DEPARTMENT OF ENERGY  10 CFR Part 852
RIN  1901-AA90
Guidelines for Physicians Panel Determinations on Worker Requests for
Assistance in Filing for State Workers' Compensation Benefits
AGENCY:  Department of Energy.
ACTION:  Notice of final rulemaking.
SUMMARY:  The Department of Energy (DOE) is today publishing a final rule
providing procedures to implement Subtitle D of the Energy Employees
Occupational Illness Compensation Program Act of 2000 under which a DOE
contractor employee or the employee's estate or survivor can seek assistance
from the DOE Office of Worker Advocacy (Program Office) in filing a claim
with the appropriate State workers' compensation system based on an illness
or death caused by exposure to a toxic substance during the course of
employment at a DOE facility.  These procedures deal with how:  (1) an
individual may submit an application to the Program Office for review and
assistance, (2) the Program Office determines whether to submit an
application to a physician panel, (3) physician panels determine whether the
illness or death of a DOE contract employee arose out of and in the course
of employment by a DOE contractor and through exposure to a toxic substance
at a DOE facility, (4) the Program Office accepts a determination by a
physicians panel, and (5) appeals may be undertaken.
 

The summary for 10 CFR Part 852 alone reveals the inheritant flaws and
injustice of this law, not to mention the grave disservice it commits
against sickened and dying nuclear workers.

The very idea that it is the DOE Office of Worker Advocacy (DOE-OWA) Program
Office that will make the determinations as to whether or not a claim will
even be allowed to jump through the first hoop of the process - that of
being forwarded for review by a physicians panel - is asking the fox to
guard the henhouse.  The DOE is driven, institutionally, to protect its
organization and to limit, to the greatest extent possible, all liability.
This provision is a blantant attempt to limit as much as possible the
knowledge of the full extent of the DOE's full liability for damage to
nuclear workers by DOE and its contractors.  By controlling the process from
the outset, they can now exercise control over its outcome.
Because it is the DOE and DOE contractors' practices and blantant disregard
for workers health and safety that has created the illnesses being claimed,
expecting any office under the DOE's purview to be objective during this
kind of determination process is nothing short of ludicrous, as workers
currently attempting to go through the compensation process are now
learning.

The DOE-OWA Program Office personnel making these determinations are not
doctors, have no medical background, and are not qualified to determine
whether or not claims are 'justified' for elevation to the next level -
review by a physician's panel.

The physician's panels are made up of physicians chosen and approved by the
DOE and the Department of Labor - a clear conflict of interest if ever one
existed.

Physicians attempting to ascertain whether or not a claimant's illness
"arose out of and in the course
of employment by a DOE contractor and through exposure to a toxic substance
at a DOE facility" have the impossible task of trying to make that
determination in the face of destroyed and / or missing employee  exposure
records and incorrect information provided by the DOE facilities themselves.
This has the effect of making certain only those illnesses that are
glaringly obvious in origin and can be directly traced to the facilities in
question will be approved for compensation.  Those with illnesses which are
the result of multiple exposures that went undocumented and those caused by
exposure to a number of different toxic substances at once have little or no
chance at all of obtaining approval.  By DOE's own admission, many of the
records relating to DOE nuclear facility spills, personnel exposure incident
s, etc. are "missing" they say, or have been destroyed.  These multiple
exposures and multi-substance exposures, therefore, can not be substantiated
by claimants and will not to assumed as valid by the DOE and DOL appointed
physicians.  The illnesses that have resulted from these kinds of exposures,
which the DOE still refuses to ackowledge took place, account for no less
than 50% of all sick workers illnesses and deaths.

The ultimate responsibility for compensating the worker's damaged by the
DOE's nuclear facilities does not lie with the states.  More to the point,
it does not lie with the current taxpayers in the states in which these
plants are located.  The responsibility for compensating the affected
workers lies with the federal government which, at the very least, allowed
the DOE to operate its facilities as it pleased, skirting federal laws such
as NPDES and NEPA in the process.  During the first 30 years of the
operation of the nuclear facilities in Oak Ridge, Tennessee, for example,
the state was not even given access to the facilities and had no
jurisdiction to investigate claims of harm by Tennessee workers.  Even now,
the Occupational Safety and Health Administration (OSHA) has no
jurisdictional authority to investigate workers claims of unsafe and
hazardous working conditions at DOE facilities.
Americas nuclear workers have had no one to turn to regarding the violation
of their safety and health, either during or after their employment - not
the authorities in their states and not even OSHA.  No one, that is, except
the DOE - the very perpetrators of the harm caused to them and the illnesses
they suffer from.
10 CFR Part 852 is another injustice heaped upon those who have lived with
enough injustice as it is.
Respectfully,