The federal government has laid out for the first time what it sees as the problems in a new state law that makes it easier for ill Hanford workers to get state worker compensation.
The new law covers Hanford nuclear reservation workers very differently than other workers in the state and at a greater cost, the Department of Justice said in documents filed in federal court Friday evening.
It estimated that the new state law applies to at least 100,000 past and current workers at the site, plus future workers.
The list of covered illnesses is so loosely defined that workers likely would be compensated for many illnesses common in the U.S. population, according to documents.
Sign Up and Save
Get six months of free digital access to the Tri-City Herald
Claims would be difficult to prove as unlikely to have been caused by working at Hanford, and many claims would easily cost the federal government $1 million each, according to the documents.
The federal government earlier remained silent as the state Legislature discussed and then passed the new law, which took effect in June 2018.
But it filed a lawsuit in December asking the federal court to overturn the state law as a violation of the Supremacy Clause of the U.S. Constitution.
DOE wants law overturned
On Friday it asked U. S. Judge Stanley Bastian to rule on the case without it going to trial, laying out what it sees as wrong with the law, and saying it was a clear violation of the U.S. Constitution.
The state’s attempt to regulate the federal government and to discriminate against it with heightened liability for workers’ compensation violates the Supremacy Clause, it said.
The state of Washington is expected to file a counterclaim asking that the Department of Justice lawsuit be dismissed and laying out its arguments in support of the new law by March 22.
The new law presumes that respiratory illnesses, neurological illnesses and many types of cancers, plus some additional diseases, are caused by working at Hanford.
Most other workers in the state have to show their work likely caused an illness or injury to get a compensation claim approved.
The description of covered illnesses in the new Hanford law is so vague that it could cover hundreds of commonly occurring illnesses, including asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s disease and strokes, the Department of Justice said.
Rather than having two years to file a claim like most employees in the state, Hanford workers who spend a minimum of one eight-hour shift at Hanford work areas could file throughout their lifetime. Or their survivors could file after their death, it said.
The Department of Energy is self-insured for worker compensation claims for six current contractors and seven subcontractors that employ the majority of workers at Hanford, plus 61 former Hanford contractors and subcontractors.
Cancer, other illness claims increase
It paid nearly $116 million on workers compensation benefits to employees of its contractors since 2009, according to court documents.
DOE usually has 300 and 350 worker claims a year for a covered workforce of about 10,000 people.
Legislators who pushed for the law said that claims for Hanford workers were denied at five times the rate of other claims to the state.
The denials were despite their potential exposure to radioactive and hazardous chemical waste from the past production of plutonium at Hanford for the nation’s nuclear weapons program.
Under the new law, the state of Washington calculated that it would need to be prepared to handle about 810 claims for each of the first five years of the new law.
In the decade before the law took effect, DOE received five or fewer claims each year for cancer. But since the new law passed, it has received 50 claims for cancer, according to court documents.
Costs for claims for cancer and other diseases covered by the new law could easily exceed $1 million each, according to court documents.
By mid February, 92 claims had been filed under the new law, and most of them would have been recommended for denial before the previous standard for approval, according to the lawsuit.
Most claims for illnesses approved
Penser North America, which administers DOE’s self-insured program, has referred 41 to Labor and Industries so far. It told the state that it agreed that 31 met the requirements of the new law and 10 did not.
However, Labor and Industries approved eight of the 10 claims that Penser recommended for denial.
DOE can rebut claims for compensation with “clear and convincing” evidence that a worker’s illness was caused by lifestyle, heredity or other factors.
But Penser said in court documents that the level of proof needed was difficult to achieve.
“DOE must obtain expert witnesses at a significant cost, and must search for, review and organize large volumes of medical documentation,” it said.
Most of the claims filed under the new law are for conditions diagnosed years ago, it said. The new law allows previously denied claims to be refiled under the eased compensation requirements.
Finding medical records to confirm a diagnosis and calculating compensation, such as lost wages, based on when a condition was diagnosed decades ago has been problematic, Penser said.
Hospitals keep medical records for a decade in most cases and doctors are advised to keep records for six years after an adult patient’s death.
In one recently filed case, adult children are claiming their father died has a result of brain cancer in 1970 caused by working at Hanford for two years in the 1950s.
About half of the cases recently filed, like that example, are related to medical records that are outdated, archived or unavailable, Penser said.
Based on claim decisions made so far under the law, claims are approved based on a worker’s or survivors’ account of events if medical records are not available, it said.
Hanford workers can get help
Benefits that may be paid include medical care, lost wages, disability, two years of tuition or retraining for a new job, a monthly pension and death benefits to survivors.
The Department of Justice said that if the court agrees to overturn the state law, ill workers and their survivors still could receive compensation under a federal program administered by the U.S. Department of Labor.
It has paid out more than $1.8 billion in compensation and medical care reimbursement to Hanford and Pacific Northwest National Laboratory workers or their survivors.
Workers can learn more about state and federal compensation programs and how to apply for them at the Hanford Workforce Engagement Center at 309 Bradley Blvd., Suite 120, in Richland. The center can be reached at 509-376-4932.