Federal court of appeals upholds state law helping Hanford workers

The state of Washington has a right to create laws that make it easier for ill workers at the Hanford site to get workers’ compensation, said a Wednesday ruling by the 9th Circuit Court of Appeals.

The three judges on the panel unanimously ruled for the state of Washington after the federal government asked that a state law passed in 2018 easing compensation requirements at the nuclear reservation be overturned.

The law requires the Washington state Department of Labor and Industries to presume that radiological or chemical exposures at Hanford caused any neurological diseases or respiratory illnesses claimed by past or current employees of Hanford contractors.

Many types of cancer also are presumed to be caused by working at Hanford, plus some limited heart problems, under the new law.

Most other workers in the state bear the burden of proof to show that their injury or illness was a direct result of a specific workplace incident in order for them to be paid workers’ comp.

In June 2019, U.S. Judge Stanley Bastian found that the new law does not violate the Supremacy Clause because Congress has authorized several states to regulate workers’ compensation on federal land to the same extent that they can regulate non-federal land.

He found that the state of Washington can create workers’ compensation laws to address particular risks to employees in the state.

Firefighters in the state also have different workers’ compensation rules, although the rules are more restrictive than for Hanford contractor employees.

The Department of Justice appealed the ruling to the 9th Circuit Court of Appeals.

Hanford hazards unknown

“There’s a word for President Trump and his Department of Justice’s attempt to rip away our state law helping Hanford workers access health care they earned — cruel,” said Bob Ferguson, Washington state attorney general, in a statement.

“Hanford workers are cleaning up one of the most contaminated sites on the planet, and they deserve these protections,” he said.

Hanford in Eastern Washington was used during World War II and the Cold War to produce plutonium for the nation’s nuclear weapons program. Now about 11,000 workers are employed there to cleanup up radioactive and other hazardous chemical contamination and waste.

The Department of Justice did not immediately respond to a request for comment on the ruling.

As the Legislature was considering easing workers’ compensation requirements for Hanford contractor employees, workers and union supporters testified that Hanford workers are often subjected to hazardous exposures, with no one, including DOE officials, knowing which chemicals a particular worker may have been exposed to.

DOE have not consistently monitored chemicals, making it difficult for workers to identify a specific incident at Hanford that caused their disease or condition, state attorneys argued in federal court.

The state Office of the Attorney General said that proving that their illness was caused by their job frequently turned into a long, drawn-out fight, with some workers dying before they could receive benefits.

Under the new law, the federal government is given a chance to prove that an individual worker’s illness was caused not by working at Hanford, but by other factors such as genetics or lifestyle.

Illnesses broadly defined

However, the Department of Justice argued in court documents that it would be nearly impossible to prove that a disease was not caused by working at Hanford, especially with claims for workers who may have died decades ago. And the law has no statue of limitations.

A worker is eligible for the eased state compensation rules if they worked as little as a single shift at Hanford.

The Department of Justice said earlier that the bar for getting claims approved was too low and that the the list of covered illnesses is so loosely defined that it could cover hundreds of common illnesses, including asthma, chronic bronchitis, Parkinson’s disease, Alzheimer’s and strokes.

Hanford Challenge, a Seattle-based worker advocacy group, told the Legislature that workers who dispute denials are met with aggressive DOE legal tactics, and that the compensation program provides opportunities for DOE interference.

The Washington state Department of Labor and Industries decides whether to approve or deny claims. The federal Department of Energy pays the cost of approved claims because it is self-insured.

Hanford workers and their survivors also may apply for a federal compensation program administered by the U.S. Department of Labor. It has paid out almost $1.8 billion in compensation and medical reimbursement to ill Hanford workers and 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.

This story was originally published August 19, 2020 at 5:08 PM.