By Liz Carey
Buffalo, NY (WorkersCompensation.com) – The two surviving sons of Arnold Young have sued the US Department of Labor and the US Department of Health and Human Services over those agencies’ denial of their father’s compensation claim.
Arnold Young, a New York man who worked at nuclear weapons facilities in the 1940s and 1950s, died of prostate cancer in 1985. Under the EEOICP, or the Energy Employees Occupational Illness Compensation Program Act, energy employees and their survivors are entitled to compensation for whatever illnesses they may have developed as a result of exposure to radioactive material while working to create the US’s nuclear weapons program.
Young worked for Electro Metallurgical Company in Niagara Falls, NY from 1942 to 1945, and then for Linde Ceramics Plant in Tonawanda, NY from 1956 to 1970.
But Young didn’t develop the “right” kind of cancer to automatically qualify. As part of his compensation claim, his attorney, Hugh Stephens, said the government reconstructed his estimated dose of radiation. And because they didn’t have records for the amount of radiation Young might have been exposed to at Electro Met, Stephens said the government only estimated Young’s dose at Linde.
As a result, the government found that the cancer Young died from had only a 49.18 percent chance of coming from his exposure to radioactive material during his career.
In order to qualify for compensation, the chance of the cancer coming from the worker’s exposure must be 50 percent or higher.
Stephens said the government’s refusal to estimate the dosage Young received at Electro Met could tip the scales in his clients’ favor. But the government refused to estimate what that dosage could have, calling such a study “unfeasible.”
His suit, on behalf of Young’s sons, asks the US District Court to set aside a determination by the Department of Labor denying Young’s claim, saying the department lacked the authority to make such a decision.
“In order to determine whether his cancer was caused by ionizing radiation at a qualified facility, the EEOICP looks to an estimate of radiation dose received by the worker during his or her employment at qualified facilities,” court records said. “This Petition seeks to set aside the Final Decision denying Mr. Young’s EEOICP claim because the radiation dose estimate used to adjudicate Mr. Young’s claim did not estimate his internal dose for the time period 1942-1945. …Petitioners believe that NIOSH and the Secretary of Health and Human Services lacked the statutory authority to refuse to reasonably estimate an internal radiation dose for Mr. Young for the period August 13, 1942 through December 31, 1947.”
Stephens said the law that established the compensation fund in 2000 instructs the Department of Labor to make “a sufficiently accurate estimate.”
"Perform a proper and complete dose reconstruction," Stephens told the Buffalo News. "Right now, they're saying, 'We can't.' In other words, they're saying, 'Because we can't do one that's sufficiently accurate to deny claims, we're not going to do one at all.' And our position is, 'You can do one. It might not be terribly accurate, but you need to do one.
Some 237 former Electro Met workers or their survivors have received compensation payments totaling more than $34 million for having contracted one of the 22 listed cancers.
The government also has paid 367 claims for Linde workers, totaling more than $54 million. And 1,579 Bethlehem Steel workers have been paid a total of more than $241 million.
Stephens contends the 2000 law that established the compensation payments does not give the Labor Department the authority to assign a zero value to radiation in any time period. The law tells the department to make a "sufficiently accurate estimate," he said.
Stephens said it's obvious that zero is not an accurate estimate.
