WORKERS’ COMPENSATION OF

OCCUPATIONAL CANCER Shilpa N. Gowda, M.D.

University of Washington OEM Fellow Year 2 September 26, 2015

QUICK FACTS

• < 1/100 of occupational cancer claims ever receive workers' comp benefits.

• Claims for cancer made by smokers are

especially contentious (due to concerns about apportionment to work causes - and ability to meet probability of causation criteria).

IMPORTANT CONSIDERATIONS

• cancer: a disability, not an impairment

• Age & SES should be considered when determining whether a case qualifies as a disability.

• interference of impairment ratings with potential death benefits

CANCERS MOST STRONGLY RELATED TO

WORK CAUSES

• mesothelioma - chronic exposure to asbestos (≥10-15 years)

• liver hemangiosarcoma - chronic exposure to vinyl chloride

EMERGING CONCERN ABOUT RADIATION EXPOSURE AMONG WORKERS AND THEIR RIGHT TO

WORKERS’ COMPENSATION • Studies began to suggest that workers at DOE sites could be harmed by exposure to even small dosages of radiation or beryllium, well below existing “safe level” standards.

• Touched moral sentiments that many Cold War nuclear weapons workers at DOE sites had been put at risk perhaps without their knowledge or consent.

THE RADIATION EXPOSURE

COMPENSATION ACT (RECA)

• Aims to compensate uranium industry workers (mining, milling, and ore transporting) for serious occupational illnesses

• Passed on 10/5/1990; scope broadened in 2000. Compensation Program established by the U.S. Attorney General in 05/1992; updated in 1997; revised on 03/23/2004.

• Compensation awards: • Uranium miners, millers, and ore transporters – $100,000; • “Onsite participants” at atmospheric nuclear weapons tests – $75,000; and • Individuals who lived downwind of the Nevada Test Site (“downwinders") – $50,000

• Residents of the “4 Corners Region” (Utah, Colorado, New Mexico, and Arizona) have filed the majority of RECA claims, but all states and several foreign countries also have RECA beneficiaries.

• Beneficiaries include many Native American tribes.

COMPENSABLE DISEASES UNDER RECA

For uranium miners, millers, and ore transporters: • primary cancer of the lung • fibrosis of the lung • pulmonary fibrosis • cor pulmonale related to fibrosis of the lung • silicosis • pneumoconiosis Additionally, for millers and ore transporters (but not miners): • primary renal cancer • chronic renal disease including nephritis and

kidney tubal tissue injury

RECA CLAIM FORMS

• Can be accessed at: http://www.justice.gov/civil/common/reca.

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

PROGRAM (EEOICP) • Initiative to compensate nuclear weapons workers who contracted

occupational illnesses as a result of exposure to radiation, beryllium, and other hazards.

• Spear -headed by David Michaels, PhD, MPH (currently, Assistant Secretary of OSHA), long- time advocate of worker safety and health

• Passed by the president in 2000.

• Federal program

• Has provided > $10 billion in compensation to sick workers and the families of diseased workers.

EEOICP BENEFICIARIES • Current and former DOE employees • Current and former DOE contractors and

subcontractors • Atomic Weapons Employers (AWE) • Beryllium Vendors (BV) • Uranium miners, millers, and ore transporters who

worked at facilities covered by Section 5 of Radiation Exposure Compensation Act (RECA)

• Certain family members of deceased workers (“survivors”)

EEOICP CLAIMS PROCESS • DOL reviews claims to determine

eligibility.

• Criteria:

• work at a covered site

• over a covered time period

• qualifying health condition (i.e., cancer)

• NIOSH requests worker and work site records and data (i.e., from DOE). Also makes work history phone calls to the claimants.

EEOICP CLAIMS PROCESS (…CONT)

RADIATION DOSE RECONSTRUCTION

PROGRAM •Attempt by the Department of Labor (DOL) to determine whether workers' potential exposure to certain types of radiation at a work site is linked to their cancer, as required under part B of the EEOICPA.

•Part B of the EEOICP requires that the Department of Health and Human Services (HHS) support the DOL in this effort through dose reconstruction, and HHS gave this responsibility to NIOSH.

•Dose reconstructions are performed by NIOSH Health Physicists: involve knowledge of physics, chemistry, biology, and statistics.

•Timeline:

•DOE providing info needed - goal within 60 days •NIOSH performing dose reconstruction - goal within 5 mo. after getting all data required.

EEOICP PART B BENEFITS

• $150,000 maximum compensation (radiogenic cancer, chronic beryllium disease, chronic silicosis)

• Medical benefits are available in addition to compensation

• No monetary compensation for beryllium sensitivity, medical monitoring only

PROVING CAUSATION UNDER EEOICP PART B

• NIOSH claims that the employee receives a favorable dose estimate after analysis of historical radiation dose records.

• NIOSH issues a Probability of Causation (PoC) calculation; if the PoC is 50% or higher, the DOL must accept the claim.

PART E CLAIM CRITERIA • Employment: proof of contractor or subcontractor

employment at a covered DOE facility. • Medical: must have a firm diagnosed illness • Toxic chemical exposure: medical condition and

toxic chemicals are liked to employment at a covered DOE facility.

• Burden of Proof is on the claimant: Examiners are trained and told not to contact the employee’s medical doctor for more information. The claimant must submit the necessary proof to establish a compensable claim.

• Recognized children

PROVING CAUSATION UNDER PART E

• Standard “More Likely than Not” Burden of Proof of Claim (≥ 50%) that employment at a covered DOE facility was a significant factor in aggravating, causing, or contributing to the employee’s medical condition(s) or caused the death of the employee

• Automatic approval for diagnosed asbestosis, pulmonary fibrosis, and lung diseases

• Accepted Part B & D conditions and RECA Section 5 conditions are always accepted under Part E

PART E BENEFITS

• wage loss

• impairment rating

• survivor benefits : $125, 000 + survivor’s wage loss

BENEFITS UNDER RECA AND EEOICP

• If an employee or survivor received an award under Radiation Exposure Compensation Act (RECA) Section 5, the DOL only pays $50,000 in compensation.

• Medical benefits are available in addition to compensation.

SPECIAL EXPOSURE COHORT

• Certain DOE SEC facilities grant automatic acceptance under Part B of the EEOICP, without going through the NIOSH dose reconstruction process, for employees who have worked at least 250 days prior to 2/1/1992 at a SEC work site and have one of the following cancers:

• Bone Cancer

• Renal Cancer

• Leukemia, if onset ≥ 2 yrs. after 1st exposure

• Lung cancer (except in-situ lung cancer discovered during or after autopsy)

SPECIAL EXPOSURE COHORT (…CONT)

The following cancers with onset at least five years after first exposure: •Multiple myeloma • Lymphomas (other than Hodgkin’s disease) • Primary cancer of the: • Bile ducts • Brain • Breast (female) • Breast (male) • Colon • Esophagus • Gall bladder • Liver (except if cirrhosis or hepatitis B is indicated) • Ovary • Pancreas • Pharynx • Salivary gland • Small intestine • Stomach • Thyroid • Urinary bladder

EEOICP CLAIM FORMS

• Current and former employees should file a claim for benefits using an EE-1 form. http://www.dol.gov/owcp/energy/regs/compliance/EEOICPForms/ee-1.pdf

• Eligible survivors should file a claim for benefits using an EE-2 form. http://www.dol.gov/owcp/energy/regs/compliance/EEOICPForms/ee-2.pdf

• Those with compensable medical illnesses such as Beryllium Sensitivity, Established

Chronic Beryllium Disease, Chronic Silicosis and Radiogenic Cancer should file a claim using the EE-7 form. http://www.dol.gov/owcp/energy/regs/compliance/EEOICPForms/ee-7.pdf.

• Health insurance claims form should be filed to claim coverage of medical costs :

http://www.dol.gov/owcp/dfec/regs/compliance/OWCP-1500.pdf. • Claim forms can be mailed to the District Office where the employee last worked. • Hanford EEOICP claimants should mail or fax their applications to: U.S. Department of Labor, DEEOIC 719 2nd Ave., Suite 601 Seattle, Washington 98104 Fax: 206-373-6798 or 206-373-6690

EXTRA HELP

• NIOSH Public Health Advisor - assists claimants with current claims at NIOSH - answers Q’s.

OTHER ISSUES TO CONSIDER ABOUT THIS

POLICY

• Scientific validity and quality of dose reconstructions

• Probability of causation

EEOICP COST

REFERENCES • Joseph LaDou, MS, MD and James Craner, MD, MPH. “Workers’ Compensation.” Chapter 6, Lange Current Diagnosis and Treatment: Occupational and Environmental Medicine, 5th edition. McGraw-Hill Education, 2014.

• “Hunter’s Diseases of Occupations,” 10 edition. Hotter Arnold, 2010.

• http://www.justice.gov/civil/common/reca

• https://www.osha.gov/as/opa/michaels_bio.html

• http://www.eecap.org/Basic_Questions.htm

• http://www.hanfordchallenge.org/helping-hanford-workers/filing-claims/energy-employees-occupational-illness-compensation-program/

• http://www.cdc.gov/niosh/ocas/ocasdose.html

• http://www.cdc.gov/niosh/ocas/phone.html

• http://www.cdc.gov/niosh/ocas/ocaspubs.html#factsheet

• http://www.cdc.gov/niosh/ocas/ocaspubs.html#drvideo

• Merwin et al. “IMPLICATIONS OF CLAIMANT-FAVORABLE APPROACHES USED IN DOSE AND PROBABILITY OF CAUSATION CALCULATIONS UNDER EEOICPA.” Health Physics: July 2008 - Volume 95 - Issue 1 - pp 148-159

doi: 10.1097/01.HP.0000305824.21020.10

• http://www.cdc.gov/niosh/OCAS/ocassec.html#classes

• http://www.dol.gov/owcp/energy/regs/compliance/weeklystats.htm

THANK YOU FOR YOUR ATTENTION!

• Direct further questions or correspondence to: gowdas@uw.edu