Deadly Denial

July 22, 2008

By Laura Frank

For sick nuclear workers, shifting rules form quagmire of despair.

At the height of the Cold War, hidden away in the nation's heartland amid grazing cattle and glistening cornfields, a top-secret installation bustled with hundreds of workers assembling nuclear warheads.  Denny Daily worked for 14 years as a security guard at the Iowa Army Ammunition Plant in rural Des Moines County. He had the highest level of security clearance and guarded the clandestinely named "Line 1," where the warhead work took place, and the "igloos" where the warheads were stored in earthen and concrete bunkers.

When Daily was diagnosed with prostate cancer eight years ago at age 65, he suspected that his old job had put him at risk. In 2002, he applied for federal compensation that Congress had created two years earlier for Cold War workers such as himself.  But Daily was denied. The U.S. Department of Labor, which runs the compensation program, put prostate cancer on its list of 77 conditions that it said had no known link to toxic exposure.  Sick workers came to call this the "no pay" list. They view it as another tactic that bureaucrats have devised to deny them the benefits congress intended for them.

The list was issued in 2006, exactly one decade after the U.S. Department of Veterans Affairs found evidence of prostate cancer's link to toxic exposure so convincing that the VA added the cancer to its presumptive list for its own compensation program.
In other words, the veterans with prostate cancer who were exposed to certain chemicals are compensated automatically by the VA. But the cold war workers exposed to some of the same chemicals are not.

Daily and his wife, Pat, discovered this and argued with labor department officials that Daily's cancer should at least be given a closer look, rather than summarily rejected.
They never heard a word back.
The Dailys, who now live in Waterville, Maine, have not received any response from the labor department about the "no pay" list or on Daily's request to reopen his original claim, which he made in October of last year.
"They ignored our evidence, they ignored our letters, they ignored us," Pat Daily said. "It's been a horrible, horrible trip."
The Dailys are not alone. Their attempts to negotiate the shifting sands of government rules and regulations have left them in a quagmire of frustration and despair with thousands of other former nuclear weapons workers from around the nation.

Dodging the law
Federal law says that the process of compensating sick nuclear weapons workers must be fair and consistent, but the Bush administration's labor department has fallen short of those standards. Indeed, the department has found multiple ways around the law, sometimes just flat-out ignoring it, a Rocky Mountain News review of scores of workers' cases, government documents, program data and internal communications found.
The Rocky found a pattern of ongoing decisions and rule changes within the 8-year-old program that consistently made it more difficult for sick and dying workers - or their survivors - to be compensated.

"There have been many individuals involved with administering or overseeing this program who have not accepted that these workers were exposed to harmful radiation," said Sen. Barack Obama, who began pushing program officials to help his constituents in Illinois long before he became the Democratic presidential candidate. "As a result, many have tried to limit the possibility of payments, even in the face of strong scientific evidence."
Through a spokesman, U.S. Sen. John McCain of Arizona, the Republican presidential candidate, decried "any waste and inefficiency" in getting benefits to deserving claimaints.
The Rocky made repeated requests during the last two months to interview labor department executive Shelby Hallmark for this series, and sent him a detailed list of the series' findings more than a month ago. DOL never delivered on repeated promises of a response.
Labor Secretary Elaine Chao was warned three years ago by a bipartisan group of powerful Senators - including Obama, Hillary Clinton, Lamar Alexander and Orrin Hatch - that her department was "not at liberty to modify" the law. But the labor department ignored many of the congressional concerns.

Since then, the Bush administration has been under fire for exploring how to rein in costs by cutting the number of sick workers who qualify for compensation. According to internal e-mails, this discussion peaked in 2006 - the same year that the "no pay" list was created. Hallmark was the main labor department contact for the White House Office of Management and Budget during internal deliberations on cost cutting that year.
Hallmark testified before Congress last year that the ideas to cut costs by aggressively rejecting workers from the benefits never was implemented. Critics say the same ends have been achieved by different means, such as the "no pay" list.
"They have imposed their own will on this," said Richard Miller, a former union policy analyst who helped write the original compensation law and testified before Congress about the labor department's plans to cut costs.  The Dailys agree. "Denny's claim shows very clearly that they did implement those (cost-cutting) plans," Pat Daily said. "It's not a coincidence."

Moving the goal posts
Included in the evidence that workers are being squeezed out of compensation:
* Labor department officials said they were trying to expedite claims when they issued the list of medical conditions that they said had "no known" links to toxic exposure in 2006. But the Rocky found multiple scientific studies that show links to at least seven of the "no-pay" listed diseases.
Some of those studies were funded by the government itself, including studies on workers at some of the weapons sites. One such study was actually sponsored by the National Institute for Occupational Safety and Health - the same agency in charge of scientific oversight of the compensation program. A NIOSH study of 12 weapons plants in 2000 found an increase risk of breast cancer, which is on the "no pay" list. And, while prostate cancer is also on the list, NIOSH's own "Pocket Guide to Chemical Hazards" lists the prostate as a cancer target for cadmium, a common bomb ingredient.
* Congress decided that the Department of Health and Human Services was taking too long to consider petitions for help from ill workers, so in 2004 it set a six-month time limit for those decisions. But the department simply changed the definition of a petition - saying it wasn't a true petition until the department "accepted" it for consideration. The department gave itself no deadline for making that decision, thereby thwarting Congress.
After congressional complaints, NIOSH changed its tune again. Now it starts the 180-day clock when it receives a petition, but it doesn't count any time spent "revising" the petition for "deficiencies" NIOSH identifies.
* While a large number of sick workers have radiation-induced cancer, many suffer from other diseases linked to toxic exposures. In both cases, sick workers must prove a link between their exposures and their illnesses, but Congress intentionally made the standard of proof lower in the case of toxic exposure than in radiation-only cases. The labor department continues to use the higher bar for both.
The law says that compensation for harm by radiation can happen only if it is at least as likely as not that radiation caused a worker's cancer. For harm done by toxic exposure, the law says it must be at least as likely as not that toxic exposure was a "significant factor in causing, contributing to or aggravating" a worker's illness. But when cancer victims claim harm by toxic exposure, the labor department still uses the higher standard of causation.
The law's requirement that compensation be fair and consistent has been thwarted by both the federal health and labor departments' changing of program rules and scientific methods midstream. The effect has been to deny compensation to more sick nuclear workers or their survivors, the Rocky found.

The bureaucracy built to implement the law gets to write its own rules about how that is accomplished - a common process in Washington. But the results for sick bomb workers have been devastating, as well as occasionally ludicrous. At one point, for example, a rule writer publicly bemoaned the unfair results of a rule that he helped write.
Larry Elliott directs NIOSH's compensation work. When it appeared last year that some Rocky Flats workers would be given special status to streamline processing of their claims, he lamented what would happen to other claimants because of his agency's rule.
"I hope the rest of the public understands that if a (special status) is awarded, there's going to be a group of people who aren't going to be as well off" when they try to get compensation, Elliott said then.

NIOSH had lost its argument that it could estimate radiation doses for some Rocky Flats workers. So those workers with certain cancers would be covered automatically. Workers with other cancers still had to go through a years-long process of having their total radiation doses estimated based on old records.
But Elliott's office decided that if records weren't good enough to reconstruct radiation doses for one of the automatically-covered cancers, they surely weren't good enough for the other cancers. Those workers were out of luck.
For some of the bomb makers, this meant that the government was saying the only radiation they absorbed at their nuclear weapons plant came from chest X-rays at their annual physical.
The government scientists acknowledged that those workers likely had been irradiated at higher levels, but the exposures would not be counted when it came time to determine whether they deserved compensation.

Cutting radiation estimates
Daily, the Iowa security guard, got mired in this catch-22.
The White House Advisory Board on Radiation and Worker Health said that the Iowa Army Ammunition Plant was one of more than 20 sites in the U.S. where the government at times had failed to document workers' radiation exposures.
Daily's co-workers from Line 1, the top secret assembly effort where he worked, persuaded program officials that they deserved automatic aid for certain cancers because government scientists could not accurately calculate their radiation doses. But Daily wasn't eligible because of the type of cancer he had.
The government's new estimate of how much radiation Daily faced at the plant now recognizes only a fraction of the radiation he likely absorbed. The scientists recalculated Daily's radiation dose, but sure enough, the only radiation they counted for him at the nuclear warhead assembly plant was what he received from the chest X-rays he got at his annual physicals.
"It's very unfair," he said.
Daily said he recognizes that prostate cancer is common in men his age, but he says he has none of the other risk factors, such as family history, obesity or smoking. When he decided to apply for federal compensation, he applied for both parts of the program. One covers radiation-induced cancers, the other any disease related to toxic exposures.
The labor department first notified Daily that it had determined that the chance of his cancer being related to his estimated radiation exposures was 37.9 percent, below the 50 percent threshold for getting compensation.
After NIOSH dropped his dose estimate and counted only his chest X-rays, program officials said the chance that his cancer was caused by his work was actually only 2 percent.
Daily pinned his hopes for compensation, which includes medical coverage, on the part of the program that governs toxic exposure. But then came the 2006 rule saying that the department could find no "readily known" link between prostate cancer and toxic exposures.
The rule was issued by program director Peter Turcic. The Dailys said they asked Turcic whether the labor department had reviewed the same evidence that led the VA to make prostate cancer automatically covered for veterans who faced chemical and radiation exposure. He didn't answer.
They asked Turcic to explain the scientific sources on which he based the "no pay" bulletin.
"I asked them to share their source of evidence," she said. "They wouldn't."
Earlier this year, Hallmark, Turcic's boss, defended the "no pay" list as a way to "expedite a backlog of cases." He told the Rocky then that claimants such as Daily are given 30 days to come up with their own scientific evidence that their illness is linked to toxic exposure.
"Claimants still have the opportunity to come back and say, wait, what about the VA?" Hallmark said. "We're saying, 'We've searched for evidence, now, claimant, you tell us.'"
"He's full of baloney," Pat Daily said. "We sent them the evidence. We sent them all the VA evidence, but they didn't look at it."
Hallmark said in an interview with the Rocky in February that he had talked to Turcic about the discrepancy between the labor department and the VA on prostate cancer.
"We need to get to the bottom of why our experts are saying there's not evidence and the VA says there is," he said five months ago.
Hallmark has never explained the discrepancy.
The Rocky Mountain News sent Hallmark details of its investigation of the "no pay" list last month. Less than two weeks ago, on July 10, the DOL suddenly rescinded the two-year-old list, saying that improvements to its own database of diseases linked to toxic substances - which also has existed for two years - made it obsolete.
But while the "no pay" list was publicly available, DOL's database is not. Claimants such as the Dailys cannot have all the data DOL says it will now use. Claimants can go to a DOL Web site and see a list of hundreds of toxic substances confirmed to be at certain weapons sites. And they can see a list of diseases on another Web page. But they can't know whether the government has evidence they were exposed to the substances that are linked to specific diseases, or exactly where those substances were found.
That, government officials say, would be a risk of national security.
The workers and the families of those who labored under top-secret conditions to defend the national security find that an ironic excuse.
"See the game?" Pat Daily said. "They got caught with a bogus list. This does nothing but get the pressure off them. We still can't get the information that can help us."
frankl@ or 303-954-5091
© Rocky Mountain News