The U.S. Department of Justice has detailed its complaints about a new Washington state law that makes it easier for Hanford Site personnel to have their workers’ compensation claims approved. The Justice Department filed a motion for summary judgment late on March 1 in U.S. District Court for Eastern Washington state, asking that the court declare the state law invalid.
The Justice Department sued Washington state in December over the new law that took effect June 8, claiming it discriminates against the federal government by holding it to a stricter standard than other employers in the state. That was a clear violation of the Supremacy Clause of the U.S. Constitution, making it a matter the judge could decide without the case going to trial, according to the Justice Department.
The Department of Energy, which owns Hanford, was silent as the state Legislature debated and passed the new law. But the recent court filing and associated documents say DOE faces a tough burden of proof to have a claim denied is difficult to meet, that the list of covered diseases in the new law is too vague, and that the new law will prove costly for the federal government.
The new law requires the Washington state Department of Labor and Industries, which approves or denies compensation claims, to assume a wide range of illnesses were caused by working at Hanford. Most workers in the state must show a link between their illness and their workplace. The Energy Department can oppose the claim with “clear and convincing” evidence of a hereditary, lifestyle, or other non-Hanford cause for the illness.
Most employees in the state have a two-year statute of limitations for workers’ compensation claims, but the new law puts no limit on when Hanford workers or their survivors may file a claim. Hanford personnel can spend as little as eight hours at a work area at the former plutonium production complex, such as the Central Plateau or the Environmental Restoration Disposal Facility, to qualify for state compensation.
The list of covered illnesses is not well defined, according to the Justice Department. It could be interpreted to apply to hundreds of commonly occurring illnesses, including asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s disease, and stroke. The diseases listed in the law include neurological disease, respiratory disease, numerous types of cancer, and beryllium sensitization or chronic beryllium disease. The law also covers any heart problems experienced within 72 hours of exposure to fumes, toxins, or chemicals.
A DOE working group conservatively estimated that more than 100,000 past and current workers for Hanford contractors and subcontractors would be covered under the new law. That does not include future workers at the massive nuclear cleanup sites. Employees who work directly for DOE are not covered by the new law. The department has a memorandum of understanding with the state to self-insure for state workers’ compensation for employees of six current contractors, seven current subcontractors, and 61 former contractors and subcontractors.
Since 2009, DOE has paid nearly $116 million in workers’ compensation claims to employees of Hanford contractors, according to the lawsuit. The federal agency usually saw 300 to 350 claims a year. The state estimated that for each of the first five years that the new law is in effect it will need to be prepared to handle 810 claims, in part because previously denied claims can be refiled. Supporters of the new law said Hanford claims have been denied at five times the rate of claims from other employers in the state.
Since the new law was passed, 50 claims for cancer have been filed, according to Penser North America, which administers state compensation claims for DOE. For the last two year it has five or fewer claims filed for cancer each year. Costs for claims for diseases such as cancer could easily exceed $1 million per claim, according to Penser.
Penser said in a court document that as of mid-February 92 claims had been filed under the new law and all would most likely have been denied in years past. Currently, 41 of the new claims have been forwarded to the state, including 31 that appeared to meet the new standards for approval and 10 that did not by Penser’s evaluation. However, the state denied just two of the claims, Penser said.
The Energy Department has had trouble developing cases for claims it believes should not be approved, according to the lawsuit. Medical records might be missing, particularly for illnesses diagnosed more than a decade ago. “To date, challenges related to obtaining medical records that are outdated, archived or unavailable affect at least half of the claims filed,” Penser said in court documents.
Based on the limited number of claims decided to date under the new law, it appears that unless DOE can provide clear and convincing evidence, claims are allowed based on a worker’s or a surviving beneficiary’s account of events, the lawsuit said. Developing information that lifestyle or other factors caused an illness requires DOE to “obtain expert witnesses at a significant cost” and to “search for, review and organize large volumes of medical documentation.”
The state of Washington, the defendant in the lawsuit, has told the federal court that it plans by March 22 to file a counterclaim for summary judgment, asking the judge to dismiss the lawsuit.
Supporters of the law have said it was needed because of the potential exposure of Hanford workers to radioactive and hazardous chemical waste. They have particularly been concerned by workers’ possible exposure to chemical vapors associated with waste held in underground tanks.
