A senior attorney at the Labor Department is accusing agency officials of writing and manipulating regulations to intentionally delay and deny congressionally mandated compensation to nuclear-weapons workers who suffered from sicknesses—and in some cases died—as a result of their work building the nation’s Cold War nuclear arsenal.
The attorney, Stephen Silbiger, says Labor Department leadership under former Labor Secretary Tom Perez ignored years of his complaints about the “open hostility” he said some officials exhibited toward claimants, many of whom are too poor and sick to fight the agency’s denials and red tape in federal court.
When Congress passed the law creating the compensation program in 2000, a bipartisan group of lawmakers promised these nuclear workers a claimant-friendly path to compensating them or their families for illnesses related to the country’s nuclear build-up and their exposure to toxins at bombing-making facilities.
Under the law, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), qualified workers or their survivors who were diagnosed with certain types of cancer or other diseases from exposure to toxic substances at covered facilities are entitled to between tens of thousands and hundreds of thousands of dollars in compensation to help pay medical bills and loss of wages due to their illnesses, with a cap of $400,000.
However, Silbiger and other critics say government officials often purposely thwarted workers’ attempts to seek the compensation by writing regulations that made qualification much more stringent than Congress intended, failing to disclose all the application rules, changing eligibility rules midstream, and delaying compensation for years until the sick workers died.
“There’s explicit hostility toward claimants, and this has become a game for bureaucrats to see how clever they can be in manipulating the statute and the regs to deny benefits to indigent claimants,” Silbiger told the Washington Free Beacon in his first public complaint about the program’s administrators.
Silbiger says the problems with the compensation program parallel some of those at the heart of decades of Veterans Affairs Department corruption and abuse.
“The problem in the VA is that nobody would confront these people [poorly administrating the VA medical service]—it’s very similar,” he said. “Nobody really cares about the program—these people have no real constituency. They’re rural, they’re elderly, they have no political clout, so they’re ignored.”
Silbiger, an attorney in the Labor Department’s Solicitor’s Office, which is charged with meeting the agency’s legal service demands, says that President Donald Trump and Labor Secretary Alexander Acosta now have a chance to fix the problems.
Two Labor Department spokesman did not respond to repeated emails seeking answers to a list of Free Beacon questions about the program, including whether there is a current claimant backlog, exactly how many claimants have received compensation versus how many have filed for it, and why top officials never took action in response to Silbiger’s complaints.
The Democratic National Committee, which Perez now chairs, also did not respond to a request for comment after acknowledging receipt of the questions.
Last summer, the Labor Department said the program had paid out $12.7 billion in compensation and medical benefits to 105,602 nuclear weapons workers and their survivors.
Earlier this year, Perez argued that Republicans are repealing Obamacare because they don’t “give a shit about people.” Once installed as chairman of the Democratic National Committee, the party started selling shirts with the line, “Democrats give a shit about people.”
Silbiger said that quip contradicts what he saw at the Labor Department when it came to compensating nuclear workers during Perez’s tenure or that of his predecessor, Obama-appointed Hilda Solis.
Silbiger, an attorney in the Labor Department’s Solicitor’s Office, said another department lawyer seemed intent on denying some claimants their benefits and narrowly interpreting the statute governing the program to do so. On several occasions during staff meetings over the last several years, Silbiger said an attorney in the Solicitor’s Office expressed disdain for some claimants and said he hoped they would never receive their benefits.
Longtime critics of the program’s administration point to numerous examples not only of claimants dying after years of waiting for their compensation but of spouses who refiled for survivorship claims dying while waiting for their compensation awards.
Some of Silbiger’s complaints echo recent allegations from the Alliance of Nuclear Workers Advocacy Groups (ANWAG), although the two parties said they do not know each other and have not conferred on the topic or anything else.
In a letter to the Labor Department Inspector General Scott Dahl dated July 12, ANWAG called for an immediate and full investigation into the administrators’ handling of the claims “to determine if unethical or illegal regulatory procedures occurred which may have resulted in unjustified denial of claims.”
ANWAG official Terrie Barrie cc’d the EEOICP ombudsman, U.S. Attorney General Jeff Sessions and several members of Congress on the letter, including Majority Leader Mitch McConnell (R., Ky.), Sens. Lamar Alexander (R., Tenn.), Tom Udall (D., N.M.), Michael Bennet (D., Colo.), and numerous House members.
Silbiger considers himself a workers’ advocate. He previously spent eight years at the American Federation of State, County and Municipal Employees Union, the largest union in the nation, and as a top aide to Rep. Steve Solarz (D., N.Y.) and Rep. Charlie Norwood (R., Ga.), both of whom are now deceased.
He said he brought his complaints to the attention of several Obama-appointed Labor Department officials both verbally and over email. He said at least two of those officials agreed with his findings but told him that they could not do anything to fix the problems.
After a federal judge in New Mexico overturned a Labor Department’s denial of compensation to a nuclear worker’s widow in August, Silbiger believed he had the legal proof he needed to back his complaints.
The judge had determined that Labor Department officials’ interpretation of the statute governing the EEOICPA program was “contrary” to the “plain meaning” of the statute governing the program in denying the widow’s survivor claims, in addition to being “arbitrary and capricious.”
Silbiger sent an email in September to then-Assistant Labor Department Secretary Michael Kerr, then-Labor Department Solicitor Patricia Smith, and the EEOICP Ombudsman Malcolm Nelson, arguing that the decision in the case, Lucero v. U.S. Department of Labor, showed the Labor Department used “tortured” reasoning deliberately to deny a widow’s benefits and overturn a decision by a district office and an EEOICPA Final Adjudication Branch to grant it.
The judge said in her decision that the law “unambiguously entitles” survivors of workers who have already qualified for the compensation to the compensation “that the employee would have received in accordance [with the law] if the employee’s death had not occurred before compensation was paid.”
“Any contrary interpretation of the statute by the Department of Labor is arbitrary and capricious, ultra vires, and void,” she continued.
She further ordered, “any rule or regulation which the Department of Labor has promulgated that interprets ‘compensation’ [under the law] in a manner contrary to the plain meaning of the statute is arbitrary and capricious and thereby void.”
Despite pointing out the Lucero ruling and his own experiences with administrators’ hostility toward claimants, Silbiger said only Nelson, the ombudsman, responded to his email, agreeing that his complaints reflected similar findings included in the ombudsman’s annual reports to Congress. However, Silbiger said the ombudsman told him his office lacked investigative powers and suggested he take his complaints to the inspector general.
Silbiger said he never took that step because he did not think it would be effective, and the expert on the EEOIC issue was supposed to be the ombudsman.
Since creating the program, Congress has stepped in several times to try to make it more claimant-friendly and address persistent complaints from applicants repeated from year to year in the EEOIC ombudsman’s reports to Congress. Early in its history, Congress shifted the program from the Energy Department to the Labor Department after administrative cost run-ups and a paltry number of compensation awards.
Claimant awards sharply increased. However, when complaints about the process continued, Congress created an ombudsman position for the program. Most recently, in 2015, Congress mandated that the Labor Department establish an Advisory Board on Toxic Substances and Worker Health to help advise the secretary with respect to technical aspects of the program and serve as a liaison between the department and claimants.
As required, Perez appointed 15 members from the science, medical, and claimant communities early last year and the board held several meetings. Critics of the program’s administration say the board’s creation is a step in the right direction but it lacks the power to force the Labor Department to act on its recommendations.
Additionally, the Labor Department had begun the process of making dozens of rules changes that lawmakers said would make it harder for nuclear workers to get their benefits before the new board was operational.
Sens. Lamar Alexander (R., Tenn.) and Tom Udall (D., N.M.) urged the Labor Department in a letter to Perez last year to delay making the rules changes until the advisory board was able to provide its input.
The General Accountability Office also had released a report a month prior to the letter from Alexander and Udall based on a random sampling of claimants’ experiences that found that the Labor Department generally followed its procedures to process claims but could strengthen some internal controls.
The senators also urged Perez and Labor officials to delay the changes until they could incorporate that GAO report’s findings. EEOIC administrators waited to implement many of new rules changes until earlier this year, although critics argue that it began utilizing some of the tighter eligibility restrictions much earlier in some cases.
The Board made eight recommendations to Labor Department officials in October of 2016 but so far the agency has only accepted one of them, according to ANWAG activist Terrie Barrie.
The recommendation the department accepted, however, is significant. In February, the agency reversed its policy of denying most post-1995 claims based on the assumption that levels of exposure to chemicals after 1995 were too low to have caused, aggravated or contributed to an illness. Now post-1995 claimants have the same burden of eligibility proof as claimants from other time periods.
It is unclear if the substance of the recommendation, incoming new leadership at Labor, additional Congressional scrutiny, or a combination of factors, led to the policy reversal.
ANWAG, however, remains deeply concerned about other recent eligibility rules changes, they say make it more difficult to qualify for compensation. In its July 12 letter to the Labor Department’s inspector general, ANWAG argued that that changes to the rules EEOIC program administrators made earlier this year are illegal because they were never formally adopted through the rulemaking process and were used to deny claims months and even years before officially proposed.
“We do not take this step lightly,” ANWAG stated in its letter, noting that it represents more than 100 advocates across the country helping sick nuclear workers and their survivors receive compensation Congress promised them.
“We believe government employees responsible for implementing EEOICPA have abused their power, ignored the laws of the land [and] failed to comply with executive orders requiring that agencies operate in a transparent manner,” ANWAG wrote, noting that the Labor Department received nearly 500 comments during the rulemaking promise with many commenters voicing their objection to the proposed changes, including those dealing with changes to eligibility for wage-loss compensation.
The new rules require that a worker must identify the “trigger month” in which he first became disabled and that the worker must be employed during that “trigger month” to receive any wage-loss compensation.
ANWAG argued that the new rule did not take into account that the symptoms of the illness could have begun long before a worker left their position and long before reaching a definitive doctor diagnosis of their illness.
“Since DOL regulations accepts [sic] that a worker was injured the last day he or she worked at a facility, it seems logical that DOL would only need to review the medical records they relied upon to accept a disease and compare those records (such as date of diagnosis or documentation of symptoms consistent with the disease before a formal diagnosis was rendered) to the Social Security Administration’s quarterly wages to determine when the worker first lost wages due to [a] covered disease,” the organization wrote.
To make matters worse, the Labor Department revised the rule for wage-loss claims to reflect this more stringent standard in July 2015, four months before they issued proposed rules to do so, the group said. It cited a case in which EEOICP administrators used the same language about the new “trigger month” requirement.
ANWAG also cited a case of the EEOICP officials using this “unauthorized wording” to deny a wage-loss claim seven years ago, in February 12, 2009.
The group also referred to the Lucero decision to back up their argument that the Labor Department is narrowly and illegally interpreting the law Congress passed to compensate nuclear workers for their illnesses in a timely and even-handed way.
“It is ANWAG’s position that DEEOIC has, at least in the changes made for wage-loss claims, overstepped their authority by restricting the ability to claim loss of wages to a very narrow time period,” Barrie wrote.
“Congress understood that many workers suffered from occupational disease which went often not correctly diagnosed for months after the symptoms appeared,” she argued.
“The statute clearly lays out the manner for which DEEOIC is to figure out amount of wage loss. It does not give DEEOIC the authority to limit wage loss to only workers who were employed during the same month they were diagnosed with a covered condition.”