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Holding the Government Accountable

Persistent Deficiencies in Compensation for Nuclear Workers

The Government Accountability Office (GAO) recently released a report highlighting progress, but also problems, in the implementation of a program that compensates Department of Energy (DOE) workers who became sick as a result of producing and testing nuclear weapons. According to the GAO, the program, entitled the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), “is working satisfactorily, but persistent deficiencies remain.” Specifically, the GAO highlighted that “decisions sometimes contained inaccurate, conflicting, or incomplete information, such as listing the wrong medical condition.” Furthermore, these decisions were not always properly reviewed, resulting in “claimant confusion and delays in adjudication.”

EEOICPA was designed to compensate the DOE workers (or their survivors) and to cover their medical expenses. Enacted in 2000, it came decades after the workers were exposed to toxic and radioactive materials. As the GAO report explains:

For many decades, the Department of Energy … employed thousands of individuals in potentially secretive and dangerous work associated with nuclear weapons production. Due to the nature of their work, workers may not have been properly advised of or protected from workplace hazards… many of these individuals subsequently developed serious illnesses.

This turned out to be a rather large number of people, and the contractor hired by the DOE to administer the program was doing an awful job of it. Three years after the law passed, only 42 claims out of nearly 19,000 had made it all the way through the process and received a determination from the physicians’ panel. The program was ineffective and completely unhelpful to the survivors whose medical bills had been stacking up. It was then that the Project On Government Oversight joined the fight to get the problematic portion of the program moved from the DOE to the Department of Labor (DOL). Despite significant lobbying on the contractor’s part, responsibility for the payments was transferred to the DOL.

Under the DOL, the program was resuscitated and it finally began processing claims and making payments. Although its performance was relatively slow, it was still real progress. The GAO report indicates that since it was transferred, the program has mostly gotten back on track, with over 33,000 payments made since 2004, the total value of which is approximately $3.6 billion.

But “back on track” doesn’t mean it isn’t a bumpy ride. The GAO reports that the DOL has acknowledged challenges in establishing toxic substance exposure, determining causation, and verifying employment from “as far back as the early 1940s.” Other issues, including listing the wrong medical condition in correspondence, were also admitted to, although according to DOL officials, those errors are due to carelessness on the part of the claims examiner and typically do not affect compensation decisions.

The DOL didn’t contest any of the findings of the GAO report. In a letter attached to the report, it states that “The recommendations described in the report will help strengthen our internal controls and ultimately allow us to better fulfill our mission…”

In an email responding to POGO’s request for comment, Terrie Barrie, founding member of the Alliance of Nuclear Worker Advocacy Groups, expressed concern that the sheer volume of errors made it likely that some claimants had been wrongly denied compensation:

GAO found that 10% of the claims they reviewed had errors—some that did not change the result of the decision…But if you take that 10% and apply it to the total number of claims filed for those years, that is 2500 claims with mistakes! Some of which, I'm sure, would affect the ultimate outcome of the claim.

As for future improvements to the program, Barrie addressed the need for DOL to not only consider evidence provided by claimants, but also discuss and clearly explain the reasons when the evidence does not support approving a claim. In addition, Barrie emphasized the importance of the Advisory Board on Toxic Substances and Worker Health in providing oversight to the adjudication process. Authorized by Executive Order in July 2015, the board was seated last week. Barrie believes its members to be highly qualified.

The EEOICPA Ombudsman report for 2014, only recently released, provides another window into the various problems claimants have had with the program. The report raises many serious issues, including subjectivity in the weighing of evidence and seemingly convoluted rules and restrictions regarding eligibility. Some of the problems they found were:

Claimants note that when DEEOIC [Division of Energy Employees Occupational Illness Compensation] evaluates evidence to verify employment, DEEOIC generally gives less weight to affidavits prepared by family members because family member might have a financial stake in the outcome of the claim... Claimants argue that to be consistent, DEEOIC ought to similarly recognize that covered facilities often had numerous reasons, financial as well as other reasons, for not maintaining accurate safety, health and exposure records.

Some claimants noted that when it came to issues related to the payment of medical bills, they felt “caught in the middle.” It was noted that while on the one side you had a provider who wanted to be paid, and on the other side you had DEEOIC/ACS [Affiliated Computer Services] demanding adherence to procedures and policies, the claimant was often caught in the middle, sometimes going without, or drawing close to going without, necessary medical equipment or services – while each side blamed the other for the problem.

Some claimants fear that they could face retribution if they complain about inappropriate customer service... It is noted that in many instances, the possibility of interacting with DEEOIC exists for many years… Accordingly, some claimants feel that there is never a good time to file a complaint alleging rude conduct, especially when they do not know who will handle the complaint and/or how the complaint will be handled.

The GAO report reassures us that many of the workers put in harm’s way by the government are finally being taken care of, albeit imperfectly. We commend the progress that has been made, but echo the conclusion of the GAO: “Given the importance of this program, which serves so many who sacrificed for their nation, it is vital that DOL has controls in place to help ensure that compensation claims for workers and their survivors are being handled correctly.”

Note: This blog has been edited to reflect the seating of the Advisory Board on Toxic Substances and Worker Health, which occurred shortly before its publishing.