TABLE OF CONTENTS

A Message from the Ombudsman iii 

Preface iv 

Executive Summary vii 

Report 1 

 I. Background: Legislative History of EEOICPA 1 

 II. The Office of the Ombudsman and this Report 2 

III. Statutory Issues 3 

 A. Limitations on Survivor Eligibility 3 

 B. Definition of a Covered DOE Facility 4 

C. Qualified Claimant’s Death Prior to Award 

Nullifies Claim or Reduces Compensation 6 

D. Miscellaneous Inquiries and Comments 7 

IV. Regulatory, Policy and Procedural Issues 9 

A. Difficulties Retrieving Employment, 

Exposure and Medical Records 9 

 

B. Difficulties in Proving Causation 13 

C. Part B Issues 16 

D. Miscellaneous Inquiries and Comments 16 
ii

 V. Administrative or Miscellaneous Issues 17 

A. Concerns about Claimant Interactions 

with DEEOIC Personnel 17 

B. Requests for Assistance in Understanding 

Communications 20 

C. The Processing of Claims Has Taken and 

Will Take Too Much Time 22 

 

D. Locating Experts 22 

E. Medical Benefits Issues 25 

F. Offsets and Coordination of Benefits 26 

 G. Miscellaneous Inquiries and Comments 26 

VI. Town Hall Meetings 28 

VII. Emerging Issues and Conclusion 31 

Appendix I: Compilation of Comments by Subject/Issue by 

the Office of the Ombudsman from January 1, 2007 through 

December 31, 2007 33 

Appendix II: List of the current 11 resource centers 34 

 

 
iii

A MESSAGE FROM THE OMBUDSMAN

The Office of the Ombudsman is charged with submitting to Congress by February 15th

of each year, a report setting forth: 

A. The number and types of complaints, grievances, and requests for assistance 

received by the Ombudsman under this part during the preceding year. 

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

potential claimants under this part during the preceding year. 

See 42 U.S.C. §7385s-15 (e). 

In order to carry out this charge, it is essential that the Office of the Ombudsman hear 

from claimants and potential claimants, and it must be recognized that no one is required 

to contact us. Therefore, I would like to take this opportunity to thank everyone who, 

during this preceding year, took the time to contact the Office of the Ombudsman or 

attend one of our town hall meetings. I sincerely hope that this report accurately reflects 

your concerns and comments. 

Because many people are referred to us, I would also like to thank everyone who referred 

someone to this Office. I consider it an honor that there are people willing to assist us in 

advancing the awareness of this Office – I truly appreciate your assistance. 

In addition, I want to thank the staff of the Division of Energy Employees Occupational 

Illness Compensation (DEEOIC). The prompt responses from DEEOIC to our inquiries 

and questions are truly appreciated. I also want to thank DEEOIC for ensuring that 

representatives from their office attended our town hall meetings – and a special thank 

you to the staff of DEEOIC who attended these meetings. The attendance by members of 

DEEOIC truly helped to make these meetings a success. Likewise, I would like to 

acknowledge the staffs of the Resource Centers. Staff members from some of these 

offices also attended our town hall meetings, and I would like to thank them for their 

contributions. 

I want to thank Secretary Elaine L. Chao for extending the Office of the Ombudsman 

when the statutory requirement expired on October 28, 2007, and for extending my term 

as Ombudsman. It is an honor to serve the Department of Labor, as well as the American 

people, in this very fulfilling capacity. I will make every effort to live up to this honor. 

Last, but certainly not least, I want to thank the staff of the Office of the Ombudsman, 

Kim Holt, Patricia Louie, and James McQuade, as well as former staff members John 

Lewis, Eileen McCarthy and Nancy Rooney. The success of this Office is directly 

attributable to their dedication and devotion. I commend them for their efforts during the 

year. 

Deleted: C
iv

PREFACE

The Energy Employees Occupational Illness Compensation Program Act (EEOICPA) 

was passed by Congress in 2000, and amended in 2004, to compensate American workers 

who put their health on the line to help fight the Cold War. In the course of doing their 

jobs, many of these workers were exposed to radiation and other toxic substances and, as 

a result, developed cancer and other serious diseases. The purpose of this program is to 

acknowledge the sacrifice of these workers and to compensate them in some small way 

for their suffering and loss. 

As originally enacted in 2000, EEOICPA included Part B (administered by the 

Department of Labor (DOL)) and Part D (administered by the Department of Energy 

(DOE)). In October 2004, Congress repealed Part D and enacted Part E of the Energy 

Employees Occupational Illness Compensation Program Act, effectively transferring 

responsibility for administration of contractor employee compensation from the DOE to 

the DOL. The 2004 amendments also created the Office of the Ombudsman for Part E 

and directed that it be an independent office, located within the Department of Labor, 

charged with a three-fold mission: 

• To conduct outreach to claimants and potential claimants to provide information 

on the benefits available under this part and on the requirements and procedures 

applicable to the provision of such benefits; 

• To make recommendations to the Secretary of Labor about where to locate 

resource centers for the acceptance and development of claims;1

• To submit an Annual Report to Congress by February 15, setting forth the number 

and types of complaints, grievances and requests for assistance received by the 

Ombudsman, and an assessment of the most common difficulties encountered by 

claimants and potential claimants under Part E during the previous year. 

See 42 U.S.C. § 7385s-15(e). 

In 2007, the Office of the Ombudsman continued to build on its efforts to reach out to 

Part E claimants and potential claimants. Our primary emphasis focused on responding 

to the many letters, emails and telephone calls we received, requesting information or 

assistance, or expressing concerns about various aspects of the Part E compensation 

program. However, as in previous years, we also hosted and/or attended town hall 

meetings in locations around the country. These meetings which were very well attended 

provided us an opportunity to meet claimants and to “put a face” on many of the 

complaints that we had received. The presence at these meetings of representatives from 

the resource centers and the Program Office also offered the opportunity to immediately 

 

1

 DEEOIC currently provides services through eleven resource centers strategically located to assist 

potential claimants by supplying information about Part B and Part E of EEOICPA. A listing of these 

eleven resource centers can be found at Appendix II. 
v

address many complaints and concerns – especially status inquiries and requests to file 

claims. Moreover, because Denise Brock, the Ombudsman to NIOSH was present at 

some of these meetings, we were able to offer claimants immediate access to someone 

who could assist with some of their Part B questions. As a result of the success of these 

town hall meetings, we will continue to schedule them for the coming year. Overall, with 

respect to the Office of the Ombudsman, some of the highlights of the preceding year 

include: 

• Received hundreds of telephone calls, e-mails and letters from claimants and 

potential claimants. 

• Hosted town hall meetings in Kayenta, Arizona; Shiprock, New Mexico; and 

Augusta, Georgia. 

• Accepted the invitation of Denise Brock, Ombudsman to NIOSH, to attend town 

hall meetings that she sponsored in Idaho Falls, Idaho and Calabasas, California, 

and invited Ms. Brock to join us in Augusta, Georgia. Because many claimants 

are potentially eligible under both Parts B and E, these joint efforts have been 

well received. I am happy that Ms. Brock has expressed a willingness to continue 

this coordination of efforts. 

• Testified before the Senate’s Health, Education, Labor and Pension Committee. 

• Developed a database to better record and report the grievances and complaints 

received by the Office. 

• Provided briefings to various organizations and congressional staff members. 

• Developed facts sheets for distribution to claimants and potential claimants. 

• Met periodically with staff of DEEOIC. 

In addition, working with DEEOIC, the Office of the Ombudsman has provided hundreds 

of claimants with an updated status of their claim and provided guidance to many 

claimants on the processing of their claim. Where claimants with a terminal illness were 

brought to our attention, we worked with DEEOIC to ensure that these claims were 

expedited. And as noted earlier, DEEOIC’s presence at our town hall meetings has been 

very effective. We look forward to continuing these efforts in the coming year. 

 

Overall, our goal for the coming year is to further expand on our outreach – with a special 

emphasis on continuing to sponsor town hall meetings and to develop information that 

can be disseminated to the public. 

With respect to the previous year, the chart below compares Part E statistics as of 

December 29, 2006 (the date used in the 2006 annual report) with January 8, 2008. As 

the chart illustrates, in every category where a comparison is permissible, DEEOIC has 

shown an increase during the course of the year – applications filed; recommended 

decisions approved; final decisions approved; payments and total dollars. 

 

(Claims) December 29, 

2006 

January 8, 

2008 

+/- 

Applications Filed 58,943 69,269 +10,326 
vi

Recommended Decisions 

(Approved) 

10,308 16,292 +5984 

Recommended Decisions 

(Denied) 

25,275 16,945* N/A* 

Final Decisions (Approved) 8,861 15,245 +6384 

Final Decisions (Denied) 19,733 14,396* N/A* 

Payments 4,400 8,420 +4020 

Total Dollars $534,576,042 $950,447,566 +$415,871,514 

*With regard to covered applications only.2

The statistics for January 8, 2008, also reflect an almost even balance between approved 

and denied claims. 

Claims January 8, 2008

Recommended Decisions (Approved) 16,292 

Recommended Decisions (Denied) 16,945* 

Final Decision (Approved) 15,245 

Final Decision (Denied) 14,396* 

*With regard to covered applications only. 

However, these statistics do not include non-covered applications - claims that were 

denied because the applicant did not establish that the employee had covered employment 

or where the survivor did not meet the relationship or dependency requirements. 

DEEOIC statistics show that as of January 8, 2008 there were a total of 22,353 noncovered applications, of which 3,151 involved “non-covered employment,” and 19,231 

involved a survivor who was not covered. 

Overall, these statistics generally coincide with what has been our experience – not just 

for the past year, but for the past few years - while many claimants have been awarded 

benefits, there is a greater number (when you include both covered and non-covered 

applications) who have not been successful in their pursuit of EEOICPA benefits.3

 

 

2

 Excludes non-covered applications – i.e., applications where the claimant did not establish that the 

employee had covered employment or where a survivor did not meet the relationship or dependency 

requirements. 

3

 Our Office also hears from people who have not filed a claim because they believe that they are not 

covered under the Act. We generally encourage these individuals to contact the resource center. 
vii

EXECUTIVE SUMMARY

Introduction

In light of our mission, the Office of the Ombudsman generally does not receive, and thus 

this report generally does not contain, comments that are complimentary of the Part E 

program administration. Rather, throughout the year, individuals contact this Office in 

order to obtain information or to express their complaints and grievances. At one end of 

the spectrum, we hear from individuals trying to determine if they are eligible for Part E 

benefits. We have encountered individuals who while generally aware of EEOICPA, did 

not understand the distinction between Parts B and E, or did not know how to initiate a 

claim. Especially during our town hall meetings in Kayenta, AZ and Shiprock, NM we 

encountered individuals who did not realize that they were potentially eligible for 

compensation under the Radiation Exposure Compensation Act (RECA), as well as Parts 

B and E, or else, while aware of their potential eligibility, did not realize that they had to 

separately file for compensation under each program. On the other end of the spectrum, 

we are contacted by individuals who have been awarded benefits, yet have questions 

concerning the impact of a state workers’ compensation or tort award; or want to 

determine if they must pay federal income tax on their EEOICPA award; or simply want 

to know how long it will take to actually receive benefits. We also receive calls from 

individuals – usually individuals who have had claims denied - inquiring if specific 

statutory provisions have been revised. Nevertheless, most of the individuals who 

contact our Office either have a pending claim, or were recently denied benefits. The 

concerns expressed by these individuals range from a request for the status of their claim, 

to assistance in acquiring medical help, to complaints concerning the burden of proof. 

This Office also receives inquiries from individuals who do not have an EEOICPA Part E 

claim, but rather an EEOICPA Part B or RECA claims. Because our statutory authority 

directs us to provide assistance to Part E EEOICPA claimants, we cannot provide 

significant assistance to these inquirers. In these instances, we provide basic information 

and try to ensure that these individuals are referred to more appropriate sources of 

assistance; DEEOIC, the National Institute for Occupational Safety and Health (NIOSH) 

and the Department of Justice RECA staff have all been helpful in ensuring that the 

issues raised by these individuals are addressed. Where available, we also direct these 

individuals to relevant web-sites. In addition, the creation of the position of an 

Ombudsman to NIOSH has provided our Office with an excellent referral for those 

claimants who need assistance in the dose reconstruction process and for petitioners 

engaged in the Special Exposure Cohort (SEC) petitioning process. 

There are many ways that we could present the concerns and inquiries that we have 

received. However, the method that we utilized in our two previous reports and one that 

we find very effective is to categorize the concerns and inquiries under one of three 

headings: (1) Statutory Issues; (2) Regulatory, Policy and Procedural Issues; and 

(3) Administrative or Miscellaneous Issues. Nevertheless, it must be recognized that 

people do not express themselves using the categories and subcategories utilized in this 
viii

report. We also find that, when talking to us, most people take the opportunity to express 

more than one grievance or concern, and moreover, every claim has its own unique set of 

facts. Nevertheless, based on our experiences, these categories are an effective way to 

present the grievances and concerns that have been expressed to us. Therefore, we will 

continue to utilize these categories in our 2007 report. As a result, the discussion of some 

issues will be a “carry over” or a continuation of the discussion presented in previous 

years – this reflects that some issues continue to be a concern for many claimants. Yet, 

there are some issues where new concerns and problems have been added to previous 

issues. Below is a summary of the major issues discussed in this year’s report – a fuller 

discussion of each issue is provided in the report itself. 

Statutory Issues

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

EEOICPA which could be addressed administratively. Rather, some of their complaints 

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

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

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

concerns.

Limitations on Survivor Eligibility (57 comments): Under Part E, there are three general 

categories of eligible claimants: 1) covered living employees who have a covered illness; 

2) surviving spouses of covered employees; and 3) surviving children of covered 

employees who, at the time of their parent’s death, were younger than 18 years of age, 

younger than 23 years of age and full-time students, or any age and incapable of selfsupport. Individuals, primarily adult children who do not meet Part E’s eligibility 

requirements, continue to contact the Office of the Ombudsman to express concern about 

the limitations imposed by the statute’s eligibility requirements for survivors. Because a 

person can be potentially eligible under both Parts B and E, some claimants are aware 

that Part B and Part E have different eligibility requirements, and as a result, there are 

claimants who contact our Office seeking an explanation for this difference. 

Definition of a Covered DOE Facility (18 comments): For purposes of Part E, the 

worker must have been employed at a covered DOE facility. Claimants have questioned, 

and in some instances, challenged, the failure to designate their worksite as a covered 

DOE facility. 

Atomic weapons employees and employees of beryllium vendors, both who are covered 

under Part B but not under Part E, have contacted our Office asserting that their 

employment was characterized by exposure over time to the same hazards as those who 

are covered under Part E. Consequently, these atomic weapons employees and 

employees of beryllium vendors believe that they ought to be eligible for compensation 

under Part E. 
ix

Qualified Claimant’s Death Prior to Payment of Award Nullifies Claim or Reduces 

Compensation (7 comments): Under Part E, successful claimants must be living at the 

time their claim is paid in order to receive compensation. Consequently, if a worker or 

surviving spouse dies before payment is made, the award due to the worker or survivor 

cannot be paid. Instead, a new Part E claim must be filed by a survivor who is eligible 

for benefits in his or her own right. Even if there is an eligible survivor, the death of the 

covered worker may result in a reduction of compensation. Claimants whose claims have 

been pending for an extended period of time have voiced their fear that if the process 

takes too much longer, their claim will in effect be nullified (by their death). Moreover, 

in a couple of instances, we were contacted by the families of terminally ill claimants 

who were very concerned that the claimant would die prior to the completion of the 

claims process. 

Regulatory, Policy and Procedural Issues

Difficulties Retrieving Employment, Exposure and Medical Records (92 comments): 

Claimants have contacted us in order to express their frustration with trying – often 

unsuccessfully – to locate necessary records. Because the burden of proving a case 

ultimately rests with the claimant (see 20 C.F.R. § 30.111), some claimants, particularly 

survivor claimants, have the onus of attempting to obtain employment, exposure and 

medical records from many years ago, or of developing new medical evidence based 

upon missing or incomplete records. Claimants report to us that employment, as well as 

hospital and other medical records have been lost or destroyed. In some instances, 

because of their health, claimants do not have the capacity to assist their families in 

pursuing these claims. We have encountered family members who tell us that their loved 

ones (as instructed) never talked about their employment. Especially where the worker 

died prior to the promulgation of the Act, survivors have told us that it is virtually 

impossible to produce the quality or quantity of evidence required to meet their burden of 

proof. 

While DEEOIC provides assistance to claimants in attempting to locate relevant records, 

we continue to hear from claimants who believe that this assistance does not go far 

enough. There are instances where the necessary records cannot be located (or may not 

exist) and thus some claimants ultimately cannot successfully prove their cases. In 

addition, claimants must specifically ask for copies of the evidence developed by 

DEEOIC. Thus, claimants who are not aware that they can request this evidence often do 

not realize that some of the records they need may already exist in DEEOIC’s files. 

Ultimately, if neither DEEOIC nor the claimant locates the records necessary to 

document employment, exposure or medical conditions, it may be impossible for a 

claimant to receive any benefits. 

Difficulties in Proving Causation Issues (96 comments): Many of the people who 

contact the Office of the Ombudsman report that they encounter great difficulties 

attempting to prove causation issues, i.e., that a particular disease is related to toxic 

exposures, or that a worker’s death was related to a covered illness. These claimants 
x

often believe that their evidence is required to meet very stringent standards. We also 

hear complaints concerning the lack of a clearly defined standard with respect to the 

evidence that claimants must produce. In addition, there have been claimants who found 

it especially troubling when their illness was listed on EEOICPA Bulletin No. 06-10 

(updated 8/1/2006 with Bulletin 06-14) which informs claims examiners that DEEOIC 

“has identified certain illnesses with no known causal link to toxic substances.” Some of 

these claimants have contacted this Office inquiring as to what they must do in order to 

overcome this bulletin. 

Part B Issues (71 comments): While the Office of the Ombudsman does not have any 

statutory authority with respect to Part B claims, we nevertheless receive inquiries 

concerning that part. In most instances, we try to refer the inquirer to more appropriate 

sources of assistance. Nevertheless, there are a few common complaints regarding Part B 

that we hear. 

 

Administrative or Miscellaneous Issues

Concerns about Claimant Interactions with DEEOIC Personnel (96 comments): 

Claimants have expressed a variety of concerns about their interactions with DEEOIC 

personnel. These concerns include difficulties in reaching a claims examiner or in having 

a telephone call returned; changes in claims examiners or district offices; DEEOIC losing 

evidence; repeated requests for the same evidence; and lengthy delays in obtaining 

requested information. 

Requests for Assistance in Understanding Communications (193 comments): In the 

course of developing a claimant’s case and in deciding claims, DEEOIC personnel 

correspond and speak with claimants on a regular basis. After developing a claim, 

DEEOIC also issues a recommended decision from the claims examiner, followed by a 

final decision from the Final Adjudication Branch (FAB). Some claimants have 

significant difficulties understanding the correspondence and decisions they receive, and 

thus contact this Office for assistance. 

The Processing of Claims Has Taken and Will Take Too Much Time (52 comments): 

Claimants complain about the delays attendant to the processing of EEOICPA claims. 

The health of many claimants combined with their recognition that their claim for 

compensation may “die with them” because their adult children will not be eligible 

survivors, leads to significant frustration. 

Locating Experts (34 comments): The inability to find a qualified physician willing to 

provide a medical opinions on causation issues (for both “covered” and “consequential” 

illnesses), as well as impairment ratings is a problem that affects some claimants, 

particularly those in more rural, remote areas of the country. 

DEEOIC does offer claimants the option of having their own physician or a DEEOIC 

district medical consultant provide an impairment rating. DEEOIC also sometimes 
xi

obtains expert opinions on causation and wage loss issues. However, we hear from 

claimants who would prefer to utilize a physician of their own choosing. Other claimants 

have expressed to us their belief that the assistance offered by DEEOIC does not go far 

enough. 

Medical Benefits Issues (12 comments): Claimants have complained that they are 

unable to locate providers who are willing to accept the medical card issued by DEEOIC. 

Claimants also report that difficulties with ICD-9 codes have resulted in some treatments 

for a covered illness being covered, but the treatment of other related effects of an illness 

not being covered. In addition, some claimants are not aware of how they should proceed 

if they wish to obtain coverage for consequential illnesses that develop after the award of 

benefits. 

Offset and Coordination of Benefits (13 comments): Some claimants have contacted us 

with questions concerning offsets and coordination of benefits. Where there has been a 

workers’ compensation or tort award, claimants may be asked to present information 

concerning that award. Where the award involved a class action or other multi-party law 

suit claimants have encountered difficulties obtaining the information requested by 

DEEOIC. In addition, there have been instances where the tort or compensation award 

was drafted in such a way that the information requested by DEEOIC was not readily 

apparent and/or impossible to discern. 

Assessment

Hearings held by the Senate Health, Education, Labor and Pension Committee in October 

2007 asked if this program was “claimant-friendly.” This question pinpoints the essence 

of most of the complaints fielded by this Office – most complaints address fairness and 

transparency (i.e., the ability to clearly understand the process). Most of the people who 

contact this Office have had their claims denied. Yet, their complaints are not simply a 

request for money. Rather, most of the complaints that we hear involve the perception 

that the process is unfair or involve a request for assistance in navigating this process. 

Where evidence has been destroyed or is missing, and former colleagues are dead or 

scattered around the country, claimants believe that it is unfair to ask them to prove what 

the government cannot prove (or disprove). Claimants do not understand why opinions 

by their treating physicians are not deemed sufficient to meet their burden. In this 

environment, events such as the change in claims examiners (especially where advanced 

notice of the change was not provided) or the delay in the processing of a claim are 

viewed in a negative light. 

For many of the people whom we encounter, the Office of the Ombudsman is not able to 

offer an immediate solution or remedy. In many instances, all that we can offer is a 

promise that we will listen to and record their complaints and grievances, and that at an 

appropriate time we will report these grievances and complaints to Congress. Within 
xii

these pages we have tried to accurately summarize the numerous complaints, grievances 

and requests for assistance directed to us throughout the year. 

 
REPORT

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

Section 7385s-15 of EEOICPA, as part of Public Law 108-375, the Ronald W. Reagan 

National Defense Authorization Act for Fiscal Year 2005. See 42 U.S.C. § 7385s-15. 

Section 7385s-15(e) requires this Office to submit to Congress an Annual Report 

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

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

assessment of the most common difficulties encountered by Part E claimants and 

potential claimants during the preceding year. Please consult Appendix I for the number 

and types of comments received by the Office of the Ombudsman. (Numbers and types 

of comments received are also listed in the section headings of this report). 

I. Background: Legislative History of EEOICPA

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

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

D of the Energy Employees Occupational Illness Compensation Program. DEEOIC 

began administering Part B on July 31, 2001. 

Part D was enacted in 2000, and was administered by DOE. Under Part D, Congress 

directed DOE to provide claimants with assistance in obtaining state workers’ 

compensation. By the end of 2003, more than 23,000 applications had been filed with 

DOE for benefits. Yet, after more than two years had passed, the Government 

Accountability Office (GAO) found that less than 10% of submitted claims had been 

fully processed and more than half had not been considered at all (General Accounting 

Office, Energy Employees Compensation: Even with Needed Improvements in Case 

Processing, Program Structure May Result in Inconsistent Benefit Outcomes, Report 

GAO 04-515, May 28, 2004). In late 2004, Congress repealed Part D and enacted Public 

Law 108-375, which established a new federal compensation scheme for DOE contractor 

employees in Part E, to be administered by the Secretary of Labor. 

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

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

of Labor publish regulations and begin to administer the new Part E program within 210 

days of enactment. See Public Law 108-375, § 3681(e). The Conference Report 

accompanying the 2004 amendments to EEOICPA urged the Secretary of Labor to 

appoint an Ombudsman within 120 days of enactment. See Conference Report 108-767 

accompanying H. R. 4200. On February 24, 2005, Secretary of Labor Elaine L. Chao 

made the required appointment. 
2

II. The Office of the Ombudsman and this Report

Over the course of calendar year 2007, this Office received numerous inquiries and 

comments about EEOICPA, and about the difficulties encountered by Part E claimants 

and potential claimants and we spent many hours talking to and corresponding with 

claimants and their families about their concerns. In addition, this Office had the 

opportunity to meet with and to hear the concerns of many claimants and potential 

claimants at town hall meetings held around the country. The information presented 

below is based on the conversations the Ombudsman staff had with those who attended 

the town hall meetings, as well as phone calls, faxes, and written and electronic 

correspondence, over the past year. This report covers January 1, 2007 through 

December 31, 2007.4

 For purposes of presenting this information to Congress in 

accordance with Public Law 108-375, the inquiries or concerns addressed in the 

following pages have been divided into three sections: 

1) Statutory Issues (Section III); 

2) Regulatory, Policy and Procedural Issues (Section IV); and 

3) Informal Administrative or Miscellaneous Issues (Section V). 

 

4

 The Office of the Ombudsman’s first annual report covering calendar year 2005 was filed with Congress 

on February 15, 2006. The second annual report, covering calendar year 2006 was filed with Congress on 

February 15, 2007. 
3

III. Statutory Issues

Summary 

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

EEOICPA which could be addressed administratively. Rather, some of their complaints 

concerned provisions of the legislation itself, which only Congress can resolve. The 

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

that the Department of Labor has no authority to resolve any such concerns.

Claimants have contacted the Office of the Ombudsman about: 

A. Limitations on Survivor Eligibility (57 comments) 

B. Definition of a Covered DOE Facility (18 comments) 

C. Qualified Claimant’s Death Prior to Award May Nullify Claim or Reduce 

Compensation (7 comments) 

D. Miscellaneous Inquiries and Comments (16 comments) 

A. Limitations on Survivor Eligibility (57 comments) 

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

employees who have a covered illness; 2) surviving spouses of covered employees; and 

3) surviving children of covered employees who, at the time of the parent’s death, were 

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

age and incapable of self-support. Under Part E, and in contrast to Part B, adult children 

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

compensation to which their parent would have been entitled if they had lived. See 42 

U.S.C. §§ 7385s-3(c) and (d). 

Individuals have contacted this Office to register their complaint over what they view as 

the inherent inequity of defining adult children out of eligibility for Part E compensation. 

A common theme in these complaints is that it is unfair for the government to have 

waited until many of the workers were deceased before it established a compensation 

program, and then to limit the eligibility of the surviving children. Adult children have 

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

personal and financial sacrifices they made to care for their terminally ill mother or 

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

available to them had they been minors when the parent died, it is all the more 

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

they made. Many of these adult children question the rationale for basing their eligibility 

simply on their age at the time of the parent’s death. Illustrative of this complaint is the 
4

situation presented by the child who stayed home to take care of his father, rather than 

continuing his education. Eventually the father passed away before this child was 23 

years of ge. This child now argues that but for the decision to put off school to tend to 

the father, he would have been a full time student [under the age of 23] at the time of the 

father’s death, and thus potentially eligible to receive compensation. 

 

We have also encountered circumstances where the youngest child was a minor at the 

time of the parent’s death, and thus is eligible to receive Part E compensation, while the 

older children, because of their age, are not eligible for compensation. Some adult 

children argue that it is unfair that they are the ones who made the sacrifices to care for 

the loved one – and yet they are the ones who are not eligible for benefits. 

Some of the individuals who contact our Office are well aware that adult children are 

eligible under Part B - many claimants are potentially eligible under both Parts B and E – 

and thus we often hear from people asking for an explanation for why adult children are 

not eligible under Part E. In our experience, simply informing these claimants that the 

statute makes adult children ineligible for Part E benefits does not mitigate the injustice 

they perceive. We also receive telephone calls and e-mails inquiring if this provision has 

been revised. 

B. Definition of a Covered DOE Facility (18 comments) 

Pursuant to section 7384l(12): 

The term “Department of Energy facility” means any building, structure, or 

premise, including the grounds upon which such building, structure, or premise is 

located— 

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

Department of Energy (except for buildings, structures, premises, grounds, or 

operations covered by Executive Order No. 12344, dated February 1, 1982 (42 

U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and 

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

 

(i) a proprietary interest; or 

(ii) entered into a contract with an entity to provide management and 

operation, management and integration, environmental remediation 

services, construction, or maintenance services. 

See 42 U.S.C. § 7384l (12). Moreover, while atomic weapons employees and employees 

of beryllium vendors are covered under Part B, these workers are not covered under Part 

E unless they can establish additional employment at a covered DOE or RECA facility. 
5

During the preceding year, we received inquiries: (1) attempting to verify the status of a 

facility; and (2) questioning why a facility was not listed as a DOE facility. 

Those inquiring as to the status of a facility generally have been individuals who had 

been informed by a claims examiner or someone on the staff of a resource center that 

their worksite was not a DOE facility. These individuals usually contact us for 

verification and/or an explanation for this determination. 

Our Office has also worked with individuals who disagree with the determination that 

their worksite was not a DOE facility. In many of these instances, while the individual 

performed work on behalf of DOE, their eligibility often turned on whether DOE has or 

had a proprietary interest (in the facility) or entered into a contract with an entity to 

provide management and operation, management and integration, environmental 

remediation services, construction or maintenance services. Based on the experiences 

that we are aware of, where individuals have endeavored to collect evidence to establish 

that their worksite, or at least their section of the worksite, ought to be classified as a 

DOE facility, these individuals have generally found the process to be very arduous and 

one for which very little assistance is available. 

Some atomic weapons employees and employees of beryllium vendors, both who are 

covered under Part B but not under Part E, as well as some federal government 

employees (who worked at covered facilities), have contacted the Office of the 

Ombudsman asserting that they ought to be covered under Part E. These employees 

believe that their employment exposed them to the same hazards as those who are 

covered under Part E, and thus believe that they ought to be eligible for Part E 

compensation. 

 
6

C. Qualified Claimant’s Death Prior to Award May Nullify Claim or Reduce 

Compensation (7 comments) 

Under Part E, successful claimants must be living at the time their claim is paid in order 

to receive their payment of compensation. Significant consequences attach if a worker 

claimant or surviving spouse claimant dies before the claim is fully decided and/or 

payment is made. For example, pursuant to Section 7385s-1, “[a]fter the death of a 

covered DOE contractor employee, compensation...shall not be paid. Instead, the 

survivor of that employee shall receive compensation as [permitted in the statute].” See 

42 U.S.C. §7385s-1(2). If there are no eligible survivors then the claim is nullified. 

Moreover, even where there are eligible survivors, the death of the covered worker may 

result in a reduction of compensation.5

 While the maximum compensation available to 

living workers is $250,000, see 42 U.S.C. § 7385s-12, a successful survivor is entitled to 

a maximum of $175,000 (and a minimum of $125,000), depending upon the extent of the 

worker’s wage loss while s/he was alive.6

 See 42 U.S.C. § 7385s-3. 

During this year individuals have contacted this Office on behalf of claimants with 

terminal illnesses. The main concern in each instance was to ensure that these claimants 

had the opportunity to enjoy the compensation to which they were entitled. However, in 

each instance there was also a fear that the death of the claimant would mean that money 

that could have been used to pay medical and other (funeral) expenses would be lost. 

The fear that the death of a claimant would negatively impact a claim is clearly 

highlighted in a series of e-mails from a spouse [who was ultimately successful in having 

the claim expedited]. In the first e-mail, the spouse explains that even as they wrestle 

with the claimant’s terminal illness, the claimant and the spouse also have to worry about 

how the spouse will survive after the death of the worker. Later, after DEEOIC expedites 

the claim, the spouse writes a second e-mail thanking everyone because “[t]he 

compensation would have been reduced by approximately $110,000 if [the claimant] had 

passed away prior to the money being deposited into the account.” In those instances that 

have been brought to our attention, where notified of a claimant with a terminal illness, 

DEEOIC has expedited the claim. 

 

5

 In some cases, a survivor’s compensation might exceed the compensation that would have been payable 

to the covered worker. This might happen, for example, if the worker’s wage loss and impairment rating 

for the covered illness led to a compensation of less that $125,000, the minimum available to a survivor. 

6

 Part E limits total compensation payable under that Part to all claimants based upon exposure of a single 

covered worker to $250,000. See 42 U.S.C. § 7385s-12. 
7

Nevertheless, even if a claimant is not terminally ill, the possibility that death could 

nullify a claim, or reduce the amount of compensation, is a source of concern for many 

claimants. Many of the claimants who contact our Office have claims that have been 

pending for several years. When claimants contact us to discuss the delays affecting their 

claims, they often question what will happen if they die before the payments are made on 

their claim. Some of these claimants have indicated that they believe that their claims are 

being intentionally delayed with a goal of ensuring that no one will ever receive benefits 

– these claimants are well aware that if they do not have a surviving spouse, and if their 

children are adults, then no one will be eligible to receive the benefits to which they (the 

workers) are otherwise entitled. 

D. Miscellaneous Inquiries and Comments (16 comments):

During 2007, the Office of the Ombudsman also received the following miscellaneous 

inquiries and comments about statutory issues: 

• Legal Representative Fees: Under EEOICPA, legal representative fees are paid 

by the claimant and are limited to 2 percent for the filing of an initial claim for 

payment of lump-sum compensation; and 10 percent with respect to objections to 

a recommended decision denying payment of lump-sum compensation. See 42 

U.S.C. §§ 7385g, 7385s-9. It has been suggested that this limitation on fees is one 

of the primary reasons that claimants are unable to obtain legal representation. 

Some claimants have told us that they are reluctant to obtain legal representation 

because they wish to avoid the legal fees. We have also received comments 

suggesting that legal representative fees ought to be paid by the government rather 

than by the claimants. In addition, some claimants have contacted this Office 

seeking a referral for legal representation. Others have asked us to provide legal 

representation – which we cannot do. 

• Take-home Illnesses: Individuals approached us alleging that they (or a relative) 

were suffering from an illness contracted from a parent or other relative who 

worked at a covered site. During the preceding year, we heard from the spouses 

of some covered workers, who believe that they lost a child at birth as a result of 

toxins to which their husbands had been exposed while working at a covered site. 

Likewise, we also heard from others, usually parents, who believe that a birth 

defect or other disability suffered by a child is the result of work-related toxins to 

which one of the parents was exposed. These concerns, however, are outside of 

the scope of the statute.

• Special Exposure Cohort: Four SECs were created by Section 7384l(14) of 

EEOICPA (42 U.S.C. § 7384l(14)); additional SECs have been created by HHS 

under Section 7384q of EEOICPA, which authorizes HHS to create additional 

SECs when HHS determines that: 
8

o “it is not feasible to estimate with sufficient accuracy the radiation dose 

that the class received”; and 

o “there is a reasonable likelihood that such radiation dose may have 

endangered the health of members of the class.” 

See 42 U.S.C. § 7384q(b). The Office of the Ombudsman has been contacted by 

claimants who face difficulty qualifying for benefits because the employee 

worked at a DOE facility with SEC status, but the employee either does not have 

one of the 22 statutorily-specified cancers to which the SEC provisions apply, or 

cannot establish the necessary employment history. During the preceding year, 

some claimants have encountered difficulties proving that they had the requisite 

250 days at a specific location or building. For some people, the burden of 

collecting affidavits from co-workers has proved to be an enormous burden – 

especially where the work occurred years ago. 

• Adequacy of Available Part E Benefits: Part E sets a statutory maximum of 

$250,000 for lump sum compensation paid “for each individual whose illness or 

death serves as the basis for compensation or benefits” under Part E. See 42 

U.S.C. § 7385s-12. Covered employees can receive lump sum compensation of 

up to $250,000 (see 42 U.S.C. §§ 7385s-2(a)); eligible survivors are eligible to 

receive lump-sum compensation of up to $175,000. See 42 U.S.C. § 7385s-3. 

We have heard from claimants who believe that as a result of these statutory 

maximums, they will not be fully compensated for their illnesses. This is the 

precise argument presented to us by a claimant who had already received 

$250,000 in Part E compensation. Although this claimant is now developing 

additional illnesses which may be related to exposure to toxins at work, because 

of the statutory maximum this claimant is not eligible for additional compensation 

under EEOICPA. Likewise, living worker claimants with many years of wage 

loss have stated to us that the statutory maximum of $250,000 on Part E benefits 

will not fully compensate them for their total years of wage loss (and/or will not 

fully compensate them for their impairment). 

Under Part E, medical benefits are also available to living worker claimants and 

are not subject to the $250,000 statutory cap. See 42 U.S.C. §§ 7384s, 7384t, 

7385s-8. Medical benefits are, however, retroactive only to the date that the 

worker filed the claim. We have heard from claimants who argue that because 

they can only be reimbursed for medical benefits going back to the filing date of 

the claim, they will not be compensated for expenses incurred prior to the filing of 

the claim. This frustration is exacerbated where a claimant who incurred medical 

expenses prior to the filing of a claim also faces an offset (or coordination of 

benefits) as the result of a tort action (or a workers’ compensation claim) awarded 

prior to the filing of the DEEOIC claim - while the claimant can only be 

reimbursed for the medicals back to the date of filing of the claim, in determining 

the amount to be offset or the coordination of benefits, DEEOIC will consider 
9

monies paid to the claimant prior to the filing of the EEOICPA claim. One 

illustration of this problem involved a claimant who sustained injuries to both 

eyes. Because she had already received a workers’ compensation award for the 

right eye, the claimant asserts that she approached the resource center with the 

intention of simply filing an EEOICPA claim for the left eye. However, this 

claimant alleges that she was encouraged to file a claim for both eyes (the 

worker’s complaint regarding the guidance provided by the resource center is 

discussed at Section V (A) (Concerns about Claimant’s Interactions with 

DEEOIC Personnel). Ultimately, although this claimant was awarded Part E 

compensation, she considers it unfair that her award was reduced by the state 

worker’s compensation benefits that she received prior to filing her Part E claim, 

yet DEEOIC will not reimburse her for the medicals expenses that she incurred 

prior to the filing of the claim. 

IV. Regulatory, Policy and Procedural Issues

Summary 

With respect to concerns about Part E Regulations, Policies and Procedures, individuals 

have contacted the Office of the Ombudsman in connection with: 

A. Difficulties Retrieving Employment, Exposure and Medical Records (92 

comments) 

B. Difficulties in Proving Causation (96 comments) 

C. Part B Issues (71 comments) 

D. Miscellaneous Inquiries and Comments (16 comments) 

A. Difficulties Retrieving Employment, Exposure and Medical Records (92 

comments) 

Introduction

Under DEEOIC’s regulations, claimants in general ultimately bear the burden of proving 

their claims by a preponderance of the evidence. Thus, while 42 U.S.C. §7384v places an 

obligation on the government to provide assistance to claimants, in the end, claimants are 

responsible for providing DEEOIC with “all written medical documentation, 

contemporaneous records, or other records and documents necessary to establish any and 

all criteria for benefits.” See 20 C.F.R. § 30.111(a). Where the evidence is deemed not 

to be sufficient to establish all criteria for benefits, the claim is denied. Cases are brought 

to our attention where, even with the assistance of DEEOIC, the claimant is unable to 
10

locate sufficient employment, exposure and/or medical records. As has been true in 

previous years, claimants tell the Office of the Ombudsman about the difficulties they 

face in locating acceptable employment, exposure and medical evidence in support of 

their claims – difficulties which are even greater when it is a spouse or child attempting 

to find records concerning a deceased employee. 

One further complicating factor is that many claimants who contact us are not aware that 

they can obtain copies of the evidence in their case. Claimants have to make a “written” 

specific request to DEEOIC to obtain a complete copy or portions of their claim file. 

Some claimants, upon belatedly discovering that DEEOIC had relevant evidence in its 

file, argue that if they had known that they could have obtained this evidence from 

DEEOIC (or if this information had been provided to them), it would have saved them 

the time and expense of locating these records, or of engaging in a fruitless search when 

DEEOIC had already searched and found nothing. On the other hand, we have also heard 

from claimants who report that they have been able to locate potentially helpful records 

that even DEEOIC had been unable to obtain. For example, claimants tell us that 

Freedom of Information Act (FOIA) requests made to DOE have yielded documents that 

DEEOIC had been unable to locate. [Note: one congressional office contacted us to 

report that it had been notified by DOE that there is now a huge backlog on FOIA 

requests]. 

The discussion below outlines the relevance of these records and the types of problems 

claimants encounter in trying to locate records. 

Employment Records

In order to establish employment at a covered DOE facility and the duration of their 

employment, claimants may be required to submit documentary or other evidence (for 

example, social security records or co-worker affidavits) establishing their (or, in the case 

of survivors, the worker’s) employment. Claimants may also be required to submit 

evidence that they worked in particular buildings or other locations at the site. While 

DEEOIC offers assistance in locating these records, we are contacted by claimants who 

question the depth and sufficiency of this assistance. Claimants who contact this Office 

are particularly troubled where employment records cannot be located and the claim is 

ultimately denied based on the failure to establish covered employment. In these 

circumstances, claimants have approached us asserting that where employment records 

have been lost or destroyed, it is not reasonable to place the burden on them to prove 

employment. In addition, family members have told us that it is virtually impossible to 

reconstruct employment records where the worker is unable or unavailable to assist with 

the research. We also encounter family members who argue that it is unfair to ask them 

to locate employment records, where the worker, honoring her/his promise to the 

government, never discussed their employment with the family. Where records have 

been lost or destroyed, as well as where the worker is deceased, claimants call us seeking 

guidance on where and how to locate the necessary records. In many of these instances, 

the Office of the Ombudsman is not able to provide an adequate answer. 
11

Claimants have assured us that the resource centers were helpful in attempting to locate 

employment records. Yet, even where employment records can be located, many 

claimants question the accuracy of these records. We also hear from claimants who 

assert that either all of their employment is not recorded, or that the recorded information 

is not accurate. 

Exposure Records

Exposure records may help to establish that the worker’s illness as “covered” (as defined 

by Section 7385s(2) of Part E as “an illness or death resulting from exposure to a toxic 

substance”) by establishing that a worker was exposed to a particular toxic substance at a 

covered facility which was a “significant factor in aggravating, contributing to or 

causing” the worker’s illness or death. See 42 U.S.C. §§ 7385s-3(a)(1)(B), 7385s4(c)(A). In addition, under DEEOIC’s regulations, a 50% or higher probability of 

causation is required for an award of benefits for a radiogenic cancer under Part E. See 

20 C.F.R. § 30.213. Consequently, SEC and dose reconstruction determinations -- both 

of which depend to some degree on the availability of exposure records -- are critical for 

Part B claimants, as well as Part E claimants. 

The Office of the Ombudsman hears from claimants who question why exposure and/or 

medical records, which private employers are mandated by law to maintain, were not 

maintained by DOE. According to the complaints that we hear, it is especially difficult 

for claimants to locate exposure records where their employer was a small or family 

business, or where relevant facilities are no longer operational, and in some instances 

have not been operational for decades. Claimants tell us that they never knew the 

substances to which they (or, in the case of a survivor, the worker) were exposed. In 

other instances, while some claimants can name some of the toxins, they cannot identify 

all of the toxins present at the worksite. 

Where exposure records were maintained, some claimants believe that they are not 

accurate and/or were not well-preserved. We have talked to claimants who are confident 

that their exposure records do not include all of the toxins that were present at the 

worksite. In addition, we have heard assertions that existing exposure records do not 

adequately account for chemical mishaps and accidents – some of which were recorded, 

others for which there are no records. Some claimants have also complained that existing 

exposure records do not adequately reflect the realities of their job – that while records 

indicate that they worked exclusively at one site, in reality they were required (or 

instructed) to work at sites all around the facility. In our experience, this complaint is 

especially prominent among security guards and transportation workers who often assert 

that their jobs took them all around the facility. Some security guards have also indicated 

that their jobs required them to be some of the first to respond to chemical accidents. 

In addition, where records are available, we encounter claimants who believe that 

exposure records were manipulated or altered. A common assertion that we hear is that 
12

claimants were periodically told by their supervisors to take off their dosimetry badges. 

One claimant told us that he was routinely “asked” to shred records for “security 

reasons.” Moreover, claimants have reported encountering significant delays in obtaining 

these records. 

Claimants do receive assistance from DEEOIC in developing this evidence. More 

significantly, DEEOIC has developed Site Exposure Matrices (SEM) covering DOE 

facilities. While the SEM attempts to identify information concerning which toxic 

substances were present at specific DOE facilities, the public online version of SEM does 

not provide exposure information based on the location of the building or operation 

performed, for security reasons. (The internal version of SEM available for claims 

examiners does contain this greater level of detail). Claimants have contacted our Office 

to express doubts as to whether the information in the SEM is accurate. One claimant 

who maintains that she worked in the environmental branch is adamant that the SEM did 

not include all of the chemicals present at her worksite. In addition, we hear from 

claimants who are unaware that SEM information is available on the DEEOIC website. 

Where the claim was denied prior to the posting of the SEM on the DEEOIC website, 

claimants have approached us questioning the accuracy of their denial. These claimants 

question whether DEEOIC had an accurate listing of the toxins present at the worksite 

when it denied their claim and, assuming that DEEOIC had this listing, they question 

why this listing was not available to them. These claimants want their claims rereviewed now that the SEM is available to all. 

 

Medical and Other Records

Medical records documenting that a worker was diagnosed with a particular illness are 

critical to both living worker and survivor claims, which depend upon evidence of an 

illness related to occupational exposure to toxic substances. In addition, other records, 

such as a marriage license, or a birth certificate, can be crucial to establishing other 

elements of a survivor’s eligibility for benefits under Part E. We hear grievances 

concerning the difficulties encountered by claimants as they attempt to obtain necessary 

medical and other records. 
13

Claimants tell us that they have difficulty obtaining medical records, due to physicians 

retiring or dying, or clinics and hospitals moving or closing. This is a particularly 

pressing problem for survivor claimants, because the worker’s death sometimes occurred 

many years ago and the relevant medical records either have been lost or destroyed. 

Moreover, we have heard from survivor claimants that where the worker died many years 

before this program was initiated, the physicians involved did not consider the possible 

contributions of toxic substances to the illnesses they diagnosed, and thus even if medical 

records exist, these records are of little relevance. In one instance brought to our 

attention, although the claim was denied due to a history of smoking, the surviving 

spouse is certain that the worker only smoked for a few years. However, because the 

treating doctor is deceased and medical records are no longer available this surviving 

spouse is having a hard time challenging this denial of benefits. 

Even where the worker had yearly medical screenings at work, claimants report that the 

results of those screenings are sometimes not available, or claimants are distrustful of the 

results. Claimants have also reported that their doctors are hesitant, and sometimes 

simply refuse, to become involved with a federal workers’ compensation claim. 

However, it is not simply medical records that pose a problem for claimants. For 

example, Section 7385s-3(d) of EEOICPA states that a child survivor who, “as of the 

employee’s death...had been incapable of self-support” is eligible for survivor’s benefits. 

See 42 U.S.C. § 7385s-3(d). Especially where the parent died years ago, children have 

found it difficult to establish that at the time of the worker’s death, they were incapable of 

self-support. In one instance, two children suffered the same illness. Even though these 

illnesses initially manifested themselves years ago, the child who sought “traditional” 

medical treatment has been able to locate medical records and thus establish eligibility as 

a survivor, while the child who sought “non-traditional” treatment has encountered 

difficulties finding acceptable records to establish his eligibility. We also hear from 

children who find it difficult to prove an adoption, and in some instances, a legal 

adoption was never sought. In one such instance, the worker supported a grandchild. 

Yet, because there was never a legal adoption, this grandchild is not eligible to receive 

compensation under Part E. 

B. Difficulties in Proving Causation (96 comments) 

During 2007, claimants continued to complain about the difficulties they face in proving 

causation issues -- proving that a particular disease is related to toxic exposures, or 

proving that a worker’s death was related to toxic exposures. The complaints and 

grievances that we hear include: 

• Evidence submitted by claimants relating their illness (or the death of a covered 

worker) to toxins found at work is rejected by DEEOIC on the grounds that the 

available scientific evidence is insufficient to establish a connection between a 

particular toxic exposure and a particular condition. Some claimants rely on 
14

treating physicians to support their claim and these claimants are sometimes 

surprised to discover that the opinion of their treating physician is not deemed 

sufficient to meet their burden of proof. Claimants have approached us to 

question the basis for not accepting their medical evidence. Because they believe 

that they retained the services of physicians who are well qualified in their 

respective field, these claimants question (and often state that they do not see) the 

basis for not accepting the opinion of their doctor. Claimants also contact us to 

question why the opinion of a physician who never examined them is credited 

over the opinion of a qualified doctor who actually examined them and who often 

is far more knowledgeable of their health status. 

• There is a “piece-meal” approach to the process. We have heard from claimants 

who complain that they are instructed to submit medical reports relating their 

illness (or the death of a covered worker) to toxins at work, and yet when they 

submit their reports, they are then told that their evidence is not sufficient or that 

they need additional evidence. A number of these claimants have complained that 

where their evidence was deemed insufficient, they were not provided a full 

explanation and thus were at a lost as to how to rehabilitate their evidence. These 

claimants also profess that they have no idea of what constitutes a “fully 

rationalized medical opinion,” and little guidance is provided. Many of the 

claimants who have expressed an opinion on this subject state that it would be 

preferable to know in advance all of the criteria and standards that will be used to 

evaluate their medical evidence. Because of the time involved in scheduling 

medical appointments, and because many doctors do not want to invest a lot of 

time writing reports, some claimants have complained that it is difficult to return 

to a doctor and ask them to revise a report/letters that DEEOIC has deemed 

insufficient. In addressing this issue, we have been asked by claimants if it is 

possible for DEEOIC to provide examples of acceptable letters from physicians. 

• Survivor claimants have reported to us that they have a difficult time proving 

causation – especially in those instances where the worker died years ago. We 

hear from survivors who discover that medical records have been destroyed or 

find that existing records are not helpful because at the time of death the 

physicians had no reason to address the possible contributions of toxic substances 

to the death, or had no knowledge of occupational exposures and therefore, 

occupational-related illnesses were not documented. 

• The 50% or greater PoC requirement set for radiogenic cancers by DEEOIC’s 

Part E regulations (see 20 C.F.R. § 30.213) is too high and/or contrary to the 

statutory language directing DEEOIC to accept Part E claims if, among other 

things, it is “at least as likely as not that exposure to a toxic substance was a 

significant factor in aggravating, contributing to, or causing the illness.” See 42 

U.S.C. § 7385s-4(c)(1)(A). The individuals who question the regulation's 

consistency with the statute maintain that the “significant factor” language in Part 

E indicates that Congress intended the Agency to use a lower threshold than in 

Part B, which includes the “at least as likely as not” language but not the 
15

“significant factor” clause. These individuals suggest that the “significant factor” 

language was added by Congress to reflect the standard of causation used in Part 

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

rather than 50%.7

 

• Bulletin No. 06-10/ 06-14 provides guidance to claims examiners with respect to 

cases in which a covered worker has a condition which has been identified by 

DEEOIC as one with no known link to a toxic substance. Claimants have 

reported to us that the burden of proving that their illness (or the death of a 

worker) is related to exposure to toxins at work is even greater where the illness 

(or death) is a condition listed on Bulletin No. 06-10/06-14. 

Claimants contact our Office to question the basis for including conditions in this 

bulletin. Because Bulletin 06-10/06/14 does not identify by name the specific 

publications, medical literature or occupational exposure records that were 

researched in compiling this bulletin, we have heard from claimants who feel that 

they are at a disadvantage when trying to challenge this bulletin. Moreover, 

claimants tell us that they do not understand what they need to submit to 

overcome this bulletin. These claimants are often dismayed when they are able to 

find a doctor – and one who from all appearances is qualified - who is willing to 

relate their condition to exposure to toxins at work and yet their claims are still 

denied. 

Prostate cancer (which was added to Bulletin No. 06-10’s Attachment 1 by 

Bulletin No. 06-14)8

 is a condition for which we continue to receive inquiries. 

Some individuals have located medical articles or other evidence that they believe 

support their position that there is a relationship between toxic substance exposure 

and prostate cancer, and have questioned whether DEEOIC considered this 

evidence before placing the illness on the bulletin. Claimants are also aware that, 

in awarding compensation for Agent Orange-related conditions, the Veterans 

Administration (VA) adopted a presumption that prostate cancer has a related link 

to Agent Orange, a herbicide.9

 Because Agent Orange is a chemical, these 

claimant questions how DEEOIC could reach the conclusion that there is no 

“known” causal link between any chemical and prostate cancer in the face of the 

VA’s presumption linking prostate cancer and Agent Orange exposure. 

Moreover, since Bulletin No. 06-10 does not specifically identify any of the 

evidence considered, claimants cannot tell whether DEEOIC considered the VA’s 

 

7

 DOL's Preambles to both the IFR and the Final Rule state the Agency's reasons for deciding to utilize the 

50% or higher PoC requirement for radiogenic cancers in Part E as well as Part B. See 70 Fed. Reg. 33590, 

33593-594 (June 8, 2005); 71 Fed. Reg. 78519, 78522-524 (December 29, 2006). 

8

 Claimants or their representatives have contacted us about several different illnesses identified by the 

bulletin as having “no known causal link” to toxic substances, including prostate cancer, breast cancer, and 

pancreatic cancer. Prostate cancer is the most commonly cited illness. 

9

 See http://www1.va.gov/agentorange/docs/D10AOBRIEF82005.doc . 
16

findings (or any of the scientific evidence underlying the VA’s findings) before 

placing prostate cancer on the “no known causal link” list. Recently, some 

claimants have informed us that they are following a study by scientists at Boston 

University, the University of Massachusetts and Lowell University linking 

prostate cancer to pesticides and metal working fluids. 

 

C. Part B Issues: (71 comments) 

While the Office of the Ombudsman does not have statutory authority with respect to Part 

B, some claimants and potential claimants call us with their complaints and grievances. 

In most instances, we are able to refer these inquirers to more appropriate sources of 

assistance; DEEOIC, NIOSH, the Department of Justice RECA staff and the Ombudsman 

for NIOSH have all been extremely helpful in ensuring that the issues raised by RECA 

and Part B claimants are addressed. Nevertheless, a review of these inquiries indicates 

that there are a few common issues that continue to be raised. Some claimants want 

information regarding the SEC process or question why their facility is not a SEC. We 

have also encountered claimants who were having difficulty establishing the necessary 

employment history. In addition, claimants continue to express grave reservations over 

whether it will be possible to establish a 50% or higher probability of causation. These 

claimants believe that the 50% requirement is too high. 

D. Miscellaneous Inquiries and Comments (16 comments) 

During 2007, the Office of the Ombudsman also received the following miscellaneous 

inquiries and comments relating to regulations, policies, and procedures: 

• Reopening Claims: DEEOIC’s regulations permit claimants to ask for reopening 

if they submit new medical evidence, new evidence of covered employment or 

exposure to a toxic substance, or identify a change in PoC guidelines, NIOSH’s 

dose reconstruction method, or an addition of a new class of SEC employees. See 

20 C.F.R. § 30.320. The Office of the Ombudsman has encountered claimants 

who either were not aware that they had the right to reopen their claim, or while 

aware of this right, did not know the procedures to follow in order to seek a 

reopening of their claim. Moreover, some claimants have complained that 

DEEOIC’s regulations governing reopening of a claim are burdensome. 

• Remanding Claims: The remand of a case has caused claimants to contact this 

Office. Some claimants simply did not understand the concept of a remand while 

others sought an explanation for the remand. Especially where the case has been 

pending for an extended period of time, some claimants view a remand as simply 

another means of prolonging the case. In recent months, this Office has talked to 

claimants whose claims have been remanded to NIOSH for re-examination of the 

dose reconstruction because the employee was exposed to highly insoluble forms 

of plutonium. The claimants with whom we spoke were not happy with another 
17

delay, but were at least hopeful that this delay would inure to their benefit. While 

we cannot predict the outcome of these re-examinations, it is certain that these 

claimants will not be happy if they are denied benefits even after this extended 

delay. 

• Part D Physician Panels: We continue to hear from claimants who are confused 

about Part D and Part E. 

V. Administrative or Miscellaneous Issues

Summary 

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

A. Concerns about Claimant Interactions with DEEOIC Personnel (96 comments) 

B. Requests for Assistance in Understanding Communications (193 comments) 

C. The Processing of Claims Has Taken and Will Take Too Much Time (52 

comments) 

D. Locating Experts (34 comments) 

E. Medical Benefits Issues (12 comments)

F. Offsets and Coordination of Benefits (13 comments) 

G. Miscellaneous Inquiries and Comments (1962 comments) 

A. Concerns about Claimant Interactions with DEEOIC Personnel (96 comments) 

Claimants continue to express general concerns about their interactions with DEEOIC 

personnel. Claimants have contacted us to voice their frustration with attempting to 

contact their claims examiners or other DEEOIC personnel. Some claimants report that 

they never get to talk to a “live” person – rather they simply leave messages, for which 

there is either a delayed response or no response at all. Some claimants also report that it 

is difficult to receive anything more than cursory information and others state that they 

believe that efforts were made to discourage them from calling. The inability to talk to a 

“live” person (or the failure to receive a return telephone call) is even more stressful 

when the claimant is under time constraints. Claimants have recounted to us instances 

where a large portion of their response time (i.e., the time allotted to them to respond to a 

document) was “wasted” waiting for an answer from DEEOIC. Claimants also think that 
18

it is unfair that DEEOIC can take months (or years) to act, and yet claimants are often 

afforded very short time frames within which to respond. 

Transferring claims examiners

We hear complaints concerning the changes in claims examiners. In order to 

expeditiously process claims, DEEOIC sometimes finds it necessary to transfer cases 

between claims examiners. Most claimants to whom we speak understand that DEEOIC 

may need, at times, to reallocate work between claims examiners. However, these 

claimants become upset when they first learn of this transfer when they (the claimant) 

call the claims examiner – these claimants would prefer to be apprised of these transfers 

when they occur. In addition, claimants have expressed their belief that transfers have 

been excessive or unnecessary. Some claimants have expressed their dismay at having 

had 4 or 5 different claims examiners. More importantly, many of the claimants who 

expressed an opinion on this subject strongly believe that the transfer of their claim to 

different claims examiners had a negative impact on their case. These claimants 

sometimes complain that a claims examiner who was familiar with the intricacies of the 

evidence and who had a good rapport with the claimant was replaced by someone 

unfamiliar with the case or claimant. Claimants have also recounted instances where they 

received one set of instruction by one claims examiner, only to receive completely 

opposing instructions by the new examiner. Likewise, claimants have reported that when 

the case was transferred to a new claims examiner, they were required to resubmit 

evidence or again answer questions that they had provided to the previous claims 

examiner. 

Not provided sufficient information

Another complaint that we hear is that claimants believe that they are not provided a 

sufficient explanation as to why their evidence is not deemed sufficient to meet their 

burden – an occurrence that some claimants allege is part of an intentional attempt to 

mislead them. As discussed in Section IV (B) (Difficulties in Proving Causation) 

claimants have complained that they are not given clear guidance on the quality or 

quantity of evidence needed to satisfy their burden. As a result, we encounter claimants 

who become very frustrated when they submit evidence and that evidence is deemed 

insufficient to meet their burden. These claimants argue that if they knew in advance the 

standards by which their evidence would be measured, then they would be in a better 

position to ensure that their evidence was sufficient. 

Difficulties obtaining copies of evidence from DEEOIC 

In general, claimants can obtain copies of evidence developed by DEEOIC and/or 

considered in their cases simply by asking DEEOIC, in writing, for a copy of the 

evidence they want to see or for a copy of their entire file if they are unsure what to 

specifically request. Some claimants have commented that DEEOIC ought to send 

copies of evidence (as well as copies of correspondence sent by DEEOIC to claimants’ 

physicians and/or DMCs) to the claimants routinely, rather than requiring claimants to 
19

specifically request this information. Some claimants are not aware that they can make a 

request to DEEOIC for these documents. In addition, some claimants report that they 

have encountered difficulties in obtaining evidence from DEEOIC. Claimants report of 

not receiving a response to their request, receiving an incomplete response, and/or of 

significant delays in receiving evidence from DEEOIC. 

DEEOC personnel and resource centers sometimes provide or use incorrect (or 

incomplete) information

Some claimants continue to become particularly upset when DEEOIC (or a resource 

center) provides them with incorrect or incomplete information. These complaints cover 

a variety of subjects and generally are unique to the particular cases involved. Likewise, 

some claimants contend that DEEOIC used incorrect information in correspondence or 

other documents, including recommended or final decisions. For example, some 

claimants report that DEEOIC used the wrong social security number or name, 

referenced the wrong DOE facility, or referred to an illness that is not part of the claim at 

hand. A claimant who lives in “Largo” complained about correspondence that was sent 

instead to “Key Largo,” and which he did not receive until after the expiration of the 

deadline. 

Claimants also tell us of situations were it did not appear that the claims examiner 

forwarded all of the medical evidence to the DMC. Moreover, we have received 

complaints concerning the questions developed by claims examiners and forwarded to the 

DMCs – some claimants have questioned the qualifications of the claims examiner to 

prepare questions for the DMC and have asserted that the questions that were prepared 

were not germane to or failed to address the relevant issues in their case. Some claimants 

also complain that claims examiners do not always address all of the evidence in their 

claim. 

The claimants who contact us are especially troubled where the incorrect (or incomplete) 

information concerns something more than basic information. In one instance (already 

referred to at Section III (D) (Qualified Claimant’s Death Prior to an Award May Nullify 

Claim or Reduce Compensation)), the claimant avers that because she was cognizant that 

she had already received a state worker’s compensation award for one eye, she 

approached the resource center with the intention of filing an EEOICPA claim for the 

other eye. However, this claimant asserts that she was “encouraged” to file a claim for 

both eyes. When this claimant contacted the Office of the Ombudsman she was highly 

upset that her EEOICPA award was being reduced by the state worker’s compensation 

award, and was specifically annoyed that during the discussions concerning her filing of a 

claim, no one had ever discussed the possibility of a reduction as a result of the worker’s 

compensation award. This claimant was also troubled by the fact that when she 

questioned the reduction, no one informed her of the possibility of withdrawing the claim 

for one of the eyes. Similarly, we have heard from other claimants who report of asking 

for specific guidance and receiving inadequate answers. 
20

DEEOIC’s use of incorrect information is cited by some claimants as a major reason for 

their lack of trust in this program – where the program cannot accurately cite basic 

information or fails to address all of the evidence, there are claimants who question the 

ability of the program to accurately analyze the volume of documents contained in many 

case files. 

Other concerns

The apparent lost of documents is another issue that concerns some claimants. The 

resubmission of documents can mean that the claimant will incur additional expenses 

mailing or faxing documents. 

In addition, while the policy of DEEOIC is to allow claimants to file a claim, there are 

some claimants who believe that they were encouraged to file unnecessary claims. These 

claimants contend that this encouragement resulted in a “waste” of their time or in 

misleading them on their claim. One instance of this involved the caller who reported 

that in a discussion with the resource center he specifically identified his mother’s 

worksite and asked if his mother could file a Part E claim. According to the caller, he 

was told “yes” his mother could file a claim. However, once the claim was filed he was 

informed that his mother did not work at a covered worksite. Although this Office was 

able to specifically cite to statutory language excluding the mother from Part E coverage, 

this caller still felt that he had wasted his time and had been misled – he felt that he had 

specifically inquired about this issue and wish that he had been provided with an accurate 

(or a full) explanation when he made his initial inquiry. 

Lastly, while it has not been wide-spread, some claimants have expressed a concern with 

a perceived lack of courtesy by some DEEOIC personnel. 

B. Requests for Assistance in Understanding Communications (193 comments) 

In the course of developing a claimant’s case and in deciding claims, DEEOIC personnel 

communicate with claimants on a regular basis. After developing a claim, the claims 

examiner issues a recommended decision, followed by a final decision issued by the FAB 

(which may follow an oral hearing). Some individuals have reported significant 

difficulties understanding the correspondence and decisions they receive from DEEOIC 

(and NIOSH), or in understanding what is said to or requested of them over the telephone 

or at oral hearings. As a result, some of these individuals have contacted this Office for 

assistance – which often means explaining the document in “plain” language. 

Moreover, decisions issued by DEEOIC or FAB are formal documents that often require 

a response by claimant (and in some instances, the failure to respond has a consequence). 

Because they realize that their response will affect their claim, some claimants are 

reluctant to respond without first consulting/conferring with someone. For example, 

recommended decisions offer claimants two options – one option if they disagree and the 

other if they agree with the decision. If they agree with the recommended decision and 
21

want it to be affirmed in a final decision without change, the claimant is asked to submit 

in writing a statement waiving their right to object. During this year, several claimants 

who had received recommended decisions awarding benefits contacted the Office of the 

Ombudsman to discuss their options. In every instance, the claimant did not have any 

objections to the award of benefits – rather it was the word “waiver” and the requirement 

to put this “waiver” in writing that concerned these claimants. These claimants simply 

wanted verification that they were taking the right course of action. 

Many of the documents forwarded to claimants are long and complex. Many are written 

using legal and medical terminology. There are instances where claimants simply do not 

have the capacity to fully understand these documents. As noted in Section IV (D) 

(Remanding of Claims) people have contacted us seeking an explanation for the remand 

of their claim. We have encountered some claimants who were unable to appreciate that 

in one decision, their claim for certain illnesses had been denied, while their claim for 

other illnesses had been granted (or was still under consideration). Similarly, where one 

decision addressed both the Part B and the Part E claims, we have encountered instances 

where claimants were not aware that there had been separate rulings on each claim. 

Recent DEEOIC and FAB decisions do a much better job identifying whether they are 

addressing a Part B or a Part E claim. Nevertheless, some claimants still find it confusing 

to distinguish Part B and Part E, especially where the claimant has filed a claim under 

both parts. 

Some claimants have physical or mental impairments, difficulties with reading 

comprehension, or limited English proficiency, which impair their ability to understand 

communications from DEEOIC. We met with close to 1000 people during our town hall 

meetings in Kayenta, AZ and Shiprock, NM. It is safe to say that for close to half of the 

people who attended these meetings, English was not their first language – and many did 

not speak English at all. In fact, we continue to receive telephone calls where in response 

to our questions, we can hear the caller translating our questions into the Navajo 

language. 

Some claimants also find confusing the 60-day limitations period for challenging 

recommended decisions, and its accompanying waiver provisions. As stated above, a 

recommended decision provides the claimant with two options. Beyond the concern with 

“waiving” their rights, claimants are unsure of what to do when they agree with parts of 

the decision, but disagree with other parts. For example, a claimant might agree with the 

decision that a particular illness is covered, but disagree with the finding that another 

illness is not covered. It has been suggested that the waiver language included in 

recommended decisions does not explain what to do if a claimant agrees with some 

findings, but disagrees with other findings. 

Some claimants have also complained that the instructions for appealing a decision 

cannot be fully understood without assistance. These decisions sometimes include 

complicated discussions of medical evidence (some of which may not be in the 

claimant’s possession), as well as the statute or regulations, and cannot be easily 

understood by some laypersons. Some claimants appear to be uncertain of all of their 
22

options if they disagree with a FAB decision – and especially are uncertain if and how 

they can pursue these matters in federal court – many of the claimants to whom we spoke 

were unaware that they had the option of pursuing the matter in federal court. 

 

C. The Processing of Claims Has Taken and Will Take Too Much Time (50 

comments) 

We receive complaints concerning the amount of time it takes to process a claim. 

Whether they have been waiting one year or seven years, some claimants strongly believe 

that under a claimant-friendly program they should not experience such extensive delays. 

While DEEOIC’s adjudication of claims increased significantly over the past years, many 

living worker claimants are still waiting for impairment ratings, wage-loss 

determinations, and the related lump-sum compensation. These delays are a source of 

real frustration for some claimants. There are some claimants who suggest to us that 

these delays are designed to “wait until [the claimant’s] die.” Other claimants tell us that 

they believe that these delays are simply a way for the government to create work for 

itself, and we have encountered claimants who wonder if it would be “cheaper” to end the 

bureaucracy and use the money to pay claims. 

As discussed earlier, the anxiety that claimants experience when their claims are delayed 

is often exacerbated by the fact that many claimants also have concerns regarding their 

health and their age. Claimants have expressed their concern that if they are to enjoy 

their benefits, they need to receive these benefits as quickly as possible. Moreover, the 

claimant to whom we have spoken are not concerned with which agency caused the delay 

– rather, these claimants view this as a governmental program and thus believe that it is 

the government’s obligation to ensure that the various agencies work together to expedite 

these claims. 

D. Locating Experts (34 comments) 

A number of claimants have contacted our Office with complaints concerning difficulties 

locating experts [to prove causation and for medical impairment issues]. 

Causation Issues:

Claimants have contacted our Office to complain and ask for assistance in finding a 

medical expert to help them establish a link between their claimed illness and workrelated exposures. When claimants are advised that they have not provided DEEOIC 

with sufficient evidence to prove that an exposure from their DOE work environment was 

a significant factor in causing, contributing to, or aggravating their claimed illness, some 

claimants tell us that they have no idea of how to rehabilitate the evidence that they have 

already submitted, or where to find additional evidence. Based on our conversations, 

some claimants believe that the recommended and final decisions do not satisfactorily 
23

explain why their evidence is insufficient and complain that claims examiners do not 

provide sufficient guidance. 

To claimants attempting to develop evidence addressing causation, our Office usually 

recommends that they acquire a copy of the publicly available, online version of SEM to 

provide to their experts. Although the public SEM lists toxic substances known to be 

located at each covered DOE facility, this version does not provide a breakdown by 

building or operation. Because there can be 50 or more toxins listed at some facilities, 

some claimants have reported that it is extremely difficult to research every substance on 

these extensive lists. Some of the other suggestions that we have provided to claimants 

include: contacting a medical library to search for medical journal and research articles 

on the subject of the claimed illness and toxic exposure; and getting copies of Material 

Safety Data Sheets to review health effects. Yet, as one can see, our suggestions require 

some level of research by the claimant (or someone working on the claimant’s behalf), 

and some claimants inform us that they simply do not have the capacity or the assistance 

to engage in this level of research. 

Medical Impairment Issues: 

Impairment is defined as a loss, loss or use, or derangement of any body part, organ 

system, or organ function. A DEEOIC impairment award is monetary compensation for 

a permanent impairment where the impairment is due to an accepted covered illness and 

that has reached maximal medical improvement (MMI). The compensation is determined 

by a physician who meets the DEEOIC criteria to perform an impairment rating. 

In 2007, our Office received more questions and complaints from claimants than in 

previous years, which may, in part, be due to a larger number of claimants receiving Part 

E benefits and requesting impairment ratings/evaluations for compensation of their 

approved covered illness. The complaints we logged fall into two categories: (1) 

Difficulties finding a qualified physician, and (2) Questions and complaints about how 

impairment ratings are derived and calculated. 

1) Difficulties finding a qualified physician 

We were contacted by claimants who voiced their frustration and difficulty in 

finding a qualified physician to perform the medical impairment rating/evaluation. 

We have heard from claimants that board-certified specialists who are medically 

treating them are not deemed sufficient by DEEOIC even though these physicians 

are considered experts in their field. Claimants also tell us that their physicians 

often do not want to get involved with (federal) compensation claims. As a result, 

some claimants are not able to rely on their treating physicians – the physicians 

who have direct knowledge about their illnesses and their ability to perform daily 

functions. 

In general, there have been claimants who have communicated their distrust of 

DEEOIC selected physicians. Some of this distrust is that claimants do not feel 
24

that they will get a fair objective evaluation/rating from the doctor provided by 

DEEOIC. Moreover, for some claimants the impairment rating by the DEEOIC 

provided doctor will be based on a review of medical evidence, and there are 

claimants who question the validity of an evaluation/rating that is simply based on 

a review of records. When claimants are unable to find a qualified physician on 

their own (and no one is able or willing to provide them with a list of qualified 

physicians not affiliated with the Department), some claimants have conveyed to 

us their feelings of being forced into agreeing to permit the DEEOIC selected 

physician to perform the impairment rating. 

Other factors which impact a claimant’s ability to locate a physician include 

access to information and mobility. While there are claimants who have been 

successful performing internet searches to find certified physicians, this option is 

not available to claimants who do not have access to computers. Moreover, some 

claimants have mobility and severe disabilities which make it difficult to travel 

distances to see a qualified physician. During our outreach in Shiprock, NM and 

Kayenta, AZ, Navajo claimants complained of being asked to travel to Grand 

Junction or Denver, Colorado to receive an impairment evaluation. For many of 

these claimants, this distance was too far. Other reported traveling to these 

evaluations only to discover that no one in the office spoke their (Navajo) 

language. 

2) Questions and complaints about how impairment ratings are derived and 

calculated. 

We are contacted by claimants who want a better understanding of how 

impairment ratings are determined. We have received questions regarding the 

need and understanding for responding to activities of daily living (ADL) that 

claimants sometimes feel have no relationship to their covered illness. For 

example, one claimant inquired how bowel and bladder habits had any 

relationship when the claimed illness was respiratory-related. 

In addition, some claimants request our assistance to obtain the credentials of 

DEEOIC physicians, as well as copies of their medical notes/opinions for both 

causation (DMC) and impairment evaluations. These claimants have indicated 

that they were not aware they needed to make a formal written request to receive 

this information. 

We have also received complaints regarding the requirement of reaching the MMI 

before they can be compensated for impairment. Some claimants have 

complained that it could be years before the illness reaches a permanent stage. 

There have also been complaints about low impairment percentage ratings 

evaluated by the DEEOIC selected physician. 
25

Whether it is to prove causation or to evaluate impairment, locating an expert can be 

extremely challenging in more rural, remote areas of the country – which happen to be 

the areas where most of the nuclear weapons production and testing that exposed workers 

to radiation and toxic substances are (were) located. In addition, claimants have told us 

that they are stymied by physicians who charge several hundred dollars to prepare an 

opinion. It is possible for a claimant to be reimbursed for such charges, if the claim is 

approved, but the initial payment of the physician’s fee can be a significant financial 

burden for some claimants and, if the claim is disapproved, there is no reimbursement. 

E. Medical Benefits Issues (10 comments) 

Living worker claimants who are awarded compensation under Part B or Part E of 

EEOICPA are entitled to medical benefits as well. See 42 U.S.C. §§ 7384s, 7384t and 

7385s-8. Under Part E, claimants who qualify receive medical benefits for the approved 

medical condition contracted through exposure to toxic substances at a DOE facility (a 

covered illness or condition) as well as medical benefits for consequential conditions 

related to the approved covered illness. Under DEEOIC’s regulations, claimants also 

bear the burden of proving that a “consequential” condition is related to their covered 

illness. 

There have been complaints filed with the Office of the Ombudsman involving the 

inability of claimants to locate providers who were willing to accept the medical cards for 

treatment related to the covered illness. These claimants are annoyed that after receiving 

their medical card, they cannot find a health provider who will accept the medical card, 

and no one is able to provide them with, a list of providers who will accept the medical 

card. As a result, some of these claimants have referred to the card as “useless.” 

Claimants have also complained to this Office about burdensome requirements to prove 

and reprove their consequential medical conditions. We have heard from claimants who 

were not aware of DEEOIC’s process for approval of a consequential medical condition – 

many claimants are under the impression that once approved for the claimed illness and 

receipt of the medical card, they can obtain all medical treatment and associated 

medications including consequential conditions. Some claimants believe their 

consequential medical conditions are so closely associated with their covered illness that 

they question the need (or the reasonableness) of requiring medical documentation to 

prove that the consequential condition is directly related the covered illness. 

Other claimants have contacted the Office of the Ombudsman to complain about 

difficulty due to ICD-9 codes resulting in treatments for a covered illness being covered, 

but related effects of that illness not being covered. 

Medical benefits also include certain travel expenses, for which the claimant is 

reimbursed. Claimants have reported difficulty in understanding how to obtain, and 

receive, approval for travel expenses. 
26

F. Offsets and Coordination of Benefits (13 comments): 

DEEOIC compensation is “offset” under 42 U.S.C. § 7385 by payments from awards and 

settlements in non-workers’ compensation claims, based on injuries which have been 

compensated under EEOICPA. See also 20 C.F.R. § 30.505. Compensation is also 

subject to “coordination” under 42 U.S.C. § 7835s-11, whereby compensation is reduced 

by state workers’ compensation claim benefits received for the same covered illness. See 

also 20 C.F.R. § 30.625-30.627. During the preceding year, this Office has received 

inquiries seeking guidance or an explanation concerning the application of one of these 

concepts. For example one claimant called to inquire if his EEOICPA award for an 

illness caused by exposure to toxins at a covered site should be offset by monies received 

for a settlement stemming from a similar illness arising from non-covered employment. 

It was this claimant’s belief that these two illnesses were not the same – one was an 

illness arising from his covered work while the other was an illness arising from noncovered employment. Another claimant contacted us when she encountered difficulties 

providing DEEOIC with pertinent information concerning a previous law suit. Because 

the law suit had been a class action, the claimant found it difficult to obtain information 

that simply addressed her individual award. 

Questions pertaining to offsets and coordination of benefits have been especially 

challenging both to claimants and to this Office. 

H. Miscellaneous Inquiries and Comments (1962 comments) 

During 2007, the Office of the Ombudsman also received the following inquiries or 

comments which are not reflected in the above categories. The vast majority of these 

inquiries (1562) involved general requests for information, status inquiries and includes 

those who attended the town hall meetings. These inquiries include: 

• Inquiries about Office of the Ombudsman: During 2007, individuals contacted 

this Office to comment on the Office’s 2006 Annual Report (or to ask for a copy 

of the report); to ask about the responsibilities of the Office of the Ombudsman; 

or to inquire on the status of the Office which was scheduled to sunset in October 

2007. In addition, we received telephone calls and e-mails inquiring about this 

Office’s testimony before the Senate Health, Education, Labor and Pension and 

inquiring as to why claimants had not been invited to testify before this 

Committee. 

• Wage-Loss Issues: We have heard from individuals concerning difficulties they 

faced in obtaining required wage data from the Social Security Administration or 

to ask more general questions about wage loss issues, including the meaning of 

some of the material in DEEOIC’s Procedure Manual. 
27

• Resource Center/District Office Staffing Issues: One of the Ombudsman’s 

specified duties is to make recommendations to the Secretary of Labor regarding 

the location of resource centers. 42 U.S.C. § 7385s-15(c)(2). Over all, most 

claimants who contact us have a favorable opinion of the Resource Centers. 

When claimants are recounting their experiences with the program, most have 

high praise for the staffs of the Resource Centers. For many claimants, the 

Resource Centers are accessible and claimants appreciate that they can actually go 

to the Resource Center and talk to the staff. There is, however, a general 

complaint by some claimants concerning the limited role of the resource centers. 

These claimants are dismayed that the resource centers are not authorized to assist 

with matters that go beyond the application process – such as causation issues. 

Some claimants believe that they benefit from the close working relationship that 

they establish with staff of the resource centers and wish that they could enjoy this 

type of relationship throughout the claims process. 

During 2007, the Office of the Ombudsman did receive comments suggesting that 

one resource center may be understaffed for the territory it serves. This Resource 

Center covers a very large territory and the population has unique needs. 

Likewise, we have heard comments concerning two of the district offices. These 

concerns generally focus on the inability to receive a prompt response to 

telephone inquiries. We will continue to forward these concerns to DEEOIC. 

• Requests for Extensions of Time : Some individuals contacted this Office to ask 

whether it is possible to obtain extensions of time to submit evidence to DEEOIC 

or NIOSH. Many of these inquiries come from individuals who had been 

instructed to provide additional medical information, but have been unable to 

schedule an appointment with a doctor (or the earliest available appointment is 

well after the expiration of the time frame). Although many documents from 

DEEOIC provide instructions on the process for seeking an extension of time, 

when faced with an expiring time limit, many claimants focus on the time limit 

and thus have to be reminded that they can request an extension of time. 

Moreover, some claimants have contacted our Office simply for verification that 

requesting an extension of time is the proper course of action. 

• Power of Attorney: An attorney for the Office of the Solicitor reviews power of 

attorneys before payments are made. The fact that this review occurs at the very 

end of the claims process continues to be a source of concern for some families. 

In a case that has been discussed earlier, the claimant was terminally ill and the 

family was in constant contact with DEEOIC, as well as the Office of the 

Ombudsman, to expedite the claim. Just when the family thought that it had done 

everything that they needed to do, the family was informed that DEEOIC would 

have to review the power of attorney. Fortunately for this family DEEOIC 

expedited the claim (and expedited review of the power of attorney), but this 

family had a few anxious moments when, in light of claimant’s critical condition, 
28

they questioned what would happen if this power of attorney was now deemed to 

be insufficient. 

• Congressional Hearings/Legislative Issues: Some claimants have contacted this 

Office to inquire about proposed legislation. We are also contacted by claimants 

who inform us that they have submitted inquiries regarding their claim to their 

legislator, or have registered complaints with their representative or senator. A 

few claimants called to inquire about the 2007 hearing held by the Senate Health, 

Education, Labor and Pension Committee. One caller expressed his 

dissatisfaction that no claimants had been invited to testify. 

• Inquiries about RECA-EEOICPA Coordination: Section 5 RECA claimants are 

entitled to Part B and E EEOICPA benefits as well. Other (non-Section 5) RECA 

claimants may also be eligible for EEOICPA benefits based upon employment at 

a DOE facility, but the law does not permit them to receive both RECA and 

EEOICPA benefits for cancer. This office has received inquiries from both some 

RECA Section 5 and non-Section 5 claimants who want a better understanding of 

their options. 

• Inquiries Concerning the Taxability of EEOICPA Benefits: Some individuals 

contacted this Office during 2007 to ask whether EEOICPA benefits are taxed 

under Federal law and/or have asked for a citation to the statutory provision 

addressing the taxability of EEOICPA benefits. Our Office refers these inquirers 

to Section 7385e (1) which states that: 

 

 Compensation or benefits provided to an individual under this subchapter – 

 

(1) shall be treated for purposes of the internal revenue laws of the United 

States as damages for human suffering... 

42 U.S.C. § 7385e (1). Some claimants have indicated that they would prefer a 

statement that is more straightforward. Unfortunately, the Office of the 

Ombudsman believes that it is beyond our authority to provide a specific 

statement regarding the taxability of EEOICPA benefits. 

We have also received general inquiries concerning coordination between 

EEOICPA and state workers’ compensation or asking whether an award of 

EEOICPA benefits would affect a claimant’s benefits under Medicare, Medicaid, 

Social Security Disability, or similar programs. Unfortunately, it is not possible 

for either this Office or DEEOIC to predict exactly how another Federal or State 

agency will treat EEOICPA benefits; however, we have provided to the claimants 

language from EEOICPA addressing the points raised when possible and we have 

begun to bring these issues to the attention of the other Federal agencies involved. 

VI. Town Hall Meetings
29

Because of the large attendance at many of our town hall meetings, and because of the 

flow of information, it was impossible to fully collect the data (i.e., names, addresses, 

etc.) necessary to include all of the complaints and comments in our database. 

Nevertheless, based on our notes from these meetings, we would like to take a moment to 

highlight the major issues raised at these meetings: 

Kayenta, AZ and Shiprock, NM

The obvious issue which immediately confronted us was the language barrier – a 

majority of the attendees at these meetings were Navajo and many were not proficient in 

English. This creates problems for these workers at every step in the process. Most of 

these workers were miners or millers, and thus are potentially eligible for RECA benefits, 

as well as Part B and Part E benefits. Yet many of these individuals did not realize that 

they had to separately file for benefits under each of these programs. Consequently, we 

encountered individuals who had received RECA benefits, but had never filed for 

EEOICPA benefits, as well as those who had received both RECA and Part B benefits 

and thought that they were automatically entitled to Part E benefits. 

The limitation on the eligibility of surviving children was a very common concern raised 

by many of the attendees. As noted above, many of these workers are potentially eligible 

for both Part B and Part E benefits, and thus are aware of the differing eligibility 

requirements of these two parts. Workers question why survivors are not treated the 

same under Parts B and E. The complaints concerning the perceived unfairness of this 

limitation are addressed at Section III (A) (Limitation on Survivor Eligibility). 

Problems locating doctors was another grievance raised by a number of attendees. A 

major grievance concerned being instructed to travel to Grand Junction or Denver, 

Colorado for impairment ratings. Many people stated that this was simply too far to 

travel. Others reported of going to these appointments only to find that no one in the 

medical office could speak Navajo. Workers also questioned the value of their medical 

cards – reporting that they could not find providers in their communities willing to accept 

the card. (In general, there was a request for more Navajo speaking assistance). 

Beyond the language barrier, communications in general was a source of many concerns. 

Many people live in rural areas – they may not have a telephone in their homes and cell 

phone service can be “spotty.” The imposition of (short) deadlines to respond to 

documents is a serious burden on these workers, as well as on those who try to assist 

these workers. 

Augusta, GA

The Office of the Ombudsman held two meetings in Augusta, GA for workers and former 

workers of the Savannah River Site. Again the limitation on the eligibility of adult 

children was an issue raised by many of the people in attendance. However, we also 

heard from the spouses of some former workers who strongly believed that the death of a 
30

child at birth was the result of toxins to which their husbands had been exposed. These 

women are very anxious to have someone consider their assertions. 

The main issue at these meetings, however, concerned causation, and specifically the 

feeling by claimants that the burden placed on them to establish that their illness was 

caused by exposure to toxins at a covered facility is too high. Claimants complained of 

not being able to find physicians who would agree to become involved with a federal 

workers’ compensation claim, and where they were able to find a physician, that the 

reports prepared by these physicians were all too often deemed insufficient to establish 

the required link. Moreover, where the physician’s report was deemed insufficient, 

claimants complained of not receiving adequate guidance on how to rehabilitate or 

supplement these reports. 

We met some claimants who while willing to acknowledge that there was little medical 

evidence linking their illness to toxins, nevertheless, questioned the need for medical 

evidence. A number of claimants believe that the rarity of their illness (or at least the 

rarity for someone of their age, gender, or age), or the fact that no one can determine the 

cause of the illness, or the fact that a large percentage of similarly situated workers all 

suffer the same illness ought to be sufficient to establish that their illness was caused by 

toxins at work. One claimant noted that as a hunter he was continually warned to inspect 

any deer that he shot near the facility. Thus, this claimant, who had worked for years at a 

covered facility, could not understand why everyone was willing to acknowledge that 

deer that had never worked at the facility might be affected by toxins, yet his claim for 

two separate cancers had been denied on the ground that he did not have sufficient 

exposure. 

A number of claimants also expressed concerns with DEEOIC – complaints ranging from 

never being able to talk to a “live” voice, to concerns regarding lost records and 

documents. 

Idaho Falls, ID and Calabasas, CA 

These were meetings sponsored by Denise Brock to which the Office of the Ombudsman 

was invited to attend. Although the stated purpose of these meetings was to review the 

SEC petition process, there were people in attendance who had Part E questions and 

complaints. At each meeting we provided fact sheets (prepared for the particular 

audience), and distributed copies of our annual report and brochure. We also were 

available to answer questions. 

Plans for 2008 

In 2008, the Office of the Ombudsman will continue its outreach efforts. We already 

have outstanding requests to host town hall meetings in a number of cities and our goal is 

to visit as many localities as possible. Once finalized, a schedule of our upcoming town 

hall meetings will be posted on our website. With our newly developed database, which 

we continue to enhance, we now have the capacity to better identify particular issues 
31

arising in specific localities and thus can better tailor our presentations to the audience at 

hand. It is also our goal to place more emphasis on developing brochures and pamphlets 

to address some of the more common questions and issues raised by claimants and 

potential claimants. Based on the volume of inquiries we have received to date, 2008 

promises to be another busy year. 

VII. Emerging Issues and Conclusion

Emerging Issues

At some of the town hall meetings that we sponsored during this year the attendance 

exceeded our expectations, and in fact at Shiprock, NM and at our first meeting in 

Augusta, GA, there was “standing room” only. In addition, we have outstanding 

invitations to host town hall meetings in a number of cities around the country. Based on 

these responses, as well as the telephone calls, e-mails and letters that we received during 

the preceding year, there are some issues, such as the statutory issues addressed in this 

report, which will, for the foreseeable future, continue to be the subject of complaints and 

grievances directed to this Office. Nevertheless, as we evaluate the comments that we 

have received, there are some areas where we anticipate new (or an increase in) 

comments. 

When a Part E claim is filed, the claimant must first establish an approved claim. If the 

claim is approved, then the claimant can file for wage loss and/or impairment. At the 

present time, a majority of the medical evidence complaints directed to us concern 

causation (which must be established in order to have an approved claim). However, as 

more claims are processed and accepted, we expect to see more questions and concerns 

involving wage loss and impairment. And, as more claimants pursue wage loss and 

impairment claims, we also anticipate that more complaints will arise concerning the 

statutory maximums on the amount of compensation that a claimant can receive. 

Likewise, as more claims are processed and accepted, we expect more questions and 

complaints concerning offsets and coordination of benefits. As stated in Section V (F) 

(Offsets and Coordination of Benefits), offsets and coordination of benefits can pose very 

difficult questions (especially where a class action or multi party action is involved) and 

oftentimes claimants simply will not have access to the information requested by 

DEEOIC. We believe that this will be an area where claimants will definitely feel the 

need to seek assistance. Additionally, as more claims are accepted, we expect more 

questions concerning the taxability of benefits. 

Where a claimant receives an impairment rating, that claimant can seek an increase in the 

rating every two years. As time progresses, we anticipate an increase in inquiries 

concerning the procedures for modifying an impairment rating. An issue that is already 

emerging concerns the calculation of two years. For fairness sake, should it be two years 

from the date of the final decision, or should it be two years from the date of the medical 

evidence that formed the basis of the impairment rating. Where the medical impairment 
32

rating was based upon a review of medical evidence (and no physical exam was 

conducted), we are already hearing suggestions that the two years should run from the 

date of the evidence that formed the basis for the impairment rating. 

This year, claimants have contacted out Office seeking the status of proposed legislation, 

as well as general inquiries asking if there had been any changes in existing legislation. 

We expect to continue to receive inquiries of this nature. 

Lastly, as claims are denied and claimants feel that they have exhausted all of their other 

options, we anticipate more requests for general assistance – i.e., rather than filing a 

complaint on one or two particular issues, claimants will contact us seeking a referral to 

someone who can assist them, or asking if our Office can provide the assistance that they 

need. For example, directing claimants to the SEM often is not sufficient – some 

claimants need someone to perform the research for them. Unfortunately, the assistance 

required by many claimants is beyond that which the Office can provide. 

Conclusion

The Office of the Ombudsman believes that more (timely) information is critical if we 

wish to alter the perception that many hold about this program. Therefore we hope that 

the administrators of the EEOICPA program will continue their outreach efforts. We also 

encourage DEEOIC to continue to work to improve communications with claimants and 

provide more information to the public about how the program works and, in particular, 

more information concerning the reasons underlying decisions made by DEEOIC. 

Similarly, routinely providing copies of evidence developed by DEEOIC or making it 

plainly clear to claimants that such evidence is available would help to keep claimants 

informed about developments in their cases and allow them the opportunity to see and 

respond to negative evidence before a denial is issued. Prompt notification to claimants, 

on all issues ranging from a change in the claims examiner to changes in medical benefits 

coverage would take away the shock that many claimants experience when they discover 

these changes “on their own.” 

Over the past year, the Office of the Ombudsman has met and consulted with DEEOIC’s 

staff in order to address the complaints, grievances and requests for assistance received 

by this Office. The Office of the Ombudsman looks forward to continuing to work 

cooperatively with the Program Agency, within the bounds of our independence, to 

improve the delivery of services to Part E claimants, in the timely and efficient manner 

envisioned by Congress. 

In conclusion, I want to again thank everyone who during this year took the time to 

contact the Office of the Ombudsman and I want to thank you for taking the time to read 

this report. 
33

APPENDIX I 

Compilation of Comments by Subject/Issue by the Office of the Ombudsman

from January 1, 2007 through December 31, 2007

STATUTORY ISSUES (98 comments) 

Limitations on Survivor Eligibility 57 comments 

Definition of a Covered DOE Facility 18 comments 

Qualified Claimant’s Death Prior to Award Nullifies 

 Claim or Reduces Compensation 7 comments 

Miscellaneous Inquiries and Comments 16 comments 

REGULATORY, POLICY AND PROCEDURAL ISSUES (275 comments) 

Difficulties Retrieving Employment, Exposure and Medical Records 92 comments 

Difficulties in Proving Causation Issues 96 comments 

Part B Issues 71 comments 

Miscellaneous Inquiries and Comments 16 comments 

ADMINISTRATIVE OR MISCELLANOUS ISSUES (1962 comments) 

Concerns about Claimant Interactions with DEEOIC Personnel 96 comments 

Requests for Assistance in Understanding Communications 193 comments 

The Processing of Claims Has Taken and Will Take Too Much Time 52 comments 

Locating Experts 34 comments 

Medical Benefits Issues 12 comments 

Offsets and Coordination of Benefits 13 comments 

Miscellaneous Inquiries and Comments 1562 comments 

Note: This 1562 includes general inquiries and status requests, as well as those who 

attended the various town hall meetings. 

TOTAL 2335 comments 

Note: Some of the comments we receive come from individuals such as attorneys and 

other authorized representatives, Former Worker Program grantee staff, Congressional 

staff, and claimants who are trying to help their fellow claimants with claims. It should 

be understood that these individuals are raising issues which potentially affect many 

people beyond themselves and that information provided to them reaches an even wider 

audience. 

Moreover, the same person may have made more than one comment in a single contact 

with this Office. In these cases, separate comments were counted individually. 
34

 APPENDIX II 

DEEOIC also provides services through eleven resource centers, strategically located to 

assist potential claimants by supplying information about Part B and Part E of EEOICPA: 

• California Resource Center (Livermore, California) 

• Denver Resource Center (Westminster, Colorado) 

• Espanola Resource Center (Espanola, New Mexico) 

• Hanford Resource Center (Richland, Washington) 

• Idaho Falls Resource Center (Idaho Falls, Idaho) 

• Las Vegas Resource Center (Las Vegas, Nevada) 

• New York Resource Center (Amherst, New York) 

• Oak Ridge Resource Center (Oak Ridge, Tennessee) 

• Paducah Resource Center (Paducah, Kentucky) 

• Portsmouth Resource Center (Portsmouth, Ohio) 

• Savannah River Resource Center (North Augusta, South Carolina) 

DEEOIC’s resource centers are located in the general vicinity of those nuclear 

weapons facilities which they anticipated would produce the highest numbers of 

claims. They also made an effort to fill resource center management and staff 

positions with former managers and personnel from contractors for these same 

nuclear facilities. As a result, the staff members of the resource centers often have a 

pre-existing personal or professional relationship with claimants they serve or, at a 

minimum, an institutional knowledge of the facilities, which helps them to provide 

assistance. 

The resource centers respond to questions about the process for applying for 

EEOICPA benefits; assist claimants with locating medical and work records and with 

medical payment reimbursement issues; conduct initial employment verification; take 

occupational histories; supply claimants with application forms, and provide 

assistance to claimants in completing these forms. The latter usually involves an 

intake interview with the claimant, often lasting more than two hours. Many 

claimants have made it clear to the Office of the Ombudsman that they have relied on 

the resource centers to help navigate the process of applying and being considered for 

compensation under Part E.