2008 Annual Report to Congress

Office of the

Ombudsman

forPart E

Energy Employees Occupational 

Illness Compensation Program

U.S. Department of Labor

 

OFFICE OF THE OMBUDSMAN

OmbudsmanAnnualReport v4.indd 1
Cover photo credit: courtesy of National Nuclear Security Administration/Nevada Test Site Office.

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2008 Annual Report to Congress

Office of the

Ombudsman

forPart E

Energy Employees Occupational 

Illness Compensation Program

U.S. Department of Labor

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Table of ConTenTs

aCKnoWleDGMenTs ............................................................................................................................ v

InTRoDUCTIon ........................................................................................................................................1

leGIslaTIVe HIsToRY of PaRT e ........................................................................................................2

eXeCUTIVe sUMMaRY ............................................................................................................................3

RePoRT .......................................................................................................................................................6

 I. THe offICe of THe oMbUDsMan and this RePoRT ..........................................................6

 II. sTaTUToRY IssUes ....................................................................................................................8

 A.		Covered	Employee/Covered	DOE	Facility		.........................................................................................9

 	B.		Causation	Requirement	........................................................................................................................10

 	D.		Qualified	Claimant’s	Death	Prior	to	Award	Nullifies	Award	or	Reduces	Compensation	...........12

	 	 	 	E.		Chronic	Lymphocytic	Leukemia	(CLL)	.............................................................................................13

III. ReGUlaToRY IssUes ...............................................................................................................13

 	A.		The	50%	Probability	of	Causation	Requirement	for	Radiogenic	Cancer	......................................13

 	B.		Medical	Benefits	.....................................................................................................................................14

 	C.		Offsets	for	Social	Security	Benefits	.....................................................................................................15

 	D.		Part	B	and	Dose	Reconstruction	.........................................................................................................15

IV. aDMInIsTRaTIVe IssUes .......................................................................................................17

 	1.		Burden	of	Proof/	Difficulties	Proving	Employment,	Exposure	and	Causation	.............................18

 	2.		Processing	of	Claims	Takes	Too	Long	.................................................................................................22

 	3.		Interactions	with	DEEOIC	Personnel	.................................................................................................24

 	4.		Locating	Experts	....................................................................................................................................26

 	5.		Taxability	of	EEOICPA	Benefits	...........................................................................................................27

 	6.		Area	51	(Nevada	Test	Site)	....................................................................................................................27

 	7.		Sarcoidosis	versus	Chronic	Beryllium	Disease	..................................................................................28

 	8.		General	Requests	for	Assistance	and	Miscellaneous	.........................................................................28

V. ToWn Hall MeeTInGs ..........................................................................................................31

 VI. assessMenT of THe CoMPlaInTs, GRIeVanCes anD ReQUesTs foR 

 assIsTanCe ...............................................................................................................................32

aPPenDIX I ..............................................................................................................................................34

aPPenDIX II .............................................................................................................................................36

noTes ........................................................................................................................................................37

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vi OFFICE OF THE OMUDSMAN

As	always,	I	must	acknowledge	the	staff	of	the	Office	of	the	Ombudsman.		I	continue	to	be	amazed	by	the	

effort	and	devotion	put	forth	by	Kim	Holt,	Patricia	Louie	and	James	McQuade.		Thanks	to	each	of	you	for	all	

that	you	do.

Lastly,	while	I	have	already	recognized	the	many	claimants	and	potential	claimants	who	took	the	time	to	

contact	our	Office,	I	would	like	to	especially	acknowledge	those	people	who	contacted	our	Office,	yet	this	

Office	could	not	provide	the	needed/requested	assistance.		As	I	often	caution,	the	Office	of	the	Ombudsman	

does	not	possess	the	authority	to	change	or	modify	provisions	of	the	Act;	we	do	not	make	decisions	on	

claims;	and	we	do	not	have	the	power	to	authorize	the	payment	of	compensation	or	medical	benefits.		Thus,	

there	are	instances	–	many	more	than	we	would	prefer	-	where	this	Office	simply	is	not	able	to	provide	

the	necessary	assistance.		However,	even	in	those	situations	where	we	are	unable	to	provide	meaningful	

assistance,	we	promise	to	listen	to	the	complaints,	grievances	and	requests	for	assistance,	and,	where	

appropriate,	to	include	these	concerns	in	our	annual	report.		To	those	for	whom	we	were	not	able	to	provide	

meaningful	assistance,	I	hope	that	this	report	fulfills	our	promise.		

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InTRoDUCTIon

This	is	the	fourth	annual	report	prepared	by	the	Office	of	the	Ombudsman	for	submission	to	Congress.		

In	our	first	report,	which	addressed	calendar	year	2005,	we	observed	that	as	of	mid-December	2005,	

the	Division	of	Energy	Employees	Occupational	Illness	Compensation	(DEEOIC)	had	issued	2,749	

Recommended	Decisions,	and	2,380	Final	Decisions	(of	which	1,991	had	been	decided	in	favor	of	the	

claimant),	resulting	in	payment	of	over	$254	million	in	Part	E	compensation.		When	you	compare	those	

numbers	with	the	same	numbers	as	of	December	21,	2008,	it	is	clear	that	there	has	been	progress	in	the	

adjudication	of	Part	E	claims:

Mid-December 2005 December 21, 2008

Recommended Decisions 2,749 39,938

Final Decisions 2,380 37, 571

Final Decision (approvals) 1,991 20,049

Part E payments Over $254 million Over $1.3 billion1

[Note: all numbers represent Part E claims only]. 1

In	addition,	since	the	inception	of	this	program,	DEEOIC	has	continued	to	implement	initiatives	designed	

to	facilitate	the	processing	of	Part	E	claims.		A	few	of	the	initiatives	unveiled	this	year	include:	increasing	the	

assistance	offered	by	the	Resource	Centers;	adding	information	about	occupational	diseases	to	the	listings	of	

toxic	substances	found	on	DEEOIC’s	website;	and	providing	claims	examiners	with	access	to	an	additional	

data	base	to	assist	in	the	verification	of	employment.

Nevertheless,	in	spite	of	the	claims	that	have	been	approved;	the	monies	that	have	been	paid;	and	the	

initiatives	that	have	been	unveiled,	each	year	the	Office	of	the	Ombudsman	receives	hundreds	of	complaints,	

grievances	and	requests	for	assistance	–	and	this	year	was	no	exception.		In	any	program	such	as	this	you	

should	expect	that	some	people	will	be	disappointed	with	the	decision	issued	in	their	case.		Yet,	there	

are	many	instances	where	claimants	contact	us	with	problems	even	before	a	decision	issues	in	their	case.		

Moreover,	a	vast	majority	of	the	complaints,	grievances	and	requests	for	assistance	that	we	receive	address	

basic	concerns/disagreements	with	the	scope	of	the	law	as	written;	the	interpretation	or	implementation	of	

EEOICPA;	or	the	administration	of	EEOICPA.

Therefore,	the	goal	of	this	report	is	to	provide	the	numbers	and	types	of	complaints,	grievances	and	requests	

for	assistance	received	by	the	Ombudsman	during	2008	and	to	provide	an	assessment	of	the	most	common	

difficulties	encountered	by	claimants	during	that	year.		In	order	to	provide	this	information	in	a	“logical”	

manner,	it	is	necessary	to	structure	this	information.		In	our	three	prior	annual	reports,	we	categorized	the	

issues	that	we	discussed	as	either:	statutory;	regulatory;	or	administrative.		As	we	compiled	the	data	for	this	

year’s	report,	we	considered	a	number	of	“new”	ways	of	presenting	this	information.			However,	in	every	

instance,	as	we	developed	the	issues,	the	discussion	always	eventually	returned	to	a	focus	on	the	statute,	

the	regulations	or	the	administration	of	the	program.		Consequently,	we	believe	that	an	effective	way	to	

structure	our	discussion	is	to	categorize	issues	as	statutory,	regulatory	or	administrative,	and	these	are	the	

categories	that	we	will	use	in	this	report.

1

	Appendix	II	contains	DEEOIC’s	2008	Part	E	statistics	

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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...”		See	42	U.S.C.	§	7385s-4.		With	respect	to	

radiogenic	cancer	claims	only,	DEEOIC	interprets	this	standard	as	requiring	a	probability	of	causation	

of	50%	or	more	based	on	a	NIOSH	dose	reconstruction.		However,	some	claimants	argue	that	when	

viewed	in	the	context	of	the	entire	statute,	this	provision	signals	Congress’s	intent	that	the	causation	

standard	be	something	less	than	50%.

B.	 Medical benefits (19 comments): 	There	are	claimants	who	assert	that	the	system	created	by	DEEOIC	

for	the	receipt	of	medical	benefits	can	itself	be	a	barrier	to	the	receipt	of	these	benefits.

C.	 offset for social security (10 comments):		Some	claimants	believe	that	it	is	the	intent	of	the	EEOICPA	

statute	to	exclude	their	social	security	benefits	from	any	offset	as	a	result	of	the	receipt	of	EEOICPA	

benefits.		However,	they	cannot	find	anyone	who	will	directly	address	this	issue.

D.	 Part b and Dose Reconstruction (78 comments): We	receive	a	number	of	inquiries	concerning	Part	

B	and/or	dose	reconstruction.		The	majority	of	these	inquiries	are	either:	(1)	requests	for	the	status	of	a	

Part	B	claim;	(2)	questions	concerning	Special	Exposure	Cohort	status;	or	(3)	questions	relating	to	dose	

reconstruction	–	i.e.,	claimants	do	not	understand	the	process	or	question	the	accuracy	of	the	estimate.

Administrative	Issues	encompass	a	wide	variety	of	inquiries	that	we	receive	ranging	from	complaints	

regarding	interactions	with	DEEOIC	personnel	to	requests	for	assistance	in	locating	evidence	to	establish	

employment,	exposure	and/or	causation.		In	fact,	most	of	the	inquiries	that	we	received	this	year	were	in	

actuality	requests	for	assistance	–	the	claimant	did	not	call	simply	to	record	his	or	her	complaints	about	a	

statute,	a	regulation,	or	their	interactions	with	DEEOIC,	rather	the	claimant	contacted	us	in	hopes	that	we	

could	offer	assistance	in	pursuing	their	claim.				Thus,	the	Administrative	Issues	discussed	in	this	report	are:

A.	 burden of Proof/Difficulties Proving employment, exposure and Causation (192 comments):		

Many	claimants	contact	us	in	response	to	the	difficulties	that	they	encounter	when	attempting	to	

locate	evidence	to	substantiate	employment,	exposure	or	causation.		With	respect	to	employment	

and	exposure,	especially	where	records	have	been	lost,	destroyed	or	never	kept	in	the	first	place,	

claimants	approach	us	inquiring	as	to	what	else	they	can	do	to	satisfy	this	burden.		While	there	are	

some	suggestions	that	can	be	provided	(and	are	provided	by	this	Office,	as	well	as	DEEOIC),	there	are	

instances	where	these	suggestions	are	not	fruitful.		Many	of	these	claimants	believe	that	it	is	unfair	

to	deny	their	claim	because,	through	no	fault	of	their	own,	relevant	evidence	is	no	longer	available.		

Moreover,	where	evidence	is	available,	some	claimants	assert	that	it	would	be	more	efficient	if	they	

knew,	in	advance,	the	criteria	that	would	be	used	to	evaluate	their	evidence	-	thus	avoiding	instances	

where	claimants	submit	evidence	and	are	then	told	that	the	evidence	is	lacking.

B.	 Processing of Claims Takes Too Much Time (66 comments):		While	we	see	cases	that	are	processed	

very	expeditiously,	we	are	nevertheless	contacted	by	claimants	who	question	the	amount	of	time	it	takes	

to	adjudicate	their	claims.		There	are	many	steps	in	the	Part	E	process,	and	some	claims	take	years	to	

wind	their	way	completely	through	this	system.		Moreover,	some	claimants	become	frustrated	at	what	

they	perceive	as	unnecessary	(or	avoidable)	delays.		For	instance,	some	claimants	have	told	us	that	they	

become	frustrated	when	their	evidence	is	returned	for	further	development	–	these	claimants	often	

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argue	that	they	should	have	been	provided	better	guidance	in	the	beginning.		Furthermore,	while	some	

claimants	would	appreciate	an	update	when	there	are	delays	in	the	processing	of	their	claim,	others	

question	why	DEEOIC	does	not	have	time-limits	imposed	on	it	within	which	to	develop	evidence	or	

respond	to	documents.

DEEOIC	indicates	that	it	imposes	timeliness	standards	on	itself	as	part	of	its	operational	plans	and	

Government	Performance	and	Results	Act	goals.		However,	the	claimants	with	whom	we	spoke	were	

not	aware	of	these	standards.

C.	 Concerns Involving Interactions with DeeoIC Personnel (108 comments): A	number	of	claimants	

continue	to	contact	us	to	report	unanswered	telephone	calls;	claims	impacted	by	changes	in	claims	

examiners;	inconsistent	advice	and/or	rude	behavior.		It	is	not	within	our	authority	to	assess	blame,	

assuming	that	there	is	blame	to	be	assessed.		Nevertheless,	our	Office	continues	to	discuss	these	

allegations	with	DEEOIC	in	an	attempt	to	stem	these	allegations,	and	a	process	has	been	developed	for	

referring	such	complaints	to	DEEOIC	managers.

D.	 locating experts (7 comments): It	is	acknowledged	that	in	some	areas	of	this	country	there	are	not	

many	(and	sometimes	no)	“qualified”	doctors	to	perform	impairment	ratings	and/or	doctors	who	are	

willing	to	accept	the	Medical	Benefits	Identification	Card	issued	by	DEEOIC.

DEEOIC	states	that	it	is	aware	that	some	claimants	have	experienced	difficulties	locating	experts	and	

has	contracted	with	nearly	100	specialists	to	provide	impairment	ratings	and	other	evaluations	upon	

the	request	of	claimants	or	DOL.		DEEOIC	also	indicates	that	it	has	stepped	up	its	efforts	to	explain	to	

providers	the	benefits	of	enrolling	in	this	program.

However,	in	the	meantime,	claimants	continue	to	complain	that	their	ability	to	receive	medical	benefits	is	

impacted	by	the	inability	to	locate	experts	who	will	provide	these	services.

E.	 area 51 (5 comments): 	Available	information	did	not	list	Area	51	as	a	covered	DOE	facility.		

		 [Note:	this	issue	was	addressed	by	EEOICPA	Circular	No.	08-06].

F.	 Sarcoidosis	(3	comments):	It	was	argued	that	a	history	of	beryllium	exposure	and	a	diagnosis	of	

sarcoidosis	were	sufficient	to	meet	the	requirements	for	a	diagnosis	of	chronic	beryllium	disease.		[This	

issue	was	addressed	by	EEOICPA	Circular	No.	08-07].

G.	 General	Requests	for	Assistance	(1088	comments):	A	large	percentage	of	our	contacts	involve	

individuals	who	simply	want	assistance	processing	their	claim.		These	claimants	generally	find	this	

program	to	be	very	complicated,	and	many	are:	(1)	not	aware	of	assistance	that	is	provided;	(2)	do	

not	have	access	to	the	assistance	that	is	available;	or	(3)	based	on	the	facts	of	their	particular	case,	

the	assistance	that	is	available	is	not	sufficient.		There	are	few	places	that	these	claimants	can	call	for	

assistance,	and	specifically	with	respect	to	this	Office,	we	are	not	always	able	to	offer	the	assistance	that	

is	needed.				

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RePoRT

The	Office	of	the	Ombudsman	for	Part	E	of	EEOICPA	(the	Office)	was	established	in	2004	by	Section	

7385s-15	of	the	Energy	Employees	Occupational	Illness	Compensation	Program	Act	(EEOICPA)	

as	part	of	Public	Law	108-375,	the	Ronald	W.	Reagan	National	Defense	Authorization	Act	for	Fiscal	

Year	2005.		See	42	U.S.C.	§	7385s-15.	2				In	addition	to	directing	that	the	Office	be	an	independent	office,	

located	within	the	Department	of	Labor,	these	amendments	also	charged	the	Office	with	three	duties:

1.	 To	provide	information	on	the	benefits	available	under	Part	E	and	on	the	requirements	and	procedures	

applicable	to	the	provision	of	such	benefits;

2.	 To	make	recommendations	to	the	Secretary	of	Labor	regarding	the	location	of	centers	(to	be	known	as	

“resource	centers”)	for	the	acceptance	and	development	of	claims	for	benefits;	and

3.	 To	submit	not	later	than	February	15	of	each	year	a	report	setting	forth	the	number	and	types	of	

complaints,	grievances,	and	requests	for	assistance	received	by	the	Ombudsman	under	Part	E	during	

the	preceding	year	and	an	assessment	of	the	most	common	difficulties	encountered	by	claimants	and	

potential	claimants	during	the	preceding	year.	3

The	information	presented	below	is	our	report	to	Congress	setting	forth	the	number	and	types	of	

complaints,	grievances,	and	requests	for	assistance	received	during	calendar	year	2008	and	an	assessment	of	

the	most	common	difficulties	encountered	by	claimants	and	potential	claimants	during	that	year.

I. THe offICe of THe oMbUDsMan anD THIs RePoRT

While	our	authorizing	legislation	only	mentions	Part	E,	we	are	contacted	by	Part	B	claimants,	as	well	as	

by	individuals	searching	for	someone	who	can	help	them	with	their	general	“labor”	questions.		Where	

the	question	is	not	related	to	EEOICPA,	we	direct	these	individuals,	to	the	extent	that	we	can,	to	more	

relevant	offices	or	agencies.		Where	the	question	or	request	for	help	involves	Part	B,	this	Office	relies	upon	

its	working	relationships	with	NIOSH;	the	Ombudsman	to	NIOSH;	as	well	as	DEEOIC	to	ensure	that	these	

claimants	receive	assistance.

The	concerns	that	are	brought	to	our	attention	and	the	requests	for	assistance	that	we	receive	involve	every	

aspect	of	the	claims	process.		Some	of	the	assistance	that	we	provide	includes:

•	 Checking	the	status	of	claims,

•	 Defining	legal,	medical,	and	scientific	terms	and	concepts,

•	 Reviewing	and	explaining	documents	and	decisions,

•	 Directing	claimants	to	other	useful/relevant	resources,

•	 Assisting	claimants	in	understanding	instructions,	laws,	regulations,	as	well	as	policies	and	procedures,

•	 Assisting	claimants	in	obtaining	answers	to	questions.

Furthermore,	a	trend	that	we	began	to	notice	last	year,	and	one	that	we	continue	to	see	this	year	is	that	

instead	of	complaints	that	focus	on	specific	incidents,	we	are	receiving	more	and	more	general	requests	for	

2

		See	Appendix			for	a	discussion	of	the	legislative	history	of	EEOICPA	and	the	Office	of	the	Ombudsman.	

3

		The	Office	is	also	authorized	to	carry	out	such	other	duties	with	respect	to	this	part	as	the	Secretary	(of	Labor)	shall	specify	for	

purposes	of	this	section.		To	date,	the	Secretary	has	not	authorized	any	other	duties.

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assistance.		Thus,	rather	than	focusing	upon	a	particular	statutory	or	regulatory	provision,	more	claimants	

are	contacting	us	because	they	simply	want	assistance	processing	their	claim.		

The	information	presented	in	this	report	is	based	on	our	interactions	with	the	individuals	who	attended	our	

town	hall	meetings	sponsored	during	2008,	as	well	as	the	claimants,	potential	claimants,	family	members	

and	those	representing	claimants	who	telephoned,	faxed,	e-mailed	and/or	mailed	us	during	the	period	from	

January	1,	2008	through	December	31,	2008.	4

However,	before	proceeding	with	the	report,	there	are	four	factors	that	impact	this	report	that	we	would	like	

to	acknowledge:

	1.	 The	Office	of	the	Ombudsman	only	interacts	with	a	percentage	of	the	Part	E	claimant	population.		

Claimants	who	do	not	encounter	problems,	as	well	as	those	who	are	satisfied	with	the	program,	have	no	

reason	to	contact	us.		Moreover,	some	claimants	are	not	aware	of	this	Office	–	an	issue	that	we	continue	

to	address.		In	addition,	some	claimants	admit	that	they	had	reservations	about	contacting	this	Office	

–	some	were	hesitant	to	lodge	a	complaint,	while	others	admit	that	they	had	doubts	as	to	the	benefits	of	

contacting	us.		Thus,	even	among	claimants	who	are	encountering	difficulties,	we	only	hear	from	those	

who	know	of	our	existence	and	are	willing	to	contact	us.	

2.	 This	year’s	report	addresses	all	of	the	most	common	complaints,	grievances	and	requests	for	assistance	

that	we	received	during	2008,	including	issues	discussed	in	prior	reports.		It	was	decided	that	since	

claimants	and	potential	claimants	had	taken	the	time	to	contact	our	Office,	we	should	not	omit	an	issue	

simply	because	it	was	addressed	in	a	previous	report.

3.	 This	Office	is	charged	with	providing	an	assessment	of	the	most	common	difficulties	encountered	by	

those	claimants	who	contact	us.		This	assessment	is	not	an	attempt	to	assess	blame.		The	assessing	of	

blame,	assuming	that	there	is	blame	to	be	assessed,	is	beyond	the	scope	of	this	Office.

4.	 Most	claimants	who	contact	us	have	broad	concerns	that	overlap	(or	do	not	fit	neatly	into)	the	categories	

and	subcategories	used	in	this	annual	report.		Thus,	we	fully	recognize	that	many	issues	transcend	

specific	categories	(or	could	just	as	well	have	been	listed	in	other	categories).

** ClaIManTs sHoUlD noT RelY UPon THe sTaTeMenTs of laW anD/oR Case 

eXaMPles PRoVIDeD In THIs RePoRT In ReaCHInG anY ConClUsIons ConCeRnInG 

aCTUal ClaIMs.		The	case	examples	and	discussions	of	law	contained	in	this	report	are	included	

solely	for	the	purpose	of	providing	Congress	with	the	number	and	types	of	complaints,	grievances	and	

requests	for	assistance	received	by	this	Office	during	this	year.		EEOICPA	is	a	complicated	statute	and	its	

applicability	varies	depending	upon	the	facts	of	each	individual	case.		Thus,	individual	claimants	should	not	

rely	upon	the	case	examples	and/or	discussions	of	law	contained	in	this	report	in	reaching	any	conclusions	

concerning	actual	claims.		ANY	QUESTIONS	CONCERNING	INDIVIDUAL	EEOICPA	CASES	OUGHT	

TO	BE	REFERRED	TO	THE	RESOURCE	CENTER,	THE	DISTRICT	OFFICE	OR	THIS	OFFICE	[Contact	

information	for	this	Office	is	provided	on	the	back	cover	of	this	report].	

4

	 During	the	course	of	this	year,	the	Office	of	the	Ombudsman	held	town	hall	meetings	in	St.	Petersburg,	Florida;	Las	Vegas,	

Nevada;	and	Shoreham,	New	York.		

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 OFFICE OF THE OMBUSMAN  

II. sTaTUToRY IssUes

As	in	past	years,	we	received	complaints,	grievances	and	requests	for	assistance	involving	the	EEOICPA	

statute.		Initially,	it	must	be	recognized	that	where	the	issue	involves	the	statute,	the	Department	of	Labor	is	

without	authority	to	resolve	such	issues.		Rather,	any	resolution	of	these	issues	will	have	to	be	addressed	by	

Congress.

Many	claimants	view	EEOICPA	as	a	broad	program	designed	to	compensate	those	who	worked	at	nuclear	

facilities.		As	a	result,	some	claimants,	especially	those	who	were	involved	in	the	efforts	to	pass	this	

legislation,	become	disappointed	when	they	realize	the	limited	scope	of	Part	E	–	Part	E	only	extends	to	

covered	Department	of	Energy	(DOE)	contractors	and	subcontractors,	as	well	as	employees	covered	by	

Section	5	of	the	Radiation	Exposure	Compensation	Act	(and	qualified	survivors	of	such	employees),	for	

covered	illnesses	that	are	the	result	of	exposure	to	toxic	substances	at	a	DOE	facility.		Consequently,	Part	E	

does	not	cover	all	workers	who	were	involved	with	the	nuclear	program.		

In	addition,	the	EEOICPA	statute	is	divided	into	two	parts,	Part	B	and	Part	E.		Because	many	EEOICPA	

claimants	are	potentially	eligible	for	benefits	under	both	parts,	some	claimants	are	keenly	aware	of	the	

requirements	of	both	programs.		Some	claimants	have	contacted	us	to	lodge	complaints	concerning	certain	

provisions	of	Part	E	which	they	believe	are	more	“limiting”	than	similar	provisions	in	Part	B.		The	table	below	

outlines	the	differences	between	Part	B	and	Part	E	that	have	been	the	subject	of	complaints	during	the	year:

Part b Part e

Covers atomic weapons employees; beryllium Covers DOE contractors and subcontractors;

vendor employees; DOE employees; DOE Section 5 RECA employees

contractors and subcontractors; Section 5 RECA

employees

Eligible employee entitled to $150,000.		If employee Eligible employee entitled to up to $250,000.		If

dies before receipt of benefits, eligible survivor employee dies before receipt of benefits, under most

entitled to $150,000. circumstances, survivor must file survivor’s claim

where potential benefits range between $125,000

and $175,000.

Eligible survivors are spouse; child; parent; Eligible survivors are spouse and child, but is

grand-child; grand-parent limited to a child who at the time of the employee’s

death was either: under 18; or under 23 and a full

time student; or incapable of self-support.

The	specific	statutory	issues	that	generated	concern	this	year	include:

A.	 Covered	Employee/Covered	DOE	Facility	–	17	comments

B.	 Causation	Requirement	–	13	comments

C.	 Limitation	on	Survivor	Eligibility	–	46	comments

D.	 Qualified	Claimant’s	Death	Prior	to	Award	Nullifies	Claim	or	Reduces	Compensation	–	11	comments

E.	 Chronic	Lymphocytic	Leukemia	(CLL)	–	4	comments

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Some	claimants	assert	that	under	the	facts	of	their	particular	case,	this	definition	proves	to	be	too	narrow	

[or	too	technical].		In	particular,	we	have	been	informed	of	instances	where	even	though	the	employer	had	

a	contract	with	DOE	and	the	employee	worked	at	a	DOE	facility,	claims	were	denied	on	the	ground	that	the	

contract	was	not	one	to	provide	management	and	operations,	management	and	integration,	environmental	

remediation,	or	construction	and	maintenance	at	a	facility.

For	all	of	the	reasons	discussed	above,	individuals	who	were	potentially	exposed	to	toxins	while	working	at	

or	near	DOE	facilities	continue	to	question	why	the	identity	of	their	particular	employer,	the	exact	location	

of	their	job,	or	the	specifics	of	a	contract	should	determine	whether	they	are	eligible	for	Part	E	benefits.

b. Causation Requirement

In	order	to	be	eligible	under	Part	E,	the	claimant	must	establish	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.”		See	42	U.S.C.	§	7385s-4(c).

Prior	reports	have	discussed	the	difficulties	encountered	by	claimants	attempting	to	prove	that	an	illness	is	

related	to	exposure	to	toxins	while	working	at	a	DOE	facility.		We	continue	to	hear	similar	complaints,	and	

discuss	those	complaints	at	Section	IV	(1).		However,	many	of	the	claimants	who	contact	us	with	“causation	

problems”	actually	have	a	more	basic	problem	–	they	do	not	understand	(or	agree	with)	the	need	for	a	

causation	requirement.		Many	claimants	argue	that	their	employment	which	exposed	them	to	known	toxins	

coupled	with	the	fact	that	they	now	suffer	from	an	illness	ought	to	be	sufficient	to	qualify	them	for	benefits.		

Take	for	example	a	claimant	who	called	suffering	from	pulmonary	fibrosis.		In	light	of	the	fact	that	that	

this	claimant	was	exposed	to	plutonium	while	working	at	a	DOE	facility,	this	claimant	questions	the	need	

for	additional	documentation	in	order	to	prove	that	the	pulmonary	fibrosis	is	associated	with	exposure	to	

plutonium.

The	belief	that	the	causation	requirement	is	unnecessary	is	exacerbated	when	the	claimant	is	also	aware	of	

literature	suggesting	a	relationship	between	toxins	at	the	facility	and	the	illness	that	they	suffer.		This	was	the	

situation	with	a	former	Nevada	Test	Site	(NTS)	employee	now	suffering	from	contact	dermatitis.		Because	

there	was	medical	literature	(the	American	Journal	of	Medicine)	that	linked	contact	dermatitis	to	toxins	

at	the	workplace,	this	claimant	could	not	understand	the	need	to	invest	further	time	establishing	that	this	

illness	was	related	to	exposure	to	toxins	at	work.		The	belief	that	it	was	not	necessary	to	develop	additional	

evidence	was	buttressed	when	this	employee	reviewed	the	Site	Exposure	Matrices	(SEM)	for	NTS.	7			The	

SEM	contains	a	listing	of	720	toxins	known	to	have	been	used	at	NTS	and	also	lists	359	toxic	substances	with	

an	established	link	to	contact	dermatitis.		In	light	of	the	fact	that	he	has	contact	dermatitis	and	DEEOIC’s	

website	contains	information	linking	contact	dermatitis	to	a	number	of	toxins	known	to	have	been	used	at	

NTS,	this	employee	could	not	understand	why	he	was	being	asked	to	submit	additional	evidence	indicating	

that	it	was	at	least	as	likely	as	not	that	his	exposure	to	a	particular	toxin	at	NTS	was	a	significant	factor	in	

7

	 The	Site	Exposure	Matrices	(SEM)	is	a	tool	developed	by	DEEOIC	that	contains	information	about	particular	toxic	substances	

present	at	particular	DOE	facilities.		The	SEM	is	updated	to	include	additional	toxic	substances	which	have	established	links	to	

certain	occupational	illnesses.

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aggravating,	contributing	to,	or	causing	his	contact	dermatitis.	8

The	Office	has	had	similar	conversations	with	many	other	claimants.		These	claimants	focus	on	their	

exposure	to	toxins,	and	view	the	inclusion	of	a	“causation	requirement”	as	an	unnecessary	and	oftentimes	

difficult,	if	not	impossible	obstacle.

C. limitation on survivor eligibility

Most	of	the	problems	with	this	provision	involve	the	definition	of	“surviving	children.”		Under	Part	E,	in	

order	for	a	child	to	qualify	as	a	survivor,	that	child	must,	at	the	time	of	the	worker’s	(parent’s)	death,	have	

been	either:

a.	 younger	than	18	years	of	age;	or

b.	 younger	than	23	years	of	age	and	a	full-time	student;	or

c.	 any	age	and	incapable	of	self-support.

Claimants	contact	our	Office	to	offer	their	opinion	as	to	why	this	provision	is	unfair.		Moreover,	we	continue	

to	receive	inquiries	asking	if	this	provision	has	been	amended	or	revised.		

The complaints that we receive argue that:

1.	 It	is	not	fair	that	this	program	was	only	created	after	many	of	the	workers	were	deceased	and	many	

of	the	children	were	adults,	and	then	to	impose	an	age	restriction	on	the	eligibility	of	the	surviving	

children.

2.	 This	definition	does	not	recognize	the	hardships	endured	and	the	sacrifices	often	made	by	adult	children	

in	caring	for	their	parents.		(This	frustration	is	most	evident	in	situations	where	the	adult	child	cared	

for	the	parent,	yet	upon	the	death	of	the	worker/parent,	the	adult	child	is	not	eligible	for	benefits,	while	

other	children,	simply	because	of	their	age,	are	eligible.

3.	 The	requirements	for	establishing	“incapable	of	self-support”	are	not	clear.		The	phrase	“incapable	of	

self-support”	is	not	defined	in	the	statute,	thus	we	are	contacted	by	claimants	who	argue	that	since	

they	were	not	working	at	the	time	of	the	worker’s	death,	they	have	met	the	definition	of	“incapable	of	

self-support.”			In	addition,	some	children	note	that	while	they	were	in	fact	incapable	of	self-support	

at	the	time	of	the	worker’s	death,	prior	to	the	passage	of	this	statute,	there	was	no	reason	to	obtain	

documentation	of	their	condition.		Thus,	for	some	of	these	claimants	it	is	difficult	to	now	obtain	records	

addressing	their	condition	many	years	ago.		

In	addition,	because	this	is	an	instance	where	Part	B	differs	from	Part	E	(under	Part	B	there	is	no	limitation	

on	the	eligibility	of	children),	some	claimants	ask	why	this	limitation	was	inserted	in	Part	E,	but	not	inserted	

in	Part	B.

8

	 This	case	has	a	long	procedural	history.		However,	this	claimant	initially	contacted	us	after	he	was	advised	that	he	needed	to	

establish	that	his	contact	dermatitis	arose	during	a	specific	latency	period.		The	claimant	also	felt	that	it	was	unfair	to	ask	him	in	

2008	to	find	medical	records	dating	back	to	the	mid	1980’s.

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D. Qualified Claimant’s Death Prior to award nullifies award or Reduces Compensation

Under	Part	E,	the	death	of	the	covered	employee	or	survivor	prior	to	the	payment	of	benefits	may	result	in	

a	reduction	or	nullification	of	compensation.		For	example,	Section	7385s-1(2)(A)	provides	that,	“[a]fter	

the	death	of	a	covered	DOE	contractor	employee,	compensation...shall	not	be	paid.”		Rather,	with	one	

exception,	after	the	death	of	covered	employee,	the	survivor	of	that	employee	shall	receive	compensation	

under	the	compensation	schedule	for	survivors	found	at	42	U.S.C.	§	7385s-3.			What	many	claimants	find	

troubling	is	that	while	the	maximum	compensation	available	to	a	living	worker	under	Part	E	is	$250,000,	

the	compensation	schedule	for	survivors	range	from	a	minimum	of	$125,000	to	a	maximum	of	$175,000	

depending	upon	the	extent	of	the	worker’s	wage	loss.		See	42	U.S.C.	§	7385s-3.	9		Moreover,	we	continue	to	

encounter	situations	where	in	light	of	the	age	of	the	children,	the	death	of	the	worker	and	the	spouse	prior	to	

the	payment	of	benefits	results	in	no	member	of	the	family	being	eligible	for	Part	E	benefits.		

In	many	of	the	instances	that	have	been	brought	to	our	attention,	the	fear	of	a	possible	reduction/

nullification	of	compensation	is	coupled	with	a	concern	over	the	amount	of	time	that	it	takes	to	process	the	

claim.		The	desire	to	have	their	claim	adjudicated	as	quickly	as	possible	is	often	heightened	by	the	age	and/or	

the	health	of	the	Part	E	claimants	and	it	is	this	“combined”	concern	that	prompts	some	claimants	to	contact	

our	Office.

Nevertheless,	there	are	other	instances	where	families	do	not	become	aware	of	the	possibility	of	a	reduction/

nullification	of	compensation	until	after	the	death	of	the	covered	employee.		Take	for	example	this	situation	

that	was	brought	to	our	attention:		When	the	covered	employee	passed	away,	the	family	was	aware	that	

this	employee	had	been	found	eligible	for	compensation.		However,	this	family	was	not	aware	that	since	

their	loved	one	passed	away	prior	to	the	actual	receipt	of	compensation,	the	compensation	awarded	to	this	

worker	would	not	be	paid.		Consequently,	this	family	incurred	(additional)	funeral	expenses	on	the	belief	

that	compensation	was	forthcoming	and	it	was	only	later	that	the	family	discovered	that	this	compensation	

would	not	be	paid.		While	some	members	of	this	family	have	applied	for	survivor	benefits,	they	nevertheless	

question	the	need	for	a	statutory	provision	in	Part	E	that	reduces/nullifies	benefits	upon	the	death	of	the	

covered	worker	and	they	are	upset	that	they	were	impacted	by	a	provision	that	they	were	not	aware	of	until	

after	they	had	incurred	the	additional	expenses.						

DEEOIC	has	procedures	for	expediting	claims	where	the	claimant	is	terminal	and	we	are	aware	of	

instances	where	these	procedures	have	been	effective.		Nevertheless,	based	on	our	conversations,	some	

claimants	are	either	not	aware	of	these	procedures	or	do	not	know	how	to	initiate	these	procedures.		In	

addition,	we	have	been	told	of	instances	where	the	worker’s	condition	progressed	way	too	quickly	to	

inquire	about	or	to	utilize	these	procedures.		Moreover,	the	processing	of	the	EEOICPA	claim	often	is	not	

the	primary	concern	when	a	family	member	is	terminally	ill.

9

	 The	one	exception	is	found	at	section	7385s-1(2)(B)	and	provides	that,	“[I]n	a	case	in	which	the	employee’s	death	occurred	after	

the	employee	applied	under	[Part	E]	and	before	[contractor	employee]	compensation	was	paid,	and	the	employee’s	death	occurred	

from	a	cause	other	than	the	covered	illness	of	the	employee,	the	survivor	of	that	employee	may	elect	to	receive,	in	lieu	of	[survivor	

compensation],	the	amount	of	contractor	employee	compensation	that	the	employee	would	have	received...if	the	employee’s	death	

had	not	occurred	before	compensation	was	paid....”		42	U.S.C.	§7385s-1(2)(B).

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14 OFFICE OF THE OMUDSMAN

42	U.S.C.	§	7384n(b).

Turning	to	Part	E,	section	7385s-4	provides	that	except	for	cases	determined	under	Part	B	and	cases	

determined	under	former	Part	D,

...a	Department	of	Energy	contractor	employee	shall	be	determined...to	have	contracted	a	covered	

illness	through	exposure	at	a	Department	of	Energy	facility	if	–	

(A)		it	is	at	least	as	likely	as	not	that	exposure	to	a	toxic	substance	at	a	Department	of	Energy	facility	

was	a	significant	factor	in	aggravating,	contributing	to,	or	causing	the	illness;	and

(B)	it	is	at	least	as	likely	as	not	that	the	exposure	to	such	toxic	substance	was	related	to	employment	at	

a	Department	of	Energy	facility.	(emphasis	added).

42	U.S.C.	§	7385s-4(c).

Claimants	have	and	continue	to	note	that	the	language	“at	least	as	likely	as	not”	as	used	in	Part	B	has	been	

interpreted	to	mean	50%	or	more.		Thus,	these	claimants	argue	that	the	phrase	“at	least	as	likely	as	not	a	

significant	factor”	(emphasis	added)	as	used	in	Part	E	signals	Congress’	intent	that	the	causation	standard	at	

Part	E	be	a	lesser	standard	than	that					used	at	Part	B	(	i.e.,	that	“at	least	as	likely	as	not	a	significant	factor”	

means	less	than	50%).

b. Medical benefits

Pursuant	to	section	7385s-9,	eligible	covered	DOE	contractor	employees	are	to	be	furnished	medical	

benefits	for	their	covered	illness.		Claimants	continue	to	contact	us	with	problems	associated	with	medical	

benefits.		In	addition	to	the	specific	problems	associated	with	locating	doctors	[which	we	discuss	at	Section	

IV	(4)],	some	claimants	have	voiced	their	displeasure	with	the	procedures	established	by	DEEOIC	for	

obtaining	medical	benefits.

Pursuant	to	procedures	established	by	DEEOIC,	when	claimants	are	accepted	for	medical	benefits,	they	

are	issued	a	Medical	Benefits	Identification	Card.		The	claimant	can	then	present	this	Medical	Benefits	

Identification	Card	to	medical	providers	whenever	they	seek	treatment	for	their	accepted	condition.		

Unfortunately,	some	claimants	encounter	medical	providers	who	refuse	to	“accept”	the	Medical	Benefits	

Identification	Card,	and	in	those	parts	of	the	country	where	there	is	either	a	lack	of	doctors,	or	more	

specifically,	a	lack	of	doctors	who	accept	the	“card,”	the	ability	of	claimants	to	obtain	medical	treatment	is	

impacted.

Some	claimants	“view”	these	procedures	established	by	DEEOIC	as	just	another	health	insurance	program	

where	doctors	can	choose	whether	to	participate.		These	claimants	argue	that	it	was	not	the	intent	of	this	

program	to	create	a	system	where	doctors	could	opt	out	of	participation.		Rather	they	argue	that	the	intent	

of	this	program	is	to	furnish	eligible	claimants	with	medical	benefits	–	an	intent	that	they	believe	is	not	

fulfilled	under	the	current	system.

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The	Office	has	discussed	this	matter	with	DEEOIC.		DEEOIC	believes	that	the	issuance	of	the	Medical	

Benefits	Identification	Card	is	an	effective	way	to	expedite	the	furnishing	of	medical	benefits.		DEEOIC	

further	notes	that	when	the	medical	provider	is	enrolled	in	the	program,	this	ensures	that	the	provider	is	

paid	directly	by	DOL.		DEEOIC	also	notes	that	this	“card”	informs	the	provider	of	the	services	covered	

by	DOL,	thus	avoiding	potential	billing	issues.		DEEOIC	does	acknowledge	that	there	are	providers	who	

do	not	accept	the	“card”	and	is	now	placing	special	emphasis	on	educating	providers	on	the	benefits	of	

enrollment	in	the	program.		In	addition,	DEEOIC	notes	that	any	claimant	who	encounters	a	provider	

who	does	not	accept	the	“card”	should	contact	DEEOIC,	and	DEEOIC	will	work	to	enroll	that	provider.		

However,	DEEOIC	has	no	authority	to	force	a	private	medical	provider	to	provide	services	to	EEOICPA	

claimants.		

Nevertheless,	we	continue	to	receive	complaints	concerning	the	difficulties	that	claimants	encounter	

attempting	to	locate	doctors	and	other	providers.

C. offsets for social security benefits

Pursuant	to	section	7385e(2),	compensation	and	benefits	provided	under	EEOICPA	“shall	not	be	included	

as	income	or	resources	for	purposes	of	determining	eligibility	to	receive	benefits	described	in	section	

3803(c)(2)(C)	of	Title	31,	or	the	amount	of	such	benefits.”		See	42	U.S.C.	§	7385(e)(2).		Section	3803(c)(2)(C)	

of	Title	31	in	turn	provides	a	list	of	16	benefit	programs.		

This	Office	has	been	approached	by	claimants	who	state	that	their	social	security	benefits	were	offset	as	

a	result	of	their	receipt	of	EEOICPA	benefits.		Citing	section	7385e(2),	some	of	these	claimants	question	

whether	an	offset	was	appropriate.		Some	claimants	also	complain	that	when	they	approached	DEEOIC	for	

assistance	with	matters	relating	to	offsets	of	their	social	security	benefits,	they	were	referred	to	the	Social	

Security	Administration.		However,	when	they	eventually	spoke	to	Social	Security,	that	agency	did	not	give	

any	affect	to	the	EEOICPA	legislation	–	rather	the	Social	Security	staff	relied	upon	their	own	rules	and	

regulations	in	reaching	their	determinations	on	the	need	for	an	offset.	

DEEOIC	responds	asserting	that	it	does	not	have	any	authority	over	the	manner	in	which	Social	Security	

interprets	its	regulations	and	policies,	and	thus	has	no	authority	over	determinations	involving	the	

awarding	or	offsetting	of	social	security	benefits.

The	claimants	with	whom	we	spoke	simply	wanted	a	definitive	answer	as	to	whether	their	social	security	

benefits	are	subject	to	an	offset	based	upon	receipt	of	EEOICPA	benefits.

D. Part b and Dose Reconstruction

Although	our	authority	is	limited	to	Part	E	claims,	we	continue	to	receive	complaints,	grievances	and	

requests	for	assistance	concerning	Part	B	claims.		A	majority	of	the	Part	B	issues	that	we	encounter	

either	involve:	a	status	request;	questions	concerning	the	Special	Exposure	Cohort	process;	or	questions	

concerning	dose	reconstruction.

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•	 Claims	by	security	guards	and	transportation	workers	continue	to	be	a	source	of	complaints.		Security	

guards	and	transportation	workers	often	note	that	they	were	not	required	to	wear	dosimetry	badges	

(thus	accurate	records	of	their	exposure	are	not	available)	and	that	contrary	to	employment	records,	

their	jobs	often	required	them	to	travel	throughout	the	facility	where	they	came	into	contact	with	a	wide	

range	of	employees.		Moreover,	security	guards	have	recounted	instances	where	they	were	the	first	to	

arrive	and	the	last	to	leave	chemical	spills,	or	were	assigned	to	guard	“hot”	locations	(and	yet	were	not	

given	protective	gear	or	a	dosimetry	badge).

•	 Another	issue	that	has	been	brought	to	our	attention	is	the	fact	that	dose	reconstructions	are	only	

performed	on	cancers.		Under	DEEOIC’s	policies	and	procedures,	all	claims	for	radiogenic	cancer,	

including	Part	E	claims,	are	referred	to	NIOSH	for	dose	reconstruction.		There	are	claimants	who	

believe	that	there	is	a	link	between	their	non-cancerous	condition	and	radiation,	and	thus	believe	that	

their	claims	ought	to	be	referred	for	dose	reconstruction.		This	specific	argument	has	been	raised	by	

claimants	who	suffer	from	thyroid	problems	(as	opposed	to	thyroid	cancer),	as	well	as	claimants	with	

pulmonary	fibrosis	and	diabetes.		These	claimants	are	certain	that	their	DOE	employment	exposed	

them	to	radiation,	and	they	assert	that	there	is	medical	literature	linking	their	non-cancerous	condition	

to	radiation	exposure.		Consequently,	these	claimants	argue	that	their	claims	ought	to	be	referred	to	

NIOSH	for	dose	reconstruction.	

DEEOIC	responds	that	NIOSH’s	role	under	EEOICPA	does	not	extend	to	evaluation	of	the	possible	

impact	of	radiation	on	non-cancerous	conditions.		Cases	in	which	such	a	linkage	is	asserted	are	

handled	by	DEEOIC	under	Part	E	utilizing	medical	opinions.		The	SEM	contains	information	on	

links	between	radiogenic	substances	and	non-cancerous	conditions	for	use	in	adjudicating	Part	E	

claims.

IV. aDMInIsTRaTIVe IssUes

As	the	numbers	reflect,	most	of	the	people	who	contacted	our	Office	have	concerns	that	we	categorize	as	

“Administrative	Issues.”		More	specifically,	as	the	numbers	reflect,	most	of	the	people	who	contacted	our	

Office	over	the	course	of	the	last	year	specifically	sought	assistance	with	processing	of	their	claim.		The	

requested	assistance	ranged	from	requests	for	us	to	explain	documents	to	requests	that	we	provide	advice	

concerning	an	EEOICPA	case	pending	before	district	court.	11

A	general	assessment	of	the	many	administrative	complaints,	grievances	and	requests	for	assistance	that	we	

received	over	the	last	year	would	be	that:		

•	 EEOICPA	in	general	and	Part	E	in	particular,	is	a	complicated	program	where	the	adjudication	of	the	

claim	often	turns	on	medical,	scientific,	and/or	legal	concepts.		Thus,	for	some	claimants	the	processing	

of	a	Part	E	claim	is	a	challenge.	

11	 It	was	beyond	the	scope	of	our	authority,	beyond	the	scope	of	our	individual	capabilities	and	potentially	a	conflict	of	interest	to	

assist	a	claimant	with	an	EEOICPA	claim	pending	before	a	district	court.

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•	 Many	claimants	do	not	have	immediate	access	to	persons	or	organizations	that	can	answer	questions	

and/or	provide	guidance.

•	 While	DEEOIC	provides	assistance	developing	evidence,	the	burden	is	ultimately	on	the	claimant	to	

satisfy	the	elements	necessary	to	establish	entitlement.		Thus,	where	the	assistance	offered	by	DEEOIC	is	

not	sufficient,	some	claimants	are	at	a	loss	as	to	where	else	to	turn.

•	 Some	claimants	are	not	aware	of,	or	do	not	have	access	to,	the	resources	that	may	be	available	to	assist	

them	in	developing	evidence.		Moreover,	the	assistance	that	is	available	does	not	“address”	every	

situation.

•	 Some	claimants	believe	that	Part	E	was	intended	to	be	a	“claimant-friendly”	non-adversarial	program	

and	believe	that	the	actual	program	does	not	live	up	to	these	standards.

The	“Administrative	Issues”	that	we	discuss	are:

1.	 Burden	of	Proof/Difficulties	Proving	Employment,	Exposure	and	Causation	–	192	comments

2.	 Processing	of	Claims	Takes	Too	Much	Time	–	66	comments

3.	 Concerns	Involving	Interactions	with	DEEOIC	Personnel	–	108	comments

4.	 Locating	Experts	–	7	comments

5.	 Area	51	(Nevada	Test	Site)	–	5	comments

6.	 Sarcoidoisis	versus	Chronic	Beryllium	Disease	–	3	comments

7.	 General	Requests	for	Assistance	–	1088	comments

1. burden of Proof/ Difficulties Proving employment, exposure and Causation

Issues	surrounding	the	burden	of	proof	could	be	classified	as	statutory,	regulatory	or	administrative.		

Nevertheless,	the	vast	majority	of	the	complaints,	grievances	and	requests	for	assistance	that	we	receive	

regarding	the	burdens	of	proof	involve	situations	where,	in	the	end,	the	claimant	wanted	assistance	

developing	evidence	to	meet	one	or	more	of	their	burdens.

eMPloYMenT: 	In	order	to	establish	entitlement	to	benefits,	the	worker	must	have	been	a	covered	

employee	working	at	a	covered	DOE	facility.		Thus	work	records	can	be	essential.		Unfortunately,	some	

claimants	encounter	difficulties	locating	employment	records,	especially	where	the	employment	occurred	

years	ago.		[Note:	over	the	course	of	this	year,	we	encountered	instances	where	claimants	had	to	substantiate	

employment	dating	back	as	early	as	the	mid	1940’s].		As	we	have	acknowledged,	DEEOIC,	mainly	through	

its	Resource	Centers,	does	offer	assistance	to	claimants	with	obtaining	employment	and	exposure	records,	

and	in	fact	DEEOIC	continues	to	work	with	outside	organizations	to	improve	the	information	available	

regarding	potential	DOE	contractors	and	subcontractors.		However,	there	are	instances	where	the	efforts	

expended	by	DEEOIC	simply	are	not	sufficient	to	locate	the	necessary	employment	records.

•	 A	common	problem	that	we	encounter	involves	situations	where	employment	evidence	has	been	lost,	

destroyed,	or	was	never	kept	in	the	first	place.		Even	though	it	is	through	no	fault	of	the	claimant	that	

this	evidence	is	no	longer	available,	the	burden	of	proof	nevertheless	remains	on	the	claimant.		In	such	

instances,	some	claimants	question	the	reasonableness	of	requiring	them	to	shoulder	these	burdens.		

Consider	the	case	of	two	gentlemen	who	we	met	in	Shoreham,	New	York.		These	gentlemen	assert	that	

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their	companies	were	hired	to	work	on	the	“Isabelle	Project”	performed	at	the	Brookhaven	facility.	12			

Unfortunately,	while	there	is	evidence	confirming	that	these	men	worked	for	their	respective	employers,	

they	cannot	locate	evidence	establishing	that	their	employers	performed	work	at	Brookhaven.		[These	

gentlemen	have	a	very	plausible	explanation	for	their	dilemma	–	they	believe	that	Brookhaven	

contracted	with	general	contractors	who	in	turn	subcontracted	with	their	respective	employers.		The	

problem	confronting	these	gentlemen	is	to	find	the	general	contractor	and/or	the	records	of	these	

general	contractors.]		In	response	to	the	suggestion	that	these	gentlemen	submit	affidavits	prepared	

by	colleagues,	they	indicate	that	most	have	passed	away.		They	have	attempted,	to	no	avail,	to	provide	

affidavits	for	each	other,	and	thus,	they	continue	their	search	for	evidence	which	will	establish	that	they	

performed	work	at	Brookhaven.	13

•	 When	records	cannot	be	located,	or	where	available	records	are	incomplete,	in	some	instances	

suspicions	arise	that	records	were	intentionally	destroyed	or	altered.		In	fact,	at	almost	every	town	hall	

meeting	that	we	sponsor,	at	least	one	participant	provides	the	audience	with	their	personal	account	

of	destroyed/altered	records	–	at	our	meeting	in	Las	Vegas	it	was	the	claimant	who	recounted	driving	

records	from	site	to	site	because	no	one	wanted	to	take	possession	of	them,	and	eventually	accepting	the	

“recommendation”	to	drop	these	records	off	in	the	desert.

•	 The	problems	encountered	when	establishing	employment	are	compounded	where	the	worker	has	

passed	away.		Workers	at	these	facilities	were	instructed	not	to	discuss	their	employment	with	their	

families.		Thus,	because	these	workers	honored	these	instructions,	many	survivors	are	at	a	loss	when	

asked	to	substantiate	their	loved	one’s	employment.		One	case	that	we	encountered	involved	a	claim	

where	the	covered	employment	occurred	in	the	mid	1940’s	–	before	the	survivor	who	contacted	us	was	

even	born.		In	attempting	to	establish	covered	employment	this	survivor	has	continued	to	run	into	

obstacles:	social	security	records	do	not	record	any	employment	for	the	years	in	question;	an	older	

sibling	simply	remembers	the	father	coming	home	from	a	construction	job,	the	father	never	talked	

about	the	job;	the	union	destroyed	all	records	prior	to	1951;	most	of	the	people	with	knowledge	of	this	

worker’s	employment	are	deceased;	and	one	relative	who	is	still	living	and	who	might	have	personal	

knowledge,	does	not	have	the	capacity	to	complete	an	affidavit.

•	 Under	Part	B,	the	SEC	process	is	designed	to	assist	claimants.		However,	we	are	still	contacted	by	

claimants	who	find	it	difficult	to	establish	the	required	250	working	days.

•	 There	are	suggestions	and	recommendations	that	can	be	provided	to	claimants	to	assist	them	when	they	

encounter	difficulties	locating	records.		However,	in	some	instances,	these	suggestions	are	not	fruitful.		

During	the	town	hall	meeting	in	Las	Vegas,	the	suggestion	was	offered	that	survivors	encountering	

difficulties	locating	employment	records	could	seek	affidavits	from	colleagues	and	other	relatives.		

Almost	in	unison,	the	audience	replied	that	colleagues	who	had	worked	with	their	parents	had	passed	

away.		Subsequently,	a	few	revised	their	statement	to	add	that	the	few	colleagues	who	were	still	alive	did	

not	have	the	capacity	to	complete	an	affidavit.

12	 You	can	go	on	the	internet	and	confirm	that	there	was	an	“Isabelle	Project”	at	the	Brookhaven	facility.

13	 One	of	these	gentlemen	is	following	a	lead	that	he	hopes	will	direct	him	to	his	employer’s	general	contractor,	and	the	other	

gentleman	hopes	that	he	can	locate	other	evidence	that	might	confirm	that	he	worked	at	this	facility.

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However,	whether	it	is	a	claimant	attempting	to	find	the	records	of	a	general	contractor	or	a	child	trying	to	

establish	their	parent’s	employment,	many	of	the	claimants	with	whom	we	speak	become	frustrated	when	

they	are	told	that	they	have	the	burden	of	establishing	employment,	yet	records	cannot	be	found	and	all	of	

the	suggestions	offered	to	them	have	been	tried	to	no	avail.

eXPosURe:		In	addition	to	establishing	that	the	worker	was	a	covered	employee	who	worked	at	a	covered	

DOE	facility,	in	order	to	establish	entitlement,	it	also	must	be	established	that	the	worker	contracted	

a	covered	illness	through	exposure	at	a	DOE	facility.		To	assist	claimants	in	establishing	exposure,	

DEEOIC	offers	assistance	locating	exposure	records	and	provides	the	SEM	which	were	recently	updated	

to	include	information	addressing	the	association	between	certain	covered	diseases	and	certain	toxins.	14			

Nevertheless,	claimants	inform	us	of	problems	they	encounter	establishing	causation.		Many	of	these	

problems	are	similar	to	the	problems	encountered	locating	employment	records	–	records	have	been	

destroyed,	lost	or	were	never	kept	in	the	first	place.		Moreover,	as	with	employment	records,	these	problems	

are	often	made	worse	where	the	worker	has	passed	away	and	it	is	the	survivor	who	is	asked	to	establish	this	

fact.		However,	there	are	other	problems	which	specifically	involve	exposure.		

•	 Claimants	do	not	always	know	the	name	of	the	substances	used	at	the	work	site.		These	were	“secret”	

facilities	–	you	did	not	ask	a	lot	of	questions.		Recently,	the	wife	of	a	worker	called	our	Office	to	discuss	

the	problems	that	she	was	encountering	as	she	attempted	to	identify	the	toxins	to	which	her	husband	

had	been	exposed.		When	a	reference	was	made	to	working	around	substances	contained	in	barrels	

simply	marked	“X,”	the	wife	assured	us	that	the	husband,	who	was	listening	on	the	speaker,	was	smiling	

and	nodding	in	agreement.

•	 Many	claimants	question	the	accuracy	of	the	exposure	records.		Claimants	often	complain	that	records	

do	not	list	all	of	the	toxins	and/or	do	not	accurately	record	all	of	the	spills	to	which	they	were	exposed.		

A	specific	complaint	that	we	continue	to	hear	comes	from	claimants	who	find	it	inconsistent	that	when	

they	were	exposed	to	a	spill,	their	clothes	and	tools	were	taken	away	and	destroyed,	yet	exposure	records	

either	do	not	mention	these	spills	or	now	“treat”	these	spills	as	minor	events.

CaUsaTIon: In	order	to	be	eligible	under	Part	E,	the	claimant	must	establish	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...”		In	practical	terms,	in	order	to	prove	“causation”	

under	Part	E,	the	claimant	must	not	only	establish	a	link	between	the	illness	and	a	toxin	to	which	they	were	

exposed	while	working	at	the	DOE	facility,	the	claimant	must	also	present	evidence	establishing	that	it	is	

at	least	as	likely	as	not	that	exposure	to	a	particular	toxic	substance	was	a	significant	factor	in	aggravating,	

contributing	to,	or	causing	that	claimant’s	illness.

As	we	have	noted,	the	SEM	developed	by	DEEOIC	provides	assistance	in	linking	certain	illnesses	to	certain	

toxins.	However,	even	with	DEEOIC’s	assistance,	some	claimants	are	unable	to	establish	the	necessary	link	

between	their	illness	and	exposure	to	a	work-related	toxin.

14	 The	Site	Exposure	Matrices	(SEM)	contains	information	on	toxic	substances	present	at	certain	DOE	(and	Radiation	Exposure	

Compensation	Act)	sites	covered	under	Part	E.		As	noted,	these	matrices	were	recently	updated	to	include	information	about	certain	

occupational	diseases	associated	with	toxic	substances	found	at	facilities	covered	under	Part	E.

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•	 Some	claimants	report	that	the	SEM	does	not	contain	all	of	the	chemicals	(toxins)	known	to	be	

present	at	some	facilities	and/or	does	not	contain	information	on	all	illnesses,	while	others	report	that	

information	is	not	available	on	all	DOE	facilities.		Thus,	some	claimants	find	the	SEM	to	be	of	limited	

benefit.

•	 There	are	instances	where	although	information	is	now	available	on	the	SEM,	this	information	was	not	

available	(or	not	fully	available)	when	the	decision	on	their	claim	was	rendered.		In	these	instances,	

some	claimants	question	the	soundness	of	the	decision	issued	on	their	claim.

DEEOIC	notes	that	the	SEM	was	available	to	claims	examiners	and	other	DEEOIC	officials	prior	

to	the	time	it	was	made	available	to	the	public.		While	acknowledging	that	this	may	be	true,	some	

claimants	question	the	extent	to	which	this	information	was	available	throughout	DEEOIC.		

Moreover,	some	claimants	argue	that	since	the	SEM	was	not	available	to	the	public,	they	did	not	have	

a	fair	opportunity	to	develop	their	case.

•	 Some	claimants	complain	that	the	information	contained	in	the	SEM	is	not	presented	in	the	most	

useful	manner.		The	SEM	lists	every	substance	known	to	have	been	present	at	a	facility	–	the	SEM	

that	is	available	to	the	public	does	not	categorize	these	substances	by	the	date	when	the	substance	was	

present	or	by	the	specific	location	or	job	site	where	the	substance	was	utilized.	15			For	this	reason,	some	

claimants	find	the	SEM	too	overwhelming.		For	example,	the	SEM	lists	720	substances	at	the	Nevada	

Test	Site;	2167	substances	at	Hanford;	and	964	at	the	X-10	facility	at	Oak	Ridge.		Some	claimants	find	it	

extremely	difficult	to	go	through	these	lists	to	determine	the	substances	to	which	they	may	have	been	

exposed	and	which	may	be	linked	to	their	illness.

•	 There	are	claimants	who	suggest	that	the	government	ought	to	be	more	directly	involved	in	studying	the	

possible	link	between	illnesses	and	particular	toxins.		These	claimants	assert	that	it	is	not	fair	to	deny	

their	claims	simply	because	no	one	has	explored	the	possibility	of	a	link	between	their	illness	and	the	

toxins	to	which	they	were	exposed,	and	believe	that	the	government	ought	to	initiate	such	studies.

•	 Claimants	report	that	it	can	be	difficult	to	get	a	doctor	to	express	an	opinion	stating	that	it	was	“at	

least	as	likely	as	not	that	exposure	to	a	toxic	substance	at	a	DOE	facility	was	a	significant	factor	in	

aggravating,	contributing	to,	or	causing	[their]	illness.”		Claimants	indicate	that	when	it	comes	to	issues	

of	exposure	to	toxins,	doctors	are	often	reluctant	to	be	so	specific.

•	 Where	the	worker	previously	passed	away,	some	survivors	report	that	it	is	difficult	to	find	a	doctor	who	

will	address	the	possibility	of	a	link	between	the	death	and	exposure	to	particular	toxins,	especially	

where	this	possible	link	was	never	addressed	at	the	time	of	death.		[Note:	where	the	claimant	passed	

away	prior	to	the	development	of	the	SEM,	there	is	often	little,	if	any,	discussion	of	exposure	to	specific	

toxins].

15	 The	SEM	also	lists	toxins	by	their	chemical	name	whereas	some	claimants	only	know	these	toxins	by	the	common	name	used	at	

the	facility.

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•	 The	following	survivor’s	claim	highlights	many	of	the	problems	encountered	while	attempting	to	

establish	causation.		The	worker	in	question	died	in	1983	from	pancreatic	cancer.		Although	the	worker	

was	employed	at	a	DOE	facility	from	the	mid	1950’s	to	the	mid	1970’s,	records	after	1963	cannot	be	

located.		According	to	the	SEM,	“[n]o	toxic	substances	in	the	SEM	database	show	an	established	link	to	

[pancreatic	cancer]	at	this	time.”		Furthermore,	the	SEM	provides	a	list	of	818	“toxic	substances	verified	

as	having	been	onsite	and	used	at	...’Y-12’	at	some	time,”	and	another	1200	“toxic	substances	verified	

as	having	been	onsite	and	used	at	...K-25”,	another	facility	which	employed	this	worker.	This	worker	

is	troubled	by	the	fact	that	certain	employment	records	are	missing	and	believes	that	in	establishing	

causation	he	needs	more	that	a	mere	list	of	the	2000	toxins	used	at	these	facilities.

2. Processing of Claims Takes Too long

To	fully	appreciate	the	complaints	involving	the	time	it	takes	to	process	Part	E	claims,	it	is	necessary	to	

appreciate	the	steps	involved	in	processing	a	Part	E	claim.		In	light	of	the	many	variable	and	possibilities	that	

exist,	it	is	hard	to	plot	the	course	of	a	“normal”	Part	E	claim,	yet	here	is	a	very	broad	overview	of	the	Part	E	

process	[This	example	assumes	a	claim	filed	by	a	living	claimant.		A	survivor’s	claim	would	have	a	somewhat	

different	path]:

Claim	filed	with	Resource	Center	→	Initial	Development	of	Claim	→	Claim	forwarded	to	District	

Office	→	Recommended	Decision	→	Claim	forwarded	to	Final	Adjudicatory	Branch	(FAB)	→	FAB	

issues	Final	Decision.

At	this	point,	if	there	is	a	finding	of	entitlement,	a	living	worker	claimant	would	receive	a	medical	benefits	

identification	card.		However,	in	order	to	receive	compensation,	the	claimant	would	have	to	file	for	and	be	

found	eligible	for	wage	loss	and/or	impairment.		In	such	an	instance,	the	process	would	continue:

Claimant	files	for	wage	loss	and/or	impairment	→	[If	claim	is	for	impairment,	claimant	undergoes	

impairment	rating]	→	Recommended	Decision	→	Claim	forwarded	to	FAB	→	FAB	issues	Final	Decision.		

Overall,	DEEOIC	has	made	strides	in	its	processing	of	claims.		In	fact,	we	encounter	instances	where	a	

Recommended	Decision	issues	within	months	of	the	filing.		For	example,	in	one	case	the	claim	was	filed	

in	August	2007	and	the	Recommended	Decision	denying	entitlement	issued	in	April	2008	and	in	another	

instance,	the	claim	was	filed	in	February	2008	and	a	Recommended	Decision	finding	entitlement	issued	in	

September	2008.

Nevertheless,	most	claimants	who	contact	us	with	concerns	involving	the	processing	time	of	their	claims	

either:	(1)	are	focused	on	the	overall	processing	time	–	i.e.,	the	time	from	the	filing	of	the	claim	until,	if	

applicable,	they	receive	a	final	decision	addressing	wage	loss	and/or	impairment,	and	(2)	are	encountering	

specific	delays	with	their	claims.		Below	is	an	example	that	illustrates	the	fact	that	the	“path”	of	a	claim	is	not	

always	direct.	

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➢	 10/2003	–	Survivor’s	claim	filed.

➢	 12/2006	–	Recommended	decision	concludes	that	evidence	does	not	establish	that	death	was	caused	

by	covered	illness.

➢	 12/2006	–	Claimant	files	objections	to	recommended	decision.

➢	 09/2007	–	Claim	remanded	for	further	development	and	issuance	of	new	recommended	decision.

➢	 12/2007	–	Claimant	informs	this	Office	of	recommended	decision	accepting	claim.		However,	only	a	

portion	of	the	compensation	is	paid	to	this	claimant,	the	other	portion	is	held	in	abeyance	pending	

development	of	additional	survivor	issues.

➢	 ??/2007	–	Claimant	objects	to	recommended	decision	–	claimant	objects	to	decision	to	hold	a	

portion	of	the	compensation	in	abeyance.

➢	 06/2008	–	Final	Decision	affirms	the	acceptance	of	the	claim.

Note:		as	of	our	last	contact,	this	claimant	is	still	awaiting	a	determination	on	that	portion	of	the	

compensation	that	was	held	in	abeyance.	16

We	encounter	a	fair	number	of	cases	where	the	claim	was	actually	filed	some	years	ago,	yet	because	of	the	

development	of	additional	evidence	or	claimant’s	disagreement	with	the	issued	decisions,	these	claims	are	

still	pending	–	thus	leading	to	the	complaints	involving	the	length	of	time.

•	 Unexplained	and	under-explained	delays	generate	a	lot	of	anxiety.		We	are	contacted	by	claimants	who	

tell	us	that	the	last	“thing”	they	heard	was	that	their	claim	had	been	“sent	to	Washington,”	or	was	with	

someone	for	review.		The	passage	of	time	without	an	update	often	causes	these	claimants	to	contact	our	

Office.		In	other	instances,	claimants	assert	that	they	have	absolutely	no	idea	of	the	status	of	their	claim.		

There	have	been	instances	where	in	response	to	an	inquiry	on	the	status	of	a	case,	it	is	suggested	that	

certain	claims	need	additional	time	because	they	raise	complex	issues.		When	advised	of	this	“status,”	

some	claimants	question	why	no	one	ever	provided	them	with	an	explanation	for	the	“delay.”

•	 Another	delay	that	continues	to	concern	claimants	involves	requests	for	additional	evidence.		Claimants	

complain	that	it	was	only	after	they	submitted	evidence	that	they	were	informed	of	criteria	(or	

additional	criteria)	that	their	evidence	had	to	satisfy.		These	claimants	argue	that	it	would	expedite	the	

process	if,	prior	to	their	development	of	evidence,	someone	fully	explained	to	them	the	criteria	and	

standards	which	their	evidence	had	to	meet.		[Some	claimants	also	note	that	doctors	become	frustrated	

when	asked	to	continuously	revise	reports	in	order	to	meet	criteria	mandated	by	DEEOIC].

•	 As	noted	in	section	III	(D),	the	forwarding	of	a	claim	to	NIOSH	can	significantly	add	to	the	time	

it	takes	to	process	a	claim.		Similarly,	as	information	is	developed	and	refined,	a	rework	of	the	dose	

reconstruction	may	be	required.		For	instance,	a	number	of	claims	are	impacted	by	OCAS-PER-012,	

Evaluation	of	Highly	Insoluble	Plutonium	Compound	(Super	S	at	Savannah	River).		As	a	result	of	this	

document,	a	number	of	claims	have	been	remanded	for	a	rework	of	the	dose	reconstruction.		In	one	

instance,	the	case	was	forwarded	to	NIOSH	for	a	rework	of	the	dose	reconstruction	in	December	2007.		

16	 As	with	all	of	the	examples	provided	in	this	report,	this	example	is	not	inserted	to	assess	blame.		In	fact,	from	what	we	can	

determine,	there	is	no	reason	to	question	DEEOIC’s	decision	to	hold	a	portion	of	the	compensation	in	abeyance.		The	fact	remains	

that	this	claim	was	filed	in	2003	and	this	claimant	is	still	waiting	for	the	resolution	of	all	of	the	issues	involved	in	this	case.

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24 OFFICE OF THE OMUDSMAN

	 When	we	last	heard	from	this	claimant	in	September	2008,	this	claimant	was	still	awaiting	the	results	of	

this	reworked	dose	reconstruction.	17		

•	 Some	claimants	see	an	element	of	unfairness	associated	with	the	delays	involving	their	claim.		Some	

claimants	argue	that	it	is	unfair	that	they	are	provided	very	definitive	(and	often	very	short)	time-frames	

within	which	to	respond	to	or	submit	evidence,	yet	there	are	no	time-frames	imposed	on	DEEOIC	

within	which	it	has	to	respond	to	or	submit	evidence.	18		

3. Interactions with DeeoIC Personnel

In	the	course	of	our	conversations	with	claimants,	we	receive	allegations	that:	(1)	telephone	calls	are	not	

answered;	(2)	the	processing	of	the	claim	is	impacted	by	changes	in	the	claims	examiner;	(3)	claimants	

receive	different	answers	from	different	DEEOIC	personnel,	and	(4)	allegations	of	rude	behavior.		Our	Office	

is	not	authorized	to,	and	does	not	have	the	resources	to	investigate	such	complaints.		In	most	instances,	

our	inquiries	into	these	matters	disclose	a	“gap”	between	what	the	claimant	heard	and	what	DEEOIC	said.		

Nevertheless,	what	is	clear	is	that	we	continue	to	receive	complaints	concerning	interactions	with	DEEOIC	

personnel,	and	while	these	allegations	do	not	involve	the	same	individuals,	the	nature	of	these	complaints	is	

often	very	similar.		

Our	Office	continues	to	address	this	issue	with	DEEOIC.		DEEOIC	states	that	it	is	committed	to	

providing	customers	with	excellent	service	and,	in	furtherance	of	that	goal,	recently	updated	sections	

of	its	Procedural	Manual,	including	those	sections	that	address	interactions	with	claimants.		We	will	

continue	to	monitor	these	allegations	and	will	continue	to	bring	to	DEEOIC’s	attention	those	allegations	

that	we	receive.

The	most	common	complaints	that	we	receive	concerning	interactions	with	DEEOIC	personnel	include:

•	 Many	claimants	prefer	to	speak	directly	to	a	person,	as	opposed	to	leaving	messages.		Many	of	the	

claimants	who	live	near	Resource	Centers	take	advantage	of	this	opportunity	to	go	to	these	offices	and	

discuss	their	cases.		Some	of	these	claimants	are	disappointed	when	their	case	is	forwarded	to	District	

Office,	where	there	is	not	much,	if	any,	opportunity	for	face-to	face	contact.

•	 A	number	of	claimants	allege	that	their	telephone	calls	went	unanswered.

•	 The	assignment	of	different	claims	examiner	during	the	processing	of	a	claim	can	be	disconcerting.		

17	This	survivor’s	claim	was	filed	in	February	2002.		The	initial	dose	reconstruction	was	returned	from	NIOSH	in	October	2003.		

Also	in	October	2003,	a	recommended	decision	was	issued	denying	the	claim,	and	a	final	decision	issued	in	March	2004.		A	

recommended	decision	denying	the	Part	E	claim	was	issued	in	July	2006	and	a	final	decision	issued	in	January	2007.		In	December	

2007,	in	light	of	OCAS-PER-012	a	Director’s	Order	was	issued	vacating	the	Final	Decisions	under	Parts	B	and	E	and	thus	the	case	

was	forwarded	to	NIOSH	for	a	rework	of	the	dose	reconstruction.

18	 There	have	been	instances,	where	in	the	opinion	of	this	Office,	the	additional	time	taken	to	develop	(or	review)	evidence	could	be	

seen	as	an	effort	to	assist	the	claimant.		Unfortunately,	in	many	of	these	instances,	even	with	the	additional	review,	the	claimant	did	

not	prevail.

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Many	claimants	argue	that	the	assignment	of	a	new	claims	examiner	means	that	their	case	will	be	

delayed	while	the	new	examiner	“comes	up	to	speed”	–	in	fact,	some	claimants	indicate	that	they	quickly	

develop	no	confidence	in	newly	assigned	claims	examiners	who	do	not	appear	to	understand	the	facts	

and	issues	in	their	case.		Claimants	who	contact	us	found	it	particularly	troublesome	that	they	were	

not	advised	of	the	change	in	claims	examiner	and	only	discovered	the	change	when	inquiring	on	their	

claim.		Moreover,	some	claimants	believe	that	the	processing	of	their	claim	was	negatively	impacted	by	

the	change	of	claims	examiner.		Claimants	refer	to	situations	where	because	of	a	change	in	examiners	it	

was	necessary	to	resubmit	evidence	or	to	again	explain	concepts	that	they	had	already	explained	to	the	

previous	examiner.		In	addition,	some	claimants	assert	that	the	first	claims	examiner	provided	positive	

feedback	and	after	a	new	claims	examiner	was	assigned,	the	feedback	became	negative.

•	 A	number	of	claimants	allege	that	they	were	provided	inaccurate	or	inconsistent	advice,	and	some	

become	really	frustrated	if	they	believe	that	the	inconsistent	information	may	have	been	the	result	of	the	

change	in	claims	examiners.		There	are	claimants	who	believe	that	the	advice	given	to	them	completely	

changed	when	a	new	claims	examiner	was	assigned	to	their	case.		In	some	of	these	instances,	the	

claimants	go	so	far	as	to	question	the	motives	for	the	assignment	of	a	new	claims	examiner.

We	have	also	received	inquiries	suggesting	that	DEEOIC	personnel	“permitted”	claimants	to	file	

EEOICPA	claims	even	though	DEEOIC	should	have	recognized	that	these	claimants	did	not	meet	the	

eligibility	requirements.		In	response,	DEEOIC	asserts	that	it	does	not	“tell”	anyone	whether	to	file	or	

not	a	claim.		Rather,	if	a	claimant	wishes	to	file	a	claim,	that	claimant	has	the	right	to	file,	regardless	of	

the	perceived	outcome	of	the	claim.

In	a	related	matter,	some	claimants	questions	why	it	took	so	long	to	receive	a	decision	in	cases	where	

the	ultimate	outcome	was	foreordained	by	the	statute	and/or	regulations.

•	 Another	complaint	that	we	hear	involves	the	amount	of	information	provided	to	claimants.		Some	

claimants	question	why	DEEOIC	will	not	answer	inquiries	regarding	the	taxability	of	benefits	or	the	

offsetting	of	social	security.		Moreover,	we	receive	complaints	suggesting	that	the	information	provided	

in	decisions	is	insufficient	–	some	claimants	complain	that	their	decision	simply	informed	them	that	

their	evidence	was	insufficient	–	the	decision	did	not	explain	why	the	evidence	was	not	sufficient,	and	as	

a	result	the	claimant	had	no	idea	of	how	to	rehabilitate	their	evidence	(or	how	to	avoid	again	making	the	

same	mistake).

•	 Claimants	raise	questions	when	their	recommended	decision	finds	entitlement,	yet	the	final	decision	

issued	by	FAB	amends,	remands	or	reverses	the	recommended	decision.		In	such	instances,	claimants	

have	questioned	how	and	why	two	different	DOL	employees,	often	looking	at	the	same	evidence	could	

come	to	different	conclusions.	

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Consider	the	following	case:

➢	 05/2002	–	claim	filed

➢	 03/2007	–	Recommended	decision	accepted	some	of	the	claims	and	denied	others.		Moreover	it	is	

concluded	that	coordination	with	the	claimant’s	workers’	compensation	is	not	necessary.	19

➢	 03/2007	–	Claimant	waives	right	to	object	to	recommended	decision.

➢	 04/2007	FAB	remands	case	to	determine	the	amount	of	coordination	to	be	deducted.

➢	 	08/2007	–	Recommended	decision	finds	a	“surplus”	of	$2,520	that	must	be	absorbed	prior	to	the	

payment	of	EEOICPA	medical	benefits.

➢	 08/2007	–	Claimant	objects	to	the	recommended	decision	asserting	that	the	coordination	

calculation	was	erroneous	and	questioning	the	decision	to	coordinate	benefits.

➢	 02/2008	–	FAB	remands	case	for	further	development	of	the	claim.

➢	 3/2008	–	Recommended	decision	finds	surplus	of	$127,520	that	must	be	absorbed.

➢	 04/2008	–	Per	request,	claimant	is	provided	a	copy	of	the	legal	opinion	relied	upon	in	determining	

that	coordination	of	benefits	is	warranted.

➢	 05/2008	–	Attorney	retained	by	claimant	submits	letter	challenging	the	legal	conclusion	that	

coordination	of	benefits	is	warranted	in	this	case.

An	oral	hearing	was	held	on	this	claim	in	June	2008,	and	the	claimant	informs	us	that	he	was	told	that	the	

“matter	[was]	taken	by	a	higher	authority.”		When	we	spoke	to	this	claimant	on	October	29,	2008,	he	was	still	

awaiting	a	response.		Nevertheless,	this	claimant	questions	how	in	an	instance	where	the	facts	remained	the	

same,	the	decision	on	coordination	of	benefits	could	go	from	no	coordination	to	$2,520	to	$127,520.	20

4. locating experts

The	problems	associated	with	locating	experts	can	arise	anytime	during	the	processing	of	a	Part	E	

claim,	however,	these	problems	are	often	encountered	when	claimants	are	seeking	someone	to	perform	

an	impairment	rating.		Once	eligibility	under	Part	E	is	determined,	then	that	worker	may	be	eligible	

(depending	upon	the	facts	of	the	individual	case)	to	apply	for	compensation	for	wage	loss	and/or	

impairment.		If	the	worker	applies	for	impairment,	then	an	impairment	rating	is	required,	and	in	obtaining	

that	rating,	the	worker	has	the	option	of	choosing	their	own	qualified	doctor	or	DEEOIC	can	have	a	

qualified	doctor	complete	the	impairment.	

•	 Many	claimants	prefer	to	utilize	their	own	doctors,	but	discover	that	their	doctors	do	not	possess	the	

qualifications	required	by	DEEOIC.

•	 It	is	acknowledged	that	in	some	areas	of	the	country,	there	are	few	(or	no)	doctors	qualified	to	perform	

impairment	ratings,	and	in	such	instances,	DEEOIC	will,	with	prior	approval,	pay	travel	expenses.		This	

procedure	has,	however,	been	the	source	of	complaints.		Although	DEEOIC’s	procedures	provide	that	a	

claimant	may	be	reimbursed	for	approved	travel	expenses,	we	were	contacted	by	a	couple	of	claimants	

19	 This	Office	was	initially	contacted	by	this	claimant	in	2007	when	he	had	questions	with	the	decision	concerning	the	coordination	

of	benefits.

20	 The	question	of	whether	coordination	of	benefits	is	appropriate	in	this	case	turns	on	the	specific	illnesses	compensated	in	the	state	

workman’s	compensation	award.

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who	did	not	want	to	pay	these	costs	and	then	await	reimbursement.		In	one	instance,	the	claimant	lived	

in	Alaska	and	had	to	travel	to	Seattle	to	be	evaluated	by	a	qualified	doctor.		This	claimant	questioned	

whether	the	travel	costs	could	be	advanced	(or	billed	directly	to	DEEOIC).		Unfortunately,	advancing	

travel	costs	are	not	permitted.

However,	the	problem	of	locating	experts	is	not	limited	to	impairment	ratings.	

•	 Claimants	find	it	difficult	to	locate	doctors	to	address	causation.		Occupational	exposure	to	toxins	can	be	

a	complex	issue,	and	claimants	report	that	it	is	difficult	to	locate	doctors	who	are	qualified	and	willing	to	

address	this	issue.

•	 There	are	some	claimants,	especially	some	who	live	near	DOE	facilities,	who	believe	that	doctors	are	

(still)	reluctant	to	“take	on”	these	big	corporations.

•	 As	discussed	in	Section	III	(B),	many	claimants	encounter	doctors	who	do	not	accept	the	medical	card.		

DEEOIC	acknowledges	that	there	are	doctors	who	refuse	to	accept	the	medical	benefits	card,	and	has	

increased	its	efforts	to	educate	doctors	on	this	program.		Moreover,	DEEOIC	suggests	that	claimants	

notify	them	if	they	encounter	doctors	who	do	not	accept	the	medical	benefits	card.		DEEOIC	indicates	

that	it	will	contact	these	doctors	in	an	attempt	to	enroll	them.		Unfortunately,	not	all	claimants	are	aware	

of	these	services.

5. Taxability of eeoICPa benefits

A	number	of	claimants	have	contacted	this	Office	in	search	of	a	clear	and	concise	statement	addressing	the	

federal	taxability	of	EEOICPA	benefits.		Generally	in	response	to	questions	concerning	the	taxability	of	

EEOICPA	benefits,	claimants	who	are	referred	to	the	statute,	which	provides	that:

Compensation	or	benefits	provided	to	an	individual	under	this	chapter	–

(1)		shall	be	treated	for	purposes	of	the	internal	revenue	laws	of	the	United	States	as	damages	for	human	

suffering

42	U.S.C.	§7385e(1).			Many	claimants,	however,	are	looking	for	something	stated	in	lay	terms.

While	the	intent	of	section	7385e(1)	appears	to	be	to	exclude	EEOICPA	benefits	from	taxation	under	

federal	law,	because	of	the	uncertainties	as	to	how	the	Internal	Revenue	Service	will	approach	individual	

cases,	DEEOIC	simply	provides	a	reference	to	section	7385e.		

6. area 51 (nevada Test site)

Earlier	in	the	year,	we	received	an	inquiry	concerning	the	status	of	Area	51	–specifically	inquiring	about	

our	understanding	of	the	status	of	Area	51	as	a	DOE	facility.			Our	follow-up	disclosed	that	Area	51	was	not	

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28 OFFICE OF THE OMUDSMAN

listed	at	a	DOE	facility	21,	but	we	were	assured	by	DEEOIC	they	were	making	their	own	inquiries	into	this	

matter.

On	August	5,	2008,	DEEOIC	issued	Circular	NO.	08-06	indicating	that	Area	51	is	part	of	the	Nevada	

Test	Site	for	the	years	1958-1999,	which	means	that	employees	of	Reynolds	Electrical	and	Engineering	

Company	and	Bechtel	Nevada,	Inc.,	who	worked	at	the	Nevada	Test	Site,	including	Area	51,	are	DOE	

contractor	employees.

During	a	town	hall	meeting	sponsored	in	Las	Vegas	in	late	August,	we	had	the	opportunity	to	meet	with	

former	workers	of	Area	51.		In	spite	of	the	issuance	of	Circular	08-06,	some	of	these	workers	question	

whether	(and	to	what	extent)	employment	and/or	exposure	records	from	Area	51	will	be	available.		

7. sarcoidosis versus Chronic beryllium Disease

A	physician	who	provides	services	to	claimants	contacted	our	Office	with	a	number	of	cases	where	in	spite	

of	documented	exposure	to	beryllium	and	a	diagnosis	of	sarcoidosis,	the	claim	had	been	denied.		This	

doctor	vigorously	disagreed	with	these	denials	arguing	that	in	many	of	these	cases,	the	diagnosis	met	the	

criteria	for	a	diagnosis	of	chronic	beryllium	disease.

On	September	4,	2008,	DEEOIC	issued	Circular	No.	08-07,	which	states	that	a	diagnosis	of	sarcoidosis	

is	not	medically	appropriate	if	there	is	a	documented	history	or	beryllium	exposure.		Rather,	in	these	

situations,	the	claims	examiner	is	to	consider	the	diagnosis	of	sarcoidosis	to	be	a	diagnosis	of	chronic	

beryllium	disease.

Recognizing	that	a	number	of	claims	may	benefit	from	Circular	08-07,	some	claimants	have	asked	how	

DEEOIC	intends	to	approach	claims	where	there	is	a	history	of	exposure	to	beryllium	and	a	diagnosis	

of	sarcoidosis	and	yet	the	claims	were	denied.		DEEOIC	has	indicated	that	it	will	review	these	claims	to	

determine	if	they	are	impacted	by	Circular	08-07.

8. General Requests for assistance and Miscellaneous

As	the	numbers	display,	the	bulk	of	our	contacts	involve	requests	for	assistance.		As	we	have	noted	earlier	in	

this	report,	while	some	people	call	us	with	specific	complaints	on	particular	matters,	most	people	contact	

us	seeking	general	assistance	with	their	claim.				The	assistance	requested	can	be	anything	from	a	simple	

request	to	define	a	word	to	a	request	to	assist	in	identifying	toxins	which	could	be	linked	to	an	illness.		Time	

does	not	permit	us	to	list	every	request	that	we	received	during	this	year	(and	thus	we	apologize	to	those	

claimants	whose	concerns	are	not	discussed).		Here	is	a	discussion	of	some	of	the	requests	for	assistance	

received	during	the	year:

21	 Our	Office	was	contacted	by	staff	members	from	the	office	of	Senator	Harry	Reid	who	were	diligently	pursuing	this	matter.		When	

contacted	by	Senator	Reid’s	office,	we	had	only	received	one	inquiry	on	this	matter.		However,	later	that	year,	we	held	a	town	hall	

meeting	in	Las	Vegas	at	which	time	we	encountered	a	number	of	former	Area	51	workers	who	were	directly	impacted	by	this	issue.

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Fourth ANNUAL REORT TO ONGRE

•	 We	communicated	with	two	claimants	who	have	(or	had)	EEOICPA	claims	pending	in	federal	district	

court.		In	both	instances	these	claimants	could	not	find	an	attorney	to	represent	them	and	thus	had	to	

pursue	very	technical	matters	before	the	court	without	the	assistance	of	legal	representation.	In	one	

instance,	the	claimant	was	quite	disturbed	when	included	in	its	motion	for	summary	judgment	the	

Department	of	Justice	added	a	request	for	the	awarding	of	costs.		This	claimant	viewed	the	insertion	of	

this	request	for	costs	as	an	attempt	to	“bully	him”	(since	it	was	known	that	he	did	not	have	counsel	and	

was	struggling	to	represent	himself).			This	claimant	called	our	Office	seeking	guidance	–	which	we	were	

unable	to	provide.

•	 Many	claimants	simply	ask	us	to	explain	documents/decisions.		At	town	hall	meetings,	as	well	as	in	

other	exchanges,	claimants	have	approached	us	thinking	that	their	claims	were	denied,	yet	when	we	

reviewed	their	case,	we	were	able	to	inform	them	otherwise.		This	often	incurs	where	one	decision	

addresses	multiple	claims	–	i.e.,	one	decision	addresses	the	Part	B	as	well	as	the	Part	E	claim;	or	one	

decision	addresses	claims	for	a	number	of	different	illnesses.

Moreover,	many	documents	and	decisions	are	written	using	legal,	medical	and/or	scientific	terms	and	

claimants	simply	find	it	difficult	to	understand	these	terms.		For	example,	when	a	claimant	receives	a	

recommended	decision,	attached	to	the	recommended	decision	is	a	waiver	letter.		This	letter	provides	the	

claimant	with	two	options:	(1)	“...waive	[the	right	to	object]	only	as	those	rights	pertain	to	the	benefits	

awarded”	and	“...reserve	[the]	right	to	object	to	the	findings	of	fact	and/or	conclusions	of	law	contained	in	

the	recommended	decision	that	deny	other	claimed	benefits”	or	(2)	to	waive	the	right	to	object	to	any	of	

the	findings	of	fact	and/or	conclusions	of	law	contained	in	the	recommended	decision.		On	the	one	hand,	

claimants	have	contacted	us	to	ask	to	explain	the	concept	of	waiver.		On	the	other	hand,	claimants	have	

contacted	us	for	guidance	on	how	to	complete	this	form.	22		

In	another	instance,	the	claimant	received	a	letter	discussing	wage	loss	and	impairment,	but	because	she	did	

not	understand	the	letter,	the	claimant	did	not	respond	within	the	allotted	time,	and	her	claim	was	closed.		

The	claimant	contacted	our	Office	because	she	wished	to	file	a	claim	for	wage	loss	and/or	impairment.

•	 Claimants	often	call	us	asking	for	information	that	is	otherwise	available.		For	example,	while	there	is	

information	available	on	both	DEEOIC’s	and	NIOSH’s	websites,	some	claimants	do	not	have	access	to	

the	internet,	while	others	are	not	adept	at	“surfing”	the	internet.		Moreover,	even	where	claimants	have	

access	to	the	internet	and	are	adept	at	“surfing	the	net,”	because	the	webpage	does	not	always	highlight	

the	availability	of	these	resources,	some	claimants	are	not	aware	that	this	information	is	available.		In	

addition,	when	they	encounter	problems,	many	claimants	do	not	think	to	(or	want)	to	go	to	the	internet	

to	find	the	answer.

22	 Many	claimants	are	aware	of	instances	where	claimants	waived	all	objections	to	a	recommended	decision	and	yet	when	the	case	

was	forwarded	to	FAB,	FAB	altered	the	recommended	decision.		Therefore,	some	claimants	inquired	if	waiving	all	objections	to	a	

recommended	decision	would	impact	their	right	to	challenge	findings	by	FAB	which	were	contrary	to	findings	contained	in	the	

recommended	decision.		We	inform	claimants	that	the	signing	of	the	waiver	does	not	impact	their	ability

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30 OFFICE OF THE OMBDSMAN 

This	Office	has	discussed	with	DEEOIC	the	fact	that	its	webpage	does	not	readily	identify	some	of	

the	resources	which	are	available	on	its	site.		For	example,	while	there	is	a	listing	of	(some)	qualified	

providers,	it	takes	diligence	to	find	this	information.		DEEOIC	note	that	the	design	of	its	webpage	is	

not	entirely	within	its	control.		Nevertheless,	they	agreed	that	there	was	room	for	improvement	and	

assured	us	that	this	would	be	considered.

•	 In	one	situation,	although	the	evidence	established	that	the	company	performed	work	at	a	DOE	facility,	

there	were	no	records	indicating	that	the	claimant	had	been	employed	at	this	DOE	facility.		This	

claimant	insisted	that	he	had	bills	that	established	that	he	worked	at	the	DOE	facility,	yet	at	first	glance	

the	bills	simply	verified	that	supplies	had	been	purchased.		Finally,	this	claimant	made	a	statement	that	

clarified	the	whole	confusion	–	the	claimant	states	that	this	was	his	company	and	it	was	a	“one-man	

shop.”		With	this	revelation,	this	claimant	was	able	to	move	forward	with	his	claim.	23		

•	 Claimants	question	their	impairment	ratings.		For	instance	where	the	doctor	stated	that	the	claimant’s	

condition	rendered	him	“unproductive”	the	claimant	questioned	why	this	did	not	signify	that	he	was	

100%	impaired.	Moreover,	many	claimants	find	it	hard	to	distinguish	the	concept	of	impairment	and	

wage	loss.

•	 In	denying	a	claim,	DEEOIC	did	not	credit	the	opinion	of	the	treating	physician	who	opined	that	

death	was	caused	by	exposure	to	toxins	at	work.		The	claimant	believes	that	the	opinion	of	the	treating	

physician	should	carry	more	weight	than	the	district	medical	consultant	who	never	personally	examined	

the	worker.		Further	bolstering	this	claimant’s	belief	is	a	recent	article	in	the	local	newspaper	suggesting	

that	there	were	chemicals	at	this	DOE	facility	which	have	been	associated	with	Parkinson’s	disease.

•	 Claimant	was	a	student	under	the	age	of	23	when	the	worker/parent	passed	away.		However,	finding	

that	this	child	was	not	a	full-time	student,	it	was	determined	that	this	child	did	not	meet	the	statutory	

definition	of	eligible	child.		At	issue	was	three	semesters	when	this	child	did	not	take	a	full	course	load.		

This	child	noted	that	he	worked	while	in	school	and	had	designed	his	course	load	in	order	to	maintain	

his	grade	point	average.		Thus,	this	child	argued	that	simply	focusing	on	these	three	semesters	was	not	

fair	–	rather	one	needed	to	consider	that	he	had	maintained	a	high	grade	point	average	and,	in	spite	of	

the	three	semesters,	had	attended	summer	sessions	and	thus	graduated	“on-time.”

•	 An	attorney	for	an	employer	called	when	he	received	a	copy	of	a	FAB	decision.		This	attorney	could	

not	understand	why	he	had	received	this	decision	and	wanted	to	be	sure	that	there	was	nothing	for	

him	to	do.	24

•	 We	received	an	inquiry	asking	whether	creditors	can	attach	or	garnish	EEOICPA	benefits.

•	 The	facility	is	listed	as	an	atomic	weapons	facility	and	thus	not	covered	under	Part	E.		Claimant	

asserts	that	she	has	evidence	showing	that	remediation	occurred	at	this	facility,	and	believes	that	the	

government	ought	to	bear	the	burden	of	proving	that	this	was	not	DOE	remediation.

23	 Unfortunately,	the	confirmation	of	this	employment	did	not	proceed	quickly	enough	and	this	claimant	passed	away	before	a	

decision	issued.

24	 DEEOIC	does	not	serve	copies	of	FAB	decisions	on	employers.		Thus,	it	is	not	clear	who	forwarded	this	decision	to	this	attorney.

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•	 Claimant	is	attempting	to	establish	a	link	between	amyotrophic	lateral	sclerosis	(ALS)	and	toxins	at	

Savannah	River	Facility,	and	in	furtherance	of	this	pursuit,	wants	to	know	the	number	of	former	and	

current	Savannah	River	employees	with	ALS.

V. ToWn Hall MeeTInGs

Regardless	of	where	we	are,	many	of	the	issues	that	we	hear	at	our	town	hall	meetings	remain	the	same.		

Nevertheless,	our	meetings	also	reveal	that	some	issues	are	more	prevalent	in	certain	areas.		Therefore,	

we	would	like	to	take	a	moment	to	provide	a	summary	of	the	three	town	hall	meetings	that	we	sponsored	

during	this	year.

•	 St.	Petersburg,	Florida:	The	Office	scheduled	this	town	hall	meeting	in	response	to	a	number	of	

specific	requests	for	such	a	meeting.		Most	of	the	attendees	had	already	filed	claims,	and	thus	their	

concerns	focused	on	the	evidence	needed	to	establish	exposure	and/or	causation,	and	the	impact	of	this	

evidence	(or	lack	thereof)	on	their	dose	reconstructions,	as	well	as	their	overall	claim.		Some	claimants	

questioned	the	accuracy	of	the	information	contained	in	the	SEM,	while	others	believed	that	exposure	

decisions	had	been	premised	on	an	erroneous	“model”	of	the	Pinellas	facility	–	i.e.,	that	some	of	the	

walls	assumed	in	the	model	did	not	exist,	or	did	not	rise	to	the	ceiling.		[Note:	on	the	day	following	our	

meeting,	DEEOIC	was	scheduled	to	visit	this	facility].

Moreover,	while	the	Resource	Center	and	the	District	Office	periodically	visited	this	area,	there	were	

claimants	who	believed	that	a	greater	presence	by	DEEOIC	was	needed.

•	 Las	Vegas,	Nevada:	Locating	sufficient	evidence	to	establish	exposure	and	causation	was	also	a	major	

concern	for	many	of	the	individuals	who	attended	our	town	hall	meetings	in	Las	Vegas.		Some	of	these	

claimants	were	certain	that	relevant	records	had	been	destroyed	and	thus	questioned	the	reasonableness	

of	placing	the	burden	on	them	in	circumstance	where	records	could	not	be	located.		Furthermore,	in	

spite	of	the	inability	to	locate	medical	literature	linking	their	illness	to	any	of	the	toxins	known	to	have	

been	present	at	NTS,	there	were	many	attendees	who	were	nevertheless	certain	that	their	exposures	to	

toxins	at	NTS,	was	a	factor,	if	not	the	cause	of	their	illness.

When	we	hosted	our	meeting,	in	attendance	were	a	number	of	former	Area	51	workers.		At	the	time	of	our	

meeting,	most	of	these	workers	were	aware	that	Circular	08-06	expanded	NTS	to	include	Area	51.		However,	

many	of	these	attendees	were	skeptical	as	to	whether	they	would	be	able	to	locate	sufficient	records	to	

establish	entitlement.	

•	 Shoreham,	New	York:		In	spite	of	our	mailing	and	an	advertisement	in	the	local	newspaper,	only	a	

handful	of	claimants	attended	this	meeting,	and	this	itself	is	a	problem.		We	continue	to	believe	that	

there	may	be	former	workers	of	the	Brookhaven	facility	who	are	not	aware	of	their	potential	eligibility	

for	Part	E	benefits.		Consequently,	we	will	continue	to	explore	other	ways	to	expand	our	outreach	effort	

to	these	potential	claimants.

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32 OFFICE OF THE OMUDSMAN

As	to	the	claimants	who	did	attend	our	meeting,	most	were	encountering	problems	trying	to	establish	

covered	employment	–	while	they	could	establish	employment	with	their	particular	employer,	these	

claimants	could	not	locate	sufficient	records	to	establish	that	their	employer	(or	they)	performed	work	at	the	

Brookhaven	facility.

•	 Shiprock,	New	Mexico:	Although	our	Office	did	not	sponsor	any	town	hall	meetings	in	Shiprock	during	

this	calendar	year,	we	attended	a	round	table	discussion	sponsored	by	the	Office	of	Navajo	Uranium	

Miners	to	discuss	Native	American	tradition	and	culture.		While	time	only	permitted	a	general	overview	

of	this	subject,	this	overview	made	it	clear	that	there	are	facets	of	Navajo	tradition	and	culture	that	have	

a	direct	bearing	on	the	processing	of	a	Part	E	claim.		Most	of	the	attendees	agreed	that	these	issues	will	

have	to	be	discussed	in	more	detail.

VI. assessMenT of THe CoMPlaInTs, GRIeVanCes anD ReQUesTs foR 

assIsTanCe

Any	assessment	of	the	complaints,	grievances	and	requests	for	assistance	that	this	Office	received	in	2008	

must	start	with	the	recognition	that	some	of	the	issues	brought	to	our	attention	concern	the	Part	E	statute	as	

written.		There	are	claimants	who	argue	that	provisions	of	Part	E	effectively	exclude	certain	nuclear	workers	

from	coverage.		In	addition,	some	people	continue	to	ask	why	certain	provisions	of	Part	E	are	narrower	in	

scope	than	similar	provisions	in	Part	B.		Nevertheless,	while	many	of	these	statutory	complaints	are	directed	

at	DEEOIC,	it	must	be	recognized	that	neither	DEEOIC	nor	this	Office	can	resolve	these	complaints.		Thus,	

where	claimants	collect	data	that	“questions”	the	underlying	basis	of	a	statutory	provision,	these	claimants	

are	oftentimes	unsure	of	the	procedures	to	follow	to	have	this	data	considered.

In	addition	to	the	statutory	complaints	that	we	receive,	we	also	receive	regulatory	and	administrative	

complaints.	Some	claimants	argue	that	certain	of	the	regulations	promulgated	by	DEEOIC	are	not	in	

accord	with	the	statute	(and/or	the	intent	of	Congress).		However	because	many	of	these	claimants	lack	the	

resources,	as	well	as	because	of	the	complexity	of	some	of	these	issues,	pursuing	these	matters	in	federal	

court	often	is	not	a	viable	option.

Overall,	as	in	previous	years,	the	majority	of	the	complaints,	grievances,	and	requests	for	assistance	received	

by	the	Office	of	the	Ombudsman	concerned	administrative	issues,	and	more	specifically	involved	requests	

for	assistance	in	the	processing	of	a	claim.		Our	experiences	over	the	past	year	confirm	that	Part	E	can	be	a	

complicated	program,	and	that	in	some	instances,	even	with	the	assistance	that	is	offered,	some	claimants	

find	it	difficult	to	“navigate”	this	process.		In	fact,	it	is	not	just	that	some	claimants	call	our	Office	for	

assistance	–	rather	some	of	the	claimants	who	call	our	Office	are	extremely	frustrated	to	the	point	that	they	

question	whether	the	real	intent	of	this	program	was	ever	to	compensate	them	for	their	illnesses.		We	do	our	

best	to	assist	these	claimants.

No	one	can	doubt	that	over	the	years,	a	large	number	of	Part	E	claims	have	been	adjudicated,	a	good	

number	of	claimants	have	been	found	eligible,	and	an	impressive	amount	of	compensation	has	been	paid.		

Nevertheless,	based	upon	the	telephone	calls,	e-mails,	faxes,	letters	and	personal	input	this	Office	received	

over	the	past	year,	it	is	obvious	that	more	can	be	done	to	assist	claimants.

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Fourth ANNUAL REORT TO ONGRE

Based	upon	our	experiences	over	the	past	year,	here	are	just	a	few	of	our	suggestions:		

•	 While	DEEOIC,	as	well	as	this	Office,	already	holds	town	hall	meetings	all	around	the	country,	we	

continue	to	encounter	potential	claimants	who	have	not	filed	claims.		Thus,	more	efforts	need	to	

be	made	to	contact	potential	claimants	for	whom	the	“normal”	methods	of	contact	have	not	been	

successful.

•	 Although	many	of	the	documents	and	decisions	issued	by	DEEOIC	have	been	revised	in	order	to	clarify	

possible	confusion,	we	are	still	contacted	by	individuals	who	do	not	understand	these	documents.		

As	we	came	to	recognize	for	ourselves	this	year,	if	you	work	with	this	program	on	a	daily	basis,	you	

may	understand	terms	such	as	“waiver”	and	“tort,”	but	others	may	not	fully	understand	these	terms,	

especially	in	the	context	they	are	used	with	this	program.		Moreover,	there	are	some	people	who	even	if	

they	understand	the	document	or	decision,	still	want	a	second	opinion	before	“acting,”	especially	where	

their	action/inaction	may	impact	their	claim.		Thus,	efforts	to	ensure	that	claimants	fully	understand	the	

documents	and	decisions	that	they	receive	must	be	ongoing.

•	 Every	effort	should	be	made	to	ensure	that	decisions	are	well	reasoned	and	fully	explained.		While	

copies	of	medical	evidence	(specifically	the	reports	of	District	Medical	Consultants)	are	provided,	if	the	

claimants	makes	the	specific	request,	it	goes	without	saying	the	more	information	that	is	provided	to	

claimant,	the	more	informed	the	claimant	is	and	shows	transparency	of	what	is	transpiring	or	what	the	

claimant	may	need	to	do	if	they	disagree	with	the	decision	that	has	been	rendered.

•	 Because	claimants	and	potential	claimants	need	advice	and	guidance,	efforts	should	be	made	to	ensure	

that	advice	and	guidance	is	easy	to	obtain.

o	 DEEOIC’s	website	contains	a	lot	of	useful	information,	but	not	everyone	is	aware	of	the	existence	

of	this	information.		While	DEEOIC	may	not	have	full	control	over	the	design	of	its	web-page,	we	

nevertheless	hope	that	more	effort	can	be	made	to	ensure	that	information	available	on	the	web-site	

is	prominently	highlighted	so	that	claimants	are	aware	of	its	existence.

o	 Nevertheless,	one	also	must	be	mindful	that	not	all	claimants	have	access	to	a	computer.

•	 Claimants	need	to	know	where	to	go	to	receive	information	concerning	issues	such	as	the	taxability	of	

EEOICPA	benefits	and	the	impact	of	the	receipt	of	EEOICPA	benefits	on	Social	Security	benefits.

•	 We	sincerely	hope	that	efforts	are	made	to	stem	even	the	allegations	of	rude	and	negative	interactions	

with	DEEOIC	personnel.

This	list	above	is	by	no	means	an	exhaustive	list	of	all	of	the	steps	that	can	or	should	be	taken	to	address	the	

complaints,	grievances	and	requests	for	assistance	received	by	this	Office,	but	it	is	a	start.

The	Office	of	the	Ombudsman	hopes	that	this	report	has	shed	some	light	on	some	of	the	complaints,	

grievances,	and	requests	for	assistance	that	we	received	during	the	past	year.		To	the	extent	that	this	report	is	

beneficial	in	assisting	claimants	in	their	pursuit	of	compensation,	we	will	be	happy.		However,	our	real	goal	

is	to	improve,	within	the	bounds	of	our	authority,	the	delivery	of	services	to	Part	E	claimants,	in	the	timely	

and	efficient	manner	envisioned	by	Congress.							

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34 OFFICE OF THE OMUDSMAN

STATUTORY ISSUES																																													 		91 comments

Covered Employee/Covered DOE Facility 		17 comments

Causation Requirement 			13 comments

Limitation of Survivor Eligibility 			46 comments

Qualified Claimant’s Death Prior to Award Nullifies Claim or

Reduces Compensation

11 comments

Chronic Lymphocytic Leukemia 			4 comments

REGULATORY ISSUES																																								 114 comments

50% Probability of Causation Requirement for Radiogenic Cancer 7 comments

Medical Benefits 19 comments

Offset for Social Security 10 comments

Part B and Dose Reconstruction 62 comments

										SEC 16 comments

ADMINISTRATIVE ISSUES 1469 comments

Burden of Proof 										

										Burden of Proving Employment 48 comment

										Burden of Proving Exposure 99 comments

										Burden of Proving Causation 45 comments

Processing of Claim Takes Too Long 66 comments

Concerns Involving Interactions with DEEOIC Personnel 108 comments

Locating Experts 7 comments

Area 51 5 comments

Sarcoidosis 3 comments

General Requests for Assistance 1088 comments*

*The 1088 comments under General Requests for Assistance includes:

OmbudsmanAnnualReport v4.indd 34 2/13/09 2:43
Fourth ANNUAL REORT TO ONGRE

Attendees at Las Vegas town hall meetings 					500

Attendees at Pinellas town hall meetings 					250

Attendees at Ombudsman town hall meeting in Shoreham, NY 									5

Attendees at NIOSH meeting in Shoreham, NY 									5

Other requests 					328

OmbudsmanAnnualReport v4.indd 35 2/13/09 2:43
36 OFFICE OF THE OMUDSMAN

ClaIMs Cases

applications filed 77,150 55,089

Non Covered Applications 25,498 10,035

Covered Applications Filed 51,652 45,054

Recommended Decisions*

																									Approved 20,983 19,824

																														Denied 18,955 17,991

																																	Total 39,938 37,815

final Decisions*

																										Approved 20,049 19,108

																															Denied 17,522 16,779

																																		Total 37,571 35,887

Compensation Paid

																											Payments 13,047 12,430

 Total Dollars $1,405,716,750

* With regard to covered applications only

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Fourth ANNUAL REORT TO ONGRE

OmbudsmanAnnualReport v4.indd 37 2/13/09 2:43
U.S. DEPARTMENT OF LABOR

OFFICE OF THE OMBUDSMAN

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM, PART E

200 Constitution Avenue, N.W.

Room N-2454

Washington, D.C. 20210

OmbudsmanAnnualReport v4.indd 38 2/13/09 2:43