EEOICPA PART E POPULATION BASED OCCUPATIONAL EPIDEMIOLOGICAL STUDIES

We have been running into some interesting language in the opinions of Contract Medical Consultants (CMCs, formerly known as District Medical Consultants (DMCs)) as we manage PART E Energy Employees Occupational Illness Compensation Program Act (EEOICPA) claims.  As many of you know these CMCs are the experts hired by the Department of Labor (DOL) to address issues of a scientific nature whether medical, occupational or toxicological.  It appears that the standard against which every claim is being measured is whether there exists a “population based occupational, epidemiological” study providing a causal connection between the hazardous or toxic substance at issue and the claimed condition or illness.  This has given rise to certain less than rational conclusions as the CMCs attempt to fit what we believe to be the DOL dictated requirement into certain of the less straightforward claims.  For example, one of our claimants was exposed to albi-duraclad fibers which irritated his lungs thereby contributing to an empyema which, in turn, required the removal of a large portion of his lung.  This factual situation caused the CMC to go out in search of a population based, occupational, epidemiological study causally linking albi-duraclad fibers, also referred to at times as rock wool fibers empyema.  But the situation is not that simple or perhaps there would be little need for an expert.  In this case, the claimant’s treating physician has provided a well rationalized letter explaining that the albi-duraclad fibers irritated the claimant’s lungs and made them susceptible to infection.  The infection, in turn, gave rise to the empyema.  We believe that a requirement that there be a population based, occupational, epidemiological study showing that albi-duraclad or rock wool causes empyema is a requirement over and above that which is mandated by the statute and the regulations and is ultra vires, or beyond the power of the Department of Labor to impose.  The proper standard addresses whether the hazardous or toxic substance was a significant factor in the aggravation, contribution to or causation of the occupational illness.  The imposition of this extraordinarily stringent and inflexible condition upon each claim under Part E of EEOICPA is beyond the power of the Department of Labor to impose and should be set aside as a requirement that exceeds the requirements established in the legislation.  If congress wishes to restrict compensation under the EEOICPA, it can do so, but the Department of Labor is not permitted to do so in its implementation of the statute or in its regulations.  At the same time, the Department of Labor has much more room to implement the statute through the use of regulations which are subject to public comment and other due process protections.  But to impose this type of restriction in what we believe is an unpublished, or at least a less than widely circulated, document, that appears to be distributed to CMCs and not to claimants, is an unlawful incursion into the sovereign territory rightfully occupied solely by the legislature.