Testimony 

Before the Committee on Energy and 

Natural Resources, U.S. Senate 

United States General Accounting Office 

GAO

For Release on Delivery 

Expected at 10:00 a.m. EST 

Tuesday, March 30, 2004 ENERGY EMPLOYEES 

COMPENSATION 

Obstacles Remain in 

Processing Cases Efficiently 

and Ensuring a Source of 

Benefit Payments 

Statement of Robert E. Robertson, Director 

Education, Workforce, and Income Security Issues 

GAO-04-571T 
www.gao.gov/cgi-bin/getrpt?GAO-04-571T.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Robert E. 

Robertson at (202) 512-7215 or 

robertsonr@gao.gov. 

Highlights of GAO-04-571T, testimony 

before the Committee on Energy and 

Natural Resources, U.S. Senate 

March 30, 2004

ENERGY EMPLOYEES COMPENSATION

Obstacles Remain in Processing Cases 

Efficiently and Ensuring a Source of 

Benefit Payments 

During the first 2 1⁄2 years of the program, ending December 31, 2003, Energy 

had completely processed about 6 percent of the more than 23,000 cases that 

had been filed. Energy had begun processing of nearly 35 percent of cases, 

but processing had not yet begun on nearly 60 percent of the cases. 

While Energy got off to a slow start in processing cases, it is now processing 

enough cases that there is a backlog of cases waiting for review by a 

physician panel. Energy has taken some steps intended to reduce this 

backlog, such as reducing the number of physicians needed for some panels. 

Nonetheless, a shortage of qualified physicians continues to constrain the 

agency’s capacity to decide cases more quickly. Consequently, claimants will 

likely continue to experience lengthy delays in receiving the determinations 

they need to file workers’ compensation claims. 

GAO estimates that more than half of the cases associated with Energy 

facilities in 9 states that account for more than three-quarters of all Subtitle 

D cases filed are likely to have a willing payer of benefits. Another quarter of 

the cases in these 9 states, while not technically having a willing payer, have 

workers’ compensation coverage provided by an insurer that has stated that 

it will not contest these claims. However, the remaining 20 percent of cases 

lack willing payers and are likely to be contested, which means that many of 

these cases may be less likely to receive compensation. Because of data 

limitations, these percentages provide an order of magnitude estimate of the 

extent to which claimants will have willing payers. The estimates are not a 

prediction of actual benefit outcomes for claimants. 

In this testimony, GAO also provides a framework for evaluating potential 

options for changing the program to address the willing payer issue. This 

framework includes a range of issues that would help the Congress assess 

options if it chooses to change the current program. One of these issues in 

particular—the federal cost implications—should be carefully considered in 

the context of the current federal fiscal environment. 

The Department of Energy 

(Energy) and its predecessor 

agencies and contractors have 

employed thousands of people in 

the nuclear weapons production 

complex. Some employees were 

exposed to toxic substances, 

including radioactive and 

hazardous materials, during this 

work, and many subsequently 

developed illnesses. Subtitle D of 

the Energy Employees 

Occupational Illness Compensation 

Program Act of 2000 allows Energy 

to help its contractor employees 

file state workers’ compensation 

claims for illnesses determined by 

a panel of physicians to be caused 

by exposure to toxic substances in 

the course of employment at an 

Energy facility. 

Congress mandated that GAO study 

the effectiveness of the benefit 

program under Subtitle D of this 

Act. This testimony is based on 

GAO’s ongoing work on this issue 

and focuses on four key areas: 

(1) the number, status, and 

characteristics of claims filed with 

Energy; (2) the extent to which 

Energy policies and procedures 

help employees file timely claims 

for these state benefits; (3) the 

extent to which there will be a 

“willing payer” of workers’ 

compensation benefits, that is, an 

insurer who—by order from or 

agreement with Energy—will not 

contest these claims; and (4) a 

framework that could be used for 

evaluating possible options for 

changing the program. 
Page 1 GAO-04-571T 

Mr. Chairman and Members of the Committee: 

I am pleased to be here today to update the information we provided in 

our November 21, 2003 testimony before you on our work regarding the 

effectiveness of the benefit program under Subtitle D of the Energy 

Employees Occupational Illness Compensation Program Act of 2000 

(EEOICPA). This legislation was designed to provide assistance to 

contractor employees in obtaining compensation for occupational 

illnesses. Congress mandated that we study this issue and report to the 

Senate Committees on Energy and Natural Resources and Appropriations 

and the House Committees on Energy and Commerce and Appropriations. 

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

predecessor agencies and contractors have employed thousands of 

individuals in secret and dangerous work in the nuclear weapons 

production complex. Over the years, employees were unknowingly 

exposed to toxic substances, including radioactive and hazardous 

materials, and studies such as one commissioned by the National 

Economic Council have shown that many of these employees 

subsequently developed serious illnesses. EEOICPA established two 

programs to help secure compensation for employees who developed 

occupational illnesses or for their survivors. Congressional Committees, 

as well as individual Members of Congress, claimants, and advocates have 

raised concerns regarding Energy’s processing of claims and the 

availability of benefits once claims have been decided. 

Enacted as title XXXVI of the Floyd D. Spence National Defense 

Authorization Act for Fiscal Year 2001, which was signed into law on 

October 30, 2000, this legislation has two major components. Subtitle B 

provides eligible workers who were exposed to radiation or other toxic 

substances and who subsequently developed illnesses such as cancer and 

lung disease a one-time payment of up to $150,000 and covers future 

medical expenses related to the illness. The Department of Labor 

administers these benefits, payable from a compensation fund established 

by the same legislation. Subtitle D allows Energy to help its contractor 

employees file state workers’ compensation claims for illnesses 

determined by a panel of physicians to be caused by exposure to toxic 

substances in the course of employment at an Energy facility. 

My testimony today reflects our ongoing review of the effectiveness of 

Energy’s implementation of Subtitle D. Our work is focused on four key 

areas: (1) the number, status, and characteristics of claims filed with 

Energy; (2) the extent to which Energy policies and procedures help 
Page 2 GAO-04-571T 

employees file timely claims for state workers’ compensation benefits; 

(3) the extent to which there will be a “willing payer” of workers’ 

compensation benefits; that is, an insurer who—by order from, or 

agreement with, Energy—will not contest these claims; and (4) a 

framework that could be used for evaluating possible options for changing 

the program in the event that there may not be willing payers of benefits. 

In summary, as of December 31, 2003, Energy had fully processed about 

6 percent of the more than 23,000 cases received. Most of the fully 

processed cases had been found ineligible because of either a lack of 

employment at an eligible facility or an illness related to toxic exposure. 

While Energy got off to a slow start in processing cases, it is now 

processing enough cases that there is a backlog of cases waiting for review 

by a physician panel. The agency has taken some steps to reduce this 

backlog; nonetheless, a shortage of qualified physicians continues to 

constrain Energy’s capacity to decide cases more quickly. In the 

meantime, Energy has not kept claimants sufficiently informed about the 

delays in the processing of their claims as well as what claimants can 

expect as they proceed with state workers’ compensation claims. 

While the workers’ compensation claims from about 80 percent of the 

cases associated with major Energy facilities in 9 states are not likely to be 

contested by employers or their insurers, actual compensation is not 

certain. This figure is based primarily on the method of workers’ 

compensation coverage used by the Energy contractors and is not an 

estimate of the number of cases that will ultimately be paid. Specifically, 

slightly more than half the cases associated with facilities in the 9 states 

are likely to have a willing payer of benefits and another quarter of the 

cases, while not having willing payers, have workers’ compensation 

coverage provided by an insurer that has stated that it will not contest the 

claim for benefits. However, the remaining 20 percent of cases lack willing 

payers and are likely to be contested, which means that many of these 

cases may be less likely to receive compensation. Because of data 

limitations, these percentages provide an order of magnitude estimate of 

the extent to which claimants will have willing payers. The estimates are 

not a prediction of actual benefit outcomes for claimants. 

Various options are available to improve payment outcomes for the cases 

that receive a positive physician panel determination, but lack willing 

payers under the current program. If it were decided that the program 

should be modified, the options for changing it range from adding a federal 

benefit to the existing program for cases that lack a willing payer to 

designing a completely new program. Congress would need to examine 
Page 3 GAO-04-571T 

these options in terms of several issues, including the source, method, and 

amount of the federal funding required to pay benefits; the length of time 

needed to implement changes; the criteria for determining who is eligible; 

and the equitable treatment of claimants. In particular, the federal cost 

implications of these options should be carefully considered in the context 

of the current federal fiscal environment. 

To perform our review, we analyzed data extracted from Energy’s Subtitle 

D case management system for applications filed through June 30, 2003, 

and again through December 31, 2003.1

 We also reviewed the provisions of, 

and interviewed officials with, the workers’ compensation programs in 

nine states with Energy facilities accounting for more than three-quarters 

of Subtitle D cases filed, and we interviewed the contractors operating the 

major facilities in these states. In addition, we conducted site visits to 

three Energy facilities in Oak Ridge, Tennessee, the state with facilities 

accounting for the largest number of Subtitle D claims. We also 

interviewed key program officials and other experts. Although our review 

is continuing, we conducted our work for this testimony from April 2003 

through March 2004 in accordance with generally accepted government 

auditing standards. 

Energy oversees a nationwide network of 40 contractor-operated 

industrial sites and research laboratories that have historically employed 

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

weapons. In implementing EEOICPA, the President acknowledged that it 

had been Energy’s past policy to encourage and assist its contractors in 

opposing workers’ claims for state workers’ compensation benefits based 

on illnesses said to be caused by exposure to toxic substances at Energy 

facilities.2

 Under the new law, workers or their survivors could apply for 

assistance from Energy in pursuing state workers’ compensation benefits, 

and if they received a positive determination from Energy, the agency 

would direct its contractors to not contest the workers’ compensation 

claims or awards. Energy’s rules to implement the new program became 

 1

We collected data as of this date to enable us to assess the reliability of Energy’s data by 

(1) performing electronic testing for obvious errors in accuracy and completeness, (2) 

reviewing available documentation, and (3) interviewing agency officials and contractors 

knowledgeable about the data. We determined that the data elements used were 

sufficiently reliable for our purposes.

2

Executive Order 13179 of December 7, 2000. 

Background 
Page 4 GAO-04-571T 

effective in September 2002, and the agency began to process the 

applications it had been accepting since July 2001, when the law took 

effect. 

Energy’s claims process has several steps. First, claimants file applications 

and provide all available medical evidence. Energy then develops the 

claims by requesting records of employment, medical treatment, and 

exposure to toxic substances from the Energy facilities at which the 

workers were employed. If Energy determines that the worker was not 

employed by one of its facilities or did not have an illness that could be 

caused by exposure to toxic substances, the agency finds the claimant 

ineligible. For all others, once development is complete, a panel of three 

physicians reviews the case and decides whether exposure to a toxic 

substance during employment at an Energy facility was at least as likely as 

not to have caused, contributed to, or aggravated the claimed medical 

condition. The panel physicians are appointed by the National Institute for 

Occupational Safety and Health (NIOSH) but paid by Energy for this work. 

Claimants receiving positive determinations are advised that they may 

wish to file claims for state workers’ compensation benefits. Claimants 

found ineligible or receiving negative determinations may appeal to 

Energy’s Office of Hearings and Appeals. 
Page 5 GAO-04-571T 

Figure 1. Energy’s Claims Process 

Each of the 50 states and the District of Columbia has its own workers’ 

compensation program to provide benefits to workers who are injured on 

the job or contract a work-related illness. Benefits include medical 

treatment and cash payments that partially replace lost wages. 

Collectively, these state programs paid more than $46 billion in cash and 

medical benefits in 2001. In general, employers finance workers’ 

compensation programs. Depending on state law, employers finance these 

programs through one of three methods: (1) they pay insurance premiums 

to a private insurance carrier, (2) they contribute to a state workers’ 

compensation fund, or (3) they set funds aside for this purpose as selfinsurance. Although state workers’ compensation laws were enacted in 

Claims sent 

by mail

Claims received from 10 

Resource Centers

Energy 

develops claims

Physician panel reviews 

case and recommends

positive or negative

determination

Negative

determination

Positive 

determination

Energy decides claim is 

ineligible based on

non-covered employment or

illness

Energy makes final

determination and

notifies applicant

Claimant may file for 

state workers'

compensation benefits

Claimant may appeal

 determination to Energy's 

 Office of Hearings and Appeals

Records retrieval at

Energy facilities

Source: GAO analysis of Energy Claims Process.
Page 6 GAO-04-571T 

part as an attempt to avoid litigation over workplace accidents, the 

workers’ compensation process is still generally adversarial, with 

employers and their insurers tending to contest aspects of claims that they 

consider not valid. 

State workers’ compensation programs vary as to the level of benefits, 

length of payments, and time limits for filing. For example, in 1999, the 

maximum weekly benefit for a total disability in New Mexico was less than 

$400, while in Iowa it was approximately $950. In addition, in Idaho, the 

weekly benefit for total disability would be reduced after 52 weeks, while 

in Iowa benefits would continue at the original rate for the duration of the 

disability. Further, in Tennessee, a claim must be filed within 1 year of the 

beginning of incapacity or death. In contrast, in Kentucky a claim must be 

filed within 3 years of either the last exposure to most substances or onset 

of disease symptoms, but within 20 years of exposure to radiation or 

asbestos. 

As of December 31, 2003, Energy had completely processed about 6 

percent of the more than 23,000 cases that had been filed. Energy had 

begun processing of nearly 35 percent of cases, but processing had not yet 

begun on nearly 60 percent of the cases. Insufficient strategic planning and 

systems limitations complicate assessment of Energy’s achievement of 

case processing goals. Further, these limitations make it difficult to assess 

achievement of other broader goals, related to program objectives, such as 

the quality of the assistance given to claimants in filing for state workers’ 

compensation. 

During the first 2 1⁄2 years of the program, ending December 31, 2003, 

Energy had fully processed about 6 percent of the more than 23,000 claims 

it received. The majority of the fully processed claims (about 5 percent of 

all cases) had been found ineligible because of either a lack of 

employment at an eligible facility or an illness related to toxic exposure. In 

the last 6 months of 2003, Energy more than tripled the number of cases 

receiving a final determination from a physician panel, from 42 to 

150. These 150 cases represent less than 1 percent of the more than 

23,000 cases filed. 

While cases filed are associated with facilities in 43 states or territories, 

the majority of cases are associated with Energy facilities in 9 states. 

Facilities in Colorado, Idaho, Iowa, Kentucky, New Mexico, Ohio, South 

Carolina, Tennessee, and Washington account for more than 75 percent of 

Energy Has Processed 

Few Cases And 

Insufficient Strategic 

Planning And Data 

Collection Complicate 

Program Management 

Energy Has Fully 

Processed about 6 Percent 

of Its Cases 
Page 7 GAO-04-571T 

cases received by December 31, 2003. The largest group of cases is 

associated with facilities in Tennessee. 

Figure 2. Distribution of Cases by Employee’s Last Energy Facility Worked 

Note: Facility information is missing or unknown for 1,859 cases. 

A majority of all cases were filed during the first year of program 

implementation, but new cases continue to be filed. Nationwide, the 

number of cases filed increased by 22 percent in the last 6 months of 

2003 from fewer than 19,000 to more than 23,000. However, the rate of 

increase in cases filed was not uniform across the 9 states with facilities 

that account for more than three-quarters of all cases. For example, cases 

associated with facilities in Washington increased by 8 percent during the 

6-month period while cases in New Mexico increased by 34 percent and 

cases in Ohio increased by 80 percent. 

Source: GAO analysis of Energy data.

Nine states with most cases (N=18,094)

Other states and territories with cases (N=3,133)

States and territories with no cases

Ohio

1,305

Iowa

675

South Carolina

3,379

Kentucky

2,375

Tennessee

4,319

Washington

1,851

Idaho

904

Colorado

1,685

New Mexico

1,601
Page 8 GAO-04-571T 

As of the end of calendar year 2003, Energy had not yet begun processing 

nearly 60 percent of the cases, and an additional 35 percent of cases were 

in processing. The majority of cases being processed were in the case 

development stage, where Energy requests information from the facility at 

which the claimant was employed. Of the cases still in processing, about 

2 percent were ready for physician panel review and 3 percent were 

undergoing panel review. 

Energy reports that, in recent months, it has considerably accelerated the 

rate at which it is completing the development of cases that are ready for 

physician panel review. Since our testimony in November 2003, Energy’s 

case development process has met the agency’s goal of completing the 

development on 100 cases per week, which is considerably higher than the 

average of about 30 cases per week it was completing in September 2003. 

Moreover, since our prior testimony, Energy has also completed a 

comprehensive review of its Subtitle D program that resulted in a plan that 

identifies strategies for further accelerating its case processing. This plan 

sets a goal of eliminating the entire case backlog by the end of fiscal year 

2006 and is dependent, in part, on Energy’s shifting additional funds into 

this program. 

Insufficient strategic planning regarding system design, data collection, 

and tracking of outcomes has made it more difficult for Energy officials to 

manage some aspects of the program and for those with oversight 

responsibilities to determine whether Energy is meeting the goal of 

providing assistance in filing for workers’ compensation. The data system 

used by Energy to aid in case management was developed by contractors 

without detailed specifications from Energy. Furthermore, the system was 

developed before Energy established its processing goals, and the changes 

Energy implemented to improve its ability to track certain information 

have resulted in more recent status data being not completely comparable 

with older status data. 

Because it did not adequately plan for the various uses of its data, Energy 

lacks some of the information needed to analyze how cases will fare when 

they enter the state workers’ compensation systems or to track their 

outcomes. Specifically, it is difficult for Energy to predict whether willing 

payers of workers’ compensation benefits will exist using case 

management system data because the information about the specific 

employer for whom the claimant worked is not collected in a format that 

can be systematically analyzed. Since employers are liable for workers’ 

compensation coverage, specific employer information is important in 

Insufficient Strategic 

Planning and Data 

Collection Limit Energy’s 

Ability to Determine 

Whether Program Goals 

Are Being Met 
Page 9 GAO-04-571T 

determining whether a willing payer exists. In addition, while Energy has 

not been systematically tracking whether claimants subsequently file 

workers’ compensation claims or the decisions on these claims, Energy 

now plans to develop this capability. 

Energy was slow in implementing its initial case processing operation, but 

it is now processing enough cases so that there is a backlog of cases 

awaiting physician panel review. With panels operating at full capacity, the 

small pool of physicians qualified to serve on the panels may ultimately 

limit the agency’s ability to produce more timely determinations. 

Claimants have experienced lengthy delays in receiving the determinations 

they need to file workers’ compensation claims and have received little 

information about claims status as well as what they can expect from this 

process. Energy has taken some steps intended to reduce the backlog of 

cases. 

Additional resources have allowed Energy to speed initial case 

development, and it has been processing enough cases to produce a 

backlog of cases waiting for physician panel review. However, the limited 

pool of qualified physicians for panels may continue to prevent significant 

improvements in processing time. Under the rules Energy originally 

established for this program that required that each case be reviewed by a 

panel of 3 physicians and given the 130 physicians currently available, it 

could have taken more than 13 years to process all cases pending as of 

December 31, without consideration of the hundreds of new cases the 

agency is receiving each month.3

 However, in an effort to make the panel 

process more efficient, Energy published new rules on March 24, 2004, 

 3

This 13-year estimate assumes that none of the pending cases would be determined 

ineligible on the basis of noncovered employment or illnesses because we did not possess a 

sufficient basis for projecting the number of pending cases that would be determined 

ineligible in the future. 

A Shortage of 

Qualified Physicians 

To Issue 

Determinations 

Delays Filing of 

Workers’ 

Compensation Claims 

And Claimants May 

Receive Inadequate 

Information To 

Prepare Them To 

Pursue These Claims 

The Ability to Produce 

More Timely Decisions 

May Be Limited by the 

Small Pool of Qualified 

Physicians and Gaps in 

Information They Need to 

Quickly Decide Cases 
Page 10 GAO-04-571T 

that re-defined a physician panel as one or more physicians appointed to 

evaluate these cases and changed the timeframes for completing their 

review. In addition, the agency began holding a full-time physician panel in 

Washington, D.C. in January 2004, staffed by physicians who are willing to 

serve full-time for a 2- or 3-week period. 

Energy and NIOSH officials have taken steps to expand the number of 

physicians who would qualify to serve on the panels and to recruit more 

physicians, including some willing to work full-time. While Energy has 

made several requests that NIOSH appoint additional physicians to staff 

the panels, such as requesting 500 physicians in June 2003, NIOSH officials 

have indicated that the pool of physicians with the appropriate credentials 

and experience is limited.4

 The criteria NIOSH originally used to evaluate 

qualifications for appointing physicians to these panels included: (1) board 

certification in a primary discipline; (2) knowledge of occupational 

medicine; (3) minimum of 5 years of relevant clinical practice following 

residency; and (4) reputation for good medical judgment, impartiality, and 

efficiency. NIOSH recently modified these qualifications, primarily to 

reduce the amount of required clinical experience so that physicians with 

experience in relevant clinical or public health practice or research, 

academic, consulting, or private sector work can now qualify to serve on 

the panels. NIOSH has revised its recruiting materials to reflect this 

change and to point out that Energy is also interested in physicians willing 

to serve on panels full-time. However, a NIOSH official indicated that only 

a handful of physicians would likely be interested in serving full-time on 

the panels. 

Energy officials have also explored additional sources from which NIOSH 

might recruit qualified physicians, but they have expressed concerns that 

the current statutory cap on the rate of pay for panel physicians may limit 

the willingness of physicians from these sources to serve on the panels. 

For example, Energy officials have suggested that physicians in the 

military services might be used on a part-time basis, but the rate of pay for 

their military work exceeds the current cap. Similarly, physicians from the 

Public Health Service could serve on temporary full-time details as panel 

physicians. To elevate the rate of pay for panel physicians to a level that is 

consistent with the rate physicians from these sources normally receive, 

 4

In March 2004, Energy requested additional physicians from NIOSH that would result in 

tripling the number of full-time equivalent physicians in 2004 and increasing the number of 

full-time equivalent physicians by a factor of 6 in 2005. 
Page 11 GAO-04-571T 

Energy officials plan to develop a legislative proposal that will modify the 

current cap on the rate of pay and would also expand Energy’s hiring 

authority. 

Panel physicians have also suggested methods to Energy for improving the 

efficiency of the panels. For example, some physicians have said that more 

complete profiles of the types and locations of specific toxic substances at 

each facility would speed their ability to decide cases. While Energy 

officials reported that they have completed facility overviews for about 

half the major sites, specific site reference data are available for only a few 

sites. Energy officials told us that, in their view, the available information 

is sufficient for decision making by the panels. However, based on 

feedback from the physicians, Energy officials are exploring whether 

developing additional site information would be cost beneficial. 

Energy has not always provided claimants with complete and timely 

information about what they could achieve in filing under this program. 

Energy officials concede that claimants who filed in the early days of the 

program may not have been provided enough information to understand 

the benefits they were filing for. As a consequence, some claimants who 

filed under both Subtitle B and Subtitle D early in the program later 

withdrew their claims under Subtitle D because they had intended to file 

only for Subtitle B benefits or because they had not understood that they 

would still have to file for state workers’ compensation benefits after 

receiving a positive determination from a physician panel. After the final 

regulations were published in August 2002, Energy officials said that 

claimants had a better understanding of the benefits for which they were 

applying. 

Energy has not kept claimants sufficiently informed about the status of 

their claims under Subtitle D. Until recently, Energy’s policy was to 

provide no written communication about claims status between the 

acknowledgement letters it sent shortly after receiving applications and 

the point it began to process claims. Since nearly half of the claims filed in 

the first year of the program remained unprocessed as of December 31, 

2003, these claimants would have received no information about the status 

of their claims for more than 1 year. Energy recently decided to change 

this policy and provide letters at 6-month intervals to all claimants with 

pending claims. Although the first of these standardized letters sent to 

claimants in the fall of 2003 did not provide information about individual 

claims status, it did inform claimants about a new service on the program’s 

redesigned Web site through which claimants can check on the status of 

Energy Has Not 

Sufficiently Communicated 

Case Status and 

Expectations about the 

Process to Claimants 
Page 12 GAO-04-571T 

their claim. However, this new capability does not provide claimants with 

information about the timeframes during which their claims are likely to 

be processed and claimants would need to re-check the status periodically 

to determine whether the status of the claim has changed. 

Claimants may not be given sufficient information as to what they are 

likely to encounter when they file for state workers’ compensation 

benefits. Energy’s letter to claimants transmitting a positive determination 

from a physician panel does not always provide enough information about 

how they would go about filing for state workers’ compensation benefits. 

For example, a contractor in Tennessee reported that a worker was 

directed by Energy’s letter received in September 2003 to file a claim with 

the state office in Nashville when Tennessee’s rules require that the claim 

be filed with the employer. The contractor reported the problem to Energy 

in the same month, but Energy letters sent to Tennessee claimants in 

October and December 2003 continued to direct claimants to the state 

office. Finally, claimants are not informed as to whether there is likely to 

be a willing payer of workers’ compensation benefits and what this means 

for the processing of that claim. Specifically, advocates for claimants have 

indicated that claimants may be unprepared for the adversarial nature of 

the workers’ compensation process when an insurer or state fund contests 

the claim. 

The workers’ compensation claims for the majority of cases associated 

with major Energy facilities in 9 states5

 are likely to have no challenges to 

their claims for state workers’ compensation benefits. Specifically, based 

on additional analysis of workers’ compensation programs and the 

different types of workers’ compensation coverage used by the major 

contractors, it appears that slightly more than half of the cases will 

potentially have a willing payer—that is, contractors that will not contest 

the claims for benefits as ordered by Energy. Another 25 percent of the 

cases, while not technically having a willing payer, have workers’ 

compensation coverage provided by an insurer that has stated that it will 

not contest these claims and is currently processing several workers’ 

compensation claims without contesting them. The remaining 20 percent 

of cases in the 9 states we analyzed are likely to be contested. Because of 

 5

The cases in these 9 states represent more than three-quarters of the cases filed 

nationwide. The results of our analysis cannot necessarily be applied to the remaining 

25 percent of the cases filed nationwide. 

Workers’ 

Compensation Claims 

For a Majority of 

Cases Are Not Likely 

to be Contested 
Page 13 GAO-04-571T 

data limitations, these percentages provide an order of magnitude estimate 

of the extent to which claimants will have willing payers.6

 The estimates 

are not a prediction of actual benefit outcomes for claimants. 

As shown in table 1, the contractors for four major facilities in these states 

are self-insured, which enables Energy to direct them to not contest claims 

that receive a positive medical determination.7

 In such situations where 

there is a willing payer, the contractor’s action to pay the compensation 

consistent with Energy’s order to not contest a claim will override state 

workers’ compensation provisions that might otherwise result in denial of 

a claim, such as failure to file a claim within a specified period of time. 

Similarly, the agreement by the commercial insurer for the workers at the 

two facilities that constitute 25 percent of the cases to pay the workers 

compensation claims will mostly likely also supercede such state 

provisions. However, since the insurer is not bound by Energy’s orders 

and it does not have a formal agreement with either Energy or the 

contractors to not contest these claims, there is nothing to guarantee that 

the insurer will continue to process claims in this manner. 

 6

Because of data limitations, we assumed that: (1) all cases filed would receive a positive 

determination by a physician panel, (2) all workers lost wages because of the illness and 

were not previously compensated for this loss, and (3) in all cases, the primary contractor 

rather than a subcontractor at the Energy facility employed the worker. 

7

EEOICPA allows Energy, to the extent permitted by law, to direct its contractors not to 

contest such workers’ compensation claims. In addition, the statute prohibits the inclusion 

of the costs of contesting such claims as allowable costs under its contracts with the 

contractors; however, Energy’s regulations allow the costs incurred as the result of a 

workers’ compensation award to be reimbursed in the manner permitted under the 

contracts. 
Page 14 GAO-04-571T 

Table 1. Extent to Which Cases Will Potentially Be Contested in 9 States 

Likely 

Outcome 

Willing Payer 

Available? 

Types of Workers 

Comp. Coverage Energy Facility, State 

Number of Cases 

as reported in 

Energy data 

Percentage of 

Cases in 

Category 

Contests are Not Likely 

 Yes Self-insurance • Paducah Gaseous Diffusion 

Plant, Kentucky a

• Los Alamos National Lab, New 

Mexico 

• Oak Ridge K-25, X-10, and Y-12 

Plants, Tennessee 

• Hanford Site, Washington 

2,133

1,380

4,115

1,798

55 % 

 Subtotal 9,426

 No Commercial Policy, 

Insurer Will Follow 

Contractors 

Instructions to Not 

Contest 

• Idaho National Engineering Lab, 

Idaho 

• Savannah River Site, South 

Carolina 

849

3,375

25 % 

 Subtotal 4,224

 Subtotal 13,650 80 %

Contests Likely

 No Commercial policy • Rocky Flats Plant, Colorado 1,630

 No State Fund • Portsmouth Gaseous Diffusion 

Plant, Ohio 

• Feed Materials Production 

Center, Ohio 

• Mound Plant, Ohio 

862

286

91

 Subtotal 1,239

 No No Current 

Contractor 

• Iowa Ordnance Plant, Iowa 645

Subtotal 3,514 20% 

Source: GAO analysis of Energy data and interviews with current contractors and state officials. 

Note: The table includes the cases from the facilities in these states with the largest number of cases 

filed but does not include the remaining 693 cases (4 percent) from other facilities in these states. 

a A total of 2,370 cases have been filed for the Paducah Gaseous Diffusion Plant, which has been 

operated since July 1998 by a private entity that leases the facility. Energy recently decided that 

workers who have only been employed by this private entity, and not by the prior contractors who 

operated the facility, will not be eligible for the program. An Energy contractor performing 

environmental cleanup at the site also employs workers at the facility. This contractor is responsible 

for the workers’ compensation claims filed by its employees as well as those filed by employees of 

the contractors who operated the facility prior to July 1998. We apportioned 90 percent of the cases 

filed for the Paducah facility (2,133) to the cleanup contractor because the facility was run by the prior 

contractors for about 90 percent of its years in operation. We apportioned the remaining 10 percent 

of the cases (237) to the private entity and do not show these cases in the table, due to Energy’s 

decision that claims filed by the entity’s workers would be ineligible for the program. However, this 

apportionment involves some uncertainty because the clean up contractor has not had an opportunity 

to analyze the effects of Energy’s policy decision. 
Page 15 GAO-04-571T 

About 20 percent of cases in the 9 states we analyzed are likely to be 

contested. Therefore, in some instances, these cases may be less likely to 

receive compensation than a comparable case for which there is a willing 

payer, unless the claimant is able to overcome challenges to the claim. In 

addition, contested cases can take longer to be resolved. For example, one 

claimant whose claim is being contested by an insurer was told by her 

attorney that because of discovery and deposition motions by the 

opposing attorney, it would be two years before her case was heard on its 

merits. Specifically, the cases that lack willing payers involve contractors 

that (1) have a commercial insurance policy, (2) use a state fund to pay 

workers’ compensation claims, or (3) do not have a current contract with 

Energy. In each of these situations, Energy maintains that it lacks the 

authority to make or enforce an order to not contest claims. For instance, 

an Ohio Bureau of Workers’ Compensation official said that the state 

would not automatically approve a case, but would evaluate each workers’ 

compensation case carefully to ensure that it was valid and thereby 

protect its state fund. Further, although the contractor in Colorado with a 

commercial policy attempted to enter into agreements with prior 

contractors and their insurers to not contest claims, the parties have not 

yet agreed and several workers’ compensation claims filed with the state 

program are currently being contested. 

Various options are available to improve payment outcomes for the cases 

that receive a positive determination from Energy, but lack willing payers 

under the current program. If it chooses to change the current program, 

Congress would need to examine these options in terms of several issues, 

including the source, method, and amount of the federal funding required 

to pay benefits; the length of time needed to implement changes; the 

criteria for determining who is eligible; and the equitable treatment of 

claimants. In particular, the cost implications of these options for the 

federal government should be carefully considered in the context of the 

current federal fiscal environment. 

We identified four possible options for improving the likelihood of willing 

payers, some of which have been offered in proposed legislation. While 

not exhaustive, the options range from adding a federal benefit to the 

existing program for cases that lack a willing payer to addressing the 

willing payer issue as part of designing a new program that would allow 

policymakers to decide issues such as the eligibility criteria and the type 

and amount of benefits without being encumbered by existing program 

structures. A key difference among the options is the type of benefit that 

would be provided. 

Several Issues Should 

Be Considered in 

Evaluating Options 

for Improving the 

Likelihood of Willing 

Payers 

Options for Changing the 

Current Program 
Page 16 GAO-04-571T 

Option 1—State workers’ compensation with federal back up. This 

option would retain state workers’ compensation structure as under the 

current Subtitle D program but add a federal benefit for cases that receive 

a positive physician panel determination but lack a willing payer of state 

workers’ compensation benefits. For example, claims involving employees 

of current contractors that self-insure for workers’ compensation coverage 

would continue to be processed through the state programs. However, 

claims without willing payers such as those involving contractors that use 

commercial insurers or state funds likely to contest workers’ 

compensation claims could be paid a federal benefit that approximates the 

amount that would have been received under the relevant state program. 

Option 2—Federal workers’ compensation model. This option would 

move the administration of the Subtitle D benefit from the state programs 

entirely to the federal arena, but would retain the workers’ compensation 

concept for providing partial replacement of lost wages as well as medical 

benefits. For example, claims with positive physician panel determinations 

could be evaluated under the eligibility criteria of the Federal Employees 

Compensation Act8

 and, if found eligible, could be paid benefits consistent 

with the criteria of that program. 

Option 3—Expanded Subtitle B program that does not use a 

workers’ compensation model. Under this option, the current Subtitle B 

program would be expanded to include the other illnesses resulting from 

radiation and toxic exposures that are currently considered under the 

Subtitle D program. The Subtitle D program would be eliminated as a 

separate program and, if found eligible, claimants would receive a lumpsum payment and coverage of future medical expenses related to the 

workers’ illnesses, assuming they had not already received benefits under 

Subtitle B. The Department of Labor would need to expand its regulations 

to specify which illnesses would be covered and the criteria for 

establishing eligibility for each of these illnesses. In addition, since the 

current programs have differing standards for determining whether the 

 8

The Federal Employees’ Compensation Act (5 U.S.C. 8101, et seq.) provides workers’ 

compensation coverage for federal and postal employees, who are not covered by the state 

programs. 
Page 17 GAO-04-571T 

worker’s illness was related to his employment9, it would have to be 

decided which standard would be used for the new category of illnesses. 

Option 4—New federal program that uses a different type of 

benefit structure. This option would address the willing payer issue as 

part of developing a new program that involves moving away from the 

workers’ compensation and Subtitle B structures and establishing a new 

federal benefit administered by a structure that conforms to the type of the 

benefit and its eligibility criteria. This option would provide an opportunity 

to consider anew the purpose of the Subtitle D provisions. As a starting 

point, policymakers could consider different existing models such as the 

Radiation Exposure Compensation Act, designed to provide partial 

restitution to individuals whose health was put at risk because of their 

exposure even when their illnesses do not result in ongoing disability. But 

they could also choose to build an entirely new program that is not based 

on any existing model. 

In deciding whether and how to change the Subtitle D program to ensure a 

source of benefit payments for claims that would be found eligible if they 

had a willing payer, policymakers will need to consider the trade-offs 

involved. Table 2 arrays the relevant issues to provide a framework for 

evaluating the range of options in a logical sequence. We have constructed 

the sequence of issues in this framework in terms of the purpose and type 

of benefit as being the focal point for the evaluation, with consideration of 

the other issues flowing from that first decision. For example, decisions 

about eligibility criteria would need to consider issues relating to withinstate and across-state equity for Subtitle D claimants. The framework 

would also provide for decisions on issues such as the source of federal 

funding—trust fund or increased appropriations—and the appropriate 

federal agency to administer the benefit. For each of the options, the type 

of benefit would suggest which agency should be chosen to administer the 

benefit and would depend, in part, on an agency’s capacity to administer a 

benefit program. In examining these issues, the effects on federal costs 

would have to be carefully considered. Ultimately, policymakers will need 

 9

Under Subtitle B, an individual with specified types of cancer shall be determined to have 

sustained that condition in the performance of duty if the cancer was at least as likely as 

not related to employment at a specified facility. Under Subtitle D, a physician panel must 

decide whether it is at least as likely as not that exposure to a toxic substance in the course 

of employment was a significant factor in aggravating, contributing to, or causing the 

illness or death of the worker. 

Various Issues Should Be 

Considered in Deciding 

Whether Changes Are 

Needed and Assessing the 

Options 
Page 18 GAO-04-571T 

to weigh the relative importance of these issues in deciding whether and 

how to proceed. 

In evaluating how the purpose and type of benefit now available under 

Subtitle D could be changed, policymakers would first need to focus on 

the goals they wish to achieve in providing compensation to this group of 

individuals. If the goal is to compensate only those individuals who can 

demonstrate lost wages because of their illnesses, a recurring cash benefit 

in an amount that relates to former earnings might be in order and a 

workers’ compensation option, either a state benefits with a federal back 

up or a federal workers’ compensation benefit, would promote this 

purpose. If, on the other hand, the goal is to compensate claimants for all 

cases in which workers were disabled because of their employment—even 

when workers continue to work and have not lost wages–the option to 

expand Subtitle B would allow a benefit such as a flat payment amount not 

tied to former earnings. 

For consideration of a new federal program option, it might be useful to 

also consider other federal programs dealing with the consequences of 

exposure to radiation as a starting point. For example, the Radiation 

Exposure Compensation Act was designed to provide partial restitution to 

individuals whose health was put at risk because of their exposure. Similar 

to Subtitle B, the act created a federal trust fund, which provides for 

payments to individuals who can establish that they have certain diseases 

and that they were exposed to radiation at certain locations and at 

specified times. However, this payment is not dependent on demonstrating 

ongoing disability or actual losses resulting from the disease. 

The options could also have different effects with respect to eligibility 

criteria and the equity of benefit outcomes for current Subtitle D claimants 

based on these criteria. By equity of outcomes, we mean that claimants 

with similar illnesses and circumstances receive similar benefit outcomes. 

The current program may not provide equity for all Subtitle D claimants 

within a state because a claim that has a willing payer could receive a 

different outcome than a similar claim that does not have a willing payer, 

but at least three of the options could provide within-state equity. With 

respect to across-state equity, the current program and the option to 

provide a federal back up to the state workers’ compensation programs 

would not achieve equity for Subtitle D claimants in different states. In 

contrast, the option based on a federal workers’ compensation model as 

Purpose and Type 

of Benefit 

Eligibility Criteria and 

Equity of Outcomes 
Page 19 GAO-04-571T 

well as the expanded Subtitle B option would be more successful in 

achieving across-state equity.10

Regardless of the option, changes made to Subtitle D could also 

potentially result in differing treatment of claims decided before and after 

the implementation of the change. In addition, changing the program to 

remove the assistance in filing workers’ compensation claims may be seen 

as depriving a claimant of an existing right. Further, any changes could 

also have implications beyond EEOICPA, to the extent that the changes to 

Subtitle D could establish precedents for federal compensation to private 

sector employees in other industries who were made ill by their 

employment. 

Effects on federal costs would depend on the generosity of the benefit in 

the option chosen and the procedures established for processing claims 

for benefits. Under the current program, workers’ compensation benefits 

that are paid without contest will come from contract dollars that 

ultimately come from federal sources – there is no specific federal 

appropriation for this purpose. Because all of the options are designed to 

improve the likelihood of payment for claimants who meet all other 

criteria, it is likely that federal costs would be higher for all options than 

under the current program. Specifically, federal costs would increase for 

the option to provide a federal back up to the state workers’ compensation 

program because it would ensure payment at rates similar to the state 

programs for the significant minority of claimants whose claims are likely 

to be contested and possibly denied under the state programs. Further, the 

federal costs of adopting a federal workers’ compensation option would 

be higher than under the first option because all claimants – those who 

would have been paid under the state programs as well as those whose 

claims would have been contested under the state programs – would be 

eligible for a federal benefit similar to the benefit for federal employees. In 

general, federal workers’ compensation benefits are more generous than 

state benefits because they replaces a higher proportion of the worker’s 

salary than many states and the federal maximum rate of wage 

replacement is higher than all the state maximum rates. 

 10An additional within-state equity issue involves the comparative treatment of Subtitle D 

claimants and all other workers’ compensation claimants in the same state. 

Federal Costs 
Page 20 GAO-04-571T 

For either of the two options above, a decision to offset the Subtitle D 

benefits against the Subtitle B benefit could lessen the effect of the 

increased costs, given reports by Energy officials that more than 90 

percent of Subtitle D claimants have also filed for Subtitle B benefits.11

However, the degree of this effect is difficult to determine because many 

of the claimants who have filed under both programs may be denied 

Subtitle B benefits. The key distinction would be whether workers who 

sustained certain types of illnesses based on their Energy employment 

should be compensated under both programs as opposed to recourse 

under only one or the other. If they were able to seek compensation from 

only one program, the claimant’s ability to elect one or the other based on 

individual needs should be considered. 

The effects on federal cost of an expanded Subtitle B option or a new 

federal program option are more difficult to assess. In many cases, the 

Subtitle B benefit of up to $150,000 could exceed the cost of the lifetime 

benefit for some claimants under either of the workers’ compensation 

options, resulting in higher federal costs. However, the extent of these 

higher costs could be mitigated by the fact that many of the claimants who 

would have filed for both benefits in the current system would be eligible 

for only one cash benefit regardless of the number or type of illnesses. The 

degree of cost or savings would be difficult to assess without additional 

information on the specific claims outcomes in the current Subtitle B 

program. The effects on federal costs for the new federal program option 

would depend on the type and generosity of the benefit selected. 

 11Under the current Subtitle B and Subtitle D programs, benefits are not offset against each 

other. 
Page 21 GAO-04-571T 

Table 2. Framework for Evaluating Options to Change the Subtitle D Program 

 Current program 

Option 1—State 

workers’ 

compensation with 

federal back-up 

Option 2—Federal 

workers’ compensation 

model 

Option 3—

Expanded Subtitle 

B program 

Option 4—New 

federal benefit 

Purpose and 

type of benefit 

Varies by state, but 

generally includes 

medical treatment and 

cash payments that 

partially replace lost 

wages. 

Same as under current 

state programs. 

Still a workers’ 

compensation benefit, 

generally includes 

medical treatment and 

cash payments that 

partially replace lost 

wages. 

Same as for current 

Subtitle B—

coverage of future 

medical treatment 

and a one-time 

payment of up to 

$150,000 as 

compensation for 

disability or death 

because of 

exposure to 

radiation or toxic 

substance. 

Open for 

consideration. 

Eligibility 

criteria 

Vary by state, but 

generally apply to 

workers who contract 

a work-related illness 

and who lose work 

time because of the 

illness. 

For federal back-up 

benefit, should be 

similar to criteria under 

current state 

programs. 

Uses criteria of workers’ 

compensation program 

for federal employees. 

Same as for current 

Subtitle B claimants 

who worked for 

Energy contractors. 

Open for 

consideration—

should flow from 

type of benefit and 

the nature of the 

population it is 

designed to 

compensate. 

Interaction with 

Subtitle B 

Benefits are not offset 

against each other. 

Open for 

consideration. 

Open for consideration. No interaction 

issues. Claimants 

would be eligible for 

only one payment 

regardless of 

number of illnesses. 

Because there is a 

large overlap in 

claimants filing 

under both 

programs, this 

could potentially 

reduce the total 

number of claims 

that would remain 

to be processed 

once combined. 

Open for 

consideration. 

Depends on the 

nature of the 

benefit. 

Equity of Outcomes within Subtitle D 

 within states Similar cases in the 

same state could 

receive differing 

benefits. 

Similar cases in the 

same state could 

receive similar benefits 

regardless of 

employer. 

Similar cases in the 

same state could receive 

similar benefits 

regardless of employer. 

Similar cases in the 

same state could 

receive similar 

benefits regardless 

of employer. 

Open for 

consideration. 
Page 22 GAO-04-571T 

 Current program 

Option 1—State 

workers’ 

compensation with 

federal back-up 

Option 2—Federal 

workers’ compensation 

model 

Option 3—

Expanded Subtitle 

B program 

Option 4—New 

federal benefit 

 across states Similar cases in 

different states could 

receive differing 

compensation. 

Similar cases in 

different states could 

receive differing 

compensation. 

Similar cases in different 

states could receive 

similar compensation. 

Similar cases in 

different states 

could receive 

similar 

compensation 

Open for 

consideration 

Funding 

source for 

benefits 

Most eligible cases 

with willing payers will 

be paid by contractors 

from contract funds 

from federal sources. 

Same as current 

program for cases with 

willing payer, but 

would need a source 

for federal back-up 

benefit. 

Would need new federal 

source 

Trust fund already 

established by 

Section 3612 of 

EEOICPA. 

Open for 

consideration—

Appropriations or 

trust fund. 

Federal 

administrator 

Energy For federal benefit, 

selection criteria 

should include how 

quickly agency could 

implement and how 

well it was situated to 

process and pay 

cases. Energy would 

still need to secure 

records for all cases 

and process claims 

with willing payers. 

Department of 

Labor/Office of Workers’ 

Compensation 

administers current 

program; also 

administers Subtitle B 

program. Energy would 

still need to secure 

records. 

Department of 

Labor—same as 

current Subtitle B 

program. 

Open for 

consideration—

depends on type of 

benefit, experience 

in administering 

benefit program, 

and funding source.

Timeframe for 

implementation 

Program is 

implemented, but few 

cases have been 

completely processed. 

Relatively short to 

implement since it is 

based on existing 

program. Infrastructure 

would have to be 

established and rules 

developed to provide 

for federal benefits 

that mirror those of the 

state programs. 

Longer than Option 1. 

Infrastructure in place, 

but regulations for 

existing federal workers’ 

compensation program 

would need to be 

expanded to cover new 

benefit. 

Longer than Option 

1– structure in 

place to administer 

existing Subtitle B 

program—new 

rules need to be 

developed for 

evaluating 

additional illnesses. 

Potentially longest 

of all options. 

Depends on 

administrator and 

whether 

infrastructure exists 

or would need to be 

built. In either 

event, need to 

publish rules and 

establish 

procedures. 
Page 23 GAO-04-571T 

 Current program 

Option 1—State 

workers’ 

compensation with 

federal back-up 

Option 2—Federal 

workers’ compensation 

model 

Option 3—

Expanded Subtitle 

B program 

Option 4—New 

federal benefit 

Federal cost For cases that are not 

contested, benefits 

that are paid will 

ultimately come from 

contract dollars from 

federal sources 

(Energy and 

Defense). 

Federal costs could 

increase since benefits 

for cases without 

willing payers would 

be paid directly from 

federal funds. 

Federal costs could be 

greater than for current 

program since benefits 

would be based on the 

often more generous 

workers’ compensation 

program for federal 

workers. 

To the extent that 

the option would 

ensure a source of 

benefits, could 

increase federal 

costs. However, the 

extent of these 

higher costs could 

be mitigated 

because many of 

the claimants who 

would have filed for 

Subtitle B and D 

benefits in the 

current system 

would be eligible for 

only one cash 

benefit regardless 

of the number or 

type of illnesses. 

Open for 

consideration—

Depends on type of 

benefit and 

eligibility criteria. 

Source: GAO analysis. 

Mr. Chairman, this completes my prepared statement. I would be happy to 

respond to any questions you or other Members of the Committee may 

have at this time. 

For information regarding this testimony, please contact Robert E. 

Robertson, Director, or Andrew Sherrill, Assistant Director, Education, 

Workforce, and Income Security, at (202) 512-7215. Individuals making 

contributions to this testimony include Amy E. Buck, Melinda L. Cordero, 

and Beverly Crawford. 

Contacts and 

Acknowledgments 

(130371) 
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