Part E Causation Letters under EEOICP: A vital resource to secure compensation and healthcare benefits

By R. Hugh Stephens, Esq., Partner at Stephens & Stephens

Stephens & Stephens is a Buffalo based law firm representing nuclear workers across the United States. Since 2010, the firm’s focus has been on the unique practice areas of EEOICPA and RECA compensation.

Recent decisions from the Final Adjudication Branch (FAB) within the United States Department of Labor’s (U.S. DOL) Division of Energy Employees Occupational Illness Compensation (DEEOIC) show that physician letters supporting Part E claims are under increasing scrutiny. Claimants see this when district office Claims Examiners (CEs) issue positive Recommended Decisions, but then those decisions are sent back by FAB Hearing Representatives (HRs) for re-evaluation, typically criticizing causation letters from physicians.

A well-prepared causation letter from a claimant’s chosen physician is crucial for a claim’s acceptance under this program. While the requirements against which physician letters are evaluated by DOL are developed in state and federal toxic tort cases, the requirements of this program should be much more relaxed than those faced by toxic tort plaintiffs.

In toxic tort cases, the burden of proof is typically high, requiring compelling evidence that the hazardous substance is “more likely than not” the cause of the illness. This standard often demands that plaintiffs exclude other possible causes of their illness. Also, toxic tort plaintiffs must prove strict causation.

The EEOICPA sets a different standard. It only requires causation proof to be “at least as likely as not” as opposed to “more likely than not.” This program does not require strict causation, but contribution or aggravation are also sufficient. These relaxed standards are justified given the historical context: Exposure to radiation and other toxic substances occurred decades ago and workers were typically unaware of the dangers they faced at work and were inadequately protected from those dangers. It would be unfair to deny certain claims in this program due to a lack of factual evidence or uncertainty in the science where the Department of Energy (DOE) failed to monitor its workers and those workers were exposed to ultra-hazardous working conditions without hazard pay.

This program’s approach differs greatly from toxic tort litigation, where plaintiffs often face significant court-imposed hurdles to compensation. Toxic tort plaintiffs must prove both that a substance can cause an illness and that it caused the illness in the case at issue. They must prove their illness more likely than not was caused by the toxic substance and can only rely on studies that have moved beyond statistical uncertainty to general acceptance in the scientific community. For example, under the EEOICPA, dismissing a study because it does not perfectly match a claimant’s circumstances is to apply toxic tort principles without adjustment to the program’s more relaxed requirements.

The EEOICPA’s relaxed standards of proof and causation recognize the challenges faced by workers exposed to hazardous materials under DOE oversight as many as 80 years ago. EEOICPA provides a more accessible path for claimants compared to that encountered by plaintiffs in traditional toxic tort litigation. Claimants, authorized representatives, and physicians should work together to ensure that DOL does not deny claims based on court developed toxic tort rules without properly adjusting those rules to reflect the EEOICP relaxed burden of persuasion as well as the program’s relaxed causation requirement that includes contribution and aggravation.

In summary, the challenge for many claimants, and the Advocates and attorneys that often represent them, is that different standards of causation and persuasion apply in EEOICP. These standards were written to make it fundamentally easier to receive benefits than under toxic tort law. But U.S. DOL Claims Examiners and industrial hygienists have been trained using the more stringent toxic tort rules and not the more claimant favorable EEOICP rules. We should remember how certain terms, taken together, differentiate EEOICP; specifically, “caused, contributed to, or aggravated”. A worker’s existing asthma, that was later aggravated on the job by toxic substance exposure at a DOE covered facility, qualifies him or her for benefits while a typical court or insurance claims process would not typically qualify that claimant for benefits or damages. Similarly, “at least as likely as not” establishes a standard where the tie goes to the claimant as opposed to “more likely than not” that causes any tie to go to the defendant in toxic tort litigation. While we are seldom confronted with a “tie” in this program, this distinction is one that underlines the fundamental differences between this program and the civil justice system confronted by toxic tort plaintiffs.

Is all this complicated?  It certainly is. That’s why our firm, and others who manage EEOICPA claims, can often make the difference, making it possible for workers to receive the benefits the EEOICPA was created for them to receive. An experienced Advocate has the knowledge and resources to turn a seemingly impossible claim into an approval.

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