Energy Employees Occupational 

Illness Compensation Program

Ombudsman for the 

Office of the

U.S. Department of Labor

2009 Annual Report to Congr

OFFICE OF THE OMBUDSMAN
Cover photo credit: courtesy of Idaho National Laboratory.
2009 

Annual Report to Congr

United States Department of Labor

Energy Employees Occupational 

Illness Compensation Program

Ombudsman for the 

Office of the

2009 Annual Report to Congres

TABLE OF CONTENTS

Message From the Ombudsman 

Section 1.0: Introduction 

Section 1.1: History of EEOICPA 

Section 1.2: The Office of the Ombudsman 

Section 2.0 Tables 

Section 2.1 Table 1: Complaints by Nature 

Section 2.2 Table 2: Complaints by Category 

Section 2.3 Table 3: Complaints by Facility 

Section 3.0: The Report

Section 4.0: Issues with an Over-Reaching Impact 

Section 4.1: Claimants are often ill and/or of advanced age when processing an EEOICPA claim

Section 4.2: EEOICPA is a Complicated Program 

Section 4.3: Vow of Secrecy 

Section 5.0: Covered Employment/Survivor Issues 

Section 5.1: Employees not Covered by Statute 

Section 5.2: Differences in Coverage under Part B and Part E 

Section 5.3: Locating Evidence of Employment 

Section 5.4: Covered Facility 

Section 5.5: DOE Contractor or Subcontractor 

Section 5.6: Definition of Eligible Child 

Section 5.7: Factors that reduce or nullify compensation

Section 6.0: Exposure 

Section 6.1: Do not know the name of toxins 

Section 6.2: SEM 

Section 6.3: Dose Reconstruction 

Section 7.0: Causation 

Section 7.1: Special Exposure Cohorts 

Section 7.2: The Synergistic Effects 

Section 8.0: Impairment/Wage Loss 

Section 8.1: Impairment 

Section 8.2: Wage Loss 

Section 9.0: Other Administrative Matters 

Section 9.1: Interactions with the DEEOIC 

Section 9.2: Processing of Claims Takes Too Long 

Section 9.3: Medical Benefits Card 

Section 9.4: Legal and lay Representatives 

Section 9.5: Taxability of EEOICPA Benefits 

Section 10.0: Assessment of the Most Common Complaints, Grievances and Requests for Assistance

Conclusion 

Appendix 1: EEOICPA Statistics as of December 31, 2009 

Appendix 2: List of Town Hall Meetings for Calendar Year 2009

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2009 Annual Report to Co

2009 Annual Report to Congres

MESSAGE FROM THE OMBUDSMAN

 

One of the duties of the Office of the Ombudsman is to issue an annual report to Congress, no later than 

February 15th of each year, detailing the number and types of complaints, grievances, and requests for 

assistance received by the Office during that year, and to provide an assessment of the most common 

difficulties encountered by claimants and potential claimants during the previous year. See 42 U.S.C. § 

7385s-15(e).

Our ability to fulfill this duty is directly related to the willingness of claimants, potential claimants, family 

members and other interested parties to contact our Office to discuss their complaints, grievances, and 

needs for assistance. For some claimants just finding the time and having the physical strength to call us 

can be a burden. On the other hand there are claimants who, in order to forward materials to us, had to find 

a fax machine or copier, as well as others who traveled hours to a town hall meeting, patiently sat through a 

presentation and then waited in a line for their turn to meet with us. I want to sincerely thank each and every 

claimant, potential claimant, family member and all others who, during the course of the past year, took the time 

to share their concerns with the Office of the Ombudsman.

In addition, support from the Department of Labor’s Division of Energy Employees Occupational Illness 

Compensation (DEEOIC) is critical if this Office is to be effective, and while the DEEOIC has worked 

cooperatively with us since our inception, this year their support was truly commendable. Their willingness to 

assist us, as well as the promptness with which they responded to our inquiries, continues to be a tremendous 

help. To the entire staff of the DEEOIC, those in the Washington, D.C. office, as well as the staffs of the district 

offices and resource centers, I sincerely thank you for all of your support. Moreover, I recognize that this year 

we pursued a very ambitious outreach schedule, and I realize that this schedule put a strain on the staff of the 

DEEOIC. Accordingly, I wish to especially thank everyone who helped with these projects - especially those 

who rushed to meet the demands of these schedules and/or those who participated in these outreach efforts.

One of the highlights of the past year was a concerted effort to improve both the quality and the quantity 

of the cooperation/coordination between the Department of Energy; the DEEOIC; the National Institute for 

Occupational Safety and Health (NIOSH); the Ombudsman to NIOSH; the Former Worker Medical Screening 

Program; the Center for Construction Research and Training (CPWR) and this Office. These efforts facilitated 

our ability to participate in 20 town hall meetings in 11 different cities. (See Appendix 2 for a listing of these 

town hall meetings). However, while I am pleased that we hosted and/or participated in so many town hall 

meetings, I am even more pleased that as a result of the expanded coordination/cooperation between the 

various agencies, there was an increase in the assistance available to those who attended these meetings. This 

“one stop service” has been well received and is beneficial to claimants, many of whom are in poor health and/

or would otherwise have to travel to different locations to obtain each of these services. Since, I have already 

thanked DEEOIC, I will now take a moment to acknowledge and thank the other agencies involved in this effort.

I would like to thank the Department of Energy (DOE) for proposing this effort to bring together all of these 

agencies and for all of the other assistance they provided throughout the past year. As noted above, as a result 

of these joint efforts, we have made great strides in ensuring that town hall meetings provide a forum where, in 

addition to voicing their concerns, claimants can also receive immediate assistance with many aspects of their 

claims. Moreover, as we continue to work with the DOE, we become more aware of the vast array of resources 

available to this agency, and as a result become more effective in utilizing these resources to assist claimants. 

I truly appreciate all of the DOE’s efforts.

I also would like to thank NIOSH for their prompt response to our many questions; for ensuring that staff 

members attended many of our town hall meetings, and for the training that they provided to members of this 

Office. Moreover, I must also thank the Ombudsman to NIOSH for all of her help with and her participation in 

our town hall meetings and for the invaluable technical assistance that she provides on claims, especially claims 

involving dose reconstruction and/or Special Exposure Cohorts. It is a pleasure to work with NIOSH and with 

the Ombudsman to NIOSH and I look forward to another great year.
2 United States department o

Allow me to also thank the Former Worker Medical Screening Program for permitting us to participate in their 

town hall meetings; for participating in our town hall meetings; and for all of the assistance that they provided 

on individual claims. I also want to thank the Former Worker Medical Screening Program for the wide ranging 

assistance provided to us when we were planning our meetings. Similarly, I wish to thank the CPWR for their 

willingness to assist with all of the cases that we referred to them over the course of this year. 

Last, but not least, I want to acknowledge the staff of the Office of the Ombudsman. It is a pleasure to work 

with a group of people who are so committed to assisting claimants. I truly appreciate all of the cooperation 

and assistance that you provide throughout the year. Thank you very much!
2009 Annual Report to 

INTRODUCTION

On July 27, 2009, the eighth anniversary of its administration of the EEOICPA, the Department of Labor (DOL) 

announced that it had paid $5 billion in compensation and medical benefits to more than 52,600 claimants 

nationwide under the EEOICPA. Even if you simply focus on Part E of EEOICPA, there has been steady 

progress in the adjudication of cases.

Mid-December 2005 December 21, 2008 December 31, 2009

Recommended Decisions 2,749 39,938 45,490

Final Decisions (total) 2,380 37,571 43,641

Final Decisions (approved) 1,991 20,049 23,805

Compensation Paid Over $254 million Over $1.3 billion Over $1.8 billion

Chart 1

Note: these statistics reflect Part E claims only. See Appendix 1 for the DEEOIC’s 2009 statistics for the 

EEOICPA.

In addition, the DEEOIC continues to review this program and continues to make improvements. Some of 

the improvements initiated by the DEEOIC in FY2009 include: (1) providing the resource centers with greatly 

increased access to the Energy Case Management System so that the staff can better explain to claimants 

the status of their cases and help identify steps that claimants need to take to support their claims; (2) 

implementing procedures to simplify and expedite wage-loss and impairment claims; and (3) issuing policy 

guidance to expedite interactions with the Social Security Administration to obtain employment verification and 

wage-loss information.

Yet in spite of the impressive amounts of money that have been paid and in spite of the efforts of the DEEOIC 

to improve this program, claimants, as well as authorized representatives, continue to contact our Office, as 

well as come to our town hall meetings, to voice concerns and misgivings about this program. While one 

might expect complaints from those whose claims were denied, the complaints received by this Office do not 

exclusively come from those whose claims were denied. We are also contacted by claimants with pending 

claims, as well as some claimants with awards of compensation. When you listen to these complaints it quickly 

becomes evident that there is more to many of these complaints than a mere disagreement with the outcome of 

the claim.

Consistent with our mission, this report details the number and types of complaints, grievances, and requests 

for assistance that this Office received during calendar year 2009. We are also tasked, however, with providing 

an assessment of the most common complaints, grievances, and requests for assistance received during the 

year, and in order to do this, we believe that it is necessary to understand the cause/nature of these complaints 

– i.e., why is it that claimants disagree with a particular statute/regulation/decision. Accordingly, in addition to 

detailing the number and types of complaints, grievances, and requests for assistance received during 2009, 

we will provide insights into the cause/nature of the complaints, grievances, and requests for assistance that we 

received this past year.

SECTION 1.0
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HISTORY OF THE EEOICPA

There are a number of activities involved in the development of nuclear weapons. When the U.S. government 

initiated a program to build a nuclear arsenal, these activities were performed at hundreds of sites located 

around the country. Some of these sites were owned by DOE or its predecessor agencies and operated by 

contractors.1

 Other sites were privately owned, but worked under contract with DOE, while others provided 

DOE and its operations contractors with services and supplies. See Linking Legacies, Connecting the Cold War 

Nuclear Weapons Production Processes to Their Environment Consequences, The U.S. Department of Energy, 

Office of Environment Management, January 1997. 

The activities at these sites often involved working with radioactive materials, as well as toxic substances. In 

October 2000, concerns for the health and safety of these workers led to enactment of the EEOICPA as Title 

XXXVI of Public Law 106-398, the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001. 

Part B of this program, which is administered by the DOL, provides compensation and/or medical benefits/

medical monitoring to certain enumerated employees and their eligible survivors if they suffer from cancer that 

is at least as likely as not caused by radiation exposure; or if they suffer from chronic beryllium disease; chronic 

silicosis; or beryllium sensitivity.

Pursuant to Part D, which was administered by the Department of Energy (DOE), Congress directed the DOE 

to provide claimants with assistance in obtaining state-based workers’ compensation. There were, however, 

obstacles that prevented the efficient administration of Part D. For instance, because of the years that had 

passed since their exposure to toxic substances, many claimants found it difficult to prove that their illness was 

caused by exposure to work related toxins.

In 2004 Congress responded by repealing Part D and enacting new Part E as § 3161 of Public Law 108-375, 

which established Part E as a new federal compensation scheme for DOE contractor and subcontractor 

employees. Section 3161 of Public Law 108-375 also directed the Secretary of Energy to provide all applicable 

records, files and other data to the Secretary of Labor, and mandated that DOL prescribe regulations and begin 

to administer the new Part E program within 210 days of enactment. On May 26, 2005, DOL prescribed interim 

final regulations, thereby meeting the 210 day deadline imposed by Congress.

1

 The Manhattan Engineer District was established in 1942 and in 1947 its functions were transferred to the Atomic Energy Commission 

(AEC). In 1974, the AEC was abolished and the Energy Research & Development Administration (ERDA) was created to replace the AEC. 

Subsequently, in 1977 the ERDA became the Department of Energy.

SECTION 1.1
2009 Annual Report to 

THE OFFICE OF THE OMBUDSMAN

Enacted in 2004, Public Law 108-375 also created an Office of the Ombudsman (the Office) and urged the 

Secretary of Labor to take appropriate action to ensure that it be an independent Office within the Department 

of Labor (DOL), including independence from the other officers and employees of the DOL engaged in activities 

related to the administration of the provision of the EEOICPA. See 42 U.S.C. § 7385s-15(d). The Secretary 

of Labor appointed an Ombudsman in February 2005, and the Office submitted its first report to Congress 

covering calendar year 2005 on February 15, 2006. When initially created, the duties of the Office only 

extended to Part E. On October 28, 2009, Public Law 111-84, the National Defense Authorization Act for Fiscal 

Year 2010, expanded the authority of the Office to also include Part B of the EEOICPA. 

The day to day activities of the Office are driven by two goals; 1) to provide information and assistance to 

claimants and potential claimants regarding the EEOICPA; (2) to provide opportunities for claimants and 

potential claimants to express their complaints, grievances, and requests for assistance concerning this 

program. In achieving these goals, the Office:

• Engages in outreach – We sponsor town hall meetings, as well as attend other meetings, forums and 

workshops where we discuss the EEOICPA and its requirements. This year, with the assistance of the 

efforts of a task force comprised of many of the agencies involved with the EEOICPA we were able to attend 

20 outreach meetings in 11 different cities.2

• Clarifies/explains documents and procedures – The EEOICPA can be very complicated and decisions 

are oftentimes based on very technical medical, scientific and/or legal concepts. We are contacted by 

claimants who find it difficult to comprehend these concepts. In addition, there are a many nuances to 

this program – for example for many of the “rules” there is at least one exception. Some claimants need 

assistance “steering the right course” as they proceed with their claim.

• Receives complaints, grievances and requests for assistance – Individuals with pending claims; 

individuals whose claims were denied; as well as some individuals whose claims were awarded, contact the 

Office or attend our town hall meetings, to voice complaints and grievances with this program. We are also 

contacted on occasion by claimants who have complimentary comments concerning the program – usually 

complimenting the services provided by individuals associated with the program.

• Provides assistance – It is rare when we are contacted by an individual who simply wants to voice a 

complaint. Most individuals contact us because they are seeking assistance with their claim. In some 

instances, we are asked to explain a word or decision. On other occasions, we are asked to provide 

assistance locating necessary records, or our input is sought on how to proceed with a claim. Inasmuch as 

many claimants do not have access to computers, we also frequently provide public information such as 

copies the Site Exposure Matrices; Site Profiles; listing of the 22 cancers covered for purposes of Special 

Exposure Cohorts, etc. Within the limits of our authority and resources, we assist claimants however we 

can. 

The report that follows is a synthesis of the many e-mails, letters, telephone calls, faxes, and face to face 

conversations that members of this staff had over the past year. 

2

 The Joint Task Force was a project proposed by the Department of Energy that brought together DEEOIC; the National Institute of 

Occupational Safety and Health (NIOSH); the Ombudsman to NIOSH; the Former Worker’s Medical Screening Program; and the Center for 

Construction Training and Research.

SECTION 1.2
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TABLES

The following tables detail the number and types of complaints, grievances, and requests for assistance 

received by the Office during the past year. Table 1 categorizes the complaints by type and provides the 

number of complaints for each category. Table 2 expands on the information provided in Table 1 by further 

delineating some of the specific complaints encompassed in some of the categories and by additionally 

identifying each complaint as statutory, regulatory or administrative. Table 3 details the number of complaints 

that we received over the past year according to the facility that employed the worker.

In reviewing these tables, some things to keep in mind are:

• Claimants rarely present their concerns in a manner that is easy to categorize.

• Claimants generally do not contact us with just one complaint or grievance. Rather, most claimants contact 

us to voice their concerns with an event or experience related to the processing of their EEOICPA claim. 

Based on claimant’s recount of this event or experience, we identify specific complaints, grievances, and 

requests for assistance.

• Especially at town hall meetings and other outreach events, the pace and volume with which we receive 

comments usually renders it impossible to accurately count every complainant or to record the nature of 

every complaint.

 

• One claimant may have more than one comment/complaint. In such instances, each comment/complaints 

is counted separately.

• Our conversations with claimants often “touch” on many issues. Nevertheless, in identifying and 

categorizing complaints, we focus on issues directly related to claimant’s current concern. For instance, 

in addressing a complaint concerning consequential illnesses, we might discuss the cap on the benefits 

to which a claimant is entitled. However, since claimant did not contact us to discuss the cap on benefits, 

and to the extent that this claimant is not immediately impacted by this cap, we would not “count” this 

conversation in our table of complaints. On the other hand, we would certainly take note of any comments 

offered by the claimant and would refer to these comments when addressing the issue of the cap on 

benefits.

SECTION 2.0 SECTION 2.1
2009 Annual Report to 

 Table 1: Complaints by nature

COMPLAINT NUMBER

Covered Employment/Covered Facility 88

Adult Children 50

Compensation is Nullified or Reduced 6

Exposure 30

Dose Reconstruction 57

Special Exposure Cohort 23

Causation 98

Interactions with DEEOIC 99

Must Submit Additional Information 28

Processing of Claim Takes Too Long 42

Needs to File Claim 27

Impairment 37

Wage Loss 17

Offset/Coordination 9

Requests for Assistance 362

Status of Claim 47

Notice of Terminal Illness 6 

Reconsideration/Reopening 14

Problems with Medical Card 15

Misc 20

TOTALS 1075

SECTION 2.1 SECTION 2.2
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SECTION 2.2

Table 2: Complaints by category

(With additional identification as statutory, regulatory, or administrative)

COMPLAINT # COMMENTS Statutory/ Regulatory/ 

Administrative

Covered Employment /

Covered Facility

88 Not covered under EEOICPA...........12

Difficulty locating evidence/ 

establishing status as covered 

employee.....................................59

Covered Illness.............................17

Statutory

Statutory/Administrative

Statutory

Adult Children 50 Request for update on legislation.....16

Other issues..................................34

Statutory

Compensation is Nullified or 

Reduced

6 Death nullified or reduced comp.........6 Statutory

Exposure 30 Statutory/Administrative

Dose Reconstruction 57 Statutory/Regulatory/ 

Administrative

Special Exposure Cohort 23 Problems establishing 250 days.........5

Not one of 22 cancers......................6

Other issues..................................12

Statutory/Regulatory/ 

Administrative 

Statutory

Interactions with DEEOIC 99 Change in claims examiner................4 

Documents are confusing................44

Concerns with DMC’s.....................10

Personnel Rude...............................6

No one answered call......................17

Misc............................................18

Administrative

Administrative

Administrative

Administrative

Administrative

Administrative

Concerned when asked to 

submit additional evidence

27 Administrative

Processing of claim takes too 

long

42 Administrative

Needs to file claim 27 Administrative

Impairment 37 Consequential illness........................4

Difficulty locating a physician.............8

Disagrees with impairment rating......25

Regulatory/Administrative

Statutory/Regulatory/

Administrative

Wage Loss 17 Regulatory/Administrative
2009 Annual Report to 

SECTION 2.2

Offset/Coordination 9 Administrative/Regulatory/ 

Administrative

Requests for assistance 362 Statutory/Regulatory/

Administrative

Status of Claim 47 Status of Part B claim......................15

Status of Part E claim......................23

Status of Part B and E claims.............9

Administrative

Administrative

Administrative

Notice of Terminal Illness 6 Administrative

Reconsideration/Reopening 14 Administrative

Problems with Medical Card 15 Administrative

Misc 20 Cap on benefits...............................3

RECA.............................................1

Tax Issues.......................................3

Power of Attorney............................3

Other............................................12

Statutory

Statutory

Statutory/Administrative

Administrative
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Table 3: Complaints by facility

This table provides the number of known complaints, grievances, and requests for assistance from various 

facilities. Unfortunately, during the course of the year, we engage in many conversations where the identity of 

the facility is not collected. Consequently, the actual number of complaints coming from some of these facilities 

may be higher. 

Facility Number of 

Complaints

2009 Town Hall Meeting 

Held in Vicinity

1 Amchitka Island Nuclear Explosion Site 1

2 Ames Laboratory 5 X

3 Argonne National Lab – East 2

4 Berkley National Lab 1

5 Bendix Aviation 2

6 Bethlehem Steel 2

7 Brookhaven National Lab 1

8 Canoga Avenue Facility 3

9 Elko 4

10 Fernald 69 X

11 Fermi National Accelerator Lab 2

12 General Electric Company 1 

13 General Steel Industries 3 X

14 Granite City Steel 4 X

15 Hanford 31 X

16 Idaho National Engineering Lab 2

17 Iowa Ordnance Plant 16 X

18 K-25 2

19 Lackawanna 3

20 Kansas City Plant 8

21 Linde Ceramics Plant 3

22 Los Alamos National Lab 8

23 Mallinckrodt Chemical Co. 7 X

24 Misc 57

25 Mound 21 X

26 Nevada Test Site 22

27 Oak Ridge 25

28 ORAU 1

29 Paducah Gaseous Diffusion Plant 31 X

30 Pinellas Plant 34

SECTION 2.3
2009 Annual Report to C

31 Portsmouth Gaseous Diffusion Plant 62 X

32 Rocky Flats 3

33 Sandia National Lab 3

34 Santa Susana Field Lab 4

35 Savannah River Site 16

36 St. Louis Airport Storage Site 1 X

37 Uranium Miners/Millers/Transporters 9 X

38 Weldon Spring Plant 3

39 Westinghouse Atomic Power Development 

Plant

1

40 Y-12 3

476

SECTION 2.3
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THE REPORT

In our prior annual reports we categorized the complaints, grievances and requests for assistance received 

by this Office into three categories: (1) statutory issues; (2) regulatory/policy issues; or (3) administrative and 

miscellaneous issues. We utilized these categories since they coincided with responsibility for addressing these 

complaints – some complaints concern the statute and thus must be addressed by Congress; other complaints 

involve the regulations or policy determinations, and where disagreements arise, the recourse may ultimately 

lie with the federal courts; while other complaints concern the administration of the program and thus are best 

directed to the agency responsible for that aspect of the program – i.e., DOL, DOE, and/or NIOSH. 

We continue to believe that utilizing these categories is an effective way to present the complaints, grievances 

and requests for assistance that we receive, and consequently, we include Table 2 (see Section 2.2) where we 

identify the complaints addressed in this year’s report as statutory; regulatory or administrative.

In most instances, claimants do not contact us with just one specific complaint or grievance, rather their 

complaints and grievances are usually part of a broader concern with an event or decision. Therefore, in order 

to fully appreciate the issues discussed in this report it is necessary to understand the context within which 

these complaints and grievances arose. Consequently, this report will endeavor to provide some context to the 

event(s) and decisions(s) that prompted claimants to contact our Office. In order to accomplish this goal, this 

report will focus on the requirements/burdens for establishing entitlement to benefits and compensation under 

Part E, and will utilize these requirements/burdens to categorize the complaints, grievances, and the requests 

for assistance that we received in 2009. Accordingly, we will categorize each complaint, grievance, and request 

for assistance into one of the following categories: (1) Covered Employment/Survivor Eligibility; (2) Exposure: 

(3) Causation; (4) Wage-Loss/Impairment; or (5) Other Administrative Matters. We believe this approach will 

assist in illustrating the many hurdles that confront claimants when processing an EEOICPA claim, and in turn 

will explain why in some instances it is not one, but rather a culmination of events that prompts claimants to 

contact us.3

 

Moreover, in reviewing our contacts over the past year, we recognized many instances where claimants went 

beyond merely reporting their complaint or grievance – for many claimants it was important that we understood 

why they were unhappy or why they disagreed with the decision that had been rendered. As Table 1 (see 

Section 2.1) indicates, there is a wide range in the complaints that we received in 2009 – from complaints 

concerning dose reconstruction to questions about taxes or long term disability insurance. However, in spite of 

this wide range in the complaints that we receive, there are four themes that continually underline many of the 

concerns that we receive. Although these four themes do not fully explain all of the complaints, grievances, and 

requests for assistance, they do provide a foundation for understanding many of the concerns that are brought 

to our attention. These four themes are:

1. The program does not meet claimant’s expectations;

2. The burdens placed on claimants are not “claimant-friendly” and/or are too high, especially in light of 

all of the circumstances; and

3. The program is not “fair”

4. Issues of trust that are expressed in two ways, (1) feelings that program does not trust the claimants 

and (2) misgivings that claimants have concerning the program.

As we will emphasize how these four themes continue to underline and impact many of the complaints, 

grievances, and requests for assistance that we receive.

3

 For most of this calendar year, the authority of this Office only extended to Part E, and as a result, a majority of the complaints, grievances, 

and requests for assistance addressed in this report concern Part E. Nevertheless, as in previous years, because Part B findings may impact 

the Part E claim, there are occasions where in order to effectively assist a Part E claimant, it was necessary to consider the Part B issues. 

Consequently, some issues that more commonly arise with Part B are addressed in this report. 

SECTION 3.0
2009 Annual Report to C

Ises

Many complaints do not fit neatly into any one category, thus there is often overlap – i.e., a complaint 

addressing the burden of establishing employment may include issues concerning the inability to understand 

documents that were received. In most instances, we place the complaint in one category and address all of 

the issues involved with this complaint at that time. However, there are three issues that have such an overreaching impact that we think it best to address these issues separately. Thus we begin our discussion of the 

most common complaints, grievances, and requests for assistance received in calendar year 2009 with these 

three complaints:

1. Claimants are often ill and/or of advanced age when processing an EEOICPA claim;

2. EEOICPA is a complicated program; and

3. Vow of secrecy. 

Claimants are often ill and/or of advanced age when 

processing an EEOICPA claim 

Workers are ill and some are of advanced age when they file their EEOICPA claim. A common complaint 

that we hear is that it is overwhelming to process an EEOICPA claim while trying to cope with an illness and/

or when you are of advanced age. An encounter with a claimant in St. Charles, Missouri amply illustrates 

this problem. This claimant drove a friend to the town hall meeting. During the meeting she did not raise any 

concerns or have any questions. It was only when the formal presentations were over and the friend engaged a 

representative from this Office that this claimant finally spoke up. In support of the concerns expressed by her 

friend, this claimant recounted her own ordeal having to locate former colleagues in order to establish covered 

employment and having to go from “doctor to doctor” to obtain the relevant medical reports. Then this claimant 

looked at us and asked, “and can you imagine doing all of this while undergoing chemotherapy for cancer?” 

Benefits and compensation under the EEOICPA are premised on the existence of a covered illness. In addition, 

covered EEOICPA employment could have occurred as early as 1942. Consequently, many of the workers who 

contact our Office are ill and some are of advanced age when they file their EEOICPA claim. Claimants often 

find it entirely too demanding to cope with these issues and at, the same time, to process an EEOICPA claim. 

Many claimants argue that it is not “claimant-friendly” and some suggest that it is “unfair” to have waited so 

long to create the EEOICPA and then, knowing that the workers are now ill and that some are of advanced age, 

to create a program in which their active participation is often essential for success.

Some family members raise a similar concern – they note that it is only in response to the declining health 

of their loved one that they became involved with the EEOICPA claim, and they often assert that it can be 

overwhelming to process an EEOICPA claim while tending to the health needs of their loved one. The stress of 

processing an EEOICPA claim while tending to the health needs of a loved one can be even greater when the 

loved one’s illness is terminal. This is precisely the complaint that we received from a claimant who reported 

that after notifying the DEEOIC of her parent’s terminal condition, she quickly became overwhelmed with all 

of the paperwork that she had to complete. To its credit, and consistent with its policies, when notified of this 

claimant’s terminal condition, the DEEOIC initiated actions to expedite the claim. However, it all became too 

much for this claimant when she was informed that there was a document that the parent would have to sign. 

In spite of the offer by the DEEOIC to bring the document to the hospital, this claimant decided that processing 

an EEOICPA claim was not how she wanted to spend those moments. 

In another case, with their loved one in a terminal state, in light of issues that arose with the power of attorney, 

the family had to scramble to complete the claims process.4

 In recounting their concerns, this family continues 

4

 As noted in our 2006 report, DEEOIC undertakes legal review of powers of attorney at the end of the claims process. As the above case 

illustrates, this approach can lead to instances where the desire to expedite the claim (due to the terminal illness of the claimant) is impacted 

by the need to perfect the power of attorney. See 2006 Annual Report to Congress, Office of the Ombudsman, February 15, 2007.

SECTION 4.1 

SECTION 4.0 

SECTION 4.1 
14 United States department o

to make reference to the fact that while coping with the terminal illness of their loved one, they had to make 

numerous trips to the hospice (a journey of about 100 miles) and had to “push papers” in front of their loved 

one, all to no avail.

Many of the claimants whom we met over the course of this year asked us to be sure to stress how the 

problems that they encountered with their EEOICPA claim were compounded by the fact that they processed 

these claims while coping with their own illness or with the illness of a loved one, and in some instances, when 

they were of advanced age.

EEOICPA is a complicated program

Part E grants covered DOE contractor and subcontractor employees, and the qualified survivors, with a federal 

payment if the employee develops an occupational illness (or dies) as a result of exposure to toxic substances 

at a covered DOE facility. In many instances, in order to establish each element of entitlement claimants may 

need to delve into very complex legal, scientific and/or medical concepts.

For instance, in one case, in order to establish that the worker was employed by a DOE contractor, the claimant 

had to establish that there was a contract for the management and operation, management and integration, or 

environmental remediation at the facility, or whether the employer provided services including construction and 

maintenance, and this in turn led to a discussion of the “borrowed servant doctrine.”

In another case, while the claimant was able to rely on SEM to link nickel, chromium, beryllium and arsenic to 

the cancer, the claim was nevertheless denied because the claimant worked with these toxins in solid forms and 

it was determined that in this form these toxins would not have “caused a health hazard exposure.” 

Adding to the complexity of the EEOICPA is the many and varied nuances in the law. When processing their 

claims, many claimants look for “simple” rules. Unfortunately, many of the rules governing the EEOICPA are 

not “simple,” and attempts to explain or understand the EEOICPA are often complicated by the exceptions that 

exist for many of the rules. Many claimants find it impossible to grasp all of the rules and exceptions.

Further compounding this problem is the fact that there are not a lot of attorneys or other representatives 

with the expertise and willingness to assist EEOICPA claimants. Moreover, even where such representation 

exists, many claimants tell us that they are reluctant to retain the services of an attorney or other representative 

because they fear that the fees charged by these representatives will significantly reduce their compensation. 

As a result, most claimants who contact us are proceeding without legal or other representation.

Even though they try, many claimants find it impossible to develop a firm understanding of all of the rules and 

exceptions contained in the EEOICPA statute and regulations. We hear of many instances where claimants 

become frustrated when they believe that they have met all of the necessary requirements, only to have (what 

they view as) a new rule/exception placed before them. In fact, a common refrain that we hear is that in light of 

the complex nature of the EEOICPA, some claimants feel that they are continuously competing against a stable 

of lawyers, doctors and scientists.

SECTION 4.2
2009 Annual Report to C

Vow of secrecy

The work performed at these DOE facilities was secret. The workers were ordered not to discuss their 

employment with anyone, including their families, and most claimants fully complied with this directive. In fact, 

it is quite common to encounter situations where the worker maintained this vow of secrecy not only while 

employed at the facility, but even when his/her employment ended (and in some instances, even when these 

facilities closed and/or were torn down). In previous reports, we discussed how in light of this vow of secrecy 

many family members have no knowledge concerning the work performed by their loved ones. We continue 

to hear these complaints. This year, we also encountered a number of instances that seemingly confirm our 

suspicion that there are workers who, in light of this vow of secrecy, deliberately choose not to reveal everything 

that they know concerning their employment to those charged with assisting them with their EEOICPA claim. 

Since these claimants also refuse to discuss this information with our Office, it is impossible to determine if 

this information is relevant to their EEOICPA claim. Yet, based on the comments that we have heard, we have 

concerns that some claimants may be withholding information that could be relevant to their claim.

It is our understanding that a process exists whereby EEOICPA claimants can be interviewed by government 

employees who possesses the appropriate security clearance. In our experience, many claimants are not 

aware of this process. Moreover, where the claimant is reluctant to reveal all of the details of his/her job, this 

reluctance usually applies to anyone associated with the DOL – many of these claimants believe that the 

directive to maintain secrecy came from a source “higher” than the DOL and thus if it is to be rescinded, it must 

be rescinded by someone “higher” than anyone at the DOL. 

In addition, there are suggestions that some claimants will not discuss certain events (specifically certain spills 

and other mishaps) out of loyalty to their colleagues and a fear that their revelations could get someone into 

“trouble” – and once again it is suggested that some claimants refuse to talk about these events even though 

their employment ended years ago.

SECTION 4.3

SECTION 4.2 SECTION 4.3 
16 United States department o

Covered

In order for there to be covered employment under Part E, the worker must be (or have been) a covered 

employee who worked at a covered DOE facility and worked for a DOE contractor or subcontractor.

5

 Each 

aspect of this requirement continues to be a source of complaints and grievances. The most common 

complaints concerning covered employment include:

• Employees not covered by the statute

• The differences in coverage under Part B and Part E

• Locating evidence of employment

• Covered facility

• DOE contractor or subcontractor

In addition, the most common survivor issues address:

• Definition of an eligible child

• Factors that reduce or nullify compensation

Employees not covered by the statute

As referenced in the History of the EEOICPA (see Section 1.1), the nuclear weapon program employed hundreds 

of thousands of workers. Many of these workers were employed by contractors or subcontractors, some were 

employed by the federal government, and others were assigned to the military. Only certain of these workers, 

however, are entitled to benefits/compensation under the EEOICPA. During the course of the past year, we 

were contacted by members of the military and employees of the federal government (mainly the Department 

of Defense and the Department of Army) who argue that it is contrary to the intent of this program, as well as 

unfair, that they are not covered under the EEOICPA. We heard a similar argument from a union business agent 

who, as part of his duties, spent much of his workweek at a covered DOE facility. This gentleman now suffers 

from an illness that he believes is causally related to toxic exposure arising from his work at this facility, and like 

those employed by the federal government or assigned to the military, cannot understand why he is not eligible 

for benefits under the EEOICPA.

Claimants who worked at these sites but who are not covered under the EEOICPA question why coverage is not 

extended to them especially since they performed the same jobs and were exposed to the same toxins as those 

who are covered. In many instances this concern is compounded by the fact that: (1) no one can provide these 

claimants with a rationale for why they are not covered under the EEOICPA, and (2) no one can direct them to 

a program that will compensate them for their illnesses arising out of their employment at these facilities. In 

one instance, compounding the fact that as a former employee of the Department of Defense she is not eligible 

for EEOICPA benefits, this employee continues to encounter difficulties pursuing a claim under the Federal 

Employees’ Compensation Act.6

 

5

 The exception is that workers at RECA Section 5 facilities are also eligible for Part E benefits.

6

 While some of these claimants may be “eligible” to apply for compensation under other programs such as state workers’ compensation 

programs, in most instances brought to our attention, claimants find it difficult, if not impossible, to successfully process a claim under these 

programs.

SECTION 5.0

SECTION 5.1

SECTION 5.1
2009 Annual Report to C

Differences in coverage under Part B and Part E

There are two “Parts” to the EEOICPA, Part B and Part E. While there is some overlap, each “Part” 

compensates for different illnesses and covers different workers. Chart 2 illustrates the illnesses covered under 

Part B and E:

 

Part B Part E

• Any cancer (at least as likely as not caused by 

radiation exposure)

• Chronic Beryllium Disease (CBD)

• Chronic Silicosis (specific sites)

• Beryllium Sensitivity

• Any occupational illness at least as likely as not 

caused, aggravated, or contributed to by exposure 

to a toxic substance

Chart 3: identifies the workers covered under each “Part” of the EEOICPA:

DOE 

Employee

Military 

Personnel

Employee 

of Beryllium 

Vendor

Employee 

of Atomic 

Weapons 

Employer

DOE Contractor 

or Subcontractor

RECA Section 5 

Claimant

Part B X X X X X

Part E X X

In St. Charles, Missouri we met three former workers of General Steel Industries (General Steel) who worked 

for this company during a period when it performed work as an Atomic Weapons Employer (AWE). As AWE 

employees these workers are covered under the EEOICPA if they are eligible under Part B. Unfortunately, 

while they have illnesses related to their employment with General Steel, these employees do not have cancer, 

chronic beryllium disease; chronic silicosis, or beryllium sensitivity, and thus do not suffer an illness covered by 

Part B. Consequently, these three gentlemen are not entitled to benefits/compensation under the EEOICPA – 

they do not have an illness covered under Part B and are not eligible under Part E. Further, these gentlemen 

assure us that they have made attempts to find an attorney who will assist them in pursuing a state worker 

compensation claim, but cannot find one willing to take their case. These gentlemen cannot understand 

how they can have an illness related to their work and yet not be entitled to benefits or compensation under 

EEOICPA. It is especially troublesome to these gentlemen to know that if they had cancer (or chronic beryllium 

disease) they would potentially be covered under Part B, but since they suffer an illness other than cancer (or 

chronic beryllium disease), they are not covered, even though their illness is related to their work. They similarly 

question why the designation of their employer (AWE versus DOE contractor/subcontractor) impacts their 

eligibility.

Over the course of this year, we met a number of claimants who face this same predicament. They are not 

eligible for benefits or compensation under the EEOICPA because they do not have an illness covered under 

Part B and did not work for a covered Part E employer. These employees find it troubling that: (1) no one can 

provide them with a rationale for why the nature of their illness or the identity of their employer should impact 

their coverage under the EEOICPA; and (2) generally there is no viable alternative program that will compensate 

them for their illnesses.7

7

 Many claimants who worked at these facilities but who are not eligible under the EEOICPA report that they encounter significant difficulties 

pursuing a claim under other worker compensation programs. The inability to locate their employer is often fatal to their claim. Moreover, 

while there are limits to the assistance provided by the DEEOIC, most other programs do not offer the level of assistance provided by the 

DEEOIC, and definitely do not offer the specialized assistance offered by the DEEOIC. For instance, one claimant informed us that his state 

workers’ compensation claim was denied because it failed to meet that state’s statute of limitations. 

SECTION 5.2
18 United States department o

Locating Evidence of Employment

One of the most common complaints concerning “coverage” involves the difficulties encountered by claimants 

when attempting to establish that they worked for a particular employer (or at a particular facility). When a 

claim is filed, the DOL collects employment verification or other documentation from the DOE and requests 

verification through the CPWR, the Social Security Administration, and the Oak Ridge Institute for Science 

and Education. In some instances, especially where employment records are lost, destroyed, or were never 

kept, it is impossible for the DOL or any of these other organizations to verify employment, and at that point, 

documentation is requested from the claimant.

Over the course of this year, we encountered a number of claimants who were asked to produce documents 

verifying their employment and many of these claimants have the same comments:

• They find it hard to believe that at least some of their employment records are not still in existence. Many 

employees point out that in order to work at these facilities they had to obtain “Q” clearance and some 

assure us that in order to gain entry, they “signed in” every day. In light of all of this security, many 

claimants firmly believe that some of these records still exist – they question whether every effort has been 

made to locate these records.8

• They argue that if the DOL, with all of the resources available to it, cannot verify employment, it is unfair to 

expect the claimants to locate this evidence, especially since this employment occurred many years ago 

and it was never the claimant’s responsibility to maintain these records.9

• Many claimants indicate that when asked to produce evidence to verify employment, the suggestions 

provided to them as to where to look for documents are not very helpful and/or very realistic. In response 

to the suggestion that they obtain affidavits from co-workers claimants are adamant that co-workers are 

either dead, cannot be located, or do not have the mental capacity to complete an affidavit. Similarly, in 

response to the suggestion that claimants search for tax returns, pay stubs, etc, claimants assure us that if 

they ever had these records, they were tossed out years ago. 

• Many claimants take it very personal when their claim is denied on the ground that they did not establish 

their status as a “covered employee.” Claimants often tell us that they believe that their statements 

attesting to their employment should be sufficient to verify employment, especially where there is no 

affirmative evidence to the contrary. While we do our best to assure claimants that a denial of their claim is 

not a ruling on their credibility (and should not be perceived that way), a number of claimants have told us 

that they view a denial as a rejection of their “word.”

The problems associated with establishing a worker’s status as a “covered employee” can be as great, if 

not greater, for survivors. As previously noted, the work at these facilities was secret and employees were 

instructed not to discuss their work with anyone, including their families. In many cases, survivors have no idea 

of the work performed by their loved one, and as a result, have no idea of where to even start a search. One 

example that highlights this fact concerns a surviving child. The worker was employed with the Feed Material 

Production Center (Fernald), a facility that converted uranium into uranium metal and fabricated uranium metal 

into feed stock for fuel and target elements. In talking with this surviving child, she states that while she heard 

her father mention Feed Material Production Center, she always thought that it was a plant that made food for 

animals. (Note: Fernald also had a checkerboard water tower).

Many of the complaints concerning the difficulties associated with establishing one’s status as a “covered 

employee” are the same whether it is the worker or the survivor who is faced with this burden. One complaint, 

however, that is exclusively raised by survivors is the argument that it is unfair for the government to have 

instructed a parent not to discuss his/her employment with anyone (and for this parent to have honored this 

8

 In 2005 documents from the Mound Plant were buried in a New Mexico landfill for radioactive waste. While it was ultimately determined 

that these documents had no value for purposes of the EEOICPA, some claimants continue to question this conclusion. More importantly, as 

the news of this incident spreads, claimants question whether documents from other facilities may have been destroyed as well.

9

 In response to these comments, the DOE indicates that many of the records were destroyed according to existing record schedules. For 

instance, gate logs were typically destroyed after 5 to 7 years. Nevertheless, the DOE also notes that many records are still in existence, and 

wherever possible are used as a primary source in verifying employment. In addition, the DOE indicates that it has undertaken projects to 

find and index such record collections.

SECTION 5.3

SECTION 5.3
2009 Annual Report to C

directive) and for the government to now place the survivor in the position where his/her claim is denied 

because the survivor does not possess sufficient knowledge about the parent’s employment.

Covered Facility

Another requirement for covered employment under Part E is that the worker must have worked at a covered 

Department of Energy facility. The statute defines a “Department of Energy facility” as

...any building, structure, or premise, including the grounds upon which such buildings, structure, or 

premise is located – 

(A) in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except 

for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, 

dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); 

and

(B) with regard to which the Department of Energy has or had –

i. a proprietary interest; or

 ii. entered into a contract with an entity to provide management and operations, management 

 and integration, environmental remediation services, construction, or maintenance services.

42 U.S.C. §7384l(12).

Where questions arise concerning the status of a facility, these questions are often problematic for claimants. 

Here are a few of the complaints that we received this past year concerning the status of a facility:

• Weapons were stored at a number of facilities, including the Medina Base, adjacent to Kelly and Lackland 

Air Force Bases in Texas; the Killeen Base, adjacent to Gray Air Force Base and Fort Hood in Texas; and the 

Bossier Base, adjacent to Barksdale Air Force Base in Louisiana. One claimant called to inquire why those 

who worked at the Medina Base are covered under EEOICPA, but those who worked at the Killeen Base or 

the Bossier Base are not covered.10 

The response by the DEEOIC indicated that while the Medina Base met the definition of a “Department of 

Energy Facility,” the DEEOIC performed a detailed analysis of both the Killeen Base and the Bossier Base 

and found that neither facility met this definition. In spite of this answer, this claimant still questions why it 

is that one facility meets the definition of a “Department of Energy Facility” and the others do not when all of 

these facilities stored weapons.

• At some sites only certain areas are designated as DOE covered facilities. Some workers argue that 

this designation ignores the fact that workers were frequently directed to work all around these facilities, 

including at the areas designated as a DOE facility, and in many instances, this movement was never 

documented. Workers also argue that due to the physical layout of some of these sites, anyone present at 

these sites would have been exposed to the toxins used at the facility. Accordingly, some claimants believe 

that since everyone was exposed to these toxins, it is unfair to only cover certain employees. These are 

the precise arguments raised by former workers at the Santa Susana Field Laboratory. They argue that it 

is unfair to only cover those listed as working at Area IV since in reality many other workers also performed 

work at this site, but the work of these other employees was never documented. They also assert that in 

light of the physical layout of this site, anyone working in proximity to Area IV would have been exposed to 

the toxins used at Area IV. 

10 NIOSH may prepare a site profile for those facilities that meet the definition of “Department of Energy facility” as that term is used in the 

EEOICPA. A site profile is a document that contains information about a facility’s general activities and radiation protection practices. The 

site profile includes the physical appearance and layout of the work site, the work processes used there, the types of materials used, potential 

sources of radiation, the exposure monitoring practices employed by the site over time, and other details important to that work site.

SECTION 5.4

SECTION 5.4
20 United States department o

• A former employee of a plant operated by Babcock & Wilcox in Lynchburg, Virginia is encountering 

severe delays with her claim. Her claim for cancer was filed almost two years ago and as of yet the dose 

reconstruction has not been completed. The case was placed on hold pending the creation of a class in the 

Special Exposure Cohort for at least some undefined subset of workers at this facility, however this led to a 

question concerning whether there were actually two facilities.11 In order to resolve this question additional 

information was sought from the DOE. We understand that the question as to whether there were two 

facilities has been resolved and presumably this claim can proceed. In the meantime this claimant indicates 

that in light of the medical bills associated with her illness, she is close to exhausting all of her savings and 

is frustrated that no one can provide her with an estimate of how much longer it will take to resolve her 

claim. She also is upset that there is no provision in the EEOICPA for temporary assistance in situations 

such as hers where there is such an extended delay in the processing of the claim.12

DOE Contractor or Subcontractor

This past year, there were a number of instances brought to our attention where the claimant encountered 

difficulties establishing that his/her employer had a contractual relationship with DOE (or a DOE contractor) - a 

statutory requirement in order to establish coverage in those cases. As difficult as it can sometimes be for 

claimants to prove that they worked at these facilities, it is often virtually impossible for claimants to prove 

the existence of a contractual relationship between their employer and DOE (or a DOE contractor). Claimants 

assert that they were simply hired and/or directed to work at these sites and never had reason (or a need) to 

inquire about the existence of a contract. Consequently, where neither DOE and/or the employer can produce 

evidence of a contractual relationship, claimants indicate that they are at a complete loss as to where to look for 

these records. Compounding this problem for many claimants is the fact that the evidence that they are able to 

locate is often deemed insufficient to establish a contractual relationship.

The problems encountered by claimants attempting to establish a contractual relationship are illustrated by a 

few examples brought to our attention this year.

• A gentleman submits two affidavits signed by co-workers attesting to his employment as a trackman at 

the Paducah Gaseous Diffusion Plant (PGDP). To further bolster his claim, he submits his USEC badge13; 

his PGDP visitor access card and his “PGDP General Employee Training” access badge. In spite of these 

submissions, the claim is denied on the ground that “[n]o evidence was submitted to establish that a 

contract existed between the employee’s employer and the DOE as required under the Act.”

• Relying on records located by DOL, as well as records that he located, a former employee of one facility 

was able to establish that during the years in question, he worked for various employers. He also submitted 

four affidavits attesting that he worked at a DOE facility, as well as a letter from a union indicating that 

during the years that he worked for one of his employers, this employer performed services at this DOE 

facility. Unfortunately, because there is no way to verify that any of his employers were a contractor at this 

DOE facility, this claim was denied.

11 The Special Exposure Cohort (SEC) is a category of employees established under the EEOICPA. An individual member (or eligible survivors 

of a member) of a class of employees included in the SEC is entitled to compensation if they have one of 22 specified cancers without having 

to undergo a dose reconstruction performed for his/her case by NIOSH, or to have a decision by the DOL as to whether the cancer was “at 

least as likely as not” caused by occupational exposure to radiation, as is required for other cancer claims covered by the EEOICPA.

12 While the DEEOIC administers EEOICPA, many other agencies have a role with this program. For instance, NIOSH performs the dose 

reconstructions and creates the site profiles, while records from the Social Security Administration (SSA) are often needed to verify 

employment and determine wage loss. Some claimants become frustrated when problems with their claim are attributed to other agencies. 

Claimants believe that since DEEOIC administers EEOICPA, it ought to do more to ensure that these other agencies timely perform their 

duties. In response, DEEOIC notes that it does not have authority over these other agencies. [We do note that this year DEEOIC issued policy 

guidance to allow for more expeditious interaction with SSA to obtain vital employment verification and wage-loss information].

13 The United States Enrichment Corporation (USEC) is a government-owned corporation that assumed has assumed control of PGDP’s 

production activities.

SECTION 5.5

SECTION 5.5
2009 Annual Report to C

• Although civilian employees of the federal government generally are not covered under Part E, there is an 

exception where the federal agency (1) entered into a contract with the DOE for the accomplishment of 

services that it was not statutorily obligated to perform and (2) the DOE compensated the agency for that 

service. In a couple of the instances brought to our attention, civilian employees of government agencies, 

or their survivors, have found it virtually impossible to establish that (1) a contract existed between their 

agency and the DOE, and (2) that the DOE compensated their agency for their services. In one instance, 

the claimant is very troubled that she was able locate a contract, yet her claim was still denied on the 

ground that the contract she located was not a contract as required by Section 7384l(12) – namely a 

contract to provide management and operations, management and integration, environmental remediation 

services, construction, or maintenance services. 42 U.S.C. § 7384l(12).

• We were also approached this year by three former cafeteria workers at Line 1 of the Iowa Ordnance Plant. 

Among the problems encountered by these former workers, they are all finding it difficult to establish that 

their employer (Aramark) had a contract with the DOE contractor (Mason & Hanger-Silas Mason Co., Inc.). 

Although some of these former workers submitted affidavits attesting to their employment in the cafeteria, 

their claims are stymied by the inability to prove the existence of a contract between their employer and a 

DOE contractor.

Especially where the record contains affidavits or other documents attesting to their presence at these facilities, 

claimants cannot understand why there is an additional burden on them to establish the contractual relationship 

between their employer and DOE (or a DOE contractor). Claimants assert that it is unfair and too high of a 

burden to expect them to produce evidence of a contract that they never knew existed and to which they were 

never a party. Some claimants assert that it was their employer and DOE (or a DOE contractor) who were privy 

to these contracts and thus argue that it is the employer and/or DOE who ought to bear responsibility if the 

contract cannot be located. To further emphasize their difficulties, some claimants note that when they are 

asked to establish the existence of these contracts, no one is able to provide them with any suggestions on 

what to do or where to go to obtain this evidence.

SECTION 5.5
22 United States department o

Definition of eligible child

Under Part B, if the worker dies, the survivors eligible to receive benefits include: the eligible spouse; any child; 

parents; grandchildren; or grandparents. Part E, however, is more limiting in terms of the eligible survivors. 

Under Part E, if the worker dies, the eligible survivors are the eligible spouse or certain children – specifically, 

children who at the time of the worker’s death were either:

1. under age 18;

2. under age 23 and continuously enrolled as a full time student; or

3. any age, but incapable of self-support.

This provision of Part E continues to be the source of many of the complaints and grievances that we receive. 

Moreover, throughout the past year, we received numerous inquiries asking if this provision had been amended 

or revised. Similarly, whenever we send out notices announcing an upcoming town hall meeting, we can expect 

an influx of telephone calls inquiring on the status of this provision.

At all of our town hall meetings we can expect that a number of attendees will express their opinion 

on this provision of Part E limiting the children who qualify as eligible survivors. In fact, during one 

of the meetings we attended in Paducah, Kentucky, a group of claimants spoke as a group and 

specifically requested that I guarantee that in this report I let it be known that they strongly believe 

that this provision is unfair and they earnestly believe that this provision needs to be revised or 

changed.

In their complaints concerning this provision, claimants:

• Question why there is a limitation on the children eligible to receive benefits under Part E, when there is no 

limitation on the children eligible to receive benefits under Part B.

• Argue that it is unfair to have waited until many of the workers were deceased before establishing this 

program, and then to place such severe limits on the eligibility of the surviving children.

• Note that while they did not do it for the money, in many instances it was the older siblings who took time 

off from work and made other sacrifices to care for the ill parent and thus it is unsettling that it is often these 

older siblings who are not eligible under Part E.

During this past year, a number of claimants informed us that this provision was the cause of family disharmony. 

We are also aware of instances where the application of this provision resulted in certain family members feeling 

excluded. In one instance, a claimant who we encountered earlier in the year specifically contacted us in the 

months before this report was due in order to re-emphasize his concerns with this provision. This claimant 

concedes that he understands why, if a parent were to die “today,” you would only compensate the “minor” 

children. However, his problem involves those situations where the parent passed away years ago. Under 

those circumstances, he cannot understand the rationale for compensating those siblings who were “minors” 

when the parent died, but not compensating the other siblings, especially since all of the children are now 

adults.14

This year we were approached by claimants who encountered difficulties with that portion of the statute that 

provides that a child is an eligible survivor if at the time of the worker’s death the child was under the age of 

23 and continuously enrolled as a full time student. In one instance, the child was a full time student until they 

chose to attend school part time in order to take care of her ailing parent. This child strongly believes that 

denying her claim because she was not a full time student penalizes her for her decision to care for her parent.

In another instance, the child admits that for most semesters, he did not carry a full case load. This child 

asserts that this decision was prompted by his need to work and his desire to maintain his grade point average. 

He argues that to hold that he was not a full time student ignores the fact that he went to school every summer 

and thus graduated with his class (and graduated with a commendable grade point average). Although his 

14 This claimant strongly believes that in drafting this provision, no one realized the number of potential claimants who would be impacted.

SECTION 5.6

SECTION 5.6
2009 Annual Report to C

claim was initially denied, he was able to subsequently obtain a document from his school that attempts to 

support his argument that he was a full time student. 

Factors that reduce or nullify compensation

• Pursuant to Section 7385s-1(2), if the DOE contractor employee dies prior to the payment of compensation, 

then compensation on that claim shall not be paid. Instead, the eligible survivors of that employee must 

file a claim for survivor benefits. See 42 U.S.C. §7385s-1(2).15 The potential impact of this provision lies in 

the fact that while the maximum compensation under Part E for an accepted claim filed by the contractor 

employee is $250,000, the compensation for an accepted claim filed by an eligible survivor ranges between 

$125,000 and $175,000. Moreover, under Part E a survivor’s claim can only be pursued by qualified 

survivors. Thus, the death of a worker prior to the payment of compensation may reduce or negate the 

amount of benefits ultimately paid to the qualifying survivors. The awareness that this possibility exists 

often adds to the stress felt by many claimants as they process a Part E claim. Most claimants are already 

anxious to have their claims promptly resolved. This anxiety can transform into a sense of urgency when 

claimants realize that, in the event of the worker’s death, no family member will qualify as an eligible survivor 

under Part E. Throughout the course of this past year workers shared with us their fear that not only would 

they never “see” any compensation, but that no one in their family would “see” any compensation as well.

This same concern often weighs heavily in instances where family members are involved in the processing 

of the claim. In many of the instances brought to our attention, family members only became involved in 

the processing of a claim in response to the deteriorating health of the worker. As discussed in Section 4.1, 

many family members find it very stressful to process an EEOICPA claim while trying to assist an ill family 

member. The knowledge that the payment of compensation could be impacted by the death of the worker 

(prior to the payment of compensation) oftentimes just adds to this stress. 

Whether it is a worker worried that he/she may pass away prior to the payment of compensation, or a family 

trying to complete the claims process prior to the death of the worker, the knowledge that the death of the 

worker prior to the payment of compensation could impact the amount of compensation that is eventually 

paid helps explain why many claimants react so strongly to perceived delays in the processing of their 

claim. Moreover, many workers, as well as their families, believe that workers “earned” this compensation 

by working at these facilities and by being exposed to the toxins present at the facilities. Since they believe 

that this compensation was “earned,” these claimants question why this compensation is reduced or 

negated if the worker dies prior to its payment.16

As with other aspects of this program, claimants contend that it is unfair and contrary to the “claimant 

friendly” nature of this program to have waited so long to establish the EEOICPA program and to then 

condition the amount of compensation on whether the worker is living when payment is made – especially 

in a program where it can take years to complete the claims process. 

15 The exception to this rule involves the situation where the employee applied for compensation but died before compensation was paid 

and the employee’s death occurred solely from a cause other than the covered illness of the employee. Under this circumstance, the eligible 

survivor of that employee may elect to receive, in lieu of survivor compensation, the amount of compensation that contractor employee would 

have received if the employee’s death had not occurred before compensation was paid.

16 We again note that DEEOIC has a process whereby if informed of the terminal illness of a claimant, it will expedite the claim. Unfortunately, 

many claimants are not aware of this process. In addition, there have been instances where, even in spite of efforts to expedite the claim, the 

worker dies prior to the payment of compensation.

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24 United States department o

Note: Part E claims filed by living workers often involve two decisions – first it must be determined that 

the worker is an eligible employee with an eligible illness. If this is determined, the worker is entitled to 

medical benefits for the covered illness. If the worker is found to be an eligible employee with an eligible 

illness, the worker can then potentially file for compensation for wage loss and/or impairment based on 

the covered illness.

Each determination – that the worker is an eligible employee with an eligible illness and entitlement to 

wage loss and/or impairment compensation – involves two decisions, a recommended decision issued 

by the claims examiner and a final decision issued by the Final Adjudicatory Branch. While we only see 

a fraction of the decisions issued by DEEOIC, based on the recent decisions that we reviewed, it appears 

many cases now have decisions issued in less than one year. In fact, we are aware of cases where the 

time from the filing of the claim to the decision on wage loss and/or impairment was approximately one 

year. However, many of the cases that we encounter involve claims that have been pending for some 

length of time. Some of the factors that extend the time for processing a claim include: the need for a 

dose reconstruction (currently this can add a year to the processing of the claim) and the need to locate 

additional evidence or to further develop certain issues. In addition, we encounter cases where the 

claimant only prevails after seeking reconsideration or upon the filing of their second claim.

• Another problem that we encounter involves 42 U.S.C. §7385j that provides that with the exception 

of individuals who receive, or have received, $100,000 under Section 5 of the Radiation Exposure 

Compensation Act (RECA) (42 U.S.C. §2210), an individual may not receive compensation or benefits under 

the EEOICPA for cancer and also for compensation under the RECA. This is another example where some 

claimants are unable to grasp the many rules and exceptions – while the Department of Justice assures us 

that they advise claimants that the acceptance of RECA benefits may impact eligibility for EEOICPA, we 

encounter claimants who are surprised when informed that because of their acceptance of RECA benefits, 

they are not entitled to benefits or compensation under the EEOICPA. In one instance, the claimant admits 

that she was aware that acceptance of RECA benefits would negate her eligibility for EEOICPA benefits, but 

notes that when she accepted the RECA benefits, her EEOICPA claim appeared to be “going nowhere” and 

she needed the money. Because an award under Part E could potentially yield more compensation than 

that received under the RECA, this claimant indicates that it would be acceptable to her if she were allowed 

to pursue a Part E claim and if any Part E award were reduced by the amount that she previously received 

under the RECA.

SECTION 5.7
2009 Annual Report to C

EXPOSURE

Under Part E, claimants must establish that in the course of his/her employment, the worker came into contact 

with toxins (exposure). Unfortunately, many claimants were never told the identity of the toxins to which they 

were exposed and in some instance, were not even aware that they were exposed to certain toxins. In light of 

this lack of knowledge, some claimants question the assistance provided to them in identifying these toxins.

Do not know the name of toxins

The main complaint that we hear concerning the requirement to prove exposure is that many workers cannot 

identify all of the toxins to which they were exposed. Many claimants argue that requiring them to establish the 

toxins to which they were exposed displays a lack of understanding of how these facilities operated. Claimants 

repeatedly remind us that these facilities operated on a “need to know” basis and thus while they may know 

the names of some of the toxins to which they were exposed, no one told them, and they never dared to 

ask, the names of many of the other toxins to which they came into contact. Claimants also note that while 

SEM identifies substances by their formal chemical name, in many instances, the employees only knew these 

substances by their trade name, or by the name given to these substances by the other workers. The story 

of one worker’s first day on the job at Paducah clearly illustrates this fact. This gentleman recalls how on his 

first day, one of the more experienced workers pointed to a big pipe and told him that if he ever saw anything 

come out of that pipe, he should run “upwind.” That gentleman recalls that later that day, a brown mist started 

to come out of the pipe and as instructed, he ran “upwind.” This gentleman assures us that these “releases” 

happened on a somewhat frequent basis, yet he has no idea what the brown mist was – all he knows is that 

when this mist came out, everyone ran “upwind.”

Since they often do not know all of the toxins to which they were exposed, many claimants believe that more 

should be done to assist them in identifying the toxins that were used at these facilities. As we discuss in more 

detail in Section 6.2 (below), in order to assist claimants, the DOL established the Site Exposure Matrices (SEM), 

which provides a listing of the toxic substances verified as having been onsite and used at particular DOE sites. 

Claimants find that the information on SEM is not presented in the most helpful manner.

NIOSH also develops Site Profiles on specific work sites. A Site Profile includes the physical appearance and 

layout of the work site, the work processes used at the site, the types of materials used, potential sources of 

radiation, and other details important at that work site. As with SEM, claimants question the accuracy of Site 

Profiles. Many of the complaints that we receive allege that the listings of the materials used and the potential 

sources of radiation are incomplete. In addition, we are occasionally contacted by claimants who question 

the information concerning the physical appearance and layout of some of these work sites. We have heard 

arguments suggesting that certain Site Profiles do not take into consideration the duct work or ventilation 

systems that claimants believe helped spread toxins around these work sites. 

SECTION 6.0

SECTION 6.1

SECTION 6.0

SECTION 6.1
26 United States department o

SEM

In order to assist claimants, DOL created the Site Exposure Matrices (SEM), a repository of information on 

toxic substances present at DOE and Radiation Exposure Compensation Act (RECA) sites covered under Part 

E. Utilizing SEM, one can assess a list of the toxic substances verified as having been onsite and used at 

particular DOE sites. In addition, SEM provides a listing of the toxic substances with a known causal link to 

approximately 130 occupational illnesses. Parts of SEM are available to the public and there are claimants who 

find that SEM is a useful tool. We also encounter claimants, however, who tell us that the assistance provided 

by SEM is inadequate. Some of the complaints received this year concerning SEM suggest that:

• Some claimants cannot access SEM. SEM is a website. Where claimants do not have access to the 

internet and/or are not computer savvy, they are often unable to access SEM. It is not unusual for our 

Office to be asked to mail a copy of the relevant pages of SEM to claimants.

• SEM is not always very helpful. In some instances there are over 500 toxins verified as having been 

onsite and used at a particular facility. For example SEM lists 680 toxins as having been onsite and used at 

Fernald; for Paducah there is a listing of 823 toxins; and the Iowa Ordnance Plant has a listing of 571 toxins. 

Many claimants find these listings much too long to be useful. Some claimants contend that it is asking 

too much to expect them to research every toxin on these long lists to determine if any of these toxins may 

be causally linked to their illness. Similarly, claimants report that many doctors are unwilling to review such 

long lists.

Many claimants assert that it would be more helpful if SEM identified toxins according to the years that 

these toxins were onsite and/or by the specific location where these toxins were used. To date, requests 

that SEM identify toxins according to the year and location have been denied citing to national security 

concerns. In light of recent news articles suggesting that the government has efforts underway to 

declassify more information, there are claimants who question why more is not done to make the entire 

SEM available to them. A recent response by the DEEOIC indicates that it continues to work with the DOE 

to address the concerns regarding public availability of the entire SEM. In the meantime, the DEEOIC 

assures claimants that the entire SEM is reviewed when processing their claims.17 Many claimants, 

however, would prefer to review the entire SEM for themselves (or have their own experts review the entire 

SEM).

Another concern that we continue to hear involves instances where claims were denied prior to the time 

SEM was available to the public. In response to these concerns, the DOL asserts that even though the 

information was not available to the public, it was available to the DOL and assures that this information 

was reviewed by the DOL in determining these claims. Claimants continue to question why if this 

information was available, it was not made available to the public and as a result these claimants express 

little confidence in the decisions rendered before this information was available to the public. 

In addition, while SEM contains a listing of occupational illnesses and identifies the toxic substances with a 

known causal link to these illnesses, this listing is currently limited to approximately 130 illnesses. In many 

instances, especially where the illness is not one of those 130 listed on SEM, claimants find it very difficult 

to locate evidence linking their illness to a work related toxin.

• Claimants question the accuracy of SEM. A number of claimants contacted us to complain that SEM 

either does not contain all of the toxins to which they were exposed or does not identify all of the toxins 

with a potential causal link to their illness. There is a process whereby claimants can submit additional 

information for inclusion on SEM. However, some claimants find this process intimidating and there are 

other claimants who do not have internet access. More importantly, establishing that a toxin was onsite and 

used at a particular site requires very specific evidence. Unfortunately, many claimants do not possess, and 

17 We are aware of instances where the decision issued by the DEEOIC listed all of the toxins that a person in a particular labor category could 

have been exposed. Some claimants find it troubling that in reaching a decision, the DOL relies upon information that is not in the record and 

thus is information that is hard to verify. 

SECTION 6.2

SECTION 6.2
2009 Annual Report to C

are unable to locate the quality of information needed to verify that a toxin was onsite and used at a specific 

location. Consequently, many claimants complain that the additional evidence that they offer for inclusion 

on SEM is not accepted (or never included on SEM).

Dose Reconstruction

Pursuant to the act, dose reconstructions are performed for all covered employees with cancer who are 

not members of a SEC. Responsibility for conducting dose reconstructions has been given to NIOSH’s 

Office of Compensation Analysis and Support (OCAS).18 According to the OCAS, a dose reconstruction 

characterizes the occupational radiation environment to which workers were exposed using available worker 

and/or workplace monitoring information. If radiation exposure in the workplace environment cannot be fully 

characterized based on available data, default values based on reasonable scientific assumptions are used as 

substitutes.

Entitlement to compensation in cases where a dose reconstruction is performed is based on the probability 

that the worker’s cancer was “at least as likely as not” related to his/her exposure to ionizing radiation during 

employment at a covered facility. With respect to dose reconstructions, the DOL has interpreted “at least as 

likely as not” as requiring a probability of 50% or more.

To date, the vast majority of the complaints that we receive concerning Part B of the EEOICPA relate to the dose 

reconstruction. Here are the most common complaints that we received this past year:

• Length of time that it takes to perform a dose reconstruction: We receive a number of complaints 

concerning the amount of time that it takes to perform a dose reconstruction. While we only see a fraction 

of the cases submitted for dose reconstruction, it is our experience that on average a dose reconstruction 

takes approximately one year to perform. There are occasions, often involving situations where additional 

exposure information is required or there are questions concerning the methodology where the dose 

reconstruction can take much longer than one year.

Claimants strongly believe that more needs to be done to expedite dose reconstruction process. The one 

year that it takes on average to perform dose reconstructions causes a fair amount of frustration – when the 

process takes longer, frustrations grow.

NIOSH recognizes that there are concerns with the amount of time that it takes to perform a dose 

reconstruction and indicates that it is working to ensure that within one year there is no claim 

where the dose reconstruction is pending for more than one year.

• We also receive numerous complaints questioning the accuracy of the information used by NIOSH to 

perform dose reconstructions. Many claimants contend that in performing their dose reconstruction 

NIOSH did not have (or did not use) an accurate accounting of their exposure to radiation. Many workers 

assure us that they did not spend their entire workday at one location, but rather moved around the facility. 

Consequently, these claimants believe that in measuring their exposure to radiation it is not accurate to only 

rely upon job descriptions and job titles, nor is it reasonable to simply focus on their assigned job site. We 

frequently hear accounts such as the one provided by a former employee at the Portsmouth facility who 

noted that it was not unusual for his supervisor to send the majority of his crew to work on jobs unrelated 

to their assigned jobs and to leave a “skeleton” crew to handle any matters that arose – yet these “detours” 

were never reflected in official records, and because they occurred routinely, the employees never thought 

to keep their own records of these events.

18 The one cancer that has been excluded is chronic lymphocytic leukemia (CLL). The statute specifically excludes CLL from consideration as 

a cancer for SEC purposes, and NIOSH regulations exclude CLL with respect to dose reconstructed cancer claims.

SECTION 6.3

SECTION 6.3
28 United States department o

During the dose reconstruction process claimants have the opportunity to present additional evidence 

concerning their exposure to radiation. Some claimants argue that in spite of the additional information 

that they provide, NIOSH still does not accurately determine their exposure to radiation (or fails to give full 

credence to the evidence that they submit). In the end many claimants find it hard to believe that in spite of 

their many years of exposure to radiation (and sometimes the many spills and releases to which they were 

exposed) their dose reconstruction is “so low.”

• The OCAS describes dose reconstruction as “the scientific process of estimating a worker’s past exposure 

to radiation. It uses exposure monitoring and other information to determine what levels of radiation the 

workers were exposed to while they worked at a facility.” Some claimants argue that it is not appropriate to 

deny their claim on the basis of estimates. These claimants argue that if their exposure to radiation cannot 

be accurately calculated, then they ought to be awarded compensation. 

• Another complaint involves instances where claimants who receive a dose reconstruction for one cancer are 

discovered to have a second cancer and thus must undergo a second dose reconstruction. A number of 

the claimants who have undergone this experience are dumbfounded that the second dose reconstruction 

(for multiple cancers) yielded a probability of causation that was lower than the probability of causation 

for the one cancer.19 OCAS explains that this phenomenon is the result of “overestimating” certain dose 

reconstructions – i.e., where the most likely result in a probability of causation would be well below 50%, 

in an effort to expedite the process, the dose reconstruction was overestimated.20 The problem with 

overestimates arises when claimants develop an additional cancer, and a second dose reconstruction is 

required. The OCAS then gathers additional evidence and uses more precise calculations to determine 

the dose reconstruction for these multiple cancers. In some instances, the (second) dose reconstruction 

for the multiple cancers yielded a probability of causation lower than probability of causation for the (first) 

over estimated dose reconstruction for the one cancer. In light of the confusion caused by overestimates, 

the OCAS states that it now routinely inserts language in overestimated dose reconstructions to notify the 

claimant that if the facts surrounding his/her dose reconstruction change, the dose reconstruction for the 

organ site could be different than that reported using the efficiency process. Nevertheless, claimants who 

experienced this phenomenon with over estimates have assured us that as a result of this experience, they 

have little, if any, confidence in the accuracy of dose reconstructions and/or the EEOICPA.

• Section 30.318(b) of the regulations promulgated by the DOL provides that one cannot challenge the 

methodology of dose reconstructions (you can challenge the application of the methodology). Many 

claimants question this provision and argue that it shields the dose reconstruction process from the scrutiny 

that it needs.

19 Dose reconstructions use exposure monitoring and other information to determine what levels of radiation the worker was exposed to while 

working at a facility. The information from the dose reconstruction is used by the DOL to determine the probability that the worker’s cancer 

was “at least as likely as not” due to the employee’s occupational exposure to radiation during employment at a covered facility (probability 

of causation).

20 According to NIOSH, because dose reconstructions can be time consuming, where the most likely result in a probability of causation will be 

well below 50%, NIOSH significantly overestimated the exposure based on the highest levels of exposure observed or possible for the facility. 

The reasoning was that if the claim was not compensable using these significantly overestimated exposure estimates no further refinement 

to the dose reconstruction was required. While the desire to expedite the dose exposure process was laudable, these overestimated results 

often misled claimants into believing that since their dose reconstruction was close to 50%, additional exposure would certainly result in 

a dose reconstruction higher than 50%. Unfortunately, in many instances the submission of additional evidence and/or the discovery of an 

additional cancer actually resulted in a lower dose reconstruction. 

SECTION 6.3
2009 Annual Report to C

CAUSATION

Under Part E it must also be established that it is at least as likely as not that exposure to a toxic substance at 

a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the illness or 

death. 42 U.S.C. §7385s-4(c)(1)(A).

The difficulties encountered trying to establish causation can vary depending on the illness and the toxins to 

which the employee was exposed. In some cases, there is an abundance of medical literature linking the illness 

to certain toxins, and in these instances establishing a causal link is often possible. In other instances, there 

are claimants who suffer from illnesses for which there is little (or no) medical literature linking the illness to 

any toxins (or to any toxin to which the worker was exposed). In these latter instances establishing causation 

can be difficult. For instance, if a claimant has asbestosis, leukemia and mesothelioma and if certain specific 

criteria are met, then pursuant to Bulletin 06-08 the claims examiner can accept that exposure to the listed toxic 

substance is at least at likely as not a significant factor in aggravating, contributing to or causing the illness. On 

the other hand, many claimants who suffer from prostate or breast cancer find it extremely difficult to establish 

a causal link to any work related toxin, even where the worker has many years of exposure to toxins.

• One of the biggest problems with the causation requirement stems from the fact that many claimants do 

not see the need for a causation requirement. Some claimants believe that they ought to be entitled to 

compensation if they worked at a covered DOE facility; were exposed to toxins; and now have an illness. 

An argument that we frequently hear is that unless someone can show that these toxins did not have any 

impact on their illness, claimants ought to be compensated.

We also encounter instances where claimants are convinced that they have fully satisfied their requirement 

to establish a causal link once they locate medical literature linking their illness to toxins to which they were 

exposed (or where SEM links their illness to toxins known to have been present at their work site). These 

claimants often are unable to understand why more is required. When advised of the need to establish 

that it is at least as likely as not that exposure to one or more of these toxic substances was a significant 

factor in aggravating, contributing to, or causing the worker’s illness, many of these claimants immediately 

respond noting that it will be extremely difficult to locate a doctor who will provide such an opinion.

• Another issue that arises with respect to causation concerns the quantity and quality of evidence needed 

to establish this causal link. Many claimants become frustrated when their medical evidence is rejected or 

returned for further development. It is often argued that it would be more efficient if in advance claimants 

knew both the “type” of evidence that they needed to obtain, as well as the manner in which this evidence 

needed to be presented. Many claimants indicate that it would be helpful if they could see samples of 

some of the medical opinions that the DOL found acceptable. Claimants also note that since it takes so 

long to schedule an appointment, it simply adds to the delay in processing a claim when they are forced 

to return to physicians, sometimes on multiple occasions, for further development of evidence. Claimants 

tend to agree that physicians bristle when reports are returned to them for further development and there is 

a fear among some claimants, that as a result of this process, physicians are (or will become) less inclined 

to work with them. 

• We receive a lot of questions that involve situations where two people worked side by side, exposed to the 

same toxins, and while both suffer from illnesses (sometimes the same illness), one is compensated and 

the other is not. The difference in outcomes is partly explained by the fact that from a medical/scientific 

standpoint exposure is just one of many factors that impacts causation. Some of the other factors relevant 

in determining causation include: family history; race; sex; and age. Moreover, in considering causation, 

there are a number of factors related to exposure that are relevant such as: the date of the diagnosis; the 

duration of the exposure; the intensity of the exposure; as well as the latency period. While most claimants 

appreciate that these other factors can be relevant, we encounter many claimants who nevertheless believe 

that exposure is determinative of causation, especially where an individual had long term direct (and often 

continuous) exposure to harmful toxins.21

21 These factors are another reason that it is impossible to meet the demand by claimants for a formal listing of all of the illnesses 

“presumed” to be caused by toxic substances.

SECTION 7.0

SECTION 7.0
30 United States department o

• Claimants also question whether the DOL is using the correct standard in measuring whether a claimant has 

met their burden. Recognizing that “at least as likely as not” as used in Part B for cancers is interpreted as 

50% or more, see 42 U.S.C. § 7384n(b), many claimants argue that “at least as likely as not...a significant 

factor” as used in 42 U.S.C. § 7385s-4(c) ought to be less than 50%. These claimants argue that the 

inclusion of the phrase “a significant factor” in Section 7385s-4, a phrase that is not contained in Section 

7384n(b), indicates that these two provisions should not be interpreted in the same manner. Claimants 

assert that by its terms “at least as likely as not...a significant factor” (underlining added) is a lower standard 

than “at least as likely as not,” and thus argue that when you interpret these two provisions in the same 

manner, you ignore Congress’ specific inclusion of the phrase “a significant factor” in Section 7385s-4.

• Causation continues to pose specific problem for survivors. In Part E survivor claims, the issue is whether 

exposure to a toxic substance at a DOE facility was a significant factor in aggravating, contributing to, or 

causing the death of the worker. Some survivors note that where the worker died prior to the passage of 

the EEOICPA, there was never any reason (until now) to inquire whether toxins were a factor in the death of 

their loved one. In fact, some survivors note that prior to the passage of the EEOICPA, they knew very little 

concerning the toxins to which their loved ones were exposed, and thus, even if they had wanted, it would 

have been impossible to provide these physicians with sufficient evidence to form a reasoned conclusion. 

Claimants also tell us of instances where the doctor simply provided a vague description of the cause of 

death – i.e., heart failure, because the physician pronouncing the death (who often was not the treating 

physician) saw no need for a full discussion of the complex circumstances that actually led to the worker’s 

death (and at that time the family saw no reason to ask of a full discussion). In light of this, we continue to 

encounter survivors who bemoan the fact that they did not have an autopsy performed or did not follow up 

on those passing remarks made by doctors suggesting that the death of their loved one was related to the 

toxins to which he/she had been exposed.

Lastly, many survivors argue that if the medical evidence developed while the worker was alive (or around the 

time of death) does not mention exposure to toxins and/or does not address a causal link between work related 

toxins and the death of the worker, then years later it will be virtually impossible to find a doctor willing to offer 

an opinion addressing this link. 

SECTION 7.0
2009 Annual Report to C

Special Exposure Cohorts 

When the EEOICPA was initially established, Congress created four Special Exposure Cohorts (SEC). 42 U.S.C. 

§ 7384l(14). Section 7384q authorizes the Department of Health & Human Services (HHS) to create additional 

SEC’s when HHS determines that:

• “it is not feasible to estimate with sufficient accuracy the radiation dose that the class received” and

• “there is a reasonable likelihood that such radiation dose may have endangered the health of members of 

the class.”

SEC members with certain specified cancers do not require dose reconstructions to qualify for compensation. 

Here are the most common complaints that we received this past year concerning SEC’s:

• We receive questions inquiring why certain facilities are designated SEC’s while others have not received 

this designation. Some claimants question the fairness of the process utilized for selecting SEC’s.

• To be included in the SEC class, the worker must have 250 days of employment at a SEC work site. While 

it may sound minimal, we are contacted by claimants who find it difficult to meet this 250 day requirement. 

In many instances, the lack of evidence surrounding a SEC includes a lack of employment evidence 

and this in turn impacts the ability of some claimants to establish the requisite 250 days of employment. 

Compounding this problem is the fact that for purposes of SEC’s, the 250 days must be at the SEC work 

site and in many instances, the SEC work site does not include the entire facility. We are aware of instances 

where claimants were able to establish many years of employment at the facility, but could not establish 250 

days at the SEC work site.

• Some claimants believe that a blanket rule requiring 250 days of exposure ignores the fact that there are 

circumstances where radiation exposure can have a debilitating effect even though the worker has less 

than 250 days of exposure. One claimant has obtained medical evidence suggesting that even one day 

of his particular exposure could have significantly impacted the probability that his illness was related to 

his exposure and this claimant does not understand why this information is not taken into consideration in 

determining whether he qualifies for inclusion in the SEC class.

• Claimants also contend that the 250 day requirement sometimes fails to recognize that their exposure to radiation 

at the SEC work site could have combined with other non-SEC work site exposure to cause their illness.

• In one situation brought to our attention, a gentleman was employed at a non-SEC work site but worked 

with samples taken from a SEC work site. This gentleman strongly believes that it is unfair that he is 

not included in the SEC for facility where the samples originated. In the opinion of this gentleman, his 

employment at a non-SEC work site does not diminish the fact that he worked with samples taken from a 

SEC work site, and thus he had the same exposures as someone who was physically onsite at this SEC 

work site.

• If a facility (or portion of a facility) is designated a SEC, then claimants who meet the requirements for 

inclusion in the SEC class do not require a dose reconstruction for compensation if they suffer one of 22 

identified cancers. A number of claimants have contacted us to complain that they suffer a cancer that is 

not one of the 22 identified cancers. Claimants question why certain cancers are included on this list of 22 

while others are not.

• We continue to receive inquiries concerning chronic lymphocytic leukemia (CLL). Currently, CLL 

is statutorily excluded from SEC inclusion, see 42 U.S.C. § 7384l(17) and is excluded from dose 

reconstructions by regulations issued by NIOSH. Claimants have uncovered and have submitted evidence 

challenging the premise that CLL is not related to radiation exposure. Although these claimants have 

been assured that NIOSH is reviewing this information, as well as the status of CLL, in the opinion of these 

claimants, this review is taking a long time. In the meantime, for purposes of SEC’s, CLL is not one of the 

22 cancers, and claims for CLL are not forwarded to NIOSH for dose reconstruction.

SECTION 7.1

SECTION 7.1
32 United States department o

• While the establishment of SEC’s is generally viewed as favorable to claimants, some claimants can be 

disadvantaged by this designation. A SEC class is designated because some data is unusable in dose 

reconstruction. Therefore, where a SEC class is designated, but the claimant does not meet the criteria 

for compensation under the SEC (i.e., the claimant does not have one of the 22 qualifying cancers listed 

for the SEC and/or does not meet the employment criteria of the SEC class) NIOSH can only reconstruct a 

portion of the dose. While a partial dose reconstruction is considered “complete” and is the best estimate 

given that all reliable data available was used, claimants nevertheless question the propriety of denying their 

claims where it is readily conceded that evidence is unusable and only a partial dose reconstruction was 

performed.

The Synergistic Effects

Part B compensates for specific illness, including cancers caused by radiation exposure. Part E, on the 

other hand, compensates for any illness (or death) where it is at least as likely as not that exposure to a toxic 

substance (including radiation) was a significant factor in aggravating, contributing to, or causing the illness or 

death. In some instances where the Part B claim is denied because the dose reconstruction is less than 50% 

and the Part E claim is denied because it is not as least as likely as not that the illness was caused, aggravated 

by or contributed to by exposure to toxins, some claimants respond by questioning whether their illness could 

be the result of the combination of ionizing radiation and chemical exposure. Some claimants have voiced 

concerns that SEM in particular and DOL in general, does not address the combination of ionizing radiation and 

chemical exposures.

DOL acknowledges that SEM does not address synergy but asserts that this is because currently there is not 

sufficient peer reviewed medical literature to support such information. The DEEOIC notes that their Health 

Physicists evaluate all cases where synergy is alleged. From a practical standpoint, this means that the 

claimant must come forward with evidence to support a claim of synergy. Claimants do not consider it fair to 

have the burden placed on them to come forward with evidence of synergy. Claimants argue that the time and 

expense needed to develop this information should be borne by those who exposed them to these dangers. In 

addition, some claimants complain that their search for evidence of synergy is impeded by a lack of guidance. 

Claimants find the guidance provided by the DEEOIC to be vague – claimants tell us of situations where they 

submit evidence only to become frustrated when informed that this evidence is insufficient. To the extent that 

the burden is on them to submit evidence of synergy, claimants would like greater guidance in developing 

evidence to address this rather complicated issue. 

SECTION 7.2
2009 Annual Report to C

Impai

In Part E claims filed by living workers, if the worker establishes that he/she was a DOE contractor or 

subcontractor employee who contracted a covered illness through exposure to a toxic substance at a 

covered DOE facility, a decision will issue finding this worker eligible for benefits. If found eligible, the worker 

also receives a medical benefits card that they can use to pay medical bill for the covered illness.22 This 

determination of eligibility for benefits does not, however, result in the payment of compensation. Rather under 

Part E, entitlement to compensation in claims filed by living workers is based on the level of impairment and/or 

the wage loss due to the covered illness. Moreover, a written request to the DOL is necessary in order to trigger 

a determination of entitlement to compensation for impairment and/or wage loss.

This is a source of frustration for many workers. Some workers are under the impression that compensation 

is paid once they are determined to be eligible for benefits. Consequently, when they are determined to be 

eligible for benefits, these workers are surprised to discover that additional steps must be undertaken in order 

to receive compensation. Some claimants indicate that after investing so much time and energy to establish 

employment, exposure and causation, it is frustrating to be asked to submit additional evidence in order to 

establish impairment and/or wage loss.

A few years ago, we encountered a number of claimants who were found eligible for benefits, yet did not realize 

that they needed to make a written request to the DEEOIC for compensation for impairment and/or wage loss. 

Since then the DEEOIC worked with its Resource Centers to initiate an effort to notify claimants who were 

potentially eligible for wage loss and/or impairment, but who never applied. Consequently, there has been a 

decrease in the number of eligible claimants who are not at least aware of the option of filing for compensation 

for wage loss and/or impairment – although we still encounter some claimants who are surprised when informed 

that they can file for impairment and/or wage loss.

Impairment

An impairment award is monetary compensation for the permanent loss of function of a body part or organ, 

specific to the accepted illness/condition and is determined by a qualified physician using the American Medical 

Association’s (AMA) Guide to the Evaluation of Permanent Impairment, 5th Edition (the Guide).

• Pursuant to 42 U.S.C. § 7385s-2(b), impairment ratings for purposes of Part E are determined in accordance 

with the 5th Edition of the Guide. Nevertheless, by the time an EEOICPA claim focuses on impairment, 

there are usually a host of medical reports in the record, and many of these medical reports will rate the 

worker’s medical condition. Some claimants would prefer that the impairment rating be determined using 

one of the other ratings contained in the record, especially since these other ratings are often higher. 

Similarly, some claimants cannot understand why the impairment rating that is determined by using the 

Guide is so low when other doctors provided a higher rating for this same condition.23 

• In recent years, the number of claimants who contact us because they cannot locate a physician qualified 

and willing to perform the impairment rating, or who do not understand that they have this option, has 

decreased. Nevertheless, we still encounter instances where claimants cannot locate a physician in their 

vicinity who is both qualified and willing to perform an impairment rating.24

22 This is the process for Part E claims filed by the DOE contractor or subcontractor employee. In Part E claims filed by survivors, a finding 

that the worker was a covered employee who died as a result of exposure to a toxic substance at a covered DOE facility entitles the survivor 

to a lump sum award of benefits. The base sum for survivor claims is $125,000 although the award can increase to $150,000 or $175,000 

depending upon wage loss.

23 For purposes of the EEOICPA, while an impairment rating compensates for the permanent loss of function of a body part or organ that is 

due to a covered illness, the percentage of impairment is based on loss of function of the whole person. Thus in some instances, the ratings 

provided by these other doctors were not based on the loss of function of the whole person and/or did not follow the 5th edition of the Guide.

24 With respect to the impairment rating, claimants have the option of utilizing their own physician who is qualified and trained, or the DOL 

will gather the appropriate tests and have a qualified physician complete the impairment evaluation based on those tests.

SECTION 8.0

SECTION 8.0

SECTION 8.1
34 United States department o

While claimants have the option of utilizing a qualified physician of their choosing to perform the 

impairment rating, there have been instances where claimants were unable to exercise this option 

because their physician had not signed up for (or did not accept) the DOL medical benefits card. 

Claimants are advised to contact the DEEOIC if their physician does not accept the card – the 

DEEOIC indicates that it will contact the physician to explain the process to him/her. There were 

instances this year where we advised claimants to notify the DEEOIC that a physician did not 

accept the medical card. In most instances, we do not know if claimant followed up by contacting 

the DEEOIC, and if so, whether the DEEOIC’s approach to the provider was successful. In the one 

instance that we are aware of, claimant advised us that even after speaking with the DEEOIC, the 

physician still refused to accept the medical card.

Wage Loss

The most common complaint that we hear concerning wage loss involves the inability to accurately document 

wage loss. Two situations arise. One situation involves workers who continue to work in spite of a covered 

illness. Claimants argue that it is unfair to deny Part E compensation since these workers continued to 

work (and maintained their wages) only as a result of extraordinary efforts. Unfortunately, the statute only 

compensates for actual loss of wages. There is no provision in the EEOICPA that provides for compensation to 

a claimant who, in spite of their illness, chose to continue working.

The other situation involves workers who terminated their employment or sought early retirement as a result 

of a covered illness, but never obtained medical evidence documenting this decision. Some claimants assure 

us that the decision to terminate their employment or to seek early retirement was based upon the advice of 

their physician, but note that the EEOICPA did not exist when they reached this decision. Consequently, these 

claimants argue that there was no way that they could have conceived that years later this documentation 

would become important. This is another instance where many claimants bemoan the fact that at the time, they 

did not seek to get “something in writing.”

 

SECTION 8.2

SECTION 9.0

SECTION 8.2
2009 Annual Report to C

Other

Interactions with the DEEOIC

Throughout the claims process, claimants interact with the DEEOIC. This interaction usually begins when a 

claimant files their claim with a Resource Center.25 Once the Resource Center completes its initial development, 

the claim is forwarded to one of the four District Offices. Based on our observations, as well as the comments 

that we receive, many claimants prefer to talk to someone directly (as opposed to talking to someone on the 

telephone or via e-mails) and want to establish some level of rapport with the person who is assisting them with 

their claim.

There are claimants, including some who have general complaints, who contact us to compliment the staff 

of the DEEOIC and/or the Resource Centers. Nevertheless, a majority of comments that we receive involve 

problems that arise when communicating with the DEEOIC. Here is a summary of the most common 

complaints that we received this past year concerning interactions with the DEEOIC:

• Documents difficult to understand: A large number of the complaints involving interactions with the 

DEEOIC are prompted by the complexity of the EEOICPA. A common complaint that we hear is that 

documents provided by DEEOIC are hard to understand and/or that instructions are confusing to follow. 

Claimants often tell us that they wish that someone would just speak to them using “plain language.”

• Cannot obtain answers to all of their questions: Some claimants are concerned that they cannot receive 

an answer to their EEOICPA related questions. This year, we heard from claimants who were upset that 

no one would answer their question as to whether their EEOICPA benefits are subject to federal taxes. 

These claimants noted that while they were aware of the statutory provision in the EEOICPA addressing the 

taxability of these benefits, this provision was hard to comprehend. These claimants found it troublesome 

that in response to their inquiries, the DEEOIC simply referred them back to the statutory provision that they 

could not understand. We hear similar complaints with other aspects of the EEOICPA. Claimants often 

contend that in response to their questions, they are referred to statutory or regulatory provisions that are 

difficult to understand.

• Documents not provided: Many claimants find it troubling that some of the information relied upon in 

determining their claims is not publically available, or that they have to make a specific request in order to 

receive a copy of this information. We previously discussed SEM and how many claimants would prefer to 

have access to the entire SEM. Reports issued by District Medical Consultants (DMC’s) raise a somewhat 

similar concern. The DEEOIC will provide claimants with a copy of the report prepared by the DMC if the 

claimant requests a copy. Unfortunately, many claimants are not aware that they can request a copy of 

the DMC’s report and as a result claimants are sometimes perplexed by questions that would be answered 

if they had the opportunity to review the DMC report. Other claimants question why a copy of the DMC’s 

report is not simply provided to them – they do not understand why they have to request a copy.

• Time to respond is too short: During the claims process, there are instances where claimants are 

requested to submit, within a specified time frame, additional evidence or further develop existing evidence. 

Many claimants believe that these time frames are too short. Where the further development requires 

input from a physician, many claimants argue that it often takes longer than the time allotted just to see 

the physician. A frequent complaint that we hear suggests that it is unfair that claimants are given short 

deadlines within which to develop or respond to evidence, yet when the DOL (or another government 

agency) has to respond to or develop evidence, there is no deadline – or if there is a deadline, claimants 

are not aware of this deadline, and any such deadline is clearly not in line with the deadlines imposed on 

claimants. 

 

25 A claim may be filed directly with the DEEOIC

SECTION 9.0

SECTION 9.1
36 United States department o

• Change in claims examiners: Claimants continue to voice concerns with the practice of changing claims 

examiners while the claim is pending. Claimants argue that these changes not only undermines the rapport 

they established with the previous claims examiner, but also causes additional delay as it often requires 

revisiting information that they had already resolved with the previous claims examiner. While we continue 

to hear these complaints, there has been a decrease in the instances brought to our attention where a 

pending claim was assigned to a different claims examiner.26

• Rude/uncaring comments: We continue to receive complaints alleging rude and/or uncaring comments. 

In most instances, these allegations involve situations where claimants have his/her version of the events 

and the DEEOIC offers a somewhat different version. We reviewed the allegations that we received over 

the past year looking for trends such as whether the allegations involve the same claims examiners or arise 

more often with particular offices. To date we have not discerned any noticeable trends.

Our review of these allegations do suggest that when they contact DEEOIC, many claimants are 

very anxious and are confused – in fact in many instances it is a communication from the DEEOIC, a 

communication that the claimant does not understand, that prompts the claimant to contact the DEEOIC. 

By and large in spite of their workloads, the DEEOIC personnel fully appreciate the pressures that 

claimants are under, and go to great lengths to assist claimants. Nevertheless, there are opportunities for 

misunderstandings. 

We encourage claimants to continue to bring their allegations of rude and/or uncaring conduct to our attention 

so that we can, in turn, bring these matters to the attention of the DEEOIC. The DEEOIC continues to affirm its 

commitment to provide claimants and potential claimants with professional and courteous service.

Processing of Claims Takes Too Long

The length of time that it takes to process a claim is not only a major complaint, but also continues to 

compound many of the other complaints that we receive. While we only see a fraction of the cases issued by 

the DEEOIC, we are aware of cases where claimant received a recommended decision within approximately 

5 months of the filing of their claim and we are aware of instances where both the recommended and final 

decisions issued within approximately one year of the filing of the claim. Thus, there are claims that are 

processed in an expeditious manner. Unfortunately, we also encounter instances where claims do not proceed 

expeditiously. We have already discussed two reasons that contribute to delay, i.e., dose reconstructions (see 

the discussion at Section 6.3) and the need to develop further evidence (see discussion at Section 7.0).

Another factor that impacts the amount of the time that it takes to process a claim is the length of time it 

sometimes takes the DOL to develop (or respond to) evidence. A common problem that we hear involves 

situations where claimants tell us that their claims have been “sent to Washington” or forwarded for further 

medical development, or that their case is awaiting review by an “attorney.” In some instances, claimants report 

that they wait long periods of time for a response to these actions. 

Claimants believe that the lack of guidance provided to them is another reason that the processing of claims 

can take so long. As we noted in our discussion at Section 9.1, many claimants argue that it is only when they 

submit their medical reports that they are advised of the information that should have been included in these 

reports. Similarly many claimants remark that it is only when they receive the decision denying their claim that 

they become aware of the specific evidence needed to prevail. Claimants contend that the claims process 

could be expedited if more guidance was provided in advance.

26 There are instances, such as when a claims examiner accepts a new job, where the assignment to a new claims examiner is unavoidable.

SECTION 9.2

SECTION 9.3
2009 Annual Report to C

Medical Benefits Card

 

There were a number of claimants who reported that they encountered difficulties receiving reimbursement for 

medical bills that they had paid or that their physician had contacted them to report that payment had not been 

received. Many claimants who contacted us believe that their problems can be traced back to the company 

utilized by the DOL for processing medical bills. On numerous occasions, claimants stated that “London, 

Kentucky” was the reason for their difficulties.

Claimants often fear that if their medical bills are not promptly paid, their doctors will refuse to treat them, or 

will discontinue accepting the DOL medical benefits card. In addition some claimants are concerned that the 

non-payment of these medical bills will impact their credit, and other claimants simply do not want to receive 

the telephone calls (and other contacts) inquiring about the lack of payment.

In addition, there were a number of inquiries during the past year asking if there was any provision whereby 

they could receive an advance on medical payments. Most of these inquiries were associated with impairment 

ratings. If a claimant chooses to use a physician of their choosing, the DOL will reimburse the claimant for 

the reasonable expenses associated with this examination, including reasonable travel. A couple of claimants 

who did not have the money to pay for the travel required for the impairment rating, argued that since the DOL 

was committed to reimbursing them for their reasonable expenses, the DOL ought to be able to advance this 

payment. As an alternative, these employees suggested a procedure by which the expenses related to the 

impairment rating could be directly billed to the DOL. The DOL notes that there are a number of administrative 

problems with advancing payments. Instead, the DOL has a procedure in which it expedites reimbursement for 

these expenses.

Legal and lay representatives

This year, we received a couple of questions inquiring into the circumstances in which a representative 

could charge a fee in excess of that outlined in the statute – these claimants indicated that they were simply 

making inquiries, there was no indication that anyone had been charged a fee in excess of that provided in 

the statute. Section 7385s-9 specifically outlines the fee that can be charged for services relating to an 

EEOICPA Part E claim.

Taxability of EEOICPA Benefits

As discussed in Section 9.1, we are contacted by claimants who are troubled that no one was willing to answer 

their questions concerning the taxability of EEOICPA benefits. These claimants find it “interesting” that they 

are trying to do the right thing (and pay their taxes), yet no one will give them a direct answer to their questions. 

They further point out that while they are aware of the statutory provision addressing the taxability of EEOICPA 

benefits, this provision is written in such a manner that they do not understand what it says.

SECTION 9.3

SECTION 9.4 SECTION 9.3

SECTION 9.4

SECTION 9.5
38 United States department o

Asme

grev

Our assessment of the most common complaints, grievances, and requests for assistance that we received 

during the past year must start with the recognition that in spite of the impressive amounts of compensation 

and benefits that have been paid to date, and in spite of the many efforts by the DEEOIC to improve this 

program, claimants, potential claimants, authorized representatives, family members, and other interested 

parties still contact our Office with their issues and concerns. The complaints, grievances, and requests 

for assistance that we received this year addressed a wide range of issues and came from workers and 

former workers of at least 40 different facilities. More importantly, while every claimant believes that his/her 

claim ought to be paid, we were not simply contacted by those whose claim had been denied, we were also 

contacted by individuals with pending, as well as accepted claims.

Consequently, a denial of the claim does not explain all of the complaints, grievances, and requests for 

assistance received by our Office. Instead, when you review the complaints and grievances that we received, 

not only in 2009 but over the course of the last few years, there are four themes that continue to surface.

To summarize these four themes: 

1. The EEOICPA does not fully meet the expectations of some claimants. In the opinion of some 

claimants, the EEOICPA does not cover all of the workers; does not cover all of the facilities (or does 

not cover all of the areas encompassed by certain facilities); and/or does not cover all of the illnesses 

that they expected. In addition, especially in terms of the burdens of proof, many claimants believe 

that this program does not measure up to what they expected from a “claimant- friendly” program.

2. A number of the complaints and grievances that we receive are premised on the belief that the burdens 

of proof that claimants must satisfy are too high, especially when you consider that: (1) most claims are 

based on employment/exposures that occurred many years ago and (2) generally claimants were not 

responsible for maintaining the evidence that they must now produce in order to satisfy these burdens. 

3. We hear a number of complaints suggesting that this program is “unfair.” Most of these arguments 

focus on the difficulty encountered locating employment and exposure records. Claimants contend 

that since it was either their employer or the government who was responsible for maintaining 

employment and exposure records, it is unfair to deny their claims when these records cannot be 

located. However, assertions of unfairness also arise with the general administration of this program. 

Some claimants believe that in pursuing their claim, they are held to a higher (or at least a different) 

standard than that applied to the government. 

4. Lastly, especially in instances where there is no evidence to the contrary, some claimants see it as a 

lack of trust when their affidavits and testimony are not deemed sufficient to establish entitlement. 

On the other hand, many claimants find it hard to believe that the government is unable to locate any 

of their records and/or question whether the government has released all of the evidence that could 

assist their claims.

In this report we have endeavored to illustrate how these themes underline and impact many of the complaints, 

grievances, and requests for assistance that we received in 2009.

Ultimately, some of the complaints, grievances, and requests for assistance that we received during the past 

year directly addressed the statute as it is currently written. This is especially true of the arguments suggesting 

that this program does not meet the expectations of claimants. These, however, are issues for Congress – 

neither the DEEOIC or this Office has the authority to amend or revise the statute.

SECTION 10.0
2009 Annual Report to C

Other complaints and grievances involve regulatory or policy issues. Claimants contact us to complain that 

certain regulations/policies issued by the DEEOIC (or other agencies) are not in accord with the statute and/

or the intent of Congress. In many of the instances that we encountered, these disagreements are based on 

differing interpretations of the law, and consequently, resolution of these disagreements may lie with the federal 

courts. Unfortunately, most claimants do not have the expertise or the resources to pursue a court challenge 

(and believe that a court challenge would take too long) and therefore would prefer some other means of 

resolving these disagreements. Until these disagreements are resolved, these issues will linger.

Still other complaints and grievances that we received addressed the administration of the program. Many of 

these complaints involve the fact that the EEOICPA is a very complicated program and, specifically address 

the assistance provided to claimants. As we discussed, many claimants find it impossible to grasp all of the 

nuances of the EEOICPA, and are overwhelmed by the technical, scientific and/or legal concepts upon which 

this program is premised.

The DEEOIC, as well as the other agencies involved with the EEOICPA, are to be commended for all of their 

efforts to date to provide assistance to claimants. Yet, based on the comments that we received during the 

past year, more needs to be done. Here are a few suggestions that arise from the concerns and problems that 

we are aware of:

1. Claimants want to review the information that is relied upon in determining their claims, and they want 

decisions that are reasoned and understandable. To this end, strides have been made to improve 

the reasoning provided in decisions issued by the DEEOIC and we hope that these efforts continue. 

Nevertheless, one problem that we still encounter concerns reports by District Medical Consultants 

(DMC). Many claimants are not aware that they can request a copy of this report. Therefore, we 

continue to encounter situations where issues are clarified for claimants only when these claimants 

finally realize that they can request a copy of the DMC report. Providing all claimants with the DMC 

report, as well as the other documents relied upon in determining their claims will go a long way 

in ensuring that claimants have a full understanding of the decisions reached in their claims and in 

combating the belief that cases are decided in an arbitrary fashion.

2. On this same note, some recommended decisions rely upon SEM to identify the toxins that employee’s 

in a particular labor category could potentially have been exposed to while working at the covered 

site. If it is not already done, this information should be provided to all claimants (where the issue of 

exposure is relevant) and should be provided to claimants at the earliest possible stage of the claims 

process.

3. The DEEOIC’s web-site contains copies of certain significant EEOICPA decisions. At the present time, 

there are limited cases on this web-site. Greater use of this web-site could significantly enhance the 

guidance/examples available to claimants.

4. Certain provisions of the statute, as well as certain regulatory provisions are not written in a manner 

that all claimants can easily comprehend. In addition, it must be recognized that most claimants 

pursue EEOICPA claims without the assistance of legal and or other representatives. More needs to 

be done to assist claimants who have difficulties understanding these statutes and regulations.

5. If the DEEOIC is not the agency to address certain questions relating to the EEOICPA, such as the 

taxability of EEOICPA benefits or the impact of the receipt of EEOICPA benefits on Social Security 

benefits, then more guidance needs to be provided as to where claimants can obtain answers to these 

questions.

6. Many claimants are not aware of all of the information/assistance available on the DEEOIC’s website. 

The DEEOIC needs to ensure that its web-site prominently highlights the information that is available 

and ensure that claimants can easily find this information.

7. To emphasize its commitment to providing professional and courteous service, the DEEOIC ought to 

institute procedures for reporting incidents of rude and unprofessional behavior. 

SECTION 10.0
40 United States department o

C

Whenever a claimant contacts us, whether by telephone, fax; e-mail, letter, or at a town hall meeting, we 

ensure them that we are there to listen to them and that we will address their concerns in our annual report. 

Nevertheless, while it is impossible to specifically discuss each and every complaint that we received during 

the past year, we have endeavored to address, in a general sense, the concerns and problems that claimants, 

potential claimants, authorized representatives, family members, and other interested parties brought to our 

attention over the course of the past year. In fact, it was our goal to do more than merely detail the numbers 

and types of complaints, grievances, and requests for assistance that we received in calendar year 2009 – our 

goal in this report was to shed some light on the causes and reasons behind these complaints, grievances, and 

requests for assistance.

In the upcoming year, the Office of the Ombudsman looks forward to continuing to work cooperatively with 

the DEEOIC and the other agencies involved with the EEOICPA, within the bounds of the independence of this 

Office, to improve the delivery of EEOICPA compensation and benefits to eligible recipients, in the timely and 

uniform manner envisioned by Congress and expected by claimants. 

CONCLUSION
2009 Annual Report to C

EEOICPA STATISTICS AS OF DECEMBER 31, 2009 

Data as of 12/31/2009. 

[Compensation payment totals updated Friday. Medical bill payment totals updated Monday.]

Combind P

CLAIMS CASES

Applications Filed 187,211 128,755*

Covered Applications Filed 141,270 103,399

 

Total Compensation Paid Payments 56,174 41,824

Total Dollars $4,970,126,263

Total Medical Bills Paid Total Dollars $419,283,912

Total Compensation + Medical Bills Paid $5,389,410,175

*A total of 75,546 unique individual workers are represented by the 128,755 cases reported.

Par

 CLAIMS CASES

Applications Filed 102,397 68,722

Non Covered Applications (show details) 17,656 14,471

Non Covered Employment 6,606 4,886

Condition Not Covered 11,050 9,585

Covered Applications Filed 84,741 54,251

 

 Recommended Decisions*1

Approved 41,773 27,438

Denied 31,336 21,519

Total 73,109 48,957

 Final Decisions*1

Approved 41,002 27,118

(show details) Denied 29,650 20,571

 Survivor Not Eligible 2,631 605

 Cancer Not Work Related*2 19,387 14,464

 Medical Info Insufficient to Support Claim 7,632 5,502

Total 70,652 47,689

 Compensation Paid

Payments 38,862 25,395

Total Dollars $3,149,773,451

*1

 With regard to covered applications only. 

*2

 Probability of Causation is less than 50 percent.

APPENDIX 1

APPENDIX 1
42 United States department o

Par

 CLAIMS CASES

Applications Filed 84,814 60,033

Non Covered Applications (show details) 28,285 10,885

Non Covered Employment 4,075 3,406

Survivor Not Covered*5 24,210 7,479

Covered Applications Filed 56,529 49,148

 Recommended Decisions*3

Approved 24,603 23,010

Denied 20,887 19,667

Total 45,490 42,677

 Final Decisions*3

Approved 23,805 22,446

(show details) Denied 19,836 18,804

 Cancer Not Work Related*4 5,918 5,723

 Medical Info Insufficient to Support Claim

13,918 13,081

Total 43,641 41,250

 

 Compensation Paid

Payments 17,312 16,429

Total Dollars $1,820,352,812

*3

 With regard to covered applications only.

*4

 Probability of Causation is less than 50 percent.

*5 APPENDIX 1 Per EEOICPA amendments of 2004, adult children are not covered under Part E.
2009 Annual Report to C

Part B Cancer Caes - 

Part B - Status and Location of NIOSH Referrals

 Cases Referred to NIOSH for Dose Reconstruction (DR) 31,058

 Cases Returned by NIOSH that are Currently at DOL

 With Dose Reconstruction (DR) 22,909

Without Dose Reconstruction (DR)*6 3,298

Total 26,207

 Cases that are Currently at NIOSH

Initial Referral to NIOSH 2,966

Reworks or Returns to NIOSH 1,885

Total 4,851

*6

 Most cases without a DR are cases withdrawn from NIOSH for DOL review and approval based on a new 

SEC designation. Other reasons for withdrawal include administrative closure, death of claimant.

 Part B - Cases with Dose Reconstruction (DR) and Final Decision

 Final Decision to Accept and Probability of Causation (POC) 50% or Greater 7,000

 Final Decision to Deny and POC Less Than 50% 13,865

Total 20,865

 

APPENDIX 1
44 United States department o

Part B CncerC

 

Accepted DR Cases

 Cases Approved 6,679

 Cases Paid 6,642

 Individuals (Claimants) Paid 9,501

 Amount Paid $991,794,308

Accepted SEC Cases

 Cases Approved 10,049

 Cases Paid 9,987

 Individuals (Claimants) Paid 16,314

 Amount Paid $1,490,389,718

 Cases Accepted Based on SEC Status and POC 50% or Greater*7

 Cases Approved 321

 Cases Paid 320

 Individuals (Claimants) Paid 400

 Amount Paid $48,000,000

*7

 For these cases at least one specified cancer was approved based on SEC employment and at least 

one other cancer was approved based on the DR process resulting in a POC of 50% or greater.

TOTALS: All Accepted SEC and DR Cases 

 Cases Approved 17,049

 Cases Paid 16,949

 Individuals (Claimants) Paid 26,215

 Amount Paid

APPENDIX 1
2009 Annual Report to C

Liown 

(Meetings sponsored by the Office, as well as meetings sponsored by other agencies)

 

SITE # OF MEETINGS # OF ATTENDEES (approximate)

St. Charles, Missouri 2 Meetings 150

Fairfield, Ohio 2 Meetings 175

Miamisburg, Ohio 2 Meetings 100

Portsmouth, Ohio 2 Meetings 200

Chillicothe, Ohio 2 Meetings 100

Paducah, Kentucky 3 Meetings 400

Burlington, Iowa 2 Meetings 175

Ames, Iowa 2 Meetings 40

Tuba City, Arizona 1 Meeting 40

Shiprock, New Mexico 1 Meeting 250

Hanford 1 Meeting 100

TOTALS 20 Meetings 1750

 

APPENDIX 2


U.S. DEPARTMENT OF LABOR

OFFICE OF THE OMBUDSMAN

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM

200 Constitution Avenue, N.W.

Room N-2454

Washington, D.C. 20210