National Nuclear Workers for Justice

September 24, 2002


Vina Colley
Tel. 740-259-4688

Gai Oglesbee
Tel. 509-943-9307

Meritorious Claims for State Labor and Industry's Worker Compensation Administration Benefits

The US Department of Energy (DOE) designates, "A positive determination pursuant to Part 852 has no effect on the scope of State workers' compensation proceedings, the conditions for compensation, or the rights and obligations of the participants in the proceedings: provided that consistent with subtitle D such a determination will prevent DOE and may prevent a DOE contractor from contesting an applicant's workers' compensation claim."

There is no "superfluous" language used by the DOE. The agency uses words like "provided that," "provise," or "stipulation" which means there are no "if's," here.

"A positive determination has no effect on compensation proceedings if such a determination will prevent (or may prevent) DOE or its contractor from contesting a claim," said Vina Colley (Piketon claimant).

Under normal operating procedures, the State L&I administrators know employees will likely contest claims since workers are forced to sue their employers to get workers' compensation. In this way, the State is expected to hear both sides. Part 852 is not intended to "change" the way the State's workers' compensation program normally operates - as to scope, conditions, rights, etc. The workers' compensation policies vary from State to State. The only departure from normal operations will be that because of the "Energy Employees' Occupational Illness Program Act of 2000," Subtitle D, the contractor may not be able to contest a claim.

"Is DOE saying they won't take any action to contest these claims," said Gai Oglesbee (Hanford claimant). "If that is the intent, then that is good news."

It seems the DOE is saying the employee is assumed to be worthy of compensation without argument; but, the DOE contractors "maybe not" inference is of concern from a legal standpoint. The contractors and their insurers have every legal right to contest these claims. The clause was written this way because DOE (or any other federal agency) knows it can't legally bar private business or a DOE contractor from taking any legal action they may deem necessary to their business interests or "the conduct of their business." The DOE can't, under current law, legally mandate that their contractors refrain from contesting any legal claims against them.

So, the "may prevent" language is meant to satisfy the legal reality involved, but along with other DOE actions, is also meant - albeit quietly - to discourage DOE contractors from contesting these claims.

Oglesbee and Colley agree they are hopeful when the DOE seems to be sending a message to their contractors that, "It isn't necessarily in your best interests, in terms of current and future business with us, to contest these claims...It's making us look bad...We want this compensation issue dispensed with us as quickly as possible."