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DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

MEETING

+ + + + +

MONDAY

MAY 10, 2022

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The Advisory Board met via 

Videoconference at 1:00 p.m. EST, Steven 

Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN

MIKE VAN DYKE

MEDICAL COMMUNITY

GEORGE FRIEDMAN-JIMENEZ

ROSE GOLDMAN

STEVEN MARKOWITZ

MAREK MIKULSKI

CLAIMANT COMMUNITY 

JIM H. KEY

DURONDA M. POPE

CALIN TEBAY

DIANNE WHITTEN
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DESIGNATED FEDERAL OFFICIAL

MICHAEL CHANCE

ALSO PRESENT

KEVIN BIRD, SIDEM

RACHEL POND, DOL

CARRIE RHOADS, DOL

JOHN VANCE, DOL
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CONTENTS

Welcome/Introductions ......................... 4

Review of Agenda ............................. 17

DEEOIC Updates: Program Highlights,

Information Items Since Last Meeting ......... 20

Discussion of Written Follow-up to

November 2021 Meeting ........................ 47

Review of Claims ............................. 83

Public Comment Period ....................... 148
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P-R-O-C-E-E-D-I-N-G-S

1:05 p.m.

MR. CHANCE: Good afternoon, everyone.

I'm going to read through my prepared statement, 

and then we can get underway. I think we're 

about five minutes late getting started, but 

that's not too bad for starting using a new 

format.

My name is Michael Chance, and I'd 

like to welcome you to today's teleconference 

meeting of the Department of Labor's Advisory 

Board on Toxic Substances and Worker Health. I'm 

the Board's Designated Federal Officer, or DFO.

Today's the date is May 10, 2022, and 

this is day one of two days of meetings.

As always, I appreciate the time and 

diligent hard work of our Board members in 

preparing for this meeting and for their 

forthcoming deliberations.

We are scheduled to meet today from 

1:00 up to 5:00 p.m. Eastern Time today, and we 

will resume again at one o'clock Eastern Time 
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tomorrow. Today's meeting will be the first 

virtual video meeting we have conducted.

So, today, I have with me, as always, 

Carrie Rhoads from the Department of Labor and 

Mr. Kevin Bird from SIDEM. He's our logistics 

contractor.

Since we are starting using a new 

format, please be patient with any technical 

issues or extra time that we might take resolving 

those issues or showing documents on the system. 

So, we'll try to run the meeting as efficiently 

as possible while keeping everybody safe and 

socially distant. Because we're conducting all 

these meetings, as you all know, in a socially 

distant environment, and maybe one day we might 

be able to do in-person meetings, but, for now, 

the video is the most groundbreaking version of 

what we have been able to do thus far.

So, regarding meeting operations 

today, we have a few breaks indicated on the 

agenda. Please do not disconnect from the call 

for the breaks. For Board members, please just 
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put your phone on mute to break and unmute when 

we resume. This will make it easier on Kevin. We 

all want to make Kevin's life easier and to make 

sure that everyone can participate in the 

discussion.

Copies of all the meeting materials or 

any written public comments are, or will be, 

available on the Board's website under the 

heading "Meetings" and the listing there for this 

meeting. The documents will also be on up the 

Webex screen, so everybody can follow along with 

the discussion. The Board's website for all 

matters can be found at:

dol.gov/owcp/energy/regs/compliance/advisoryboard.htm

If you haven't already visited the 

Board's website, I encourage you to do so. After 

clicking on today's date, you'll see a variety of 

information, a page dedicated entirely to today's 

meeting. The web page contains publicly 

available materials submitted to us in advance. 

We'll publish any materials that are provided to 

the Board. You'll also find today's agenda, as 
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well as instructions for participating remotely.

Again, if you experience any 

difficulties during this call or video, please 

email us at energyadvisoryboard@dol.gov.

If you're joining by Webex, please 

note that the session is for viewing only and 

will not be interactive until later on, and 

that's mostly for members of the public outside 

of the Board that have the ability to present.

Please also note that phones will be 

muted for non-Advisory Board members until the 

public comment session, which is today only. The 

call-in information has been posted on the 

Advisory Board's website. So, the public may 

listen in, but not participate in the Board's 

discussion during the meeting.

The public may offer comments during 

the public comment session, which starts today at 

4:15 p.m. Eastern Time. Depending on how many 

people want to make a comment -- I believe we 

have seven thus far -- the Chair will allocate 

time for everyone. We will unmute your phone 
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when it is your turn to make your comment.

If you would like to make a comment 

during the public comment session, please email 

us at energyadvisoryboard@dol.gov. Let us know, 

and we'll reserve the time for you.

A little bit about transcripts. A 

transcript and minutes will be prepared from 

today's meeting.

During important discussions today, as 

we are on a teleconference line and a video line, 

please speak clearly enough for the transcriber 

to understand. When you begin speaking, 

especially at the start of the meeting, make sure 

that you state your name, so that it's clear who 

is saying what.

Also, I would to ask that our 

transcriber -- and I don't know if it's 

electronic or a person at this time -- to please 

let us know if you have trouble with hearing 

anyone or any of the information that is being 

provided.

As DFO, I see that the minutes are 
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prepared and ensure they're certified by the 

Chair. The minutes of today's meeting will be 

available on the Board's website no later than 90 

calendar days from today, per FACA regulations. 

They will, of course, be published earlier than 

that 90-day date if available.

Also, we'll be publishing verbatim 

transcripts which are, obviously, more detailed 

in nature. Those transcripts should be available 

on the Board's website within 30 days.

As always, I would like to remind 

Advisory Board members that there are some 

materials that have been provided to you in your 

capacity as special government employees and 

members of the Board which are not suitable for 

public disclosure and cannot be shared or 

discussed publicly, including during this 

meeting. Please be aware of this as we continue 

the meeting today.

Your materials can be discussed in a 

general way which does not include using any 

personal identification information, or PII, such 
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as names; addresses; specific facilities, if we 

are discussing a case, or a doctor's name.

Finally, please be mindful we are 

currently seeking nominees for the Board's next 

round. So, I encourage current Board members and 

others interested in serving to submit their 

nomination. We are also interested in promoting 

a diverse pool of applicants. So, please do what 

you can to assist us in this endeavor. 

Information can be found on our website at the 

Advisory Board landing page or in The Federal 

Register. I believe that the deadline for 

submitting a request to be nominated is May 21st, 

and if I'm wrong on that, Carrie can correct me.

So, just a little for today for ground 

rules. If you would like, I think as I 

mentioned, if you're not speaking, you should 

mute your phone or video. And you can, also, I 

think, keep your video, if you'd like, during the 

meeting until you are up for presenting. I think 

that is up to you.

So, with that, I convene this meeting 
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of the Advisory Board on Toxic Substances and 

Worker Health, and I will now turn it over into 

the capable hands of Dr. Markowitz for 

introductions.

CHAIR MARKOWITZ: Okay. Hello, 

everybody. Good morning. Good afternoon. Thank 

you, Mr. Chance.

And I want to welcome Board members 

back and also welcome members of the public, 

welcome the public members back, if you've been 

here before, and especially welcome new people 

who are listening in.

We're going to do introductions in a 

moment. I just one to make one comment quickly 

at the beginning of the meeting, which is that 

we're going to do a fair amount of work over the 

next couple of afternoons. And this Board's term 

ends in a little over two months. If we find 

that we have some outstanding work that we want 

to get to before the end of the term, we might 

consider at the end of tomorrow discussing an 

additional short Board meeting to address those 
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issues.

In particular, Mr. Chance mentioned a 

couple of items, a couple of materials that have 

been given to us by the Department, which we 

can't really address in a public setting. And 

so, either perhaps the full Board or a subset of 

the Board might meet sometime in the next two 

months to discuss those. So, I just want to 

mention that at the outset of the meeting in 

terms of, as we go through the next two days, in 

terms of our planning for the future.

Let's do introductions. I think it's 

easiest if I just call people's names.

And I'm Steven Markowitz. I'm the 

Chair of this Board. I am a professor at the 

City University of New York. I'm an occupational 

medicine physician and epidemiologist. And 

actually, of most relevance, I've run the largest 

of the former worker medical screening programs 

for DOE workers for the past 20-plus years.

Ms. Pope?

MEMBER POPE: Good afternoon. Duronda 
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Pope, United Steelworkers. I retired from being 

a Rocky Flats worker. Worked there for 25 years. 

And currently, Director of the Emergency 

Response Team responding to fatalities and 

critical injuries.

CHAIR MARKOWITZ: Thank you. By the 

way, I forgot to mention, my video is not 

working. So, I apologize for that.

Ms. Whitten?

MEMBER WHITTEN: Good morning. My 

name is Dianne Whitten. I am the Health Advocate 

for the Hanford Atomic Metal Trades Council at 

Hanford. I've been in that context for years. I 

am a member of the IBEW (audio interference).

CHAIR MARKOWITZ: Yes, okay. By the 

way, your audio is not coming through that 

clearly, but we heard most of it.

So, Mr. Tebay?

MEMBER TEBAY: Yes, my name is Calin 

Tebay. I am the Beryllium Health Advocate on the 

site here at Hanford. I'm also one of the three 

representatives at the Hanford Workforce 
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Engagement Center. I was a sheet metal worker 

prior to these positions. I've been on the 

Hanford site on and off since, oh, mid-nineties. 

So, quite a while.

CHAIR MARKOWITZ: Dr. FriedmanJimenez?

MEMBER FRIEDMAN-JIMENEZ: Hi. I'm 

George Friedman-Jimenez. I'm an occupational 

medicine physician and an epidemiologist and 

serving on this Board since the beginning. And I 

look forward to the discussion the next couple of 

days.

CHAIR MARKOWITZ: Great. Mr. Catlin?

MEMBER CATLIN: Good afternoon. My 

name is Mark Catlin. I'm an industrial 

hygienist, semi-retired in 2018 from the Health 

and Safety Directorateship of the Service 

Employees International Union. And my interest 

in these issues of this Board began in the early 

1990s when I did exposure acceptance for workers 

at the University of Washington.

Thank you.
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CHAIR MARKOWITZ: Dr. Van Dyke?

MEMBER VAN DYKE: Good afternoon, 

everyone. Mike Van Dyke. I'm an industrial 

hygienist and associate professor at the Colorado 

School of Public Health. I've been doing work at 

DOE sites for many years, particularly around 

beryllium disease.

CHAIR MARKOWITZ: Dr. Bowman?

MEMBER BOWMAN: Yes, I'm Dr. Aaron 

Bowman. I am professor and head of the School of 

Health Sciences. My expertise is in the area of 

toxicology. There's been a particular emphasis 

on metal toxicology in my work.

I'm happy to be here today.

CHAIR MARKOWITZ: Great. Dr. Goldman?

MEMBER GOLDMAN: I am Rose Goldman. 

I'm an occupational and environmental medicine 

physician, associate professor of medicine, and 

also environmental health, at Harvard Medical 

School and Harvard School of Public Health. And 

I've been doing clinical occupational and 

environmental medicine for some decades, and with 
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some special interest in clinical metal 

toxicology. And I'm on my second tour on this 

Committee.

I'm happy to be here.

CHAIR MARKOWITZ: Great. Dr. 

Mikulski?

MEMBER MIKULSKI: Good afternoon. 

This is Marek Mikulski. I'm an occupational 

epidemiologist with the University of Iowa, and I 

direct the Former Workers' Program for the DOE 

workers who worked in the State of Iowa.

CHAIR MARKOWITZ: Mr. Key?

MEMBER KEY: Good afternoon. Jim Key. 

I'm President of the United Steelworkers 

International Union's Atomic Energy Workers 

Council in Washington, D.C. The Council 

represents the United Steelworker employees at 

the DOE EM sites across the nation. I'm a 48-

year employee of the Paducah Gaseous Diffusion 

Site reservation in Paducah. I've been involved 

with the workers' health since its inception in 

the late-nineties/early 2000 passage of the 
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EEOICPA.

CHAIR MARKOWITZ: Okay. Thank you. 

And Dr. Silver will join us tomorrow.

So, let's spend a couple of minutes 

just reviewing the agenda. And if there are 

additional items that we need to add, please 

mention them.

We're going to start off, as we 

usually do, with updates on the program from Ms. 

Pond and Mr. Vance; any information items that I 

think were crafted to some extent since the past 

meeting. Although at two o'clock, we're going to 

discuss, specifically, the follow-up on items 

that we submitted in written form to the 

Department. And then we're going to take a short 

break.

And we're going to review claims. We 

have 24 claims that were provided to us by the 

Department, and we're going to discuss these 

claims and our understanding of how the claims 

evaluation process proceeds; areas of strength 

and areas that we have questions about or 
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possible problems that we see.

And we're going to end the day with a 

public comment period at 4:15. So far, we have 

seven public commenters. We may have more, 

whatever; we're great. We can, actually, if need 

be, we can go slightly beyond 5:00. Webex won't 

cut us off.

And then, tomorrow, we'll briefly 

discuss our standing requests for resources; 

specifically, for a contractor to do a couple of 

functions that we have in mind. And then we're 

going to continue a review of claims.

So, on the agenda, we have two and a 

half hours between the two days for a review of 

claims. So, we left a lot of time for claims 

review. If we find we don't need all that time, 

fine; we'll just accelerate. But we'll see as it 

goes along.

And then, tomorrow at two o'clock, we 

have, from the program, one of the Senior 

Industrial Hygiene people, Jeff Kotsch. And 

we're going to discuss questions that we 
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addressed to the Department a couple of weeks ago 

about the industrial hygiene reports, and these 

questions I think will come up in our claims 

review as well.

So, they have, as of today --

actually, we submitted questions two weeks ago --

as of today, they sent us responses to those 

questions. So, I advise, if you have a few 

moments, for Board members to review those before 

2:00 p.m. tomorrow, so that we can ask Mr. Kotsch 

additional questions or get elaboration on the 

responses that they've already provided. So, 

very important issues.

After break tomorrow, we'll continue 

review of claims, as needed. We're going to 

discuss the compensation program's approach to 

beryllium sensitivity.

And then we're going to spend, towards 

the end of the meeting, really just reiterate the 

announcement of the nominations for the next 

Board term. But I think what we need to do is to 

set out, as the Board did in the previous term, 
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set out issues that are not fully resolved by 

this Board's term that the next Board might take 

up when they resume activities.

So, are there any additions or 

questions about the agenda?

(No response.)

CHAIR MARKOWITZ: Okay. Good. So, 

let's move on. We're going to now get an update 

from the program from Ms. Pond and Mr. Vance.

MS. POND: Good afternoon, everyone. 

This is Rachel Ponds. I am the Director of the 

Program at the Department of Labor. And I just 

want to share with you some highlights of what 

we've been up to since we last spoke. And then, 

after I talk about those things, John is going to 

take a little bit of time to talk about the 

policy issues.

But I just wanted to, first, mention 

in our last meeting we talked a little bit about 

our more rigorous Quality Review Program, the 

fact that our supervisory claims examiners are 

reviewing more and more cases every month for 
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each claims examiner, and we have a Quality 

Review Unit in our national office that is made 

up of analysts to review cases on a regular 

ongoing basis -- meaning they review them in real 

time, which is different from how we used to do 

it, which was an annual accountability review 

that was done by District Office staff around the 

country.

So, these ongoing reviews inform us on 

how we can move forward in improving our 

processes, improving our quality of written 

decisions. And we have been able to create 

training as a result of these, in addition to 

just making sure that, if there are any trends,

we can address them.

Even despite that, we've been, in 

quarters one and two of fiscal year 2022, the 

Energy Program's timeliness and quality results 

have been outstanding overall, exceeding in 

almost every category.

One of the other projects that we've 

been working on this year is, first, we've 
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provided access to employee claimants to their 

case files electronically, so that they don't 

have to ask for a copy of their case file. They 

can go through a multifactor identification 

process, and then they can access their cases 

online. Right now, that process is limited to 

claimants who are living employees who do not 

have survivors because we need to still work out 

some of the Privacy Act issues related to 

expanding that.

In addition, we will be able getting 

it to Authorized Representatives of claimantsonly employees. And then, you know, in the 

future, we're hoping to expand it to multiple 

survivors. Then, they can look at their own case 

file.

Right now, we are also working to 

develop a mechanism for digital signatures on 

EE-1 and EE-2 forms. Basically, that means that

we would not require a wet signature. People 

could complete and submit their applications for 

benefits online. We're hoping that that will 
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ease the burden for claimants in obtaining 

benefits, as far as submitting those through the 

mail or having to go to a Resource Center. This 

way, they can be signed and they can send it 

online. We expect that project to be completed 

by the end of fiscal year 2022.

We've also developed a pretty robust 

customer experience program in the last year. 

We've hired some staff that are experts in the 

area of stakeholder engagement, customer 

experience. And they've been really helping us 

within our national office to develop surveys.

And so, we've sent up surveys at 

various stages in the claims adjudication 

process, whether it be after a particular 

development letter or after a recommended or 

final decision has gone out, which, actually, 

we've done three within the last year. And these 

surveys go to claimants who, as I said, they've 

received some sort of development action, and we 

ask them questions about their experience with 

the Department, with the actual interaction 
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they've had with the claims examiner. And we're 

trying to use those as another mechanism for 

finding better ways to do business, better 

customer service for our claimants.

Also, we were doing some research in 

conjunction with those customer experience 

surveys to make sure that we reach out to 

underprivileged and underserved communities to 

provide them information about benefits available 

to them. We are going to be launching more 

outreach as a result of that research in 2022, 

2023.

Speaking of outreach, we're returning 

to in-person outreach beginning in June. We're 

going to be in Aiken, South Carolina, and then in 

New Mexico and Arizona near the Navajo Region at 

the end of June. The beginning of June we'll be 

at the Savannah River Site.

We're also planning at those meetings 

to have a larger group co-led by not only us, but 

with other parts of the government. When we go 

out to the New Mexico-Arizona regions, to reach 
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out to the tribal governments, the tribal groups 

out there, to make sure that we are -- there are 

a lot of other parts of the government -- that 

could be the VA, the Department of Energy, the 

Department of Justice -- who have information to 

share with those groups. So, we're going to be 

partnershipping with other parts of the 

government to do those sorts of outreach.

We are also continuing our virtual 

outreach events. So, in fact, we have one in May 

that's going to be covering the services of 

Authorized Representatives and the Resource 

Centers. And those types of outreach are going 

to continue at our in-person-led events, but 

those that are in person are going to be focused 

a little bit more on the overall generalities of 

the program itself, just so that we can reach 

people who may not be aware of the program.

We're also looking to translate more 

of our brochures and items that are on our web 

into Spanish, just to be as inclusive as we can 

on our website and through our communications.
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We have also been working on ongoing 

training, still, for our claims examiners, as I 

said, partly as a result of the quality reviews 

that we've been doing ongoing.

As part of the interaction with our 

employees, we've created an Employee Engagement 

Team. As some of you may know, we've gone 100 

percent remote after the pandemic. And so, all 

of our employees are spread all over the country. 

Most of them are not going into an office. So, 

we are working on new ways to interact with each 

other to make sure that our communication lines 

are open. We use a lot of Microsoft Teams. We 

have a lot of virtual meetings. And so, we've

got a group of employees that have gotten 

together and created a work group to help enhance 

those communications and inform management in 

ways that we can continue to assist our employees 

in their work environment.

I covered a lot, I think, in the last 

meeting about where we are, what we're doing 

overall. But our biggest focus right now has 
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been customer experience/outreach and making sure 

we're being as successful as possible; learning 

from any lessons that we get from these customer 

experience surveys. That will continue. And 

making sure that we're engaging our employees and 

training them as best we can.

We have, also, begun conducting 

reviews of the C&C reports again. That's being 

conducted in the Policy Branch, and we will be 

wrapping up those reports for the first set of 

those reports, I believe, soon and within the 

next couple of months.

I believe that's all I have. I didn't 

take that much time, but I think we started a 

little early. I'm going to turn it over to John, 

as I know he has a lot of policy issues that he's 

going to discuss as well.

And I'm, obviously, willing to take 

questions. I don't know if you want to ask those 

now or you want to wait until John's done. But 

I'm fine, either way.

MR. VANCE: All right. Well, good 
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afternoon, everyone.

My name is John Vance. I'm assuming 

everybody can hear me.

So, I am going to just go through a 

quick review of some policy updates for everyone. 

I'm going to start off by just simply reminding 

folks that all of our program policies and 

procedures are available for public review on our 

website. We maintain an inventory of all our 

active staff procedures and policies and a 

section on our main web page dedicated to that 

subject. So, I encourage folks that are 

interested in learning about the program or want 

to check in on things that they hear about to go 

to that resource available on our website.

We also maintain an archive of expired 

and superseded policy documents for folks to do 

some comparative analysis, if they so choose. 

And we have a tremendous amount of resources 

available in our public reading room. So, just 

look for that link on our main page, and you can 

go and do some policy exploration on your own.
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And I'll just remind folks, all of our

procedures are designed primarily for providing 

staff guidance in how employees are to do their 

day-to-day job in administering established legal 

and regulatory guidance. And so, always remember 

that this is, when we're talking about procedural 

guidance, it's really directed to our staff and 

how they're to do their job, but it is something 

that the public has an opportunity to review, to 

gain a better understanding of what our employees 

are asked to go through in adjudicating cases.

I also just speak to the fact that a 

lot of our procedures are updated based primarily 

on staff experiences and operational updates. 

And so, when I go through the list of things that 

we've done, most of that is originating from 

experiences that we have with either 

organizational changes or case-specific 

situations that are driving policy change or a 

need for procedural updates to help claims 

examiners and hearing representatives and medical 

benefit examiners do their job on a day-to-day 
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basis.

We also have procedures and other 

things that are influenced by stakeholder 

entities, such as the Advisory Board and 

individuals that are petitioning the program to 

clarify procedures. So, we do have a lot of 

input from lots of different sources, but 

primarily from our claims experience in 

adjudicating cases is where most of our 

procedures originate from.

So, I'm just going to take, actually, 

just a few minutes here to talk a little bit 

about our most recent updates from some 

procedural highlights.

So, we have published several updates 

to allowances for telemedicine, and we've 

released bulletins and circulars that speak to 

allowances for telemedicine, when permitted by 

state law. That applies to not only routine care 

under Circular 22-01, but we continue to extend 

guidance relating to telemedicine opportunities 

for home and residential health care. That was 
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covered in Bulletin 22-01. So, we're trying to 

maintain that flexibility in allowing physicians, 

where appropriate and legally permitted, to 

engage in telemedicine. And that covers both 

routine and home and residential health care.

One of our big updates for this past 

six months since the last Board meeting was we 

did release a major update to our Procedure 

Manual. We did a release on April 4th, 2022. 

This was Version 6.0 of our Procedure Manual. 

And again, this is, I always characterize it as a 

staff handbook on how to do the day-to-day job of 

being a claims examiner, hearing rep, or medical 

benefit adjudicator or examiner.

This is, again, available on our 

website. When we do these publications for our 

Procedure Manual, not only will you see the 

updated Procedure Manual, you will also see a 

document called a Transmittal. A Transmittal 

communicates all of the edits and changes that 

have occurred as a result of the new edition. 

So, if you want to have a sense of the details 
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and some of the specifics of the Procedure Manual 

updates, go to that Transmittal. Those changes 

will be reflected in the document itself, in the 

actual Procedure Manual for that version. And 

we're currently on Version 6.0.

So, some of the changes that we did, 

speaking to some of the operational things, 

because we've now moved to pretty much a virtual 

reality within the program, we removed a lot of 

historical language relating to the function of 

handling paper files. We now deal with a 

completely imaged case file system. So, we do 

not have really paper case files moving about the 

program. So, we removed all the guidance 

relating to that. That was an operational change 

that we updated in the Procedure Manual.

We've also made some updates with 

regards to some organizational structural issues, 

primarily centered around the new functionality 

of our Medical Benefit Adjudication Unit and 

their role in administering medical benefits. We 

clarified staff guidance with regard to handling 
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and assessing Authorized Representative 

appointments, just clarifying the role of the 

claims examiner in overseeing that process and 

making sure that we are documenting properly any 

kind of changes to individuals that are designed 

by a claimant as their AR.

We also updated and instituted a new 

operational instruction with regard to our 

conflict-of-interest policy. The underlying 

policy didn't change, but our process for 

administering that was clarified, and we added a 

little bit more detail to our process, just to 

make sure claims examiners understood their 

particular role in assessing and communicating 

with Authorized Representatives and claimants 

with regard to conflict of interest. And that 

was within Chapter 12.

We had some input that I think may 

have played -- the change actually may have 

resulted a little bit from a conversation that 

the Advisory Board had, but it also is something 

that came out of some reviews from our quality 
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assurance team. And it had to do with the site 

exposure matrices. We had a policy that required 

the site exposure matrices to be searched in 

virtually all claims scenarios, but that is 

actually not always applicable. So, we have now 

changed the language in Chapter 15 to make sure 

that some searches are only really necessary to 

be documented in the case file in situations 

where there's actually relevance to have that 

information contained in the case file, rather 

than mandating that it be done in every claims 

scenario.

For Chapter 21 relating to impairment 

ratings, we just had a very interesting conundrum 

with regard to how we would handle claim 

withdrawals involving impairment claims. And we 

had some experience where we had individuals that 

were withdrawing impairment claims when they got 

wind of the fact that they were not going to 

receive an increase in impairment. So, we had to 

sort of figure out the temporal sequencing of how 

to re-engage and resume development in those 
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cases after that individual returned to seek out 

a new claim for impairment. So, we had to map 

out a new organizational process for handling 

those scenarios.

We had to clarify -- and this was 

something that originates from staff having some 

questions about how to best handle impairment 

ratings involving medical disorders of the 

central peripheral nervous system. The program 

has a procedural exclusion that says that we 

cannot pay impairments -- it's actually a 

regulatory provision that stipulates that we 

cannot pay for pure psychiatric or mental 

impairment disorders, but we can when the mental 

disorder is a component of or a result of a 

covered central or peripheral nervous system 

disorder. So, we just had to provide 

clarification to our staff as to how to assess 

that information and how to really inquire, you 

know, make an inquiry of the training position to 

make sure that we had that nexus between a mental 

disorder and a disorder of the central nervous 
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system.

Within Chapter 23, we had an update 

relating to -- it actually was driven by issues 

relating to the coordination on state worker comp 

situations where we had to really clarify the 

fact that, even if you have a primary illness 

that is under, basically, a reduction of benefits 

because that individual has received state worker 

comp coordination, that that coordination is 

required, even if you have a consequential 

illness that is later accepted by the program as 

a result of that primary illness.

Coordination is always a very 

complicated subject. So, if anybody wants to 

take the time to read through that, it's in 

Chapter 32 and just speaks to coordinating 

benefits on impairment awards.

For Chapter 33, we've added some new, 

additional guidance with regard to validating 

payments. We have a new resource that ensures 

that we are paying individuals that are eligible 

to receive benefits. We have to check payees 
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against a "do not pay" portal. It's something 

run by the Department of Treasury to ensure that 

we are paying individuals that are living and 

there's no indication that they're prohibited 

from receiving payment. So, we have this new 

validation process.

And we've also updated Chapter 33, 

removing some old language that related to paper 

checks and processing paper checks. We've gone 

to a completely dedicated electronic funds 

transfer process. So, we only allow paper checks 

in very, very, very limited circumstances.

And then, the last thing that I have 

here, it does not speak specifically to 

procedural update, but it's just something that I 

wanted to highlight because I have gotten some 

inquiries about it.

So, the current addition of our 

program's forms expired on March 31st, 2022. And 

folks have been asking, "Well, are these forms 

still applicable to the program and where are the 

new forms?" The answer to that question is, when 
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you release new public forms, they go through a 

very intensive clearance process. And the OMB is 

responsible for actually doing those approvals, 

and there's some department issues that we have 

to go through. And if they're unable to release 

new forms in time, what they do is they continue 

to extend the prior forms indefinitely on a 

monthly basis.

So, what's happening right now is that 

the forms that are currently listed with a March 

31st, 2022 expiration date are actually being 

extended on a monthly basis until we have our new 

information collection cleared by OMB and the 

Department. So, for anyone who's concerned about 

that, as soon as we get our new information 

collection approved, we will replace the ones 

that are identified with a March 31st, 2022

expiration date. But, until that time, those 

March 31st, 2022 expired forms continue to get 

temporary extensions for use.

And that is all the relevant updates 

I've got for everyone. So, thank you, everyone.
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And I'm turning it back over to you, 

Dr. Markowitz or Michael Chance.

CHAIR MARKOWITZ: Thank you. Thank 

you. It's Steven. So, Board Members, any 

questions for Ms. Pond or Mr. Vance?

(No response.)

CHAIR MARKOWITZ: Okay. I'm not sure 

whether everybody's mic is on or whether you need 

to indicate on the screen whether you have a 

question or not.

MR. CHANCE: Dr. Markowitz, Board 

members can unmute themselves.

CHAIR MARKOWITZ: Okay. Great. Thank 

you.

I have a couple of questions, 

actually.

So, on the Board's website, under the 

"Briefing Book Materials for Today," there is an 

item called the "N" -- oh, excuse me -- the 

"DEEOIC Quality Summary Report 2021."

And, Kevin, if you could go on our 

website and go to today's meeting date, and 
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you'll see -- it's at the bottom -- there's the 

Briefing Book Materials, so that you can show 

this.

And my question really is pretty 

simple, which is, what are we looking at here?

Let me say. Let me know when you 

have -- I'm looking at it online, but, Kevin, if 

you could let me know when you're showing it. 

Yes. Oh, I see. Okay.

MS. POND: Yes, Dr. Markowitz, this is 

Rachel. I can explain what this is.

I mentioned in my brief discussion

that we're doing these ongoing sampling, a review 

of quality. So, the group that's doing that in 

the national office, they do these, what they 

call, "episodes." And I think that's why there 

might be a reference to that. But they do them 

every two weeks.

And this report summarizes not only 

the reports that the QA team does every couple of 

weeks, but also the sampling that's conducted by 

the District Office. It's a way that we could 
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tell over the course of a year the results of 

those quality reviews, both in the quality 

reviews done by our national office team on an 

ongoing basis, but also the sampling that's 

conducted by our District Offices.

So, you'll see here these are the 

categories that our District Office -- it says, 

"Supervisory Testing" in the third column over. 

"Customer Service," "Data Integrity," and Preand Post-Adjudication," "Quality Development." 

So, they do that for recommended decisions in the 

national office and -- oh, I'm sorry -- no 

initial processing, which just means the time it 

takes to get through the portion of the case 

either before a recommended decision or before it 

goes to NIOSH.

The "remands," "reopening requests," 

"Director's orders" -- so, these are the various 

different categories that not only our Quality 

Review Team looks at, but also that our 

supervisors look at when they look at individual 

cases when they're evaluating their claims 
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examiners.

So, you'll see "written quality, 

development, and decision accuracy in the AQ 

review developments" in that second column. That 

is, basically, what our -- it's encompassing what 

our review team does on a regular basis.

Does that answer your question?

CHAIR MARKOWITZ: Yes. But, by way of 

example, for instance, the "recommended 

decision," we see the elements that are looked 

at, the written quality, the development, et 

cetera.

MS. POND: Right.

CHAIR MARKOWITZ: And then we see the 

review element. So, how does customer service 

relate to written quality? I just don't see how

they're -- I don't understand how they're 

connected; that's all.

MS. POND: Well, when they look at 

customer service, they're going to be looking at 

-- so, if they're looking at recommended 

decisions, they'll look through that to see if 
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there was -- so, the various categories are going 

to relate to different types of cases. So, if 

you're looking at a recommended decision, you're 

looking at the development of the case throughout 

and you're looking at the quality development, 

data integrity, and customer service.

They're going to be looking at the 

phone calls to make sure that people are 

answering them right, answering them timely, but 

also answering them in a proper manner. Because 

our case file contains written notes about the 

phone call, the interaction, and that sort of 

thing.

So, these various categories will 

apply to each of the different portions of the 

case that the supervisor is evaluating. And 

these come from, a lot of these come from our 

operational plan. So, they took our operational 

plan, which talks about timeliness, and they're 

evaluating each portion of that.

So, the recommended could have -- and 

some of these won't be applicable. But if 
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there's a piece in there that shows that there 

was an issue with the way that their customer 

service was throughout the processing of the 

claim up to the recommended decision, it will be 

covered there. But it might be covered in, you 

know, looking at the remand and the recommended 

decision, just because we're also looking at the 

way that they're addressing the claimants, and 

that sort of thing.

We have more details about those, I 

believe, but I would have to give those to you 

after.

CHAIR MARKOWITZ: Okay. Thanks.

Last question about this: The score, 

so is that out of 100? Is that the scoring 

system?

MS. POND: Yes.

CHAIR MARKOWITZ: Got it. Okay. 

Thanks.

I have a different kind of question 

that relates to -- I think it's for Mr. Vance --

it relates to the Procedure Manual.
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And so, this came up with a couple of 

us in reviewing some claims. So, I think we'll 

see it when we get to one or more of the claims. 

But we have done Parkinson's disorders and the 

Board's previous recommendation. And you may or 

may not recall the detail about this, but we had 

recommended that trichloroethylene be accepted as 

causally related to Parkinson's disorders. And 

the Department agreed; it was added to the SEM. 

So, there's a link between Parkinson's and 

trichloroethylene, TCE, exposure.

But it wasn't made into sort of 

presumption, and unlike some other exposures --

manganese, I think carbon monoxide, acute carbon 

monoxide poisoning -- that there is a presumption 

for Parkinson's.

And my question is whether you recall 

whether there was discussion about making TCE

into a presumption for Parkinson's disorders, or 

whether that really wasn't even subject to 

discussion. And if you don't remember --

MR. VANCE: Yes, I think Marek 
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Mikulski had given us a very detailed and 

descriptive analysis of that. And I think that

the context of what we were looking at at that 

time was making sure that the site exposure 

matrices was properly identifying toxins with 

Parkinsonism, Parkinson's disease, and I believe 

that there was another alias that was added as 

well.

But I think the focus of that was to 

site exposure matrices. I don't know whether we 

had made an attempt or had really delved into 

modifying the presumptive standard that exists in 

that one exhibit in Chapter 15. I think it's 

Exhibit 15-4.

So, that would be certainly something 

that the Board could take a look at, as far as 

making recommendations for changing that 

particular presumption. Because we do have a 

presumption for Parkinsonism, Parkinson's 

disease, and I can't remember the third alias 

that was added. But I believe that the focus of 

our last discussions related more to how the 
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information was presented on the site exposure 

matrices.

CHAIR MARKOWITZ: Okay. Okay. Yes. 

So, yes, this will come up again when we talk 

about the claims. So, great. Thank you.

Any other Board members have any 

questions?

(No response.)

CHAIR MARKOWITZ: Okay. So, we're 

going to move on now. The next item is a 

discussion of the written follow-up to our last 

meeting. And I think the most efficient way of 

doing this would be for me to, essentially, read 

the item; summarize the Department's response, 

and then Mr. Vance can elaborate, or Board 

members can jump in with additional questions. I 

think that's what makes most sense. Because I 

was the one who wrote up the questions, so I can 

probably summarize them pretty quickly.

These were submitted in writing to the 

Department a while ago and we've had responses. 

And by the way, for members of the public, these 
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responses are on our website under the Briefing 

Book Materials. So, feel free to take a look at 

them.

I don't know. Actually, that makes me 

think that maybe, Kevin, if you want to put them 

up on the Webex? They're on the same location as 

the previous things we discussed.

MR. BIRD: Yes, I think I've got the 

correct document, but can you confirm?

CHAIR MARKOWITZ: Yes, that's it.

MR. VANCE: Yes, Kevin, that looks 

correct.

MR. BIRD: Okay, good.

CHAIR MARKOWITZ: Okay. So, in the 

first question, we asked whether, since claimants 

can access electronic files now, which actually 

was something that one of the -- I think the 

first term of the Board it was recommended. And 

it took time because these things are 

complicated. But, as Ms. Pond announced, it's 

now available for many claimants.

Our question was whether the program 
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gets any feedback, you know, to the extent to 

which they're used, issues in terms of improving 

their use, and the like, because, for us, it 

seemed like a great thing to do. And I guess the 

response from the Department is that they really 

haven't had much feedback.

I don't know. I don't know, Mr. 

Vance, do you think there's a mechanism that 

might be useful, a way of improving that file 

access for people?

MR. VANCE: Yes, I know that there are 

continuing efforts -- and I might let Rachel 

speak to this, too -- to expand that 

functionality. But I think, with regard to 

feedback, I think we have to figure out a 

mechanism for determining its utility and any 

suggestions from our claimant population as to 

how to improve it or what additional capabilities 

they would be looking for.

So, Rachel, I don't know if you have 

more to add.

MS. POND: Yes, we've been doing some 
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research to try to determine how many people have 

actually used this to access their case files, 

and I think there was over about 600. And this 

is more recent, since we did this write-up for 

you. So, that's why I have a little bit more 

information.

But I've been trying to figure out 

exactly, you know, the number of people that have

been accessing it, using it. And as I said, it's 

about 600 right now. But I think, once we have 

this available to Authorized Reps, we're probably 

going to have more, because probably a lot of 

them are used to using electronic methods for 

gathering information.

We are also having to look right now 

at some issues related to the information we're 

getting from the Department of Energy. I'll just 

mention that because there has been a slight 

pause in obtaining this access because they've, 

the Department of Energy has identified some 

cases where other people's, other employees' 

information may have gotten into the case file, 
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like lists that we get, when we get employment 

verification.

So, we're in the process of doublechecking that right now, but our plan is to, 

after we've ensured that all that is safe, making 

it accessible to the Authorized Representatives.

And I think, also, when we go and do 

outreach in person, we can ask those questions, 

especially since we're going to be having our 

customer experience team's meeting with groups of 

individuals throughout the day at these outreach 

sessions to kind of ask questions and get 

feedback. So, I'm hoping maybe those outreach 

events will help us out.

CHAIR MARKOWITZ: Okay. Thank you.

Any comments or questions from the 

Board?

MEMBER POPE: I have. I had one.

CHAIR MARKOWITZ: Go ahead.

MEMBER POPE: This is Duronda Pope.

Rachel, when are those customer 

experience meetings happening? You said this 
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year, right?

MS. POND: Yes, we're going to be 

having -- we're having an outreach meeting in 

Savannah River at the beginning of June, and then 

we're going to be out in the West or New Mexico 

and Arizona at the end of June.

Those outreach events will be posted 

on our website. So, if you check there, we'll 

have the specific details about that in the 

coming weeks.

MEMBER POPE: Okay. And how they're 

interactive and that type of thing?

MS. POND: Yes. Well, basically, what 

we're going to have, we're going to have the 

presentations, the general presentation about the 

program, and then the various agencies. The JOTG 

I think will be at these events as well. They'll 

be talking about their aspects of the program --

meaning the Department of Energy. I may say a 

few words, the Resource Centers. And then we'll 

have the group sessions with our customer 

experience individuals throughout -- like right 
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after those meetings. And they'll be doing 

smaller groups, and people can sign up for them, 

I believe, is how it's going to work.

MEMBER POPE: Okay. Thank you.

CHAIR MARKOWITZ: Other 

comments/questions from Board members? And you 

should just jump in because everybody's mic is 

open.

(No response.)

CHAIR MARKOWITZ: Okay. So, the next 

item relates to the IARC Group 2A carcinogens. 

And the Board had previously recommended a 

limited list of carcinogens for which there was 

some evidence of human epidemiologic causation, 

or at least association with exposure. These are 

demonstrated animal carcinogens, but they are not 

definitive human carcinogens. But the evidence 

doesn't exist for that. But, in common language, 

we would call them probable human carcinogens. 

And the Department accepted our recommendation of 

that, including them.

And we were asked for clarification on 
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a couple of items. One was there are a couple of 

pesticides, aldrin and dieldrin, that are related 

to each other. And there's evidence that one of 

them causes human breast cancer. And the 

question to us was, should the link in the SEM 

include breast cancer in both males and females 

for both aldrin and dieldrin? And our 

recommendation was yes, and the Department 

accepted that recommendation.

A second issue that was clarified --

and actually, if you'd go down, Kevin, we're on 

item -- we're below this on the screen. But, 

yes.

So, the second item had to do with 

styrene, and styrene is an organic agent that 

there's evidence that it causes lymphoma. And 

the question to us was, you know, which lymphomas 

to add or, in general, blood cancers to add to 

the SEM and linking it to styrene. And our 

recommendation was to include all of the 

lymphomas. There are now 70 subtypes of lymphoma, 

as the science gets more sophisticated.
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And so, the Department added all 

lymphomas to the list. And the category, I 

think, is lymphoma or lymphoma hematopoietic 

malignancies. And so, it's a very broad category 

of lymphomas and related blood cancers that are 

now listed in the SEM as related to styrene 

exposure.

And we can look at that SEM, actually. 

Kevin, you'd just go up a little bit, I think it 

shows us, very small font, the linkage of styrene 

to a bunch of different lymphomas.

Okay. So, moving on, unless there are 

questions -- any questions or comments about 

these changes?

MEMBER GOLDMAN: Steven, this is Rose 

Goldman.

CHAIR MARKOWITZ: Sure. Go ahead.

MEMBER GOLDMAN: I'm sorry to 

interrupt.

Great that it's in the SEM. One of 

the things that came up -- so kudos for that --

with our group, though, is when you get to your 
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Procedural Manual, for some of the other 

carcinogens that were Group 1 and other 

categories, there were specifications for how 

many years you had to be exposed or months, and 

how many years ago. And our job was not to put 

forth those kinds of specifications that were 

found for other types of carcinogens.

So, what I was wondering now is, now 

that it's in the SEM, what happens in terms of 

the Procedural Manual, in terms of the examiner 

now seeing somebody who may have had some styrene 

exposure? Is there some guidance about that next 

step in terms of seeing if it was an adequate 

exposure, or put in some criteria that we did not 

put forth?

CHAIR MARKOWITZ: Mr. Vance?

MR. VANCE: Yes. So, let me create 

the context here. So, what this change to the 

site exposure matrices is doing is providing 

claims examiners with information that can be 

assessed as they're going through their 

adjudication steps.
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So, what you're looking at here is the 

health effect data. So, a claims examiner, when 

they get a claim -- and let's say they have 

established covered employment and they have 

established that this individual has been 

diagnosed with one of these cancer types or one 

of these lymphoma types. What they're going to

do is they're going to begin doing a 

toxicological or an industry hygiene profiling 

effort.

They're going to go say, okay, what 

type of work did this person do? What work 

processes were they engaged in? What job did 

they do? And they're going to try to identify 

work that brought them into contact with one of 

the identified toxic substances.

If they confirmatively do that, based 

on that comparative analysis, the next stage 

would be having an industrial hygienist provide 

some sort of more detailed profile or 

characterization of that exposure.

That information is then provided to 
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either the claimant's physician, if they so 

choose, or a contracted medical specialist. It 

is now up to that medical expert to look at and 

weigh-in on whether or not, from their 

understanding of the medical health science data, 

whether the exposure has been characterized for 

that employee, and was, you know, at least as 

likely as not, a significant factor in causing, 

contributing, or aggravating an illness.

So, that question that's being asked 

is speaking to our normal adjudication process. 

Now we have an alternative process that speaks to 

presumptive standards, wherein we don't have to 

go through that entire process if we have 

recognized that an exposure -- that means 

whatever conditions that exist in medical health 

science, such as latency or the extent of 

exposure, if those criteria are satisfied, then 

the case can simply be accepted, once those 

conditions are met, and the employee has covered 

employment and the diagnosed condition.

So, essentially, for these two, what 
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we're, basically, saying is that, if you can show 

that you have the disease, if you can show that 

the evidence is that you had contact with this 

material, and a physician, considering the 

characterization of that exposure and the 

existence of that disease, do they have the 

wherewithal to be able to look at that and render 

an opinion that there is some sort of workrelated connection between the exposure and the 

disease? So, they would be the one considering 

any kind of latency or any type of extent of 

exposure that would be required in order to 

render a positive opinion.

But that is a different process than 

our presumptive standard. The presumptive 

standard just allows us to say we are accepting 

the case that these conditions are satisfied.

MEMBER GOLDMAN: Well, that's very 

helpful. Really appreciate that. And I think 

one of the things that will come out, when we do 

the review of the cases, is I found that similar 

situations were judged differently by the 
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different examiners. So, I guess I don't know if 

that's something we can deal with or that's just 

part of the reality. So, we'll get to that.

CHAIR MARKOWITZ: It's Steven 

Markowitz. Good point, and that consistency is 

the work of the industrial hygienist and the 

medical consultants. It's actually one of the 

chartered tasks for evaluation by the Board.

I mean, I think that it would be very 

difficult to make, given what we know about the 

human evidence for these carcinogens, it would be 

very difficult to defend establishing 

presumptions for that, because we don't really 

have much information on the circumstances under 

which people get cancers from these exposures.

So, the fallback is, you know, 

connecting them in the SEM, so that at least it's 

in the universe, and then it's turned over to the 

industrial hygienist, the contract physician, to 

make the determination.

And quite frankly, the medical 

consultant isn't going to have a lot to go on, 
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right, because the epidemiology has driven it. 

So, we got to first base on this issue, and we'll 

have to see how it plays out in terms of the 

reality.

Any other further comments on this 

topic? Otherwise, we'll move on.

(No response.)

CHAIR MARKOWITZ: So, the next 

question that we raised was, what was the current 

status of the SEM contractor called PTS on three 

categories of job titles that we thought might be 

added to the presumptive list for asbestos 

exposure? And those were chemical engineers, 

mechanical engineers, and industrial health and 

safety engineers.

And so, the SEM contractor, Paragon, 

had sent us a response. And I don't want to 

bring it up on the screen because it's a couple 

of pages. But it is embedded in this document, in 

these responses. So, the public and Board 

members can go to the link and look at it. But 

let me just summarize it.
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So, the question that we had for the 

Department was, what's the status of the notion 

of adding these three job titles to the asbestos 

presumption list? And Paragon's answer to this 

was that they had recommended to the Board 

earlier that death certificates from the National 

Occupational Mortality Survey, which is what we 

were using to link job titles to asbestos 

exposure, that if a small research project were 

undertaken to look at the death certificates of 

the job titles that we thought that should be 

added, and to look at the industry and occupation 

on those death certificates, that might tell us 

something about the relevance for the Department 

of Energy.

And the Board's response to that was 

it was unnecessary, really, to look at death 

certificates; that on certain job titles, we 

agreed with Paragon that there were too few 

deaths in the system to include them in the list. 

And those, for instance -- I'm looking at 

Paragon's response -- so, for instance, several 
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job titles like layout workers or molding and 

casting machine operators, in which there were 10 

or less deaths in the National Occupational 

Mortality System as causally related to 

mesothelioma as an indicator of asbestos 

exposure, that, frankly, looking at a handful of 

death certificates for a given job title, it's 

not enough to tell you anything, basically.

So, we agreed with Paragon that those 

job titles, that there wasn't enough evidence in 

the National Occupational Mortality data to 

pursue them further. So, in a sense, we conceded 

that those job titles should be set aside.

But that didn't apply to the chemical 

engineers, the mechanical engineers, and the 

industrial safety engineers because there were 30 

or more deaths in those groups, and they had a 

relative risk of over two-and-a-half-fold of the 

general non-asbestos exposed workers in relation 

to mesothelioma.

And then, finally, we said, well, 

perhaps these engineer titles aren't being 
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included appropriately because they had bystander 

exposure rather than direct exposure, which may 

or may not be true, because chemical engineers 

could easily have asbestos exposure if they're 

involved with pilot projects that involve heat. 

This is true for the other engineers as well, 

more so, I think, chemical than mechanical or 

industrial healthy and safety engineers.

But, in any case, we made the point 

that -- well, we actually raised the question 

whether bystander exposure was actually 

recognized by the compensation system. And the 

response from Paragon was that SEM does -- I'm 

sorry. For a moment, I'm just look to see if I 

can get -- yes, there response was, and I'm 

quoting here, "SEM does recognize bystander 

exposure when documentation such as industrial 

hygiene sampling demonstrates that potential 

asbestos exposure exists." End of quote.

Which is interesting because it makes 

you wonder how much area sampling there is or 

bystander exposure there is for asbestos, even 
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asbestos going back in time, that would provide 

support for including a link in the SEM. But I 

think that discussion is something that needs to 

be carried forward, the issue of bystander 

exposure.

But, to get to the end of this, our 

particular question or point was we thought that 

there was sufficient evidence that chemical 

engineers, mechanical engineers, and industrial 

health and safety engineers, enough evidence that 

they had asbestos exposure as a presumption, that 

they should be included in Exhibit 15-4, the 

Asbestos Presumption List in the Procedure 

Manual.

And quite frankly, we don't yet have a 

clear answer to that. And so, I think we need to 

re-ask that question, or at least ask the 

Department to complete the process and to give a 

clear-cut answer on those issues. Because, even 

in the protracted Paragon response to our 

question, they note considerations, but there's 

no conclusion specifically on the question that 
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we're raising.

So, I don't know, Mr. Vance, how you 

want us to turn that back to you. I don't think 

it needs a recommendation per se, but please tell 

us what you see --

MR. VANCE: Well, when you emailed me 

about it today, I did talk to our Paragon 

Contract Manager. And he and I had a 

conversation about it.

You know, this is not a determination 

that Paragon is going to make. This is Paragon 

is being asked to look at information and provide 

some sort of rationale and justification for 

adding those to the program's procedural 

specifications for the presumption.

And I think from my conversation, and 

reviewing what Paragon had provided us in the 

past, that, you know, I don't think that we had a 

clear, "Yes, add them." I think that the concern 

that I think exists is that the Department of 

Labor would probably be looking for a more robust 

understanding as to the rationale for suggesting 
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that these labor categories were such that you 

could generalize that anyone working in that 

specific labor categorization would have had 

asbestos exposure across the entire weapons 

complex.

And so, I think what we were looking 

for is maybe some input, some further input, as 

to the rationalization or justification for 

suggesting that that would be the case for these 

labor categories.

And then we could certainly take 

another look at answering the question, "Does the 

Department of Labor feel that that justification 

is sufficient or not?" And then even being given 

any kind of suggestions as to what other 

informational sources might exist that would 

allow us to say, "Yes, it makes perfect sense to 

add those as presumptive labor categories for 

asbestos exposure."

The other point that I want to make is 

that, even without the presumption, you know, in 

the situation where you have one of these 
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individuals working in one of those labor 

categories, there is still going to be the effort 

to try to profile their exposure to asbestos 

that's relevant to their case, and that might 

bear out in the industrial hygiene records or the 

profile and characterization that's done by the 

Department normally.

So, anyway, I wanted to make that 

point. So, that would be my suggestion, is that 

perhaps the Board take a look at Paragon's 

response and maybe provide a little bit more 

input as to what the generalization should be, 

and on what rationale the Board's suggesting that 

that applies.

CHAIR MARKOWITZ: Okay. Well, we can 

discuss that.

But Paragon I think developed and 

maintains the SEM, if I'm not mistaken. Does 

that mean that their expertise really focuses on 

exposure, industrial hygiene, and the linkage 

between job titles and toxins? Or does their 

expertise also extend towards epidemiology and 
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the health side of the program?

MR. VANCE: Paragon's primary 

functionality is the inventorying of chemicals 

and materials that were utilized in the 

production of atomic weapons at all these sites, 

and then creating the relational connections 

between those toxins and the individuals that 

worked at those sites.

Now they also have capacities and 

specialists there that assist with the industrial 

hygiene aspect and, also, the epidemiological 

aspect of health effect research. So, I mean, 

they do have a robust capability of assisting in 

all of these areas, but their primary 

functionality is, of course, the inventorying of 

toxins that were worked on at these sites, so 

that we can connect employees to exposures to 

those materials.

CHAIR MARKOWITZ: Okay. Thank you.

Any comments from Board members on 

this issue?

(No response.)
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CHAIR MARKOWITZ: Okay. So, we'll get 

back to you. Let's move on. Item No. 6, yes, 

Item No. 6 -- I'm just making sure I don't skip 

something here. Okay.

This had to do with Quality Assurance 

Plan and information, which this contents was 

used, and otherwise, the material contained in 

one of the documents provided to us that we can't 

discuss in public. So, we're going to punt on 

that issue until we can discuss it in probably a 

working group.

Item 7, we requested the program's 

written guidelines, instructions, or how it is 

that claims examiners or industrial hygienists 

can request and perform telephone interviews on 

the occupational health of claimants.

And to remind the Board, this is 

something, this was a recommendation that the 

Board made early on several years ago, which was 

adopted by the program, although we understand 

there are actually very few interviews that are 

conducted. And by "interviews," I don't mean the 
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occupational health interview that's routinely 

conducted as part of the claims development 

process. We were referring to, actually, 

industrial hygienists getting more detailed 

information about exposure from individual 

claimants, so that they could make decisions 

about frequency, intensity, and nature of the 

claimants' exposures.

So, what was provided to us is -- I 

think we're looking at it here -- is an excerpt 

from the Procedure Manual. And I'm not going to 

read this. I'm going to summarize it to say that 

the industrial hygienist works for the contractor 

who can request that an interview be done. That 

request goes to the program office, and the 

federal industrial hygienist weighs that request.

And then it's decided -- if the 

federal IH decides that an interview would be 

helpful, they coordinate it with the claims 

examiner. And it's the claims examiner who 

actually, I think together with the federal IH, 

who conducts this interview. The claims examiner 
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summarizes it in writing and sends it off to the 

contract industrial hygienist, who, then, uses it 

in their evaluation.

I think I got that right, Mr. Vance, 

but correct me now if I got that wrong.

MR. VANCE: No, you got it. And just 

to add, I did -- I periodically ask the 

industrial hygiene team about this particular 

issue and its utility. And I think that we may 

have talked about this, Dr. Markowitz, on the 

last call.

I also want to remind folks we collect 

much more robust industrial hygiene information 

now, as a result of the updated occupational 

history questionnaire process that the Board 

recommended. So, a lot of our industrial 

hygienists and claims examiners in the Resource 

Centers feel that the amount of detailed 

information we get upfront is really mitigating 

the need to have these kind of interviews. But, 

nonetheless, these interviews still exist as an 

option when we feel it's necessary to talk to a 
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claimant about their exposure.

CHAIR MARKOWITZ: So, we're going to 

be looking at claims over the last couple of 

years. So, what would be helpful is knowing, 

roughly, what is the date that the new 

occupational health questionnaire was initiated? 

Do you remember what month, what year? Because 

we want to, if we're looking at a claim where the 

old questionnaire was administered, that's 

different from looking at a claim where the new 

version was administered.

MR. VANCE: Oh, good question. I know 

that it's been done within the last two years. 

So, this would have been -- because when I was 

looking at the cases that were submitted, I think 

the timeframe was right in that 2019-2020 

timeframe, where we made that change.

So, some of the cases that you had 

received that the Board has been reviewing had 

the prior OHQ type versus the new one. I want to 

say 2020, but I can check and I'll let Carrie 

know the exact date when that went into effect. 
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It's probably in one of our prior written

responses. So, I'll just have to find that for 

you.

CHAIR MARKOWITZ: Okay. Yes, that 

would be helpful just in terms of our review 

process. But I have a question about this 

procedure, but I want to open it to the Board 

members for comments or questions first.

(No response.)

CHAIR MARKOWITZ: So, here's my 

comment or question: it's the contractor's 

industrial hygienist who's preparing the report. 

That person in this procedure will not interview

the claimant directly, but that interview is 

conducted by the federal IH, and the written 

product of that interview is made by the claims 

examiner, which makes the information quite 

indirect.

And the question is: why can't the 

contractor IH, the one who's going to actually be 

writing up the report and making probably the 

most important decision about this, about the 
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significance of the exposure, why can't the 

contractor IH actually do the interview, you 

know, with or without the claims examiner?

MS. POND: This is Rachel.

It's contracting rules that we have 

that are in place. I believe that's the reason 

that we have the federal employee, the federal IH 

do the interview.

CHAIR MARKOWITZ: But, if the contract 

were modified or if the next time the contract 

comes around it were changed to enable this, then 

it could be done?

MS. POND: I would have to look into 

it. We can definitely -- we can talk about it, 

but I have to find out. I don't want to misspeak 

because I'm not a contract expert.

CHAIR MARKOWITZ: Yes, yes, 

understood. But you get the point?

MS. POND: I understand what you're 

saying. And we do, I mean, from what I 

understand, you know, the federal industrial 

hygienist is in constant communication with the 
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contractor's. And whatever they would want to 

relay or make sure they get the information from, 

they will, but I understand what your point is. 

And we can talk about it.

CHAIR MARKOWITZ: Yes. Okay. Again, 

any comments or questions from Board members?

(No response.)

CHAIR MARKOWITZ: Okay. Let's move on 

to the next item, towards the bottom of the page, 

Kevin, 8, which is we asked for clarification 

about the role of the Medical Director in the 

program. And the Procedure Manual mostly refers 

to the Medical Director in relation to weighing 

in on experimental medication issues or on 

transplants, and not on the issue of impairments.

And then there's some language, Kevin, 

if you scroll down, there's some language that is 

included that describes this.

So, thank you for that clarification. 

That's very helpful. Okay. Again, questions or 

comments from the Board? Just jump in here.

(No response.)
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CHAIR MARKOWITZ: Item No. 9 is 

describe the public comments. This is 

interesting because the public makes comments 

that are highly relevant to the Board's 

activities and tasks.

And so, we had a committee actually 

review the public comments going back over the 

past two or three years to see if there were 

issues that we should address.

In some instances, we didn't fully 

understand the public comment. And so, we 

thought, well, if we don't understand, can we 

communicate with the public commenter, so that we 

can improve that understanding?

And so, this is Mr. Chance consulted 

with the FACA rules or the relevant people who 

administer FACA rules. And the outcome is, 

essentially, that during the public comment 

period we wouldn't get into frank discussions 

back and forth with public commenters.

But if a public commenter makes a 

point that we really don't get, at the moment we 
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can ask for clarification of that point, so that 

we better understand on the spot what the public 

comments are saying.

So, I think that's helpful. That's 

better than what we've done in the past.

Any comments or questions about that?

(No response.)

CHAIR MARKOWITZ: Okay. So, then, we 

asked a particular question about a public 

comment that's come in about something called a, 

quote, SEM Library Index, end of quote.

But, in that instance, the Department 

didn't understand what the public commenter was 

talking about. So, we don't know what that 

means. But if the public commenter is listening 

and wants to write in or speak to it later, that 

would be helpful.

The last couple of issues that we had 

raised from the November meeting, one was about 

making links in the program's public reading 

room; a more direct, specific DOE cite, just to 

make it easier for the public who are looking at 
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the reading room to find their own particular 

cite.

And you may have to help me here, Mr. 

Vance, what the response was.

It sounds like the response was this 

information is already available on the public 

reading room and we just didn't work hard enough 

to find it. Is that right?

MR. VANCE: Well, I do know that we 

maintain information about our statistics, 

information about the facility coverage. We also 

have a separate link that will take individuals 

to the Department of Labor or the Department of 

Energy's covered facility website that lists a 

database research tool that will enable them to 

look for information relevant to their claim.

So, if they're looking for information 

specific to the statistics about coverage or 

benefits that have been paid out to a facilityspecific location, we maintain that on our 

website. And we also have the link to the 

covered facility descriptions that the Department 
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of Energy maintains on its website.

So, yes, that information is already 

available.

CHAIR MARKOWITZ: Okay.

MS. POND: Yes. This is Rachel.

We are constantly trying to improve 

our website to make it as claimant-friendly as 

possible.

But I think where you would look for a 

statistic, there's a specific site for that, and 

then it was a little hard for us to figure out 

where else to put it, I think.

CHAIR MARKOWITZ: Yes, well, we can 

take another look, as outsiders, to see does it 

make sense to us. So, we'll do that.

The last issue is kind of historic, 

actually, relates to the history of the program. 

It was at one point where the National Cancer 

Institute assisted the program in interpreting 

certain cancer types, and the extent to which 

they were included in certain either ICD codes or 

in certain generic categories of cancer.
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And subsequently, that was reversed, I 

think, by the program. I think that's the right 

word. So, the NCI assistance wasn't maintained.

And I think this may have developed, 

actually, from a public comment. And so, the 

question was -- I think it's nothing that seems 

to be in -- no change envisioned, but I take it 

that the final sort of permanent resolution is 

that the Department, the program, really doesn't 

at all or cannot rely on the NCI's interpretation 

of cancer types. Is that right?

MR. VANCE: Yes. So, what happened 

-- you know, folks can certainly go back and look 

at our prior response. But, you know, there was 

a legal issue that came up about our reliance on 

NCI to determine sort of definition of particular 

anatomical locations as being specified cancer 

for the Special Exposure Class application.

And what, ultimately, it came down to 

was that those types of questions are actually 

more suited to a case-by-case analysis by a 

qualified medical specialist. So, in other 
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words, a physician looking at a pathology report 

is now asked, based on the pathology, do you feel 

that this cancer qualifies as one of the 22 

specified cancers?

So now, we rely more heavily on 

physician interpretation of the anatomical 

designation of cancers to determine whether or 

not a cancer located in a particular organ system 

qualifies for the SEC. So, it's now much more of 

a case-specific kind of question.

CHAIR MARKOWITZ: Okay. Thank you.

Any comments or questions about that 

from Board members?

(No response.)

CHAIR MARKOWITZ: Okay. It's 2:30. 

We're going to take our break now for 15 minutes, 

until 2:45, and then we're going to start 

discussion claims.

So, to Board Members, I've done a lot 

of talking. So, I'm going to start off with 

other people talking about specific claims. 

We're not going to show anything about the 
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claims. We're not going to ask Kevin because of 

PII, personal information.

But if you, on your own computer, want 

to bring up a claim or need to bring up a claim 

you are going to discuss, that can take a couple 

of minutes. So, feel free to do that during the 

break. Thank you.

(Whereupon, the above-entitled matter 

went off the record at 2:33 p.m. and resumed at 

2:48 p.m.)

CHAIR MARKOWITZ: Well, we can get 

started. We'll start with a case that Mr. Key is 

not on. By the way, any volunteers? Anybody

have a case that they want to start with?

MEMBER KEY: Present.

CHAIR MARKOWITZ: Okay. Great. Mr. 

Key is here. Okay. So, we can just go down the 

list that I sent around.

The two reviewers on this case -- it's 

a cancer case -- are Dr. Bowman and Ms. Pope. 

And last four digits are 6199. It's a leukemia 

case. If one of you wants to start talking about 
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that case?

(No response.)

CHAIR MARKOWITZ: Are you all there?

MEMBER BOWMAN: This is Aaron Bowman.

MEMBER POPE: I'm here, too.

CHAIR MARKOWITZ: Okay. Okay. Yes, 

yes, yes. Do you want to talk about that case, 

6199?

MEMBER POPE: Are you talking to me, 

Dr. Markowitz?

CHAIR MARKOWITZ: I'm sorry. Either 

one of you, if you want to just start it off?

MEMBER POPE: Dr. Bowman, do you want 

to go?

MEMBER BOWMAN: Yes, I can go. This 

was a case of cancer, specifically, leukemia, 

that was denied. It was denied both under a Part 

B as well as Part E. The basis of the denial 

was, in part, based on an inability to verify 

employment.

But I focused mostly on the Part E 

elements. So, some parts of employment were not 
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able to be verified, but some were, and these 

were for jobs of truck driver and pipefitter. 

There was discussion of insufficient IH evidence 

for exposure to benzene, which I think was the 

basis of the case.

So, for the jobs that were verified, 

the SEM search did not give a link to any 

exposures relevant to any of the jobs there, 

including those that weren't able to be verified, 

which was apprentice electrician and pipefitter.

My general review of the case is it 

seemed to me that the case was done adequately. I 

thought the evidence of the case, which had both 

a C&C referral as well as IH referral, and 

utilized the SEM -- when employment was not able 

to be verified, they went ahead and did Social 

Security records of employment. And from there, 

they were not able to make certain matches that 

were part of the claim.

And so, based on the totality of 

evidence, I thought the final decision was 

justified.
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CHAIR MARKOWITZ: Ms. Pope, do you 

have any comments?

MEMBER POPE: Yes, I do. After 

reviewing this case, I think that they were able 

to identify some years of employment. DOE was 

able to identify some years of employment.

But, in my opinion, in some of these 

cases, claimants were not adequately represented. 

I believe this claimant needed an advocate or an 

attorney to help him navigate that. And we all 

know that it takes energy to be able to -- you 

have to defend your claim and your case. And I 

just felt that he needed some help in helping to 

build his claim.

He had claimed that he had worked in a 

reactor who supplied air and his dosimeter was 

pegged out. And I can remember working on a site 

where that was so true. A lot of times, we got 

information that no data available.

So, I just felt that he just needed --

and also, in 2015, his memory was affected by a 

stroke. So, just trying to recant and recount 
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all the places that you've worked and the 

activities that you did, I think he just had some 

problems in helping trying to defend his claim 

and figure out what exactly exposure he was 

exposed to.

CHAIR MARKOWITZ: Actually -- this is 

Steven Markowitz -- I took a look at this claim. 

A very interesting claim. And what I didn't 

understand about it was he reported multiple job 

titles at Savannah River -- I think mostly 

Savannah River -- and partly as a construction 

worker. So, he had truck driver. He was a 

pipefitter and he was an electrician.

The claims examiner asked for the 

industrial hygienist's opinion and filled out an 

exposure worksheet. And in that worksheet -- I 

think the claims examiner fills out the exposure 

worksheet -- it does cite the pipefitter and the 

electrician work, but, then, only asked the 

industrial hygienist about a truck driver. And a 

truck driver is unlikely to have significant 

benzene exposure, just on the face of it. So, 
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that's true for, say, an electrician or maybe a 

pipefitter.

But, in any event, as I think Dr. 

Bowman said, what was pursued was the truck 

driver exposure, and that's what the claims 

examiner asked the IH to look for, look at, and 

the IH didn't find much exposure to anything that 

caused leukemia. And that was transmitted to the 

CMC, who said, obviously, no causation because no 

exposure.

Yet, on the occupational health 

questionnaire, the claimant writes that he worked 

as an electrician and a pipefitter, in addition 

to a truck driver. And the EE-3, which is the 

employment history form submitted by the 

claimant, also cites these multiple different job 

titles. And it was quite a few years, actually, 

as a pipefitter.

So, what I didn't understand, and 

maybe, Dr. Bowman, what you noticed that I didn't 

notice, which was if the employment wasn't 

verified, if only the truck driver employment was 
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verified, then that's the only thing they could 

pursue.

But I thought, frankly, seeing it, 

seeing the claimant report this exposure -- or 

excuse me -- these job titles multiple times and 

having it acknowledged in the exposure worksheet, 

but, nonetheless, not pursued, seems unfortunate.

Essentially, to say that construction 

workers usually work for outside contractors, and 

verifying their employment can be challenging. I 

know that the program has a special system to do 

that, but they weren't employed in the same way 

as many DOE contractors, you know, the major 

contractors, who had kept, I think, probably 

better track of who was on the payroll and what 

they did, and what the time period was.

Any other comments on this case?

MEMBER GOLDMAN: I don't have a 

comment on this case, but at some point I want to 

just discuss something that I noticed about this 

approach to carcinogens and causation using the, 

quote, POC, or probability of causation. So, I 
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don't know if you want to do it on this, but it 

came up in two situations I was looking at that I 

think were problematic, or just to clarify. So, 

I don't know if you want me to bring it up here 

or in this specific situation, but it relates to 

cancer.

CHAIR MARKOWITZ: Well, so let me just 

say that the issue of Part B, radiation exposure 

and carcinogenesis is not a topic that this Board 

addresses. There's a different advisory board, 

the President's Radiation Advisory Board, which 

addresses those issues. So, we don't really deal 

with them.

That said, feel free to comment.

MEMBER GOLDMAN: It does because we're 

commenting on causation. And so, there was a 

different opinion, a totally different approach 

to it if it was irradiation-related cancer versus 

one that was chemical, and how that played out. 

So, I just wanted to contrast that for how we're 

dealing with cancer.

But I don't know if this is the 
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appropriate time, and I'll see if I can recreate 

what I understood happened. I actually spent a 

lot of time trying to sort this through, but I 

don't know if you want me to do it here or 

another place.

MR. VANCE: Okay. Dr. Markowitz, 

would you mind if I step in here and just clarify 

really quickly, and maybe it will provide some 

context?

CHAIR MARKOWITZ: Sure. Go ahead.

MR. VANCE: Okay. so, what I'm 

hearing is there's some questions about maybe how 

the probability of causation for radiological 

exposure flows from the Part B side into a Part E 

claim, right?

So, what you have to remember is there 

are specific rules that are in place for how we 

evaluate radiation under Part B. Those rules 

specify that the probability of causation for 

non-Special Exposure Cohort class cases must be 

50 percent or greater.

The probability of causation is really 
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looking at radiological exposure. Okay? So, 

keep that in mind. When you switch over to Part 

E, what you're looking at is the effect, the 

toxicological effect, of toxic substances. And 

under the definition under Part E, that's any 

material with radiological, chemical, or 

biological components that can cause disease.

So, when we look at a Part E case, 

we're going to look at all three of those 

components. We're going to say, all right, what 

is the effect of radiation on the development of 

a cancer or other types of illnesses? If it's a 

cancer, we're going to use that probability of 

causation model and say, if it's 50 percent or 

greater, we know that there is a work 

relationship that exists. Okay?

If it is not established to be 

radiologically independently-induced cancer or 

condition, then we'll switch over and look at the 

chemical and biological aspect of it.

So, you always have to remember we're 

looking at three different types of exposure 
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under Part E. We're looking at radiation, 

chemical, and biological.

So, if the probability of causation is 

less than 50 percent on the B side, that means on 

E, we're saying that the radiation is not 

contributing or causing or aggravating that 

illness, at which point we would then look at 

chemical, the chemical component of that disease. 

Is there some chemical that could influence the 

development of that disease? Or biological 

exposure. So, you just have to understand the 

interaction between those three.

MEMBER GOLDMAN: Right, but what I'm 

having an issue with, then -- George FriedmanJimenez made comments on this -- is, actually, 

the phrasing of probability of causation. Let me 

try to frame this.

When we talk about something probable, 

more probable than not or greater than 50 

percent, if you're looking at it like the case I 

did with TCE, it's the medical examiner or some 

of us just saying it seems like it's more 
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probable than not that this exposure had some 

significant contribution to the development or 

exacerbation of the cancer. So, it's a sort of 

general sense from looking at the literature on 

it.

Now, when I went -- and I'm just going 

to go in detail here -- into the radiation one, 

which was denied, by the way, where somebody had 

radiation exposure, but the issue was -- and I 

guess I can't bring this up. It's hard for me.

What happened here is that there was a 

calculation -- I guess I can't bring this up --

there was a calculation done of this POC, looking 

at the radiation badge, and then doing a 

calculation due to a logarithmic or logistical, 

or some kind of statistical calculation that said 

that there was only a .62 percent probability of 

causation due to the radiation way of looking at 

it, based directly on the amount of exposure that 

was calculated doing this radiation POC process.

So, that person had their claim denied 

because the probability of an exposure, which was 
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not the probability of an exposure, but of a --

it was .62 percent. Even though the person had 

radiation exposure, that was denied.

And another person who had 

trichloroethylene exposure, where it wasn't 

specifically measured -- it was just said the 

person had it for a year or something like that, 

and it's on the SEM.

And so, looking at it as an examiner, 

and looking at the general gestalt of it, could 

you say it's more likely than not that this 

exposure, where we don't have some specific 

logical statistical way of doing this, it's more 

likely than not, because this person had a year 

of exposure with some latency, it's more likely 

than not that this has contributed to the person 

getting cancer?

And so, that's this judgment call that 

many of us in occupational health are very 

familiar with. You look at the data and that's 

your opinion that you come to.

And so, I looked at these two cases 
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where somebody had definite radiation exposure, 

but that was denied because it went through this 

statistical process to come up with too small an 

exposure to render it probability of causation. 

And yet, for trichloroethylene, we didn't do such 

a thing, and it was more of a judgment call 

because the person had a year of exposure, or 

whatever.

So, I'm just trying to draw the 

contrast here. Because, in the end, the claim, 

whatever part you're on, comes down to: is it 

more likely than not that this exposure, whether 

it's radiation or chemical, was a significant 

contributing or exacerbating factor to the 

development of the cancer?

So, I'll just stop there. That was 

what I thought was very confusing.

MR. CHANCE: Yes, if I may, Dr. 

Goldman, going kind of on what John was saying, 

it is that the POC that you're talking about, 

that's the radiological part that's developed by 

NIOSH. To question that, that's not within the 
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purview of the Board.

So, if you're talking about the toxic 

part, which is Part E, that's what we're more 

concerned about. If someone was denied because 

of their POC under Part B, we don't have a dog in 

that fight.

MS. POND: But I will say, just to add 

to that, you know, the law is the way it's

written. And that's why there's such a 

difference. Because, under Part B, every case 

for cancer, unless it's an SEC, has to go to 

NIOSH, and they're the ones that make that 

determination under the law.

MR. CHANCE: Right.

MS. POND: They write a report. We 

review it. We follow the rules for whether 

-- you know, they'll come back and give us that 

assessment.

For, under Part E, there's such a huge 

difference because the standard is a lot 

different. It's at least as likely as not a 

significant factor and causing, contributing to, 
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or aggravating. So, the standard is a lot more 

-- it is more subjective and it is more related 

to what the doctor is going to tell us about it, 

because that's where the aggravation/contribution 

comes in. That's where it's not going to be as, 

like you said, like a very specific percentage 

because that's not the way the law was written.

And that's the big difference in why a 

lot of people can be confused by it because the 

law is written in such a manner.

MR. VANCE: Yes, so you're always 

going to get math -- you're going to get a 

mathematical calculation for the radiological 

aspect of it for a cancer, and that will be 

applied to the B or E case. If that mathematical 

outcome is less than the 50 percent threshold for 

probability of causation, you, then, convert over 

to look at the chemical aspect, which has no 

math. What that has is discretion of scientific 

experts and physicians looking at the totality of 

the evidence and saying, in their view or in 

their interpretation of the evidence, this is my 
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answer; I think it's a work-related problem or 

not.

So, you have to understand that 

dichotomy of radiation and probability of 

causation for the radiological side, and then, 

for chemical and biological, it opens up to a 

much more subjective analysis by subject matter 

experts.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez. I'd like make a few 

comments on this.

A decision to separate the radiation 

causation and the chemical causation actually is 

based on an assumption, which may or may not be 

true. And I don't think we have the science yet 

to know this. The assumption is that there's no 

interaction between the radiation effect and the 

chemical effect. In other words, they're purely 

additive. If they're not purely additive, then 

we're losing something by considering them 

individually and not considering them together.

So, the fact that we have two boards, 
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and we're mandated to consider them individually, 

will work if there's no interaction between the 

radiation carcinogenesis and the chemical 

carcinogenesis.

So, we don't have a lot of good 

science on this. It hasn't been well-studied. 

For example, benzene and radiation causing 

leukemia, benzene and trichloroethylene. So, 

it's really a gray area in the science.

But I have to say, I have done some 

radiation epidemiology and I've looked at the 

probability of causation, and it's been very 

controversial. In fact, it's been, actually, 

decided that it should be considered, rather than 

probability of causation, the assigned share, 

because there was so much controversy about 

whether you really can calculate a probability of 

causation from epidemiologic data. And it seems 

that you can't.

But they fudged it, and instead of 

using the calculated probability of causation, 

which is based on the attributable risk in a 
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epidemiologic study, they used an upper 99 

percent confidence interval. In other words, 

it's a much more inclusive definition.

And the case I reviewed was something 

like 3 percent probability of causation was the 

point estimate. And the upper 99 percent 

confidence interval was 21.4 percent. So, this 

includes a lot more cases, and it's sort of a 

fudge factor that they use. But, in reality, the 

science is really not well enough developed to 

say that you're actually calculating a 

probability of causation.

So, there is some judgment involved in 

the radiation calculation, as well as in the 

chemical calculation. And it's difficult for us, 

because we know the radiation calculation did not 

include any consideration of benzene exposure or 

trichloroethylene, or other chemical exposure. 

And we're not including any accounting of the 

radiation exposure.

And we don't know whether there's an 

interaction or not; in other words, more than an 
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additive interaction. So, we're in a bit of a 

gray area here.

But I think 0.6 percent probability of 

causation, which, generally, when they say 

probability of causation, they're reporting the 

upper 99 percent confidence interval; that's low 

enough that it's really far away from 50 percent. 

And I don't think it's an issue. If it was 30, 

40, 50 percent, 49 percent, then there would be 

some grounds for questioning it.

But it's really not a well-developed 

science underlying it. I just wanted to make 

that comment.

CHAIR MARKOWITZ: Okay. Thank you. 

Thank you.

MEMBER GOLDMAN: So, the same case, 

and just to mention something else, where this 

person also had TCE exposure; so, in addition to 

the radiation. That got dismissed.

But the TCE exposure that I -- by the 

way, I want to say I thought that the claims 

reports I read, overall, were really well put 
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together and referred to IH and organized. So, I 

just wanted to make that positive feedback on 

that.

But this person was referred to the 

IH, who said he had mild TCE exposure for one and 

a half years. And then the CME, basically, threw 

that out because he read an old article from 2007 

that said -- one article -- you had to have longterm exposure, more years than that. And said he 

didn't have enough years of exposure.

And this gets back to those criteria 

or however much you need. And another case I had 

had less exposure. But, anyway, so this person 

had one and a half years of exposure and, quote, 

a mild level, but it's a carcinogen; there is no 

safe level. And actually, the examiner didn't 

review any of the more recent studies that I 

looked up in IARC. And you know, I can't spend 

too much time on this.

But the basic thing is, because of his 

opinion, despite the IH coming forth and saying 

there was mild exposure over one and a half 
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years, this was thrown out. So, I felt a little 

badly about that because, I mean, the examiner 

gave his justification, but it wasn't really a 

thorough look at the literature to throw it out 

because the patient only had one and a half 

years.

And for some of the other carcinogens, 

I looked at the presumptions. It didn't 

necessarily mean -- for some of the presumptions, 

I just looked up some other carcinogens, and it 

was one year of exposure. So, it seems like 

there wasn't consistency. Like if for other 

carcinogens there were presumptions that one year 

of exposure with a sufficient latency was enough, 

here's a situation where the person had one and a 

half years, and still, it just got thrown out.

So, I don't know if this is 

demonstrating a need for some kind of either 

presumption or consistency about how much time 

that you need for an exposure to have it, for a 

carcinogen, to consider it significant.

CHAIR MARKOWITZ: No, that's -- this 
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is Steven. Yes, that's a tough question. But 

whatever it is, consistency would contribute to 

fair treatment.

It's a really interesting discussion. 

I think we should move on, if it's all right, to 

more claims.

And let me just cite the next two 

claims that we'll go over, just to facilitate 

things.

I'm, actually, sort of going down the 

list. The next one I have here for Catlin and 

Whitten as the reviewers. It's a chronic lung 

disease case. The last four digits are 0106. It 

was a COPD or asthma case.

And then, after that, we'll go back to 

cancer, Friedman-Jimenez and Tebay, looking at 

0219.

MEMBER FRIEDMAN-JIMENEZ: Question, 

Steven. Will we have access to our reports that 

we sent in? Because I didn't screenshot it, and 

I don't really remember every single thing I 

wrote.
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CHAIR MARKOWITZ: Yes. Sure, sure.

Dianne, if you could send George the 

spreadsheet? Although the spreadsheet that you 

sent to me doesn't have any reviews by George. 

So, I'm a little confused about that. But if you 

could send it to him --

MEMBER FRIEDMAN-JIMENEZ: I just 

posted them today.

CHAIR MARKOWITZ: Oh, okay.

MEMBER FRIEDMAN-JIMENEZ: But can we 

get access to what we've posted?

MEMBER WHITTEN: Yes, let me take a 

look and I'll send you -- let me look.

CHAIR MARKOWITZ: So maybe while Ms. 

Whitten is doing that, Mr. Catlin, do you have 

0106, chronic lung disease?

MEMBER CATLIN: I do.

CHAIR MARKOWITZ: Yes, you want to --

(Simultaneous speaking.)

MEMBER CATLIN: Sure. Sure. So, this 

is a claim filed by a worker who was listed as a 

laborer working for a contractor at both Hanford 
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for about a year plus -- and also at the Pacific 

Northwest National Lab for a shorter period of 

time. So this is in a -- this is sort of a 

decade-long exposure. The claim was for -- was 

denied, but the claim was initially for COPD, 

asthma, and bronchitis as a diagnosed illnesses. 

And I guess working through it there 

-- the employment history was -- what was 

provided by the claimant wasn't very detailed and 

in some cases simply that they didn't remember. 

And the Department put together some of the 

employment history, but I was surprised that --

and maybe I shouldn't be surprised by the lack of 

records from the contractor. This was only from 

the last probably 15 years, so this wasn't 

something that happened decades ago. 

But the Department put together 

records in some part by using radiation badge 

records that they had. So I thought it was 

interesting how they were able to piece that 

together. But it seemed like the claimant 

probably could have found better information with 
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some assistance to document their history.

The claimant also didn't provide --

didn't seem to provide very strong medical 

records and medical evidence. And I'm not going 

to go into that in great detail since I'm not a 

physician. I did have a question. There was no 

diagnosis listed for asthma, but it wasn't clear 

to me that the physicians actually did a proper 

analysis. I'll leave that up to the medical 

community.

But I was interested in the -- in sort 

of the SEM and the exposure history, which that 

we think it worked pretty well once they 

determined her time -- the claimant's time in 

their work. And their history as a laborer was 

primarily -- I think you'd probably imagine it 

was silica exposure, potential welding fumes, 

asbestos, wood dust and things like that. Her 

history seemed to focus in on being around a lot 

of work around -- silica dust work for almost a 

year and without use of respirators of any sort, 

it seems.
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And then she mentioned -- the claimant 

mentioned some -- that a lot of their time was in 

the rat lab and there was a concern about 

exposure to rat feces and other rat contaminants.

That sort of disappeared from the rest of the 

record after her history and didn't seem to be 

pursued. 

There was a referral to industrial 

hygiene to review after the claims examiner got 

to review the work from the SEM, but -- and this 

sort of goes to what Steven has mentioned 

earlier. I mean, the language in the industrial 

-- there's no evidence the hygienist talked to 

the claimant, or that a hygienist talked to them. 

And the -- what was repeated constantly was that

there's no available evidence of personal area 

industrial hygiene monitoring data to support 

that in any position at these facilities and the 

dates claimed that any of these exposures to any 

of the agents would have exceeded the existing 

regulatory standards.

And if I think of -- if I just focus 
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on silica, because that's where I think I would 

have focused on the silica dust exposure based on 

her evidence, this was at a point when the silica 

dust standard for OSHA was under lots of review 

and it eventually did change. And so there's --

so depending on what they mean by existing 

regulatory standards, whether that means OSHA 

PELs or something else, it's just not clear. 

And there's no other information 

provided by the industrial hygiene report as to 

what this is based on. It's just simply a review 

that says there's no air sampling data and 

therefore the exposure must not have really 

occurred, which didn't -- which in my experience 

seems -- I'd like to have seen some better 

justification that just kind of a sentence that 

was repeated throughout their industrial hygiene 

report multiple times. 

So that's my sense of this. I'm not 

sure the case is all that strong and I might not 

have decided it any differently based on the 

exposure, but there seemed to be -- I'd rather 
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see more clarity and transparency about the 

industrial hygiene interpretation.

CHAIR MARKOWITZ: Okay. Thanks.

Ms. Whitten?

(Pause.)

MEMBER WHITTEN: Sorry. I was trying 

to send those files. I think I came to the 

conclusion that claimant was unresponsive when 

they were requesting more information about their 

exposure and their job classification duties. So 

I had to agree with what she said. I didn't 

really have anything else to add.

CHAIR MARKOWITZ: Okay. This is 

Steven. I actually also looked at this case and 

this was a person that worked for a laborer for a 

short -- relatively short period of time, a 

little over a year, 2009-2011. And the 

conclusion for the industrial hygienist was, as 

reported, that didn't exceed regulatory 

standards. 

I thought what was interesting was 

actually this person had two CMC evaluations: one 
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for asthma and the CMC concluded that person 

didn't have any evidence of asthma. And then a 

second CMC evaluation some time later for -- I 

think for COPD, which was diagnosed by the 

personal physician, but frankly there wasn't much 

evidence of it in any case. So there was a 

negative causation conclusion, which I agreed 

with. 

Okay. So let's carry on here. I was 

hoping to go to a cancer case, Dr. FriedmanJimenez, 0219. Also Mr. Tebay. 

But, George, did you get your report 

back from Diane?

MEMBER FRIEDMAN-JIMENEZ: No, I 

didn't, but I do have enough notes that I think I 

can make the points that I want to make.

CHAIR MARKOWITZ: Okay. So, whichever 

of you wants to start. I don't know. It's up to 

you guys.

MEMBER FRIEDMAN-JIMENEZ: Okay. I can 

start. Let me see. Get my video going here.

This is a man who worked as a field 
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engineer and project field engineer according to 

the IH who developed myelocytic leukemia. And 

the exposures of interest, of concern were 

benzene and 1,3-butadiene, both of which have 

been pretty definitely implicated in leukemia 

carcinogenesis. 

There were a number of problems in 

this case that I looked at. First of all, the 

job titles that were listed initially: field 

engineer and project field engineer, were only 

some of the jobs that he did. And in different 

parts of the record, although not in the IH 

report, it mentioned general manager or executive 

having jurisdiction of electrical, EHJ, 

surveillance maintenance utility manager, SMU, 

project or program manager and technical 

operations manager. And then he worked in 

deactivation and decommissioning, which involves 

a variety of different exposures. And in the SEM 

the deactivation and decommissioning actually 

does list both benzene and 1,3-butadiene as 

potential exposures in the Hanford site where he 
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was working.

In his letter -- he wrote a letter to 

the program. He described that he spent much of 

his career doing deactivation and 

decommissioning. About half his time was in the 

field. Although he was listed as an engineer he 

did a lot of field work doing remedial actions 

and working near or in the environmental 

management/waste management facility where there 

were a broad range of toxic waste materials being 

disposed. 

So the question that the claims 

examiner posed to the IH actually did mention 

most of the above employment information, but the 

IH report said that there is, quote, no evidence 

of significant exposure to benzene, formaldehyde, 

or 1,3-butadiene. However, they didn't seem to 

have considered four out of the six job titles 

and ignored the four that would seem to me to 

have more potential for hands-on exposure to

those -- at least two of those three toxic 

substances and which the SEM actually identified 
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as having exposure to benzene and 1,3-butadiene.

So other than the summary statement 

that the IH gave I didn't find any discussion of 

why the SEM mention of 1,3-butadiene and benzene 

would not be relevant to the claimant. It just 

seemed to be unrecognized by the IH. I didn't 

see any discussion of estimates of likely air 

levels of those substances, both of which are 

very volatile, that would be encountered in 

deactivation and decommissioning work, or 

overseeing deactivation and decommissioning work. 

I didn't see any mention of the environmental 

management/waste management facility.

So given these considerations I would 

have expected that the IH would have 

systematically looked at the potential for 

exposure to at least benzene and 1,3-butadiene. 

Formaldehyde was not mentioned in the SEM for 

those -- for the D&D work.

He mentioned that -- the IH mentioned 

that there were odors associated with benzene and 

butadiene, but it didn't account for -- often 
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there's masking of odors when you have a highly 

complex mixture of vapors and you can't pick out 

any specific odor. So to me these oversights in 

the IH report really reduced the credibility of 

the exposure assessment very substantially. 

So given that I think the IH report 

was incomplete and under-discussed, I mean I 

don't know how much exposure there was. I just 

-- it was puzzling why the IH didn't discuss it. 

Saying that there's no evidence of significant 

exposure, that's a very vague phrase. I mean, 

what do you mean by no evidence and what do you 

mean by significant? 

We recognize that the existing 

evidence is incomplete. Sometimes it's selfcontradictory. He said in one place that he had 

had urine measurement for radiation and in 

another place that he had not had urine 

measurement for radiation. He did contradict --

there were contradictory points there. But that 

evidence is not strongly against exposure. And 

given that the SEM mentioned both benzene and 
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1,3-butadiene it seems to me that the IH report 

is obligated to show evidence that there was not 

significant exposure. Why should we ignore the 

SEM mentions rather than just dismissing that 

there's no evidence? 

So I think that use of that term, 

there is no evidence of significant exposure, is 

really problematic.

 It's often an over-simplification. 

And it may be true. I don't know. I haven't 

really -- I don't have the level of knowledge 

that the IH on site has, but it was really an 

inadequate discussion.

And even if the SEM hadn't mentioned 

these two substances, I think that the exposure 

assessment should assess the existing evidence 

for exposure to the two main substances that can 

cause leukemia. Did the person have them or not 

in the jobs that they had? Presumably the IH has 

firsthand knowledge of the exposure situations in 

these facilities.

Significant also is a problematic 
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word. It's too vague. I mean here's a guy that 

worked 26 years in situations that may have had 

exposure, low-level exposure, or even maybe 

higher-level to benzene and 1,3-butadiene. But 

what does significant mean? The OSHA PELs are 

not necessarily protective for carcinogens in 

particular, so does significant mean higher than 

exceeding the OSHA PEL or other regulatory 

standards? That wouldn't be an adequate exposure 

assessment especially given that there were so 

many years of exposure. And lack of violation of 

the regulatory standards does not imply that 

there's not enough exposure to cause disease, to 

cause cancer. So I think the IH report was a 

real weak link in this process.

And then the CMC report is based 

largely on the IH exposure assessment. And so in 

my view the CMC was not critical of the IH report 

and was -- could have been misled by the 

dismissal of exposure. So that's why I think 

that this case is worth reviewing and I think 

that these pat phrases -- we need to look at them 
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and define some of the terminology a little bit 

more clearly.

So there are three reasons why I think 

the report should be reviewed. The inadequacy of 

the IH report, which I've seen similar inadequacy 

other cases. 

The strong impact of the IH report on 

the CMC report. If the CMC is not going to be 

critically evaluating the quality of the IH 

report, then we have to really be careful that 

someone evaluates the quality of the IH report. 

And the inefficiency and I think 

error-proneness of this kind of review of medical 

records. I think there were 2,077 pages here and 

it took me quite a while going through them. 

Steve Markowitz sent me an index of all the 

important documents. That helped a lot. Even 

so, I probably spent over an hour just going back 

and forth and looking for all the different 

pieces here. 

And I think you should reconsider 

having clerical staff organize these medical 
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records in a way and index them so that the 

physicians, the IH, the CMC, and the claims 

examiners can all find things much more quickly. 

And it would save a lot of people a lot of time 

if that were done, I think.

So that's what I had to say about this 

case and I'd be interested to hear what other 

people think.

CHAIR MARKOWITZ: Okay. Thanks.

Mr. Tebay?

MEMBER TEBAY: That's a hard act to 

follow right there.

(Laughter.)

MEMBER FRIEDMAN-JIMENEZ: Sorry about 

that.

MEMBER TEBAY: I was hoping at some 

point (audio interference) because I think you 

said everything I wanted to say. But I will say 

that one thing that I noticed is in the DAR 

obviously there was no IH records located. That 

kind of set the pace for this whole claim 

adjudication. He does have multiple job 
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categories or roles and responsibilities that 

were not applied in the SEM. I think the look in 

the SEM based on job category only is obviously 

going to provide not much feedback on his -- in 

his favor. I think that crippled the claim a 

little bit. 

I looked at the CMC report, and the 

CMC report was actually done in March I believe. 

Let me look here. Somehow I'm screwed up here 

on my --

CHAIR MARKOWITZ: It was March. Yes, 

you're right. It was March.

MEMBER TEBAY: I think it was done in 

March, but if I remember right the -- and that 

was in 2018, I believe.

CHAIR MARKOWITZ: 2019.

MEMBER TEBAY: Okay. So the IH report 

was done in December of '18. And if you read the 

IH report, to kind of follow up with what Mr. 

Friedman-Jimenez said, they used the term that 

any exposure would have been incidental in nature 

occurring only in passing and not significant. 
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Again, the word significant. Yet this whole IH 

report doesn't have much basis besides him just 

-- or the IH themselves basing it on this table 

that he created on job classification of electric 

field engineer -- electrical field engineer, area 

field manager, supervisor/manager, manager, 

right? But there's really -- I don't think it 

was as detailed or done as well as it could have.

But then immediately -- if you go to 

the next document in that claim, it goes to the 

CMC report. It literally looks like the CMC has 

cut and pasted the IH report in Word and provided 

it to the claims examiner. And I pulled it up 

right now so I can look, but once again here's 

what the CMC documents that the IH report -- his 

exposures were incidental in nature occurring in 

passing and not significant. Therefore, it's as 

least likely as not that the criteria is not met 

in my opinion.

But I don't see where the CMC really 

applied or tried to focus on the medical and the 
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exposures that were present. I don't think they 

did a good job of digging into those potential 

exposures or those exposures that the SEM did 

identify and really focusing on were those or 

could those have been a causal link, right? I 

don't think they did a good job. I think that

they -- personally I think they just used the 

IH's report, cut and pasted it, and that was it. 

I definitely think that this -- now I 

also have to say on the front end as a claimant 

when you document that you were in all the 

buildings, or most of the buildings, or a lot of 

the buildings, that's not easy for the CE to also 

search the SEM, but I do think there was enough 

information on the claimant's part that the CE 

could have done a better job in the SEM search. 

I think the IH could have did a better 

job of maybe summarizing that or providing more 

of an accurate description of the exposures. And 

I also think that the CMC could have done a 

better job of focusing on the medical rather than 

just cutting and pasting the IH report into a 
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summary for himself and providing it. So I think 

this claim also has some justification for a relook at this point.

CHAIR MARKOWITZ: Okay. Thank you.

This is Steven. Also just very 

quickly, I looked at this case and I agree with 

what's been said. Just to add, the claimant sent 

in a letter and actually sent in waste sampling 

results that he had had. Uncommon for people to 

have that, but he had them, which they did -- and 

which -- in which they were measuring, but then 

-- so that's additional information. They didn't 

show very high levels, but you have to more about 

the sampling technique to understand the 

significance.

In any case, yes, I agree that the CMC 

got off the hook. Once CIH said no significant 

exposure, then it's a pretty easy CMC report to 

write. I don't have access to the (audio 

interference) at the moment. I don't know 

whether the questions for the CMC specifically 

state the industrial hygienist failed X, Y, and 
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Z; so tell us about causation, or whether the CMC 

is directed or provided with the exposure data in 

order to make their own independent assessment. 

We should look at that with these claims. But I 

agree. Basically it was a little mystifying to 

me why a D&D -- D&D work wasn't specifically 

addressed in the industrial hygiene report.

And one last point: The industrial 

hygiene reports use -- list a standard set of 

references generally: textbooks, the SEM, and the 

like, for many of the reports. And I don't have 

access to a number of those references, so I 

don't know what they say, but they're very 

general. I would like -- personally I think the 

industrial hygienists should state what they 

looked at from the claimant so there can be 

reassurance that they looked at all the relevant 

items that they should look at.

Now I know that on the request, the IH 

referral form the claims examiner does list what 

they provide to the IH. And I just think as a 

matter of process the IH should include that 
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report so there can be reassurance that they 

actually looked at everything that was available. 

Anyway, that's all the comments I 

have.

Let's go to another case.

MEMBER TEBAY: Can I say one more 

thing?

CHAIR MARKOWITZ: Yes, sure.

MEMBER TEBAY: The CMC report does 

refer -- it does refer to the IH report. In fact 

the CMC report, first paragraph refers to that 

the IH report dated 12/20 of '18 is provided --

summarizes potential exposure. It also documents 

the exact same table that was built as far as the 

years of employment and exposure. I mean it's 

super -- I mean, it's very similar. All the 

information in the CMC is very similar to the IH 

report.

CHAIR MARKOWITZ: Okay.

MEMBER TEBAY: I just feel like that 

there was a lack of focus on the medical and the 

exposures that were identified rather than -- it 
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seems like the CMC based his decision on a lack 

of exposure -- or the CMC report, rather than the 

exposures that were identified.

MEMBER FRIEDMAN-JIMENEZ: I'd like to 

comment on that, too. In medicine as a physician 

we're always trying to validate the input data 

that we have on each patient. For example, you 

get a pulmonary function test report and you 

generally will look at the PFT tracing and the 

numbers in addition to the language of the report 

from the lab. And so I think the CMCs really 

take the IH reports for granted without 

questioning them. 

And I think sometimes you just have to 

think critically about could this be? If someone 

is doing decommissioning and disassembly and 

there are lots of chemicals around, is it really 

-- does it really make sense to say that there's 

no evidence that they have exposure to benzene or 

1,3-butadiene? I think the CMCs need to be more 

questioning and more seeking validity of the 

information that they get, and the IH report in 
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particular.

So I'm not saying it's 100 percent due 

to the IH. I think the CMC has some 

responsibility there, too, to see is that really 

a valid report?

MEMBER TEBAY: There's one sentence in 

the CMC report that I want somebody to explain to 

me at some point, but it talks about thank you 

for referring the case. All records that have 

provided have been reviewed and considered in 

developing a medical opinion. But it says no 

medical treatment, care, or diagnosis has been 

provided as a result of this chart review. Does 

that mean that the CMC himself did not receive 

that from the DOL, or does that mean he's not 

including that information in the report he's 

providing to the DOL?

MEMBER FRIEDMAN-JIMENEZ: No, what 

that means is he's not actively performing any 

work that should be interpreted as diagnostic 

treatment or the like. It's a malpractice thing.

MEMBER TEBAY: Okay. Perfect.
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MEMBER FRIEDMAN-JIMENEZ: In other 

words, he's not being the doctor here; he's just 

expressing an opinion regarding causation.

MEMBER TEBAY: Okay. Perfect.

CHAIR MARKOWITZ: Let's move on then. 

We go with Dr. Mikulski and Dr. Van Dyke. 

There's a case, there's an impairment case, 4418, 

that we should look at. And then after 4418 

let's move onto Ms. Whitten and Dr. Goldman, 

7255, which is a cancer case. 

So 4418, when you find your notes. 

And we got Dr. Van Dyke with Dr. Mikulski.

MEMBER MIKULSKI: I can start on that.

CHAIR MARKOWITZ: Oh, okay.

MEMBER MIKULSKI: Hello?

CHAIR MARKOWITZ: Yes, we're here. Go 

ahead.

MEMBER MIKULSKI: So this is a threepart case with a primary claim for emphysema and 

subsequent impairment rating and a claim for home 

health care, all three of course accepted. This 

is a -- this was a 77-year-old former worker from 
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Los Alamos who worked as a mechanical technician 

for almost five-and-a-half years with exposures 

concern in asbestos, cement, diesel exhaust, 

silicon dioxide, crystalline, welding fumes, wood 

dust, and endotoxin. 

So the primary claim was accepted in 

March of 2020 based on the treating physician's 

opinion who opined that it was at least as likely 

as not that the exposures to asbestos during this 

claimant's employment had contributed to their 

emphysema. 

The impairment rating was done a few 

months later and it seems that this is a wellbased impairment with proper application of AMA 

guides for impairment rating and the final 

impairment rating was Class 3 of 45 percent, 

whole person impairment. As far as I can say 

based on the knowledge of the tables for 

respiratory impairment this is a proper 

application of the criteria.

I don't really have any issues other 

than this claimant will be eligible for another 
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impairment reevaluation. And based on their PSE 

results, which were submitted together with the 

home health care claim, looks like this may be 

another impairment for the benefit of the worker.

CHAIR MARKOWITZ: Okay. Thank you.

Dr. Van Dyke?

MEMBER VAN DYKE: I think this was a 

really long claim, like 800 pages long, but I'll 

say that I think this is a good example of where 

the SEM worked. The SEM listed the substances 

that he was exposed to and really said that he 

was exposed up to moderate levels. So it wasn't 

one of those where it said low to very low and 

therefore no claim. I think this one is a good 

-- and I think this might be a good example of 

more of a trades type worker or somebody exposed 

more industrial as compared to more 

administrative exposures. And seems to work well 

in that situation.

So the other thing that -- as compared 

to the other claims I've looked at, sorting out 

what claim was what in this was tough, but I 
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think that claiming that the -- your condition 

was caused or aggravated -- and the or aggravated 

part I think makes it easier to -- for the CMC to 

really make that claim. So I think those were 

the two take-homes for me in terms of SEM working 

and the aggravation part.

CHAIR MARKOWITZ: Okay. Nice. Thank 

you.

Okay. So let's move on. The next 

case was 7255, Ms. Whitten and Dr. Goldman. It's 

a cancer case.

MEMBER GOLDMAN: I'm happy to go. 

This is related to the one I mentioned, but if 

Ms. Whitten wants to go first?

MEMBER WHITTEN: I don't care. I 

really found this case very interesting (audio 

interference). You can go ahead and start.

MEMBER GOLDMAN: Okay. So this is a 

person who basically had kidney cancer, and this 

was the person I mentioned before who had 

radiation, but also exposures to 

trichloroethylene, TCE. And so this was the one 
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that I mentioned that there was an IH report that 

says it was, quote, mild exposure for a year-anda-half. And the CME, or CMC basically looked at 

one-year-and-a-half and the rating from the IH as 

mild. I don't -- forget why it was mild. Maybe 

Ms. Whitten knows that. But basically the CMC 

just referred back to one German article that 

said you had to have many, many years of exposure 

at high dose. And because of that just dismissed 

it. 

And yet a recent -- I looked up the 

recent IARC update on TCE, which brought in 

mechanistic and other factors. And again looking 

at could this have aggravated or been a 

significant contributing factor. It just seems 

to me that if one looked at the IARC; and it is a 

carcinogen, that the -- he just looked at this 

case from 20 years ago. And it is a Group 1 

known carcinogen. And so if you're saying is this 

a significant increase risk or exacerbation of 

the cancer, you don't have the specific 

reconstruction process, so it becomes a judgment 
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call. 

And so the person had a year-and-ahalf exposure at what was considered, quote, mild 

by the IH. And maybe Ms. Whitten can speak to 

that. But still why wouldn't that be considered 

more likely than not that in some way it 

contributed to a kidney cancer? The person 

didn't have any other risk factors that we knew 

about, although the CMC didn't really explore 

that as well. So that's what I thought about 

that one.

MEMBER WHITTEN: I agree with you. 

The IH I remember stated that he had low

potential to exposure. And I think if they would 

have looked in the file a little deeper or if the 

CE would have sent more information, they would 

have seen that this company used over 2,000 

gallons of this trichloroethylene every year in 

their processes. And they used no PPE.

Also in the file that I saw this 

claimant had filed several safety concerns; and 

this was back in 1985, about them not following 
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the MSCSs when they were working and other safety 

concerns about different chemicals as well.

So I just think they should have 

looked a little deeper into this claim. Kind of 

disappointing to me to see that they didn't 

approve it as well. If they would have reached 

out to the claimant I believe and asked questions 

about his exposure, I think maybe they would have 

(audio interference) the other direction.

MEMBER GOLDMAN: Well, this -- again 

just to repeat what I had raised earlier, the 

person had a year-and-a-half exposure at a mild 

or moderate level with sufficient latency. Why 

is this just not considered at least a potential 

exacerbating factor? So I don't know how much 

one leaves to the CMC. I mean if there's some 

guidance like I found for other carcinogens, it 

was pretty -- it's laid out. If you had more 

than one year exposure or whatever, those -- that 

was counting. And here because it wasn't sort of 

laid out, it sounds like this didn't get counted 

for this person just because there wasn't some 
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specific presumption laid out for TCE, although 

one year of exposure had been mentioned as a 

presumption for others.

CHAIR MARKOWITZ: This is Steven. Let 

me just point out that there is a presumption in 

the procedure manual for kidney cancer and TCE, 

but you need five or more consecutive years of 

exposure prior to 1990 at one of -- a large 

number of listed DOE sites. So this person 

didn't qualify for a presumption because they 

didn't have five years of exposure.

And then in the procedure manual it 

says if a person has TCE exposure but doesn't 

qualify, then you go the regular route of claims 

abeyance. So this is one of the unusual cancers 

in which we have presumption, but the person 

doesn't qualify for that.

MEMBER GOLDMAN: Well, thank you for 

that correction. I guess I didn't see that in 

the procedural manual. So he didn't qualify 

because he didn't have the five years.

CHAIR MARKOWITZ: Yes, but that's not 
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a correction really. I mean the things you were 

pointing out are still valid: one to two years 

contribution. How do you decide that? But not 

by the presumption in the procedure manual. 

That's all.

MEMBER CATLIN: This is Mark Catlin. I 

have a question about the exposure assessment. Do 

you recall if they looked at exposures for both 

airborne and skin contact out of exposure, or was 

it just kind of lumped together?

MEMBER GOLDMAN: I don't recall.

MEMBER CATLIN: Yes, I didn't see any 

of these in the claims I've looked at, but I 

often see the hygiene reports and exposure 

assessments focus in on the air sampling and sort 

of ignore that -- they assume that there's no 

skin exposure and there's -- and that's not a 

route of entry. And I think that's often a hidden 

exposure.

MEMBER GOLDMAN: I guess that's a good 

point, but I guess now I wonder how this really 

works. If there is a presumption of five or more 
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years of exposure and the person doesn't have the

five or more years of exposure, I mean we could 

debate that and that may go back to these earlier 

-- this earlier German study that the CMC 

referred to. 

Steven said it doesn't exclude it, but 

it would seem to me that if I was the reviewer 

and I saw that in the procedural manual I would 

say he didn't have enough years.

CHAIR MARKOWITZ: This is Steven. I'm 

not sure I get your point, Dr. Goldman.

MEMBER GOLDMAN: Well, if the person 

didn't have five years of exposure, they only had 

one-and-a-half, wouldn't that -- it's almost --

so if you don't reach the presumption, let's say, 

that you've got it, how could somebody then come 

forth and say well, he only had one-a-half years, 

but I think it's still a contributor? I mean can 

that happen if the procedural manual really says 

it to be five years?

CHAIR MARKOWITZ: No, no. What -- no, 

the -- well, maybe I didn't read it right, but if 
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the person meets the criteria for the 

presumption, it doesn't go to the IH, it doesn't 

go to the CMC. The claims examiner can just 

approve it, right? But if they don't -- like 

someone like this, they don't meet the five 

consecutive years prior to 1990, then the 

instruction in the procedure manual is develop 

the claim in the regular way, seek out the 

opinion of the IH and the CMC if it's relevant.

MEMBER GOLDMAN: I see. So you still 

have a chance, in other words?

CHAIR MARKOWITZ: Yes. 

MEMBER GOLDMAN: Well, I have a sense 

that probably this just went through with the 

concept that the person didn't have enough 

exposure and they just weren't giving enough 

credence to a year-and-a-half. 

CHAIR MARKOWITZ: Right. Right. 

Okay.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez. Can we discuss for a 

minute how the understanding of presumptions is 
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among the CMCs and the claims examiners, because 

my understanding is that the presumption is just 

a streamlining to remove the case from the timeconsuming detailed evaluation pathway and just 

approve it immediately. Whereas if it doesn't 

make the presumption, it automatically is 

considered by the claims examiner to be sent to 

the CMC and the IH for detailed evaluation of 

exposure and causation. Is that generally the 

understanding of everyone in this process or 

since Rose misunderstood it, is there a chance 

for misunderstanding it among the CMCs and the 

claims examiners?

CHAIR MARKOWITZ: But the thing is if 

it meets the presumption, then it doesn't get to 

the CMC. So if it goes to the CMC, the CMC 

doesn't need to know about the presumption 

because the person hasn't qualified under the 

presumptive clause.

MR. VANCE: Yes, and, Dr. FriedmanJimenez, remember that the claims examiners are 

trained to follow a process. The process in 
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Chapter 15 of our procedure manual directs how 

the sequence of causation development occurs.

Now you can talk about quality control 

and quality assurance. That's something 

separate. But the process would be I'm a claims 

examiner. I'm sitting down. I'm looking at this 

case. Oh, I see that this condition is 

asbestosis. I should compare that to what's in

the presumptive standard in the procedure manual. 

If the conditions of the presumption 

are satisfied, I'm done because what that 

presumption is basically saying is that the 

program has made a determination that if these 

criteria are met, you have a condition that is a 

-- that an exposure to asbestos was a significant 

factor in causing, contributing, or aggravating 

this disease. You've met that legal standard for 

compensability. 

And if that standard or that 

presumption is not satisfied for whatever reason, 

yes, we now have to go an alternative route. We 

now need to have a physician look at the unique 
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characteristics of that case and render an 

opinion as to whether or not the doctor feels 

that for whatever analysis that they're applying 

in their judgment that is that enough in their 

mind to say that that exposure was a significant 

factor in causing, contributing, or aggravating 

the disease. So it is a very discretionary 

process whereas the presumptive standard sort of 

negates the need to do all of that.

So, yes, that's a standard practice of 

claims adjudication. The claims examiners would 

understand that. I don't know how familiar the 

CMCs would understand that. But the other thing 

I want to highlight here is do not forget that 

the process is actually not simply the claims 

examiner making that determination. Whatever 

decision that would be, the outcome of this 

process would be something that the claimant 

could review and contest. 

We would then have a secondary --

essentially a secondary review by the Final 

Adjudication Branch. They too have been trained 
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to understand what the procedures are for 

adjudicating these cases. And if they would see 

a defect in how that adjudication at the district 

office level had occurred, they can then remand 

it. So in other words, if a hearing 

representative would look at it and say oh, in an 

oral hearing the claimant raised the objection 

that this should be covered under the 

presumption, and I agree with that, they would 

remand it back saying you've got to adjudicate 

this case under the presumption and approve the 

case versus maybe a denial based on a doctor's 

opinion. So don't forget there are -- the claims 

adjudication process is set up to have basically 

a two-tier review process in place as well to 

ensure compliance with our procedural guidance. 

And if you look at that, there was a 

document that came up earlier where we doing 

these quality assurance reviews. That's also 

something our Quality Assurance Team is looking 

at. Decision accuracy. Is the outcome of that 

case appropriate for program procedure? Did they 
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apply those presumptions correctly? So we have 

all these mechanisms to make sure that the 

process is working correctly.

Now we can always argue about the 

application of the medical health science or the 

physician's opinion, but the process is designed 

to make sure that we're working within the 

confines of that procedure.

MEMBER FRIEDMAN-JIMENEZ: Great. 

Thank you, John, for clarifying that. It would 

be very interesting to know what percent of 

approved cases are approved by presumption and 

what percent are approved after the detailed 

process. That would give us some idea of how 

helpful the presumptions are and how commonly 

they're met and how uncommon -- how commonly it 

is that they're not met, but it's still an 

approved case. Is there a chance we could get 

data on that? Do you have data?

MR. VANCE: There's a chance for 

everything. We have to look at the requirements 

for me to get a data pull. Off the top of my 
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head I don't think that we record that kind of 

information in a way that could make it easy for 

data analytics people to just pull that out 

because we don't record necessarily a presumption 

versus a non-presumptive standard for 

acceptances. We can look at it.

And I always say let's take a look at 

it out and figure out what we could do, but I 

don't think off the top of my head there's an 

easy way to make it happen.

MS. POND: Yes, I mean I think for 

those cases we record whether it's gone to an IH, 

we record whether it's gone to a CMC. We have 

that information, but it would probably take a 

lot for us to really know that the reason it got 

accepted, even if it didn't go to one of those 

places, was because of the presumption. 

Again, I agree with John, we can look 

into it, but I wouldn't have high hopes that 

we're going to get it to that granular of a 

detail.

MEMBER FRIEDMAN-JIMENEZ: Well, it 
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would be good to just know what percent have been 

approved without IH and without CMC and what 

percent required IH and CMC. That would be 

helpful.

MS. POND: Yes, we might be able to 

get something like that.

MEMBER FRIEDMAN-JIMENEZ: That would 

be easier to get.

MR. VANCE: I would also say I think 

most CEs and HRs are very motivated to apply 

presumptions because then it avoids having to do 

all of this extra development. So there's also 

an incentive for them to make sure that they are 

fitting folks into the presumption wherever 

possible. And that's why we always have focused 

our efforts with the Board in trying to expand 

available presumptions because it does really 

make for a much more efficient and claimantfavorable kind of outcome. 

MEMBER GOLDMAN: So maybe it's another 

point. It's interesting that for this cancer 

it's five years of exposure, how we come up with 
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that, and for others it may be something else. I 

mean for another time to discuss how those come 

up. 

Another interesting thing is whether 

or not an examiner who's done these before might 

be influenced by the presumption. Well, even 

though that makes it really quick to go through 

it, would somebody be influenced by that to say 

well, you really need -- to be really certain 

about it you really need five years. So we don't 

know that, how much the examiner might be 

influenced if they knew that's what the 

presumption was.

CHAIR MARKOWITZ: Okay. This is 

Steven. Thank you. Interesting conversations.

And historically, just to reiterate 

what Mr. Vance said, the Board has tried to 

assist in developing presumptions wherever 

possible. And that's why we want to add the 

chemical engineers, the mechanical engineers, and 

the industrial safety engineers to the asbestos 

presumption. 
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Okay. It's 4:10. Public comment. I 

was going to bring in Mr. Key on the next case 

from Paducah, a cancer case, but I don't think 

we'll finish it by 4:15. So let's just see. 

Ms. Rhoads, I have a list of seven 

people, public commenters. Is that still true?

MR. CHANCE: Steven, I think it's more 

now.

MS. RHOADS: I just sent you a list in 

your email. It is now 15 people.

MR. CHANCE: Yes, why don't we go 

ahead to that now, Steven, and then we can save 

the cases for tomorrow. Okay?

CHAIR MARKOWITZ: Okay. So we're 

going to go a little past 5:15, I guess -- 5:00, 

I guess, but that's a good thing.

Yes, how do you -- you want to just 

call them off on the list? I don't know how they 

join the call. I think we (audio interference).

MS. RHOADS: Kevin (audio 

interference), so Kevin will assist. When we 

call the name, he'll match it with the call-in 
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number.

CHAIR MARKOWITZ: Okay. And I guess 

we're going to ask people to speak for no more 

than five minutes, which will run our public 

comment period much longer than expected, but 

it's good to have public participation. And I'll 

try to keep track of time. And I'm afraid I'm 

going to -- may have to interrupt some people, 

but there's always the opportunity to follow up 

with additional written comments. So let's 

start.

MS. RHOADS: Okay. Do you have the 

list or do you want me just go down the list?

CHAIR MARKOWITZ: No, no. I want you 

to deal with the list. I don't have the full 

list.

MS. RHOADS: Okay. So is Bob Rothe, 

or Rothe -- I'm not sure how to say that, if 

you're on the line? 

Kevin, do you have that number?

MR. BIRD: He is with us.

DR. ROTHE: Am I on? 
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MR. BIRD: Yes, we can hear you.

MS. RHOADS: Yes. Yes.

DR. ROTHE: And can you see me?

MR. BIRD: No, but we will just do 

audio for public comments today.

DR. ROTHE: You're just hearing me, 

right?

MR. BIRD: That's correct.

DR. ROTHE: First of all, thank you 

very much for this opportunity. I'm a little 

nervous, so I've written my notes out of what I 

wanted to say. I request permission to simply 

read these notes and file them in.

Actually in anticipation of this I 

sent my public comments to Steven Markowitz and 

to John Vance.

CHAIR MARKOWITZ: Let me just say --

Mr. Rothe, this is Steven Markowitz. I read 

those comments. They were excellent. They were 

very clear. Just so you know.

DR. ROTHE: Okay. Steven, let me also 

say to you that since then I have embellished 
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them with further strengthening articles. So I'd 

like to just go ahead and read this and I'll try 

and be prompt. How much time do I have? Eight, 

ten minutes?

CHAIR MARKOWITZ: Five minutes, I'm 

afraid.

DR. ROTHE: Oh, well, I don't know how 

far I can get. There are actually three bullet 

points to what I want to talk about. The one --

the most important one is my personal objection 

to your endless denials of my hearing loss claim. 

(audio interference) hearing loss is being 

bilateral sensorineural hearing loss. 

If my exposure to ototoxic chemicals 

during my 30 years working at the non-nuclear 

industry either caused or contributed to my 

hearing loss, as two doctors have said; it said 

it is likely as not to be the case, then the 

provisions of the EEOICPA ought to provide me 

compensation, that law applies -- provides. I 

assume DOL, DEEOIC, and the Advisory Board would 

agree with that conditional comment. Please say 
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yes.

(Laughter.)

DR. ROTHE: All I'm saying -- all I 

said was if it turns out that I did get the 

disease or the illness from my working in the 

nuclear industry, I should be covered.

CHAIR MARKOWITZ: Yes, subject to 

provisions of the law, absolutely.

DR. ROTHE: Okay. I have been denied 

because of my job title that I held at 

retirement, associate research scientist. DDO, 

Denver District Office, recommended denial. DOL 

in Washington denied my claim. And DFAB went 

along with the same thing, denying my claim in 

all cases because my job title did not fit DOL's 

list of acceptable job titles. And I believe 

that DOL constructed this list themselves. I am

claiming that that list is incomplete. I possess 

denial letters from all organizations: EDO, 

Washington, D.C., DFAB and all the FAB recourses, 

that contain exactly those words of denial 

because of my job title.
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Now one important point is -- and 

deals with my letter I received dated April 18th 

denying my request for a reopening signed by 

Rodney Sanchez, but I think really it's Rachel 

Pond, Ms. Pond. But anyhow, that job title that 

was used for denial is not the job title I had 

when I did the work exposing to ototoxicity. 

This is obviously true because of the FBI raid or 

Rocky Flats which terminated all operations 

fissile material from the time of that raid in 

1989 until the closure of the plant several years 

later. Still DOL denied me using the wrong job 

title.

Now I pointed that out when I 

requested the reopening of the case, but 

nonetheless it says very clearly in that April 

18th letter from DOL that the Washington District 

Director -- Washington Director merely sent it to 

the Denver District Office person who in turn 

just simply rubber stamped the denial. And I 

think that's wrong. In other words, I'm being 

judged for the wrong job title. 
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I did hold job titles during my years 

that I was being exposed to ototoxicity. I don't 

recall those job titles exactly, but I think DOL 

has them from my work history. I did the work --

I'm going to skip over here. I did all the work 

of a chemical operator, a laboratory technician, 

and a welder, and a -- oh, a laboratory analyst. 

So chem operator, lab analyst, laboratory 

technician, and welder. Those are four of the 

jobs that are on DOL's list of acceptable job 

titles.

Now I didn't hold those job titles, 

but I did the work. In other words, I really 

object to -- an industrial hygienist said, Dr. 

Rothe, you did not do the work you did. I know 

that sounds silly, and it really is, but that's 

the way it comes across. I have proved to DOL at 

the FAB level and every other level that I did in 

fact use trichlorethylene and methyl ethyl 

ketone. The methyl ethyl ketone was for welding, 

not in the sense that you think of welding with 

sparks and electricity and stuff. It's chemical 
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welding. But nonetheless it is welding, not just 

gluing.

Okay. 

CHAIR MARKOWITZ: I'm sorry. I'm 

sorry. I'm sorry to interrupt you, but actually 

your time is a little bit over. So you've sent 

in some comments. If you could -- which were 

very clear. If you have additional materials to 

send to the Board, that would be wonderful, but 

I'm afraid we're going to need to move on.

DR. ROTHE: Steven, could you please 

review what you just said?

CHAIR MARKOWITZ: Oh, I'm just 

concerned -- we have to move on to the next 

public commenter, but --

DR. ROTHE: Yes, I understand. Shall 

I send this to you?

CHAIR MARKOWITZ: Yes, okay. Yes, I 

mean if you sent anything to me, it will be -- go 

into the public comments on our website, but you 

already have six pages of public comments on our 

website actually which --
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(Simultaneous speaking.)

CHAIR MARKOWITZ: So we welcome 

additional material.

DR. ROTHE: Yes. Well, I will send 

that to you in the next day or two. 

CHAIR MARKOWITZ: Okay. Thank you 

very much.

DR. ROTHE: I'll include (audio 

interference) to John Vance. My ultimate goal is 

to have the Advisory Board reverse DOL's denials. 

Thank you for your time, gentlemen --

CHAIR MARKOWITZ: Okay.

DR. ROTHE: -- and ladies.

CHAIR MARKOWITZ: Thank you. Carrie?

MS. RHOADS: The next person is Terrie 

Barrie.

Kevin, you have a number for Terrie 

Barrie?

MR. BIRD: I do not see Terrie here.

MS. RHOADS: Okay. 

MR. BIRD: Terrie, if you are called 

in, could you please send an email with the phone
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number you're called in, otherwise we will get 

back to you.

MS. RHOADS: Okay. And we can move 

onto Sandra Thornton then.

MR. BIRD: Just find that real quick.

MS. THORNTON: Hello?

MR. BIRD: All right. Sandra is 

there.

MS. THORNTON: Yes, thank you very 

much. So my name is Sandra Thornton, I'm the POA 

for Case 50024054.

And just before I start really quick, 

thank you for everything that you do. I am 

pointing out some problems, and I was like a 

media assistant. 

My brother-in-law's case, I am the 

person that's responsible. I have three solid 

doctor's letters, 3400 pages' worth of evidence. 

Twenty-five claims have been filed. All have 

either been denied or never processed. Some have 

sat there for 23 months, for seven months. One 

is currently in reconsideration.
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So my points are the DEEOIC is not 

following giving a higher precedent to doctors 

who are familiar with employee, have all the 

medical records, have the scientific data, have 

the rationale and the worker evidence, the toxic 

evidence, radiation, etc.

Anyway, my brother-in-law has over 120 

toxins exposures, over 16-plus linked to his 

occupational illnesses, exposures at Paducah 

Gaseous Diffusion Plant. The Cascade Upgrade 

Program Phase 1, Phase 2.

So my point is this: coworkers have 

verified it in hearings and have provided 

documentation, it's still denied. He's had two 

near-death hospitalizations. So his case 

managers, three of them, have processed unsigned, 

not submitted by us, claim forms versus using our 

21 new claim items and signed documents. So just 

processed wrong diagnoses and documents we never 

submitted. 

Failed to inform the IH and the CMC of 

zero respiratory protection for over two years at 
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Paducah. Failed to inform that he was in a 

special program which was not used throughout the 

entire U.S. And unfortunately, with his 

occupation, DEEOIC keeps treating him like any 

other janitor, lube man, or maintenance man, and 

that's not the case at Paducah.

Failed to use a prior-1995 standard. 

Failed to process countless claims, and I'll give 

you all the documents. It's not using the -- SEM 

properly. The case managers and the hearing reps 

are actually using abbreviated versions. 

They are not allowing the links of 

COPD, bronchitis, and emphysema. Matter of fact, 

the case managers said, There's no such illnesses 

linked to bronchitis. Well, there is, and it's 

under pulmonary disease, chronic obstructive. 

And that's where COPD, bronchitis, and emphysema 

is linked all together.

Case managers and hearing reps are not 

informed and not informing the IH and the CMCs of 

the Paducah DUP (phonetic) Phase 2 modification 

program with plutonium, etc., and so forth.
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The DARS are being denied to the IH 

and the CMCs. They're called irrelevant on their 

documents, and they're not providing the positive 

radiation, high radiation of gamma, beta 

radiation and alpha. The positive toxic 

hazardous test. 

They are not providing the medical 

documents from Paducah to IH and the CMCs, such 

as tumors removed, all the teeth removed after 

being purposefully hired in at age 18 and by 22 

all their teeth was removed. A tumor grew on his 

head for three weeks and had to be surgically 

removed, too.

His x-rays by age 22 and 24, which had 

been perfect at 18, now showed clear inhalation 

exposure. So, anyway, they're not -- I don't 

know whether case managers are not educated on 

inhalation exposure and what to look for in 

records but again.

So high beta-gamma radiation is being 

ignored by the Department of Energy and DOL 

because DOE put that stuff under other and mixed 
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radiation exposure with plutonium and TCE and 

depleted uranium. So a high radiation level is 

being totally dropped on these claims.

Failure to acknowledge DOE with 

findings in 2000 showing that he had obstructed 

lung dysfunction, moderate lung defect at that 

point, etc., and so forth. Hearing loss, 

respiratory problems, etc. 

Failing to correct any of his records 

that I have repeatedly corrected. Buildings, 

jobs, to add to them with the exposures, looking 

at -- one that did more than they did a lifelong 

thing on him, dates of diagnosis that they're not 

correcting. 

Failure to acknowledge all the studies 

that we paid for since, you know, 1973 really 

through present. You have no system to update 

the individual employee records to show by the 

way, we found this data. It was when the worked 

there, that job, etc., and now their radiation 

and substance exposure is different, which would 

really help DOE and DOL in the long run.
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Instead, the resource there has a 

former employee that was never told what 

substances they were exposed to or the radiation 

levels or things of that nature. The resource 

center has them fill out documents. So they're 

guessing to fill in and mark off substances. 

But DOE has known all along, because 

DOE has been providing research studies the exact 

internal and external radiation, all the inhaled 

exposures, etc. since as early as 2000 on these 

former Paducah DUP Phase 2 veterans, etc.

So I'd like to know why the death 

certificates were being collected by DOE and DOL 

for a site and we don't find out, you know, the 

substance of, hey, by the way, 8,000 had the 

respiratory diagnosis, because I got them in FOIA 

releases, the --

CHAIR MARKOWTIZ: Ms. Thornton, Ms. 

Thornton? This is Steve Markowitz. I'm sorry --

I'm sorry to interrupt you.

MS. THORNTON: Sorry, I'm probably --

CHAIR MARKOWTIZ: You're okay, but 
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we're just -- we're out of time. But you're 

certainly welcome to submit brief additional 

written comments. We have transcripts of what 

you said, but if you have additional writing, 

please send it in.

MS. THORNTON: I will, thank you very 

much.

CHAIR MARKOWTIZ: Thank you.

MS. THORNTON: Good day.

MS. RHOADS: Okay, and I think we have 

a number for Terrie Barrie now. So if she is on, 

go ahead.

Kevin, I just sent you the number.

MR. BIRD: Okay, give me a second to 

find it. So are you with us?

MS. BARRIE: Thank you, yes.

MR. BIRD: Great.

MS. BARRIE: This is Terrie Barrie. 

Good evening, everyone, Dr. Markowitz, and 

members of the Board. I'm a founding member of 

the Alliance of Nuclear Worker Advocacy Groups, 

and I appreciate this time to address the Board.
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A couple of months ago, like March, I 

was made aware by an authorized representative 

that new language has been added to industrial 

hygienist reports. I'll read just a portion of 

it.

Quote, DOE historically has not 

adhered to the OSHA permissible exposure levels, 

but rather followed the more restrictive American 

Conference of Governmental Industrial Hygienists 

TLV-TWA levels, the time-weighted average level 

concentration for a conventional -- conventional 

-- eight-hour work day and a 40-hour work week, 

to which it is believed that nearly all workers 

may be repeatedly exposed day after day for a 

working lifetime without any health, adverse 

health effects, end quote.

It says nearly all workers. That 

obviously means that some workers will be -- will 

experience adverse health effects. You'll hear 

more about this possible from a couple of other 

commenters on the call today, but I do want to 

raise some serious concerns that I have about 
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this.

The statement is extremely misleading 

and inaccurate. And I do know that you just 

published the responses to your questions about 

this, but I haven't had chance to review them. 

And if I make a mistake, I apologize in advance.

So, I researched DOE's acceptance of 

ACGIH's threshold limits. I found two references 

to DOE's acceptance of the limits. The first is 

a survey from -- that DOE provided to the 

Savannah River Site. It is dated April 2015.

Question one of the survey states, 

quote, DOE currently defers to the Occupational 

Safety and Health Administration for establishing 

permissible exposure levels and uses an action 

level as the administrative level to assure that 

controls are implemented to prevent exposures 

from exceeding the permissible exposure limits.

The second DOE document I found was 

published in 2019, about 2019 I believe. And in 

it says, Amendments to 10 CFR 851 in January --

were published in January of 2018. This 
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amendment uses the 2016 consensus standards, 

including the ACGIH standards for crystalline, 

silica, and cristobalite.

Compliance was not expected to be 

achieved until January 17, 2019, a mere three and 

a half years ago. Yet DEEOIC wants this language 

applied to all IH reports for workers employed 

after the mid-1990s. 

I also filed a Freedom of Information 

Act request with the Department of Labor for any 

documents related to this new language. And they 

did have a meeting on November 30, 2021 a few 

weeks after your last board meeting. And the 

title of that meeting was Discussion on Adding

Within Regulatory Standards Language to IH 

Reports.

So it appears that, to me at least 

anyway, it appears that the DEEOIC has adopted a 

policy that it's easier to ask forgiveness later 

than to ask permission first. It's the Board's 

charter to provide advice, but how can they 

provide advice to DEEOIC if DEEOIC doesn't tell 
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them what they're up to?

It is so different that how the 

Radiation Board works. In fact, the first 

recommendation the Board offered to DEEOIC was to 

rescind Final Circular 1506, which said exposures 

would be within regulatory limits after 1995. 

And DEEOIC accepted that recommendation.

But now it appears that they're doing 

an end-around around the Board's responsibility. 

I'll skip that part. 

And I'm -- I'm really concerned about 

the lack of notice for this meeting. I follow 

the Federal Register a lot, and I want to notify 

people. But this wasn't published in the Register 

until 16 days before today's meeting and seven 

days before the end of the signup period. 

So thank you, Dr. Markowitz and the 

Board and Carrie and Mike, for allowing other 

people to sign up.

And I'm glad that the Board became 

aware of this issue, and I'm looking forward to 

tomorrow's discussion. And if ANWAG has 
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additional comments or responses to the latest 

answers that DEEOIC gave you, I will submit them 

in writing, along with this written summary. 

Thank you.

CHAIR MARKOWTIZ: Okay, thank you. 

MS. RHOADS: Next, Jason Jones.

MR. JONES: Hello, yes, I am here, 

thank you.

So I do appreciate the time to provide 

a few comments. I did provide a written comment 

to the Board purview. Just a quick background. I 

am an attorney and I do represent a number of 

clients under the DEEOIC program. 

And my concern I wanted to address was 

actually the same as that Ms. Barrie just 

addressed. And I apologize, I was not aware that 

this has already been addressed by the Board or 

that there were questions and answers. 

I do want to just get on record my 

concerns with the new wording. Ms. Barrie did 

accurately read the wording into the record 

already, but this wording, which is found in, as 
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far as I can tell, all the new industrial 

hygienists for the last couple months anyway, for 

clients which were -- are having covered work 

periods evaluated after the mid-1990s.

That includes this definition of 

existing regulatory standards, which includes a 

definition that by definition this is without 

adverse health effects. My concern is twofold 

with this wording. 

First, that this wording, it steps 

outside the bounds of what the DEEOIC policy 

manual directs industrial hygienists to actually 

provide in their opinion. Their opinion is to --

or their rule is to actually provide an opinion, 

and I'm quoting the policy manual at 15.11, 

Section A. 

It simply say, IH review functions of 

the IH and exposure analysis, part one. The IH's 

role is to provide expert opinion regarding an 

employee's exposure as relates to nature, 

frequency, and duration, based on assessment of 

the evidence presented.
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Now, this statement that's included in 

all of the new industrial hygienist reports for 

anything post the mid-1990s that claims that 

whatever the exposure level was, it was existing 

regulatory standards. 

And then it cites an ACGIH definition 

from a 2021 publication that these threshold 

limits are at such a level that they would be 

endured by work -- for the working lifetime of a 

worker without adverse effects.

It certainly steps over the bounds of 

what an IH industrial hygienist report should 

provide, and that it should not be providing a 

medical opinion on causation, which it certainly 

appears to.

And then secondly, it doesn't provide 

any of the information that an industrial 

hygienist is supposed to provide to physicians. 

It doesn't provide an estimate of duration, 

frequency, or the nature of exposure. And this 

information is needed in order for a physician to 

provide an accurate causation opinion.
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The second part of this, as Ms. Barrie 

has already addressed, the second take on this 

wording, it is either, one, a causation opinion, 

a medical opinion, being offered by an industrial 

hygienist. Or, two, my concern is that this 

industrial hygienist wording is requiring a 

physician to accept that, one, ACGIH standards 

were in place at the facility in question for 

that claimant, and two, that these standards were 

inherently safe.

And I, in doing research on this, I 

did provide more in-depth examples and research 

in the written comment that I submitted. But I 

do want to point to some specific example why 

this would be inaccurate.

And in the comments, I point more 

details, but in the case of silica exposure, this 

would be an exposure that the permissible 

exposure limits have changed since 2000, anyway, 

with I believe the final implementation of 

current permissible exposure levels taking full 

effect in 2016. 
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So for silica levels that are deemed 

safe has been changed by OSHA over the years, and 

they provide details why they changed it and 

such. And if we were to look at the second part 

of this, I've interviewed dozens of my clients to 

try and found out what was actually in place at 

their facility at the timeframes they worked in 

in their department.

The clients that I've interviewed, 

none of them have been able to relate that ACGIH 

standards were in place or that they were adhered 

to. I wasn't able to find but a handful of 

clients that even knew what ACGIH was. 

And alternatively, all of the clients, 

and the ones I'm referencing are specifically 

blue-collar workers, electricians, plumbers, 

pipefitters, carpenters, they were all trained on 

OSHA standards, which would relate to personal 

protective equipment, to -- in regards to inhaled 

particulates, fumes, gasses, things of that 

nature.

They all related they were placards, 
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there were training courses. They relate going 

through OSHA 10- and OSHA 30-hour certification. 

It seems that it's inaccurate to state that the 

ACGIH standards were in place at least the large 

facilities. The ones I pulled safety reviews on 

and the audits include Nevada Test Site, INL, 

Pantex, and Savannah River Site. 

And Ms. Barrie also referenced that at 

least a partial report from Savannah River Site.

So that this -- go ahead.

CHAIR MARKOWTIZ: No, no, I'm sorry. 

You just need to wrap up, that's all.

MR. JONES: Okay, all right. That --

those were my concerns with it. One, it's either 

being offered as a causation opinion, which is 

the place of a physician. Or two, that this is 

relaying to a physician that they should then be 

looking at the ACGIH standards and the 

permissible exposure TLBs, rather than relying on 

OSHA standards, which tended to actually been in 

place.

My suggestion would be if ACGIH is 
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referenced, they should take out the wording that 

says it's inherently safe and that there's no 

adverse health effects. That they should provide 

in this industrial hygienist report some evidence 

that these ACGIH standards were actually in place 

at the time. 

And a statement of what the actual 

TLB/TWA values are, because they are -- they are 

certainly harder to look up and reference than 

OSHA standards since they -- they don't seem that 

they were actually enforced.

So anyway, I do appreciate your time 

on matter, and I'll end with that.

CHAIR MARKOWTIZ: Thank you. Thank 

you very much.

MS. RHOADS: Okay, next is Tyler 

Bailey.

MR. BAILEY: Thank you. Can everyone 

hear me?

CHAIR MARKOWTIZ: Yes.

MR. BAILEY: So my name's Tyler 

Bailey, I'm an authorized representative. And 
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I'd like to first off thank everyone for inviting 

us to publicly comment and thank the DEEOIC 

program. 

I think you guys do a very good job in 

general, and there's a few things that I think we 

were seeing in the last few comments that we can 

improve, and I'd like to offer another, maybe two 

if I can get to it in time.

The first thing I would like to speak 

specifically on, this is a major factor that I've 

seen. When it does rear its ugly head, it 

creates significant problems in the -- in 

adjudication of a case, and that is the misuse of 

CMC contract medical consultants from a claims 

examiner.

So initially when a -- when a primary 

illness is adjudicated by the program, the policy 

and procedure manual states that CEs should view 

the treating physician as a primary source of 

medical evidence before consideration of a CMC 

referral. 

And that the CE should typically give 
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the treating physician the first opportunity to 

review medical evidence from the file for the 

purposes of responding via claims and questions.

The procedure manual additionally 

states the claim -- the claims examiner, I'll 

refer to them as the CE, should not view a 

medical referral to a CMC as an automatic 

requirement for each claim, and states the CMC is 

not to validate probative input by a claimant's 

chose treating physician. 

And it says that they are to be used 

in obvious defects in the case that must exist 

before they can be used. They're available in 

situations where no other reasonable opinion or 

option exists.

I represent quite a few clients, and 

what we see from time to time is that sometimes a 

claims examiner, and I think that it's the 

exception, thank goodness, that claims examiners 

will sometimes use a CE or a CMC. And when 

there's -- and when they're actually -- I'm going 

to read. I started to talk a little freelance 
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there, but I'm just going to read from my 

comments that I'll submit later to the Board.

We've seen cases where CMC is 

inappropriately used by a claims examiner without 

justification according to the policy and 

procedure manual. These aren't met. This occurs 

quite regularly with my clients, and once it 

does, the case is corrupted as a whole.

Some claims examiners supervisors and 

district offices even, they exhibit a pattern of 

sending claims to a contract medical consultant 

in direct violation of the policy and procedure 

manual. Once the CMC's opinion issued, it is 

viewed to be of equal or more probative value 

than the original treating physician, regardless 

of content or rationale.

Written objections to these denials 

from an inappropriate CMC referrals will 

generally result in the case being sent to what's 

called a referee specialist. However, the 

referee opinions are simply another CMC 

contracted by the Department of Labor, and as 
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such they simply side with original CMC.

So I understand why these CMCs are 

sometimes used. And sometimes these CMCs are 

reviewed because -- or used because the treating 

physician may not respond or they may not get 

anything from a treating physician.

But I have numerous examples that I 

could provide to the Board if requested. One of 

my cases is involving a client of mine who 

submitted medical records with their treating 

physician's initial assessment of the claimed 

illness. 

The physician specifically requested a 

copy of the industrial hygiene report when it 

came in, and the claims examiner responded by 

saying they're sending it to an industrial 

hygiene report and they'll send that report to a 

CMC, which is automatically off-base. 

It means the authorized rep uses CVs, 

and I replied please don't send it to a CMC, at 

least give the treating physician the original --

the original -- they can reply. Go ahead.
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CHAIR MARKOWTIZ: So I'm sorry, Mr. 

Bailey, but you need to wrap up.

MS. BARRIE: Okay, sure. In this 

case, the claims examiner will -- he sent this to 

a CMC after he got the original treating 

physician, and it corrupts the case as a whole. 

Because once they sent it to a CMC, there's two 

medical opinions. Then they have to send it to a 

referee CMC, and it corrupts those cases as a 

whole.

My solution for this is basically we 

should verbiage to the PPM, the policy procedure 

manual, that treats information garnered by a 

claims examiner as basically fruit of the 

poisonous tree is what it would be referred to in 

a criminal -- a criminal case. In that if it 

comes in and it was not supposed to come in, then 

that evidence gets thrown out rather than passed 

from physician to physician and physician to 

referee physician.

It's my request that the Board follow 

the recommendation of submitting CMC reports 
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obtained in violation of the directives contained 

in this policy manual shall be excluded from the 

record. And I think that if we just added that 

simple line to the procedure manual, it would --

it would negate a lot of these problems.

I do appreciate your time. I can hear 

you wrapping me up

CHAIR MARKOWTIZ: Okay, thank you.

MS. BARRIE: And I'll send some 

additional -- additional by mail.

CHAIR MARKOWTIZ: That'd be great, 

thank you.

MS. RHOADS: Okay, next up Faye 

Vlieger.

MS. VLIEGER: I'm going to need my 

computer.

MR. CHANCE: Faye, we can hear you.

MS. VLIEGER: Okay. Good afternoon, 

ladies and gentlemen, I am so happy to be 

presenting to you. I will submit my written 

comments to the portal after the end of my 

presentation.
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I appreciate the opportunity to 

present my comments today. First of all, I want 

to thank the Chairman and all of the Board 

members for their diligence and continued service 

to the current and former nuclear weapons 

workers. 

As a former Board member, I am well 

aware of the time and effort these positions 

require. If you have submitted a request to 

continue a position, I salute your dedication. 

I realize that my comments are 

probably going to be too lengthy and I'll be cut 

off. So if I will get the one-minute warning, 

then I could wrap it up with my most important 

points today.

CHAIR MARKOWTIZ: Sure thing.

MS. VLIEGER: Thank you.

Since the issuance of DEEOIC circular 

1506, there's been a fallacy of safety and an 

absence of toxic exposures that pervaded the 

DEEOIC leadership and their guidance in 

processing claims. While DOL did rescind the 
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circular, the language of the circular proceeded 

into the procedure manual. And now it's been 

edited, as presented by Terrie Barrie.

My problems with this whole issues is 

that it's never been based in facts. While John 

Vance did provide a memorandum for the circular 

dated a few months after the circular, those 

supporting documents for that memorandum and the 

basis for the circular were never provided. And 

then the circular was rescinded February 2 of 

2017.

So the most recent revision of the 

exposure language that's being presented into the 

claims and to the IH and CMCs was read aloud by 

Terrie Barrie. And I second Attorney Jones's 

comments about the manner in which it's used.

The issues that I have is that DOE did 

post an order for 40.1 for workers protection 

September 3, 1995. That doesn't mean it was 

enforced.

DOE did not release an implementation 

guide for that order until March 30 of 1998. 
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Therefore, there was no implementation that was 

regulated, observed, or actually inspected.

The insistence by EEOICPA that workers 

produce exposure evidence such as monitoring 

records when they disagree with the SEM, the IH, 

and the CMC opinions of insufficient tox records, 

it's not -- it's a nonstarter. If any individual 

worker monitoring was done, the records are not 

available to the workers as stated in the 

EEOICPA's response to the Board.

Until recently, and I mean within the 

last few years, those records never appeared in 

personnel records or records that were collected

in a DAR, a document acquisition request. So the 

issue with saying that those records are 

available to the worker is a fallacy because 

they're hidden within contract documents and 

documents provided to DOE for filing under 

obscure contract numbers.

Unless you have access to that whole 

line of information, you're never going to find 

it. And to just go looking for it under the 
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current FOIA system as an individual, the cost 

would be prohibitive.

The use by the EEOICPA of time 

weighted averages, now known as TLVs, is false. 

I can tell you as a worker hired in 2001 and my 

training through 2003, we were trained to OSHA 

standards. It was to my dismay in 2003, after my 

accident in 2002, that I was told, well, we don't 

have to abide by OSHA standards. I was told this 

by the US Department of Energy.

In the forward for the history of 

ACGIH, they talk about how many chemicals they 

actually have in their library of known toxic 

agents that cause ill effect. Their -- in their 

current publication, there's only 700 chemicals. 

So I don't know how that could be considered 

protective when there are more than 3000 

chemicals at every DOE site.

There's no evidence to support that 

TLVs provide adequate exposure levels for 

thousands of unstudied chemicals, and there is 

scant evidence that prolonged or constant low 
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level exposure to any chemical is safe. So the 

language that the Department of Labor is 

currently using is not factual.

CHAIR MARKOWTIZ: I'm sorry, one more 

minute.

MS. VLIEGER: One more minute, okay. 

In the FOIA document that Ms. Barrie discussed 

and I've included in my comments, EEOCPIA needs 

to be clear that monitoring exposure criteria 

changed over time. Historically, if there was no 

danger perceived in a chemical, it was not 

monitored.

So, say that we're going to use lower 

levels and that proves -- lower levels as our 

standard, and that proves that they weren't 

exposed if there's no documents is erroneous. 

It's factually incorrect.

EEOICPA requires claimants to provide 

evidence. EEOICPA has not provided evidence for 

why they choose this wording. If there is 

evidence produced, then let's discuss it openly.

As I -- as I've explained, there needs 
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to be things done for protective measures to 

workers on the DOE side. DOL needs to recognize 

they were not done. There are places to get your 

documents for what exposures may have happened, 

but to my knowledge and -- has never been cited 

in any document in a claim.

They -- have they gone to the 

Department of Energy for their accident incident 

reporting? Have they gone to the states and asked 

about accident and injury reporting on DOE side?

On the Advisory Board, you have a 

member, Duronda Pope, who has, in her position 

with the union has access to accident and injury 

reporting, and she can tell you, if those records 

are released, what's going on at this DOE site 

that has to be investigated.

My recommendation to the Board is that 

in lieu of this data collection, because it will 

be almost insurmountable, that they state records 

of adequate toxic exposure monitoring are 

unavailable for EEOICPA workers.

I thank you for this time.
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CHAIR MARKOWTIZ: Thank you.

MS. VLIEGER: And I again thank the 

Board for their service.

CHAIR MARKOWTIZ: Thank you very much.

MS. RHOADS: Okay, next is Elizabeth 

Brooks.

MS. BROOKS: Can you hear me okay?

MR. CHANCE: Yes.

MS. BROOKS: Hello, everyone, thank 

you for this opportunity to speak. My name is 

Elizabeth Brooks, I'm an authorized 

representative for many former and current 

Department of Energy employees throughout the 

country, but primarily the Nevada Test Site and 

other DOE facilities in Nevada. 

What I'm addressing today is the 

subject of chronic silicosis claims under Part B 

of the EEOICPA and the need for revision of the 

procedure manual.

Chronic silicosis is an occupational 

lung disease caused by inhalation of silica dust. 

Many of my Nevada clients have been diagnosed 
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with chronic silicosis, due to the prevalence of 

silicon dioxide crystalline at DOE facilities 

located in the state of Nevada.

Previously, all claimants employed at 

DOE facilities in Nevada where underground mining 

took place were given consideration for chronic 

silicosis under Part B of the Act due to the 

congressional law 42 US Code 7384(r), separate 

treatment of chronic silicosis under Part B, 

which states, A covered employee shall, in the 

absence of substantial evidence to the contrary, 

be determined to have been exposed to silica in 

the performance of duty for the purposes of the 

compensation program if, and only if, the 

employee was present for a number of work days 

aggregating at least 250 work days during the 

mining of tunnels at a DOE facility located in 

Nevada or Alaska for tests of experiments related 

to an atomic weapon.

It has been assumed by some that 

active mining at the Nevada Test Site stopped at 

that time. However, active continues, or did 
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continue let's say, through approximately 2008 at 

the Yucca Mountain Characterization Site Project 

located within the Nevada Test Site. 

And more importantly, underground 

mining in support tests and experiments related 

to atomic weaponry at the U1A Complex also 

located within the Nevada Test Site.

Our nation's atomic testing continued 

through what is known as subcritical nuclear 

experiments. 

On May 6, 2019, the federal EEOICPA 

procedure manual version 3.1 was issued, and the 

employment criteria for chronic silicosis under 

Part B was changed to require that a claimant 

must have been -- this part that I'm reading now 

is the same as it was -- present for an aggregate 

of 250 working days during the mining of tunnels 

at a DOE facility located in Nevada or Alaska for 

tests or experiments related to an atomic weapon, 

Part B claims only.

And then it was added, This tunnel 

work occurred through October of 1992, at which 
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time the unilateral moratorium on nuclear weapons 

testing went into effect. 

Since this change was made in the 

procedure manual, all claimants with employment 

histories that occurred at Nevada Test Site after 

October of 1992, regardless of their aggregate 

work days, have been denied their claims for 

chronic silicosis under Part B.

Enclosed with my public comments are 

three printouts that were procured in January of 

2020 from the website of the Nevada National 

Security Site, formerly known as the Nevada Test 

Site. And I'm not going to have time to get into 

those, but these three articles talk about the 

U1A complex, which is there presently. You know, 

the subcritical experiments that are being done 

there.

Another article speaks about the 

mining of the tunnels. There are photos of them 

lowering the 115,000 pounds of mining equipment 

into the U1A complex.

It is a fact that the mining of 
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tunnels in support of atomic tests or experiments 

has persisted at the Nevada Test Site and Yucca 

Mountain, and specifically in the U1A complex 

well after October of 1992. 

It is my request that the Advisory 

Board undertake discussions to review this 

information and recommend to the DEEOIC that the 

procedure manual be reverted back to what it was 

prior to the Version 3.1 so that claims for 

chronic silicosis under Part B may be adjudicated 

in a manner consistent with the criteria 

originally established by congressional law under 

the EEOICPA.

Many claimants with post-October 1992 

employment at DOE facilities in Nevada were 

approved for chronic silicosis under Part B prior 

to the changes made in the procedure manual on 

May 6, 2019. 

It stands to reason in light of the 

information published by NMSS supporting the 

continued occurrence of mining activities and 

atomic testing that current claims for chronic 
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silicosis under Part B should be treated equal to 

those approved under Part B prior to May 6, 2019, 

when the procedure manual was aligned with the 

original legislation passed by Congress and the 

EEOICPA.

Thank you all so much for your time.

CHAIR MARKOWTIZ: Thank you. 

MS. RHOADS: Okay, next we have Josh 

Artzer.

CHAIR MARKOWTIZ: Josh, are you with 

us? He can't unmute himself.

MR. CHANCE: There we go, Josh, are 

you with us?

CHAIR MARKOWTIZ: He's still not 

unmuted.

MR. ARTZER: There we go, can you hear 

me?

CHAIR MARKOWTIZ: Yes.

MR. ARTZER: Good evening. I'm Josh 

Artzer, and I'm currently an NCO of 23 years at 

the Hanford Site. During my time out here, I've 

also served as the chair and co-chair of our 
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site-wide CBDPP program. And I'm formerly the 

chairman of the Beryllium Awareness Group.

I'd like to start off by saying thank 

you to the Board participation and efforts to 

provide continued improvement to the EEOICPA 

program. The Board's work is necessary and 

valued by the claimants. Thank you.

I'd like to talk about evolving 

diagnosis criteria for beryllium-related diseases 

and conditions. The BeLPT for years was based on 

an abnormal or negative test result. And for 

quite some time now, the term borderline is being 

used to diagnose beryllium sensitization.

The EEOICPA procedure manual does not 

include the term borderline and it seems CEs will 

not accept pre-borderline as an acceptable 

diagnosis for beryllium sensitization. 

Tomorrow's discussion on beryllium diagnosis, 

there will be several documents provided to the 

Board documenting the use of borderline BeLPT for 

diagnosis.

Currently, DOE, OSHA, National Jewish 
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Hospital, and LNI all recognize the borderline 

BeLPT in diagnosing beryllium sensitization. To 

this day, most if not all EEOICPA claims we are 

familiar with at Hanford involving borderline 

BeLPT are denied.

This issue has been primed for 

resolution. I hope the Board will consider and 

provide the DOL with a recommended -- or excuse 

me, with a recommendation to modify the current 

diagnosis criteria to accept borderline BeLPT. 

We have many workers at Hanford stuck in this 

grey area. Not (audio interference) a claim for 

a condition or disease that has been diagnosed by 

a credible clinic, top of their field experts, 

state programs, and federal safety programs.

These individuals will not receive the 

medical surveillance options they deserve until 

this issue has been resolved.

I appreciate the opportunity to speak 

to you all today and thank you for your time.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Melissa Herron.
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MS. HERRON: Can you hear me?

MR. CHANCE: Yes, we can.

MS. HERRON: Okay. My name is Melissa 

Herron. I am currently an employee at the 

Hanford site. I'm an electrician. I've been on 

site now for over 22 years on maintenance and ten 

years prior to construction.

I'm one of those grey areas employees. 

I've had actually five borderline tests. I have 

been diagnosed as sensitized by both the 

Cleveland Clinic and the multiple medical 

providers. I'm being treated just like my 

coworkers who have had their positive BeLPT. I 

no longer can work in a beryllium area. I am 

kept out of potential overtime based on my BeLPT 

borderline test. 

So I am just asking for you to 

recognize and make a recommendation to DOL that 

you can assess the borderline criteria as put 

forth with the documentation that you will be 

looking at tomorrow.

That's all I have to say, thank you 
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for your time.

CHAIR MARKOWTIZ: Thank you very much.

MS. RHOADS: Next is, I'm sorry, 

Marieca Sharp.

MR. BIRD: Marieca, are you with us?

MS. RHOADS: Okay. If we don't have 

Marieca Sharp, we can go to Dale Fish.

MR. BIRD: Carrie, again, I believe 

these people are calling in together. Is that 

correct?

MS. RHOADS: They should have been on 

the same -- the same line.

MR. BIRD: Yeah, there must be a --

there must be a connection issue or something. 

Hold on a second.

MS. SHARP: Can you hear?

MS. RHOADS: Okay, how about -- yeah, 

we can.

MR. BIRD: Yes.

MS. SHARP: Okay, hello, this is 

Marieca Sharp.

CHAIR MARKOWTIZ: Hi, we're getting 
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background. Could you please turn your speakers 

off in the background?

MS. SHARP: Okay, is that good?

CHAIR MARKOWTIZ: Yes.

MS. SHARP: Okay, I'm a 38-year 

employee at Hanford. Currently the co-chair for 

the BAG team or group, which is a Beryllium 

Awareness Group. And I had been diagnosed as 

sensitized. And I, you know, see a lot of people 

in our group that have these borderlines. And 

they are having all the same issues that everyone 

else has.

And I just wanted to say that, you 

know, it's -- I think it has to do a lot with the 

person's immunity and how their -- their body is 

going to react to a lot of these substances. You 

know, I've always had strong immunities and I 

think my -- I worked two years in a facility that 

had beryllium. 

I was put in a beryllium zone every 

day and in that two years, my tests went from 

zero off the chart to like the hockey stick. And 
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you know, I just think that's due to my person 

immune system. And other people that have a lower 

response, they just -- they get these 

borderlines, but that doesn't mean they have 

exposures.

And I just, in listening today, I see 

you guys talk about, you're focusing a lot on 

people's job titles and their exposure, I think. 

We just changed our questionnaire to, for 

history, to focus more on a person's job tasks 

and not so much on what their specific job title 

was. And I think you miss a lot in focusing on 

that. 

And then just in listening to your 

meeting today, I noticed you had talk about 

chemicals and radiation exposures and not 

relating those. And as a, you know, worker, I 

mean, I've worked all my life with radiation at 

Hanford that only came with another chemical. It 

wasn't there by itself. So I don't know how 

you're not relating the two as an exposure.

And then in terms of monitoring, you 
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say, you know, there's no evidence of exposures, 

you know, we've monitored. Well, I've only seen 

monitoring really become really acute in the last 

few years. And you know, back in the 80s, late 

80s, I didn't see hardly any monitoring of a lot 

of things other than radiation.

And you know, when you look at 

exposures, you need to ask, you know, if a person 

like they only got work in a job for a year, 

well, what was their exposure level? Was it an 

acute exposure, or you know, was it a chronic low 

dose over a long time? The same as you look at 

radiation you should look at the chemical 

exposures.

And I think that's -- I think that's 

all I have to say. I just wanted to point out a 

few -- a few items that I noticed. And I just to 

-- include -- include the borderlines in your --

your criteria. Thank you. I'll pass it to the 

next person.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Okay, next is Dale Fish.
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MR. FISH: My name's Dale Fish, I'm a 

teamster out at the site. I've been out since 

2009. And I'm growing sensitized. And I'll tell 

you what, I'm sure that everybody knows there's 

no beryllium out at Hanford, but we still get 

cases every, every month. 

So this is a real problem out here, 

and I wish you'd take care of the people that 

have the pre-borderlines. That's all I have to 

say.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Next is Aaron Burt.

MR. BURT: Yeah, my name is Aaron and 

I've been a Hanford workers for 13 years. I just 

want to be another voice for those that want to 

see a change in the diagnosis criteria. Because 

there's a lot people falling through the cracks, 

and I'm one of them.

I had two borderlines, and I was 

diagnosed with chronic beryllium disease by the 

leading hospital in the nation for respiratory. 

And I had to fight for two years with DOL to get 
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a claim, and they still denied my claim, even 

though. 

So the medical doctor says yeah, you 

have it, but then there's a outdated piece of 

paper that says I don't. So I'd like to see some 

change there.

CHAIR MARKOWTIZ: Thank you.

MR. BURT: Yup.

MS. RHOADS: Roger Torrie.

MR. TORRIE: Hi, my name is Roger 

Torrie. I've been a heavy equipment mechanic out 

here in Hanford for 16 years. The only thing --

I'll make it short and sweet. I just wish you'd 

take the three borderlines and give it a -- give 

it a positive so that we can create an accurate 

program for the workers out here.

Thanks for your time.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Steve Halternman.

MEMBER POPE: Steve Halterman was 

unable to make it. Aaron Keck is going to step 

into his place.
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MS. RHOADS: Okay, go ahead.

MR. KECK: Thank you for your time 

this afternoon. My name is Aaron Keck. I am a 

Hanford worker of about ten years, and affected 

beryllium workers diagnosed off of three 

borderlines. Recognized by both Washington 

State, Department of Energy, and the top medical 

facilities, you know, leading in the world.

It only seems reasonable that it would 

also be -- for the diagnosis to change to follow 

along with the others. Thank you for your time.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Okay, Toni Winborg.

MS. WINBORG: Hi, this is Toni 

Winborg. I appreciate your time.

I worked on the DOE Superfund site at 

Hanford for 38 years as a lab technician, most of 

the time without an industrial hygiene program in 

place. I had documented exposure to beryllium in 

2007 and have worked in many buildings and areas 

that are now or were prior to demo listed as 

beryllium facilities.
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2012 I received three borderline BeLPT 

results. In addition, after that I received 

multiple borderlines. I went to National Jewish 

in 2015 and was officially diagnosed as being 

beryllium sensitized, even though was preborderline, even though DOL does not acknowledge 

that and EEOICPA claims.

2021, I was retiring and took my last 

physical and received my abnormal at that time. I 

had not thrown an abnormal prior to that. If I 

had not thrown that abnormal prior to that

physical, I would have continued to be in limbo 

medically because the Department of Labor does 

not acknowledge the three borderline results as 

being beryllium sensitized.

National, international, and medical 

groups including in 2008 Energy Facility 

Contractors Group, 2014 American Thoracic 

Society, 2015 Washington State Department of 

Labor and Industry, and 2017 OHSA all defined to 

include three borderline BeLPT results as a, 

quote, Confirmed positive.
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DOE diagnosed criteria for beryllium 

and sensitization needs to be updated to include 

the following: two abnormal BeLPT results, a 

abnormal or a borderline result, or three 

borderline BeLPT results. It's leaving a lot of 

people without any kind of medical -- well, not 

just compensation but monitoring.

So I would really appreciate that that 

be looked at and possibly changed. I really 

appreciate your time. Thank you, and have a 

great day.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: And Stephanie Carroll.

MR. BIRD: Ms. Carroll, are you with 

us?

MS. CARROLL: Yes, I'm here, can you 

hear me?

MR. BIRD: Yes, we can.

MS. CARROLL: Okay, thank you. My 

name's Stephanie Carroll and I'm an authorized 

rep specializing in chronic beryllium disease. 

Ninety percent of my claims are approved with 
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negative beryllium tests for chronic beryllium 

disease under B.

I wasn't going to talk about beryllium 

disease until I heard all of the workers 

discussing their issues. Beryllium sensitivity 

has been defined in (audio interference). It's 

established as an abnormal beryllium lymphocyte 

proliferation test performed on either blood or 

(audio interference).

Borderlines are evidence of a 

lymphocytic response to beryllium. When a BeLPT 

is billed to the Department of Labor, it's 

actually billed not as one test but as six tests. 

So each -- each result letter the workers get is 

really the result of six tests that were done on 

those different days.

So in my book, you are with one 

borderline even after a lymphocytic response. 

Two berylliums and it's proving your exposure. 

Pennsylvania University has already noted that 

these BeLPTs have a virtually impossible chance 

of showing positive unless you've been exposed to 
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beryllium. So even a borderline is showing 

exposure.

Anyway, that's my beryllium talk.

The other thing was Dr. Markowitz 

spoke about there being a commenter on the DOL 

SEM library, and I believe that was me. So I 

have documentation of the DOL library that 

supports all of the SEM. So an example would be, 

and I'll send one of these in with my comments, 

is I have one right here. It's the Rocky Flats 

Building 776, 777.

And it is supported by the DOL 

Document No. 0500045, and the title is EG&G 

industrial hygiene work. So before this became 

public, the CEs and everybody at the DOL what 

documentation was supporting everything in SEM. 

And there is a DOL library, unless they turned it 

over to Paragon so that if (audio interference).

Even when it's in that library, it 

exists. And all of that documentation is 

unclassified. Because on the SEM website health 

guide, it states that the SEM uses unclassified 
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information made available by the Department of 

Energy. And now it belongs to the DOL. All of 

that was mandated by the program. 

Okay, so that's the issue with the SEM 

library. I would like you all to get at least a 

index of that library, which would at least 

(audio interference).

My other issue (audio interference) is 

relying on impermissible factors when 

adjudicating claims using the presumption. 

Hearing loss is an example of the Agency not 

following the clear language of the Act. 

To be approved under Part E, you have 

to prove that it's at least as likely as not that 

exposure to a toxic substance at a DOE facility 

was a significant factor in aggravating, 

contributing to, or causing the illness.

And the second criteria, that it is at 

least as likely as not that the exposure to such 

toxic substance was related to employment at the 

DOE facility. That is a lot less stringent than 

these presumptions have been alluding to.
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So with all these attorneys on the 

line, it would be great if someone would take 

this to District Court, all of these presumptions 

that are so stringent, especially the hearing 

loss.

Also in the Act, the time of injury 

has been defined as the last day of employment. 

So in other words, the Act and Congress believe 

that your last day of injury was going to be the 

last day that you were employed at that site. 

Not that you were exposed to a specific toxin, as 

the DOL keeps insinuating.

Let's see, for the hearing loss, 

challenges to that standard are not communicated 

in development to the claimant, even though it 

says that as part of development, it should be 

told that they can challenge presumption.

It also says in the procedure manual, 

The claims filed for hearing loss that do not 

satisfy the standard outlined in the section 

cannot be accepted because it represents the only 

scientific basis for establishing work-related 
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hearing loss due to exposure to a toxic 

substance.

This just simply is untrue, and I'm 

sure the Board would agree, that exposure to 

heavy metals a central nervous system effect and 

can affect your hearing also.

I have a claimant right now who was a 

hazardous waste worker. He was an NDT, nondestructive testing technician -- technician, an 

RCT, and a filter tech. All of his job 

descriptions describe exposure solvents. He has 

probative exposure in his medical evidence 

showing he was exposed to trike (phonetic) at 

different levels. And a hazardous waste workers 

has been defined by the Department of Energy in 

his records as a worker that is known to be 

exposed at above safety standards for more than 

30 days a year. That's a hazardous waste worker, 

that's been defined. It's in the Rocky Flats 

records.

So the presumption have -- I feel like 

the Department of Labor is using these 
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presumptions to slowly eat away at the Act. The 

Act was very clear on the presumption of 

exposures to toxins on site and long latencies. 

And the causation of those exposures and how it 

affects the workers.

But presumptions were also done by 

Econometrica in 2005. And Econometrica did a 

report, they were contracted by the DEEOIC in 

2005 to support the Part E program. And they 

viewed the former worker program needs 

assessments to determine what presumptions should 

be evaluated.

So they had a list of the most -- the 

most -- sorry, I'm getting so much feedback that 

it's hard for me. Anyway, the Econometrica was 

based on former worker program needs assessments, 

which I can't even find those online anymore. 

But those needs assessments 

established the toxins that were common and the 

connection to the diseases that workers were 

suffering from, which also was the basis for all 

the testing.
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Anyway, so that's what I have to say 

about my issues today. But the beryllium issue 

is just outrageous, because I even have 

documentation of Dr. Lee Newman (phonetic) saying 

a borderline is abnormal, which matches the 

language of the Act, which is an abnormal finding

of beryllium.

So I will put all of these comments 

online, and then if anybody needs to reach me, I 

think my contact information will be there.

CHAIR MARKOWTIZ: Thank you very much.

MS. CARROLL: Thank you for listening. 

All right, bye-bye.

CHAIR MARKOWTIZ: Thank you.

MS. RHOADS: Okay, that was our last 

public commenter, I think. So Dr. Markowitz, 

unless you have something else that you want to 

talk about today, we can go ahead adjourn the 

meeting.

CHAIR MARKOWTIZ: Okay, well, just a 

moment. Tomorrow we're going to resume various 

issues, you'll see them on the agenda. 
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I recommend to the Board members that 

you take a look at the responses with regard to 

the industrial hygiene language from the DOL. 

And also take a look at the procedure manual 

regarding beryllium, because we're going to 

discuss this issue of beryllium sensitivity at 

four o'clock. 

Mr. Tebay provided us with some 

documents. And Carrie, have they been sent to 

the Board members?

MS. RHOADS: I'll make sure that 

they're sent to the Board members. But they're 

also posted on the website now.

CHAIR MARKOWTIZ: Okay, good. Yeah, 

that's what -- that was going to be my next 

question. So we have a -- well, we'll have a lot 

to do tomorrow, but that's good. We'll get it 

done.

Thank you very much, everybody. Thank 

you to the Board members, to DOL, to the public 

commenters for a productive afternoon. And we'll 

continue tomorrow afternoon.
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Anything -- if there's anything else, 

Mr. Chance?

MS. RHOADS: We don't have anything 

else. The meeting is adjourned until tomorrow at 

one o'clock. Thanks, everybody.

(Whereupon, the above-entitled matter 

went off the record at 5:27 p.m.)