Letter to David Michaels from Michael H. JacksonApril 17, 2000
David M. Michaels
U.S. Department of Energy
Assistant Secretary for Environment, Safety and Health
Forrestal Building EH-1
1000 Independence Avenue, S.W.
Washington, DC 20585Dr. Michaels,
The current announcement by Secretary Richardson as well as previous announcements claim to call for legislation to compensate thousands of sick workers. In reality all legislation proposed so far takes away existing rights workers legally have and rewards those who were responsible for providing the conditions that led to the medical conditions that DOE claims to want to compensate workers for. This statement is most damaging to DOEs credibility in that it legislates further harm to the very workers that they claim to want to help and it demonstrates that accountability within DOE and government really doesn't exist. Further it sends a loud and clear message to DOE contractors to conduct business as usual, get your jobs done quick so you make us look good, and if any of your workers get sick it's OK. We may slap your hands a little bit but we'll make sure you can't be sued so you can continue with your work unhindered. This attitude has continued for decades and must stop now.
Further, the previous legislation has been written with threats of blackmail. "We'll give you $100,000.00 but you waive your rights to medical treatment and the ability to sue DOE, it's contractors or suppliers. We'll pay your medical bills but you waive your rights to any cash settlement and the ability to sue DOE, it's contractors or suppliers. And by the way what ever you choose is irrevocable so if you get sicker then you thought and took the $100,000.00, too bad, go crawl in a hole and die just leave us (DOE) and their contractors alone, you were adequately compensated. And by the way if you were successful in getting any settlement or additional benefits through lawsuits or existing Workman's Compensation claims then we'll reduce the benefits that we'll give you by those amounts. When you've paid us back then we'll take care of you, maybe if we feel like it. And by the way we're downsizing all of our facilities so the quicker we get rid of all of you the fewer benefits we'll have to pay you in the future. We're sorry that you can't get insurance, that you may not be able to pay your normal bills because you may not be able to get a decent job because of your condition, we don't care that you want to spend what time you have left with family and friends. We're going to retrain you so you can continue to work, work, work so we don't have to pay, pay, pay."
If it sounds to you as if I m bitter, then you=re right. So far this year I've been in the emergency room twice, once transported by Paramedics for breathing problems, I've had bronchitis, pneumonia, haven't been able to talk clearly for the last three and a half months, I've been on oxygen, have required approximately $1500.00 worth of medications to recover enough to enable me to go to work and that doesn't include hospital, doctor, and ambulance bills. I watched my mother die this January of respiratory problems and came to realization that will be me and many of my friends one of these days. Maybe sooner then we all want. And regardless of the results of the proposed legislation these events will continue to occur because there is no cure for the Chronic Beryllium Disease that I have as a result of working for my country at Rocky Flats in Golden, Colorado. And now it appears that our country, led by DOE, wants to do it to us all over again. If you don't like what I have to say then that's too bad, you'll just have to live with it. I do but you can turn your back on it at it'll all go away. Me and those like me can't, not ever. All I can ask is that you do what you can to make things a little easier, not only for me but for my friends and those who will follow.
If the DOE and Congress is serious in wanting to truly compensate those harmed as a result of their work for their country then all of the following must be included in this legislation or DOE policy. The term DOE is generic and may apply also to Contractors and Suppliers.
1.) A Cash Settlement as well as additional benefits outlined in this proposal. 1. Upon inclusion into the benefits program the individual would be paid not less than $200,000.00 non-taxable. Not one or the other as previously proposed.
2.) 100% medical coverage for disease related conditions or treatments. a.) Choice of doctors and hospitals b.) Paid travel expenses for patient and a traveling companion/spouse. c.) Issuance of an insurance card that can be presented at the time of treatment with no pre approvals or co-pay required. Bills are handled between the Doctors, Hospitals or Clinics and DOE directly and the patient would not have to be involved in this process at all except to present their card to the providers at the time of treatment. d.) Approval for inclusion into the benefits program would be based on the diagnosis of the attending physician. Example: If Dr. Newman from National Jewish diagnoses someone with CBD or Beryllium Sensitization then that individual qualifies for benefits period. Review by a panel of experts would be unnecessary and a waste of money unless it is the intent of DOE to hire the doctors that the insurance companies have historically hired to fight our cases and fight these claims also. If that is the case then we loose one more existing legal right which is a hearing by an independent judge to settle the case. I can tell you that at least in Colorado the doctors hired by insurance companies have not been well received by our judges.
3.) Retirement Benefits a.) Either a Disability Retirement or a Cold War Veteran Retirement upon termination from a DOE facility which is not dependant on age, years of service, or disability. Retirement pay would be in addition to any other benefits received and would be non-taxable. If an individual chooses to work at another job then they would continue to receive retirement payments just like military retires. Example; DOE facilities have been infested with Nuclear Navy people. Many receive retirement benefits and pay far exceeding most workers existing salaries. They then are allowed to displace existing DOE contractor employees. They are in effect double dippers, receiving retirement pay and current wages an benefits. We should be allowed to do the same. Additionally if someone chooses to retire they should not be required to seek additional employment. This is intended to allow the individual to be able to enjoy, if possible, what time they may have left. If retirement is taken then lost wage benefits would not apply unless the individual obtains another job. In that case if an individual can not go to work due to an occupational related illnesses lost wage benefits would apply. When that individual decides to revert bact to retirement alone then the lost wage benefits would cease. b.) Pay would be more than normal retirement that Union or Non-Union workers would receive normally have received and be taxable. In other wards it would be enough to live on when included with the cash settlement in 1.) above. c.) Full medical coverage for non-disease related conditions for the individual and their family. d.) Paid life insurance at least in the amount of the individuals highest salary. e.) A precedent to this would be Miliary Retirement which has and continues to be funded by the US Government.
4.) Job preference at existing DOE facilities. a.) Those individuals who choose to remain at a DOE facility could not be subject to layoff. Of course if someone abuses this benefit by refusing or not performing their job then this protection would not apply. b.) This benefit would satisfy the job retraining sections of the legislation as well as maintenance of medical, dental, insurance, vacation. c.) This also would relieve the fear of losing existing employment and benefits making for happier and more productive employees. d.) It is well documented that stresses such as the fear of loss of jobs and insurance can lead to an acceleration of the disease process there by unnecessarily creating additional harm to already diseased individuals.
5.) The right to Sue DOE, Contractors, and Suppliers. a.) If the DOE and Congress is willing to provide the benefits previously stated then it would be reasonable to waive the right to sue DOE or the Government. I think we all know that if DOE were not to cowardly hide behind the discretionary function rule that the courts would probably award at a minimum what has been previously listed and probably more. If you don't believe this then waive the discretionary function rule and I'll meet you in court. Do you have the guts to try? b.) Waiver of the right to sue Contractors and Supplies must not be a part of this legislation. In fact this should be illegal. All parties who can be proved to be responsible for our conditions must be able to be held accountable. Even if DOE pays their legal fees that still doesn't excuse others for their part in these incidents. Especially given that many in industry have played leading roles in research related to the health effects of at least Beryllium and may or may not have withheld important information that may have prevented our illnesses. We have the right to have our day in court and DOE and Congress has no right to interfere with this process. This is also rights we have under existing State Worker's Compensation law. Again a right you want to deny us. c.) If protecting Contractors is allowed to stand in this legislation then all existing cases filed before enactment of this legislation should be grand fathered and allowed to precede. Many of the cases have been ongoing in excess of three years and it would be an unfair financial burden on the individual to be blackmailed into dropping these cases. d.) If these suits are successful then we would also be eligible for all benefits under this legislation and awards would not be subject to claim by DOE or the Government. After all we were those with the courage and determination to bring these issues into the public eye and without these suits and the publicity this legislation would not even have been proposed. e.) If immunity for Contractors and Suppliers is allowed in the legislation then DOE should also have to pay all of our legal fees accrued up to the time we choose to be included into these benefits. This is the only way that DOE and Congress could save face and at least enter into this legislations benefits package with a friendly and cooperative atmosphere instead of creating further hostilities which would only further harm DOE and us. f.) Additionally if Contractors and Suppliers are allowed to have immunity they, not DOE or the Government should have to provide the same benefits to their employees as DOE at they're cost and if DOE pays for all benefits then DOE and the Government must have the right to lay claim against these contractors and suppliers to recover their costs. Also Contractors and suppliers that continue to provide conditions that cause further disease of their employees should be barred from government contracts until those conditions are corrected. Other penalties may also apply.
6.) Claims against benefits received as a result of this legislation. a.) No benefits wold not be subject to taxation by the IRS. b.) No claims can be made against the benefits received by insurance companies who have already paid benefits for the same illnesses. In other wards if any settlements have already been received or medical expenses paid then those insurance companies can not try to recover their costs. After all DOE already paid them when the Worker's Compensation Insurance Premiums were paid. Again if they were allowed to recover their costs this would be rewarding the very companies who have been fighting and delaying legitimate claims for medical treatment and benefits.
7.) Additional unanswered issues that need to be addressed. a.) Definition of disability and the condition in which lost wages would be paid. In my opinion a diagnosis of the disease alone should qualify us for benefits regardless of symptoms. If the AMA Guides to the Evaluation of Permanent Impairment are used then even some of the most severe cases of disease would not qualify for benefits. A ploy that insurance companies use against us now and all of the treating doctors hate. b.) The bill needs to be carefully and clearly written so that it can be administered fairly regardless of the administration in power at the time. References to FECA should be removed and the bill should state what is and isn't allowed. c.) The time limit of 20 to 22 years must be removed. Remember that the latency period for Chronic Beryllium Disease is currently between 5 and 17 years and I know of cases that exceeded 40 years. To set a time limit would deny many people equal rights under this legislation. Some of the 18 year-olds that are just now starting work and who may someday comedown with any of these diseases should also be allowed benefits under this legislation. It should also be understood by Congress that existing DOE Orders, CFRs, OSHA Regulations, and ACGIH guidelines will not prevent the occurrence of Chronic Beryllium Disease and many other conditions that this legislation is intended to address. All of these Organizations and Industry knows this. The only way to eliminate these diseases or conditions is to eliminate the exposures, not reduce the exposures. This can be done with technologies that have been in existence for over forty years and with substitutes some of which have already been developed decades ago by the DOE. Most if not all of the diseases and conditions that this legislation addresses can be and were preventable but National Security, production, and money was given priority over human life. If DOE, Government, and Industry would have and would in the future do their part then legislation of this type would not be necessary. This legislation should not only be a way to right wrongs of the past but also to penalize those that committed those wrongs.
The above proposals are not all inclusive. Much of what was written into existing proposals is OK. My intent was to address issues that I and many that I know believe should be included in this legislation in order to truly say that this "Proposal is to Compensate Thousands of Sick Workers". I also believe that what I've addressed in this letter must be addressed in the legislation and is non-negotiable. It also doesn't mean that more benefits should not be included and others may have additional issues that I haven't addressed especially when it comes to Radiation related conditions.
Remember that this legislation is not only being watched by those intimately involved but also by the entire world. The Clinton Administration and Congress has the opportunity to not only right the wrongs of the past but also to lead in the elimination of the conditions that have led to the need for this type of legislation. You can be part of the solution or continue to be part of the problem. Someday you may have to look your family members in the eye and explain what your part was in all of this. What are you going to tell them? What if it was one of them in our position? What can you live with for the rest of your lives.?
Michael H. Jackson
The Beryllium Support Group
P.O. Box 2021
Broomfield, CO 80038-2021
Voice and Fax (303) 412-7065
http://www.beryllium.org
webmaster@beryllium.org