Court Filing Could Change Presumption of Causation in Energy Employee Cancers

Buffalo, NY (WorkersCompensation.com) – A filing in a lawsuit against the federal government could change the way radiation dosage is calculated when it comes to compensating federal energy employees exposed to radiation.

Hugh Stephens, an attorney who represents federal workers who worked at nuclear weapons factories trying to get compensation through the Employee Energy Occupational Illness Compensation Act, filed a petition asking the courts to set aside current practices of estimating radiation exposure in cases where exposure can’t be accurately estimated.

The EEOIC provides compensation for employees at the nation’s nuclear weapons and disposal facilities who developed cancers after being exposed to radiation as part of their jobs. In order to qualify for the compensation, employees must first prove that their cancer was at least as likely as not to have developed because of their employment.

To do this, the federal government works to create dose reconstructions to determine whether or not employees were sufficiently exposed to radiation that would have reasonably caused their cancer. A percentage of causation of the exposure is determined. If the percentage is 50 percent or higher, employees are awarded compensation under the EEOIC program.

But, in many cases, it is impossible for the government to reconstruct those dosages because equipment for monitoring the exposure was not in use, Stephens said.

Currently, in these cases, the government determines that “It is not feasible to estimate with sufficient accuracy the radiation dose.” These cases are then determined to have no exposure since the dose cannot be determined with sufficient accuracy.

That presents a problem, Stephens said. When the exposures for the years employed by the workers are averaged up, those with zero exposure bring the total down and undermine a claimant’s case.

Instead, Stephens argues, dose should be estimated with “reasonable” accuracy.

“Dose should be estimated for these claimants where that does can be estimated ‘reasonably’ even if there has been a determination that a dose cannot be estimate with ‘sufficient accuracy’,” he said in an interview with WorkersCompensation.com. “The Department of Energy exposed these workers to radioactive materials, ultra-hazardous materials, without their knowledge or consent. If the Department of Labor does not know how much radiation it exposed its workers to, that is not the fault of the workers.”

The Case

The petition stems from the case for Arnold Young, who worked at the Electro Metallurgical facility as a DOE contract employee from February 1941 to October 1945. According to the filing, Young was exposed to uranium at Electro Metallurgical from April 1943 until October 1945. Young went on to work off and on at Linde Ceramics Plant from 1956 until 1971. Linde Ceramics was the site of uranium and nickel processing from 1942 until 1949 and was believed to be contaminated with uranium through 2006, during which time Young was exposed to the contamination.

“Mr. Arnold Young was diagnosed with prostate cancer on March 21, 1984, and died on August 5, 1985,” the filing states. Because prostate cancer is not one of the presumptive cancers, Young was considered outside of the Special Exposure Cohort.

Young’s claim was denied because officials at the Department of Health and Human Services determined that it was not possible to prepare a “sufficiently accurate” dose estimation.

“HHS’s failure to provide an internal dose estimate for Mr. Young was based not on an inability to calculate a reasonable internal dose estimate, as a reasonable internal dose estimate was prepared in 2011, prior to the establishment of the Special Exposure Cohort (SEC),” the filing said. “Rather, with the establishment of the SEC, HHS determined that the safety precautions introduced in 1947 created a level of inaccuracy in the estimation of earlier internal doses and that rendered those estimates insufficiently in the estimation of earlier internal doses and that rendered those estimates insufficiently accurate to support the denial of a claim for purposes of the program… HHS’s error is that the determination regarding whether the internal dose estimate is accurate enough to deny a claim is only relevant to the determination of which workers should be included in the SEC, not which workers should receive a reasonable internal dose estimate in support of the acceptance of a claim.”

If the judge rules in Young’s favor, Stephens said, the case could impact tens of thousands of cases.

“This will be a relatively significant policy to implement as it will require NIOSH and the Advisory Board on Radiation and Worker Health to reassess feasibility at each of the 75 or so SEC facilities and where reasonable dose is deemed feasible, the denied non-SEC cancer claims (primarily skin and prostate cancer) will need to have a dose reconstruction re-work,” he said. “While this is a significant task, the NIOSH and ABRWH have cleared much of the backlog of tasks it faced early on in the program. So this is a good time to make this program a little better and little more true to its mission.”

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