Unfulfilled promises: Former nuclear workers battle federal bureaucracy

By Dennis J. Carroll | For The New Mexican

12/2/2007

Ron Chavez recently sat at a table in the backyard of his Albuquerque home sifting through stacks of radiation-exposure records, doctors reports and piles of other documents, all testimony to his struggles to prove to the government that his six years of work at the Los Alamos National Laboratory made him sick.

"If nobody like me stands up," said Chavez, 52, "then everybody gets screwed."

Chavez, weak and fatigued from his battle with non-Hodgkin's lymphoma, is one of about 2,500 former nuclear workers at Los Alamos or their survivors who have filed claims with the Labor Department under a seven-year old law that promised compensation to workers made ill by exposure to radiation and other hazardous materials.

An estimated 500,000 to 600,000 Americans in such disparate communities as Middletown, Iowa, Paducah, Ky., Golden, Colo., and Los Alamos labored for decades, often under suffocating secrecy, handling the most hazardous of materials with often lax or nonexistent safety precautions as they assembled America's stockpile of nuclear weapons.

Praised as the unheralded heroes of the Cold War, many have lived a great part of their lives suffering from illnesses believed caused by the radioactive and other hazardous materials they handled. Many have died from their illnesses.

The workers, their families, and the public health and elected officials who have come to their aid contend that a confusing and interminably slow process, intransigent bureaucrats and stonewalling policymakers have, in essence, conspired to deny the workers the compensation promised them in the a federal program enacted in 2000.

The measure, the Energy Employees Occupational Illness Compensation Program, is administered by the U.S. Department of Labor, which uses estimates of workers' likely exposure to radiation and certain other hazardous materials to determine whether workers qualify for compensation.

The estimates, known as dose reconstructions, are performed by the National Institute for Occupational Safety and Health under the Department of Health and Human Services.

The White House's Advisory Board on Radiation and Worker Health reviews the scientific validity of NIOSH'S dose reconstructions and also recommends whether workers at particular sites should be granted "special exposure cohort" status so they can be compensated without having to endure the dose-reconstruction process.

Former nuclear weapons workers who were employed at designated U.S. Department of Energy sites or worked for DOE contractors could be eligible for $150,000 and payment of medical expenses from the date a claim was filed

Diseases covered include certain radiation-induced illness and chronic beryllium disease. Beryllium is a light-weight metal used in the construction of nuclear weapons. It was often machined, exposing workers to the beryllium dust, which can cause lung disease. Many of the tools used by weapons workers were made of beryllium, which does not easily cause sparks.

Other benefits are possible depending on where the employees worked and what hazardous materials they were exposed to.

Radiation doses

Under the lengthy dose reconstruction administered by NIOSH, workers at Los Alamos and scores of former DOE nuclear weapons sites around the country have been required to demonstrate what dangerous materials they were exposed to, the doses they received and the amount of time they were exposed.

That has been one of the biggest stumbling blocks for the workers and their advocates because, they say, it puts the burden of proof on the workers, many whom are elderly, in ill health and with failing memories.

Chavez, an ironworker, contends the process is adversarial, and the workers suffer because it is. "The burden of proof is on me," Chavez said. He cited a litany of what he described as conflicting and inaccurate information that Los Alamos provided NIOSH to be used in determining his eligibility for compensation. And he fears he will be denied the benefits because of the bad information.

"It's garbage in, garbage out," Chavez said.

For example, Chavez pointed to Los Alamos radiation dose records he said conflicted with higher dosimetry readings he had been given previously covering the same time period. "Why isn't a scientific institution like Los Alamos keeping a record that is true and correct?" Chavez said.

He also said the NIOSH employee assigned to review his case referred to radiation-dose readings on his chest and abdomen, but not on his face and neck, where the cancer tumors were found and surgically removed.

"He was using the wrong part of my body" for the dose measurements, Chavez said. "When I see that everything's all screwed up, I say I'm going to start fighting because (the radiation-dose measurements) are the Holy Grail of what they are supposed to be going by."

Chavez's problems are echoed by other workers and their advocates in New Mexico and around the country.

Questionable records

Michele Jacquez-Ortiz, state director for the office of U.S. Rep. Tom Udall, who has been helping former Los Alamos workers with their claims petitions, described as "questionable or dubious" the records coming out of Los Alamos concerning the workers' medical and work histories.

For example, she said Los Alamos provided extensive radiation-dose records on a particular worker that covered his exposures from 1948 through 1999. However, she noted, the worker died in 1982.

Jacquez-Ortiz also said some workers or their survivors told of reporting respiratory problems to Los Alamos medical personnel and having X-rays taken, but in Los Alamos' reports on the workers to NIOSH, no mention is made of either the breathing problems or the X-rays, other than the worker had reported having "a cold."

"One claimant who worked around beryllium and asbestos has complained about lung problems for many years but can't find any X-ray results in his worker medical file," Jacquez-Ortiz said. "All of his hearing tests are there, but none of his X-ray results can be found."

She also said many of the workers' medical records being released by Los Alamos are oddly similar, with exactly the same words being used over and over. "It's a bit like fill in the blank," she said.

Some medical and radiation dose records being released don't even carry the worker's name, Jacquez-Ortiz said, leaving the workers or their survivors bewildered.

In several cases, she said, dosimetry records are missing for certain dates in which claimants recall having been harmfully exposed to radiation.

"Frankly," Jacquez-Ortiz said, "we've seen enough EEIOCA files that have raised red flags in terms of calling into question the credibility of the data that goes into the dose reconstruction for some of these claimants."

LANL spokesman Kevin Roark said the lab is doing all it can to make the medical and work records available. "Our job is to release the records that are requested," Roark said. "That's what we do. We provide every record that's available."

He said, "No one at any level pulls anything from those records."

Bureaucratic ineptitude

Earlier this year, the White House advisory board recommended and the Department of Health and Human Services approved the Special Exposure Cohort status for possibly hundreds of former Los Alamos workers who developed any one of 22 specified cancers after working for at least 250 days in certain parts of the lab between March 15, 1943, and Dec. 31, 1975.

However, workers employed after that date were not included in the decision on the grounds there was enough credible information available to accurately estimate radiation exposure.

Under dose reconstruction, workers must show they received enough radiation exposure to make it as likely as not that their disease could have been caused by radiation if they want to be eligible for compensation.

Advocates for former atomic workers in other parts of the country have encountered data-reporting and collection problems similar to those in New Mexico. Workers and their advocates also point to the rejection of claims based on what they see as trivial issues and bureaucratic ineptitude.

Dr. Lars Fuortes, an epidemiologist at the University of Iowa who has been helping former atomic workers there and in adjoining states with their petitions, cited a claim that was initially denied because the worker used the term "CT" scan instead of "CAT" scan. Both terms, Fuortes said, are generally accepted references to the same medical diagnostic procedure.

He also cited claims that were wrongly denied because the claims processors disallowed certain diseases that are included among the program's list of qualifying cancers.

Another worker was denied compensation, Fuortes said, after overwhelming evidence was presented that the claimant worked at a qualifying Kansas City area facility. However, his wage check was issued by the operator's offices in another city. That decision was eventually reversed, as were others Fuortes cited.

Some workers or their surviving relatives who are forced to scavenge for decadesold records tell of those that were lost, hospitals that closed and family physicians who have long since died.

Possible changes

Members of Congress have heeded the calls for assistance from often elderly, confused and frustrated former nuclear weapons workers and their families as they battle an intransigent federal bureaucracy. Many of them say they view the compensation as meager and belated for the lies they were told and the dangers they were subjected to as they assembled, tested and in more recent years dismantled nuclear weapons and their components.

"To get anything done, you have to have the detailed involvement of a United States senator's office," said one legislator's aide who asked not to be identified for fear of jeopardizing his role in helping the workers.

Another longtime LANL worker who suffers from mercury poisoning said he had finally been approved for compensation but didn't want to talk about it until he has the check in hand. "I've been going through a lot of hell," he said. "It's not easy dealing with the Labor Department."

Shelby Hallmark, who directs the Labor Department program, told a congressional committee Oct. 23 that the department has administered the program fairly and in a timely manner.

"We do our best to administer the program in the best interest of the workers and survivors for which it was intended, ... and we believe the results demonstrate that the promise of the statute is being kept."

He said the department has paid out more than $3.2 billion in benefits and medical reimbursements to more than 34,000 workers and survivors.

Labor figures for Los Alamos show that as of Wednesday, the government has made payments on 764 claims involving 525 cases totaling $72.8 million, including compensation and medical expenses. The total of 4,542 LANL cases represents 2,500 individual workers.

In the past year, several lawmakers and others have signaled that changes in the program to lessen the frustrations of former workers may be in the works.

During a November 2006 House oversight subcommittee hearing, then-Rep. John Hostettler, R-Ind., rebuked program administrators. "This program was supposed to ensure workers that the deceit was over, and the government was finally going to do right by them," Hostettler said. "Those tasked with implementing the program have failed that purpose miserably, and they need to be exposed for what they have done."

Hostettler, who lost his bid for re-election in November 2006, said program administrators had adopted a "hostile attitude" toward workers, and the "baby-sitting of these individuals must continue."

U.S. Sen. Jeff Bingaman, D-N.M., chaired the Oct. 23 hearing of the Senate Health, Education, Labor and Pensions Committee, called to help determine whether the program is as "claimant friendly" as it should be.

After listening to worker advocates, program administrators and the program's ombudsman, Bingaman said in a statement: "There is no doubt there are steps we can take to make this program run more smoothly. We need to take those steps as soon as possible."

He said claimants' applications need to be processed more quickly, and DOL should rely more heavily on the word of applicants.

Udall recently introduced legislation he said would make the ombudsman's office more an advocate for workers, not simply a place to air complaints.

"From a complex bureaucracy to a highly technical burden of proof to intimidating health physics discussions, obtaining compensation for many physically and emotionally strained claimants has proven to be a particularly difficult process," Udall said. "It's time to give these claimants and their families the proper acknowledgment and assistance they deserve."

Numerous complaints

Loretta Valerio, head of the state Office of Nuclear Worker's Advocacy, recently created by Gov. Bill Richardson, said it is often virtually impossible for workers to prove what hazardous materials they were exposed to and when they were exposed. "If you've been retired for 20 years, you can't remember what you were exposed to," she said.

Although the overall program is frustrating for former workers, especially if they are old and in poor health, Valerio said, the recent Special Exposure Cohort status should make it easier for many former workers. The exception is those who performed their jobs after 1975.

"It's the best thing that happened," she said. "It's a milestone."

Even after a worker has been approved for medical care, getting that care can be difficult, Valerio said. Many health care providers do not honor a medical payments card issued to workers by the DOL, thus denying the worker paid medical treatment.

There are also many questions as to what illnesses and treatments are covered, Valerio said. In his testimony at the Oct. 23 Senate committee meeting, DOL program ombudsman Malcolm Nelson outlined numerous complaints and frustrations of claimants. They included:

• Years of delay in processing claims: "Many of the people with whom we speak are elderly, and quite a lot of them are sick, often suffering from malignant and debilitating illnesses," Nelson said. "Claimants have been quite blunt in telling us that they fear that if they are made to wait too long, they will not be around to collect benefits."

• An onerous burden of proof: Nelson said numerous claimants complained they were stymied in collecting evidence of their employment or their exposure to toxic substances because relevant records had been either lost or destroyed. "Where such claimants are ultimately denied, ... the claimants often turn to us with the same questions: 'If the government cannot find these records, how can I be expected to find them?' " Nelson said.

Contact Dennis Carroll at djc825@aol.com.