The Energy Employees Occupational Illness Compensation Program (EEOICPA) compensates employees/survivors of the Department of Energy (DOE) and its contractors and subcontractors suffering from specific illnesses due to exposure to radiation and other toxic substances as authorized by the Act. Stephens and Stephens EEOICPA claims attorneys help victims affected by toxic exposures at covered facilities get compensation for their work-related illnesses.
What are the EEOICPA Benefits?
EEOICPA has Part B and E benefit programs. Part B offers a lump sum payment of $150,000 and medical benefits to covered employees, vendors, contractors, and subcontractors suffering from occupational illnesses due to radiation, beryllium, or silica exposure. Their eligible survivors also receive a lump sum of $150,000 shared equally. Individuals with beryllium sensitivity get medical benefits and medical monitoring.
Part E provides variable amounts of compensation up to an aggregate total of $250,000 to DOE contractor employees or to their survivor(s) where exposure to a toxic substance is at least as likely as not a significant factor in aggravating, contributing to, or causing the employee’s illness or death. The amount is based on wage loss or impairment.
How Do I Get My EEOICPA Benefits?
EEOICPA claims are filed through several forms for employee and survivor claimants. An EE-1 form is the employee claim form, and an EE-2 form is completed by a surviving family member claiming benefits. Claimants also complete an EE-3 form, which is an employment history form.
The DEEOIC may also accept any letter or document containing “words of claim”,- meaning that the individual has communicated their intent to seek EEOICPA benefits in writing.
After these initial forms are filed, a claims examiner in the district office acknowledges receipt, describes what has been received, and requests any additional evidence required for claim acceptance. A claimant must prove (1) identity, (2) Eligible Employment, and (3) a compensable illness caused, contributed to, or aggravated by occupational exposure to a hazardous or toxic substance. These three are known as elements of proof.
How Do You Prove Your Identity When Filing an EEOICPA Claim?
You can file for EEOICPA benefits as an employee or a survivor. Form EE1 allows employees to identify themselves by giving their names, addresses, social security numbers, dates of birth, dependents, the claimed work-related conditions, and signatures.
Survivor Identity and relationship with the deceased employee
Survivors of a deceased employee claiming EEOICPA benefits must complete forms EE-2 providing the deceased employee’s information, the survivor’s information, and the covered illness being claimed. The survivor must provide their names, dates of birth, social security number, and proof of their relationship with the deceased.
Survivors eligible for compensation may include spouses, children, parents, grandchildren, and grandparents, depending on whether you qualify for EEOICPA part B or E benefits. Evidence required may include evidence to establish a covered employee’s death, such as a death certificate. The spouses must also show evidence of survivorship through a copy of the marriage certificate recognized by a State or an Indian Tribe Authority. The claimant must have been married to the deceased employee at least one year before their death.
Children of the deceased employee should provide a birth certificate or other evidence to prove their survivorship. For an adopted child, the claimant should provide a legal document showing the transfer of the child’s responsibility to the deceased.
How to Prove EEOICPA-Covered Employment
A claimant completes form EE-3, which, once verified, is used to determine their eligibility and the amount of benefits payable under EEOICPA. The employee must have been employed by an AWE, Beryllium Vendor, DOE, or DOE contractor or subcontractor. Also, the employee must have worked for the claimed employer at the premises of the covered AWE, Beryllium Vendor, or DOE facility. The claimed period of employment must have occurred during the covered time frame.
Employment verification can be challenging. Thus, the claimed employment doesn’t have to be proven beyond a reasonable doubt. Useful evidence of covered employment includes contracts, pay stubs, W2s, and co-workers’ statements supporting your employment during a covered period. The DEEOIC verifies EEOICPA-covered employment using the EE-3 form, DOE Employment Verification, Social Security Earnings Report, and EE-4 Co-Worker Statements.
How to Establish Diagnosis and Causation for a Covered Illness
Causation is the relationship between employment, exposure, and the diagnosed condition. For a successful claim, you must provide medical evidence of the diagnosis of an accepted illness from a qualified physical and with the initial diagnosis dates indicated. The evidence must show that exposure to a toxic substance at covered employment is “at least as likely as not” a significant factor in causing, aggravating, or contributing to the diagnosed condition.
Causation must also be established, except for illnesses with a presumption. A claimant may choose to have their physician opine on the causal relationship between exposure to a toxic substance and a diagnosed medical condition. Where the evidence is inconclusive in establishing the diagnosis or causation for the claimed condition, and the treating physician cannot provide the necessary information, the matter may be referred to a CMC, SECOP physician, or Referee Specialist.
Diagnosis
When submitting a claim, you must provide a diagnosis by a qualified physician, including physician treatment records, hospital records, physical exams, and medical notes. The diagnosis must be (a) explicit and (b) usually based on objective clinical tests.
Explicit -The claimant must provide an explicit diagnosis and diagnosis date for claims involving cancer and other conditions where a specified latency period applies. The medical opinion should provide sufficient details and rationale based on accepted medical knowledge to support the diagnosis and the date of diagnosis.
Based on objective clinical tests- Such tests include X-ray, B-Read, CT-Scan, Pulmonary Function Test (PFT) (with albuterol and Diffusion Capacity testing and a 6-minute walk test), echocardiogram, audiogram, and nerve conduction study. The diagnosis requirements vary depending on the illness.
Cancer Diagnosis
A cancer diagnosis is established through:
- A tissue examination is the most conclusive method for making a cancer diagnosis. It identifies the tissue of origin (where the tumor or lesion originated) and the status of the tested cellular tissue as benign, uncertain, or malignant(cancerous) tumors/lesions.
- Cytology report describing cells obtained by scraping (e.g., bone marrow) or washing (e.g., fluid from lungs). Cytology methods are less conclusive than tissue examination because the organization and extent of the tumor may not be as apparent.
- Imaging (e.g., X-ray, CAT Scan, MRI) is the least specific type of cancer diagnosis test. Generally, X-rays are used as a basis for further tests. Radiology tests are highly beneficial in determining the spread of cancer and the effects of cancer treatments.
Diagnosis for Beryllium sensitivity, CBD, or sarcoidosis
For beryllium sensitivity, CBD, or sarcoidosis, the claimant should submit a rationalized medical report, including a diagnosis, from a qualified physician. The required diagnosis for beryllium sensitivity includes affirmative evidence of a positive beryllium BeLPT or BeLTT. A physician’s opinion may be sought regarding whether it is “at least as likely as not” that exposure was a significant factor in aggravating, contributing to, or causing the condition.
Chronic Silicosis Diagnosis
There should be written evidence from a qualified physician of the diagnosis of chronic silicosis and the date of initial onset. The initial occupational exposure to silica dust must precede the onset of chronic silicosis by at least ten years. Diagnosis may include
- A chest radiograph, interpreted by a physician (certified by the NIOSH as a B-reader), classifying the existence of pneumoconiosis of category 1/0 or higher
- Results from a computer-assisted tomography or other imaging technique that are consistent with chronic silicosis
- Lung biopsy findings consistent with chronic silicosis
Asbestosis diagnosis
An asbestosis diagnosis is established through medical evidence identifying the employee as having developed the condition, along with a date of diagnosis. Diagnostic evidence of asbestosis or asbestos-related lung disease includes:
- Chest X-ray reports indicating pulmonary interstitial fibrosis and cardiac enlargement
- CAT and MRI indicating the presence of lung scarring, pleural thickening, and cardiac enlargement
- A PFT revealing pulmonary function and capacity, evaluated by a qualified physician
- A lung biopsy – cytological examination of the sputum or bronchial lavage often shows the presence of asbestos bodies.
What Happens if a diagnosis cannot be established?
If the employee is deceased or a living employee cannot undergo additional diagnostic testing for medical reasons, clinical evidence is needed to show that a qualified physician has evaluated available medical evidence, provided a well-rationalized opinion, and established the diagnosis. A death certificate acknowledged by a physician or recognized by a state medical authority may be used to establish a diagnosis without other affirmative medical evidence.
Forms and Processes Involved When Filing EEOICPA Claims
Authorization for Representation
When filing a claim through an authorized representative (AR), a claimant has to do so in writing by completing the authorization for Representation or Privacy Act Waiver. Unless the claimant’s authorization specifies otherwise, a properly appointed AR has the authority, to the same extent as the claimant, to present or seek evidence, make factual or legal arguments, seek medical authorization, interact with DEEOIC staff, and obtain information from the case file.
Engagement Letter
A representative issues the claimant with an engagement letter describing their terms and fees. We charge 2% of lump sum compensation when a claim is accepted on an initial claim, and the representative was retained prior to the filing of the initial claim. The fee goes up 10% if the claim is accepted after it is recommended for denial or denied in a final decision or otherwise.
EE-8 (race skin color form)
. Information regarding employee ethnicity for skin cancer cases is collected using Form EE/EN-8, also known as an ethnicity questionnaire. Race and ethnicity are included in the calculation of the probability of causation for skin cancer or secondary cancer, for which skin cancer is a likely primary cancer.
EE-9 (tobacco use form)
The employee’s smoking history is collected using Form EE/EN-8. This information is required for cases involving primary lung cancer or for secondary cancer with an unknown primary cancer that includes lung cancer as a possible primary cancer.
EE-10/EN-10 (Impairment Claim Form)
EE-10 or EN-10 is used by employees previously awarded compensation for wage loss to file a claim for additional wage loss for subsequent calendar years. When filing an EN-10, the claimant should submit sufficient employment and medical evidence to establish their entitlement to additional wage-loss benefits.
EE-11a/EN-11a (Increased Impairment Claim Form)
After receiving a FD approving part E claim, the claimant is also issued with Form EE-11A/EN-11A to solicit impairment claims if they are eligible for impairment benefits. The form also allows employees to choose their own qualified physician or a CMC to evaluate their impairment.
EE-16/EN-16 (SWC/Tort/Fraud Statements)
For each claim, the claimant must sign Form EN-16 SWC, Tort, or Fraud affidavit from the claimant. The form seeks to determine whether the claimant has:
- Filed a lawsuit related to the claimed illness or condition
- Received a settlement related to the claimed illness or condition
- Filed a claim for or received benefits from a state workers’ compensation program concerning the claimed illness or condition
- If the claimant has been convicted or pled guilty to a charge of fraud in connection with a workers compensation program
EE-17A/EN-17A (Home Health Eligibility Form)
A claimant can only request HRHC services in writing using Form EE-17A. It provides three options for HRHC (i.e., HHC, nursing home care, or residence in an assisted living facility). It also allows the claimant to designate a physician to manage their HRHC services. Claims for authorization for in-home hospice care do not require EE-17A, but a Hospice Certification specifying the individual’s prognosis for life expectancy as six months or less and clinical information supporting the medical prognosis.
EE-20/EN-20 (Compensation Transfer Form)
A Final Decision is issued alongside an EE-20/EN-20 form. The form seeks financial information from the claimant, allowing the Department of the Treasury to wire the lump sum compensation to the claimant. If the payee is a minor child, a parent or legal guardian must sign the EN-20 with evidence of their relationship or legal authority. If it is established that the payee is deceased, the claim is administratively closed.
Special Exposure Cohort (SEC) Presumption of Causation
Members of the SEC diagnosed with any of the 22 specified cancers do not require dose reconstruction, as the diagnosed cancer is presumed to have been caused by radiation exposure during their covered employment. SEC applies to employees of designated facilities for whom causation is presumed to occur from exposure to toxic substances.
A SEC class can be based on a whole facility, limited to specific buildings, processes within a facility, specific job titles, or duties. Each SEC class has a specific workday requirement that must be met; typically, an employee has to have been employed for workdays, aggregating at least 250 workdays at one or more SEC worksites. For the Amchitka, Alaska SEC class, an employee must have spent any part of a workday at that facility performing duties related to underground nuclear tests.
NIOSH Dose Reconstruction
NIOSH estimates the quantitative dose of radiation an employee receives while working at a covered facility to establish the probability that the cancer occurred from radiation-exposure. It is determined by reviewing the employee’s medical records, employment history, and exposure to radiation at a covered facility.
The NIOSH Report of Dose Reconstruction helps the claims examiner calculate PoC, which is necessary to decide on the claim. A claim may be denied if NIOSH cannot complete a dose reconstruction due to insufficient information to reasonably estimate the occupational radiation dose received by the employee.
The Dose reconstruction process
Dose reconstruction analyzes personal exposure data and other technical documents to estimate doses. After obtaining sufficient information, the case is assigned to a health physicist to conduct the dose.
NIOSH then sends questionnaires to claimants who submit answers through telephone interviews. A claimant can provide additional information about radiation exposure through such interviews. After the interview, the claimant receives a summary report, which they can review, correct, and provide additional information.
The completed report is forwarded to the DOL. DOL reviews the dose reconstruction report alongside medical and employment data to determine the probability of causation.
Probability of Causation (PoC)
Probability of Causation (PoC) is the likelihood that a cancer resulted from occupational radiation exposure to a covered employee. DOL calculates the PoC of cancer using NIOSH-IREP, a model that addresses 33 cancers and the most relevant EEOICPA radiation exposures. For a non-SEC employee to qualify for cancer compensation, under part B, DOL must determine that the cancer was “at least as likely as not” (that is, a 50% or greater probability) caused by occupational exposure to radiation doses at a DOE facility or an AWE facility.
Filing an EEOICPA Claim for Impairment Benefits
Part E of the EEOICPA compensates for permanent impairment attributed to a covered illness under Part E employment. An impairment claim is filed by submitting a completed Form EE-11A/EN-11A and an impairment letter. The claimant’s impairment is evaluated and calculated based on medical evidence and other forms of evidence. The employee can be evaluated by a qualified physician or a CMC. Impairment benefits may be subject to tort offset or SWC coordination.
Requirements for Impairment Ratings
- A covered employee is a covered DOE contractor or subcontractor employee or RECA Section 5 employee confirmed to have contracted a covered illness from exposure to a toxic substance at a DOE or RECA Section 5 facility.
- The covered employee has to claim impairment in writing.
- An impairment rating encompasses all covered illnesses at MMI.
NB: MMI is a situation where a condition is unlikely to improve substantially, even with medical treatment.
Terminally ill employees undergoing treatment for an illness that has not reached MMI are exempted from the provision, and the covered illness is included in the rating even if it has not reached MMI.
Filing Home and Residential Health Care (HRHC) Benefits
When filing HRHC benefits, the employee must produce a completed Form EE-17A, medical evidence, and a letter of medical necessity (LMN) from a qualified physician. A letter of medical necessity (LMN) is a qualified treating physician’s independent opinion on the claimant’s HRHC regarding one or more DEEOIC-accepted conditions.
Factors considered when approving HRHC benefits
- The physician should provide relevant information regarding the claimant’s medical history, findings during the face-to-face examination, a clear explanation of the specific level and frequency of HHC services required of the claimant, and an explanation as to why the claimant requires that specific care for their accepted condition(s).
- The medical evidence in the case file should reasonably align with the description of the claimant’s status concerning the effect of an accepted condition(s) and the claimant’s ability to perform activities of daily living (ADLs).
- For assisted living or nursing home referrals, the physician should explain why the claimant’s current environment no longer safely supports the claimant’s medical needs.
- The physician’s justification should support the time needed to fulfill the specific claimant’s HHC needs regarding an accepted condition(s).
What If My EEOICPA Claim is Denied?
If a claimant is unhappy with the final decision regarding their claim, they may contest it by requesting a re-opening. The Director of the DEEOIC or other delegated officials can re-open and overturn a Final Decision issued by the Final Adjudication Branch (FAB).
To contest a denied claim, the claimant prepares and signs a written request seeking the re-opening of the final decision. The request should specify the decision the claimant is contesting, state the reasons for contesting it, and explain how new evidence or arguments justify a re-opening.
AR helps the claimant collect additional evidence that they intend to use to support the re-opening request, such as new medical evidence, employment, and survivor documentation.
A final decision may be reversed if evidence shows that the RD denied benefits in error or when new compelling evidence warrants overturning a RD denial and accepting a claim for benefits. A reversal can be issued when a case is denied in whole or part.