TO CONGRESS

2005

OFFICE OF THE OMBUDSMAN

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM, PART E

U.S. DEPARTMENT OF LABOR

TO CONGRESS

FIRST ANNUAL REPORT

2005 FIRST ANNUAL REPORT
OFFICE OF THE OMBUDSMAN

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM, PART E

U.S. DEPARTMENT OF LABOR

TO CONGRESS

2005 FIRST ANNUAL REPORT
ii | FIRST ANNUAL REPORT TO CONGRESS 2005

A MESSAGE FROM THE OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

General Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

“Adult Children” Are Not Qualified Survivors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Qualified Survivor’s Death Prior to Award Vitiates Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Many Claimants Will Exceed the $250,000 Cap on Part E Compensation . . . . . . . . . . . . . . . . . . . . . . . x 

Regulatory Burdens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Difficulty Finding Pertinent Exposure and Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Concerns Regarding the Use of NIOSH Dose Reconstruction for Part E Claims . . . . . . . . . . . . . . . . . xii

Probability of Causation Requirement Is Too High . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Concerns Regarding General Administration of Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Communications With District Offices are Confusing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

The Processing of Claims Has and Will Take Too Much Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Claims Examiners Do Not Always Return Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

District Offices Do Not Provide Enough Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Emerging Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvi

PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Legislative History of EEOICPA Prior to Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Enactment of Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. The Office of the Ombudsman and this Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

IV. Summary of Comments Received Regarding General Statutory 

Provisions of Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ineligibility of Adult Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

Qualified Survivor’s Death Prior to Award Vitiates Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

The $250,000 Cap on Part E Benefits Does Not Provide Adequate Compensation . . . . . . . . . . . 8

Definition of a “Covered Employee” is Too Narrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Site Profiles Are Inaccurate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Definition of Covered Spouse is Inflexible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Table of Contents
FIRST ANNUAL REPORT TO CONGRESS 2005 | iii

V. Summary of Comments Received Regarding General Regulatory 

Provisions of Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Claimants’ Burden of Retrieving Employment and Medical Exposure Records 

Is Too Onerous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dose Reconstructions Are Unreliable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

50% Probability of Causation Is Too High . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

The Medical Benefits Card Is Not Widely Accepted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

Wage Loss Calculations Are Unreasonably Delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

Difficulty of Finding a Physician to Do a Medical Impairment Rating . . . . . . . . . . . . . . . . . . . . . . 16 

VI. Summary of Comments Received Regarding General Administration 

of Part E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Documents From District Offices Concerning Adjudication of Claims 

Are Often Confusing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Processing of Claims Has and Will Take Too Much Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Claims Examiners Do Not Always Return Calls/Assignment of Claim Examiners 

Frequently Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 

The Program Agency Does Not Provide Enough Explanatory Materials; 

Outreach Efforts Need To Be Preceded By Explanatory Information . . . . . . . . . . . . . . . . . . . . 21

Resource Centers Have Been Helpful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Assessment of Common Difficulties and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDIX A

Compilation of Comments by Subject/Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDIX B

Program Agency Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iv | FIRST ANNUAL REPORT TO CONGRESS 2005

U.S. Department of Labor Ombudsman

Energy Employees Compensation Program

Washington, D.C. 20210

February 15, 2006

The Honorable Richard B. Cheney

President of the Senate

Washington, DC 20515

Dear Mr. President:

I am pleased to present the First Annual Report of the Ombudsman

for Part E of the Energy Employees Occupational Illness

Compensation Program of the U.S. Department of Labor. This

Report is submitted in accordance with 42 U.S.C. § 7385s-15(e).

Sincerely,

Donald G. Shalhoub

Ombudsman for Part E

Enclosure
FIRST ANNUAL REPORT TO CONGRESS 2005 | v

U.S. Department of Labor Ombudsman

Energy Employees Compensation Program

Washington, D.C. 20210

February 15, 2006

The Honorable J. Dennis Hastert

Speaker of the House of Representatives

Washington, DC 20515

Dear Mr. Speaker:

I am pleased to present the First Annual Report of the Ombudsman

for Part E of the Energy Employees Occupational Illness

Compensation Program of the U.S. Department of Labor. This

Report is submitted in accordance with 42 U.S.C. § 7385s-15(e).

Sincerely,

Donald G. Shalhoub

Ombudsman for Part E

Enclosure

A Message from the Ombudsman

P

art E of the Energy Employees Occupational Illness Compensation

Program Act was passed by Congress to compensate American

workers who put their health on the line to help fight the Cold War.

Many of these workers developed cancer and other serious diseases

because they were exposed to radiation, as well as some of the most

deadly toxic substances known to modern man, in the course of doing their

jobs. They and their families have paid dearly for their role in protecting our

democracy; the purpose of this program is to acknowledge their sacrifice and to

compensate them in some small way for all they’ve lost.

When Congress repealed Part D and enacted Part E of the Energy Employees

Occupational Illness Compensation Program Act in October, 2004, effectively

transferring responsibility for administration of contractor employee

compensation from the Department of Energy (DOE) to the Department of

Labor (DOL), it also made provisions for creation of the Office of the

Ombudsman for Part E matters. Congress directed that the Office of the

Ombudsman was to be an independent office, located within the Department

of Labor, and charged it with a three-fold mission:

■ To conduct outreach to claimants and potential claimants;

■ To make recommendations to the Secretary of Labor on where to

locate Resource Centers for the acceptance and development of claims;

■ To submit an Annual Report to Congress by February 15, setting forth

the number and types of complaints, grievances and requests for

assistance received by the Ombudsman, and an assessment of the most

common difficulties encountered by claimants and potential claimants

under Part E (42 U.S.C. § 7385s-15(e))*.

FIRST ANNUAL REPORT TO CONGRESS 2005 | vii

*Please consult the Appendix for the number and types of comments received by the Office of the

Ombudsman; numbers and types of comments received are also listed in the section headings of 

this Report.
What follows is that Report. Secretary of Labor Elaine L. Chao appointed me to be the

Ombudsman for Part E on February 24, 2005; my most significant efforts in my first year as

Ombudsman have been focused on providing outreach to Part E claimants and potential

claimants, to let them know what benefits may be available to them under Part E, and what

procedures must be followed to obtain these benefits. In order to discharge that duty, I

undertook the following tasks: 

■ Established and staffed an independent office within the Department of Labor, as

required by law.

■ Traveled across the country to Town Hall Meetings during the Spring, Summer and

Fall of 2005, to inform claimants and potential claimants of the benefits available

under Part E, and the procedures that must be followed to obtain them.

■ Met dozens of claimants at these Town Hall Meetings and heard, firsthand, of their

concerns and difficulties in obtaining Part E compensation.

■ Developed a website listing general information about the Office of the Ombudsman,

including contact information, at: www.dol.gov/eeombd.

■ Set up a toll-free number (1-877-662-8363) and an e-mail address

(Ombudsman@dol.gov) for claimants’ ease of contacting this Office.

As a result of these personal contacts and several hundred letters, e-mails and telephone

conversations, claimants have expressed their concerns, or registered their complaints with this

Office about various aspects of the Part E compensation program. These comments range

from concerns with the statute itself, to its implementing regulations, and its general

administration. What follows is a short summary of those comments.

Donald G. Shalhoub, Esq. 

Ombudsman for Part E 

viii | FIRST ANNUAL REPORT TO CONGRESS 2005
Executive Summary

GENERAL STATUTORY PROVISIONS

NOTE: Claimants did not limit the expression of their concerns to just those

aspects of the Energy Employees Occupational Illness Compensation Program which

could be addressed administratively. Rather, some of their complaints concerned

provisions of the legislation itself, which only Congress can address. Accordingly, 

the legislation-based concerns discussed in this Report are presented with the

understanding that the Department of Labor has no authority to resolve any 

such concerns.

1. “Adult Children” Are Not Qualified Survivors

Under Part E, there are three general categories of eligible claimants: 1) Covered

employees who have a covered illness; 2) Spouses of covered employees; and 

3) Children of covered employees who, at the time of their parent’s death, were

younger than 18 years of age, younger than 23 years of age and full-time

students, or any age and incapable of self-support. In contrast to Part B, in

which adult children can receive compensation, Part E adult children who

survive a covered employee or the covered spouse, are not eligible to receive the

compensation to which their parent would have been entitled (42 U.S.C. 

§ 7385s-3(c) and (d)). This has resulted in a significant number of adult

children (72) of covered employees contacting this Office to register their

complaint over what they view as the inherent inequity of defining them out of

eligibility for Part E compensation. Many such adult children have spoken

eloquently of the hardship they endured in caring for their dying parent and the

personal and financial sacrifice they gladly made to care for their terminally ill

mother or father; they emphasize that they did it for love, with no expectation

of reward. By the same token, they argue that since Part E compensation

would have been available to them had they been minors, it is all the more

appropriate for them to be eligible in light of the care they provided and the

FIRST ANNUAL REPORT TO CONGRESS 2005 | ix
sacrifices they made. This is exacerbated by virtue of the fact that many occupational diseases

are characterized by latent manifestation, i.e., symptoms and death do not occur until 20 or

more years after exposure. In a great many cases, this makes it almost impossible for a child of

a covered employee to be younger than 18 years of age when the parent dies. The legally pure

justification for their ineligibility, i.e., that they were not dependents at the time of their

parent’s death, does not mitigate the injustice they perceive. 

Several adult children with historical knowledge of EEOICPA have observed that “adult

children” were ineligible under Part B, until Congress changed the statute (Public Law 107-

107, § 3151(a)(4)(A)). They question why Congress has permitted the same situation to be

repeated under E, and ask whether it will be rectified.

2. Qualified Survivor’s Death Prior to Award Vitiates Claim

A subset of the “adult children” comment pertains to adult children whose parent dies after a

meritorious Part E claim is filed but before the award is paid. Under Part E, successful

claimants must be living in order to receive their payment of compensation, so that if a

surviving spouse files a claim and then dies before it is adjudicated in his or her favor, the

award is not paid. Since the surviving child does not qualify under the statutory definition of

“covered child,” he or she is not entitled to receive the benefits to which the recently deceased

parent would have been entitled. For example, due to the long delays in the processing of 

Part D claims by DOE (followed by the 2004 amendments to EEOICPA), many spouses of

deceased employees have been waiting for extended periods of time (up to four years) to be

awarded what is now Part E compensation, and some of these spouses have died before awards

could be paid. In several cases, the death has occurred shortly before the check was to be

issued, heightening the anomaly of this situation. In cases such as these, the adult children

who have contacted this Office have expressed the sentiment that their Government, through

its own lack of due diligence, is denying them what they feel has become a “vested” benefit.

3. Many Claimants Will Exceed the $250,000 Cap on 

Part E Compensation 

Under Part E, covered employees receive an award of compensation made up of two

components: 1) Wage Loss; and 2) Medical Impairment. Wage Loss is paid at the rate of

either $10,000 per year or $15,000 per year, depending on the extent of lost wages resulting

from the covered condition, and terminates after a covered employee reaches normal Social

Security retirement age. Medical Impairment is paid at the rate of $2,500 for each percent of

x | FIRST ANNUAL REPORT TO CONGRESS 2005
impairment, based on the AMA’s Guides to the Evaluation of Permanent Impairment. The

maximum amount of compensation payable to covered employees for both Wage Loss and

Medical Impairment is $250,000. Several claimants (5) have stated that they will exceed the

cap based on years of Wage Loss alone. These claimants have expressed the concern that the

$250,000 cap on Part E benefits will not fully compensate them for their total years of wage

loss, and will not compensate them at all for their permanent physical impairment. These

claimants are typically covered employees who became totally disabled as a result of their work

early in their careers and have been receiving Social Security Disability Insurance benefits 

since then.

The maximum amount that wage loss compensation can be calculated at is $15,000 per year

(42 U.S.C. § 7385s-2(a)(2)(B)(ii)). At this rate, only about 16 years of wage loss can be

compensated before reaching the $250,000 cap ($15,000 x 16 years = $240,000). As a result,

any employee who becomes unable to work prior to reaching 49 years of age (Social Security

Retirement age of 65 years prior to a 1938 birth date minus 16 years = 49), will not receive

compensation commensurate with his or her years of lost wages.

REGULATORY BURDENS

1. Difficulty Finding Pertinent Exposure and Medical Records

Despite the fact that the Part E program is promoted as being claimant-friendly, it is clear that

the burden of proving exposure and causation ultimately rests with the claimant (20 C.F.R. 

§ 30.111). With the exception of the Special Exposure Cohort (SEC) designation, there are

no presumptions, irrebuttable or otherwise, as to exposure or causation. As a result, many

claimants are saddled with the burden of attempting to obtain pertinent exposure and medical

records from more than 50 years ago.

A significant number of claimants (30) have expressed frustration at the lack of records

concerning the covered employee’s exposure to toxic substances. Their frustration stems from

their recognition that in many cases, records were not maintained at the time of exposure, or if

made, were lost or destroyed. In other cases, it stems from recognition of having worked for a

series of contractors, who, if they compiled records at all, did not preserve them for subsequent

contractors. Based on these tenets, many claimants feel that their burden of producing

pertinent exposure and medical records is an insurmountable one.

FIRST ANNUAL REPORT TO CONGRESS 2005 | xi
This situation is exacerbated for those Part B claimants who work at facilities granted SEC

status, but who are not covered by the SEC because their radiogenic cancer is not one of the

22 specified in Part B. The SEC designation of facilities (in addition to the four specified in

the Act) is granted, based in part, on a finding that the exposure records necessary to enable

the National Institute for Occupational Safety and Health (NIOSH) to perform a Dose

Reconstruction are not available. SEC claimants suffering from radiogenic cancers have noted

in particular that while their cancer may be as deadly as any of the 22 cancers specified in 

Part B, they will not be able to establish a 50% Probability of Causation (PoC) under either

Part B or E, for the same reason that formed the justification for approving the SEC — no

available records.

2. Concerns Regarding the Use of NIOSH Dose Reconstruction

for Part E Claims

Under Part B, entitlement to benefits as a result of radiogenic cancer requires a determination

concerning the probability that a cancer was caused by exposure to radiation at a covered site.

A claimant’s employment and exposure records and other information relevant to radiation

exposure are reviewed by NIOSH to estimate the amount of radiation he or she received at a

covered employment. If the Probability of Causation (PoC) is determined by DOL (using a

NIOSH developed computer program) to be 50% or greater, an eligible claimant is awarded

benefits. The Program Agency proposes to use this same analysis to determine causation 

under Part E for cancers solely caused by radiation. The Agency explains in the Preamble 

to the Interim Final Rule why it decided to utilize the NIOSH Dose Reconstruction process

for radiogenic cancers in Part E as well as Part B. (70 Fed. Reg. 33590, 33593-594 

(June 8, 2005)).

A number of claimants (28) have registered the following concerns regarding the Program

Agency’s proposed use of NIOSH Dose Reconstruction to determine causation for radiogenic

cancers in Part E:

■ The dose reconstruction process takes too long, and otherwise eligible claimants may

die while waiting for a result.

■ Agency should use linear model recently cited with approval by the National Academy

of Sciences instead of NIOSH model.

■ Information provided to NIOSH regarding work history is oftentimes not accounted

for in NIOSH dose reconstructions.

xii | FIRST ANNUAL REPORT TO CONGRESS 2005
■ Claimants’ employment at multiple covered facilities is not always reflected in dose

reconstruction.

■ NIOSH should include copies of the documentation used to conduct the dose

reconstruction when it sends out its findings.

■ NIOSH quarterly reports have been mistaken by individuals as the NIOSH dose

reconstruction itself, since they are so lengthy.

3. Probability of Causation Requirement Is Too High 

Under Section 7385s-4(c)(1) of EEOICPA, a DOE contractor employee is determined to have

contracted a covered illness through exposure at a DOE facility if —

(A) it is 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 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 DOE facility.

DOL’s Interim Final Rule states that DOL will use HHS’ regulatory guidelines at 42 C.F.R.

Part 81 (Guidelines for Determining Probability of Causation under the Energy Employees

Occupational Illness Compensation Program Act of 2000) in determining whether “it is ‘at

least as likely as not’ that exposure to radiation at a DOE facility or RECA section 5 facility, as

appropriate, was a significant factor in aggravating, contributing to, or causing the employee’s

radiogenic cancer claimed under Part E.” DOL further states, “For cancer claims under 

Part E, if the PoC is less than 50% and the claimant alleges that the employee was exposed to

additional toxic substances, OWCP will determine if the claim is otherwise compensable

pursuant to § 30.230(d) of this part.” (See 20 C.F.R. § 30.213). In other words, a PoC of

50% or greater is required in order for DOL to find that exposure to radiation at a DOE or

RECA facility caused or contributed to a radiogenic cancer. DOL’s Preamble to the Interim

Final Rule states the Agency’s reasons for deciding to utilize the 50% or higher PoC

requirement for radiogenic cancers in Part E as well as Part B. (70 Fed. Reg. 33590, 

33593-594 (June 8, 2005)). 

Several claimants (9) have contacted the Office of the Ombudsman to complain generally that

the 50% or greater PoC requirement for radiogenic cancers in Part E is too high and/or, more

specifically, that it is contrary to the statutory language directing the agency to accept Part E

claims if, among other things, it is “at least as likely as not that exposure to a toxic substance

FIRST ANNUAL REPORT TO CONGRESS 2005 | xiii
was a significant factor in aggravating, contributing to, or causing the illness” (emphasis added)

(42 U.S.C. § 7385s-4(c)(1)(A)). 

The individuals who question the regulation’s consistency with the statute maintain that the

“significant factor” language in Part E indicates that Congress intended the Agency to use a

lower threshold than in Part B, which includes the “at least as likely as not” language but not

the “significant factor” clause, and for which the Agency has established a PoC percentage of

50% or greater. The argument is that by using the same percentage in E as in B, the agency

has given no meaning to the additional “significant factor” clause. These individuals suggest

that the “significant factor” language was added by Congress to reflect a lower standard of

causation utilized in Part D, and that Congress intended the Agency to use a 10%-40%

threshold in Part E rather than 50%. 

CONCERNS REGARDING GENERAL ADMINISTRATION

OF PART E

1. Communications With District Offices are Confusing

In the course of developing a claimant’s file in order to adjudicate the claim, District Offices

correspond with claimants if they need additional information. When a Recommended

Decision is issued, it is forwarded to the claimant with a notice of their appeal rights. Such

correspondence is not always clearly written, and may not be understood by the claimant. As a

consequence, a significant number of claimants (53) have called this Office for assistance in

understanding what the correspondence they receive from District Offices means. As discussed

at length in the body of this Report, the confusion concerns deadlines for taking appeals from

Recommended Decisions, timelines for submitting additional information to District Offices,

and what type of information is required to appeal an adverse decision. In this regard, there is

also confusion regarding the effect of the 60-day waiver provision which accompanies the

Recommended Decision. In addition, correspondence frequently includes citations to the law

or regulations without accompanying text, which does not facilitate comprehension.

Part B claimants frequently contact this Office for assistance, though the services of the Office

of the Ombudsman are statutorily authorized for use by Part E claimants only. Part B

claimants often do not discern a difference between Parts B and E, finding the two programs

to be indistinguishable. Claimants have expressed their concern about not being sure whether

xiv | FIRST ANNUAL REPORT TO CONGRESS 2005
they have a filed a Part B and/or a Part E claim; this confusion is sometimes due to unclear

communication from the District Offices. 

2. The Processing of Claims Has and Will Take Too Much Time

The delay attendant to the processing of claims is one of the most common complaints this

Office has received regarding Part E. Many claimants who would be covered by the new Part

E had previously filed their Part D claims with the Department of Energy, some as early as

2001. When Congress assigned the Part E program to the Department of Labor in October,

2004, 25,000 of these claims were still pending. Claimants who originally filed with the

Department of Energy under Part D are frustrated at the years that have gone by without their

claim being adjudicated. Claimants now think they will have to wait several more years as a

result of the transfer. Many of the claimants are elderly; some are dying. This fact, combined

with their recognition that their adult children will not be eligible survivors, has resulted in the

perception among the claimants who have contacted this Office on this matter (48) that the

agency is delaying the payment of benefits in an effort to “wait them out,” i.e., wait for them

to die. Recently, we have received an increasing number of calls from claimants who are being

told by District Offices that Claims Examiners are still being trained on how to perform certain

calculations.

3. Claims Examiners Do Not Always Return Calls

In the Part E program, the amounts of compensation are significant, many claimants who have

filed under Part D have already been waiting for several years, the constituency is, by

definition, sick and elderly, and compensation can only be paid to living claimants (42 U.S.C. 

§ 7385s-3(c)). Based on the foregoing, it is not unreasonable for claimants to make regular

telephone inquiries to check on the status of their pending claims. A significant number of

claimants (23) have contacted this Office to complain that their calls to their Claims Examiners

are not always being returned. When calls are returned, it is often by a different Claims

Examiner, only recently assigned to the claim, who has no in-depth familiarity with the file, and

is unable to provide current information.

4. District Offices Do Not Provide Enough Services

Claimants are ultimately responsible for obtaining information sufficient to establish their

claim. As a general rule, this means obtaining employment, exposure and medical records to

prove the various elements of their claims (20 C.F.R. § 30.111). Congress directed the DOE

FIRST ANNUAL REPORT TO CONGRESS 2005 | xv
and the DOL to undertake appropriate action to retrieve documents needed to adjudicate a

claim (42 U.S.C. § 7385s-10(c)(2)). However, despite representations that the Part E

program is claimant-friendly, many claimants have felt that they were on their own when it

came to obtaining employment records and exposure records in support of their Part E claim.

These claimants felt that the District Offices were not helpful in unearthing relevant

information.

Similarly, a significant number of claimants (23) are encountering great difficulty in finding

qualified physicians to perform medical impairment ratings, and have recommended that each

District Office develop a list of qualified physicians whose impairment ratings will be acceptable

to the Program Agency.

Likewise, claimants whose personal physicians are unwilling to accept the Medical Benefits

Card are upset to find that there is not a general list of accepted providers that they can consult

to find a physician who will accept the card.

EMERGING TRENDS

During its first year of administration of Part E, the Program Agency has focused on paying

clear-cut claims, which could be paid directly from the statute, without the need to consult

implementing regulations. This strategy facilitated compensation of eligible claimants as

quickly as possible. The means used to accomplish this objective was to pay claims for which

neither a Wage Loss calculation nor a Medical Impairment rating was required. Since these

were the two components that comprised Part E compensation awards to living employees, this

meant that no living employees would be paid in the first instance. The Program Agency has

now begun to turn its attention to compensating living employees, which means having to

implement procedures to deal with these two issues. This Office has recently begun to receive

inquiries on both of these matters.

With respect to Medical Impairment ratings, there appear to be very few physicians who meet

the requirements stated in the Interim Final Rule and Procedure Manual who will qualify to

perform impairment ratings which the Program Agency will find acceptable (20 C.F.R. 

§ 30.901(b); DEEOIC Procedure Manual E-900(4)(b)). We anticipate receiving many more

inquiries and requests for assistance with respect to this issue in the coming year. 

xvi | FIRST ANNUAL REPORT TO CONGRESS 2005
The Wage Loss calculation will require a multi-step process, and the covered employee will be

compensated at one of two levels (or both), depending on how great a wage loss he suffered.

First, an average salary must be established for use as a baseline against which to measure lost

wages. This is done by averaging out the 36-months of annual earnings preceding the illnessinduced wage loss. Next, the percentage of actual wages earned, as compared to the baseline

salary, must be calculated. Finally, a multiplier of either $10,000 or $15,000 per year will be

applied to the number of years of wage loss, as follows: $10,000 for years in which actual

wages earned were greater than 50% but less than 75% of the baseline salary; $15,000 for years

in which actual wages earned were less than 50% of the baseline salary; or, a combination of

both. Due to the complexity of this calculation, and based on early inquiries, we anticipate

that the Wage Loss component of the Part E compensation award to living employees will

produce many inquiries and requests for assistance to this Office.

FIRST ANNUAL REPORT TO CONGRESS 2005 | xvii

Preface

This Report is Congressionally-mandated to contain “...complaints,

grievances and requests for assistance.” (42 U.S.C. § 7385s15(e)(2)(B)). Consequently, this Office does not receive, and 

this Report does not contain, comments that are generally

complimentary of Part E program administration. However, to

give this Report balance, it is important to acknowledge a number of background

facts surrounding the 2004 repeal of Part D and creation of Part E, and the

ensuing transfer of Part D claims from DOE to DOL. 

On the very first day that the transfer of responsibility from DOE to DOL for

administering workers’ compensation EEOICPA claims was effective, DOL

opened its doors with a backlog of 25,000 new (formerly Part D) claims,

inherited from DOE. As a result, DOL did not have the luxury of a four-year

grace period in which to develop a measured, sustained expansion of its Part B

infrastructure to handle this new program. In addition to these 25,000 old

claims, DOL received 11,000 new Part E claims during the course of its first

year administering the program. 

Under Part E, some types of survivor claims were clearly payable based on

direction in the statute. Realizing that many claimants had been waiting for as

long as three years to receive compensation, the Program Agency began paying

these claims even before the Part E implementing regulations were

promulgated.

This approach is commendable, particularly in view of the fact that Congress

did not expect the Program Agency to begin making payments until it issued

its regulations, and gave the Program Agency a 210-day timeframe in which to

accomplish this.

In addition to paying those claims it could, the Program Agency charted

several other labor-intensive courses. Simultaneously with paying clear-cut

FIRST ANNUAL REPORT TO CONGRESS 2005 | 1
survivor claims, it began developing an Interim Final Rule (“Rule”), scheduling two rounds of

Town Hall meetings across the country, and hiring and training several hundred Claims

Examiners to develop Part E claims. The Agency promulgated the Rule on May 26, 2005,

thus meeting the 210-day deadline Congress had set. The first round of Town Hall meetings

were held in early 2005 to explain to claimants and potential claimants the differences between

Parts D and E; the second round of meetings were held in the Spring, Summer and Fall of

2005, to review the Agency’s newly promulgated regulations. Finally, in terms of production,

the Program Agency reviewed all 25,000 transferred Part D claims, and as of mid-December,

2005, had issued 2,749 Recommended Decisions under Part E; 2,380 of those have become

final, including 1,991 decided in favor of the claimant, resulting in payment of over $254

million in Part E compensation. These challenges and accomplishments should be considered

along with the problems outlined in this Report. 

INTRODUCTION

The Office of the Ombudsman was established by Section 3686 of Subtitle E, Contractor

Employee Compensation, in an amendment to 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. 

Section 3686(e) requires the Office of the Ombudsman to submit to Congress an Annual

Report addressing the number and types of complaints, grievances, and requests for assistance

received by the Ombudsman under Subtitle E during the preceding year, as well as an

assessment of the most common difficulties encountered by claimants and potential claimants

under Subtitle E during the preceding year. Please consult the Appendix for the number and

types of comments received by the Office of the Ombudsman; numbers and types of comments

received are also listed in the section headings of this Report.

I. Legislative History of EEOICPA Prior to Part E

Before the enactment of Subtitle E in October 2004, Public Law 106-398, the Floyd D.

Spence National Defense Authorization Act for Fiscal Year 2001, authorized Parts B and D of

the Energy Employees Occupational Illness Compensation Program. The Department of

Labor (DOL) began its administration of Part B on July 31, 2001, and in the past four-andone-half years has made more than 16,000 payments of $150,000 each, totaling $1.3 billion.

2 | FIRST ANNUAL REPORT TO CONGRESS 2005
Part D was enacted in 2000, with its administration entrusted to the Department of Energy

(DOE). Under Part D, Congress directed the DOE to provide claimants with assistance in

obtaining state-based workers’ compensation. By the end of 2003, more than 23,000

applications had been filed with the Department of Energy (DOE) for benefits. Yet, after

more than two years had passed, the Government Accountability Office (GAO) found that less

than 10% of submitted claims had been fully processed and more than half had not been

considered at all (General Accounting Office, Energy Employees Compensation: Even with

Needed Improvements in Case Processing, Program Structure May Result in Inconsistent Benefit

Outcomes, Report GAO 04-515, May 28, 2004). 

Several major obstacles prevented efficient administration of Part D. First, many of the

illnesses for which compensation was claimed are characterized by latent manifestation — the

onset of symptoms occurred more than twenty (20) years after exposure to the toxic substance.

As many DOE contractors and subcontractors lost, destroyed, or simply did not maintain their

employees’ employment or medical monitoring records for adequate periods to assess possible

exposures, this made proving causation extremely difficult. Second, even in cases in which

employees or their eligible survivors were able to prove causation, it was not always possible to

find the employer. State Workers’ Compensation claims are paid by employers, not the Federal

Government, so the ultimate success of a Part D claim depended on the existence of a solvent

employer able to pay benefits. America’s nuclear weapons program began in 1939. After the

passage of sixty years, many DOE contractors were no longer in business, causing what became

known as the “willing payor” problem. Thus, even the most tenacious claimants — those able

to prove employment, exposure, illnesses and causation — at the end of the process were often

left with a hollow victory, when their awards could not be paid, because their employer had

ceased doing business. 

II. Enactment of Part E

In the wake of oversight hearings held in 2003 and 2004 before the Senate Energy & Natural

Resources Committee, and following investigations conducted by the GAO, Congress repealed

Part D and enacted Public Law 108-375, which established a new federal compensation

scheme for DOE contractor employees in Part E, to be administered by the Secretary of Labor.

Claimants who had met the eligibility criteria under Part D were thus assured of a federal

payment of compensation under the newly enacted Part E. 

Public Law 108-375 also directed the Secretary of Energy to provide all applicable records,

files and other data to the Secretary of Labor and mandated that the Department of Labor

FIRST ANNUAL REPORT TO CONGRESS 2005 | 3
issue regulations and begin administering the new Part E program within 210 days of

enactment (Public Law 108-375, § 3681(e)). The Conference Report accompanying the

Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 urged the

Secretary of Labor to appoint an Ombudsman within 120 days of enactment. (Conference

Report 108-767 accompanying H.R. 4200). On February 24, 2005, Secretary of Labor Elaine

L. Chao appointed Donald G. Shalhoub, Esq., a career government attorney, as Ombudsman

for Part E of EEOICPA 

The office created to administer EEOICPA at the Department of Labor, the Division of the

Energy Employees Occupational Illness Compensation (hereinafter, “DEEOIC” or “Program

Agency”) also met its congressional deadline — by issuing an Interim Final Rule on May 26,

2005. The DEEOIC has received more than 500 comments from the public on its rule, and is

now in the process of considering those comments.

In the fifteen months since enactment of Public Law 108-375, the DEEOIC has added

hundreds of staff to its four district offices in Jacksonville, Florida; Cleveland, Ohio; Seattle,

Washington; and Denver, Colorado, to begin to develop the 25,000 transferred claims from

the Department of Energy and to begin processing the more than 11,000 new Part E claims

filed directly with the DOL.

As of mid-December, 2005, 36,442 Part E claims were in the process of being developed by

the DEEOIC. Of this number, a total of 2,749 recommended decisions have been approved

and issued to claimants; 2,380 of those decisions have become final; over $254 million has

been paid for 1,991 cases. 

DEEOIC had also established twelve Resource Centers, strategically placed in the 48

contiguous states and Alaska1 to assist potential claimants by: supplying information about 

Part B and Part E of EEOICPA; answering questions about the process for applying; assisting

with locating medical and work records; helping claimants with medical payment

reimbursement issues; conducting initial employment verification; taking occupational histories;

and, by supplying claimants with application forms and helping claimants to complete them.

This usually involved an intake interview with the claimant, often lasting more than two hours. 

4 | FIRST ANNUAL REPORT TO CONGRESS 2005

1 The Anchorage Resource Center was operated by the Center to Protect Workers’ Rights, through a grant from DOE to 

the DOE Former Worker Screening Program. It was operated by the Laborers’ International Union, which no longer 

wanted to conduct this function. The Resource Center has been closed, and its territory has been assigned to the Hanford

Resource Center.
Many claimants have made it clear to the Office of the Ombudsman that they have relied on

the Resource Centers to help navigate the process of applying and being considered for

compensation under Part E. At the inception of Part B, DEEOIC management and its

contractor attempted to open Resource Centers in the general vicinity of those nuclear

weapons facilities which they anticipated would produce the highest numbers of claims. They

also made an effort to fill Resource Center management and staff positions with former

managers and personnel from contractors for these same nuclear facilities. As a result,

Resource Center staff often had a pre-existing personal or professional relationship with

claimants they served, or at a minimum, an institutional knowledge of the processes that were

found at those facilities, which helped them provide assistance. 

By late 2004, DEEOIC had begun approving claims for Part E claimants who had received

approvals under Part B; by early 2005, DEEOIC had scheduled Town Hall meetings to be

held across the country to explain the changes from Part D to Part E. The first round of

meetings were initially held to inform the public of the existence of Part E, to state who was

eligible, and to explain what process would be used to consider eligibility. Once the Rule was

issued in May, DEEOIC staff returned to hold a second round of meetings across the country

to explain what was in the Rule and how it affected eligibility.

DEEOIC staff were frequently joined by Resource Center staff to assist those claimants and

potential claimants who attended the meetings by providing application forms and information.

Staff from the responsible District Office would also attend these meetings to provide claimants

with information about the status of their specific claims and to answer questions from

claimants. Staff from the National Institute for Occupational Safety and Health (NIOSH)

were often in attendance at the meetings to provide information to claimants about the

radiation Dose Reconstruction process, discussed later at pages 12-13 in this Report. 

These Town Hall meetings, with staff from the DEEOIC, the responsible District Office,

Resource Center and NIOSH, were generally well-attended by many claimants who had filed

for Parts B and E (and D before its repeal). Both during and at the conclusion of these

meetings, DEEOIC staff answered questions for several hours, resulting in many claimants or

potential claimants being informed about the next steps to be taken to process or initiate their

existing or potential claims. 

FIRST ANNUAL REPORT TO CONGRESS 2005 | 5
III. The Office of the Ombudsman and This Report

Since being appointed by Secretary of Labor Elaine L. Chao in February, 2005 to serve as

Ombudsman for the EEOICPA Part E program, I have received numerous comments

regarding various aspects of the Part E program, and have spent many hours talking to

claimants and their families about their concerns. I was invited by and joined Program Agency

representatives at the Town Hall meetings held across the country with interested persons in

the Spring, Summer and Fall of 2005 to discuss the Part E Rule. Much of the data and

information presented below is based on conversations I had with claimants at those meetings,

as well as hundreds of phone calls and written and electronic correspondence, over the past ten

months. The comments this Office has received have expressed concern over several of the

general statutory provisions of Part E, the Interim Final Rule, and/or the general

administration of the program. 

For purposes of presenting this information to Congress in accordance with Public Law 

108-375, the topics in the following pages have been divided into three sections: 1) General

Statutory Provisions; 2) Regulatory and Procedure-Based Concerns; and 3) General

Administration. This Report covers the ten-month time period from February 25, 2005

through December 31, 2005.

IV. Summary of Comments Received Regarding General

Statutory Provisions of Part E

NOTE: Claimants did not limit the expression of their concerns to just those aspects of the Energy

Employees Occupational Illness Compensation Program which could be addressed administratively.

Rather, some of their complaints concerned provisions of the legislation itself, which only Congress

can resolve. The legislation-based concerns discussed in this Report are presented with the

understanding that the Program Agency has no authority to resolve any such concerns.

Claimants have contacted the Office of the Ombudsman in connection with:

■ The Ineligibility of Adult Children (72 comments)

■ Qualified Survivor’s Death Prior to Award Vitiates Claim (5 comments) 

■ The $250,000 Cap on Part E Benefits (5 comments)

■ Site Profiles (2 comments)

■ Other Definitional Issues (6 comments)

6 | FIRST ANNUAL REPORT TO CONGRESS 2005
Ineligibility of Adult Children 

Under Part E, and in contrast to Part B, adult children who survive a covered employee or the

spouse, are not eligible to receive the compensation to which their parent would have been

entitled (42 U.S.C. § 7385s-3(c) and (d)). This has resulted in a significant number of adult

children of covered employees contacting this Office to register their complaint over what they

view as the inherent inequity of defining adult children out of eligibility for Part E

compensation. Many of these adult children received Part B compensation. The fact of their

eligibility under Part B, and subsequent ineligibility under Part E, heightens their sense of

injustice. These same adult children have written and spoken eloquently of the hardship they

endured in caring for their dying parent and the personal and financial sacrifice they gladly

made to care for their terminally ill mother or father; they have related their personal stories of

how they often supported one or both parents during a work-related illness by taking time off

from their work for extended periods, to provide round-the-clock care in the final months or

years of life. They emphasize the fact that they did it for love, and with no expectation of

compensation. These adult children argue that because Part E compensation would have been

available to them had they been minors, it is all the more appropriate for them to be eligible in

light of the care they provided and the sacrifices they made. 

Their frustration is exacerbated by the fact that many of the occupational diseases which

afflicted their parent are characterized by latent manifestation — symptoms and death do not

occur until 20 years after exposure. This makes it almost impossible, in a great many cases, for

a child of a covered employee to be younger than 18 years of age when the parent dies. The

legally pure justification for their ineligibility, i.e., that they were not dependents at the time of

their parent’s death and therefore not eligible under the plain terms of the statute, does not

mitigate the injustice they perceive. 

Several adult children with historical knowledge of EEOICPA have observed that “adult

children” were ineligible under Part B, until Congress changed the statute (Public Law 107-

107, § 3151(a)(4)(A)). They question why Congress has allowed the same situation to be

repeated under E, and ask whether it will be rectified.

Qualified Survivor’s Death Prior to Award Vitiates Claim 

A subset of the “adult children” comment pertains to adult children whose parent, a covered

employee, dies after a meritorious Part E claim is filed but before the award is paid. Under

Part E, successful claimants must be living in order to receive their award of compensation, so

FIRST ANNUAL REPORT TO CONGRESS 2005 | 7
that if a surviving spouse files a claim but then dies before it is adjudicated in his or her favor,

the award is not paid. Since the surviving child does not qualify under the statutory definition

of “covered child,” he or she is not entitled to receive the benefits which were due to the

recently deceased parent. Given the long delays in the processing of Part D claims by DOE,

followed by the repeal of Part D and the 2004 amendments to EEOICPA, many spouses of

deceased employees have been waiting for long periods of time (up to four years), to be

awarded what is now Part E compensation. In several cases, the claimant’s death has occurred

shortly before the check was to be issued, heightening the anomaly of this situation. Adult

children whose living parent has a Physicians Panel approval under the old Part D, or an

accepted claim under Part E, whose parent then dies before payment can be made, are

outraged to discover that the approved compensation cannot be paid to them or to the

parent’s estate. In cases such as these, the adult children who have contacted this Office have

expressed the sentiment that their Government, through its own lack of due diligence, is

denying them what they feel has become, by then, a “vested” benefit.

The $250,000 Cap on Part E Benefits Does Not Provide

Adequate Compensation 

Under Part E, covered employees receive an award of compensation made up of two

components: 1) Wage Loss; and 2) Medical Impairment. Wage Loss is paid at the rate of

either $10,000 per year or $15,000 per year, depending on the extent of lost wages resulting

from the covered condition and terminates after a covered employee reaches normal Social

Security retirement age. Medical Impairment is paid at the rate of $2,500 for each percent of

impairment, based on the AMA’s Guides to the Evaluation of Permanent Impairment. The

maximum amount of compensation payable to covered employees for both Wage Loss and

Medical Impairment is $250,000. Several claimants have stated that they will exceed the cap

based on years of Wage Loss alone. These claimants have expressed the concern that the

$250,000 cap on Part E benefits will not fully compensate them for their total years of wage

loss, and will not compensate them at all for their permanent physical impairment. These

claimants are typically covered employees who became totally disabled as a result of their work

early in their careers and have been receiving Social Security Disability Insurance benefits 

since then.

The maximum amount that wage loss compensation can be calculated at is $15,000 per year

(42 U.S.C. § 7385s-2(a)(2)(B)(ii)). At this rate, only about 16 years of wage loss at the

maximum rate can be compensated before reaching the $250,000 cap ($15,000 x 16 years =

$240,000). As a result, any employee who becomes unable to work prior to reaching 49 years

8 | FIRST ANNUAL REPORT TO CONGRESS 2005
of age (Social Security Retirement age of 65 years prior to a 1938 birth date minus 16 years =

49), will not receive compensation commensurate with his or her years of lost wages.

In recognition of this inadequacy, claimants have recommended bifurcation of the two

components of a claim for covered employees, i.e., separation of the Wage Loss component

from the Medical Impairment component. Their rationale has been that former workers who

have years of wage loss sufficient to reach the Part E cap of $250,000, without the addition of

medical impairment compensation, should be paid — based on years of proven Social Security

disability. They have also noted that the establishment of a medical impairment is much more

time consuming, from the initial point of gathering the required medical evidence, to the final

calculation. For both reasons, they believe Wage Loss should be calculated and paid separately

from Medical Impairment ratings.

DEEOIC’s early practice had been not to allow deferral on the part of the claim which had not

been developed. Consequently, payment for Wage Loss would be delayed until Medical

Impairment could be rated, even though the Wage Loss alone may exhaust the $250,000 cap.

However, the Part E Procedure Manual has now addressed this problem, and permits

bifurcation of claims in appropriate cases (Part E Procedure Manual, Chapter E-800.10).

Definition of a “Covered Employee” is Too Narrow 

The Office of the Ombudsman has received several calls and complaints from individuals who

do not meet the statutory definition of a covered employee. Typically, these individuals have

not been employed at the covered facility, but have made onsite deliveries to the facility on a

regular basis. Such employees are excluded from coverage under Part E.

These complainants have described their employment as characterized by exposure to the same

hazards over time as those to which covered employees were exposed. At least one has

complained of being onsite at the time of a fire and explosion, with a noticeable deterioration

in his health thereafter. Some have requested that there be greater flexibility in the definition

of a covered employee under Part E to accommodate employees who were present at a site at a

time when there was a significant release of radiation. 

Site Profiles Are Inaccurate 

Site Profiles are documents developed by NIOSH, to help fill in gaps in a Part B claimant’s

radiation exposure history. Whenever reliable exposure information from a covered facility is

discovered, it is added to the Site Profile for that facility. For claimants with incomplete

FIRST ANNUAL REPORT TO CONGRESS 2005 | 9
exposure information, data from the Site Profile is used to facilitate the development of a

reliable Dose Reconstruction. For radiogenic cancer caused exclusively by exposure to

radiation, the Program Agency uses the same Dose Reconstructions prepared for Part B claims

to determine causation under Part E. Inaccuracies in Site Profiles will, therefore, affect both

Part B and Part E claims.

Claimants have contacted the Office of the Ombudsman to express their reservations about the

accuracy of Site Profiles. Covered Part E employees and families who recognize the paucity of

radiation exposure records at worksites, particularly those dating back to World War II, have

contacted this Office to express their concern about the wisdom of using Site Profiles in Dose

Reconstructions. Specifically, employees who may have moved from location to location on a

daily basis within the same facility, or on an ad hoc basis over a span of years, are concerned

that Site Profiles covering only one portion of a facility result in unacceptably compromised

Dose Reconstructions. 

Definition of Covered Spouse is Inflexible 

The Office of the Ombudsman was contacted by a claimant who had cared for a former worker

at considerable personal and financial expense for many years, while the former worker’s health

deteriorated. They eventually got married, but the former worker died less than one year after

their marriage. Hence, the widow did not meet the statutory definition for a covered spouse

under Part E. She contacted us to register her complaint about what she perceived to be the

artificiality of the one-year of marriage requirement.

V. Summary of Comments Received Regarding General

Regulatory Provisions of Part E

Claimants have contacted the Office of the Ombudsman in connection with:

■ Claimants’ Burden of Retrieving Employment and Exposure Records (30 comments)

■ The Unreliability of Dose Reconstructions (28 comments)

■ The 50% Probability of Causation Requirement (9 comments)

■ Delay of Wage Loss Calculations (24 comments)

■ Scarcity of Doctors Who Will Accept the Medical Benefits Card (10 comments)

■ Difficulty of Finding a Physician to Do a Medical Impairment Rating (23 comments)

10 | FIRST ANNUAL REPORT TO CONGRESS 2005
Claimants’ Burden of Retrieving Employment and 

Medical Exposure Records Is Too Onerous

Claimants have registered various complaints with the Office of the Ombudsman concerning

the difficulty of providing employment and medical records in support of their claims. The

complaints fit into three categories: 1) Inability to retrieve missing records that claimants

believe will strengthen their case; 2) Understanding clearly who is responsible for producing

what records; and 3) Questioning the credibility of existing records. 

A large number of complaints vocalized at Town Hall meetings, in e-mails and in phone calls,

concern the absence of employment records and medical information from the employment

sites. Claimants have pointed out that many of these facilities are no longer operational, and in

some cases, have not been for decades; and that if records were kept at all, that they were not

well-maintained or preserved. They have also expressed the same concern about the feasibility

of obtaining their own medical records, due to physicians retiring or dying, and clinics and

hospitals moving or closing. 

In cases in which dosimetry badges were worn, the readings from those badges may be

missing. In cases in which claimants have had yearly medical screenings at work, the results of

those screenings are often not available. In some cases, basic employment information about

job duties, various positions held, and toxic substance exposures in those positions, is missing.

Former workers and families have also mentioned that the frequent changing of contractors

and subcontractors at covered facilities, sometimes as frequently as year-to-year, made record

retention difficult if not impossible. Claimants have commented that changes in contractor

ownership, mergers, and acquisitions have also had an adverse effect on record retention.

Former workers and families have called to express their confusion about whether they or their

government is responsible for compiling the records needed to adjudicate a claim. Once they

understand that the claimant has the burden of producing records sufficient to sustain a viable

claim, many view the evidentiary requirement as unfair, and the burden as insurmountable. 

This is true both in cases where a radiogenic cancer is the Part E covered illness, and in some

cases where the covered illness was caused, contributed to, or aggravated by exposure to a toxic

substance. As to radiogenic cancers, claimants have expressed grave reservations over being

able to produce radiation exposure records that would be adequate to establish a Probability of

Causation of 50% or more. Claimants who are required to go through the Dose

FIRST ANNUAL REPORT TO CONGRESS 2005 | 11
Reconstruction process to prove their claims regard it as a significantly flawed process, both

because accurate records may not have been kept at the time of their employment, and because

Site Profiles, which are documents being developed by NIOSH to cover gaps in claimants’

exposure histories, do not contain complete exposure information. Similarly, those claimants

who do not have radiogenic cancers but who may have another covered illness caused by

exposure to toxic substances in the workplace, have also contacted this Office to register their

complaints over the difficulty of meeting their evidentiary burden. These claimants have

argued that producing evidence of exposures to toxic chemicals is particularly burdensome,

because unlike instances in which dosimetry badges may have been worn to measure exposure

to radiation, nuclear facilities did not monitor exposure to toxic substances. 

Some who have contacted the Office of the Ombudsman have questioned the credibility of

information collected from covered facilities. In some cases, this is due to reservations they

harbor about the truthfulness or conscientiousness of managers and supervisors at facilities who

were entrusted with collecting and maintaining exposure information. In other cases, their

reservations are based on recorded dosimetry readings showing the absence of any radiation

exposure on days during which they were aware of being exposed to releases of radiation. 

Dose Reconstructions Are Unreliable 

The Office of the Ombudsman received comments on Dose Reconstructions from applicants

who have had Dose Reconstructions done for their Part B claims and are also applying for 

Part E compensation for a radiogenic cancer. If there is no additive or synergistic effect from

toxic substance exposure, the Part B Dose Reconstructions will be used to establish causation

under Part E. These comments often focus on the confusion caused by the process used for

Dose Reconstruction and the interpretation of results, as well as the extended time required to

complete Dose Reconstructions. 

Claimants have contacted this Office to question the reliability of Dose Reconstructions.

Among the issues they have raised is the reliability of Dose Reconstructions performed for

exposures which occurred in the 1940’s and 1950’s, when dosimetry readings were not taken,

or were taken only when radiation levels rose above a threshold. They stated that these

readings failed to capture the cumulative effect of radiation exposure on target organs.

Similarly, claimants have also questioned the accuracy of assessing the impact of radiation on an

internal organ, while simultaneously being exposed to other toxic chemicals which might have

had a synergistic effect on absorption of radiation. Several claimants have referenced the

relatively recent National Academy of Sciences study, which suggests that a linear model, rather

12 | FIRST ANNUAL REPORT TO CONGRESS 2005
than a threshold model, be used for demonstrating the effects of radiation (Health Risks From

Exposure to Low Levels of Ionizing Radiation, Committee to Assess Health Risks from Exposure

to Low Levels of Ionizing Radiation, National Research Council, 2005). Claimants have

suggested that this model be developed as a basis for determining PoC. 

Furthermore, many claimants have expressed confusion about the purpose of the 60-day waiver

period at the end of the Dose Reconstruction process. At the time claimants are given their

draft Dose Reconstruction Report by NIOSH, they are notified that they have 60 days to

certify that they have completed providing information and that the record for Dose

Reconstruction should be closed. These claimants are uncertain about how agreeing to the

waiver affects the adjudication of their claim by DOL.

Finally, claimants are uncertain about whether there are any available means for challenging

either the methodology or the results of Dose Reconstructions, and if so, how they can be

appealed. Claimants have received correspondence stating that 20 C.F.R. § 30.318(b) of the

Rule prohibits challenges to Dose Reconstruction results. This stated prohibition has left

claimants wondering how they can obtain reconsideration of a Dose Reconstruction and the

grounds for requesting reconsideration. Claimants have also asked us for guidance when

attempting to appeal Dose Reconstruction results as to whether new evidence should be

presented to the NIOSH officials who conducted the Dose Reconstruction or whether it

should be presented to the Final Adjudication Board. 

50% Probability of Causation Is Too High 

Under § 7385s-4(c)(1) of EEOICPA, a DOE contractor employee is determined to have

contracted a covered illness through exposure at a DOE facility if —

(A) it is 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 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 DOE facility.

DOL’s Interim Final Rule states that DOL will use HHS’ regulatory guidelines at 42 C.F.R.

Part 81 (Guidelines for Determining Probability of Causation under the Energy Employees

Occupational Illness Compensation Program Act of 2000) in determining whether “it is ‘at

least as likely as not’ that exposure to radiation at a DOE facility or RECA section 5 facility, as

appropriate, was a significant factor in aggravating, contributing to, or causing the employee’s

FIRST ANNUAL REPORT TO CONGRESS 2005 | 13
radiogenic cancer claimed under Part E.” DOL further states, “For cancer claims under Part

E, if the PoC is less than 50% and the claimant alleges that the employee was exposed to

additional toxic substances, OWCP will determine if the claim is otherwise compensable

pursuant to § 30.230(d) of this part.” (See 20 C.F.R. § 30.213). In other words, a PoC of

50% or greater is required in order for DOL to find that exposure to radiation alone at a DOE

or RECA facility caused or contributed to a radiogenic cancer. DOL’s Preamble to the Interim

Final Rule states the Agency’s reasons for deciding to utilize the 50% or higher PoC

requirement for radiogenic cancers in Part E as well as Part B. (70 Fed. Reg. 33590, 33593-

594 (June 8, 2005)). 

Many claimants have contacted the Office of the Ombudsman to complain generally that the

50% or greater PoC requirement for radiogenic cancers in Part E is too high and/or, more

specifically, that it is contrary to the statutory language directing the agency to accept Part E

claims if, among other things, it is “at least as likely as not that exposure to a toxic substance

was a significant factor in aggravating, contributing to, or causing the illness” (emphasis added)

(42 U.S.C. § 7385s-4(c)(1)(A)). 

The individuals who question the regulation’s consistency with the statute maintain that the

“significant factor” language in Part E indicates that Congress intended the Agency to use a

lower threshold than in Part B, which includes the “at least as likely as not” language but not

the “significant factor” clause, and for which the Agency has established a PoC percentage of

50% or greater. The argument is that by using the same percentage in E as in B, the agency

has given no meaning to the additional “significant factor” clause. These individuals suggest

that the “significant factor” language was added by Congress to reflect a lower standard of

causation utilized in Part D, and that Congress intended the Agency to use a 10%-40%

threshold in Part E rather than 50%. 

The Medical Benefits Card Is Not Widely Accepted 

Claimants who have been determined to have a covered condition under Part E are issued a

Medical Benefits Card. This card provides health insurance coverage for treatment related to

the covered illness. The cost of their treatment is billed directly to the DOL, provided the

physician will accept the card. Payment for medical treatment for covered illnesses, regardless

of the amount, is not charged against the $250,000 maximum for Part E benefits. While

claimants have expressed their appreciation for the coverage, they have also expressed several

related concerns. For instance, claimants do not always understand what benefits are available

14 | FIRST ANNUAL REPORT TO CONGRESS 2005
to them, where to turn to find an explanation of the card’s benefits, how to use it, and where

they can find a physician who will accept the card in payment for services. In short, there is no

readily available information on benefits and no list of approved providers to which claimants

can refer. Many claimants have also expressed confusion over whether the covered Part E

employee is responsible for ensuring direct payment to providers or in getting reimbursed for

services the employees have paid for themselves. While DEEOIC has much of this information

in their Rule and the Part E Procedure Manual, covered employees have had a difficult time

finding it in those documents, and are unaccustomed to looking for medical coverage

information by searching through federal regulations and manuals. 

Claimants who have had some experience with managed care plans and who are familiar with

the level of control exerted over physicians and providers they have access to under these plans,

believe that they should contact the Department of Labor before seeking specific treatment to

ensure that the particular treatment is covered. However, claimants have found it difficult to

get answers to their questions. Covered Part E employees have contacted the Office of the

Ombudsman to find out how to locate approved providers. 

Some claimants have recommended that the Agency establish a toll-free number devoted

exclusively to providing answers to insurance-related questions; these claimants have suggested

that such a service would be very beneficial to those who have Medical Benefits Cards. They

have stated that this would be beneficial to Part E claimants who have questions about what

benefits are covered and which providers they can use or simply to be able to get forms and

paperwork. Such a toll-free line would also afford treating physicians and other providers a

means to find out more about the medical benefits program, such as how to submit charges for

services rendered, and a schedule of payment amounts for certain procedures. 

Wage Loss Calculations Are Unreasonably Delayed 

The first prong of a compensation award to a covered employee is a Wage Loss calculation.

The calculation is based on the extent of wage loss the covered employee experiences, and paid

at the rate of either $10,000 or $15,000 for each covered year until the covered employee

reaches normal Social Security retirement age, up to a maximum of $250,000. As previously

stated, calculations for Wage Loss claims of living employees were deferred until the interim

final rule was published. This has caused covered employees to begin inquiring when they

could expect to receive compensation. The Program Agency developed a Wage Loss

calculation formula during the Summer, and began training Claims Examiners on its

FIRST ANNUAL REPORT TO CONGRESS 2005 | 15
implementation shortly thereafter. No Wage Loss awards have been paid to living employees as

of December 31, 2005, prompting claimants to call this Office to complain about the amount

of time which has passed since Claims Examiners began telling them, at first, that the Agency

was in the process of developing a Wage Loss calculation formula, and next, that the Claims

Examiners were in training to learn how to implement this formula. Claimants stated having

frequently been given this explanation for delays from early Summer through late Fall. In

addition, claimants have also indicated that they have had to request a Wage Loss calculation

and that it was not being done automatically. Claimants have also stated that Wage Loss is

often an inadequate means for compensation in cases in which there are long latency periods,

since, in addition to being unable to work, they were also accumulating substantial medical

expenses. For cases in which claimants became unable to work early in their careers, claimants

have told us that there is often no need to delay payment to do an impairment rating because

cumulative years of Wage Loss alone will exceed the $250,000 cap.

Difficulty of Finding a Physician to Do a 

Medical Impairment Rating 

The second prong of a compensation award to a covered employee is compensation for a

Medical Impairment. Medical Impairment compensation is paid at the rate of $2,500 for each

percentage point of permanent impairment, as determined by the AMA’s Guides to the

Evaluation of Permanent Impairment. A critical issue raised by claimants in correspondence

with the Office of the Ombudsman is the inability to find physicians who meet the criteria set

by the DEEOIC who qualify to do an impairment rating. These criteria are spelled out both

in the Rule and in the Procedure Manual (20 C.F.R. § 30.901(b), DEEOIC Procedure

Manual E-900(4)(b)). The Rule requires the physician to be board-certified in the specialty of

the covered condition. The Procedure Manual requires that the physician also meet the

requirements of certification for the American Board of Independent Medical Examiners

and/or the American Academy of Disability Evaluating Physicians. 

When claimants had approached a physician who specialized in their covered illness and

requested that he perform an impairment rating, the physician responded either that he did not

meet the criteria or was not interested in performing an impairment rating.

Claimants have pointed out that a search of the ABIME and AADEP websites for boardcertified physicians who specialize in occupational conditions common to nuclear weapons

facilities’ employees — for example, pulmonologists — reveals few or no members. 

Though the Rule and the Procedure Manual for Part E offer the claimant the option of finding

16 | FIRST ANNUAL REPORT TO CONGRESS 2005
a physician to do an impairment rating, or of having the DEEOIC select a physician, claimants

have contacted this Office to suggest changing the criteria so their own physician or specialist

would be allowed to perform an impairment rating. Claimants argue that such a change would

be sensible for at least two reasons: first, the change would lead to performance of the most

accurate impairment rating due to the treating physician’s familiarity with the case; and,

second, would likely produce savings for the program given the inefficiencies of having a

physician who has never seen a claimant do the impairment rating, and the likelihood of the

personal physician being within a reasonable geographical proximity, so as not to have the

claimant incur travel costs. If this change is not made, claimants have recommended that each

District Office develop a list of qualified physicians whose impairment ratings will be acceptable

to the Program Agency. 

It is often only after learning and then communicating the criteria to physicians for performing

impairment ratings that they discover the stringency of the criteria and the need to continue

searching for a physician who can meet the program’s requirements. As with other medical

care provider shortages, claimants have emphasized that the difficulty in locating a physician

who meets the criteria for conducting medical impairment ratings is exacerbated in more rural,

remote areas of the country. These are locations that frequently suffer from shortages of

medical care providers of all types regardless of credentials, and they also happen to be the

areas where the nuclear weapons facilities that exposed workers to radiation and toxic

substances were and are located.

In cases where claimants cannot find a qualified physician to perform an impairment rating,

and opt to use one selected by the Program Agency, they question whether the impairment

rating the physician renders can be challenged by the introduction of new evidence at any stage

in the review of a claim before a final decision is issued. In other words, does their acceptance

of the physician selected by the Program Agency preclude them from objecting to the rating he

or she places on their impairment. Though claimants are not routinely supplied with a report

of how their impairment rating was calculated, the Procedure Manual states that evidence of

probative value can be submitted to the Final Adjudication Branch for consideration. 

Some claimants have questioned the reasonableness of requiring that a medical condition be at

“maximum medical improvement” as stated in the Rule before an impairment rating can be

performed (20 C.F.R. § 30.911(a)). They have stated that there is a broad range of

impairment levels that stretch between reaching maximum medical improvement and being

terminally ill. Claimants believe that many of the illnesses caused by toxic substance exposures

FIRST ANNUAL REPORT TO CONGRESS 2005 | 17
are subject to continuous progression, and, therefore, may never be deemed to have reached

maximum medical improvement. 

VI. Summary of Comments Received Regarding General

Administration of Part E

Claimants have contacted the Office of the Ombudsman in connection with:

■ Documents From District Offices Concerning Adjudication of Claims Are Often

Confusing (53 comments)

■ The Delays Attendant to the Processing of Claims (48 comments)

■ The Frequent Changes in Claims Examiners (10 comments)

■ Claims Examiners Not Returning Calls (23 comments)

■ The Program Agency Does Not Provide Enough Explanatory Materials; Outreach

Efforts Need To Be Preceded By Explanatory Information (4 comments)

Documents From District Offices Concerning Adjudication of

Claims Are Often Confusing

Part B claimants frequently contact this Office for assistance, though the services of the Office

of the Ombudsman are statutorily authorized for use by Part E claimants only. Part B

claimants often do not discern a difference between Parts B and E, finding the two programs

to be indistinguishable. Claimants have expressed their concern about not being sure whether

they have a filed a Part B and/or a Part E claim. At Town Hall meetings, DEEOIC staff have

noted that potential claimants should simply fill out a claim form and let the District Office

decide if the claim should be considered under Part B, Part E, or both parts. This has led to

some confusion among claimants, as to what they are applying for, and how to monitor the

status of their claim. 

For instance, claimants with claims pending under both Parts B and E have noted that when

they receive written correspondence from District Offices, it is not always clear whether the

correspondence pertains to Part B or Part E. Similarly, Recommended Decisions do not clearly

state whether they are being rendered under Part B or E, resulting in confusion among

claimants who have pending claims under both Parts. Furthermore, when a final decision is

made on a Part B claim, applicants have noted that the District Office does not always inform

18 | FIRST ANNUAL REPORT TO CONGRESS 2005
those who are eligible for Part E of the potential for applying. Others have expressed surprise

upon being notified in writing that they have been enrolled in Part E, of which they knew

nothing before getting the correspondence, and knowing little more than the fact of their

enrollment after receiving the correspondence.

In several cases, this confusion has had a deleterious effect on the ability of the Office of the

Ombudsman to provide effective assistance to Part E claimants who are uncertain as to

whether they are claiming under Part B or E. Especially in cases involving Dose

Reconstructions under Part B, where the potential exists for proving a Part E claim based in

whole or in part on the Part B Dose Reconstruction, the inability to get information from

DEEOIC hamstrings the ability of this Office to provide meaningful assistance.

Claimants are also confused by technical parts of correspondence from the District Office. 

In particular, time limits are one of the leading sources of confusion to claimants. Most

confusing is the 60-day limitations period for challenging Recommended Decisions, and its

accompanying waiver provisions. The waiver provision affords claimants who are satisfied with

the compensation they have been awarded in their Recommended Decision the opportunity to

forego their appeal rights, and not wait 60 days before receiving payment. The confusion

arises because the waiver form does not clearly state whether the claimant is waiving his rights

under Part B, waiving his rights to future benefits under Part E, or whether he can waive the

60-day waiting period for illnesses found to be covered and preserve appeal rights for

conditions not accepted for coverage. Some claimants have noted that the 60-day waiver

provision should be rewritten or more fully explained so that they understand what they are

waiving and what ramifications that action has on the future processing of their case.

Claimants have also stated to this Office that certain provisions in Recommended Decisions,

particularly those dealing with the kind of specific information they must provide in order to

appeal, cannot be fully understood without help from a lawyer. Claimants have noted that

many of the citations are to statutory or regulatory sources, and cannot be easily understood;

they have suggested that the cited statutory or regulatory text be included. 

The Processing of Claims Has and Will Take Too Much Time

One of the most common complaints the Office of the Ombudsman has received regarding

Part E concerns the amount of time it takes to process a claim. Claimants who originally filed

with the Department of Energy under Part D are frustrated at the years that have gone by

without their claim being adjudicated. With the repeal of Part D and the assignment for

FIRST ANNUAL REPORT TO CONGRESS 2005 | 19
administering the new Part E to the Department of Labor, some claimants now think they will

have to wait several more years for their claim to be adjudicated as a result of the transfer. This

has resulted in the perception among some claimants who contact this Office that the agency is

delaying the payment of benefits in an effort to “wait them out,” i.e., wait for them to die.

This perception has been keenly felt by covered employees, due to the Program Agency’s

decision to compensate eligible survivors under Part E first, with living, former employees 

to follow. 

Wage Loss calculations and Medical Impairment ratings are the two components of a Part E

compensation award for living employees. Many covered employees have been anxiously

awaiting Wage Loss determinations under Part E. Their requests for the status of this

calculation were first met by assertions from Claims Examiners that they were waiting for the

National Office to develop a formula, and next, that they are being trained on its

implementation. These claimants have complained to us that the longer the “in-training”

explanation is used, the less credibility it conveys.

Much of the same frustration applies to delays in calculating Medical Impairments. As a result,

claimants have urged bifurcation of their claims. That is, if their cases have a completed Wage

Loss calculation but not a Medical Impairment rating, then a partial disbursement should be

made with the balance to follow. This is especially significant in cases for which there are no

eligible survivors once the covered employee dies. 

Claims Examiners Do Not Always Return Calls/Assignment of

Claim Examiners Frequently Changes 

Beyond concerns about the length of time taken to process claims, claimants have also been

frustrated in their routine attempts to contact their Claims Examiner in District Offices. A

significant number of claimants have contacted this Office to complain that their calls are not

always being returned. When calls are returned, it is often by a different Claims Examiner,

only recently assigned to the claim, who has no in-depth familiarity with the file. One claimant

recently told this Office that she had counted 12 Claims Examiners with whom she has worked

over the past five years, which, to be fair, would also include those assigned to her Part B

claim. While this may be an extreme case, it has raised concern in the minds of two claimants

who have contacted this Office about the effect the recurrent reassignment of Claims

Examiners has on the confidentiality of a claimant’s medical information.

20 | FIRST ANNUAL REPORT TO CONGRESS 2005
Though recognizing and acknowledging that staff in District Offices began work on October

28, 2004 with 25,000 claims inherited from the Department of Energy and have continued to

receive a growing number of Part E applications since then, claimants often draw the inference

that the assignment of a new Claims Examiner means: “I am starting over from scratch.” This

sentiment is particularly strong among those claimants who initially filed under Part D with the

Department of Energy, in many cases as far back as 2001.

The Program Agency Does Not Provide Enough Explanatory

Materials; Outreach Efforts Need To Be Preceded By

Explanatory Information

Claimants have noted that their burden of establishing causation would be facilitated by

providing a step-by-step procedure for their personal physician to follow in providing useful

information to the District Office. Treating physicians in areas where covered facilities are

located are generally not well-versed in how to relate workplace exposures to causation of

illness. In one instance in which the physician was attempting to give a diagnosis that

established causation, he reported that it was “not unlikely” that the workplace exposure

caused the condition, instead of “at least as likely as not,” which are the words of the statute.

Claimants have stated that this step-by-step process would also be helpful to their physicians if

an impairment rating is needed. Several claimants have indicated that this would avoid

unnecessary delays in the processing or consideration of claims in cases where District Offices

request claimants to provide more medical information to establish causation.

Some claimants have recommended that a package of materials be prepared that could be used

as an introduction to the EEOICPA program with information as to who is covered, how to

apply, and how claims are processed. Similarly, claimants are encountering great difficulty in

finding qualified physicians to perform Medical Impairment ratings, as discussed in this Report

on pages 16-17. Likewise, claimants whose personal physicians are unwilling to accept the

Medical Benefits Card are upset to find that there is not a general list of accepted providers

available that they can consult to find a physician who will accept the card.

The Program Agency has conducted Town Hall meetings in various regions of the country —

at times and venues to ensure that all claimants and potential claimants are afforded an

opportunity to learn about the new Part E and changes that have been made to its

administration in the months after enactment of the law; claimants have expressed their

appreciation to this Office for that outreach.

FIRST ANNUAL REPORT TO CONGRESS 2005 | 21
Conversely, claimants have also noted the complexity of the statute in comments made to this

Office at these same Town Hall meetings. Claimants have expressed appreciation for the

efforts of Program Agency staff to inform the Town Hall meeting audiences of all of the

intricacies of Part E, and have acknowledged the difficulty of trying to give applicable

information to all those in attendance. At the same time, claimants feel overwhelmed by the

amount of information presented to them at the Town Hall meetings. Many told the Office of

the Ombudsman that the presentations were too technical and unhelpful; a few walked out

shortly after the start of these meetings after reaching the same conclusion.

Claimants have recommended that providing them with an introductory package of materials

to review prior to attending a Town Hall meeting would be more advantageous than

distribution of FAQ’s at the meeting and would help counter their feeling of being

overwhelmed by technical information. Some felt they had to digest too much information at

the meeting, and that, as a result, they were missing some key points.

Others expressed a need for more attention to be paid by the DEEOIC staff to their individual

claims. While these claimants appreciated the efforts of the DEEOIC staff in staging the Town

Hall meetings, they also felt that there was a point beyond which the broader meetings were

less effective, and that more interactive meetings, such as Open Houses at District Offices,

would be more beneficial.

Resource Centers Have Been Helpful

One of the Ombudsman’s specified duties is to make recommendations to the Secretary of

Labor regarding the location of Resource Centers. (42 U.S.C. § 7385s-15(c)(2)). Prior to my

appointment in February 2005, Resource Centers had been established in eleven key locations:

1) Oak Ridge, Tennessee; 2) Portsmouth, Ohio; 3) Anchorage, Alaska2

; 4) Denver, Colorado;

5) Idaho Falls, Idaho; 6) Paducah, Kentucky; 7) Las Vegas, Nevada; 8) Espanola, New Mexico;

9) Savannah River, South Carolina; 10) Hanford, Washington; and 11) Livermore, California.

It was the sense of the Congress, stated in Public Law 108-375, that a Resource Center was

needed in Western New York or Western Pennsylvania, to provide assistance to the significant

number of claimants in that region. This Resource Center was established in Amherst, New

22 | FIRST ANNUAL REPORT TO CONGRESS 2005

2 The Anchorage Resource Center was operated by the Center to Protect Workers’ Rights, through a grant from DOE to 

the DOE Former Worker Screening Program. It was operated by the Laborers’ International Union, which no longer 

wanted to conduct this function. The Resource Center has been closed, and its territory has been assigned to the Hanford

Resource Center.
York on July 25, 2005. The number and location of Resource Centers, at this time, seems

adequate and appropriate to serve the Part E claimant population.

This Office has received very favorable comments about the helpfulness of staff at the Resource

Centers. Resource Center staff were actively involved at Town Hall meetings across the

country, providing information, assistance, and claims acceptance. It should also be noted that

the Program Agency was scrupulous in its effort to recruit personnel who had been formerly

employed at the covered nuclear facility to staff its Resource Centers. Staffing Resource

Centers with these personnel provided two advantages: first, Resource Center staff had preexisting personal or professional relationships with many of the claimants; and second,

Resource Center staff usually had an institutional knowledge of the facilities’ processes, which

helped them guide the claimant through the Part E process. This arrangement appears to be a

mutually beneficial one, for both claimants and the Program Agency. 

Claimants have reported to this Office that staff from Resource Centers have made regular

lengthy trips to see claimants in person to help them complete claim forms with supporting

documentation. Overall, they believe the establishment of Resource Centers and staffing

decisions there have resulted in high-quality, effective customer service.

FIRST ANNUAL REPORT TO CONGRESS 2005 | 23
ASSESSMENT OF COMMON D IFF ICULT IES 

AND CONCLUSION

Congress has directed that the Annual Report contain “an assessment of the most common

difficulties encountered by claimants and potential claimants under Part E (42 U.S.C. § 7385s15(e)(2)(B)). In addition, the legislative history to Part E provides that “[t]he conferees also

expect the Ombudsman to make recommendations the Ombudsman considers appropriate for

the improvement of the practices of DOL in administering subtitle E of EEOICPA.” (Ronald

W. Reagan National Defense Authorization Act for Fiscal Year 2005 Conference Report to

accompany H.R. 4200, H.R. Rep. No. 108-767 (2004)). The assessment required by

Congress, as well as recommendations to improve the administration of Part E, as required by

the conferees, follows.

All of the comments and concerns discussed in this Report have been communicated by

telephone, telefax, e-mails and letters to this Office, as well as in personal conversations I have

had with claimants at 35 Town Hall meetings. A common thread in these comments is general

confusion regarding a complex statutory program. I would encourage the EEOICPA program

to continue the outreach efforts it has been conducting across the country, as I have witnessed

first-hand the success the Program has had in reaching claimants and providing relevant

information. I would suggest, however, that the EEOICPA program discontinue its Town

Hall format, and instead provide well-publicized Open Houses at District Offices and Resource

Centers across the country, which would permit claimants to personally meet agency personnel

and discuss the status of their individual claims. 

I would also encourage the EEOICPA program to focus on improving communications

between claimants and the District Offices. It appears that much of the information being

imparted by the District Offices is not being clearly understood by claimants, who subsequently

call this Office in an attempt to make sense out of the answers they have received. After this

initial year of administering the Part E program, the Program Agency might want to consider

ways in which designated and knowledgeable District Office personnel are freed up to focus on

providing clear and consistent explanations of the program, including explanations of the

procedures for assignment of Claims Examiners and case handling. In this way, claimants will

understand not only the status of their claim, but how their claim will be handled. It has been

my experience that many claimants merely want to know generally what to expect in the

process, rather than to have a specific question about the program answered.

24 | FIRST ANNUAL REPORT TO CONGRESS 2005
Another matter related to communications with District Offices deals in general with customer

service. Claimants who are sick and elderly, and anxious for their claims to be adjudicated, feel

there is no corresponding sense of urgency in their Claims Examiners. This is manifested by

delays in response to, or failure to return, telephone calls, as well as the recurring reassignment

of Claims Examiners. While the main responsibility of a Claims Examiner should be to process

claims, a fair balance needs to be struck between this responsibility and their customer 

service role. 

The Program Agency is embarking on its second year of administering EEOICPA Part E

compensation. This will mark the start of delivery of benefits to living employees, whose award

will be comprised of a Wage Loss and Medical Impairment component. I would urge the

Agency to send out a mailing to potentially eligible claimants, outlining the sequence of when

this next category of claims will be developed, in very general terms. Many of the requests for

assistance this Office receives are pleas for very general information. Claimants may not be

satisfied with the proposed timeline, but they will at least know what to anticipate.

Finally, I would encourage the Program Agency to publish a Final Rule on the EEOICPA

program as quickly as possible. As explained in this Report, claimants have expressed concern

over many aspects of this program. The Agency’s final statement on the administration of its

program in the form of a Final Rule will bring conclusion for many of these individuals on

what has been a long process. Publication of a Final Rule will also permit the EEOICPA

program to proceed in a consistent manner with the handling of the many Part E claims

currently pending before it.

In the coming year, I look forward to having the opportunity to work cooperatively and

collegially with the Program Agency, within the bounds of my independence, to improve the

delivery of Part E compensation to eligible recipients, in the timely and uniform manner

envisioned by Congress.

FIRST ANNUAL REPORT TO CONGRESS 2005 | 25
26 | FIRST ANNUAL REPORT TO CONGRESS 2005

STATUTORY

Ineligibility of Adult Children 72

Illnesses From “Take Home Toxins” Not Compensable 10

Definition of Covered Illness 8

Qualified Survivor’s Death Prior to Award Vitiates Claim 5

$250,000 Cap on Benefits 5

Definition of Covered Employee 5

Site Profiles 2

Miscellaneous Statutory Concerns 6

REGULATORY

Burden of Retrieving Employment and Exposure Records 30

Unreliability of Dose Reconstruction 28

Delays in Wage Loss Compensation 24

Difficulty in Getting a Medical Impairment Rating 23

Problems with Use of Medical Benefits Card 10

50% PoC Requirement Is Too High 9

Confusion Between Reconsideration and Reopening 2

Miscellaneous Regulatory Concerns 14

General Subject Area Number of 

Comments*

Appendix A

Compilation of Comments by Subject/Issue in 

The Office of the Ombudsman from 

February 24, 2005 to December 31, 2005
FIRST ANNUAL REPORT TO CONGRESS 2005 | 27

General Subject Area Number of 

Comments*

* The statistics captured in this chart represent comments made by 616 claimants and potential claimants. The same person

may have made more than one comment in a single contact with this Office. In these cases, separate comments were counted

individually. In addition, many of these same comments were made to the Program Agency at the numerous Part E Town

Hall meetings it held across the country. I attended 39 of these meetings personally, and had informal discussions with

approximately 350 claimants and potential claimants at these meetings. These individuals requested general information and

assistance regarding Part E matters. Accordingly, the number of these contacts (350) is reflected in the category of Requests

for Assistance/Information.

ADMINISTRATIVE

Documents Sent From District Offices Are Confusing 53

Processing of Claims Takes Too Long 48

Claims Examiners Don’t Always Return Calls 23

Changes in Assignment of Claims Examiners 10

District Offices Do Not Provide Enough Explanatory Materials/

Outreach Efforts Need To Be Preceded by Explanatory Information 4

Miscellaneous Administrative Concerns 10

REQUESTS FOR ASSISTANCE/INFORMATION 428

TOTAL = 829

Compilation of Comments by Subject/Issue in 

The Office of the Ombudsman from 

February 24, 2005 to December 31, 2005
28 | FIRST ANNUAL REPORT TO CONGRESS 2005

Appendix B

U.S. Department of Labor Assistant Secretary for

Employment Standards

Washington, D.C. 20210
FIRST ANNUAL REPORT TO CONGRESS 2005 | 29
30 | FIRST ANNUAL REPORT TO CONGRESS 2005
FIRST ANNUAL REPORT TO CONGRESS 2005 | 31
32 | FIRST ANNUAL REPORT TO CONGRESS 2005
FIRST ANNUAL REPORT TO CONGRESS 2005 | 33

Notes
34 | FIRST ANNUAL REPORT TO CONGRESS 2005

Notes
Energy Employees Occupational Illness Compensation Program

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