Please contact me during regular business hours at 801-468-2655 if you have any
questions or require additional information.

Sincerely

Craig W. Anderson


If, in the absence of actual records, dose reconstruction is relied on to make a claim
determination, the survivor/claimant should be given an opportunity and the necessary
resources to make an independent technical review and evaluation of the dose
reconstruction. The process of dose reconstruction requires a level of technical
knowledge and skills exceeding the ability of most, if not all, survivor/claimants. Section
3631 of EEOICPA requires that claimants be provided with the necessary assistance to
develop facts pertinent to a claim.

The dose reconstruction process includes an interview process which may require the
survivor/claimant to assemble personnel records, exposure records and medical records.
Although a survivor/claimant will have some personal information’ regarding the
deceased employee, she may not have medical records before the final illness. During
the 1950s and 1960s, most employees were not given copies of exposure and medical
records. Survivor/claimants may not have documentation regarding illness, injuries or
medical conditions during the period of employment. No process exists for
survivor/claimants to develop full occupational histories, medical records or exposure
records. Section 3631 of EEOICPA requires that claimants be provided with necessary
assistance to develop facts pertinent to a claim.

The employee’s personal medical records during the period of employment may be
no longer available due to the passage of time, lapse of records retention periods, or the
death of a treating physician during the period of employment. A survivor/claimant may
be required to assemble personnel records, exposure records and medical records through
Freedom of Information Act (FOIA) requests to DOE. The survivor/claimant cannot,
however, obtain information directly from a contractor without initiating legal action to
facilitate discovery because FOIA does not apply to a corporate entity.

The process in the proposed dose reconstruction rule does not provide the
survivor/claimant with any resources, assistance or support to:

1. identify any relevant information on medical history;

2. confirm or supplement radiation information and medical treatment and
monitoring;

3. differentiate between external and internal exposures and exposure
sources;

The survivor/claimant must be given meaningful assistance in compiling medical
information during the period of employment or the “reconstruction” effort will be
incomplete, insufficient and unfair. Because the rule on the determination of the
probability of causation is dependent on dose reconstruction, it is deficient for the same
reasons.

7 Date of birth, social security number diagnosis of final illness, date of death, certificate of death , etc.



Miller, Diane M.

From: Craig Anderson [craiga@xmission.com]
Sent: Sunday, November 04, 2001 9:58 PM
To: niocindocket@cdc.gov

Subject: Probability of Causation

Probability.doc

To Whom It May Concern: Comments on the probability of causation rule are
attached.


Craig W. Anderson
1826 Hubbard Avenue
Salt Lake City, Utah 84108

NIOSH Docket Office

Robert A. Taft Laboratories M/S C34
4676 Columbia Parkway

Cincinnati, Ohio 45226

Anne O’Connor

CDC Assistant Reports Clearance Officer
1600 Clifton Road, MS-D24

Atlanta, Georgia 30333

November 4, 2001

Re: Comments — Probability of Causation, 42 CFR Part 81 Federal Register Vol.
66, No. 194, October 5, 2001

To Whom It May Concern:

The purpose of this letter is to comment on the proposal implementing provisions
of the Energy Employees Occupational IIness Compensation Program Act (EEOICPA).!
The proposed rule establishes methods for determining whether an individual with cancer
can be found, “at least as likely as not,” to have sustained the disease from exposure to
ionizing radiation while employed at a Department of Energy (DOE) facility. The
following comments are intended to address the generic question raised in the October 5,
2001, Federal Register notice, to wit:

(2) Does the proposal appropriately adapt compensation policy as it has been applied
for the compensation of veterans with radiation exposure from atomic bonbs to
compensation policy for radiation exposed nuclear weapons production workers?

I The following general comments address the process in Section 81.10 to assess
the likelihood of disease caused by exposure to radiation.

The risk models used by the Department of Veterans Affairs to estimate the
probability of causation are not analogous to occupational exposures. The data used by
the Department of Veterans Affairs to make compensation decisions for veterans with
cancer was based on exposure to radiation from atomic weapons detonations.”

Public Law 106-398

? The data relied on by the Department of Veterans Affairs was based on cancer related deaths occurring
among Japanese atomic bomb survivors from World War II. Federal Register, October 5, 2001, page
50968.


Without addressing the inherent medical and statistical variations, from the
layman’s point of view, exposure from an atomic explosion is significantly different than
radiation exposure in the workplace. The most apparent differences are as follows: (1) A
blast results in a single concentrated burst of radioactivity. A workplace exposure is
more likely to vary in intensity and type over the period of employment. (2) A blast
results in an external exposure to radiation, whereas a workplace exposure may be
external, internal or both. Internal exposures may result from the ingestion, inhalation or
absorption of radioactive materials in the work environment. (3) Occupational exposures
to radiation continue over the period of employment, whereas the exposure to multiple
detonations is unlikely.

The probability of causation guidelines state that changes will be made to adapt
the Department of Veterans Affairs risk models to meet the needs of the Department of
Labor. It is unclear how or when the models will be changed. Does this mean that
claims will be evaluated on a variable “standard?” If claims are evaluated on a variable
standard, the process is arbitrary and capricious.

I. Probability of causation determinations depend on the dose reconstruction process

The process described in Section 81.6 to estimate the probability of causation requires
the use of the dose reconstruction estimates prepared by the National Institute of
Occupational Health and Safety (NIOSH).? Dose reconstruction should not be used,
however, when the employer’ was required to maintain exposure records. Dose
reconstruction should not be used to impute doses when actual exposure records are now
missing or incomplete.

If DOE, DOE’s predecssors (AEC) or a contractor failed to maintain radiation
exposure records or cannot now produce the records, ° the burden of proof on the actual
level of exposure should shift from the claimant to DOE. This is reasonable because
exposure records were required at the time and only DOE has privity of contract to
compel the contractors to produce records. This is particularly important because the
exposures are likely to be higher in the 1950s and 1960s, the period for which the records
are missing or incomplete.°

* See, EEOICPA Section 3623(d) and “Methods of Dose Reconstruction, Federal Register, October 5,
2001, page 50978.

* Atomic Energy Commission, Department of Energy, or contractor.

5 The testimony elicited at site based public meetings includes numerous accounts of incidents when
employees were directed to remove film badges, dosimeters and other monitoring badges when performing
certain tasks. INEEL meeting on July 31, 2001. The document archives establish that DOE was aware of
the deficiencies in the record keeping of exposures. Also, releases from accidents such as the SL-1 incident
establish catastrophic exposures of indefinite duration which could not be monitored with available
instruments and were not documented. Furthermore, interviews contained in the Human Radiation
Experiments Documents archive establish numerous incidents of undocumented exposures, incomplete
record keeping by contractors and the military.

© The comments to the interim rule acknowledge that in the early years, records were primarily maintained
for research on the health effects of exposure to radiation. Federal Register, Vol. 66, No. 194, page 50979.