June , 2004

June 9, 2004

The Honorable Lisa Murkowski

United States Senate

322 Hart Building

Washington, DC 20510

Dear Senator Murkowski:

I am writing in support of your proposed amendments to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA). These amendments are critically important to fair treatment of Alaskans whose benefit claims relate to work on Amchitka Island during the nuclear testing in the 1960’s and 1970’s.

At the time of the EEOICPA’s initial consideration many of us were concerned about the difficulties the Amchitka Island-related claimants faced in obtaining state-administered workers’ compensation benefits. Qualifying for state-administered workers’ compensation benefits (such as those under the Alaska Workers’ Compensation Act) would require proving causation under a more stringent standard that did not take into account the failure to properly prepare and then maintain records of the workers’ radiation exposures. Various statutes of limitation and “no-progress” rules ill-suited to the claimants’ special circumstances also loomed as potential roadblocks to their obtaining state-administered workers’ compensation benefits in Alaska and elsewhere.

We addressed similar concerns in Subtitle B of the EEOICPA, under which the U.S. Department of Labor awards benefits to qualifying claimants, by making the Amchitka Island-related claimants members of a “Special Exposure Cohort.” Because the qualifying medical conditions of such members are presumed to have been caused by their radiation exposure, the Amchitka Island-related claimants have received Subtitle B benefits without litigation and long delays. Regrettably, the method employed to address those concerns in regard to their state-administered workers’ compensation benefits in Subtitle D of the EEOICPA (the so-called “willing payer” provision) has proven ineffective.

We were led to believe that, once a claimant received a positive report from a U.S. Department of Energy physicians’ panel, the department would identify a “willing payer” to provide the claimant’s state workers’ compensation benefits without further litigation. However, as you know the Government Accounting Office (GAO) testified at the March 2004 oversight hearings, and also recently reported that 25 percent of otherwise qualified claimants lack “willing payers.” What you may not know, since the GAO study did not examine Amchitka Island-related claims, is that no “willing payer” has been identified for any of these claimants. Thus, the troubles that arose from the U.S. Department of Energy’s delays in providing physicians’ panels have been compounded by the absence of any “willing payer” when a positive report is finally rendered.

Consequently, rather than quickly receiving their state-administered workers’ compensation benefits, 100 percent of the Amchitka Island-related claimants now face long delays and expense associated with vigorous litigation of the very issues and defenses that concerned us all along. Indeed, in a recent case, a claimant was denied workers’ compensation benefits despite having both been found eligible for Subtitle B benefits and having received a positive physicians’ panel report. Our concerns about the application of more stringent causation standards and procedural rules were borne out by that denial. In addition, a combination of those rules and the U.S. Department of Energy’s refusal to allow their physicians’ panel members to be deposed or respond to written inquiries about their report greatly restricted the usefulness of the report.

A result like the above was never anticipated and is not fair in light of the concerns sought to be addressed through the EEOICPA. It would not have come about at all but for the failure of the “willing payer” provision to function as expected. Your proposed amendments take into account the need to provide a viable alternative to promote payment without delay or extensive litigation when the “willing payer” provision fails to do so.

I believe that the proposed amendments constructing a benefit that “mirrors” that which would have otherwise been provided by a “willing payer,” and administered by the secretary of the U. S. Department of Labor, provides the needed alternative. Since a previously established entitlement to benefits under Subtitle B will now qualify a claimant for benefits under Subtitle D, fewer physicians’ panels will be required and the appalling panel backlog will be reduced.

Fairness to claimants lacking “willing payers” will be further fostered by providing that the “mirror” benefits under Subtitle D will be determined without regard to any state statutes of limitations or causation standards more stringent than those utilized under Subtitle B. In that way, the proposed amendments take into account the difficulties of proof faced by these claimants due to the failure to develop and maintain proper radiation exposure records during the nuclear testing they were engaged in during the 1960’s and early 1970’s. As some of our Amchitka Island-related claimants also report difficulties in obtaining representation on their claims, the provision for an ombudsman to assist in their claims and to advocate on their behalf is vitally important as well.

I believe that these amendments make this program much fairer to claimants who lack a willing payer, like our Alaskans with Amchitka Island-related illnesses. Based upon their successful handling of the Subtitle B program, and the nature of the benefits determinations under the proposed amendments, I also support making the U. S. Department of Labor responsible for the new Subtitle D program. Due to the ravages of age and disease, I fear that the time for obtaining just results for our Amchitka Island-related claimants is running out, and I urge quick action on these needed amendments to this important legislation.

Sincerely yours,

Frank H. Murkowski

Governor

June 9, 2004

The Honorable Ted Stevens

United States Senate

522 Hart Building

Washington, DC 20510

Dear Senator Stevens:

Sincerely yours,

Frank H. Murkowski

Governor