TABLE OF CONTENTS

A Message from the Ombudsman iii 

Preface v 

Executive Summary viii 

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 5 

C. The Statutory Provisions Governing Special 

Exposure Cohorts Result in Disparity 7 

D. Qualified Claimant’s Death Prior to Award 

May Nullify Claim or Reduce Compensation 8 

E. Miscellaneous Inquiries and Comments 10 

IV. Regulatory, Policy and Procedural Issues 11 

A. Difficulties Retrieving Employment, 

Exposure and Medical Records 12 

 

B. Difficulties in Proving Causation 15 

C. Regulatory Restrictions on Challenges 

to Dose Reconstruction 22 

D. Miscellaneous Inquiries and Comments 23 
ii

 V. Administrative or Miscellaneous Issues 24 

A. Concerns about Claimant Interactions 

with DEEOIC Personnel 24 

B. Requests for Assistance in Understanding 

Communications 25 

C. The Processing of Claims Has Taken and 

Will Take Too Much Time 27 

 

D. Locating Experts 27 

E. DEEOIC Personnel and Resource Centers Sometimes 

Provide or Use Incorrect or Incomplete Information 28 

F. Medical Benefits Issues 29 

 G. Difficulties in Obtaining Copies of Evidence 

from DEEOIC 30 

H. Miscellaneous Inquiries and Comments 31 

VI. Assessment of Common Difficulties and Conclusion 33 

Appendix: Compilation of Comments by Subject/Issue by 

the Office of Ombudsman from January 1, 2006 through 

December 31, 2006 35 

 

 
iii

A MESSAGE FROM THE OMBUDSMAN

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. Many of these workers 

developed cancer and other serious diseases because, in the course of doing their jobs, 

they were exposed to radiation and other toxic substances. They and their families have 

paid dearly for their role in protecting our democracy; the purpose of this program is to 

acknowledge their sacrifice and to compensate them in some small way for 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As originally enacted in 2000, EEOICPA included Part B (administered by the 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)). When Congress repealed Part D and enacted Part E of the Energy Employees 

Occupational Illness Compensation Program Act in October 2004, effectively 

transferring responsibility for administration of contractor employee compensation from 

the DOE to the DOL, it also made provisions for creation of the Office of the 

Ombudsman for Part E. Congress directed that the Office of the Ombudsman be an 

independent office, located within the Department of Labor, and charged it with a threefold mission: 

• To conduct outreach to claimants and potential claimants; 

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

resource centers for the acceptance and development of claims; 

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

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

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

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

See 42 U.S.C. § 7385s-15(e). 

During 2006, the Office of the Ombudsman undertook outreach efforts to many claimants 

and potential claimants, principally focusing upon areas of the country to which we had 

not traveled during 2005. Throughout 2006, we also focused upon 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. The concerns expressed to us ranged from issues with the statute itself, and/or 

the implementing regulations, policies and procedures, to general administrative issues. 

 

In responding to complaints, grievances and requests for assistance, we regularly meet 

with and consult the staff of the Department of Labor’s Division of Energy Employees 
iv

Occupational Illness Compensation (DEEOIC). These meetings and consultations are 

fruitful. During the course of 2007,1 the Office of the Ombudsman expects to: 

• Conduct additional outreach, traveling to meet with claimants and potential 

claimants to hear, firsthand, of their concerns and difficulties in obtaining Part E 

compensation. 

• Respond to emails and telephone calls from claimants, potential claimants, and 

other members of the public. 

• Continue our interactions with DEEOIC. 

This report is a short summary of the comments that this Office has received as a result of 

the personal contacts, the emails, and the telephone conversations from claimants 

expressing their concerns about various aspects of the Part E compensation program. 

 

I was appointed to the position of Ombudsman on December 10, 2006, after Donald G. 

Shalhoub, the first Ombudsman, accepted the position of Deputy Assistant Secretary for 

the Occupational Safety and Health Administration. At the time I was appointed, there 

were 68 days remaining before this report was due. The timely submission of this report 

is a testament to the efforts of Mr. Shalhoub, as well as to the professionalism and 

dedication of the staff of the Office of the Ombudsman. Thus, I want to take this 

opportunity to thank and commend Eileen McCarthy, John Lewis and Kim Holt for their 

service to this Office. 

Sincerely, 

Malcolm Nelson 

Ombudsman for Part E 

 

1

 Under Section 7385s-15(g) of EEOICPA, the statutory authority for the Office of the Ombudsman for 

Part E expires on October 28, 2007 and this Office will cease to exist. 
v

PREFACE

This report is Congressionally-mandated to contain “...complaints, grievances and 

requests for assistance.” See 42 U.S.C. § 7385s-15(e)(2)(A). Consequently, this Office 

generally does not receive, and this report generally does not contain, comments that are 

complimentary of Part E program administration. However, to give this report balance, it 

is important to acknowledge a number of background facts surrounding the 2004 repeal 

of Part D and creation of Part E, and the ensuing transfer of Part D claims from DOE to 

DOL. 

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

administering workers’ compensation EEOICPA claims was effective, DOL opened its 

doors with a backlog of 25,000 new Part E (formerly Part D) claims, inherited from DOE. 

As a result, DOL did not have the luxury of developing a measured, sustained expansion 

of its Part B infrastructure to handle this new program. In addition to these 25,000 old 

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

administering the program; as of December 29, 2006, DOL had received a total of 58,943 

Part E claims. 

Under Part E, some survivor claims were clearly payable based on guidance provided in 

the statute. Realizing that many claimants had been waiting for as long as three years to 

receive compensation, the Program Agency began paying these claims even before the 

Part E implementing regulations were promulgated. This approach was commendable, 

particularly in view of the fact that Congress did not expect the Program Agency to begin 

making payments until regulations were issued (the Program Agency was given 210 days 

to publish regulations). 

In addition to paying certain claims, the Program Agency charted several other laborintensive courses. Simultaneously with paying clear-cut survivor claims, it began 

developing an Interim Final Rule (IFR). The Agency prescribed the IFR on May 26, 

2005, thus meeting the 210-day deadline set by Congress. Town Hall meetings were held 

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

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

2005, to review the Agency’s newly promulgated regulations. On December 29, 2006, 

after review and consideration of 533 comments received on the IFR, the Agency 

prescribed the Final Rule, which will become effective on February 27, 2007. 

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) 
vi

• 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, 

resource center staff 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. 

Also during 2006, DEEOIC developed a tool called the Site Exposure Matrices (SEM), 

which includes information from a variety of sources, such as DOE, former worker 

medical survey programs, and epidemiological studies about the particular toxic 

substances present at particular DOE facilities. DEEOIC personnel use the SEM in 

determining whether particular toxic substances were present at a DOE facility during a 

particular claimant’s employment. DEEOIC also indicates that SEM currently includes 

information on twenty DOE and Atomic Weapons Employer sites, as well as 4,000 mines 

covered by the Radiation Exposure Compensation Act (RECA, whose claimants also may 

be entitled to Part E benefits). According to DEEOIC, lists of toxic substances at 

individual DOE facilities will be available to the public through the DOL Web Site 

shortly. 

DEEOIC also issued procedural guidance for its claims examiners that provides 

significant help to claimants in establishing entitlement to Part E benefits: EEOICPA 

Bulletin No. 06-08 (April 2006), “Establishing causation for specific medical conditions 

under the Energy Employees Occupational Illness Compensation Program Act” (updated 

by EEOICPA Bulletin 06-13, issued in July 2006), identifies several illnesses for which 

the DEEOIC has developed criteria under which a claims examiner can find a causal link 

between a diagnosed medical condition and toxic substance exposure. For example, if 

the evidence establishes that a covered employee has laryngeal cancer, that they were 

exposed to asbestos for at least 250 aggregate work days in covered employment, and if a 

required 15-year latency period is met, the claims examiner can find that the employee’s 
vii

cancer is causally related to their exposure to asbestos. The bulletin assists claimants in 

establishing causation under Part E by relieving them of the burden of producing medical 

evidence specifically establishing causation by work-related exposure. 

Finally, in terms of production, as of December 29, 2006, the Program Agency had 

received 58,943 Part E claims and had issued 35,583 Part E recommended decisions 

(compared to 2,749 as of mid-December 2005); 28,594 of those recommended decisions 

had become final (compared to 2,380 as of mid-December 2005), including 8,861 claims 

decided in favor of the claimant (compared to 1,991 as of mid-December 2005). The 

result was payment of over $534 million in Part E compensation by December 29, 2006 

(compared to over $254 million as of mid-December 2005). These challenges and 

accomplishments should be considered along with the issues outlined in this report. 
viii

EXECUTIVE SUMMARY

Introduction

While their claims are being processed, many claimants seek out this Office to inquire as 

to the status of their case -- about 13% of the claimants contacting our office seek 

assistance in this area. These inquiries are usually addressed, with the claimant’s 

permission, by referral to DEEOIC. 

In addition, this Office also receives inquiries from individuals who have EEOICPA Part 

B or RECA claims, but not EEOICPA Part E claims (as well as inquiries about other 

statutes administered by the Department of Labor or other agencies). Because our 

statutory authority directs us to provide assistance to Part E EEOICPA claimants, we 

cannot provide significant assistance to these other inquirers. We do, of course, try to 

ensure that they are referred to more appropriate sources of assistance; DEEOIC, the 

National Institute of Occupational Safety and Health (NIOSH) and the Department of 

Justice RECA staff have all been helpful in ensuring that the issues raised by RECA and 

Part B claimants are addressed. The creation of an Ombudsman by NIOSH, who will 

assist claimants in the dose reconstruction process and petitioners engaged in the Special 

Exposure Cohort (SEC) petitioning process, should be of great value to Part B claimants. 

Concerns and inquiries from individuals can generally be categorized under one of three 

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

(3) Administrative or Miscellaneous Issues. 

Statutory Issues

Limitations on Survivor Eligibility (52 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. Survivors who meet these eligibility requirements qualify for benefits by 

showing that the employee would have been entitled to compensation under Section 

7385s-4 for a covered illness and by showing that the employee’s death was related to 

that covered illness. Claimants, 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. 

Definition of a Covered DOE Facility (11 comments): Claimants contacted this Office 

to ask why the facility at which they (or, in the case of a survivor, the worker) worked is 

not a considered a covered DOE Facility for purposes of Part E. Atomic weapons 

employees and employees of beryllium vendors (both groups are covered by Part B, but 
ix

not Part E), for example, are not considered employees of DOE facilities. These workers 

have described their employment as characterized by exposure over time to the same 

hazards as those to which covered employees were exposed, and they question why 

others are entitled to compensation while they are not. 

The Statutory Provisions Governing Special Exposure Cohorts Result in Disparity (11 

comments): Some covered workers were employed at a DOE facility with Special 

Exposure Cohort (SEC) status but do not qualify for benefits under Part B’s SEC 

provisions because they either do not have one of the 22 statutorily-specified cancers to 

which the SEC provisions apply or they do not qualify for the SEC because they cannot 

establish the necessary employment history. Depending upon the specific findings 

supporting the SEC’s creation, these workers may receive very limited dose 

reconstructions which, in turn, may yield very low probabilities of causation (PoC). By 

statute, a Part B award for cancer requires a PoC of 50% or higher; by regulation, 

DEEOIC requires a PoC of 50% or higher for radiogenic cancers under Part E. Thus, a 

low PoC may lead to denials of both Part B and Part E benefits. 

Qualified Claimant’s Death Prior to Payment of Award May Nullify Claim or Reduce 

Compensation (6 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 

claimant or surviving spouse claimant files a claim but then dies before it is finally 

decided in his or her favor, the award due to the worker or survivor generally cannot be 

paid -- a new claim must be filed by a survivor who is eligible for benefits in his or her 

own right under Part E. In addition, in the case of a worker claimant, a surviving spouse 

or child may be eligible for benefits in his or her own right under Part E, but the amount 

of benefits awarded might well be reduced -- the maximum payable to a worker claimant 

is $250,000; the maximum payable to a survivor is $175,000. In addition, the death of 

the surviving spouse claimant often means that no Part E compensation will be paid to 

the worker’s family, because many children are not considered “covered children” and so 

are not eligible to receive Part E compensation. 

 

Regulatory, Policy and Procedural Issues

Difficulties Retrieving Employment, Exposure and Medical Records (64 comments): 

Because the burden of proving a case ultimately rests with the claimant (see 20 C.F.R. 

§ 30.111), many 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. While 

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

continue to hear from some claimants who believe this assistance is not sufficient. In any 

case, in many instances the necessary records are not 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 do not realize that some of the 

records they need are already in DEEOIC’s file. Ultimately, if neither DEEOIC nor the 
x

claimant locates the records necessary to document employment, exposure or medical 

conditions, it may be impossible for a claimant to receive benefits. Many claimants have 

expressed their frustration with trying -- often unsuccessfully -- to locate necessary 

records. 

Difficulties in Proving Causation Issues (65 comments): Many claimants believe that 

they face great difficulties in proving causation issues -- for example, proving that a 

particular disease is related to toxic exposures, or proving that a worker’s death was 

related to a covered illness. The most significant of these complaints involved EEOICPA 

Bulletin No. 06-10, which establishes criteria for claims examiners deciding claims 

“where there is no known relationship between certain illnesses and occupational 

exposure to toxic substances under Part E of the EEOICPA.” EEOICPA Bulletin No. 06-

10 informs claims examiners that DEEOIC “has identified certain illnesses with no 

known causal link to toxic substances.” The illnesses are listed in an attachment to the 

bulletin and the bulletin instructs claims examiners in deciding claims which involve the 

identified illnesses. 

Regulatory Restrictions on Challenges to Dose Reconstruction (16 comments): Under 

20 C.F.R. § 30.318, the Final Adjudication Branch’s (FAB) review of a claimant’s dose 

reconstruction, which is prepared by NIOSH and used by DEEOIC in both Part B and E 

claims to calculate PoC, is limited to a review of the factual findings upon which NIOSH 

based its dose reconstruction. The FAB does not consider NIOSH’s dose reconstruction 

“methodology.” See 20 C.F.R. § 30.318(b). Claimants are confused both about the 

distinctions between “methodology” and “application” of methodology, and about 

whether, given the restrictions on the FAB’s review, there are any available means for 

challenging NIOSH’s dose reconstruction methodology as part of the process of deciding 

an individual’s claim. 

 

Administrative or Miscellaneous Issues

Concerns about Claimant Interactions with DEEOIC Personnel (62): Claimants have 

expressed a variety of concerns about their interactions with DEEOIC personnel, such as 

difficulties in reaching a claims examiner or receiving a return call; and changes in claims 

examiners or district offices. 

Difficulties in Comprehending Communications from DEEOIC (53 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 FAB. Some claimants have significant difficulties in 

understanding the correspondence and decisions they receive, or in understanding what is 

said to them orally, and have contacted this Office for assistance. 

The Processing of Claims Has Taken and Will Take Too Much Time (57 comments): 

The delay attendant to the processing of claims is still a common complaint from 
xi

EEOICPA claimants. Many of the claimants are elderly; some are dying. This fact, 

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 (26 comments): Some claimants have encountered problems in 

locating physicians who are able and willing to provide “fully rationalized” medical 

opinions on causation issues (for both “covered” and “consequential” illnesses), 

impairment ratings, and wage loss, particularly 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 

obtains expert opinions on causation and on wage loss issues. Some claimants, however, 

believe that DEEOIC’s consultants are not objective and many claimants simply prefer to 

have a physician of their own choosing provide the opinion. 

DEEOIC Personnel and Resource Centers Sometimes Provide or Use Incorrect or 

Incomplete Information (23 comments): Some individuals indicate that they have been 

provided with incorrect or incomplete information by a resource center or DEEOIC, or 

that DEEOIC has used incorrect information in correspondence or decisions. 

Medical Benefits Issues (38 comments): Claimant complaints about medical benefits 

included unexplained rejections of pharmacy bills which had previously been paid by the 

program; DEEOIC’s requests for documentation which claimants believe they or their 

physicians previously provided; and difficulties with ICD-9 codes that have resulted in 

some treatments for a covered illness being covered, but the treatment of other related 

effects of an illness not being covered. 

Difficulties in Obtaining Copies of Evidence from DEEOIC (13 comments): In general, 

claimants can obtain copies of evidence developed by DEEOIC and 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 about what to request. Many claimants 

have been successful in obtaining evidence via this request procedure. Some claimants, 

however, report that their requests have been overlooked or delayed, or that they have 

received incomplete copies. Some claimants also have commented that DEEOIC should 

send copies of evidence (as well as copies of correspondence sent by DEEOIC to experts 

about individual claims, particularly correspondence to claimants’ physicians) to the 

claimants routinely, rather than requiring claimants to specifically request it. 
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 the Appendix for the 

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

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

I. 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, and from that date through December 29, 

2006, has paid over 22,000 Part B claims, with payments totaling $1.79 billion. 

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 administering 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

The Office of the Ombudsman’s first report, covering Calendar Year 2005, was filed with 

Congress on February 15, 2006. Over the last year, this Office has continued to receive 

numerous inquiries and comments about EEOICPA, and about the difficulties 

encountered by Part E claimants and potential claimants; we have spent many hours 

talking to and corresponding with claimants and their families about their concerns. The 

Office of the Ombudsman was invited by and joined DEEOIC representatives at a Town 

Hall meeting in Ames, Iowa in March 2006, and we also held our own Town Hall 

meetings, in conjunction with the Navaho Nation’s Office of Navajo Uranium Workers 

(ONUW), in Shiprock, New Mexico and Kayenta, Arizona in April 2006. These 

meetings were attended by over 500 people. DEEOIC and resource center 

representatives, as well as a representative of the Department of Justice’s RECA 

program, were present to assist claimants at our April meetings as well. During this trip, 

we also met with staff from ONUW and the Department of Health and Human Services 

(HHS) Indian Health Service. 

The information presented below is based on 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 

through December 31, 2006. 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). 

The division of issues into these categories is somewhat arbitrary -- for example, in the 

case of some statutory issues, some claimants believe that other interpretations of the 

statute are possible; some policy and procedural issues also touch on administrative 

concerns. Similarly, it should be understood that individuals who contact this Office do 

not limit the expression of their concerns to those aspects of the Energy Employees 

Occupational Illness Compensation Program that can be resolved by DEEOIC. This is 

particularly true of the Statutory Issues presented in Section III below, but may also apply 

to some of the concerns outlined in Sections IV and V. DEEOIC has provided comments 

on some issues and we have included these comments under the heading “DEEOIC’s 

Comments” at the end of the sections to which the comments apply. 
3

III. Statutory Issues

Summary

Claimants have contacted the Office of the Ombudsman about: 

• Limitations on Survivor Eligibility (52 comments) 

• Definition of a Covered DOE Facility (11 comments) 

• The Statutory Provisions Governing Special Exposure Cohorts Result in Disparity 

(11 comments) 

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

Compensation (6 comments) 

• Miscellaneous Inquiries and Comments (11 comments) 

A. Limitations on Survivor Eligibility (52 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. Survivors who meet the eligibility requirements may 

qualify for benefits by showing that the employee would have been entitled to 

compensation under Section 7385s-4 for a covered illness and by showing that “it is at 

least as likely as not that exposure to a toxic substance at a Department of Energy facility 

was a significant factor in aggravating, contributing to, or causing the death of such 

employee.” Additional compensation may be available if the survivor can establish that 

the worker had wage loss due to the covered illness. 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). 

Numerous claimants 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, including both adult children who have received Part B compensation and 

adult children who were not eligible for Part B compensation. Where the worker parent’s 

illness was compensable under Part B, many adult children have (or will) receive Part B 

compensation: Part B covers silicosis (in certain workers present during the mining of 

tunnels at DOE facilities in Alaska and Nevada), chronic beryllium disease (CBD), and 

radiogenic cancers; Part E, however, potentially compensates far more illnesses, 

including asbestosis and non-radiological cancers. Thus, the adult children of a worker 
4

who had chronic beryllium disease might receive $150,000 under Part B because CBD is 

a covered illness, but nothing under Part E if they do not meet the definition of an eligible 

child under Part E; the adult children of a worker who died of asbestosis would receive 

nothing under Part B because the illness is not covered, and nothing under Part E if they 

do not meet the definition of an eligible child under Part E. 

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 believe 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. In one case, for example, the family contacting 

this Office indicated that one of the children had been in school intermittently until he 

was 24. He left school on several occasions in order to provide support for his parents. 

Had he remained continuously enrolled in school, he might have been eligible for Part E 

benefits. 

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

injustice they perceive. In a few cases, some have also explained that Part E’s provisions 

have driven a wedge between family members, because the youngest child was a minor at 

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

older children are not. Several adult children with historical knowledge of EEOICPA 

have observed that “adult children” were ineligible under Part B, until Congress changed 

the statute to make them eligible. They question why this same situation has been 

repeated but not rectified under Part E. 

In addition to adult children who do not meet Part E’s eligibility requirements, we also 

have received a few complaints from survivors who meet the statutory eligibility 

requirements but who are not entitled to benefits because the worker’s death was 

unrelated to a covered illness. Under Section 7385s-3 of EEOICPA,1

 a survivor must 

show not only that they meet EEOICPA’s eligibility requirements (see discussion above), 

but also that: 

• The worker would have been entitled to compensation under Section 7385s-4 

for a covered illness; and 

• “it is at least as likely as not that exposure to a toxic substance at a 

Department of Energy facility was a significant factor in aggravating, 

contributing to, or causing the death of such employee.” 

 

1

 There is one exception to the requirements of Section 7385s-3. Under Section 7385s-1(2)(B), when a 

worker dies after applying for Part E benefits but before compensation is paid, and if the worker’s death 

“occurred from a cause other than the covered illness of the employee,” the law permits the worker’s 

survivor(s) to “elect to receive” the amount of Part E compensation that the worker would have received if 

the worker had not died before compensation was paid. 
5

42 U.S.C. § 7385s-3(a)(1). Sometimes, survivor claimants are able meet the first 

requirement -- that the worker had a covered illness -- but they cannot show that the 

worker’s death was related to the covered illness. For example, in one case, the survivor 

spouse claimant received RECA and Part B awards for her husband’s pulmonary fibrosis 

and lung cancer. He died, however, in a 1994 car accident and the limited records 

available did not show that his death was related to his covered illness or to exposure to 

toxic substances. Survivors who contact this Office about this issue believe that Part E 

should compensate them for the illness the worker suffered during life. 

 

B. Definition of a Covered DOE Facility (11 comments) 

Part E of EEOICPA provides benefits to “covered DOE contractor employees” and their 

eligible survivors. See 42 U.S.C. § 7385s-1. As we explain in more detail below, an 

employee must have worked at a “covered DOE facility” in order to be considered a 

“covered DOE contractor employee.” During 2006, eleven individuals contacted this 

Office to complain that the definition of a covered DOE facility excludes certain workers 

(or their survivors) from Part E compensation. 

Section 7385s(1) of EEOICPA defines “covered DOE contractor employee” as including 

any DOE contractor employee with a covered illness. See 42 U.S.C. § 7385s(1). 

“Department of Energy contractor employee” is defined in Part B of EEOICPA: 

The term “Department of Energy contractor employee” means any of the 

following: 

 (A) An individual who is or was in residence at a Department of Energy facility 

as a researcher for one or more periods aggregating at least 24 months. 

(B) An individual who is or was employed at a Department of Energy facility 

by— 

(i) an entity that contracted with the Department of Energy to provide 

management and operating, management and integration, or 

environmental remediation at the facility; or 

(ii) a contractor or subcontractor that provided services, including 

construction and maintenance, at the facility. 

42 U.S.C. § 7384l(11). Claimants have raised a variety of concerns about this definition 

and its application to their cases. For most of the claimants who contact us about this 

issue, the question raised is whether they worked “at a Department of Energy facility,” as 

required by subsection (B) above. This term is defined by EEOICPA as well: 
6

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). DOE initially was responsible for identifying the various 

facilities covered by EEOICPA as “atomic weapons employers” (AWEs), “beryllium 

vendors,” and/or “DOE facilities” and published a “List of Covered Facilities,” most 

recently in August 2004. See 69 Fed. Reg. 51825-51831. Following the enactment of 

Part E, DEEOIC took over the responsibility of periodically reviewing and updating the 

listing of DOE facilities. See 20 C.F.R. § 30.5(x)(2). Part E does not cover employees of 

AWEs or beryllium vendors (unless they can establish additional employment at a 

covered DOE or RECA facility). 

In the specific cases identified to us, DEEOIC initially indicated to the claimants that 

they do not qualify for Part E benefits because the facilities at which they worked are not 

identified as DOE facilities on the DOE List of Covered Facilities. Three of the 

claimants who contacted us asked DEEOIC to change the classification of the facilities 

involved. In two cases, DEEOIC reviewed evidence obtained from the claimants and 

from DOE and concluded that the facilities involved did not meet the Part E statutory 

definition. In both cases, DEEOIC found that while operations might have been 

conducted on behalf of DOE at the facility (as required by subsection (A) of the 

definition), the available evidence did not show that DOE had a “proprietary interest” in 

the “building, structure or premise” of the facility (see subsection (B)(1)) or that the 

employer was providing the types of services outlined in subsection (B)(2). The third 

case is still under consideration. 

Most of the claimants who express concern about this issue believe the statutory 

definition should be broadened to include other workers who were exposed to the same 

hazards as those to which covered Part E employees were exposed, and they question 

why others are entitled to compensation while they are not. 
7

C. The Statutory Provisions Governing Special Exposure Cohorts Result in 

Disparity (11 comments) 

Under Part B of EEOICPA, living workers with cancer (or the survivors of workers who 

had cancer) are entitled to benefits if the worker: 

• has or had one of the 22 “specified cancers,”2

 was a member of a Special 

Exposure Cohort, and meets certain other requirements set by the law; or 

• has or had any cancer (whether “specified” or not) and the results of the dose 

reconstruction results in a probability of causation of fifty percent or higher. 

42 U.S.C. §§ 7384l(9), 7384n(b). Under Part E, an award under Part B for a worker’s 

cancer -- whether based upon SEC membership or a qualifying probability of causation -- 

is treated as a determination that the worker’s cancer was contracted through exposure at 

a DOE covered facility. See 42 U.S.C. § 7385s-4(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 are important not only to Part B claimants, but to Part 

E claimants as well. 

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: 

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

class received”; and 

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

the health of members of the class.” 

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

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. 

Depending upon the specific findings supporting the SEC’s creation, the dose 

reconstructions for these claims may be very limited and may lead to a low PoC and 

denial of benefits. This happens because SEC designations are based in part upon HHS’ 

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

the class received.” 42 U.S.C. § 7384q(b)(1). Once HHS has concluded that it cannot 

accurately estimate radiation doses, a full dose reconstruction cannot be completed. 

 

2

 “Specified cancer” is defined in Section 7384l(17) to include cancers specified under Section 4(b)(2) of 

the Radiation Exposure Compensation Act; bone cancer; renal cancer; and certain forms of leukemia. 
8

NIOSH does attempt to perform partial dose reconstructions when possible (based, for 

example, upon exposure records from occupational health x-rays), but these partial 

reconstructions almost inevitably yield very low PoC results -- well under the 50% PoC 

required under Part B. Because the same dose reconstruction is used under Part E to 

determine whether the cancer is related to radiation exposure, the same statutory 

provisions lead to a denial under Part E, unless the claimant can show that the cancer is 

related to other (non-radiological) toxic exposures, or that they have another illness for 

which dose reconstruction is not required under Part E. 

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

Compensation (6 comments) 

Introduction

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

to receive their payment of compensation. Consequently, if a worker claimant or 

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

the award due to the worker or survivor cannot be paid. Instead, a new claim must be 

filed by a survivor who is eligible for benefits in his or her own right under Part E. If 

there is no such survivor, no award can be made and the claim is nullified. Even if there 

is an eligible survivor, the death of the covered worker may result in a reduction of 

compensation.3

 Many claimants have been waiting for long periods of time to be 

awarded what once was Part D and is now Part E compensation. In some cases, the 

claimant’s death has occurred shortly before payment was to be issued, heightening the 

frustrations felt by affected claimants. 

Effect of Worker’s Death on Contractor Employee’s Claim

Section 7385s-1 of EEOICPA (42 U.S.C. § 7385s-1) outlines the compensation available 

to individuals under Part E. It provides that a “DOE contractor employee” (a living 

worker) is eligible for compensation under Section 7385s-2 (42 U.S.C. § 7385s-2), which 

provides compensation for impairment and/or wage loss suffered by the worker. The 

maximum compensation available to living workers is $250,000. See 42 U.S.C. § 7385s12. Section 7385s-1 also states that, “after the death” of a worker, contractor employee 

compensation “shall not be paid”; instead, section 7385s-1 directs, “the survivor of that 

employee shall receive contractor employee compensation under this part in accordance 

with section 7385s-3.”4

 Section 7385s-3 provides a minimum survivor award (if the 

 

3

 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. 

4

 There is one exception to this provision: when a worker dies after s/he applied for Part E benefits but 

before compensation could be paid, and if the worker’s death “occurred from a cause other than the 

covered illness of the employee,” the law permits the worker’s survivor(s) to “elect to receive” the amount 

of Part E compensation that the worker would have received if the worker had not died before 
9

survivor’s claim is successful) of $125,000 and a maximum of $175,000, depending upon 

the extent of the worker’s wage loss while s/he was alive.5

Consequently, when a worker dies after filing a claim but before receiving payment, the 

worker’s claim is nullified. A surviving spouse might be able to apply for benefits in his 

or her own right under Part E, but the potential benefits are reduced -- the maximum 

payable to a worker claimant is $250,000; the maximum payable to a survivor is 

$175,000. During 2006, the Office of the Ombudsman received two inquiries involving 

terminally ill workers who had died shortly before their claims were to be awarded.6

 In 

one case, the worker had lung cancer and had received a final decision awarding the 

maximum $250,000, but he died before the payment could be made. Because of Section 

7385s-1’s wording, DEEOIC concluded that it could not make the $250,000 payment to 

his widow. She then had to file her own claim under Section 7385s-3. Although 

DEEOIC concluded that her husband’s death was related to his cancer, she was eligible 

for only $125,000 rather than the $250,000 he had been scheduled to receive. 

Effect of Surviving Spouse’s Death on Survivor’s Claim

Section 7385s-3 (42 U.S.C. § 7385s-3) establishes the compensation due to survivors 

under Part E and provides between $125,000 and $175,000 (depending upon qualifying 

amounts of wage loss during the worker’s life) to successful survivor claimants. 

Subsection (c) outlines when and to whom compensation is to be paid: 

(c) DETERMINATION AND ALLOCATION OF SHARES.—The amount 

under subsection (a) shall be paid only as follows: 

(1) If a covered spouse is alive at the time of payment, such payment shall 

be made to such surviving spouse. 

(2) If there is no covered spouse described in paragraph (1), such payment 

shall be made in equal shares to all covered children who are alive at the 

time of payment. 

(3) Notwithstanding the other provisions of this subsection, if there is— 

 compensation was paid. This provision has the potential effect of leading to a higher award of 

compensation to the survivor of a worker whose death is unrelated to a covered illness than is available to 

the survivor of a worker whose death is related to a covered illness: a survivor who can elect to receive the 

benefits due a worker would be eligible for up to $250,000 in compensation. 

 

5

 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. 

6

 DEEOIC does attempt to give priority to development and (when appropriate) award of the claims of 

terminally ill claimants. At least in the two cases brought to our attention, however, they were not 

successful. 
10

 (A) a covered spouse described in paragraph (1); and 

(B) at least one covered child of the employee who is living at the 

time of payment and who is not a recognized natural child or 

adopted child of such covered spouse, 

then half of such payment shall be made to such covered spouse, and the 

other half of such payment shall be made in equal shares to each covered 

child of the employee who is living at the time of payment. 

[emphasis added.] See also 20 C.F.R. § 30.101. 

Because subsection (c) requires that survivors receiving compensation be “alive [or 

‘living’] at the time of payment,” the death of a survivor after a claim is filed -- but 

before actual payment of compensation -- nullifies that survivor’s claim. Surviving 

children who qualify under Part E’s definition of “covered child” would potentially be 

eligible for the same amount of compensation as a deceased spouse, but many children 

(as discussed in Section IIIA above) are not “covered children” and so are not entitled to 

receive Part E compensation. The death of the surviving spouse claimant often means 

that no Part E compensation will be paid to the families in these cases. 

Adult children whose surviving parent dies before payment can be made are shocked to 

discover that the approved compensation cannot be paid to them or to the parent’s estate. 

Although it appears to be a rare occurrence based upon the information this Office 

receives, this statutory provision sometimes leads DEEOIC to determine that there are no 

eligible survivors to whom compensation can be paid. Families of deceased claimants 

have complained that the long delay in establishing the compensation program, deciding 

cases, and paying benefits has caused the government to deny them compensation to 

which they feel entitled. 

E. Miscellaneous Inquiries and Comments (11 comments):

During 2006, the Office of the Ombudsman also received the following miscellaneous 

inquiries and comments about statutory issues: 

• Adequacy of Available Part E Benefits (6 comments): 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. Medical benefits also are available under Part E 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 
11

date the worker filed the claim. Both living worker and survivor claimants have 

expressed the view that Part E benefits will not fully compensate them for their 

loss. Living worker claimants with many years of wage loss state that the 

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

years of wage loss (and will not compensate them at all for their impairment) and 

that the available medical benefits do not compensate them for expenses incurred 

before they filed a claim. Survivor claimants state that the $175,000 maximum 

does not fully compensate them for the wage loss the family suffered during the 

worker’s life, medical bills during the worker’s life which were not covered by 

health insurance, and other expenses. 

• Legal Representative Fees (3 comments): Under EEOICPA, legal representative 

fees are paid by the claimant and are limited to two to ten percent of the amount 

of a lump-sum award. See 42 U.S.C. §§ 7385g, 7385s-9. Some claimants have 

commented that they believe legal representative fees should be paid by the 

government, rather than by the claimant. An attorney has noted that the statute’s 

provision for limited contingent fees discourages representation in cases where 

the claimant’s impairment and wage-loss may result in small lump-sum benefits. 

• Part D Transfer (2 comments): Two claimants contacted us to discuss the effects 

of the repeal of Part D on their cases. One claimant stated that she had been told 

orally by DOE that there would be a positive physicians’ panel finding on the 

covered illness. Part D was repealed, though, before the panel issued its finding 

and the claimant has been struggling to reprove her case under Part E. The 

claimant further complained that she had paid attorney fees in support of her Part 

D claim and that the evidence compiled by the attorney has been rejected by 

DEEOIC.7

 

IV. Regulatory, Policy and Procedural Issues

Preliminary Note: DEEOIC published a Final Rule on December 29, 2006. The Rule 

takes effect on February 27, 2007. Individuals who contacted us with concerns about 

DEEOIC’s regulations during 2006 were expressing concerns about the Interim Final 

Rule published on June 8, 2005 and effective until February 27, 2007, when the Final 

Rule takes effect. Therefore, specific references to the Code of Federal Regulations in 

this section are references to the IFR, unless otherwise noted. The Office of the 

Ombudsman began receiving concerns about the Final Rule shortly after its publication 

on December 29, 2006; for the most part, the concerns reiterate the comments received 

on the IFR. 

 

7

 Unlike Parts B and E, Part D did not place limits on attorney fees. 
12

Summary 

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

have contacted the Office of the Ombudsman in connection with: 

• Difficulties Retrieving Employment, Exposure and Medical Records (64 

comments) 

• Difficulties in Proving Causation Issues (65 comments) 

• Regulatory Restrictions on Challenges to Dose Reconstruction (16 comments) 

• Miscellaneous Inquiries and Comments (15 comments) 

A. Difficulties Retrieving Employment, Exposure and Medical Records (64 

comments) 

Introduction

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

their claims by a preponderance of the evidence. Claimants also 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). Employment, exposure and medical records are among the 

types of evidence that claimants may be required to submit. As was true last year, 

claimants have continued to tell the Office of the Ombudsman about the difficulties they 

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

their claims.8 

DEEOIC does provide assistance to claimants in locating relevant records, but there are 

limits to this assistance. In addition, sometimes the necessary records simply do not exist 

(sometimes because they were not maintained or have since been discarded) and 

claimants ultimately cannot successfully prove their cases. Many former workers and 

their families question how, if the government and/or their employers do not have these 

records, anyone could expect the claimants to have the necessary records. 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 specific request to 

DEEOIC to obtain evidence in their claim files.) This can result in duplication of effort, 

 

8

 Some (4) of the complaints received by this Office during 2006 came in response to a letter DEEOIC 

mailed early in the year to numerous claimants. The letter asked the claimants to produce a doctor’s 

narrative report outlining the claimant’s exposure history (including type of toxic substance, and frequency 

and duration of exposure during covered employment) and then linking that history to the claimant’s 

illness. The letter provided thirty days for claimants to respond. DEEOIC’s National Office later indicated 

that the letters had been issued in error and that the claims examiners should be undertaking additional 

development of employment and exposure evidence before asking claimants for evidence; issuance of the 

letters was stopped at that point. 
13

with the claimant locating and submitting the same records DEEOIC has already 

obtained, or making a fruitless search for records in places where DEEOIC has already 

searched and found nothing -- a frustration for claimants who are at a loss to figure out 

where to turn next. On the other hand, in some cases claimants are able to find evidence 

DEEOIC has not obtained and which is helpful to their case. For example, one survivor 

claimant found helpful employment records through a Freedom of Information Act 

request made to DOE. 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 that they worked at a 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. Finding 

this evidence -- particularly evidence about a worker’s presence in specific buildings on a 

site -- can be extremely difficult, particularly for survivor claimants who are attempting 

to reconstruct employment records for a spouse or parent who died long ago and/or 

whose job might have required travel to a variety of different sites. 

Exposure Records

Exposure records may help to establish that the worker has or had a Part E “covered 

illness” (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 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 exposure records -- are important not only to Part B 

claimants, but to Part E claimants as well. 

 

Some claimants simply never knew the substances to which they (or, in the case of a 

survivor, the worker) were exposed. Other claimants may have some information about 

some of the toxic substances present at their worksite, but not all; rarely can a claimant 

find documentary evidence of exposure, if that is required. Claimants have pointed out 

that many of the relevant facilities are no longer operational, and in some cases, have not 

been open for decades. If exposure records were kept at all, claimants often find that they 

were not well-maintained or preserved. Some claimants also maintain that records were 

sometimes destroyed. Even when records are available, there may be significant delays 

in obtaining them. 

 
14

Cases in which a radiogenic cancer has been claimed are referred to NIOSH for a dose 

reconstruction of the worker’s exposure to radiation. Both DEEOIC and NIOSH collect 

employment and radiation exposure information from DOE (and other sources); however, 

claimants continue to express grave reservations over whether it will be possible to 

establish a 50% or higher probability of causation. Moreover, some claimants regard the 

dose reconstruction process as significantly flawed, because they question the reliability 

of the records used in the process. 

For cancers that are potentially related to both radiological and non-radiological 

exposures (or related solely to non-radiological exposures), DEEOIC’s regulation 

indicates that a successful claim is possible even with a PoC of lower than 50%; DEEOIC 

will consider the potential relationship between the cancer and non-radiological toxic 

exposures. DEEOIC approaches illnesses other than cancer in the same way -- both nonradiological and radiological exposures are considered as potential significant factors in 

aggravating, contributing to, or causing the illness. See 20 C.F.R. §§ 30.213(c), 30.230. 

Information about a particular worker’s exposure to a particular toxic substance can be 

critical to making these determinations. 

Claimants do receive some assistance from DEEOIC in developing this evidence. Some 

claimants, for example, indicate that resource center staff have helped to research 

information. More significantly, as explained in the Preface, DEEOIC has developed 

Site Exposure Matrices covering DOE facilities; DEEOIC also has indicated that it 

continues to expand and update SEM. The SEM attempts to identify information 

concerning which toxic substances were present at particular locations at specific DOE 

facilities. DEEOIC’s claims examiners use this information to determine whether 

particular claimants were exposed to particular toxic substances. The SEM is not 

available to the public at present, but the Preamble to DEEOIC’s Final Rule states, “The 

matrices now being developed will be posted on our Web site and will be available to 

claimants and their representatives” (71 Fed. Reg. 78519, 78521). In addition, 

DEEOIC’s claims examiners generally incorporate SEM information developed in a 

claimant’s case into the claimant’s file. Many of the claimants who contact our office are 

unaware that they may be able to obtain SEM information from the Department; in 

response, we suggest that, as a first step, they request a copy of their file. 

In addition, some claimants have expressed doubt about whether the information in SEM 

is accurate and complete. Because SEM is not yet publicly available, claimants who 

question its accuracy cannot determine whether their doubts are valid. The same doubts 

hold true more generally: some claimants who have contacted the Office of the 

Ombudsman have questioned the credibility of information collected from covered 

facilities. In some cases, this is due to reservations they harbor about the truthfulness or 

conscientiousness of managers and supervisors at facilities who were entrusted with 

collecting and maintaining exposure information. 

Even where SEM information is available to the claimant and is accurate, some claimants 

face difficulty in gathering exposure evidence because they did not regularly work in a 

single location. For example, one claimant drove a bus to transport workers from one 
15

destination to another at a covered facility at which mining, construction, and excavation, 

among other activities, were conducted. The claimant was rarely in one building or 

location for any substantial length of time. He believes that, instead, the contaminants in 

the air that he breathed changed as frequently as the dust and particles carried by workers 

onto his bus. This claimant believes that he was exposed to almost all the chemicals 

known to be present at the covered facility because he transported workers from all areas 

of the covered facility while wearing no breathing protection of his own. He does not 

know for certain, however, what he was exposed to, because nobody has told him. 

DEEOIC Comments: DEEOIC states that the posting of SEM information referenced in 

the Preamble to the Final Rule will occur shortly. 

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 exposure to toxic substances. Medical and other records (marriage or 

birth certificates, for example) also can be crucial to establishing other elements of a 

survivor’s eligibility for benefits under Part E. 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). 

In order to meet this requirement, a child survivor claimant may need both the parent’s 

medical records showing cause of death, as well as medical records showing their own 

physical or mental condition at the time of the parent’s death. 

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 destroyed or are not 

helpful because the physicians involved often did not consider the possible contributions 

of toxic substances to the illnesses they diagnosed. In cases in which 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. 

B. Difficulties in Proving Causation (65 comments) 

Introduction

During 2006, claimants continued to complain about the difficulties they face in proving 

causation issues -- for example, proving that a particular disease is related to toxic 

exposures, or proving that a worker’s death was related to toxic exposures. Many of 

these complaints involved EEOICPA Bulletin No. 06-10 (June 6, 2006, updated by 
16

Bulletin No. 06-14 (August 1, 2006)),9

 which is titled, “Illnesses that presently have no 

known causal link to toxic substances,” and establishes criteria for handling claims 

“where there is no known relationship between certain illnesses and occupational 

exposure to toxic substances under Part E of the EEOICPA.” Bulletin No. 06-10 informs 

claims examiners that DEEOIC “has identified certain illnesses with no known causal 

link to toxic substances.” The illnesses (over 75 medical conditions as of the end of 

2006) are listed in an attachment to the bulletin.10 This section of the report discusses 

Bulletin No. 06-10 first, followed by a short discussion of other issues which have been 

raised. 

Bulletin No. 06-10

Introduction 

Bulletin No. 06-10 instructs claims examiners on how to decide a case in which a covered 

worker has been determined to have one of those conditions that DEEOIC considers to 

have no known link to a toxic substance. The claims examiner is directed to send a letter 

to the claimant stating this finding and telling the claimant that “it is necessary to submit 

factual or medical documentation to show a relationship between the claimed medical 

condition(s) and exposure to a toxic substance” within thirty days.11 

If a claimant responds to DEEOIC’s letter and submits evidence, Bulletin No. 06-10 

instructs DEEOIC’s claims examiners to first determine whether the claimant has 

submitted evidence that provides a “compelling or probative basis for DEEOIC specialist 

review.” “Compelling or probative” evidence is not defined, but general guidance is 

provided: “human epidemiological studies or other scientific findings suggesting a causal 

relationship” or a “well-rationalized opinion from a board-certified physician or other 

specialist attesting to” a causal relationship between a medical condition and a toxic 

substance would warrant referral to a DEEOIC specialist. On the other hand, 

 

9

 Bulletins No. 06-10 and No. 06-14 are available on DEEOIC’s Web Site at: 

http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/PolicyandProcedures/finalBulletinshtml_06.htm . 

10 As discussed in the Preface, during 2006, DEEOIC also issued Bulletin No. 06-08 (updated by Bulletin 

No. 06-13), which established criteria for the presumption of a causal relationship between particular toxic 

substances and specific medical conditions. This bulletin assists some claimants in proving causation of 

the illnesses identified in the bulletin. The Office of the Ombudsman has received several inquiries about 

Bulletin No. 06-08, generally relating to which conditions are covered by the bulletin and the criteria for 

applying the bulletin’s claimant-favorable presumptions. These bulletins also are available on the DEEOIC 

Web Site provided in footnote 9. 

 

11 There is one exception to this general rule: certain forms of cancer appear on the “no known causal link” 

list, but DEEOIC’s letter does inform the claimant it will “process the claim for a determination of 

causation based on radiation exposure” by determining whether the claimant is a member of an SEC with a 

specified cancer or via NIOSH dose reconstruction and PoC calculation. If neither of these methods 

establishes that the cancer is related to radiation, the letter tells the claimant that it will be necessary to 

submit evidence of a causal link between the cancer and biological and/or chemical exposure. See Bulletin 

No. 06-10, Attachment 2. 
17

“unsubstantiated statements of causal relationship; speculative or equivocal 

medical/specialist opinions; scientific literature or other documents that do not reference 

the illness under evaluation; and general news articles from print or the Internet” 

generally would not warrant referral. If the claimant’s evidence is not “compelling or 

probative,” the bulletin generally instructs the claims examiner to conclude that 

“exposure to a toxic exposure was not as least as likely as not a significant factor in 

aggravating, contributing to or causing the diagnosed illness” and to deny the claim for 

the condition involved (unless there are other reasons for delaying a decision, such as a 

pending dose reconstruction for a cancer). 

Bulletin No. 06-10 has led to many inquiries and/or complaints from claimants, their 

legal representatives, medical practitioners, and Congressional staff, about the difficulties 

claimants and their experts face both in understanding the bulletin and in understanding 

what claimants need to do in order to overcome the bulletin’s “no known causal link” 

finding. 

 

 Claimants Find Bulletin No. 06-10’s Language Confusing or Inconsistent 

One concern expressed by claimants and other individuals is about the meaning of some 

of the language in Bulletin No. 06-10 (as well as some of DEEOIC’s correspondence), 

particularly the meaning of the terms “toxic substances” and “no known causal link.” 

“Toxic Substances”

Under DEEOIC’s regulations, a “toxic substance” includes any radioactive, chemical or 

biological substance that has the potential to cause illness or death. See 20 C.F.R. 

§ 30.5(ii). The title of the bulletin -- “Illnesses that presently have no known causal link 

to toxic substances” -- implies that it applies to all toxic radioactive, chemical and 

biological substances. On the other hand, Attachment 1 to the bulletin, which identifies 

the particular illnesses to which the bulletin applies, is called, “Medical Conditions with 

No Readily Known Associations to Occupational Chemical Exposures.” Unlike the title 

of the bulletin itself, the attachment’s title appears to confine the bulletin’s application to 

chemical substances, excluding radioactive and biological toxic substances. The term 

“toxic substances” also is used in other places in both the bulletin and in DEEOIC’s 

correspondence with claimants. However, at other times the bulletin and letter refer only 

to “biological” and/or “chemical” substances, excluding radioactive substances. 

Although these distinctions are sometimes explained, explanations are missing at other 

points and this leads to confusion for some individuals. 

An example may be helpful in understanding the questions claimants raise about the 

language in the bulletin and DEEOIC’s associated correspondence: A widow filed Part B 

and Part E claims based upon her deceased husband’s pancreatic cancer. NIOSH had 

performed a dose reconstruction, but the PoC calculated by DOL was 44.01%, which is 

below the 50% or higher PoC required by Part B of EEOICPA and by DEEOIC’s 

regulations for Part E. Pancreatic cancer is one of the illnesses identified by Bulletin No. 
18

06-10’s attachment as having “no readily known associations to occupational chemical 

exposures.” She received a letter from DEEOIC stating, “Initial assessment of your 

survivor’s claim for pancreatic cancer indicates that the claimed condition of pancreatic 

cancer is not scientifically recognized as having any known link to exposure to a toxic 

substance. There is also no scientific link between exposure to radiation and pancreatic 

cancer.” 

When she called our office, the claimant asked for help in understanding the letter’s 

overall meaning, but she was particularly perplexed about why she was being told that 

there is no scientific link between exposure to radiation and pancreatic cancer, when 

EEOICPA identifies pancreatic cancer as a specified radiogenic cancer and NIOSH had 

performed a dose reconstruction for the illness. 

DEEOIC Comments: DEEOIC states that the letter discussed above was incorrect and, 

in view of the fact that EEOICPA Bulletin No. 06-10 has apparently caused confusion, 

DEEOIC will clarify the bulletin. 

“No Known Causal Link”

The use of the word “known” in Bulletin No. 06-10 (“no known causal link”), the 

attachment identifying specific conditions (“no readily known associations”), or 

DEEOIC’s letter (“no known relationship to toxic substance exposure”) also has caused 

confusion for some individuals. The bulletin does not define “known,” but it appears that 

it means that the available scientific evidence establishes some level of certainty that 

there is a causal relationship between a toxic/chemical substance and a condition 

identified on the bulletin. Absent that level of certainty, DEEOIC finds “no known 

causal link” between toxic exposures and particular conditions. 

Some individuals who read the bulletin and/or DEEOIC’s correspondence, however, 

interpret “known” to mean that DEEOIC was unable to find any evidence at all, not that 

DEEOIC is aware that some evidence exists, but does not believe it is strong enough to 

support a causation finding in the claimant’s favor. Consequently, these individuals 

respond to DEEOIC’s letter -- which simply asks for “factual or medical documentation 

to show a relationship between the claimed medical condition(s) and exposure to a toxic 

substance” -- by submitting medical articles or other scientific evidence, physician 

opinions, information from websites, or other information they have located. Sometimes 

the evidence submitted by claimants is referred to DEEOIC’s specialists for review, but 

to date we have not been made aware of any success in convincing DEEOIC to make a 

positive causation finding in an individual case and the list of conditions subject to the 

bulletin remains unchanged. 

DEEOIC Comments: DEEOIC states that it will review EEOICPA Bulletin No. 06-10 to 

clarify that its purpose is to guide claims examiners and to expedite consideration of 

cases and that DEEOIC will review and adjudicate any evidence supplied by claimants of 
19

such a link in an objective manner, referring such evidence to outside experts as 

necessary and modifying the bulletin should such a link be shown. 

Bulletin No. 06-10 does not specifically identify the evidence DEEOIC considered 

or explain how DEEOIC reached conclusions about particular illnesses 

Bulletin No. 06-10 indicates that it was developed based upon the research of DEEOIC’s 

own specialists into “authoritative scientific publications, medical literature, and 

occupational exposure records for information to identify medical illnesses for which 

current scientific knowledge does not show a relationship or an etiology due to biological 

or chemical exposure.” We have received complaints, however, that the bulletin does not 

identify by name the specific scientific publications, medical literature or occupational 

exposure records searched in identifying the particular conditions listed on the bulletin’s 

attachment. There also is concern that the bulletin does not explain how DEEOIC’s 

review of the available evidence about particular conditions and/or chemicals led it to the 

conclusions it reached. 

Without knowing the specific scientific publications, medical literature or occupational 

exposure records DEEOIC researched, claimants and their representatives (and experts) 

point out that they cannot review that evidence. Without understanding DEEOIC’s 

reasons for concluding that particular medical conditions are unrelated to toxic exposures, 

claimants and their representatives assert that they are left guessing at what evidence or 

argument they might be able to make to change DEEOIC’s conclusions. 

For example, several claimants who have claimed prostate cancer (which was added to 

Bulletin No. 06-10’s Attachment 1 by Bulletin No. 06-14)12 as a covered illness have 

contacted our office after receiving DEEOIC’s letter. Some individuals have located 

medical articles or other evidence that they believe support their position that there is a 

relationship between toxic substances and prostate cancer, and have questioned whether 

DEEOIC considered this evidence before placing the illness on the bulletin. One 

claimant noted that, in awarding compensation for Agent Orange-related conditions, the 

Veterans Administration (VA) adopted a presumption that prostate cancer may be related 

to Agent Orange, a herbicide.13 Because Agent Orange is a chemical, the 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 seeming conclusion to 

the contrary. Because Bulletin No. 06-10 does not specifically identify any of the 

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

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

prostate cancer on the “no known causal link” list. 

 

12 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. 

13 See http://www1.va.gov/agentorange/docs/D10AOBRIEF82005.doc . 
20

DEEOIC Comments: DEEOIC states that it has not located any studies which establish, 

for purposes of entitlement under EEOICPA, a causal connection between Agent Orange 

and prostate cancer, but it continues to research this matter. 

The Burdens Placed on Claimants by Bulletin No. 06-10 are 

Too High and are Inconsistent with the Law 

Some claimants simply find the task of responding to DEEOIC’s Bulletin No. 06-10 

letter overwhelming -- the physician who treated the covered employee may be retired or 

dead, or unable to provide an expert analysis of the available medical literature, and many 

claimants do not have the knowledge and/or resources to find other experts, or relevant 

literature. Lack of easy access to information about the particular toxic substances 

present at their worksites (discussed in Section IVA above) further increases their burden 

because it is extremely difficult to locate medical evidence linking a particular illness to a 

particular substance when you do not know which substances were present at your 

worksite or you believe the available information is unreliable. 

Other claimants and their representatives tell us that they do attempt to compile -- as 

requested by the letter they receive from DEEOIC -- “factual or medical documentation” 

showing “a relationship” between the claimed medical condition and exposure to a toxic 

substance. Some, for example, have submitted letters from their physicians, some have 

obtained letters from toxicologists or other experts, some have submitted scientific 

publications or medical literature which they believe supports their case. In each of the 

cases brought to our attention, the claimants and their representatives have so far been 

unsuccessful in either having their case referred to a DEEOIC specialist or in convincing 

DEEOIC to remove any particular illness from the “no known causal link” list. As a 

consequence, some claimants have begun to ask whether DEEOIC either is not properly 

considering the evidence they submit and/or whether it is possible to find and submit 

evidence that would persuade DEEOIC to remove any particular illness from the “no 

known causal link” list. 

For example, during a conversation with our office, a legal representative who is trying to 

gather evidence that would persuade DEEOIC to remove prostate cancer from the list has 

noted a disparity in how some claims are treated under Part E: one of his clients received 

a Part E approval for prostate cancer because he originally filed a Part D claim, a Part D 

physician panel found that his prostate cancer was related to his exposure to toxic 

substances, and the findings of that panel were accepted by the Secretary of Energy, thus 

conclusively establishing, for purposes of Part E, that “the employee contracted the 

covered illness through exposure at a Department of Energy facility.” See 42 U.S.C. 

§ 7385s-4(b). This is because Part E specifically provides that a former Part D claimant 

with a positive panel finding accepted by the Secretary of Energy would receive Part E 

benefits for prostate cancer without having to persuade DEEOIC that there is a “known” 

causal link between prostate cancer and toxic substances, while a former Part D claimant 

whose case never went to a panel (or any other Part E claimant) would only receive 
21

benefits if they are able to submit evidence persuading DEEOIC that there is such a 

causal link. 

In discussions with our office, the representative questioned whether the two sets of 

claimants are being treated fairly and consistently. In the case involving the former Part 

D claimant, the panel had referenced scientific studies in making its finding under DOE’s 

regulation -- that it was “at least as likely as not that exposure to a toxic substance at a 

DOE facility during the course of employment by a DOE contractor was a significant 

factor in aggravating, contributing to or causing” the claimant’s prostate cancer. See 10 

C.F.R. § 852.8. The representative questioned whether DEEOIC is imposing too 

significant a burden on Part E claimants, given the “at least as likely as not” standard that 

generally applies to causation inquiries under Part E. See 42 U.S.C. §§ 7385s-3(a)(1)(B) 

and 7385s-4(c)(A). 

DEEOIC’s Comments: DEEOIC states that Bulletin No. 06-10 simply notes those 

conditions for which DEEOIC has been unable to discover probative evidence sufficient 

to establish a link to a toxic substance. DEEOIC intends to clarify the role and function 

of that bulletin. 

Other Causation Issues

Beyond Bulletin No. 06-10, individuals have raised several concerns about the 

difficulties claimants face in proving causation issues: 

• Even when an illness is not on the Bulletin No. 06-10 list of illnesses not found by 

DEEOIC to be related to any toxic exposures, some claimants report receiving 

DEEOIC expert opinions finding the available scientific evidence insufficient to 

establish a connection between a particular toxic exposure and a particular 

condition. For example, one survivor claimant states that she has been trying to 

show that her deceased father’s heart disease is related to radiation exposure; she 

consulted two experts, and obtained and submitted opinions from them support of 

her position. Her case has been rejected in part because DEEOIC’s expert does 

not find the scientific evidence underlying the experts’ opinions persuasive. Like 

those who question Bulletin No. 06-10, this claimant has questioned whether 

DEEOIC’s decisions are consistent with the statute. 

• Some survivor claimants have encountered difficulties in proving that “it is at 

least as likely as not that exposure to a toxic substance at a Department of Energy 

facility was a significant factor in aggravating, contributing to, or causing the 

death” of the worker. These difficulties often involve problems with medical 

records (discussed in Section B, above), but also difficulties claimants and their 

experts encounter in understanding the statutory standard and how it is applied by 

DEEOIC. 
22

• During 2006, individuals continued to complain that 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). As 

was true last year, the individuals who question the regulation's consistency with 

the statute maintain that the “significant factor” language in Part E indicates that 

Congress intended the Agency to use a lower threshold than in Part B, which 

includes the “at least as likely as not” language but not the “significant factor” 

clause. 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%.14 

C. Regulatory Restrictions on Challenges to Dose Reconstruction (16 comments) 

Under 20 C.F.R. § 30.318, the Final Adjudication Branch’s review of a claimant’s dose 

reconstruction is limited to a review of the factual findings upon which NIOSH based its 

dose reconstruction. See 20 C.F.R. § 30.318(a). For example, if NIOSH incorrectly 

bases its dose reconstruction on an assumption that a worker had lung cancer, but the 

worker actually had bone cancer, the FAB will, if otherwise appropriate, return the case 

to NIOSH for review. On the other hand, under Section 30.318(b), the FAB will not 

consider the “methodology” underlying NIOSH’s dose reconstruction. See 20 C.F.R. 

§ 30.318(b). For example, some claimants have told us that they have tried to identify 

inaccuracies in NIOSH Site Profiles as an issue on appeal to the FAB, but that the FAB 

has declined to consider the issue because they viewed the claimants’ arguments as a 

challenge to NIOSH’s “methodology” because use of the information in facility site 

profiles is considered part of NIOSH’s dose reconstruction methodology. 

Claimants have expressed confusion both about the distinctions between “methodology” 

and “application” of methodology, and about whether, given the restrictions on the 

FAB’s review, there are any available means for challenging NIOSH’s dose 

reconstruction methodology as part of the process of deciding an individual’s claim. A 

claimant might appeal the FAB’s denial to Federal court and ask the court to consider all 

of the issues the claimants seeks to raise; however, for many claimants, understanding 

and making judgments about how to raise issues to a court which have not been (or will 

not be) considered by the FAB is a significant challenge which further complicates their 

cases. 

 

14 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). 
23

D. Miscellaneous Inquiries and Comments (15 comments) 

During 2006, the Office of the Ombudsman also received the following miscellaneous 

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

• Inquiries about DEEOIC Bulletin No. 06-11 (3 comments): A few individuals 

contacted this Office about a bulletin issued by DEEOIC in June 2006 -- Bulletin 

No. 06-11, “Supplemental Guidance for Processing Claims for the Special 

Exposure Cohort (SEC) Class for the Y-12 Plant, March 1943 -- December 

1947.” This Y-12 SEC covered certain employees who worked at the Oak Ridge 

Y-12 plant during 1943-1947 for at least 250 days in “uranium enrichment 

operations” or “other radiological activities.” DEEOIC initially issued a bulletin 

providing instructions for claims examiners considering claims from Y-12 in 

November 2005; after that bulletin was issued, claimants apparently received 

recommended decisions awarding benefits which, in accordance with DEEOIC’s 

regulations, then went to the FAB for final review. In June 2006, DEEOIC 

issued Bulletin No. 06-11, which changed the instructions to claims examiners 

and resulted in many of the recommended awards being remanded by the FAB to 

the district offices for further consideration and development of evidence. The 

new bulletin provided extensive guidelines for claims examiners about how to 

determine whether an individual worked in “uranium enrichment operations” or 

“other radiological activities.” The Office of the Ombudsman subsequently 

received inquiries from individuals who expressed their dismay at the reversal of 

the recommended awards and/or sought assistance in understanding the meaning 

of the decisions they received and the steps they would need to take in response. 

• Reopening Regulations (5 comments): Some claimants complain that 

DEEOIC’s regulations governing reopening of a claim (see 20 C.F.R. § 30.320) 

are burdensome. DEEOIC’s regulations permit claimants to ask for reopening if 

they submit 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. 

• Part D Physician Panels (5 comments): Some claimants have contacted this 

Office to ask how a positive physician panel finding under Part D affects their 

claims, or to express concern that a positive Part D finding was not properly 

treated by DEEOIC or its experts. Under Part E, a positive physician panel 

conclusively establishes causation for Part E purposes only if accepted by the 

Secretary of Energy. Similarly, while such a finding may establish causation of 

an illness if a covered worker subsequently dies, a claimant would have to 

establish that the death was due to a covered condition to receive survivor 

benefits. 

• Publication of Final Rule (2 comments): Two individuals contacted us to ask 

when DEEOIC’s Final Rule would be published.
24

V. Administrative or Miscellaneous Issues 

Summary 

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

• Concerns about Claimant Interactions with DEEOIC Personnel (62 comments) 

• Requests for Assistance in Understanding Communications (56 comments) 

• The Processing of Claims Has Taken and Will Take Too Much Time (57 

comments) 

• Locating Experts (26 comments) 

• DEEOIC Personnel and Resource Centers Sometimes Provide or Use Incorrect 

(or Incomplete) Information (23 comments)

• Medical Benefits Issues (38 comments) 

• Difficulties in Obtaining Copies of Evidence from DEEOIC (13 comments) 

• Miscellaneous Inquiries and Comments (795 comments) 

A. General Concerns about Claimant Interactions with DEEOIC Personnel (62 

comments) 

Many claimants continue to express general concerns about their interactions with 

DEEOIC personnel. This includes frustration about their routine attempts to contact their 

claims examiners or other DEEOIC personnel, with some claimants reporting that it is 

difficult to reach their claims examiner or to obtain more than cursory information about 

the status of their claims; that their calls are not always being returned; or that their 

claims examiner has openly discouraged them from calling. When calls are returned, it is 

sometimes by a different claims examiner, only recently assigned to the claim, who has 

no in-depth familiarity with the file. 

More generally, frequent changes in claims examiners also continues to be a concern for 

some claimants. As DEEOIC outlined in its response to this Office’s 2005 Annual 

Report, the Agency has found that it is necessary in practice to transfer cases between 

claims examiners in order to expeditiously process claims. Most claimants to whom we 

speak do understand that DEEOIC may need, at times, to reallocate work between 

examiners; a transfer to another claims examiner also may be welcomed by a claimant, if 

they have experienced difficulties with a particular claims examiner. However, in some 
25

cases, the claimants feel that transfers have been excessive or unnecessary. Particularly 

in complicated cases, they question why an examiner who is familiar with the intricacies 

of the evidence and who has a good rapport with the claimant should be replaced by 

someone who is unfamiliar with the case or claimant. 

In one case, the claimant reported that he had had 8-10 different examiners over the life 

of his claim, with 4-5 changes in the past year. The most recent change had involved not 

only a change in claims examiners, but a transfer of the file to a different district office. 

Further complicating this claimant’s experience was the fact that, the month before his 

claim transferred, he had asked for an extension of time in which to respond to a 

development letter from DEEOIC and had asked for a copy of his file. The claimant was 

notified of the change in district offices, but his requests for an extension and copy of his 

file were never acknowledged. He was only able to confirm that the extension would be 

granted and the copy of the file provided when he called the new district office to track 

down his new claims examiner, whom he found to be helpful, but not familiar with his 

case due to the recent transfer of many new cases. 

Beyond concerns about returning calls and transfers between claims examiners, claimants 

have complained about a number of other general issues that arise in their interactions 

with DEEOIC personnel including a perceived lack of courtesy (11 comments) by some 

DEEOIC personnel in public settings, written documents, or telephone conversations; and 

apparent losses of documents or duplicative requests (17 comments) by claims examiners 

or other DEEOIC personnel, which required the claimant to copy and re-submit the same 

documents again. Claimants without ready access to photocopy or fax machines view 

these requests as a hardship. 

B. Requests for Assistance in Understanding Communications (56 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 by the claims examiner, followed by a final 

decision by the FAB (which may follow an oral hearing). Many individuals report 

having significant difficulties in understanding the correspondence and decisions they 

receive from DEEOIC (and, occasionally, NIOSH) or in understanding what is said to 

them over the telephone or at oral hearings and have contacted this Office for assistance. 

Claimants, for example, are sometimes confused by “development” letters they receive 

from DEEOIC. A typical development letter might indicate that the claims examiner has 

reviewed the claimant’s file to see whether the evidence supports an award of benefits for 

a particular disease, and has tentatively concluded that the evidence is insufficient to 

support an award. The development letter then invites the claimant to submit additional 

evidence and provides a period of time to do so. Claimants report that these letters are 

confusing because they do not always clearly explain why the evidence already submitted 

by the claimant does not meet the claimant’s burden of proof. 
26

One living worker claimant submitted several doctor’s reports indicating that the 

conditions he claimed (including prostate cancer and pulmonary disease) were related to 

his employment. His claims examiner sent a letter indicating that the evidence the 

claimant submitted did not establish that his illnesses were related to employment, but did 

not specifically explain why this was the case -- why the doctors’ opinions were not 

sufficient. The letter provided the claimant with thirty days to submit more evidence, but 

without knowing why the previous evidence was not good enough, the claimant did not 

know what to do in response. 

Some claimants also have physical or mental impairments, difficulties with reading 

comprehension or limited English proficiency, which impair their ability to understand 

communications from DEEOIC. One adult child claimant, for example, e-mailed the 

Office of the Ombudsman because she was having difficulty understanding the eligibility 

requirements that apply to a child who was “incapable of self-support” at the time of the 

parent’s death. See 42 U.S.C. § 7385s-3(d)(2)(C). She told the Office that, during a 

telephone conversation, she had asked her claims examiner to send her an explanation of 

the law’s requirements in writing, because she has a cognitive impairment and memory 

problems which makes it very hard for her to understand and remember what she is told 

orally. The difficulties she was facing were relayed to DEEOIC. 

Some claimants also continue to be confused about whether they have a Part B claim, a 

Part E claim, or both, and find the two parts of the program difficult to distinguish. For 

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

they receive written correspondence from district offices, it is not always clear whether 

the correspondence pertains to Part B or Part E. Similarly, recommended decisions 

sometimes do not clearly state whether they are being rendered under Part B or E. Other 

claimants have expressed surprise upon being notified in writing that they have been 

enrolled in Part E, of which they knew nothing before getting the correspondence, and 

knowing little more than the fact of their enrollment after receiving the correspondence. 

Some claimants also continue to find confusing the 60-day limitations period for 

challenging recommended decisions, and its accompanying waiver provisions. The 

waiver provision gives claimants who are satisfied with the benefits they have been 

awarded in their recommended decisions the opportunity to forego their appeal rights, 

and not wait 60 days before receiving payment. In some cases, though, claimants agree 

with parts of the decision, but disagree with other parts -- for example, a claimant might 

agree with DEEOIC’s decision that a particular illness is covered, but disagree with 

DEEOIC’s finding that another illness is not covered. Claimants indicate that the 

standard waiver language included in recommended decisions does not make it clear how 

a claimant can accept some findings and appeal others. 

Claimants have also stated that recommended decisions and the instructions for appealing 

cannot be fully understood without assistance. These decisions sometimes include 

complicated discussions of the 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. In addition, in some cases, individuals have questioned 
27

whether DEEOIC personnel are consistently applying DEEOIC policy. For example, 

DEEOIC does not require that a physician preparing an impairment rating apportion the 

causes of an impairment of an organ between compensable and non-compensable causes. 

A legal representative drew this Office’s attention to two cases in which the FAB had 

issued remand orders requiring an apportionment. The representative’s inquiry was 

relayed to DEEOIC, and the orders were corrected soon after. 

DEEOIC’s Comments: DEEOIC states that it acknowledges that developmental letters 

and communications with claimants are areas where there is a necessity to provide 

additional training to its claims examiners and is in the process of providing such 

training. DEEOIC also indicates that it has already instructed claims examiners to 

clearly distinguish communications and decisions relating to Part E from those relating 

to Part B. Finally, with respect to concerns about the standard waiver language included 

in recommended decisions, DEEOIC states that while the language in question does 

distinguish between the box to be checked by a claimant waiving any objection to an 

entire decision and the box to be checked by a claimant waiving any objection only to 

part of a decision, DEEOIC will review the language to determine if that distinction 

could be made clearer. 

C. The Processing of Claims Has Taken and Will Take Too Much Time (57 

comments) 

A recurring concern for claimants is the amount of time it takes to process a claim. In 

particular, claimants who originally filed with the Department of Energy under Part D are 

frustrated at the years that have gone by without their claim being finally decided. While 

DEEOIC’s initial adjudication of claims increased significantly over the past year, many 

living worker claimants are still waiting for impairment ratings, wage-loss 

determinations, and the related lump-sum compensation. Some claimants and family 

members have complained that the government’s delays have, or could result in, an 

entitlement ending because of the claimant’s death. 

D. Locating Experts (26 comments) 

Some claimants have encountered problems locating physicians who are able and willing 

to provide “fully rationalized” medical opinions on causation issues (for both “covered” 

and “consequential” illnesses), impairment ratings, and wage loss, particularly in more 

rural, remote areas of the country. This frequently occurs in areas that already suffer 

from shortages of medical care providers of all types, and they also happen to be the 

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

substances were and are located. Some claimants also report that their treating physicians 

are unwilling to provide opinions, or that their physicians 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 nonetheless can be a 
28

significant financial burden for some claimants and, if the claim is disapproved, there is 

no reimbursement. 

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

district medical consultant provide an impairment rating. DEEOIC also may obtain 

expert opinions on causation and wage loss issues in some cases. However, some 

claimants believe that DEEOIC’s consultants are not objective and many claimants 

simply prefer to have a physician of their own choosing provide the opinion. Some 

claimants have also asked about the circumstances under which DEEOIC obtains and 

pays for consultant opinions, and about the evidence the consultant reviews in reaching 

conclusions. 

E. DEEOIC Personnel and Resource Centers Sometimes Provide or Use Incorrect 

(or Incomplete) Information (23 comments) 

During 2006, this Office received comments from individuals indicating that they had 

been provided with incorrect or incomplete information by a resource center or DEEOIC. 

These comments cover a variety of subjects and generally are unique to the particular 

cases involved; two examples should serve to illustrate some of the concerns expressed: 

• A living worker claimant who sought assistance from a resource center in 

submitting evidence following a hearing before the Final Adjudication Branch 

was mistakenly told that he needed to file a new claim and submit his evidence to 

the district office, because he had not claimed the illness to which the evidence 

was relevant. When notified, DEEOIC clarified that the claimant’s evidence 

should go to the FAB. 

• Accompanying a final FAB decision denying benefits is a standard FAB letter 

that provides information about the possibilities of asking the FAB for 

reconsideration or asking the DEEOIC Director to reopen the claims. Three 

individuals who received this letter asked us for assistance in understanding their 

options. As part of providing assistance to them, we noted that there is an 

additional right to judicial review under Part E of the EEOICPA statute (see 42 

U.S.C. § 7385s-6(a)), and provided the statutory information to them. The 

claimants expressed concern that the FAB’s letter had not included these judicial 

appeal rights. 

Finally, in addition to those claimants who believe they have received incorrect or 

incomplete information from DEEOIC, some claimants note that DEEOIC has used 

incorrect information in correspondence or other documents, including recommended or 

final decisions. For example, some claimants report that DEEOIC has used the wrong 

social security number or name, or has referenced the wrong DOE facility. In one case, 

DEEOIC unintentionally sent a letter intended for a survivor to a living claimant, 

upsetting both the claimant and his wife. To its credit, as soon as the error was brought to 

DEEOIC’s attention, the claimant was telephoned and an apology was made. 
29

DEEOIC’s Comments: DEEOIC has determined to respond to the concern about the 

FAB’s standard letter by changing the letter to clearly inform claimants of the right to 

judicial review of Part E decisions. 

F. Medical Benefits Issues (38 comments) 

Living worker claimants who are awarded benefits 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 any medical condition 

contracted through exposure to toxic substances at a DOE facility (a covered illness or 

condition) as well as medical benefits for any medical condition which is consequential 

to the covered condition. As with covered conditions, under DEEOIC’s regulations, 

claimants bear the burden of proving that a “consequential” condition is related to their 

covered condition. As of December 29, 2006, almost $125 million in medical benefits 

had been paid on behalf of Part B and Part E claimants. During 2006, claimants and 

other individuals made a variety of inquiries about the medical benefits available under 

EEOICPA. 

Among these inquiries were complaints about prescription drugs that had been previously 

approved and paid for as medical benefits, but which were suddenly no longer covered. 

Our understanding is that this happened because, early in 2006, DEEOIC refined its 

medical bill processing system to more accurately determine whether prescriptions are 

related to covered (or consequential) conditions. One of the biggest frustrations for 

claimants was that, following these system changes and the resulting rejection of 

pharmacy bills, the claimants were not contacted directly by their claims examiners to 

explain the changes or the reasons for the changes. They only learned of the changes 

when going to the pharmacy to pick up the medication and then discovering that the cost 

of a drug needed for treatment was no longer covered by DEEOIC. In one case, for 

example, DEEOIC had been paying for the claimant’s medications for three years before 

the system began rejecting the pharmacy bill, and notification was further delayed 

because neither DEEOIC nor the pharmacy notified the claimant when the bill was first 

rejected. He did not find out about the changes, and the need to submit additional 

medical evidence supporting payment for the prescriptions to DEEOIC, until many 

months later, when he received a collection notice for almost $1,200. 

More generally, claimants have complained to this Office about what they perceive as 

burdensome requirements to prove and reprove their consequential medical conditions. 

One claimant, for example, indicated to us that he and his physician had been asked 

repeatedly to provide justifications to the claims examiner for the treatment of 

consequential illnesses that had been previously approved and for which medical benefits 

had been paid. The claimant also provided letters from his physician expressing dismay 

at having “to answer the same questions for you time and time again.” 
30

Other claimants have contacted the Office of the Ombudsman to complain about 

difficulty with ICD-9 codes that have resulted in some treatments for a covered illness 

being covered, but other related effects of an illness not being covered. For example, 

sufferers of chronic beryllium disease have contacted this Office to say that they can use 

their medical-benefits card for general respiratory-related care, but often not for the 

systemic effects of chronic beryllium disease -- such as fatigue or severe cramping, or a 

claimant may have problems related to the long-term use of steroids, such as osteoporosis 

-- for which claimants have had difficulty getting coverage. Some claimants have noted 

having difficulty in communications with district offices over whether treatment for a 

consequential illness is covered, and whether payments that have already been made by 

claimants will be reimbursed. 

Medical benefits also include certain travel expenses, for which the claimant is 

reimbursed. Some claimants have reported difficulty in understanding how to obtain, and 

receive, approval for travel expenses. Finally, late in 2006, the Office of the Ombudsman 

began receiving complaints from claimants who had been receiving in-home 

nursing/attendant services from a firm that provides such services to claimants who are 

approved to receive care related to specific conditions. DEEOIC had been paying for 

these services for several years in some cases, and these claimants contacted the Office of 

the Ombudsman because they were receiving letters from the firm stating that services 

would be cut off because DEEOIC had stopped paying the firm’s bills. By the close of 

the workweek in which the Office of the Ombudsman began receiving calls, DEEOIC 

made it clear that, while certain issues between DEEOIC and the firm would need to be 

addressed, claimants’ services would not be discontinued. 

G. Difficulties in Obtaining Copies of Evidence from DEEOIC (13 comments) 

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

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 about what to 

request. Some claimants have commented that DEEOIC should send copies of evidence 

(as well as copies of correspondence sent by DEEOIC to claimants’ physicians) to the 

claimants routinely, rather than requiring claimants to specifically request it. In addition, 

some claimants report that they have encountered difficulties in obtaining evidence from 

DEEOIC. In these cases, either the claimant has received no response to a request, has 

received an incomplete response, and/or there has been a significant delay in sending the 

evidence to the claimant. In some cases, DEEOIC has advised claimants that the 

evidence is not available from the Department of Labor. 

For example, in one case, the facility at which the claimant worked was not classified as a 

“DOE Facility” (see discussion in Section IIIB above for background) and a claims 

examiner found the claimant ineligible for Part E benefits. The claimant challenged the 

classification, and DEEOIC reviewed evidence obtained from the claimant and other 

sources and concluded that the facility did not meet EEOICPA’s definition of a DOE 

facility. DEEOIC’s review was undertaken separately from the claimant’s appeal; a 
31

memorandum memorializing DEEOIC’s findings was provided to the claimant and 

incorporated into the claimant’s file. When the claimant requested copies of the evidence 

reviewed by DEEOIC in reaching its decision, DEEOIC advised him that the evidence in 

question belonged to the DOE and he would have to make a Freedom of Information Act 

request to DOE in order to see it. The claimant believes that, since DEEOIC considered 

the DOE evidence in reaching its decision that he is not covered by Part E, he has a right 

to expect DEEOIC to provide him with the evidence. Similar issues raised by claimants 

include access to the evidence underlying DEEOIC’s findings in Bulletin No. 06-10, 

discussed in Section IVB above), and access to the names and credentials of district 

medical consultants providing opinions in individual cases. 

H. Miscellaneous Inquiries and Comments (795 comments) 

During 2006, the Office of the Ombudsman also received inquiries or comments of 

various types which are not reflected in the above categories. The vast majority of these 

inquiries involved requests for information about Part E of EEOICPA (602) and claim 

status requests (116). Of the remainder, the most significant fall into the following 

categories: 

• Inquiries about the Impact of EEOICPA Benefits on Other Government 

Benefits/Taxability of EEOICPA Benefits (20 comments): Some individuals 

contacted this Office during 2006 to ask whether EEOICPA benefits are taxed 

under Federal and/or State law; to ask about coordination between EEOICPA and 

state workers’ compensation; or to ask whether an award of EEOICPA benefits 

will affect their benefits under Medicare, Medicaid, Social Security Disability, or 

similar programs. 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 (for example, benefits are clearly exempt from 

Federal income tax under Section 7385e (42 U.S.C. § 7385e)) and we have begun 

to bring these issues to the attention of the other Federal agencies involved. 

• Inquiries about Office of the Ombudsman (15 comments): Fifteen individuals 

contacted this Office during 2006 to comment on the Office’s 2005 Annual 

Report; to ask about the responsibilities of the Office of the Ombudsman; or to 

ask whether the Office will be continued past its statutory sunset date of October 

2007. 

• Accuracy of Site Profiles and Site Exposure Matrices (8 comments): Site profiles 

are documents developed by NIOSH, to assist health physicists in completing 

dose reconstructions, which are required under both Part B and Part E (by 

DEEOIC’s regulation) for radiogenic cancers. SEM, discussed earlier in this 

report, is a database developed by DEEOIC, which compiles information from a 

variety of sources, including DOE, former worker medical survey programs, and 

epidemiological studies about the particular toxic substances present at particular 
32

DOE facilities. Claimants have contacted the Office of the Ombudsman to 

express their reservations about the accuracy of both site profiles and SEM. A 

former worker who attended a meeting held by DEEOIC about SEM, for 

example, indicated that it did not appear to him that DEEOIC was listening 

closely to the input they received from former workers at the meeting. 

DEEOIC Comments: DEEOIC states that it has contracted for complete 

transcripts of these meetings and that these transcripts are reviewed as 

information from the meetings is added to SEM. 

• Wage-Loss Issues (5 comments): Several individuals contacted us 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. 

• Resource Center/District Office Staffing Issues (5 comments): 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). 

During 2006, the Office of the Ombudsman did receive two comments suggesting 

that one resource center may be understaffed for the territory it serves. We also 

have received one similar comment about the staffing of one district office. We 

will be taking a closer look at these points and discussing them with DEEOIC 

during 2007. In addition, a few commenters have expressed dissatisfaction with 

the services provided by a few of the resource centers. 

• Requests for Extensions of Time (4 comments): Several individuals contacted 

this Office to ask whether it is possible to obtain extensions of time to submit 

evidence to DEEOIC or NIOSH, or to report difficulties encountered in obtaining 

extensions. 

• Power of Attorney (3 comments): Two children of a surviving spouse claimant 

contacted us to complain that DEEOIC, after accepting a power of attorney and 

treating one of the children as representative of the parent while Part B and E 

claims were being processed (that is, since 2002), had concluded that review of 

the power of attorney by the Office of the Solicitor (SOL) was required before the 

daughter’s signature on a payment transfer form (Form EN-20) could be accepted 

and payment made. Unfortunately, the surviving spouse claimant died while the 

document was under review, and no compensation could be paid because of the 

statute’s requirement that claimants be “living” at the time of payment; the 

children themselves did not meet the law’s eligibility requirements for survivor 

claimants. (See also discussion in Sections IIIA and IIID above.) Although legal 

review is required by DEEOIC’s policies, this review apparently is not required 

until the very end of the claims process, when payment is to be made. Because 

the statute’s limits on payment and DEEOIC policies combined to deny payment 

of benefits which the family believes were long overdue, the timing of the legal 
33

review exacerbated the frustration felt by the children. This same issue has arisen 

in at least one other case which has been brought to our attention. 

DEEOIC Comments: DEEOIC states that legal review of powers of attorney is 

required by the EEOICPA regulation at 20 C.F.R. § 30.600(c)(2). DEEOIC also 

states that, while legal review of powers of attorney is undertaken at the end of 

the claims process, DEEOIC and SOL policy is to expedite both adjudication of 

the case and review of any power of attorney in any case where it is informed that 

a claimant may be nearing death. DEEOIC and SOL will continue to attempt to 

identify all cases in which processing must be expedited because of imminent 

death of the claimant. 

• Congressional Hearings/Legislative Issues (8 comments): Eight claimants 

contacted this Office during 2006 to express concern about the Office of 

Management and Budget “Passback Memo” that surfaced in the press; about the 

2006 hearings held by the House Committee on the Judiciary, Subcommittee on 

Immigration, Border Security, and Claims; and about various other legislative 

issues. 

• Inquiries about RECA-EEOICPA Coordination (9 comments): Section 5 RECA 

claimants are entitled to Part B and E EEOICPA benefits as well. Other (nonSection 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 RECA Section 5 and non-Section 5 claimants who want a better 

understanding of their options. 

 

VI. Assessment of Common Difficulties and Conclusion

Congress has directed that the Annual Report contain “an assessment of the most 

common difficulties encountered by claimants and potential claimants under Part E.” See 

42 U.S.C.§ 738s-15(e)(2)(B). In addition, the legislative history to Part E provides that 

“[t]he conferees also expect the Ombudsman to make recommendations the Ombudsman 

considers appropriate for the improvement of the practices of DOL in administering 

subtitle E of EEOICPA.” Ronald W. Reagan National Defense Authorization Act for 

Fiscal Year 2005 Conference Report to accompany H.R. 4200, H.R. Rep. No. 108-767 

(2004). The assessment required by Congress, as well as recommendations to improve 

the administration of Part E, as required by the conferees, follows. 

All of the comments and concerns discussed in this report have been communicated by 

telephone, telefax, e-mails and letters to this Office, as well as in personal conversations 

the Office staff have had with claimants at meetings. A common thread in these 

comments is general confusion regarding a complex statutory program. This Office 

would encourage the administrators of the EEOICPA program to continue their outreach 

efforts and invite them to participate in our outreach efforts in the coming year. 
34

This Office would 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, about the reasons underlying decisions DEEOIC is 

making that have widespread impact. Similarly, routinely providing copies of evidence 

developed (and correspondence sent to physicians or others) by DEEOIC 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. This Office 

would also recommend that DEEOIC promptly notify affected claimants when changes 

in medical benefits coverage take place and explain the reasons for those changes -- 

particularly claimants who need specific medications or medical treatments. 

Over the past year, the Office of the Ombudsman has regularly met and consulted with 

DEEOIC’s staff in order to address the complaints, grievances and requests for assistance 

received by this Office. These meetings and consultations have been fruitful. Between 

now and October 28, 2007, when the statutory authority for this Office will sunset (see 42 

U.S.C. § 7385s-15(g)), our Office looks forward to continuing to work cooperatively and 

collegially with the Program Agency, within the bounds of our independence, to improve 

the delivery of services to Part E claimants, in the timely and uniform manner envisioned 

by Congress. 
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APPENDIX

Compilation of Comments by Subject/Issue by the Office of the Ombudsman

from January 1, 2006 through December 31, 2006

STATUTORY ISSUES (91 comments) 

Limitations on Survivor Eligibility 52 comments 

Definition of a Covered DOE Facility 11 comments 

The Statutory Provisions Governing Special Exposure Cohorts 

 Result in Disparity 11 comments 

Qualified Claimant’s Death Prior to Award May 

 Nullify Claim or Reduce Compensation 6 comments 

Miscellaneous Inquiries and Comments 11 comments 

REGULATORY, POLICY AND PROCEDURAL ISSUES (160 comments) 

Difficulties Retrieving Employment, Exposure and Medical Records 64 comments 

Difficulties in Proving Causation Issues 65 comments 

Regulatory Restrictions on Challenges to Dose Reconstruction 16 comments 

Miscellaneous Inquiries and Comments 15 comments 

ADMINISTRATIVE OR MISCELLANOUS ISSUES (1070 comments) 

Concerns about Claimant Interactions with DEEOIC Personnel 62 comments 

Requests for Assistance in Understanding Communications 56 comments 

The Processing of Claims Has Taken and Will Take Too Much Time 57 comments 

Locating Experts 26 comments 

DEEOIC Personnel and Resource Centers Sometimes 

 Provide or Use Incorrect or Incomplete Information 23 comments 

Medical Benefits Issues 38 comments 

Difficulties in Obtaining Copies of Evidence from DEEOIC 13 comments 

Miscellaneous Inquiries and Comments 795 comments 

TOTAL 1,321 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.