October 31, 2003 — Sick nuclear weapons plant workers may have to wait as long as seven years to get their claims for radiation–caused cancer and chronic beryllium disease processed under a federal program, according to a recent report by the General Accounting Office (The Hawk Eye, Burlington, Ohio, October 23 and 27, 2003). One major problem is that the Energy Employees Occupational Illness Compensation Program (Energy Employees Program) does not have enough doctors to process claims, the report said. Although the program began almost three years ago, more than 74 percent of claims, including those for chronic beryllium disease, have not yet been processed. Out of 19,000 claims made at 10 Department of Energy facilities across the country, only 6 percent, or 1,140 claims have been completely resolved.

The Department of Energy (DOE) and the Department of Labor are both involved in running the Energy Employees Program. Individuals who were employed by the DOE, by its contractors and subcontractors, by companies that provided beryllium to the DOE, or by an atomic weapons employer are eligible for a one–time payment of $150,000, if they suffer from chronic beryllium disease or certain cancers as the result of their jobs. Survivors receive the lump sum if the worker is deceased. The program also assists employees in applying for state workers’ compensation claims. Once the worker or the family member claims the $150,000 lump sum, he or she loses the right to a jury trial for a personal injury from radiation or beryllium exposure.

How DOE and Department of Labor Divide Beryllium Program Functions

A physician’s panel provides the DOE with its opinion as to whether the illness or death of a worker arose out of the worker’s employment by a DOE contractor and because of the worker’s beryllium exposure or contact with another toxic substance. The doctors on the panel do not perform personal medical examinations or conduct medical testing. Instead, they review documents such as the worker’s employment and exposure records, and medical history. The DOE uses the information to make a determination and assist workers in obtaining state workers’ compensation.

The Department of Labor deals mainly with the distribution of the $150,000 lump sum payment. The injured worker files a claim with a Department of Labor district office and is supposed to be assigned to a claims examiner within 30 days. The claims examiner obtains employment and medical information about the claimant from the DOE and other sources. The Department of Labor district office then makes a recommended decision, which goes to the Final Adjudication Board for review. The Final Adjudication Board issues a final decision, which may take into account the worker’s filed objections. The worker may also request an oral hearing before the decision is rendered. The final decision may be reconsidered or modified under certain conditions.

Legislators Consider Limiting DOE Role in Processing Beryllium Disease Claims

Sen. Chuck Grassley (R–IA) and Rep. Ed Whitfield believe that having the Department of Labor take over most of the Energy Employees Program will make it more efficient (Toledo Blade, October 2, 2003). They support a Senate provision in the Energy and Water Appropriations Bill to make such a transfer happen. “The need for changing agencies is immediate and urgent,” Sen. Grassley has written. “Based on DOE’s own publicly available data and the General Accounting Office’s evaluations so far, it is plain that this program is failing. ”

Sen. Grassley’s view is also supported by a nonpartisan group of Senators that includes Maria Cantwell (D–WA), Jeff Bingaman (D–NM), George Voinovich (R–OH), Jim Bunning (R–KY), Mike DeWine (R–OH), and Edward Kennedy (D–MA). However, Sens. John Breaux and Mary Landrieu of Louisiana believe that DOE input is necessary to gather records about employment and exposure. They explain that the DOE has expertise “that cannot be replicated in a timely or cost effective fashion” by the Department of Labor (Washington Post, October 21, 2003).

Other Problems with Government Program for Nuclear and Beryllium Workers

At Brayton Purcell, we feel that the Energy Employees Program is flawed, whether it is run by the DOE or solely by the Department of Labor. We have found that jury verdicts or settlements in chronic beryllium disease cases often greatly exceed $150,000, which is inadequate to compensate beryllium victims and provide good long–term care. Also, those with chronic beryllium disease who worked for agencies other than the DOE or DOE contractors may not be eligible for program benefits (see Former Beryllium Workers Discover Problems with Government Compensation Program). If you or a family member has been diagnosed with chronic beryllium disease, please feel free to contact us to learn more about your legal options. We have been involved with beryllium–related litigation since the late 1980s, and work hard to pursue the rights of beryllium victims.