1

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

UNITED STATES DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES

AND WORKER HEALTH

+ + + + +

MEETING

+ + + + +

TUESDAY

JANUARY 30, 2018

+ + + + +

The Subcommittee met telephonically at 

1:00 p.m. Eastern Time, Steven Markowitz, Chair, 

presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

JOHN M. DEMENT

MARK GRIFFON

KENNETH Z. SILVER

GEORGE FRIEDMAN-JIMENEZ

LESLIE I. BODEN

MEDICAL COMMUNITY:

STEVEN MARKOWITZ, Chair

LAURA S. WELCH

ROSEMARY K. SOKAS

CARRIE A. REDLICH

VICTORIA A. CASSANO
2

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

CLAIMANT COMMUNITY:

DURONDA M. POPE

KIRK D. DOMINA

GARRY M. WHITLEY

JAMES H. TURNER

FAYE VLIEGER

DESIGNATED FEDERAL OFFICIAL:

DOUG FITZGERALD

ALSO PRESENT:

KEVIN BIRD, SIDEM

CARRIE RHOADS, Alternate DFO
3

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

C-O-N-T-E-N-T-S

Respond to program's recommendation ........... 4

responses and requests for information

 Draft on IOM databases ..................... 12

 Draft on hiring former workers ............. 22

 Draft on physicians/organizations .......... 32

structure

 Draft on IH/CMC viewing entire case file ... 40

 Draft on asbestos recommendation ........... 45

 Draft on work-related asthma ............... 71

 Draft on COPD .............................. 89

 Draft on OHQ changes ...................... 105

 Draft on science/technical capacity ....... 112

 Draft on quality assessment CMC/IH ........ 116

Subcommittees ............................... 128

Administrative issues ....................... 147

Adjourn ..................................... 153
4

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 P-R-O-C-E-E-D-I-N-G-S

2 1:06 p.m.

3 OPERATOR: Welcome. Thank you for 

4 standing by. Throughout today's conference, all 

5 participants will remain in listen-only mode. 

6 Today's conference is being recorded. If you have 

7 any objections, you may disconnect at this time. 

8 And I'll turn your conference over to Doug 

9 Fitzgerald from the Department of Labor. Thank 

10 you, you may begin.

11 MR. FITZGERALD: Good afternoon, 

12 everyone. I'm Douglas Fitzgerald and I would like 

13 to welcome you today to this meeting at the 

14 Department of Labor's Advisory Board on Toxic 

15 Substances and Worker Health. I'm the Board's 

16 Designated Federal Officer, or DFO.

17 First, on behalf of the Department of 

18 Labor, I would like to express my appreciation for 

19 the hard work of our board members over the past 

20 months in preparing for these public meetings and 

21 for their forthcoming deliberations.

22 I also wish to thank my colleagues here 
5

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 at the Department of Labor for all their efforts 

2 in preparing for today's meeting, and in particular 

3 Carrie Rhoads, our committee staff and alternate 

4 DFO, and Kevin Bird of our SIDEM staff who always 

5 does a terrific job of preparing for these meetings 

6 and running them virtually as well.

7 As DFO, I serve as the liaison between 

8 the Board and the Department. I'm also responsible 

9 for ensuring all provisions of the Federal Advisory 

10 Committee Act, or the FACA, are met regarding the 

11 operations of the Board.

12 I work closely with the Board's Chair, 

13 Dr. Markowitz, and I'm responsible for approving 

14 the meeting agenda and for opening and adjourning 

15 these meetings. I also work with the appropriate 

16 agency officials to ensure that all relevant ethics 

17 regulations are satisfied.

18 Copies of all meeting materials and 

19 public comments are or will be available on the 

20 Board's website under the heading Meetings. I 

21 should note, however, that since some of the 

22 documents that we'll be discussing today arrived 
6

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 too late for posting on the web, they will appear 

2 on the website tomorrow. But they will be viewable 

3 in WebEx as we have those discussions.

4 The Board's website can be found at 

5 dol.gov/owcp/energy/regs/compliance/advisoryboar

6 d.htm, or you can simply Google Advisory Board on 

7 Toxic Substances and Worker Health and it's likely

8 to be the first one that comes up.

9 On that page you also see instructions 

10 for participating remotely today. And it should 

11 be noted that there's no public comment period 

12 scheduled for this full board meeting.

13 If you are joining by WebEx, please note 

14 that this session is for viewing only and will not 

15 be interactive. During the meeting, I would 

16 request that members be mindful of background noise 

17 in their locations, and to place your phones on 

18 mute when possible if you are not presenting or 

19 engaged in direct discussion with other members 

20 since we're recording the meeting to produce 

21 transcripts and to ensure the public can hear.

22 The FACA requires that minutes of this 
7

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 meeting be prepared to include a description of 

2 the matters discussed and the conclusions reached 

3 by the Board. As DFO, I ensure that the minutes 

4 are prepared and certified by the Board's Chair. 

5 The minutes of today's meeting will be available 

6 on the Board's website no later than 90 calendar 

7 days from today per FACA regulations, but if 

8 available sooner, it will be published before the 

9 90th day.

10 Also, although formal minutes will be 

11 prepared because required by the FACA regulations, 

12 we will also be publishing verbatim transcripts 

13 which are obviously more detailed in nature. We'll 

14 work to see those transcripts will be available 

15 on the Board's website within the next several 

16 weeks.

17 Now with that, let me just go through 

18 a quick roll call and make sure we have all the 

19 Board present before I turn it over to Dr. 

20 Markowitz. So, Dr. Dement?

21 MEMBER DEMENT: Present.

22 MR. FITZGERALD: Dr. Silver?
8

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 (No audible response.)

2 MR. FITZGERALD: Dr. Silver?

3 (No audible response.)

4 MR. FITZGERALD: We'll come back to Dr. 

5 Silver. Mark Griffon, Mr. Griffon?

6 MEMBER GRIFFON: Yes, I'm here.

7 MR. FITZGERALD: Dr. 

8 Friedman-Jimenez?

9 MEMBER FRIEDMAN-JIMENEZ: Present.

10 MR. FITZGERALD: Dr. Boden?

11 MEMBER BODEN: Here.

12 MR. FITZGERALD: Dr. Redlich?

13 MEMBER REDLICH: Yes.

14 MR. FITZGERALD: Dr. Cassano?

15 MEMBER CASSANO: Here.

16 MR. FITZGERALD: Dr. Welch?

17 MEMBER WELCH: Here.

18 MR. FITZGERALD: Dr. Sokas?

19 MEMBER SOKAS: Here.

20 MR. FITZGERALD: Ms. Pope?

21 MEMBER POPE: Here.

22 MR. FITZGERALD: Ms. Vlieger?
9

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER VLIEGER: Present.

2 MR. FITZGERALD: Mr. Turner?

3 MEMBER TURNER: Here.

4 MR. FITZGERALD: Mr. Whitley?

5 MEMBER WHITLEY: Here.

6 MR. FITZGERALD: Mr. Domina?

7 MEMBER DOMINA: Here.

8 MR. FITZGERALD: And Dr. Silver?

9 MEMBER SILVER: Here.

10 MR. FITZGERALD: Okay. And lastly, 

11 Chairman Markowitz?

12 CHAIR MARKOWITZ: Here.

13 MR. FITZGERALD: With that, Mr. 

14 Chairman, I turn it over to you.

15 CHAIR MARKOWITZ: Thank you, Doug. 

16 Also thank you Carrie and Kevin for supporting this 

17 meeting and all of our activities. I would like 

18 to welcome everybody back to this Board meeting 

19 by telephone which isn't optimal, but it's 

20 efficient and we will get our work done.

21 I want to also welcome the public, I 

22 don't know how many members of the public are on 
10

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 the phone, but we are happy to have you listen. 

2 Unfortunately we're not able to have a public 

3 comment period.

4 Some of what we'll do today is on, we'll 

5 discuss is on our website, ABTSWH. All you have 

6 to do is google that and look at today's meeting, 

7 and you'll see about five or six documents that 

8 we will discuss.

9 Several of the documents we'll discuss 

10 did not make it to the website as Doug mentioned 

11 due to the tardiness of myself and a few select 

12 other members of the Board in terms of getting the 

13 materials to Carrie.

14 But in any case, we're going to run 

15 through all these things today on the WebEx and 

16 by discussion. So hopefully the members of the 

17 public will be able to keep up.

18 I want to take note of sad event, that 

19 the passing of Jim Melius who was an occupational 

20 medicine physician, he passed away January 1st. 

21 He's a friend of many of us and a colleague.

22 He was for 17 or 18 years chair of the 
11

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Radiation Advisory Board of the DOE, and also within 

2 New York State instrumental in establishing the 

3 permanent health program and the compensation 

4 program for World Trade Center workers.

5 He did many other things at a federal 

6 level with NIOSH, at a state level within the New 

7 York State Department of Health over the last 20 

8 years, New York State laborers. Many things in 

9 his career, and we will miss Jim sorely.

10 The agenda for today is basically to 

11 review our draft replies to Department of Labor's 

12 comments on our recommendations. We discussed 

13 these issues at the last Board meeting, and what 

14 we're going to review is text that hopefully 

15 summarizes our opinions and responses, in some 

16 instances revisions of recommendations.

17 We will vote on each of these today. 

18 This Board continues, all but one member continue 

19 until February 16th. Faye Vlieger's term 

20 continues over several weeks after that meaning, 

21 I guess, Faye, you'll get to vote on whatever you 

22 need to vote on during those weeks.
12

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 But in any event, the schedule from 

2 today until February 16th is that we will vote on 

3 ten items today, the comments. And we will permit 

4 limited word changes in what we vote on today over 

5 the next week or so and then submit the final 

6 documents to Department of Labor within the next 

7 ten days or so, if that makes sense.

8 Most of today's agenda revolves around 

9 ten comments or recommendations. If we detect that 

10 there's time, we may hear news or any reports from 

11 any subcommittees if there is any.

12 And finally, we, if there's time we 

13 might discuss topics we think that the next Board 

14 should address. We won't vote on those. Those 

15 are just ideas that which we will write up and float 

16 for the next Board. We did that preliminarily at 

17 the end of the last meeting. I just want to 

18 continue that process if there's time.

19 Any comments or questions? We will 

20 take a break at, you know, roughly 2:30, quarter 

21 of 3:00. And otherwise, let's start. We can start 

22 with the draft on the IOM databases. This is 
13

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Recommendation number 2 from October, 2016.

2 First of several recommendations from 

3 October 2016. We're not going to read these draft 

4 responses because they're long, and there's no need 

5 to read them. But I would ask the drafter to 

6 summarize it and then open it up for questions, 

7 comments. So I think, Laurie, I think this is 

8 yours.

9 MEMBER WELCH: Yes. I'm ready.

10 CHAIR MARKOWITZ: Okay.

11 MEMBER WELCH: Okay, the Board saw 

12 a previous draft of this at our last meeting. And 

13 the Board recommended that, and I had proposed with 

14 that draft that the Department incorporate data 

15 from IARC and from EPA's IRIS database to expand 

16 the causal links between exposure and disease in 

17 SEM.

18 And at the Board Meeting, several 

19 people recommended, and there was a consensus, we 

20 should also recommend that at the same time instead 

21 of just the two databases we add the National 

22 Toxicology Program.
14

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 So I did that. I added that. And what 

2 you can see now is IARC and IRIS. And if you scroll 

3 down a little bit more you'll see that we have, 

4 I added National Toxicology Program as well, just 

5 you know, a paragraph stating what the NTP is and 

6 then added under the process that NTP should be 

7 added in the same way we're recommending adding 

8 the other databases.

9 And that's pretty much what we're 

10 covering. What's here is that the recommending 

11 that the Department review IARC Group 1 and Group 

12 2A carcinogens, and the IRIS database and the NTP 

13 will incorporate those causal links into the SEM. 

14 And that's it. Open for comments.

15 CHAIR MARKOWITZ: This is Steve 

16 Markowitz. So I keep a couple of suggestions. 

17 One is in the additional description of these 

18 various sources that you, and the term 

19 peer-reviewed because these are authoritative 

20 sources. And as though asking the lead for DOL 

21 to reinvent anything. So I would just add that 

22 term. And my other --
15

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER WELCH: Okay. Yes. I will.

2 CHAIR MARKOWITZ: -- suggestion under 

3 the recommended process actually, Kevin, if you 

4 could -- oh, yes. No we're looking at, under one, 

5 it says here DEEOICP should identify team that was, 

6 that these recommendations includes individuals 

7 with competence in toxicology. I would add 

8 epidemiology and occupational medicine just to make 

9 it clear.

10 MEMBER WELCH: Okay. I think that's 

11 a good idea. Let me ask you about process. Should 

12 we at this point see if there are anybody on the 

13 Board objects to those changes, because they sound 

14 good to me.

15 MEMBER FRIEDMAN-JIMENEZ: This is 

16 George. I strongly support it because, for 

17 example, NTP bases it's known human carcinogen on 

18 the epidemiology. It has to have human evidence 

19 and the toxicology is secondary. So I'm strongly 

20 in support of adding epidemiology and occupational 

21 medicine, which is really about the causal 

22 inference.
16

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER WELCH: Do you want to, can we 

2 edit it now on the screen or should I make those 

3 changes and send another draft? It's easy enough 

4 to add it. Under Number 1 we would add competence 

5 in toxicology, occupational medicine, and 

6 epidemiology.

7 CHAIR MARKOWITZ: You know -- this is 

8 Steve Markowitz. It's unclear to me where 

9 epidemiology really exists in OWCP. I don't know 

10 where, my sense is that the Paragon contractor is 

11 that it's mostly focused on exposure assessments, 

12 I could be wrong.

13 And then we've heard about occupational 

14 medicine, toxicology within OWCP, or specifically 

15 within DEEOICP. And we really haven't heard at 

16 all of epidemiology.

17 So it's one of the questions I think 

18 that Ms. Leiton was going to get back to us about 

19 exactly what the range of skills that the Paragon 

20 had or brought to the project. But we'll find that 

21 out I think in the future.

22 MEMBER WELCH: If I remember -- this 
17

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 is Laura Welch again. If I remember on the previous 

2 recommendation where we recommended incorporating 

3 all the resources in the table. I did have more 

4 of a rational that talked about these sources being 

5 peer-reviewed. It's possible to incorporate that 

6 into this and making it a more complete 

7 recommendation. It does refer back to the old one, 

8 which I will.

9 CHAIR MARKOWITZ: Yes, yes. No, this 

10 is Steven. That's a good point, actually. Your 

11 response should be viewed supplemental to a prior 

12 recommendation because you really haven't changed 

13 anything. You've really just filled out what the 

14 recommendation is.

15 MEMBER WELCH: Right.

16 CHAIR MARKOWITZ: Whereas there's 

17 another recommendation actually which revised 

18 things. Any other comments on this, or should we 

19 move on?

20 (No audible response.)

21 CHAIR MARKOWITZ: No other comments.

22 MEMBER FRIEDMAN-JIMENEZ: This is 
18

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 George. A question. Do you think we should also 

2 add industrial hygiene?

3 MEMBER WELCH: You know, what we're 

4 really looking at is we're having people go through 

5 peer-review databases. And you're asking them to 

6 accept what has already been peer-reviewed and 

7 determined by these agencies to be a valid causal 

8 link. You don't want to do too much second guessing 

9 of those. But I don't think --

10 MEMBER DEMENT: This is John, I thought 

11 of that too, but I had the same sort of thought 

12 as Laurie. You know these are already exposure 

13 response patterns that have already been reviewed 

14 and accepted. So I'm not sure exposure assessment 

15 needs to be thrown into there. It's mostly the 

16 causal link and accepting those causal links and 

17 how to get them into that form.

18 CHAIR MARKOWITZ: Other comments?

19 MEMBER CASSANO: Dr. Cassano. I tend 

20 to agree with the last two speakers. I think the 

21 more we add to this, the more complicated it looks 

22 and the more complicated it looks and the more 
19

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 onerous it appears to the agency. So I would 

2 recommend that we just keep it the toxicology, 

3 occupational medicine, and epidemiology.

4 MEMBER FRIEDMAN-JIMENEZ: Sounds good 

5 to me.

6 CHAIR MARKOWITZ: Ken, I know you're 

7 not, I think you're not looking at the screen. 

8 Do you have any questions in particular about the 

9 content here?

10 MEMBER SILVER: I agree with the last 

11 several speakers. Keep it simple, and the causal 

12 links are already established.

13 CHAIR MARKOWITZ: So are there other 

14 comments? Otherwise, we'll vote on this.

15 (No audible response.)

16 CHAIR MARKOWITZ: Okay, so the motion, 

17 is there a motion?

18 MEMBER WELCH: Well I noted, but I move 

19 that we approve it.

20 MEMBER SOKAS: I second.

21 MR. FITZGERALD: Dr. Markowitz, this 

22 is Doug. I think you should probably at least by 
20

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 voice vote agree to the changes before you adopt 

2 the recommendation. And then we can do the roll 

3 call.

4 CHAIR MARKOWITZ: You're suggesting 

5 that we vote on the modifications first and then 

6 --

7 MR. FITZGERALD: Yes.

8 CHAIR MARKOWITZ: As opposed to just 

9 voting on the modified statement or recommendation.

10 MR. FITZGERALD: I think you can take 

11 by voice vote or just ask if there are any objections 

12 to the modified language, and then we will note 

13 that if there aren't any that it was unanimous and 

14 then move the whole recommendation.

15 CHAIR MARKOWITZ: Okay, thanks. Are 

16 there any objections to the minimal changes that 

17 we've mentioned so far?

18 MEMBER FRIEDMAN-JIMENEZ: I don't 

19 object, but I have a question on Number 4. So you 

20 specified Group 2A, hierarchy 2A, that's the 

21 probable human carcinogens. 2B is possible human 

22 carcinogens. And it's a different and much larger 
21

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 group.

2 MEMBER WELCH: Thank you. I think we 

3 should say 2A, and that was my understanding. 

4 You're right, it doesn't say that. So if people 

5 are okay with that, unless there's any objection, 

6 we'll make it 2A.

7 (No audible response.)

8 CHAIR MARKOWITZ: Sounds good. Are 

9 there any other comments?

10 (No audible response.)

11 CHAIR MARKOWITZ: Okay. So Doug, you 

12 want to take a roll call for this?

13 MR. FITZGERALD: Sure. If hearing no 

14 objections to the modifications in the language 

15 and have someone move for the adoption of this 

16 recommendation with modifications.

17 MEMBER WELCH: Yes, I did.

18 MR. FITZGERALD: Okay. And that is 

19 who?

20 MEMBER WELCH: Dr. Welch.

21 MR. FITZGERALD: Dr. Welch. Okay.

22 MEMBER CASSANO: Dr. Cassano seconds.
22

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Okay, thank you. 

2 Okay, I will take the roll then. Dr. Dement.

3 MEMBER DEMENT: Yes.

4 MR. FITZGERALD: Dr. Silver.

5 MEMBER SILVER: Yes.

6 MR. FITZGERALD: Mr. Griffin.

7 MEMBER GRIFFON: Yes.

8 MR. FITZGERALD: Dr. 

9 Friedman-Jimenez.

10 MEMBER FRIEDMAN-JIMENEZ: Yes.

11 MR. FITZGERALD: Dr. Boden.

12 MEMBER BODEN: Yes.

13 MR. FITZGERALD: Dr. Redlich.

14 MEMBER REDLICH: Yes.

15 MR. FITZGERALD: Dr. Cassano.

16 MEMBER CASSANO: Yes.

17 MR. FITZGERALD: Dr. Welch.

18 MEMBER WELCH: Yes.

19 MR. FITZGERALD: Dr. Sokas.

20 MEMBER SOKAS: Yes.

21 MR. FITZGERALD: Ms. Pope.

22 MEMBER POPE: Yes.
23

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Ms. Vlieger.

2 MEMBER VLIEGER: Yes.

3 MR. FITZGERALD: Mr. Turner.

4 MEMBER TURNER: Yes.

5 MR. FITZGERALD: Mr. Whitley.

6 MEMBER WHITLEY: Yes.

7 MR. FITZGERALD: Mr. Domina.

8 MEMBER DOMINA: Yes.

9 MR. FITZGERALD: And Chairman 

10 Markowitz.

11 CHAIR MARKOWITZ: Yes.

12 MEMBER WELCH: Before you close the 

13 document, we did decide that under Number 4 we 

14 should have it say IARC Group 2A. Just get a little 

15 A in there. And I'll note we did agree to that. 

16 Thank you.

17 MR. FITZGERALD: Yes, so noted.

18 CHAIR MARKOWITZ: Okay. The next one 

19 is recommendation Number 3 from October, 2016 about 

20 hiring former DOE workers to administer the 

21 occupational health questionnaire. Okay. So 

22 it's being brought on the screen.
24

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Let me just summarize, this is my 

2 write-up. So let me summarize the sequence. You 

3 know, we recommended that they hire former DOE 

4 workers at the resource centers to do the 

5 occupational health questionnaire. And DOL's 

6 response to that was basically they agree it's 

7 beneficial.

8 In fact, out of the 60 employees at the 

9 resource centers, 17 are former DOE workers. And 

10 that they encourage the contractor to recruit 

11 former DOE workers. And whoever does the 

12 occupational health questionnaire, the DOL makes 

13 sure they are adequately trained and skilled to 

14 do it.

15 So, that was DOL's response to us, our 

16 recommendation. And so what I formulated here is 

17 a recognition that we agree about the importance 

18 of using former DOE workers. And we recognize the 

19 DOL makes a commitment to hire, or at least 

20 encourage at the hiring of DOE workers.

21 But then in what you're looking at, I 

22 pose a number of questions that really get to the 
25

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 detail about how the former DOE workers are used 

2 at the resource centers to perform this function. 

3 And let me just review them.

4 I know Ken isn't looking at it, but so 

5 how many of these at least 17 DOE workers who are 

6 currently employed spend at least a third of their 

7 time administering the occupational health 

8 questionnaire in the past year?

9 The one third of their time is 

10 arbitrary, but I wanted to put a number on it rather 

11 than say, you know, something like substantial. 

12 The second question is what percentage of the 

13 occupational questionnaires were administered by 

14 former DOE workers during the past year.

15 These two questions are trying to drill 

16 down into yes, you have former DOE workers there.

17 We don't know exactly what they're doing to tell 

18 us whether they are actually doing the occupational 

19 health questionnaire. And if those data are hard 

20 to come by, develop those data and consider using 

21 them as metrics.

22 The third question is what job titles 
26

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 the former DOE workers had when they worked at DOE? 

2 Did they occupy job titles that are highly relevant 

3 to the kind of exposures that people had at the 

4 sites. And thereby, you know, they would be better 

5 able to ask the questions about out the occupational 

6 health questionnaire.

7 And then the fourth question is, are 

8 there resource centers which aren't doing so well 

9 in this score of former of DOE workers that below 

10 average in employing former DOE workers, or 

11 administering the occupational questionnaire by 

12 DOE workers?

13 And then finally, does the resource 

14 center do job vacancy notices. And the 

15 recruitments here specifically address the 

16 desirability about having former DOE workers work 

17 at the resource centers to do the occupational 

18 health questionnaires.

19 So, this is about getting greater 

20 detail to see whether the former DOE workers 

21 actually are doing what we think they should be 

22 doing at a minimum in terms of obtaining better 
27

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 quality information on the occupational health 

2 questionnaire.

3 So let me just point out one last thing, 

4 which is this is not a revised recommendation 

5 telling, to the extent that we're advising the DOL, 

6 to be more proactive in ensuring the DOL workers, 

7 DOE workers are hired at the resource centers. 

8 This is much more getting additional information 

9 which then could be followed by a stronger 

10 recommendation.

11 But let me leave it at that and open 

12 the floor for comments, questions?

13 MEMBER CASSANO: Steve, this is Dr. 

14 Cassano. I think I had written a comment to you 

15 prior without sending it to the entire group, 

16 unfortunately. As I remember, the resource 

17 centers are run by contractors.

18 And I thought it might be appropriate 

19 as part of our ask to ask that we either look at 

20 the RFP or the actual contract language to see how 

21 that encouragement is worded. And though we're 

22 not revising a recommendation to basically see if 
28

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 they actually make it a required priority to hire 

2 DOE, former DOE workers, or if it's just a loosely 

3 unenforceable phrase of that encouragement.

4 CHAIR MARKOWITZ: So, this is Steve 

5 Markowitz. So, to address that, we can do, add 

6 a bullet at the end and ask specifically, does the 

7 contract list the contractor require or have 

8 language that specifically encourages hiring DOE 

9 workers, meaning that we're asking for the 

10 information about what's in, exactly what's in the 

11 contract. Does that address your point?

12 MEMBER CASSANO: I think I would rather 

13 say, you know, we would like to know if the RFP 

14 or the contract has language that -- yes. That's 

15 fine. I would like to see how strong that 

16 encouragement is, because quite frankly they could 

17 make it a priority. But, so yes, I think that's 

18 a fine bullet.

19 CHAIR MARKOWITZ: So if we just ask 

20 does the contract with the resource center 

21 contractor require the hiring of former DOE 

22 workers, does that --
29

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: No, I would say make 

2 it a priority to hire former DOE workers. Or does 

3 the RFP or contract language give former DOE workers 

4 priority over other applicants? I think that's 

5 the way to put it.

6 CHAIR MARKOWITZ: Okay. So Kevin, in 

7 that what you just typed up, would you go back to 

8 require and add require or prioritize, and then 

9 a question mark at the end. So Tori, are you 

10 looking at that, does that capture your point?

11 MEMBER CASSANO: Yes, I think we should 

12 take require out and just say prioritize the hiring 

13 of former DOE workers over other applicants. So 

14 after contractor, a contract not contractor. Oh, 

15 I see. Contract with the DOE, take out require 

16 or. And I would say prioritize the hiring of former 

17 DOE workers over other workers.

18 CHAIR MARKOWITZ: Over other 

19 candidates.

20 MEMBER CASSANO: Other applicants, 

21 yes.

22 CHAIR MARKOWITZ: Or applicants.
30

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: Or candidates.

2 CHAIR MARKOWITZ: Applicants, yes. 

3 Okay. So does that do it now?

4 MEMBER CASSANO: Yes.

5 CHAIR MARKOWITZ: Okay. Other 

6 comments, questions?

7 (No audible response.)

8 CHAIR MARKOWITZ: Okay. So in that 

9 case, are there any objections to the modification 

10 that Tori just added, made?

11 (No audible response.)

12 CHAIR MARKOWITZ: Okay, there are no 

13 objections. So is there a motion to approve this 

14 reply to DOL?

15 MEMBER BODEN: So moved.

16 CHAIR MARKOWITZ: Okay. That was --

17 MEMBER BODEN: Les Boden.

18 CHAIR MARKOWITZ: -- Dr. Boden, yes.

19 MEMBER FRIEDMAN-JIMENEZ: George 

20 Friedman-Jimenez seconds.

21 CHAIR MARKOWITZ: Okay. So any final 

22 comments before we -- so Doug, if you want to do 
31

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 a roll call here.

2 MR. FITZGERALD: Will do. Dr. Dement?

3 MEMBER DEMENT: Yes.

4 MR. FITZGERALD: Dr. Silver?

5 MEMBER SILVER: Yes.

6 MR. FITZGERALD: Mr. Griffon?

7 MEMBER GRIFFON: Yes.

8 MR. FITZGERALD: Dr. 

9 Friedman-Jimenez?

10 MEMBER FRIEDMAN-JIMENEZ: Yes.

11 MR. FITZGERALD: Dr. Boden?

12 MEMBER BODEN: Yes.

13 MR. FITZGERALD: Dr. Redlich?

14 MEMBER REDLICH: Yes.

15 MR. FITZGERALD: Dr. Cassano?

16 MEMBER CASSANO: Yes.

17 MR. FITZGERALD: Dr. Welch?

18 MEMBER WELCH: Yes.

19 MR. FITZGERALD: Dr. Sokas?

20 MEMBER SOKAS: Yes.

21 MR. FITZGERALD: Ms. Pope?

22 MEMBER POPE: Yes.
32

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Ms. Vlieger?

2 MEMBER VLIEGER: Yes.

3 MR. FITZGERALD: Mr. Turner?

4 MEMBER TURNER: Yes.

5 MR. FITZGERALD: Mr. Whitley?

6 MEMBER WHITLEY: Yes.

7 MR. FITZGERALD: Mr. Domina?

8 MEMBER DOMINA: Yes.

9 MR. FITZGERALD: Chairman Markowitz?

10 CHAIR MARKOWITZ: Yes.

11 MR. FITZGERALD: So passed.

12 CHAIR MARKOWITZ: Okay, we're going to 

13 go to the next one. This is Recommendation number 

14 7 from October 2016. And Dr. Sokas is going to 

15 take over. But let me remind you that this is the 

16 recommendation in which we suggested that 

17 occupational medicine function be reorganized 

18 within the Department of Labor so that occupational 

19 medicine physicians within who worked on DEEOICP 

20 blended with physicians who worked on other 

21 compensation programs within OWCP, and even 

22 physicians who worked in other parts of DOL such 
33

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 as OSHA. So Rosie, if you want to jump in.

2 (No audible response.)

3 CHAIR MARKOWITZ: Rosie, if you're 

4 speaking, you're on mute.

5 MEMBER SOKAS: Sorry about that. Yes, 

6 I'm on mute. I apologize. So yes, this is 

7 basically a recommendation that we don't want them 

8 to necessarily have to reorganize the entire 

9 Department of Labor, but there are benefits to 

10 having collegial relationships that can improve 

11 the quality of the work product.

12 And in particular, we have concerns 

13 about physicians practicing in isolation. Now, 

14 the gist of it is really that in fact there are 

15 resources throughout the Department of Labor that 

16 might be exemplars, but that we await further 

17 information from the program.

18 We understand that within OWCP there's 

19 at least one additional physician. But we don't 

20 have any real information on that yet. So we're 

21 just asking for that information.

22 CHAIR MARKOWITZ: So this is really 
34

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 just an information request?

2 MEMBER SOKAS: That's right.

3 CHAIR MARKOWITZ: To provoke continued 

4 discussion on this issue?

5 MEMBER SOKAS: Provoke is the 

6 operative word, yes.

7 CHAIR MARKOWITZ: Any comments or 

8 questions?

9 (No audible response.)

10 CHAIR MARKOWITZ: I'm just holding on 

11 for a moment, giving people a chance to -- those 

12 who can see it on the screen. Okay. So then I 

13 think we need a motion to approve this.

14 MEMBER SOKAS: So I can, this is Rosie. 

15 I'll move to approve.

16 MEMBER CASSANO: Second.

17 CHAIR MARKOWITZ: That was Dr. Cassano 

18 who seconded. Okay. Any comments?

19 (No audible response.)

20 CHAIR MARKOWITZ: So, Doug, you want 

21 to do a roll call?

22 MR. FITZGERALD: Sure. Dr. Dement?
35

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER DEMENT: Yes.

2 MR. FITZGERALD: Dr. Silver?

3 MEMBER SILVER: Yes.

4 MR. FITZGERALD: Mr. Griffin?

5 MEMBER GRIFFON: Yes.

6 MR. FITZGERALD: Dr. 

7 Friedman-Jimenez?

8 MEMBER FRIEDMAN-JIMENEZ: Yes.

9 MR. FITZGERALD: Dr. Boden?

10 MEMBER BODEN: Yes.

11 MR. FITZGERALD: Dr. Redlich?

12 MEMBER REDLICH: Yes.

13 MR. FITZGERALD: Dr. Cassano?

14 MEMBER CASSANO: Yes.

15 MR. FITZGERALD: Dr. Welch?

16 MEMBER WELCH: Yes.

17 MR. FITZGERALD: Dr. Sokas?

18 MEMBER SOKAS: Yes.

19 MR. FITZGERALD: Ms. Pope?

20 MEMBER POPE: Yes.

21 MR. FITZGERALD: Ms. Vlieger?

22 MEMBER VLIEGER: Yes.
36

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Mr. Turner?

2 MEMBER TURNER: Yes.

3 MR. FITZGERALD: Mr. Whitley?

4 MEMBER WHITLEY: Yes.

5 MR. FITZGERALD: Mr. Domina?

6 MEMBER DOMINA: Yes.

7 MR. FITZGERALD: And Chairman 

8 Markowitz?

9 CHAIR MARKOWITZ: Yes.

10 MR. FITZGERALD: Okay, so moved.

11 CHAIR MARKOWITZ: Okay, we're going to 

12 move on to Recommendation number 8. Kevin, this 

13 is from October of 2016. And so this, Tori can 

14 handle this.

15 But while this is being brought up, let 

16 me just remind you this is the recommendation in 

17 which we suggested that the entire case file go 

18 through the contract position or the industrial 

19 hygienist so they can look at all the material in 

20 the case file as opposed to just what the claims 

21 examiner decides is relevant and sends to them. 

22 So Tori, you want to continue?
37

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: Yes. As Dr. 

2 Markowitz said, the original recommendation was 

3 about the entire claims file. And the Agency's 

4 response was a list of reasons for why this 

5 recommendation was either inappropriate or 

6 impractical.

7 And at our last face-to-face meeting, 

8 there was very strong support for sending the entire 

9 case file from all of the board members including 

10 the -- and especially including those board members 

11 that do this kind of medical record review as part 

12 of their practice.

13 And so the Department of Labor, without 

14 reiterating all of this, Department of Labor 

15 basically stated their reasons that they could not 

16 agree with the recommendation. And if you could 

17 scroll down a little bit.

18 Essentially, what this revised 

19 recommendation says is it's our response to each 

20 one of those issues essentially saying that the 

21 fact that it's too cumbersome for the professionals 

22 to look through the whole record is resolved by 
38

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 having a case map.

2 Number two, the issue that they didn't 

3 want the industrial hygienist and medical examiners 

4 to make up their own facts, basically believes the 

5 Agency wishes that expert form their opinions based 

6 on complete and accurate information and nothing 

7 more and nothing less.

8 And most of us felt that it is 

9 inappropriate to ask a professional to render an 

10 opinion when they are not permitted to review 

11 documents that may be pertinent but were not 

12 provided to them. And it creates a tunnel vision 

13 and possibly a false response from the 

14 professional.

15 And then finally, the statement that 

16 these same contractors do provide expert medical 

17 opinions to other federal agencies, and in those 

18 contracts they are required to have the entire 

19 record.

20 And so essentially, we're reiterating 

21 our initial recommendation with reasons that, and 

22 statements that try to allay the Agency's fears 
39

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 or help modify the Agency's reactions to the 

2 recommendation.

3 CHAIR MARKOWITZ: Thank you. So I 

4 know that Dr. Boden is listening. And then maybe 

5 we can start with those comments and then move on?

6 MEMBER CASSANO: Yes. I had no 

7 problem with Les' comments, so if somebody has them, 

8 so I don't know if Carrie has them. But he added 

9 some wording that I was trying to work with and 

10 just gave up. So we can add those, I have no 

11 objection to that.

12 CHAIR MARKOWITZ: But I think, Les, I 

13 think you should just go over those with the group. 

14 So Les, I think you might be on mute because we're 

15 not hearing you.

16 MEMBER BODEN: Correct. So I was just 

17 asking, can you put them up, or are they not there 

18 available?

19 MR. FITZGERALD: Yes, we're working to 

20 pull them up right now for you.

21 MEMBER BODEN: Okay. I seem to have 

22 -- okay, maybe that's -- okay. So on Issue 2, there 
40

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 was an objection to our suggestion stating that 

2 the CEs are the finders of fact, and that sending 

3 the whole file to outside experts would undermine 

4 their role as finders of fact.

5 And the sentence that I added said in 

6 addition, finders of fact in our legal system are 

7 typically not experts, and we do not believe that 

8 using experts undermines the role of the finders 

9 of facts. Finders of facts like judges and juries 

10 often rely on expert evidence.

11 The finders of fact then weigh the 

12 evidence to determine the facts that they will use 

13 in rendering an opinion, which I think, disclaimer, 

14 I am not a lawyer. But I think that is a reasonable 

15 description of the role of a finder of fact and 

16 the role of experts in situations where there is 

17 a finder of fact. Should I go on to the next?

18 CHAIR MARKOWITZ: Yes, I think you 

19 should. I think you should. And I do think you're 

20 doing the right thing by reading it both because 

21 Ken's not looking at it and I think some members 

22 of the public may not be able to see it. So that's 
41

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 a good thing.

2 MEMBER BODEN: Okay, good. So that 

3 was, then Issue number 4, let me just sort of look 

4 at it for a second myself. So Issue number 4 is, 

5 thank you, if you move up. If you move up to read 

6 Issue number 4 at the beginning sort of to help 

7 people with it.

8 So Issue number 4 was when a claims 

9 examiner refers a case to an IH or a CMC, they are 

10 seeking guidance on a particular set of 

11 circumstances from which the specific questions 

12 are derived. And then if you can move down to the 

13 suggestion.

14 So my suggestion was to add to that, 

15 in addition, the Board's recommendation does not 

16 affect the CE's ability to ask specific questions 

17 of the IH or the CMC. It provides the consultants 

18 with the opportunity to use their expertise to 

19 identify information relevant to the CE's questions 

20 that was not necessarily recognized as such by the 

21 CE.

22 In reading this, I added a couple of 
42

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 words which might make it sound a little better. 

2 So it's to use their expertise, I said to identify 

3 information relative to the CE's questions that 

4 would not necessarily be recognized as such by the 

5 CE. Thank you.

6 MEMBER CASSANO: This is Dr. Cassano. 

7 I just have one tweak to the first addition. It's 

8 the IH and the CMC that are rendering an opinion. 

9 The CE is actually making the determination. And 

10 so I would like to use to determine the facts that 

11 they will be using to make a decision.

12 So since they already used the term 

13 determine the facts in making a determination to 

14 be sort of redundant.

15 MEMBER BODEN: Okay. That's fine with 

16 me. I think rendering an opinion and making a 

17 decision, I don't care which words we use.

18 CHAIR MARKOWITZ: Are there further 

19 comments on Les' recommended language? Okay. So 

20 are there other comments on the entire piece?

21 MEMBER POPE: This is Duronda Pope. 

22 I think this is essential. I agree with Dr. Boden. 
43

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Essential, this recommendation and the additions 

2 of the -- his recommendations because this is the 

3 meat of the claimant's case, and is making sure 

4 that all that information is getting to the right 

5 people.

6 CHAIR MARKOWITZ: Thank you. Other 

7 comments?

8 (No audible response.)

9 CHAIR MARKOWITZ: Okay. Hearing 

10 none, is there any objection? Oh, I want to 

11 announce to the group that Ken Silver is now on 

12 WebEx and can see things. But we still need to 

13 consider that members of the public may not be able 

14 to see the screens. So we'll try to adapt what 

15 we say.

16 MEMBER SOKAS: And this is Rosie. I 

17 can't see the screen either.

18 CHAIR MARKOWITZ: Okay. So are there 

19 any objections to the modifications that Dr. Boden

20 has recommended, has made?

21 (No audible response.)

22 CHAIR MARKOWITZ: So there are no 
44

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 objections. Do I hear a motion to accept then this 

2 new recommendation?

3 MEMBER CASSANO: So moved.

4 MEMBER DEMENT: John, second.

5 CHAIR MARKOWITZ: Second, okay. Any 

6 final comments on this?

7 (No audible response.)

8 CHAIR MARKOWITZ: Okay. So Doug, if 

9 you could do a roll call?

10 MR. FITZGERALD: Certainly. Dr. 

11 Dement?

12 MEMBER DEMENT: Yes.

13 MR. FITZGERALD: Dr. Silver?

14 MEMBER SILVER: Yes.

15 MR. FITZGERALD: Mr. Griffon?

16 MEMBER GRIFFON: Yes.

17 MR. FITZGERALD: Dr. 

18 Friedman-Jimenez?

19 MEMBER FRIEDMAN-JIMENEZ: Yes.

20 MR. FITZGERALD: Dr. Boden?

21 MEMBER BODEN: Yes.

22 MR. FITZGERALD: Dr. Redlich?
45

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER REDLICH: Yes.

2 MR. FITZGERALD: Dr. Cassano?

3 MEMBER CASSANO: Yes.

4 MR. FITZGERALD: Dr. Welch?

5 MEMBER WELCH: Yes.

6 MR. FITZGERALD: Dr. Sokas?

7 MEMBER SOKAS: Yes.

8 MR. FITZGERALD: Ms. Pope?

9 MEMBER POPE: Yes.

10 MR. FITZGERALD: Ms. Vlieger?

11 MEMBER VLIEGER: Yes.

12 MR. FITZGERALD: Mr. Turner?

13 MEMBER TURNER: Yes.

14 MR. FITZGERALD: Mr. Whitley?

15 MEMBER WHITLEY: Yes.

16 MR. FITZGERALD: Mr. Domina?

17 MEMBER DOMINA: Yes.

18 MR. FITZGERALD: Chairman Markowitz?

19 CHAIR MARKOWITZ: Yes.

20 MR. FITZGERALD: Okay.

21 CHAIR MARKOWITZ: Okay. We're going 

22 to move on now to the April 2017 Board Meeting. 
46

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 And we're going to, we have six recommendations 

2 to go through. The first is on asbestos. If you 

3 can just bring that up.

4 There was a lot of agreement, I would 

5 say, between DOL and us on the issue of asbestos. 

6 DOL agreed that they haven't recognized, at least 

7 in writing, the issue of asbestos and lung cancer.

8 And we agreed that certain time 

9 parameters, you know, number of days exposed, 

10 latency, the gap of time between onset of exposure 

11 and when the person develops disease, were 

12 important.

13 There was a little bit of disagreement 

14 about what that latency should be for each of the 

15 illnesses. DOL preferred using ten years latency 

16 for asbestosis. And we had recommended, really 

17 for the purposes of keeping it simple, 15 years 

18 across the board. But it's fine to use ten years 

19 for asbestosis.

20 The way that this write-up is, and it's 

21 a few pages so we're not going to by any means read 

22 it. But the way this is structured is that the 
47

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 recommendation is now revised to include the 

2 specifics that we would like to see in this for 

3 asbestos related disease.

4 And we agree that if a person worked 

5 250 days or more, that that would be sufficient, 

6 with the exception of mesothelioma which is known 

7 to have a smaller dose required. And we agreed 

8 with DOL, 30 days is the minimum that can be used 

9 for the purposes of presuming a mesothelioma is 

10 related to DOE related asbestos exposure.

11 So if you could scroll down. You can 

12 stop there, yes. So DOL raised a couple of areas 

13 of disagreement or requests for additional 

14 information. One is they made this distinction 

15 between exposure and causation presumptions which 

16 is different from the way we look at it.

17 But actually, when you scratch the 

18 surface, there's not a whole lot of difference. 

19 It's mostly, I think, linguistic and a little bit 

20 of procedure.

21 When we talk about these exposure 

22 criteria, 250 days or 30 days or a certain number, 
48

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 we're talking about whether it should be considered 

2 sufficient to be causal if the person has the 

3 disease in question. And whereas DOL is really 

4 focusing on is this a significant exposure or not, 

5 and making distinctions based on 1986 and 1995 and 

6 the like.

7 So in any event, our approach is 

8 simpler. But I think for the purposes really of 

9 a causation presumption, the differences in 

10 approaches in terms of calling them an exposure 

11 versus a causation presumption is not a big 

12 difference. So I don't think it's really an issue.

13 They, DOL wanted us to provide more 

14 documentation about the listed job titles, and 

15 which we will do. I don't include it here because 

16 I still have to assemble, I have some but I have 

17 to assemble more.

18 Now our recommendation, if you 

19 remember, was for all maintenance and construction 

20 job titles. And the List A, which is what's used 

21 currently, is not as broad as what we're 

22 recommending. So the documentation we will give, 
49

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 provide, is for all maintenance and construction 

2 job titles.

3 And one side note is when I began to 

4 think about this, I thought well why doesn't DOL 

5 use what is the federal standard which is the 

6 standard, it's called the SOC system that the 

7 Department of Labor uses for statistics, which is 

8 the classification system of jobs, the standard 

9 occupational classification system which was 

10 updated actually in 2018.

11 And so I provided at the end of this 

12 what the SOC looks like. And if you could scroll 

13 down for a moment, Kevin, so people can see what 

14 this looks like. And this is just a standard way 

15 of looking at various jobs, first in construction. 

16 Yes, just go up a little bit more.

17 So construction, so you see familiar 

18 job titles. It's all inclusive, and it may also 

19 to some extent coincide with how some of the 

20 research studies supporting asbestos related 

21 disease among these workers has been done.

22 If you go a little further, Kevin, down, 
50

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 you'll get to the maintenance workers. And the 

2 difference, for those who are looking, there's some 

3 job titles in red that I made in red because I 

4 thought they probably didn't routinely have 

5 asbestos exposure at DOE, or they were jobs that 

6 weren't really relevant to DOE.

7 But a question I have for the group when 

8 I stop talking will be whether this introduction 

9 of SOC is really a useful part of this 

10 recommendation at all because DOL has been using, 

11 you know from the SEM, it has its own lists of jobs. 

12 They have job categories and they have job aliases.

13 So they've taken the very large number 

14 of job titles that I've seen across the complex 

15 over time and they have found ways of grouping them 

16 into a much more limited number of job titles, not 

17 all that dissimilar from what we're looking at on 

18 the screen, particularly in the construction 

19 trades.

20 So they have a system, and I'm not sure 

21 that system of job categorization is at all broke. 

22 So I'm raising the question of whether we should 
51

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 include an SOC recommendation as part of this, or 

2 whether it's just a distraction.

3 So if you can go back up, Kevin. More 

4 importantly is, okay, yes, is that the DOL requested 

5 that we provide documentation that 2005 was an 

6 important date in terms of exposure.

7 So our recommendation was if workers 

8 worked in maintenance or construction for 250 days 

9 or more prior to 2005, that they should be presumed 

10 that they had significant or sufficient asbestos 

11 exposure so that it would aggravate, contribute, 

12 or cause an asbestos related disease.

13 And DOL said, what's the basis of the 

14 2005. And they've heard our discussion about this, 

15 particularly from the members of the Board who work 

16 at the sites why we picked that date. But the 

17 request from DOL was for some documentation that 

18 could support that date.

19 By documentation they meant a change 

20 in DOE policy or procedure, inspection data, 

21 evidence of overexposure from industrial hygiene 

22 data, or the like. And we haven't been able to 
52

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 come up with it, to tell you the truth.

2 I have interacted some with DOE, Greg 

3 Lewis and Pat Worthington, asking about the 1995 

4 order, when the 1995 order took effect. This is 

5 Order 440.1, a major health and safety order.

6 And interestingly, orders do not have 

7 the authority of regulations for the contractor. 

8 So DOE issues an order like it did in 1995, the 

9 contractor at DOE does not have to, it's not 

10 mandatory that they alter their procedures to 

11 comply with that order.

12 It does become mandatory when the 

13 contract period ends and a new contract period 

14 begins with the same contractor or with a new 

15 contractor. It's built into the contract. But 

16 when the order comes down during the period of a 

17 contract, it's somewhat encouraged, somewhat 

18 optional. It's not mandatory.

19 So I thought okay, we could use the 

20 average length of a contract in existence in 1995 

21 to come up with a more realistic date of when the 

22 order became effective. But haven't really been 
53

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 able to get that information out of DOE, mostly 

2 because of logistics of talking to them about this.

3 And we've been unable to come up with 

4 any industrial hygiene data, any inspection reports 

5 across the complex that would support 2005 versus 

6 1995. So what I'm recommending is that we use the 

7 1995 date as the date for presumption because the 

8 order did take place.

9 We know things didn't change overnight, 

10 but it is a marker of time. And I appreciate that 

11 we rejected that marker in terms of the DOL 

12 circular. That was slightly different. It was 

13 the presumption that all exposure after 1995 was 

14 essentially insignificant.

15 But that it's important to establish, 

16 for asbestos, a presumption. And it's key, it's 

17 essential to have a date. And if the order 440.1 

18 allows us to get the date of 1995, it will cover 

19 an awful lot of people.

20 And then sometime in the future, we can 

21 identify information that would document that 

22 exposure to asbestos could be presumed after 1995, 
54

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 then that information could be supplied to DOE and 

2 DOL, they could possibly change the date.

3 But that 1995 appears to be an 

4 acceptable date to DOL. And if we use that and 

5 get this accepted as a presumption, it would be 

6 a major step forward.

7 So I'm going to stop now and open it

8 up.

9 MEMBER WELCH: Stephen and everybody, 

10 this is Laurie Welch. I think that's a great plan, 

11 and I think having the presumption year at '95 will 

12 cover the great majority of people who need to use 

13 it. So I think that will make it easier for them 

14 to get accepted. So I support that idea.

15 I think it's a good idea to list those 

16 SOC jobs because every time we talk about a list 

17 of jobs, I feel like we get back from OWCP you have 

18 to tell us which jobs or that's too broad a statement 

19 or something like that.

20 Construction, they have an accepted 

21 list. But when we say maintenance, it seems as 

22 if they want us to define it. So I think defining 
55

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 it, maybe it's not defining it the way they use 

2 it. But they could match these job titles up with 

3 their job titles, or say that they don't need to 

4 use these job titles because they have their own 

5 list of maintenance jobs.

6 But it would move us past this response 

7 that I keep hearing that they want a list from us 

8 of the job titles. Now if I'm wrong on that, then 

9 they don't need them. If someone else could weigh 

10 in on that?

11 MEMBER DOMINA: This is Kirk. I don't 

12 have a problem with using these job titles to 

13 further move this along. But everybody needs to 

14 realize it's not inclusive. And the fact is the 

15 way that Paragon groups job titles together is not 

16 necessarily correct in the fact when you're dealing 

17 with jurisdictions and stuff.

18 And I know I've talked about this a lot 

19 in the past. But then this is also where it comes, 

20 it's very important for whoever's doing the OHQ 

21 to know about specificity at certain job sites and 

22 how things were done.
56

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 So you know, we can use this list to 

2 start with. But then because it's the prime 

3 example that's not on here is our health physics 

4 techs, our radiation monitors, however you want 

5 to word them in your text, they're completely left 

6 off this. And they're always, because rad is 

7 always a concern before chemicals.

8 And so they were first in and last out, 

9 and I want to make sure everybody doesn't lose sight 

10 of that as one glaring hole that's in this list 

11 of job titles.

12 CHAIR MARKOWITZ: This is Steve 

13 Markowitz. Yes, I hear you about that. This is 

14 just a complete list of construction and 

15 maintenance job titles. This is not a complete 

16 listing of all job titles who were exposed to 

17 asbestos at the facilities.

18 Think janitors for the moment, or you 

19 know, or an obvious group that would have had 

20 exposure. It would be at this point too difficult 

21 I think to identify outside of construction and 

22 maintenance all of the individual job titles on 
57

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 whom we could develop a presumption of asbestos 

2 exposure.

3 And so I don't disagree with you that 

4 there are other job titles that aren't on here. 

5 They're not on here because they're not maintenance 

6 and construction. And perhaps if this presumption 

7 is accepted, then the next step would be to add 

8 other job titles, you know, then have a framework.

9 And then if there are other job titles 

10 that people could agree on a presumption basis could 

11 be added, then they could be added.

12 MEMBER DOMINA: This is Kirk again. 

13 Yes, I don't disagree with that. I just want to 

14 make sure that it's not used against somebody 

15 because they're not on the list, and they have to 

16 fight harder with letters having to go back and 

17 forth between, you know, DOL and the claimant.

18 MEMBER CASSANO: It's Dr. Cassano. 

19 Could we go back up to where we reference the SSOC 

20 in the document and how we request that it be used?

21 CHAIR MARKOWITZ: Yes, it's right 

22 there. It's Item number 4.
58

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: Okay.

2 MEMBER DEMENT: Hi, this is John. 

3 From a practical perspective, the only way this 

4 SOC list will be useful is if they can map their 

5 job titles, and there may be many, into one or more 

6 of these SOC titles.

7 So in reality, it's going to require 

8 them to do some work, to map their job titles into 

9 these. I have mixed feelings of whether or not 

10 we're introducing more confusion as opposed to less 

11 by the SOC classification.

12 MEMBER CASSANO: I agree with Dr. 

13 Dement. I think to consider using this, I think 

14 there has to be some way for them to use these job 

15 titles to include additional job titles, especially 

16 for maintenance workers, but be specific about 

17 saying that this is not an exclusive list because 

18 as we've seen, especially with presumption, if it's 

19 not covered under the presumptions, the great 

20 possibility is that the person is denied.

21 And that goes to the 1995 thing too. 

22 I think we need a strong statement that if a worker 
59

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 is not covered under the presumption, that the claim 

2 needs to be evaluated by an industrial hygienist 

3 and a CMC.

4 So I think I'm okay with leaving the 

5 SSOCs out of it, as long as we determine that they 

6 should include their maintenance workers in the 

7 presumption.

8 MEMBER BODEN: So this is Les Boden. 

9 So the question is does listing the standard 

10 occupational categories help the DOL determine 

11 whether somebody is a construction or maintenance 

12 worker.

13 And I guess, I mean, my sense of it is 

14 that independent of that list, it shouldn't be that 

15 hard to figure out from somebody's job title if 

16 they're construction or maintenance. And if it 

17 is hard to figure it out, then it would be hard 

18 to map it into job titles in the SOC list.

19 So that would kind of make me wonder 

20 if it helps to have that list. You know, it might 

21 be good to get some feedback from the people who 

22 are making those decisions or from somebody from 
60

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 DOL who might be able to tell us whether they think 

2 it would help or not.

3 CHAIR MARKOWITZ: Other comments? 

4 This is Steve Markowitz. We could soften the 

5 language on the use of the SOC. You know, we could 

6 say, to consider relying on the SOC.

7 I kind of share Laurie's frustration 

8 a little bit about the somewhat arbitrary nature 

9 of the previous lists we've seen. But I don't want 

10 this to serve as a distraction from adopting a 

11 presumption about asbestos which is, you know, a 

12 very important goal.

13 And I don't think, frankly I don't think 

14 it's necessary to adopt an SOC framework to get 

15 it right for the most part.

16 MEMBER WHITLEY: This is Garry. I 

17 think that if you just leave it maintenance or 

18 construction categories, then if you were filed 

19 on a claim, you're the claimant and you were a 

20 maintenance or construction worker, either, it 

21 would be pretty easy to get verification from that 

22 from your work records and/or from job titles.
61

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 And we're reminded over and over that 

2 they do not use the SEM to deny cases. So if you 

3 just filed a claim and you said you were a

4 maintenance construction worker and told what you 

5 were, you know, electrician for me talking, then 

6 I don't know why that wouldn't be good enough to 

7 do that. I don't know why you need to make it 

8 stronger.

9 MEMBER VLIEGER: This is Faye. The 

10 fact that they say they don't deny with the SEM 

11 is inaccurate. They say they can't find any links 

12 in the SEM, and then require the worker to provide 

13 toxic substances which they're not able to do 

14 because no one has that information. And there 

15 is no monitoring data.

16 So I do think we need to be specific, 

17 and I agree with Kirk in that there are many job 

18 titles who are required to be in the field right 

19 next to these people that are not on the list that 

20 we should address at a later date.

21 MEMBER TURNER: This is James. What 

22 about bystanders? I think we talked about 
62

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 bystanders.

2 CHAIR MARKOWITZ: Yes. This is Steve 

3 Markowitz. That's a difficult and important issue 

4 because you had a lot of production workers who 

5 were bystanders when the maintenance guys were 

6 doing their work, right.

7 The problem is defining the boundaries 

8 of that, who's in, who's out. And the presumption 

9 we're tying to, you know, start with the basics, 

10 get the basics right, things we absolutely know. 

11 And then use that as a basis for expanding it in 

12 the future.

13 If we were to think through bystanders, 

14 we would I think have a very difficult time figuring 

15 out where many job titles fit. I'm not denying 

16 that it's a problem, it is. But for the purposes 

17 of presumption, I just don't see how we can fold 

18 that in at this point.

19 MEMBER CASSANO: This is Dr. Cassano 

20 again. I think I agree with Steve and I agree that 

21 I think an incremental response to this is probably 

22 the best way to do this. Maybe we should leave 
63

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 this as pure and simple as we can make it and get 

2 it accepted, and then revisit it later on or a future 

3 board revisit it so that, you know, all of these 

4 other additions.

5 But if we get some basic presumptions 

6 established, then I think it would be easier to 

7 add some of these more complicated cases to that 

8 presumption at a later date.

9 CHAIR MARKOWITZ: So, any other 

10 comments? I mean, I think I know what the issues 

11 -- any other comments on the 1995 date?

12 MEMBER SILVER: When we submit this, 

13 Ken Silver here, could we ask DOL to provide the 

14 Board with data on people who don't meet the 

15 presumption because their exposures occurred after 

16 1995, essentially track how the 1995 bright line 

17 is working going forward?

18 CHAIR MARKOWITZ: Yes, this is Steve 

19 Markowitz. That's interesting because it goes to 

20 the point of our concern about people who don't 

21 meet this presumption not getting a fair shake. 

22 And that would be something that could be monitored 
64

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 and could be tracked.

2 MEMBER SILVER: Yes. We've had a hard 

3 time getting data from DOE contracts. We had a 

4 really hard time when 1995 came up in another 

5 context. So we may as well put in place a tracking 

6 system now.

7 CHAIR MARKOWITZ: Other comments?

8 MEMBER BODEN: Ken, this is Les Boden. 

9 Could you restate what you would like DOE to 

10 provide?

11 MEMBER SILVER: I don't know --

12 MEMBER BODEN: DOL to provide, sorry.

13 MEMBER SILVER: I don't know if it has 

14 to go in the language of the presumption. But in 

15 the past, we've passed our recommendations along 

16 with a little bit of a background statement. And 

17 in that background statement we would ask DOL to 

18 report back to the Board periodically claims that 

19 did not get included in this presumption because 

20 the exposures occurred only after 1995.

21 MEMBER BODEN: All right, so you would 

22 want both accepted and not accepted claims?
65

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER SILVER: Correct, and the Board 

2 could then --

3 MEMBER BODEN: Okay. That's what I 

4 wanted to clarify for myself. Thank you.

5 MEMBER SILVER: Sure.

6 MEMBER BODEN: I did have one other 

7 thought after Garry's simplifying idea to say 

8 construction and maintenance. That would then 

9 give the worker many ways, many pathways to come 

10 in under this presumption.

11 If their job title didn't leap off the 

12 page saying maintenance or construction, they might 

13 be able to demonstrate that they worked for a 

14 contractor who had one or both of those words 

15 attached to them. That would be, you know, a 

16 reasonable way of them getting included.

17 CHAIR MARKOWITZ: Other comments? So 

18 this is Steve Markowitz. I think to keep it simple, 

19 I suggest that we remove reference to the SOC system 

20 and just go with maintenance and construction, 

21 because my concern is that it will be a distraction 

22 and it will end up being an effort that will take 
66

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 considerable amount of time and delay use of the 

2 asbestos presumption, assuming it's accepted.

3 MEMBER DOMINA: This is Kirk. I guess 

4 I can look at this maintenance for Hanford in a 

5 couple different ways because the production 

6 workers are under the M&O contract which is 

7 maintenance and operations.

8 So you know, if you're just on this SOC 

9 list, is it purely just construction. But yes, 

10 and I think simplifying is good. But I think for 

11 terminology for me, I can look at the maintenance 

12 side as being the M&O side, maintenance and 

13 operations which is a production side.

14 CHAIR MARKOWITZ: This is Steve 

15 Markowitz. I don't quite get your point, Kirk.

16 MEMBER DOMINA: Well, if this is just 

17 a construction list, when you simplify it, if you 

18 don't know all that background information what 

19 we're talking about, to me it includes the 

20 production workers also which still leaves out some 

21 of our folks.

22 You know, I'm just saying on how you 
67

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 can look at it maybe at a 30,000 foot level or 

2 whatever.

3 CHAIR MARKOWITZ: But the maintenance 

4 workforce does not include production. I understand 

5 the M&O contractor includes both. But if this is 

6 limited to maintenance workers, that by definition 

7 would not include production.

8 MEMBER DOMINA: Yes. But looking at 

9 it by just simplifying it like that, I see it the 

10 other way. I'm just saying, you know, because 

11 that's the way the contract is.

12 And so when you put just maintenance 

13 in there, that is the production side because we 

14 did a lot of asbestos work on our side. You know, 

15 because if it's not Davis-Bacon, it belongs to 

16 maintenance, onsite forces, production.

17 MEMBER POPE: This is Duronda Pope. 

18 I agree with Kirk because in a lot of the situations 

19 in operations, you had operators and maintenance 

20 in the same area, in the same hazardous area. And 

21 excluding them I think would be doing them a 

22 disservice.
68

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Other comments?

2 (No audible response.)

3 CHAIR MARKOWITZ: So my proposed 

4 modification is to entirely remove reference to 

5 the SOC classification system from this revised 

6 recommendation. So are there any other comments 

7 on that issue?

8 (No audible response.)

9 CHAIR MARKOWITZ: I think we should --

10 are there any objections to removing reference to 

11 the SOC?

12 (No audible response.)

13 CHAIR MARKOWITZ: Okay. So hearing no 

14 objections then, we will remove reference to that. 

15 And Kevin, I may need to -- maybe something as 

16 simple as removing Item number 4, but I think there 

17 are some other pieces. So as long as we remember 

18 that it's going to be removed, and I can take care 

19 of it.

20 Are there other modifications for the 

21 revised recommendation that are -- at this time?

22 (No audible response.)
69

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Okay. So I think we 

2 can take a vote. Is there a motion to accept this?

3 MEMBER WHITLEY: This is Garry. I'll 

4 make a motion to accept it.

5 CHAIR MARKOWITZ: Is there a second?

6 MEMBER DEMENT: Second.

7 CHAIR MARKOWITZ: Any comments?

8 (No audible response.)

9 CHAIR MARKOWITZ: Okay. So Doug, if 

10 you could take a vote?

11 MR. FITZGERALD: Sure. Dr. Dement?

12 MEMBER DEMENT: Yes.

13 MR. FITZGERALD: Dr. Silver?

14 MEMBER SILVER: Yes.

15 MR. FITZGERALD: Mr. Griffon?

16 MEMBER GRIFFON: Yes.

17 MR. FITZGERALD: Dr. 

18 Friedman-JIMENEZ?

19 MEMBER FRIEDMAN-JIMENEZ: Yes.

20 MR. FITZGERALD: Dr. Boden?

21 MEMBER BODEN: Yes.

22 MR. FITZGERALD: Dr. Redlich?
70

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER REDLICH: Yes.

2 MR. FITZGERALD: Dr. Cassano?

3 MEMBER CASSANO: Yes.

4 MR. FITZGERALD: Dr. Welch?

5 MEMBER WELCH: Yes.

6 MR. FITZGERALD: Dr. Sokas?

7 MEMBER SOKAS: Yes.

8 MR. FITZGERALD: Ms. Pope?

9 MEMBER POPE: Yes.

10 MR. FITZGERALD: Ms. Vlieger?

11 MEMBER VLIEGER: Yes.

12 MR. FITZGERALD: Mr. Turner?

13 MEMBER TURNER: Yes.

14 MR. FITZGERALD: Mr. Whitley?

15 MEMBER WHITLEY: Yes.

16 MR. FITZGERALD: Mr. Domina?

17 MEMBER DOMINA: Yes.

18 MR. FITZGERALD: Chairman Markowitz?

19 CHAIR MARKOWITZ: Yes.

20 MR. FITZGERALD: Motion carries.

21 CHAIR MARKOWITZ: Okay. We're going 

22 to move on to occupational asthma. This is 
71

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Recommendation number 2 from April 2017. And 

2 Carrie Redlich is going to lead the discussion here.

3 It is a long document, so I think we'll 

4 go with a summary. So if you want to -- okay, it's 

5 up. Fine. Okay, Carrie?

6 MEMBER REDLICH: Yes. So this 

7 recommendation has parts related to the criteria 

8 to diagnose work-related asthma. The reason the 

9 comments are so long, I think unlike a number of 

10 the other recommendations, the recommendations 

11 were already incorporated into the last manual.

12 And I think this does raise an issue 

13 potentially for other recommendations. But I 

14 think I also looked at not only whether the DOL 

15 agreed or didn't with our recommendation, but how 

16 it was actually implemented in the manual because 

17 I think implementation in general can be 

18 challenging, even if there's agreement on the 

19 content of the recommendation.

20 So this recommendation has four parts. 

21 The first one just related to the definition of 

22 work-related asthma, that it should include both 
72

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 new onset asthma and work-exacerbated asthma. And 

2 the DOL agreed with the recommendation, and it was 

3 also appropriately incorporated into the revised 

4 procedure manual.

5 So that was the first part. The second 

6 part of the recommendation addressed the criteria 

7 for the diagnosis of asthma, and the main issue 

8 being whether one had to demonstrate 

9 physiologically reversible airflow obstruction, 

10 or whether some other criterion such as a treating 

11 physician's diagnosis or response to asthma 

12 medication would also be sufficient.

13 And for non-physicians, in practice 

14 asthma is usually diagnosed based on a clinical 

15 assessment and response to treatment rather than 

16 a lot of spirometry and other testing.

17 So, and also the DOL agreed with our 

18 second recommendation that other criteria other 

19 than demonstrating reversible airflow obstruction 

20 was sufficient, which was good.

21 One issue was in reviewing how this was 

22 then incorporated into the new procedure manual, 
73

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 the wording didn't actually convey as clearly as 

2 it could the recommendation. So that's why this 

3 goes on a little bit longer.

4 I don't think we need to go into the 

5 detail, but I simply pointed out the area that I 

6 thought was confusing, and suggested alternate 

7 wording.

8 So, because basically they agreed that 

9 a physician can rely on other clinical information 

10 to substantiate his or her diagnosis of asthma, 

11 meaning other than demonstrating this 

12 reversibility.

13 But then the example then was 

14 spirometry was the best way to do it, and the 

15 response to a bronchodilator. So I suggested 

16 alternate examples such as, you know, wheezing on 

17 exam or documentation of response to treatment, 

18 et cetera.

19 So does anyone have questions or 

20 comments? That's the first part of the 

21 recommendation.

22 CHAIR MARKOWITZ: Steve Markowitz. I 
74

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 think it's beautifully written, and you've done 

2 their homework for them, so they should especially 

3 thank you.

4 MEMBER REDLICH: Okay. So moving on 

5 to the last two, which are really related. And 

6 again, for the non-physicians, generally the 

7 general recommendation as far as how you diagnose 

8 work-related asthma is first you sort of confirm 

9 the diagnosis that you have asthma. And then you 

10 address the work-related component.

11 And so the second in the -- the three 

12 and the four, the last two relate to this how you 

13 determine the association. And generally it's 

14 done by really a careful history and temporal 

15 relationship in terms of onset being worse at work, 

16 better away from work.

17 And so that was recommendation #2-3, 

18 and the DOL agreed with this recommendation.

19 And then the fourth one was again 

20 addressing the criteria for the work-related 

21 component and making the point that there could 

22 be a single specific triggering event, but that 
75

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 that was not typical.

2 And most commonly, work related asthma 

3 occurred following repeated exposures to mixed 

4 types of exposures such as dust and fumes. And 

5 so the Department of Labor also agreed with this 

6 recommendation.

7 They pointed out that we had given heat 

8 and cold as other examples of work exposures that 

9 could trigger asthma. And we agreed that those 

10 were not good examples given how common those types 

11 of exposures were.

12 And they also, it was -- I'll try to 

13 simplify this. The issue sort of also came to 

14 whether you had to have a single exposure versus 

15 what occurs in the great majority of cases where 

16 there is an exposure that is actually a mixture 

17 of substances such as the exhaust fumes or the way 

18 cigarette smoke is a mixture of multiple different 

19 combustion products in the cigarette smoke.

20 And I think that the confusion arises 

21 over the interpretation and the wording of Part 

22 E of the Act which states that exposure to a toxic 
76

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 substance at a covered DOE facility was at least 

2 as likely as not a significant factor in 

3 aggravating, contributing, or causing the illness.

4 That's the key wording in the Part E. 

5 And so the DOL agreed with us that multiple 

6 exposures could cause work-related asthma. But 

7 in their wording then, again looking at the manual 

8 of how this has been incorporated, the wording was 

9 sort of I think sub-optimal.

10 And the wording suggests that there had 

11 to be a single exposure and that the -- to find 

12 out where this was, that the qualified physician 

13 had to provide specific information on the 

14 mechanism for causing the condition and that the 

15 strongest justification was when you could identify 

16 a specific exposure and substance.

17 And so we tried to clarify this and 

18 first of all show that -- the meaning of what a 

19 toxic substance is. And that it's defined 

20 frequently as a -- although it could be a single 

21 substance, it is commonly a mixture of substances 

22 such as gasoline or a number of other examples.
77

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 So understanding that there's the 

2 importance of following the Act, we felt that there 

3 was a misunderstanding of what was meant by a toxic 

4 substance and that whether it's cigarette smoke 

5 or mixed solvents or diesel exhaust fumes, that 

6 there are a number of examples where the toxic 

7 substance is actually a mixture of toxic chemicals. 

8 And so I think basically the DOL agreed with our 

9 recommendation. Again, the way it was implemented 

10 in the wording of the new manual was, I think, 

11 confusing.

12 So I have suggested alternate wording 

13 to clarify in the manual. And I explained that 

14 as coherently as I could. But I'll stop there if 

15 anyone has any comments or suggestions.

16 CHAIR MARKOWITZ: This is Steve 

17 Markowitz. So just while we're on this suggested 

18 language, for those of us who -- actually, Kevin 

19 can bring this up on the screen, too. The suggested 

20 language is on which page?

21 MEMBER REDLICH: That language is 

22 actually on page 5.
78

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Five, okay. It's 

2 the italicized on page 5?

3 MEMBER REDLICH: Yes. So what I 

4 suggested is that -- and I think the -- earlier 

5 in the definition, basically it says that the CE 

6 does not apply a toxic substance exposure because 

7 any dust, vapor, gas, or fume has the potential 

8 to affect asthma.

9 So that current wording is correct and 

10 is included. If you go down further under the two 

11 -- the Roman, you know, this II, the next paragraph. 

12 The bolded section, I thought if that were removed 

13 -- so in this case, one needed more to remove certain 

14 wording rather than to add additional wording.

15 But the sections being removed would 

16 be the bolded section, the qualified physician must 

17 provide a well-rationalized explanation. And 

18 there are a number of reasons.

19 We don't need to go through each 

20 sentence, but you know, after many years of studying 

21 and being an expert in this area, if I were asked 

22 to describe the mechanisms that are causing asthma, 
79

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 I would be unable to do that.

2 So I don't think we should request a 

3 qualified physician provide that. And then the 

4 strongest justification when you could identify 

5 the specific incident. I think if that section 

6 were removed, that would actually provide greater 

7 clarity than having it included.

8 CHAIR MARKOWITZ: Steve Markowitz. 

9 So as it stands now, DOL accepts, I think they have 

10 language in their procedure manual that, as you 

11 said on page 4, quote, any dust, vapor, gas, or 

12 fume has the potential to affect asthma, end quote.

13 And so that's their standard, they 

14 don't require naming of a toxic substance, right?

15 MEMBER REDLICH: No. So the standard 

16 states, just going back to it.

17 CHAIR MARKOWITZ: It's the third full 

18 paragraph.

19 MEMBER REDLICH: The standard states 

20 that an illness can be accepted as -- so this is 

21 the bottom of page 3. An illness can be accepted 

22 as a compensable covered illness if exposure to 
80

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 a toxic substance at a covered facility was at least 

2 as likely as not.

3 And I think if we appreciate that the 

4 way the NIH and you know, other organizations, and 

5 I think scientific community understands a toxic 

6 substance, is that that frequently is a mixture 

7 of toxic substances.

8 CHAIR MARKOWITZ: Yes, Steve 

9 Markowitz. That's from Part E. That's from the 

10 statute.

11 MEMBER REDLICH: That's correct.

12 CHAIR MARKOWITZ: I get that. But DOL 

13 has already in applying this asthma, and this is 

14 on page 4 in the third full paragraph where you 

15 quoted from the procedure manual, they -- well, 

16 the CE does not apply a toxic substance exposure 

17 assessment.

18 And then skipping on, because any dust, 

19 vapor, gas, or fume has the potential to affect 

20 asthma. So in the claims evaluation process, then 

21 -- just, this is a question. The claims examiner 

22 doesn't have to identify a potentially toxic 
81

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 substance, right?

2 MEMBER REDLICH: That's correct.

3 CHAIR MARKOWITZ: Okay. Okay. 

4 MEMBER REDLICH: So I think there's 

5 sort of some internal consistency in the wording. 

6 It's just the way the wording of the rest of the 

7 current manual could confuse a physician or a claims 

8 examiner because it sort of wants the specific 

9 mechanism and it says that the strongest 

10 justification is when the physician can identify 

11 the incident that occurred, and the most likely 

12 toxic trigger.

13 So I think that that wording is actually 

14 inconsistent with the earlier wording. And the best 

15 thing to do would be to remove it.

16 CHAIR MARKOWITZ: Right. So, Steve 

17 Markowitz. So part of your response is that they 

18 should do away with the triggering idea?

19 MEMBER REDLICH: That's correct.

20 CHAIR MARKOWITZ: Okay. You know, the 

21 work related asthma is defined as temporally 

22 related symptoms, to work. And they already 
82

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 concede there's no toxic substance standard they 

2 need to apply because any vapor, gas, dust, and 

3 fume can do it.

4 And then they were hung up on this whole 

5 idea of identifying a trigger moment or a trigger 

6 mechanism. And our recommendation at least 

7 sitting here is that the whole triggering concept 

8 being removed?

9 MEMBER REDLICH: Yes.

10 CHAIR MARKOWITZ: Okay. Thanks.

11 MEMBER REDLICH: And that is also very 

12 consistent with the entire medical literature about 

13 work-related asthma.

14 CHAIR MARKOWITZ: Comments, 

15 questions?

16 (No audible response.)

17 MEMBER REDLICH: I think I also just 

18 commented I was -- the nice thing about the new 

19 manual is it's all PDF'd and you can easily search 

20 it. The recommendation also has a table with the 

21 criteria for diagnosing work-related asthma which 

22 just needs major revision and is not accurate.
83

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 I didn't include it in the handout.

2 MEMBER VLIEGER: This is Faye. 

3 Perhaps I'm not looking at the most up to date edited 

4 version. But on page 4, paragraph 3, second line 

5 from the bottom, that on a more likely than not 

6 basis for a significant factor, I'm not sure if 

7 that's something that Carrie typed up or if that's 

8 a quote from the manual. But the statute is as 

9 likely as not, like she quoted earlier.

10 CHAIR MARKOWITZ: Yes. You see that, 

11 Carrie?

12 MEMBER REDLICH: I'm just looking for 

13 the spot.

14 CHAIR MARKOWITZ: Page 4, the second 

15 full paragraph. Yes, the paragraph begins there 

16 are numerous other examples. We're looking at it 

17 on the screen, and if you look at the last sentence.

18 MEMBER REDLICH: Okay.

19 CHAIR MARKOWITZ: So, remove more and 

20 say as least as, right?

21 MEMBER REDLICH: I'll correct that. 

22 Thank you.
84

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Other comments, 

2 questions?

3 (No audible response.)

4 CHAIR MARKOWITZ: Okay. So hearing 

5 none, then --

6 (Simultaneous speaking.)

7 MEMBER REDLICH: So, I would just add 

8 that having spent my professional career trying 

9 to teach practitioners how to diagnose work-related 

10 asthma, I think it is challenging.

11 So I think what is important for this 

12 to be implemented is that the training materials 

13 and the like, I just think that those need attention 

14 because I think it will take some training of those 

15 involved to sort of consistently and accurately 

16 make the diagnosis.

17 This is just because it's most 

18 physicians don't have, even pulmonary physicians, 

19 do not have much experience in diagnosing 

20 work-related asthma.

21 CHAIR MARKOWITZ: This is Steve 

22 Markowitz. So, DOL is not going to train the 
85

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 providers. But if it sets out very clear criteria 

2 for this --

3 MEMBER REDLICH: Yes, that's what I 

4 meant.

5 CHAIR MARKOWITZ: Okay.

6 MEMBER REDLICH: I meant that I just 

7 think it's important that there be clear criteria 

8 to provide guidance.

9 CHAIR MARKOWITZ: Okay, other --

10 MEMBER REDLICH: Currently that's, you 

11 know, such as the -- it's not included here but 

12 the current table that is I think meant to do that 

13 contains a number of inaccuracies.

14 CHAIR MARKOWITZ: Any other comments 

15 or questions on this topic?

16 (No audible response.)

17 CHAIR MARKOWITZ: Okay. I take it 

18 there -- are there any objections to Faye's revision 

19 of at least as likely as not?

20 (No audible response.)

21 CHAIR MARKOWITZ: No objections. So, 

22 fine. Is there a motion to accept this revised 
86

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 recommendation?

2 MEMBER WELCH: Yes, I move -- Dr. 

3 Welch.

4 CHAIR MARKOWITZ: Second. I second 

5 it, Steve Markowitz. Let's vote. Doug, if you 

6 could do the roll call.

7 MR. FITZGERALD: Sure. Dr. Dement?

8 MEMBER DEMENT: Yes.

9 MR. FITZGERALD: Dr. Silver?

10 MEMBER SILVER: Yes.

11 MR. FITZGERALD: Mr. Griffon?

12 MEMBER GRIFFON: Yes.

13 MR. FITZGERALD: Dr. 

14 Friedman-Jimenez?

15 MEMBER FRIEDMAN-JIMENEZ: Yes.

16 MR. FITZGERALD: Dr. Boden?

17 MEMBER BODEN: Yes.

18 MR. FITZGERALD: Dr. Redlich?

19 MEMBER REDLICH: Yes.

20 MR. FITZGERALD: Dr. Cassano?

21 MEMBER CASSANO: Yes.

22 MR. FITZGERALD: Dr. Welch?
87

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER WELCH: Yes.

2 MR. FITZGERALD: Dr. Sokas?

3 MEMBER SOKAS: Yes.

4 MR. FITZGERALD: Ms. Pope?

5 MEMBER POPE: Yes.

6 MR. FITZGERALD: Ms. Vlieger?

7 MEMBER VLIEGER: Yes.

8 MR. FITZGERALD: Mr. Turner?

9 MEMBER TURNER: Yes.

10 MR. FITZGERALD: Mr. Whitley?

11 MEMBER WHITLEY: Yes.

12 MR. FITZGERALD: Mr. Domina?

13 MEMBER DOMINA: Yes.

14 MR. FITZGERALD: Chairman Markowitz?

15 CHAIR MARKOWITZ: Yes.

16 MR. FITZGERALD: The recommendation 

17 carries.

18 CHAIR MARKOWITZ: Okay. It's 2:50. 

19 Let's take a ten minute break, and then we'll resume 

20 with COPD back at 3:00 p.m.

21 MR. FITZGERALD: One thing before you 

22 sign off, don't sign off. If you could just put 
88

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 your phones on mute because logging back on could 

2 take some time. So if you just want to put your 

3 phones on mute and we'll see you in 15 minutes, 

4 is that right, Chairman?

5 CHAIR MARKOWITZ: I put my phone on 

6 mute already. Yes, five after 3:00.

7 MR. FITZGERALD: Five after 3:00. 

8 Thank you.

9 (Whereupon, the above-entitled matter 

10 went off the record at 2:51 p.m. and resumed at 

11 3:07 p.m.)

12 CHAIR MARKOWITZ: Well, we have a 

13 quorum, so I think we can get started.

14 MR. FITZGERALD: Okay.

15 CHAIR MARKOWITZ: I think we're on 

16 COPD. Let's see, Kevin, if you could bring up Item 

17 G, yes. Okay, thank you. Okay, Laurie?

18 MEMBER WELCH: Yes. So this -- we have 

19 a response and a re-written proposal based on the 

20 -- to try to address the comments that we got from 

21 OWCP. So this was the -- the certain five bullet 

22 points you're looking at were our understanding 
89

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 of the primary reasons that OWCP did not accept 

2 our first recommendation.

3 The first one was that they wanted --

4 they were saying the presumption and any 

5 compensation would have to be due to a specific 

6 toxic substance. And the program has defined toxic 

7 substance as Number 2. And looking at it that way, 

8 the VGDF is way too broad.

9 The Number 4 was that the current 

10 presumption for COPD was, like, 20 years of exposure 

11 to the substance, and they thought that our -- the 

12 OWCP thought that our recommendation of five years 

13 of exposure was sufficiently inconsistent with 

14 their research. And then they requested 

15 clarification of the labor categories.

16 So the response we've put together 

17 basically said that there are many ways in which 

18 the Department currently accepts exposure to 

19 mixtures and lists some of the ones that are in 

20 their work processes and complex mixtures, such 

21 as diesel exhaust or welding fumes.

22 And they clearly accept solvents as a 
90

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 category, even though that can be a mixture of many, 

2 many different kinds. But trying to be somewhat 

3 responsive to them, we created something that names 

4 a lot of specific agents in addition to VGDF.

5 Let's see. If you can scroll down some 

6 more, Kevin, we're just going to get that next one 

7 up that we've got in.

8 So in terms of their statement that our 

9 recommendations are inconsistent with their own 

10 review, that it requires 20 years of asbestos 

11 exposure, we pretty much said, well, we need to 

12 review your documentation.

13 So now we're moving to what the new 

14 presumption is. So if you look under, primarily 

15 on Number 2, there are many different ways that 

16 a presumption of significant exposure to toxic 

17 substances can be accepted as causing COPD.

18 One would be five years of work with 

19 a list of specific agents. And defining where, 

20 they would figure out that those people were 

21 exposed, either from the OHQ or the EE-3. The next 

22 one is five years of work in any one of the job 
91

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 titles encompassed by major categories.

2 This one, I used it this way because 

3 Stephen was proposing putting those into the 

4 asbestos presumption. So I think we have to revisit 

5 these.

6 The last one is five years of exposure 

7 with agents that fall into one of those five major 

8 toxic substances groups. Within the SEM, agents

9 are grouped into these categories. So if there 

10 was an exposure to any particular agent, the claims 

11 examiner could look up that agent and see if it 

12 fell into one of these five categories.

13 So that's the main body of these --

14 (Audio interference)

15 CHAIR MARKOWITZ: There's some 

16 extraneous noise coming through. People should 

17 just be sure to put their phone on mute.

18 MEMBER WELCH: That helped, thanks. So 

19 we're still maintaining the emphasis on VGDF but 

20 providing alternative ways for the Department to 

21 accept claims where that's a factor, either by 

22 identifying one of these primary agents, working 
92

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 in particular job titles, or being exposed to an 

2 agent within one of those five groups which are 

3 all well recognized causes of COPD.

4 So, comments or questions?

5 (No audible response)

6 MEMBER WELCH: And I would also add 

7 that the SEM Subcommittee took a look at this 

8 before. We were giving it a wordsmithing before 

9 we sent it to the rest of the group.

10 CHAIR MARKOWITZ: Steve Markowitz. 

11 So this is really very nicely written up and, I 

12 think, pinpoints and addresses the issues on both 

13 Page 1 and 2 that DOL raised. I want to make a 

14 comment which -- because we just did occupational 

15 asthma, and there we saw language in which DOL 

16 accepts that VGDF causes, aggravates, or 

17 contributes to work-related asthma and relieves 

18 the claims examiner from having to identify, look 

19 for a toxic substance.

20 And yet, when it comes to a different 

21 kind of obstructive lung disease, COPD, there's 

22 insistence that the VGDF be linked to specific toxic 
93

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 substances.

2 I understand that asthma and COPD are 

3 a little bit different. And there's a standard 

4 for asthma that the doctor has to identify that 

5 it's temporally related to work, and that doesn't 

6 apply here to COPD. But nonetheless, DOL is 

7 displaying some clear flexibility about VGDF with 

8 relation to asthma and would appear to be 

9 demonstrating a lot less flexibility.

10 But I do think this scheme solves that 

11 problem and overcomes, I think, the principal 

12 reluctance that DOL has about the VGDF. Because 

13 here, it's clearly tied to either specific toxic 

14 substances or groups of toxic substances. So that 

15 can no longer be an objection.

16 I did want to ask the group though on 

17 Item 2, presumption of significant chronic exposure 

18 to toxic substances. And there it says, quote, 

19 claimants will be presumed to have had significant 

20 chronic occupational exposure, and it goes on. 

21 My question is whether introducing the word 

22 significant is potentially confusing in the claims 
94

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 process.

2 MEMBER WELCH: Yes, you may be right.

3 CHAIR MARKOWITZ: I mean, an alternative 

4 is simply take it out and say chronic and 

5 occupational exposure.

6 MEMBER WELCH: I actually think that's 

7 a good idea. Because significant has terminology 

8 in causation statements all the time. And I think 

9 it's not required when we're saying -- because here 

10 we're saying exposure is sufficient to aggravate, 

11 contribute, or cause.

12 And you don't have to -- we don't have 

13 to say it was a significant contributing factor 

14 of one of those. So I, unless anyone objects I 

15 would accept that amendment. So great, let's do 

16 it. We can take it out right were you have it 

17 highlighted, and then in the next sentence.

18 CHAIR MARKOWITZ: And then if you go 

19 up in Item 1, it appears again in the first line.

20 And then, Kevin, if you could just do a find/search 

21 and see if it's anywhere else that it shouldn't 

22 be. So other comments?
95

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER WELCH: Yes, that's okay to leave 

2 it there. That's good.

3 MEMBER BODEN: Can we go back to the 

4 one that you just said leave it there on for a 

5 moment?

6 MEMBER WELCH: Oh, yes. That was in 

7 a -- this was a background rationale.

8 MEMBER BODEN: Right. But -- oh, 

9 okay. So I was thinking maybe substantially, but 

10 it doesn't matter for the background.

11 MEMBER WELCH: No. So I guess the 

12 question is, for where I mentioned SOC as working 

13 the new jobs, should we go back and say any one 

14 of the job titles in the categories of construction, 

15 installation, maintenance, and repair, or 

16 construction maintenance, making it parallel to 

17 what we did with asbestos?

18 CHAIR MARKOWITZ: I think so.

19 MEMBER WELCH: I think we need to do 

20 that.

21 CHAIR MARKOWITZ: Right.

22 MEMBER WELCH: Stephen, do you know the 
96

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 right -- can you make that language work so it 

2 matches what --

3 CHAIR MARKOWITZ: Yes, sure.

4 MEMBER WELCH: -- we had in asbestos?

5 CHAIR MARKOWITZ: Sure, sure. And, 

6 you know, that's Item B. You know, there are 

7 several criteria, right. So the production 

8 workers are clearly covered by Item C.

9 MEMBER WELCH: Yes.

10 CHAIR MARKOWITZ: So we don't have this 

11 problem we had previously.

12 MEMBER WELCH: But we should still say, 

13 work in any one job title in --

14 CHAIR MARKOWITZ: Maintenance and 

15 construction.

16 MEMBER WELCH: Maintenance and 

17 construction. Just work in any one of the 

18 maintenance and construction job titles, whatever 

19 you would say. That's kind of how we should put 

20 it.

21 So, Kevin, you could have it say five 

22 years of work in any one of the maintenance and 
97

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 construction job titles. Yes, it can be or. Or 

2 is fine, construction.

3 CHAIR MARKOWITZ: And if anybody wants 

4 to test Number 5, all you have to do is put -- in 

5 the SEM, if you go to any --

6 MEMBER WELCH: Yes, that's good.

7 CHAIR MARKOWITZ: -- any job title that 

8 sounds like it is likely to be exposed to vapors, 

9 gas, dust or fumes. It typically has many 

10 different toxic substances associated with that 

11 job title.

12 MEMBER WELCH: That's a good edit, 

13 thanks. And A, B, and C may seem to be redundant, 

14 but the idea was to be redundant, so that there's 

15 not categories that slip between the cracks in some 

16 way.

17 CHAIR MARKOWITZ: Right. So other 

18 comments or questions?

19 MEMBER DEMENT: This is John. Just to 

20 reinforce the idea that, you know, in Item C there's 

21 categories. They're broad, but they're not always 

22 inclusive of everything. For example, we have 
98

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 metal. But machining aerosols include the metals 

2 as well as some of the cutting oils that are 

3 associated with it.

4 MEMBER WELCH: Yes. It's hard to know 

5 whether, you know, you'd have to look it up where 

6 machining aerosols --

7 MEMBER DEMENT: We have that covered 

8 in Item A.

9 MEMBER WELCH: Okay, yes. Right, 

10 good. Okay.

11 CHAIR MARKOWITZ: Okay, so Laurie had 

12 no objection to taking out significant. So I take 

13 it there's no other objections unless someone 

14 speaks up now. 

15 (No audible response)

16 CHAIR MARKOWITZ: So is there a motion 

17 to approve this?

18 MEMBER REDLICH: This is Carrie 

19 Redlich. Just before we vote, I would just also 

20 note that in the latest version of the procedure 

21 manual, I mean, the other piece of this is what 

22 the criteria are to diagnose COPD in addition to 
99

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 the exposure component.

2 And it just currently has mentioned, 

3 you know, bronchoscopy which is not used to diagnose 

4 COPD. And there's also a note that, and the 

5 employee has a history of being a never smoker. 

6 So I just draw attention that I think the written 

7 manual needs review and revision.

8 CHAIR MARKOWITZ: So, this is Steve 

9 Markowitz, you know --

10 MEMBER REDLICH: It's just so that 

11 people are aware.

12 CHAIR MARKOWITZ: I think for the --

13 when we get around to briefly discussing issues 

14 that next Board can take up, I think we should 

15 include that, the medical criteria for COPD 

16 diagnosis. Because that hasn't been addressed in 

17 this recommendation, but it should be addressed. 

18 And we should put it on the list.

19 MEMBER REDLICH: Yes. So I just 

20 wanted it noted.

21 CHAIR MARKOWITZ: Right, right.

22 MEMBER WELCH: Okay.
100

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Other comments?

2 MEMBER GRIFFON: Yes, Steve, this is 

3 Mark Griffon. On Number 4, I lost my connection, 

4 so I'm looking at maybe an old version. But on 

5 Number 4, I just wanted to make sure we had deleted, 

6 I think, the five years can be accumulated by a 

7 combination of DOE employment and employment 

8 outside of the DOE. Laurie, is that correct?

9 MEMBER WELCH: Yes.

10 MEMBER GRIFFON: Was that removed, or 

11 was that changed just to be DOE?

12 MEMBER WELCH: Oh, you know, yes. It 

13 needs to come out. And it's funny, I thought I'd 

14 taken it out many times. But I guess I went back 

15 and worked with an old draft. So yes, we should 

16 take that out.

17 MEMBER GRIFFON: An old version, 

18 that's why I asked, yes. Okay.

19 MEMBER WELCH: Yes.

20 MEMBER GRIFFON: So that should be 

21 removed, right?

22 MEMBER WELCH: Yes.
101

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: And that whole 

2 sentence or just five years cumulative at DOE and 

3 just take out the last three words, or outside DOE, 

4 or just remove the whole sentence?

5 MEMBER WELCH: I think we can just take 

6 it out because it's presumed, a duration of five 

7 years of employment exposure. It's presumed to 

8 be at DOE, because that's the way the legislation 

9 is structured. So I think we can take out the whole 

10 sentence.

11 CHAIR MARKOWITZ: Yes.

12 MEMBER CASSANO: Okay. Does that say 

13 anything about -- I'm just wondering about whether 

14 they're going to look at that as the duration of 

15 five years cumulative versus five years of 

16 consistent. Because I think there was someplace 

17 else where they looked only at exposure. You know, 

18 five years had to be --

19 CHAIR MARKOWITZ: Consecutive.

20 MEMBER CASSANO: -- consecutive, 

21 excuse me, not consistent.

22 CHAIR MARKOWITZ: Yes.
102

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: Versus cumulative. So 

2 I think we need the word cumulative in there 

3 somewhere.

4 CHAIR MARKOWITZ: Yes, Steve 

5 Markowitz. In four, if you go to four at the end 

6 of that line where it says a duration, you say a 

7 cumulative duration of five years, so after 

8 duration of. And if that's a little awkward, then 

9 Laurie can fix it later.

10 MEMBER WELCH: That's okay. But, 

11 like, there's other places where we said, you know, 

12 the other, the A, B, and C have five years of work, 

13 five years of exposure. I don't think we need to 

14 add cumulative there.

15 CHAIR MARKOWITZ: Right.

16 MEMBER WELCH: Because, well, also 

17 we're defining it down below. I think that's okay.

18 CHAIR MARKOWITZ: All right, other 

19 comments, questions?

20 (No audible response)

21 CHAIR MARKOWITZ: Okay, so if not, I 

22 think we have a motion, right, to accept? Do we 
103

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 have a motion to accept?

2 MR. FITZGERALD: No, I don't think we 

3 do.

4 CHAIR MARKOWITZ: Okay.

5 MEMBER SOKAS: So it's Rosie, I move 

6 to accept.

7 CHAIR MARKOWITZ: Okay, second?

8 MEMBER FRIEDMAN-JIMENEZ: This is 

9 George. I second.

10 CHAIR MARKOWITZ: Thank you, comments?

11 (No audible response)

12 CHAIR MARKOWITZ: Okay. Doug, the 

13 vote.

14 MR. FITZGERALD: Dr. Dement?

15 MEMBER DEMENT: Yes.

16 MR. FITZGERALD: Dr. Silver?

17 MEMBER SILVER: Yes.

18 MR. FITZGERALD: Mr. Griffon?

19 MEMBER GRIFFON: Yes.

20 MR. FITZGERALD: Dr. 

21 Friedman-Jimenez?

22 MEMBER FRIEDMAN-JIMENEZ: Yes.
104

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Dr. Boden?

2 MEMBER BODEN: Yes.

3 MR. FITZGERALD: Dr. Redlich?

4 MEMBER REDLICH: Yes.

5 MR. FITZGERALD: Dr. Cassano?

6 MEMBER CASSANO: Yes.

7 MR. FITZGERALD: Dr. Welch?

8 MEMBER WELCH: Yes.

9 MR. FITZGERALD: Dr. Sokas?

10 MEMBER SOKAS: Yes.

11 MR. FITZGERALD: Ms. Pope?

12 MEMBER POPE: Yes.

13 MR. FITZGERALD: Ms. Vlieger?

14 MEMBER VLIEGER: Yes.

15 MR. FITZGERALD: Mr. Turner? Mr. 

16 Turner, are you on mute?

17 MEMBER TURNER: Yes.

18 MR. FITZGERALD: Okay, I got you. Mr. 

19 Whitley?

20 MEMBER WHITLEY: Yes.

21 MR. FITZGERALD: Mr. Domina?

22 MEMBER DOMINA: Yes.
105

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: And Chairman 

2 Markowitz?

3 CHAIR MARKOWITZ: Yes. Faye, I -- you 

4 just seem to be getting worse on every vote. I 

5 feel sorry. We only have three more. So hang in 

6 there with us.

7 MEMBER VLIEGER: Thank you.

8 CHAIR MARKOWITZ: The next one is the 

9 occupational health questionnaire. John, are you 

10 leading this, or Laurie?

11 MEMBER DEMENT: I can take it if you'd 

12 like.

13 CHAIR MARKOWITZ: Okay, great.

14 MEMBER WELCH: Yes, that'll be great.

15 MEMBER DEMENT: So, the recommendation 

16 that's up. We had a long discussion of this at our 

17 last Board meeting. And basically, everything 

18 that was captured in this response is our 

19 discussion.

20 And if you look at the OWCP response, 

21 they believe that they had already updated the OHQ. 

22 And we, in fact, saw the revised edition. They 
106

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 also commented on the VGDF questions. Remember, 

2 we specifically wanted those questions in the OHQ. 

3 So we've already addressed Item 2. And I think 

4 we've taken care of the VGDF issue.

5 I think the Advisory Board was pretty 

6 consistent in its discussion of the OHQ, but the 

7 OHQ in relationship to what is the overall intent 

8 of the OHQ, and that's to gather occupational 

9 history information, is in a complete a manner as 

10 possible.

11 And so we felt still that we should 

12 retain the questions of task-based exposures where 

13 we could, and you have a reasonable set of tasks 

14 for construction. We acknowledge that 

15 non-construction was more of a problem. But we 

16 asked about exposures in particular, and we asked 

17 about the tasks that created those exposures. Some 

18 of them were hygienists' perspective. Those are 

19 important pieces of information to note.

20 Can you scroll down to the next page?

21 So basically, you know, I think we've pretty much 

22 stayed with our recommendation. I don't see that 
107

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 we've changed very much.

2 We simply responded back to DOL with 

3 regard to our view, if you will, of the incentive, 

4 the occupation history, to gather more information 

5 that's useful by hygienists, have that information 

6 available in a broader perspective to reviewers 

7 of the information, the positions in hygiene as 

8 decisions are made.

9 And I guess to -- at least in my view 

10 to reinforce the Board's view that they revise 

11 occupation history, it's not likely much of an 

12 advance forward with respect to trying to gather 

13 this information.

14 And I'm open, I guess, for discussion 

15 and comment. We discussed this at our SEM 

16 conference call a few weeks back. And I think this 

17 is a reflection of that deliberation as well.

18 CHAIR MARKOWITZ: The floor is open for 

19 comments or questions.

20 (No audible response)

21 CHAIR MARKOWITZ: So let me, just to 

22 provoke conversation a little bit, and so for, say, 
108

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 production or non-construction by a maintenance 

2 worker, how would what we're recommending differ 

3 from what DOL is doing?

4 MEMBER DEMENT: Well, I think it 

5 differs with respect to how we are asking about 

6 the task that's generating the exposure. And it's 

7 tied in, we recommended it to be tied in with each 

8 one of the exposures that are flagged in the OHQ.

9 So I think if a worker flags an 

10 exposure, then the follow-up question is that there 

11 is power for your exposure. It allows him, in a 

12 precise manner, to describe how that exposure 

13 occurred.

14 A lot of the tasks that 

15 non-construction workers would do are, in fact, 

16 quite similar to construction workers' tasks. And 

17 we expect that they would perhaps flag some of those 

18 anyway.

19 CHAIR MARKOWITZ: All right, thank 

20 you.

21 MEMBER POPE: This is Duronda Pope 

22 here. I think part of our discussion as well was 
109

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 we have production office workers that work in tank 

2 farms which had accumulation of different chemicals 

3 and toxic substances. And we wanted to make sure 

4 that they were included.

5 MEMBER DEMENT: Yes. I mean, they're 

6 clearly included with regard to, first, the toxic 

7 substances and then, of course, the description 

8 event would be the tank farm work.

9 MEMBER POPE: Right, thank you.

10 MEMBER DEMENT: I mean, I think we all 

11 acknowledge, and certainly the BTMed Program 

12 acknowledges that, you know, how this task is not 

13 complete. It represents some of the core tasks 

14 that we've identified that BTMed workers do.

15 There are lots of tasks that are done 

16 that are similar to these tasks and so in addition 

17 to. But nevertheless, we found that those tasks 

18 within themselves, combined with the history of 

19 frequency of doing tasks and the duration of doing 

20 that task, is not a bad predictor of getting 

21 outcomes, and particularly lung diseases that we 

22 looked at, and to scan the hearing loss information.
110

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Okay, other comments 

2 or questions?

3 MEMBER SILVER: Yes. This is Ken. I 

4 want to compliment you on having several places 

5 for free-text descriptions. If you think about 

6 some of the flaws of the program up to now, there's 

7 been a tendency to, you know, draw a matrix, check 

8 a box, and break everything down into tiny bites 

9 of information.

10 And I'm sure some of the industrial 

11 hygienists in the CMC have been thirsting for more 

12 of the kinds of information that, you know, we use 

13 all the time in our profession, workers describing 

14 how they did what they did.

15 MEMBER DEMENT: Absolutely. And I 

16 think one of the issues that we've already covered 

17 is that those reviewers of fact have that 

18 information as it was reported and given to the 

19 program to review.

20 MEMBER SILVER: Great.

21 MEMBER DEMENT: You know, these 

22 checking, checks in boxes and lists, I mean, they're 
111

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 useful, but we've found, over many years of working 

2 with it, that the task itself is a predictor of 

3 the exposure. And if nothing else, it will be a 

4 flag for a hygienist, if he or she reviews that 

5 information in the OHQ, to go back and ask the worker 

6 more details about that. If it doesn't provide 

7 a fact verification of exposure, it will provide 

8 a flag to ask more questions.

9 CHAIR MARKOWITZ: Other comments?

10 (No audible response)

11 CHAIR MARKOWITZ: Okay. So there are 

12 no modifications proposed here. Then I think we 

13 can hear a motion to accept.

14 MEMBER SILVER: Ken Silver, I make a 

15 motion to accept.

16 CHAIR MARKOWITZ: Is there a second?

17 MEMBER BODEN: Second.

18 CHAIR MARKOWITZ: I think it was Mark 

19 Griffon.

20 MEMBER BODEN: Les Boden.

21 CHAIR MARKOWITZ: Oh, Les. Okay. 

22 Any further comments?
112

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 (No audible response)

2 CHAIR MARKOWITZ: Okay, so I think we 

3 can take a vote.

4 MR. FITZGERALD: Okay. Dr. Dement?

5 MEMBER DEMENT: Yes.

6 MR. FITZGERALD: Dr. Silver?

7 MEMBER SILVER: Yes.

8 MR. FITZGERALD: Mr. Griffon?

9 MEMBER GRIFFON: Yes.

10 MR. FITZGERALD: Dr. 

11 Friedman-Jimenez?

12 MEMBER FRIEDMAN-JIMENEZ: Yes.

13 MR. FITZGERALD: Dr. Boden?

14 MEMBER BODEN: Yes.

15 MR. FITZGERALD: Dr. Redlich?

16 MEMBER REDLICH: Yes.

17 MR. FITZGERALD: Dr. Cassano?

18 MEMBER CASSANO: Yes.

19 MR. FITZGERALD: Dr. Welch?

20 MEMBER WELCH: Yes.

21 MR. FITZGERALD: Dr. Sokas?

22 MEMBER SOKAS: Yes.
113

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Ms. Pope?

2 MEMBER POPE: Yes.

3 MR. FITZGERALD: Ms. Vlieger?

4 MEMBER VLIEGER: Yes.

5 MR. FITZGERALD: Mr. Turner?

6 MEMBER TURNER: Yes.

7 MR. FITZGERALD: Mr. Whitley?

8 MEMBER WHITLEY: Yes.

9 MR. FITZGERALD: Mr. Domina?

10 MEMBER DOMINA: Yes.

11 MR. FITZGERALD: Chairman Markowitz?

12 CHAIR MARKOWITZ: Yes.

13 Okay. We're going to move on to 

14 Recommendation Number 5 from April 2017 having to 

15 do with enhancing the scientific and technical 

16 capacity within the program. We had recommended 

17 that.

18 DOL said they agreed it would be useful 

19 to have additional capability. They pointed out 

20 that they have some already. The paragon is a 

21 contractor. They have a medical director, the 

22 nurses, they have a toxicologist. And they look 
114

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 forward to getting additional assistance from us.

2 So this response here basically says 

3 that -- reiterates what we said before which is 

4 that there remain gaps, despite -- we realize they 

5 have resources, they have experts. But from our 

6 review of claims, the program, procedure manual, 

7 there are gaps.

8 And trying to briefly say what some of 

9 those gaps or functions were, for instance, 

10 following up on the IOM report, the kind of thing 

11 that Laurie Welch talked to us about with the 

12 examining IARC, and NTP, and IRIS, we know that 

13 DOL no longer has a contract with Haz-Map which 

14 is the function that linked exposures with 

15 diseases. Someone needs to maintain that, to keep 

16 that up, to advance it, and some other things that 

17 I mentioned here, evaluating claims for novel --

18 or conditions where the knowledge base is evolving.

19 I recall at the beginning of the Board's 

20 process two years ago that DOL specifically asked 

21 us for some help with some cancers and whether they 

22 were caused by certain exposures. And Dr. 
115

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Friedman-Jimenez did a very nice review on how to 

2 look at a particular question there. These are 

3 gaps. And they need to be filled.

4 And then I cite just a couple of 

5 examples of our own experience where, when we took 

6 on the issue of presumptions on occupational 

7 asthma, on hearing loss, which we haven't heard 

8 back from yet, on COPD, and asbestos, that there 

9 were, you know, faults basically in the medical 

10 and scientific thinking about them.

11 So we can assist on an ad hoc basis, 

12 or the Board can on an advisory basis. But there 

13 needs to be some sustained function within the 

14 organization that really has expertise in disease 

15 causations, and epidemiology, and occupational 

16 medicine, above and beyond what they have now. 

17 So that's what this says.

18 Actually, it probably would have been 

19 shorter to read it than to explain it, but in any 

20 event, any comments, questions?

21 (No audible response)

22 CHAIR MARKOWITZ: You know, I suspect 
116

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 there are other issues in play, budgetary issues, 

2 or administrative issues that are behind the 

3 scenes. We are arguing this on face value which 

4 is, you know, our role. So I suspect there are 

5 some other factors going on, not our business at 

6 the moment. Any additions, anything missing here?

7 (No audible response)

8 CHAIR MARKOWITZ: Okay. Then is there 

9 a motion to accept?

10 MEMBER FRIEDMAN-JIMENEZ: This is 

11 George. I move to accept.

12 CHAIR MARKOWITZ: Okay.

13 MEMBER WELCH: And this is Laurie, I 

14 second that.

15 CHAIR MARKOWITZ: Okay. So any 

16 comments?

17 (No audible response)

18 CHAIR MARKOWITZ: Okay, Doug, if you 

19 want to do a roll call. Doug?

20 MR. FITZGERALD: Oh, I'm sorry. I was 

21 on mute that time.

22 Dr. Dement?
117

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER DEMENT: Yes.

2 MR. FITZGERALD: Dr. Silver?

3 MEMBER SILVER: Yes.

4 MR. FITZGERALD: Mr. Griffon?

5 MEMBER GRIFFON: Yes.

6 MR. FITZGERALD: Dr. 

7 Friedman-Jimenez?

8 MEMBER FRIEDMAN-JIMENEZ: Yes.

9 MR. FITZGERALD: Dr. Boden?

10 MEMBER BODEN: Yes.

11 MR. FITZGERALD: Dr. Redlich?

12 MEMBER REDLICH: Yes.

13 MR. FITZGERALD: Dr. Cassano?

14 MEMBER CASSANO: Yes.

15 MR. FITZGERALD: Dr. Welch?

16 MEMBER WELCH: Yes.

17 MR. FITZGERALD: Dr. Sokas?

18 MEMBER SOKAS: Yes.

19 MR. FITZGERALD: Ms. Pope?

20 MEMBER POPE: Yes.

21 MR. FITZGERALD: Ms. Vlieger?

22 MEMBER VLIEGER: Yes.
118

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Mr. Turner?

2 MEMBER TURNER: Yes.

3 MR. FITZGERALD: Mr. Whitley?

4 MEMBER WHITLEY: Yes.

5 MR. FITZGERALD: Mr. Domina?

6 MEMBER DOMINA: Yes.

7 MR. FITZGERALD: Chairman Markowitz?

8 CHAIR MARKOWITZ: Yes.

9 MR. FITZGERALD: Okay.

10 CHAIR MARKOWITZ: Okay, so our final 

11 recommendation is Number 7. It has to do with the 

12 review of claims, excuse me, of CMC and IH reports 

13 by the Board. And this response, which Kevin, is 

14 a bit late-breaking. So there's a draft, and then 

15 Rosie Sokas added some language. I don't know, 

16 Carrie Rhoads, do we have access to Dr. Sokas' 

17 version? I don't want to put it up necessarily, 

18 I just want to know if we have access to it.

19 MS. RHOADS: It's in my email from this 

20 morning.

21 CHAIR MARKOWITZ: Yes, 12:48 p.m.

22 MS. RHOADS: Right, yes.
119

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Okay, so let me begin 

2 the conversation. Then, Rosie, you can take it 

3 over. Does that work?

4 MEMBER SOKAS: Okay.

5 CHAIR MARKOWITZ: Okay. So I for one 

6 feel very strongly about this, that Task Number 

7 4 of the Board specifically states that we will 

8 look at the work of the IH's staff physicians and 

9 consulting physicians to ensure the quality 

10 objectivity, and consistency. And I don't believe 

11 that we can do that unless we oversee examination 

12 of relevant reports and come to our own conclusions.

13 DOL's response was, in part, that they 

14 have a medical director who's conducting an audit, 

15 and they gave us examples of two audits, two 

16 quarterly audits from 2016 which were interesting 

17 and good. But that doesn't, in my view, supplant 

18 what we need to do, which is an independent look 

19 at quality, objectivity, and consistency.

20 Secondly, the medical director, 

21 actually in those two audits, he found problems 

22 in 13 out of 82 reviewed reports. So that's one 
120

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 out of every six reports there was a problem that 

2 required correction. That's fairly frequent. 

3 That's not -- that may or may not be acceptable 

4 or unacceptable, but that's fairly frequent in 

5 terms of finding issues.

6 MEMBER WELCH: And Stephen, can I add 

7 a comment there?

8 CHAIR MARKOWITZ: Sure, sure.

9 MEMBER WELCH: They were not all --

10 they weren't causation cases either. They were 

11 impairment ratings and a whole range of different 

12 opinions. So the impairment ratings, I think, are 

13 closed a bit easier.

14 CHAIR MARKOWITZ: Right, yes. Yes, 

15 there was a diverse -- he looked at causation, he 

16 looked at impairment, he looked at second opinions, 

17 and there was a fourth category he looked at.

18 And finally, the medical director's 

19 audit didn't entirely look at -- capture quality, 

20 objectivity, and consistency. It didn't address 

21 the forms he uses. And his report didn't address, 

22 for instance, consistency across different 
121

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 reports.

2 So for all those reasons, I think we 

3 -- and just the basic fulfillment of our obligation 

4 under Task Number 4, the Board needs to look at 

5 these claims.

6 Now, in our previous recommendation, 

7 we, I think, requested examining 50 claims. I 

8 think that's an inadequate number. And I think 

9 that the medical director's audit kind of 

10 demonstrates -- he's reviewing 160 or more per year 

11 -- demonstrates that we would need to look at more, 

12 because there are a lot of factors at play.

13 There're IH reports, there're CMC 

14 reports, there're the impairment ratings, there's 

15 the causation, there's second opinion, there're 

16 different types of claims, there's, you know, COPD, 

17 versus dementia, versus whatever. And so I think 

18 that it's going to require looking at, frankly, 

19 several hundred claims or reports, not 50, to do 

20 the job properly.

21 So let me turn it over to Rosie who has 

22 --
122

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER SOKAS: Yes. And I just -- I 

2 wanted to modify the document that was sent around 

3 earlier. Because we have had this conversation 

4 back and forth with the Department.

5 We originally were talking past each 

6 other and didn't realize that the medical director 

7 was performing any sort of a quality audit. But 

8 then when we did see those audits, I think there 

9 were very specific and troubling problems with the 

10 audit itself, not just the CMC reports that were 

11 being audited.

12 The audit instrument itself was 

13 inadequate. And the medical examiner focused on 

14 some very narrowly defined issues concerning the 

15 AMA guidelines and seemed to miss some other issues 

16 that might have been equally important.

17 So I think we could -- I would like to 

18 propose, and I wrote up a couple of items that we 

19 actually discussed at the last full Board meeting, 

20 that we include in this response to reflect the 

21 fact that, yes, we've seen what the medical director 

22 has conducted as an audit, and we are not satisfied 
123

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 with it.

2 And the first reason is that there's 

3 no mention in that audit of whether the information 

4 the CE forwarded to the CMC was sufficient or 

5 adequate. And that there needs to be a review, 

6 a clear understanding that the medical director 

7 is looking at the entire record, which I understand 

8 he is, and that the first evaluation piece is 

9 whether or not the CE has sent forward the 

10 information that should have been sent forward.

11 Now, if the Board's other 

12 recommendation that the entire record goes forward 

13 as adopted, then this isn't necessary. But, you 

14 know, this is kind of a second bite at that apple.

15 The second requirement that should be 

16 clearly expressed back to the Department of Labor 

17 is that the forms themselves need to include a 

18 medical director assessment about whether or not 

19 the CMC made an appropriate determination based 

20 on existing DOL guidelines or on the best available 

21 scientific information. And that's a judgment 

22 call that needs to be included that's nowhere 
124

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 currently in the evaluation form.

2 And then the third recommendation is 

3 actually a procedural recommendation which is that 

4 there should be more than one person conducting 

5 these so that you can have kind of a review of the 

6 reviewer, basically.

7 So I would insert those three as 

8 examples of changes that could be taking place as 

9 we're proceeding, because I don't think we really 

10 -- I don't disagree that it's important to do a 

11 large-scale audit. And I think that should stay 

12 in there. But I don't think we need to wait for 

13 that in order to make some fairly straightforward 

14 recommendations on quality assessment.

15 CHAIR MARKOWITZ: So Carrie and Kevin, 

16 and is it possible to bring up Rosie's version of 

17 this, because she did have the language. And it 

18 would help to be able to look at it from that --

19 this morning or early this afternoon, 12:48.

20 MR. BIRD: Yes. We're finding it now.

21 CHAIR MARKOWITZ: Okay, okay.

22 MEMBER SOKAS: And I apologize. In 
125

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 that one I didn't, you know, kind of complete the 

2 subsequent sentence. So I would leave everything 

3 that was originally in it, there. I would just 

4 insert these others.

5 In the meantime, this needs to change. 

6 And then the Board also takes the position that 

7 it cannot properly advise the Secretary unless, 

8 you know, and that continues on to the 

9 recommendation for the broader audit.

10 CHAIR MARKOWITZ: So, this is Steve 

11 Markowitz. And here's my question, Rosie. 

12 Looking at this, on Line 3 where the, I think, purple 

13 text begins, it says, the Board raises the concern 

14 that the audit process itself is flawed and fails 

15 to address the major questions concerning quality.

16 And then you list three things. Are 

17 those three things that you list, are those all 

18 of the concerns that you have about quality and 

19 about the process being flawed, or are those just 

20 examples? It's just --

21 MEMBER SOKAS: Those are immediately 

22 fixable and low-hanging fruit.
126

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Okay. So I would 

2 recommend some -- we don't have to do it now, but 

3 some language to indicate that either short-term 

4 changes that can be easily instituted just so --

5 MEMBER SOKAS: Okay. I agree with 

6 that.

7 CHAIR MARKOWITZ: Yes.

8 MEMBER CASSANO: Can we move, oh, can 

9 we move this up a little bit so we can see the whole 

10 thing? Thanks.

11 Yes, I think putting a statement in here 

12 that says, while the Board still has additional 

13 concerns, addressing these three issues 

14 immediately would greatly improve the process.

15 CHAIR MARKOWITZ: And the other 

16 question mark was on the third issue you raised 

17 where, quote, a review process in which reviews 

18 are conducted by two medical experts, end of quote, 

19 is that the same CMC report that's being reviewed 

20 by two separate doctors?

21 MEMBER SOKAS: Right. What it is, so 

22 you change the requirements of the audit itself 
127

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 so that you have to answer two additional questions, 

2 one, did the CE send forward appropriate 

3 information and, two, did the CMC make an 

4 appropriate judgment based on that information and 

5 on appropriate medical, scientific evidence.

6 And then that change is implemented by 

7 two people. So the medical -- currently the 

8 medical director conducts all these audits. And 

9 there is a secondary review that takes place by 

10 his supervisor who is not a physician but, I 

11 believe, may be a nurse by background.

12 But that's mostly, again, currently on 

13 the basis of, you know, there's a kind of a 

14 combination of common sense and the rules of the 

15 program that get applied at that level.

16 But there are in -- oh, there is at least 

17 one other position in OWCP who could at least do, 

18 you know, some auditing just to sort of double check 

19 to see if people were saying the same thing.

20 I mean, there has to be a process in 

21 place where it's not a single individual doing it. 

22 But the goal would be to have two medical opinions 
128

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 just to see how things are working out. Because 

2 I think there were some concerns raised.

3 CHAIR MARKOWITZ: Comments, 

4 questions?

5 (No response.)

6 CHAIR MARKOWITZ: Okay. So I think 

7 that the modifications that Rosie is recommending, 

8 we need to -- does anyone have any objections to 

9 that modification? Any, Rosie, you and I should 

10 wordsmith a little bit just to retain the meaning 

11 but make it a little bit clearer?

12 MEMBER SOKAS: Sure.

13 CHAIR MARKOWITZ: But that's implied 

14 regardless. So, okay, hearing no objections then, 

15 is there a motion to accept this revised 

16 recommendation?

17 MEMBER FRIEDMAN-JIMENEZ: One small 

18 point, this is George. The sentence that said, 

19 however the Board takes the position that it cannot 

20 properly advise, that now has a big piece put in 

21 there, but it's no longer a sentence. So that needs 

22 to be fixed grammatically.
129

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Right, yes.

2 MEMBER SOKAS: Right.

3 CHAIR MARKOWITZ: We will take care of 

4 that.

5 MEMBER FRIEDMAN-JIMENEZ: Okay.

6 CHAIR MARKOWITZ: Yes, thanks. Okay, 

7 so is there a motion to approve or to --

8 MEMBER CASSANO: Moved.

9 CHAIR MARKOWITZ: Okay. And is there 

10 a second?

11 MEMBER CASSANO: Tori, this is Tori, 

12 so moved.

13 CHAIR MARKOWITZ: And a second?

14 MEMBER SOKAS: I'll second, it's 

15 Rosie.

16 CHAIR MARKOWITZ: Okay. So any 

17 comments, final comments?

18 (No response.)

19 CHAIR MARKOWITZ: Okay. So time for 

20 roll call, Doug.

21 MR. FITZGERALD: Okay. Dr. Dement?

22 MEMBER DEMENT: Yes.
130

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MR. FITZGERALD: Dr. Silver?

2 MEMBER SILVER: Yes.

3 MR. FITZGERALD: Mr. Griffon?

4 MEMBER GRIFFON: Yes.

5 MR. FITZGERALD: Dr. 

6 Friedman-Jimenez?

7 MEMBER FRIEDMAN-JIMENEZ: Yes.

8 MR. FITZGERALD: Dr. Boden?

9 MEMBER BODEN: Yes.

10 MR. FITZGERALD: Dr. Redlich?

11 MEMBER REDLICH: Yes.

12 MR. FITZGERALD: Dr. Cassano?

13 MEMBER CASSANO: Yes.

14 MR. FITZGERALD: Dr. Welch?

15 MEMBER WELCH: Yes.

16 MR. FITZGERALD: Dr. Sokas?

17 MEMBER SOKAS: Yes.

18 MR. FITZGERALD: Ms. Pope?

19 MEMBER POPE: Yes.

20 MR. FITZGERALD: Ms. Vlieger?

21 MEMBER VLIEGER: Yes.

22 MR. FITZGERALD: Mr. Turner?
131

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER TURNER: Yes.

2 MR. FITZGERALD: Mr. Whitley?

3 MEMBER WHITLEY: Yes.

4 MR. FITZGERALD: Mr. Domina?

5 MEMBER DOMINA: Yes.

6 MR. FITZGERALD: Chairman Markowitz?

7 CHAIR MARKOWITZ: Yes.

8 Okay, we've completed the review of the 

9 recommendations. On our original agenda, 

10 actually, if you could bring that up, the next was 

11 if there are any reports from any subcommittees. 

12 I think only the SEM Subcommittee has met. But 

13 is there anything to add from that committee or 

14 any other committee?

15 (No response.)

16 CHAIR MARKOWITZ: Okay. Sounds like 

17 you don't have anything. That's fine.

18 So I think lastly, Kevin, if you could 

19 bring up the file that I sent to Carrie a while 

20 ago called Prioritizing Issues.

21 But what I did was I took the minutes 

22 from the last meeting. At the end of the meeting, 
132

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 you may recall, in Santa Fe, we had a brief 

2 discussion about issues that the next Board might 

3 take up. And I just listed these here. They're 

4 in no particular order.

5 I want to just review them briefly, but 

6 mostly I want to have a discussion about adding 

7 to them. This is our last meeting. And if there 

8 are items that we can recommend that the next Board 

9 address, this is the mechanism by which we would 

10 do that.

11 First though, I would take out the word 

12 prioritizing. I'd just keep it at issues for the 

13 next Board. Because there's no -- this listing 

14 of nine, and if we add to it, there's no -- we're 

15 not setting priorities.

16 So briefly then, the first thing is to 

17 make progress, additional progress on the issue 

18 of what does it mean to apply a standard of 

19 aggravated, contributed to, or caused by an 

20 exposure. Since we discussed that, we've talked 

21 about it, but it needs more direct discussion.

22 Secondly -- and these, by the way, these 
133

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 were added from different authors. These are from 

2 different people who made these suggestions. And 

3 I didn't make any attempt to attribute them to 

4 anybody.

5 To revisit the SEM, we look at the 

6 exposure assessment in the claims process. We have 

7 made recommendations on the OHQ on these informal 

8 workers, or having industrial hygienists talk 

9 directly to claimants. This is all 

10 exposure-related. And so then we think that SEM 

11 should be revisited to see what else needs to be 

12 addressed.

13 And the third thing is to look, and I 

14 think this relates to the last recommendation 

15 actually, is to look more deeply at available claims 

16 data.

17 There was an exercise that Carrie 

18 Redlich referred to, and John Dement did a nice 

19 analysis of some claims data, mostly beryllium and 

20 lung disease, which was extremely useful. And it's 

21 the only time we've done that. And the Board ought 

22 to look at additional claims data to identify what's 
134

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 going on in the program.

2 There was the suggestion that the Board 

3 look at the topics of durable medical equipment 

4 authorization. I'm not sure exactly if that fits 

5 into any of our tasks. If someone has an idea about 

6 that, then we ought to put that in there because 

7 on the face of it, there might be some objection 

8 to us addressing it.

9 A fifth is to look at the program's 

10 performance on impairment ratings. And I think 

11 this would fall under weighing medical evidence 

12 in the form of the functions.

13 Six is to look at additional conditions 

14 that are most common for the most commonly denied 

15 types of claims, to get additional data on that.

16 Seventh is to take a closer look at 

17 neurologic illnesses. We spent a lot of time on 

18 risk certainties, some limited time on cancer, and 

19 hardly any time on neurologic illnesses.

20 There was a suggestion that the Board 

21 ought to interact more with the physicians from 

22 DOL to get a better understanding of their role 
135

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 and functioning.

2 And then finally, it was suggested that 

3 the Board have initial presentations from DOL so 

4 that they can understand the program from the 

5 get-go.

6 So are there additional ideas, or any 

7 modification of these things, or additional things 

8 we think the Board should take a look at?

9 MEMBER DEMENT: This is John. From 

10 the OHQ perspective, we had strongly recommended 

11 a redraft of OHQ and perhaps in combination with 

12 use of former workers, a pilot process to evaluate 

13 the OHQ, how well it's collecting information. 

14 I think the new Board needs to be more involved 

15 with that review of the pilot data.

16 CHAIR MARKOWITZ: So the pilot data 

17 specifically with reference to the OHQ.

18 MEMBER DEMENT: Yes, yes. We 

19 requested, at least our recommendation was to, you 

20 know, pilot test the new questionnaire and data 

21 gathering process. Because that will be 

22 something, I think, the Board ought to be involved 
136

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 in taking a look at.

2 CHAIR MARKOWITZ: So, Kevin, I think 

3 if you wouldn't mind getting these down on the 

4 screen, it would be very helpful.

5 MR. BIRD: Okay. If you just want to 

6 let me know again, sorry.

7 CHAIR MARKOWITZ: Number 10.

8 MEMBER DEMENT: I'll just say it again, 

9 the new Board needs to be involved in evaluating 

10 the pilot data from the OHQ redrafted 

11 questionnaire.

12 MR. BIRD: So you say from the 

13 redrafting of the OHQ?

14 MEMBER DEMENT: Yes, the pilot from the 

15 redrafted OHQ questionnaire.

16 MR. BIRD: How's that?

17 MEMBER DEMENT: Yes.

18 MR. BIRD: Okay, perfect.

19 CHAIR MARKOWITZ: Kind of an obvious 

20 thing is to follow-up on Number 11, to follow-up 

21 on Board recommendations today's date, including 

22 hearing loss.
137

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 And I don't know that there was another 

2 recommendation that we haven't heard about for the 

3 moment. So we need to follow-up on Board 

4 recommendations.

5 And, I think, another Item 12 would be 

6 to monitor the outcomes of changes made by DOL in 

7 response to Board recommendations. So for 

8 instance, they don't have to list this necessarily, 

9 but the concern that people who don't meet 

10 presumptions will not necessarily get a fair shake 

11 in evaluation, that can be looked at.

12 MEMBER BODEN: Yes. I think it's a 

13 great idea to take another look at the changes that 

14 have been made and how they continue to affect the 

15 claims process.

16 CHAIR MARKOWITZ: So just on 

17 recommendations, if you could replace that period 

18 with a comma. No, no, I'm sorry, at the end, Number 

19 12, that's the Board recommendations, including 

20 the claims process and outcomes. And I'll clean 

21 up the language a little bit.

22 MEMBER CASSANO: This is Tori. I'd 
138

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 like to add a couple of things to Number 7 besides 

2 neurological illnesses. I think we should add 

3 cancers other than respiratory cancers such as 

4 urological cancers and hematologic cancers.

5 (Simultaneous speaking.)

6 MEMBER WELCH: With that and the 

7 neurologic conditions, maybe going back to the 

8 issue of how they're determining causation. So 

9 if we can get the recommendations to update the 

10 SEM with additional causal data, it'll affect the 

11 way you approach looking at those conditions. 

12 Because I assume you're talking about focusing on 

13 causation analysis related to those conditions. 

14 And currently, there's been a limited move from 

15 SEM, I think.

16 MEMBER CASSANO: Yes.

17 MEMBER WELCH: And actually, while I 

18 have the mic, Stephen, you had mentioned earlier, 

19 related to SEM, to have some process by which 

20 Department of Labor continues their contract with 

21 the National Library of Medicine, their Haz-Map.

22 And Haz-Map is being updated. I was 
139

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 on that site recently, and seeing they have it 

2 updated, I thought that we would understand --

3 understood from Rachel that the Commissioner who 

4 may have retired and no one is updating it. But 

5 I think that it looks like it is being updated. 

6 It has a new format, it looks different than it 

7 did six months ago.

8 CHAIR MARKOWITZ: Good.

9 MEMBER WELCH: But, you know, there 

10 should be -- we should be assured that there's an 

11 ongoing connection with Haz-Map and some of the 

12 side projects, but improvement in Haz-Map and 

13 understanding -- having the Board understand how 

14 the National Library of Medicine is managing 

15 Haz-Map. It could cause some real problems if they 

16 don't -- if they're having it peer reviewed and 

17 pulling in other data sources.

18 CHAIR MARKOWITZ: So, Laurie, not to 

19 get concrete, but is there an item to be listed 

20 here from your suggestion there?

21 MEMBER WELCH: Well, I was just saying 

22 we have number -- revisit the SEM at a broad level.
140

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Right.

2 MEMBER WELCH: We can add to there, 

3 focus on, I think, revisit the SEM at a broad level, 

4 somewhere in there, and ensure that DEEOICP still 

5 has a relationship with National Library of 

6 Medicine for Haz-Map. I think that would probably 

7 be enough, as long as we're just mentioning Haz-Map.

8 CHAIR MARKOWITZ: Now, getting back to 

9 Tori's comment about neurologic and hematologic 

10 cancers, because, Tori, you wanted to add that to 

11 seven.

12 MEMBER CASSANO: Yes. Yes, just 

13 because, I mean, I think neurologic illnesses are 

14 important when you look at things like metal 

15 intoxicant encephalopathy, but Parkinson's Disease 

16 which is related to organic solvent exposure.

17 But, you know, I think we focus so much 

18 on respiratory cancers that to just pinpoint the 

19 neurological illnesses without talking about some 

20 of these other cancers makes it sound like the only 

21 thing that hasn't been addressed properly is the 

22 neurological illnesses. And I don't think that's 
141

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 necessarily the case.

2 So I thought, you know, adding 

3 additional cancers other than respiratory cancers, 

4 or just put it like that, because we really didn't 

5 look at anything else other than the ovarian cancer 

6 as it relates to asbestos exposure.

7 So there's a whole lot of other stuff 

8 out there that we haven't really looked at to see 

9 how they are actually adjudicating those claims.

10 CHAIR MARKOWITZ: So if we took out --

11 so if we added neurologic illnesses, cancer, took 

12 out the toxic encephalopathy, which greatly 

13 restricts it, you know, clearly it's broader than 

14 that, are there other categories of illness that 

15 we should name, basically neurologic illness and 

16 cancer is where we're at.

17 MEMBER CASSANO: Well, we could -- I 

18 mean, if we wanted to, endocrine conditions might 

19 be something we might want to look at within that. 

20 Thanks. Does anybody have anything else to add?

21 CHAIR MARKOWITZ: So any other items 

22 for the list?
142

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER SILVER: This is Ken. We had 

2 two recommendations discussed earlier. One would 

3 increase the job satisfaction and collegial 

4 environment of the occupational physicians. 

5 Another one would hopefully bring about the hiring 

6 of people with more expertise in occupational 

7 medicine, epidemiology, related subjects.

8 What about growing the internal talent 

9 pool of OWCP's claims examiners? Seems like a lot 

10 of them are trained when a new major revision comes 

11 down, but the training is really just checking the 

12 boxes and complying with the rule.

13 I think back, this program would have 

14 been a dream job for me right out of college. But 

15 at the level I function at now, it would be a 

16 nightmare. That's kind of sad. It would be nice 

17 if people who start off in this program could add 

18 to their credentials, and advance along some kind 

19 of career path, and become more critical, 

20 independent thinkers, and learn a lot of what 

21 members on this Board have learned in their careers.

22 So the next Board maybe could have a 
143

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 dialogue with the director of OWCP about starting 

2 to build something like that. There are so many 

3 free webinars that a person with a couple of hours 

4 at their desk in a bureaucracy could avail 

5 themselves of and add depth to their knowledge of 

6 occupational disease and chemical exposures 

7 instead of waiting for the program staff to 

8 parachute in from Washington.

9 It would take a fair amount of tweaking 

10 the relationship with the union that represents 

11 people, but I really think that's the long-term 

12 solution for a lot of the problems we've identified.

13 CHAIR MARKOWITZ: So, Ken, this is 

14 Steve Markowitz. So if we added an Item 13, it 

15 would be something like examine and encourage 

16 additional continuing education for claims 

17 examiners. Does that capture it?

18 MEMBER SILVER: Continuing education 

19 and credentialing.

20 CHAIR MARKOWITZ: Okay, okay. 

21 Encourage additional continuing education and 

22 credentialing for claims examiners.
144

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER DEMENT: Thank you.

2 MEMBER BODEN: This is Les. Related 

3 to Ken's point, is there any kind of promotion 

4 ladder within so that CEs not only could get 

5 additional education but could move up? I just 

6 don't know anything about that. And it would fit 

7 with Ken's suggestion.

8 MEMBER CASSANO: I think we had asked 

9 about this early on with the Board about what the 

10 career progression was and what kind of education 

11 the CEs had besides procedural and policy education 

12 and if there were those opportunities. So I think 

13 that's something that I think got was, sort of, 

14 you know, put in the parking lot because of all 

15 the other issues we needed to address.

16 And I think that was something we wanted 

17 to do when we could talk to the claims examiners 

18 directly. But we're not -- we were not able to 

19 do that. So I think that was information we were 

20 going to try to get from them.

21 So I think that's something that we do 

22 need to add to this to look at -- and just a statement 
145

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 that says look at the educational opportunities 

2 and career progression for claims examiners and 

3 other staff involved in the claims review process.

4 CHAIR MARKOWITZ: So, Ken, I think we 

5 want to slip in Dr. Cassano's phrase: career 

6 progression, continuing education, comma, 

7 credentialing, and career progression for claims 

8 examiners. And was that other staff, Tori?

9 MEMBER CASSANO: Yes. Career 

10 progression for claims examiners and other staff 

11 involved in the claims review process.

12 CHAIR MARKOWITZ: So Item 14, if we're 

13 done with that, I would say that we'd encourage 

14 the Board to ensure that public comments are 

15 appropriately tracked and subsequently integrated 

16 into Board discussions. Other comments, issues?

17 (No response.)

18 CHAIR MARKOWITZ: I will write a little 

19 bit of introductory sentence or two saying that 

20 these don't necessarily represent priorities, but 

21 that there are some items that should be addressed 

22 by the next Board.
146

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: Could you just scroll 

2 up so we could see the whole list from the beginning?

3 CHAIR MARKOWITZ: Other comments or 

4 additions?

5 MEMBER REDLICH: This is probably just 

6 included in one of these many other suggestions, 

7 so if -- there were just a number of examples of 

8 inconsistencies between, like, the manual and the 

9 training materials, so just more of the 

10 implementation of the recommendations. So I think 

11 that's incorporated.

12 CHAIR MARKOWITZ: But in your work --

13 it's Steve Markowitz -- in your work on asthma, 

14 you actually saw in the procedure manual that there 

15 were inconsistencies, contradictions. Is that 

16 right?

17 MEMBER REDLICH: Yes. And that was 

18 sort of common with all the beryllium, sarcoid, 

19 and other, you know, in that area.

20 CHAIR MARKOWITZ: Well, so I think that 

21 deserves a separate line actually, a separate item.

22 MEMBER SOKAS: I agree. It's Rosie.
147

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER CASSANO: I do too.

2 CHAIR MARKOWITZ: So it's Number 15.

3 MR. BIRD: Sorry, Dr. Markowitz, can 

4 you repeat that for me?

5 CHAIR MARKOWITZ: I could if I'd said 

6 something.

7 MEMBER REDLICH: Something like review 

8 of the latest procedure manual and training 

9 materials for accuracy and consistency.

10 MEMBER CASSANO: Perfect.

11 MR. BIRD: You guys want training

12 materials instead of manual? Sorry.

13 MEMBER REDLICH: Yes, that's -- thank 

14 you.

15 MEMBER FRIEDMAN-JIMENEZ: Okay, this 

16 is George. I have one other comment. And I don't 

17 see it down. Number 3, I think, that mentioned 

18 the Haz-Map, would you like to include also IARC 

19 and NTP? Those are the two main sources for 

20 causation reviews for cancers.

21 And I think it would be useful to 

22 mention Number 2. And I think it would be useful 
148

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 to mention them, to focus the new Committee on those 

2 two. I think they're very useful. And they should 

3 be an integral part of this process.

4 Do you want to add it after Haz-Map or 

5 put a separate line?

6 MEMBER WELCH: I don't think we need 

7 to do that. You know, we're already making a 

8 recommendation about it. And I guess even it could 

9 have implied that the new Board would follow-up 

10 on all the recommendations.

11 Because we don't want them really to 

12 limit it to those. We want them to include all 

13 the ones that have been recommended, but this on, 

14 I think, since we have a recommendation about it. 

15 So we don't need to add it specifically.

16 Stephen, do you think we should have 

17 here, you know, follow-up on all the 

18 recommendations or is that just --

19 CHAIR MARKOWITZ: Yes. I think 

20 they're, yes, Number 11. I think it's covered 

21 under Number 11.

22 MEMBER WELCH: Okay.
149

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 MEMBER REDLICH: Could we just add a 

2 minor edit to Number 15? Review of the latest 

3 manuals, circulars, and bulletins, and, comma, 

4 circular, comma, bulletins and training materials. 

5 Because sometimes the intent seemed to sometimes 

6 change when things went from one to the other.

7 CHAIR MARKOWITZ: Okay, anything else 

8 on the list? So we're not, obviously, going to 

9 vote on these. These are just items that make sense 

10 to us.

11 That is pretty much the end of our 

12 agenda unless anybody has any other matter they 

13 want to raise. I am going to discuss the schedule 

14 for the next two weeks. But are there any other 

15 issues anybody wants to bring up?

16 (No response.)

17 CHAIR MARKOWITZ: So --

18 MEMBER BODEN: This is Les, actually.

19 CHAIR MARKOWITZ: Yes.

20 MEMBER BODEN: So I don't know what's 

21 going to happen in terms of the appointment of the 

22 new Board. But I just wanted to express my thanks, 
150

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Stephen, for the really wonderful work that you've 

2 done as Chair of the current Board.

3 MEMBER CASSANO: Hear, hear.

4 MEMBER FRIEDMAN-JIMENEZ: I second 

5 that.

6 CHAIR MARKOWITZ: Do you take a roll 

7 call?

8 MEMBER SOKAS: And also the pleasure 

9 was working with everyone who's on the current 

10 Board. So thank you.

11 CHAIR MARKOWITZ: Yes, my view is that 

12 we've really worked well together, you know, the 

13 entire group. And we've been productive. We 

14 haven't covered everything, but we've covered some 

15 very important issues. I don't think we have a 

16 complete understanding of this program, but we've 

17 gone pretty far in understanding things. And I 

18 think it's been a really excellent effort. And 

19 personally, very pleasurable to me to work with 

20 everybody on this Board.

21 I want to thank the Department of Labor 

22 folks, particularly Carrie Rhoads, Doug 
151

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 Fitzgerald, and the contractor, Kevin Bird, for 

2 the support, the patience, for turning things 

3 around quickly, for reminding us of certain things 

4 we needed to get done by certain time periods.

5 And I also wanted to thank the public 

6 that's participated in each of our meetings, both 

7 the one-timers who showed up at the various sites 

8 we went to, but also the people who have 

9 consistently come to our meetings, provided public 

10 comments, enriched our knowledge. I hope that

11 we've effectively addressed at least some of the 

12 issues on people's minds. I know we haven't 

13 addressed them all, but with time hopefully they 

14 will become addressed. But I appreciated that 

15 interaction very much.

16 I also want to congratulate Laurie 

17 Welch who is, I think, retiring tomorrow from --

18 MEMBER WELCH: That's correct. That 

19 is correct.

20 CHAIR MARKOWITZ: -- a career that 

21 began in 1982 or so. So I'm being approximate, 

22 because I don't know exactly the date.
152

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 I have three phone calls with Laurie 

2 tomorrow. So I don't have to say goodbye to her. 

3 But I do want to congratulate you on a wonderful 

4 career.

5 MEMBER WELCH: Well, thank you. And, 

6 you know, I plan to -- you guys that are staying 

7 on the Board, you know, you've got to keep up the 

8 work that we started, so I can bask in the glory 

9 and not have to have to do any more work. That's 

10 my view.

11 (Laughter.)

12 CHAIR MARKOWITZ: But I'm happy to say 

13 she hasn't -- she's not changing her cell phone 

14 number, so that's good too.

15 MEMBER WELCH: Or my email, yes, my 

16 email too. I know, I'm here.

17 CHAIR MARKOWITZ: Okay, good. Any 

18 other comments before, I think, Doug needs to close, 

19 or adjourn this meeting, or say something before 

20 we close?

21 MEMBER REDLICH: So maybe I missed this, 

22 it's Carrie. What is the plan going forward?
153

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 CHAIR MARKOWITZ: Okay. So the plan 

2 going forward is that by next Tuesday, February 

3 6th, well, first, Carrie and Kevin are going to 

4 send around these recommendations, these things 

5 that we've been looking at and working on.

6 And then the person or persons who have 

7 taken the primary responsibility for writing these 

8 up are going make whatever small change is needed 

9 and send it to me and to Carrie by February 6th. 

10 That's next Tuesday. Then we will turn that all 

11 around and submit them to DOL, hopefully by February 

12 9th. That's a week before most members of the Board 

13 terms expire. Does that time table work?

14 MEMBER REDLICH: Works for me.

15 CHAIR MARKOWITZ: That's good, that's 

16 good. Hearing no objection, that's good.

17 So, Doug, do you need to -- is there 

18 any official announcement you need to make to --

19 MR. FITZGERALD: No. I just want to 

20 say that, and I think I can speak for Carrie, that 

21 we both really appreciate all the work the Board 

22 has done on behalf of the program, taking time out 
154

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 from your personal lives to contribute to this, 

2 try to make it a better program. And I want to 

3 applaud you and thank you, Stephen, for your 

4 leadership as Chairman in this as well. And I hope 

5 we all talk very soon. But we will see.

6 CHAIR MARKOWITZ: Well, I hope Faye 

7 begins to talk again very soon.

8 (Laughter.)

9 MEMBER VLIEGER: Faye has one 

10 question. Do we know the date that they're going 

11 to announce the Board members that are seated on 

12 the next Board?

13 MR. FITZGERALD: I've been given no 

14 information on that.

15 MEMBER REDLICH: This is Carrie. One 

16 last thing, we had mentioned giving a list of 

17 specific cases or claims that we had questions with 

18 the final adjudication. I have put together a list 

19 from the Part D conditions. I don't know if others 

20 from cases they interviewed had any.

21 And the question is what do we do with 

22 that list also. Because it has some identifiers 
155

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 or has to have some identifiers of the person, how 

2 the best way to communicate that in terms of HIPAA 

3 compliance.

4 CHAIR MARKOWITZ: Yes. It's a good 

5 point. We did not discuss this.

6 MS. RHOADS: It might be that faxing 

7 that would be the best thing to do. But let me 

8 check. And then I'll send an email about that.

9 MEMBER REDLICH: When we adopt them, 

10 they just have -- they have the identifier, I know, 

11 the last four numbers of --

12 MS. RHOADS: If the identifier is 

13 related to the Social Security number, we can't 

14 email it. So let me check and see what the 

15 identifier is, okay.

16 CHAIR MARKOWITZ: Okay. Any other 

17 comments before we adjourn?

18 (No audible response)

19 CHAIR MARKOWITZ: Okay. So I'd like 

20 to adjourn this meeting of the Board and --

21 MR. FITZGERALD: Yes, I concur.

22 CHAIR MARKOWITZ: -- wish everyone well.
156

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

1 (Whereupon, the above-entitled matter 

2 went off the record at 4:31 p.m.)

3

4