Energy Employees Compensation
Even with Needed Improvements in Case Processing, Program Structure May Result in Inconsistent Benefit Outcomes Gao ID: GAO-04-515 May 28, 2004Subtitle D of the Energy Employees Occupational Illness Compensation Program Act of 2000 allows the Department of Energy (Energy) to help its contractors' employees file state workers' compensation claims for illnesses determined by a panel of physicians to be caused by exposure to toxic substances while employed at an Energy facility. Congress mandated that GAO study the effectiveness of the benefit program under Subtitle D. GAO focused on four key areas: (1) the number, status, and characteristics of claims filed with Energy; (2) the extent to which Energy policies and procedures help employees file timely claims for these state benefits; (3) the extent to which there will be a "willing payer" of workers' compensation benefits, that is, an insurer that--by order from or agreement with Energy--will not contest these claims; and (4) a framework that could be used for evaluating possible options for changing the program.
During the first 2 1/2 years of the program, ending December 31, 2003, Energy had completely processed about 6 percent of the more than 23,000 cases that had been filed. Energy had begun processing nearly 35 percent of the cases, but processing had not yet begun on nearly 60 percent of the cases. Further, insufficient strategic planning and systems limitations complicate the assessment of Energy's achievement of goals related to case processing, as well as goals related to program objectives, such as the quality of the assistance provided to claimants in filing for state workers' compensation. While Energy got off to a slow start in processing cases, it is now processing enough cases that there is a backlog of cases waiting for review by a physician panel. Energy has taken some steps intended to reduce this backlog, such as reducing the number of physicians needed for some panels. Nonetheless, a shortage of qualified physicians continues to constrain the agency's capacity to decide cases more quickly. Consequently, claimants will likely continue to experience lengthy delays in receiving the determinations they need to file workers' compensation claims. In the meantime, Energy has not kept claimants sufficiently informed about the delays in the processing of their claims as well as what claimants can expect as they proceed with state workers' compensation claims. GAO estimates that more than half of the cases associated with Energy facilities in 9 states that account for more than three-quarters of all Subtitle D cases filed are likely to have a willing payer of benefits. Another quarter of the cases in these 9 states, while not technically having a willing payer, have workers' compensation coverage provided by an insurer that has stated that it will not contest these claims. However, the remaining 20 percent of the cases in these 9 states lack willing payers and are likely to be contested. This has created concerns about program equity in that many of these cases may be less likely to receive compensation. Because of data limitations, these percentages provide an order of magnitude estimate of the extent to which claimants will have willing payers. These estimates could change as better data become available or as circumstances change, such as new contractors taking over at individual facilities. The estimates are not a prediction of actual benefit outcomes for claimants. Various options are available to improve payment outcomes for the cases that receive a positive physician panel determination, but lack willing payers. While not recommending any particular option, GAO provides a framework that includes a range of issues to help the Congress assess options if it chooses to change the current program. One of these issues in particular--the federal cost implications--should be carefully considered in the context of the current and projected federal fiscal environment.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-515, Energy Employees Compensation: Even with Needed Improvements in Case Processing, Program Structure May Result in Inconsistent Benefit Outcomes
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Report to Congressional Committees:
United States General Accounting Office:
GAO:
May 2004:
Energy Employees Compensation:
Even with Needed Improvements in Case Processing, Program Structure May
Result in Inconsistent Benefit Outcomes:
GAO-04-515:
GAO Highlights:
Highlights of GAO-04-515, a report to congressional committees
Why GAO Did This Study:
Subtitle D of the Energy Employees Occupational Illness Compensation
Program Act of 2000 allows the Department of Energy (Energy) to help
its contractors‘ employees file state workers‘ compensation claims for
illnesses determined by a panel of physicians to be caused by exposure
to toxic substances while employed at an Energy facility.
Congress mandated that GAO study the effectiveness of the benefit
program under Subtitle D. GAO focused on four key areas: (1) the
number, status, and characteristics of claims filed with Energy; (2)
the extent to which Energy policies and procedures help employees file
timely claims for these state benefits; (3) the extent to which there
will be a ’willing payer“ of workers‘ compensation benefits, that is,
an insurer that”by order from or agreement with Energy”will not contest
these claims; and (4) a framework that could be used for evaluating
possible options for changing the program.
What GAO Found:
During the first 2 ½ years of the program, ending December 31, 2003,
Energy had completely processed about 6 percent of the more than 23,000
cases that had been filed. Energy had begun processing nearly 35
percent of the cases, but processing had not yet begun on nearly 60
percent of the cases. Further, insufficient strategic planning and
systems limitations complicate the assessment of Energy‘s achievement
of goals related to case processing, as well as goals related to
program objectives, such as the quality of the assistance provided to
claimants in filing for state workers‘ compensation.
While Energy got off to a slow start in processing cases, it is now
processing enough cases that there is a backlog of cases waiting for
review by a physician panel. Energy has taken some steps intended to
reduce this backlog, such as reducing the number of physicians needed
for some panels. Nonetheless, a shortage of qualified physicians
continues to constrain the agency‘s capacity to decide cases more
quickly. Consequently, claimants will likely continue to experience
lengthy delays in receiving the determinations they need to file
workers‘ compensation claims. In the meantime, Energy has not kept
claimants sufficiently informed about the delays in the processing of
their claims as well as what claimants can expect as they proceed with
state workers‘ compensation claims.
GAO estimates that more than half of the cases associated with Energy
facilities in 9 states that account for more than three-quarters of all
Subtitle D cases filed are likely to have a willing payer of benefits.
Another quarter of the cases in these 9 states, while not technically
having a willing payer, have workers‘ compensation coverage provided by
an insurer that has stated that it will not contest these claims.
However, the remaining 20 percent of the cases in these 9 states lack
willing payers and are likely to be contested. This has created
concerns about program equity in that many of these cases may be less
likely to receive compensation. Because of data limitations, these
percentages provide an order of magnitude estimate of the extent to
which claimants will have willing payers. These estimates could change
as better data become available or as circumstances change, such as new
contractors taking over at individual facilities. The estimates are not
a prediction of actual benefit outcomes for claimants.
Various options are available to improve payment outcomes for the cases
that receive a positive physician panel determination, but lack willing
payers. While not recommending any particular option, GAO provides a
framework that includes a range of issues to help the Congress assess
options if it chooses to change the current program. One of these
issues in particular”the federal cost implications”should be carefully
considered in the context of the current and projected federal fiscal
environment.
What GAO Recommends:
Energy generally agreed with GAO recommendations that the agency take
additional steps to expedite the processing of claims through its
physician panels, enhance its communications with claimants, improve
its case management data and its capabilities to aggregate these data
to address program issues, and consider developing a legislative
proposal to address the willing payer issue.
www.gao.gov/cgi-bin/getrpt?GAO-04-515.
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]
Contents:
Letter:
Results in Brief:
Background:
Energy Has Processed Few Cases, and Insufficient Strategic Planning and
Data Collection Complicate Program Management:
A Shortage of Qualified Physicians to Issue Determinations Delays
Filing of Workers' Compensation Claims and Claimants May Receive
Inadequate Information to Prepare Them to Pursue These Claims:
While Workers' Compensation Claims for a Majority of Cases Are Not
Likely to Be Contested, Actual Compensation Is Not Certain:
Several Issues Could Be Considered in Evaluating Options for Improving
the Likelihood of Willing Payers:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Comments from the Department of Energy:
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Tables:
Table 1: Extent to Which Cases Will Potentially Be Contested in 9
States:
Table 2: Framework for Evaluating Options to Change the Subtitle D
Program:
Figures:
Figure 1: Energy's Claims Process:
Figure 2: Case Status as of December 31, 2003:
Figure 3: Distribution of Cases by Employee's Last Energy Facility
Worked:
Abbreviations:
CMS: Case Management System:
EEOICPA: Energy Employees Occupational Illness Compensation Program
Act:
NIOSH: National Institute for Occupational Safety and Health:
United States General Accounting Office:
Washington, DC 20548:
May 28, 2004:
The Honorable Ted Stevens, Chairman:
The Honorable Robert C. Byrd,
Ranking Minority Member:
Committee on Appropriations:
United States Senate:
The Honorable Pete V. Domenici, Chairman:
The Honorable Jeff Bingaman, Ranking Minority Member:
Committee on Energy and Natural Resources:
United States Senate:
The Honorable C. W. Bill Young, Chairman:
The Honorable David R. Obey, Ranking Minority Member:
Committee on Appropriations:
House of Representatives:
The Honorable Joe Barton, Chairman:
The Honorable John D. Dingell, Ranking Minority Member:
Committee on Energy and Commerce:
House of Representatives:
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 exposed to toxic
substances, including radioactive and hazardous materials, and studies
have shown that many of these employees subsequently developed serious
illnesses. The Energy Employees Occupational Illness Compensation
Program Act (EEOICPA) established two programs to help secure
compensation for employees who developed occupational illnesses or for
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.
Enacted 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, with a one-time 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 while employed at an Energy facility. Individuals
may apply for and receive benefits under both programs since benefits
are not offset against each other.
In the conference report for the 2003 appropriations for Energy, the
conferees directed that we study the effectiveness of the benefit
program under Subtitle D of EEOICPA in assisting employees of Energy's
contractors in obtaining compensation for occupational illnesses. The
Chairman of the Senate Committee on Finance also requested that we
study this issue (see GAO-04-516). We focused our work on four key
areas: (1) the number, status, and characteristics of claims filed with
Energy; (2) the extent to which Energy policies and procedures help
employees file timely claims for state workers' compensation benefits;
(3) the extent to which there will be a "willing payer" of workers'
compensation benefits; that is, an insurer that--by order from, or
agreement with, Energy--will not contest these claims; and (4) a
framework that could be used for evaluating possible options for
changing the program to the extent that there may not be willing payers
of benefits.
To perform our review, we analyzed data extracted from Energy's
Subtitle D case management system for applications filed through June
30, 2003, and again through December 31, 2003. We determined that the
data we used were sufficiently reliable for our purposes by performing
electronic testing for obvious errors in accuracy and completeness,
reviewing available documentation, and interviewing agency officials
and contractors knowledgeable about the data. We also reviewed the
provisions of, and interviewed officials with, the workers'
compensation programs in 9 states, which accounted 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 April
2004 in accordance with generally accepted government auditing
standards. For a more complete explanation of our methodology, see
appendix I.
Results in Brief:
During the first 2½ years of the program, ending December 31, 2003,
Energy had fully processed about 6 percent of the more than 23,000
cases received. Most of the fully processed cases had been found
ineligible because of either a lack of employment at an eligible
facility or an illness related to toxic exposure. Less than 1 percent
of all cases had received a determination by a physician panel, a
document needed to pursue a workers' compensation claim under this
program. In addition, Energy had not begun processing nearly 60 percent
of the cases it has received. Insufficient strategic planning and
systems limitations complicate the assessment of Energy's achievement
of goals related to case processing, as well as goals related to
program objectives, such as the quality of the assistance provided to
claimants in filing for state workers' compensation.
While Energy got off to a slow start in processing cases, it is now
processing enough cases that there is a backlog of cases waiting for
review by a physician panel. Energy has taken some steps intended to
reduce this backlog, such as reducing the number of physicians needed
for some panels. Nonetheless, a shortage of qualified physicians
continues to constrain the agency's capacity to decide cases more
quickly. Consequently, claimants will likely continue to experience
lengthy delays in receiving the determinations they need to file
workers' compensation claims. In the meantime, Energy has not kept
claimants sufficiently informed about the delays in the processing of
their claims as well as what claimants can expect as they proceed with
state workers' compensation claims.
More than half of the cases associated with Energy facilities in the 9
states that account for more than three-quarters of all Subtitle D
cases filed are likely to have a willing payer of benefits. Another
quarter of the cases for these 9 states, while not technically having a
willing payer, have workers' compensation coverage provided by an
insurer that has stated that it will not contest these claims. However,
the remaining 20 percent of the cases in these 9 states lack willing
payers and are likely to be contested, which means that many of these
cases may be less likely to receive compensation. Because of data
limitations, these percentages provide an order of magnitude estimate
of the extent to which claims will have willing payers. The estimates
are not a prediction of actual benefit outcomes for claimants. Further,
these estimates could change as better data become available or as
circumstances change, such as new contractors taking over at individual
facilities. For example, the contract for environmental cleanup at a
facility in Kentucky will expire on September 30, 2004, and it is
unclear at this point how the subsequent contractor will deal with the
claims of employees of prior contractors. If the change in contractors
results in these claims being contested, our overall estimate of the
cases that are likely to be contested could increase to 33 percent. For
all claimants, actual compensation is not certain because of additional
factors such as the rules in the state workers' compensation programs
or contractors' uncertainty on how to compute the benefit.
Various options are available to improve payment outcomes for the cases
that receive a positive physician panel determination, but lack willing
payers under the current program. If it were decided that the program
should be modified, the options for changing it range from adding a
federal benefit to the existing program for cases that lack a willing
payer to designing a completely new program. Congress would need to
examine these options in terms of several issues, including the source,
method, and amount of the federal funding required to pay benefits; the
length of time needed to implement changes; the criteria for
determining who is eligible; and the equitable treatment of claimants.
In particular, the federal cost implications of these options should be
carefully considered in the context of the current and projected
federal fiscal environment.
We are making several recommendations to Energy to help improve its
effectiveness in assisting Subtitle D claimants in obtaining
compensation for occupational illnesses. Specifically, we are
recommending that Energy take additional steps to expedite the
processing of claims through its physician panels, enhance the quality
of its communications with claimants, improve the quality of its case
management data and its capabilities to aggregate these data to address
program issues, and consider developing a legislative proposal to
address the willing payer issue. In commenting on a draft of this
report, Energy indicated that the agency had already incorporated
several of our recommendations and will aggressively tackle the
remainder. However, Energy did not specifically comment on each
recommendation. In addition, Energy highlighted initiatives either
planned or underway that pertain to our recommendations. Energy's
comments are provided in appendix II.
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 1] 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. 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
where 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 contest 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. In
contrast, in Kentucky, a claim must be filed within 3 years of either
the last exposure to most substances or the onset of disease symptoms,
but within 20 years of exposure to radiation or asbestos.
EEOICPA allows Energy, to the extent permitted by law, to direct its
contractors to not contest the workers' compensation claims filed by
Subtitle D claimant who received a positive determination from a
physician panel. In addition, the statute prohibits the inclusion of
the costs of contesting such claims as allowable costs under its
contracts with the contractors; however, Energy's regulations allow the
costs incurred as the result of a workers' compensation award to be
reimbursed in the manner permitted under the contracts. The Subtitle D
program does not affect the normal operation of state workers'
compensation programs other than limiting the ability of Energy or its
contractors to contest certain claims; Energy does not have authority
to expand or contract the scope of any of these state programs. Thus,
actions taken by Energy or its contractors will not make a worker
eligible for compensation under a state workers' compensation system if
the worker is not otherwise eligible.
Energy Has Processed Few Cases, and Insufficient Strategic Planning and
Data Collection Complicate Program Management:
As of December 31, 2003, Energy had completely processed about 6
percent of the more than 23,000 cases that had been filed, and the
majority of all cases filed were associated with facilities in 9
states. Energy had begun processing on nearly 35 percent of cases, but
processing had not begun on nearly 60 percent of the cases. The
assessment of Energy's achievement of case processing goals is
complicated by systems limitations. Further, these limitations make it
difficult to assess achievement of goals related to program objectives,
such as the quality of the assistance given to claimants in filing for
state workers' compensation.
About 6 Percent of Cases Have Been Fully Processed:
During the first 2½ years of the program, ending December 31 2003,
Energy had fully processed about 6 percent of the more than 23,000
cases it received. The majority of these fully processed cases 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, 150 cases--less than 1 percent of the more than
23,000 cases filed--had received a final determination from a physician
panel. More than half of these determinations (87 cases) were positive.
As of the end of calendar year 2003, Energy had not yet begun
processing nearly 60 percent of the cases, and an additional 35 percent
of cases were in various stages of processing. As shown in figure 2,
the majority of the cases being processed were in the case development
stage, where Energy requests information from the facility at which the
claimant was employed. About 2 percent of the cases in process were
ready for physician panel review, and an additional 3 percent were
undergoing panel review.
Figure 2: Case Status as of December 31, 2003:
[See PDF for image]
[End of figure]
A majority of all cases were filed early during program implementation,
but new cases continue to be filed. More than half of all cases were
filed within the first year of the program, between July 2001 and June
2002. However, between July 2002 and December 31, 2003, Energy
continued to receive an average of more than 500 cases per month.
Energy officials report that they continue to receive approximately 100
new cases per week.
Energy Facilities in 9 States Account for More than 75 percent of
Cases:
While cases filed are associated with facilities in 43 states or
territories, the majority of cases are associated with Energy
facilities in 9 states, as shown in figure 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
December 31, 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 1,859 cases.
[End of figure]
Workers filed the majority of cases, and cancer is the most frequently
reported illness. Workers filed more than 60 percent of cases, and
survivors of deceased workers filed about 36 percent of cases. In 2
percent of the cases, a worker filed a claim that was subsequently
taken up by a survivor. Cancer is the illness reported in nearly 60
percent of the cases. Diseases affecting the lungs accounted for an
additional 15 percent of the cases. Specifically, chronic beryllium
disease and/or beryllium sensitivity were reported in 7 percent of the
cases, 8 percent reported asbestosis, and less than 1 percent claimed
chronic silicosis.
Insufficient Strategic Planning and Data Collection Limit Energy's
Ability to Determine whether Program Goals Are Being Met:
Insufficient strategic planning regarding system design, data
collection, and tracking of outcomes has made it more difficult for
Energy officials to manage some aspects of the program and for those
with oversight responsibilities to determine whether Energy is meeting
goals for processing claims. The data system Energy uses to aid in case
management was developed by contractors without detailed specifications
from Energy. Furthermore, the system was developed before Energy
established its processing goals and did not collect sufficient
information to track Energy's progress in meeting these goals. While
recent changes to the system have improved Energy's ability to track
certain information, these changes have resulted in some recent status
data being not completely comparable with older status data. In
addition, Energy will be unable to completely track the timeliness of
its processing for approximately one-third of the cases that were being
processed as of December 2003 because key data are not complete. For
example, Energy established a goal of completing case development
within 120 days of case assignment to a case manager. At least 70
percent of the cases for which case development was complete were
missing dates corresponding to either the beginning or the end of the
case development process--data that would allow Energy officials to
compute the time elapsed during case development.
Energy has not been sufficiently strategic in identifying and
systematically collecting certain data that are useful for program
management. For instance, Energy does not track the reasons why
particular cases were found ineligible in a format that can be easily
analyzed. Systematic tracking of the reasons for ineligibility would
make it possible to quickly identify cases affected by policy changes.
For example, when a facility in West Virginia was determined to be only
a Department of Energy facility and not also an atomic weapons
employer, it was necessary for Energy to identify which cases had been
ruled ineligible because of employment at the West Virginia facility.
While some ineligibility information may be stored in case narratives,
this information is not available in a format that would allow the
agency to quickly identify cases declared ineligible for similar
reasons. Ascertaining the reason for ineligibility would at best
require review of individual case narratives, and indeed, Energy
officials report that it is sometimes necessary to refer back to
application forms to find the reasons. As a result, if additional
changes are made that change eligibility criteria, Energy may have to
expend considerable time and resources determining which cases are
affected by the change in policy.
In addition, because it did not adequately plan for the various uses of
its data, Energy lacks some of the data needed to analyze how cases
will fare when they enter the state workers' compensation systems.
Specifically, it is difficult for Energy to predict whether willing
payers of workers' compensation benefits will exist using case
management system data because the information about the specific
employer for whom the claimant worked is not collected in a format that
can be systematically analyzed. In addition, basic demographic data
such as the age of employees is not necessarily accurate due to
insufficient edit controls--for example, error checking that would
prevent employees' dates of birth from being entered if the date was in
the future or recent past. Reliable age data would allow Energy to
estimate the proportion of workers who are likely to have health
insurance such as Medicare.
Insufficient tracking of program outcomes hampers Energy's ability to
determine how well it is providing assistance to claimants in filing
claims for state workers' compensation benefits. Energy has not so far
systematically tracked whether claimants subsequently file workers'
compensation claims or the decisions on these claims. However, agency
officials recently indicated that they now plan to develop this
capability. In addition, Energy does not systematically track whether
claimants who receive positive physician panel determinations file
workers' compensation claims, nor whether claims that are filed are
approved, or paid. Furthermore, unless Energy's Office of Hearings and
Appeals grants an appeal of a negative determination, which is returned
to Energy for further processing, Energy does not track whether a
claimant files an appeal. Lack of information about the number of
appeals and their outcomes may limit Energy's ability to assess the
quality and consistency of its decision making.
A Shortage of Qualified Physicians to Issue Determinations Delays
Filing of Workers' Compensation Claims and Claimants May Receive
Inadequate Information to Prepare Them to Pursue These Claims:
Energy was slow in implementing its initial case processing operation,
but it is now processing enough cases so that there is a backlog of
cases awaiting physician panel review. With panels operating at full
capacity, the small pool of physicians qualified to serve on the panels
may ultimately limit the agency's ability to produce more timely
determinations. Claimants have experienced lengthy delays in receiving
the determinations they need to file workers' compensation claims and
have received little information about claims status as well as what
they can expect from this process. Energy has taken some steps intended
to reduce the backlog of cases.
Sufficient Cases Have Not Always Been Available for Physician Panel
Review, but Energy Has Increased the Pace of Its Case Development
Processing:
Energy's case development process has not always produced enough cases
to ensure that the physician panels were functioning at full capacity,
but the agency is now processing enough cases to produce a backlog of
cases waiting for panel review. Energy officials established a goal of
completing the development of 100 cases per week by August 2003 to keep
the panels fully engaged. However, the agency did not achieve this goal
until several months later.
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 secure additional
staff as they were needed. When Energy first began developing cases, in
the fall of 2002, the case development process had about 8 case
managers. 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. By November
2003, Energy had more than tripled the number of case managers
developing cases, and since that month the agency has continued to
process an average of more than 100 cases per week to have them ready
for physician panel review.
Energy transferred nearly $10 million in fiscal year 2003 funds into
this program from other Energy accounts. Further, after completing a
comprehensive review of its Subtitle D program, the agency developed a
plan that identifies strategies for further accelerating its case
processing. This plan sets a goal of eliminating the entire case
backlog by the end of calendar year 2006 and depends in part on
shifting an additional $33 million into the program in fiscal year
2004, to quadruple the 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 could create a larger backlog of cases awaiting
review by physician panels. Because a majority of the claims filed so
far are from workers whose medical conditions are likely to change over
time, building this 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 though additional resources have allowed Energy to speed initial
case development, the limited pool of qualified physicians for panels
may limit Energy's capacity to decide cases more quickly. Under the
rules Energy originally established for this program that required that
each case be reviewed by a panel of 3 physicians and given the 130
physicians currently available, it could have taken more than 13 years
to process all cases pending as of December 31, without consideration
of the hundreds of new cases the agency is receiving each
month.[Footnote 2] However, in an effort to make the panel process more
efficient, Energy published new rules on March 24, 2004, that re-
defined a physician panel as one or more physicians appointed to
evaluate these cases and changed the timeframes for completing their
review. Under the new rule, a panel composed of a single physician will
initially review each case, and if a positive determination is issued,
no further review is necessary. Negative determinations made by a
single physician panels will require review by one or more additional
single-physician panels. In addition to revising its rules, the agency
began holding a full-time physician panel in Washington, D.C., in
January 2004, staffed by physicians who are willing to serve full-time
for a 2-or 3-week period.
Energy and NIOSH officials have taken steps to expand the number of
physicians who would qualify to serve on the panels and to recruit more
physicians, including some willing to work full-time. While Energy has
made several requests that NIOSH appoint additional physicians to staff
the panels, such as requesting 500 physicians in June 2003, NIOSH
officials have indicated that the pool of physicians with the
appropriate credentials and experience is limited.[Footnote 3] The
criteria NIOSH originally used to evaluate qualifications for
appointing physicians to these panels included: (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. NIOSH recently modified these qualifications, primarily to
reduce the amount of required clinical experience so that physicians
with experience in relevant clinical or public health practice or
research, academic, consulting, or private sector work can now qualify
to serve on the panels. NIOSH has revised its recruiting materials to
reflect this change and to point out that Energy is also interested in
physicians willing to serve on panels full-time. However, a NIOSH
official said that he was uncertain about the effect of the change in
qualifications on the number of available physicians. In addition, the
official indicated that only a handful of physicians would likely be
interested in serving full-time on the panels.
Energy officials have also explored additional sources from which NIOSH
might recruit qualified physicians, but they have expressed concerns
that the current statutory cap on the rate of pay for panel physicians
may limit the willingness of physicians from these sources to serve on
the panels. For example, Energy officials have suggested that
physicians in the military services might be used on a part-time basis,
but the rate of pay for their military work exceeds the current cap.
Similarly, physicians from the Public Health Service could serve on
temporary full-time details as panel physicians. To elevate the rate of
pay for panel physicians to a level that is consistent with the rate
physicians from these sources normally receive, Energy officials
recently submitted to the Congress a legislative proposal to eliminate
the current cap on the rate of pay and also expand Energy's hiring
authority.
Panel physicians have also suggested methods to Energy for improving
the efficiency of the panels. For example, some physicians have said
that more complete profiles of the types and locations of specific
toxic substances at each facility would speed their ability to decide
cases. While Energy officials reported that they have completed
facility overviews for most of the major sites, specific site reference
data are available for only a few sites. Energy officials told us that,
in their view, the available information is sufficient for decision
making by the panels. However, based on feedback from the physicians,
Energy officials are exploring whether developing additional site
information would be cost beneficial.
Energy Has Not Sufficiently Informed Claimants about the Status of
Their Claims and Subsequent Aspects of the Process:
Energy has not always provided claimants with complete and timely
information about what they could achieve in filing under this program.
Energy officials concede that claimants who filed in the early days of
the program may not have been provided enough information to understand
the benefits they were filing for. As a consequence, some claimants who
filed under both Subtitle B and Subtitle D early in the program later
withdrew their claims under Subtitle D because they had intended to
file only for Subtitle B benefits or because they had not understood
that they would still have to file for state workers' compensation
benefits after receiving a positive determination from a physician
panel. After the final regulations were published in August 2002,
Energy officials stated that claimants had a better understanding of
the benefits for which they were applying.
Energy has not kept claimants sufficiently informed about the status of
their claims under Subtitle D. Until recently, Energy's policy was to
provide no written communication about claims status between the
acknowledgment letters it sent shortly after receiving applications and
the point at which it began to process claims. Since nearly half of the
claims filed in the first year of the program remained unprocessed as
of the December 31, 2003, these claimants would have received no
information about the status of their claims for more than 1 year.
Energy recently decided to change this policy and provide letters at 6-
month intervals to all claimants with pending claims. Although the
first of these standardized letters sent to claimants in October 2003
did not provide information about individual claims status, it did
inform claimants about a new service on the program's redesigned Web
site through which claimants can check on the status of their claim.
However, this new capability does not provide claimants with
information about the timeframes during which their claims are likely
to be processed and claimants would need to re-check the status
periodically to determine whether the status of the claim has changed.
In addition, claimants may not receive sufficient information about
what they are likely to encounter when they file for state workers'
compensation benefits. For example, Energy's letter to claimants
transmitting a positive determination from a physician panel does not
always provide enough information about how they would go about filing
for state workers' compensation benefits. A contractor in Tennessee
reported that a worker was directed by Energy's letter received in
September 2003 to file a claim with the state office in Nashville when
Tennessee's rules require that the claim be filed with the employer.
The contractor reported the problem to Energy in the same month, but
Energy letters sent to Tennessee claimants in October and December 2003
continued to direct claimants to the state office. Finally, claimants
are not informed as to whether there is likely to be a willing payer of
workers' compensation benefits and what this means for the processing
of that claim. Specifically, advocates for claimants have indicated
that claimants may be unprepared for the adversarial nature of the
workers' compensation process when an insurer or state fund contests
the claim.
Energy officials recently indicated that they plan to test initiatives
to improve communication with claimants. Specifically, they plan to
conduct a test at one Resource Center that would provide claimants with
additional information about the workers' compensation process and
advice on how to proceed after receiving a positive physician panel
determination. In addition, they plan to begin contacting individuals
with pending claims this summer to provide information on the status of
their claims.
While Workers' Compensation Claims for a Majority of Cases Are Not
Likely to Be Contested, Actual Compensation Is Not Certain:
Our analysis shows that a majority of cases associated with Energy
facilities in 9 states that account for more than three-quarters of all
Subtitle D cases filed are not likely to be contested. However, the
remaining 20 percent of cases lack willing payers and are likely to be
contested. These percentages provide an order of magnitude estimate of
the extent to which claimants will have willing payers and are not a
prediction of actual benefit outcomes for claimants.
A Majority of Cases in 9 States Are Not Likely to Be Contested:
The workers' compensation claims for the majority of cases associated
with major Energy facilities in 9 states[Footnote 4] are likely to have
no challenges to their claims for state workers' compensation benefits.
Specifically, based on analysis of workers' compensation programs and
the different types of workers' compensation coverage used by the major
contractors, it appears that slightly more than half of the cases will
potentially have a willing payer. In these cases, self-insured
contractors will not contest the claims for benefits as ordered by
Energy. Another 25 percent of the cases, while not technically having a
willing payer, have workers' compensation coverage provided by an
insurer that has stated that it will not contest these claims and is
currently processing several workers' compensation claims without
contesting them. The remaining 20 percent of cases in the 9 states we
analyzed are likely to be contested. Because of data limitations, these
percentages provide an order of magnitude estimate of the extent to
which claimants will have willing payers.[Footnote 5] The estimates are
not a prediction of actual benefit outcomes for claimants.
As shown in table 1, the contractors for four major facilities in these
states are self-insured, and Energy's direction to them to not contest
claims that receive a positive physician panel determination will be
adhered to. 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 could result in a payment that might
otherwise have resulted in a denial of a claim, for reasons such as
failure to file a claim within a specified period of time. Similarly,
the informal agreement by the commercial insurer with the contractors
at the two facilities that constitute 25 percent of the cases to pay
the workers compensation claims will more likely result in payment,
despite potential grounds to contest under state law. However, since
this insurer is not bound by Energy's orders and it does not have a
formal agreement with either Energy or the contractors to not contest
these claims, there is nothing to guarantee that the insurer will
continue to process claims in this manner.
About 20 percent of cases in the 9 states we analyzed are likely to be
contested. 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. In addition, contested cases can take longer to be resolved.
For example, one claimant whose claim is being contested by an insurer
was told by her attorney that because of pretrial motions filed by the
opposing attorney, it would be 2 years before her case was heard on its
merits. Specifically, the 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 its orders to contractors would have a limited effect.
For instance, an Ohio Bureau of Workers' Compensation official said
that the state would not automatically approve a case with a positive
physician panel determination, but would evaluate each workers'
compensation case carefully to ensure that it was valid and thereby
protect its state fund. Furthermore, although the contractor in
Colorado with a commercial policy attempted to enter into agreements
with prior contractors and their insurers to not contest claims, the
parties have not yet agreed and several workers' compensation claims
filed with the state program are currently being contested.
Table 1: Extent to Which Cases Will Potentially Be Contested in 9
States:
Likely outcome: Contests are not likely;
Willing payer available? Yes;
Types of Workers Comp. coverage: Self-insurance;
Energy facility, state: Paducah Gaseous Diffusion Plant, Kentucky[A];
Number of cases as reported in Energy data: 2,133.
Likely outcome: Contests are not likely;
Willing payer available? Yes;
Types of Workers Comp. coverage: Self-insurance;
Energy facility, state: Los Alamos National Lab, New Mexico;
Number of cases as reported in Energy data: 1,380.
Likely outcome: Contests are not likely;
Willing payer available? Yes;
Types of Workers Comp. coverage: Self-insurance;
Energy facility, state: Oak Ridge K-25, X-10, and Y-12 Plants,
Tennessee;
Number of cases as reported in Energy data: 4,115.
Likely outcome: Contests are not likely;
Willing payer available? Yes;
Types of Workers Comp. coverage: Self-insurance;
Energy facility, state: Hanford Site, Washington;
Number of cases as reported in Energy data: 1,798.
Likely outcome: Contests are not likely;
Willing payer available? Yes;
Types of Workers Comp. coverage: Self-insurance;
Subtotal;
Number of cases as reported in Energy data: 9,426;
Percentage of cases in category: 55%.
Likely outcome: Contests are not likely;
Willing payer available? No;
Types of Workers Comp. coverage: Commercial policy, insurer will follow
contractors' instructions to not contest;
Energy facility, state: Idaho National Engineering Lab, Idaho;
Number of cases as reported in Energy data: 849.
Likely outcome: Contests are not likely;
Willing payer available? No;
Types of Workers Comp. coverage: Commercial policy, insurer will follow
contractors' instructions to not contest;
Energy facility, state: Savannah River Site, South Carolina;
Number of cases as reported in Energy data: 3,375.
Likely outcome: Contests are not likely;
Willing payer available? No;
Types of Workers Comp. coverage: Commercial policy, insurer will follow
contractors' instructions to not contest;
Subtotal;
Number of cases as reported in Energy data: 4,224;
Percentage of cases in category: 25%.
Likely outcome: Contests are not likely;
Subtotal;
Number of cases as reported in Energy data: 13,650;
Percentage of cases in category: 80%.
Likely outcome: Contests likely;
Willing payer available? No;
Types of Workers Comp. coverage: Commercial policy;
Energy facility, state: Rocky Flats Plant, Colorado;
Number of cases as reported in Energy data: 1,630.00.
Likely outcome: Contests likely;
Willing payer available? No;
Types of Workers Comp. coverage: State fund;
Energy facility, state: Portsmouth Gaseous Diffusion Plant, Ohio;
Number of cases as reported in Energy data: 862.
Likely outcome: Contests likely;
Willing payer available? No;
Types of Workers Comp. coverage: No current contractor;
Energy facility, state: Feed Materials Production Center, Ohio;
Number of cases as reported in Energy data: 286.
Likely outcome: Contests likely;
Willing payer available? No;
Types of Workers Comp. coverage: No current contractor;
Energy facility, state: Mound Plant, Ohio;
Number of cases as reported in Energy data: 91.
Likely outcome: Contests likely;
Willing payer available? No;
Types of Workers Comp. coverage: No current contractor;
Energy facility, state: Iowa Ordinance Plant, Iowa;
Number of cases as reported in Energy data: 645.
Likely outcome: Contests likely;
Subtotal;
Number of cases as reported in Energy data: 3,514;
Percentage of cases in category: 20%
Source: GAO analysis of Energy data and interviews with current
contractors and state officials.
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 693 cases (4 percent) from other facilities in these states.
[A] A total of 2,370 cases have been filed for the Paducah Gaseous
Diffusion Plant, which has been operated since July 1998 by a private
entity that leases the facility. Energy recently decided that workers
who have only been employed by this private entity, and not by the
prior contractors who operated the facility, will not be eligible for
the program. An Energy contractor performing environmental cleanup at
the site also employs workers at the facility. This contractor is
responsible for the workers' compensation claims filed by its employees
as well as those filed by employees of the contractors who operated the
facility prior to July 1998. We apportioned 90 percent of the cases
filed for the Paducah facility (2,133) to the cleanup contractor
because the facility was run by the prior contractors for about 90
percent of its years in operation. We apportioned the remaining 10
percent of the cases (237) to the private entity and do not show these
cases in the table, due to Energy's decision that claims filed by the
entity's workers would be ineligible for the program. However, this
apportionment involves some uncertainty because the clean up contractor
has not had an opportunity to analyze the effects of Energy's policy
decision.
[B] This insurer is technically not a willing payer since it is not
bound by Energy's orders and it does not have a formal agreement with
either Energy or the contractors to not contest these claims for
workers' compensation. However, the insurer has stated that it will
follow contractors' instructions to not contest these claims.
[End of table]
These estimates could change as better data become available or as
circumstances change, such as new contractors taking over at individual
facilities. For example, the contractor currently performing
environmental cleanup at the Paducah Gaseous Diffusion Plant will not
re-compete for this work when its contract ends on September 30, 2004.
Energy is soliciting proposals for a new contract to continue the
cleanup work and has indicated that the new contractors will not be
required to take on the responsibility for the workers' compensation
claims filed by employees of former contractors. While Energy has
proposed that the current clean up contractor continue to handle the
claims of their employees and those of prior contractors under another
of its contracts with the agency, it is unclear at this point whether
the current contractor will be able to arrange for continuing coverage
of these claims without securing workers' compensation coverage through
commercial insurance. Unless the current contractor can continue to
self-insure its workers' compensation coverage for these claims, the
Paducah cases shown in table 1 would have to be moved to the category
in which contests are likely. As a result of this single change in
contractors, the proportion of cases for which contests are likely
could increase from 20 to 33 percent.
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 unreimbursed 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 about 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 written 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 current
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 under a cost
reimbursement contract was told by Energy officials that its workers'
compensation claims would be reimbursed and, therefore, paying claims
would not affect its ability to perform cleanup of the site.
Several Issues Could Be Considered in Evaluating Options for Improving
the Likelihood of Willing Payers:
Various options are available to improve payment outcomes for the cases
that receive a positive determination from Energy, but lack willing
payers under the current program. If it chooses to change the current
program, Congress would need to examine these options in terms of
several issues, including the source, method, and amount of the federal
funding required to pay benefits; the length of time needed to
implement changes; the criteria for determining who is eligible; and
the equitable treatment of claimants. In particular, the cost
implications of these options for the federal government should be
carefully considered in the context of the current and projected
federal fiscal environment.
Options for Changing the Current Program:
We identified four possible options for improving the likelihood of
willing payers, some of which have been offered in proposed
legislation. While not exhaustive, the options range from adding a
federal benefit to the existing program for cases that lack a willing
payer to addressing the willing payer issue as part of designing a new
program that would allow policymakers to decide issues such as the
eligibility criteria and the type and amount of benefits without being
encumbered by existing program structures. A key difference among the
options is the type of benefit that would be provided.
Option 1--State workers' compensation with federal back up. This option
would retain state workers' compensation structure as under the current
Subtitle D program but add a federal benefit for cases that receive a
positive physician panel determination but lack a willing payer of
state workers' compensation benefits. For example, claims involving
employees of current contractors that self-insure for workers'
compensation coverage would continue to be processed through the state
programs. However, claims without willing payers such as those
involving contractors that use commercial insurers or state funds
likely to contest workers' compensation claims could be paid a federal
benefit that approximates the amount that would have been received
under the relevant state program.
Option 2--Federal workers' compensation model. This option would move
the administration of the Subtitle D benefit from the state programs
entirely to the federal arena, but would retain the workers'
compensation concept for providing partial replacement of lost wages as
well as medical benefits. For example, claims with positive physician
panel determinations could be evaluated under the eligibility criteria
of the Federal Employees Compensation Act[Footnote 6] and, if found
eligible, could be paid benefits consistent with the criteria of that
program.
Option 3--Expanded Subtitle B program that does not use a workers'
compensation model. Under this option, the current Subtitle B program
would be expanded to include the other illnesses resulting from
radiation and toxic exposures that are currently considered under the
Subtitle D program. The Subtitle D program would be eliminated as a
separate program and, if found eligible, claimants would receive a
lump-sum payment and coverage of future medical expenses related to the
workers' illnesses, assuming they had not already received benefits
under Subtitle B. The Department of Labor would need to expand its
regulations to specify which illnesses would be covered and the
criteria for establishing eligibility for each of these illnesses. In
addition, since the current programs have differing standards for
determining whether the worker's illness was related to his
employment,[Footnote 7] it would have to be decided which standard
would be used for the new category of illnesses.
Option 4--New federal program that uses a different type of benefit
structure. This option would address the willing payer issue as part of
developing a new program that involves moving away from the workers'
compensation and Subtitle B structures and establishing a new federal
benefit administered by a structure that conforms to the type of the
benefit and its eligibility criteria. This option would provide an
opportunity to consider anew the purpose of the Subtitle D provisions.
As a starting point, policymakers could consider different existing
models such as the Radiation Exposure Compensation Act, designed to
provide partial restitution to individuals whose health was put at risk
because of their exposure even when their illnesses do not result in
ongoing disability. But, they could also choose to build an entirely
new program that is not based on any existing model.
Various Issues Should Be Considered in Deciding Whether Changes Are
Needed and Assessing the Options:
In deciding whether and how to change the Subtitle D program to ensure
a source of benefit payments for claims that would be found eligible if
they had a willing payer, policymakers will need to consider the trade-
offs involved. Table 2 arrays the relevant issues to provide a
framework for evaluating the range of options in a logical sequence. We
have constructed the sequence of issues in this framework in terms of
the purpose and type of benefit as being the focal point for the
evaluation, with consideration of the other issues flowing from that
first decision. For example, decisions about eligibility criteria would
need to consider issues relating to within-state and across-state
equity for Subtitle D claimants. The framework would also provide for
decisions on issues such as the method of federal funding--trust fund
or increased appropriations--and the appropriate federal agency to
administer the benefit. For each of the options, the type of benefit
would suggest which agency should be chosen to administer the benefit
and would depend, in part, on an agency's capacity to administer a
benefit program. In examining these issues, the effects on federal
costs would have to be carefully considered. Ultimately, policymakers
will need to weigh the relative importance of these issues in deciding
whether and how to proceed.
Purpose and Type of Benefit:
In evaluating how the purpose and type of benefit now available under
Subtitle D could be changed, policymakers would first need to focus on
the goals they wish to achieve in providing compensation to this group
of individuals. If the goal is to compensate only those individuals who
can demonstrate lost wages because of their illnesses, a recurring cash
benefit in an amount that relates to former earnings might be in order
and a workers' compensation option, either a state benefits with a
federal back up or a federal workers' compensation benefit, would
promote this purpose. If, on the other hand, the goal is to compensate
claimants for all cases in which workers were disabled because of their
employment--even when workers continue to work and have not lost wages-
the option to expand Subtitle B would allow a benefit such as a flat
payment amount not tied to former earnings.
For consideration of a new federal program option, it might be useful
to also consider other federal programs dealing with the consequences
of exposure to radiation as a starting point. For example, the
Radiation Exposure Compensation Act was designed to provide partial
restitution to individuals whose health was put at risk because of
their exposure. Similar to Subtitle B, the act created a federal trust
fund, which provides for payments to individuals who can establish that
they have certain diseases and that they were exposed to radiation at
certain locations and at specified times. However, this payment is not
dependent on demonstrating ongoing disability or actual losses
resulting from the disease.
Eligibility Criteria and Equity of Outcomes:
The options could also have different effects with respect to
eligibility criteria and the equity of benefit outcomes for current
Subtitle D claimants based on these criteria. By equity of outcomes, we
mean that claimants with similar illnesses and circumstances receive
similar benefit outcomes. The current program may not provide equity
for all Subtitle D claimants within a state because a claim that has a
willing payer could receive a different outcome than a similar claim
that does not have a willing payer, but at least three of the options
could provide within-state equity. With respect to across-state equity,
the current program and the option to provide a federal back up to the
state workers' compensation programs would not achieve equity for
Subtitle D claimants in different states. In contrast, the option based
on a federal workers' compensation model as well as the expanded
Subtitle B option would be more successful in achieving across-state
equity.[Footnote 8]
Regardless of the option, changes made to Subtitle D could also
potentially result in differing treatment of claims decided before and
after the implementation of the change. In addition, changing the
program to remove the assistance in filing workers' compensation claims
may be seen as depriving a claimant of an existing right. Further, any
changes could also have implications beyond EEOICPA, to the extent that
the changes to Subtitle D could establish precedents for federal
compensation to private sector employees in other industries who were
made ill by their employment.
Federal Costs:
Effects on federal costs would depend on the generosity of the benefit
in the option chosen and the procedures established for processing
claims for benefits. Under the current program, workers' compensation
benefits that are paid without contest will come from contract dollars
that ultimately come from federal sources--there is no specific federal
appropriation for this purpose. Because all of the options are designed
to improve the likelihood of payment for claimants who meet all other
criteria, it is likely that federal costs would be higher for all
options than under the current program. Specifically, federal costs
would increase for the option to provide a federal back up to the state
workers' compensation program because it would ensure payment at rates
similar to the state programs for the significant minority of claimants
whose claims are likely to be contested and possibly denied under the
state programs. Further, the federal costs of adopting a federal
workers' compensation option would be higher than under the first
option because all claimants--those who would have been paid under the
state programs as well as those whose claims would have been contested
under the state programs--would be eligible for a federal benefit
similar to the benefit for federal employees. In general, federal
workers' compensation benefits are more generous than state benefits
because they replace a higher proportion of the worker's salary than
many states and the federal maximum rate of wage replacement is higher
than all the state maximum rates.
For either of the two options mentioned earlier, a decision to offset
the Subtitle D benefits against the Subtitle B benefit could lessen the
effect of the increased costs, given reports by Energy officials that
more than 90 percent of Subtitle D claimants have also filed for
Subtitle B benefits.[Footnote 9] However, the degree of this effect is
difficult to determine because many of the claimants who have filed
under both programs may be denied Subtitle B benefits. The key
distinction would be whether workers who sustained certain types of
illnesses based on their Energy employment should be compensated under
both programs as opposed to recourse under only one or the other. If
they were able to seek compensation from only one program, the
claimant's ability to elect one or the other based on individual needs
should be considered.
The effects on federal cost of an expanded Subtitle B option or a new
federal program option are more difficult to assess. In many cases, the
Subtitle B benefit of up to $150,000 could exceed the cost of the
lifetime benefit for some claimants under either of the workers'
compensation options, resulting in higher federal costs. However, the
extent of these higher costs could be mitigated by the fact that many
of the claimants who would have filed for both benefits in the current
system would be eligible for only one cash benefit regardless of the
number or type of illnesses. The degree of cost or savings would be
difficult to assess without additional information on the specific
claims outcomes in the current Subtitle B program. The effects on
federal costs for the new federal program option would depend on the
type and generosity of the benefit selected.
Table 2: Framework for Evaluating Options to Change the Subtitle D
Program:
Purpose and type of benefit;
Current program: Varies by state, but generally includes medical
treatment and cash payments that partially replace lost wages;
Option 1--State workers' compensation with federal back-up: Same as
under current state programs;
Option 2--Federal workers' compensation model: Still a workers'
compensation benefit, generally includes medical treatment and cash
payments that partially replace lost wages;
Option 3--Expanded Subtitle B program: Same as for current Subtitle B--
coverage of future medical treatment and a one-time payment of up to
$150,000 as compensation for disability or death because of exposure to
radiation or toxic substance;
Option 4--New federal benefit: Open for consideration.
Eligibility criteria;
Current program: Vary by state, but generally apply to workers who
contract a work-related illness and who lose work time because of the
illness;
Option 1--State workers' compensation with federal back-up: For federal
back-up benefit, should be similar to criteria under current state
programs;
Option 2--Federal workers' compensation model: Uses criteria of
workers' compensation program for federal employees;
Option 3--Expanded Subtitle B program: Same as for current Subtitle B
claimants who worked for Energy contractors;
Option 4--New federal benefit: Open for consideration--should flow from
type of benefit and the nature of the population it is designed to
compensate.
Interaction with Subtitle B;
Current program: Benefits are not offset against each other;
Option 1--State workers' compensation with federal back-up: Open for
consideration;
Option 2--Federal workers' compensation model: Open for consideration;
Option 3--Expanded Subtitle B program: No interaction issues. Claimants
would be eligible for only one payment regardless of number of
illnesses. Because there is a large overlap in claimants filing under
both programs, this could potentially reduce the total number of claims
that would remain to be processed once combined;
Option 4--New federal benefit: Open for consideration. Depends on the
nature of the benefit.
Equity of Outcomes within Subtitle D: Within states;
Current program: Similar cases in the same state could receive
differing benefits, depending on willing payer;
Option 1-- State workers' compensation with federal back-up: Similar
cases in the same state could receive similar benefits regardless of
employer;
Option 2--Federal workers' compensation model: Similar cases in the
same state could receive similar benefits regardless of employer;
Option 3--Expanded Subtitle B program: Similar cases in the same state
could receive similar benefits regardless of employer;
Option 4--New federal benefit: Open for consideration.
Equity of Outcomes within Subtitle D: Across states;
Current program: Similar cases in different states could receive
differing compensation;
Option 1--State workers' compensation with federal back-up: Similar
cases in different states could receive differing compensation;
Option 2--Federal workers' compensation model: Similar cases in
different states could receive similar compensation;
Option 3--Expanded Subtitle B program: Similar cases in different
states could receive similar compensation;
Option 4--New federal benefit: Open for consideration.
Funding source for benefits;
Current program: Most eligible cases with willing payers will be paid
by contractors from contract funds from federal sources;
Option 1--State workers' compensation with federal back-up: Same as
current program for cases with willing payer, but would need a source
for federal back-up benefit;
Option 2--Federal workers' compensation model: Would need new federal
source;
Option 3- -Expanded Subtitle B program: Trust fund already established
by Section 3612 of EEOICPA;
Option 4--New federal benefit: Open for consideration--appropriations
or trust fund.
Federal administrator;
Current program: Energy;
Option 1--State workers' compensation with federal back-up: For federal
benefit, selection criteria should include how quickly agency could
implement and how well it was situated to process and pay cases. Energy
would still need to secure records for all cases and process claims
with willing payers;
Option 2--Federal workers' compensation model: Department of Labor/
Office of Workers' Compensation administers current program;
also administers Subtitle B program. Energy would still need to secure
records;
Option 3--Expanded Subtitle B program: Department of Labor--same as
current Subtitle B program;
Option 4--New federal benefit: Open for consideration--depends on type
of benefit, experience in administering benefit program, and funding
source.
Timeframe for implementation;
Current program: Program is implemented, but few cases have been
completely processed;
Option 1--State workers' compensation with federal back-up: Relatively
short to implement since it is based on existing program.
Infrastructure would have to be established and rules developed to
provide for federal benefits that mirror those of the state programs;
Option 2--Federal workers' compensation model: Longer than Option 1.
Infrastructure in place, but regulations for existing federal workers'
compensation program would need to be expanded to cover new benefit;
Option 3--Expanded Subtitle B program: Longer than Option 1-structure
in place to administer existing Subtitle B program--new rules need to
be developed for evaluating additional illnesses;
Option 4--New federal benefit: Potentially longest of all options.
Depends on administrator and whether infrastructure exists or would
need to be built. In either event, need to publish rules and establish
procedures.
Federal cost;
Current program: For cases that are not contested, benefits that are
paid will ultimately come from contract dollars from federal sources;
Option 1--State workers' compensation with federal back-up: Federal
costs could increase since benefits for cases without willing payers
would be paid directly from federal funds;
Option 2-- Federal workers' compensation model: Federal costs could be
greater than for current program since benefits would be based on the
often more generous workers' compensation program for federal workers;
Option 3--Expanded Subtitle B program: To the extent that the option
would ensure a source of benefits, could increase federal costs.
However, the extent of these higher costs could be mitigated because
many of the claimants who would have filed for Subtitle B and D
benefits in the current system would be eligible for only one cash
benefit;
Option 4--New federal benefit: Open for consideration-- Depends on type
of benefit and eligibility criteria.
Source: GAO analysis.
[End of table]
Conclusions:
More than 3 years after the passage of EEOICPA, few claimants have
received state workers' compensation benefits as a result of assistance
provided by Energy. While Energy has eliminated the bottleneck in its
claims process that it encountered early in program implementation--the
initial development of cases--in doing so it has created a growing
backlog of cases awaiting review by a physician panel. In the absence
of changes that would expedite this review, many claimants will likely
wait years to receive the determination they need to pursue a state
workers' compensation claim. In the interim, their medical conditions
may worsen, and claimants may even die before they receive
consideration by a state program. While Energy has taken some steps
designed to reduce the backlog of cases for the physician panels, it is
too early to assess whether these initiatives will be sufficient to
resolve this growing backlog.
Whether they ultimately receive positive or negative determinations,
claimants deserve complete and timely information about what they could
achieve in filing under this program, what the claims process entails,
the status of their claims, and what they are likely to encounter when
they file for state workers' compensation benefits. Without complete
information, claimants are unable to weigh the benefits and risks of
pursuing the process to its conclusion. Indeed, given that the majority
of claimants have also filed for benefits under Subtitle B and many may
have already received decisions on those claims, some claimants may not
be aware that they still have a Subtitle D claim pending. Further,
given the limited communication from Energy since their claims were
filed, some claimants may be unaware that resources are being expended
developing their claims. Finally, because Energy does not currently
communicate to claimants what they are likely to encounter when they
file for state benefits, claimants may be unprepared for what may be a
difficult and protracted pursuit of state benefits.
Energy may be hindered in its ability to improve its claims process and
evaluate the quality of the assistance it is providing to claimants in
this program using the data it currently collects. Energy may also be
unprepared to provide the analysis needed to inform policymakers as
they consider whether changes to the program are needed because it does
not systematically track the outcomes of cases that are appealed or the
outcomes of claims that are filed with state workers' compensation
programs. Finally, Energy will be limited in its ability to provide
complete and accurate information to claimants regarding the status and
outcomes of their claims without good data.
Even if all claimants were to receive timely physician panel
determinations stating that the workers' illnesses had likely been
caused by their employment with Energy, some may never receive state
workers' compensation benefits. The lack of a willing payer may delay
the receipt of benefits for some claimants as insurers and state fund
officials challenge various issues aspects of the claim. For other
claimants, the challenges raised in the absence of willing payers may
ultimately result in denial of benefits based on issues such as not
filing the claim within the time limits set by the state program--
issues that would not be contested by willing payers. This disparity in
potential outcomes for Subtitle D claimants may warrant the
consideration of changes to the current program to ensure that eligible
claims are paid without undue delay and that there is a willing payer
for all claimants who would otherwise be eligible.
Recommendations for Executive Action:
To improve Energy's effectiveness in assisting Subtitle D claimants in
obtaining compensation for occupational illnesses, we recommend that
the Secretary of Energy:
* in order to reduce the backlog of cases waiting for review by a
physician panel, take additional steps to expedite the processing of
claims though its physician panels and focus its efforts on initiatives
designed to allow the panels to function more efficiently. For example,
Energy should pursue the completion of site reference data to provide
physicians with more complete information about the type and degree of
toxic exposures that may have occurred at each Energy facility.
* in order to provide claimants with more complete information, expand
and expedite its plans to enhance communications with claimants. These
plans should focus on providing more complete information describing
the assistance Energy will provide to claimants, the timeframes for
claims processing, the status of claims, and the process that claimants
will encounter when they file claims for state workers' compensation
benefits.
* in order to facilitate program management and oversight, develop
cost-effective methods for improving the quality of the data in its
case management system and increasing its capabilities to aggregate
these data to address program issues. In addition, Energy should
develop and implement plans to track the outcomes of cases that
progress through the state workers' compensation systems and use this
information to evaluate the quality of the assistance it provides to
claimants in the Subtitle D program. Such data could also be used by
policy makers to assess the extent to which this program is achieving
its goals and purposes.
* in order to reduce disparities in potential outcomes between
claimants with and without willing payers, consider developing a
legislative proposal for modifying the EEOICPA statute to address the
willing payer issue. When assessing different options, several issues
such as those discussed in this report should be considered, including
the purpose and type of benefit, eligibility criteria and equity of
benefit outcomes, and effects on federal costs.
Agency Comments and Our Evaluation:
We provided a draft of this report to Energy for comment. In commenting
on the draft report, Energy indicated that the agency had already
incorporated several of our recommendations and will aggressively
tackle the remainder. However, Energy did not specifically comment on
each recommendation. In addition, the comments highlighted several
initiatives either planned or underway that are designed to improve the
Subtitle D program. Several of these initiatives address issues raised
in our report for which we recommended changes. In particular, Energy
agreed with our findings regarding problems with communications with
Subtitle D claimants and outlined the steps the agency has planned to
correct these problems. Further, Energy agreed with our finding that
there was not a system in place to track the outcomes of workers'
compensation claims filed with the state programs and indicated that
the agency has recently initiated such a system, as we recommended.
Finally, the comments provide more recent information about the
agency's progress in processing Subtitle D claims and reiterate the
agency's plan for eliminating the backlog of claims by 2006. Energy's
comments are provided in appendix II. Energy also provided technical
comments, which we have incorporated as appropriate.
Copies of this report are being sent to the Secretary of Energy,
appropriate congressional committees, and other interested parties. The
report will also be made available at no charge on GAO's Web site at
http://www.gao.gov. If you have any questions about this report, please
contact me at (202) 512-7215. Other contacts and staff acknowledgments
are listed in appendix III.
Signed by:
Robert E. Robertson:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Scope and Methodology:
To determine the number of cases filed under Subtitle D, the status of
these cases and characteristics of claimants, we used administrative
data from Energy's Case Management System (CMS). Energy does not
publish standardized data extracts from this system, so we requested
that Energy query the system to provide customized extracts for our
analysis. The first extract contained data on the status and
characteristics of cases filed between July 2001 and June 30, 2003. The
second extract was obtained as an update and contained data related to
cases filed between July 2001 and December 31, 2003.
Because multiple claims can be associated with a single case, Energy's
system contains data at two levels--the case level and the claim level.
For example, if both the widow and child of a deceased Energy employee
file claims, both claims will be associated with a single case, which
is linked to the Energy employee. At the case level, the system
contains information about the Energy employee, such as date of birth
and date of death (if applicable), the facilities at which the employee
worked, and their dates of employment and the status of the case as it
moves through the development process in preparation for physician
panel review. At the claim level, CMS contains information related to
the individual claimants, such as the date the claim was signed and the
claimant's relationship to the Energy employee.
The extracts provided by Energy contain case-level data, for the most
part. Data elements that are collected at the claim level were reported
at the case level in our files. For example, the system includes a
claim signature date for each claim. In our case-level file, Energy
provided the earliest signature date, so that we would know when the
first claim was signed. Illness data are also collected at the claim
level. In our case-level file, Energy provided all the illnesses
claimed by all claimants. We then aggregated the illness data to
determine which illnesses were claimed on each case.
We interviewed key Energy officials and contractors and reviewed
available system documentation, such as design specifications and
system update documents. Once the first data extract was received from
Energy, we tested the data set to determine that it was sufficiently
reliable for our purposes. Specifically, we performed electronic
testing to identify missing data or logical inconsistencies and
reviewed determination letters for cases that had physician panel
determinations. We then computed descriptive statistics, including
frequencies and cross-tabulations, to determine the number and status
of cases received as of June 30, 2003.
When we received the second data extract, containing data through the
end of calendar year 2003, we matched it to the first one to determine
how many additional cases had been received between July 1, 2003, and
December 31, 2003, and to determine if any cases were missing. We
determined that some cases (less than 2 percent) that had been in the
first extract were missing from the second file. We consulted with
Energy contractors and determined that one case had been accidentally
omitted from the query results and that the remaining cases had been
dropped from CMS because they were duplicate cases or had been
determined to be non-Subtitle D cases. This is possible because the
Resource Centers use the CMS system to document incoming cases for both
Subtitle B and Subtitle D. Energy contractors provided a replacement
file that included the case that had been inadvertently dropped. They
also reported that there were still a small number of duplicate cases
identified in CMS, and hence in our data extract, but that Energy had
not yet decided which cases to retain. Since Energy officials had not
yet decided which case records to retain and which to delete at the
time of our extract, we decided to leave the cases identified as
duplicates in our analysis file.
We reviewed available system documentation, performed electronic
testing and reviewed determination letters for cases that had physician
panel determinations to determine that the data contained in the second
extract was sufficiently reliable for our purposes. During our
electronic testing, we discovered a discrepancy between the December
31, 2003, status information included in our file and the December 31,
2003, status information reported by Energy on its Web site. On further
discussion with Energy officials and contractors, we determined that
when running the query, Energy contractors had calculated the December
31, 2003, status information using the wrong field in the database.
Energy contractors gave us a third data file containing the correct
status information that we then appended to the analysis file. We then
computed additional descriptive statistics, including frequencies and
cross-tabulations to determine the number and status of cases received
as of December 31, 2003.
To determine the extent to which Energy policies and procedures help
employees file timely claims for state workers' compensation benefits,
we reviewed Energy's regulations, policies, procedures, and
communications with claimants. In addition, we interviewed key Energy
officials and contractors at Energy facilities. We also interviewed
panel physicians and contractors responsible for case development. In
addition, we interviewed advocates, claimants, and officials at the
National Institute for Occupational Safety and Health. Finally, we
conducted site visits to three Energy facilities in Oak Ridge,
Tennessee--the state accounting for the largest number of Subtitle D
cases.
To estimate the number of claims for which there will not be willing
payers of workers' compensation benefits, we reviewed the provisions of
workers' compensation programs in the 9 states that account for more
than three-quarters of the cases filed. The 9 states are: Colorado,
Idaho, Iowa, Kentucky, New Mexico, Ohio, South Carolina, Tennessee, and
Washington. The results of our analysis cannot necessarily be applied
to the remaining 25 percent of the cases filed nationwide. Because of
data limitations, we assumed that: (1) all cases filed would receive a
positive determination by a physician panel; (2) all workers lost wages
because of the illness and were not previously compensated for this
loss; and (3) in all cases, the primary contractor rather than a
subcontractor at the Energy facility employed the worker. While we
believe that the first two assumptions would not affect the proportions
shown in each category, the third assumption could result in an
underestimate of the proportion of cases lacking willing payers to the
extent that some workers may have been employed by subcontractors that
used commercial insurers or state funds for workers' compensation
coverage. Some subcontractors use these methods of workers'
compensation coverage because they may not employ enough workers to
qualify for self-insurance under some state workers' compensation
programs. We also interviewed Energy officials, key state workers'
compensation program officials, workers' compensation experts, private
insurers, and the contractors operating the major facilities in each of
the states to determine the method of workers' compensation coverage
these facilities used.
Finally, we took several steps to identify possible options for
changing the program in the event that there may not be willing payers
of benefits. We reviewed existing laws, regulations, and programs;
analyzed pending legislation; and considered characteristics of
existing federal and state workers' compensation programs. We also
identified the issues that would be relevant for policy makers to
consider in implementing these options.
[End of section]
Appendix II: Comments from the Department of Energy:
Department of Energy:
Washington, DC 20585:
MAY 11 2004:
Robert E. Robertson, Director
Education, Workforce, and Income Security Issues:
U.S. General Accounting Office
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Robertson:
Thank you for providing the Office of Worker Advocacy the opportunity
to comment on the U.S. General Accounting Office review of the
Department of Energy's implementation of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (EEOICPA). We
have the following comments:
* The Department appreciates and welcomes independent assessments as a
way to improve our performance. We believe that the GAO review was
balanced, thorough, and constructive, and it was conducted in a very
professional manner. We have already incorporated several of the GAO
recommendations and will aggressively tackle the remainder.
GAO commented that DOE was slow to start its implementation of the
EEOICPA statute. We acknowledge these problems but note that over the
past several months we have made significant progress toward addressing
them. In fact, the GAO Report acknowledges our progress in program
planning and production over the past six months, yet the statistical
analysis of our.program only reflects improvements made up to December
31, 2003. We have made significant progress since that time. For
instance, Total Cases Completed has increased 78 percent from 1,257
cases on October 31, 2003 to 2,259 cases on April 30. Further, DOE has
essentially completed its work on over 5,500 cases (23 percent of its
current cases).
In addition, in March 2004, we presented to the Congress our plan to
eliminate, by the end of 2006, the current backlog of Part D
applications pending at DOE. The Plan involves a combination of changes
to our regulations and to our processes, as well as Congressional
action on
legislative changes and on transferring funds to this program from
elsewhere in the Department of Energy. The Plan involves four
components that, together, should enable us to increase Physician Panel
determinations from 35 per week to 310 per week. These four components
include:
* Revised Physician Panel rule issued as an Interim Final Rule on March
17, 2004. The revised rule is expected to double the productivity of
the Physician Panel process, by allowing DOE to change from panels
composed of three physicians to panels composed of a single physician
while providing for second and if applicable third physician reviews
for an initial negative determination.
* Proposed legislative changes submitted by the Secretary of Energy to
Congress on March 29, 2004 that would amend the EEOICPA statute. This
proposed legislation would eliminate the pay cap on physicians serving
on physician panels and expand hiring authority for those physicians.
If enacted, these changes would significantly increase the supply of
physicians willing and able to work on Physician Panels, and would
greatly expedite processing of applications.
* Reprioritization of the processing of applications, so that we
expedite processing of the greatest number of cases and give priority
to those applicants we believe are most likely to receive the greatest
benefit from the program. Specifically, we have moved those
applications relating to beryllium, silica, and asbestos exposure to
the front of the queue, as well as those applications which have
already received a positive determination from the EEOICPA Part B
program. In addition, we are processing applications from living
applicants first because of the availability of medical benefits for
living applicants in most State workers compensation systems, and are
awaiting dose reconstructions for those remaining applications where
dose reconstructions are pending from the Part B program.
* Budget increases to provide for the contractor support, staff and
other resources needed to ramp up the number of Physician Panel
determinations from approximately 35 per week today to 310 per week in
FY05. Congress has approved $23.3 million of the original $33.3 million
FY04 appropriation transfer request. However, without the receipt of an
additional $10 million, the Department will not be able to meet its
goal to eliminate the entire backlog of applications by the end of CY
2006.
GAO commented that there have been shortcomings in our communications
with Part D applicants--specifically, that applicants were not always
provided with complete and timely information about what they could
achieve in submitting an application to DOE under this program. We
agree. We have implemented a six-month status letter and provided the
applicants with a website enabling them to electronically track the
status of their case. All Energy Employees Compensation Resource
Centers have recently implemented a new counseling program explaining
the benefits and limitations of the Part D program to better
communicate to potential applicants the realistic expectations for post
Panel outcomes. In addition, Resource Center staff are now being
trained to provide post Panel counseling to applicants. Finally, a
program to reach out to existing applicants called "Close the Gap" is
being planned to begin this summer. Through this Close the Gap program,
all applicants will receive telephone calls to explain to them the
benefits and limitations of EEOICPA Part D.
* GAO commented that DOE was not tracking program outcomes such as
whether State workers compensation programs paid benefits to
applicants. At the time of the GAO review this was true; however, we
have recently initiated such a system that will track:
1. Whether an applicable contractor has been ordered by the DOE
contracting officer to not contest a workers compensation claim,
2. Whether a Part D applicant has, applied for workers compensation
benefits,
3. The status of the State's workers compensation claim processing, and:
4. If a Part D applicant applied for benefits, when a payment is first
made, and the amount and types of benefits being paid.
Enclosed are editorial comments that would enhance the factual accuracy
of your report.
If you have any questions, please call me at 202-586-7449.
Sincerely,
Signed by:
T.A. Rollow, P.E.
Director:
Office of Worker Advocacy:
Enclosure:
[End of section]
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Andrew Sherrill (202) 512-7252 Beverly Crawford (202) 512-4474:
Staff Acknowledgments:
In addition to the above contacts, Melinda L. Cordero, Mary Nugent, and
Rosemary Torres Lerma made significant contributions to this report.
Also, Luann Moy and Elsie Picyk assisted in the study design and
analysis; Margaret Armen provided legal support; and Amy E. Buck
assisted with the message and report development.
FOOTNOTES
[1] Executive Order 13179, December 7, 2000.
[2] This 13-year estimate assumes that none of the pending cases would
be determined ineligible on the basis of noncovered employment or
illnesses because we did not possess a sufficient basis for projecting
the number of pending cases that would be determined ineligible in the
future.
[3] In March 2004, Energy requested additional physicians from NIOSH
that would result in tripling the number of full-time equivalent
physicians in 2004 and increasing the number of full-time equivalent
physicians by a factor of 6 in 2005.
[4] The cases in these 9 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] Because of data limitations, we assumed that: (1) all cases filed
would receive a positive determination by a physician panel; (2) all
workers lost wages because of the illness and were not previously
compensated for this loss; and (3) in all cases, the primary contractor
rather than a subcontractor at the Energy facility employed the worker.
While we believe that the first two assumptions would not affect the
proportions shown in each category, the third assumption could result
in an underestimate of the proportion of cases lacking willing payers
to the extent that some workers may have been employed by
subcontractors that used commercial insurers or state funds for
workers' compensation coverage. Some subcontractors use these methods
of workers' compensation coverage because they may not employ enough
workers to qualify for self-insurance under some state workers'
compensation programs.
[6] The Federal Employees' Compensation Act (5 U.S.C. 8101, et seq.)
provides workers' compensation coverage for federal and postal
employees, who are not covered by the state programs.
[7] Under Subtitle B, an individual with specified types of cancer
shall be determined to have sustained that condition in the performance
of duty if the cancer was at least as likely as not related to
employment at a specified facility. Under Subtitle D, a physician panel
must decide whether it is at least as likely as not that exposure to a
toxic substance in the course of employment was a significant factor in
aggravating, contributing to, or causing the illness or death of the
worker.
[8] An additional within-state equity issue involves the comparative
treatment of Subtitle D claimants and all other workers' compensation
claimants in the same state.
[9] Under the current Subtitle B and Subtitle D programs, benefits are
not offset against each other.
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