Deadly denial: Navajo miners in a different kind of Cold War
By Laura Frank, Rocky Mountain News
Wednesday, July 23, 2008
Javier Manzano © The Rocky
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TUBA CITY, Ariz. — This spring, officials from the U.S. Department of Labor sat around a small fire, touching sweet corn pollen to their tongues and inhaling spicy cedar smoke in a traditional Navajo ceremony.
Larry Martinez, who manages the Office of Navajo Uranium Workers, had organized the ceremony hoping to improve a working relationship that he described as "difficult and getting worse" between the Navajo and the labor department, which manages a federal program to compensate sick nuclear weapons workers.
Ten thousand Navajo men mined uranium for America's atomic bombs. The U.S. government knew early on that uranium could cause lung damage. But instead of warning the Navajo miners, the government decided to study what happened to them.
Now those who survived — and the families of those who didn't — are having trouble proving that they qualify for compensation.
"I'd like to have you understand this ceremony is going to create this coordination," Martinez said in English during the mostly Navajo-language ceremony. "We're all in this together, to make sure the Cold War patriot, the person who sacrificed his health to protect his country, is taken care of. When you leave here, you'll be part of what happened here."
But less than two hours after the ceremony, the spirit of cooperation appeared to have worn off.
At a public meeting to explain the benefits of the compensation program to sick Navajo uranium workers, the lead DOL official ejected some of the people he had just participated with in the cooperation ceremony.
Booted out were representatives of an in-home health care company from Denver authorized to provide care for gravely sick uranium workers.
Martinez was seething.
"Did that ceremony mean nothing to them?" the usually calm Martinez said.
Wall of opposition
Most of the uranium workers whom Martinez helps are by law supposed to be compensated automatically through a program created eight years ago. It compensates workers who sacrificed their health, and sometimes their lives, as they labored amid highly toxic and top-secret materials used to build nuclear weapons.
Many of the Navajo were compensated $100,000 by a previous program created in 1990 and were to be automatically eligible for the new one, so their total benefits would rise to the current standards.
Instead, the Navajos have joined other former nuclear workers in fighting a different cold war, this time against their own government.
A Rocky Mountain News investigation found that the compensation program has become so complex and adversarial that even claims that by law were to be automatically approved — the Navajo being a striking example — are being stonewalled.
Only one in four sick workers or their survivors has been compensated, while millions of tax dollars have been spent redoing faulty work, including repeatedly rewriting technical reports, re-examining old exposure records that workers say are wrong and reopening denied claims only to deny them again.
Meanwhile, top officials running the compensation program have collected tens of thousands of dollars each in bonuses. In all, program officials have been given more then $3.2 million in bonuses since the program began. That includes $116,000 in bonuses for Shelby Hallmark, the program's top official.
Sick workers believe that their government is intentionally thwarting them. They are not alone.
"It's an ideological issue," said Bill Richardson, the former energy secretary who persuaded the Clinton administration to enact the compensation program. "When the Bush administration came in, they saw this as an entitlement program they didn't believe in. They had to comply with it, but they did so by putting up barriers so it wouldn't work properly."
A White House spokesman declined to comment, saying that the labor department would speak for the administration.
While DOL didn't respond to the Rocky's inquiries, it sent a statement responding to Richardson: "The Department of Labor has paid out nearly $4 billion dollars to energy worker claimants, well in excess of estimates provided by then-Secretary Richardson's Department of Energy, which led to the official Congressional Budget Office report. In just eight years, DOL has already issued payments to almost three times as many workers and their families (6,500 vs 15,000) as the CBO estimated would be paid in ten years. We remain committed to making sure that energy workers receive the compensation to which they are entitled."
The DOL's Web site says that more that 42,000 claims have been paid. The department did not respond to questions about the discrepancy between 15,000 paid versus 42,000.
Counting the cost
The controversial method of determining which workers deserve compensation has been fraught with problems, but program officials have clung to the process. Government scientists at the National Institute for Occupation Safety and Health continually change the way they estimate how much radiation workers absorbed.
More than two thirds of these estimates — involving more than 12,000 sick Cold War veterans — have had to be reviewed or completely reworked because of changes in the methods scientists say will give the best estimates. And because the scientific understanding of how toxic substances cause disease continues to evolve, virtually no case can ever be closed for good.
Larry Elliott, who directs dose reconstruction at NIOSH, declined to say how much each of nearly 18,000 dose reconstructions cost taxpayers. But since the program began, his office has spent more than $280 million in administrative costs.
Too much of that has been wasted, said U.S. Rep. Tom Udall, D-N.M., cousin to Colorado Congressman Mark Udall.
"Nothing could be more irresponsible than to spend taxpayer dollars fighting claimants rather than compensating them," Tom Udall said. "When claimants are forced to submit to unnecessary tests — or when NIOSH spends time and resources hunting for records that simply don't exist — taxpayer money is wasted and sick workers are forced to bear additional suffering."
One key government contractor was paid for completion of essential reports, and got paid more when those reports proved faulty and had to be fixed.
One of the key documents used in the dose reconstruction is called a site profile. This report attempts to list the kinds of toxic exposures workers in different jobs at different sites might have encountered. But not one of the site profiles for any of the major weapons sites was correct the first time, the Rocky found in reviewing various versions of the reports.
A big part of NIOSH's administrative expense went to Oak Ridge Associated Universities, the Tennessee-based consortium that won the original $70 million contract to do the profiles and estimate worker radiation doses. As of last year, the contract, still going after nine extensions that include new dose reconstruction work, had nearly tripled to $200 million.
As one result, the administrative costs for the Energy Employees Occupational Illness Compensation Program are 15 times higher than similar programs.
While the government declined to detail its spending in response to the Rocky's questions, labor department officials acknowledged earlier this year that administrative costs for the program reach about 33 percent of its payments to claimants.
That is a stunning figure for administrative costs when compared with the 2 percent for a sister program that compensates uranium miners and people exposed to atomic bomb testing. Administrative costs for Social Security Disability Insurance are about 2.5 percent of payments.
Officials say part of the reason is that the nuclear workers program is much more complex than the other compensation programs. But that, says Rep. Mark Udall, D-Colo., whose district includes the former Rocky Flats weapons site near Denver, is exactly the problem.
"It's putting the onus and the burden on the people who are already carrying significant burdens," Udall said. "I think it's an outrage."
Double dose of rejection
DOL has had to reopen thousands of cases it had already denied, citing changes in the scientific methods it uses to determine who receives compensation.
Government scientists discovered, for example, that Rocky Flats contained a previously unknown kind of plutonium — "Super-S" — that had not been monitored or studied. They spent two years working on a scientific method to estimate the radiation wallop that the Super-S might have given Flats workers. Some were notified by letter that their denials were being overturned and their cases reconsidered.
But many former workers found their new dose estimates lower than before.
Shelby Hallmark, the labor department executive who oversees the program, predicted workers' dismay with these so-called reworks earlier this year.
"More people are going to go back through reworks and get a second denial," he said. "It's not going to be pleasant for these folks."
Hallmark knew even then that the reworks were unlikely to result in more workers being compensated. That is because the original method used more claimant-friendly assumptions in estimating radiation doses. But the newer methods are more exact, Hallmark said.
The original estimates were "claimant-favorable ... overestimates," said Larry Elliott, who oversees the work at NIOSH.
But the original estimates apparently weren't favorable to all claimants. Elliott acknowledged some reworks came back higher than the original "overestimates."
The constantly changing methods have not benefited most workers, Mark Udall said, but the changes have benefited the contractors.
"It keeps those folks employed," Udall said.
Questions pile up
Among all of the complicated claims of illness related to half a century of nuclear weapons production, two kinds were supposed to be slam-dunks. If you were a uranium worker compensated in an earlier program, or a beryllium worker or uranium worker with lung damage, your claim was supposed to slide right through the system.
But that isn't happening because laws and rules are not being followed.
A 90-year-old Navajo woman who lost her uranium miner husband is still waiting for federal compensation from the new program, even though the law says that compensation should be automatic.
A 48-year-old beryllium worker tried for five years to get compensation that was supposed to be automatic, given his diagnosed lung disease.
An 86-year-old uranium miner is too sick to complete the breathing test required to prove that he qualifies for compensation.
But some workers never even make it into the system to be considered. DOL calls these "non-covered" applications because they failed to prove the employee worked at one of the more than 300 covered sites or had one of some two-dozen covered illnesses.
But the Rocky found evidence that the failure to prove information was sometimes the labor department's fault. For example, a uranium miner in New Mexico was rejected because DOL said he didn't submit medical records to prove his illness. But Jarvina Lee, a caseworker at the Navajo office of uranium miners in Shiprock, N.M., said she personally had sent 1,600 pages of medical records to DOL's Denver office on behalf of the worker.
DOL eventually found the box of records six months later at its Seattle office, after the worker had died.
"I don't know how someone could lose 1,600 pages of medical records," Lee said. "But we have had lots of horror stories like that."
The federal compensation program is so difficult to navigate for sick workers or their survivors that both the Navajo Nation and the state of New Mexico have established offices to help claimants file for their benefits.
"It's a sham," Richardson, the former Energy Secretary who is now governor of New Mexico, said of the program. "It's an insult to our workers, and it's wrong."
Vera Begay lives in a home on the Navajo reservation in eastern Arizona that was made from smooth, square stones her husband brought home from the uranium mines. The mines were so close by that blasted rock sometimes rained down on the three-room house, which even now is slightly radioactive.
Begay's husband died of lung cancer 24 years ago. She was given a "compassionate payment" for his lost life years ago, through the earlier program specifically for miners. That should have made her automatically eligible for additional compensation.
But the 90-year-old Begay — whose grandson is Martinez, the man who oversees the Navajo Uranium Workers office — has been waiting three years.
"I don't know why," Begay said in English, though she speaks mostly in Navajo.
Even Martinez is not sure why his grandmother has not received the compensation.
"She should already have been paid," he said.
Talk of reform so far just talk
Congress has the authority to change the compensation program, but so far, its efforts to do so haven't had much impact. A series of hearings in 2006 and 2007 resulted in little change. At least a dozen bills are pending that would improve the compensation program, but none has gone anywhere. There is talk of holding more hearings and submitting more bills to reform the law.
"The bottom line is we want to protect and help the most needy and most deserving folks," said U.S. Sen. Wayne Allard, R-Colo. "I think we have to continue to push on this."
U.S. Sen. Ken Salazar, D-Colo., said he is working on new legislation to relieve the workers' plight.
"More and more evidence is surfacing that former workers have had their claims lost or ignored, that claims examiners were encouraged to deny claims, and that bureaucratic red tape is tying the program in knots," Salazar said.
"This is an absolutely unacceptable way to treat those who have sacrificed for our country."
Dr. Laurence Fuortes is a physician and University of Iowa professor who studies occupational illness. He has helped some sick workers with lung disease try to get compensation.
When he began to suspect that workers were being wrongly rejected, he filed a Freedom of Information Act request to see more examples of lung disease claims that had been denied. Of the first 19 cases he reviewed, he found five of them contained medical evidence that they should have been approved instead.
Fuortes said he told program director Peter Turcic that the cases suggested a larger problem that needed further review.
"He seemed to agree," Fuortes said, adding that it was not clear what DOL might do about it.
"This system has been designed with maximum complexity," Fuortes said. "To me, it's setting things up for disaster."
That is exactly what's happened, said former DOL claims examiner Anne Block.
Block, a Seattle attorney who said she was fired from her job because she too helpful to claimants, said that mistakes are rampant in the system.
When a case goes through the years-long dose reconstruction process, DOL sends it to the National Institute for Occupational Safety and Health for an estimate of how much radiation the worker absorbed.
"I would send half the claims back to NIOSH because there would be something wrong with them," Block said.
Other times, claims examiners would be given "pre-screened" files marked as "accept" or "deny."
"I'd say 90 percent of the time, they were wrong," Block said.
She described cases that should have been approved automatically but were instead sent to NIOSH for the dose reconstruction process, cases sent off for review when a final decision already had been issued, and meetings where senior managers encouraged claims examiners to deny claims to close out cases more quickly.
"It's a complete mess," she said of the program. "And a complete waste of taxpayers' money."
DOL officials declined earlier this year to address Block's allegations.
Standing their ground
Mike Chance oversees DOL's resource centers, 11 offices across the country that are designed to help sick nuclear weapons workers file claims for compensation and medical coverage. Chance was the lead DOL official at the Navajo cooperation ceremony.
After the ceremony, Chance was about to start a "town hall" meeting at the Navajo chapter house in Tuba City, Ariz., to describe benefits available to sick workers and their families.
One of those benefits is home health care, if a doctor orders it for a gravely ill worker. Although Chance did not mention this benefit during the meeting, the labor department has approved Denver-based home health care company Professional Case Management as one provider. The company had been invited by the Navajo Nation to participate. But when employees of the company tried to set up a table to display their services, Chance ousted them from the public meeting.
Chance said he was not allowed to comment to the media, but he was overheard saying that he ousted Professional Case Management because DOL did not want to appear to endorse the company, which is suing DOL for failure to pay covered medical expenses of some of its clients.
Chance held a second town hall meeting on the Navajo reservation the next day in Kayenta, Ariz., near the Four Corners area. Again, he ejected the Professional Case Management employees. Martinez, who was setting up an information table with staff from his Office of Navajo Uranium Workers, confronted him.
Martinez told Chance that he and his entire staff also would leave if the home health care display was not allowed. Chance let them put the display in the hallway of the Kayenta Recreation Center, outside the auditorium where the meeting was being held.
The memories of the cooperation ceremony fiasco were still burning in Martinez's mind as he stood outside the century-old, eight-sided mud and log Hogan where his grandmother grew up, amid the red sands of eastern Arizona, just over the border from Colorado.
Years of frustration fueled the fire inside him.
"Time doesn't mean anything to the Department of Labor," he said. "They're not thinking about the individuals out there who are suffering. Congress is the only one that can do anything about this. And if we keep pushing them, maybe they will."
frankl@RockyMountainNews.com or 303-954-5091