The Paducah Sun
The Paducah Sun
Paducah, Kentucky
Friday, August 09, 2002

Sick workers' aid sought if 'willing payers' lacking
Rep. Ed Whitfield urges workers' compensation for nuclear employees by the Labor Department if necessary.

By Joe Walker

U.S. Rep. Ed Whitfield wants the Department of Labor to pick up the tab when there is no "willing payer" of state workers' compensation claims by nuclear employees and their families, said Karen Long, his chief of staff.

The Sun mistakenly reported Thursday that Whitfield was drafting legislation to force insurers to pay state workers' compensation claims approved by a new three-member physicians' panel.

"Clearly our intent is not to force private insurers to pay," Long said Thursday. "It would be for the government to pay, either out of discretionary funding or out of entitlement. We lean toward entitlement."

New regulations published Thursday could affect more than 12,000 workers currently seeking help from the Energy Department in getting compensation. Besides current and former workers at the Paducah Gaseous Diffusion Plant, most are from eight states with large DOE facilities. Claims are potentially in the hundreds of millions of dollars.

Although fixing the problem is complicated, the program would be similar to one that provides $150,000 and medical benefits through the Department of Labor to uranium enrichment workers with chronic beryllium disease, silicosis and certain radiation-induced cancers, Long said. That money comes from an ongoing entitlement fund.

Former Paducah plant worker Don Throgmorton has lung problems and had a positive test result for beryllium sensitivity but doesn't yet have beryllium disease. He said he is encouraged by attempts to make the workers' compensation law worker-friendlier.

"I just hope it's not the same old deal they're pulling on us," he said. "I think he (Whitfield) has done a lot for us, and I appreciate what he's trying to do now."

Throgmorton circulated a petition trying to get Congress to expand the law to give lump-sum benefits to people exposed to heavy metals and chemicals. He has qualified for free monitoring for beryllium sensitivity and has filed a claim, but conflicting test results cloud his chances of collecting the $150,000.

Under rules published Thursday, he and other workers potentially sickened from other workplace toxins may seek state workers’ compensation benefits by providing medical evidence to the Department of Energy, which decides whether a claim should be reviewed by the physicians’ panel. The panel decides whether claims are eligible for workers' compensation, which generally pays lost wages and medical costs associated with illnesses.

But the law has a big gap, because there is no way to force insurance companies or self-insured employers to pay claims even if they are panel-approved, said Richard Miller, policy analyst for the Government Accountability Project, a Washington-based watchdog group.

"The problem arises if DOE really genuinely and fully intends to be sure claims are paid and insurers aren't willing payers," he said. "What Mr. Whitfield wants to do is hold the insurance company harmless and have the Labor Department pay the claim."

Miller said the Labor Department is best suited for the task, because it already pays workers' compensation claims for federal employees, miners with black lung disease, and longshoremen and harbor personnel.

He said there are several ways payment can be avoided under the new nuclear worker rules:

  • Private insurers may simply refuse to pay, citing one of many established legal defenses.

  • Nuclear facility contractors often are self-insured and reimbursed by the Energy Department for workers' compensation costs. Although the new rules say DOE must tell contractors not to contest the claims and will not reimburse them for those costs, they still have the right to appeal.

  • Many claims may involve employees exposed years ago under a previous contract and now working for a new contractor. It is doubtful the new contractor can be compelled to pay if the old one or its insurer won't.

  • DOE has no authority to tell self-insured USEC, which operates the 1,500-employee Paducah plant, not to fight claims and has no contract to reimburse those costs.

  • Ohio and a few other states manage employer self-insurance pools. Those states can't be compelled to pay.