Radiation panel fairness questioned

Introduction

Fourteen months after the fact, Dr. Henry Anderson and Richard Espinosa say they still aren’t sure why they were removed from the Advisory Board on Radiation and Worker Health, a presidential panel that helps the government weigh claims for compensation by current and former nuclear weapons workers.

Anderson and Espinosa say they were told only that their terms on the board had expired, and that they would not be reappointed by President Bush. They found this odd, since there was no mention of term limits when they joined the board in 2001.

“I don’t really know what happened,” Anderson, chief medical officer with the Wisconsin Division of Public Health, told the Center for Public Integrity in a recent interview. “I know at the time there was a feeling that the board was being activist … very worker supportive. [The Department of Labor] was supposedly unhappy that they were having to pay out too much money, and felt we were responsible.”

“We got the boot,” said Espinosa, business representative for Sheet Metal Workers Local Union No. 49 in Albuquerque, N.M., and a former employee of Los Alamos National Laboratory. “It wasn’t a random act.”

Whether Anderson and Espinosa were ousted for political reasons by a cost-conscious administration or merely rotated off the board as part of a routine cycle may never be known. The White House won’t comment.

But the comings and goings on the 12-member panel have heightened suspicion among members of Congress and claimants who believe the compensation program, administered by the Labor Department, is biased against ailing Cold War veterans and their survivors.

“You have to wonder what they [White House officials] were trying to do,” said Rep. Tom Udall, D-N.M. “They seemed to be removing members of the board without any real justification.”

For tens of thousands of people, the compensation program has become a symbol of government indifference. As of late February 2007, the Labor Department had rendered final decisions on more than 90,000 claims filed by victims of cancer or other illnesses, and had denied nearly 56,000, or 62 percent.

Among those rejected was William Cleghorn, 75, who worked as a security guard at the Nevada Test Site from 1961 to 1986.

After retiring, Cleghorn developed skin and prostate cancer and had polyps removed from his colon. But federal officials concluded that his cancers and the polyps could not have been caused by radiation exposure, even though Cleghorn was present for several small, aboveground nuclear tests at the site and many underground tests, some of which vented radiation. During the underground tests, he said, guards would be among the last to emerge from a tunnel before a blast and among the first to reenter afterward.

“I’m in touch with numerous people who worked out there and [the government is] treating all of us exactly the same,” Cleghorn said. “They have spent more damned money on denying claims than if they’d have went ahead and paid everybody.” Like other claimants, he is seeking a lump-sum payment of $150,000, plus lifetime medical benefits.

The radiation board — one of at least 900 federal advisory panels — serves as the public face of the compensation program, through which nearly $2.5 billion has been paid out. Attached to the Department of Health and Human Services, it holds meetings around the country and hears regularly from angry claimants who have been denied benefits. Several board members interviewed by the Center said that they bend over backwards to make claimant-friendly recommendations, and that the board is balanced.

According to the board’s charter, “Members shall include affected workers and their representatives, and representatives from scientific and medical communities.” But the precise mix is not spelled out, and this has proved troublesome. The removals of Anderson and Espinosa last year fueled conjecture that the makeup of the board was being adjusted by an administration eager to clamp down on the number of successful claims.

Even today, the board’s chairman says, there is confusion about the length of members’ terms. “Basically,” said Paul Ziemer, professor emeritus at Purdue University, “you serve at the pleasure of the president.”

The compensation program began in 2001, a year after Congress passed the Energy Employees Occupational Illness Compensation Program Act. The act — a response to a torrent of litigation against the Department of Energy and its contractors, which ran the nuclear weapons sites — instructed the Labor Department to begin accepting claims from current and former workers at hundreds of installations, from the Paducah Gaseous Diffusion Plant in Kentucky to the Amchitka Island Nuclear Explosion Site in Alaska. The aim was to make retribution for those who had fallen ill or died as a result of work-related exposures to radiation or toxic chemicals.

The National Institute for Occupational Safety and Health, part of HHS, was charged with giving scientific advice to the Labor Department on cancer claims. The radiation board, in turn, would serve as a check on NIOSH, making sure that the agency appraised cases fairly.

As of late January 2007, NIOSH had done dose reconstructions — attempts to calculate how much radiation a worker might have absorbed at a weapons facility — for nearly 17,000 claimants with cancer and sent the results to the Labor Department. After feeding the NIOSH numbers into a software program designed to calculate the likelihood that a particular cancer is work-related, the department denied 72 percent of these claims even though exposure records from the weapons sites are notoriously unreliable. Claimants speak of glaring omissions: the government’s failure to note, for example, that some welders’ radiation-measuring badges, called dosimeters, registered zero because the welders had been instructed not to wear them. Their bosses, it seemed, didn’t want the dosimeters to be damaged by sparks.

Fix for ‘Fuzzy’ Standards

The high rejection rates have spawned allegations that NIOSH and the Labor Department have used flawed information and scientific uncertainty to deny claims and avoid massive outlays of federal funds.

In October 2005, not long after Anderson and Espinosa learned that their terms on the advisory board were about to expire, Shelby Hallmark, director of the Labor Department’s Office of Workers’ Compensation Programs, wrote in a memorandum that the board had been using “fuzzy” criteria to recommend that certain groups of workers be admitted to the Special Exposure Cohort — making them eligible for benefits — and offered ideas on how the problem could be fixed.

Among them: “Refresh” the board and “bring significantly more balance” to it.

A month later, a White House Office of Management and Budget memo essentially repeated Hallmark’s suggestions, stating that one way to “contain growth” in the program’s costs would be to “address any imbalance in membership of [the] President’s Advisory Board on Radiation and Worker Health.”

In an e-mailed statement to the Center, Hallmark wrote, “Our efforts have been to achieve consistency and fairness in applying the eligibility requirements established by Congress, not to curtail benefits to any eligible claimants.” The suggestions in his and the OMB’s memos “were raised as options, and they were subsequently disavowed without caveat or equivocation, by both OMB and DOL,” he wrote.

The White House did not respond directly to the Center’s inquiry about program expenditures, instead offering a June 2006 letter in which OMB Director Rob Portman asserted, “The Administration is not pursuing any program changes to modify benefit costs.”

Still, skepticism lingers. A number of executive branch e-mails and memos addressing program costs and the behavior of the board came out during congressional hearings last year.

In an e-mail dated November 16, 2004, Hallmark wrote, “Apparently, OMB has noticed there’s a deficit, and would like to do something about it, starting with the cost of administering [the program].”

In a memo dated March 3, 2005, Hallmark complained that the advisory board was operating “as essentially a worker advocacy organization.”

And in an e-mail dated April 15, 2005, Hallmark wrote that “the current make-up of the Board could result in recommendations that are not wise. Such recommendations will be extremely difficult/painful for the HHS Secretary to override.”

By January 2006 Anderson and Espinosa were off the board. Two months later, the first of five hearings was convened by John Hostettler, a Republican congressman from Indiana and chairman of the House Judiciary Committee’s Subcommittee on Immigration, Border Security and Claims.

A self-described “budget hawk” who keenly scrutinized government expenditures, Hostettler nonetheless grew troubled by what he heard about the entitlement program — namely, that the administration seemed preoccupied with payouts, which are not capped — and that “we were losing people who were proponents of the workers” on the advisory board.

“It was never suggested by Congress that somehow we were going to allow budget to be any sort of factor whatsoever in meeting the needs of these individuals who served their country,” Hostettler, who was defeated in November 2006, said in a recent interview from his home in Blairsville, Ind.

The compensation program applies to those who work or worked at any of 317 sites in 37 states. For cancer victims or their survivors there are two ways to secure benefits.

Claims may be approved on an individual basis, after NIOSH, the advisory board and the Labor Department mull the evidence. Or, a group of claimants from a site may be allowed to join the Special Exposure Cohort, meaning the secretary of HHS has determined that individual dose reconstructions are impossible and everyone in that group — assuming he or she has one of 22 types of cancer linked to radiation — qualifies for remuneration.

Both NIOSH and the advisory board help the HHS secretary make decisions on SEC petitions. Twenty-one groups have been admitted to the cohort, and petitions from another 23 are pending. The SEC process is extremely contentious; many see admission to the cohort as their only hope for compensation, given the sloppy recordkeeping and pervasive secrecy during the Cold War.

NIOSH and the board have nothing to do with claims filed by workers with diseases other than cancer — say, neurological damage that may have been caused by exposure to solvents or heavy metals. Those cases are judged exclusively by the Labor Department.

Chasing the Claim

Winning a claim, as many have learned, isn’t easy.

Pedro Romero, 60, worked as a machinist at Los Alamos for 31 years and developed colon cancer, which metastasized to his lymphatic system.

“After a long career, which I felt was a good career, I have to live from [disability] check to check, and I have a lot of difficulty just being able to afford my medications,” he said. “There’s times when I just skip them because I don’t have enough money.”

Romero plied his trade in the lab’s old plutonium processing facility, known as Technical Area 21, and its successor, Technical Area 55. He used toxic chemicals, such as trichloroethylene, to clean fixtures in poorly ventilated areas. He estimates that “at least 90 percent of the people I worked with at the plutonium plant have died of cancer.”

In June 2006, the Labor Department’s Denver District Office recommended denial of Romero’s claim. He took the rare step of asking for an oral hearing, which was held in December, and is awaiting a final decision.

But Romero is not optimistic. He knows that most preliminary decisions are upheld.

“The compensation is just something that you hear about,” Romero said. “You continually try to acquire it because it’s yours, but there’s just too many obstructions being created. We get ignored when we talk to NIOSH or the Department of Labor. They try to discourage you, they treat you rudely, they make you feel like you’re asking for a handout in hopes that you’ll go away.”

When the Labor Department renders a final decision, it assigns to the claimant a “probability of causation” — an estimate, based on the NIOSH dose reconstruction and its own calculations, of the likelihood that the claimant’s cancer was work-related. The threshold for compensation is 50 percent or greater; many, like Cleghorn, the retired Nevada Test Site security guard, miss the mark.

Cleghorn’s number was 39.09 percent. “When they give these scores out,” he said, “it’s just underneath what they claim is the breaking point for you to get compensation.”

Cleghorn can describe, in remarkable detail, his encounters with radiation and other toxic substances. The underground tests, for example, required the construction of roads, which were cut through radiation-contaminated wind rows of dirt. “There would be hundreds and hundreds of cars driving in and out, going to and from ground zero,” he said. “We would stand for 12 hours a day in the road in that damned dust, trying to make sure no one went in there who wasn’t allowed. They were supposed to come in with water trucks to keep the dust down, but most of the time they didn’t do it. We had no protection from the dust. We just wore our regular uniforms — that’s all.”

Another former security guard at the site, 80-year-old Harry Jensen, had two malignant melanomas removed from his back in 1977. His claim for compensation was denied after the Labor Department determined that his probability of causation was 43.48 percent.

Jensen, who started work in 1957, finds this ludicrous, given that he was present for dozens of aboveground nuclear tests and many underground ones. The claims process has drained and infuriated him. “Last time I checked, I had 276 pages of correspondence [with the government],” Jensen said. “I think it’s getting up around 400 now.”

Larry Elliott, director of the NIOSH Office of Compensation Analysis and Support, said he understands the claimants’ frustration, but defended the agency’s performance.

“This has just been a huge challenge for everybody involved,” Elliott said. “We have made what I consider to be our best effort at providing a scientific basis for a decision on a person’s claim. We are to give the benefit of the doubt to the claimant. Where science fails us, we make an assumption that a sick claimant be treated favorably, though [the claim] has to be plausible.”

Looking for Bias

While NIOSH does the dose reconstructions that influence the approval or denial of cancer claims, the advisory board has a major role in the process, auditing selected claims with the help of a contractor and offering scientific input. For this reason, some lawmakers and claimants have closely monitored the board’s composition in recent years, looking for signs of anti-worker bias.

“We did have issues with [the White House] rotating individuals off the board who had a particular bent,” said former congressman Hostettler, referring to Anderson and Espinosa. “We had concerns about the board being shifted from what we considered to be a balanced approach to one that wasn’t as worker-focused as it could have been. Those were all decisions made by the administration.”

Several board members told the Center that the panel has never been stacked against claimants.

“I think all of us are trying to be worker-friendly,” said chairman Ziemer, a former health physicist at Oak Ridge National Laboratory.

“All of us who have had cancer in our families are emotional about the suffering that is involved,” said Wanda Munn, a retired nuclear engineer who worked for the Westinghouse Hanford Co. in Richland, Wash. “But to say that we cannot be fully scientific in our approach to this is to be unfair to our claimants and to the public at large. The determination of how likely a cancer was to have been caused by [workplace] exposure is a very difficult one to make. My point is, I am a 60-year-old woman and I get breast cancer. The probability that I get breast cancer is going to be 1 in 3 anyway. If I were an employee who had been working for the DOE, would I or would I not expect to be compensated for my breast cancer when, perhaps, I had very little actual exposure?”

Board member John Poston Sr., a professor of nuclear engineering at Texas A&M University, recalled a recent case in which NIOSH “assumed that the worker had been exposed to radioactivity 40 hours a week for the entire employment period at some maximum concentration. And that’s not a realistic kind of assumption, but that does bias the dose. The worker is being treated more than fairly.”

Critics say, however, that board members like Munn, who spent their careers supporting the weapons production effort, may be disinclined to give sick workers the benefit of the doubt. And most members have acknowledged potential conflicts of interest — notably Poston, who must recuse himself from matters involving Los Alamos and five other companies or laboratories for which he worked.

It’s still unclear why Anderson and Espinosa were removed from the board. Ostensibly, it was because they had served the maximum term of four years. But other members — such as Ziemer and Genevieve Roessler, a radiation consultant and professor emeritus at the University of Florida — have served continuously for more than five years, with no signal that their terms will end.

In August 2006, two board members perceived by some to be less sympathetic to claimants — Munn and Dr. Roy DeHart, a Nashville physician who, in the 1990s, served on the board of Oak Ridge Associated Universities, a consortium that helps NIOSH with the much-criticized dose reconstructions — were informed by the White House that their services were no longer required. Munn, in her words, “complained to everyone I could,” and she and DeHart were offered reinstatement. Munn accepted; DeHart declined.

Cindy Blackston, a former staff member on the Hostettler subcommittee, said she believes the administration sought to discharge the two because of mounting pressure from Congress. Three hearings already had been held, and Hostettler had made it clear that he would not relent.

“I think they were feeling pressure from all sides about having a cohesive, understandable removal and appointment process for board members,” Blackston said. “They made an attempt to do that, which was thwarted by Wanda Munn knowing the right people.” In an e-mail, the White House said, “As a general practice, we do not comment on personnel matters. The Administration will continue to meet the statutory requirements that the Advisory Board reflect a balance of scientific, medical, and worker perspectives.”

Anderson said he has served on more than a dozen federal advisory committees since the 1980s, and has sensed outside interference on only one: the radiation board. “This one was far more political,” he said. “NIOSH had a hard time disagreeing with what the board decided, so what they really wanted to do was to have the board say, ‘You got it right. We agree with you.’ They wanted a rubber stamp to provide them cover [for decisions that went against claimants].”

Most seem to believe that the board is more balanced today than it was when the congressional hearings began early last year. NIOSH classifies six of the 12 members as “scientific” representatives, four as “worker” representatives and two as “medical” representatives. Five people have been added to the board since Hostettler’s hearings began in March 2006, including Phillip Schofield, a former Los Alamos technician who joined in February of this year and was seen as a replacement for Espinosa.

“It’s somewhat more balanced,” Rep. Udall said of the board. “I want to see how they actually perform.”

Leery of administration interference, Udall is co-sponsoring legislation that would take appointment power for the panel away from the White House and give it to Congress. The bill also would set fixed terms for board members — no more than two three-year terms — and require that the worker, medical and scientific communities be equally represented, with four members apiece.

“The constituents of mine who are going through the program are very, very frustrated,” said Udall, who is trying to help a group of former Los Alamos workers join the Special Exposure Cohort. “This program has been troubled since its inception.”

Alejandra Fernández Morera contributed to this story.

Funding for this report was provided by the Popplestone Foundation and the David B. Gold Foundation.