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In the search for a model for finally resolving work-related disease claims by World Trade Center workers, the Energy Employee Occupational Illness Compensation Program Act is a strong contender.

There is an eerie similarity between the background of the EEOICPA program and the World Trade Center mess: poor safety, poor monitoring and a thicket of barriers to obtain workers' compensation benefits.

Workers with diseases had been virtually locked out from benefits through state systems.

Before federal takeover, very few disease claims--perhaps in the low hundreds--had been awarded. Under federal management, 25,000 claims have so far been awarded, all based on evidence of medical conditions and affirmation of causality.

After the federal program went into effect on July 31, 2001, it languished in the U.S. Department of Energy. In 2004, it was transferred to the Department of Labor's Office of Workers' Compensation Programs, which has assigned 530 employees to the project.

So far, DOL has received claims from 63,210 workers. To date it has paid out $3.4 billion, much of which is $150,000 one-size-fits-all "apology payments."

Shelby Hallmark, director of OWCP, says that one part of the program delivers benefits for 22 listed conditions, many of them cancers. The second deals with all other work-related conditions. Initially, the Department of Energy was tasked to help these workers to file and obtain workers' compensation benefits under state systems for any other conditions.

However, according to Hallmark, "Virtually all of those who tried to get on workers' compensation failed." When DOL took over the entire program, the feds also assumed full financial liability for these claims.

Richard Miller has been involved with these workers since the 1980s. He was employed by the Oil, Chemical & Atomic Workers Union, and is now an investigator for the House Committee on Energy and Commerce.

He recalls that, "The entire industrial capacity of the country was captured to create nuclear weapons until the government facilities were built up. This was mainly in the 1940s and 1950s."

Miller cites the case of Pennsylvania, where the laws effectively barred long latency diseases from workers' compensation awards. If an occupational disease arose more than 60 months after the last date of exposure, a worker was not entitled to benefits, according to Miller.

"An exceptional effort was done in the state legislature to change that law," he says. "We started to get the workers screened, but despite everyone's best efforts to prove exposure, they were never able to prevail upon the state of Pennsylvania to modify the state law."

In 1999, Energy Secretary Bill Richardson assigned staff to research the problem.

Miller says, "Richardson kicked open the door."

In March 2000, the White House's National Economic Council assessed the justification for a sweeping takeover.

It found "strong association between employment and adverse health outcomes, showing up in nonmalignant lung disease and cancers." There were serious problems with monitoring of workers, including "systemic underestimation of doses of chemical hazards" at Oak Ridge National Laboratories.

The Council found that between 8 percent and 46 percent of workers with occupational illnesses had filed workers' compensation claims. Workers said that they were deterred from filing by fear that their claim would be denied. The Council added that the exposure evidence needed to prove a claim under state laws was "beyond the ability of an ill worker to obtain."

Miller asserts that, in some instances, "the workers had no ability to prevail in any proceeding because they had no monitoring data." The federal government is now reconstructing the exposure dosage that workers received as much as 50 years ago.

Congress can shift the open World Trade Center disease claims to OWCP. It could mandate a special protocol for evaluating claims. FEMA, financially responsible now for these workers' compensation claims through insurers, would settle up in the same manner in which insurers often transfer books of incurred workers' compensation losses. FEMA would then directly fund OWCP's benefit awards.

November 1, 2007

Copyright 2007© LRP Publications