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Testimony:

Before the Subcommittee on Energy, Committee on Energy and Natural 
Resources, U.S. Senate:

United States General Accounting Office:

GAO:

For Release on Delivery Expected at 9:00 a.m. CST:

Saturday, December 6, 2003:

energy employees compensation:

Case-Processing Bottlenecks Delay Payment of Claims:

Statement of Robert E. Robertson, Director, Education, Workforce, and 
Income Security Issues:

GAO-04-298T:

GAO Highlights:

Highlights of GAO-04-298T, testimony before the Subcommittee on 
Energy, Committee on Energy and Natural Resources, U.S. Senate 

Why GAO Did This Study:

The Department of Energy (Energy) and its predecessor agencies and 
contractors have employed thousands of workers in the nuclear weapons 
production complex. Some employees were exposed to toxic substances, 
including radioactive and hazardous materials, during this work and 
many subsequently developed illnesses. Subtitle D of the Energy 
Employees Occupational Illness Compensation Program Act of 2000 allows 
Energy to help its contractor employees file state workers’ 
compensation claims for illnesses determined by a panel of physicians 
to be caused by exposure to toxic substances in the course of 
employment at an Energy facility. Energy began accepting applications 
under this program in July 2001, but did not begin processing them 
until its final regulations became effective on September 13, 2002.

The Congress mandated that GAO study the effectiveness of the benefit 
program under Subtitle D of this Act. This testimony is based on GAO’s 
ongoing work on this issue and focuses on three key areas: 

(1) the number, status, and characteristics of claims filed with 
Energy; (2) the extent to which there will be a “willing payer” of 
workers’ compensation benefits, that is, an insurer who—by order from, 
or agreement with Energy—will not contest these claims; and (3) the 
extent to which Energy policies and procedures help employees file 
timely claims for these state benefits.

What GAO Found:

As of June 30, 2003, Energy had completely processed only about 6 
percent of the nearly 19,000 cases it had received. More than three-
quarters of all cases were associated with facilities in nine states. 
Processing had not begun on over half of the cases and, of the 
remaining 40 percent of cases that were in processing, almost all were 
in the initial case development stage, as illustrated below.

[See PDF for image]

[End of figure]

While the majority of cases (86 percent) associated with major Energy 
facilities in nine states potentially have a willing payer of workers’ 
compensation benefits, actual compensation is not certain. This figure 
is based primarily on the method of workers’ compensation coverage 
used by Energy contractor employers and is not an estimate of the 
number of cases that will ultimately be paid. Since no claimants to 
date have received compensation as a result of their cases filed with 
Energy, there is no actual experience about how contractors and state 
programs treat such claims.

Claimants have been delayed in filing for state worker’s compensation 
benefits because of two bottlenecks in Energy’s claims process. First, 
the case development process has not always produced sufficient cases 
to allow the panels of physicians who determine whether the worker’s 
illness was caused by exposure to toxic substances to operate at full 
capacity. While additional resources may allow Energy to move 
sufficient cases through its case development process, the physician 
panel process will continue to be a second, more important, 
bottleneck. The number of panels, constrained by the scarcity of 
physicians qualified to serve on panels, will limit Energy’s capacity 
to decide cases more quickly, using its current procedures. Energy 
officials are exploring ways that the panel process could be more 
efficient.

www.gao.gov/cgi-bin/getrpt?GAO-04-298T.

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Robert E. Robertson 
at (202) 512-7215 or robertsonr@gao.gov..

[End of section]

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss our work regarding the 
effectiveness of the benefit program under Subtitle D of the Energy 
Employees Occupational Illness Compensation Program Act of 2000 
(EEOICPA) in assisting contractor employees in obtaining compensation 
for occupational illnesses. Congress mandated that we study this issue 
and report to the Senate Committees on Energy and Natural Resources and 
Appropriations and the House Committees on Energy and Commerce and 
Appropriations.

For the last several decades, the Department of Energy (Energy), and 
its predecessor agencies and contractors have employed thousands of 
individuals in secret and dangerous work in the nuclear weapons 
production complex. Over the years, employees were unknowingly exposed 
to toxic substances, including radioactive and hazardous materials, and 
studies have shown that many of these employees subsequently developed 
illnesses. The Energy Employees Occupational Illness Compensation 
Program provides for compensation to these employees who developed 
occupational illnesses and, where applicable, to their survivors. 
Congressional Committees, as well as individual Members of Congress, 
claimants, and advocates have raised concerns regarding Energy's 
processing of claims and the availability of benefits once claims have 
been decided.

As title XXXVI of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001, which was signed into law on October 30, 
2000, this legislation has two major components. Subtitle B provides 
eligible workers who were exposed to radiation or other toxic 
substances and who subsequently developed illnesses such as cancer and 
lung disease a one-time payment of up to $150,000 and covers future 
medical expenses related to the illness. The Department of Labor 
administers these benefits, payable from a compensation fund 
established by the same legislation. Subtitle D allows Energy to help 
its contractor employees file state workers' compensation (WC) claims 
for illnesses determined by a panel of physicians to be caused by 
exposure to toxic substances in the course of employment at an Energy 
facility. The legislation did not set aside funding for payment of 
benefits under Subtitle D.

My testimony today reflects our ongoing review of the effectiveness of 
Energy's implementation of Subtitle D. We focused our work on three key 
areas: (1) the number, status, and characteristics of claims filed with 
Energy; (2) the extent to which there will be a "willing payer" of 
workers' compensation benefits; that is, an insurer who--by order from, 
or agreement with Energy--will not contest these claims; and (3) the 
extent to which Energy policies and procedures help employees file 
timely claims for state workers' compensation benefits.

In summary, as of June 30, 2003, Energy had fully processed about 6 
percent of the nearly 19,000 cases received, and more than three-
quarters of all cases were associated with facilities in nine states. 
Energy had not begun processing over half of the cases received. While 
some other case characteristics can be determined, such as illness 
claimed, systems limitations prevent reporting on other case 
characteristics, such as the reasons for ineligibility or basic 
demographics. While the majority of cases (86 percent) associated with 
major Energy facilities in nine states potentially have a willing payer 
of workers' compensation benefits, actual compensation is not certain. 
In certain states such as Ohio and Iowa, there are likely to be many 
cases that lack willing payers, and in some instances may be less 
likely to receive compensation than a comparable case with a willing 
payer in a different state. The 86 percent figure reflects the number 
of cases for which contractors and their insurers are likely to not 
contest a workers' compensation claim, rather than the number of cases 
that will ultimately be paid. For all claimants, actual compensation is 
not certain because of additional factors such as variations in state 
workers' compensation programs or contractors' uncertainty on how to 
compute the benefit. Claims for workers' compensation have been delayed 
by two bottlenecks in Energy's claims process. First, Energy's case 
development process has not always produced sufficient cases to keep 
physician panels operating at full capacity. While additional resources 
may allow Energy to move a sufficient number of cases through its case 
development process, the physician panel process will continue to be a 
second and more important bottleneck. The number of panels, constrained 
by the scarcity of physicians qualified to serve on panels, will limit 
Energy's capacity to decide cases more quickly, using its current 
procedures. Energy officials are exploring ways that the panel process 
could be made more efficient.

To perform our review, we analyzed data extracted from Energy's 
Subtitle D case management system for applications filed through June 
30, 2003.[Footnote 1] We also reviewed the provisions of, and 
interviewed officials with, the workers' compensation programs in nine 
states accounting for more than three-quarters of Subtitle D cases 
filed, and we interviewed the contractors operating the major 
facilities in these states. In addition, we conducted site visits to 
three Energy facilities in Oak Ridge, Tennessee, the state with 
facilities accounting for the greatest number of Subtitle D claims. We 
also interviewed key program officials and other experts. We conducted 
our review from April 2003 through October 2003 in accordance with 
generally accepted government auditing standards.

Background:

Energy oversees a nationwide network of 40 contractor-operated 
industrial sites and research laboratories that have historically 
employed more than 600,000 workers in the production and testing of 
nuclear weapons. In implementing EEOICPA, the President acknowledged 
that it had been Energy's past policy to encourage and assist its 
contractors in opposing workers' claims for state workers' compensation 
benefits based on illnesses said to be caused by exposure to toxic 
substances at Energy facilities.[Footnote 2] Under the new law, workers 
or their survivors could apply for assistance from Energy in pursuing 
state workers' compensation benefits, and if they received a positive 
determination from Energy, the agency would direct its contractors to 
not contest the workers' compensation claims or awards. Energy's rules 
to implement the new program became effective in September 2002, and 
the agency began to process the applications it had been accepting 
since July 2001, when the law took effect.

Energy's claims process has several steps, as shown in Figure 1. First, 
claimants file applications and provide all available medical evidence. 
Energy then develops the claims by requesting records of employment, 
medical treatment, and exposure to toxic substances from the Energy 
facilities at which the workers were employed. If Energy determines 
that the worker was not employed by one of its facilities or did not 
have an illness that could be caused by exposure to toxic substances, 
the agency finds the claimant ineligible. For all others, once 
development is complete, a panel of three physicians reviews the case 
and decides whether exposure to a toxic substance during employment at 
an Energy facility was at least as likely as not to have caused, 
contributed to, or aggravated the claimed medical condition. The panel 
physicians are appointed by the National Institute for Occupational 
Safety and Health (NIOSH) but paid by Energy for this work. Claimants 
receiving positive determinations are advised that they may wish to 
file claims for state workers' compensation benefits. Claimants found 
ineligible or receiving negative determinations may appeal to Energy's 
Office of Hearings and Appeals.

Figure 1: Figure 1. Energy's Claims Process:

[See PDF for image]

[End of figure]

Each of the 50 states and the District of Columbia has its own workers' 
compensation program to provide benefits to workers who are injured on 
the job or contract a work-related illness. Benefits include medical 
treatment and cash payments that partially replace lost wages. 
Collectively, these state programs paid more than $46 billion in cash 
and medical benefits in 2001. In general, employers finance workers' 
compensation programs. Depending on state law, employers finance these 
programs through one of three methods: (1) they pay insurance premiums 
to a private insurance carrier, (2) they contribute to a state workers' 
compensation fund, or (3) they set funds aside for this purpose as 
self-insurance. Although state workers' compensation laws were enacted 
in part as an attempt to avoid litigation over workplace accidents, the 
workers' compensation process is still generally adversarial, with 
employers and their insurers tending to challenge aspects of claims 
that they consider not valid.

State workers' compensation programs vary as to the level of benefits, 
length of payments, and time limits for filing. For example, in 1999, 
the maximum weekly benefit for a total disability in New Mexico was 
less than $400, while in Iowa it was approximately $950. In addition, 
in Idaho, the weekly benefit for total disability would be reduced 
after 52 weeks, while in Iowa benefits would continue at the original 
rate for the duration of the disability. Further, in Tennessee, a claim 
must be filed within 1 year of the beginning of incapacity or death. 
However, in Kentucky a claim must be filed within 3 years of exposure 
to more substances, but within 20 years of exposure to radiation or 
asbestos.

Energy Has Fully Processed Few Cases, and Systems Limitations 
Complicate Program Management:

As of June 30, 2003, Energy had completely processed about 6 percent of 
the nearly 19,000 cases that had been filed, and the majority of all 
cases filed were associated with facilities in nine states. Forty 
percent of cases were in processing, but more than 50 percent remained 
unprocessed. While some case characteristics can be determined, such as 
illness claimed, systems limitations prevent reporting on other case 
characteristics, such as the reasons for ineligibility or basic 
demographics.

About 6 Percent of Cases Have Been Fully Processed:

During the first 2 years of the program ending June 30 2003, Energy had 
fully processed about 6 percent of the nearly 19,000 claims it 
received. The majority of these claims had been found ineligible due to 
either a lack of employment at an eligible facility or an illness 
related to toxic exposure. Of the cases that had been fully processed, 
42 cases--less than one third of one percent of the nearly 19,000 cases 
filed--had a final determination from a physician panel. More than two 
thirds of these determinations (30 cases) were positive. At the time of 
our study, Energy had not yet begun processing more than half of the 
cases, and an additional 40 percent of cases were in processing (see 
fig. 2). The majority of cases being processed were in the case 
development stage, where Energy requests information from the facility 
at which the claimant was employed. Fewer than 1 percent of cases in 
process were ready for physician panel review and an additional 1 
percent were under panel review.

Figure 2: Figure 2. Case Status as of June 30, 2003:

[See PDF for image]

[End of figure]

A majority of cases were filed early during program implementation, but 
new cases continue to be filed. Nearly two-thirds of cases were filed 
within the first year of the program, between July 2001 and June 2002. 
However, in the second year of the program--between July 2002 and June 
30, 2003--Energy continued to receive more than 500 cases per month. 
Energy officials report that they currently receive approximately 100 
new cases per week.

Energy Facilities in Nine States Account for More than 75 percent of 
Cases:

While cases filed are associated with facilities in 38 states or 
territories, the majority of cases are associated with Energy 
facilities in nine states (see fig. 3).[Footnote 3] Facilities in 
Colorado, Idaho, Iowa, Kentucky, New Mexico, Ohio, South Carolina, 
Tennessee, and Washington account for more than 75 percent of cases 
received by June 30, 2003. The largest group of cases is associated 
with facilities in Tennessee.

Figure 3: Figure 3. Distribution of Cases by Employee's Last Energy 
Facility Worked:

[See PDF for image]

[End of figure]

Workers filed the majority of cases, and cancer is the most frequently 
reported illness. Workers filed about 60 percent of cases, and 
survivors of deceased workers filed about 36 percent of cases. In about 
1 percent of cases, a worker filed a claim that was subsequently taken 
up by a survivor. Cancer is the illness reported in more than half of 
the cases. Diseases affecting the lungs accounted for an additional 14 
percent of cases. Specifically, chronic beryllium disease is reported 
in 1 percent of cases, and beryllium sensitivity, which may develop 
into chronic beryllium disease, is reported in an additional 5 percent. 
About 7 percent of cases report asbestosis, and less than 1 percent 
claimed silicosis.

Systems Limitations Complicate Program Management:

Systems limitations prevent Energy officials from aggregating certain 
information important for program management. For example, the case 
management system does not collect information on the reasons that 
claimants had been declared ineligible or whether claimants have 
appealed decisions. Systematic tracking of the reasons for 
ineligibility would make it possible to identify other cases affected 
by appeal decisions that result in policy changes. While Energy 
officials report that during the major systems changes that occurred in 
July 2003, fields were added to the system to track appeals 
information, no information is yet available regarding ineligibility 
decisions. In addition, basic demographic data such as age and gender 
of claimants are not available. Gender information was not collected 
for the majority of cases. Further, insufficient edit controls--for 
example, error checking that would prevent claimants' dates of birth 
from being entered if the date was in the future--prevent accurate 
reporting on claimants' ages.

Insufficient strategic planning regarding data collection and tracking 
have made it difficult for Energy officials to completely track case 
progress and determine whether they are meeting the goals they have 
established for case processing. For example, Energy established a goal 
of completing case development within 120 days of case assignment to a 
case manager. However, the data system developed by contractors to aid 
in case management was developed without detailed specifications from 
Energy and did not originally collect sufficient information to track 
Energy's progress in meeting this 120-day goal. Furthermore, status 
tracking has been complicated by changes to the system and failure to 
consistently update status as cases progress. While Energy reports that 
changes made as of July 2003 should allow for improved tracking of case 
status, it is unclear whether these changes will be applied 
retroactively to status data already in the system. If they are not, 
Energy will still lack complete data regarding case processing 
milestones achieved prior to these changes.

While A Majority of Cases Potentially Have A Willing Payer, Actual 
Compensation Is Not Certain:

Our analysis shows that a majority of cases associated with major 
Energy facilities in nine states[Footnote 4] will potentially have a 
willing payer of worker's compensation benefits. This finding reflects 
the number of cases for which contractors and their insurers are likely 
to not contest a workers' compensation claim, rather than the number of 
cases that will ultimately be paid. The contractors considered to be 
willing payers are those that have an order from, or agreement with, 
Energy to not contest claims. However, there are likely to be many 
claimants who will not have a willing payer in certain states, such as 
Ohio and Iowa. For all claimants, additional factors such as state 
workers' compensation provisions or contractors' uncertainty on how to 
compute the benefit may affect whether or how much compensation is 
paid.

A Majority of Cases in Nine States Potentially Have a Willing Payer:

A majority of cases in nine states will potentially have a willing 
payer of workers' compensation benefits, assuming that for all cases 
there has been a positive physician panel determination and the 
claimant can demonstrate a loss from the worker's illness that has not 
previously been compensated. Specifically, based on our analysis of 
worker's compensation programs and the different types of workers 
compensation coverage used by the major contractors, it appears that 
approximately 86 percent of these cases will potentially have a willing 
payer--that is, contractors and their insurers who will not contest the 
claims for benefits. It was necessary to assume that all cases filed 
would receive a positive determination by a physician panel because 
sufficient data are not available to project the outcomes of the 
physician panel process. More specifically, there are indications that 
the few cases that have received determinations from physician panels 
may not be representative of all cases filed, and sufficient details on 
workers' medical conditions were not available to enable us to 
independently judge the potential outcomes. In addition, we assumed 
that all workers experienced a loss that was not previously compensated 
because sufficient data were not available to enable us to make more 
detailed projects on this issue.

As shown in table 1, most of the contractors for the major facilities 
in these states are self-insured, which enables Energy to direct them 
to not contest claims that receive a positive medical 
determination.[Footnote 5] In addition, the contractor in Colorado, 
which is not self-insured but has a commercial policy, took the 
initiative to enter into an agreement with Energy to not contest 
claims. The contractor viewed this action as being in its best interest 
to help the program run smoothly. However, it is unclear whether the 
arrangement will be effective because no cases in Colorado have yet 
received compensation. In such situations where there is a willing 
payer, the contractor's action to pay the compensation consistent with 
Energy's order to not contest a claim will override state workers' 
compensation provisions that might otherwise result in denial of a 
claim, such as failure to file a claim within a specified period of 
time. However, since no claimants to date have received compensation as 
a result of their cases filed with Energy, there is no actual 
experience about how contractors and state workers' compensation 
programs treat such cases.

About 14 percent of cases in the nine states we analyzed may not have a 
willing payer. Therefore, in some instances these cases may be less 
likely to receive compensation than a comparable case for which there 
is a willing payer, unless the claimant is able to overcome challenges 
to the claim. Specifically, these cases that lack willing payers 
involve contractors that (1) have a commercial insurance policy, (2) 
use a state fund to pay workers' compensation claims, or (3) do not 
have a current contract with Energy. In each of these situations, 
Energy maintains that it lacks the authority to make or enforce an 
order to not contest claims. For instance, an Ohio Bureau of Workers' 
Compensation official said that the state would not automatically 
approve a case, but would evaluate each workers' compensation case 
carefully to ensure that it was valid, and thereby protect its state 
fund.

Table 1: Extent to Which Cases in 9 States Will Potentially Have 
Willing Payers:

[See PDF for image]

Source: GAO analysis of Energy data and interviews with current 
contractors.

Note: Table includes the cases from the facilities in these states with 
the largest number of cases filed but does not include the remaining 
721 cases (5 percent) from other facilities in these states.

[A] While an Energy contractor previously operated the Paducah Gaseous 
Diffusion Plant, the plant is currently operated by a private entity 
that leases the facility. In addition, an Energy contractor is 
currently performing environmental clean-up at the facility. We split 
the cases filed for the Paducah facility evenly between the current 
operator and the clean-up contractor, based on discussions with the 
clean-up contractor.

[End of table]


Concerns about the extent to which there will be willing payers of 
benefits have led to various proposals for addressing this issue. For 
example, the state of Ohio proposed that Energy designate the state as 
a contractor to provide a mechanism for reimbursing the state for 
paying the workers' compensation claims. However, Energy rejected this 
proposal on the grounds that EEOICPA does not authorize the agency to 
establish such an arrangement. In a more wide-ranging proposal, 
legislation introduced in this Congress[Footnote 6] proposes to 
establish Subtitle D as a federal program with uniform benefits 
administered by the Department of Labor.

Multiple Factors Make Compensation Not Certain:

In contrast to Subtitle B provisions that provide for a uniform federal 
benefit that is not affected by the degree of disability, various 
factors may affect whether a Subtitle D claimant is paid under the 
state workers' compensation program, or how much compensation will be 
paid. Beyond the differences in the state programs that may result in 
varying amounts and length of payments, these factors include the 
demonstration of a loss resulting from the illness and contractors' 
uncertainty on how to compute compensation.

Even with a positive determination from a physician panel and a willing 
payer, claimants who cannot demonstrate a loss, such as loss of wages 
or medical expenses, may not qualify for compensation. On the other 
hand, claimants with positive determinations but not a willing payer 
may still qualify for compensation under the state program if they show 
a loss and can overcome all challenges to the claim raised by the 
employer or the insurer.

Contractors' uncertainty on how to compute compensation may also cause 
variation in whether or how much a claimant will receive in 
compensation. While contractors with self-insurance told us that they 
plan to comply with Energy's directives to not contest cases with 
positive determinations, some contractors were unclear about how to 
actually determine the amount of compensation that a claimant will 
receive. For example, one contractor raised a concern that no guidance 
exists to inform them about whether they can negotiate the degree of 
disability, a factor that could affect the amount of the workers' 
compensation benefit. Other contractors will likely experience similar 
situations, as Energy has not issued guidance on how to consistently 
compute compensation amounts.

While not directly affecting compensation amounts, a related issue 
involves how contractors will be reimbursed for claims they pay. Energy 
uses several different types of contracts to carry out its mission, 
such as operations or cleanup, and these different types of contracts 
impact how workers' compensation claims will be paid. For example, a 
contractor responsible for managing and operating an Energy facility 
was told to pay the workers' compensation claims from its operating 
budget. The contractor said that this procedure may compromise its 
ability to conduct its primary responsibilities. On the other hand, a 
contractor cleaning up an Energy facility was told by Energy officials 
that its workers' compensation claims would be reimbursed under its 
contract, and therefore paying claims would not affect its ability to 
perform cleanup of the site.

Bottlenecks In Energy's Claims Process Delay Filing Of Workers 
Compensation Claims:

As a result of Energy's policies and procedures for processing claims, 
claimants have experienced lengthy delays in receiving the 
determinations they need to file workers' compensation claims. In 
particular, the number of cases developed during initial case 
processing has not always been sufficient to allow the physician panels 
to operate at full capacity. Moreover, even if these panels were 
operating at full capacity, the small pool of physicians qualified to 
serve on the panels would limit the agency's ability to produce more 
timely determinations. Energy has recently allocated more funds for 
staffing for case processing, but is still exploring methods for 
improving the efficiency of its physician panel process.

Sufficient Cases Have Not Always Been Available for Physician Panel 
Review:

Energy's case development process has not consistently produced enough 
cases to ensure that the physician panels are functioning at full 
capacity. To make efficient use of physician panel resources, it is 
important to ensure that a sufficient supply of cases is ready for 
physician panel review. Energy officials established a goal of 
completing the development of 100 cases per week by August 2003 to keep 
the panels fully engaged. However, as of September 2003, Energy 
officials stated that the agency was completing development on only 
about 40 cases a week. Further, while agency officials indicated that 
they typically assigned 3 cases at a time to be reviewed within 30 
days, several panel physicians indicated that they received fewer 
cases, some receiving a total of only 7 or 8 during their first year as 
a panelist.

Energy was slow to implement its case development operation. Initially, 
agency officials did not have a plan to hire a specific number of 
employees for case development, but they expected to hire additional 
staff as they were needed. When Energy first began developing cases, in 
the fall of 2002, the case development process had a staff of about 14 
case managers and assistants. With modest staffing increases, the 
program quickly outgrew the office space used for this function. Though 
Energy officials acknowledged the need for more personnel by spring 
2003, they delayed hiring until additional space could be secured in 
August. As of August 2003, Energy had more than tripled the number of 
employees dedicated to case development to a about 50, and Energy 
officials believe that they will now be able to achieve their goal of 
completing development of 100 cases a week that will be ready for 
physician panel review. Energy officials cited a substantial increase 
in the number of cases ready for physician panel review during October 
2003, and reported preparing more than a hundred cases for panel review 
in the first week of November 2003.

Energy shifted nearly $10 million from other Energy accounts into this 
program in fiscal year 2003, and plans to shift an additional $33 
million into the program in fiscal year 2004, to quadruple its case-
processing operation. With additional resources, Energy plans to 
complete the development of all pending cases as quickly as possible 
and have them ready for the physician panels. However, this would 
create a large backlog of cases awaiting review by physician panels. 
Because most claims filed so far are from workers whose medical 
conditions are likely to change over time, creation of such a backlog 
could further slow the decision process by making it necessary to 
update medical records before panel review.

The Ability to Produce More Timely Decisions May Be Limited By Small 
Pool Of Qualified Physicians and Gaps in Information They Need to 
Quickly Decide Cases:

Even if additional resources allow Energy to speed initial case 
development, the limited pool of qualified physicians[Footnote 7] for 
panels will likely prevent significant improvements in processing time. 
Currently, approximately 100 physicians are assigned to panels of 3 
physicians. In an effort to improve overall processing time, Energy has 
requested that NIOSH appoint an additional 500 physicians to staff the 
panels. NIOSH has indicated that the pool of physicians with the 
appropriate credentials and experience (including those already 
appointed) may be limited to about 200. Even if Energy were able to 
increase the number of panel physicians to 200, with each panel 
reviewing 3 cases a month, the panels would not be able to review more 
than 200 cases in any 30-day period given current procedures. Thus, 
even with double the number of physicians currently serving on panels, 
it would take more than 7 years to process all cases pending as of June 
30, 2003, without consideration of the hundreds of new cases the agency 
is receiving each month.[Footnote 8]

Energy officials are exploring ways that the panel process could be 
made more efficient. For example, the agency is currently planning to 
establish permanent physician panels in Washington, DC. Physicians who 
are willing to serve full-time for a 2 or 3-week period would staff 
these panels. In addition, the agency is considering reducing the 
number of physicians serving on each panel--for example, initially 
using one physician to review a case, assigning a second physician only 
if the first reaches a negative determination, and assigning a third 
physician if needed to break a tie. Energy staff are currently 
evaluating whether such a change would require a change in their 
regulations.

Agency officials have also recommended additional sources from which 
NIOSH might recruit qualified physicians and are exploring other 
potential sources. For example, the physicians in the military services 
might be used on a part-time basis. In addition, physicians from the 
Public Health Service serve on temporary full-time details as panel 
physicians.

Panel physicians have also suggested methods to Energy for improving 
the efficiency of the panels. For example, some physicians have stated 
that more complete profiles of the types and locations of specific 
toxic substances at each facility would speed their ability to decide 
cases. In addition, one panel physician told us that one of the cases 
he reviewed received a negative determination because specific 
documentation of toxic substances at the worker's location was lacking. 
While Energy officials reported that they have completed facility 
overviews for about half the major sites, specific data are available 
for only a few sites. Agency officials said that the scarcity of 
records related to toxic substances and a lack of sufficient resources 
constrain their ability to pursue building-by-building profiles for 
each facility.

Mr. Chairman, this completes my prepared statement. I would be happy to 
respond to any questions you or other Members of the Committee may have 
at this time.

Contacts and Acknowledgments:

For information regarding this testimony, please contact Robert E. 
Robertson, Director, or Andrew Sherrill, Assistant Director, Education, 
Workforce, and Income Security at (202) 512-7215. Individuals making 
contributions to this testimony include Amy E. Buck, Melinda L. 
Cordero, Beverly Crawford, Patrick DiBattista, Corinna A. Nicolaou, 
Mary Nugent, and Rosemary Torres Lerma.


FOOTNOTES

[1] We collected data as of this date to enable us to assess the 
reliability of Energy's data by (1) performing electronic testing for 
obvious errors in accuracy and completeness, (2) reviewing available 
documentation, and (3) interviewing agency officials and contractors 
knowledgeable about the data. We determined that the data elements used 
were sufficiently reliable for our purposes.

[2] Executive Order 13179 of December 7, 2000.

[3] See Energy's website at: http://tis.eh.doe.gov/advocacy/index.html 
for more information on the current distribution of cases across 
facilities and states.

[4] The nine states are Colorado, Idaho, Iowa, Kentucky, New Mexico, 
Ohio, South Carolina, Tennessee, and Washington. The cases in these 
states represent more than three-quarters of the cases filed 
nationwide. The results of our analysis cannot necessarily be applied 
to the remaining 25 percent of the cases filed nationwide.

[5] EEOICPA allows Energy, to the extent permitted by law, to direct 
its contractors not to contest such WC claims. Energy's regulations 
prohibit the inclusion of the costs of contesting such claims as 
allowable costs under the contract, but allow the costs incurred as the 
result of a WC award as reimbursable costs to the full extent permitted 
under the contract.

[6] H.R. 1758, sponsored by Representative Ted Strickland, was 
introduced on April 10, 2003.

[7] The criteria NIOSH uses to evaluate qualifications for appointing 
physicians to these panels include: (1) board certification in a 
primary discipline; (2) knowledge of occupational medicine; (3) minimum 
of 5 years of relevant clinical practice following residency; and (4) 
reputation for good medical judgment, impartiality, and efficiency.

[8] This 7-year estimate assumes that none of the pending cases would 
be determined ineligible on the basis of non-covered employment or 
illnesses because we did not possess a sufficient basis for projecting 
the number of additional cases that would be determined ineligible in 
the future.