Energy Employees Compensation
Case-Processing Bottlenecks Delay Payment of Claims Gao ID: GAO-04-249T November 21, 2003The Department of Energy (Energy) and its predecessor agencies and contractors have employed thousands of workers in the nuclear weapons production complex. Some employees were exposed to toxic substances, including radioactive and hazardous materials, during this work and many subsequently developed illnesses. Subtitle D of the Energy Employees Occupational Illness Compensation Program Act of 2000 allows Energy to help its contractor employees file state workers' compensation claims for illnesses determined by a panel of physicians to be caused by exposure to toxic substances in the course of employment at an Energy facility. Energy began accepting applications under this program in July 2001, but did not begin processing them until its final regulations became effective on September 13, 2002. The Congress mandated that GAO study the effectiveness of the benefit program under Subtitle D of this Act. This testimony is based on GAO's ongoing work on this issue and focuses on three key areas: (1) the number, status, and characteristics of claims filed with Energy; (2) the extent to which there will be a "willing payer" of workers' compensation benefits, that is, an insurer who--by order from, or agreement with, Energy--will not contest these claims; and (3) the extent to which Energy policies and procedures help employees file timely claims for these state benefits.
As of June 30, 2003, Energy had completely processed only about 6 percent of the nearly 19,000 cases it had received. More than three-quarters of all cases were associated with facilities in nine states. Processing had not begun on over half of the cases and, of the remaining 40 percent of cases that were in processing, almost all were in the initial case development stage. While the majority of cases (86 percent) associated with major Energy facilities in nine states potentially have a willing payer of workers' compensation benefits, actual compensation is not certain. This figure is based primarily on the method of workers' compensation coverage used by Energy contractor employers and is not an estimate of the number of cases that will ultimately be paid. Since no claimants to date have received compensation as a result of their cases filed with Energy, there is no actual experience about how contractors and state programs treat such claims. Claimants have been delayed in filing for state worker's compensation benefits because of two bottlenecks in Energy's claims process. First, the case development process has not always produced sufficient cases to allow the panels of physicians who determine whether the worker's illness was caused by exposure to toxic substances to operate at full capacity. While additional resources may allow Energy to move sufficient cases through its case development process, the physician panel process will continue to be a second, more important, bottleneck. The number of panels, constrained by the scarcity of physicians qualified to serve on panels, will limit Energy's capacity to decide cases more quickly, using its current procedures. Energy officials are exploring ways that the panel process could be made more efficient.
GAO-04-249T, Energy Employees Compensation: Case-Processing Bottlenecks Delay Payment of Claims
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Testimony:
Before the Committee on Energy and Natural Resources, U.S. Senate:
United States General Accounting Office:
GAO:
For Release on Delivery Expected at 9:30 a.m. EST:
Friday, November 21, 2003:
Energy Employees Compensation:
Case-Processing Bottlenecks Delay Payment of Claims:
Statement of Robert E. Robertson, Director, Education, Workforce, and
Income Security Issues:
GAO-04-249T:
GAO Highlights:
Highlights of GAO-04-249T, testimony before the Committee on Energy
and Natural Resources, U.S. Senate
Why GAO Did This Study:
The Department of Energy (Energy) and its predecessor agencies and
contractors have employed thousands of workers in the nuclear weapons
production complex. Some employees were exposed to toxic substances,
including radioactive and hazardous materials, during this work and
many subsequently developed illnesses. Subtitle D of the Energy
Employees Occupational Illness Compensation Program Act of 2000 allows
Energy to help its contractor employees file state workers‘
compensation claims for illnesses determined by a panel of physicians
to be caused by exposure to toxic substances in the course of
employment at an Energy facility. Energy began accepting applications
under this program in July 2001, but did not begin processing them
until its final regulations became effective on September 13, 2002.
The Congress mandated that GAO study the effectiveness of the benefit
program under Subtitle D of this Act. This testimony is based on GAO‘s
ongoing work on this issue and focuses on three key areas: (1) the
number, status, and characteristics of claims filed with Energy; (2)
the extent to which there will be a ’willing payer“ of workers‘
compensation benefits, that is, an insurer who–by order from, or
agreement with, Energy– will not contest these claims; and (3) the
extent to which Energy policies and procedures help employees file
timely claims for these state benefits.
What GAO Found:
As of June 30, 2003, Energy had completely processed only about 6
percent of the nearly 19,000 cases it had received. More than three-
quarters of all cases were associated with facilities in nine states.
Processing had not begun on over half of the cases and, of the
remaining 40 percent of cases that were in processing, almost all were
in the initial case development stage, as illustrated below.
While the majority of cases (86 percent) associated with major Energy
facilities in nine states potentially have a willing payer of workers‘
compensation benefits, actual compensation is not certain. This figure
is based primarily on the method of workers‘ compensation coverage
used by Energy contractor employers and is not an estimate of the
number of cases that will ultimately be paid. Since no claimants to
date have received compensation as a result of their cases filed with
Energy, there is no actual experience about how contractors and state
programs treat such claims.
Claimants have been delayed in filing for state worker‘s compensation
benefits because of two bottlenecks in Energy‘s claims process. First,
the case development process has not always produced sufficient cases
to allow the panels of physicians who determine whether the worker‘s
illness was caused by exposure to toxic substances to operate at full
capacity. While additional resources may allow Energy to move
sufficient cases through its case development process, the physician
panel process will continue to be a second, more important, bottleneck. The number of panels, constrained by the scarcity of physicians qualified to serve on panels, will limit Energy‘s capacity to decide cases more quickly, using its current procedures. Energy officials are exploring ways that the panel process could be made more efficient.
www.gao.gov/cgi-bin/getrpt?GAO-04-249T.
To view the full product, including the scope and methodology, click
on the link above. For more information, contact Robert E. Robertson
at (202) 512-7215 or robertsonr@gao.gov.
[End of section]
Mr. Chairman and Members of the Committee:
I am pleased to be here today to discuss our work regarding the
effectiveness of the benefit program under Subtitle D of the Energy
Employees Occupational Illness Compensation Program Act of 2000
(EEOICPA) in assisting contractor employees in obtaining compensation
for occupational illnesses. Congress mandated that we study this issue
and report to the Senate Committees on Energy and Natural Resources and
Appropriations and the House Committees on Energy and Commerce and
Appropriations.
For the last several decades, the Department of Energy (Energy) and its
predecessor agencies and contractors have employed thousands of
individuals in secret and dangerous work in the nuclear weapons
production complex. Over the years, employees were unknowingly exposed
to toxic substances, including radioactive and hazardous materials, and
studies have shown that many of these employees subsequently developed
illnesses. The Energy Employees Occupational Illness Compensation
Program provides for compensation to these employees who developed
occupational illnesses and, where applicable, to their survivors.
Congressional Committees, as well as individual Members of Congress,
claimants, and advocates have raised concerns regarding Energy's
processing of claims and the availability of benefits once claims have
been decided.
As title XXXVI of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001, which was signed into law on October 30,
2000, this legislation has two major components. Subtitle B provides
eligible workers who were exposed to radiation or other toxic
substances and who subsequently developed illnesses such as cancer and
lung disease a onetime payment of up to $150,000 and covers future
medical expenses related to the illness. The Department of Labor
administers these benefits, payable from a compensation fund
established by the same legislation. Subtitle D allows Energy to help
its contractor employees file state workers' compensation claims for
illnesses determined by a panel of physicians to be caused by exposure
to toxic substances in the course of employment at an Energy facility.
The legislation did not set aside funding for payment of benefits under
Subtitle D.
My testimony today reflects our ongoing review of the effectiveness of
Energy's implementation of Subtitle D. We focused our work on three key
areas: (1) the number, status, and characteristics of claims filed with
Energy; (2) the extent to which there will be a "willing payer" of
workers' compensation benefits; that is, an insurer who--by order from,
or agreement with, Energy--will not contest these claims; and (3) the
extent to which Energy policies and procedures help employees file
timely claims for state workers' compensation benefits.
In summary, as of June 30, 2003, Energy had fully processed about 6
percent of the nearly 19,000 cases received, and more than three-
quarters of all cases were associated with facilities in nine states.
Energy had not begun processing over half of the cases received. While
some other case characteristics can be determined, such as illness
claimed, systems limitations prevent reporting on other case
characteristics, such as the reasons for ineligibility or basic
demographics. While the majority of cases (86 percent) associated with
major Energy facilities in nine states potentially have a willing payer
of workers' compensation benefits, actual compensation is not certain.
In certain states such as Ohio and Iowa, there are likely to be many
cases that lack willing payers, and in some instances may be less
likely to receive compensation than a comparable case with a willing
payer in a different state. The 86 percent figure reflects the number
of cases for which contractors and their insurers are likely to not
contest a workers' compensation claim, rather than the number of cases
that will ultimately be paid. For all claimants, actual compensation is
not certain because of additional factors such as variations in state
workers' compensation programs or contractors' uncertainty on how to
compute the benefit. Claims for workers' compensation have been delayed
by two bottlenecks in Energy's claims process. First, Energy's case
development process has not always produced sufficient cases to keep
physician panels operating at full capacity. While additional resources
may allow Energy to move a sufficient number of cases through its case
development process, the physician panel process will continue to be a
second and more important bottleneck. The number of panels, constrained
by the scarcity of physicians qualified to serve on panels, will limit
Energy's capacity to decide cases more quickly, using its current
procedures. Energy officials are exploring ways that the panel process
could be made more efficient.
To perform our review, we analyzed data extracted from Energy's
Subtitle D case management system for applications filed through June
30, 2003.[Footnote 1] We also reviewed the provisions of, and
interviewed officials with, the workers' compensation programs in nine
states accounting for more than three-quarters of Subtitle D cases
filed, and we interviewed the contractors operating the major
facilities in these states. In addition, we conducted site visits to
three Energy facilities in Oak Ridge, Tennessee, the state with
facilities accounting for the largest number of Subtitle D claims. We
also interviewed key program officials and other experts. We conducted
our review from April 2003 through October 2003 in accordance with
generally accepted government auditing standards.
Background:
Energy oversees a nationwide network of 40 contractor-operated
industrial sites and research laboratories that have historically
employed more than 600,000 workers in the production and testing of
nuclear weapons. In implementing EEOICPA, the President acknowledged
that it had been Energy's past policy to encourage and assist its
contractors in opposing workers' claims for state workers' compensation
benefits based on illnesses said to be caused by exposure to toxic
substances at Energy facilities.[Footnote 2] Under the new law, workers
or their survivors could apply for assistance from Energy in pursuing
state workers' compensation benefits, and if they received a positive
determination from Energy, the agency would direct its contractors to
not contest the workers' compensation claims or awards. Energy's rules
to implement the new program became effective in September 2002, and
the agency began to process the applications it had been accepting
since July 2001, when the law took effect.
Energy's claims process has several steps, as shown in figure 1. First,
claimants file applications and provide all available medical evidence.
Energy then develops the claims by requesting records of employment,
medical treatment, and exposure to toxic substances from the Energy
facilities at which the workers were employed. If Energy determines
that the worker was not employed by one of its facilities or did not
have an illness that could be caused by exposure to toxic substances,
the agency finds the claimant ineligible. For all others, once
development is complete, a panel of three physicians reviews the case
and decides whether exposure to a toxic substance during employment at
an Energy facility was at least as likely as not to have caused,
contributed to, or aggravated the claimed medical condition. The panel
physicians are appointed by the National Institute for Occupational
Safety and Health (NIOSH) but paid by Energy for this work. Claimants
receiving positive determinations are advised that they may wish to
file claims for state workers' compensation benefits. Claimants found
ineligible or receiving negative determinations may appeal to Energy's
Office of Hearings and Appeals.
Figure 1: Energy's Claims Process:
[See PDF for image]
[End of figure]
Each of the 50 states and the District of Columbia has its own workers'
compensation program to provide benefits to workers who are injured on
the job or contract a work-related illness. Benefits include medical
treatment and cash payments that partially replace lost wages.
Collectively, these state programs paid more than $46 billion in cash
and medical benefits in 2001. In general, employers finance workers'
compensation programs. Depending on state law, employers finance these
programs through one of three methods: (1) they pay insurance premiums
to a private insurance carrier, (2) they contribute to a state workers'
compensation fund, or (3) they set funds aside for this purpose as
self-insurance. Although state workers' compensation laws were enacted
in part as an attempt to avoid litigation over workplace accidents, the
workers' compensation process is still generally adversarial, with
employers and their insurers tending to challenge aspects of claims
that they consider not valid.
State workers' compensation programs vary as to the level of benefits,
length of payments, and time limits for filing. For example, in 1999,
the maximum weekly benefit for a total disability in New Mexico was
less than $400, while in Iowa it was approximately $950. In addition,
in Idaho, the weekly benefit for total disability would be reduced
after 52 weeks, while in Iowa benefits would continue at the original
rate for the duration of the disability. Further, in Tennessee, a claim
must be filed within 1 year of the beginning of incapacity or death.
However, in Kentucky a claim must be filed within 3 years of exposure
to most substances, but within 20 years of exposure to radiation or
asbestos.
Energy Has Fully Processed Few Cases, and Systems Limitations
Complicate Program Management:
As of June 30, 2003, Energy had completely processed about 6 percent of
the nearly 19,000 cases that had been filed, and the majority of all
cases filed were associated with facilities in nine states. Forty
percent of cases were in processing, but more than 50 percent remained
unprocessed. While some case characteristics can be determined, such as
illness claimed, systems limitations prevent reporting on other case
characteristics, such as the reasons for ineligibility or basic
demographics.
About 6 Percent of Cases Have Been Fully Processed:
During the first 2 years of the program, ending June 30 2003, Energy
had fully processed about 6 percent of the nearly 19,000 claims it
received. The majority of these claims had been found ineligible
because of either a lack of employment at an eligible facility or an
illness related to toxic exposure. Of the cases that had been fully
processed, 42 cases--less than one-third of 1 percent of the nearly
19,000 cases filed--had a final determination from a physician panel.
More than two-thirds of these determinations (30 cases) were positive.
At the time of our study, Energy had not yet begun processing more than
half of the cases, and an additional 40 percent of cases were in
processing (see fig. 2). The majority of cases being processed were in
the case development stage, where Energy requests information from the
facility at which the claimant was employed. Less than 1 percent of
cases in process were ready for physician panel review, and an
additional 1 percent were undergoing panel review.
Figure 2: Case Status as of June 30, 2003:
[See PDF for image]
[End of figure]
A majority of cases were filed early during program implementation, but
new cases continue to be filed. Nearly two-thirds of cases were filed
within the first year of the program, between July 2001 and June 2002.
However, in the second year of the program--between July 2002 and June
30, 2003--Energy continued to receive more than 500 cases per month.
Energy officials report that they currently receive approximately 100
new cases per week.
Energy Facilities in Nine States Account for More than 75 percent of
Cases:
While cases filed are associated with facilities in 38 states or
territories, the majority of cases are associated with Energy
facilities in nine states (see fig. 3).[Footnote 3] Facilities in
Colorado, Idaho, Iowa, Kentucky, New Mexico, Ohio, South Carolina,
Tennessee, and Washington account for more than 75 percent of cases
received by June 30, 2003. The largest group of cases is associated
with facilities in Tennessee.
Figure 3: Distribution of Cases by Employee's Last Energy Facility
Worked:
[See PDF for image]
Note: Facility information is missing or unknown for 1,577 cases.
[End of figure]
Workers filed the majority of cases, and cancer is the most frequently
reported illness. Workers filed about 60 percent of cases, and
survivors of deceased workers filed about 36 percent of cases. In about
1 percent of cases, a worker filed a claim that was subsequently taken
up by a survivor. Cancer is the illness reported in more than half of
the cases. Diseases affecting the lungs accounted for an additional 14
percent of cases. Specifically, chronic beryllium disease is reported
in 1 percent of cases, and beryllium sensitivity, which may develop
into chronic beryllium disease, is reported in an additional 5 percent.
About 7 percent of cases reported asbestosis, and less than 1 percent
claimed silicosis.
Systems Limitations Complicate Program Management:
Systems limitations prevent Energy officials from aggregating certain
information important for program management. For example, the case
management system does not collect information on the reasons that
claimants had been declared ineligible or whether claimants have
appealed decisions. Systematic tracking of the reasons for
ineligibility would make it possible to identify other cases affected
by appeal decisions that result in policy changes. While Energy
officials report that during the major systems changes that occurred in
July 2003, fields were added to the system to track appeals
information, no information is yet available regarding ineligibility
decisions. In addition, basic demographic data such as age and gender
of claimants are not available. Gender information was not collected
for the majority of cases. Further, insufficient edit controls--for
example, error checking that would prevent claimants' dates of birth
from being entered if the date was in the future--prevent accurate
reporting on claimants' ages.
Insufficient strategic planning regarding data collection and tracking
have made it difficult for Energy officials to completely track case
progress and determine whether they are meeting the goals they have
established for case processing. For example, Energy established a goal
of completing case development within 120 days of case assignment to a
case manager. However, the data system developed by contractors to aid
in case management was developed without detailed specifications from
Energy and did not originally collect sufficient information to track
Energy's progress in meeting this 120-day goal. Furthermore, status
tracking has been complicated by changes to the system and failure to
consistently update status as cases progress. While Energy reports that
changes made as of July 2003 should allow for improved tracking of case
status, it is unclear whether these changes will be applied
retroactively to status data already in the system. If they are not,
Energy will still lack complete data regarding case-processing
milestones achieved prior to these changes.
While a Majority of Cases Potentially Have a Willing Payer, Actual
Compensation Is Not Certain:
Our analysis shows that a majority of cases associated with major
Energy facilities in nine states[Footnote 4] will potentially have a
willing payer of workers' compensation benefits. This finding reflects
the number of cases for which contractors and their insurers are likely
to not contest a workers' compensation claim, rather than the number of
cases that will ultimately be paid. The contractors considered to be
willing payers are those that have an order from, or agreement with,
Energy to not contest claims. However, there are likely to be many
claimants who will not have a willing payer in certain states, such as
Ohio and Iowa. For all claimants, additional factors such as state
workers' compensation provisions or contractors' uncertainty on how to
compute the benefit may affect whether or how much compensation is
paid.
A Majority of Cases in Nine States Potentially Have a Willing Payer:
A majority of cases in nine states will potentially have a willing
payer of workers' compensation benefits, assuming that for all cases
there has been a positive physician panel determination and the
claimant can demonstrate a loss from the worker's illness that has not
previously been compensated. Specifically, based on our analysis of
workers' compensation programs and the different types of workers'
compensation coverage used by the major contractors, it appears that
approximately 86 percent of these cases will potentially have a willing
payer--that is, contractors and their insurers who will not contest the
claims for benefits. It was necessary to assume that all cases filed
would receive a positive determination by a physician panel because
sufficient data are not available to project the outcomes of the
physician panel process. More specifically, there are indications that
the few cases that have received determinations from physician panels
may not be representative of all cases filed, and sufficient details on
workers' medical conditions were not available to enable us to
independently judge the potential outcomes. In addition, we assumed
that all workers experienced a loss that was not previously compensated
because sufficient data were not available to enable us to make more
detailed projections on this issue.
As shown in table 1, most of the contractors for the major facilities
in these states are self-insured, which enables Energy to direct them
to not contest claims that receive a positive medical
determination.[Footnote 5] In addition, the contractor in Colorado,
which is not self-insured but has a commercial policy, took the
initiative to enter into an agreement with Energy to not contest
claims. The contractor viewed this action as being in its best interest
to help the program run smoothly. However, it is unclear whether the
arrangement will be effective because no cases in Colorado have yet
received compensation. In such situations where there is a willing
payer, the contractor's action to pay the compensation consistent with
Energy's order to not contest a claim will override state workers'
compensation provisions that might otherwise result in denial of a
claim, such as failure to file a claim within a specified period of
time. However, since no claimants to date have received compensation as
a result of their cases filed with Energy, there is no actual
experience about how contractors and state workers' compensation
programs treat such cases.
About 14 percent of cases in the nine states we analyzed may not have a
willing payer. Therefore, in some instances these cases may be less
likely to receive compensation than a comparable case for which there
is a willing payer, unless the claimant is able to overcome challenges
to the claim. Specifically, these cases that lack willing payers
involve contractors that (1) have a commercial insurance policy, (2)
use a state fund to pay workers' compensation claims, or (3) do not
have a current contract with Energy. In each of these situations,
Energy maintains that it lacks the authority to make or enforce an
order to not contest claims. For instance, an Ohio Bureau of Workers'
Compensation official said that the state would not automatically
approve a case, but would evaluate each workers' compensation case
carefully to ensure that it was valid and thereby protect its state
fund.
Table 1: Extent to Which Cases in Nine States Will Potentially Have
Willing Payers:
[See PDF for image]
Source: GAO analysis of Energy data and interviews with current
contractors.
Note: The table includes the cases from the facilities in these states
with the largest number of cases filed but does not include the
remaining 721 cases (5 percent) from other facilities in these states.
[A] While an Energy contractor previously operated the Paducah Gaseous
Diffusion Plant, the plant is currently operated by a private entity
that leases the facility. In addition, an Energy contractor is
currently performing environmental cleanup at the facility. We split
the cases filed for the Paducah facility evenly between the current
operator and the cleanup contractor, based on discussions with the
cleanup contractor.
[End of table]
Concerns about the extent to which there will be willing payers of
benefits have led to various proposals for addressing this issue. For
example, the state of Ohio proposed that Energy designate the state as
a contractor to provide a mechanism for reimbursing the state for
paying the workers' compensation claims. However, Energy rejected this
proposal on the ground that EEOICPA does not authorize the agency to
establish such an arrangement. In a more wide-ranging proposal,
legislation introduced in this Congress[Footnote 6] proposes to
establish Subtitle D as a federal program with uniform benefits
administered by the Department of Labor.
Multiple Factors Make Compensation Not Certain:
In contrast to Subtitle B provisions that provide for a uniform federal
benefit that is not affected by the degree of disability, various
factors may affect whether a Subtitle D claimant is paid under the
state workers' compensation program or how much compensation will be
paid. Beyond the differences in the state programs that may result in
varying amounts and length of payments, these factors include the
demonstration of a loss resulting from the illness and contractors'
uncertainty on how to compute compensation.
Even with a positive determination from a physician panel and a willing
payer, claimants who cannot demonstrate a loss, such as loss of wages
or medical expenses, may not qualify for compensation. On the other
hand, claimants with positive determinations but not a willing payer
may still qualify for compensation under the state program if they show
a loss and can overcome all challenges to the claim raised by the
employer or the insurer.
Contractors' uncertainty on how to compute compensation may also cause
variation in whether or how much a claimant will receive in
compensation. While contractors with self-insurance told us that they
plan to comply with Energy's directives to not contest cases with
positive determinations, some contractors were unclear about how to
actually determine the amount of compensation that a claimant will
receive. For example, one contractor raised a concern that no guidance
exists to inform contractors about whether they can negotiate the
degree of disability, a factor that could affect the amount of the
workers' compensation benefit. Other contractors will likely experience
similar situations, as Energy has not issued guidance on how to
consistently compute compensation amounts.
While not directly affecting compensation amounts, a related issue
involves how contractors will be reimbursed for claims they pay. Energy
uses several different types of contracts to carry out its mission,
such as operations or cleanup, and these different types of contracts
affect how workers' compensation claims will be paid. For example, a
contractor responsible for managing and operating an Energy facility
was told to pay the workers' compensation claims from its operating
budget. The contractor said that this procedure may compromise its
ability to conduct its primary responsibilities. On the other hand, a
contractor cleaning up an Energy facility was told by Energy officials
that its workers' compensation claims would be reimbursed under its
contract, and therefore paying claims would not affect its ability to
perform cleanup of the site.
Bottlenecks in Energy's Claims Process Delay Filing of Workers'
Compensation Claims:
As a result of Energy's policies and procedures for processing claims,
claimants have experienced lengthy delays in receiving the
determinations they need to file workers' compensation claims. In
particular, the number of cases developed during initial case
processing has not always been sufficient to allow the physician panels
to operate at full capacity. Moreover, even if these panels were
operating at full capacity, the small pool of physicians qualified to
serve on the panels would limit the agency's ability to produce more
timely determinations. Energy has recently allocated more funds for
staffing for case processing, but it is still exploring methods for
improving the efficiency of its physician panel process.
Sufficient Cases Have Not Always Been Available for Physician Panel
Review:
Energy's case development process has not consistently produced enough
cases to ensure that the physician panels are functioning at full
capacity. To make efficient use of physician panel resources, it is
important to ensure that a sufficient supply of cases is ready for
physician panel review. Energy officials established a goal of
completing the development on 100 cases per week by August 2003 to keep
the panels fully engaged. However, as of September 2003, Energy
officials stated that the agency was completing development of only
about 40 cases a week. Further, while agency officials indicated that
they typically assigned 3 cases at a time to be reviewed within 30
days, several panel physicians indicated that they received fewer
cases, some receiving a total of only 7 or 8 during their first year as
a panelist.
Energy was slow to implement its case development operation. Initially,
agency officials did not have a plan to hire a specific number of
employees for case development, but they expected to hire additional
staff as they were needed. When Energy first began developing cases, in
the fall of 2002, the case development process had a staff of about 14
case managers and assistants. With modest staffing increases, the
program quickly outgrew the office space used for this function. Though
Energy officials acknowledged the need for more personnel by spring
2003, they delayed hiring until additional space could be secured, in
August. As of August 2003, Energy had more than tripled the number of
employees dedicated to case development to about 50, and Energy
officials believe that they will now be able to achieve their goal of
completing development of 100 cases a week that will be ready for
physician panel review. Energy officials cited a substantial increase
in the number of cases ready for physician panel review during October
2003, and reported preparing more than a hundred cases for panel review
in the first week of November 2003.
Energy shifted nearly $10 million from other Energy accounts into this
program in fiscal year 2003, and plans to shift an additional $33
million into the program in fiscal year 2004, to quadruple its case-
processing operation. With additional resources, Energy plans to
complete the development of all pending cases as quickly as possible
and have them ready for the physician panels. However, this would
create a large backlog of cases awaiting review by physician panels.
Because most claims filed so far are from workers whose medical
conditions are likely to change over time, creation of such a backlog
could further slow the decision process by making it necessary to
update medical records before panel review.
The Ability to Produce More Timely Decisions May Be Limited by the
Small Pool of Qualified Physicians and Gaps in Information They Need to
Quickly Decide Cases:
Even if additional resources allow Energy to speed initial case
development, the limited pool of qualified physicians[Footnote 7] for
panels will likely prevent significant improvements in processing time.
Currently, approximately 100 physicians are assigned to panels of 3
physicians. In an effort to improve overall processing time, Energy has
requested that NIOSH appoint an additional 500 physicians to staff the
panels. NIOSH has indicated that the pool of physicians with the
appropriate credentials and experience (including those already
appointed) may be limited to about 200. Even if Energy were able to
increase the number of panel physicians to 200, with each panel
reviewing 3 cases a month, the panels would not be able to review more
than 200 cases in any 30-day period, given current procedures. Thus,
even with double the number of physicians currently serving on panels,
it could take more than 7 years to process all cases pending as of June
30, 2003, without consideration of the hundreds of new cases the agency
is receiving each month.[Footnote 8]
Energy officials are exploring ways that the panel process could be
made more efficient. For example, the agency is currently planning to
establish permanent physician panels in Washington, DC. Physicians who
are willing to serve full-time for a 2-or 3-week period would staff
these panels. In addition, the agency is considering reducing the
number of physicians serving on each panel--for example, initially
using one physician to review a case, assigning a second physician only
if the first reaches a negative determination, and assigning a third
physician if needed to break a tie. Energy staff are currently
evaluating whether such a change would require a change in their
regulations.
Agency officials have also recommended additional sources from which
NIOSH might recruit qualified physicians and are exploring other
potential sources. For example, the physicians in the military services
might be used on a part-time basis. In addition, physicians from the
Public Health Service serve on temporary full-time details as panel
physicians.
Panel physicians have also suggested methods to Energy for improving
the efficiency of the panels. For example, some physicians have stated
that more complete profiles of the types and locations of specific
toxic substances at each facility would speed their ability to decide
cases. In addition, one panel physician told us that one of the cases
he reviewed received a negative determination because specific
documentation of toxic substances at the worker's location was lacking.
While Energy officials reported that they have completed facility
overviews for about half the major sites, specific data are available
for only a few sites. Agency officials said that the scarcity of
records related to toxic substances and a lack of sufficient resources
constrain their ability to pursue building-by-building profiles for
each facility.
Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions you or other Members of the Committee may have
at this time.
Contacts and Acknowledgments:
For information regarding this testimony, please contact Robert E.
Robertson, Director, or Andrew Sherrill, Assistant Director, Education,
Workforce, and Income Security, at (202) 512-7215. Individuals making
contributions to this testimony include Amy E. Buck, Melinda L.
Cordero, Beverly Crawford, Patrick DiBattista, Corinna A. Nicolaou,
Mary Nugent, and Rosemary Torres Lerma.
FOOTNOTES
[1] We collected data as of this date to enable us to assess the
reliability of Energy's data by (1) performing electronic testing for
obvious errors in accuracy and completeness, (2) reviewing available
documentation, and (3) interviewing agency officials and contractors
knowledgeable about the data. We determined that the data elements used
were sufficiently reliable for our purposes.
[2] Executive Order 13179 of December 7, 2000.
[3] See Energy's Web site at: http://tis.eh.doe.gov/advocacy/
index.html for more information on the current distribution of cases
across facilities and states.
[4] The cases in these nine states represent more than three-quarters
of the cases filed nationwide. The results of our analysis cannot
necessarily be applied to the remaining 25 percent of the cases filed
nationwide.
[5] EEOICPA allows Energy, to the extent permitted by law, to direct
its contractors not to contest such workers' compensation claims. In
addition, Energy's regulations prohibit the inclusion of the costs of
contesting such claims as allowable costs under its contracts with the
contractors; however, the costs incurred as the result of a workers'
compensation award are allowed as reimbursable costs to the full extent
permitted under the contracts.
[6] H.R. 1758, sponsored by Representative Ted Strickland, was
introduced on April 10, 2003.
[7] The criteria NIOSH uses to evaluate qualifications for appointing
physicians to these panels include: (1) board certification in a
primary discipline; (2) knowledge of occupational medicine; (3) minimum
of 5 years of relevant clinical practice following residency; and (4)
reputation for good medical judgment, impartiality, and efficiency.
[8] This 7-year estimate assumes that none of the pending cases would
be determined ineligible on the basis of non-covered employment or
illnesses because we did not possess a sufficient basis for projecting
the number of additional cases that would be determined ineligible in
the future.
