AASCIF - july-august-september 2004

Several years ago, in a rare excursion into the field of workers’ compensation, Congress passed the Energy Employees Occupational Illness Compensation Program Act of 2000.

In light of the patchwork of applicable state workers’ compensation coverage available, and finding that “the policy of the U.S. Department of Energy has been to litigate occupational illness claims, which has deterred workers from filing workers’ compensation claims and has imposed major financial burdens for such employees who have sought compensation,” Congress was concerned about compensating “the civilian men and women who have performed duties uniquely related to the nuclear weapons production and testing programs of the DOE and its predecessor agencies . . . for beryllium-related health conditions and radiation-related health conditions.”

Accordingly, the EEOICPA was enacted “to provide for timely, uniform and adequate compensation of covered employees and, where applicable, survivors of such employees, suffering from illnesses incurred by such employees in the performance of duty for the DOE and certain of its contractors and subcontractors.”

The EEOICPA encompasses two separate programs: One, Subtitle B, provides for direct compensation to covered employees and/or their survivors. The other, Subtitle D, provides employees and survivors with assistance in applying for state workers’ compensation benefits. The programs have separate eligibility criteria and are administered by separate federal agencies. This article discusses Ohio’s experience with both programs—Subtitles B and D—as an illustration of how the EEOICPA impacts state workers’ compensation programs.

Subtitle B: Department of Labor
Subtitle B of the EEOICPA is administered by the U.S. Department of Labor under the terms of Executive Order 13179, issued Dec. 7, 2000. The DOL’s Office of Workers’ Compensation Programs is responsible for adjudicating and administering claims filed by employees or former employees of DOE facilities, contractors or subcontractors, or certain qualified survivors of such employees or former employees, for direct payment of compensation and medical benefits.

The primary benefits available under Subtitle B, as described on the DOL website (www.dol.gov/esa/regs/compliance/ owcp/eeoicp/ whatprogramdoes.htm), are:
Compensation of $150,000 and payment of medical expenses from the date a claim is filed is available to:

• Employees of the Department of Energy, its contractors or subcontractors with
radiation-related cancer if:

— the employee developed cancer after working at a facility of the DOE, its
contractors and subcontractors; and

   — the employee’s cancer is determined at least as likely as not related to that
   employment, or

   — the employee is determined to be a member of the Special Exposure
Cohort (employees who worked at least 250 days before Feb. 1, 1992, for
the DOE or its contractors or subcontractors at certain facilities and developed
one of certain listed cancers);

• Employees of the DOE or its contractors and subcontractors exposed to
beryllium produced or processed for the DOE who developed chronic
beryllium disease; and

• Employees of the DOE or its contractors and subcontractors who worked at
least 250 days during the mining of tunnels at underground nuclear weapons
test sites who developed chronic silicosis.

In addition, compensation of $50,000 and payment of medical expenses from the date a claim is filed is available for uranium employees who were previously awarded benefits by DOL under Section 5 of the Radiation Exposure Compensation Act; and employees of DOE, its contractors and subcontractors who were exposed to beryllium on the job and who now have beryllium sensitivity are eligible to receive medical monitoring to check for chronic beryllium disease.

DOL has adopted regulations implementing this program, describing how to file for benefits, how claims will be administered, etc., at 20 C.F.R. Part 30. DOL began processing claims on July 31, 2001.

Ohio’s experience with Subtitle B
Since the EEOICPA does not preempt state workers’ compensation laws, compensation under Subtitle B of the EEOICPA does not preclude qualified workers or their dependents from also filing for and receiving applicable state workers’ compensation benefits. Therefore, an individual may have both a valid claim under Subtitle B of the EEOICPA and a valid state workers’ compensation claim.

However, it should be noted that the burden of proof between Subtitle B of the EEOICPA and the state system may be different. For example, eligibility under the EEOICPA for compensation for radiation-related cancer is established if the cancer “was at least as likely as not related to employment” at a DOE or atomic weapons facility, and is statutorily presumed for workers within the “Special Exposure Cohort.” On the other hand, Ohio law requires that a worker prove that cancer was contracted in the course of employment by a “preponderance of the evidence,” which appears to be a higher burden.

For this reason, acceptance of a claim by the DOL under Subtitle B of the EEOICPA does not necessarily mean the state claim must also be accepted.

Also, since both Subtitle B of the EEOICPA and the state workers’ compensation system will provide coverage for medical expenses, the possibility of a conflict and/or duplicate payment by both DOL and the state payer arises. To resolve this potential conflict, DOL’s Office of Workers’ Compensation Programs and the Ohio Bureau of Workers’ Compensation have recently entered into a Memorandum of Understanding which provides in part:

“In the event an employee is entitled to medical benefits under the EEOICPA and is also qualified for a related Ohio workers’ compensation claim, [DOL] shall be the primary payer of medical benefits for the employee. As primary medical payer, [DOL] agrees to reimburse BWC for incurred medical costs and future medical costs in accordance with standard [DOL] procedures.”

The memorandum also contains several provisions which facilitate the sharing of information between BWC and DOL. Upon request, BWC will provide DOL with information on workers who may be eligible for medical benefits under EEOICPA. DOL will furnish data to BWC regarding any medical benefits paid by the federal agency to prevent duplication of payment for medical benefits. Both BWC and DOL will appoint contact persons to oversee implementation of the memorandum.

As of March 11, according to the DOL website, 2,764 claims had been filed with the DOL under Subtitle B of the EEOICPA relating to worksites within the state of Ohio, including Piketon, Brush Wellman and Fernald. For claims where a final decision has been rendered, 885 have been denied and 726 approved, of which 655 have been paid compensation and medical benefits totaling $94,774,151.

Subtitle D: Department of Energy
Subtitle D of the EEOICPA is administered by the DOE under the terms of Executive Order 13179. DOE does not directly pay compensation or medical benefits. Instead, DOE provides assistance to DOE contractor employees, their estates, or survivors in applying for state workers’ compensation benefits. It does so primarily through creating panels of occupational medicine physicians, which may review an employee’s claim and provide an opinion as to whether the employee’s illness is work-related.

As the DOE website explains, “Positive findings by physician panels are made available to accompany state workers’ compensation applications. Workers or their survivors are responsible for filing their own applications with the appropriate state workers’ compensation agency. DOE then instructs the applicants’ former employers not to contest valid applications submitted by the state workers’
compensation agencies.”

In August 2002, DOE issued rules governing the operation of these physician panels and the DOE assistance program. DOE recently published an interim final rule revision allowing for the creation of single physician panels rather than the three physician panels originally contemplated.

Ohio’s experience with Subtitle D
To implement Subtitle D, DOE has entered into Memorandums
of Understanding with a number of states, including Ohio. These memorandums are available on DOE’s website at http://tis.eh.doe.gov/advocacy/stateagreements/state_agencies.html. The memorandum between Ohio BWC and DOE provides:

• DOE will provide assistance to DOE contractor employees in filing claims under Ohio’s workers’ compensation system for illnesses caused by exposure to a toxic substance at a DOE facility in accordance with the process set forth in DOE rules at 10 CFR Part 852;

• A positive determination by a physician panel has no effect on the scope of state workers’ compensation proceedings, the conditions for compensation, or the rights and obligations of the parties. However, consistent with Subtitle D, such a determination will prevent DOE and may prevent a DOE contractor from contesting an applicant's workers' compensation claim;

• In the processing of any application for Ohio workers’ compensation or benefits filed by a current or former DOE contractor employee, BWC reserves the right to schedule the DOE contractor employee for an examination of BWC's choosing, in accordance with Ohio law; and

• In the processing of any application for Ohio workers’ compensation or benefits filed by a current or former DOE contractor employee, BWC shall consider as relevant medical evidence, but shall not be bound by, the determination of any physician panel appointed by DOE in accordance with Subtitle D.

In addition, the memorandum contains provisions relating to the sharing of information between BWC and DOE, and also provides that in the event an employee files an Ohio workers’ compensation claim concurrently with an application with the DOE, BWC may defer its decision on the compensability of the state claim until the DOE process is complete, provided the employee consents to the deferral.

The DOE website does not contain state-specific statistics as to the number of applications for DOE assistance in which the DOE process has been completed. However, as of March 12, DOE indicates it has received 23,351 applications, with 1,859 of these completed. Final decisions were sent to applicants in 366 cases, with 137 positive panel findings and 229 negative panel findings. This indicates a significant backlog. Accordingly, BWC has deferred consideration in a number of claims pending completion of the DOE process.

CONCLUSION
While the initial implementation hurdles have been cleared, much work remains to be done to ensure that this unprecedented federal-state compensation program achieves the lofty goals set forth by Congress in enacting the EEOICPA. Ohio and other affected states shall continue to partner with DOL and DOE as needed to serve these affected workers.

Author John A. Annarino can be reached at John.A.1@bwc.state.oh.us or (614) 728-4634.

The unabridged version of this article, including legal citations, is available in the Library of www.AASCIF.org under the section “AASCIF committee research reports and articles.”

EEOICPA How the Ohio fund is working with federal agencies and a new federal law to compensate injured energy employees

EEOICPA
How the Ohio fund is working with federal agencies and a new federal law to compensate injured energy employees