Photo on the cover: Savannah River Site; SRS at 60—Glove boxes. Glove boxes are sealed containers that are designed 

to allow manipulation of objects where a separate atmosphere is desired. Gloves built into the sides of the glove boxes 

are arranged so that the user can place his or her hands into them and perform tasks inside the box without breaking 

containment so the user can work with hazardous substances, such as radioactive materials. Part, or all, of the box is 

usually transparent to allow the user to see the material he or she is working with. Photo courtesy of energy.gov. 
TABLE OF CONTENTS

Office of the Ombudsman | ANNUAL REPORT TO CONGRESS i

Preface to the Report ii

I. INTRODUCTION 1

II. EXECUTIVE SUMMARY 6

III. TABLES 9

Table 1—Complaints, Grievances, and Requests for Assistance 10

Table 2—Complaints by Facility 11

IV. ASSESSMENT OF COMMON DIFFICULTIES 12

Chapter 1—Issues with the Statute 12

Chapter 2—Lack of Awareness of the EEOICPA Program 16

Chapter 3—Claimants Do Not Understand the EEOICPA 20

Chapter 4—Difficulties Obtaining Assistance 24

Chapter 5— Difficulties Obtaining Representation and Locating 29 

Physicians

Chapter 6—Difficulties Locating Evidence 31

Chapter 7—Difficulties with the Weighing of Evidence 36

Chapter 8—Difficulties with the Adjudication Process 43

Chapter 9—Interactions with DEEOIC 51

Chapter 10— Circumstances Confronting Claimants Not 58

Adequately Addressed by the Program

V. SUMMARY OF THE ISSUES AND DIFFICULTIES 60 

ENCOUNTERED IN 2017

Appendix 1—Acronyms (Abbreviations) Used in this Report 63

Appendix 2—Common Misconceptions about the EEOICPA Program 65

Appendix 3—DOL’s Response to the 2015 Annual Report to Congress 66
ii

PREFACE TO THE REPORT

In this Annual Report to Congress the Ombudsman for the Energy Employees Occupational Illness 

Compensation Program sets forth the complaints, grievances, and requests for assistance that we received 

during calendar year 2017, and provides an assessment of the most common difficulties encountered by 

claimants and potential claimants in that year. However, before addressing the complaints, grievances 

and requests for assistance that we received in 2017, we would like to acknowledge some of the efforts 

undertaken by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) in calendar 

year 2017 to assist claimants in filing and processing claims under the Energy Employees Occupational 

Illness Compensation Program Act (EEOICPA):

• In October 2016, DEEOIC announced the launching of a new Public Reading Room on its website. As 

of January 1, 2017, the records posted on this website included the Department of Labor’s (DOL’s) 

Response to the EEOICPA Ombudsman’s 2014 Annual Report to Congress; EEOICPA Actuarial Reports 

for FY 2008–2015; and DEEOIC Staff Training Materials. Other materials posted on this website include: 

Accountability Review Reports; Contract Medical Consultant/Second Opinion Audits; and Program 

Summary Statistics.

• DEEOIC also announced the creation of a centralized medical bill processing unit staffed by medical 

benefits examiners (MBEs) who specialize in the review and adjudication of home health care and other 

ancillary medical benefits requests. The MBEs are located within various District Offices but will operate 

under the direction of the National Office.

• Teleconferences were held on May 23–24, 2017, and September 19–20, 2017, where medical providers 

were able to learn more about medical benefits and medical billing under the EEOICPA. 

• DEEOIC’s first authorized representative workshop was held on December 6–7, 2017 in Jacksonville, Florida. 

DEEOIC developed this hands-on workshop in order to provide information tailored to the specific needs 

of authorized representatives and attorneys who represent claimants under the EEOICPA. There were 

several sessions over two days, presented by DEEOIC claims supervisors, Resource Center (RC) staff, 

and representatives from National Institute for Occupational Safety and Health (NIOSH), Department of 

Energy (DOE) and this Office.

• The following workshops were held:

› Town Hall Meetings in Central California on March 15 and 16, 2017; 

› A Town Hall Meeting in Metropolis, Illinois on June 14, 2017;

› Medical Benefits Meeting and a Traveling Resource Center in Shiprock, New Mexico on August 22, 2017; 

› Medical Benefits Meeting and a Traveling Resource Center in Monticello, Utah on August 23, 2017; 

› An Open House and Traveling Resource Center in Albuquerque, New Mexico on September 7, 2017; and,

› A Traveling Resource Center in Santa Fe, New Mexico on November 15, 2017. 

In addition, we wish to acknowledge the many instances throughout the year where members of the 

DEEOIC staff assisted claimants and/or our office in resolving matters brought to their attention. 


1

I. INTRODUCTION

A. An Overview of the Energy Employees Occupational Illness Compensation 

Program Act (the EEOICPA)

On October 30, 2000, Congress enacted the EEOICPA as Title XXXVI of Public Law 106-398, the Floyd D. 

Spence National Defense Authorization Act for Fiscal Year 2001. Among the findings made in enacting this 

program Congress recognized that:

1. Since World War II, Federal nuclear activities have been explicitly recognized under Federal law as activities 

that are ultra-hazardous. Nuclear weapon production and testing have involved unique dangers, including 

potential catastrophic nuclear accidents that private insurance carriers have not covered and recurring 

exposures to radioactive substances and beryllium that, even in small amounts, can cause medical harm.

2. Since the inception of the nuclear weapons program and for several decades afterwards, a large number 

of nuclear weapons workers at sites of the Department of Energy and at sites of vendors who supplied 

the Cold War effort were put at risk without their knowledge and consent for reasons that, documents 

reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay.

3. Many previously secret records have documented unmonitored exposures to radiation and beryllium 

and continuing problems at these sites across the Nation, at which the Department of Energy and its 

predecessor agencies have been, since World War II, self-regulating with respect to nuclear safety and 

occupational safety and health. No other hazardous Federal activity has been permitted to be carried out 

under such sweeping powers of self-regulation.

See 42 U.S.C. § 7384(a)(1), (2), and (3). 

The purpose of the EEOICPA is “...to provide for timely, uniform, and adequate compensation of covered 

employees, and where applicable, survivors of such employees, suffering from illnesses incurred by such 

employees in the performance of duty for the Department of Energy and certain of its contractors and 

subcontractors.” See 42 U.S.C. § 7384d(b). As originally enacted in October 2000, the EEOICPA contained 

two parts, Part B and Part D.

Part B, which is administered by the Department of Labor (DOL), provides the following compensation 

and benefits:

1. Lump-sum payment of $150,000 and the payment of medical expenses (for the covered illness 

starting as of the date of filing) for:

a. Employees of the Department of Energy, as well as its contractors, subcontractors, and 

employees of atomic weapons employers (AWEs) with radiation- induced cancer if: (1) the 

employee developed cancer after working at a covered facility; and (2) the cancer is “at least as 

likely as not” related to covered employment.1

1

 An atomic weapons employer is an entity, other than the United States, that: (A) processed or produced, for use by the United States, material that 

emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and (B) is designated by the Secretary 

of Energy as an atomic weapons employer for purposes of the compensation program [EEOICPA]. See 42 U.S.C. § 7384l(4).
2

On October 30, 2000, Congress enacted the EEOICPA as Title XXXVI of Public Law 106-398, the Floyd D. 

Spence National Defense Authorization Act for Fiscal Year 2001. Among the findings made in enacting this 

program Congress recognized that:

1. Since World War II, Federal nuclear activities have been explicitly recognized under Federal law as activities 

that are ultra-hazardous. Nuclear weapon production and testing have involved unique dangers, including 

potential catastrophic nuclear accidents that private insurance carriers have not covered and recurring 

exposures to radioactive substances and beryllium that, even in small amounts, can cause medical harm.

2. Since the inception of the nuclear weapons program and for several decades afterwards, a large number 

of nuclear weapons workers at sites of the Department of Energy and at sites of vendors who supplied the 

Cold War effort were put at risk without their knowledge and consent for reasons that, documents reveal, 

were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay.

3. Many previously secret records have documented unmonitored exposures to radiation and beryllium 

and continuing problems at these sites across the Nation, at which the Department of Energy and its 

predecessor agencies have been, since World War II, self-regulating with respect to nuclear safety and 

occupational safety and health. No other hazardous Federal activity has been permitted to be carried out 

under such sweeping powers of self-regulation.

See 42 U.S.C. § 7384(a)(1), (2), and (3). 

The purpose of the EEOICPA is “...to provide for timely, uniform, and adequate compensation of covered 

employees, and where applicable, survivors of such employees, suffering from illnesses incurred by such 

employees in the performance of duty for the Department of Energy and certain of its contractors and 

subcontractors.” See 42 U.S.C. § 7384d(b). As originally enacted in October 2000, the EEOICPA contained 

two parts, Part B and Part D.

Part B, which is administered by the Department of Labor (DOL), provides the following compensation 

and benefits:

1. Lump-sum payment of $150,000 and the payment of medical expenses (for the covered illness 

starting as of the date of filing) for:

a. Employees of the Department of Energy, as well as its contractors, subcontractors, and 

employees of atomic weapons employers (AWEs) with radiation- induced cancer if: (1) the 

employee developed cancer after working at a covered facility; and (2) the cancer is “at least as 

likely as not” related to covered employment.1

b. Employees who are members of Special Exposure Cohort (SEC) and who develop one of the 

specified cancers outlined in 42 U.S.C. § 7484l(17).2

c. All federal employees, as well as employees of the DOE, its contractors and subcontractors, or 

designated beryllium vendors who worked at a covered facility where they were exposed to 

beryllium and who develop Chronic Beryllium Disease (CBD).3

2

 If a claimant qualifies for inclusion in a SEC class and develops one of the specified cancers, that claimant receives compensation for that specified 

cancer without the completion of a radiation dose reconstruction by the National Institute for Occupational Safety and Health, and without a 

determination by DOL of the probability of causation that the cancer was caused by exposure to radiation at a covered facility.

3

 Last year DOL’s Office of the Solicitor informed us that every federal employee is a potential “covered beryllium employee” as defined in 42 U.S.C. 

§ 7384l(7)(A), by virtue of inclusion of the Federal Employees Compensation Act (FECA) definition of “employee” in 5 U.S.C. § 8101(1) into that 

definition. This definition of the term, “covered beryllium employee” is more expansive than the definition of “covered beryllium employee” found 

on DEEOIC’s webpage under the “Explanation of Benefits Under Part B and Part E” link. There are potential claimants who could benefit from being 

made aware of this clarification. See 42 U.S.C. § 7384l(7)(A).
3

d. Employees of the DOE or its contractors and subcontractors who worked at least 250 days 

during the mining of tunnels at underground nuclear weapons test sites in Nevada or Alaska 

and who develop chronic silicosis. 

Note: if the employee is no longer living, eligible survivors of the employees listed above are entitled 

to $150,000 in lump-sum compensation under Part B.

2. A lump-sum payment of $50,000 and medical expenses for the covered illness to uranium 

miners, millers, and ore transporters, or their survivors, who are awarded $100,000 under Section 

5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. § 2210 note.

3. All federal employees, as well as employees of the DOE, its contractors and subcontractors, whose 

claims for beryllium sensitivity are accepted under Part B are entitled to medical monitoring to 

check for the development of CBD. 

Part D of the EEOICPA required DOE to establish a system by which DOE contractor employees and their 

eligible survivors could seek assistance in obtaining state workers’ compensation benefits if a Physicians 

Panel determined that the employee sustained a covered illness as a result of work-related exposure to a 

toxic substance at a DOE facility. However, on October 28, 2004 Congress abolished Part D and created 

Part E in Subtitle E of Title XXXI of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 

2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004). Part E is administered by DOL.

The compensation and benefits allowable under Part E are as follows:

1. DOE contractor and subcontractor employees who develop an illness due to exposure to 

toxic substances at DOE facilities are entitled to medical expenses and may receive monetary 

compensation of up to $250,000 for impairment and/or wage-loss.

2. Eligible survivors of DOE contractor and subcontractor employees receive compensation of 

$125,000 if the employee’s death was caused, contributed to, or aggravated by the covered illness. 

If the employee had between 10 and 19 years of wage-loss, the survivor receives an additional 

$25,000. On the other hand, if the worker had 20 or more years of wage-loss, the survivor 

receives an additional $50,000.

3. Uranium miners, millers, and ore transporters are eligible for medical benefits, as well as up to 

$250,000 in monetary compensation for impairment and/or wage-loss if they develop an illness 

as a result of toxic exposure at a facility covered under Section 5 of the Radiation Exposure 

Compensation Act (RECA). Employees who qualify as uranium miners, millers, or ore transporters 

under Section 5 of RECA are eligible for compensation and medical benefits under Part E, even if 

they did not receive compensation under RECA.

DOL has primary authority for administering Part B and Part E of the EEOICPA. However, there are other 

federal agencies that are also involved with the administration of this program.

1. The DOE ensures that all available worker and facility records and data are provided to DOL. This 

includes: (1) providing DOL and/or the National Institute for Occupational Safety and Health 

(NIOSH) with information related to individual claims such as employment verification and 

exposure records; (2) supporting DOL, NIOSH, and the Advisory Board on Radiation and Worker 
4

Health with large-scale records research and retrieval efforts at various DOE sites; (3) conducting 

research, in coordination with DOL and NIOSH on issues related to covered facility designations; 

and (4) hosting the Secure Electronic Records Transfer (SERT) system, a DOE hosted environment 

where DOL, NIOSH, and DOE can securely share records and data.

2. NIOSH conducts activities to assist claimants and supports the role of the Secretary of Health 

and Human Services (HHS) under EEOICPA. These activities include: (1) developing scientific 

guidelines for determining whether a cancer is related to the worker’s occupational exposure to 

radiation; (2) developing methods to estimate worker exposure to radiation; (3) using the dose 

reconstruction regulation to develop estimates of radiation dose for workers who have applied 

for compensation; (4) overseeing the process by which classes of workers can be considered 

for inclusion in the Special Exposure Cohort; and (5) providing staff support for the independent 

Advisory Board on Radiation and Worker Health that advises HHS and NIOSH on dose 

reconstructions and SEC petitions.

3. The Ombudsman to NIOSH helps individuals with a variety of issues related to the SEC petition 

process and the dose reconstruction process. The Ombudsman to NIOSH also conducts outreach 

to promote a better understanding of the EEOICPA, as well as the claims process.

B. The Office of the Ombudsman

Public Law 108-375, which was enacted on October 28, 2004, established within the DOL an Office of the 

Ombudsman (the Office). The duties of the Office are to:

1. Provide information to claimants and potential claimants about the benefits available under Part B 

and Part E, and on the requirements and procedures applicable to the provision of such benefits.

2. Make recommendations to the Secretary of Labor regarding the location of resource centers for 

the acceptance and development of EEOICPA claims. 

3. Carry out such other duties as the Secretary specifies.

See 42 U.S.C. § 7385s-15(c). The EEOICPA also requires the Office to submit an annual report to Congress. 

This annual report is to set forth:

1. The number and types of complaints, grievances, and requests for assistance received by the 

Office during the preceding year; and

2. An assessment of the most common difficulties encountered by claimants and potential claimants 

during the preceding year.

See 42 U.S.C. § 7385s-15(e).
5

4 Throughout this Report we will frequently refer to the EEOICPA as “the program”.

Claimants, family members, authorized representatives (ARs), home health providers, and others contacted 

us throughout the year with concerns and questions about the EEOICPA claims process.4 In most instances, 

these individuals did not contact us simply to register a complaint. Rather, they usually contacted us 

because they wanted assistance with a claim. In many instances, these individuals only turned to us for help 

when other efforts to obtain assistance had been unsuccessful. 

Within the limits of our authority, we made every effort to assist the individuals who contacted us. Thus, as 

appropriate we: (1) directed individuals to the office or agency that could best provide needed information 

and assistance; (2) explained the benefits provided by this program, as well as the requirements and 

procedures for obtaining these benefits; (3) answered questions about the program; (4) made individuals 

aware of the tools and resources that had been developed to assist them; (5) provided guidance on how to 

access these tools and resources; and (6) provided individuals with a listening ear to hear their concerns 

and complaints.
6

II. EXECUTIVE SUMMARY

Many of the individuals who contacted us were encountering a problem with their EEOICPA claim. 

Nevertheless, it is important to dispel the notion that most of these individuals contacted us simply because 

they were upset with the outcome of their claim. That simply is not true. Each individual who approached 

us came with their own unique set of facts and circumstances. Yet, there are some broad categories of 

concerns that the individuals we encountered raised:

1. Those who just learned about the program and were seeking additional 

information. 

Some of the individuals who contacted us had just learned about the program. In many instances, 

these individuals had not filed a claim and contacted us to find out what they needed to do, and where 

they needed to go to file a claim. We frequently found that while they had not yet filed a claim, these 

individuals had already started to form negative opinions about this program. In particular, we frequently 

talked to claimants who found it troubling that it had taken so long to learn about this program. And it 

only added to their concerns when they had to learn about this program from others, rather than from 

the government. We also found that, even though they had not filed a claim, some individuals were 

already starting to worry that the delay in learning about this program would impede their ability to 

develop evidence to support their claim.5

2. Those who wanted to know what to do next.

Many claimants pursued their claim without ever having a good understanding of the EEOICPA claims 

process. Thus, it was not unusual to encounter claimants who approached us because they wanted to 

know the next steps they needed to take in pursuing their claim. In many instances, these claimants did 

not simply want to know what to do, they also wanted to understand why they were being asked (or 

needed) to take these next steps. Consequently, we frequently found that the claimants who approached 

us needed someone to provide a brief overview of the claims process, and to explain where they were 

in that process. And because this program can be complex, we frequently found that claimants needed 

an overview of the claims process even when this process had been previously explained to them. The 

claimants who approached us oftentimes hoped that we could explain the next steps in the claims 

process, and could explain these next steps in a manner that they understood.

Some claimants also found it difficult to follow the guidance/directives given to them. While difficulties 

following guidance/directives can arise at every stage of the claims process, a common scenario that 

we encountered involved instances where claimants were asked to submit additional evidence (or 

were advised that existing evidence was insufficient to prove a particular element of their claim). In 

these situations, claimants often turned to us because they: (1) needed guidance on where to look for 

evidence; (2) needed someone to clarify what DEEOIC wanted; and/or (3) they did not understand why 

the evidence they previously submitted was not sufficient. Before turning to us for assistance many of 

these claimants had already talked to DEEOIC. In turning to us, these claimants often complained that 

DEEOIC had not fully answered their concerns/questions.

5

 In other instances, this concern arose later in the claims process, oftentimes when they subsequently encountered difficulties trying to locate 

evidence to support their claim.
7

3. Those who wanted to know the status of their claim.

Throughout the year it was very common to be approached by individuals who wanted to know the 

status of their claim. These requests frequently came from claimants who noted that their request was 

prompted by a lack of action (or a lack of updates from DEEOIC) on their claim. In some instances, 

claimants maintained that it had been weeks or months since they last heard (or received) anything 

about their claim.6 In other instances, we were approached by claimants who complained that DEEOIC’s 

response to their status inquiry had not been very informative. Consequently, we were routinely 

approached by claimants who hoped that we might be able to provide a more detailed explanation 

for the delay they were experiencing. Although the response that we were able to provide oftentimes 

was not the detailed explanation that they wanted, most claimants were appreciative to receive any 

information we could provide.

When the delay continued for what the claimant deemed to be an extended period of time, we often 

observed an increase in the claimant’s level of frustration. As the delay continued, frustrations would 

sometimes surface as the claimant repeatedly received the same vague response to his/her status 

inquiries. It further added to these frustrations when no one was able to provide them with an estimate of 

how long the delay would continue.7

 In fact, some claimants complained that there did not appear to be 

any rules governing how long DEEOIC could delay their claim. 

4. Those who had lost track of their claim.

We were approached by claimants who asked us to check on their claim, or asked us to explain what 

had happened with their claim. Although we usually assumed that these claimants were asking about 

the status of their claim, as the conversations continued, we sometimes discovered that these claimants 

had more basic concerns. In some instances, we found that these claimants were so overwhelmed 

by the claims process that they could not tell us if their claim was pending, or if they had received a 

recommended or final decision. In other instances, while they could tell us they had received a decision, 

they could not tell us if they had received a recommended decision, a final decision and, they oftentimes 

did not understand, and thus, could not explain the decision they had received. These claimants 

essentially did not understand what had happened in their case and why. 

We find it worth noting that we most frequently encountered claimants with these basic questions about 

their claim at the outreach events we attended. Our conversations with them often revealed that while they 

may have wrestled for years with such basic questions about their claim, they had never felt comfortable 

seeking answers. However, when they encountered us at the outreach event, they decided, oftentimes after 

some hesitation, to take advantage of that opportunity to see if we could provide some insights and/or 

information.

 Whenever we encountered a claimant who did not understand what had happened in their claim, we 

would make every effort to provide them with some level of information. In some instances, resolving the 

claimant’s concern simply required providing the claimant with the status of his/her claim. On the other 

6

 In explaining why they did not directly contact the claims examiner (CE ) for the status of their claim, many claimants indicated that they did not 

want to bother the CE. Thus, in contacting our office, claimants often hoped to obtain the status of their claim without “bothering” the CE. When 

advised that we would have to contact DEEOIC to obtain the status, some claimants asked that we drop the matter.

7

 There were instances where in response to our status inquiry, DEEOIC not only provided the status of the claim but also provided an estimate of 

when the claimant could expect to see action on his/her claim. 
8

hand, when our inquiry determined that a decision had been issued, we endeavored to explain the decision. 

Encounters such as these revealed to us the extent to which some claimants did not have a working 

understanding of the claims process.

5. Those who needed direct assistance.

In some instances, simply telling the claimant what action they could take was not sufficient. Some 

claimants needed assistance in carrying out these instructions. Many of the claimants we encountered 

were at an advanced age and/or were suffering from an illness. We heard from claimants who questioned 

whether these factors were taken into consideration when developing the policies and procedures 

applicable to this program. Others complained that while the program should have been well aware that 

many claimants would be at advanced age and/or suffering from an illness, little assistance was available to 

address these situations. 

Yet, it was not just those who were of an advanced age and/or were suffering from an illness who needed 

assistance with this claims process. This can be a complex program and, as a result, some claimants 

found it difficult to fully understand the legal, scientific, and/or medical concepts that form the basis 

of the program. DEEOIC, and the other agencies involved in the administration of this program have 

developed a host of useful tools and resources to assist claimants. Yet, many of these tools and resources 

are only found online. Thus, those without access or only limited access to the internet oftentimes were 

unable to take advantage of these tools and resources. Moreover, even with access to the internet, some 

claimants found these tools and resources difficult to find and/or use. 

In the report that follows we discuss the most common difficulties encountered by claimants and 

potential claimants in 2017. And in our opinion, these difficulties go beyond the fact that these claimants 

and potential claimants simply disagreed with the outcome of their claim. 
9

III. TABLES

In our annual report we are to set forth the numbers and types of complaints, grievances, and requests for 

assistance that this Office received in the preceding calendar year, and we are to provide an assessment of 

the most common difficulties encountered by claimants and potential claimants in that year. The tables below 

set forth the numbers and types of complaints, grievances and requests for assistance that the Office of the 

Ombudsman received in calendar year 2017. In reviewing these tables, it is important to keep in mind that:

• In most instances, individuals did not contact our Office simply to register a complaint or grievance.

Most individuals contacted our Office because they needed assistance with their claim, or had

questions about their claim and/or the claims process.

• The claimants who came to us for assistance oftentimes were not familiar with this program and thus,

found it difficult to articulate the specific assistance they needed.

• A common way of seeking information and assistance involved telling us their story, which could

include details of their employment at a covered facility and/or outlining their experiences with the

EEOICPA claims process. In listening to their stories, as well as through our efforts to obtain the limited

information shared by the program, we identified and attempted to classify their grievances and

complaints.

• In our experience, when individuals contacted us, we typically were required to explain the EEOICPA

claims process in a general way, and then lay out for the individual where their case was in the claims

adjudication process. Then, by listening to their story and asking them to read or share documents with

our office, we could better appreciate the assistance they were seeking, or understand the problems

they were attempting to bring to our attention.

Consequently, Table 1 is our effort to classify the types of complaints, grievances, and requests for 

assistance that we received in 2017.
Office of the Ombudsman | ANNUAL REPORT TO CONGRESS 10

TABLE 1.—COMPLAINTS, GRIEVANCES, AND REQUESTS FOR ASSISTANCE

CONCERN NUMBER OF COMPLAINTS, 

GRIEVANCES, & REQUESTS FOR 

ASSISTANCE

COMMENTS

1 Covered Employment 51

2 Covered Facility 20

3 Covered Illness 39 In some instances the issue involved efforts to 

establish a diagnosis of CBD.

4 Survivor Eligibility 27

5 Exposure to a Toxic Substance 83

6 Dose Reconstruction Process 38 Claimants often questioned: (1) whether all of their 

work had been credited or (2) the level of exposures to 

which they had been credited.

7 Issues Related to Special Exposure Cohorts 22

8 Causation 73

9 Impairment 17

10 Wage-Loss 15

11 Medical Benefits 46

12 Home Health Care Issues 47

13 Issues Related to Payment of Medical Bills 48

14 Status Inquiries 77 These are instances where claimants specifically asked 

us to provide information on the status of their claim. 

In many of these instances, a delay in the processing 

of the claim caused the claimant to seek the status of 

his/her claim.

15 Delays 108

16 Issues related to RECA 10 Many of these inquiries expressed a desire to extend 

the RECA program.

17 Interactions with DEEOIC

 • Communication

 • Inappropriate Conduct

 • Not enough notice of upcoming hearing

 • Other issues

73

25

8

3

18 Complaints about authorized representatives 

and providers

12 These complaints raised concerns about the services 

rendered by or the conduct of authorized representatives 

or providers.

19 Did Not Know Where to File a Claim 26

20 Issues Related to Reopening/Reconsideration 43 Many of the complaints involved requests asking how 

to request reopening and burden of proof.

21 Due Process Concerns 56 Including 22 cases that raised questions about 

DEEOIC’s current approach to hearing loss.

22 Needed more information about the program 97

23 General Requests for Assistance 113

24 Problems trying to locate records 41

25 Cap on Benefits 9

26 Miscellaneous

• General

• Problems contacting someone other than 

DEEOIC

• Offset/Coordination of benefits

59

3

5

3

TOTAL *1,297

*The 1,297 complaints, grievances, and requests for assistance were the result of 733 interactions with claimants, authorized representatives, home 

health providers and others.

The complaints, grievances, and requests for assistance that we received in 2017 did not simply come from 

a few claimants situated in one area of the country. In 2017, we received complaints from claimants who had 

worked at 46 different facilities. Table 2 is a list of those 46 facilities. We note that in many instances the 

claimant did not identify the facility where he/she worked. Thus, this table is limited to those complaints, 

grievances, or requests for assistance where the facility was identified.
Office of the Ombudsman | ANNUAL REPORT TO CONGRESS 11

TABLE 2.—COMPLAINTS BY FACILITY

FACILITY LOCATION NUMBER OF 

COMPLAINTS

Albany Research Center Albany, Oregon 2

Allied Chemical Corporation Plant Metropolis, Illinois 2

Amchitka Island Nuclear Explosion Site Amchitka Island, Alaska 5

American Beryllium Company Sarasota, Florida 1

Ames Laboratory Ames, Iowa 3

Area IV of the Santa Susana Field Laboratory Santa Susana, California 14

Argonne National Laboratory—East Argonne, Illinois 2

Bethlehem Steel Lackawanna, New York 1

Blockson Chemical Company Joliet, Illinois 1

Bridgeport Brass, Company, Havens Laboratory Bridgeport, Connecticut 2

Brookhaven National Laboratory Upton, New York 4

Brush Beryllium Company Cleveland, Ohio 3

Clarksville Modification Center Clarksville, Tennessee 3

Dow Chemical Corporation (Madison Site) Madison, Illinois 10

Feed Materials Production Center Fernald, Ohio 8

General Electric Company (Ohio) Cincinnati/Evendale, Ohio 2

General Steel Industries Granite City, Illinois 10

Hanford Richland, Washington 26

Hooker Electrochemical Niagara Falls, New York 1

Idaho Nation Engineering Laboratory Scoville, Idaho 7

Iowa Ordnance Plant (Line 1 and Associated Activities) Burlington, Iowa 22

Kansas City Plant Kansas City, Missouri 7

Lawrence Livermore National Laboratory Livermore, California 6

Los Alamos National Laboratory Los Alamos, New Mexico 9

Mallinckrodt Chemical Co. St. Louis, Missouri 1

Mound Plant Miamisburg, Ohio 4

Nevada Test Site Mercury, Nevada 22

Nuclear Materials and Equipment Corp. (NUMEC) (Apollo) Apollo, Pennsylvania 1

Oak Ridge

 K-25

 Y-12

 X-10

Oak Ridge, Tennessee 22 (Site not specified)

8

25

11

Pacific Northwest National Laboratory Richland, Washington 2

Pacific Proving Ground Republic of the Marshall Islands 3

Paducah Gaseous Diffusion Plant Paducah, Kentucky 22

Pantex Plant Amarillo, Texas 5

Pinellas Plant Clearwater, Florida 10

Portsmouth Gaseous Diffusion Plant Piketon, Ohio 16

Rocky Flats Plant Golden, Colorado 47

Sandia National Laboratory Albuquerque, New Mexico 6

Savannah River Site Aiken, South Carolina 13

The Dayton Project Dayton and Oakwood, Ohio 1

United Nuclear Corporation Hematite, Missouri 1

Various Uranium Mines 19

Wah Chang Albany, Oregon 9

Weldon Spring Plant Weldon Spring, Missouri 1

TOTAL 400
12

 

IV. ASSESSMENT OF COMMON DIFFICULTIES

CHAPTER 1 

ISSUES WITH THE STATUTE

Some of the complaints brought to our attention in 2017 raised issues that directly involved the statute 

as written. Changes to the statute must be undertaken by Congress. However, there were some instances 

where the concerns with the statute also raised issues involving the administration of this program.

A. Employees of Atomic Weapons Employers (AWEs) are only covered under 

Part B and that coverage is limited to cancers caused by radiation exposure.

In 2017, former employees of AWEs continued to complain about the limitations of coverage under the 

EEOICPA. In particular, former AWE employees complained that under Part B they were only covered for 

cancers caused by exposure to radiation. It troubled these AWE employees that they were not covered 

under Part B for the other illnesses potentially covered under Part B, namely chronic beryllium disease, 

beryllium sensitivity, and chronic silicosis. See 42 U.S.C. § 7384l(9).8

AWE employees also questioned why they were not covered at all under Part E of the program.9

 We 

routinely talked to AWE employees who maintained that their exposures to toxic substances had not 

been limited to radiation. These employees asserted that in the course of their employment they had been 

exposed to a variety of toxic materials. Thus, they could not understand why they were not covered under 

Part E for illnesses related to their exposure to these other toxic substances. For example, we encountered 

former AWE employees diagnosed with chronic beryllium disease (CBD) who maintained that in the course 

of their employment they were exposed to beryllium. These employees could not understand why they were 

not covered under this program for this illness.

The AWE employees who questioned why were only covered under Part B for cancers caused by radiation 

exposure, and not covered at all under Part E, did not want to hear that this was how the statute was 

written. They wanted someone to explain why the statute was written in this manner. 

B. The program does not cover every employee who was onsite at a covered facility.

The statute specifically identifies and defines the employees covered under this program. See 42 U.S.C. 

§ 7384l(1). Workers were often disappointed when they discovered that, although they had worked at 

a facility and now suffered from an illness potentially related to that employment, they did not meet 

the statute’s definition of a covered employee. Upon discovering that they were not covered under this 

8 Employees of AWEs only qualify under Part B as a “covered employee with cancer.” See 42 U.S.C. § 7384l(9). 9 Part E covers DOE contractors and subcontractor employees per 42 U.S.C. §§ 7385 s and s-1, as well as employees who qualify as uranium workers under 

Section 5 of RECA, 42 U.S.C. § 2210 note.
13

program, workers often argued that it was unfair to limit this program’s coverage to only certain employees. 

They argued that this program should cover all of the workers who were onsite and thus at risk for being 

affected by these toxic substances. This was the precise argument raised by some former employees of the 

Department of Defense who had worked at Bikini Atoll in the Marshall Islands. These employees could not 

understand why, in spite of their employment at Bikini Atoll, they were not covered under this program.10

“I have been referred to the Ombudsman office regarding the matter of EEOICPA 

denying/excluding DOD workers that served equally as energy workers but are 

continue[d] to be excluded...”

Email dated August 2017.

In 2017, we also encountered former workers who were dismayed when they learned that operations pertaining 

to the Naval Nuclear Propulsion Program were specifically excluded from coverage under this program. See 42 

U.S.C. § 7384l(12). 

Employees who did not meet the statutory definition of a covered employee frequently complained that 

little, if any, effort was undertaken to direct them to other programs that might compensate them and/or 

provide medical benefits for their illnesses arising from exposure to toxic substances while working at these 

sites. For example, former federal employees who were not covered under this program complained that in 

spite of numerous conversations with various federal agencies concerning their illness, they had not been 

informed of the Federal Employees’ Compensation Act. 

C. Chronic Lymphocytic Leukemia is not a specified cancer.

There continued to be confusion in 2017 regarding whether chronic lymphocytic leukemia (CLL) is a 

specified cancer. The answer is no, CLL is not a specified cancer. The confusion arose in 2012 when NIOSH 

made changes affecting its approach to radiation dose reconstructions on claims for CLL. Prior to March 7, 

2012, NIOSH regulations excluded claims for CLL from radiation dose reconstructions, and all such claims 

were denied under Part B. However, on March 7, 2012, NIOSH announced a new rule instructing that CLL 

be treated as potentially caused by radiation. As a result of NIOSH’s new rule, claims for CLL are now 

forwarded to NIOSH for a radiation dose reconstruction. The confusion arose because some claimants 

mistakenly assumed that NIOSH’s new rule also meant that CLL would be added to the statutory list of 

specified cancers. 

The EEOICPA statute contains a list of specified cancers. See 42 U.S.C. § 7384l(17). A claim for cancer can 

be accepted without having to undergo a radiation dose reconstruction if the worker (or former worker): (1) 

qualifies as a member of the Special Exposure Cohort (SEC) and (2) has a specified cancer. See 42 U.S.C. § 

7384l(17). While the statute identifies leukemia as a “specified cancer,” the statute excludes CLL from the 

10 While these employees had worked at Bikini Atoll, at least some of them worked on the island during periods when remediation work was performed. It 

appears that at least some of these claims were denied because the remediation was done on the Department of Defense “side” on the island or through 

the Department of Interior.
14

list of specified cancers. See 42 U.S.C. §§ 7384l(17)(A) and (D).11 Consequently, NIOSH’s announcement 

recognizing CLL as a radiogenic cancer, and instructing that claims for CLL undergo a radiation dose 

reconstruction did not change the fact that the statute still specifically excludes CLL from the list of 

specified cancers.

Claimants were disappointed to discover that NIOSH’s decision to treat CLL as potentially caused by 

radiation did not result in CLL being added to the list of specified cancers. In contacting us, claimants often 

questioned what needed to be done to bring this matter to Congress’ attention.

D. The cap on monetary compensation.

Most claims accepted under Part B result in a lump-sum payment of $150,000.12 See 42 U.S.C. § 7384s(a). 

On the other hand, the maximum aggregate compensation permitted under Part E is $250,000. See 42 

U.S.C. § 7385s-12. During the year we encountered claimants who complained that as a result of one, or 

both, of the statutory caps on monetary compensation they were not fully compensated for their illnesses.13 

For example, claimants who became ill at an early age, and thus reached the Part E statutory maximum well 

before their normal retirement age, sometimes complained that because of this statutory cap they were not 

fully compensated for all of the wage-loss they sustained as a result of their accepted illness. 

In our experience, complaints about the statutory caps on monetary compensation usually arose when: 

1. The accepted condition continued to deteriorate even after the claimant was paid the statutory 

cap; or,

2. Claimants who received the statutory cap subsequently developed additional illnesses.14

E. Attorney fees.

The fee schedule for attorney’s fees found in the statute continued to cause difficulties for both claimants 

and authorized representatives (AR). See 42 U.S.C. §§ 7385g and 7385s-9. 

1) Difficulties applying Section 7385g to Part E claims.

 Under Part B, with respect to services rendered in connection with a claim, an individual cannot receive 

a payment that is more than:

11 Section 7384l(17)(A) refers to a specified disease, as that term is defined in Section 4(b)(2) of RECA, 42 U.S.C. 2210 note. Section 4(b)(2) of RECA, 

in turn, excludes CLL as a specified disease. CLL is also excluded from the list of specified cancers by Section 7384l(17)(D) of the Act. See 42 U.S.C. 

§ 7384l(17)(D).

12 The exceptions are for claimants under Part B with an accepted claim for beryllium sensitivity who are limited to medical monitoring and no monetary 

compensation and, Part B claimants with an approved claim under Section 5 of RECA who are entitled to an additional $50,000 lump-sum payment under 

Part B of the EEOICPA.

13 These caps apply only to monetary compensation, and do not include medical benefits.

14 A worker or former worker who received the statutory maximum compensation under the EEOICPA can still file claims for additional illnesses. If these 

additional claims are accepted, the worker or former worker will not receive additional monetary compensation. However, he/she will be entitled to medical 

benefits for the additional accepted illnesses. 
15

(1) 2 percent for the filing of an initial claim for payment of lump-sum compensation; and,

(2) 10 percent with respect to objections to a recommended decision denying payment of lump-sum 

compensation.

See 42 U.S.C. § 7385g. In incorporating the Part B fee schedule into Part E, it is stated that Section 

7385g shall apply to payments under Part E to the same extent that it applies to payments under Part 

B. See 42 U.S.C. § 7385s-9. Claimants and ARs routinely complained that it was not always easy 

to apply the Part B fee schedule to Part E claims. In particular, it was noted that when their claim is 

accepted under Part B, most claimants are entitled to a set lump-sum payment of either $150,000 

or $50,000, as well as medical benefits. On the other hand, after a Part E claim filed by the worker/

former worker is accepted, the claimant is initially entitled to only medical benefits for the accepted 

illness. The Part E worker/former worker can separately file for impairment compensation and/or wageloss compensation, which must then be separately adjudicated by DEEOIC. Citing to this difference in 

awarding benefits, claimants and ARs complained that they did not always understand how the Part B 

attorney fee provision applied to their Part E claims.

2) Difficulties applying fee schedule for certain services.

 Claimants and ARs also complained that the fee schedule did not address the fee to be paid for a 

variety of services often needed by claimants in pursuing an EEOICPA claim. For instance, it was noted 

that the fee schedule did not address the fee to be paid for assisting claimants in resolving home health 

care, durable medical equipment, or medical billing issues. Some claimants believed that the failure to 

address the fee to be paid for performing these services explained why some ARs refused to provide 

representation for these services. There was a belief that where the guidance was not clear regarding 

the amount that could be charged, many ARs declined to assist claimants in pursuing these benefits, 

and instead limited their representation to those services outlined in the fee schedule, i.e., obtaining 

payment of lump-sum compensation.

3) No consideration given to the complexity of the case.

 We also talked to claimants who believed that as the fee schedule is currently written, some ARs found 

it advantageous to avoid the more complex cases. In advancing this argument, it was noted that the fee 

paid to the AR is a percentage of the compensation received by the claimant, and that the fee schedule 

did not give any consideration to the amount of time expended on the case, or the complexity of the 

case. As a result, claimants complained that there was little, if any, incentive for ARs to take on complex 

and/or time-consuming cases. 

DEEOIC cannot change the fee schedule. Yet, there is a desperate need for more ARs, and for ARs who are 

willing to assist claimants with every aspect of the claims process, not just certain types of claims or issues. 
16

 

CHAPTER 2 

LACK OF AWARENESS OF THE EEOICPA PROGRAM

In 2017, we continued to encounter claimants and potential claimants who complained they only recently 

learned of the program, and/or that the delay in being notified of the program negatively impacted their 

ability to process their claim. We also encountered claimants who struggled with their claim because they 

did not fully understand the program. This chapter discusses the most common difficulties that arose from 

a lack of awareness of the EEOICPA. 

A. Difficulties arising from delays in being made aware of the program.

“Loss for words” 

The description used by a claimant to explain his/her reaction when 

he/she first learned of this program in 2017.

In its response to our 2015 Annual Report, DOL agreed that widespread direct notification to all of the 

individuals potentially impacted by the nuclear weapons program had been a challenge. DOL’s response then 

discussed some of the initiatives undertaken to increase awareness of this program. Yet, in spite of the efforts 

undertaken by the DEEOIC and the Joint Outreach Task Group (JOTG) to increase awareness, difficulties 

arising from delayed notification to claimants persisted.15

An encounter in November exemplified the problem that we continued to see. The surviving child of a former 

worker began his/her complaint by noting that the EEOICPA was created more than 35 years after his/her 

father retired from work at a covered facility. This adult child then told us that he/she was at a “loss for words” 

to describe how it felt to know that it took another 17 years after the creation of this program for his/her father 

to become aware of it. As with other claimants who raised similar concerns, this claimant firmly believed that 

his/her father had been negatively impacted by the delay in being notified of the EEOICPA. In this instance, the 

father passed away after filing his claim but before the processing of his claim was completed.16

B. DEEOIC’s outreach efforts tends to focus on areas near covered facilities.

In the past, DEEOIC focused much of its outreach activities on areas near covered facilities.17 We heard 

from claimants who felt that DEEOIC not only limited its outreach to areas near covered facilities, but also 

limited its outreach to areas near facilities that employed (or once employed) large numbers of employees. 

Claimants complained that this approach ignored the fact that over the years potential claimants had 

sometimes moved to other areas of the country. 

15 The JOTG is comprised of representatives from DOL, DOE, the Office of the Ombudsman for EEOICPA, HHS, the Office of the Ombudsman for HHS’s 

NIOSH, plus representatives from DOE’s Former Worker Medical Screening Program. This task group allows these agencies the opportunity to exchange 

ideas, share resources, and develop outreach strategies for targeting current and potential claimants.

16 In this instance, none of the surviving children qualified as eligible survivors under Part E.

17 In response to our 2011 Annual Report, DEEOIC noted that due to limited resources with which to conduct outreach activities, it concentrated efforts to 

transmit program information in areas near covered facilities, and stated that this was done in order to reach the largest number of affected workers.
17

The need for outreach extends beyond the areas near covered facilities. Nevertheless, it can be beneficial 

to return to an area to hold additional outreach events. At most of the outreach events we attended in 2017 

there were usually some attendees (sometimes one or two, sometimes more) who were just learning about 

the program. And we found this to be true even when the event was held in areas that had hosted previous 

outreach events. Our conversations with some of these individuals revealed that there can be a variety 

of reasons why some people were just learning about this program. Yet, regardless of why they were just 

learning about this program, returning to an area to hold additional meetings not only provided another 

opportunity to reach these individuals, but also increased the chances that when they had questions, there 

was an event where they could meet face-to-face with agency representatives.18

In discussing its efforts to increase awareness, DEEOIC noted its use of its network of the 11 Resource 

Centers to provide an initial point-of-contact for workers interested in filing claims. In spite of these efforts, 

some claimants questioned if the Resource Centers were doing enough to increase awareness in all areas 

of the country. We encountered claimants who indicated that they had attended outreach events where 

the Resource Center had simply emphasized its role in accepting new claims, and did not provide a basic 

overview of the program and/or explain what the claimant could expect to happen as they progressed 

through the claims process. Although these events were often held in areas that had hosted previous 

outreach events, claimants felt that more information should have been shared in order to assist those who 

were not familiar with the program, as well as those with specific questions/issues.19 

In addition, we routinely encountered claimants who were under the impression that Resource Centers 

simply helped with the initial filing of the claim. This explains why some claimants never approached the 

Resource Center to ask questions or for help with other problems. 

C. The efforts to increase awareness beyond the vicinity of covered facilities.

“...We moved from [near the covered facility] at that time and we just learned 

last spring of the possibility of occupational illness from radiation for certain 

former employees...”

Email dated August 2017.

In our opinion, one of the biggest challenges to increasing awareness of this program continued to be 

outreach to those who had moved away from the area where they once worked. Potential claimants 

sometimes moved away long before this program was created, and since moving away have not kept in 

contact with former colleagues. In some instances, potential claimants moved to areas of the country 

where it was rare to encounter other former nuclear workers, thus lessening the chances that they would 

encounter a colleague or a physician who would know about (or tell them about) this program. Moving to 

an area without a lot of other former nuclear workers also lessened the chances that DEEOIC, JOTG, or 

18 It has been our observation that some claimants would prefer to speak to someone face-to-face. 

19 While the Resource Center usually brought materials that discussed the program, some claimants felt that without an overview of the program, those who 

were not familiar with the program might not make the effort to pick up these materials.
18

one of the other agencies involved with this program would hold an outreach event nearby. In addition, just 

because a claimant who moved away later talked to a former colleague did not guarantee that they would 

talk about this program. We routinely encountered claimants who noted that it was entirely by coincidence 

that they learned of this program. Take, for example, an individual we encountered at an event in South 

Carolina. This individual did not have an illness, but approached us because he/she had just learned about 

this program and wanted more information. When we realized that this individual had lived and worked 

in the Midwest, we asked how this individual came to attend an event in South Carolina. The answer was 

that he/she was visiting a friend in the area and saw a newspaper article announcing this event. Encounters 

such as this have convinced us that there are potential claimants, especially potential claimants who 

subsequently moved to other areas of the country, who still are not aware of this program, and would 

benefit from being contacted directly by DOL. 

In prior Annual Reports, we noted that the mailing list compiled and used by DOL to notify individuals 

of upcoming outreach events only contained contact information for individuals who had already filed 

claims. Thus, mailings that rely on this list are limited in their ability to reach individuals who do not already 

know about this program. On the other hand, the DOE and its Former Worker Medical Screening Program 

(FWP)20 has compiled rosters containing contact information for former DOE employees, contractors, and 

subcontractors who worked at some of these covered facilities. The DOE and FWP rosters are not limited 

to those who have filed EEOICP claims, and have been used by the JOTG to notify claimants and potential 

claimants of upcoming JOTG events.21 However, at best, the JOTG holds 3 or 4 outreach events per year and 

these events are usually held near former or existing covered facilities. When our Office has sought their 

assistance, the DOE FWPs have been very receptive when asked to utilize their rosters to notify individuals 

about upcoming events that our Office has sponsored. DOE has assisted DEEOIC by using its roster to 

notify potential claimants of upcoming DEEOIC events. However it is not entirely clear the extent to which 

this assistance has been provided.22 

D. Notice to employees of Atomic Weapons Employers and Beryllium Vendors.

Over the years, we were approached by former AWE employees who alleged that DOL had let the employer 

take the lead in notifying employees of the EEOICPA.23 Some of these AWE employees complained that 

their employer had undertaken little, if any effort to notify them of this program. We continued to receive 

similar complaints in 2017.

20 The FWP was mandated by Congress in the Fiscal Year 1993 National Defense Authorization Act, which charged the DOE with conducting an on-going 

medical screening program, offered at no cost, for its former workers who may be at risk for occupational disease as a result of their work at DOE sites. 

Program activities were initiated in 1996 at seven defense nuclear facilities, and medical screenings began to be offered in 1997. The program now serves all 

former workers from all DOE sites in locations close to their residences. In FY 2017, the FWP conducted 2,814 initial medical screenings and 5,787 re-screen 

medical exams. When a condition is possibly work-related, the FWP physicians include causation language. This language can be helpful to participants 

who decide to file a claim under the EEOICPA. See 2017 Former Worker Medical Screening Program Annual Report, pgs. v, vii. [https://www.energy.gov/

sites/prod/files/2018/04/f51/2017-FWP-Report.pdf]. 21 The 2017 FWP Annual Report stated that invitations are sent by the FWP projects to individuals using the last known address, and when addresses are 

found to be outdated or inaccurate, the FWP projects use address-update services to obtain current contact information. The organizations administering 

the FWP also check list of workers’ names against the National Death Index to ensure the letters of invitation are not sent to individuals who are deceased. 

See 2017 Former Worker Medical Screening Program Annual Report, pg. 5. 22 According to the 2017 Former Worker Medical Screening Program Annual Report, in 2017 the FWP participated in 525 outreach events and assisted the 

DOL with 9 of its outreach events. See 2017 Former Worker Medical Screening Program Annual Report, pg. 5. 23 The DOE FWPs do not perform health screenings for former AWE employees, and thus, these workers are not included in mailings that use the DOE rosters.
19

In one instance this year, an AWE that had been at the center of a controversy over whether employees would 

have to pay to obtain documentation verifying their employment at the company was again brought to our 

attention when employees contacted us after receiving a letter from their employer. We were told that 

the letter was a very comprehensive letter explaining the EEOICPA program. While these employees were 

pleased to receive this letter, a number of them noted that this was the first notice they had received from 

their employer informing them of this program. 

E. Difficulty ensuring that claimants know they are covered under this program.

In attempting to increase awareness of this program, it can also be a challenge to ensure that the target 

audience for a given outreach event understands that they may be covered under this program and that 

the event is intended for them. It has been our observation that because some claimants and potential 

claimants did not recognize the terms or acronyms that were used in the invitation, promotional material, 

or press release, they did not realize that they or a family member may be covered under the EEOICPA. For 

example, while the statute refers to DOE contractor and subcontractor employees, we found that some 

former workers never thought of themselves as DOE contractor or subcontractor employees. Rather, they 

viewed themselves as an employee of a particular contractor or subcontractor who happened to have 

performed work at a covered site. We often saw this with subcontractor employees who, in many instances, 

did not immediately associate themselves as being a DOE subcontractor employee. We encountered similar 

issues with surviving family members who sometimes knew so little about the worker’s employment that it 

was difficult for them to recognize that they might be eligible under the EEOICPA. For this reason, in sending 

out notices of upcoming events, we have found it helpful, when possible, to include in our letter the names 

of the covered facilities in the area.24 

24 In our experience, while an individual may not recognize that they or a family member once worked as a DOE contractor or DOE subcontractor, 

they will often recognize the name of the facility where the work occurred. 
20

CHAPTER 3 

CLAIMANTS DO NOT UNDERSTAND THE EEOICPA

“...What is part B and part E[?] I don’t understand. I have COPD.”

E-mail from potential claimant, May 2017.

A. Claimants do not have a basic understanding of this program.

The vast majority of the claimants who contacted our office came with a story to tell. Oftentimes, 

in listening to these stories it soon became clear that many of these claimants did not have a good 

understanding of this program. In fact, in its response to our 2015 Annual Report, DOL agreed that “[s]ome 

claimants go through the entire adjudication process without ever acquiring a good understanding of how 

this program works...” DOL also agreed that there were claimants who did not have access to information 

via the internet, and many others who may not have understood the information that was provided. Thus, 

in its response, DOL outlined some of the steps it had undertaken to increase the understanding of how this 

program works.

Consistent with this response, the Resource Centers and DEEOIC routinely distributes written materials 

at outreach events. In addition, the staffs of the Resource Centers and DEEOIC are available to provide 

claimants with information and guidance. In 2017, DEEOIC also sponsored the first, in a series, of authorized 

representative workshops. This workshop, held in Jacksonville, Florida, was a two-day event designed to 

provide training on a variety of subjects related to EEOICPA. Yet, in spite of DEEOIC’s efforts, we continued 

to encounter claimants who struggled with their claim because they did not understand the EEOICPA and/

or the claims process.

Our encounter with a Beryllium Support Group highlights the magnitude of this problem. In planning to 

attend this event, since we were going to an area that had hosted previous outreach events, we assumed 

that most of the attendees at this support group meeting would have a basic understanding of the 

EEOICPA and the claims process. However, once there, we quickly realized that our assumption was wrong. 

Attendees at this meeting had basic questions about EEOICPA, including claimants with accepted claims, 

who asked us to explain the difference between Part B and Part E.

As in past years, most of the claimants who contacted our office this year did not have an AR, or if they 

had an AR, the AR was a family member or friend. In either event, many of the individuals who contacted 

our office had little, if any previous experience with this program. These claimants and ARs usually began 

the claims process without first receiving an overview of the program, and oftentimes processed the entire 

claim without the benefit of such an overview. In fact, it often appeared to us that some claimants and ARs 

processed their EEOICPA claim simply relying on what others had told them about this program or based on 

their experiences with other compensation programs. We also frequently found that since they were never 

told about the various tools and resources that were available, many claimants and ARs struggled through 

the adjudication process without knowing there were online tools and resources that could have provided 

some measure of assistance. 
21

This program is complex and there is a lot of information. A continuing frustration for many of the claimants 

that we encountered is that throughout the claims process no one took the time to explain the claims 

process. In this regard, claimants often complained that even when they were told what to do, no one ever 

explained why they were taking the suggested action, or what they could expect after taking this action. 

B. Difficulties arising from misconceptions about this program.

There are some misconceptions about this program that persist to this day. In some instances, a claimant’s 

decision whether to file a claim, or how to proceed in processing his/her claim can be impacted by these 

misconceptions. One of the most common misconceptions is that this program only compensates for 

cancer. Even in 2017, we encountered claimants who called this program “the cancer program” as well as 

others who made it clear that they thought that this program only compensated for cancer.

“...I am retired and I worked for xxx for over 30 years. Are you required to have cancer...

or is this meeting for anyone who worked at xxx. I know friends who got settlements for 

cancer but did not know it was for other medical problems.”

E-mail from potential claimant, May 2017.

Another misconception of claimants was that if their claim for cancer was denied, there was no point in 

filing for additional cancers that were diagnosed after the first claim was denied. We especially encountered 

this misconception among claimants whose original claim for skin cancer had been denied. In complaining 

to us about the denial of their claim for skin cancer, these claimants would often refer to subsequent skin 

cancers that had been diagnosed. When asked if they had filed claims for these additional skin cancers, the 

answer was often no. Encounters such as these were so common that when we attended outreach events 

we started to raise this issue on our own.25 

Appendix 2 outlines some of the common misconceptions that we encountered in 2017. Claimants could 

benefit from efforts to correct these common misconceptions.

C. Information only provided if claimants asked for it.

 “We’ve been denied three times...Although the DOL references sections of the findings 

from the CMC report, we never received a copy, nor did we receive a copy of the IH 

report. Is this something you recommend I ask for?”

 E-mail from a claimant who had been denied three times, yet was never 

told that he/she had the right to request a copy of the Contract Medical 

Consultant and Industrial Hygienist reports, January 2017.

25 For instance, when speaking at outreach events, we often incorporate into our presentations statements that clarify some of the more common 

misconceptions. 
22

When claimants asked their claims examiner (CE) or other DEEOIC staff for specific information, this 

information was usually provided. However, we talked to claimants who felt that if they did not specifically 

ask for (or about) information, it was not offered or provided to them. This concern was frequently raised 

by claimants who complained that, in spite of numerous conversations with DEEOIC while wrestling with 

a problem, useful information that could have assisted them was only brought to their attention well after 

the information could have been helpful.26 Claimants who felt that useful information was not provided 

to them in a timely manner often argued that since they did not have a good understanding of the claims 

process, it was unreasonable to expect them to ask for (or about) specific information. In other instances, 

we heard from claimants who felt that in light of the questions they had asked, it should have been obvious 

to DEEOIC that they did not have a good grasp of the claims process. Thus, we talked to claimants who 

argued that DEEOIC should have been more pro-active in thoroughly answering questions and providing 

assistance. These claimants often expressed frustration at having to navigate such a complex program, and 

being expected to know what information or assistance to ask for. 

D. Little effort undertaken to ensure that claimants understood the information 

provided to them.

Some claimants complained of instances where the information provided to them was vague. Others complained 

of instances where little, if any, effort was made to ensure that they understood the information provided to 

them by DEEOIC.

The Resource Centers and/or CEs are there to provide claimants with useful and timely information. In fact, 

we are aware of instances where the staff of the Resource Centers, District Offices and/or the National 

Office ensured that claimants were provided with useful information. However, we encountered other 

instances where after interacting with the Resource Center and/or the District Office the claimant still had 

questions. This explains why, after talking to their CE, some claimants would contact us with questions 

about what they had just been told.27 

DEEOIC frequently suggested that if, following a conversation with his/her CE, the claimant had additional 

questions we should refer the claimant back to the CE. In most instances this would be our preferable 

response. However, in many instances we were approached by claimants who were already highly frustrated 

because of their previous encounters with DEEOIC. In other instances, the claimant made it abundantly 

clear that he/she did not think that another conversation with DEEOIC would be helpful. In some situations 

claimants made it clear that they contacted us because they hoped that we would be able to better 

articulate their concerns (or hoped that we could articulate their concerns in a way that did not aggravate 

the situation). Moreover, there were some instances where we could sense that telling the claimant to again 

contact the CE would not be well received.

26 Some claimants complained that only because of individuals outside of DEEOIC did they learn of useful information that the DEEOIC staff did not 

provide to them.

27 Claimants often approached us hoping to obtain an immediate answer to their question, and hoping to obtain this answer without confronting 

a lot of bureaucracy. There were many instances where obtaining their answer proved to be more difficult than the claimant imagined. When this 

Office needs information from DEEOIC about a claim, we are required to ask the claimant to provide us with a signed Privacy Act waiver. Providing 

this waiver can be difficult for claimants who do not have access to the internet or a facsimile machine. In addition, some claimants made it clear 

that they viewed the need to submit a waiver as just another unnecessary hurdle to getting their questions answered. Moreover, when requesting 

information we also have to identify the information that we are seeking. This can often be a challenge since some claimants do not understand the 

claims process well enough to assist us in identifying the needed information. 
23

This is not to suggest that DEEOIC did not try to answer the claimant’s question. In fact, we recognize that 

there are a host of reasons why some claimants struggled with their claims. Yet, it appears that in some 

instances sufficient time was not taken to work with the claimant to ensure that he/she fully understood 

what was being said and/or what needed to be done. Some claimants and ARs could benefit from having 

access to a person with immediate access to their claim file who would assist them with understanding 

where they were in the claims adjudication process and could provide them with guidance in developing the 

evidence needed to prove their claim. 

Some may ask why a claimant would need someone to guide them through the claims process if he/she had 

the option to utilize an AR. As noted earlier: (1) many ARs are family members or friends who themselves 

have little knowledge of this program; and (2) some claimants cannot find or do not want to use an AR. 
24

CHAPTER 4

DIFFICULTIES OBTAINING ASSISTANCE

As previously noted, most of the claimants who approached us wanted assistance with their claim. Some 

claimants turned to us because they did not know where else to go for assistance. Others turned to us when 

their other efforts to resolve the concern/problem proved ineffective. 

A. Claimants do not know where to turn for assistance.

Throughout the year, we talked to claimants who complained that they did not know where to turn for 

help. One problem is that while a host of resources have been developed to assist claimants, many of these 

resources are only available online. Claimants with limited, or no access to internet, oftentimes are not 

aware that these resources exist and/or do not have the ability to access these resources.28

 Nevertheless, having access to the internet does not guarantee that claimants will be aware of the various 

online tools and resources. In our experience, even when they had access to the internet, many claimants 

rarely, if ever, visited DEEOIC’s website. Moreover, it has been our experience that most claimants do not 

receive a comprehensive overview of the program when they file their claim. This lack of an overview not 

only means that many claimants proceed with their claim without a good understanding of the claims 

process, it also means that many claimants are never aware of the resources and tools that have been 

developed to assist them. 

We also found that many claimants did not realize that they could turn to the Resource Center or the CE 

for help. We routinely encountered claimants who believed that the mission of the Resource Centers was 

limited to assisting with the filing of new claims for benefits.29 As a result, these claimants never thought to 

turn to the Resource Centers for further assistance. Similarly, we talked to claimants who admitted that it 

never dawned on them to approach their CE for assistance. 

In a more general sense, after the Resource Center assists with the filing of a new claim, the claim is sent 

to the District Office where a CE is assigned to the case. The CE is then responsible for both answering the 

claimant’s questions, as well as making a determination on the claim for benefits. Numerous conversations 

this year revealed that some claimants did not appreciate that a different level of service was provided 

by the CE. For instance, some claimants did not appreciate that while they could physically go to the 

Resource Center and talk to someone or could communicate with the Resource Center via the internet, their 

interactions with the CE were generally limited to telephone conversations and written correspondence. 

Consequently, some claimants did not approach their CE for assistance because they wanted to talk to 

someone face-to-face or via email.

28 In some instances, locating the information online is the best, or the only, effective way to present the information. The Site Exposure Matrices 

(SEM) database and the list of enrolled health care providers are two examples of tools that can only be effectively presented online.

29 According to Procedure Manual (PM) Chapter 4.3(b) (December 2017), the Resource Centers are to provide seven (7) types of assistance to 

claimants, as follows: (1) Provide information on claims process and program procedures to the DEEOIC claimant community; (2) Assist claimants 

in the completion of the necessary claim forms; (3) Take initial employment verification steps for all new EEOICPA claims filed with the RC; (4) 

Conduct occupational history development for certain employees; (5) Provide case-specific information and clarification to claimants and ARs; (6) 

Educate and assist the claimants regarding impairment and wage-loss benefits on cases with positive causation determinations; and (7) Provide 

medical bill payment assistance to claimants.
25

Moreover, when it came to approaching the CE for assistance, some claimants had other reservations. In 

particular:

• Some claimants worried about “bothering” the CE.

• As their claim progressed from developing evidence towards the issuance of a decision, some claimants 

were hesitant to seek advice from the CE or hearing representative (HR) since they were the person 

who would make the decision on their claim. Claimants were often concerned that the CE or HR might 

intentionally or unintentionally provide assistance that steered them towards the result that the CE 

or HR wanted. This sentiment was frequently expressed by claimants who felt that the CE or HR had 

already explicitly or implicitly indicated how they would rule on the claim. In these situations, some 

claimants questioned the quality of the advice that they could expect from someone who had already 

indicated how they would rule on the claim, while others felt that seeking advice from the CE or HR was 

a waste of time because a decision had already been reached.

B. Vagueness and lack of familiarity with program terminology.

In some instances, claimants encountered difficulties finding information because they were not familiar 

with the terminology and acronyms used by the program. The SEM database is a good example. If a 

claimant visited DEEOIC’s website, they would see a link to “Site Exposure Matrices – SEM.” We routinely 

heard from claimants who admitted that they had never clicked on this link because no one ever told them 

the meaning of the terms, “Site Exposure Matrices” or “SEM.”30 As a result, when searching for toxic 

substances known to have been used at a covered facility, some claimants never realized that they could 

access this information by clicking on the link to the “Site Exposure Matrices-SEM.” And we found this to be 

true even when the SEM had been mentioned in conversations and in documents. In fact, some claimants 

noted that terms such as SEM were used so commonly that they were embarrassed to admit to anyone that 

they did not understand what these terms meant.

Claimants also complained that locating information on DEEOIC’s webpage could sometimes be difficult 

because of the vague descriptions found on the website. This complaint was highlighted by a claimant who 

contacted us looking for information about wage-loss and/or impairment. When advised that there was a 

link on DEEOIC’s webpage entitled “Brochures,” including brochures addressing wage-loss and impairment, 

this claimant complained that the title “Brochures” did not provide sufficient information to make him/her 

aware of the specific information found on this link.31 To address the vague descriptions found on DEEOIC’s 

website, some claimants questioned if it was feasible to add a rollover function to the webpage so that 

when they rolled over certain links with their cursor, they could see a more in-depth description of the 

information that could be found in the link. 

30 Some claimants told us that while the term “Site Exposure Matrices” or “SEM” was frequently mentioned, they had no idea what it meant. 

31 “How Do I Qualify for an Impairment Award Under Part E of the EEOICPA,” and “Wage-Loss Benefits Under Part E of the EEOICPA” are two of the 

brochures available under this link. 
26

C. Claimants unable to reach their CE by telephone and/or their messages are not 

returned.

“...I talked to [the CE], it is like pulling teeth...[the CE] never follows up...”

Email from a claimant, March 2017.

 “If I call my claims examiner I often never get thru. I have been told they have 24 hours 

to respond. If you leave the house and they call and leave a message that they called 

you, you have to start the process all over. It makes it very difficult to speak to them...”

Email from a claimant, April 2017.

 “...a claims examiner would call me on a private number when she was not in the 

office. Her calls always came at the end of the day. When I tried to return her calls, she 

was never in the office and she never returned my calls. Also when she called all she 

would say in her message was that she was calling about the claim of XXX...”

Email from an AR, July 2017.

A common complaint noted that claimants found it difficult to talk to someone when they needed help. 

For years we received complaints indicating that when claimants telephoned DEEOIC for assistance, their 

telephone calls were not answered, and if they left a message, the message was not returned.32 These 

complaints usually involved attempts by claimants to call their CE and/or the District Office.33 DEEOIC 

initially responded to these concerns stating that it had implemented technological improvements to 

ensure that telephone calls were promptly answered and that when staff was not available, telephone calls 

were returned within a reasonable amount of time. In spite of DEEOIC’s response, claimants continued to 

complain that their telephone calls were not answered and/or their messages were not returned. See 2014 

Annual Report to Congress, January 8, 2016.

Because these problems persisted, we redoubled our efforts to assess this issue. In a subsequent conversation 

with DEEOIC on this matter in 2017, DEEOIC noted that its data showed that most telephone calls were 

returned within 24 hours. In response, we provided DEEOIC with what we had learned from claimants: 

• Most of the complaints that we received involved claimants who called his/her CE and had to leave a 

message because the CE was not available.

• If the clamant did not answer the telephone when the CE returned the call, then because of privacy 

concerns the CE simply left a message indicating that he/she had called.

• The short message indicating that the CE had called oftentimes dismayed claimants. This was especially

true when the claimant had left a detailed message for the CE.34 

32 Due to DEEOIC policy, claimants cannot communicate with the CE or with DEEOIC staff by e-mail. Rather their questions or concerns must be 

communicated via the telephone or letter.

33 We also receive complaints about interactions with DEEOIC’s medical bill contractor, Conduent. In most instances these complaints did not allege 

that Conduent did not answer the telephone. Rather, the concern was with the quality of assistance provided. 

34 Claimants who lived alone or simply lived with their spouse frequently noted that had they been asked, they would have given DEEOIC permission 

to leave a detailed message. 
27

• Since the CE’s message had not answered his/her question or concern, the onus was on the claimant to 

again call the CE. When the claimant called the CE again, the CE oftentimes was still not available. Thus, 

the claimant would leave another message, and as a result, some claimants soon found themselves in 

an ongoing game of telephone tag with the CE.

• Consequently, some claimants complained that it could take over a week to simply verify that the CE 

had received information they submitted, or to get an answer to a question. These situations were 

intensified when the claimant felt that the matter was time-sensitive. 

When we brought our observations to DEEOIC’s attention, they vowed to look into these matters. Since that 

time we talked to some claimants who indicated that when they left a message for their CE, they received a 

return call fairly promptly. However, some of these claimants complained that the person who returned their 

call was not the CE.35 These claimants asserted that it was a waste of their time to talk to someone who did 

not know their case, and thus, could not answer their questions. In addition, there were some claimants who 

continued to assert that their messages were not returned.36

Following our discussion with DEEOIC, it came to our attention that the reason some claimants did not 

answer the telephone when the CE returned their call was because they did not recognize the caller or the 

telephone number. This came to our attention when claimants and ARs complained that CEs had called 

back using a “private line.” It turned out that when CEs telephoned, caller ID did not identify the call as 

coming from DOL and did not display a telephone number that the claimant recognized as being associated 

with DOL. And this occurred even when the CE called back using a government telephone.37 This explains 

why DEEOIC was sometimes able to show that it had tried to return the claimant’s telephone call and yet 

the claimant complained that no one had returned his/her call.

D. Assistance with medical bills.

In 2017, we continued to receive complaints alleging a lack of assistance with medical bill-pay issues. We 

especially encountered these complaints at outreach events. By way of background, when claimants receive 

medical treatment from an “enrolled health care provider”38 the enrolled provider submits the bills directly 

to DEEOIC for payment. Therefore, when a claimant utilizes an enrolled provider, they should have little-tono reason to become involved in the bill-pay process. The situations where claimants needed help with the 

bill-pay process usually arose when:

(1) They used a provider who was not enrolled in the program and subsequent difficulties arose when 

they tried to obtain reimbursement for these services; or, 

(2) They learned of an outstanding medical bill that was not paid by DEEOIC. In these situations 

claimants often intervened because they feared that failure to pay the bill could: (a) impact their 

credit; (b) result in a collection action; or (c) result in the termination of needed medical services. 

35 Many claimants find it troubling when the person with whom they are directed to talk to about their claim keeps changing. 

36 In some instances, it was difficult to determine if the claimant experienced his/her problems receiving a return call before or after DEEOIC vowed 

to look into this matter.

37 It appears that when telephone calls are made from some of the telephone systems used by DOL agencies, the caller’s direct telephone number 

does not appear on caller ID. Rather, caller ID displays a general number. In addition, caller ID does not identify the call as coming from DOL.

38 An enrolled health care provider is one who has submitted the necessary paperwork to receive electronic payment for medical services directly 

from DEEOIC. A health care provider who does not enroll with DEEOIC will not receive electronic payments, and the claimant must directly pay this 

provider for any medical treatment and seek reimbursement from DEEOIC.
28

Thus, for many claimants becoming involved in the bill-pay process was a new experience. In addition, we 

found that when they encountered difficulties with bill-pay issues, claimants usually needed immediate help. 

“I have had many... cancers treated over the years, but have used the DOL program 

very little...I asked the xxx office to submit the latest claim to DOL but have not 

heard whether it was settled or not.

During that visit, I was subscribed xxx to treat some cancers...This xxx was only 

partially covered by some form of insurance and my out of pocket cost was ...If I can 

be reimbursed for this cost, I would appreciate it.”

E-mail from a claimant, February 2017.

DEEOIC has resources to assist claimants with bill-pay issues and we are aware of instances where these 

resources assisted claimants in resolving medical bill-pay issues.39 However, some claimants complained 

that when bill-pay issues arose, (1) they did not know where to turn for assistance, and (2) when they 

asked for assistance, they did not obtain adequate assistance. A common complaint involved situations 

where claimants asserted that they repeatedly approached DEEOIC with the same bill-pay issue and, in 

response, DEEOIC repeatedly provided them with the same guidance that did not resolve the problem. 

These claimants often felt that their problems could have been resolved (or resolved sooner) if instead of 

repeatedly telling them what to do, DEEOIC had taken the time to directly work with them and the provider 

to resolve the problem. 

“The current issue is there is no process or ownership for an appeal of a fee [for 

services] being denied...I was told by multiple ACS [now Conduent] employees the 

codes determine if your claim is approved or denied, they didn’t know anything about 

an appeals process. I was told by an ACS Supervisor there is no appeals process for 

when a fee is denied. There is only an appeals process if there is a fee reduction. I 

was told the Claims Examiner had to update my treatment package to add the missing 

procedure, diagnosis or NDC codes. My CE told me that they can’t add codes to 

the treatment plan. I would have to get the charges processed through my medical 

insurance or have the billing facility change the codes and re-bill...No one has been 

able to tell me who reads the information submitted for a Fee Denied Reconsideration, 

what the process is or how a claimant is notified of the result.”

E-mail from a claimant, June 2017.

We also talked to a few claimants who, while happy that their medical bill-pay issue had been resolved, 

complained that assistance was only provided after he/she persisted in pursuing, or escalating the matter 

beyond the CE, oftentimes to the National Office.

39 As noted earlier, providing medical bill payment assistance is one of the types of assistance that the Resource Centers are to provide. See Chapter 

4.3(b) (December 2017).
29

CHAPTER 5 

DIFFICULTIES OBTAINING REPRESENTATION AND LOCATING PHYSICIANS

In Chapter 4, we discussed the difficulties encountered by claimants when attempting to obtain assistance, 

in general, with their claims. Claimants also complained that it was difficult to find an authorized 

representative (AR) to help process their claim; while others complained that it was difficult to find 

physicians who would write the medical reports necessary to support their claim.

A. Some claimants cannot find an AR who will represent them.

There were some claimants who did not want to use an AR to process their claims.40 However, this was 

not true for every claimant. Many claimants wanted to utilize the services of an AR because they were 

overwhelmed by the legal, medical and/or scientific concepts that arose in their claim. In other instances, 

claimants sought the assistance of an AR because of physical and/or cognitive limitations that made it 

difficult to pursue a claim on their own. Yet, while they may have wanted to utilize an AR, some claimants 

found it difficult, if not impossible, to locate an AR, or to locate an AR who was willing to represent them.

Some claimants blamed their inability to find an AR on the inadequate fees provided by the attorney fee 

schedule. The difficulties with the current attorney fee schedule are discussed in Chapter 4. In a nutshell, 

claimants complained that:

• Where the fee schedule did not explicitly address the fee an AR could charge for representing a 

claimant with a particular matter, some ARs refused to represent claimants on issues related to those 

matters. Some of the most common matters for which claimants could not obtain AR representation 

were medical bill-pay issues, home health care issues and/or durable medical equipment or home 

modification issues.

• Some ARs avoided the more complex and/or time consuming cases because the fee schedule did not 

take these factors into consideration. We frequently heard from claimants struggling to retain an AR to 

assist with a complex Part E claim for benefits.

• As some cases became more complex and/or more time consuming, some ARs terminated their 

representation of claimants, recognizing that they would not be fully compensated for their time and effort.

B. Difficult to locate physicians to provide treatment and write narrative medical 

reports for claimants. 

We also received complaints alleging that it was difficult to locate physicians willing to treat EEOICPA patients 

and/or willing to accept the EEOICPA medical benefits card. To be clear, in many parts of the country there is a 

40 The two most common reasons for why some claimants did not utilize the services of an AR were: (1) claimants realized that they would be responsible for any attorney’s fees that had to be paid and they had more pressing needs for any compensation they received; and, (2) some claimants 

did not want to engage in actions that might be viewed as “fighting the government” and they feared that using an AR would be viewed as “fighting 

the government.”
30

general shortage of medical personnel. Yet the claimants who approached us often felt that their search for 

a physician was made more difficult because of factors specifically related to this program. 

For instance, we talked to claimants who were attempting to obtain a medical report addressing the link 

between their claimed illness and exposure to a toxic substance(s) at a covered facility who firmly believed 

that local physicians were reluctant to write such a report due to the perception they were being asked to 

“take on DOE contractors.” Claimants often attributed this reluctance to the fact that the DOE contractors 

were sometimes one of, it not the biggest employer in the area. As one might expect, this assertion was 

usually raised by claimants who still lived close to the covered facility. These claimants often told of 

situations where as soon as they asked about the relationship between their illness and their employment, 

the physician immediately indicated that he/she could not help them. 

Other claimants complained of encountering physicians who were unwilling to become involved with 

workers’ compensation claims in general and/or with EEOICPA claims in particular. We routinely heard of 

instances where in explaining his/her reluctance (or refusal) to treat EEOICPA claimants, the physician had 

offered one, or both, of the following reasons: 

• Prior problems receiving payment for medical treatment of DEEOIC claimants;

• Not wanting to be second guessed by DEEOIC claims staff and/or nurses. According to the complaints 

we received, some physician questioned the expertise of the person from DEEOIC who was second 

guessing their opinion and reports, and/or questioned the medical rationale of those who were doing 

the second guessing.41

We also encountered claimants who attributed the decision of some physicians to stop treating EEOICPA 

patients to some of the policies that had been adopted by DEEOIC. In particular: 

• Some claimants noted they received development letters from DEEOIC asking them to submit 

additional medical causation evidence without being provided copies of the employment and toxic 

exposure evidence in their claim file (i.e., SEM search results, employment, and exposure records). 

These claimants argued that this essentially ensured that their medical evidence would be deemed 

insufficient, thus requiring them to return to their physician for a supplemental report, usually still 

without the benefit of the SEM searches or other exposure evidence from their claim file.

• It was also noted that copies of the reports prepared by DEEOIC’s specialists, such as Industrial 

Hygienists (IH) and Contract Medical Consultants (CMC), were only provided to claimants when they 

received their recommended decision. Once again, claimants complained that this essentially ensured 

that after they received their recommended decision and were facing a 60-day deadline to file objections 

to their recommended decision, they would have to return to their physician to ask him/her to review the 

reports prepared by the DEEOIC specialist, and write another report for them to send to DEEOIC.

• Some claimants felt that their inability to receive advanced guidance outlining the information that 

should be included in medical reports prepared by their physicians often resulted in these reports being 

found deficient, thus necessitating a supplemental report from these physicians.

41 Some years ago DEEOIC hired nurse consultants to assist in the evaluation and analysis of medical evidence. According to Chapter 30.2(j)(3) of 

the PM, DEEOIC medical staff serve as a technical resource to the District Offices in regards to claims-related issues and can assist in the determination of appropriate services and procedures that require authorization by DEEOIC. Instances of DEEOIC nursing staff calling and/or writing 

to treating physicians regarding the physicians’ treatment recommendations has been an ongoing concern for claimants and their physicians, who 

complain of the “second guessing” nature of the communication from some nurse consultants or the MBE/CEs they are assisting. 
31

CHAPTER 6 

DIFFICULTIES LOCATING EVIDENCE

In our prior annual reports, when discussing complaints concerning the lack of assistance provided to 

claimants, we focused on DEEOIC’s statutory duty to provide assistance. In its response to our 2015 Annual 

Report, DOL noted that unless otherwise specified in the statute, the claimant bore the burden to prove 

by a preponderance of the evidence the existence of each criterion necessary to establish their claim for 

benefits. Therefore, DOL indicated that while it could assist claimants in gathering facts or finding evidence, 

it was incumbent upon claimants to utilize the available evidence to prove their case.42 To make clear, over 

the years and continuing in 2017, some claimants have questioned the efforts undertaken by DOL to assist 

them in gathering facts or finding and developing evidence.

A. Claimants were not given sufficient time to develop evidence.

After a claim for benefits is filed, DEEOIC sends claimants “development letters” asking the claimant to 

submit evidence in support of their claim. Moreover, when the evidence submitted by the claimant is 

deemed by DEEOIC to be insufficient, DEEOIC will send a letter asking the claimant to submit additional 

evidence. A common complaint arose when claimants were given a limited amount of time, usually 30 

days, to submit evidence to support their claim. Claimants argued that it was unreasonable to expect 

them to obtain and submit additional evidence within 30 days from the date of the letter mailed to them 

from DEEOIC. We especially heard this argument when claimants were asked to submit medical evidence. 

Claimants routinely assured us that they felt lucky if they could get an appointment to see the physician 

within 30 days. Consequently, they argued that it was unreasonable to expect them not only to see the 

physician but to also obtain and submit the physician’s report within 30 days. As a result, there were 

instances where because the claimant was convinced that he/she could not obtain a medical report from 

the physician within 30 days, the claimant did not even try.43

Claimants who were given 30 days to submit additional evidence could have asked for an extension of time 

to submit this evidence.44 However, the option to ask for an extension of time was one of the many aspects 

of this program that often was never brought to the claimant’s attention, or only brought to the claimant’s 

attention well after it would have been most useful. The claimants we encountered usually had not been 

told that they could request an extension of time to submit evidence. 

We also received complaints from claimants who noted that while the initial development letter 

never mentioned they would be provided another 30 day period, they subsequently received a second 

development letter from DEEOIC affording them another 30 days to submit evidence in support of their 

claim. Some claimants maintained that they would have pursued their claims differently had they known 

42 DOL further noted that while OWCP was required by 42 U.S.C. § 7384v to provide claims assistance under Part B, OWCP had chosen to 

voluntarily apply the same standards of assistance to claimants under Part E.

43 For instance, we talked to claimants who noted that because the physician had already expressed reservations about getting involved with the 

EEOICPA and/or a workers’ compensation program, they decided that it was better not to test the physician’s patience by trying to obtain a medical 

report from him/her within 30 days.

44 The EEOICP Procedure Manual at Chapter 16.5(d)(2) (December 2017) states that, “[r]easonable time extensions may be granted by the CE.” 

Although the PM does not state that requests for an extension of time must be made in writing, in practice, it appears that DEEOIC requires them to 

be made in writing.
32

they would get a minimum of 60 days to collect and submit evidence to DEEOIC. In addition to indicating 

that they would have felt less stress, some claimants noted that believing that they only had 30 days to 

collect evidence had caused them to limit the evidence they tried to collect, or had led them to conclude 

that they did not have sufficient time to collect any evidence. 

Claimants frequently argued that it was unfair that they were only given 30 to 60 days to submit evidence. 

In support of this argument claimants noted that while they only given 30 to 60 days to submit evidence, 

DEEOIC often took more than 30 to 60 days when it needed to develop evidence or needed to refer a 

claim to an expert for an opinion. This led claimants to ask why DEEOIC was not required to operate under 

the same deadlines that applied to claimants. In the opinion of many claimants, the fact that DEEOIC 

oftentimes needed more than 30 days to develop medical evidence underscored their argument that it was 

unreasonable to expect claimants to obtain and submit medical evidence within 30 days. 

B. Assistance obtaining employment and exposure evidence.

When a claim is filed, DEEOIC contacts DOE to verify the claimed employment and, as appropriate, also 

attempts to verify employment through the Oak Ridge Institute for Science and Education, the Center for 

Construction Research and Training, Social Security Administration wage data, and/or corporate verifiers. 

In many instances, DEEOIC’s efforts were sufficient to verify employment. However, complaints sometimes 

arose when DEEOIC was unable to verify claimed employment and then informed claimants that the burden 

was on them to verify each criterion necessary to establish employment at a covered facility.

While claimants fully understood that it was their burden to verify each criterion necessary for a claim, 

they routinely reminded us that, in most instances, the government or the employer had (or once had) sole 

possession of these records. Therefore, since they never possessed the necessary employment records, 

claimants often asserted that they needed assistance gathering the facts and finding the necessary evidence. 

When the records needed to verify employment could not be located, some claimants asked DEEOIC for 

suggestions of other ways to prove their employment. A common suggestion offered by DEEOIC was for 

claimants to obtain affidavits from former colleagues. Claimants routinely responded to this suggestion 

by telling us that they had not kept in contact with former colleagues, and thus, they had no idea how to 

contact them. We were also told of instances where the colleagues who had knowledge of the claimant’s 

employment and could be located did not have the capacity to complete an affidavit. Thus, in response 

to the suggestion that they obtain affidavits from colleagues, claimants often wanted to know if the 

government was willing to assist them in locating these former colleagues. The claimants who raised 

this question usually felt that since the government was well aware that such records were not publicly 

available, then the assistance offered to them in gathering facts and finding necessary evidence should 

have included efforts to assist them in finding these former colleagues. These claimants also believed that 

the government had access to resources that could facilitate the search for former colleagues. When told 

that privacy concerns prevented the government from sharing other people’s contact information with 

them, claimants responded by suggesting that instead of providing them with the contact information, the 

government could directly contact the former colleagues on their behalf.45

45 Among other options, some claimants believed that OWCP could have reviewed previously accepted claims and could have identified former 

employees who performed the same work (at the same time) or who had worked nearby. 
33

However, complaints concerning difficulties obtaining employment records were not limited to the efforts 

needed to locate former colleagues. During the DEEOIC training session in Jacksonville, Florida, at least 

one attendee took exception when it was suggested that since DEEOIC obtained employment records from 

DOE, it was not necessary for claimants to file Freedom of Information Act (FOIA) requests for employment 

information. A few of the ARs in attendance made it clear to us that they questioned the thoroughness of 

the process used by DEEOIC to obtain employment records. Over the years, we heard similar concerns from 

other ARs as well. We have been told of instances where employment documents obtained by claimants as 

a result of a FOIA request included additional documents that had not been included in the records provided 

to DEEOIC. From what we can tell, it is not common for claimants to seek records via a FOIA request, or for 

additional records to be produced as a result of a FOIA request. Yet, even a few instances of the production 

of additional documents through a FOIA request has caused some ARs (and claimants) to question the 

thoroughness of the search for records that occurs when DEEOIC requests employment records from DOE.

In another instance, an AR questioned the assistance provided to claimants in obtaining exposure records 

for former employees of Area IV of the Santa Susana Field Laboratory. In particular, this AR complained 

that delays in receiving exposure information from the employer had, in turn, delayed NIOSH’s ability to 

promptly perform radiation dose reconstructions. At a meeting held to discuss this concern, the AR was 

assured that this matter was being addressed. Still, it troubled this AR that: (1) the inactions of the employer 

had delayed the processing of some claims; and, (2) it appeared that steps to resolve the issue were only 

undertaken when the matter was escalated.

This same AR questioned the efforts put forth by DEEOIC to assist in verifying the employment of some 

former Santa Susana employees. At Santa Susana, only employment at Area IV is deemed covered 

employment. This AR argued that it had been previously established that some workers who routinely 

worked in Area IV actually signed in at other areas of this facility before they began their work day. It 

concerned this AR that while DEEOIC had obtained some employment records, DEEOIC had not obtained 

all of the information needed to identify workers who signed in elsewhere, but worked at Area IV.

C. Difficulties locating evidence regarding the status of a facility.

Claimants complained about the assistance (or lack of assistance) they received when they questioned a 

facility’s designation as a covered facility under the EEOICPA. Most of these complaints involved instances 

where claimant questioned the facility’s designation as an Atomic Weapons Employer (AWE) facility, but 

not as a DOE facility. However, there was at least one instance in 2017 where the claimant argued that a 

facility designated as a Beryllium Vendor should have been designated as an AWE. In addition, there were a 

few instances where claimants took exception with the designated years of coverage for a particular facility. 

Claimants complained that it was extremely difficult to locate the documents necessary to challenge 

a facility’s designation (or lack of designation) as a covered facility. Attempting to challenge a facility’s 

designation was often cited as another instance where a claimant’s efforts to locate relevant evidence were 

severely hampered by the fact that he/she never had access to relevant records, and thus, had no idea 

where (or to whom) to turn to find this information. 
34

We also talked to claimants who complained that the decision process surrounding a facility’s designation 

was never fully explained to them. This issue was raised by some former Pacific Proving Ground (PPG) 

workers. While at least some of these employees worked at Bikini Atoll during a period of remediation, their 

claims were denied because they worked on the DOD side of the island or worked with the Department of 

Interior. In their conversations with us, these employees made it clear that they continued to have questions 

surrounding their work and whether they were covered employees working at a covered facility. Similar 

complaints were raised by former AWE employees who noted that while they had been told that their 

facility qualified as an AWE facility, and not as a DOE facility, the basis for this determination had never 

been fully explained to them.46

It troubled some claimants that, as far as they could determine, the only way to obtain independent review 

of DEEOIC’s determination regarding the designation of a facility was to possibly file an appeal in federal 

district court. Claimants complained that when the issue of a facility’s designation was before the district 

office or the Final Adjudication Branch (FAB), the district office and/or FAB simply deferred to the previous 

determination made by DEEOIC and/or DOE on the matter. It troubled these claimants that the district 

office and/or FAB made no effort to independently review DEEOIC’s prior determination. For example, a 

former employee of Blockson Chemical Company has repeatedly questioned the credibility of the document 

relied on by DEEOIC to determine the years of coverage for this facility. It troubles this claimant that he/

she has not been able to obtain an independent review of DEEOIC’s decision to rely on this document, a 

document which the claimant believes is flawed. 

D. Lack of guidance developing medical evidence.

We continued to receive complaints concerning the lack of guidance provided to claimants when they were 

developing medical evidence in support of their claim for benefits under Part E of the EEOICPA. Specifically, 

claimants complained that when trying to develop medical evidence to establish causation between their 

illness and toxic exposure at a covered facility, it was often difficult, if not impossible to find guidance 

outlining what DEEOIC wanted in a medical report (or, specifically what they needed to ask their physicians 

to include in the report). Some claimants wondered why samples of acceptable medical reports were not 

available for review. 

Others complained that when they initially asked for guidance, at best, they received very general 

instructions. Claimants who were not given any guidance (or only given general guidance) often found it 

troubling when, in finding their medical report was insufficient, DEEOIC would then inform them of specific 

information that was missing. These claimants would frequently ask why more specific instructions had not 

been provided to them earlier in the claims process. 

Some claimants have blamed the lack of specific and timely guidance in developing medical evidence for 

causing unnecessary tensions between them and their physicians: 

• Claimants shared instances where, in asking their treating physician to prepare a medical report for 

DEEOIC, the situation grew tense as the physician repeatedly demanded additional guidance and the 

claimant repeatedly explained that DEEOIC’s letter asking for additional evidence was the only guidance 

he/she had received.

46 We talked to former AWE employees who noted (or believed) that their employer had a contract with DOE (or one of DOE’s predecessors). Thus, 

they wanted someone to explain why this contract with DOE did not qualify the employer as a DOE contractor.
35

• Claimants also indicated that things could become very tense when the physician had previously 

prepared a medical report and was now being asked to provide additional information. Some claimants 

noted that their physician did not find DEEOIC’s letter asking for additional information to be very 

helpful. Others noted that their physician balked at providing additional information when the physician 

felt that his/her earlier report had provided all of the information that was necessary.47

We also talked to claimants who believed that the lack of guidance, and the resulting need to submit 

supplemental medical reports, was such a common problem that some physicians had become frustrated 

and had stopped providing treatment for EEOICPA claimants. Throughout the year, we were told of 

instances where, in refusing to treat a claimant, the physician had specifically cited to the paperwork 

required by this program as one of the factors prompting this decision. 

DEEOIC has responded to the suggestions that some physicians refused to treat EEOICPA patients because 

of the paperwork by emphasizing that physicians can submit a bill for the time they spend preparing 

reports. However, both claimants and providers have told us that money was not always the issue, and 

that money did not address all of the concerns raised by physicians who complained that they were asked 

to provide multiple clarifications to their report without ever receiving meaningful guidance. Thus, it was 

emphasized that for some physicians the decision to no longer treat EEOICPA patients was prompted by 

concerns with managing his/her time. 

47 We were told of instances where physicians balked at providing supplemental information because they were adamant that the information 

sought by DEEOIC had been discussed in their original report.
36

CHAPTER 7

DIFFICULTIES WITH THE WEIGHING OF EVIDENCE

A. Affidavits prepared by workers and close family members were discredited if 

not supported by other evidence.

The weight given to affidavits prepared by claimants on their own behalf continued to be an issue for some. 

Earlier in this report, we addressed the difficulties encountered by claimants when trying to locate evidence 

to support their claim. When they were unable to locate other evidence or former colleagues to help verify 

their employment, the only viable alternative in some instances was for the claimant to prepare his/her 

own affidavit (or to testify at the hearing on his/her own behalf). Claimants complained that DEEOIC has 

established a very high bar for accepting affidavits prepared by workers (or close family members). In 

particular, it concerns former workers that DOL generally will only accept the affidavits prepared by them or 

close family members if the affidavit is supported by other evidence in the record. 

Most of the former workers that we encountered who submitted their own affidavit could not support their 

affidavit/testimony with other documentation. In some instances, relevant evidence was lost or destroyed 

through no fault of the claimant. In other instances, claimants contended that existing employment records 

merely outlined the procedures for how the work was supposed to be done, but did not actually describe 

how the operations at their facility were actually carried out on a day-to-day basis. 

Former workers routinely reminded us that they had first-hand knowledge of how these facilities 

operated. Therefore, former workers found it troubling that as a result of DOL’s insistence on additional 

documentation to corroborate their affidavits, it appeared that no consideration was given to the affidavits 

or testimony they provided. This concern was frequently raised by former workers who could not only name 

the toxic substances they worked with, but could also describe how they used these toxic substances in 

carrying out their duties. We also encountered former workers who not only asserted that they worked at a 

particular site, but could explain the precise work they performed; describe in great detail where this work 

was performed; and provide the names of others who worked with them. Yet, many former workers felt that 

providing DEEOIC with such detailed information was a waste of time since DEEOIC appeared to require 

that affidavits/testimony be consistent with SEM data or supported by other evidence in the record. Former 

workers found it frustrating when, after taking the time to develop and submit this evidence, DEEOIC did 

not undertake any effort to weigh and discuss the credibility of this evidence.

We also encountered claimants who believed that DEEOIC’s insistence on other supporting documents was 

a reflection of DEEOIC’s mistrust of claimants. In the opinion of these claimants, DEEOIC’s insistence on 

other supporting documentation was an indication that DEEOIC questioned their credibility.

We also talked to claimants who believed that DEEOIC’s approach to affidavits prepared by workers 

was prompted by DEEOIC’s realization that some CEs do not have the technical expertise to judge the 

credibility of these affidavits. This belief was frequently expressed by workers who complained that in spite 

of including very specific and very technical facts in their affidavits, their affidavits had been summarily 

discredited. These workers were often confident that if someone with knowledge of the facilities had 

reviewed their affidavits, they would have been deemed credible. 
37

In addition, some claimants complained that the bar set by DEEOIC for accepting affidavits prepared by 

workers (i.e., requiring other supporting documents in the record) was higher than the bar they would have 

encountered had their claims gone to federal court. Claimants felt that in a court of law their affidavits 

would have been judged on their credibility. 

B. Claimants did not feel they were provided an adequate opportunity to 

supplement their evidence. 

During the year some claimants complained that they did not have an adequate opportunity to supplement 

information they had provided to DEEOIC. In an effort to understand this concern, we reviewed many 

of the 2017 recommended and final decisions that claimants shared with us. Based on our review, and 

relying on the statements in these decisions, it appeared that prior to the issuance of the recommended 

decision DEEOIC often provided the claimant with an opportunity to submit additional evidence addressing 

deficiencies that had been identified. Yet, in spite of our findings, these complaints continued. Upon further 

review, what we observed was that as they learned more about the evidence needed to prove their claim, 

claimants were not always made aware that they could supplement any/all of the evidence they previously 

provided to DEEOIC. 

The Occupational History Questionnaire (OHQ) illustrates the problem. When a new claim is filed, 

the Resource Center completes an Occupational History Questionnaire with each claimant. Claimants 

participating in the OHQ interview are encouraged to share as much information as possible about their 

employment and exposure(s) at covered facilities. However, many claimants have reported to us that 

it was impossible to tell the Resource Center staff everything about their employment in one interview, 

especially when their employment spanned many years, involved a variety of different job duties; and/or 

occurred many years ago. Therefore, in completing the OHQ, many claimants indicated that they provided 

an overview of their employment and assumed that as their claim progressed, DEEOIC would ask for 

additional information.48 Consequently, it often came as a surprise to claimants when the reports prepared 

by DEEOIC’s specialists and/or the decision issued by the CE or HR relied on information obtained during 

the OHQ.49 Claimants frequently responded to these situations by asserting that if someone had suggested 

it, they would have taken the time to supplement the OHQ. There were also other instances where, in 

light of the additional evidence collected by DEEOIC (and/or the additional evidence they had submitted), 

claimants argued that it should have been obvious to DEEOIC that the OHQ needed to be supplemented.50

We also found that when claimants provided DEEOIC with additional information to support their claim, 

they simply updated the one document they were asked to update, or merely focused on one specific fact/

issue. Claimants did not always think (and no one suggested) that they take the time to review and possibly 

supplement all of the information they had previously submitted to DEEOIC. 

48 In our experience, most of the claimants we encountered were not aware that they could ask for a copy of their OHQ to review. And these claimants usually were not informed and did not understand how this information would be used in the adjudication of their claim.

49 The versions of the PM published in 2017 do not indicate whether claimants are provided a copy of the OHQ to review prior to the RC forwarding 

it to the District Office. 

50 We also spoke to claimants who felt that to the extent DEEOIC had encountered a conflict between the information contained in the OHQ and the 

additional evidence that they had submitted, DEEOIC had not pointed this out to them or sought clarification from them. Many of these claimants 

maintained that had they been asked, they could have explained any perceived conflicts in this evidence.
38

In addition, we observed that some claimants did not take advantage of the opportunities presented 

to them to submit additional evidence; and others did not have any additional evidence to submit. 

However, we encountered many instances where claimants did not submit additional evidence because 

they overestimated the quality of the evidence that DEEOIC had obtained from DOE or other sources. A 

good example of this problem occurred in Part E cases where claimants overestimated the quality of the 

evidence obtained by DEEOIC from the DOE. In Part E cases, DEEOIC often sends a Document Acquisition 

Request (DAR) to DOE seeking copies of the worker’s personnel file, to include medical, employment, 

and exposure records.51 Thus, there were instances where, by the time DEEOIC asked the claimant for 

additional information in support of his/her claim, DEEOIC had already obtained the DAR records. Many 

of the claimants we encountered were never told of and never thought to review their DAR records. Rather, 

they assumed that having obtained their records from DOE, the CE now had an accurate understanding 

of the work they performed and the toxic substances to which they had been exposed. It surprised these 

claimants when they learned that, even though DEEOIC had obtained their records, DEEOIC did not have an 

accurate understanding of their work and/or the toxic substances to which they had been exposed. All of 

this would make some claimants remark that had they realized DAR records existed in their claim, or that 

the records DEEOIC obtained were not complete, they would have taken time to review those records and, 

where necessary, provide DEEOIC with additional information. 

C. Copies of reports by DEEOIC specialists.

In the past, claimants were not automatically provided copies of the reports prepared by DEEOIC 

specialists, and were not notified of their right to ask for copies of these reports. However, DEEOIC 

announced that it would now provide claimants with copies of the some of the reports prepared by 

specialists. While pleased with this announcement, claimants still had concerns. For instance, DEEOIC’s 

announcement indicated that claimants would be provided copies of the reports prepared by DEEOIC’s 

specialist at the same time they received the recommended decision. Many claimants felt that this was 

too late in the process. Claimants argued that by the time the recommended decision was issued, they had 

already submitted medical evidence (and sometimes revised medical and exposure evidence per DEEOIC’s 

request). Thus, claimants argued that receiving the specialist’s report(s) along with the recommended 

decision often put them in a position where it would be necessary to return to their treating physician for 

a supplemental report (or additional evidence), which in turn would infuriate the treating physician and/

or push the treating physician to the point where he/she refused further assistance on the matter, or in 

the worse instances, end their relationship with the claimant. In addition, it was argued that receiving the 

specialist reports along with the recommended decision almost always resulted in DEEOIC giving greater 

weight to the DEEOIC specialist, who had been given the opportunity to review the evidence submitted 

by claimant, without the claimant’s physician or expert having the same opportunity to review any of the 

evidence from the claim file, i.e., SEM search results, DAR records, etc. 

In similar fashion, claimants argued that providing copies of the specialist reports along with the 

recommended decision put claimants at a clear disadvantage when the CE weighed the report prepared by 

the CMC against the report prepared by their treating physician. Claimants noted that in many instances, 

the CMC had been given the opportunity to review the reports prepared by DEEOIC’s specialists and the 

51 DAR records consist of radiological dose records; incident or accident reports; industrial hygiene or safety records; pay and salary records; job 

descriptions, medical records, and/or other records. See PM, Chapter 15 (December 2017) for an explanation of the DAR.
39

claimant’s physician, while the claimant’s treating physician was not given the opportunity to review the 

reports prepared by DEEOIC’s specialists or the CMC. Under such circumstances, claimants felt that it was 

a foregone conclusion that the CE would give greater weight to the opinion of the CMC.52

Claimants also noted that when DEEOIC forwarded the claim to the CMC, DEEOIC provided a Statement of 

Accepted Facts (SOAF) which narrowed the issues the CMC was to address, and supplied the CMC with an 

outline, as well as copies of medical and exposure evidence from the claim file. Claimants argued that it was 

unfair that their physicians were not provided with the same opportunity to review the SOAF, as well as the 

evidence that the CE had determined to be relevant to share with the CMC. 

In response, DEEOIC has noted that claimants can object to the recommended decision, and as part of their 

objections can review the specialist reports and submit supplemental (or additional) reports. However, 

claimants routinely argued that this was not an adequate remedy. Claimants believed that once DEEOIC 

has issued a decision recommending the denial of their claim, they face a steep, uphill battle to prevent the 

final decision from denying their claim. To resolve these concerns of unfairness, claimants argued that when 

the case was before the CE, both the CMC and the treating physician should be on equal footing, with each 

having the opportunity to review the same evidence and address the same issues.

D. Issue—the focus on the extent and level of exposure.

For the past few years, and continuing in 2017, there was a noticeable increase in complaints involving 

cases where the evidence submitted by claimants was deemed lacking because the claimant or their 

physician did not address the level and/or extent of exposures to a specific toxic substance(s). In response, 

some claimants complained that they were never aware that they needed to provide specific information 

addressing the level or extent of their exposures to specific toxic substances. Claimants pointed to this 

as another example of where, when they participated in the OHQ or asked their physician to prepare a 

medical report, they did not know that DEEOIC would need specific information on the level and extent of 

their exposure to specific toxic substances. In fact, some claimants noted that when they completed the 

OHQ or asked their physician to prepare a medical report, they had not received any of the toxic exposure 

information DEEOIC had developed, including exposure information from the SEM database and/or DAR 

records. To address this concern, claimants felt that as DEEOIC identified the specific toxic substances to 

which they may have been exposed, and began to narrow the focus of its inquiry to the level and extent of 

exposure to these toxic substances, DEEOIC should have provided them and/or their physicians with the 

opportunity to review this information, or at the very least, the opportunity to supplement their reports by 

specifically addressing the extent and the level of exposure to the particular toxic substances identified 

by DEEOIC. And they wished to do so before the deadline was approaching for them to make a decision 

regarding whether to file objections to a decision recommending the denial of their claim.

52 DEEOIC requires that medical causation reports from physicians be “well-rationalized,” which is described as follows: Specifically, a well-rationalized causation opinion from a qualified physician is one that communicated an accurate understanding of an employee’s toxic substance exposure; 

discusses an employee’s medical history and pertinent diagnostic evidence; and applies reasonable medical judgment informed by relevant, creditable medical health science information, as to how the exposure(s) at least as likely as not significantly contributed to, caused or aggravated the 

employee’s claimed condition. PM, Chapter 15.13(b) (December 2017).
40

In our 2016 Annual Report, we noted that DEEOIC had made statements at various meetings of the 

Advisory Board on Toxic Substances and Worker Health (ABTSWH) indicating that it would provide 

treating physicians with the opportunity to review the results of DEEOIC’s SEM searches and other 

exposure evidence in the claimant’s file. See 2016 Annual Report to Congress. In response to these 

comments, some claimants and ARs have told us that their treating physicians have not been provided with 

the opportunity to review DEEOIC’s SEM search results and other exposure evidence from their claim file. 

Still everyone hoped that this would soon become the norm.

In addition, while happy to hear that treating physicians will have the opportunity to review the results of 

DEEOIC’s SEM search results and other exposure evidence in the file, some claimants have questioned 

the timing of this opportunity. Specifically, claimants questioned if this information would be provided to 

their physician prior to the issuance of the recommended decision. As noted earlier, many claimants firmly 

believe that once a decision recommending the denial of a claim is issued, they face a steep, uphill battle to 

change that result. Thus, claimants feel that it would be most effective if their treating physicians had the 

opportunity to review the results of the SEM searches, and other exposure evidence, prior to the issuance of 

the recommended decision. 

E. The weight given to the SEM database and evidence provided by employers.

The Procedure Manual states that “[a] CE is not to discredit evidence from the DAR or other sources 

because SEM does not validate an exposure.” See EEOICP Procedure Manual Chapter 15.7(a) (December 

2017). In spite of this statement, claimants argued that DEEOIC often used the SEM database as the 

measure by which all other evidence was evaluated. Claimants complained that other evidence was deemed 

credible if it was consistent with the information found in SEM, or was rejected (or given little weight), 

if it was not consistent with the information found in SEM. Since they questioned the accuracy of SEM, 

claimants often found this reliance on SEM to be problematic.53

Concerns regarding the reliance on SEM were raised by former workers of the various gaseous diffusion 

plants. In complaining that their testimony and affidavits were dismissed because they were inconsistent 

with information found in SEM, former gaseous diffusion plant workers argued that: (1) they were not 

given an adequate opportunity to correct the information found in SEM; or, (2) their efforts to correct the 

inaccuracies in SEM were unsuccessful.54

Similar complaints were raised by former security guards at the Iowa Ordnance Plant (IOP) who repeatedly 

questioned DEEOIC reliance on the information in SEM which indicated there were no known toxic 

substances to which security guards at IOP were exposed. These guards felt that if, instead of relying on 

the information in SEM, the CE or the IH had talked to them, they could have explained in detail why the 

information in SEM was incorrect.55

53 Some claimants were aware that the SEM homepage contained the disclosure, “The exposure and diagnosed illness information provided on this 

website is not complete.” Some claimants felt that this acknowledged limitation of the data in SEM was not taken into account during the claims 

adjudication process.

54 In most instances, former workers did not have records or other documents to support their statements. Nevertheless, they were usually confident 

that if their statements were reviewed by someone with technical knowledge of these operations, their statements would be found to be credible.

55 Some of these claimants have produced affidavits, facility maps, and other documentation they believe supports their position that the SEM data 

with respect to security guards at the IOP is incomplete, particularly because no toxic substances are currently linked to the “security guard” labor 

category in SEM.
41

A claimant who worked as a chemist complained that in preparing their reports, the IH and CMC had 

relied on inaccurate information found in SEM.56 This claimant argued that it would have been beneficial 

if he/she could have talked to the IH and CMC before they issued their reports.57 In light of his/her work 

at this facility, and his/her expertise, this claimant believed that he/she could have corrected many of the 

inaccuracies found in the SEM.

At its meeting on October 17-19, 2016, the ABTSWH recommended that DEEOIC establish a procedure 

whereby IHs could interview the claimant directly.58 DEEOIC subsequently responded by agreeing that there 

were certain circumstances in which it might be beneficial for the IH to speak directly to the claimant. In 

response, DEEOIC noted that it had begun to develop procedures for claims examiners to use when such 

discussions between IHs and claimants are appropriate, and claimants look forward to the implementation 

of these procedures. Still, some claimants expressed reservations as to whether these new procedures 

would address their concerns. While claimants seemed pleased with this recommendation, and are hopeful 

that such a procedure is eventually developed, some questioned how much weight the IH would accord to 

the information they provided.

We also heard from claimants who questioned what they felt was DEEOIC’s unfettered reliance on 

information provided by employers. Citing to the findings made by Congress in enacting this program, 

claimants routinely reminded us that:

Many previously secret records have documented unmonitored exposures to radiation and beryllium 

and continuing problems at these sites across the Nation, at which the Department of Energy and its 

predecessor agencies have been, since World War II, self-regulating with respect to nuclear safety and 

occupational safety and health. No other hazardous Federal activity has been permitted to be carried out 

under such sweeping powers of self-regulation.

See 42 U.S.C. § 7384(a)(3). In light of this finding by Congress, claimants found it troubling whenever 

it appeared that DEEOIC did not give any consideration to their efforts to challenge the information 

provided by the employer. In this regard, claimants found it troubling that affidavits that they submitted 

had to be supported by other evidence in the record, yet documents submitted by the employer were 

generally accepted without any questions. This concern was frequently raised by claimants who could 

cite to documents or reports that questioned the accuracy of information or reports prepared by their 

employer. For example, former employees of the Rocky Flats Plant could not understand why, in spite of 

the documented violations found at Rocky Flats, DEEOIC continued to accept, without any hesitation, 

documents that had been prepared and created or submitted by this employer. 

56 While describing SEM as incomplete, this claimant conceded that there were times when it was beneficial to rely on SEM data. What troubled this 

claimant was the failure to discuss the document that he/she had prepared in light of the incomplete SEM data. 

57 DEEOIC recognizes that, “Since SEM is based on currently available evidence, the CE needs to be aware that other evidence may be obtained 

through DAR records or other development that may not correlate with the data in SEM.” See Federal (EEOICPA) Procedure Manual, Chapter 

15.7(a) (December 2017).

58 One ABTSWH board member, who is an IH, noted that such interviews were a primary tool by which IHs obtained the information needed to form 

their expert opinions. 
42

F. Lack of written policy regarding CMC’s use of smoking history in Part E 

causation reports.

We were sometimes approached by claimants when their Part E claims were sent to a CMC for an opinion 

on causation (whether it was at least as likely as not that exposure to a toxic substance at a covered facility 

was a significant factor in causing, contributing to, or aggravating the illness). A frequent issue raised by 

these claimants concerned the CMC’s use of their smoking history in forming their opinion on causation. 

In some instances, particularly after obtaining a copy of the CMC’s report, claimants complained that the 

CMC either: (1) incorrectly stated that the worker was a smoker or had an incorrect smoking history; or 

(2) attributed the claimed illness to smoking instead of the toxic substance exposure. The claimants who 

contacted us often questioned the extent to which smoking was permitted to be a factor in adjudicating 

their EEOICPA claim.

In April 2017, while speaking before the ABTSWH, DEEOIC stated that,

 “...Well one of the things we’ve actually tried to do is not consider smoking as part of 

causation because of the aggravation and contribution. We’ve in fact instructed doctors, 

when we refer this, to kind of look at the exposure to work over the smoking...”

See ABTSWH, Transcript at pg. 60 (April 19, 2017).

When asked where this information regarding smoking could be found in published policy, DEEOIC 

responded,

“...A lot of it’s been in training. I don’t know that we’ve said it in a procedural document. 

It’s something we address in training when we talk to our claims examiners...” 

See ABTSWH, Transcript at pgs. 60, 61, 62 (April 19, 2017). Claimants want to know the extent to which smoking 

is to be a factor in a causation determination. The claimants who asked this question were often aware of 

statements made by DEEOIC suggesting that their smoking history was not supposed to be considered.

One example of this confusion involved a claimant who contacted us in 2017 after reading the CMC report 

and discovered that his/her smoking history was inaccurate. It troubled this claimant that the CMC’s 

opinion relied upon the inaccurate smoking history to determine that smoking was the “likely the cause 

of the [claimant’s] condition.” Although this claimant asked us to direct him/her to DEEOIC’s policy 

addressing the extent to which smoking was to be considered in determining causation, we could not refer 

him/her to a published policy on this subject. Instead, we could only reference the statements by DEEOIC 

to the ABTSWH in answering the question as to whether the CMC should have considered the employee’s 

smoking history.
43

CHAPTER 8 

DIFFICULTIES WITH THE ADJUDICATION PROCESS

A. Decisions Do Not Acknowledge Evidence Submitted by Claimants.

Complaints arose when evidence submitted by claimants was not acknowledged or discussed in the reports 

prepared by DEEOIC specialists, and/or in recommended or final decisions. The failure to acknowledge and/

or discuss evidence submitted by claimants often caused claimants to:

1. Question if their evidence had been overlooked.59

2. Conclude that it was a waste of time to develop evidence if DEEOIC was not going to acknowledge or 

address the evidence in their decisions.60

The following example highlights the concerns that arose when evidence submitted by claimants was not 

acknowledged or discussed by DEEOIC. In this instance, the claimant submitted a document to the Final 

Adjudication Branch describing his/her work and outlining the toxic substances to which he/she had been 

exposed. This claimant initially approached us when the evidence he/she submitted was not discussed in 

the reports prepared by the IH and the CMC, nor was it discussed in DEEOIC’s final decision. The claimant 

worried that the failure to mention his/her evidence suggested that this evidence had been misplaced, and 

thus that the IH, CMC, and HR were not aware of it.61 Additionally, it troubled this claimant that throughout 

the claims process, DEEOIC had relied heavily on the information found in the SEM database. This claimant, 

who happened to be a chemist, felt that the document he/she submitted identified and clarified erroneous 

assumptions made by the IH and CMC, who had relied heavily on the SEM database in issuing their reports. 

Later, when his/her request for reconsideration was denied, this claimant responded by noting that had the 

CE asked for additional information (or identified issues that needed clarification) he/she would have gladly 

provided that information.62

During the year, we again heard from former security guards at the IOP who raised similar concerns. Former 

security guards of the IOP have repeatedly complained that the information in the SEM database regarding 

their work-related exposures was inaccurate. These employees found it troubling that no one from DEEOIC 

had ever sat down with them to go over the evidence they had which they believed demonstrated that the 

SEM database was incorrect.

Moreover, as with the chemist discussed above, these former security guards argued that the SEM database 

search results were given too much weight. In particular, they argued that DEEOIC had summarily rejected 

information they provided simply because it was not in accord with SEM. In the opinion of these claimants, 

DEEOIC had made no effort to ascertain the accuracy of the information they provided. This perception 

59 Most claimants we encountered equated the failure to discuss the evidence they submitted to DEEOIC with the failure of this evidence to be 

considered.

60 The failure to acknowledge evidence they submitted also caused some claimants to question the sincerity of those who encouraged them to 

submit evidence.

61 In this instance, the document prepared by the claimant was submitted to the CE prior to the issuance of the reports by the IH or CMC, and 

prior to the issuance of the final decision. The subsequent denial of his/her request for reconsideration was the first time claimant’s evidence was 

acknowledged.

62 According to some claimants, when DEEOIC determined that information was lacking, DEEOIC did not always provide guidance that helped the 

claimant resolve the situation.
44

really troubled these claimants who felt that, if given the opportunity, they could have provided the IH or 

CMC with facts that would have verified the accuracy of their information over the absence of information 

in the SEM database.

B. Despite being rescinded in February 2017, the language and intent of Circular 

15-06 is still being applied in cases.

From the moment EEOICPA Circular No. 15-06 was published in December 2014, claimants took exception 

to it. Circular 15-06 stated that in light of significant safety improvements that occurred throughout DOE 

facilities after 1995, absent compelling data to the contrary, it was unlikely that covered Part E employees 

working after 1995 would have been significantly exposed to any toxic agents at a covered facility. 

Consequently, this Circular stated that CEs could accept that for employees diagnosed with an illness with a 

known health affect associated with any toxic substance present at a DOE facility after 1995, any potential 

exposures would have been maintained within existing regulatory standards and/or guidelines.63

Therefore, claimants were pleased when at a public meeting held in October 2016, the ABTSWH 

recommended that Circular No. 15-06 be rescinded, and were even more pleased when DEEOIC rescinded 

this circular on February 2, 2017. However, since February 2, 2017, claimants have complained of instances 

where reports by DEEOIC contract specialists and/or decisions issued by DEEOIC used language found in 

rescinded Circular 15-06. The language from Circular 15-06 that caused these concerns stated that,

“...For employees diagnosed with an illness with a known health effect associated with any toxic 

substance present at a DOE facility after 1995, it is accepted that any potential exposures that 

they might have received would have been maintained within existing regulatory standards 

and/or guidelines...”

See EEOICPA Circular NO. 15-06 (December 14, 2014). In the cases brought to our attention, subsequent to 

the rescinding of Circular 15-06 a specialist, CE or HR made statements such as,

“However, there is no available evidence (i.e., personal and/or area industrial hygiene 

monitoring data) to support that, after the mid-1990s, her exposures to asbestos 

would have exceeded existing regulatory standards.”

Report from a Contract Certified Industrial Hygienist, June 2017. 

“The CCIH concluded that there is no available evidence to support that after the 

mid-1990s that you would have exposures exceeding regulatory standards...”

DEEOIC Order, issued November 2017.

63 The Circular further noted that CEs could accept that; (1) if there was compelling, probative evidence that documented exposures at any level 

above this threshold or measurable exposures in an unprotected environment, the CE was to contact the Lead IH for guidance on whether a formal 

IH referral was required, and (2) any findings of exposure, including infrequent, incidental exposure, required review of a physician to opine on the 

possibility of causation.
45

The use of the language found in Circular 15-06 has led to complaints suggesting that although DEEOIC has 

stated that it rescinded Circular 15-06, this circular was still being applied by DEEOIC specialists, CEs and 

HRs in adjudicating claims.64

C. Most DEEOIC policy changes are only posted online, leaving claimants 

unaware of them.

When DEEOIC issues a new bulletin, circular or other significant policy change, this change is usually 

announced on DEEOIC’s website under “Latest Program Highlights” or under “Program News.” Changes to 

the PM are described in EEOICP Transmittals, which are also only available online. Throughout the year, we 

were approached by claimants who had just learned of a change in law, policy, or procedure, and it troubled 

them when: (1) they first learned of the change well after the change had been made; (2) when it negatively 

impacted their case; and/or (3) instead of being informed of the change by DOL, they learned of the change 

from a friend or colleague. There were also some instances where claimants first learned of changes in law, 

policy, or procedure that could impact their claim when our Office brought the change to their attention. 

Because policy changes are only posted online: 

• Claimants who did not have access to, or only limited access to the internet, oftentimes never saw these 

notices and thus, were not aware of these changes.

• Even when they had access to the internet, many claimants did not periodically visit DEEOIC’s website 

to stay abreast of changes. This was especially true when their claim had been denied. After the denial 

of their claim, most claimants did not routinely check DEEOIC’s website for updates and changes.

• Changes announced under “Latest Program Highlights” or “Program News” only appeared on the 

DEEOIC website for a limited period of time.

It should be noted that DEEOIC’s website now contains a link that allows individuals to subscribe to receive 

Medical Provider Updates via email.65 However, as with other online resources, it has been our observation 

that many claimants were unaware of them. We also found that because they did not appreciate the value 

of these resources, many claimants made no effort to explore these website links, even when they were 

aware that there were resources available online.

D. Claimants are not advised when DEEOIC conducts internal reviews to 

determine if reopening of certain claims are required.

Some DEEOIC procedures require the review and identification of previously denied claims that might be 

impacted by a change in policy or rule. These procedures often direct each district office to prepare a list of 

previously denied claims (affected by the change) and to have the district office(s) or FAB review the claims 

on this list to determine if reopening of a claim is warranted. However, DEEOIC does not require the claimant 

be notified if DEEOIC’s internal review determines reopening is not warranted.66 Thus, we encountered 

64 Some claimants questioned whether DEEOIC had informed IHs and other specialists that Circular 15-06 had been rescinded.

65 Moreover, in 2018, DEEOIC added a link allowing individuals to subscribe to program and policy updates via email.

66 DOL’s procedures for the review of previously denied claims does not always limit the District Office and FAB to reopening. For instance, EEOICPA 

Bulletin 16-02 (Presumption Available for Accepting Chronic Obstructive Pulmonary Disease (COPD) Under Part E of the EEOICPA) outlined 

a procedure whereby a claim could also potentially be reversed and accepted if it was under review while at FAB. See EEOICPA Bulletin 16-02 

(Dec. 28, 2015). 
46

claimants who learned about a change in policy from a non-DOL source and wanted to know: (1) why were 

they just learning about the change in law or policy; and (2) if anyone had reviewed their claim to determine if 

it was impacted by the change.67

When informed by our office that DEEOIC had conducted an internal review of their claim and determined 

that reopening was not warranted, claimants often responded by arguing that had they known about 

the change in policy and DEEOIC’s review process, they would have wanted the opportunity to submit 

additional evidence. The claimants who expressed this view often felt that the change in policy outlined 

in these bulletins or circulars impacted what they understood to be the evidence necessary to prove their 

claim. Thus, these claimants argued that before DEEOIC determined whether reopening was warranted, 

they should have been given notice and the opportunity to develop additional evidence consistent with the 

policy outlined in the new bulletin, circular, or policy directive. 

This argument asserting that they should have been given notice and the opportunity to develop additional 

evidence was frequently raised when claimants with previously denied cancer claims learned of a new SEC.68

 • Some claimants noted that in pursuing their initial claim for cancer, they saw no reason to quibble over 

a few more days or weeks of employment they believe they should have been credited by DEEOIC. Yet, 

had they been notified when the new SEC was added, they would have taken the time to try to verify the 

extra days or weeks needed to establish 250 days of work.69

 • Some claimants noted that in pursuing their initial claim for cancer, they did not consider it relevant to 

submit evidence showing that the cancer had metastasized. However, specified cancers can include 

cancers that have metastasized to the bone, lung, or kidney. Thus, we talked to claimants who stressed 

that had they known about the new SEC class, they would have taken the time to determine whether the 

non-specified cancer had metastasized to the bone, lung or kidney.

Similar concerns arose regarding other policy changes. For instance, EEOICPA Bulletin No. 16-02 not 

only created a presumption for accepting claims for COPD under Part E, but also outlined a procedure 

for reviewing previously denied claims to determine if they were impacted by this bulletin. Based on our 

conversations, we believe that there are claimants who, if they had been notified of this bulletin, might have 

made an effort to identify and submit additional evidence in order to meet the new policy criteria.

Where DEEOIC has undertaken an internal review and determined that reopening was not warranted, 

claimants who are aware of the policy change through their own efforts can request a reopening of their 

claim if they feel that they have additional evidence that should be considered. However, in many of the 

instances that we encountered, claimants only became aware of the change in law or policy when notified 

by a friend or by this office. Unless and until they are notified of the subsequent change in law or policy, 

claimants have no reason to think that evidence that was not initially relevant to their claim is now relevant. 

67 As noted before, while a notice announcing a new bulletin or circular was usually posted on DEEOIC’s website, many claimants did not routinely 

visit DEEOIC’s website to check for such updates, and thus never saw these notices. We especially found that once their claim was denied, many 

claimants never reviewed DEEOIC’s website again.

68 EEOICPA Bulletin 11-07 outlines the procedures for reviewing and processing claims under new SEC class designations, including how and when 

reopening decisions are to be analyzed and sent to claimants.

69 In order to qualify for a SEC class, the worker must have worked for a number of work days, usually aggregating at least 250 work days, occurring 

either at the one particular SEC or in combination with work days within the parameters established for one or more other classes of employees 

included in the SEC.
47

E. Are previously denied claims always reviewed?

As previously discussed, there were instances when in announcing a change in policy, the bulletin or circular 

also outlined the procedures by which the district office or FAB were to review previously denied claims 

that could be impacted by the new policy. However, there have been other instances where the bulletin or 

circular did not indicate whether a change in policy would result in review by DEEOIC of previously denied 

claims. In these instances, it has often been difficult to determine if such a review was ever undertaken.

For instance, EEOICPA Bulletin No. 17-01 (October 5, 2016) outlined what was described as a “procedural 

change.” This “procedural change” impacted the circumstances in which a Part E survivor could elect to 

receive monetary compensation that the employee would have received had he/she not died prior to 

payment. This bulletin did not mention whether DEEOIC would perform an internal review to identify 

previously denied claims potentially impacted by this new bulletin. It also did not outline the steps to be 

taken to notify previously denied claimants of this new bulletin.

Similar concerns were raised about DEEOIC’s decision to rescind EEOICPA Circular No. 15-06. At the full 

board meeting of the ABTSWH on November 16, 2017, DEEOIC noted that it did not have the mechanism 

to identify specific cases impacted by Circular No. 15-06. Rather, DEEOIC indicated that they were doing 

“more of a manual process.”70 See ABTSWH—Full Board Meeting, November 16, 2017, Transcript pages 

36-37. Some claimants believed that since DEEOIC could not identify all of the cases potentially impacted 

by Circular 15-06, then DEEOIC needed to do more to notify claimants and ARs that this Circular had been 

rescinded. In raising this point, it was stressed that it would not be sufficient to simply post a notice online 

informing claimants that this circular had been rescinded. Rather, claimants felt that this notice needed to 

be widely distributed.

F. DEEOIC’s approach to hearing loss claims.

Over the years and continuing in 2017, claimants complained about DEEOIC’s approach to hearing loss 

claims. Such complaints consistently arose over whether DEEOIC’s policy presumption regarding hearing 

loss is a legally binding rule, which if not satisfied results in the automatic denial of the claim; or whether it 

is, as titled by DEEOIC, a policy presumption which, if the criteria are not satisfied, allows claimants to purse 

their claims under the Part E standard of causation. 

1) DEEOIC did not follow its own policy.

Appendix 1 of the EEOICPA PM states that Part E causation can be presumed without referral to National 

Office specialists if three conditions are satisfied. See EEOICPA PM Appendix 1, Exhibit 15.4(8) (December 

2017). The first condition requires medical evidence to prove the diagnosis of bilateral sensorineural 

hearing loss. The second condition requires verified covered employment within at least one specified job 

category for a period of 10 consecutive years, completed prior to 1990. [The list of specified job categories 

is included in Exhibit 15.4(8).] The third condition requires that, in addition to working in a specified job 

category, the employee had been concurrently exposed to at least one the specified organic solvents. [The 

list of the specified organic solvents is included in Exhibit 15.4(8)].

70 DEEOIC indicated that it had been able to identify a cohort of cases and had provided minimum lists to their claim staff to begin the process.
48

We routinely received complaints asserting that DEEOIC did not follow its own policy. Claimants routinely 

reminded us that the PM characterized the conditions outlined in Exhibit 15.4(8) as a “presumption” and 

specifically stated that causation could be presumed without referral to the National Office specialist if the 

three conditions were satisfied. Yet, in spite of this explicit language, when hearing loss claims did not meet 

all three of the conditions outlined in this Exhibit, these claims were not referred to the National Office for 

review by a specialist, or reviewed under the Part E standard for causation.71 

 2) Did DOL’s response to our 2015 Annual Report apply to the specific issues raised in our 2015 

Annual Report concerning hearing loss claims?

In our 2015 Annual Report, we noted that with respect to claims for hearing loss, some claimants continued 

to grapple with whether the criteria for hearing loss claims outlined in the Exhibit 15.4(8) were a rule or a 

policy. We explained that in the opinion of claimants, if these criteria were a rule, then they must be met 

in order for their claim to be accepted. However, if the criteria were merely a policy presumption, then 

they expected that if their evidence did not meet the criteria outlined in the PM, their case would still 

be evaluated under the Part E causation and exposure standard. See 2015 Annual Report to Congress, 

December 21, 2016, page 51.

In its response to our 2015 Annual Report, DOL generally addressed our concerns about the weight given to 

PM provisions, bulletins, circulars, and teleconference policy notes stating that, 

“...Lack of a presumptive illness is never justification, standing alone, for a denial of a claim. A 

claimant is always legally entitled to prove his/her case, regardless of any presumption. The case 

will still be fully adjudicated, but exposure and/or a causal relationship must be proven by the 

claimant without the use of a presumption. Awards of benefits are routinely entered on the 

strength of the evidence alone, without applying any legal presumption.”

See DOL’s Response to Office of the Ombudsman 2015 Annual Report to Congress, pages 6-7. In spite 

of this response, in 2017, we continued to encounter claimants whose claims for bilateral sensorineural 

hearing loss had been denied by DEEOIC solely because they did not met all of the criteria outlined in 

Exhibit 15.4(8). These claimants complained that in denying their claim for hearing loss, DEEOIC had 

impermissibly given Exhibit 15.4(8) the full legal force and effect of law.

“...Furthermore, in accordance with guidelines in the Federal (EEOICPA) PM 2-1000.18, 

hearing loss can be compensable under Part E of the EEOICPA if such loss arises as a 

result of exposure to one or more of the organic solvents listed in subsection 18b. 

Additionally, the employee must meet all conditions under subsection 18a as follows...”

A 2015 decision shared with the Office, January 2017.

71 The Part E standard of causation is whether it is at least as likely as not that exposure to a toxic substance at a DOE facility was a significant factor 

in causing, contributing to, or aggravating the illness; and, it is at least as likely as not that the exposure to such toxic substance was related to 

employment at a DOE facility. See 42 U.S.C. § 7385s-4(c). 
49

“Hearing loss is compensable under Part E if certain medical, employment and 

exposure criteria are met, and the guidance closely defines the specific labor 

categories, time frames, and particular organic solvents which are qualifying 

under this provision. The evidence must establish that the employee has a 

diagnosis of sensorineural hearing loss in both ears, and the employee was exposed 

to one of the specified chemical solvents, and worked within a certain job category 

for consecutive and unbroken period of ten years, completed prior to 1990.”

A 2006 decision that a claimant continued to question when he/she 

encountered us in October 2017.

Some of these claimants also assured us that, in recent conversations, their CE had again insisted that 

meeting all of the criteria outlined in Exhibit 15.4(8) was the only way to be compensated for hearing loss 

under Part E of this program. Thus, it is unclear if DOL’s response stating that claimants are always legally 

entitled to prove his/her case regardless of any presumption applies to claims for bilateral sensorineural 

hearing loss.72

3) DEEOIC gives PM Exhibit 15.4(8) the full force and effect of law.

As noted earlier, in its response to our 2015 Annual Report, DOL stated that, “[a] claimant is always legally 

entitled to prove his/her case, regardless of any presumption.” Claimants have difficulty reconciling this 

statement with the language in Exhibit 15.4(8) stating that, 

This policy guidance represents the sole evidentiary basis a CE is to use in making a decision 

concerning whether it is “at least as likely as not” that an occupational exposure to a toxic 

substance was a significant factor in aggravating, contributing to or causing a diagnosed 

bilateral sensorineural hearing loss. Claims filed for hearing loss that do not satisfy the conditions 

for acceptance outlined in this procedure cannot be accepted, because these standards 

represent the only scientific basis for establishing work-related hearing loss due to exposure to 

a toxic substance. [Emphasis Added].

Claimants contend that Exhibit 15.4(8) takes away their legal entitlement to prove their case, regardless of 

any presumption. They argued that unless they meet all of the conditions outlined in Exhibit 15.4(8), they 

are essentially precluded from establishing that their hearing loss is related to exposures sustained while 

working at a covered facility. For this reason, claimants argue that Exhibit 15.4(8) is given the full legal force 

and effect of law. 

This argument is frequently raised by claimants who question the reasonableness of the criteria outlined in 

Exhibit 15.4(8). For instance, we encountered claimants who questioned the basis for compensating those 

who worked in the labor categories specified by this Exhibit while refusing to even consider whether the 

hearing loss sustained by those who did not work in one of these specified labor categories was caused, 

aggravated, or contributed to by one of the organic solvents identified in Exhibit 15.4(8). During the year, we 

72 Exhibit 15.4(8) is included in an Exhibit 15.4 which is entitled, “Exposure and Causation Presumptions with Development Guidance for Certain 

Conditions.”
50

also talked to claimants who questioned whether the scientific studies relied upon by DEEOIC specifically 

indicated that 10 consecutive years of exposure was necessary in every case. This question was frequently 

raised by claimants who argued that, while they did not have 10 consecutive years of exposure prior to 

1990, they still should have had the opportunity to show that they sustained levels of exposures that 

were at least as likely as not a significant factor in causing, aggravating, or contributing to their hearing 

loss. Similarly, there were claimants who felt that they should have the opportunity to establish that their 

exposures after 1990 were no different from their exposures prior to 1990. Claimants argued that if this 

hearing loss provision was a policy presumption, then they should be able to challenge it because it is not 

legally binding on all cases. On the other hand, if this provision was to be given the full legal force and effect 

of law, claimants complained that they were not given an opportunity for notice and comment prior to such 

a rule being enacted.

4) Subsection (e) of Exhibit 15.4(8) does not resolve the concerns with DEEOIC’s policy towards 

hearing loss claims.

Subsection (e) of Exhibit 15.4(8) provides in pertinent part,

...If a claimant seeks to argue that the standard by which DEEOIC evaluates claims is not based 

on a correct interpretation of available scientific evidence, or that a toxic substance that is not 

listed as having a health effect of hearing loss exists, he or she will need to provide probative 

epidemiological data to support the claim. Any claimant submission of scientific documentation 

including journals, periodicals, or other literature (including citations to literature) has to relate 

to the topic of the correlation between hearing loss and toxic substance exposure. Scientific 

evidence that does not relate to or reference hearing loss is insufficient.

See PM Exhibit 15.4(8)(e). Claimants complained that subsection (e) did not resolve or minimize their 

concern over the fact that Exhibit 15.4(8) was given the full legal force and effect of law, instead of being a 

policy presumption.

• Claimants noted that they were prevented from establishing that, while they did not meet all of the 

criteria outlined in Exhibit 15.4(8), their hearing loss was nevertheless related to exposures sustained at 

a covered facility.

• According to subsection (e), claimants can argue that the standard by which DEEOIC evaluates claims 

is not based on a correct interpretation of available scientific evidence, or that a toxic substance that 

is not listed as having a health effect of hearing loss exists. We heard from claimants who argued that 

subsection (e) unduly limited the challenges that they could raise. In particular, claimants felt that 

Exhibit 15.4(8) did not allow them to argue that additional labor categories should be considered and/or 

added to the list of specified job categories chosen by DEEOIC.

• Claimants also argued that subsection (e) made it very expensive to challenge DEEOIC’s hearing 

loss policy. Claimants feared that trying to show that DEEOIC’s standard was not based on a correct 

interpretation of available scientific evidence could quickly become cost prohibitive. Thus, the claimants we 

talked to were pleased to know that DEEOIC’s policy on hearing loss was being reviewed by the ABTSWH.
51

CHAPTER 9 

INTERACTIONS WITH DEEOIC

A. Telephone calls not returned.

With respect to interactions with DEEOIC, one of the most common difficulties raised by claimants in 2017 

involved their inability to talk to someone when they called their CE or the district office. This difficulty is 

also discussed in Chapter 4. 

To summarize, the complaints brought to our attention usually involved situations where claimants called 

the CE and when no one was available to take their call, the claimant left a message. Later, when the CE 

returned the call, the claimant was not available. Thus, the CE left a message simply indicating that he/she 

had called. We later discovered that in some instances, because the claimant did not recognize the caller 

or the telephone number, the claimant did not answer the telephone when the CE called back. Since the CE 

simply left a short message (or the claimant did not answer the telephone), if the claimant still needed to 

talk to the CE, the onus was on the claimant to again call the CE, who oftentimes again was not available 

to take the claimant’s call. As a result, some claimants found themselves in a cycle of telephone tag with 

the CE. When we brought these observations to DEEOIC’s attention, DEEOIC vowed to look into them. 

Subsequently, we talked to claimants who indicated that when they left a message for the CE they received 

a timely response. However, in a few instances claimants complained that the person who returned their 

call was not their CE, and thus, was unable to answer their specific questions. In addition, there continued to 

be a few instances where claimants complained that no one returned their call.73

“If you leave the house and they call and leave a message that they called you, you have 

to start the process all over. It makes it very difficult to speak to them. I would like them 

to set up an appointment so it is easier to connect with DOL and get your problems 

resolved...I would like to see an exact time appointment set up when the CE cannot take 

the call. This way you are not a prisoner waiting for their call.”

Statement by a claimant, April 2017.

Another issue brought to our attention was that when some claimants called the district office to speak 

with their CE, they were automatically transferred to someone in another district office. According to the 

complaints we received, the person to whom the claimant was transferred oftentimes could not respond 

to case-specific questions. Thus, some claimants described these interactions as counter-productive 

and frustrating. In one instance, in approaching our office, the claimant noted that he/she had made 19 

phone calls to DEEOIC regarding the rejection of covered prescription medication by a local pharmacy. 

This claimant complained that although he/she had spoken to at least four different individuals in district 

offices and the FAB, he/she was still having trouble obtaining the necessary medication. Only after the 

issue was elevated to a supervisor in the National Office was the claimant’s telephone call returned and the 

prescription issue resolved.

73 In some of these instances it was impossible to determine exactly when the claimant had called the CE or district office.
52

We also talked to claimants who complained that when they tried to call their CE, the person at the district 

office who answered the telephone would not transfer them to their CE. According to these claimants, they 

were asked to present their question or concern to the person who answered the telephone, and while 

this person may have attempted to help, some claimants indicated that they did not receive sufficient 

assistance. The experience of having the person who answered the telephone refuse to transfer them 

to their CE led some claimants to suggest that in order to avoid this situation in the future, they simply 

stopped trying to call their CE. 

B. Inappropriate conduct.

In most instances, claimants did not call us simply to complain about an incident of inappropriate customer 

service. Rather, the incident of inappropriate customer service was usually just one aspect of the story that 

the claimant or the AR wanted to tell us. In recounting their story, claimants and ARs would sometimes 

mention a negative encounter or would utter a statement reflecting their dissatisfaction with the customer 

service they had received. Generally, when we followed up on these comments, claimants were quick to 

emphasize that their problem was with one particular CE or staff member, and not with the DEEOIC staff 

as a whole. In fact, after recounting their negative encounter with one CE, claimants would often make it a 

point to tell us about a positive encounter they had with another CE or DEEOIC staff member. Thus, when 

it came to the problems with customer service, most claimants were not looking for wholesale changes. 

Rather, they simply wanted an adequate means to register their concerns, in hopes of avoiding future 

problems. In fact, in many instances claimants felt that their problems could be resolved if they were given 

a new CE.74

In response to issues raised in our 2015 Annual Report about inappropriate customer service, DOL 

agreed that reporting and resolving inappropriate customer service issues was of the upmost importance. 

DOL stated that it would review and examine additional ways to publicize the process (for reporting 

inappropriate customer service) to the claimant community. DOL also noted that customer service 

complaints could be submitted to OWCP in writing, by phone, via public email, or by using the customer 

satisfaction surveys that were available on the OWCP website and through the OWCP Interactive Voice 

Response (IVR) phone system. In addition, DOL indicated that claimants could direct their complaints to a 

supervisory CE, unit manager, assistant district director, or district director. DOL’s response concluded with 

a statement indicating that every complaint would be reviewed and appropriate action would be taken.

This Office does not question DOL’s commitment to providing good customer service. Yet, in spite of DOL’s 

commitment to good customer service and the various ways claimants can report inappropriate customer 

service, claimants continued to come to us with concerns:

 “I just spoke to the manager at the Resource Center for XXX. XXX was very unhelpful, 

rude and unprofessional...”

E-mail, dated June 2017

74 While claimants can certainly request a new CE, it has been our understanding that such requests are not routinely granted.
53

“XXX correspondence to me is rude and dismissive...”

Letter, dated January 2017.

“People in XXX (District Office) are “really bad people...”

Telephone call, September 2017.

1) Claimants not aware of DOL’s commitment.

In its response to our 2015 Annual Report, DOL agreed that reporting and resolving any inappropriate 

customer service issues is of the upmost importance. Nevertheless, in 2017, claimants who complained of 

encountering instances of inappropriate customer service often questioned DEEOIC’s commitment to good 

customer service. This was especially true when the claimant felt that he/she had encountered a blatant 

instance of inappropriate customer service. Yet, most of the claimants who complained about inappropriate 

customer service had not reported the conduct to DEEOIC and oftentimes were hesitant, if not absolutely 

opposed to reporting this conduct. In our experience, the three main reasons that claimants did not report 

instances of inappropriate customer service to DEEOIC were: (1) they felt that their complaints would be 

ignored; (2) they feared retaliation; and (3) they did not feel comfortable reporting such conduct to the CE’s 

supervisor, or to a general DEEOIC email address. 

2) Claimants fear retaliation.

Many of the claimants we encountered admitted that because they feared retaliation, they were hesitant 

to report instances of inappropriate customer service. From what we can tell, in most instances this fear 

of retaliation was not prompted by something that had been said or done. Rather, this fear was usually 

prompted by the realization that CEs (as well as others associated with DEEOIC) had a lot of sway over 

the outcome of a claim, and that the person about whom they were complaining could be assigned to their 

claim for many years. Claimants routinely questioned the wisdom of leaving negative comments about 

a CE (or the program in general) when the CE or the administrators of this program were in a position to 

impact their claim, and would oftentimes be in this position for a long time. Claimants frequently reminded 

us that even if the claim was denied, they might later want to request reopening of that claim or want to 

file a new claim. Former workers routinely noted that if their claim was accepted, they might have ongoing 

issues related to medical benefits. Thus, claimants often expressed the need to be cautious in deciding 

when and where to complain about inappropriate customer service. In fact, when claimants approached us 

with complaints about inappropriate customer service they usually began the conversation by asking if they 

could be assigned a new CE. When we informed them that we could not make such a change and could 

not guarantee that DEEOIC would make such a change, many claimants then asked that we keep what they 

shared with us confidential. We also heard from claimants who questioned the anonymity of DEEOIC’s 

customer satisfaction survey conducted after a call to the CE or other member of the DEEOIC office. Most 

claimants that we talked to believed that DEEOIC had the capability, if it wanted, to identify anyone who 

took the survey and left negative comments.
54

3) Claimants not comfortable reporting inappropriate customer service to the CE’s supervisor or to a 

general DEEOIC email address.

Many claimants have often told us they felt uncomfortable forwarding their complaints of inappropriate 

customer service to the district office where the CE worked, or blindly sending an email/letter of complaint 

to an unidentified person at DEEOIC. Claimants routinely expressed their fear of calling the district office 

and making their complaint to a supervisor while the subject of their complaint was in close proximity 

to the supervisor. They also did not feel comfortable forwarding their complaints to an unknown person. 

Rather, claimants made it clear that they preferred to send their complaints (or speak) to a specific person 

designated to receive and address complaints of inappropriate customer service, and, very importantly, who 

they hoped would not be directly involved in the adjudication of their claim. 

C. Delays.

Towards the end of 2015, we began to see an increase in complaints alleging delays in the processing of 

some claims. DEEOIC later confirmed it had been experiencing delays in the processing of some claims that 

had been forwarded to IHs for their review and reports. Subsequently, during the ABTSWH’s meeting on 

April 28, 2016, DEEOIC announced that it had entered into a contract with a company to perform industrial 

hygienists work.75 Those who heard this announcement hoped that this contract would resolve the delays 

that arose when some claims were forwarded to an IH for review.

Since April 28, 2016, there has been a decrease in the complaints involving delays that arose when claims 

were forwarded to an IH. However, in 2017, there were complaints alleging other delays in the processing of 

claims. In particular, in 2017, claimants, ARs, and home health care providers approached us complaining of 

delays in receiving authorization or re-authorization for home health care. It is interesting to note that while 

claimants were more likely to raise this issue when they encountered us at an outreach event, home health 

care providers were more likely to raise this issue via telephone, mail, or email. We also found it interesting 

that when home health providers called or wrote to us, they often came with multiple instances where they 

encountered (or were encountering) a delay in receiving authorization/reauthorization. 

For example, one home health care provider copied our office when they submitted to DEEOIC a long list 

of cases where the authorization or reauthorization had been pending for more than 30 days. In September 

2017, DEEOIC responded to this provider indicating that over half of the cases had been adjudicated, 

and that the vast majority of the remaining cases were requests for authorization where the prescribing 

physician had not offered sufficient rationale or justification of medical necessity to allow DEEOIC to 

approve the requests. DEEOIC also indicated that it was following up on those pending cases to obtain 

clarification or additional information from the treating physician. Approximately three months later, the 

same provider shared with this office another letter they sent to DEEOIC. In this letter, the provider provided 

a long list of different cases that had been waiting authorization/re-authorization for home health care for 

more than 30 days. Thus, it appeared to be an ongoing issue for this provider.

75 DEEOIC previously utilized in-house IHs prior to entering into the contract with this outside company.
55

A representative from another home health care provider contacted us on at least three separate occasions 

in 2017 to complain about delays in receiving authorizations/reauthorizations for home health care. Having 

talked to us before, this representative understood that without a Privacy Act waiver from the claimant or the 

AR, we could not inquire to DEEOIC about these claims. Still, this representative contacted us because he/she 

wanted to make sure that we were aware that delays in receiving authorization/reauthorizations for home health 

care persisted, and wanted to provide us with some insights into the frequency and extent of the delays.76

In another instance, we were presented a situation where the alleged delay not only impacted the claim 

filed by the employee, but also the subsequent claim filed by the employee’s spouse. In September 2014, 

the employee filed claims identifying three distinct illnesses. A final decision issued in May 2015 denied 

the claims for two of the illnesses, and noted that the third claim was “pending.” It is not clear why they 

called, but in December 2016, the local Resource Center attempted to reach out to the employee. When the 

family informed the Resource Center that the employee had passed away without receiving a decision on 

his/her third claim, the Resource Center urged the spouse to file a claim for survivor’s benefits. The spouse 

immediately filed the claim for survivor benefits and appeared to be in line for acceptance of the claim when 

he/she passed away in January 2017. When the spouse passed away, there were no other family members 

who could qualify as eligible survivors. Yet, what disturbed this family the most was that they never received 

any explanation as to why the employee’s original pending claim was not adjudicated following the May 

2015 decision, particularly because it was the only one with the potential for a favorable outcome.

1) Emergency care and lapses of care.

For many of the claimants we encountered, a delay in receiving authorization/reauthorization for home 

health care meant a delay in receiving care that had been prescribed by their treating physician. Chapter 

30.2(k) (December 2017) of the EEOICPA Procedure Manual permits the medical benefits examiner (MBE), 

in certain circumstances, to authorize home health care for a preliminary 30-day period while additional 

development is undertaken. We seldom, if ever, encountered claimants who were aware of Chapter 30.2(k). 

Rather, in contacting us, claimants would often argue that their medical condition was such that they should 

not have to forego needed care while DEEOIC undertook further development of their claim. This was 

another instance where because they were not aware of this PM provision and were not informed by a CE or 

MBE, many claimants never thought (or took the time) to ask whether such an option was available to them.

2) Delays in reauthorizing health care strains the resources of health care providers.

Home health care providers emphasized that they did not want to deny care to (or walk away from) patients 

simply because DEEOIC was slow to reauthorize claimant’s care. This was especially true when the provider 

had an established relationship with the patient. Providers also frequently indicated that they had a moral, 

if not legal duty not to abandon patients. Thus, some providers complained that it strained their resources 

to provide services while awaiting DEEOIC’s decision to reauthorize care. And they argued that their ability 

to provide care without a reauthorization became more problematic as the delay dragged on. This concern 

was raised by a variety of providers, including some who identified themselves as small companies. These 

small companies argued that because of their limited resources they were more severely and immediately 

impacted by delays in authorizing/reauthorizing home health care.

76 This provider wanted us to know that in some instances claimants went without prescribed medical care as they awaited reauthorizations, while 

in other instances, claimants continued to receive care only because the provider did so with the hope that DEEOIC would eventually approve the 

reauthorization. 
56

3) Other delays.

 “I applied to receive an impairment evaluation...I was told by [the doctor’s office] 

that they could not schedule my evaluation until they received approval from 

[DEEOIC]. I called the branch...this morning and no one was available to tell me 

whether the approval had been sent...”

Email, January 2017.

“After requesting my file copy approximately 15 months ago, and requesting it 

several times, I received a copy of my file today...”

Email, March 2017.

In 2017, the vast majority of the complaints raising concerns about delays involved delays in authorizing/

reauthorizing home health care. Still, we also received complaints alleging problems arising from delays that 

did not involve the authorizations/reauthorization of home health care. In particular, we talked to claimants 

who complained of the amount of time it took for DEEOIC to respond to the requests they submitted. 

While complaints alleging delays arose at practically every stage of the claim process, there were some 

commonalities among these complaints.

• Most of the complaints contended that claimants were not notified of delays caused by DEEOIC. 

Claimants asserted that they only learned about a delay caused by DEEOIC when they contacted 

DEEOIC, usually to inquire about the lack of progress on their claim.

• Claimants complained that when they inquired into these DEEOIC caused delays, they often received 

vague responses. For example, claimants routinely complained of enduring long delays while repeatedly 

being told that DEEOIC was developing more evidence, or the case was still under review. Repeatedly 

receiving the same response often increased the claimant’s frustrations. 

• It concerned claimants that there did not appear to be any limit as to how long their claim could be 

delayed by DEEOIC.

• As the delay progressed, claimants often found it troubling that there did not appear to be anyone they 

could turn to help them resolve the delay.

D. Claimants advised to withdraw a claim.

Throughout the year, there were claimants who told us that they had been advised by their CE to withdraw 

a claim for benefits. To be clear, this is another example where claimants rarely contacted us to specifically 

complain about an issue. In most instances, that the claimant had been asked to withdraw a claim only 

came up as the claimant was recounting his/her story. The few instances where claimants raised this issue 

on their own usually arose when claimants wanted to know if and when they could refile the withdrawn 

claim. In either event, claimants usually did not understand why their CE or MBE had advised them 

withdraw a claim.
57

When we could not explain why they had been asked to withdraw a claim, most claimants asked that we 

not pursue the matter. Claimants usually assumed that being asked to withdraw one claim was somehow 

related to the processing of another claim, and they did not want to do anything that might jeopardize their 

existing claim. Many claimants also feared that there would be retaliation if they started to second-guess 

the CE’s instructions. Therefore, even when they had reservations about being asked to withdraw a claim, 

claimants usually preferred to wait until the existing claim had been adjudicated before questioning what 

to do with the claim that had been withdrawn. In all of these cases, claimants did not ask or fully appreciate 

how this action could benefit or potentially harm their claim for benefits.

E. Terminal Cases.

We are aware of instances where DEEOIC went to great lengths to process a claim for a terminally ill claimant 

as quickly as possible. However, in other instances we encountered family members and ARs who complained 

when claimants passed away after filing a claim, but before compensation was paid. These family members 

and ARs sometimes questioned DEEOIC’s handling of the claim after being notified that the claimant was 

terminally ill. We also encountered instances where claimants and/or their family members were not aware 

that DEEOIC has a process whereby it can expedite the processing of a claim for a terminally ill claimant.

As noted, DEEOIC has a procedure for expediting claims where the claimant is end-stage terminally ill. See

EEOICPA Procedure Manual, Chapter 11.8 (December 2017). A common problem that we see is that some 

claimants think that expediting a claim means that certain steps normally associated with processing a 

claim are eliminated. This is another misconception that causes problems. In expediting terminal claims, 

DEEOIC endeavors to process the claim as quickly as possible, however, DEEOIC does not eliminate or skip 

any of the steps in the claims process. 

Another problem that we encountered with such claims involved the medical evidence needed to establish 

that the claimant was terminally ill. The PM refers to expediting claims of claimants who are end-stage 

terminally ill. See PM, Chapter 11.8(a) (December 2017). We received complaints alleging that valuable time 

was lost as family members or ARs went back and forth with the CE trying to establish that the claimant 

was end-stage terminally ill. For example, family members and ARs complained of instances where the CE 

repeatedly insisted that the physician provide an estimate of how long the claimant had to live, while they 

repeatedly tried to explain to the CE that the physician was unwilling to provide such an estimate. It often 

appeared (or was stated) that the physician did not find it appropriate to try to guess how long a person 

had to live. There were also instances where, according to family members and ARs, the physician firmly 

believed that having stated that the claimant was in hospice care should have been sufficient to establish 

that the claimant was end-stage terminally ill, and as a result could not understand why he/she was being 

asked to provide additional medical documentation.77

We also received complaints from family members and ARs who questioned DEEOIC’s response after they 

submitted medical documentation that the claimant was terminally ill. These complaints usually arose 

when the claimant passed away before the claim was completed, and family members or the AR felt that 

they did not receive a sufficient explanation for the delays they believed they encountered after notifying 

DEEOIC that the claimant was terminally ill.

77 Some family members and ARs found it confusing that the CE would not accept a notice that the claimant was in hospice care as sufficient to 

establish that the claimant was end-stage terminally ill since a request for hospice care was listed in the PM as an indicator that a claimant was endstage terminally ill. See PM Chapter 11.8(a).
58

CHAPTER 10

CIRCUMSTANCES CONFRONTING CLAIMANTS NOT ADEQUATELY 

ADDRESSED BY THE PROGRAM

“As my health has rapidly declined, I am unable to advocate for my claim...”

E-mail, April 2017.

In telling their stories, claimants frequently mentioned the other life challenges they faced. In previous 

annual reports, we characterized these life challenges as factors that underlined the complaints that we 

received. However, after further reflection we realized that having to pursue an EEOICPA claim while facing 

these challenges is, in and of itself, the issue for some claimants.

Many claimants firmly believe that, in creating this program, Congress was well aware that many claimants 

would be of an advance age or ill when they first pursued their EEOICPA claim. Thus, there is a belief that in 

creating this program Congress intended that these life challenges be taken into consideration. 

A. Some claimants do not have the ability to process a claim on their own.

In their conversations with us, we are often told how age, health, or other challenges added to the 

difficulties encountered by some claimants while processing their claim. We routinely heard how a lack of 

mobility impacted a claimant’s ability to search for records, or how cognitive limitations made it difficult 

for some claimants to carry out instructions they were given, especially where the instructions involved 

complicated legal, scientific, or medical concepts. We also sometimes talked to claimants who told us that 

due to cognitive limitations they simply could not remember instructions. And yet other claimants shared 

how their vision and/or hearing impairments made their ability to communicate with RC and DEEOIC staff 

very challenging.

In fact, the inability to carry out instructions was one of the main reasons claimants turned to us for help. 

Some claimants needed someone to explain the instructions, while others needed assistance carrying 

out these instructions. Claimants who lived in areas of the country where DEEOIC, our office and/or 

the JOTG conducted outreach often had the opportunity to sit down and have face-to-face discussions 

with representatives from the various agencies. However, those living in other areas oftentimes found 

themselves trying to determine who to call for help, or hesitant to call because they did not know what type 

of help they needed. We heard from many such claimants in 2017. 

B. Application of DEEOIC policies is too rigid.

Claimants sometimes complained that DEEOIC was too rigid in its application of its policies and 

procedures. For instance, claimants recuperating from surgery (or undergoing medical treatment) routinely 

questioned why they were only given 30 days to submit evidence or to respond to a request for additional 
59

documentation. And while we sometimes suggested that the CE may not have known about the challenges 

facing the claimant, in some instances, the CE was well aware the claimant was recuperating from surgery 

or undergoing medical treatment, and yet still only gave them 30 days to submit evidence. In one instance, 

a claimant who lived in Europe questioned DEEOIC’s lack of flexibility in helping to resolve bill-pay issues.78 

In approaching us, this claimant noted that the nine (9) hour time difference presented a major hurdle when 

trying to resolve these issues over the telephone.79 In particular, this claimant complained of never being 

able to talk to anyone when he/she called and never being available when (and if) the CE called back. This 

claimant fully understood that DEEOIC did not correspond by email. Yet, this claimant felt that his/her 

situation warranted some flexibility, especially since DEEOIC had been unable to resolve the difficulties that 

made communicating by telephone so problematic.

Throughout the year, we talked to other claimants who also felt that their claim presented special 

circumstances that warranted some flexibility in the application of the policies and procedures.

78 This claimant is adamant that before moving to Europe he/she asked if moving there would be problematic, and was assured that DEEOIC had 

many claimants living in Europe. It is unclear exactly who gave this assurance to claimant.

79 This claimant was communicating with the District Office in Seattle, Washington. 
60

V. SUMMARY OF THE ISSUES AND 

DIFFICULTIES ENCOUNTERED IN 2017

Throughout this assessment of the most common issues and difficulties encountered by claimants and 

potential claimants in calendar year 2017, we discussed a host of issues. The following is a summary of 

these issues and difficulties:

1. Difficulties with the statute:

a. Difficulties involving the statute must be addressed by Congress. The status of CLL as a specified 

cancer; difficulties related to the fee schedule; the cap on benefits; and issues involving coverage are 

issues that DOL does not have the authority to resolve.

b. Some of the complaints with the statute raised administrative matters. For instance, claimants and ARs 

complained that it was difficult to obtain guidance when trying to understand/apply the fee schedule.

c. Claimants questioned if it was possible to have a procedure that would allow them to file their claim, 

thereby establishing a date of filing, and yet postpone pursuing that claim while they addressed the 

other pressing life challenges. 

2. Difficulties arising from a lack of awareness of the EEOICPA program:

a. There are many potential claimants who still are not aware of this program.

b. Much of DEEOIC’s efforts at outreach tends to focus on areas near covered facilities.

c. There are particular concerns regarding whether sufficient effort is being undertaken to bring 

awareness of this program to those who have moved away to other areas of the country.

3. Claimants do not understand the EEOICPA program:

a. In spite of DEEOIC’s efforts, we continue to encounter claimants who do not have a basic 

understanding of this program.

b. This program is plagued by some widely held misconceptions.

c. Some claimants complained that information was only provided if and when they specifically asked for 

information. This presented a problem since many claimants were not familiar with the program and 

thus did not know what information or assistance to ask for. 

d. Claimants complained that they received vague information, or only received pertinent information 

well after the information would have been most useful to them.

4. Difficulties obtaining assistance:

a. Some claimants do not know where to turn for assistance, and a claimant’s lack of familiarity with the 

program can hinder his/her ability to seek assistance.

b. In particular, it was common to be approached by claimants who encountered difficulties trying to 

resolve issues related to medical bills.
61

c. Claimants who do not have access to the internet or who are not familiar with using the internet are at 

a distinct disadvantage when it comes to obtaining information about the EEOICPA. 

d. Likewise, the use of program terminology and acronyms proved a formidable barrier to some claimant’s 

understanding of the claim process and what was expected of them.

5. Difficulties obtaining representation and locating physicians:

a. Some claimants could not find an AR who was willing to assist them.

b. There were also instances where ARs were unwilling to assist claimants with certain aspects of their 

claim, usually authorization for medical treatment, medical bills, and/or durable medical equipment or 

home health care.

c. Claimants also encountered difficulties finding a physician to treat them. When refusing to treat 

EEOICPA claimants, physicians often cited to one, or more, of three reasons: (1) prior problems getting 

paid; (2) not wanting to be second-guessed by DEEOIC; or (3) too much paperwork.

6. Difficulties locating evidence:

a. Claimants complained that 30 days was not sufficient time to develop and submit evidence, especially 

medical evidence.

b. The claimants who complained when given 30 days to submit evidence usually were not aware that 

they could have asked for an extension of time.

c. Claimants questioned the assistance they received when trying to locate employment and exposure 

records. This question often arose when relevant records were not available. In such instances, 

claimants questioned the assistance they could expect from the government in gathering evidence and 

finding facts.

d. While there has been improvement, some claimants continued to complain that when asked to submit 

additional evidence they did not receive adequate guidance outlining what DEEOIC needed from them 

in order to approve their claim.

7. Difficulties with the weighing of evidence:

a. Claimants complained that DEEOIC did not independently assess the credibility of the affidavits 

prepared by claimants and close family members.

b. Claimants complained that they were not provided an adequate opportunity to supplement the 

evidence they submitted.

c. Claimants felt that DEEOIC did not credit evidence they submitted if it was not consistent with the 

information found in SEM.

d. Claimants do not understand why DEEOIC specialists are provided a SOAF and documentation 

from their claim file before issuing a report, but neither they nor their physician are provided this 

documentation when being asked to produce similar reports or evidence.

e. Claimants do not understand why they are not provided a copy of their OHQ; why they are not 

permitted to speak to the IH and/or CMC; or, why they are not provided DEEOIC specialist reports prior 

to receiving their recommended decision.
62

8. Difficulties with the Adjudication Process:

a. Claimants complained of instances where evidence they submitted was not acknowledged or 

discussed in the reports prepared by DEEOIC specialists and/or discussed in the decisions issued by 

DEEOIC.

b. The continued use of language from Circular 15-06 in recommended and final decisions, as well as in 

reports prepared by DOL specialists, has spurred concerns that this Circular is still being applied in the 

adjudication of claims.

c. When DEEOIC undertakes, on its own initiative, to determine if reopening of a claim is warranted, the 

claimant is not notified that reopening is under consideration. And if the claim is not reopened, the 

claimant is not informed that his/her claim was reviewed and that it was determined that reopening 

was not warranted. Claimants are only provided an opportunity to participate after a Reopening Order 

is issued and their claim is in a posture for a Recommended Decision to be issued to them.

d. Claimants are confused by DEEOIC’s current approach to hearing loss claims. In particular, claimants 

would like to know whether there is a presumption of causation for hearing loss, or if the presumptive 

language in the PM Exhibit is a rule which must be satisfied in order to have a claim accepted. 

9. Interactions with DEEOIC:

a. Early in the year we encountered claimants who complained that it was difficult to talk to the CE when 

they called the District Office. DEEOIC vowed to address this matter.

b. DEEOIC’s statement outlining how claimants can report incidents of inappropriate customer service is 

only available online.

c. Many claimants are wary of reporting inappropriate customer service to the district office where the 

person they have a complaint about is employed. Claimants prefer to direct their complaints to a 

specific person who is not part of the team or office adjudicating their claim for benefits.

d. There are continuing problems with delays. In addition to the anxiety that arises when delays occur, 

claimants also complain that they are not notified of delays caused by DEEOIC; and when they ask, 

they do not receive a full explanation for the delays they experience.

e. It troubled claimants that there did not appear to be any limitation regarding how long a claim could be 

delayed.

f. When there was a delay in reauthorizing home health care benefits, many claimants reported that they 

experienced a lapse in service.

10. Circumstances confronting claimants not adequately addressed by the 

program:

a. Due to a variety of significant factors, some claimants have physical and/or cognitive limitations which 

prevent them from handling their claim on their own.

b. DEEOIC does not have adequate procedures currently in place to accommodate this growing 

population of claimants. 
63

APPENDIX 1

ACRONYMS (ABBREVIATIONS) 

USED IN THIS REPORT

ABTSWH Advisory Board on Toxic Substances and Worker Health

ACS Affiliated Computer Services

AEC Atomic Energy Commission

AR Authorized Representative

AWE Atomic Weapons Employer

BeLPT Beryllium Lymphocyte Proliferation Test 

CBD Chronic Beryllium Disease

CE Claims Examiner

CLL Chronic Lymphocytic Leukemia

CMC Contract Medical Consultant (formerly known as District Medical Consultant)

CPWR Center for Construction Research and Training

DEEOIC Division of Energy Employees Occupational Illness Compensation

DME Durable Medical Equipment

DOD Department of Defense

DOE Department of Energy

DOJ Department of Justice

DOL Department of Labor

EEOICPA Energy Employees Occupational Illness Compensation Program Act

FAB Final Adjudication Branch

FECA Federal Employees Compensation Act

FOIA Freedom of Information Act

FWP Former Worker Medical Screening Program

HHS Department of Health and Human Services

HR Hearing Representative

ICD-10 International Classification of Diseases, 10th Edition 

IOP Iowa Ordnance Plant

IH Industrial Hygienist

IOM Institute of Medicine of the National Academies

JOTG Joint Outreach Task Group

MBE Medical Benefits Examiner
64

MED U.S. Army Corps of Engineers Manhattan Engineer District

NDAA National Defense Authorization Act 

NIOSH National Institute for Occupational Safety and Health

NO National Office

OWCP Office of Workers’ Compensation Programs

PM Procedure Manual

PoC Probability of Causation

RECA Radiation Exposure Compensation Act

RESEP Radiation Employees Screening and Education Program

RC Resource Center

SEC Special Exposure Cohort

SEM Site Exposure Matrices

SSA Social Security Administration

The Act Energy Employees Occupational Illness Compensation Program Act

The Office Office of the Ombudsman, U.S. Department of Labor
65

APPENDIX 2

COMMON MISCONCEPTIONS 

ABOUT THE EEOICPA PROGRAM 

1. Some claimants believe that in creating this program, Congress intended to cover anyone who worked 

onsite at a facility associated with the development and building of U.S. nuclear weapons.

2. We routinely encounter claimants who believe that the EEOICPA only compensates those with claims 

for cancer.

3. Some claimants do not realize that if their claim is denied, they can file additional claims if they suffer 

new illnesses. 

4. Because Part B specifically compensates for only four illnesses, some claimants incorrectly assume 

that there is a list of the illnesses potentially covered under Part E. Consequently, some claimants delay 

filing their claim while they first try to determine if there is a similar limitation on the types of illnesses 

covered under Part E.

5. Many claimants are not aware that they can appeal a final decision to U.S. federal district court.

6. The cap on monetary compensation under Part E is $250,000. Some claimants mistakenly believe that 

every successful Part E claim will, over time, result in the receipt of $250,000.

7. There was a belief that when a claim was expedited because the claimant was terminally ill, DEEOIC 

eliminated certain steps in the claims process.

8. While many claimants know that Resource Centers will assist with the filing of new claims, many are 

unaware that they will also assist claimants with a variety of other claim processes, such as help with 

finding a physician or resolving medical bill-pay issues.

9. Many claimants erroneously believe that the SEM database includes links between toxic substances 

and illnesses that can be aggravated by or contributed to exposure to these substances. In fact, the SEM 

database only includes illnesses that have a causal link to a toxic substance.

10. Employees of AWE employers may have worked with toxic substances other than radiation, but under 

the EEOICPA they are only covered for cancers caused by exposure to radiation.
66

APPENDIX 3

DOL’s RESPONSE TO THE 2015 

ANNUAL REPORT TO CONGRESS 

RESPONSE TO THE OFFICE OF THE OMBUDSMAN’S 2015 ANNUAL REPORT

1 - Notification About the Program

The Ombudsman’s summary states: “We continue to encounter claimants who contend 

that they only recently learned of this program. These claimants often question why it 

took so long for them to learn of this program. Some of these claimants find it troubling 

that the government never notified them of this program and instead, they only learned of 

this program from a friend or neighbor. Regardless of how they learned of the program, 

claimants who feel that there was a delay in notifying them of this program often believe 

that the adjudication of their claim was negatively impacted by this delay. Some believe 

that due to the delay evidence was destroued. There are also claimants who believe that the 

amount of compensation paid on their claim was impacted by a delay in receiving notice of 

this program. Based on our observations, we believe that there are potential claimants who 

still do not know about this program.”

Response: I agree that widespread direct notification to all those individuals potentially impacted 

by the nuclear weapons program has been challenging. OWCP understands the critical importance 

of outreach to the nuclear weapons community and welcomes ideas and suggestions on how to 

increase awareness.

Since the onset of the program, OWCP has utilized its network of Resource Centers (RCs) to 

provide an initial point-of-contact for workers interested in filing claims. These RCs, located at 

or near 11 major DOE sites across the country, frequently meet with various organizations in an 

effort to inform the community about the program. A traveling resource center was implemented 

to further these efforts and reach an even larger geographical area. Town Hall Meetings have also 

been conducted, and, more recently, OWCP has developed an informational campaign involving 

teleconferences and a subscription email service, specifically targeting physicians and home 

health care providers who are likely to come into contact with potential claimants. OWCP also 

meets with advocacy groups and attends a host of conferences/meetings aimed at informing 

workers and unions about the program. 

A Joint Outreach Task Group (JOTG) was formed to allow representatives from DOL, DOE, 

HHS, the office of the Ombudsman for EEOICPA, and the Office of the Ombudsman for HHS’s 

National Institute for Occupational Safety and Health (NIOSH), plus representatives from DOE’s 

Former Worker Medical Screening Program, the opportunity to exchange ideas, share resources, 

and develop outreach strategies for targeting current and potential claimants. All four federal 
67

agencies publicize EEOICPA via their websites and provide links to the other three sites to ensure 

easy access of information and resources. OWCP’s EEOICPA website links to DOE’s web listing 

containing descriptions of the covered DOE facilities, Atomic Weapons Employer facilities, and 

beryllium vendor facilities, in order to assist workers in identifying a possible covered employer. 

Information is also disseminated through brochures, pamphlets, and other printed material and 

publicized in press releases, newspaper articles, radio advertisements and via social media.

2 - Claimants’ Understanding of EEOICPA

The Ombudsman’s summary states: “Some claimants go through the entire adjudication process 

without ever acquiring a good understanding of how this program works, and in some instances 

this can have an impact on a claimant’s ability to develop his/her own claim. For example, while 

a lot of useful information can be found on DEEOIC’s website, we encounter claimants who 

do not know that this website exists, or do not appreciate the value of information found on 

this website. Moreover, even when they are aware of DEEOIC’s website, some claimants find it 

hard to use this website because: (1) they do not have access to the internet, (2) they are unable 

to navigate this website, and/or (3) they do not understand the information that they locate. 

A common complaint suggests that in developing tools and providing information DEEOIC 

often appears to assume that claimants fully understand the program. However, we frequently 

encounter claimants whose understanding of EEOICPA is cursory at best. Claimants suggest 

that it would help if more effort was made to show them how to access and use the various 

tools/resources that have been developed. They have also indicated that they could benefit from 

a better guide of index directing them where to locate information.”

Response: I agree there are claimants who do not have access to information via the internet and many 

others who may not understand the information that is provided. EEOICPA is a complicated statute, 

and more ca be done to make both the law and the process understandable. OWCP is undertaking a 

review of its website and printed material with the end goal of better communication and usability 

of available information.

Improved written material, which answers more questions and minimizes confusion, will also have the 

added benefit of allowing OWCP staff to concentrate its attention on specific claimant issues. OWCP 

and Resource Center staff provide assistance both in person and via telephone to help claimants 

understand the claims process and what happens one their claims are transferred to a District Office. 

The claims examiners (CEs) at the District Offices also serve as contacts for any claimant questions, 

concerns, and “next steps.” The Final Adjudication Branch (FAB) hearing representatives and CEs 

assist with reconsideration requests, the hearing process, remands, and final acceptances or denials. 

Once a claimant is awarded benefits under EEOICPA, OWCP provides additional guidance on the 

payment process the award of medical benefits and medical care authorization, and the medical 

billing process. OWCP provides toll-free numbers for claimants to use if they have questions or 

concerns and responds promptly to phone calls. 
68

3 - Statutory Eligibility under EEOICPA

The Ombudsman’s summary states: “Questions arise concerning coverage under this 

program—specifically who is covered, the facilities covered, and the illnesses covered 

under EEOICPA. Claimants would like someone to explain the rationale for covering some 

employees and some illnesses, while other employees and other illnesses are not covered 

under this program. Similarly, claimants would like a better understanding as to why certain 

facilities are not covered under this program. Since Congress has already recognized that state 

workers’ compensation programs oftentimes do not provide a uniform means of ensuring 

adequate compensation for the types of occupational illnesses and diseases related to these 

sites, individuals who are not covered under this program would also like someone to direct 

them to a program that will compensate them for the illnesses that arise from employment at 

these facilities.”

Response: The issue raised here, regarding the rationale behind the enactment of various specific 

eligibility provisions of EEOICPA, is not an issue with which I can appropriately agree or disagree. 

The statute sets out the numerous criteria for the various facilities that are covered, the employees 

who are covered, and the types of illnesses that are covered. OWCP’s role is to impartially and 

accurately apply the law as written. OWCP works to faithfully execute the statute and to provide 

a fair approach to the adjudication of claims and the delivery of benefits under the existing law 

which fully considers the information provided by the claimant and the requirements of the statute. 

OWCP will look for ways of improving its communication when a claim is denied and look into 

other resources that might be of assistance to claimants. 

4 - OWCP’s Obligation to Provide Assistance in Connection with a Claim

The Ombudsman’s summary states: “Another common issue involves the problems 

encountered by claimants when trying to locate evidence. Section 7348v of the statute states 

that the President shall ‘provide assistance to the claimant in connection with a claim . . .’ 

42 U.S.C. § 7384v(a). We routinely talk to claimants who believe that this provisions was 

passed because Congress realized that there would be instances when relevant evidence 

had been destroyed and other relevant information was never collected. In response to 

claimant’s complaints that there needs to be more assistance, DEEOIC has indicated that 

under EEOICPA, the burden of proof is on the claimant. Claimants understand that they 

bear the burden of proof. Nevertheless, they also believe that 7384v must have some meaning. 

Therefore, claimants would like clarification as to the assistance anticipated by this provision, 

as well as clarification as to who is expected to provide this assistance.”

Response: I understand that claimant may have varying understandings of OWCP’s actual statutory 

obligations under § 7384v of EEOICPA, and I offer the following by way of clarification. Under the 

EEOICPA, unless otherwise specified in the statute, the claimant bears the burden of proving by a 

preponderance of the evidence the existence of each criterion necessary to establish their eligibility. 

To help them meet this burden OWCP is required by § 7384v to provide claims assistance under Part 

B; specifically, assistance in securing medical testing and diagnostic services for covered beryllium 

illnesses, chronic silicosis or radiogenic cancer; and such other assistance as may be required to 
69

develop facts pertinent to the claim. In other words, OWCP can assist claimants in gathering facts 

or finding evidence under Part B, but it is then incumbent upon claimants to utilize the available 

evidence to prove their case.

To meet its statutory obligation to assist claimants, OWCP has implemented a number of policies 

and processes. OWCP has further chosen to voluntarily apply the same standards of assistance 

to claimants under Part E. The following descriptions are some of the resources that OWCP has 

developed to assist claimants. 

OWCP, with the assistance of DOE, conducted extensive research and investigation into sites, 

facilities, groups of workers (i.e., job categories, job duties, etc.), exposures, diseases, and exposure 

links. Based on this research, OWCP developed a relational database called the Site Exposure 

Matrices (SEM). The SEM contains information about the types of known toxic substanes at the 

DOE facilities (and uranium mines and mills) covered under the EEOICPA, the associated job 

categories likely exposed to the toxic substances, and the possible health effects of exposure. This 

assistance goes a long way toward helping claimants meet their burden of proof to establish workrelated exposure to toxic substances under Part E.

OWCP provides the services of contract medical consultants (CMCs) to assist claimants in 

establishing work-related causes of illnesses, particularly in cases where a claimant’s treating 

physician may not be able to provide the necessary medical support for the claim.

OWCP also contracted for the services of industrial hygienists to conduct indicidual exposure 

assessments for Part E claims. This is particularly important when claimants may not have been 

aware of the extent of their exposure to toxic substances while performing their jobs.

OWCP works closely with DOE, DOE’s Former Worker Medical Screening Program, and the 

Center for Construction Research and Training to help claimants verify their employment. OWCP 

has implemented interagency agreements with both DOE and the Social Security Administration 

(SSA) for access to employment/earnings records, and in the case of DOE, any retained health 

records or other work-related documents.

5 - Weighing of Evidence

The Ombudsman’s summary states: “While DEEOIC has made strides in providing wellreasoned decisions, the weighing of evidence continues to generate complaints. Claimants 

still complain that decisions (or letter decisions) merely informed them of the outcome of 

the claim. As one would expect, these complaints are most frequently raised when decisions 

merely inform the claimant that the claim was denied. Claimants contend that merely being 

informed that the claim was denied is not sufficient. According to claimant it is critical to 

know why the claim was denied—this not only helps to explain the decision, it also provides 

guidance as to what the claimant needs to do to further develop his/her claim. Claimants also 

complain that there are instances when relevant factors are not considered when evidence 

is weighed. These relevant factors include, the qualifications of the respective physicians; 

the length of time or the number of times a physician saw the claimant; the documents the 
70

physician reviewed in making his/her determination; as well as the physician’s familiarity 

with the facility in question. When these factors are not even mentioned by the CE or HR, 

claimants question the extent to which they were recognized and/or considered.”

Response: I agree that the clarity of OWCP’s decisions initially needed improvement. Significant 

improvements were implemented, and claimants are now provided with written decisions that 

include a more detailed explanation of why a claim was denied, information on how the evidence 

was weighed, and DEEOIC’s rationale for the decisions. I further agree it is critically important that 

we continue to strive for decisions that are clear, well-reasoned, and solidly supported by the law.

The Federal (EEOICPA) Procedure Manual, which guides the actions of OWCP’s claims staff, 

states that in writing decisions, staff must address all facets of the evidence that led to a conclusion, 

including any interpretive analysis relied upon to justify the acceptance or denial of a claim. Beginning 

in 2015, OWCP set a higher bar in terms of performance, providing additional training to claims 

examiners and hearing representatives, specifically to improve the quality of written decisions. 

OWCP has implemented an ongoing improvement process that includes feedback, editing, and 

rewriting of decisions. The training stresses the importance of providing a full explanation regarding 

the adequacy or inadequacy of evidence submitted, i.e., how each piece of medical evidence was 

reviewed and weighed, including the medical evidence, reports, and determinations provided by 

the claimant’s physician. Staff are instructed that a written decision must identify that a CMC may 

have assisted in the adjudication of medical issues or causation and why studies or other reports 

may have been used or rejected in adjudicating the claim. OWCP also implemented a procedure 

requiring claims examiners to provide claimants with any underlying supporting documents upon 

which s/he relied in reaching his/her recommended decision. For example, when any recommended 

decision to deny a case is based, in part, on the decision of a CMC, the CMC report is provided to 

the claimant along with the recommended decision. The claimant then has the opportunity to object 

to any findings in the report at the FAB level before a final decision on his/her claim is issued.

6 – Evidentiary Burdens in Proving Claims

The Ombudsman’s summary states: “There are concerns with the application of the burden of 

proof. One concern involves the fact that claimants are not always certain when the ‘at least as 

likely as not’ standard applies and when the ‘more likely than not’ standard applies. Another 

concern involves the fact that some claimants believe that there are instances when the burden 

placed on them is greater than either the ‘at least as likely as not’ or the ‘more likely than not’ 

standards. For example, claimants argue that DEEOIC’s refusal to rely solely on the affidavit 

of the worker, and to insist that there be documents in the record to support the affidavit, 

results in placing a higher evidentiary burden on them than that used in criminal proceedings. 

We also continue to hear from claimants who believe that they were required to prove facts 

with almost near certainty. Some claimants have suggested that the requirement to prove facts 

with documentary evidence often means that they must prove the fact with near certainty.”

Response: I disagree that OWCP applies a higher evidentiary burden to claimants in substantiating 

their claims that that required by the statute. I do, however, understand the frustrations of claimants 

in trying to meet their burden of proof. The claimant bears the burden of proving by a preponderance 
71

of evidence the existence of each and every criterion necessary to establish eligibility under any 

compensable claim category. One criteria is causation, and the legal test for showing compensable 

causation is the “at least as likely as not” standard. While program staff see to aid claimants in 

establishing their entitlement to an award of benefits, the program does have a legal responsibility to 

apply the law. The following brief summary of the review and appeal proves may prove instructive:

• Once the district office issues a recommended decision the case file is automatically 

transferred to the FAB. The FAB will review the entirety of the case and may issue a 

final decision affirming the findings made by the district office, remand the case to the 

district office for issuance of a new recommended decision, or reverse the recommended 

decisions. Reversal, however, may occur only when the recommended decision was to 

deny and the FAB determines that the record contains sufficient evidence to warrant 

accepting the case.

• Following the final decision, the claimant has the right to request reconsideration, in 

which instance a new hearing representative will review the case and may either deny the 

reconsideration request or accept it and remand the case to either the district office for a 

new recommended decision or to the FAB for a new final decision.

• The claimant may also request a reopening of the case at any time following a final 

decision, or in the alternative, file suit in District Court.

• To provide a general sense in terms of the number of final decisions issued compared to 

the number of reconsiderations receive, I offer the following additional information. In 

FY2016, approximately 20,250 final decisions were issued by the FAB, including those 

requiring a hearing. That same year, 930 requests for reconsideration were received and 

completed. Thus, less than 4.5 percent of decisions received a request for reconsideration.

7 – The Ombudsman’s summary states: “Claimants continue to have questions concerning 

the weight given to PM provisions bulletins, circulars and teleconference policy notes. In 

particular, concerns arise when these documents are the only basis cited in drawing conclusions 

of law in decisions. Claimants question DEEOIC’s interpretation of the word ‘presumption,’ 

particularly as it relates to policy guidance for Part E claims. Claimants assume that if a 

presumption exists under Part E, should they fail to meet the presumption, their case will still 

be fully adjudicated under the Part E standard of causation. Thus, claimants have expressed 

frustration and confusion when they are informed that presumptions under Part E must be 

met or their claim must be denied.

Response: I disagree that OWCP is improperly relying on its policies and bulletins in dividing 

claims or otherwise improperly adjudicating Part E claims where a presumption is implicated. 

I nevertheless understand how this may be an area of confusion for some claimants. I offer the 

following explanation.

Federal agencies like OWCP use procedure manuals, bulletins, and circulars to disseminate policy 

and procedures to their staffs. While these documents do not have legal force, per se, they are meant 

to advise program staff and the public of how and agency interprets the statutes and rules that do have 

the force of law, and they provide the foundation for program implementation and operations.
72

OWCP conducts research to develop its procedural manuals, bulletins, and circulars and works with 

the department’s Solicitor’s Office to ensure that those and other program documents are consistent 

with the program’s statute and regulations. OWCP publishes the material on its website making it 

available to the public.

Regarding the use of a “presumption” under Part E, OWCP has conducted significant research which 

supports the creation of certain presumptions regarding exposure (e.g., if an individual worked in a 

particular labor category for at least 250 days prior to 1995, it can be presumed that the worker had 

significant exposure to asbestos). Research also supports OWCP’s creation of certain presumptions 

regarding causation (e.g., if the employee was significantly exposed to asbestos and was diagnosed 

with asbestosis, laryngeal cancer, ovarian cancer, or mesothelioma and had a particular latency 

period, OWCP can presume that the condition was causally related to the exposure to asbestos). We 

have been able to make such presumptions through research for a number of different conditions 

under Part E. 

The fact that a claimant may not have a designated presumptive illness, however, does not mean 

his/her claim will be denied. Lack of a presumptive illness is never justification, standing alone, 

for denial of a claim. A claimant is always legally entitled to prove his/her case, regardless of any 

presumption. The case will still be fully adjudicated, but exposure and/or a causal relationship 

must be proven by the claimant without the use of a presumption. Awards of benefits are routinely 

entered based on the strength of the evidence alone, without applying any legal presumption.

8 – Home Health Care Benefits & Medical Billing

The Ombudsman’s summary states: “In recent years, a large number of the complaints that 

we received involved issues related to home health care and medical billing. In a general 

sense, claimants believe that decisions concerning home health care need to be netter 

explained. For instance claimants believe that if after previously approving the same level 

of care DEEOIC subsequently decides it needs more information, DEEOIC ought to explain 

why ore information is needed and needs to be specific as to what it is seeking. In addition, 

claimants and providers believe that if they respond to a request for information and DEEOIC 

determines that the information provided is not adequate, DEEOIC should not simply resend 

the same request for information. Rather, claimants and providers suggest that if additional 

information is submitted and DEEOIC determines that this information still is not sufficient, 

DEEOIC ought to make an effort to better explain what is being sought.”

Response: I agree that additional clarity and communication regarding the requirements for home 

health care (HHC) medical benefits under EEOICPA would be helpful.

In FY 2016, DEEOCI took steps to create a centralized unit responsible for the review and 

adjudication of all HHC and other ancillary medical benefits requests. The new unit is staffed 

by Medical Benefits Examiners (MBEs) who specialize in the review and adjudication of HHC 

requests and operate under the direction of the National Office. This centralization of staff allows 
73

DEEOIC to provide a more efficient and consistent decision-making process with respect to HHC 

requests and provides better communication between claimants, their doctors, and HHC providers. 

All HHC authorizations require review and updated medical information prior to reauthorization. 

Sixty (60) days prior to expirations, MBEs send notification letters to providers and claimants 

reminding them of the need for updated medical information. A failure to provide updates information 

can result in a reminder letter again stating the need for updated medical information, A failure to 

produce updated medial evidence may ultimately result in a denial letter advising that care cannot 

be reauthorized due to the lack of necessary medical evidence. If the physician or claimant is not 

clear about the exact information that is needed, s/he may contact the MBE, and the MBE will seek 

to provide the physician or claimant with an explanation of what is required and why.

Upon receipt of medical evidence, it is the MBE’s responsibility to evaluate any such evidence and 

determine if the information provided is sufficient to authorize the care requested. If the medical 

information is deficient or unclear, the MBE is to explain the nature of the deficient evidence and the 

specific information needed by DEEOIC in order to proceed with adjudication of the HHC request.

9 – Assistance with Medical Billing Issues

The Ombudsman’s summary states: “With respect to medical billing, claimant contend that 

it would be useful if more assistance was provided. If a claimant utilizes a provider enrolled in 

the program, that provider is able to directly submit his/her bill for payment. However, there 

will be instance where claimants are seeking reimbursement for bills that he/she paid out-ofpocket—such as instances where the claimant paid bills out-of-pocket while the claim was 

pending. Claimants believe that it is not reasonable to expect them to be intimately familiar 

with the bill paying process and the carious forms that must be filed. Consequently, claimant 

contend that it would help if instead of simply rejecting a bill, they received an explanation, 

in terms they could understand, outlining why the claim was denied, and where appropriate, 

explaining what needed to be done to correct any deficiencies. Similar concerns are raised by 

some providers who contend that the process for paying bills can be burdensome and that 

assistance is not always easy to locate.”

Response: I agree the medical billing approval process can be confusing, and we are working on 

ways to improve the system.

OWCP/DEEOIC currently utilizes a three-tiered system for medical billing. The first tier of 

communication involves bills that are received with deficiencies that prevent them for being 

processed. In these instances, the bills are returned with a letter that outlines the deficiencies that 

must be fixed prior to resubmission. If there are not upfront deficiencies, OWCP moves on to the 

second tier and either issues a payment or denial. Details concerning the denial are communicated 

to the submitter including the reasons for denial. OWCP will review current explanation of benefits 

to ensure reasons for denial are clearly articulated to ensure better understanding by claimants. 

The third tier involves the medical bill pay contractor call center, Resource Centers, and District 
74

Office staff, all of which are available to provide further assistance on any denials. Within the last 

two years, DEEOIC has begun sending out email blasts to subscribers that provide ongoing ad new 

information about the medical bill process and related issues. The program also now has quarterly 

calls with physicians and physicians’ staff to answer questions about the process.

10 – Procedures for Reporting Inappropriate Customer Service

The Ombudsman’s summary states: “We encounter claimants who have concerns with some 

of their interactions with DEEOIC. Most claimants who come to us with complaints alleging 

inappropriate behavior are adamant that their concerns reflect the actions of just one or two 

employees, and stress that their complaints are not meant to reflect on the DEEOIC staff as 

a whole. In fact, claimants who come to us with complaints alleging inappropriate behavior 

usually go out of their way to emphasize that they also encountered other staff members who 

were very helpful. Yet, it concerns claimants that they encounter instances where certain staff 

members are rude or not vey helpful. What really troubles claimants is the feeling that there 

does not appear to be any formal mechanism for addressing their concerns. Because DEEOIC 

is usually reluctant to grant a request to change CEs, claimants feel ‘stuck’ with a CE regardless 

of how inappropriately that CE may conduct him or herself. Moreover, claimant find the 

suggestion that they report such conduct to be useless since there is no established procedure 

for reporting such conduct. Claimants are usually reluctant to call a telephone number to 

discuss a complaint about one staff member when they do not know who they are talking to 

or how their complaint will be handled. Claimants frequently tell us that they fear that when 

they call to report an incident of inappropriate behavior, the person who is the subject of their 

complaint will be sitting in the next cubicle (or they will report their complaint to someone who 

immediately tells the subject of the complaint everything that was said.) For some claimants it 

would help if there was a designated procedure for reporting such complaints. Other claimants 

have suggested that recording all telephone conversations between CEs and claimants would 

ensure that DEEOIC had an accurate account of these conversations.”

Response: I agree that reporting and resolving any inappropriate customer service issues is of the 

utmost importance. Our reporting process will be reviewed, and we will examine additional ways 

to publicize the process to the claimant community.

Customer service complaints may be submitted to OWCP in writing, by phone, via public email, 

or by using the customer satisfaction surveys that are available on the OWCP website and through 

the OWCP IVR phone system. Claimants are encouraged to complete the phone survey after a call 

is conducted with their CE or other member of the EEOICPA office. The survey is anonymous. The 

public email for complaints is Deeoic-public@dol.gov. Claimants may also direct their complaints 

to a supervisory CE, unit manager, assistant district director, or district director. Every complaint 

will be reviewed and appropriate action taken.
75

CONCLUSION

OWCP administers its responsibilities under the EEOICPA with the intent of following the will 

of Congress in enacting the EEOICPA: to pay compensation and medical benefits to all eligible 

nuclear weapons workers (or their eligible survivors) who incurred illnesses in the performance of 

duty at a covered facility. Our statistics show that as of November 26, 2017, DEEOIC has awarded 

compensation and medical benefits totaling more than $14.37 billion under both Part B and Part 

E of the EEOICPA. During this time 117,723 workers or their families have received more than 

$10.60 billion in compensation and more than $3.76 billion in medical expenses associated with the 

treatment of accepted medical conditions.

Feedback from EEOICPA stakeholders is central to our collective success. Whether feedback is 

received via the thousands of phone calls fielded by CEs, the concerns brought to the attention of 

DEEOIC leadership, or the recommendations fro the Advisory Board on Toxic Substances and 

Worker Health, all input is important to ensuring that OWCP/DEEOIC carries out its Congressional 

mandate. The Ombudsman’s 2015 Annual Report provides OWCP with valuable information that 

we will use to further improve the administration of EEOICPA.