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The UK Compensation
Scheme for Radiation-Linked Diseases
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Michael Lewis, British Nuclear
Fuels plc, Risley, Warrington WA3 6AS,
United Kingdom
Tel +44 (1925) 832706 Fax +44 (1925) 654539 e-mail mdl2@bnfl.com
|
Abstract – The
UK Compensation Scheme for Radiation-linked Diseases has operated
since 1982. Originally started by BNFL and its trades’ unions,
the Scheme has now expanded to include the great majority of the UK’s
nuclear operators and their unions. The Scheme offers an alternative
dispute resolution system to court action and, as such, offers the
benefits of speed of resolution and generosities in the assessment
of cases and payment of compensation at relatively low levels of causation
probability. The Scheme uses an excess relative risk model, based
on the BEIR V Report, to calculate causation probabilities for claimants.
Cases with “special factors” which might complicate or
confound the Scheme’s technical basis can be referred to an
independent Expert Panel for determination. In cases that qualify
for compensation payments, the value of compensation is agreed with
the claimant using similar procedures to those which might be used
for a successful legal case. The value of the final settlement is
then adjusted according to a scale dependent on the causation probability
value. The Scheme is directed by bodies constituted from the participating
employers and trades’ unions and is managed on a day-to-day
basis by an independent Executive Secretary. To date the Compensation
Scheme has considered over 970 cases, 90 of which have qualified for
compensation payments.
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| 1. |
Introduction
The Compensation Scheme for Radiation-linked Diseases was
introduced in 1982 as a joint initiative between British Nuclear
Fuels Ltd (BNFL) and its trades’ unions. The aim of
the Scheme was (and remains) to make an assessment of claims
for radiation injury brought by Company employees without
the need for legal proceedings which are lengthy and expensive
for the employer and the unions and stressful for the claimants
and their families. The Scheme offers claimants an assessment
result enhanced above that which would probably be made by
a court and will pay compensation on a lower degree of causation
than might a court. The Scheme also offers a more speedy resolution
of claims than would be available in the UK legal system.
The Scheme originally considered only mortality cases, but
was extended to include morbidity cases in 1987.
The United Kingdom Atomic Energy Authority (UKAEA) and its
trades’ unions joined the Scheme in 1987 and other UK
nuclear operators have joined subsequently to the point where
the Scheme covers the employees of the Atomic Weapons Establishment,
British Energy Generation Ltd, Magnox Generation Ltd, the
Ministry of Defence, the Devonport Royal Dockyard and the
Royal Rosyth Dockyard. The trades’ union participants
are the AEA Constabulary Federation, Amicus, the First Division
Association, the General Municipal and Boilermaker’s
union (GMB), Prospect, the Public and Commercial Services
union (PCS), the Union of Construction, Allied Trades and
Technicians (UCATT) and Unison. These organisations cover
around 4.7 million of the overall total of 6.7 million trades’
union members in the UK.
|
| 2. |
Legal Background
In the UK, the Nuclear Installations Act 1965 (NIA65) places
the liability for all harm caused by the operation of a nuclear
licensed site on the site licence holder; plaintiffs do not
have to demonstrate negligence on the part of the licence holder,
merely that the injury or damage they have suffered has, on
the balance of probabilities, been caused by site operations.
The impetus for the creation of the Scheme arose from the experience
of both BNFL and its trades’ unions in litigating alleged
radiation injury claims brought under NIA65 in the 1970s and
early 1980s. It was evident that some cases would have been
difficult to defend in court – in one settled case, the
agreed terms of the settlement made it clear that, on the basis
of the expert evidence exchanged, the disease in question (multiple
myeloma) was probably caused by occupational radiation exposure
[1]. The difficulty of defending such claims and the uncertainty
in outcome led to BNFL to settle out of court all such claims
brought, though not necessarily at full value. It was also recognised
that such proceedings were lengthy, complex and expensive for
all concerned and would probably only cover the relatively few
cases which were supported by compelling evidence. This scenario
of continual, expensive and divisive litigation led BNFL to
enter negotiations with its recognised trades’ unions
and agree what is, in effect, an alternative dispute resolution
procedure; this became the Compensation Scheme for Radiation-linked
Diseases and the first cases were taken under the Scheme in
1982.
|
| 3. |
Scientific Basis
The development of a dispute resolution procedure for radiation
injury cases is greatly assisted by the scientific understanding
of the effects of radiation exposure. The principal late health
effect that is expected to occur in members of an irradiated
population is an increase in the incidence of cancer. The
probability of the occurrence of cancer, but not it’s
severity, is proportional to the level of exposure. The probability
of causation (PC)1 or assigned share (AS) quantifies the degree
of confidence with which a particular effect may be attributed
to a particular cause, such as radiation exposure [2].
When introduced in 1982, the Compensation Scheme used an
absolute risk model based mainly on ICRP 26 [3] in which the
risk arising from unit dose at a particular time was independent
of the subsequent “natural” or background risk
[4][5]. However, from the outset, it was recognised that this
technical basis would have to be reviewed after a suitable
period of operation.
In 1991 a new technical basis was introduced [5]; this was
a relative risk model, which was based on BEIR V [6] although
modified to overcome a small number of uncertainties –
where such modifications have been made, the principle is
always to give the generosity of any doubt to the claimant.
Using this basis, cases are categorised into one of eight
“schedules” according to their coding in the International
Classification of Disease, 8th Edition (ICD(8)). The first
seven schedules are leukaemia, respiratory, multiple myeloma,
thyroid, other tissues (which includes the alimentary canal,
brain and muscles), skin and cataract of the eye. The eighth,
unknown tissues, is used where no primary cancer site is identified
by the Certificate of Diagnosis or Death Certificate –
it uses the risk factors from the other tissues schedule and
incorporates a weighted mean calculation to assess doses to
specific organs.
|
| 4. |
Case Processing
All enquiries received must pass a test of eligibility before
the screening process is undertaken. In order to be eligible
for consideration by the Scheme, claimants must have:
| a) |
been employed
by one (or more) of the participating employers; |
| b) |
a radiation dose record with
the above employer(s); |
| c) |
been diagnosed with or have
died from an eligible disease – this means most
forms of cancer (see below for exceptions) or cataract
of the eye; |
Hodgkin’s Disease, chronic lymphatic leukaemia and hairy
cell leukaemia are excluded as there is no evidence to suggest
any link between radiation exposure and these diseases; malignant
melanoma of the skin is excluded because of its association
with exposure to UV light; malignant mesothelioma of the pleura
is excluded because of its association with asbestos exposure;
cataracts are excluded where there is some other identified
cause.
If these eligibility criteria are met, the case progresses
to “screening” – this is the process of
collation of the relevant medical and dosimetry data needed
to calculate a causation probability using the risk factors
given in the schedule into which the claimant’s disease
falls.
Dose histories are provided by the employers’ Approved
Dosimetry Service (ADS) providers, who prepare the data in
accordance with procedures jointly agreed between the employers
and the trades’ unions. In compiling such procedures,
which are known in the Scheme as “protocols”,
it is considered that, where there is any element of uncertainty
in the data held for an individual, whatever measures are
taken to construct a dose history, the benefit of any doubt
will always go to the claimant. This
1 - referred to by the Scheme as “causation probability”
or CP, which is synonymous with “probability of causation”.
includes the use of appropriate threshold doses, rather than
the more usually recorded zero doses, for dosemeters which
gave no response above their minimum threshold.
The causation probability calculation and supporting data
are then passed to the claimant’s trades’ union
for consideration and so that they can advise the claimant
of the findings of the screening process and advise on the
outcome and appropriate future action. At this stage cases
which fail the agreed screening criteria, i.e. have a very
low probability of causation, would then be closed by the
union, provided the union has confirmed that the data are
satisfactory and the claimant has been advised that there
is no possibility of an award of compensation under the Scheme.
Typically it will take up to six months for a case to reach
this stage, depending upon the complexity of the data which
needs to be obtained.
Cases with higher causation probabilities (15% or greater)
and which pass the agreed screening criteria, will then proceed
to the next stage, the preparation of a Factual Report. This
is a more detailed investigation of the personnel, dosimetry
and medical data for the individual in question. The report
is compiled by the employer, who would normally hold this
data, and sent to the union for agreement. This ensures that
all information relevant to the case is considered and agreed
by both the employer and the union.
The case is then “determined”, either by reference
to the appropriate payment schedule or by referral of the
agreed Factual Report to an Expert Panel. For those diseases
where the relationship between radiation exposure and causation
probability is straightforward, the Scheme participants have
agreed that the level of payment will be related to the assessed
causation probability. Cases where the causation probability
is determined as less than 20% receive no payment. Cases achieving
a causation probability value of 20% or greater are assigned
to a payment band (described below). This system is known
as “proportional recovery”. Successful claimants
then receive this fraction of the agreed value of full compensation,
known as “quantum” (see below):
| Causation Probability |
Payment Band |
| Less than 20% |
Nil |
| 20 – 29.9% |
One quarter |
| 30 – 39.9% |
One half |
| 40 – 49.9% |
Three-quarters |
| 50% and above |
Full |
|
For certain diseases where other relevant factors may exist,
e.g. respiratory cancer where claimants have a history of smoking,
or for cases where it is agreed special factors mean that the
application of the Scheme schedules may be complicated or confounded,
cases are referred to the Expert Panel for determination. In
these cases, a Factual Report is agreed, as described above,
and this is considered by Expert Panel members along with any
other relevant information. The Expert Panel then meets to consider
and discuss these cases and agrees the appropriate payment level,
from “nil” to “full”, as in the above
table. The members of the Expert Panel are selected for their
expertise in radiation or medical fields and the guidelines
to which they operate are all agreed between the parties to
the Scheme. Within these guidelines, the Expert Panel operates
independently from the employers and unions and this is an important
feature of the Panel’s role within the Scheme.
The final stage for a successful claim is the determination
of “Quantum”. The employer and union each appoint
solicitors to agree the amount of compensation which is appropriate
for a particular case. In practice the procedure is exactly
the same as if the case had been successful in court. The amount
which would be paid if the case had been awarded a full sum
is agreed and the appropriate fraction applied. A number of
case-specific factors such as loss of earnings, pain and suffering
and number of dependant children are taken into account. Hence
there is a wide variation in awards made since individual circumstances
differ. Throughout this process the union's solicitor advises
the claimant and seeks his/her agreement to the final amount
payable. The Scheme aims to settle cases which are awarded compensation
within 12-18 months of the initial enquiry.
|
| 5. |
Management of the Scheme
The Scheme is operated by a relatively large group of employers
and trades’ unions and it is vital to the strength of
the Scheme’s operations that claimants from all participating
employers have the benefit of a consistent approach to their
claim. Similarly, there are policy issues which need to be implemented
and managed consistently across the Scheme as a whole. It is
also recognised that there are some issues (e.g. operations
and radiation source types) which are peculiar to a particular
employer or group, and that a mechanism is required which allows
for these factors to be accounted for.
Scheme policy and management of issues common to all participants
is undertaken by the Compensation Scheme Council, which is made
up of representatives from each employer and its trades’
unions. Issues relating to particular employers are dealt with
by Compensation Scheme Management Boards (CSMBs) and, at present,
there are five such CSMBs, three of which incorporate more than
one employer. There is also a Technical Working Party (TWP),
made up of expert personnel nominated by employers and unions;
the TWP advises the Council on any matters relating to the technical
basis of the Scheme and on issues relating to medical and dosimetry
matters. In all these bodies, it is a requirement that decisions
are made by consensus, which means that meetings are constituted
upon individual members’ contributions, rather than on
a voting block basis. It has also meant that the Scheme has
been operated in a spirit of co-operation aimed at maintaining
the strengths of the Scheme for the mutual benefit of the employers,
the trades’ unions and the employees of the participating
operators.
The Scheme is also served by a full-time Executive Secretary
whose role is to liaise with all Scheme participants to ensure
a consistency of approach and to manage the Scheme on a day-to-day
basis. The Executive Secretary is independent and is appointed
to serve all the Scheme participants equally. The Executive
Secretary attends all Scheme meetings, providing briefing information,
submitting proposals and implementing decisions made by each
meeting. The Executive Secretary is also responsible for the
collation of screening data and for the management and progression
of cases.
To date, the Compensation Scheme has considered over 970 cases,
90 of which have qualified for compensation payments. Although
originally conceived to offer an alternative to court action
for those cases where claimants had received relatively high
doses, the Scheme has also been able to offer claimants the
benefit of a scientifically-based assessment of the contribution
of occupational radiation exposure to the causation of their
disease, regardless of the final outcome.
|
| 6. |
References
| 1. |
LEIGH, W.J., WAKEFORD,
R., Radiation litigation and the nuclear industry –
the experience in the United Kingdom, Health Phys. 81
6 (2001) 646-654. |
| 2. |
WAKEFORD, R., ANTELL, B.A.,
LEIGH, W.J., A review of probability of causation and
its use in a compensation scheme for nuclear industry
workers in the United Kingdom, Health Phys. 74 1 (1998)
1-9. |
| 3. |
ICRP, Recommendations of the
International Commission on Radiological Protection; ICRP
Publication 26. Annals of the ICRP x, Pergamon Press,
Oxford (1977). |
| 4. |
MUMMERY, P.W., ALDERSON, B.A.,
The BNFL Compensation Agreement for radiation linked diseases,
J. Radiol. Prot. 9 x (1989) 179-84. |
| 5. |
THOMAS, D.I., SALMON, L.,
ANTELL, B.A. Revised technical basis for the BNFL/UKAEA
Compensation Agreement for radiation-linked diseases.
J. Radiol. Prot. 11 x (1991) 111-116. |
| 6. |
NATIONAL RESEARCH COUNCIL,
Health Effects of Exposure to Low Levels of Ionizing Radiation.
BEIR V. Committee on the Biological Effects of Ionizing
Radiations. National Academy Press, Washington DC (1990)
421pp. |
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