Points discussed at the CHE meeting on Compensation Bill

NOTE:David Michaels is pressuring Congress to pass the Administration's proposed legislation and that it will be introduced into Congress on May 3, 2000! Please call Libby Wood (in Senator Thompson's office) at 202/224-4999 and tell her in person that the proposal is unacceptable! Also, call your other representatives.

Two of the most important things are that:

1. DOE MUST NOT be in charge of the compensation
2. We need uninterrupted complete lifetime medical coverage. There are MANY more things wrong with the draft.

Points discussed at the CHE meeting and compiled by Jackie Kittrell:
 
(Authors Note: I want to share credit for authorship with the folks at the meeting (around 20-25) who brainstormed the points, including Mike Knapp, who took the one-line points off the butcher-block paper and put them in an email for me to work with- JK.)


1. Participatory process to establish clinical research which is care-driven with benefits for those most directly affected.

- This is described in more detail in the description sent to Thompson and others by AEHSP and ORHL, drafted with assistance from CHE, SCORE, and CBH. In essence, we want to have funded a planning process for meaningful and community-based health research which will involve the impacted communities as well as physicians, nurses, public health professionals, medical researchers in appropriate specialties, social scientists, and others. The benefit to the government is present, because by investigating the patients, with ethical informed consent and full participation, more could be learned about the course of the illnesses, the etiology of the illnesses, and then it could be applied broadly.

2. Doctors who are not afraid.

- Doctors face a dilemma when their insurance payor is also the self-insured dominant employer, and when the physicians they rely on for expertise in occupational medicine, toxicology of chemicals as well as all radio-isotopes and radiation exposures are the company doctors of that same employer. Many of the sick workers have experienced going to their doctor for help and being told there is nothing to be done, or that to acknowledge worker and community health problems stemming from the DOE plants will in turn put the economy at risk. Doctors are resistant to taking on these complex cases, not only because of their worries about speaking out, but because of the time it takes to investigate and manage these complex cases without any specialists referral network or overall knowledge of how the cases should be managed.

- Many things are needed to relieve this problem. A relatively simple effort would be doctor-patient "teach-ins" where physicians and patients can learn how to investigate these cases: appropriate testing (what is and isn't available); how to find specialists who can and will help; how to deal with insurance (which for the most part is self-insured contractor insurance, either health coverage from an active/retired employee or long term benefits coverage on a disabled worker or Tenn-care benefits from someone on SSDI.

3. Unlimited health benefits for sick workers as long as they live, including medication, hospitalization, referral to appropriate specialists.

- This is a need which in turn ties in to how complex these diseases are and how the costs are unpredictable and not conducive to an arbitrary capped amount. There should be a commitment to quality medical management of these complex cases, which in turn can shed light broadly.

4. Clinical facility dedicated to evaluation, diagnosis and medical management of sick workers, with ability to call in needed specialities.

- The affected communities in Oak Ridge have been calling for an environmental and/or occupational health clinic to be built in the area. A facility such as this would more efficiently house the clinics, labs, and research tools needed for clinical research.

5. Wage replacement

- Wage replacement needs to be at a higher rate than is currently available under workers compensation law in Tennessee. It should at least be as high as FECA allows. (Although it seems one of the fears of the DOL is that this program not look so good that it makes FECA look bad.)

6. The benefits should not be taxable, even though in part they represent wage replacement.

- Usually, benefits or awards or settlements which represent a replacement for employment wages are taxed as such. Yet, "compensation" for illnesses caused by work are not taxable. There needs to be care taken that the benefits awarded to workers are not taxable, even though they may include a calculation for lost wages or pension.

7. Lost pension benefits

- We may assume that the benefits paid out to the family members of a deceased worker would represent in part the lost benefit of their pension. When workers pay into a pension program, and then the benefit is lost because of the workers death early in retirement, there needs to be a provision such that the pension benefits can go to the widow/heirs and so it does not go back into the contractor coffers. (There is an issue related to this which was investigated by the DOE IG a year or so ago, showing that there was an indication that contractors were being unjustly enriched by this reversion of pension benefits. It was not explicitly linked to the number of ill workers who retire and die quickly.) If investigated and audited, this may prove to be a source of funds for the occupational illness program.

8. Make sure that families of deceased workers can keep compensation and not have it taken from them - There is an issue that may relate specifically to the Oak Ridge contractor's practice of demanding a pay-back to their short and long term disability fund whenever a worker has first been categorized as disabled, and then (usually because of being laid off while on disability and losing benefits) files for workers compensation. If the worker settles or wins his/her comp award, the worker is required to pay back the contractor's long term disability fund and/or any Social Security Disability Insurance awards. Many workers are concerned that if they do receive any benefits under the currently proposed legislation, they will have to pay it back. (Ann Orrick has been told this by MetLife, the LMES disability insurance administrator.)

9. Choice of lump sum payment, especially for deceased workers - Many times it will make more sense for the surviving family to receive a lump sum payment. This is true almost across the board if the worker is deceased when the claim is made. As well, some sick workers may want to exercise this option. On the other hand, some thought should be given to whether the benefit, which would be reportable, if not taxable income, would interfere with the family's existing benefits (e.g., Tenncare)

10. Lessen burden of proof on workers - Workers need to have little or no burden to establish their claim that:

1. they were exposed to toxic or radioactive substances and

2. They were medically harmed.

The question will always be "What does the medical science show?" in terms of what diseases and symptoms are connected to various exposures. Currently, the DOE proposal relies on science done by scientists and doctors who have held the opinion for decades that radiation at "low levels" is close to harmless and also do not take into account the industrial setting where more toxicants than radiation were present. In order to create a list of presumptive diseases–-called the Radio-epidemiologic Risk Tables and which only include cancers–the scientists have relied on the long term follow-up of the atomic bomb survivors. There is a problem with this approach, since the atomic bomb survivor data (called the LSS or Life Span Study) has many credibility problems, including the kind of exposures, who was left out, how the dose was reconstructed, the quality of follow-up of the population.

It is important to note that there are at least three presumptive disease lists in use in compensation laws governing the rights of those exposed to government radiation: Marshall Island list (30+ diseases); RECA list (13 diseases); Veterans Administration list (more than RECA, less than Marshalls).

11. A medical decision process which allows for continual addition to presumptive list of workplace maladies - There needs to be a way that diseases, newly discovered to be caused by the DOE workplace, can be placed on a presumptive disease list without needing to go back to Congress for an amendment.

12. An appeal process if turned down for benefits - This is an important due process concern, as well as adding credibility to the final decision. This is captured well in Ed Slavin's testimony, using the Black Lung model and Longshoremen's model.

13. Cherry pick from all relevant laws - do not give up rights to sue until remedy is accepted.

14. Removal of sovereign immunity, The Federal Tort Claims Act, and other relevent statutory and court-made laws (like the so-called Feres doctrine), disallow recovery of damages by those persons intentionally harmed by government policies, created and implemented to protect "national security", e.g., not to warn people of known danger; to knowingly expose people to harmful levels of radiation and chemicals; to monitor those so exposed without telling them of the results, and in fact reassuring them that all is well.

15. Independent environmental testing of the workplace - If independent monitoring and testing and labwork could be done, with oversight and design of workplans by affected community groups, it would yield credible exposure data and therefore exposure standards which are health-driven and truly protective.

16. Independent monitoring of DOE rather than being allowed to "self-regulate" - There is good information collected on this topic by CHE members (Joe Carson, David Hackett, Glenn Bell, are three who come to mind.) DOE had been completely self-regulating since its inception (MED, AEC, ERDA), until 1984 when a federal court held that its Oak Ridge Operations must abide by RCRA. Soon after, DOE entered into MOUs with many states and the EPA wherein it agreed to be monitored and regulated by outside agencies in certain conditions but not all conditions (for instance, airborn radionuclides are not regulated under the Clean Air Act). Likewise, OSHA has no jurisdiction over DOE workplace health and safety. Currently, there is policy debate about whether to allow NRC to regulate DOE operations. We also see, at a place like ETTP which is being "privatized" and leased out to private businesses which in turn are given a choice to be regulated by the Tennessee Department of Environment and Conservation (TDEC) or by DOE. All of the lessees choose DOE because of the lower standards and lack of compliance oversight.

17. A compensation package for family members and community residents, based on exposure and illnesses caused by both workers in the family bringing home contamination and also based on off-site exposures or risk of exposure from downwind, downstream, sediment, vegetation, etc. - There is a desperate need, nationally, for a comprehensive and fair program to address victims of DOE operations whose health has been impaired or whose loved ones have died, from whatever kind of DOE/DOD operations: uranium mining, nuclear testing (both continental and Pacific), exposure while in the military, clinical human experimentation of all sorts, contractor and DOE workers exposure, communities who are neighbors or otherwise in the risk pathway of the DOE operations. The next step to take after the workers comp legislation is secured is to begin the same process with "downwinders." (As in, we're all downwinders.) Currently on the Hill is legislation to reform the Radiation Exposure Compensation Act (RECA), passed in 1990 to assist some downwinders and miners (in specific geographic areas of the West). The reforms would add piecemeal more downwinders but it is in no way comprehensive, just as the DOE-proposed workers comp initiative is not comprehensive. Communities whose health is affected by DOE operations see this as the federal government using "divide and conquer" tactics on vulnerable, sick populations


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