. In December 2003, worker Glenn Bell provided 

NIOSH and ORAU with two documents (accompanied by release forms) pertaining 

to historical operations and processes in the Y–12 complex at Oak Ridge. Mr. Bell 

51 

believed they contained facts which could introduce a few more claimant-friendly assumptions into dose reconstructions for Y–12 claimants. He reiterated his concerns 

at the January 2006 meeting of the ABRWH in Oak Ridge. Yet the documents remain ‘‘under review’’ by ORAU. The facts they contain have not yet been incorporated into the site profile for dose reconstructions at Y–12. Mr. Bell wonders how 

many other key documents have been ignored. 

Conflicts of Interest Ignored. The Los Alamos site profile was developed by a 

19-member team, a majority of whom are current or former Los Alamos employees 

with responsibility for radiation safety. In testimony before the House Subcommittee 

on Immigration, Border Security and Claims on May 4, 2006 Congressman Tom 

Udall expressed concern over the fact that conflict of interest disclosure statements 

had not been posted on the ORAU Web site for 8 of these 10 team members. More 

than a year later, the situation has changed—for the worse. None of the 10 current 

or former Los Alamos employees have disclosure statements posted at the current 

time. 

Occurrence Reports Not Fully Utilized. Site profiles are based mainly on the 

written SOPs for radiation monitoring which were prepared by management at each 

DOE site. ‘‘SOPs’’ are written expressions of how radiation doses ‘‘ought’’ to have 

been measured. They do not document how it actually was measured under upset 

or accidental conditions in the field. Many workers recall incidents in which SOPs 

were ignored due to expediency, time pressures, or inadequate staffing. 

In contrast to SOPs, occurrence reports document what actually happened under 

abnormal conditions, when workers are most likely to have been overexposed. These 

reports could provide an important antidote to NIOSH’s over-reliance on idealized 

SOPs and the perspective of facility managers in the site profiles. 

At the June 2005 meeting between ORAU and former Los Alamos employees in 

Espanola, it was noted that the site profile contained no information from the LANL 

historical occurrence reports collection. This is a collection of paper reports, memoranda and monitoring data which documents hundreds of radiation spills, leaks, environmental releases and worker contamination episodes from 1946 to 1990. Part 

of my doctoral dissertation research was based on reports of off-site environmental 

release contained in this collection. For each occurrence in which radioactive contaminants escaped off-site, I found roughly five times as many reports which involved worker-only contamination. Elsewhere I have estimated that there are likely 

to be hundreds of ‘‘worker only’’ occurrence reports from the era of the Manhattan 

Project through the 1980’s. 

POTENTIAL USEFULNESS OF OCCURRENCE REPORTS

Numerous workers and survivors have voiced frustration upon reviewing their 

supposedly ‘‘complete’’ medical and exposure records from DOE facilities, only to 

find key pieces of documentation missing—occurrence reports, finger ring dosimetry 

data, internal bioassay results, etc. This problem could be addressed by a more aggressive approach by NIOSH in utilizing historical occurrence reports collections at 

DOE facilities. Occurrence reports contain individual identifiers such as names, employee identification numbers and group affiliation. These reports could be used to 

improve the quality of dose reconstructions in several ways. 

First—and most obviously—the listing of an individual’s employee identification 

number in an occurrence report is conclusive evidence of the worker’s presence at 

an incident where a dose was likely incurred, a dose which may not be documented 

elsewhere. This applies particularly to internal radiation doses received in contamination incidents which took place before internal bioassay programs were fully implemented. 

Second, in cases where the claimant (or interviewee) describes an incident but is 

unable to provide precise dates, occurrence reports should be mined in pursuit of 

contemporaneous documentation. For example, an individualized docket notebook 

was compiled by an advocacy group for an EEOICPA leukemia claimant at Los Alamos using a ‘‘Surrogate Incident Report’’ form. Its purpose was to alert dose reconstructors to the possible availability of documentation for incidents which the 

worker recalled from memory. The claim was ultimately awarded under Parts B and 

E. 

Third, exposures resulting from incidents which were never documented, but are 

described in sufficient detail by interviewees, could be quantitatively modeled using 

similar incidents that are documented in an occurrence reports collection. 

Fourth, radiation dosimetry records do not capture information on dermal contact 

with radioactive materials. However, many occurrence reports do provide detailed 

information about levels of contamination on workers’ clothing, shoes and skin. 

52 

Example: Clean-up Crews at Los Alamos. Phillip Schofield, a former plutonium glove box worker and facility inspector at LANL, provided a compelling rationale for relying more on occurrence reports than on individuals’ badge data in some 

cases. When a spill occurred, many employees would be summoned to clean it up. 

On several occasions Mr. Schofield was one of those employees. Stationed at the entrance to the room was a radiation control technician (RCT) who would collect the 

radiation badge of each entering clean-up worker. That’s right: each worker removed 

his badge and handed it to the RCT. The rationale was that if the badge became 

contaminated with bulk quantities of radioactive dust or liquid, then it would give 

an inaccurate measurement of the dose to the individual. 

The standard procedure for estimating each clean-up worker’s dose was to use the 

RCT as a proxy for everyone on the job. A problem arises when the RCT remained 

stationed at the door for most of the clean-up: the RCT had less potential for exposure than the actual clean-up crew. Thus, individuals’ official dosimetry records will 

represent an underestimate of the true dose received. This bias may be partially 

remedied by incorporating environmental measurements and other facts from occurrence reports into individual dose reconstructions in the four ways described above. 

Example: Clean-up Workers at Oak Ridge Y–12. Large spills of radioactive 

liquids at the Y–12 plant during World War II triggered a standard procedure in 

which clean-up crews first built retaining structures and then recovered the spilled 

materials. Survivors of two of the men doing this work believed that their claims, 

both for colon cancer, would be covered by the Special Exposure Cohort for Y–12. 

However, under recent interpretations of this SEC, the families have been presented 

with an additional burden. They are now required to provide direct evidence of the 

handling of radioactive materials or employment in a specific building—60 years 

ago. Attorney Bob Warren of Black Mountain, North Carolina obtained an affidavit 

from a priest to one of the workers who remembers his parishioner’s clothing have 

been burned due to contamination incurred on one clean-up operation. However, 

DOL has indicated to Attorney Warren that the affidavit is insufficient evidence of 

contact with radioactive materials. 

This is precisely the kind of situation in which access to historical occurrence reports collections at the covered facilities would give families a reasonable opportunity to meet EEOICPA’s often murky standards of evidence. 

CD–ROM OF LOS ALAMOS OCCURRENCE REPORTS

I am pleased to announce public distribution of a CD–ROM containing more than 

350 Los Alamos occurrence reports. For many years these were for ‘‘official use 

only.’’ The Centers for Disease Control’s Los Alamos Historical Documents Retrieval 

and Assessment Project (LAHDRA) has made these documents available to the public for the first time. Individual identifiers have been removed. If a claimant recalls 

an incident but lacks documentation, then there is a possibility that it is contained 

on this disk. The disk has been indexed and formatted for quick retrieval. 

Twenty copies of the disk were placed in the mail yesterday to key stakeholders 

in New Mexico: cancer claimants, workers, widows and advocates on EEOICPA 

issues, along with a few journalists who cover the issue. Copies will also be provided 

to the five congressional offices representing New Mexicans. 

This collection is incomplete, however. The LAHDRA project is concerned with offsite releases of radioactive materials. The occurrence reports on this disk were selected on that basis, but many of them happen to have entailed worker exposure 

as well. The ‘‘Total List’’ file includes dates and a few details on numerous workeronly incidents for which the actual occurrence reports are not yet available. 

Importantly, each site in the DOE complex is likely to have a similar collection 

of historical occurrence reports which could be helpful to EEOICPA claimants. Only 

in later years were these kinds of reports digitized. At Los Alamos occurrences after 

1990 are in an online system. 

PRIMARY DOCUMENTATION TO VERIFY WORKERS’ KNOWLEDGE

A key area of ongoing oversight on the EEOICPA issue is the extent to which 

NIOSH dose reconstructions have taken account of information other than individuals’ official radiation dosimetry records. Are NIOSH and ORAU really tapping into 

workers’ knowledge? Is this knowledge being incorporated into site profiles (TBDs) 

and individuals’ dose reconstructions’ SC&A’s audit of close-out telephone interviews 

suggests otherwise. Rather than dismissing workers’ recollections as ‘‘anecdotal’’ information, are NIOSH and ORAU aggressively searching for confirmatory evidence 

in historical occurrence reports collections? A truly ‘‘claimant friendly’’ dose reconstruction process would leave no stone unturned in locating documentation to verify 

workers’ knowledge. 

53 

Administrative Reform. Occurrence reports collections at DOE facilities hold 

the potential for a portion of dose reconstructions to be based on primary documentation. Use of primary documentation could serve as a quality check on dose reconstructions performed with internal dosimetry data which some DOE sites have 

provided only after long delays and re-formatting. 

MEDICAL OPINION IN PART B

Another source of expert opinion which is not yet accommodated in assessing the 

probability of causation under Part B is that of physicians who have diagnosed and 

treated the individual claimant. It is not unprecedented for a cancer specialist to 

submit a written opinion asserting the work-relatedness of a claimant’s cancer, but 

the claim to be denied because dosimetry data and models produced a probability 

of causation of less than 50 percent. 

Administrative/Legislative Reform. DOL regulations could be revised to allow 

claimants who receive a probability of causation of 40 to 49 percent to submit expert 

medical opinion on the causation issue. This claimant-friendly reform would represent a candid admission of the imprecision of Probability of Causation determinations made from dosimetry data and models. In these borderline cases, medical opinions of sufficient probative value could tip the balance in the claimant’s favor. 

DOL RESOURCE CENTERS AND REGIONAL OFFICES

The offices of the EEOICP most frequently encountered by claimants are Resource 

Centers and DOL’s district offices. Claims examiners are located in the district offices. Abundant evidence indicates that neither of these points of contact is living 

up to a standard of ‘‘claimant-friendly.’’ 

In the 2006 ‘‘. . . Report to Congress’’ by the Office of the Ombudsman, the top 

three categories of claimants’ concerns were: 

1. Difficulties in Proving Causation Issues; 

2. Difficulties in Retrieving Employment, Exposure and Medical Records; and 

3. Concerns About Claimant Interactions with DEEOIC Personnel. 

These issues are illustrated in detail by the experiences of: 

1. Ben Ortiz, a former Los Alamos electromechanical technician, whose on-the-job 

exposure to chemicals led to his ‘‘medical termination’’ from Los Alamos in 1989 

with reactive airways dysfunction syndrome (RADS) and chronic solvent encephalopathy; 

2. Alex Smith, a former Los Alamos chemical technician and machinist who was 

diagnosed with mercury poisoning in 1948 and suffered neuropsychiatric conditions 

in the ensuring years; and 

3. Gertude Finley, the 86-year-old widow of Jack Finely who died from non-Hodgkin’s lymphoma after working for Los Alamos in the transport of shipments of nuclear weapons and radioactive materials. 

1. BEN ORTIZ

Espanola Office to Claimant: Congressional Constituent Services Will 

Delay Your Claim. Ben Ortiz was among the first former Los Alamos workers to 

file a claim under EEOICPA, having been the principal grassroots organizer in the 

New Mexico campaign for the law’s passage in 1999. (See ‘‘Background’’ above). He 

received a favorable determination for his respiratory ailments from a DOE Physician’s Panel under Subtitle D. Except for limited medical coverage, by the end of 

2006 he had not yet received benefits under Part E. Mr. Ortiz should be eligible 

for wage loss and impairment benefits. 

In early 2007 the Espanola Resource Center proffered a startling explanation for 

the delays in DOL’s processing of Mr. Ortiz’s claim. Repeated involvement by constituent services staff from congressional offices had delayed the claim. Each time 

congressional staff got involved, the explanation went, Mr. Ortiz’s paper file was 

sent from the regional office to DOL headquarters in Washington, DC. where specialists in responding to congressional inquiries would take charge. Without the 

paper file in hand, claims personnel in the regional office would stop working on 

the case. 

If there is truth to this explanation, it is an embarrassing admission of DOL’s limited infrastructure for smoothly administering claims under a program with a high 

degree of congressional interest. The old saw about a dolt who ‘‘Can’t walk and chew 

gum at the same time’’ comes to mind. 

Oversight. DOL’s adoption of an electronic records management system, however 

belated, is an important area for congressional oversight. 

54 

Regional Offices and Claims Examiners. In 2005 I assisted Mr. Ortiz and 

Marla Gabaldon (his daughter and authorized representative), in compiling a threering loose-leaf binder of medical and exposure documentation. Each item was crossreferenced to specific paragraphs and clauses in DOL’s regulations for Subtitle E 

causation and wage loss determinations. Included in the notebook was a medical report from a nationally recognized occupational medicine specialist who evaluated 

Mr. Ortiz in 1990 at the University of California San Francisco. Also included were 

neurocognitive tests performed by a specialist, who trained at the Environmental 

Sciences Laboratory of Mt. Sinai Hospital in New York. Excerpts from Mr. Ortiz’s 

symptom diary in the months leading up to his medical termination were also included. 

The 3-ring binder was submitted by Congressman Tom Udall’s staff to the DOL’s 

Denver office in September 2005. In periodic conference calls held during the next 

several months, Mr. Ortiz and his daughter were unable to ascertain where in the 

DOL bureaucracy the notebook wound up. 

A changing cast of claims examiners has not helped. Mr. Ortiz estimates he has 

had at least six different claims examiners since DOL took over administration of 

the program. On a recent conference call he was told that DOL had not received 

his documentation of wage loss. In fact, Mr. Ortiz’s IRS tax returns for the years 

in question (1986–1989) had been submitted by Congressman Udall’s office to DOL 

months earlier. ‘‘And,’’ his daughter writes in an e-mail, 

‘‘as if that wasn’t bad enough, during the phone conference they are flipping 

through the file to find the stuff they’ve asked us for. The claims examiners are 

not examining the files.’’ 

She continues: 

‘‘Information he has gotten from the Resource Center is incorrect. Most recently he was misinformed about the impairment rating. He’d been told that if 

he signed a waiver, then a DOL medical consultant would use the information 

already in his file to develop the impairment rating. We later learn that my dad 

would need to send in documentation for the impairment rating.’’ 

When I last saw Ben Ortiz in August he mentioned that the Resource Center was 

asking him to submit the standard form affirming that he is not receiving SSDI. 

He clearly remembers already having submitted this form to the Resource Center 

months ago. 

2. ALEX SMITH

1948 Mercury Poisoning. Senator Bingaman and staff are familiar with the 

case of Mr. Alex Smith of Albuquerque, (thanks to excellent constituent services provided by the Senator’s office and by Congressman Tom Udall). When Mr. Smith testified at the March 18, 2000 field hearing in Espanola, convened by then Assistant 

Secretary of Energy Dr. David Michaels, he recounted how he and several co-workers were diagnosed with mercury poisoning in 1948 by Dr. Harriet L. Hardy. She 

ordered the crude mercury still they were operating in K-Stockroom to be shut 

down. Then she took the men to medical grand rounds in Los Alamos to teach local 

doctors about the signs and symptoms of mercury poisoning. Among these signs was 

the classic blue line in the workers’ gums. 

Early Retirement. Mr. Smith told the March 2000 hearing about how he suffered neuropsychiatric problems in the ensuing years, leading to his early retirement from LANL in early 1982. Although he repeatedly cited the earlier mercury 

poisoning episode in discussions with Lab doctors, and requested documentation of 

the incident, none was provided by the Lab medical department. Maybe the Lab doctors didn’t know where to look for the documentation. Or, more likely, the institution’s restrictive practices governing access to documentation of the health impacts 

of Lab operations barred the doctors from furnishing this important personal health 

data to Mr. Smith. Plain and simple, in Mr. Smith’s words, a ‘‘cover-up’’ took place. 

At the time of his early retirement, he recalls feeling like the Lab doctors were intimating he might be a little crazy, as if he’d made up the whole incident. 

‘‘Smoking Gun’’ Evidence. At the May 2002 field hearing at the Convento in 

Espanola, where DOE Assistant Secretary Beverly Cook was called to account for 

Subtitle D’s dismal performance, Mr. Smith held up the 1948 memos for all to see 

that he wasn’t crazy. (Shortly after his March 2000 testimony I found Dr. Hardy’s 

memoranda about the 1948 mercury poisoning episode in an online DOE data base. 

The episode is also described in her autobiography and older editions of her textbook). Congressman Udall’s staff assisted him in filing a Privacy Act request with 

DOE to obtain one of the memos with his name unredacted. Despite this ‘‘smoking 

gun’’ evidence, Subtitle D produced nothing of benefit to Mr. Smith. 

55 

2The 50-item chronology of a widow’s interactions with the EEOICPA program over 7 years 

brings to mind the words of Labor Secretary Willard Wertz. Testifying before a hearing of the 

Joint Committee on Atomic Energy in 1967 about the failure of all levels of government to address job hazards to uranium miners, he said: ‘‘It is a record, nevertheless, of literally hundreds 

of efforts, studies, meetings, conferences and telephone calls—each of them leading only to another—most of them containing a sufficient reason for not doing anything then—but adding up 

over a period of years to totally unjustifiable ‘‘lack of needed consummative action.’’ 

Medical Records. Congressional intervention again led in 2006 to LANL releasing Mr. Smith’s supposedly ‘‘complete’’ medical record. An item-by-item comparison 

of this file the one initially released to the Espanola Resource Center upon Mr. 

Smith filing his claim in 2002 reveals a striking difference. Only with the congressional intervention did Mr. Smith receive Dr. Hardy’s original hand-written clinical 

notes dated February 19, 1948 in which she first suspected mercury poisoning. However, Mr. Smith has not yet obtained a report cited elsewhere in his record which 

is likely to contain the results of the urinalyses he remembers Dr. Hardy ordering. 

Her textbook account of the episode refers to the urinalyses. But her autobiography 

recounts battles with classification officers over disclosing uses of mercury at the 

Lab. 

Soon upon leaving Los Alamos, Dr. Hardy published an article in Physics Today 

to alert the nascent atomic energy industry to the hazards of mercury. It does not 

mention the episode in K–Stockroom. 

Wage Loss Claim. Mr. Smith’s Subtitle E claim was initially rejected by DOL. 

But with the help of Albuquerque attorneys Robert Maguire and Matt Hoyt, on appeal in March 2007 Mr. Smith won a Recommended Decision for payment of wage 

loss. Key pieces of evidence were reports from occupational medicine and neurotoxicology specialists at a Boston area institution. Mr. Smith traveled there at his 

own expense. 

3. GERTRUDE FINLEY

The case of Gertrude Finley of Albuquerque, now 86-years-old, is illustrative of 

the problems faced by survivors with cancer claims under Part B. Her husband Jack 

Finley worked from 1961 to 1977 as a Security Shipment Specialist responsible for 

escorting shipments of nuclear weapons and radioactive materials. Mr. Finely was 

diagnosed with non-Hodgkin’s lymphoma in 1990. The Finley’s were among the first 

families in New Mexico to file a claim on July 8, 2001. 

Ms. Finley is represented by Attorney Margret Carde of New Mexico Legal Aid 

(which is an indication of the widow’s financial situation). Attorney Carde has prepared a 6-page, 50-item chronology of letters, form-filings, phone calls and reports.2

It is punctuated by involvement by Senator Bingaman’s staff. On one level, Ms. Finley is one of the lucky ones: only once did she receive correspondence addressed to 

the wrong person (a ‘‘Mr. Spencer’’). 

In October 2003, a computer-assisted telephone interview was conducted with 

Mrs. Finley who, according to Attorney Carde, had ‘‘no idea of what Jack did because he worked in a classified area.’’ The dose-reconstruction proceeded, with Mr. 

Finley’s multiple skin cancers also included. 

On August 1, 2005 she received a Recommended Decision. In the ‘‘Finding of 

Fact’’ section, point #7 states: 

‘‘It was shown that Jack Finley’s nonhodgkins lymphoma, basal carcinoma of 

the left ear and right hand, and multiple squamous cell carcinomas were 50 

percent or greater probability (more likely than not) caused by his occupational 

radiation exposure during his employment with DOE.’’ 

But then point #8 states: 

‘‘The probability of causation for the nonhodgkins lymphoma, basal carcinoma 

of the left ear and right hand, and multiple squamous cell carcinomas diagnosed 

on various dated [sic] from 1990 through 2001 was determined to be 42.69 percent.’’ 

Fortunately, Mrs. Finley has an attorney to try to figure out what exactly this 

means, and to address other inconsistencies and omissions. The Recommended Decision was remanded by the Final Adjudication Branch. A revised dose reconstruction 

led to the conclusion that ‘‘further research and analysis would not produce a level 

of radiation dose resulting in a probability of causation of 50 percent or greater.’’ 

Ms. Carde had two conference calls with a NIOSH representative to question why 

the second dose reconstruction resulted in a lower probability of causation than the 

first dose reconstruction, despite the evidence of two additional new cancers. 

Other Illustrative Cases. Consistent with the Finley family’s confusing ‘‘Recommended Decision,’’ in which points #7 and #8 were frankly contradictory, a workVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
56 

er advocate at Oak Ridge says: ‘‘I’ve yet to see a Recommended Decision without 

mistakes in it.’’ 

A compelling example of mismanagement of a claim is that of pancreatic cancer 

in an Oak Ridge construction worker on whose dose reconstruction report employment at K–25 for most of the 1970’s is listed. Clearly, this employee was eligible 

for inclusion in the SEC for K–25. A dose reconstruction wasn’t even necessary. This 

is further evidence of the ‘‘gross ineptitude’’ cited at the November 15, 2006 House 

Subcommittee hearing which resulted in members of the SEC at the Nevada Test 

Site having their claims needlessly delayed by dose reconstruction. 

The Eichler Family of Knoxville, TN won a remand from a DOL administrative 

law judge of a recommended decision to deny compensation for Dr. Eugene Eichler’s 

testicular cancer and for a fatal brain tumor. DOL rejected the brain tumor because 

of a medical report which identified the brain tumor as a ‘‘meningioma.’’ In DOL’s 

view that meant it was ‘‘histologically benign.’’ Pointing to another medical report 

which described it as ‘‘malignant’’ the judge remanded, explicitly citing the claimant-friendly intent of the law. The judge also ordered a closer look at Dr. Eichler’s 

employment history which is especially well-documented. Yet in April 2006 the 

brain tumor was again rejected for coverage. There is no record of colleagues and 

co-workers whose names were provided to the dose reconstructors ever having been 

contacted. And the family feels the employment history has been disregarded. As 

for the testicular cancer, a second dose reconstruction was of no avail, because it 

used almost the exact same information as the first one. 

Reform. Amend Part E to allow coverage of non-cancerous diseases plausibly 

caused by levels of ionizing radiation encountered in occupational settings, such as 

benign brain tumors and polycythemia vera. 

The chair of the Beryllium Support Group at Y–12 (Oak Ridge) reports some of 

his members have complained of rudeness on the part of claims examiners. Equally 

distressing are cases in which claims examiners are ignorant of basic facts about 

common occupational diseases. In an Oak Ridge case of CBD which was ultimately 

fatal due to cor pulmonale, the worker advocate representing the claimant was dismayed to find that the claims examiner was unaware of the cardiac complications 

of CBD. ‘‘It’s not the claims examiner’s fault,’’ the advocate says. ‘‘He just didn’t 

know. He wasn’t trained.’’ 

In a case of asbestosis in a construction worker who had never worked anywhere 

but Hanford, another worker advocate voiced frustration over having been told by 

a claims examiner she would ‘‘have to prove’’ that asbestos exposure occurred at 

Hanford. Asbestos was ubiquitous in large nuclear and industrial facilities during 

the era in question—a fact which is obvious to students of occupational health. 

An occupational health professional at a DOE facility describes the DOL program 

as a ‘‘nightmare’’ for employees of the site who have beryllium sensitivity or CBD. 

‘‘Lost files’’ and ‘‘long delays’’ are even affecting claims which are fully supported 

by the DOE site contractor. Claimants ‘‘overwhelmingly can’t get through’’ or ‘‘get 

a response’’ from the district DOL office. This perspective was shared with me on 

the condition that I not name the facility. (Occupational health professionals are not 

immune to job retaliation). Suffice it to say that this institution and its staff are 

not accustomed to being ignored. What happens to claimants who have less formal 

education when they submit documentation about their claims to DOL? 

Legislative Reform. Ensure that the Part E Advisory Board (see below) has purview under the statute to independently audit all aspects of claims management by 

DOL, including (but not limited to) training and performance standards for claims 

examiners. 

IMPLICATIONS FOR OTHER CLAIMANTS

‘‘Concerns about Claimant Interactions with DEEOIC Personnel’’ was the thirdranked issue identified by the 2006 report of the Office of Ombudsman. Frequent 

changes in claims examiners and changes in the district office to which a claim is 

assigned were cited in the report. Loss of documents and duplicative requests to 

submit paper work were also cited. This is especially cruel in view of the causation 

standard for Part E: 

‘‘by a preponderance of evidence the type of toxic substance(s) they were exposed to, when and where this exposure(s) took place, and the extent and time 

period that the exposure(s) took place.’’ 

Even claimants who meet this standard cannot be assured that their records 

won’t go missing. 

The experiences of Ben Ortiz and Alex Smith are not isolated incidents. That 

these difficulties affected claimants who were so visible in the campaign for passage 

of EEOICPA, and have worked closely with congressional constituent services, 

57 

makes one shudder to think how claimants with lower public profiles are being 

treated. Their best hope may be to find legal counsel when their claim is denied, 

and try to prevail on appeal. 

What has become of the hundreds of other claimants who could not gain access 

to ‘‘smoking gun’’ or contemporaneous documentation of their exposures and illnesses? What about those who did not have written, occupational diagnoses from 

internationally recognized physician-scientists, backed up by evaluations performed 

by specialists using the latest methods of clinical and neurobehavioral testing? What 

about claimants who can’t pay out-of-pocket for specialized medical evaluations? Or 

those whose first language isn’t English? Or those who didn’t receive effective constituent services from their congressional offices? 

What happens in those households at the end of a long, drawn out process of retrieving records from a DOE contractor, submitting documentation to DOL, and the 

system responds with ‘‘What medical and exposure records?’’ 

It is not surprising to hear from claimants’ advocates that many of the intended 

beneficiaries of the program are simply giving up. The hurdles have simply become 

too difficult for an increasingly elderly claimant population. 

Regulatory/Legislative Reform. Revise DOL regulations so Part E benefits can 

be paid to the estate of a claimant who dies before a pending claim is resolved 

(through the appeals level). Under current law, nothing is paid when an elderly 

claimant passes on. This will remove the perverse incentive, real or perceived, that 

DOL has to stall in order to contain program benefit costs. 

PART E ADVISORY BOARD TO DOL 

A key lesson from the first 6 years of EEOICPA implementation is that an independent oversight board can keep government agencies that have been charged with 

carrying out a ‘‘claimant-friendly’’ program from going astray. Through its external 

review and oversight functions, the ABRWH has provided essential checks and balances on the activities of NIOSH staff. The Board’s meetings have also brought 

needed transparency to the dose reconstruction process. Especially illuminating 

have been the special projects conducted by the Board’s auditor, Sanford Cohen and 

Associates. 

Meanwhile, DOL’s implementation of Subtitle E has occurred with no independent oversight. Determinations of occupational disease causation are being made 

routinely by claims examiners and district medical consultants. Few of the guideposts used to make these determinations are publicly available. Nor have the qualifications of the district medical examiners been subjected to outside evaluation. 

Legislative Reform. An independent Subtitle E board should be created by 

amending the statute. Its role will be to provide external review and oversight of 

the DOL’s occupational disease determinations, coverage of consequential conditions, and overall implementation of Part E. Like the ABRWH, members would be 

selected from relevant disciplines (i.e., epidemiology, toxicology, occupational medicine) and sectors (claimants, workers, health professions, government agencies). 

PUBLIC INTEREST PARTICIPATION

Claimants face many high hurdles in accessing and interpreting records, seeking 

diagnoses, and advocating for themselves. The nature of the preparation work is 

similar to a tort case, while the benefits are comparable to an insurance program. 

The statute contains caps on legal fees. These factors may discourage competent attorneys from getting involved. Further, many DOE sites are located in remote rural 

regions of the country where occupational medicine practitioners with a worker orientation are hard to find. After several years of being out of work due to chronic 

illnesses, few claimants can afford to travel to see big city ‘‘occ docs.’’ Union locals 

at DOE sites that have closed down are no longer able to assist claimants due to 

obvious resource limitations. Technical assistance on responding to the intricacies 

of dose reconstruction and Part E causation standards is generally unavailable 

through the DOL Resource Centers. 

The Ombudsman’s office at DOL is the subject of many favorable comments from 

the community of claimants’ advocates. At a minimum, Congress should expand the 

Ombudsman’s purview to Part B claims. Administratively, DOL should physically 

locate a representative of the Ombudsman’s office in each of the DOL Resource Centers so they are available to trouble-shoot and advocate for claimants at any step 

of the process. Another simple enhancement would be to routinely inform and assist 

claimants with Privacy Act requests for DOE records. 

However, as part of the very institution they are expected to keep watch over, the 

Office of the Ombudsman can only go so far in advocating for change. Broader problems can be addressed by a technical assistance grants program for claimant advoVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 S:\DOCS\38648.TXT DENISE
58 

cacy organizations and incentives for graduates of occupational medicine residency 

programs to practice near DOE sites (see below). 

Technical Assistance Grants. Congress needs to remind the agencies responsible for administering this program that the public’s interest on occupational health 

issues are often best articulated by advocacy organizations. Funding of these organizations for claimant education, commenting on agency regulations, petitioning for 

SEC status, and traveling to important meetings is essential. The disparity between 

the multi-million dollar contract for dose reconstruction services and many claimants’ subsistence on fixed incomes is glaring. People who have ‘‘gone without’’ often 

have ideas for reducing wasteful government spending. But to have a voice, they 

must be able to get to the meeting fully prepared, ideally as part of an organization 

of like-minded citizens who are willing to extend a helping hand. 

At the second House Subcommittee Oversight hearing on May 4, 2006, Congressman Tom Udall voiced support for a technical assistance program. 

Legislative Reform. Congress should adopt authorizing legislation for technical 

assistance and advocacy grants for EEOICPA activities. 

Legislative Reform. The purview of the DOL Office of the Ombudsman should 

be expanded to include Part B claims. Explicitly authorize the Ombudsman to ‘‘advocate’’ for claimants. 

Administrative Reform. Physically locate a representative of the Ombudsman’s 

office in each of the DOL Resource Centers so they are available to trouble-shoot 

and advocate for claimants at any step of the process. 

OCCUPATIONAL MEDICINE SERVICES

In the 2006 Ombudsman’s report the top-ranked concern under Subtitle E was 

‘‘Difficulties Proving Causation Issues.’’ Several areas are ripe for reform to make 

Subtitle E more claimant-friendly on causation issues. 

The Ombudsman’s report correctly notes that many claimants shy away from allowing DOL doctors to make causation determinations. However, when they go to 

their physician of choice, it quickly becomes apparent that the evidentiary requirements under Part E are beyond the expertise of many doctors. ‘‘DOL wants verse 

and script in my doctor’s opinion,’’ says a former Los Alamos worker with radiation 

dermatitis and apparent multiple chemical sensitivity. ‘‘It’s beyond his expertise, 

and that of most doctors, to apply the AMA Guidelines to occupational illnesses,’’ 

he said. 

Although considerable occupational health expertise resides in NIOSH, the agency 

currently does not have a program of technical assistance to physicians who are developing EEOICPA claims. Applicable resources may also reside in ATSDR and 

NCEH. 

Communities around DOE facilities are often described as ‘‘company towns.’’ Physicians in private practice have little to gain—and much to lose—by lending their 

credibility to EEOICPA claims. 

Legislative and Administrative Reform. Intra- and extramural funding mechanisms should be created for CDC to provide technical assistance to claimants’ physicians and claimants’ organizations involved in the development of causation evidence for Part E and Part B. 

Legislative Reform. Incentives should be created for graduates of occupational 

medicine residency programs to practice in rural and community clinics near DOE 

facilities. These incentives should be tenable only at clinics that are independent of 

the DOE site. One such incentive might be more flexible visas for foreign nationals 

who have completed OEM residencies in the United States. 

MEDICAL CARE

Because I am not trained in the clinical sciences, I do not try to assist claimants 

who are experiencing problems with the medical coverage provided by EEOICPA. 

However, I would be remiss if I did not draw the committee’s attention to two cases 

of beneficiaries whose requests for home health care were grievously delayed by 

DOL. Requests from the family of George Hackworth (84-years-old) of Tennessee fell 

on deaf ears as he deteriorated with terminal colon cancer. DOL verbally denied the 

request for care and called the family on the day Mr. Hackworth died to inform 

them that the doctor’s order for skilled nursing services was ‘‘unnecessary.’’ 

Submitted for the record is a letter from Greg Austin of Professional Care Management. His company responded to the Hackworths’ desperate pleas and did provide several days of care, while waiting for the authorization which never came from 

DOL. Mr. Austin’s letter describes another cancer case in which the ‘‘request for 

home health care lay pending authorization for 197 days with the DOL despite having all the required documentation to make a decision.’’ 

59 

ACKNOWLEDGEMENT

I want to publicly express the deep respect and gratitude many people concerned 

with nuclear worker issues feel for the tireless and often miraculous work of Richard Miller, previously of the Government Accountability Project. If every occupational health issue had a Richard Miller, ‘‘That’d be alright.’’ (As in the song by Alan 

Jackson). Those who work on Capitol Hill are fortunate to have him as a colleague 

now. 

Senator BINGAMAN. Thank you both for your excellent testimony. 

Let me ask first, Dr. Melius, your suggestion here to speed 

things up—I need to understand better how this dose reconstruction issue is being dealt with. In situations where dose reconstruction is determined not to be feasible, in that circumstance NIOSH 

has decided to go ahead and lump these all together, is that the 

testimony we just heard? 

Dr. MELIUS. Yes, what you just heard was they are doing that, 

I believe, as I understood it—— 

Senator BINGAMAN. You might push that button again. 

Dr. MELIUS. As I understand it, they are planning to do that 

with the first, I think, 70 cases that were left over from the first 

5,000 claims. There’s a number of them involving small facilities 

and other circumstances like that. 

They have a program where they can, on their own, initiate their 

own, essentially, start the process for adding people to the Special 

Exposure Cohort. That is, follows the same steps as the ones for 

the petition process, which is the more common one that usually 

involves the larger facilities, and so forth. But, for the smaller facilities and for smaller groups of workers within facilities, they 

have in the past—and apparently are going to try to continue to 

expand that program where they would initiate the SEC process, 

Special Exposure Cohort process. 

Senator BINGAMAN. Is there any reason why they just can’t, on 

their own, do that? I guess they’ve concluded that the law permits 

them to do it—is there something we need to be doing to urge them 

to do it? 

Dr. MELIUS. Definitely. I think that’s the single-best way of 

speeding up this program. Which would be for NIOSH to take a 

much stronger stance and much stronger program to identify situations where they are unable to do the dose reconstructions—not to 

go through a very lengthy process in trying to, repeatedly trying to 

do dose reconstructions. 

One of the very frustrating things about the program is, people 

will submit a Special Exposure Cohort petition, an outside, a group 

from a facility. And that, NIOSH—in the process of doing your 

evaluation of that, will discover that there’s serious shortcomings 

in their dose reconstruction process, the way they’ve been doing 

those reconstructions and basically, have to start all over again 

with the background technical work to develop a dose reconstruction program, process. Either the Advisory Board has to accept that 

on faith, they can do it, or you have to wait a process of a year or 

two while that’s underway, having time for the Board and its contractor to evaluate that, and it just delays the whole process. If 

they would have a much more vigorous process to basically being 

willing to admit that it’s just not going to be possible to do the dose 

reconstructions, that it isn’t feasible, and it can’t be done in a timely way. 

60 

And, I think what Dr. Howard said—that if there were some real 

deadlines in the program, if you cannot complete a dose reconstruction within a set time period, or you cannot go through the process 

for the SEC petition evaluation in a set time period, then those 

people should automatically be added to the Special Exposure Cohort. If not, it’s justice delayed a long time. 

With the Rocky Flats situation, it was a very long, lengthy process and one that was not set to my—— 

Senator BINGAMAN. But you’re saying they have that authority 

now, under the law, and it does not violate either the statute or 

their own regulations for them to do exactly that. 

Dr. MELIUS. Correct. 

Senator BINGAMAN. OK. 

Dr. MELIUS. They need the incentive. 

Senator BINGAMAN. Dr. Silver, let me just ask you one question— 

could you give a little more expansive description of that CD that 

you held up there, as to what that contains and what the significance of it is, as you understand it? 

Mr. SILVER. Yes. Dr. Melius referred to claimants who remember 

episodes that they were involved in during their working careers— 

spills, accidents, contamination. When they receive their dosimetry 

records, there were zeroes. So there’s a discrepancy between the 

worker’s very clear recollections and the data that’s being used by 

NIOSH for the dose reconstruction. 

At every Department of Energy and for that AEC facility, when 

spills, accidents, contamination episodes occurred, reports were 

often written. These are historical occurrence reports. Frequently 

nothing was recorded. In Los Alamos there’s a vault of ‘‘Official 

Use Only’’ documents, we call it the historical occurrence reports 

collection, going back to 1945, and I did part of my dissertation on 

those reports, during the era of openness in the DOE complex. 

To my great dismay, there has not been a systematic effort to 

link those episodes to the job histories of people who are undergoing dose reconstructions. The Centers for Disease Control has an 

environmental dose reconstruction project going on at Los Alamos, 

they are looking at off-site doses. So, they’ve been through that 

open vault, and they’ve compiled a public database of reports that 

resulted in off-site releases, and they have made lists available of 

worker-only occurrences, that did not have off-site releases. 

So, this disc has the reports of releases that went off-site, many 

of them have worker contamination involved, and lists of workeronly occurrences. 

So, I’m going to put into the hands of claimants and claimant advocates in New Mexico, many of them have already been through 

the dose reconstruction process, they have their dosimetry data 

that shows goose eggs, as they say, and they’ll do a little comparison. And I strongly suspect that we’ll find people who finally have 

documentation of the episodes they remember, and they’ll bring it 

back to NIOSH, and hopefully have their dose reconstructions 

redone. 

Senator BINGAMAN. All right, thank you. 

Senator Alexander. 

Senator ALEXANDER. Dr. Melius, on your suggestion, just so I understand, you say that the Department of Labor and NIOSH could 

61 

decide today that a dose reconstruction wouldn’t be able to be done 

within a certain period of time, we just automatically add that person to a cohort, is that correct? 

Dr. MELIUS. Correct. There’s a process for doing that, it has to 

go up—— 

Senator ALEXANDER. It could do that. 

Dr. MELIUS. Yes. 

Senator ALEXANDER. What would you suggest the timeframe 

should be? Six months? Four months? A year? 

Dr. MELIUS. I think there’s no reason that the whole Special Exposure Cohort review process should last less than a year. That for 

the dose reconstruction, there’s no reason dose reconstruction 

should take more than a year to complete. 

Senator ALEXANDER. So, if they were to say, if dose reconstruction on this individual claim can’t be done within a year, it moves 

over to this other category, that would be a suggestion you made. 

Dr. MELIUS. Correct. 

Senator ALEXANDER. Do either of you know—businesses do customer satisfaction surveys, I believe the testimony was that the 

taxpayers have paid $3.2 billion to 35,000 people—those would be 

the successful claims. If those figures are correct, do you know 

whether there’s ever been a survey done of those 35,000 people to 

see whether they’re happy with that? Or whether they’re, as the 

ombudsman indicated, they may have been so frustrated in the 

process, and by the time they got the money, they weren’t happy 

with it? 

Dr. MELIUS. As far as I know, there’s been no survey and the 

NIOSH has been—I believe the Department of Labor has also been 

reluctant to do a survey because of concerns about claim adjudication and what might be found in a review of claims and so forth. 

But I think that kind of process could be done in a way that would 

be very helpful to the program, as well as would—I don’t think 

they need to disturb the claims adjudication process. 

Senator ALEXANDER. Typically those kinds of surveys are done, 

not necessarily to embarrass people, but to just simply to improve 

service and to learn things that one would want to do. 

Dr. Silver, you made the suggestion that I wondered about, too, 

which is that a claim doesn’t expire when a person dies, and the 

money could be paid to the estate. I can understand how that anxiety might contribute a great deal to the claimant and the family. 

And we heard the example of Herculean efforts to make sure 

that the money arrived just a few hours or a day before someone 

died. Have you done any research to know what effect that might 

have on claimants, if they knew that, even if they died, their claim 

might still be processed and money available to the estate, and 

what it might cost the taxpayer if that were done? 

Mr. SILVER. I haven’t approached it from a research standpoint. 

I view the work I do with claimant families as part of my public 

service, as a university-affiliated person. I think it’s really a matter 

of trust. When there are so many delays and so many incidents 

where documents have been misplaced in the claimants file, there’s 

a growing perception of the part of claimants and their families 

that—as a man in New Mexico told me, ‘‘They’re just waiting for 

62 

us to die,’’ under Part E, which does not allow the claim to pass 

to survivors. 

Senator ALEXANDER. But how many instances are there like that 

and do you know or have you made any estimate of how much it 

would cost the taxpayer if that recommendation were adopted? 

Mr. SILVER. I don’t have quantitative information, but I think we 

could probably find you a couple of cases to submit to the record 

of this hearing where that, in fact, occurred. But I think the larger 

issue is trust. People—— 

Senator ALEXANDER. Oh, I understand that. But, does this involve 10 people or 10,000 people? And is it a matter of billions of 

dollars or a few dollars? Or maybe you could tell me who could help 

me answer that question, if you can’t? 

Mr. SILVER. I think the advocacy groups for claimants will have 

a litany of cases where people are near-terminal death, or a handful of cases where it has actually occurred. 

Senator ALEXANDER. Thank you. 

Dr. Melius, do you have anything to add to that? 

Dr. MELIUS. Yes, I would add to that, that I think there are a 

significant number. I’m not sure 10,000, but certainly because of 

the number of people with cancer that are processed through the 

program, both through Subtitle B and E. And, I think it’s also important to remember that people’s medical bills are not paid, only 

from the time that they file the claims. So, going back in time, we 

all know problems that people have with health insurance and the 

high cost of medical care. So it’s been a significant financial burdens on many of these families, because of having to take care of 

the medical care, let alone, loss of income and so forth. So, I think 

it’s very worthwhile to look into that recommendation. 

Senator ALEXANDER. Thank you. 

Senator BINGAMAN. Senator Murray. 

Senator MURRAY. Yes. 

Dr. Melius, I would assume that even though each SEC petition 

is unique, that the Board’s review process is very similar. Can you, 

based on your experience as an Advisory Board member, explain 

that process to us? 

Dr. MELIUS. Yes. The process starts when the Board receives the 

evaluation from NIOSH. 

The first process, the petition is reviewed by NIOSH. If it’s accepted, they then do their evaluation, normally within 180 days of 

receiving it. That evaluation then goes to the Board. The Board, 

through our contractor, outside contractor, then has that contractor 

review NIOSH’s evaluation, identify issues, technical issues that 

need further review and follow up. And then we’ll make recommendations to the Board, technically, should this be accepted or 

not, or whatever. 

Particularly in some of the larger sites, such as Hanford and 

Rocky Flats and so forth that are so complex, that process will 

identify a number of different technical issues and that process can 

go back and forth for quite a while, because if the Board’s contractor finds a problem, a technical problem, NIOSH then responds. And that may be by starting all over again or developing 

a new method for doing those dose reconstructions. 

That’s currently what’s underway with the Hanford site. 

63 

Senator MURRAY. Right. Can you tell me why the Board chose to 

investigate further before making a decision on the SEC petition 

for Hanford? 

Dr. MELIUS. Yes. I believe, the reasons for that were, one, the 

Board had received that report, the most recent one, just shortly 

before our last meeting. So there had not been adequate time. 

Second, to review it, based on some of the work that we had already done at the Board—and I should add that I’m the chair of 

the work group of the Board that’s reviewing that. 

Senator MURRAY. Right. 

Dr. MELIUS. We also thought that we needed to, we would not 

be accepting of that recommendation from NIOSH on its face value, 

particularly that their recommendation, even though it recommended parts, some groups be added to the Special Exposure 

Cohort, a large part of that, the rest of the petition would not be 

by NIOSH’s recommendation. And we thought that that part of it 

needed much further scrutiny, based on what we already knew 

about problems with some of the methods that NIOSH was proposing that they use. 

What we’re in the process of now, is essentially trying to evaluate whether we can stage the process for reviewing the NIOSH’s 

evaluation report, so that the parts where they have recommended 

that a group be added to the Special Exposure Cohort, can be dealt 

with first, and obviously in a more timely fashion. And then, the 

other parts where they have made the recommendation that the 

petition not be granted, we look at in more detail and that will inevitably take a longer period of time. 

Senator MURRAY. Can you share with us your opinion about 

some of the unique conditions at Hanford that the Advisory Board 

ought to be considering as they move forward? 

Dr. MELIUS. Yes. I think there are several things. One is the 

complexity of the site and what we’ve heard from people that have 

worked out there about conditions, particularly conditions where 

people were exposed to very high amounts of radiation and were 

not being monitored at the time. 

We’ve heard people describe to us that they were given 30 seconds to go in and do a job, and if they didn’t have that job done 

in 30 seconds, they had to leave the area because the radiation was 

so great. And they were not monitored during that process. And so, 

getting that information is not possible. 

Second, the Board has, in our review of information from the 

Hanford site, serious questions about the adequacy of the records 

in the past, for the monitoring of neutron exposures, which is a significant part of the exposure for people at that facility. And frankly, NIOSH has questions about that also, because they’re re-looking 

at their methods for doing dose reconstructions, based on the available records, particularly on neutron exposures. 

Senator MURRAY. And if you don’t have the records, then?—— 

Dr. MELIUS. Then we recommend that it be added to the Special 

Exposure Cohort, that NIOSH’s evaluation would be rejected. 

Senator MURRAY. OK. All right. 

Thank you very much, Mr. Chairman. 

Senator BINGAMAN. Senator Allard. 

Senator ALLARD. Mr. Chairman, thank you. 

64 

In October—I want to direct this to Dr. Melius—the Rocky 

Mountain News, a newspaper in Denver, wrote an article where 

they talked about an internal audit by the White House Advisory 

Board on Radiation Workers’ Health’s auditor. This included listening to what they call a close-out session. Apparently this is part of 

the routine, part of the claims process. 

According to this article, two out of three claims that were audited, the information was not considered in the process. In fact, 

they pointed out to one case, where a decision was already made 

before that part of the interview was done. 

I’ve always been one to advocate that we use science and that we 

follow the process routinely. And I’m concerned that it appears, 

that maybe in these cases, it may not have been followed. Do you 

view this as a problem that’s pretty pervasive within the interview, 

and within the claims process, or is it systemic? 

Dr. MELIUS. Senator, yes. I believe that that is a pervasive problem. It has to do with, one, the nature of the initial interview and 

the way that that’s conducted. The lack of asking questions about 

specific facilities and processes at facilities. It also continues 

throughout the process, including the close-out interview process 

that you referred to. I think it’s a serious shortcoming and I think 

it needs to be addressed. In my testimony, I’ve included some recommendations, both for improving the interview process, as well as 

setting up a quality control process to make sure that people are 

listened to. 

And in the case of the close-out interview, part of the problem 

is determining whether or not the information was from the interviewer, and was then properly communicated to the person doing 

the dose reconstruction. Those are different people. And whether 

there’s adequate follow up. And something happened in that process, and the Board is still—and our contractor is still in the process 

of reviewing what that is, trying to determine how pervasive that 

particular issue is. 

But I tend to think it’s very serious. It’s something we hear repeatedly, claimants complaining about their information, and all 

the problems in the DOE facilities with missing records, and lack 

of recording of exposures, and so forth. It’s very, very important 

that claimants and their survivors have the opportunity to put this 

information forward and that it be evaluated and followed up on. 

Senator ALLARD. Thank you for your comments. We’ll closely review your testimony and see in detail what you’ve recommended. 

We have a vote that’s just up. I’d just like to make a closing comment that I understand the Advisory Board’s set up to take up this 

issue in their December meeting. I encourage further discussion 

and review of this issue by the Presidential Advisory Board and 

other parties involved. 

Thank you. 

Senator BINGAMAN. Thank you both for your testimony. I think 

it’s been useful. We got some good recommendations from you that 

we can try to follow up on. 

So, that will conclude our hearing today. 

[Additional material follows.] 

65 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR ENZI

Thank you for holding this important hearing, Mr. Chairman. I 

want to welcome all of the witnesses today, most especially Senator 

Reid. We very much appreciate everyone’s time and willingness to 

participate in today’s hearing. 

The Energy Employees Occupational Injury Compensation Program, known as EEOICPA, was created 7 years ago through a bipartisan effort here in the Senate. The program’s mission is to provide compensation for certain nuclear workers who have become ill 

as a result of radiation and other toxic occupational exposures 

while working in federally funded nuclear programs. EEOICPA 

provides lump-sum compensation and health benefits to eligible 

employees as well as lump-sum compensation to certain survivors 

if the worker is deceased. 

It is entirely appropriate for this committee to conduct oversight 

of the EEOICPA program’s administration from the perspective of 

the claimant. We need to know if the program is working as Congress intended. As most of us know, EEOICPA duties are distributed among three separate cabinet Departments—Energy, Labor, 

and Health and Human Services—and also involve an independent 

Board and an Ombudsman. This complex administration has required some readjustment over the years as it became apparent 

that claimants were not all as well-served as possible. Like the 

original legislation, the changes made in 2004 were again accomplished through bipartisan efforts. That approach served the beneficiaries of the legislation well, and will hopefully serve as a guide 

for any future actions. 

How well is EEOICPA working? Certainly, improvements have 

been made, and there is no question that many Americans have 

benefited. Thirty-four thousand four hundred and nine individuals 

have received over $3 billion in payments under EEOICPA to date. 

Of those, about 25,000 are actual employees, and the rest are survivors. In my home State of Wyoming, more than $6.5 million has 

been distributed to just over 100 claimants. 

Is the program sufficiently claimant friendly? There are obviously many ways to measure an answer. The scientists who do the 

very technical work of determining what each employee may have 

been exposed to have recommended compensation for a far greater 

percentage of applicants than was initially projected. Over the program’s short existence there has been a great deal of valid concern 

about the backlog of claims bottle-necked at a number of different 

administrative junctions and agencies. As I’m sure our first panel 

of witnesses will attest, that backlog has been greatly reduced and 

I hope we will congratulate them for that. 

Additionally, the Department of Labor has established 11 Resource Centers to assist workers and their families apply for benefits under the Program. The Department has strategically located 

those Resource centers in areas likely to have a large number of 

potential claimants. The centers also assist potential claimants 

over the phone so geography is not an impediment. Four EEOCIPA 

claim processing district offices are also geographically distributed 

across the country to provide claimants direct access to their claim 

66 

processors. The Department of Labor has also taken its show on 

the road. The Division of Energy Employee Occupational Illness 

Compensation [‘‘DEEOIC’’] has held over 150 Town Hall Meetings, 

and sponsored some 27 Traveling Resource Centers to explain the 

program and provide filing information and assistance. DEEOIC 

has also hosted over 80 site exposure matrix roundtables designed 

as a resource for claimants to connect any occupational exposures 

to disease experience. 

Finally, the EEOICPA program has an independent Ombudsman 

who provides assistance to claimants under the program’s Part E, 

which targets contractor employees. The EEOICPA Ombudsman 

has also reached out to provide assistance to claimants by holding 

a half dozen special Town Hall Meetings to assist filers. Earlier 

this month, the Senate passed legislation extending the EEOICPA 

Ombudsman authorization another 5 years to 2012. 

Today we will be able to look beyond the numbers such as the 

number of claimants served, the percentages compensated, and the 

amount of assistance and resources available. I look forward to 

hearing more from today’s witnesses about the program’s ‘‘claimant 

friendliness.’’ If there are problems, let’s get them out in the open 

and start discussing solutions. 

PREPARD STATEMENT OF SENATOR HARKIN

Mr. Chairman, I thank Senator Bingaman for chairing this critical hearing, and salute him for his long steadfast dedication to this 

issue. This has been a long hard road for all of us involved, but a 

longer and harder road for these workers, who by definition are 

very sick and have to fight not just the illnesses they contracted 

in service to our country but a complex and sometimes very confusing program. 

My involvement with compensating sick workers began with a 

letter I received from a sick worker, Bob Anderson, back in 1997. 

As a part of a community college course, he was supposed to write 

a letter to a Member of Congress. He decided to write about something very close to his heart—I am sick, and I think it is because 

I used to work for a contractor here in Iowa that manufactured nuclear weapons. At that time, very few people knew the Iowa Army 

Ammunition Plant was ever even involved in such manufacturing. 

Over the years, we worked to get the veil of secrecy lifted. We 

worked to find lost records and create a program to compensate 

these sick workers. Two years ago, NIOSH approved the designation of a Special Exposure Cohort for many of these sick workers. 

It is hard to describe the feeling of winning such a long, hardfought victory. To date, over $2 billion in claims and medical expenses have 

been paid under part B, and thanks in large part to the program 

amendments in 2004, almost $850 million has been paid under 

Part E. But far more claims have been denied or are still waiting 

for approval due to lack of information. 

We have a long way to go. This is an incredibly complicated 

issue, involving difficult scientific analysis of dose reconstruction, 

patterns of illness, even material questions of employment histories. There is no question in my mind that the Special Exposure 

Cohort designation process takes too long or that it is too difficult. 

67 

Claimants have to deal with a very difficult process, marked by 

complicated paperwork, burdensome burden of proof requirements, 

and problems contacting the right agency and getting answers that 

are understandable. There is a lack of uniformity in the application 

of the law with regard to proof of employment and proof of disease. 

At the outset of this hearing, I would say to the involved agencies that in helping us to compensate these sick workers that we 

remain focused on the best available science and exposure information. The cost of doing what we need to do to be fair to these folks 

is going to be significant. But, you cannot and should never put a 

price on justice. We, as a society, owe these workers for giving up 

their health and sometimes their lives to do what was asked of 

them by their government. 

I think there are a number of things that Congress can do to improve communication between agencies, make the process more 

transparent, improve the SEC process, and make it easier for 

claimants to navigate the process. I hope to work together with my 

colleagues to do so in the 110th Congress, and look forward to the 

information and cooperation that this panel has to offer to us in 

that process. 

PREPARED STATEMENT OF SENATOR CLINTON

Mr. Chairman, thank you for allowing me to submit testimony on 

this important matter. 

When Congress passed EEOICPA in 2000 and then amended the 

statute in 2004, the law promised timely compensation to former 

workers in the Nation’s nuclear weapons complex. Unfortunately, 

the program has been implemented in a way that falls far short of 

this goal. One of the major failings of the program has been the 

dose reconstruction process, which has been too reliant on inadequate information. I have seen this in detail at the Bethlehem 

Steel site in Lackawanna, NY. 

Like workers at many other sites around New York and our 

country, Bethlehem Steel employees were essential to our cold war 

effort. These people literally built our nuclear arsenal in the decades after World War II and helped us eventually to win the cold 

war. In the late 1940s and early 1950s, the government contracted 

with Bethlehem Steel, which is in Buffalo, to roll uranium at their 

plant. But the workers weren’t told what they were working with. 

They weren’t provided with safety equipment to shield them from 

radiation. They weren’t monitored to determine how much radiation they were being exposed to. But if you talk to the workers 

who I’ve spent time talking to, or to their spouses, or their children 

of workers who have passed on, you know that this was hot, dirty 

work. Uranium dust was thick in the air. They breathed it. They 

coated their hands with it. They would sit on areas in the plant to 

eat lunch and put their lunch down and the uranium dust would 

be on their sandwiches. They ingested it. It covered their work 

clothes. 

So it’s not surprising that many of them got cancer. And for decades they petitioned their government for help and have been denied. Congress finally did the right thing in 2000 with the act that 

you are examining in this hearing today. This was a landmark law 

and it was such in the tradition of our country to acknowledge the 

68 

wrong that the government had done, and promise timely compensation to workers and their survivors. 

As workers and their survivors brought forward information, it 

became clear that there were great disparities between the site profile that NIOSH had developed and actual conditions at the plant. 

As a result, I became convinced that reconstructing doses for Bethlehem Steel workers is an impossible task. It shouldn’t be surprising. After all, we’re talking about work that occurred in secret 

50 years ago and before modern radiation monitoring and safety 

practices had been developed. 

When Congress passed the law in 2000, it recognized that reconstructing doses would be impossible in many cases, and that’s why 

the special cohort process was included in the law. The statute to 

my reading is pretty clear. It says that if the government doesn’t 

have the information to reconstruct doses then workers should be 

given the benefit of the doubt and their claims should be paid. 

More precisely it provides for classes of workers to be added to a 

special exposure cohort if it’s not feasible to estimate the radiation 

doses with sufficient accuracy, and there is reasonable likelihood 

that the radiation dose may have endangered their health. I don’t 

think we could have a clearer case than Bethlehem Steel, where 

not a single worker wore a radiation badge; where the only radiation measurements we have are a handful of air samples; where 

the workers rolled uranium and where many of them contracted radiation-related cancers. 

Unfortunately, this Administration has implemented EEOICPA 

in a way that refuses to give workers the benefit of the doubt in 

cases where the available data makes dose reconstruction impossible or highly unreliable. The Bethlehem Steel workers have a petition pending with the Advisory Board, and I have urged them to 

approve it. But I believe Congress needs to amend the Special Exposure Cohort process in light of the way the law is being implemented. To that end, I have introduced legislation with Senator 

Schumer, and I urge the committee to consider this legislation as 

you move forward after this hearing. 

PREPARED STATEMENT OF SENATOR OBAMA

Senators Kennedy and Enzi, let me thank and commend you for 

holding this very important hearing to assess whether the men and 

women who developed our Nation’s nuclear weapons program are 

being treated fairly by the Federal Government as they apply for 

benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). 

As you are well aware, there remain many questions as to 

whether those Americans who qualify for benefits under EEOICPA 

are having their claims processed fairly and in a timely manner. 

I first began hearing about the plight of Illinois’ former nuclear 

weapons workers shortly after taking office in 2005. I have since 

met with many workers and their families, and my office has written dozens of letters to, and held numerous meetings with, the 

agencies responsible for implementation of this program. We have 

sought to clarify agency processes and decisions, encourage program changes to benefit claimants, and secure thousands of pages 

of classified and previously unreleased documents in an effort to 

69 

bring greater understanding to the often secret and undocumented 

work these claimants performed. 

To date, hundreds of Illinois’ former nuclear weapons workers 

have received compensation under EEOICPA, although my advocacy has been for the most part limited to helping workers of the 

Dow Chemical Corporation (Madison), General Steel Industries 

(Granite City), Blockson Chemical (Joliet) and Allied Chemical 

(Metropolis, IL) plants, which have the majority of claims among 

Illinois’ 29 EEOICPA-covered sites. 

My advocacy for these nuclear weapons workers has at times required me to give voice to the frustrations claimants have had with 

the agencies who administer EEOICPA, including Health and 

Human Services (HHS), the National Institute for Occupational 

Safety and Health (NIOSH), Department of Labor (DOL), and the 

Department of Energy (DOE). Although I recognize the very difficult and complex task these agencies have, improvements are necessary to EEOICPA because legitimate questions have been raised 

about the program’s fairness and efficiency. 

For the most part, the frustrations expressed to me by claimants 

and their families are related to the timeliness with which claims 

are processed and the fact that many do not have confidence in the 

scientific decisions on which their claims are based. 

With regard to timeliness, dozens, if not hundreds, of workers at 

the former Dow Chemical Plant in Madison, IL still have not received a final decision on their claim. Most of the claimants began 

filing their claims in 2001, nearly 7 years ago. Currently, most of 

these claims are still undergoing the process of dose reconstruction, 

as performed by NIOSH. 

Six years is far too long to wait for a claim to be decided in any 

compensation program. In this case, when we are dealing with the 

men and women who performed the dangerous work required to 

develop our Nation’s nuclear weapons program and who now are elderly and sick, getting decisions made in a reasonable timeframe 

is critical to this compensation program’s credibility. 

I encourage the committee to explore legislation which would impose a statutory deadline for when a final decision must be rendered on each claim. For example, the committee should explore 

the feasibility of imposing a 12-month time limit on the dose reconstruction process. Under this time limit, the Department of Labor 

would have 90 days to forward a claim to NIOSH, which would 

then have 365 days to complete a dose reconstruction and return 

the claim to the DOL, which would then have 90 days to review 

NIOSH’s recommendation and provide a final decision to the claimant. 

Under such a time constraint, the entire EEOICPA claims process would be completed within 18 months. If the Department of 

Labor and NIOSH could not process a claim within this time period, the claim should be paid immediately. In those cases where 

a delay is caused by the claimant, usually because they are trying 

to obtain medical records or verification of their employment at an 

EEOICPA-covered facility, the claim should be re-opened and the 

time limit extended as needed. 

70 

With respect to concerns that final claims decisions have not 

been made through a process in which claimants can have confidence, I offer the following recommendations: 

1. The committee should investigate a legislative remedy which 

will provide compensation to claimants on either a sliding scale 

based on Probability of Causation (POC) scores or based on years 

of employment. 

As of September 27, 2007, 11,911 claims had a completed dose 

reconstruction (DR) with a POC less than 50 percent, with 4,427 

claims having a POC between 30 percent and 49 percent. Given the 

numerous questions that exist about how the dose reconstruction 

process is conducted—including questions about the weight DOL 

and NIOSH give to worker testimony and the recent finding that 

DOL claims examiners often ignore worker testimony provided in 

DOL worker interviews—the POC scores assigned to claims should 

be viewed with a healthy amount of skepticism. 

Congress could act to compensate claims as a percentage of the 

POC score. For example, claimants with a score of 42 percent 

would receive 42 percent of $150,000. As of September 27, 2007, 

1,875 cases had a POC score between 40 and 49 percent. It is difficult to understand from a scientific basis how one claimant with 

a POC score of 50.1 percent deserves $150,000 but a claimant with 

a score of 49 percent deserves no compensation at all. As Advisory 

Board on Radiation and Worker Health member and occupational 

pulmonary physician Dr. James Lockey noted in a June 4, 2007 letter to me: 

‘‘This all or nothing dividing line will continue to be a source 

of contention and should be revisited. The process should not 

put workers in conflict with each other or with the various 

Federal agencies and Congress who are trying to be responsive.’’ 

Congress could also examine whether compensating workers 

based on years of employment would be a more credible compensation method. As Dr. Lockey explains: 

‘‘It is my suggestion that a simpler and less contentious 

award compensation process for nuclear production workers be 

based on the years employed in the nuclear production industry within potential radiation exposure job tasks. The monetary award should be based on cumulative years worked and 

executed in a linear fashion.’’ 

2. The Congress should act to address the lack of transparency 

with which claimant decisions are made. For example, any information used to deny a claim or an SEC petition should be made 

automatically available to the claimant and or petitioner. Additionally, if the final decision about whether a claim should be approved 

or denied rests on classified information that cannot be made available to the claimant, there should be a presumption in favor of approving the claim. 

After recently listening in on the ‘‘close-out’’ interviews of claimants as conducted by Department of Labor personnel, the Advisory 

Board auditor, Sanford, Cohen and Associates (SC&A), issued a report which says in part that auditors found ‘‘potential for inconsistency and arbitrariness in how concerns are researched, commuVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 S:\DOCS\38648.TXT DENISE
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nicated and resolved.’’ This finding supports concerns I have had 

for some time that testimony given by workers as to the conditions 

they worked under, the chemicals, metals or other substances they 

worked with, processes used, or safety measures implemented, is 

not factored into decisions by Labor or NIOSH staff in a systematic 

and transparent way. 

3. Numerous concerns still exist about the Advisory Board on Radiation and Worker Health, including the balance of member perspectives on the Board. The legislation establishing EEOICPA addresses this issue: 

‘‘The President shall make appointments to the Board in consultation with organizations with expertise on worker issues in 

order to ensure that the membership of the Board reflects a 

balance of scientific, medical and worker perspectives.’’ 

Unfortunately, the President has ignored congressional intent on 

this subject, and questions remain as to whether or not the board 

is stacked against claimants. Currently, there are 12 members of 

the Advisory Board; six members have a science perspective, four 

maintain a worker perspective and only two represent a medical 

perspective. 

An October 2007 GAO report entitled ‘‘Energy Employees Compensation—Actions to Promote Contract Oversight, Transparency 

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

Strengthen Program,’’ notes in part: 

The process by which board members are appointed is also 

not clearly established or uniform, presenting a challenge to 

the advisory board’s independence . . . neither the act nor the 

executive order implementing the act specifies criteria for 

nominating and selecting board members . . . members of 

Congress and the claimant community have raised concerns 

about potential influence by Labor and NIOSH to reduce the 

number of worker representatives in order to shape the outcome of the board’s decisions on SEC petitions. These concerns 

were precipitated by internal Labor correspondence in 2005 

that characterized the advisory board as being essentially a 

worker advocacy organization and noted that a change in membership would be critical to counteracting the pressure to add 

more classes to the SEC. 

I urge the committee to consider potential legislative remedies to 

correct the imbalance on the Advisory Board and the resulting perception that this imbalance affects the fairness of the Board’s decisions. 

In summary, I applaud the committee for holding a hearing on 

this important issue and believe that additional hearings would be 

useful to determine what steps we can take in the Congress to improve the efficiency, transparency, and credibility of EEOICPA. 

Thank you. 

PREPARED STATEMENT OF SENATOR SCHUMER

Thank you for the opportunity to address this issue. I appreciate 

the opportunity to share my views on the administration of 

EEOICPA. This is an incredibly important program, and I am disappointed that for many claimants it has not lived up to the manVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 S:\DOCS\38648.TXT DENISE
72 

date which Congress gave the Administration: that all claims must 

be decided in a claimant-friendly manner. I am hopeful there will 

be changes that will make the administration of this program more 

efficient, timely, and just. 

The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) was created by Congress to compensate cold 

war-era laborers who became sick as a result of their work at nuclear production facilities directly managed or financed by the Federal Government. This law was designed to bring justice to these 

unsung heroes and find the swiftest, fairest way to speed compensation to victims of radiation exposure. 

The administration of this program has a clear record—it is not 

being administered in a claimant-friendly manner. It’s time that 

this administration step up to the plate and bring these cold war 

heroes the compensation they deserve. 

I have spoken with and received correspondence from many 

former workers and the spouses and children of former workers 

who were employed at such facilities all across New York State. 

They have told me heartbreaking stories of debilitating cancers, 

and have expressed frustration over the program’s seemingly endless bureaucracy, and delays. In many cases, the application process has lasted 5, 6, even 7 years—often beyond the litespans of the 

claimants and their spouses. This excessive review period and bureaucratic process confound the law’s purpose and its spirit. 

The administration spends unwarranted amounts of time reviewing applications and arriving at decisions on site profiles. Dose reconstructions are frequently based on faulty or insufficient data 

and special exposure cohort status claims are locked in seemingly 

endless review. Sick and dying workers are denied their due compensation because of these problems in calculation and administration. 

This program is delaying justice for an increasingly aging population of cold war heroes. It mires decent people in a bureaucracy 

that is insensitive to the pain and hardship these claimants have 

already suffered for their country. 

I have several kind suggestions for putting the program back on 

track. 

First, expedite dose reconstructions and bring answers to the 

families of cold war heroes. so compensation can be delivered with 

all due speed. The lengthy waits for compensation are unacceptable, particularly as aging claimants and their spouses are, sadly, 

already beginning to pass away. In these cases, and particularly 

under Part E of the EEOICPA, justice deferred is justice never conferred. Delay and bureaucracy are enemies of a claimant-friendly 

process, and more efforts must be made to streamline the review 

process and speed compensation. 

Second, promptly expand the number of classes to the Special 

Exposure Cohort (SEC). This designation was created by Congress 

because of deficiencies in data for sites where records are insufficient to document the full breadth of radiation exposure workers 

have experienced. Ill workers and their hopeful families are being 

denied compensation for their sacrifices not because they aren’t deserving of justice, but because the administration of the program 

is inaccurately assessing the probability of the government’s reVerDate Nov 24 2008 13:22 Mar 03, 2009 Jkt 035165 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 S:\DOCS\38648.TXT DENISE
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sponsibility for their diseases. Since there is no way to verify 

whether comparisons between similar plant sites are accurate, 

there is no way to determine whether proxy data is claimantfriendly or not, and therefore cannot meet the legal requirement 

under EEOICPA that the dose reconstructions are also claimantfriendly. It is the clear intent of the EEOICPA to permit Special 

Exposure Cohort (SEC) status in these situations, and all evidence 

points to administration practices that deny and delay the determination of this status at sites where the lack of evidence should 

give every benefit of the doubt to claimants who worked at these 

sites. That tendency should be reversed immediately so justice can 

be assured. 

Every effort must be made by the administration to pare down 

bureaucratic delays and missteps that are denying compensation to 

our cold war heroes. These men and women need their government’s assistance, and their families need to be assured that their 

country acknowledges their sacrifices and is deeply grateful to 

them. Thank you for your consideration. 

PREPARED STATEMENT OF SENATOR SALAZAR

Thank you, Chairman Kennedy and Ranking Member Enzi, for 

holding this hearing today. The issue of whether the Energy Employee Occupational Injury Compensation Program (EEOICP) is 

claimant friendly is critically important and timely. Reports from 

the Office of the Ombudsman for the EEOICP Part E, and past 

congressional hearings have revealed considerable claimant dissatisfaction with the Program and a concerted effort to deny compensation to many workers. I hope that the evidence collected 

through this hearing will inspire swift congressional action to grant 

compensation to our cold war heroes and enact necessary Program 

reforms. Although I am not a member of this committee, I look forward to working with you to ensure that these goals are met. 

The Energy Employee Occupational Injury Compensation Program Act (EEIOCPA) was enacted to compensate American workers (and certain survivors) who put their health and life on the line 

to serve our Nation during the cold war. These brave men and 

women worked in laboratories and factories in the United States 

building nuclear weapons that led to the fall of the former Soviet 

Union. Sadly, many of these cold war Veterans were exposed to 

toxic and carcinogenic properties that made them very sick. 

But while thousands of workers are successfully applying and receiving benefits, too many face incredible obstacles as they try to 

demonstrate that they qualify for benefits. Some workers may not 

be able to prove that their cancers were caused by their work in 

nuclear weapons facilities, whether due to the lack of records or 

other problems that make it difficult or impossible to determine the 

dose of radiation they received. To protect these workers, Congress 

designated a Special Exposure Cohort (SEC), a provision in the 

EEOICPA to enable workers to receive benefits if they suffered 

from one of the specified cancers known to be linked to radiation 

exposure. 

From 1951 to 1988, approximately 23,000 individuals worked at 

the Rocky Flats plant located 16 miles Northwest of Denver, Colorado. Throughout the years, many Rocky Flats workers processed 

74 

plutonium, one of the most dangerous substances that exists, and 

crafted it into triggers for atomic weapons. Through five decades, 

Rocky Flats workers were exposed to toxic and carcinogenic properties, including beryllium, radiation and other hazards. 

On February 15, 2005, Rocky Flats workers filed a SEC petition 

to receive compensation. After 3 years of patiently and diligently 

making their case to the Federal Government, the Advisory Board 

on Radiation and Worker Health made its recommendation on 

June 12, 2007. The Board recommended SEC inclusion for only 

those plutonium workers employed at Rocky Flats from January 1, 

1959 to December 31, 1966. In other words, the Board voted (6 to 

4) to exclude from the SEC all pre-1966 workers other than plutonium workers and all post-1966 Rocky Flats workers. This should 

limit the number of Rocky Flats workers who receive benefits to 

approximately 2,000 to 3,000 workers. Secretary Leavitt recently 

approved the Board’s recommendation. 

The men and women who worked at Rocky Flats served a critical 

role in a program deemed essential to our national security by a 

succession of Presidents and Congresses. Several of these workers 

have died without receiving the healthcare or compensation they 

deserve. In fact, a combination of missing records and bureaucratic 

red tape has prevented many Rocky Flats workers from accessing 

benefits. Our government failed these workers when they maintained shoddy, inaccurate, and incomplete records. 

Furthermore, after years of research and review, many questions 

remain about the reliability of data and the ability of National Institute of Occupational Safety and Health to accurately measure 

exposure to toxic materials. On March 1, 2007, I introduced S. 729, 

The Rocky Flats Special Exposure Cohort Act. S. 729 would extend 

SEC status to workers employed by the Department of Energy or 

its contractors at Rocky Flats according to the stringent requirements of the act. 

With the SEC designation, a Rocky Flats worker suffering from 

1 of the 22 listed cancers can receive benefits despite the inadequate records maintained by the Department of Energy and its 

contractors. I urge this Congress to act now to stop impeding Rocky 

Flats workers’ ability to receive the compensation they deserve. 

The cold war veterans of Rocky Flats have waited long enough. 

In conclusion, I am eager to work with members of this committee to develop and implement much needed reforms to the 

EEOICP. I also urge the Senate to swiftly take up and pass S. 729 

to grant compensation to Rocky Flats who put their health and life 

on the line for the Nation. 

PREPARED STATEMENT OF REPRESENTATIVE MARK UDALL

Chairman Kennedy and members of the committee, thank you 

for allowing me to submit this statement for the record of this important oversight hearing. 

The Energy Employees Occupational Injury Compensation Program Act (EEOICPA) is very important for Colorado because thousands of Coloradans worked at Rocky Flats—a nuclear-weapons 

site near Denver that has now been cleaned up and closed—as well 

as some other sites covered by the law. Many of them developed 

75 

beryllium disease, cancer, or other ailments from being exposed to 

beryllium, radiation, or other hazards. 

Since coming to Congress in 1999, I have worked with our colleagues on both sides of the aisle and both ends of the Capitol to 

enact a compensation program for them and others with similar 

problems from their work at other sites in the nuclear-weapons 

complex. 

After the Clinton administration, led by Secretary of Energy Bill 

Richardson, reversed the position of previous Administrations— 

that claims for compensation were to be resisted—and asked Congress to establish a compensation program, a number of us introduced legislation to accomplish that objective, and was among 

those who strongly supported the EEOICPA provisions that were 

finally enacted into law. 

However, shortly thereafter a new Administration—that of our 

current President—came into office. And, regrettably, it has not 

been as strong an advocate of the program as its predecessor. 

To put it bluntly, the Bush administration inherited this program, and since then they have both mismanaged it and tried to 

undermine it. 

The part run by the Department of Energy (DOE) was so mismanaged that a Republican-controlled Congress took it away from 

DOE and assigned it to the Labor Department (which already ran 

the rest of the program) in 2004. Before that transfer, DOE had 

spent over $90 million for administrative costs in 4 years, but only 

about 5 percent of the over 25,000 claims filed had been completely 

processed. 

In connection with that transfer, to make the program more 

claimant-friendly, the Defense Authorization Act of 2005 created 

the Office of the Ombudsman for a 3-year period to provide information to claimants and potential claimants on the benefits available under the new Part E of the Act. 

Under that legislation, the independent Ombudsman was assigned four primary responsibilities: 

• to provide information to claimants, potential claimants, and 

other interested parties on the benefits available under the new 

Part E and the requirements and procedures applicable to the provision of those benefits; • to make recommendations to the Secretary of Labor regarding 

the location of resource centers across the country, which claimants 

can contact for assistance in the acceptance and development of 

Part E claims; 

• to issue an Annual Report to Congress detailing the number 

and type of complaints, grievances and requests for assistance received by the Office of the Ombudsman that year, and an assessment of the most common difficulties encountered by claimants and 

potential claimants during that year; and 

• to make recommendations for improving the administration of 

Part E of EEOICPA. 

The authorization for the Ombudsman’s office expired on October 

1, the start of the current fiscal year. During the markup of the 

Defense Authorization bill for fiscal year 2009 in the House’s 

Armed Services Committee, I won adoption of an amendment to extend the office and expand its authority so it can more fully serve 

76 

claimants. And during its floor debate, the Senate adopted an 

amendment by Senator Levin, on behalf of Senator Kennedy, to extend the Ombudsman’s authority. 

Along with other members of the Armed Services Committee, I 

expect to be a conferee on the authorization bill, and will work to 

have the conference report provide for keeping the Ombudsman in 

business. 

And, with Representative Tom Udall of New Mexico and several 

others—including Representatives Slaughter of New York, Wamp 

of Tennessee, Whitfield of Kentucky, and Hastings of Washington— 

I am sponsoring legislation (H.R. 2255) to make the office permanent and to expand its duties. 

Under our bill, the Ombudsman would be directed: 

1. To assist individuals in making claims; 

2. To provide information on the benefits available and on the requirements and procedures applicable to the provision of such benefits; 

3. To act as an advocate in appropriate instances, as determined 

by the Ombudsman; 

4. To make recommendations to the Secretary of Labor regarding 

the location of resource centers for the acceptance and development 

of claims for benefits; and 

5. To carry out such other duties as the Secretary of Labor shall 

specify. 

The bill would also authorize the Ombudsman to inform Congress regarding changes in administrative practices mitigate difficulties encountered by claimants and potential legislative changes 

which may be appropriate to mitigate such difficulties. And it 

would authorize the Ombudsman to hire or contract for supplies or 

services, including the services of experts in relevant disciplines, 

including health physics, medicine, industrial hygiene, and toxicology, as the Ombudsman may consider appropriate. 

However, as I mentioned, right now the Ombudsman’s office is 

somewhat in legal limbo because its formal authorization has 

lapsed. 

I understand the Labor Department is prepared to make arrangements to enable it to continue its work, at least for a while, 

while Congress considers the question of its future status. I hope 

that happens, and I hope that the Labor Department and the rest 

of the Administration will work with us to assure its continuation 

with additional authority. But I am somewhat wary, because of 

past experiences. 

I say that because there is strong evidence to suggest that not 

very long ago the Labor Department led an effort to distort an important part of the overall EEOICPA program—the provision for 

adding additional workers to the Special Exposure Cohort through 

an unbiased, science-based review of petitions. 

Fortunately, that behind-the-scenes effort was exposed when the 

press, and then the House’s Judiciary Committee, came into possession of an OMB ‘‘passback’’ document that revealed what was 

afoot. 

As I read it, the document showed that the Administration 

seemed ready to put concern about dollars above concern for sick 

cold war veterans. 

77 

And that was not just my interpretation. Representative 

Hostettler, the Republican from Indiana who chaired the Judiciary 

Committee’s subcommittee that looked into the matter, said that 

the OMB document ‘‘sets out a plan to . . . base SEC status approvals on budget concerns rather than the scientific basis mandated by law.’’ In my opinion, he hit the nail right on the head. 

Since that public rebuke, the Administration has repeatedly stated that it has abandoned the idea of cost-containment as an approach to implementing the law. 

I hope that is true, but I have to say that I remain concerned 

that the Administration is prepared to treat the nuclear-weapons 

workers like the wounded veterans at Walter Reed. Nobody in the 

Defense Department planned to inflict harm on wounded soldiers— 

the problem was negligence and indifference—and, at its best, the 

OMB document suggested the same with regard to at least part, 

and perhaps all, of the EEOICPA program. But while Secretary 

Gates insisted on accountability for the Army’s failures at Walter 

Reed, I am not convinced that the Administration will insist on the 

same degree of accountability when it comes to EEOICPA. So, Mr. 

Chairman, I think that the attitude of Congress—including this 

committee—should be the same as President Reagan’s attitude toward agreements with the Soviets—trust, maybe, but verify for 

sure. 

Accordingly, I applaud you for holding this hearing. I will carefully review the testimony that will be presented and look forward 

to working with you and our colleagues in the Congress, to take 

whatever steps are needed—including further legislation to the extent that is necessary or desirable—to improve this very important 

compensation program. 

In that connection, I want to call your attention to legislation 

pending in this body that specifically deals with the case of the 

people who worked at Rocky Flats. 

It is S. 729, the Rocky Flats Special Exposure Cohort Act. Introduced by Senator Salazar, it is the Senate companion to H.R. 904, 

my bill of the same name. Both bills would amend the compensation act so as to include as members of the Special Exposure Cohort all those who were employed at Rocky Flats by DOE or a DOE 

contractor or subcontractor for an aggregate of at least 250 work 

days before January 1, 2006. 

The result would be to help provide the act’s benefits to any of 

those workers who contracted a radiation-linked cancer specified in 

the act after beginning employment at Rocky Flats. 

As you know, before a worker who is suffering from a covered 

cancer but not included in the special exposure cohort can receive 

benefits, it must be established that the cancer is as likely as not 

to have resulted from on-the-job exposure to radiation. That sounds 

like a reasonable requirement—and it would be appropriate for 

Rocky Flats if we had adequate documentation of radiation exposures for the years when it was producing nuclear-weapons components as well as for the more recent time when DOE and its contractors have been working to clean it up and prepare it for closure. However, in fact there were serious shortcomings in the monitoring of Rocky Flats workers’ radiation exposures and in the necessary recordkeeping—to say nothing of the slowness of the current 

78 

administrative process for making the required determinations concerning links between exposure and employment. 

So there is a risk that a significant number of Rocky Flats workers who should be able to benefit from the act will not obtain its 

benefits in a timely manner or will be denied them entirely. Our 

legislation would prevent this miscarriage of justice, by recognizing 

that Rocky Flats workers have been plagued by the same kinds of 

administrative problems that entangled workers at some other locations—problems that were addressed through inclusion in the act 

of the provisions related to the ‘‘Special Exposure Cohort.’’ 

The Rocky Flats workers have sought to be added to the cohort 

through the petition process provided for in the act—the same process that would have been the target of the cost-containment program the Administration clearly contemplated but now says it has 

renounced. Their petition was strongly supported by the entire Colorado delegation, in both the Senate and the House of Representatives, as well as by Governor Ritter. Regrettably, however, it was 

approved only in small part, leaving most of the afflicted former 

Rocky Flats workers still confronting the daunting challenge of trying to obtain compensation through the labyrinthine process that 

you will be exploring at today’s hearing. 

Secretary Leavitt’s decision on the Rocky Flats petition is under 

administrative appeal, but regardless of the outcome of that appeal 

there remains the question that is the subject of the hearing—Is 

the Program Claimant Friendly for Our Cold War Heroes? 

My answer is that it is not—or at least not sufficiently. I look 

forward to learning what your witnesses will have to say and what 

this committee will conclude after hearing their testimony. 

In conclusion, I would just reiterate what you already know, Mr. 

Chairman and members of the committee—this compensation program is not just about money. It is about the government’s honor 

and the honor of our country. The nuclear-weapons workers served 

America well, and honor demands that they be well served in return. 

Thank you for the opportunity to submit this statement. 

PREPARED STATEMENT OF MARK AYERS, PRESIDENT, THE BUILDING AND

CONSTRUCTION TRADES DEPARTMENT, AFL–CIO, WASHINGTON, DC. 

Mr. Chairman and members of the committee, on behalf of the Building and Construction Trades Department, AFL–CIO, its affiliated unions and their members, we 

are seeking your assistance in redressing a wrong that continues to plague current 

and former construction workers employed at Department of Energy (DOE) nuclear 

facilities. 

Many of these workers have, through no fault of their own, been denied benefits 

under the Energy Employees Occupational Illness Compensation Program Act. 

A central issue for these workers is the lack or inadequacy of radiological exposure records for their period of employment at the facilities. It was the responsibility 

of DOE and its contractors to require and maintain such records. Now many workers with radiological cancers find themselves in the untenable position of trying to 

prove radiation exposure when the necessary records either do not exist or are inadequate. 

Although the law provides for a system to address this issue, the administrative 

process is slow, complicated, cumbersome and often subject to an insensitive bureaucracy at the Departments of Labor (DOL) and Health and Human Services 

(DHHS). Both the DOL Ombudsman as well as an independent study commissioned 

by NIOSH documents many of these failures. 

79 

1See House Committee on Judiciary, Subcommittee on Immigration, Border Security & 

Claims, United States House of Representatives, 109th Congress, ‘‘The Energy Employee Occupational Illness Compensation Program Act: Are We Fulfilling the Promise We Made to These 

Veterans of the Cold War when We Created the Program.’’ 

The numbers speak for themselves. Out of a total of 85,676 claims filed for radiological cancer compensation under ‘‘Part B’’ of the program, only 20,362 have been 

paid. The Department of Labor has rejected nearly 70 percent of the claims. 

While there is no question that the system and the bureaucracy can be improved, 

the fundamental problem is the law itself. 

Subpart B of EEOICPA provides Federal compensation of $150,000 (plus future 

medical benefits) for radiological cancers, beryllium disease, and silicosis. Subpart 

B is administered by DOL but requires the DHHS/NIOSH to: 

(1) Conduct individual dose reconstructions for every claim to determine if radiation could be the cause of the illness claimed by the worker; or 

(2) Absent a dose reconstruction, determine whether the claimant should be included in a Special Exposure Cohort (SEC) which presumes that radiation caused 

1 or more of 22 different cancers, and pays claimants if they have one of these cancers. Dose reconstructions are very difficult, if not impossible, where exposure records 

are either missing or inadequate. Under current law and regulations, the burden 

of proof lies with the claimant, rather than the government, even though the government was responsible in the first place for producing and maintaining the 

records. 

Special Exposure Cohort: Congress recognized that many workers employed in 

nuclear weapons facilities were either unmonitored or inadequately monitored for 

occupational exposure to ionizing radiation and therefore faced an insurmountable 

hurdle of establishing their radiation dose to prove their claim for cancer. Moreover, 

there was ample evidence that radiation exposure records were missing, incomplete, 

unreliable or altered. This is particularly true for construction workers. 

The act therefore created ‘‘Special Exposure Cohorts (SEC)’’ by which, claimants 

from SEC sites are not subject to dose reconstruction requirements and are presumed to have had the radiation dosage that caused their compensable cancer. 

By legislative mandate, the original act designated four sites as SEC: three Gaseous Diffusion Plants (Portsmouth, Paducah, Oak Ridge) and the Amchitka Island 

Test Site. All the workers at these sites had to prove was (1) they worked at the 

sites for a specified period of time and (2) they had one of the compensable Part 

B diseases. 

In addition, the act included provisions that allowed claimants to petition to become members of an SEC. Unfortunately, the petition process is slow, cumbersome 

and hamstrung by bureaucratic inertia. Moreover, there is evidence of political tampering in an effort to retard the petition process.1

Thus far only 22 such petitions have been approved covering a limited number 

of workers, and many of these were the result of specific legislative initiatives and 

congressional pressure. 

We believe that the time has come for the Congress to remedy this unfair situation by amending the act to fix the problems inherent in the SEC process. The same 

presumptions that underlie the original SECs, should apply to all otherwise qualified workers. 

Specifically, we recommend that Subpart B be amended to streamline and simplify the SEC process by providing: 

(a) Workers who meet the following criteria would be automatically included in 

an SEC if they were (1) engaged in covered employment in a covered facility; (2) 

had a covered illness; (3) worked more than 250 days in a covered facility; and (4) 

their radiation monitoring records cover less than 75 percent of the employment period. 

(b) For workers not covered under the above, the process of petitioning for inclusion in the SEC should be simplified by: (1) setting a deadline of 90 days for DHHS/ 

NIOSH to review petitions; (2) simplifying and reducing the need for review of 

DHHS/NIOSH decisions by the DHHS/NIOSH Advisory Committee; (3) establishing 

that NIOSH may incorporate groups of workers into the SEC so that this does not 

have to be done on a worker-by-worker basis; (4) applying the same decisionmaking 

used for the Gaseous Diffusion Plants that currently are included in the SEC. 

The effect of section (a) will be to include within the statutory SEC determination 

workers from major nuclear weapons facilities such as Savannah River, Hanford, 

Los Alamos, Oak Ridge (in addition to the already included Gaseous Diffusion Plant 

Workers) and the Nevada Test Site. 

80 

* Submitted on Behalf of: Deb Jerison; Janet B. Goode; Carolyn Jones; David Goode; Jim 

Goode; Bob Neff; Virginia Hudgens; Jeff Hudgens; Melissa Webb; Fred Radwanski, PE., Boulder 

City, Nevada; Eric Parker, Former USW Union President and Local Coordinator for Mound/ 

WHPP; and Paige Gibson, Former Health and Safety Officer for USW, Nurse and Local Coordinator for Mound/WHPP. 

In addition, we believe that there should be five technical amendments designed 

to: (1) cover certain illnesses linked to hazardous exposures that are peculiar to 

DOE but that were not covered in the act; (2) pay for diagnostic evaluation by experts in occupational medicine where a health problem appears to be linked to DOE 

work; (3) provide additional independent assistance to claimants so that the process 

becomes less burdensome; and (4) cover certain subcontractor employees that were 

inexplicably excluded from the original legislation and (5) change the date of eligibility for benefits from the current requirement, which is the date when the application for compensation is filed to the date when the covered illness was diagnosed. 

The EEOICPA was enacted with the best of intentions. For those workers and 

their families fortunate enough to qualify for benefits, it has been a godsend. However, far too many who are no less deserving have been left out and denied. The 

amendments we have suggested would go far in redressing this egregious situation 

for those who, in many cases, gave their lives to protect this country during, the 

darkest days of the cold war. 

Towards that end we urge this committee to consider our request for this proposed legislation. 

PREPARED STATEMENT OF SYLVIA DODSON, KNOXVILLE, TN 

I would like to submit a statement for the hearing. I would like to request that 

when there is no living spouse that the surviving children be compensated under 

Part E. Our father died of lung cancer and bone cancer and cancer in every organ 

of his body. He worked 41 years at Oak Ridge K–25. His many years of exposures 

to toxins and chemicals and uranium took his life at the age of 63. Compensating 

his surviving children is the least our government should do. No one can put a price 

on a person’s life. We know these years of exposure are what shortened his life and 

caused his death. Compensating the surviving children would help give us some sort 

of closure of the horrible memories of pain and suffering he went through. 

Thank you, surviving daughter’s of J.O. Dodson—Sylvia Dodson and Bettye Kaye 

Richeson. 

PREPARED STATEMENT OF DEB JERRISON, YELLOW SPRINGS, OH* 

In 2005 my mother asked me to help her with her EEOICPA claim as the process 

had become too complicated for her. Over the last 21⁄2 years, I have helped other 

claimants as a volunteer. During this time I have noticed many problems and feel 

that EEOICPA has moved very far from the original intent of Congress. Here are 

some of my observations. 

1. The OCAS–1 form, which all claimants must sign to have their dose reconstruction progress from NIOSH to DOL, is missing statutory language. 

When a claimant requested a time extension to look for further information she was 

told this was not possible and that if she did not sign the OCAS–1 within the time 

limit her claim would be administratively closed. DOL told her that the only option 

was to close her claim and reopen it if she found more information. This was inappropriate and inaccurate. The statute clearly states the steps to be followed for 

claimants to be allowed a time extension. This language needs to be on the OCAS– 

1 form so claimants know of this option. 

2. Notice given by NIOSH for signing the OCAS–1 may not be long 

enough. One claimant received a letter dated Oct. 3 from NIOSH which stated that 

they needed a signed copy of the OCAS–1 in their office by Oct. 17 or the claim 

would be administratively closed. This claim had been put on hold while the claimant waited on Freedom of Information Act (FOIA) requests and she is still waiting 

for the information. Previously her claim had been erroneously administratively 

closed. This is very distressing to claimants. 

3. The program is cumbersome, complicated, and difficult for claimants 

to navigate, particularly in the case of the elderly, ill, or disabled. Claimants 

give up on the program because they can not understand it or do not have the energy or special knowledge needed to pursue their claims. The Resource Centers are 

a great idea, but are very limited in what help they can offer claimants. Congress 

set a 2 percent fee cap on the initial claim to protect claimants from unethical attorneys, but instead this has severely limited the number of attorneys or advocates 

81 

available to help claimants. The Part E ombudsman’s office is helpful. Part B now 

has an ombudsman, Denise Brock, who can help claimants but she is overwhelmed. 

The need for claimant assistance is great. Even a simple claim takes many hours 

of work and special knowledge to bring to fruition. More help for claimants is needed and the process needs to be simplified. 

4. Although delays in processing claims can be a problem, a more insidious problem is that NIOSH and DOL are not investigating the claims thoroughly enough. Claims are often rushed through, relying on incomplete monitoring records and mathematical calculations. NIOSH does not talk to co-workers, 

investigate the papers from a site, or look for additional information on an individual worker. NIOSH prefers mathematical calculations to hard evidence on an individual worker. If a worker was a production worker doing the same thing with 

the same materials as other production workers this may work. But it does not work 

at all for research personnel, material control workers or others who worked in 

small groups or alone. 

One claimant worked with every chemical that came into Mound Laboratory. She 

opened all containers and measured all chemicals out into packaging. She had been 

given no mask or protective clothing to wear. She contracted two cancers, one of 

which was a rare soft tissue cancer. DOL was provided with an extensive list of materials she handled, the buildings and dates she handled them and documentation 

linking the chemicals to her cancer from reliable chemical databases including HazMap and still turned down the claim. She died in April 2007, minus one breast, one 

lung and one leg. Because her claim was not approved and her medical insurance 

was exhausted, her family is left with huge medical bills. 

One claimant provided NIOSH with documentation from personal records, written 

in the 1950s, showing he had analyzed all radioactive and non-radioactive materials 

that came into Mound. NIOSH would not give this evidence credence and told the 

claimant they would only use official monitoring records. 

It is difficult, if not impossible, to get NIOSH to give someone dose for radionuclides that are not listed as being 1 of the 12 radionuclides NIOSH lists as being 

at Mound, even with proof from Mound’s own documents. When questioned about 

this, NIOSH told the claimant that the worker’s dosimetry badge would have picked 

up all radiation and he was covered this way. This would only be true if the radionuclide gave off the same types of radiation that the worker was being monitored 

for. 

5. Burden of Proof is a problem for many people. Many workers died long 

ago. Hospitals and doctor’s offices have closed. It is very hard to locate old medical 

records. Older records were written to a different standard than current records. As 

Chronic Beryllium disease (CBD) was not widely known for years, it may not be recognizable in older records, even with the pre-1993 criteria. A DOL claims examiner 

told one claimant that since the claimant’s specific medical finding could be interpreted either for his cancer or CBD, DOL would interpret it as the cancer instead 

of CBD, although the finding was ‘‘consistent with CBD.’’ The worker had died in 

1960. 

Another issue is the records that DOE was supposed to maintain. One claimant 

had all 11 of her husband’s chest X rays destroyed by DOE a year and a half after 

she opened her claim. These X rays would have provided invaluable information on 

whether or not the worker had CBD. We’ve all heard of the 435 boxes of Mound 

records that were buried in a radioactive waste dump. In these boxes were laboratory notebooks that one claimant needed to assist with her claim. As mentioned before, bioassay and dosimetry records are missing. 

Claimants who are looking for DOE documents to assist with their claims do not 

have access to these documents. Although NIOSH has access, they will not look for 

the documents, even when claimants request specific documents. Claimants can and 

do file Freedom of Information Act (FOIA) requests, but because the records are in 

such disarray, the cost to claimants is often prohibitive. One claimant just received 

a cost estimate of $45 an hour for Legacy Management to search for documents 

needed for a claim, with no assurance that the records were in the boxes to be 

searched. Another claimant was given an estimate of over $30,000 for a list of 

chemicals she handled while doing her job. There is no archive of documents that 

claimants have access to. Records at the NARA Federal Records Center in Dayton 

Ohio are not available to claimants, although records at other NARA centers are. 

So if claimants cannot afford the exorbitant search fees charged for FOIA requests 

they cannot get the information they need. 

6. The playing field is unlevel. DOL/NIOSH has access to all the records and 

claimants have very limited access as described above. 

Part E claimants do not have access to the Site Exposure Matrix (SEM) that DOL 

uses to determine whether or not to pay a claim. Although there is a public version 

82 

of the SEM online, it is merely a list of chemicals used somewhere at the site at 

some time since the site opened. This means claimants must remember the exact 

name of the chemicals they used, what building or location they were in at the time 

and what the date was. (Try remembering the name or chemical composition of the 

dish detergent you used 20 years ago!) When a claimant advocate complained about 

this to a DOL employee recently she was told that if claimants had access to the 

same information DOL did they could ‘‘tailor’’ their claims to the information. The 

converse is true; because claimants do not have access to the Part E matrices, there 

is no way to monitor to make sure DOL is using the material appropriately. 

There also needs to be a clear statement from DOL on what proof, studies, etc., 

are needed to create an acceptable link between an illness and a chemical exposure 

and the steps a claimant should use to make the link available to claimants. I have 

been told that DOL can only use NIH’s Haz-Map data base. While this is a good 

starting point, it does not list all occupational illnesses. This can, and has, caused 

valid claims to go unpaid. 

7. NIOSH’s method of overestimating probability of causation (POC) 

causes confusion and agony to claimants. I have been told that NIOSH overestimates probability of causation on claims that they feel will come in at under 45 

percent. If they feel a claim will come in above 45 percent or the claimant has two 

or more cancers they will do an actual estimate. This is a problem because it is very 

upsetting to claimants to have a POC of 44 percent for one cancer and then when 

the claimant gets an additional cancer the POC drops to 20 percent for both cancers. 

Claimants do not understand this and feel that NIOSH is playing with the numbers. 

It also makes it very hard for a person working the claim because it is impossible 

to know how many more rem you need to find or where the claim really stands. 

NIOSH is unable, or unwilling, to give claimants a firm, or ballpark, number of how 

many rem it would take to put the claim at the 50 percent or better mark. 

The draft dose reconstructions do not give the claimants the POC, although 

NIOSH must compute this to determine whether a claim hits the 50 percent mark. 

If a claimant wants to know how close he is to the magic 50 percent he has to input 

numbers in tiny print at the end of the draft dose reconstruction into NIOSH’s online IREP program. This is beyond many claimants. 

Also, the POC seems to jump all over the place from one dose reconstruction to 

the next. One claimant had a first dose reconstruction that came in with a POC 

around 18 percent with 44 rem. Several things changed and the second dose reconstruction came in at 44.7 percent with 126 rem. The third dose reconstruction had 

a POC of 38 percent with 159 rem. How could the POC drop as the rem increased? 

When questioned about this, NIOSH said the second dose reconstruction was in 

error. This does not generate trust in NIOSH’s calculations and methods. 

8. Some of the decisions NIOSH makes are more arbitrary and capricious 

than scientifically based. NIOSH will not supply claimants with written documentation or bases for decisions. One claimant sent a report to NIOSH stating the 

worker had gotten a piece of hot stainless steel in his eye. NIOSH told the claimant 

that since the word ‘‘hot’’ was not in quotation marks this meant heat rather than 

radioactivity. When questioned, NIOSH referred the claimant to OTIB–0022 ‘‘Guidance on Wound Modeling for Internal Dose Reconstruction,’’ which did not address 

this issue. When the claimant directly asked for what this decision was based on 

NIOSH declined to answer. When the claimant supplied NIOSH with an official document, MLM–1996 (OP) ‘‘Design Features of Mound Laboratory’s Medical Decontamination Facility,’’ which stated that Mound could not measure radioactivity in 

a wound at the time of the incident, NIOSH did not respond. 

NIOSH was, and still may be, converting reps to rems incorrectly. In the 1950s 

neutron dose was at times reported in reps. When a claimant asked about this, 

NIOSH stated there was a one to one conversion between reps and rems. The 1950 

AEC publication, ‘‘Control of Radiation Hazards in the Atomic Energy Program,’’ 

states that for neutrons and protons one rep is the equivalent of 10 rem. The claimant supplied NIOSH with a copy of the document but NIOSH did not respond to 

questions on whether this has been changed. No changes were made to the dose reconstruction in question. 

NIOSH revises incident reports written years ago to say what they think they 

should have said rather than what was reported. A claimant sent NIOSH an incident report which stated, ‘‘his next move was to replace the gauntlets, thereby preventing further contamination of the lab.’’ NIOSH says the incident report is incorrect and should have said, ‘‘to prevent further potential contamination.’’ Because of 

this they gave the claimant no dose for the radionuclide in question. 

The computer program that NIOSH uses to determine tritium dose measurements 

at Mound gives tritium measurements prior to the date that tritium was monitored 

at the site. This mistake can actually help claimants, as it allows for missed dose. 

83 

At Mound, Health Physics logbooks report many air reversals and ventilation 

problems in glove boxes and buildings which spread radiation through the building. 

When a claimant sent copies of these to NIOSH she was told that these would not 

have added any dose to the claim since the worker was not mentioned by name. 

When she asked that the logbooks be used for all applicable claimants who were 

referenced by name, NIOSH said that they could not do this because of a ‘‘privacy 

issue.’’ 

NIOSH denies that there are gaps in the dosimetry/bioassay record although 

claimants remember bioassay samples being taken whose results are not in the 

record. Since NIOSH does not have records, it does not assign dose. This results in 

inaccurate dose reconstructions. A claimant clearly remembered an incident in 1950 

when her husband was sent home from work and remained off for several days. His 

dosimetry records indicate that he did not work in his lab for 11 days following the 

incident. While off work, the worker drove urine and feces samples to Mound each 

day and was sent home, presumably because the samples were too hot to allow his 

return. MLM–177 ‘‘Monthly Health Information Report’’ outlines Mound’s policy on 

exposure for this time period. It states that a worker with a count higher than 

12c/min/50ml is removed from his job and put to work in an area where the possibility of exposure is more remote, or he is barred from the operating area altogether. 

It says nothing of what would cause a person to be removed from the site for several 

days. There is no surviving record of these samples. 

When there are gaps in the workers’ monitoring records, not only do they not receive dose for the materials they were working with but they also do not receive 

‘‘missed dose.’’ One worker was a research physicist at Mound in the early years. 

His monitoring records are missing at least 24 months of bioassay/dosimeter readings. The papers he wrote during this time indicate he was working with radionuclides. NIOSH states that he was obviously working only with non-radioactive 

materials at this time and will not assign dose or missed dose for this time which 

results in an inaccurate dose reconstruction. 

9. Can GAO investigate how much money is being spent on salaries to administer this program as opposed to how much is being spent to compensate workers? The percentage of claimants who are being paid compared to 

the number of cases filed is abysmally low. DOL and NIOSH keep adding additional 

staff to administer the program. It seems like it would be a better idea to spend 

the money paying claimants, since this was the intent of the law, rather than paying staff. 

PREPARED STATEMENT OF DANIEL YAEGER, WORKER, U.S. DEPARTMENT OF ENERGY

FERNALD SITE

I worked at the U.S. Department of Energy’s Fernald site from 1987 until 2005. 

In 2006, I was diagnosed with kidney cancer. Kidney cancer is a recognized radiation cancer. I am now struggling with the financial expense of this disease. I filed 

a claim with the U.S. Department of Labor (DOL) under the Energy Employee Occupational Illness Compensation Program Act (EEOICPA) in 2006. The claim was 

referred to the National Institute for Occupational Safety & Health (NIOSH) for a 

dose reconstruction. NIOSH issued a dose reconstruction report that concluded the 

radiation dose I received from working at Fernald was not sufficient to be ‘‘at least 

as likely as not’’ the cause of my kidney cancer. To be eligible for benefits, the dose 

reconstruction has to find that a worker received a radiation dose above the causation threshold of ‘‘at least as likely as not’’ (51 percent). 

NIOSH does not have complete and accurate monitoring records for the Fernald 

site to reliably conduct a dose reconstruction. As a result NIOSH primarily based 

its dose reconstruction on models and what it represents are claimant favorable assumptions. NIOSH doesn’t want to acknowledge its lack of monitoring records because it doesn’t want Fernald workers to be classified as a Special Exposure Cohort 

(SEC). Workers in a SEC who incur a specified cancer, qualify for compensation 

without the completion of a radiation dose reconstruction or determination of the 

probability of causation. The act allows for the classification as an SEC if there is 

inadequate information to estimate a worker’s radiation dose. A petition was filed 

with the DOL to designate certain Fernald workers as a SEC. NIOSH has reviewed 

the Fernald SEC petition and has recommended that it be denied. The matter is 

now pending before the Advisory Board on Radiation and Worker Health. If this petition were approved, I would be eligible for benefits. 

Over 20 other sites already have classes of workers that are included in a SEC. 

Fernald does not have any more reliable monitoring data than these sites and its 

workers should not be treated differently. Many NIOSH officials who are responsible for the dose reconstruction program worked at Fernald and were responsible 

84 

for radiological safety and monitoring. There is a real conflict of interest for those 

who were responsible for the Fernald monitoring program to be the same individuals who are responsible for reviewing a petition that cites deficiencies in the program. This conflict cannot be avoided by contracting the task to a third party. In 

its evaluation of the Fernald SEC petition, NIOSH concluded there is sufficient and 

accurate monitoring data to estimate doses for Fernald workers. As discussed below, 

this is simply not the case. I urge you to represent Fernald workers interest in the 

SEC petition process. 

The dose reconstruction process has become a job welfare program for bureaucrats. Taxpayers don’t need to fund a large bureaucracy to engage in junk science 

to deny benefits to ill workers. The money funding this bureaucracy should be channeled to the workers. The dose reconstruction is fundamentally flawed and inefficient and should not be the basis for determining whether to help ill workers. This 

expensive dose reconstruction program should be eliminated and all workers should 

be treated as a cohort. Specifically, if a DOE worker develops a specified radiation 

illness, the worker should be eligible for benefits. Additionally, medical insurance 

should be part of the benefits provided to ill workers similar to what is provided 

to retirees. Ill workers face great difficulties in obtaining and affording medical coverage. I urge you to sponsor legislation that would make these changes. The savings 

from eliminating the expensive dose reconstruction program should make this legislation revenue neutral. 

Thank you for your help and assistance. 

RESPONSE TO QUESTIONS OF SENATORS KENNEDY, MURRAY, BROWN, AND REID

BY MALCOM D. NELSON

SENATOR KENNEDY

Question 1a. Many claimants mistrust the government’s motives in administering 

EEOICPA. They fear that the government would rather deny, than grant, claims. 

The 2006 Annual Report by your office found that claimants have difficulty finding 

appropriate medical experts on their own, yet they are hesitant to use the Department of Labor Division of Energy Employees Occupational Illness Compensation 

Program medical staff because of concern that they will not review claimant’s files 

objectively. How do you think the Department of Labor can increase claimants’ trust 

in its medical staff? 

Answer 1a. To offset the mistrust (hesitation) that many claimants have with respect to utilizing medical experts provided by DEEOIC, claimants ought to be afforded more information concerning this process. 

Question 1b. Do you think that providing contact information for qualified medical 

professionals who are not affiliated with the Department would help claimants find 

the medical resources they need? 

Answer 1b. Providing claimants with contact information for qualified medical 

professionals who have no affiliation with the Department would assist claimants 

in finding the medicare resources that they need. 

Question 2. Dr. Silver noted in his testimony that the Advisory Board on Radiation and Worker Health provides important independent oversight for Part B 

claimants and suggests a similar mechanism be created for Part E. Do you think 

this is a good idea? Why or why not? Dr. Silver’s other suggestions include giving 

grants to claimant advocacy groups and qualified medical experts in order to assist 

claimants from rural areas who have great trouble getting skilled assistance. Is this 

a good idea? Why or why not? 

Answer 2. Because my responsibilities involve Part E, rather than Part B, I only 

have a cursory appreciation of the operations of the Advisory Board on Radiation 

and Worker Health. Thus, I do not have a sufficient basis with which to answer 

whether a similar mechanism should be created for Part E. 

As our annual report and my written testimony indicate, the Office of the Ombudsman receives requests for assistance from claimants who find the claims process challenging and burdensome. Some of these claimants would benefit from advocacy to assist them with developing their claims and providing medical and legal 

experts when necessary. Nevertheless, before responding to the specific question of 

whether it is a good idea to give grants to claimant advocacy groups and qualified 

medical experts I would prefer to have the opportunity to review the specifics of 

such a proposal. 

85 

Question 3. By all accounts, the Part E Ombudsman program has been a success 

in providing help and guidance for Part E claimants. Is there any reason the ombudsman’s authority should not be expanded to cover Part B? 

Answer 3. This decision clearly rests with Congress. Therefore, the Office of the 

Ombudsman will not take a position on this matter. 

Question 4a. Do you think the Ombudsman’s office needs more power? 

Answer 4a. As the Office is currently structured, we have successfully performed 

our mission. However, access to claimant records which are in the possession of the 

Program Agency would enhance the efficiency of the Ombudsman’s Office and would 

save claimants both time and money, 

Question 4b. In addition to giving basic advice, should you be entrusted with an 

advocacy role when you see a languishing need? 

Answer 4b. Based on my experience as Ombudsman for Part E of EEOICPA, it 

is clear that many of the claimants who contact this Office want an advocate who 

is on their side and one who will zealously represent their interests, as would a private attorney. Because many claimants face difficulty finding attorneys/representatives who are willing to represent them, some have indicated that they would like 

the Ombudsman to assume a more forceful role. 

In general, however, an Ombudsman’s office has three essential characteristics: 

independence; impartiality; and confidentiality. See Coalition of Federal Ombudsmen and Federal Interagency ADR Working Group Steering Committee, A Guide for 

Federal Employee Ombuds, Section C (May 2006); American Bar Association, Standards for the Establishment and Operation of Ombuds Offices (February 2004). Consequently, if the office were entrusted with an advocacy role, I would envision that 

advocacy remaining consistent with the responsibility to remain independent, impartial and confidential. 

SENATOR MURRAY

Question 1. Does the office of the ombudsman have the resources it needs to assist 

in providing a timely ‘‘claimant friendly’’ process? If not, what is needed? 

Answer 1. With our existing resources, the Office of the Ombudsman has managed to carry out its mission. Nevertheless, the uncertainty that surrounded the status of the office, which had been scheduled by statute to sunset and was continued 

by the Secretary of Labor administratively in October 2007 pending congressional 

action to continue the Office legislatively, impacted the Office in a number of ways, 

including our ability to engage in long term planning. The extension of the Office 

should provide us with needed consistency, and will better enable us to maintain 

the level of staffing necessary to expeditiously serve claimants. 

However, as we currently operate, if a claimant wants us to review the documents 

associated with their claim, the claimant either has to provide us with the relevant 

documents or (in cases where the claimant does not have the relevant documents) 

contact their claims examiner to obtain copies, and then provide the copies to us. 

This is often time consuming and sometimes results in claimants incurring the costs 

for mailing, faxing, duplicating, etc. It would be faster and easier for claimants if 

the Office of the Ombudsman could obtain these documents directly from the Program Agency. 

Question 2. Should the Ombudsman’s authority be expanded to include Part B 

claims? What resources would be needed to make this necessary? 

Answer 2. The Office of the Ombudsman is committed to serving claimants and 

potential claimants, and consequently, will carry out its mission consistent with the 

authority granted by Congress. Because the decision as to whether to expand the 

Ombudsman’s authority to include Part B claims rests with Congress, the Office of 

the Ombudsman will not take a position on this matter. 

However, there are sonic issues, including some very technical medical and radiation issues that are unique to Part B. If the authority of this Office is expanded 

to include Part B claims, it will be necessary to ensure that the Office has the capabilities to address these unique Part B issues. 

Question 3. In your written testimony you state that some applicants are frustrated with differing eligibility requirements and constraints in Part ‘‘B’’ and ‘‘E.’’ 

In your opinion would it make the claims process more efficient for claimants and 

those reviewing claims to have these requirements standardized? 

Answer 3. Standardizing the eligibility requirements of Parts B and E will not 

necessarily make the process more efficient. Claimants frustrated by the different 

86 

eligibility requirements and constraints under Part B and Part E generally see this 

as an issue of ‘‘fairness,’’ rather than an issue of efficiency. 

Question 4. Under Part ‘‘E’’ the burden to establish entitlement of benefits is on 

the claimant who, as you and others have testified, is often elderly or suffering from 

debilitating diseases. It is concerning that some of the most deserving are not receiving benefits due to their inability to navigate the claims process or afford a personal attorney to do so for them. What other options do these people have? 

Answer 4. For many claimants the only option is to navigate the system on their 

own. In fairness, the Department of Labor does offer assistance to claimants in 

proving their claims. However, many claimants believe that the offered assistance 

is not sufficient, or does not go far enough. Moreover, many claimants regard this 

as an adversarial process and thus do not trust the government (DOE/DOL) to aggressively pursue their claim for benefits. 

There are some lay representatives who have experience with this Program, and 

in some areas of the country there are groups, often former workers, who will assist 

claimants, however there are not very many. 

The Office of the Ombudsman can offer advice and suggestions, but we do not 

have the personnel (or the authority) to engage in the ‘‘footwork,’’ i.e., the research, 

the writing of letters, the contacting of the claims examiners, that is often necessary 

to support a favorable claim. Thus, in the end, the only option available for many 

claimants is to navigate the system on their own or with the assistance of family 

members. 

SENATOR BROWN

Question 1. In terms of the program budget, what is the relative ratio of the cost 

of administering the program versus the amount of money paid out in compensation? 

Answer 1. The Office of the Ombudsman does not possess the information needed 

to answer this question. The Office of the Ombudsman is an independent office, 

originally created by Congress in 2004 and continued by the Secretary of Labor administratively in 2007, with a three-fold mission: 

• to provide information to claimants and potential claimants on the benefits 

available under Part E and the requirements and procedures applicable to the provision of such benefits; 

• to make recommendations to the Secretary of Labor regarding the location of 

resource centers; and 

• to issue an Annual Report to Congress no later than February 15 of each year 

detailing the number and type of complaints, grievances and requests for assistance 

received by the Office and an assessment of the most common difficulties encountered by claimants and potential claimants. 

In light of our mission, we do not possess the information required to answer this 

question. 

Question 2. Can you speak to the OMB memorandum sent to the Department of 

Labor regarding the ‘‘cost containment options?’’ According to the GAO, one of the 

proposed cost containment options was to, ‘‘require administration clearance of special exposure cohort determination.’’ Can you speak to this memo and if any of its 

five recommendations have been implemented in any small way? 

Answer 2. No, I am not in a position to speak to this memo. The issues surrounding this memo arose prior to my appointment as Ombudsman. Although, as 

stated in the Office’s Annual Report for 2006, this Office received inquiries from 

claimants regarding this memo, the Office’s knowledge of this memo is limited to 

what we read in newspapers and other publicly available sources. 

Question 3. What is the current backlog of cases? At the current rate, and if no 

more cases are opened, how long would it take to offer a ruling on all the current 

cases? 

What is the backlog in Ohio? Is there a plan to address the backlog? 

Is there an overabundance of backlog cases specific to any one Ohio site, in other 

words, is there any one site in Ohio that has much larger backlog than another? 

Answer 3. While the Program Office provides statistics addressing the claims filed 

at various sites, see http://www.dol.gov/esa/regs/compliance/owcp/eeoip/Statistics/WebPages, I do not have sufficient information, such as how long these claims 

have been pending, with which to fully evaluate backlogs. 

87 

Question 4. Can you outline the subcontracting process, including what criteria 

are used to determine whether to subcontract, when and how contractors are evaluated? Please also include as an attachment to your answers a Request for Proposal. 

Answer 4. The Office of the Ombudsman does not have any contracts or subcontracts. Moreover, to my knowledge, the Office of the Ombudsman has not utilized 

any contracts or subcontracts (other than purchase orders for furniture, equipment, 

etc., for the Office, which do not appear to be the concern of your question). 

Question 5. Currently, are there any NIOSH officials that previously worked for 

or did work related to the Fernald site in Ohio? Have any of those NIOSH officials 

who worked at Fernald been a part of any discussion concerning the Fernald SEC 

petition, the Fernald Site Profile, or a Fernald worker’s dose reconstruction? 

Answer 5. The Office of the Ombudsman does not possess the information needed 

to address this question. (Part B-related information.) 

SENATOR REID

Question 1a. In your testimony, you note that the Office of the Ombudsman does 

not have investigatory authority and it cannot advocate on an individual claimant’s 

behalf. You also state that a lack of legal representation and expert assistance ‘‘exacerbates’’ the problems with establishing their entitlement to Part E compensation. 

If you, as the Claimant Ombudsman for the Department of Labor were given the 

authority to act as an advocate on behalf of these claimants individually, how would 

you exercise this authority? Specifically, please identify what you could do for them, 

how you would do it, and how claimants would benefit. 

If you were given investigatory authority and the power to act as a claimant’s advocate, how would it change the speed of the process? 

Answer 1a. A full discussion on how the Office of the Ombudsman would exercise 

the authority to advocate on behalf of claimants requires additional research and 

thought, and would depend on the specifics of the ‘‘authority’’ given to the Office. 

Nevertheless, here are some general concepts: 

• Traditionally, an ombudsman not only works for the resolution of particular 

issues, but also, where appropriate, makes recommendations for the improvement 

of the general administration of the entity they serve. Thus, overall the Ombudsman 

would advocate for fairness in the process. 

• Consistent with the ‘‘traditional’’ role of an Ombudsman, the Office would not 

substitute as someone’s lawyer, representative, or counselor. 

• The Office would provide information, advice and assistance to claimants. 

• The Office would evaluate claims objectively and would advocate for change or 

relief when the facts support the claim. 

The question also asks how claimants would benefit from granting the Ombudsman the authority to act as an advocate. In my opinion, even though the Office 

would not act as a private attorney, claimants in general would benefit from the 

‘‘fruits’’ of our advocacy. 

Question 1b. If you were given investigatory authority and the power to act as 

a claimant’s advocate, how would it change the speed of the process? 

Answer 1b. Nevertheless, a mere grant of investigatory authority would not 

change the overall speed of the process. While probing from the Ombudsman may, 

in certain instances, prompt action on a case, I do not believe that merely having 

investigatory authority will change the speed of the process. 

Question 2a. Your testimony discusses complaints from claimants that they cannot fully establish their claims because the relevant records have been either lost 

or destroyed by the DOE contractor by whom they were employed. You also state 

that follow through on locating or finding replacements for missing evidence is beyond the capabilities of the claimant. 

What could the Ombudsman’s office do about this were it to have additional powers to act as an advocate for individual claimants? 

Answer. 2a. Quite honestly, in situations where relevant records have been lost 

or destroyed there is very little that anyone can do. When confronted with such situations, the Ombudsman’s office tries to offer suggestions on where to look for relevant evidence, and of course, we will continue to do that. However, where records 

do not exist, either because they are lost, were never kept, or destroyed, there really 

is not much that anyone can do to recreate or find these records. 

Question 2b. What specifically in the law or DOL’s rules make a claimant responsible for producing evidence, which is typically in the possession of the Department 

88 

of Energy or a contractor, in order to establish the claimant’s entitlement to compensation under Part E? 

Answer 2b. 42 U.S.C. Section 7384v. Assistance for claimants and potential 

claimants specifies the program’s responsibility to assist claimants in securing evidence. The provisions provides: 

(a) ASSISTANCE FOR CLAIMANTS—The President shall, upon the receipt of a 

request for assistance from a claimant under the compensation program, provide assistance to the claimant in connection with the claim, including— 

(1) assistance in securing medical testing and diagnostic services necessary to establish the existence of a covered beryllium illness, chronic silicosis, or cancer; and 

(2) such other assistance as may be required to develop facts pertinent to the 

claim. 

(b) ASSISTANCE FOR POTENTIAL CLAIMANTS.—The President shall take appropriate actions to inform and assist covered employees who are potential claimants under the compensation program, and other potential claimants under the compensation program, of the availability of compensation under the compensation program, including actions to— 

(1) ensure the ready availability, in paper and electronic format, of forms necessary for making claims; 

(2) provide such covered employees and other potential claimants with information and other support necessary for making claims, including— 

(A) medical protocols for medical testing and diagnosis to establish the existence of a covered beryllium illness, chronic silicosis, or cancer; and 

(B) lists of vendors approved for providing laboratory services related to such 

medical testing and diagnosis; and 

(3) provide such additional assistance to such covered employees and other potential claimants as may be required for the development of facts pertinent to a claim. 

Claimant’s burden to establish entitlement is outlined at 42 U.S.C. Section 7385s– 

4(c) (governing living worker claimants) which provides in pertinent part that: 

(c) OTHER CASES.—(1) In any other case, a Department of Energy contractor 

employee shall be determined for purposes of this part to have contracted a covered 

illness through exposure at a Department of Energy facility if— 

A. 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; and 

B. it is at least as likely as not that the exposure to such toxic substance was 

related to employment at a Department of Energy facility. 

42 U.S.C. Section 7385s–2(a) (governing survivor claimants) which provides in 

pertinent part that: 

CATEGORIES OF COMPENSATION.—The amount of contractor employee compensation under this part for the survivor of a covered DOE contractor employee 

shall be determined as follows: 

(1) CATEGORY ONE.—The survivor shall receive the amount of $125,000, if the 

Secretary determines that— 

(A) the employee would have been entitled to compensation under section 

7385s–4 for a covered illness; and 

(B) 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 death of such employee. 

(2) CATEGORY TWO.—The survivor shall receive the amount of $150,000, if 

paragraph (1) applies to the employee and the Secretary also determines that there 

was an aggregate period of not less than 10 years, before the employee attained normal retirement age (for purposes of the Social Security Act), during which, as the 

result of any covered illness contracted by that employee through exposure to a toxic 

substance at a Department of Energy facility, the employee’s annual wage did not 

exceed 50 percent of the average annual wage of that employee, as determined 

under section 7385s–2(a)(2)(A)(ii). 

(3) CATEGORY THREE.—The survivor shall receive the amount of $175,000, if 

paragraph (1) applies to the employee and the Secretary also determines that there 

was an aggregate period of not less than 20 years, before the employee attained normal retirement age (for purposes of the Social Security Act), during which, as the 

result of any covered illness contracted by that employee through exposure to a toxic 

substance at a Department of Energy facility, the employee’s annual wage did not 

exceed 50 percent of the average annual wage of that employee, as determined 

under section 7385s–2(a)(2)(A)(ii). 

89 

In addition, the relevant provision of the implementing regulations is: 

Section 30.111 (20 CFR Section 30.111) which provides that: 

a. Except where otherwise provided in the act and these regulations, the claimant 

bears the burden of proving by a preponderance of the evidence the existence of 

each and every criterion necessary to establish eligibility under any compensable 

claim category set forth in § 30.110. Proof by a preponderance of the evidence means 

that it is more likely than not that the proposition to be proved is true. Subject to 

the exceptions expressly provided in the act and regulations in this part, the claimant also bears the burden of providing to OWCP all written medical documentation, 

contemporaneous records, or other records and documents necessary to establish 

any and all criteria for benefits set forth in these regulations. 

b. In the event that the claim lacks required information or supporting documentation, OWCP will notify the claimant of the deficiencies and provide him or her 

an opportunity for correction of the deficiencies. 

c. Written affidavits or declarations, subject to penalty for perjury, by the employee, survivor or any other person, will be accepted as evidence of employment 

history and survivor relationship for purposes of establishing and may be relied on 

in determining whether a claim meets the requirements of the act for benefits if, 

and only if, such person attests that due diligence was used to obtain records in support of the claim, but that no records exist. 

d. A claimant will not be entitled to any presumption otherwise provided for in 

these regulations if substantial evidence exists that rebuts the existence of the fact 

that is the subject of the presumption. Substantial evidence means such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion. 

When such evidence exists, the claimant shall be notified and afforded the opportunity to submit additional written medical documentation or records. 

Subsections 30.112, 113, and 114 of the regulations further discuss the burden of 

proof and the kinds of evidence necessary to meet those burdens. Taken together, 

these regulations make it clear that the burden of proof ultimately has been placed 

on the claimant. 

RESPONSE TO QUESTIONS OF SENATOR MURRAY BY JAMES MELIUS, M.D., DRPH 

Question 1. In your testimony, you expressed concern about the timeliness of the 

SEC petition evaluation process. In your experience, what is the average time it 

takes to complete a petition review by the Advisory Board? 

Answer 1. The time taken by the Advisory Board to conduct a SEC petition review 

depends on the technical effort required to complete that review. For sites where 

NIOSH recommends that the petition be granted, the review time is usually short. 

Often, the petition review and recommendation can be completed at the meeting 

where the petition evaluation report is presented by NIOSH. 

If the situation is more complex and NIOSH is not recommending that the petition be granted (or large portions of the petition be granted), the Board’s review can 

last much longer. In these cases, the Board requests that our contractor conduct a 

detailed technical review of issues relevant to the petition, and then the Board and 

its contractor work with NIOSH to resolve any disagreements between our evaluation of these technical issues and that of NIOSH (or its contractors). Resolution of 

these issues is time consuming and can often take several months, particularly for 

the large DOE facilities. 

Question 2. Do Advisory Board members get information from DOE sufficiently 

in advance of meetings so that they can review the information before having to 

make a decision? In your opinion, should all parties, including the petitioners (workers and survivors who filed the petition) get all reports prior to the Advisory Board 

meeting? 

Do petitioners regularly have the opportunity to address the Board and ask questions about the Board’s decisionmaking process? 

Answer 2. In general, DOE and NIOSH have tried to get information to the Board 

before meetings in order for the Board to have sufficient time to review the information before taking action. In many instances, the Board has refused to take actions 

without adequate time to review documents and other necessary information. However, there have been significant difficulties for the petitioners in obtaining information prior to the Board taking action on an issue. Many of the documents generated 

by the Board’s contractor or by NIOSH and utilized by the Board for decisionmaking 

are required to undergo Privacy Act review before they are released to the general 

public (some also require security review). This review can delay the availability of 

the documents for several weeks or longer. Recently, the Board has worked with 

NIOSH to establish a mechanism to better track documents needing review and to 

90 

ensure that these documents are transmitted to the petitioners and other interested 

parties prior to any action by the Board. 

In general, the petitioners have the opportunity to address the Board and ask 

questions at any meeting where their petition is being considered. They are also invited to participate in most work group meetings where their petition is being discussed. However, many of these meetings take place at sites distant from the DOE 

facility in question, and the petitioners often have to participate by conference call. 

The complex technical nature of the discussions also makes participation in these 

meetings difficult. The petitioners often represent diverse work groups at a facility, 

and the petitioners are often not knowledgeable about other parts of the facility or 

processes being discussed at a particular meeting. The process would be greatly improved by more active outreach to the petitioners and other interested parties including efforts to obtain more input on the specific technical issues under consideration in the review of that petition. 

Question 3. In your written testimony you expressed concern about claimant input 

in the dose reconstruction process, noting that their comments often go ignored and 

are not fully utilized. In your opinion, how would the claims process be improved 

if their input was included and valued? 

What advice would you give NIOSH and DOL in seeking out and including worker knowledge in their evaluation process? 

Answer 3. The claims process for many claimants would be greatly improved by 

more consideration being given to input from the claimants. The current claims 

process is largely dependent on the use of exposure records and monitoring data. 

Often complete records for an individual’s career are not available, and there are 

many other deficiencies in these records (inadequate monitoring methods and techniques, etc.) When individual records are not available, NIOSH relies on various 

methods to estimate exposures including the use of exposure records from other 

works and indirect exposure estimates. Such records can be useful, but they miss 

the great variability in individual work activity in the DOE complex. Individual 

workers have a much better understanding of their actual work environment and 

factors that could have impacted their exposures. The improved utilization of such 

information would greatly improve the dose reconstruction process by helping to 

evaluate their exposures during times when records are missing (or otherwise inadequate) and by pointing out additional sources of exposure (e.g., exposure incidents). 

In order to better ascertain information from the claimants, I would advise 

NIOSH to revamp their interview process. Rather than relying on a single interview 

to cover all sites, NISOH should develop site specific interviews that ask information relevant to that DOE site and give the claimant greater opportunity to provide 

information on their work exposures, particularly during times when records are not 

available. The current ‘‘generic’’ site questionnaire is very confusing to many of the 

claimants. The interviewers should be better trained and should focus on just a few 

specific sites rather than attempting to cover all sites. This interview process should 

be supplemented by better follow-back by the person doing the dose reconstruction 

to obtain additional clarification that will help them complete the dose reconstruction. 

This process should be supplemented by a more active outreach program to obtain 

input from former workers and their representatives about working conditions at 

each site and other factors that could affect exposures throughout the site. Unfortunately, the credibility of the program has been damaged by NIOSH’s reliance on 

former DOE site health physics staff as the major source of information about each 

site and the lack of opportunity for workers from each site to have meaningful input 

into the documents and procedures used for dose reconstruction at that site. This 

imbalance needs to be corrected. 

Question 4. In your experience as a member of the Advisory Board, how prevalent 

do you think the removal of dosimetry badges was for nuclear workers covered 

under this program? 

Should NIOSH, DOL, and the Advisory Board take the removal of badges into 

consideration when evaluating a petition? If so, how much weight should such information receive in the decisionmaking process? 

Given that many records are incomplete or inaccurate, how should agencies determine whether or not badges were removed? What role should the claimant play in 

the determination? 

Once confirmed, what role should this information play in the determination process for each agency? 

91 

In your experience as the Chair of the Hanford Working Group, how prevalent 

was this practice at Hanford? How should this information influence the Board’s 

consideration of SEC petitions for Hanford workers? 

Answer 4. Circumstances where workers were not properly monitored for radiation exposures (such as removal of badges) must be taken into account when evaluating a petition or performing an individual dose reconstruction. The weight given 

to such reports will depend on many factors including the extent of the possible exposure (how frequent, how high was the potential exposure, etc.), the ability to appropriately estimate that exposure based on other information, and other factors. If 

NIOSH is going to estimate the exposure based on other information, then NIOSH 

must be sure that their estimate adequately accounts for radiation dose that the 

claimants may have experienced. I have serious concerns about whether many of the 

methods utilized by NIOSH are appropriate for use in individual dose reconstruction. A claimant should never be penalized for the failure of DOE or its contractor 

to properly monitor their exposures. 

In some instances, the practice of removing badges may be recorded in the monitoring records or apparent from discrepancies in those records. However, in most instances, the initial report of such practices would be made by the claimants or petitioners. The reports by petitioners or claimants who experienced or witnessed these 

practices should be given considerable weight when considering such information. 

To the extent that other workers or supervisory personnel can corroborate this information is also helpful but should not be required (many of these situations occurred 

over 50 years ago). In follow up, NIOSH also must take steps to try to obtain further information about these practices from DOE and other workers. The petitioners 

or claimants should not be burdened with having to make the considerable effort 

that is required to access and review DOE records. 

If the reports of removing badges are credible, then this information must be 

taken into account when considering the petition. If the practice was not just isolated to a few instances, then NIOSH would not be able to adequately perform individual dose reconstruction for that group of workers or process and should grant the 

SEC petition unless NIOSH can demonstrate that individual dose reconstruction 

can be done with sufficient accuracy based on other monitoring or exposure information. 

In our Advisory Board public meetings in Hanford, the Board heard many reports 

of instances where Hanford workers performed work involving very high radiation 

exposures and were not wearing their dosimetry badges. This was apparently a common practice for those situations, and supervisory personnel were aware or had approved the removal of the badges. These reports were confirmed by several people 

in attendance at the public meeting. In evaluating the SEC petition for Hanford, 

the Advisory Board work group will obtain further information about such practices 

at the Hanford site in order to determine the extent of badge removal and will need 

to take that practice into account when evaluating the petition. While it is too early 

to reach any firm conclusions about this practice, what I have learned to date at 

Hanford certainly raises serious doubts about the ability of NIOSH to conduct individual dose reconstructions for these groups of workers. 

[Rocky Mountain News, October 4, 2007] 

SHORTCOMINGS FOUND IN REVIEW PROCESS FOR ILL NUCLEAR WORKERS— 

OUTSIDE STUDY SAYS FEDERAL OFFICIALS IGNORED EVIDENCE

(By Laura Frank) 

Some former Rocky Flats employees and others who have sought Federal compensation for ill nuclear weapons workers have long suspected that the government 

ignored information they provided to prove their cases. 

A draft of the first outside review of that process says their suspicions may be 

right. 

Investigators listened in as government officials conducted three final interviews 

with workers or their survivors. 

This ‘‘close-out interview’’ gives claimants their last chance to make sure the government has all the necessary information to determine their past exposures to toxic 

or radioactive substances. The interview is also the first time workers or their survivors see the information compiled by the government as it assesses whether a 

claimant’s work caused the illness. 

In two of the three observed interviews, claimants provided significant information to government officials. The officials promised to consider it, but never did, the 

review found. 

92 

The draft report, presented Tuesday to the White House Advisory Board on Radiation and Worker Health, says the process has ‘‘serious gaps’’ and ‘‘does not ensure’’ 

claimants concerns are fully addressed. It’s up to the board now to decide how to 

proceed. 

‘‘It appears to the claimants that the government is ignoring the evidence they’re 

submitting,’’ said Terrie Barrie, of Craig, a national advocate for ill workers like her 

husband George, who helped build atomic bomb triggers at the former Rocky Flats 

plant northwest of Denver. 

‘‘If they have to develop new procedures because of this, they’re going to have to 

reopen cases all over again,’’ she said. 

Wanda Munn, who heads the board subcommittee that received the report, said 

she could not predict what may happen next. No decision will be made before the 

group’s next meeting on Dec. 6. 

Investigators observed the interviews with the permission of the claimants and 

the National Institute of Occupational Safety and Health. 

The report reads: ‘‘The evidence is that the underlying data were not reviewed 

in one case, and no attempt was made to obtain the relevant reports in the other.’’ 

The report notes that in one case, the final decision letter actually predated the 

close-out interview, ‘‘despite the fact that the employee provided detailed new information during the close-out interview.’’ 

‘‘What are the chances we just happened to pick three cases at random and bam, 

bam, this happened? ’’ said John Mauro, project manager for SC&A, the contractor 

in charge of the investigation. 

He said the presidential advisory board will now have to determine whether the 

problems are pervasive. 

Tell us what you think of the most recent review of compensation for ill nuclear 

weapons workers. Are you a former nuke worker—or a survivor—who has applied 

for Federal compensation under the Energy Employees Occupational Illness Compensation Program Act, or EEOICPA? Tell us your experiences with the process 

here, including your name and the site where you worked. 

Tell us your story. 

[Whereupon, at 11:37 a.m., the hearing was adjourned.] 

Æ