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U.S. DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

WEDNESDAY

NOVEMBER 30, 2022

+ + + + +

The Advisory Board met at the JW 

Marriott Las Vegas Resort & Spa, Cataluna Room, 221 

N Rampart Blvd, Las Vegas, NV, at 9:00 a.m. PST, 

Steven Markowitz, Chair, presiding.

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN*

GEORGE FRIEDMAN-JIMENEZ*

MIKE VAN DYKE

MEDICAL COMMUNITY

MARIANNE CLOEREN

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI

KEVIN VLAHOVICH

CLAIMANT COMMUNITY

JIM H. KEY

GAIL SPLETT

DIANNE WHITTEN

LORNA ZABACK

DESIGNATED FEDERAL OFFICIAL

RYAN JANSEN
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ALSO PRESENT

KEVIN BIRD, SIDEM

CHRIS GODFREY, DOL*

AMY LIEFER, DOL*

VANESSA MYERS, DOL*

JOE PLICK, DOL*

RACHEL POND, DOL

CARRIE RHOADS, DOL

JOHN VANCE, DOL

*Present via video teleconference
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CONTENTS

Introductions ................................. 4

Welcome ....................................... 8

Review of Agenda ............................. 26

FACA Review .................................. 41

Energy Statute/Creation of the Board ......... 30

Ethics Rules ................................. 64

Break

Overview of EEOICPA .......................... 95

Lunch

Program Updates, Last 12 Months ............. 180

SEM Demonstration ........................... 211

Board Discussion: ..............................

Review of recommendations and action items

New EEOICP Data on Top Ten Conditions

of Claims

Board request for resources

Plan for large case review

Additional and new issues

Break 15 minutes; Continue

Board Discussion ............................ 306

Public Comment period ....................... 346

End of Day One
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P-R-O-C-E-E-D-I-N-G-S

9:01 a.m.

MR. JANSEN: All right. Let's get 

started. Good morning, everyone. My name is Ryan 

Jansen, and I'm the designated federal officer for 

the Department of Labor's Advisory Board on Toxic 

Substances and Worker Health.

I would like to welcome you to today's 

meeting of the Advisory Board here in Las Vegas, 

Nevada. Today is Wednesday, on November 30th, 

2022, and we are scheduled to meet from 9:00 a.m. 

to 5:30 p.m. Pacific Time.

At the outset, I'd like to express my 

appreciation for the hard work of the board members 

in preparing for this public meeting and their 

forthcoming deliberations. I'd also like to thank 

Carrie Rhoads from the Department of Labor, and 

Kevin Bird, our logistics contractor who are both 

with me here today for their work organizing this 

meeting.

The Board's website which can be found 

at dol.gov/OWCP/energy/regs/compliance/
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advisoryboard.htm has a page dedicated to this 

meeting. The page contains all materials 

submitted to us in advance of the meeting and will 

include any materials that are provided by our 

presenters throughout the next day and half. 

There you can also find today's agenda as well as 

instructions for participating remotely in both 

the meeting and the public comment period later 

today.

If any of the virtual participants have 

technical difficulties during the meeting, please 

e-mail us at energyadvisoryboard@dol.gov. Again, 

that's energyadvisoryboard@dol.gov.

If you are joining by a WebEx, please 

note that outside of the public comment period this 

afternoon, this session is for viewing only and 

microphones will be muted for non-Advisory Board 

members. So the public may listen in, but not 

participate in the board's discussion during the 

meeting.

If you are participating remotely and 

wish to provide a public comment, please e-mail, 
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again, energyadvisoryboard@dol.gov and request to 

make a comment. Be sure to include your name in 

the request. If you are participating remotely 

and need to provide your public comment via 

telephone, not WebEx, please include the telephone 

number that you will be dialing in from so that we 

can unmute your line when it is your turn to make 

a public comment.

The public comment period opens at 4:45 

p.m. this afternoon. Please note that the public 

comment period isn't a question-and-answer 

session, but rather an opportunity for the public 

to provide comments about the topics being 

discussed and considered by the board. If, for any 

reason, the board members require clarification on 

an issue that requires participation from the 

public, the board may request such information 

through the chair or myself.

A transcript and Minutes will be 

prepared from today's meeting. As DFO, I see that 

the meeting -- that the minutes are prepared and 

ensure that they are certified by the chair. The 
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minutes of today's meeting will be available on the 

board's website no later than 90 calendar days from 

today. But if they're available sooner, they'll 

be posted sooner.

Although formal minutes will be 

prepared according to FACA regulations, we also 

prepare verbatim transcripts, and they should be 

available on the board's website within 30 days.

During the discussions today, please 

speak clearly enough for the transcriber to 

understand. When you begin speaking, especially, 

at the start of the meeting, make sure that you 

state your name so that it's clear who is saying 

what. Also, I would like to ask that our 

transcriber please let us know if you have trouble 

hearing anyone or any of the information that is 

being provided.

As always, I would like to remind 

Advisory Board members that there are some 

materials that have been provided to you in your 

capacity as special government employees and 

members of the board which are not suitable for 
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public disclosure and cannot be shared or discussed 

publicly, including during this meeting. Please 

be aware of this throughout the discussions today.

The materials can be discussed in a 

general way which does not include any personally 

identifiable information, or PII, such as names, 

addresses, specific facilities if we are 

discussing a case, or a doctor's name.

I'm looking forward to working with 

everyone at this meeting and hearing the 

discussions over the next two days. And with that, 

I convened this meeting of the Advisory Board on 

Toxic Substances and Worker Health, and I will now 

turn it over to Dr. Markowitz for introductions.

CHAIR MARKOWITZ: Can I use your -- oh, 

no, I have a -- okay. Good morning, everyone. I 

want to welcome everybody to today's meeting. The 

board members, including -- especially the new 

board members, but also the returning board 

members. I want to welcome members of the public 

who are participating, those who are here, and 

those who are participating remotely. Please, by 
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all means, speak up during the public comment 

session.

And actually, if I could ask, in the 

WebEx and what the remote viewers are looking at, 

if you could just put in the public comment e-mail 

or the phone number they need to call or contact 

in order -- I know that Ryan just gave that, but 

if you could put that up there so people could see 

it, make it easier to participate.

I want to thank -- we had a terrific tour 

yesterday of what I call the Nevada Test Site, but 

I think it's the national -- the Nevada National 

Nuclear Security Site, NNSS. And thank you, 

especially to Greg Lewis from the Department of 

Energy, and also Ryan Jansen and Carrie Rhoads for 

setting up that tour.

I think we have two board members who 

are participating remotely. Thank you very much 

for participating. I'm sorry that you missed the 

tour yesterday, but maybe we can fill you in a 

little bit on what we saw today or outside of the 

meeting.
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We need to do introductions, and so 

we're going to actually do this -- first, I'll 

introduce myself. But we will do the remote board 

members first, and then around the table here.

So I'm Steven Markowitz. I'm an 

occupational medicine physician. I'm an 

epidemiologist from the City University of New 

York. I have run the Former Worker Program 14 DOE 

sites for the past 20 plus years and have had a lot 

of opportunity to understand -- try to understand 

what happens within -- and has happened from the 

Department of Energy complex.

Dr. Friedman-Jimenez, do you want to 

introduce yourself?

MEMBER FRIEDMAN-JIMENEZ: Hi. Good 

morning. Good afternoon. My name's George 

Friedman-Jimenez. I'm an occupational medicine 

physician. I run the Occupational Medicine Clinic 

at Bellevue Hospital, NYU School of Medicine in New 

York City. I've been on this board for -- this is 

my fourth cycle I believe, and I'm very interested 

in the issues of determination of work-related 
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causation and the setting up of presumptions.

So I'm very interested in hearing about 

the site visit, Steve. Offline you can tell me, 

fill me in. But I'm delighted to be a member of 

this board, and I look forward to a very interesting 

and impactful meeting. Thanks.

CHAIR MARKOWITZ: Thank you. Mr. 

Catlin.

MEMBER CATLIN: Thank you, Dr. 

Markowitz. This is -- I'm Mark Catlin, I'm an 

industrial hygienist, and currently 

working -- semi-retired working for a consulting 

firm. And have done work in the past at Los Alamos 

and at Hanford Reservation within the DOE complex.

And so I'm -- this is my second term on 

this board, and I think I mirror George's comments 

about looking forward to this work, and really 

sorry to have missed the tour yesterday. Thanks.

CHAIR MARKOWITZ: By the way, we can 

see you very well on the video here. Ms. Whitten.

MEMBER CATLIN: Okay.

MEMBER WHITTEN: Me?
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CHAIR MARKOWITZ: Yeah.

MEMBER WHITTEN: Good morning. My 

name's Dianne Whitten. I am a member of the 

claimant community. I am a rad con tech, 

radiological control tech at Hanford for 34 years, 

NRRPT. And I'm currently the Hanford Atomic Metal 

Trades Council health advocate.

CHAIR MARKOWITZ: Dr. Van Dyke.

MEMBER VAN DYKE: Good morning, Dr. 

Markowitz. Glad to be here. Mike Van Dyke. I'm 

an industrial hygienist and associate professor at 

the University of Colorado. Have a lot of 

experience over the years at many DOE sites really 

looking at beryllium exposure and other exposures. 

Looking forward to this session and this is my 

second round on the board. Thank you.

CHAIR MARKOWITZ: Dr. Cloeren.

MEMBER CLOEREN: Hi. I'm Dr. Marianne 

Cloeren. I am an internal medicine doctor and 

occupational medicine physician. I'm an 

associate professor at the University of Maryland 

School of Medicine. I'm new to the board, but I've 
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been working with the Former Worker Program as a 

medical director for BTMed since 2017.

And also have past experience with 

another federal program, I know it's not the same 

as this one, but a lot of experience with FECA. So 

have some just kind of basic understanding of 

benefits programs, you know, federal benefits 

programs. So I'm really happy to be working with 

you all.

CHAIR MARKOWITZ: Dr. Bowman.

MEMBER BOWMAN: Yes. Thank you. My 

name is Aaron Bowman. I am a professor and head 

of the School of Health Sciences at Purdue 

University. I am a toxicologist and on the 

scientific -- a representative for the scientific 

community on this board. This is my second term 

on the board. Thank you.

CHAIR MARKOWITZ: Great. Mr. Key.

MEMBER KEY: Yes. Good morning. My 

name is Jim Key, I'm a labor representative in the 

claimant community. I'm a 48-year employee at the 

Paducah Gaseous Diffusion Facility, and also the 
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newly operational Depleted Uranium Facility.

I serve as president of United Steel 

Workers Atomic Energy Workers Council in 

Washington, D.C. The council represents United 

Steel Worker members at Hanford, Washington; Idaho 

Falls; Carlsbad, New Mexico; Oak Ridge, Tennessee; 

Paducah, Kentucky; Portsmouth, Ohio; Erwin, 

Tennessee, the Navy nuclear fuels facility; and 

Bettis Labs in Pittsburgh. And I'm serving as the 

second term on the board.

CHAIR MARKOWITZ: Thank you. Dr. 

Mikulski.

MEMBER MIKULSKI: Good morning, 

everyone. Marek Mikulski, occupational 

epidemiologist at University of Iowa, Occupational 

and Environmental Health. I direct the Former 

Worker Program for the workers from the state of 

Iowa, and this is my third term on the board.

CHAIR MARKOWITZ: Great. Ms. Splett.

MEMBER SPLETT: Good morning. My 

name's Gail Splett. This is my first term. I 

retired from the Hanford Site three years ago. 
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Prior to that, I worked 45 years at Hanford, 44 and 

a half years at the Department of Energy.

I had multiple titles, Freedom of 

Information officer, records officer, litigation 

manager. And in the last decade or so, the EEOICPA 

program manager, and the former worker's medical 

screening program manager for the Hanford site, 

worked extensively with Paragon in updating the 

Hanford SEM.

CHAIR MARKOWITZ: Great. Thank you. 

Dr. Vlahovich.

MEMBER VLAHOVICH: Good morning. My 

name's Kevin Vlahovich. I'm a physician at 

University of New Mexico, and I'm the director of 

employee occupational health at New Mexico. My 

specialties are preventive medicine, occupational 

medicine. And this is my first term on the board. 

Thank you.

CHAIR MARKOWITZ: Welcome. Ms. 

Zaback.

MEMBER ZABACK: Hi. My name is Lorna 

Zaback, and this is the first time for me on the 
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board. Excuse my cough, I'm the coughing one. I 

work at Hanford and have been working on the EEOICPA 

program since its inception and watched it 

transform tremendously over the last 20 years, and 

the Part D days moving into Part E.

And I am just fascinated by this board 

and look forward to hopefully be able to, you know, 

help with any records issues or questions about 

what, you know, what's really out there and what 

information we really have, and what -- make sure 

that everybody's getting what they need. So thank 

you, guys.

CHAIR MARKOWITZ: Thank you. So we'd 

like to do -- is there a mic that we can use for 

people who are sitting in back to introduce 

themselves? Ms. Pond from the Department of 

Labor.

MS. POND: Hello and welcome, 

everyone. My name is Rachel Pond. I'm the 

director of the energy program at the Department 

of Labor. Thank you.

CHAIR MARKOWITZ: Thanks for coming. 
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Mr. Vance.

MR. VANCE: Good afternoon from the 

back of the room. My name is John Vance. I'm the 

policy branch chief for the Energy Compensation 

Program.

CHAIR MARKOWITZ: And then we have some 

others.

MS. JERISON: Hi. I'm Deb Jerison 

with the Energy Employees Claimant Assistant 

Project.

MS. BLAZE: I'm D'Lanie Blaze with Core 

Advocacy for Nuclear and Aerospace Workers.

MR. DOMINA: I'm Kirk Domina. I'm a 

retired Hanford worker.

MS. DOMINA: I'm Tiffany Domina. I am 

the daughter and wife of former workers.

CHAIR MARKOWITZ: Okay. Thank you. 

Welcome, all. I think, Ryan, we're on to Mr. 

Godfrey.

MR. JANSEN: Yeah. And I think he's 

available.

MR. GODFREY: Yes. Good afternoon. 
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Good morning to those of you out west. My name is 

Chris Godfrey, I'm the director at the Office of 

Workers' Compensation Programs, otherwise known as 

OWCP. I was appointed by President Biden and sworn 

in on January 20th of 2021.

My background is in workers' 

compensation. I was an attorney for several years 

before I became the Iowa workers' commissioner in 

2006. I served in that role until 2014 when I 

joined the Employees' Compensation Appeals Board 

known as ECAB in the Obama administration, and 

that's the appellate-level board for federal 

employee workers' compensation claims.

Secretary of Labor Tom Perez then 

appointed me to be chief judge and chairman of ECAB. 

I've represented both employers and employees in 

both state and federal court in not only workers' 

compensation claims, but I've also done civil 

rights and employment law as well.

In the OWCP front office since 2021, 

we've built out a much more robust team of 

individuals. When I arrived, the front office did 
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not have a large amount of structure, so one of the 

things that I wanted to do was build out that office 

and try to bring continuity to the office of 

director of OWCP.

So in addition to the roles of a deputy 

director and a chief of staff and policy advisor, 

I've also brought on a transformation officer and 

a DEIA officer. The transformation officer, Jean 

Maus, is leading our efforts to strengthen customer 

experience in service delivery for injured mill 

workers. And our DEIA officer, Paige Brown, she's 

leading our efforts to strengthen diversity, 

equity, inclusion, and accessibility within all of 

the OWCP programs. So I'm really excited about the 

work that we're doing there.

In addition, we are soon going to be 

bringing on an Ombudsperson. Now I know that there 

is already an Ombudsperson for energy claims, and 

that is statutory. But the success of that program 

I think has shown to us in the OWCP front office 

that other workers in our black lung program, 

longshore program, FECA programs, et cetera, they 
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also need the benefit of having an Ombudsperson 

that can take a look at claims, find systemic 

issues, and then bring them to the attention of the 

director and the front office at OWCP. So I'm 

excited about that addition as well.

There's four high-level priorities for 

the agency that we're focusing on in the year that 

align with the priorities of both Biden 

administration and the priorities of Secretary 

Marty Walsh at the Department of Labor.

The first is we are strengthening 

customer experience, improving service delivery, 

and advancing equity for all injured and ill 

workers. We're working to rebuild the trust in 

government to make sure our programs are 

accessible, efficient, and they work well for all 

of the people that so desperately need our 

programs.

Second, we're championing the rule of 

workers' compensation has a critical component of 

good jobs and the social safety net in America. All 

too often, people don't recognize the need for 
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workers' compensation programs until they or a 

family member are impacted by an injury or illness. 

And we want to make sure that as the Department of 

Labor works on a good jobs initiative, that 

workers' compensation is a very significant part 

of that goal.

We want to make sure that workers' 

compensation systems provide prompt, adequate, and 

equitable benefits because it really can be the 

economic security that people need so that they 

don't fall into poverty after becoming injured or 

ill at work.

The third goal is to build a strong, 

diverse federal workforce and have OWCP become a 

model workplace that attaches -- excuse me, 

attracts, attains the power that our employees need 

so that they can really serve all injured and ill 

workers.

We know that we need a diverse, 

well-trained, motivated workforce, and that's the 

only way that we can keep the best people available 

within OWCP to make sure that all of our programs 
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are running smoothly, and that we can provide the 

services and the customer experience that the 

workers that come to us for assistance deserve.

And fourth, we want to foster an 

organizational culture of collaboration and 

communication to strengthen the agency's 

administration. And basically, what that means is 

we need to better handle the business of 

government. All too often, we can be seen as a 

bureaucracy. We don't want to be seen as that.

We want to be seen as a program that's 

responsive and collaborative, and making sure that 

we are helping those people in the time of the need 

so that they get the benefits that they're entitled 

to. But also ensuring that we have program 

integrity so that we do have the level of security 

to the program that those who desperately need the 

benefits, get them, and making sure that we're 

being good stewards of the taxpayer's money.

In a moment, I'm going to ask the 

director of the Energy Workers Program, Rachel 

Pond, who just introduced herself a moment ago, to 
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provide a lot more detailed updates on all of the 

incredible work that their program is doing. I know 

that I see firsthand the outstanding work that she 

does and her team does. And I'll tell you, the 

Energy Program, in my opinion, is really a model 

for all of OWCP in terms of the work that they 

accomplish.

So in terms of the work of the Advisory 

Board, it was nice to hear the introductions of all 

of the members, especially the new members. I wish 

I could be there to meet you in person. But I just 

want to thank you all for the work that you do. The 

recommendations that you make are invaluable and 

are so very, very helpful to us as the 

administration as we look at policy formulation.

I also want to thank you for 

contributing your expertise and the diverse 

experiences that you all have to the board. 

Listening to all of you speak and introduce 

yourselves, it's clear that we've got a very -- a 

good cross section of individuals who have not only 

the experience, but also the passion to work within 
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this area and on this Advisory Board.

I want to thank you for volunteering 

your time and helping us better support the workers 

who are served by the EEOICPA program. It's very 

clear, you all have busy lives and professional 

careers, and have, you know, worked for many, many 

years in these industries, so for you to take the 

time out of your lives, that certainly means a lot 

to us in the program.

So, in conclusion, I just want to say 

thank you, and I really look forward to working 

together with all of you. And hopefully, we can 

continue with the collaboration that we've had in 

the past. And with that, I think I'm going to turn 

this over now to Rachel Pond. Is that correct?

CHAIR MARKOWITZ: Actually, I 

think -- this is Steve Markowitz. I think 

Rachel -- and by the way, when you speak, just 

introduce yourself. But I think Ms. Pond is going 

to speak later, right, later in the morning. So --

MR. GODFREY: Okay.

CHAIR MARKOWITZ: -- we're giving her 
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hopefully plenty of time towards the end of the 

morning.

So thank you, Mr. Godfrey, for those 

words of welcome for those of us who have been on 

the board for a while, and for the new members. 

We're here because -- we're here because we're on 

the Advisory Board to provide advice to the 

department, hopefully to find ways to help improve 

the program.

That said, this is a fascinating 

compensation program that is very complicated, 

very ambitious compared to state workers' 

compensation programs, compared, I think, to the 

other federal programs because within the DOE 

complex, there just is an enormous number of 

exposures and work activities that people have done 

over the years.

And the act under which this program 

governs covers really the encyclopedia of 

occupational diseases. So it's a very ambitious 

program which has done a lot of people a lot of good 

over the years. So we'll attempt to continue to 
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help to improve the program.

Let me review the agenda briefly. So 

next we're going to hear -- oh, I forgot to, by the 

way, to thank Kevin Bird and his group for 

supporting us so far, and through tomorrow. He's 

done an excellent job in the past, and we're looking 

forward to a smooth program.

I also want to encourage both the new 

members of the board, and those who are 

participating remotely to participate as much as 

possible. You may or may not know a tremendous 

amount about this particular program, but you're 

here to learn and to contribute, so we welcome your 

participation.

And that's true also for Mr. Catlin and 

Dr. Friedman-Jimenez, just jump in at times to give 

us your comments.

So next we're going to have a Federal 

Advisory Act review with Mr. Plick who's an 

attorney within Department of Labor. We're then 

going to have I guess a brief history of the statute 

under which the program governs, and a little bit 
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I guess of the history of the creation of this board 

by Ms. Liefer from the Solicitor's Office, 

Department of Labor. And then we will have a 

session on ethics rules from Ms. Myers, the ethics 

counsel. These are standard things. At the 

beginning of every board term we get these talks 

which are very useful.

And then we'll take a break, and then 

Ms. Pond will give us an overview and an update on 

the board and on the act, the actual -- the EEIOCP, 

the program itself. We'll have lunch. And then 

Mr. Vance will give us some updates from really a 

policy, procedures point of view within the program 

after lunch. And also, something we're looking 

forward to, a demonstration of the Site Exposure 

Matrices.

We will then enter a period, we'll have 

board discussion until the public comment period 

at 4:45, and end the day at 5:30.

The board discussion, we're going to 

talk about our prior recommendations and what's 

happened to them, the most recent ones, and, you 
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know, cases and a few of the recommendations going 

back in time.

As follow up, we're going to discuss 

what this new board term agenda might be over the

next couple of years. Reviewing claims, we're 

going to discuss the preparation for receipt of a 

contractor support to do a sizable claim review 

beginning sometime within the next year, and begin, 

I think, to plan what we're going to do in that 

effort.

We are going to discuss public 

comments. We're going to discuss a little bit 

about -- oh, we're going to be able to look at some 

data from the department on the most common 

conditions for which people have submitted claims 

in 2019, 2020. And we've done that previously, and 

it's a really interesting review. And whatever 

else people want to discuss.

Speaking of that, do people have 

additional items they want to mention now? We can 

add them later, but if you have some items now, feel 

free to jump in. Okay. Any questions or comments 
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on the agenda? Okay. Ryan, I think we're up to 

Mr. Plick.

MR. JANSEN: Yeah.

MR. BIRD: So Mr. Plick has not yet 

joined us. We do have Amy on the line if we wanted 

to switch up the order.

CHAIR MARKOWITZ: So she's at -- I'm 

sorry. She's scheduled for a half hour, and Mr. 

Plick has 15 minutes. The question is 

whether -- we can start with her, and then if she 

can just cover 15 minutes, and when he comes on -- or 

if he's flexible, we can postpone him by 15 minutes. 

Whichever. Why don't we start with Ms. Liefer 

and --

MR. JANSEN: Yeah. Let's do that.

MS. LIEFER: Okay. Great. Good 

morning, everyone. And thank you for having me. 

My name is Amy Liefer, and I am a senior attorney 

in the Division of Federal Employees and Energy 

Workers' Compensation, and that acronym is 

pronounced FEEWC, which is a division within DOL's 

Office of the Solicitor.
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And I'm here today to talk a bit about 

the work that FEEWC does, and also give you a 

high-level overview of EEOICPA's legal framework 

and background including a review of their 

provision of the statute that applies to the board.

So our division, FEEWC, is responsible 

for providing legal support for the administration 

of EEOICPA. And this legal support involves legal 

advice to our client, OWCP, which includes 

assisting with statutory interpretation 

questions, issuing formal and informal legal 

opinion, reviewing agency policy and procedure, 

regulatory work, and litigation associated with 

EEOICPA.

And I should note that SOL does not have 

independent litigation authority to represent OWCP 

in appeals to federal court of decisions issued by 

OWCP under EEOICPA. It is the Department of 

Justice who actually represents OWCP in these 

litigation matters. However, we provide them with 

significant support.

Now as far as the statute itself, 
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Congress passed EEOICPA in 2000 to provide medical 

benefits and compensation for those who worked in 

the nuclear weapons industry. And there are two 

parts under the act. There is Part B and Part E, 

and they have some significant differences for you 

to keep in mind about the benefits available, and 

the eligibility requirements for covered employees 

or their survivors.

Now Part B of the act provides uniform 

lump-sum payments and medical benefits to current 

and former employees, or their survivors, of the 

Department of Energy, that's DOE, its predecessor 

agencies, and certain of its vendors, contractors, 

and subcontractors who are diagnosed with a 

radiogenic cancer, chronic beryllium disease, 

beryllium sensitivity, or chronic silicosis as a 

result of their exposure to radiation, beryllium, 

or silica while employed at covered facilities.

Congress set out certain statutory 

eligibility criteria in Part B including criteria 

for establishing a diagnosis of these 

beryllium-related lung diseases and chronic 
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silicosis that must be meant in order for a claimant 

to be eligible for benefits under Part B. In 

addition, Congress included statutory 

presumptions in Part B for workers' exposure to 

silica, beryllium, and radiation.

Part B also provides smaller, uniform 

lump-sum payments and medical benefits to 

individuals, or their survivors, awarded 

compensation under Section 5 of the Radiation 

Exposure Compensation Act, or RECA, which is a 

separate program that was enacted in 1990 and is 

administered by DOJ.

Now switching to Part E of the act, Part 

E provides variable lump-sum payments based on a 

worker's permanent impairment and/or qualifying 

calendar years of established wage loss, and 

medical benefits for covered DOE contractor and 

subcontractor employees, and where applicable, 

their survivors.

Part E also provides the same payments 

and benefits to uranium miners, millers, and ore 

transporters covered by Section 5 of RECA, and 
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where applicable, to their survivors.

In contrast to Part B, Part E is quite 

extensive in the types of illnesses that are 

covered, and does not contain any congressional 

diagnostic criteria for establishing an illness 

covered under Part E.

Now one of the tools that OWCP uses in 

the adjudication of Part E claims is the Site 

Exposure Matrices, or SEM. And OWCP SEM provides 

site specific information regarding the toxic 

substances that may have been present at each of 

the facilities, the job titles used at such 

facilities, and the labor processes used at these 

different facilities. It also contains 

information regarding established links between 

work-related illnesses and exposure to toxic 

substances.

Now when EEOICPA was originally passed, 

the legislation included Part B which was modeled 

after the RECA statute, and former Part D, which 

permitted DOE to enter into agreements with states 

to assist DOE contractors in applying for state 
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workers' compensation benefits for illnesses and 

deaths related to exposures to toxic substances at 

DOE facilities.

Part D reflected a change in DOE's prior 

policy, and because this effort was not very 

successful, Congress abolished Part B -- Part D, 

I'm sorry -- and replaced it with Part E when 

EEOICPA was amended in 2004.

A primary responsibility for 

administering Part Bs and E -- or parts B and E lies 

with the Department of Labor, and primarily with 

OWCP. Other responsibilities under the act were 

assigned to the Department of Health and Human 

Services, or HHS, DOE, and DOJ by Executive Order 

13179.

As a general matter, OWCP adjudicates 

claims and pays benefits under EEOICPA while the 

National Institute for Occupational Safety and 

Health, or NIOSH, within HHS estimates the amounts 

of radiation received by employees alleged to have 

sustained cancer as a result of such exposure, and 

also established the guidelines followed by OWCP 
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when it determines if such cancers are at least as 

likely is not related to employment.

Now in addition, both DOE and DOJ are 

responsible for notifying potential claimants 

about the program, and for submitting evidence 

necessary for OWCP's adjudication of claims under 

EEOICPA.

So that wraps up my general background 

of Parts B and E, and now I'll talk a bit about the 

creation of this Advisory Board so that new members 

can see how we got here.

In December of 2014 as part of -- as part 

of a fiscal year 2015 National Defense 

Authorization Act, or the NDAA, EEOICPA was again 

amended to add new section 7385(s)(16) and to 

create this board. This section was amended in the 

2018 NDAA to extend the board's life an additional 

five years which would take it until 2024. And 

this section was further amended by the 2020 NDAA 

which expanded the board's duties and mandated 

certain actions by the secretary.

The responsibility to establish the 
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board and appoint the members was given to the 

president. By Executive Order 13699 dated June 

26, 2015, the president established the Advisory 

Board in the Department of Labor, and delegated to 

the secretary Of Labor the authority to appoint the 

members of the board which is to consist of no more 

than 15 members as well as the responsibility for 

the administration of the board including funding, 

staff, administrative functions under FACA, which 

Joe Plick will talk about next, and a designation 

of a senior official of the department as the 

director of staff to the Advisory Board.

Section 7385(s)(16) specifically sets 

out duties of the board. First, the board is to 

advise the secretary of Labor, and that advice is 

limited to five specific areas which are: The site 

exposure matrices; medical guidance for claims 

examiners for claims under Part E with respect to 

the weighing of the medical evidence of claimants; 

evidentiary requirements for claims under Part B 

related to lung disease; the work of industrial 

hygienists and staff physicians and consulting 
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physicians of the department, and reports of such 

hygienists and physicians to ensure quality, 

objectivity, and consistency; and the claims 

adjudication process generally including review of 

procedure manual changes prior to incorporation 

into the manual and claims for medical benefits. 

It also allows for other matters as the secretary 

considers appropriate.

Second, the board is to coordinate 

exchanges of data and findings with the Advisory 

Board on radiation and worker health within HHS, 

and there is also a conflict-of-interest provision 

for board members regarding any financial interest 

related to provision of medical benefits under the 

act. And that was reviewed prior to your 

appointment.

In fiscal year 2020, NDAA mandated the 

secretary of Labor to provide the board with access 

to any information that the board considers 

relevant to carry out its responsibilities, and to 

make available to the board the programs medical 

director, toxicologist, industrial hygienist, and 
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the program support contractors. The 2020 NDAA 

also added a provision to require the secretary to 

publicly state whether he accepts or rejects the 

board's recommendations and provide either a 

timeline for when those recommendations will be 

implemented, or the reasons the secretary does not 

agree with the board's recommendations.

Now the EEOICPA statute involves 

complex development and adjudication, and it has 

the unique challenge of applying these provisions 

to work that started over 70 years ago, and the 

Department has worked hard to apply these 

provisions in a fair and equitable manner.

The program has gained experience in 

the over 20 years it has administered the 

program,and understands the difficulties and 

challenges that are faced by claimants. And the 

scope of the board's authority, though limited by 

the five areas I described above, assists OWCP in 

the administration of the program. And that 

completes my overview. Are there any questions?

CHAIR MARKOWITZ: This is Steve 
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Markowitz. Any questions from board members? I 

have a question actually. I think the charter for 

the board expires at the end of 2004 -- oh, 2024. 

Is that right? And if so, how is that charter 

extended? Is that something that's initiated by 

the Department of Labor or in Congress?

MS. LIEFER: I believe you're right 

that it is 2024, but I actually do not have an answer 

as to how that would be extended. But that is 

something that I can look into and get back to you 

before this meeting is over.

CHAIR MARKOWITZ: Okay. Thank you. 

I have another question. The board term is two 

years in length, which strikes me as a little short 

actually for reasons of continuity and the 

learnings involved with providing useful advice.

Was that part of the language of the 

board creation established by Congress? And if 

so, what would be needed to, in the future, to 

lengthen the board term. Not this board term, but 

future board terms to a somewhat longer period, say 

three or four years?
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MS. LIEFER: I also don't have a good 

answer for you on that one. I'll have to look into 

that and get back to you.

CHAIR MARKOWITZ: Okay. Thank you.

MS. LIEFER: Yeah.

CHAIR MARKOWITZ: Any other comments 

or questions from board members? So do we have Mr. 

Plick available? Okay. Let's move on then. Thank 

you very much, Ms. Liefer.

MS. LIEFER: Thank you.

MR. PLICK: Hi. This is Joe Plick. 

Can everybody hear me?

CHAIR MARKOWITZ: Yes, we can.

MR. PLICK: Okay. Great. So I'm here 

to give a quick overview of the Federal Advisory 

Committee Act and how it relates to the board. 

And, Steven, with respect to your first question 

about rechartering, that's something the 

Department initiates. You'd work with Michelle 

Bluitt in exec sec on that process.

CHAIR MARKOWITZ: Thank you.

MR. PLICK: With respect to how long
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the members serve, I don't know if it's statutory. 

Two or three years is generally how long we have 

members serve for committees. It kind of varies. 

A lot of committees will -- essentially are 

structured so that maybe like a third of the board 

will rotate off or have to be renominated every year 

so that there's some continuity, but also some 

turnover. So assuming there's no statutory 

restriction on how the board's appointed, that 

might be something you could look at?

CHAIR MARKOWITZ: Thank you very much.

MR. PLICK: Yeah. Okay. So moving 

on, I'm going to just briefly talk about the Federal 

Advisory Committee Act which is the statute that 

controls essentially how the committee is set up 

and runs.

Start by giving you just a little bit 

of background of the Federal Advisory Committee 

Act. The statute was actually passed by Congress 

and enacted into law in 1972, but the government's 

use of councils, or boards, or advisory committees 

basically goes back to the very beginning.
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The very first committee was 

established by George Washington who wanted advice 

on some things during the Whiskey Rebellion in 

1794. So the concept of government agencies using 

committees to inform their decision making goes way 

back.

But overtime, Congress became

concerned that it was done sort of behind closed 

doors, and nobody knew exactly what was going on, 

and who was on the committees, and what kind of 

influence they had. So they passed the Federal 

Advisory Committee Act in 1972.

So on the one hand, it recognizes that 

agencies have the need to get balanced, outside 

advice and expertise. And on the other hand, it 

recognizes that there needs to be some 

accountability in how that advice is given, and 

sunshine and openness on how it's given.

So the Federal Advisory Committee Act 

governs the establishment to the operation and 

determination of committees that are established 

to give advice or recommendations to the executive 
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branch. Committees are supposed to 

provide -- obviously, this may be 

obvious -- relevant advice. And that, obviously, 

is in the context of the committee and what it's 

set up and what it's chartered to do.

It must be in accordance with the 

authorization. I heard Amy list the statutory 

requirements for this committee. So that's, you 

know, that's what I'm talking about here. You 

know, we wouldn't want you giving advice on how the 

Wage and Hour Division of the Department should 

operate the Fair Labor Standards Act. That's not 

your -- the area that you're brought together to 

give advice on for example.

The committees are supposed to act 

promptly, and the statute sets up accountability 

through cost controls and record keeping 

requirements. And like I said before, it assures 

Congress and the public are kept informed about the 

activities of advisory committees by making the 

process fairly transparent.

So the act -- the Committees are 
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established either by statute, like yours is, by 

presidential directive which would mean the 

president just deciding that it need -- he needs 

advice, and setting up a committee. In the case 

of this committee, it was established by statute 

and then the president issued an executive order 

to establish the committee within the Department.

Committees can be authorized by 

statute, which means statutes sometimes will just 

say the department may set up a committee for 

advice, or an agency head can make a determination 

that a committee needs to be set up to provide 

advice.

The committee has to be chartered, and 

the charter has to be approved by the General 

Services Administration which is given oversight 

over Federal Advisory Committee Act committees 

throughout the government.

The membership has to be balanced. The 

statute requires -- the statute, FACA, requires 

balance in terms of points of view and functions 

to be performed. And then statutory committees 
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like yours may have additional requirements where 

Congress goes a little bit further and actually 

sort of explains in its view what it believes the 

balance to be.

Meetings are generally public, and 

detailed minutes are kept. There has to be notice 

in the Federal Register 15 calendar days prior to 

the meeting so the public can attend.

Any member of the public can file a 

written statement with the committee before or 

within a reasonable time following the committee. 

And this is at the discretion of the chair whether 

or not the public actually can speak at committees. 

There's no statutory requirement that allows the 

public to be able to speak.

As I noted before, there have to be 

minutes kept and certified by the chair within 90 

days. You may record or transcribe the meeting in 

addition, but that does not substitute for having 

formal minutes.

At one time GSA allowed a recording, an 

audio or video recording of a meeting to 
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substitute, but what they found, which makes sense, 

is the minutes are a good, easy way for somebody 

to quickly look and see what occurred at the 

meeting, and then if it was also recorded, they can 

then go to that part of the meeting.

Whereas, if you just rely on a recording 

or a transcription, you've got to wade through the 

entire thing to see where the thing that's of 

interest to you was discussed. So they changed 

that back and they said that, no, it has to actually 

be minutes.

In terms of the meeting and the 

requirements, because the meetings are public, 

there shouldn't be substantive discussions of 

matters that are before the committee outside of 

the committee in terms of like, you know, you're 

out in the hall on a break, you shouldn't be really 

cutting deals out there. All that should occur in 

the meeting.

And then as noted before, the charter 

has to be renewed every two years. Some 

committees, unless like this one where there's 
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statutory authorization for it to continue, they 

have to actually be completely renewed every two 

years. But regardless, the charter itself has to 

be renewed every two years, and GSA reviews those. 

Although in the case of a statutory committee, GSA 

does not question too much about what's going on.

The agency has certain 

responsibilities. It has to ensure that advice 

and recommendations of the committee will not be 

inappropriately influenced by the appointing 

authority or any special interest. Your advice 

and recommendations are supposed to reflect the 

independent judgment of the committee.

At the departmental level, there is a 

committee management officer who controls and 

supervises the establishment, and the procedures, 

and the accomplishments of all the committees.

And then for each committee, there's a 

designated federal official, and that person has 

certain authority, certain responsibilities to 

approve or call meetings, to approve the agenda, 

to attend.
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There's the authority for the 

designated federal official to adjourn meetings 

when he or she determines that it's in the public 

interest. That would be a rare circumstance. 

There's been one or two committees where they have 

completely gone off on a tangent that had nothing 

to do with the business of the committee that it 

was charged with, and the DFO at that point could 

just end the meeting.

They're allowed to chair if directed by 

someone. I don't think we have any committees at 

the department where the designated federal 

official serves as the chair. In general, I think 

it's better to not have that happen.

But the DFO also maintains records on 

costs and membership, maintains the records for 

public availability, and just does everything to 

ensure efficient operations, and works with the 

committee management officer to make sure that 

reporting is done properly, and that records get 

forwarded to the Library of Congress that are 

required to go there.
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There are annual reports required by 

the -- of the agencies by GSA. There's actually 

a FACA database on GSA's website where you can look 

at all the FACA committees, and it has information 

about their authority, and things that they're 

doing.

There are required to be reports on 

meetings that happened to be closed. I don't think 

you guys ever close a meeting, or the Department 

never closes a meeting. And I'll talk in a minute 

about why the meetings could get closed. 

Committee reports and background materials 

actually have to be filed with the Library of 

Congress.

The Agency also kind of sets overall 

objectives. Again, there's -- in this instance, 

there's statutory direction, and there should be 

a collaboration between the agency and the 

committee talking about maybe particular things 

that both sides want to see recommendations done 

on.

And that's not the same, it 
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doesn't -- that's not the same as the requirement 

for independent advice. That's working within 

that. We still want independent advice, but the 

priorities, depending on the committee, you 

might -- a committee might want to -- or the Agency 

might want to say, well, this, you know, this go 

around for this meeting, we want you to focus all 

these things because, you know, we have the ability 

right now to implement any recommendations you 

make.

Whereas, if you are working on 

something else, we just may not -- because of other 

priorities or congressional budget restrictions, 

or whatever be able to work on other things. So 

that's more just a collaboration that goes on.

Closing meetings, again, it doesn't 

happen rarely at the Department of Labor with the 

exception of a committee that deals with trade 

negotiation matters do we close meetings. 

Generally, they can be closed for reasons that 

would relate to things that are also exempt from 

public disclosure under the Freedom of Information 
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Act.

There has to be approval by the agency 

head and the solicitor of Labor, the chief legal 

officer. The notice of closure has to occur 30 

days in advance. Examples would be if there's a 

discussion of national security matters and I 

alluded to another committee that does trade 

negotiation, that kind of falls in there. If there 

were to be discussion of proprietary information, 

like if you were to have companies come in and talk 

about things that would be proprietary.

And also personal information. You 

know, if you were to have claimants come in and they 

were going to be talking about medical conditions, 

that might be a circumstance where, you know, to 

protect their privacy, if you really wanted them 

to be candid, you might want to close a meeting, 

or the part of the meeting that would deal with 

that.

Next, subcommittees. The Federal 

Advisory Committee Act does allow subcommittees. 

I can't recall if you guys use them. I think you 
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do. Subcommittees are not subject to the FACA 

requirements so long as the work that they do goes 

to the parent committee, and the parent committee 

independently deliberates on it.

Some agencies will apply FACA 

requirements regarding meeting notice to 

subcommittees, but it's not required at this point. 

The Agency does approve the establishment of 

subcommittees.

And one other thing I would just note 

there, too, is we've had one or two instances where 

a committee had created subcommittees, but in 

practical effect, all members of the committee what 

kind of show up to every subcommittee meeting, and 

we discourage that.

I mean the whole purpose of a 

subcommittee on the one hand is to make sure that 

you're kind of, you know, assigning the 

responsibilities out and being more efficient. 

But the other problem is it looked like the meetings 

became meeting, you know, subcommittees of the 

whole, and there was concern that it'll be seen as 
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a violation of FACA because there wasn't public 

notice of those subcommittee meetings. And so we 

discouraged the committee from doing that and made 

them stop.

I would note here that there have been 

some amendments to the Federal Advisory Committee 

Act that have been floating around for a number of 

years that would change some of those things. They 

would require subcommittees to operate under the 

same requirements as the parent committee, which 

may not necessarily be a good idea.

I mean part of the reason -- you know, 

subcommittees, you're just out gathering 

information and fact finding. I mean touring 

facilities and things like that, I'm not sure how 

you make those things public. And there would also 

be some amendments to some of the ethics reporting 

requirements.

There are some activities that don't 

have to take place in open meetings. One is 

preparatory work. So this is sort of an addition 

two subcommittees or as an alternative to 
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subcommittees. You might have one or two of your 

members assign them to the go off together and 

prepare a draft of a recommendation, and the work 

that they're doing. Similar to if a subcommittee 

did it, it doesn't have to be done at the meeting 

so long as you bring that draft work back.

And administrative matters. So 

actually these briefings, my briefing, Amy's, and 

I think the one you're going to get on ethics, if 

you haven't already had that one, are things that 

wouldn't necessarily have to occur in an open 

meeting.

Turn quickly to public availability of 

records. As I've noted before, one of the key 

components of FACA is transparency and sunshine. 

So the Act generally says that any records, 

transcripts, minutes, appendices, working papers, 

drafts, studies, the agenda, and other documents 

that are made available to or prepared for or by 

the committee shall be available for public 

inspection.

There is some limitation. Materials 
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that the Department or a federal agency creates or 

provides to the committee can still be withheld if 

a FOIA exemption would apply to that. But that's 

limited to that information supplied by a federal 

agency.

And that's really basically everything 

I've got in terms of background. Are there any 

questions about FACA and how you'll be operating?

CHAIR MARKOWITZ: This is Steven 

Markowitz. Any questions from board members? 

Anyone on the phone who -- Dr. Friedman-Jimenez or 

Mr. Catlin?

I have a question actually. So the way 

this board has communicated with the Department of 

Labor is through two mechanisms. One is we've made 

recommendations. And secondly, we've submitted 

information or data requests. And we've worked 

that out with the department.

So one of the newer tasks of the board 

has been to review certain anticipated policy 

changes in the program, and we're usually given 

those proposed changes with relatively short 
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notice. And my question is whether it's strictly 

up to the Department or whether there's some aspect 

or part of FACA that regulates or determines what 

the communications between the Advisory Board and 

the Department should look like.

The particular problem we have, which 

we're going to raise with the Department, and so 

the really the question here is just whether FACA 

weighs is in on this or not, is how do we make this 

useful, or look at these proposed changes and make 

them useful to the Department.

And given the fact that we only meet 

twice a year, given the fact that we can meet more 

than twice a year, we can meet by telephone, but 

still we have to give weeks and weeks of notice for 

any public meeting making it very difficult for the 

board to act as a whole. My idea -- it's likely 

that we submit individual comments on these policy 

changes to the Department without discussing them 

as a board or voting on them as a board.

But my question -- sorry for the long 

question here, but does FACA weigh in on the 
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communications between the Advisory Board and the 

Department, or is this something that we simply 

work out with the Department?

MR. PLICK: Yeah. It's really the 

latter. It's something you work out. FACA 

doesn't really speak to -- like set deadlines on 

when an agency has to provide information to a 

committee that it wants a committee to comment on.

Obviously, I mean, it, you know, it 

makes some sense that there's sufficient time, and 

if the agency wants you to review on comment on 

things, as a committee, that it provides you with 

those. But in terms of the legal requirements and 

the regulatory requirements, there's really 

nothing there.

CHAIR MARKOWITZ: Okay.

MS. POND: Joe, can I ask a question, 

a follow up on that? Sorry. Joe, this is Rachel. 

I just want to clarify on that last statement.

Now if the board were to provide us with 

individual comments without voting on those 

comments as a board as a whole, I think that's what 
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he's suggesting they do, you're saying that that's 

an acceptable thing even though the board isn't 

giving us a recommendation. As a board, they're 

giving us individual board member recommendations. 

So that's okay? I'm just making sure.

MR. PLICK: Well, that's -- I mean that 

sounds like that actually spills over I think into 

more Administrative Procedure Act. If you're 

talking about things that may be implemented, 

Rachel, through rulemaking or things like that, 

that's a different activity.

The board operates -- the board is 

supposed to provide consensus advice. I don't 

think you can -- and I'm not sure if you're 

suggesting this, that you would give the board 

something, and then the individual members would 

give their individual comments. That's really not 

the purpose of FACA.

I mean, you know, the individual 

members of the board, certainly if you have a 

proposal out for comment, can as individuals, you 

know, provide comments through those rulemaking 
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procedures or whatever procedures you're using. 

But it's not like you give something to the board, 

and then the members of the board come back to you 

individually. That's not really how a FACA 

committee is supposed to operate.

MS. POND: Okay. Thank you. That's 

what I wanted you to clarify for us.

MR. PLICK: Okay. Yeah.

CHAIR MARKOWITZ: Yeah. This is 

Steven Markowitz. Yeah. I mean I'm not speaking 

on behalf of the board. We can discuss this later. 

But I think it's likely that the board will feel 

that it would be a richer advice if we could form 

a consensus around comments on a proposed policy. 

But the practical problem is really that -- I think 

you said there's a 15-day Federal Register notice 

requirement. Is that right, Mr. Plick?

MR. PLICK: Yeah. Right. The 

public -- that's so that the public knows and can 

attend your meetings.

CHAIR MARKOWITZ: Right. Okay. So 

we have to the schedule the meeting, it has to get 
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into the Federal Register. It has to be the 15-day 

notice. We have to get on people --on the board 

member's calendars.

So it all means that it can be achieved 

if those proposed changes come to us sooner, and 

we have more time to comment. So there is a 

solution to this, but, you know, we'll work 

that -- we hear you, and we're going to work that 

out with the Department. Thank you.

MR. PLICK: Yeah.

CHAIR MARKOWITZ: Question on the 

subcommittees. So in the past, this board has had 

subcommittees which have been announced in the 

Federal Register, have been open, planned well in 

advance. And then later we had working groups, 

which were more exploratory which were done with 

shorter notice, not noticed in the Federal 

Register, and not open to the public. So we've 

actually done it both ways.

And I understand your advice for your 

comment to mean that we can work that out with the 

Department. There's nothing specific that you 
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mentioned that would require us to choose one or 

the other as a mechanism.

MR. PLICK: No. Yeah. That's 

correct. You know, in some instances, having a 

more formal subcommittee and having it open to the 

public may be the best way to go. And others, you 

know doing a work group might be the best way to 

achieve, you know, the particular purpose that 

you're setting it up for.

But either one of those is appropriate, 

and there's no -- like I said, there's no 

requirement for notice for subcommittees, or work 

groups, or preparatory groups, whatever you choose 

to call them. And you can do whatever, you know, 

works, like I said, in the particular situation.

So having some subcommittee meetings 

open and other work, you know, working group 

meetings not open because of the nature of what 

they're doing. Like the example I gave. I mean 

if you're, you know, if a work group is formed 

because it's going to, you know, walk around a 

facility, it's kind of hard to open that up to the 
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public, you know, unless everybody's going to carry 

cell phone cameras around and beam it out to the 

world. But, you know, so it's kind of a, you know, 

what fits in the particular situation.

CHAIR MARKOWITZ: Okay. Thanks. I 

have one last question. One public comment we've 

gotten in the past is that there was insufficient 

notice of the public comment period. But aside 

from the 15-day Federal Register notice -- the 

requirement for the scheduling of a board meeting, 

there's no separate timeframe for notice of the 

public of particular parts of the meeting.

In other words, if the 15-day advanced 

notice requirement is complied with, and that 

notice includes -- well, actually a draft agenda, 

but also it includes notice that there will be a 

public comment period, that would suffice. Is 

that correct?

MR. PLICK: Yeah, that's correct.

CHAIR MARKOWITZ: Okay. Thank you. 

Any other board members have comments or questions? 

Okay. Thank you very much, Mr. Plick.
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MR. PLICK: Okay. Sure.

CHAIR MARKOWITZ: Agenda, is Ms. Myers 

available? Yes. Okay. Mr. Jansen, do you need 

to introduce her, or --

MR. JANSEN: Yeah. I believe 

Vanessa's ready to go. Are you ready?

MS. MYERS: Yeah. I'm ready. Good 

morning or good afternoon depending on where you 

are. I'm Vanessa Myers. Bear with me a little 

bit, I have been sick, so my voice is not at 100 

percent.

But I am a senior ethics attorney here 

at the Department of Labor, and I'm going to talk 

to you briefly about federal ethics for special 

government employees, which is what all of you 

qualify as, as FACA committee members.

I really want this to be more 

conversational. You all should have received from 

Ryan or Carrie a nine page -- or eight- or nine-page 

document that says Ethics for SGEs. That is your 

guidance document for the ethics rules. It's 

meant to give you a broad overview of the rules you 
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need to be aware of.

But if there's one thing that you could 

take away from my presentation is that the ethics 

team here at DOL is here for you if you have any 

questions that relate to your service on this 

committee and federal ethics rules.

So if you have a potential conflict of 

interest, if someone offers you a gift, if you have 

a Hatch Act question, I'm here to answer those 

questions. There is a team of six other people in 

my office who are available to you. We really just 

want you to know that we're every source if you need 

it.

I am going to cover the big rules in the 

ethics world as they relate to SGEs, financial 

conflicts of interest, personal conflicts of 

interest, outside activities as well as some 

restrictions on gifts.

But if you have any specific questions, 

I can take them at the end. Or if something comes 

to you, just let me know. It probably has been 

explained to you already. I can't quite see 
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everybody in the room. But, you know, you can feel 

free to let someone know do you have a question, 

or if not, I will take questions at the end.

So let's talk about the first ethics 

issue which is financial conflicts of interest, and 

I think that's what most people think of when they 

think of ethics in the government. They think of 

someone taking an action to benefit themselves 

financially instead of to take an action that's in 

the public's interest or for the good of the agency.

The ethics rules state that you cannot 

participate in a particular matter involving 

specific parties that will have a direct and 

predictable effect on your financial interests, or 

the financial interests of your spouse; minor 

children; someone with whom you're in a general 

partnership; someone with whom you're seeking 

employment; or are employed by; or someone who you 

serve as an officer, director, trustee, or employee 

of.

You want to make sure that if any of 

these parties are before this committee, you know, 
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something your -- maybe your outside employer. 

Maybe you have a client that somehow their 

particular matter is appearing before this 

committee, you cannot participate in those 

matters. Beyond those individuals I named, you 

also cannot participate in any particular manner 

in which you have a direct financial interest.

And I'll tell you that there are a 

number of exceptions, but generally, these 

financial interests are stock holdings that exceed 

$15,000 in value, sector fund holdings that exceed 

$50,000 in value as well as bonds over $15,000 in 

value, and other sort of financial interests.

So I want to talk about that briefly 

because I don't think it's very likely for most FACA 

committees that this type of financial conflicts 

of interest arise very frequently. However, let's 

say you hold stock in an energy company, and you 

hold $20,000 of stock in that energy company, you 

have a financial interest in that company, and 

therefore, you cannot participate at the 

Department in any particular matter involving 
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specific parties that could have a direct and 

predictable effect on the interests of that energy 

company.

Both, your DFO, the other employees in 

OWCP, they're very good at screening when there is 

a particular matter that you're being a part of, 

and this is why all of you fill out those, I'm sure, 

very pesky 450 confidential financial disclosure 

reports. That's to screen for the agency and for 

you where your potential financial interests fall, 

and where they could come in conflict to your work 

on the board -- on the committee.

So, again, this is the first part of the 

handout that was provided to you. There's some 

specific examples there. But what I want you to 

keep in mind is that if you or your spouse, or your 

minor children have a financial interest in 

something, whether it's outside employment, 

whether it's investment in stock or some other 

investment in the company, this is a criminal 

statute that carries criminal consequences, and 

you want to stay away from any particular matters 
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here at DOL that involve that entity.

Particular matter is a phrase that I 

keep using because we are not talking about broad 

policy matters. We are talking about discrete, 

identifiable matters that either involve a single 

party or a discrete and identifiable class of 

parties.

So if this committee is making 

recommendations that affect, you know, all energy 

workers across the country or all energy companies 

across the country, you're likely not in the 

particular matter zone. But when you're talking 

about an issue that maybe only affects six 

employers, maybe only affects one entity, that's 

where you want to be very tuned to do you have any 

financial interest in anyone who is involved in the 

matter, or who stands to be financially impacted 

by the matter.

Right. Similarly to financial 

conflicts of interest, we have personal conflicts 

of interest. The metric is the same in terms of 

if we're talking about you cannot participate in 
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particular matters if someone who is involved in 

the matter, a party to the matter, or a 

representative to the party to the matter has what 

we call a covered relationship with you.

A covered relationship is either a 

person or an entity with whom you have close ties. 

If they are a party to the matter you are working 

on, or represent a party to the matter you are 

working on, and a reasonable person with the 

knowledge of all the facts would believe that you 

could not be impartial in the case, then you cannot 

participate in the matter.

A covered relationship can cover a 

number of different relationships that you may have 

in your life. This is close relatives outside your 

immediate family, household members, persons with 

whom you have business or financial relationships. 

Not someone with whom you're a partnership, right, 

but maybe someone with whom you have, you know, 

you're seeking business before them, or you do 

business with them.

Employers and clients of your parents, 
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dependent children, or spouse. Your former 

nonfederal employers and clients for a year after 

you last worked for that entity, or organizations 

other than political parties in which you're an 

active participant. We call that like more than 

a mere member.

So I'll use myself as an example. I am 

a member of the American Bar Association, but I'm 

not an active member. I hold a membership, but I 

don't participate in any committees. I'm not a 

chair of any committees. So just the fact that I 

hold ABA membership does not disqualify me from 

matters at DOL that may impact the ABA. However, 

if I was the chair of the Labor Employment 

Committee, that would elevate me to a covered 

relationship with those entities.

And so in this case, you should be 

thinking about the work you're doing on this 

committee, would any of the recommendations or work 

of this committee impact your close friends, impact 

people with whom you do business. You know, again 

not exactly your client, but maybe someone with 
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whom you have routine business interactions.

As you can imagine, analyzing this 

under the ethics rules is extremely fact specific. 

So if you are worried about a particular 

relationship you may have and its intersection with 

the committee's work, please come seek my guidance, 

or you can go to Carrie Rhoads, and she'll connect 

you to us because it's a very fact-specific 

determination that the Ethics Office can assist in 

making.

Again, that reasonable person 

standard, would a reasonable person believe that 

you could not be impartial in the matter requires 

this office to look at a lot of factors and legal 

analysis that's been done in the past on whether 

or not something is a potential personal conflict 

of interest for you.

One last note on your former employers 

or former clients. I mentioned it's a one-year 

period. So a client or a former employer from five 

years ago is not a conflict of interest for you 

under this rule unless there are some other 
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extenuating facts to indicate that you have some 

sort of ongoing close, personal relationship with 

the entity.

So, again, I just want to flag that for 

you, you want to look back one year from last 

employment, and that's how long your recusal period 

should last.

So I want to move on to non-government 

activities. This is especially important for all 

of you as SGEs because you have a lot of 

non-government activities. You are not a fulltime 

government employee, so ethics rules, and we expect 

that you will have -- that you may have outside 

employment, that you may participate in outside 

activities, and you can participate in a wide range 

of employment or volunteer activities outside of 

your work on this committee as long as it does not 

conflict with your work on this committee such that 

you could no longer provide your services to DOL.

So you want to make sure that any 

outside activity you're taking on does not require 

you to recuse from so many matters of this committee 
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that you can no longer effectively serve on this 

committee. We haven't happened -- haven't had 

this happen too often, and at no time in the past 

five years that I can recall.

But you want to make sure if you are 

taking on -- maybe you're taking on a new client, 

you want to make sure that that client, by some 

chance, isn't the sole focus of the next committee 

meeting for some reason. That would require you 

to recuse from the entirety of your work on the 

committee, and would no longer be able to 

effectively provide government service.

In addition, you want to make sure that 

you are paying attention to the rules around 

outside activities as they relate to speaking, 

teaching, and writing. There is a specific rule 

for fulltime government employees like myself or 

like Carrie that we cannot receive compensation for 

outside speaking or writing that relates too 

closely to our official duties.

So no one could pay me to write a book 

on federal ethics. The government pays me to 
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advise on federal ethics. I cannot receive 

compensation from an outside source to do that.

However, for all of you as SGEs, you 

cannot receive compensation if the activity is 

performed as a part of your services to the 

government if the invitation was extended to you 

because of your government position, or if the 

invitation was extended by someone with interests 

in matters that may be affected by your service to 

this committee, or it is on any matter to which you 

were assigned or have been assigned during the 

previous one year period.

I think the most realistic, real-world 

example here is that if you we're asked to speak 

at a conference and you were asked to speak at that 

conference about your general professional 

background, your expertise in your particular 

area, and that organization wanted to provide you 

an honoraria, there would be generally no issue 

with you accepting that honoraria.

However, if they were inviting you to 

speak at a conference about the work of this 
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committee, and to speak about what this committee 

does, what type of recommendations it makes and 

what it's like to be a member of a FACA committee, 

you could not receive an honoraria for that 

appearance because you cannot be provided 

compensation by an outside source to speak about 

your work here at the Department.

All of you may accept compensation for 

outside teaching activities provided that the 

course requires multiple presentations and is 

offered as a part of the regularly established 

curriculum at various institutions of higher 

education, or as part of an educational or a 

training program sponsored or funded by federal, 

state, or local governments.

So very similarly, largely all teaching 

activities are going to be permissible as long as 

they're parts of, you know, a part of the curriculum 

of an institution of higher learning. If you do 

teach courses outside of your, you know, in your 

outside life as I call it, feel free to touch base 

with Carrie or myself and we can, you know, give 
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you good guidance. But largely that activity is 

permissible.

I also want to flag for you, there are 

two circumstances where you have to be very careful 

in interactions with the federal government, and 

that's serving as an expert witness or lobbying the 

federal government. In both cases, you cannot 

do -- you cannot serve as an expert witness in a 

case if you participated as a government employee 

in the matter that's subject of the proceedings.

And the same thing with lobbying. If 

you participated personally and substantially in 

the matter, and The United States is a party or has 

a substantial interest in the matter, you cannot 

lobby the federal government. And by that, I mean 

the federal Executive Branch government on the 

matter.

So what I want to flag for you all is 

that if by some chance, you are to serve as an expert 

witness in a case involving a case that is a subject 

that is subject to these FACA proceedings, or if 

you wanted to lobby the federal government, you 
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could not do so if you participated in the matter 

on this committee.

Again, it's a very rare scenario to 

occur. But it can happen. And so the rules for 

SGEs are very limited to those circumstances. If 

you participated in the matter as an SGE for this 

committee, you cannot serve as an expert witness 

in a case that involves the US government or lobby 

the federal executive branch on those matters.

All right. I'm going to move over then 

quickly to the Hatch Act to just briefly discuss 

the Hatch Act. As a reminder for all of you who 

may have not heard this pitch before, the Hatch Act 

is a federal regulation which restricts federal 

employees from participating in advocacy for or 

against partisan political candidates for office, 

partisan political parties, or partisan political 

groups by which I mean largely political action 

committees or groups closely associated with 

partisan political parties.

They cannot advocate for or against 

those entities while on duty in a federal workplace 
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or using federal resources. In addition, 

full-time federal employees cannot run for 

partisan political office, and cannot fundraise 

for partisan political candidates or parties.

You all are special government 

employees, and so the rules are special for you. 

The rules for the Hatch Act still apply, and that 

means you cannot engage in partisan political 

advocacy while you're providing services to this 

committee. So if you are in our headquarters in 

D.C. in the Frances Perkins building, you cannot 

simultaneously be on your cell phone advocating for 

the election of a partisan political candidate for 

office.

You are permitted to fundraise. You 

are permitted to run for a partisan political 

office. But you cannot do so -- you cannot 

fundraise on the days that you're providing service 

to this committee, and you cannot run for partisan 

political office actively while you are providing 

services to this committee, right?

So something I like to talk about in the 
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virtual environment is you should not have a big, 

political campaign sign behind you on WebEx or 

Zoom, or Teams while you're participating in these 

committees. That is partisan advocacy even if you 

don't intend it to be so.

Likewise, you should not, while you're 

engaged in this work of the committee, you should 

not be advocating for one candidate over another, 

or engaging in fundraising by maybe, you know, 

going on Twitter and reposting links while I'm 

giving my ethics training on who to donate to and 

why.

So that's the type of things you should 

avoid. If you have any questions on the Hatch Act, 

it's something we get a lot of questions about 

because it's sort of a unique regulation, and it 

has some unique implications, so please feel free 

to reach out to me on that at any time.

We just sort of finished an election 

season, and I feel like we just sort of started a 

next election season, so it almost is always 

election season. But especially as it gets closer 
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to particular days in which we vote, feel free to 

reach out if any issues come up.

The last thing I want to talk about then 

is gifts and the misuse of government resources. 

For gifts, you may not accept a gift from a person 

who has business before this committee unless an 

exception applies. You cannot accept gifts which 

are given to you because of your government 

position unless an exception applies.

Because the Department of Labor has 

such a broad regulatory and enforcement authority, 

gifts can be very tricky for Department of Labor 

employees. And I really would stress to you, if 

you receive a gift, it doesn't fall into any of the 

exceptions that are listed on Page 7 of the hand 

out you all received, and you're not really sure 

why, you know, this gift has been offered to you, 

please check with those first because we can either 

tell you that it's okay, or we can say please don't 

accept that gift or please return that gift, and 

you can use us as the fall person to say that the 

Department of Labor ethics official made me give 
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this gift back to you because they were not 

comfortable with it.

There are a number of exceptions. You 

can always accept gifts of $20 or less other than 

cash, and up to $50 per year from the same source, 

even if they are a source that would, you know, 

otherwise be prohibited because of their work, you 

know, before this committee or their work before 

OWCP.

You can always accept gifts based on a 

personal relationship, so gifts from your 

relatives or friends. Gifts from someone with 

whom you have a history of gift giving. You can 

accept gifts for the holidays from people who 

routinely give you gifts. Anything based on your 

personal relationships is exempt under the rules.

Anything that is provided to you from 

your own employer, from your spouse's employer, or 

anything from your outside businesses' 

relationships is exempted under the rules. So, 

you know, theoretically, there are things that 

clients could give you that are a gift, but because 
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it is part of your business relationship with that 

client, it's largely exempted under the rules.

You can also always accept discounts 

available to a broad range of persons, military 

discounts, AAA discounts, alumni discounts at 

certain institutions, those are always fine. Or 

anything that has little intrinsic value, cards, 

plaques, or trophies, there is no issue there.

Again, I'll just sort of flag for you 

that anything that's offered to you that comes from 

someone who has business before OWCP, or that 

you're not sure why you're receiving this gift, 

that's something that I would flag for you. And 

please come talk to us.

There is actually a provision within 

the gift rules that allows you to decline an 

otherwise permissible gift if you feel that the 

optics would not be, you know, favorable to 

accepting a gift of that nature.

So, for example, you know, if I was 

litigating a case for the Solicitor's Office and 

opposing counsel and I were in a deposition, and 
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we took a break and they said I'll buy you a coffee. 

I could probably accept that coffee. It's under 

$20 in value. But the optics of that situation 

would say decline, they're opposing counsel. It 

doesn't -- you don't want to look as if that party 

who has business before the Department is currying 

any particular favor with the Department official. 

So it is never inappropriate to decline a gift, but 

if you have any questions on that, please let us 

know.

Again, though, gifts are not cash. I'm 

not talking about cash. There are specific rules 

on salary supplementation that come into play if 

we're talking about cash being provided to you.

Like I highlighted earlier, you cannot 

receive compensation for your work on this 

committee, you know, whether it's speaking at an 

outside organization about your committee work, or 

if someone was trying to compensate you for serving 

on this committee, that is not, you know, 

permitted.

But you are otherwise completely sort 
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of exempt from that salary supplementation 

provision because you can hold outside employment, 

and you can have outside clients, and all of these 

different things. So be more careful with cash is 

I guess my takeaway from that.

And, lastly, you may never misuse 

government resources, government equipment, 

supplies, WebEx sessions. The time of government 

personnel can only be used for authorized 

government activities.

In addition, you may not use nonpublic 

data, economic analyses, private personnel 

information, national security information, or any 

other non-public information that you learn or 

receive as a part of your work on this committee 

for your own private activities, or someone else's 

benefit.

So you are all advisory committee 

members. You are always able to provide 

department-produced publicly available 

information to your outside employer, to potential 

customers. Anything that's publicly available by 
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the Department, you can share that.

But anything that was a non-public 

study, information that OWCP was providing to you 

just as committee members, you could not share that 

information with any outside party outside of, you 

know, your fellow committee members and 

individuals within OWCP.

And with that, we've reached the end of 

my presentation. I would love to take questions 

if anyone has any specific questions either about 

something I said, something you read in the 

handout, or something else that struck you.

CHAIR MARKOWITZ: This is Steven 

Markowitz. Thank you very much. That was very 

thorough, so I'm not sure how many questions there 

might be. But I open it up to board members.

And while they're thinking, I have a 

quick question. You mentioned lobbying, and you 

mentioned lobbying the federal Executive Branch. 

I usually associate lobbying with lobbying the 

federal Legislative Branch.

MS. MYERS: Yeah.
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CHAIR MARKOWITZ: So I just wonder 

about that particular phrase that you used.

MS. MYERS: Yeah. So lobbying happens 

both at the Executive Branch and in the Legislative 

Branch. Although, I think you're right. I think 

more common we refer to congressional or a state 

legislature lobbying as lobbying. But I think 

there's a lot of Department officials who wish that 

lobbyists didn't lobby the Executive Branch 

agencies, but they do.

The specific criminal statute which I'm 

referencing in that session states that you cannot 

represent a third party back to the federal 

Executive Branch government agencies as a federal 

employee. And for SGEs, there's a provision 

written in there that says on matters in which they 

served as an SGE.

So there is no restriction on federal 

employees lobbying Congress, but there is a 

restriction on federal employees trying to 

influence other Executive Branch agencies. And 

the reason behind that is to ensure that federal 
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employees are not using their positions to benefit 

a third party with other federal agencies, if that 

makes sense.

CHAIR MARKOWITZ: No, that -- yes, that 

makes sense. Thank you. Any other --

MS. MYERS: Sure.

CHAIR MARKOWITZ: -- comments or 

questions? Okay. Well, if not, thank you very 

much, Ms. Myers.

MS. MYERS: Yeah. Thank you, all. 

and I hope you all have a wonderful afternoon.

CHAIR MARKOWITZ: Thank you. So I 

thought we'd take a couple minutes actually 

to -- since these issues are in our minds, to talk 

about the structure of board work over the next 

couple of years, and referring specifically to 

working groups or subcommittees.

So just to give you a little bit of 

history. For the first couple of years, we did 

have subcommittees that corresponded with the 

tasks of the board. And they were scheduled well 

in advance. They were -- the public -- they were 
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open, the public was invited. They were noticed 

in the Federal Register. Although, I don't think 

it was 15 days. I think it was something like six 

weeks which made it -- make a lot of planning 

necessary.

And then over the couple years after 

that, we evolved into working more as working 

groups, not as subcommittees which were more -- in 

general more exploratory, a little more 

brainstorming. Some fact finding. And those, we 

did not open up, not because we didn't want to be 

transparent because at every step the board wanted 

to err on the side of transparency, it was as much 

as just a practical matter which is that in order 

to get work done, we just didn't want to have to 

sit through six weeks of the Federal Register 

notice and the like.

So what I want to discuss is what do we 

want to do with this board term in terms 

of -- because we will, I think, have some working 

groups, thinking for instance, we're going to get 

some resources in the next year or so to look at 
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a large number of claims, that we need to do some 

work in preparation for that to plan what we're 

going to do. We'll discuss it today and tomorrow. 

But we want to do further planning which would 

involve a working group.

And so the question is -- and we heard 

from Mr. Plick that we're not -- we're free to 

choose actually on what mechanism we want to use. 

So I wanted to hear your thoughts about that. And 

then this isn't the last word, we can, you know, 

figure this out over the next day and a half, 

but -- yeah, Dr. Bowman.

MEMBER BOWMAN: Yeah. Thank you. I 

was involved in at least two working groups I 

believe on the last term of the board, and I found 

them to be very helpful in terms of gathering 

information, putting ideas together. We always 

brought all of that forward to a full board meeting 

which then was further helpful as we got a more 

complete discussion. And so I think it was a -- I 

think it helped us to be productive. So I would 

be in favor of the working group model that we had 
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last term.

CHAIR MARKOWITZ: Okay. Thank you. 

And let me just add that it was never the case that 

we had the full board show up for a working group 

meeting. We were never that lucky to have that 

level of interest. And also, there was no 

decisions made at the working group level. 

Whatever, as Dr. Bowman said, whatever was 

discussed was brought back to the full board for 

further discussion.

Any other -- Dr. Friedman-Jimenez, Mr. 

Catlin, any thoughts on this? Okay. So --

MEMBER FRIEDMAN-JIMENEZ: Yes, this is 

George Friedman-Jimenez.

CHAIR MARKOWITZ: Yeah.

MEMBER FRIEDMAN-JIMENEZ: Are there 

any downsides to the working groups, for example, 

that you can't bring back a specific recommendation 

or something that would then go to a vote by the 

whole board? Are there any downsides because it 

sounds like a much more flexible, workable model?

CHAIR MARKOWITZ: Well, the only 
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downside is not -- that I can think of in not having 

it open to the public is that it's not open to the 

public. And so that, you know, how we think and 

what we find out isn't fully transparent in terms 

of board interaction.

I would maintain that whatever thought 

process goes into the working groups actually is 

brought to the full board because we discussed 

these things.

So I don't -- the theoretical downside 

of not opening the working group meeting up to the 

public is the perception that were not fully 

transparent. But I think, in fact, I think we are 

because that discussion is brought to the full 

board which are, you know, with meetings of which 

are open. Is that -- does that address your 

question?

MEMBER FRIEDMAN-JIMENEZ: Sure. Yes. 

So in that case, I see no problem with it. And it 

looks like a much better, more workable model. So 

I would agree with what Mark said.

CHAIR MARKOWITZ: Yeah. I mean I 
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think if I --

MEMBER FRIEDMAN-JIMENEZ: Sorry, 

Aaron.

CHAIR MARKOWITZ: Yeah, this is Steve 

Markowitz. If we end up scheduling some meetings 

like we discussed, or we decide that it would be 

useful to open it up to the public, then we can 

affirmatively do that. There's no -- obviously, 

there's no provision. Just requires more 

planning. And so we always have that option, we 

should -- and we should keep it in mind, so.

Okay. So the sense of the group is that 

we'll go with the working group model not noticed 

in the Federal Register, not open to the public with 

the option of having an open, noticed meeting at 

some point if we think it's relevant. Okay. Thank 

you.

So it's quarter of 11:00 and I kind of 

think that we should take our break now. And then 

come back at 11:00, and then start with Ms. Pond 

then. So a 15-minute break. Thank you.

(Whereupon, the above-entitled matter 
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went off the record at 10:40 a.m. and resumed at 

10:59 a.m.)

CHAIR MARKOWITZ: Okay. Let's get 

started. So Mr. Van Dyke had to step out for an 

hour for a work event, so he'll be back later. And 

I would like to welcome Ms. Pond.

MS. POND: Hello, everyone. Welcome. 

Welcome to the new board members, some of you I 

haven't met. So today I'm going to walk through 

just kind of an overview of the EEOICPA for those 

of you who are new, and then I'm going to talk a 

little bit about some of the things we've 

accomplished with the board over the last few years 

since the board was put in place back in 2015. And 

then I'll be willing to take questions.

John, when he gets up, he's going to 

talk in a little bit more detail about the changes 

that have been made to the procedure manual over 

the last year, any other updates that he may have 

with regards to policy. And we'll both be around, 

you know, the rest of the day for questions about 

whether what I talk about, what he talks about. But 
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he will be getting into a little bit more detail 

than I will when he gets up.

So, also, I know Amy kind of covered 

some of the real basics, so I try not to overlap 

too much with what she said. But there may be a 

little bit of that. You can go to the next slide.

Okay. So what is the EEOICPA? Our 

mission is basically to protect the interests of 

workers who were injured or became ill on the job, 

or their families, by making timely, appropriate, 

and accurate decisions on claims, and providing 

prompt payments of benefits to eligible claimants.

That's our mission statement, and what 

that basically means is we are trying our best, and 

what I have reiterated over and over in our program 

to our claims examiners is that we want to pay 

people whenever we can if they're eligible, and 

that means helping them throughout the process.

You know, the burden of the proof lies 

with the claimants, but we've done a lot of things 

over the last 20 years to try to help with that 

process since so many of them really weren't aware 
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of what they were exposed to, or that it was causing 

their conditions. We do provide lump-sum 

compensation to these individuals, I'll talk a 

little bit about that process, and to their 

survivors if they're qualified. Next slide.

So the benefits are slightly different 

under Part B as than they are under Part E. We 

provide $150,000 lump sum under Part B to employees 

or their survivors. And we provide $50,000 in 

supplemental compensation for those people who 

received compensation under the Radiation Exposure 

Compensation Act.

Under Part E, first there's a medical 

component, an individual will receive medical 

benefits, and then they apply for their 

compensation. So it's not -- under Part B it's 

automatically that they'll receive they are lump 

sum. Under Part E they have to apply for either 

impairment, which they get $2,500 per percentage 

of impairment. They can reapply for that every two 

years. Or they can get wage loss, which there's 

a statutory definition that you can get between 
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$10,000 and $15,000 per year depending on the 

amount of wage loss you incurred as a result of the 

condition.

There is a $125,000 lump sum for 

survivors of Part E employees who would be covered 

under the program. In total, the maximum 

compensation allowable is $400,000. And it does 

not include medical costs. Those are in addition. 

Next slide.

So program eligibility under Part B, 

which was enacted in 2000, then there's this Part 

E, which was enacted in 2004, and the three 

components that are necessary to establish in both 

parts are employment, medical, and survivor. But 

there are different criteria under each of those 

parts. Next slide.

The employee eligibility is one of the 

areas that they're different. Under Part B, an 

employee is covered for DOE contractors and 

subcontractors, DOE federal employees, AWE which 

is atomic weapons employers which is defined under 

the statute, and beryllium vendors and under the 
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RECA program. Under Part E, we only cover -- the 

statute only covers contractors and 

subcontractors, and RECA. Next slide.

So there's a number of avenues that the 

claims examiner will undertake to verify 

employment. First and foremost, DOE, Department 

of Energy, they are required under statute to 

provide us with what they can. They can't always 

provide us with records, so we have to go to other 

ways to determine whether an employee was working 

at a particular facility.

That would be the Oak Ridge, the ORAU, 

Oak Ridge Institute for Science and Education. 

They provide records sometimes. There are 

corporate verifiers who have been willing to work 

with DOE and with us to provide information about 

whether an employee worked somewhere. We do rely 

on Social Security Administration wage data.

We'll also go to other sources from the 

claimant if they can have -- if they have affidavits 

or any other recommend -- documents like pay stubs 

that they may have to help if we can't get any of 
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the records. And we're pretty successful in

getting records for the most part, but it can be 

really challenging at some of these sites that are 

no longer in existence or, you know, the DOE just 

didn't keep the records. So that is one of our 

challenges.

DOE also provides DAR records which 

it's called a document acquisition report, and that 

is basically made-up of industrial hygiene 

records, more specific, more voluminous amounts of 

information about what they might have been exposed 

to, or at least industrial hygiene records or 

former worker program records and that sort of 

thing. Next slide.

So medical eligibility is very 

different under Part B versus Part E. A lot of what 

you guys will focus on would be Part E, but chronic 

beryllium disease under Part B can be a challenge 

as well.

So under Part B, the statute covers 

cancer, chronic beryllium disease, chronic 

silicosis, and the RECA. The chronic beryllium 
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disease is statutorily defined very specifically. 

They've got a definition for pre-1993 and post-1993 

diagnoses.

That's been one of our challenges 

throughout the program to try to make sure that the 

tests that are in there we've defined properly, and 

we've had some discussions with the board about 

that definition. Chronic silicosis is also very 

specifically defined. You have to have certain 

employment criteria under Part B to receive those 

benefits for chronic silicosis.

Part E is a lot more open-ended. It's 

any condition that an employee could have 

contracted as a result of toxic substance 

exposures. And the fact that it's so open-ended 

is what makes it so challenging because, you know, 

there's not a lot of records. There's not a lot 

of doctors out there that know a lot about toxic 

substance exposure or how it was related to 

disease.

And so I'll talk a little bit more about 

that in detail. But that's where a lot of the work 
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of the board has been helpful for us just because 

we've created tools like the SEM and other ways to 

try to figure out, you know, what they could have 

been exposed to. But survivors never really knew, 

so it's a real challenge of the program.

Section five of the RECA covers uranium 

workers employed in the mining, milling, and ore 

transportation. And the US Department of Justice 

actually administers the RECA, we just provide that 

supplemental compensation for Part B, and in some 

cases Part E for medical coverage. Next slide.

All right. Under Part B for cancers, 

there's two ways that you can get an acceptance. 

There's only two ways that you can get an acceptance 

for cancer under Part B. There is one path which 

is the special exposure cohort. The Congress 

defined special exposure cohorts by, first, you 

have to have a worker group designation, and that 

if you are within this designation, there's a 

presumption of causation between the cancer and the 

radiation. And this is only radiation exposure.

There's an employment criteria. A 
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person had to work there for usually 250 days within 

a time period that is defined by the -- and within 

the cohort. And they have to have had one of 22 

named cancers. These cancers are named in the law. 

Next slide.

So there were already four statutory 

SEC classes added, those were the gaseous diffusion 

plants and Amchitka Island. But the statute 

actually provided NIOSH with the responsibility 

for creating any new special exposure cohorts 

because NIOSH is National Institute for 

Occupational Safety and Health, they're 

responsible for conducting dose reconstructions 

which I'll talk about in a minute.

But they are also responsible, if they 

cannot conduct a dose reconstruction for creating 

these classes of -- a presumption of classes. And 

they've designated 129 of those since the beginning 

of the program. We administer the SEC classes, but 

NIOSH is responsible for making the designation. 

Next slide.

So before I talk about that, I will talk 
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in a minute about dose reconstruction. It's not 

really something that you guys will deal with much. 

But if a person with cancer under Part B does not 

qualify for an SEC, they do undergo what is called 

a dose reconstruction, and that is every cancer 

case under Part B will go to NIOSH.

They then do an evaluation. They'll 

talk to the claimants. They then do an analysis 

of the site where the individual worked, and then 

they write a report at the end of -- it usually takes 

about six months, sometimes longer for them to do 

this analysis, sometimes shorter periods of time. 

It used to take them years, so they've improved 

significantly over the last, you know, 20 years on 

that.

But then they provide us with a report, 

and with that report, we run a program to determine 

whether the individual -- the individual's 

exposure was 50 percent or greater related to the 

cancer. And if it's 50 percent or over, they get 

an acceptance. And that is statutory as well. So 

I didn't put that in the slides, but I thought I'd 
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make sure I mentioned it. So we can move on.

So under Part E, as I indicated before, 

causation and exposure are our biggest challenges. 

You have to first establish an exposure to a toxic 

substance, and then the law states that we must 

establish that the toxic -- it was at least as 

likely as that that the toxic substance was a 

significant factor in causing, contributing to, or 

aggravating the claimed illness.

We've had a lot of discussion with the 

board, and I know the board has had some discussions 

among themselves over the years about what is 

significant factor, how do you factor that in. And 

it's still a challenge to this day.

And when we've I think been able to kind 

of further refine what that means in training and 

through some of the language that we've put in the 

procedure manual, but it's still kind of a 

challenge because at the end of the day, we rely 

on the medical doctor to tell us what's, you know, 

whether or not there is a relationship, and then 

whether or not that relationship fits this legal 
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criteria.

So we've developed, as a result, you 

know, as I indicated, survivors, sometimes 

employees, claimants, they don't know what they 

were exposed to. They didn't have that 

information. So we created a site exposure 

matrix, which John is going to talk about in detail 

later. But it's basically a relational database 

that we did a lot of research to see what toxic 

substances might have been at these facilities and 

what buildings that these individuals and certain 

job categories might have been exposed to. And 

then there is another piece of that database that 

has some health effect information.

We also do a detailed occupational 

history questionnaire which is at the beginning of 

a party claim, our resource centers will have 

oftentimes like two-hour conversations with the 

employee or the survivor about where they worked, 

what processes they might have been involved in.

That's been another evolving -- the 

questionnaire itself is something that board has 
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looked at, provided us with some information to

help us do that a little bit better than they used 

to. John's going to talk a little bit more about 

that later in terms of those improvements.

We also refer to the DAR records I 

mentioned earlier from Department of Energy. We 

will gather former worker medical screening 

program information because they do like an initial 

analysis when an employee or a claimant of ours 

comes in there, then we can provide -- they will 

provide us with that information, and any other 

sources of information we can obtain from the 

claimant. Next slide.

So I've talked a little bit about this 

already, I'm not going to go into much more detail 

about the site exposure matrices. But it is a tool 

that we use. I will emphasize that. It is not a 

decision database, or it's not a decision maker. 

But it is something since the claimants couldn't 

often come up with the information about the 

exposure, we did create this to -- the claims 

examiner will refer to it to say this is what we're 
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looking at to determine they might have been 

exposed to this toxic substance. Like if you have, 

you know, asbestosis, we can look in there to see 

if there was potential for exposure to asbestos.

That's kind of a more -- that example 

is pretty common. But there are other less common 

disease relationships and toxic substances that 

are in there. This is a publicly available 

database that the public can do research and look 

at it themselves and filter and try to help build 

the case. Oftentimes, authorized representatives 

will use this as well. Next slide.

Okay. Claims adjudication and 

timeframes. I'm going to walk a little bit through 

this slide, and then I have another slide that I'm 

going to cut you. It's not a slide, but it's a 

graphic. And we can -- it's a graphic that's on 

our website. It talks about the actual 

timeframes.

But the basic steps for filing a claim 

is -- and getting through the process is that the 

claimant will file a claim. That claim is usually 
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filed through the Resource Centers. We have 11 

resource centers across the country.

And what our resource centers do is 

they're kind of like -- people can walk into the 

resource centers and talk to a person face to face. 

The resource center employees will help them with 

their claim, filing with their claim. These 

centers are located around DOE facilities where 

people may have worked as much as possible. They 

were statutorily required to create them. So 

that's the front line, and they help us with 

outreach and do a lot of that kind of face to face 

with the claimants.

So when an individual files a claim, 

they can file it there, or they now can file it 

through a digital portal. They can automatically 

upload it. That's something that a lot of our 

claimants who are elderly, they don't necessarily 

use those kinds of mechanisms. But the survivors 

do, or the authorized reps are able to use these 

portals.

Once a claim was filed, if it's a Part 
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E claim, the occupational history questionnaire 

will be the next step. Resource center will 

contact them, ask them, you know, to set a time up 

to go through this occupational history 

questionnaire which will be submitted to a claims 

examiner.

All claims will go to claims examiners 

in our district offices. We have four district 

offices throughout the country. They used to 

be -- they used to be located like regionally. 

They're still regionally located, but we now -- we 

used to do our assignments based on where the 

facilities, where the individual worked. We 

stopped doing that. Now we do a round robin around 

the country way of assigning cases.

Once the claim is accepted or comes into 

the district office, the district office will 

undertake employment verification immediately, go 

to the Department of Energy to obtain information, 

and then begin the process of obtaining information 

from the claimants.

We need to have a diagnosis. We need 
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to have some sort of medical documentation. First 

and foremost, when it comes in, we at least need 

to have a diagnosis. And then the employment 

records, if we need to gather information about 

survivorship, we'll do that during this stage.

Gather whatever information we cannot 

either Part B, Part E. You know, sometimes it will 

go to NIOSH for a Part B assessment, and we'll still 

adjudicate the Part E side as much as we can. If 

we can accept Part E without the Part B, we will 

do that.

And so what we'll do, after all the 

information is gathered, there's a recommended 

decision. So every district office claims 

examiner will issue an initial recommended 

decision whether to accept it or to deny the case.

That is not a final decision. It then 

moves to our final adjudication branch which is 

also under the Division of Energy Employees 

Occupational Injury Compensation, but it's 

separate from the district office. So we have 

hearing representatives there who will do an 
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independent analysis of the entire case file and 

the recommended decision that was issued by the 

district office.

At that stage, the claimant can either 

ask for -- if they want to object, they can ask for 

an oral hearing, or they can submit written 

objections. Or if it's acceptance, they can 

submit a waiver and say I want to -- I want you to 

go ahead with this decision. We won't have to 

wait, we can go ahead an issue and acceptance.

That final decision, once they've 

reviewed all the evidence, the final adjudication 

branch well issue a final decision. There are 

additional appeal rights after that, an individual 

can ask for reconsideration within 30 days. Or any 

time after a final decision is issued, an 

individual can ask for a reopening meaning, for 

example, it was denied because we didn't have any 

medical evidence. They came back two years later, 

they were able to get the information that they 

didn't have before, they can ask for a reopening, 

and we can reopen the case and accept it.
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And that happens a lot just because, you 

know, initially they might not have the information 

that we needed, and they will always have that 

opportunity to go back. If we can cut to that

graphic real quick. I can't see it. If you can 

make it bigger, that'd be great.

This is basically the same thing I just 

talked about, but it's got timeframes and it's kind 

of a visual. It's probably better to have as a 

handout, which we can make sure you guys get a 

handout of this. It's also on our website. 

That's better. I'm not sure I can -- can you get 

it a little bit bigger? There we go. Thank you.

So first, you file a claim through the 

resource centers. The district office will assign 

a claim number and -- from the -- and then it'll 

go to a claims examiner. And then the occupational 

history the questionnaire is undertaken. I have 

already stated that, but it kind of is the next step 

for a Part E claim. If you can Scroll down just 

a little bit.

All right. During the review process, 
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the CE may write to the claimant asking for 

information regarding the employee's work, medical 

documentation, or other information. They'll be 

given 30 days initially to provide that 

information.

We have asked, and we try to make sure 

that our claims examiners are cognizant of that 

30-day period. If a claimant needs additional 

time, they'll provide them with that additional 

time wherever possible. It's, you know, it's 

flexible. We're flexible there.

After that period of time, the claimant 

will receive a recommended decision. The CE will 

issue the recommended decision to accept or deny 

they claim. The case then goes to the final 

adjudication branch.

In our evaluation of the work, we have 

very strict -- we have operational plan goals. So 

everybody, you know, we've set a certain timeframe 

we'd like to get decisions done within to make sure 

that we're doing it as quickly as possible for the 

claimants.
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So we have operational plan goals on 

pretty much a lot -- almost every step in the 

process in terms of timely processing. We found 

that there's recommended decisions usually issued 

within about 145 days of receipt of the claim. Now 

that, you know, really will depend on whether it 

goes to NIOSH or if there are extenuating 

circumstances. But that's the average. You can 

Scroll down a little bit.

And then if the claimant disagrees, 

it's going to take a little bit more time. They'll 

submit that written statement. They have to 

submit that within 60 days of the recommended 

decision to determine whether or not, you know, 

they want to disagree with the case. After that 

period, there will -- A decision will be issued if 

there's no response from the claimant.

Final decisions are typically issued 

within 75 days of the recommended decision, or 

request of the review of the written record. 

They're issued within 150 days if a hearing is 

requested because that takes a little bit more 
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time.

If a claimant agrees, they also can't 

submit that waiver more quickly. Final decisions 

are typically issued within 30 days of receipt of 

the waiver. And then they receive the final 

decision. We can cut back. And again, we can 

probably give this as a separate handout. I think 

it is as a separate handout in the attachments, so 

you can always refer back to it.

I'm sorry. Anybody have any questions 

about the process before I move on? Go ahead.

MEMBER CLOEREN: Hi, I do. Marianne 

Cloeren. I have a question about the cancer claim 

process. It sounds like it's sort of -- the 

consideration ends at Part B. Is there some point 

where you will apply Part E --

MS. POND: Actually --

MEMBER CLOEREN: -- criteria to look 

for occupational, you know, toxic substance?

MS. POND: Oh, absolutely. You can 

file for cancer -- you can file for any condition 

under Part E. Under Part B, we have this criteria, 
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but we will go a separate track for Part E cancers. 

So if you file for cancer, we'll go and try to 

determine if there were other toxic substances 

besides radiation that an individual may have been 

exposed to that will have contributed to their 

illness.

And that is going through to a medical 

doctor, obtaining what other exposures an 

individual may have had, referring it to, you know, 

back to the treating or going to a contract medical 

consultant. Go ahead.

MEMBER CLOEREN: Just a follow-up 

question there. Does the claimant have to trigger 

the Part E review, or --

MS. POND: It really depends on the 

employment where they worked. As they kind of 

showed you at the beginning, if they're -- if they 

worked for an AWE, for example, or atomic weapons, 

they're not going to be eligible for Part E so we 

wouldn't pursue it. But if they're a 

subcontractor or a contractor, we'll automatically 

pursue both paths.
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CHAIR MARKOWITZ: And that's true for 

all Part B conditions, cancer, chronic lung 

disease, and beryllium?

MS. POND: Yes. But the one thing is 

if it's accepted under Part B, it's automatically 

accepted under Part E. So we do not need to 

undertake further development for that. So if you 

get chronic beryllium disease under Part B, you get 

it under Part E as well.

CHAIR MARKOWITZ: And how about 

chronic lung disease?

MS. POND: Chronic beryllium disease?

CHAIR MARKOWITZ: I'm sorry, chronic 

silicosis.

MS. POND: Silicosis, yes. I believe 

that you also get -- yes, it's covered also under 

Part E. But if it's not covered under Part B, you 

can get it covered under Part E. So that's the 

difference. It doesn't go both ways.

So if I get -- if you get -- if we accept 

CBD under Part E and they don't meet the statutory 

criteria under Part B for that condition, then we 
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can't accept it in Part B, but we can accept it under 

Part E. It's kind of a weird way the law was 

written. Mr. Key.

MR. KEY: Yeah. Jim Key. You know, 

improving customer service of this program, I mean 

perhaps we need a sidebar on fast tracking cancer 

filings. Just had a case out of Paducah, one of 

three gaseous diffusions SEC that was established 

under legislation. The person found out and was 

diagnosed with cancer, went to the resource center. 

Followed the proper steps to file.

Unbeknown to them, the cancer had 

occurred and had already metastasized within the 

body. We assisted in directing the individual and 

helping them try to get through this process. 

Unfortunately, that individual passed away within 

a six-month period.

So I understand the time frames that the 

Department has put on different sections after you 

file a claim, the 145 days for a recommended 

decision. Then additional days for a final. But 

looking at this particular case I'm discussing, we 
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only had 180 days before this person passed away. 

And, unfortunately, the claim was filed and was 

going through the process, but the claimant did not 

receive any compensation prior to him deceased.

So I don't know how we address it 

internally of the program, but we need a fast track 

on filing of cancers for those claimants who meet 

the SEC condition under sub-Part B. Thank you.

MS. POND: Okay. Are we ready to go to 

the next slide?

MR. BIRD: Almost.

MS. POND: Okay. I will say just to 

that, we do have expedited processing for cases 

that are terminal. And we have recently kind of 

been reevaluating what that means because terminal 

can mean somebody's going to die this weekend and 

we need to do everything in our power to issue that 

decision and make that payment within the next 

couple of days. And then there are people who went 

to hospice who, you know, who have maybe six months 

or less, or three months.

And so we've recently been in 
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conversations with our claims staff to say that's 

still terminal also, but it's not the terminal 

where you jump through hoops to try to make 

everything happened within days. It is something 

you put at the top of your case files to make sure 

that if they're in hospice.

For example they'll do everything they 

can to, you know, expedite the process at NIOSH or, 

you know, obtain the evidence that we need more 

quickly, going in and making sure the resource 

centers are in touch with the claimants to get their 

payment forms and that sort of thing. So we do have 

some processes in place, and we are still refining 

those expedited processes. Yes, please. Thank you. 

Okay. So I want to talk a little bit about the

experts that we use in the program. As I indicated 

several times now, the claimants can always provide 

the information that we need to adjudicate the 

claims.

So we do utilize -- we 

hired -- specifically for that reason, we hired 

contract -- we hired industrial hygienists 
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including an industrial hygienist contract. We 

hired doctors, contract medical consultants which 

is run by a contractor. And these experts we use, 

specifically the contract medical consultants, 

when we cannot get medical information from the 

claimant that's sufficient to accept the claim.

The medical science experts are 

industrial hygienists who can help us refine what 

the employee might have been exposed to. The legal 

criteria requires that we define that clearly.

And so we will refer a case, let's say 

we have gone to this site exposure matrices, we see 

that there may be some exposure to a particular 

toxic substance, or several toxic substances, 

silicon dioxide, or whatever the case may be, 

cadmium, we'll refer that case.

A claims examiner will say, okay, at 

this stage we need to refer this to an industrial 

hygienist who will review it to determine what the 

maybe extent of that toxic substance exposure might 

have been whether they were exposed significantly, 

and we've got various definitions of, you know, 
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significant. Daily, on a regular basis. Whether 

it's occasionally in passing only. These are the 

terms that the industrial hygienist will use.

What they do is they provide a 

professional opinion that a claims examiner can use 

to weigh the evidence. And then oftentimes refer 

that to the treating doctor to say, this is what 

we've characterized as their exposure, please 

provide us a medical opinion. They do not decide 

the outcome of claims. They just provide us with 

information to help the claims examiner further in 

evaluating the evidence.

The one thing that we've 

worked -- again, this is something we worked with 

the board a lot on in terms of how the industrial 

hygienist should be evaluating the evidence, how 

they should be explaining the evidence. We've 

changed some of the language they've used recently 

from the use of regulatory standards to other 

language. And John will talk about that a little 

bit more.

But I just want to give you a background 
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of what they're there for, and that's to help with 

this process of figuring out the types of exposure, 

the extent of exposure, and that is used then for 

the doctor to review it. Next slide.

We also have health physicists on 

staff. They evaluate the occupational radiation 

exposure and application of the dose 

reconstruction methodologies. So that 

basically -- well, NIOSH does the assessment, 

sometimes there are questions that come up from 

claims examiners or from some of the evidence 

that's placed into the case file about, you know, 

whether the dose reconstruction report, if there 

were any factual errors in it or other problems with 

it, the health physicist can kind of help guide that 

and maybe refer a case back to NIOSH if necessary. 

The industrial hygienist, as I indicated, 

evaluates the extent, and nature, and duration of 

the exposure.

The toxicologist we have on board, we 

have one toxicologist, and I think we have a 

backup -- a toxicologist in the contractor that 
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analyze data and literature relating to 

relationship between toxic substance exposure and 

disease. And what that means is they don't serve 

as a doctor.

But if we get, like a, a lot of science 

that says prostate cancer, you know, is related to 

this particular substance, that we could maybe make 

a presumption. We do make our own presumptions 

sometimes, and the board has helped us with that 

as well presuming, that there is exposure. Maybe 

it's because they've had this much time of 

employment, and they've had, you know, this latency 

period. Those are things that we'll be 

considering, and sometimes our toxicologist will 

help with that. The board has also helped us do 

that. We've been able to make some causation 

assumptions based on the expertise here.

We also have registered nurses. One of 

the very -- one of the biggest medical expenses that 

we have for our claimant population after we've 

accepted a case is home healthcare. And we, you 

know, it's become a very large industry, and 
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there's a lot of requests for sometimes 24/7 care, 

and we have medical benefits examiners who evaluate 

that and other ancillary medical benefits.

Registered nurses will sometimes help 

the claims examiner kind of formulate the questions 

they need to ask of the doctor if there's a question 

about whether the care should be evaluated, or 

whether the ancillary medical benefits should be 

received. They do not issue --they do 

not -- again, they're not decision makers. They 

just help it claims examiners in certain cases.

Our claim staff are not medical 

doctors. They're not lawyers. They're not 

scientists. So they gather the information from 

those experts to try to then issue a decision on 

the case. Next slide.

And so then the medical consultants I 

mentioned -- the medical science unit, we've got 

a whole unit. We've got two fulltime health 

physicist, one fulltime Ph.D., health scientist, 

the toxicologist, the contractor toxicologist, two 

fulltime certified industrial hygienists, a 
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contractor certified industrial hygienist, four 

fulltime nurses, and then we have our contract for 

contract medical consultants. The medical 

consultants -- next slide. I'm not sure I talk 

about it separately. Yes, I do.

All right. The medical consultants 

are contractors. So, again, we try to rely first 

and foremost on the treating physicians to provide 

us with the causation analysis. But a lot of 

doctors are family doctors, aren't familiar, or 

they cannot provide us with real medical rationale 

to support it.

But if we get some information that we 

can then kind of expand upon and get a more detailed 

opinion from another doctor, we'll go to a contract 

medical consultant, refer them -- we'll give them 

the entire case file to look at to help us help a 

claims examiner determined whether or not there is 

a causative link between the exposure and the 

disease.

The medical opinions from these CMCs 

are essential to helping with these claims. If we 
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didn't have them, oftentimes we'd just have to deny 

them. Now they will sometimes lead to a denial as 

well, but it is another extra opinion that we can 

obtain when we don't have enough medical evidence 

from the claimant.

They will help with clarifying a 

diagnoses sometimes. They help with impairments. 

And sometimes -- claimants have the option for an 

impairment claim to either go to a doctor that they 

know of that can do impairments, or to have us send 

the information to a contract medical consultant 

who can provide that information.

We'll then send it to people who have 

experience in the AMA guides for evaluation of 

permanent impairment, and they will provide us with 

opinions on those cases which can then -- will then 

be a percentage of impairment which leads to the 

lump sum compensation.

We'll also refer them in causation 

cases or also for wage loss determinations 

about -- where necessary to determine if wage loss 

was related to their claimed condition. Next 
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slide.

Impairment, I'll all talk very briefly 

about this. It is a big part of Part E. It's one 

of the main ways that an employee can receive 

compensation, monetary compensation. It's a 

percentage of whole-person impairment based on the 

American Medical Association guidelines to the 

evaluation of permanent impairment.

We currently use the fifth edition. We 

did not move to the sixth edition because upon 

analysis from various experts, we determined that 

the fifth edition was more claimant favorable for 

the people with the conditions that we have.

A lot of the AMA guides has to do with 

more falls and breaks and that sort of thing, and 

these illnesses are more -- they're a little bit 

different, and we just found that the fifth edition 

was a little bit more claimant friendly in that. 

And so we've maintained that as the guide that's 

being used. And again, it's $2,500 for each 

percentage of impairment. Next slide.

Wage loss is the decreased capacity to 
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work due to an accepted medical condition. The 

employee compensation is for any year that an 

employee receives less than 50 percent of their 

average annual wage, they get $15,000. And for any 

year that's between 50 percent and 75 percent, they 

get $10,000.

It's a rather complicated formula to 

determine their annual wage. We have to gather 

employment records over the last three years, come 

up with an average wage, and then do this 

comparison. But that's not something that you 

guys really get too involved with. Next slide.

Claim assistance. Like I said, we have 

11 resource centers nationwide, four district 

offices. We have a lot of information on our 

website that includes our regulations, our 

procedure manual, general program information, the 

SEM website, claimant resources. We are 

constantly trying to improve the website just so 

that people can easily obtain the forms.

You know, we're becoming more and more 

digital. In the last year as I indicated, we've 
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been able to make it so that claimants can file 

their form EE-1, EE-2 planforms digitally. 

They're also now able to file their payment forms, 

their EN-20 digitally which saves a lot of time at 

the end of the process when they're trying to get 

their payments.

We do a lot of outreach. We weren't 

doing a lot of outreach during the pandemic because 

obvious --for obvious reasons. So instead we did 

webinars about every month about various topics 

that people could sign up for. We have thousands 

and thousands of people that signed up for our 

website notifications, our e mail blasts that we 

send out. And that's both from the policy aspect. 

We also have one for providers on the medical side 

of things.

And, you know, we're hoping to go back 

out again this year. We usually try to time an 

outreach meeting with the board meetings, but we 

couldn't do it during this time period this quickly 

this year because of the fiscal year.

But, you know, the outreach is also a 
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struggle because we want to get new claimants, but 

we don't really have mailing lists for people that 

might be eligible. So we work closely as possible, 

we have a joint outreach group with the Department 

of Energy and Former Worker Program, and the 

Department of Justice, NIOSH to try to reach as many 

people as we can, and we're constantly still trying 

to do that. I don't know if there -- oh, I think 

there are more slides. Yes.

So these are the accepted conditions 

that that Dr. Markowitz mentioned earlier, and 

you'll probably get into more detailed. But I 

think -- this is just for both Part Bs and E -- Part 

B and E, skin cancer, lung cancer, bladder cancer.

The cancers for Part B are those are the 

top five cancers. And then skin cancer, COPD, lung 

cancer, silicosis, and hearing loss are the top 

five under Part E. But there are more detailed 

list I think you're going to be referring to. Next 

slide.

These are our statistics. Basically 

we've spent $22 billion over the last 20 plus years. 
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That includes medical and monetary compensation. 

And that split is over $8 billion for medical, and 

$13 million in monetary compensation. This is all 

on our website, so it's publicly available and it's 

updated regularly. Next slide.

I'll talk a little bit about the 

accomplishments that we've been able to -- our 

accomplishments with the board over the 

last -- since 2015 since the board was established. 

We have done some site exposure matrices updates. 

We've added health effects data associated with 

toxic substance exposures like bladder cancer, 

breast cancer, leukemia, liver cancer, lymphoma, 

prostate cancer.

We've established some aliases for 

parkinsonism. We redesigned the occupational 

history questionnaire based on the input from the 

board. We improved that data collection on 

employee occupational activities and toxic 

substance exposure. Not only did we improve I 

believe the interview process itself, but the way 

in which it's recorded and how we guide the 
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claimants to provide us that information.

We developed more presumptive 

standards. One was related to COVID-19. Hearing 

loss, auto toxic substances, asbestos-related 

diseases. All of these recommendations and 

responses are laid out in great detail on your 

website, on our website in terms of what the 

specific changes were.

We've also had procedure language 

updates. We updated the asthma description. We 

actually specifically asked the board to talk about 

the six-minute walk test and its applicability in 

impairment ratings. And, again, as I indicated, 

we've changed the IH exposure characterizations of 

exposure to eliminate the regulatory language 

aspect of what they were -- how they characterize 

it.

One thing I will say about the procedure 

manual updates is the board can always recommend 

changes to it. I mean, you know, at any time, if 

there are changes that the board sees in a procedure 

manual and you have, we'll make that change, we'll 
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put it in the next update.

So I know you're going to talk later 

about, you know, the opportunity to comment on the 

changes we're making. We try to make two a year. 

We get a lot of changes that come from case, you 

know, evaluations that we try to get through the 

system. We try to make those changes as quickly 

as possible.

And so the process of getting that 

updated is it goes through a lot of layers of 

evaluation, and then it goes through various layers 

of approval. And then we have to have our union 

members look at it, and then we can publish it. So 

I think, you know, we could talk about that 

timeframe in and of itself, but also keep in mind 

that you guys can always look at the procedure 

manual, we can always change it which we do.

So even if there was something that you 

said, well, this change, you know, maybe could have 

been handled this way, you can always come back and 

say I think this is the language you should use, 

and we can always reevaluate it. So regardless of 
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how we end up with that, just keep that in mind that 

we can always make those changes.

I think those are the major 

accomplishments that we've made in terms of working 

together. I didn't go into a lot of detail, Dr. 

Markowitz, because I figure that's all on the 

website and I wasn't going to go through every 

recommendation unless you wanted me to do that. 

But I figured it probably wasn't what you needed 

me to do today.

Is there another slide? That's all I 

have. But I'm willing to -- I can take questions. 

I don't know what you -- yeah, we've got time.

CHAIR MARKOWITZ: So this is Steven 

Markowitz. So board members, comments, 

questions? Yes, go ahead, Ms. Zaback.

MEMBER ZABACK: Lorna Zaback. My 

question is on the -- when you had the list of the 

Part B and the Part E, and obviously, the Part B 

then begets the Part E, that skin cancer is the 

number one on the list, but it's not part of the 

22 presumptive cancers. And is there any motion, 
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or are they reevaluating, or is there anything to 

relook at that because that seems pretty --

MS. POND: Yeah.

MEMBER ZABACK: I don't know.

MS. POND: The presumptive cancers are 

in the statute. So Congress made that list. They 

based it on the RECA 22. I believe they based it 

on the -- what was in the Radiation Exposure 

Compensation Act already, and they came up with it.

It would have to take an act of Congress 

to change it. We don't really have any authority 

over that at this point. Now have they talked 

about it, I'm sure they've had conversations. But 

it's a matter of getting something like that all 

the way through Congress and passed.

CHAIR MARKOWITZ: Other comments or 

questions? Yeah. Sure. Go ahead. Dianne, Ms. 

Whitten. Oh, yes.

MEMBER WHITTEN: Dianne Whitten.

CHAIR MARKOWITZ: The board, yes. 

Excuse me. What Ms. Whitten has done is to lift 

her name tag -- nameplate up vertically. That's 
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very helpful.

MEMBER WHITTEN: Hi, Rachel. My 

question is when the CE fills out the referral for 

the IH, why are they only able to list seven toxic 

substances on that?

MS. POND: Well, they tried to list the 

seven toxic -- there can be -- there can be 25 toxic 

substances that a person might have been exposed 

to. So they'll pick the ones that they were most 

likely exposed to, and they've got the most 

information, evidence about. John, I don't know 

if you wanted to add to that.

MR. VANCE: Yeah. Sure.

CHAIR MARKOWITZ: Always.

MR. VANCE: All right. So remember 

that this a worker compensation program, and we 

have -- John Vance by the way. This is a worker 

compensation program, so we are responsible for an 

administration of a process. All right?

So we received -- and I just checked, 

we received 226 claims last week, the last 

recording. So you have to keep in mind that our 
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responsibility is to process these claims in a 

timely fashion.

MEMBER WHITTEN: 226 for --

MR. VANCE: 226 claims filed in our 

resource centers. So remember that number, start 

multiplying that over a course of a year. We have 

to figure out how to balance the reasonableness of 

getting these through a process, and also 

understanding that there is going to be a lot of 

work that could be dedicated to trying to figure 

out every single aspect of one these cases.

But then if you do that, you're just not 

going to get these claims through the process. So 

there has to be an effort to sort of create 

efficiencies in how we go about evaluating these 

cases.

So when we go through our analysis of 

a case file to identify the toxins, we're trying 

to prioritize those that have the greatest effect 

in generating a positive outcome. So we've 

identified this 7 levels of exposure, whatever you 

want to call it. But we make it clear to the claims 
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examiner and our industrial hygienist that we're 

trying to prioritize to create this administrative 

efficiency to get these cases through a process.

However, if you do see cases where we 

do need to add more toxic substances to our 

profiling effort, we will do that. That generally 

will come up as a direct consequence of a claimant 

petition to say you didn't consider this properly, 

or you should have added this to the profiles. So 

we do do that quite frequently with regard to our 

advocates or our stakeholders that are involved 

with these cases.

So that's what you have to keep in mind 

is that we're talking about a process that involves 

thousands of cases. So if you're talking about 226 

cases a week coming in, we've got to figure out a 

way to get these through a process, and it cannot 

entail turning each one of these cases into a major 

scientific research project. It's a matter of 

balancing that reasonableness of getting a 

decision outcome, and also basing them on the best 

possible outcome for the claimant. So that's 
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where you get that seven.

And it is flexible. We do see those 

often where we have to expand beyond that because 

of a claimant's request to consider certain things 

that we didn't identify in our preliminary 

evaluation. Does that answer your question, Ms. 

Whitten?

CHAIR MARKOWITZ: I have a follow-up 

question if I could. Steven Markowitz. So the 

claims examiner is not an occupational health 

expert, and that person is frequently the one who's 

winnowing the list of toxins down to the seven 

substances. So how does that -- how does the 

claims examiner actually make that decision?

MS. POND: Well, I mean we have to rely 

on the information that is provided to us either

by the claimant themselves, which again, is hit or 

miss because they don't always know what they're 

exposed to. We rely on what's in the SEM, and, you 

know, it's going to be that the top list -- the top 

hits in the SEM, information that's in the case 

file.
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Typically we're not going to see more 

than seven. But there might be more than seven. 

If there's a lot more than seven, if there's 20, 

they will whittle it down based on I guess the 

first -- the most information they have about that 

toxic substance in the case file.

MR. VANCE: Yeah. And what I would add 

too, is that, you know, a claims examiner is just 

that. They're examining evidence. Their job is 

not to necessarily be an expert in any of these 

fields in the medical hall of science. Their job 

is to look at evidence and do a comparative analysis 

based on what is in a case file about an employee 

and utilize the resources that are available to 

them as examiners to build that case, to build the 

profile for that individual.

And so when I do the SEM demonstration, 

I'm going to sort of show you that comparative 

analysis that comes from the use of that resource. 

But we're also utilizing other information in the 

case file to try to evaluate what the employee told 

us in their occupational history questionnaire, 
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what information is available in the DAR, what 

information is available in the site exposure 

matrices research that we do, and input that we 

received from other experts such as the claimant's 

own physician. And then we build that as a factual 

framework.

And that's what the claims examiner is 

doing, they're examining the evidence and are 

applying that data to create a structure that a 

physician can then utilize in making that causative 

determination under Part E.

So it is a methodology that the claims 

examiners utilized to do their work in evaluating 

what's relevant about that employee in building 

their toxic substance profile. And the SEM is a 

critical part of that build out of that process.

CHAIR MARKOWITZ: Right. Steve 

Markowitz again, just another follow-up question. 

It seems to me the industrial hygienist would be 

the expert who could better winnow down the number 

of toxins in terms of the likelihood of exposure 

that that job title or task would have rather than 
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the claims examiner.

So in the instance where the claims 

examiner looks at the SEM and sees a lot of 

different potential exposures, why not turn that 

over to the IH to decide what the most important 

exposures are?

MS. POND: Well, they're typically 

going to refer their cases to the IH where there's 

a likelihood in the SEM or in the medical evidence 

that we've already received that there's a 

connection between that toxic substance and the 

claim condition. So that's what they're first 

going to look at and say, okay, yeah, they might 

have been exposed to these, but these three or these 

six, or these five, there is some sort of connection 

in the SEM or from any other information that we 

already have that shows a connection.

So that's what we want to focus on first

because we know that there's some sort of 

connection. And so, you know, the amount 

of -- that's what whittles it down first and 

foremost. Saying that we're going to -- we can't 
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have the industrial hygienist going into the SEM 

for every case to do the analysis because that's 

really the work of the claims examiners to whittle 

it down.

What we, you know, we use the SEM, and 

we utilize the information that we obtain in lieu 

of anything else from a claimant. So if a claimant 

has an expert or, you know, a doctor or a scientist 

that's coming in and saying we have all this 

information that we believe shows that this person 

was exposed, that's what we'll use first.

But we're doing this because the 

claimant can't provide us with anything, and we're 

going through and trying to determine what might 

help the claim at the most. And so if we see a 

connection in SEM, and we see a connection between 

the exposure and the condition, that's what we're 

going to refer to first.

And so there's got to be a balance 

between referring every single case to an 

industrial hygienist and asking them to do the work 

of a claims examiner which is to whittle things down 
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to a factual -- the most factual process we can, 

and looking at every possibility that -- because 

that isn't really the duties of the industrial 

hygienist.

They are supposed to take the factual 

basis that we can come up with based on the evidence 

that we have either from the claimants, from the 

doctors, from anything the claimants can provide 

us or in the SEM and do an analysis. And it 

just -- there's got to be a balance.

CHAIR MARKOWITZ: Dr. Cloeren.

MEMBER CLOEREN: Marianne Cloeren. I 

actually have two probably easy questions, and one 

comment that maybe is a question. I guess the 

easiest one, the occupational history 

questionnaire, is that available publicly?

MR. VANCE: Yeah. So our occupational 

history questionnaire in our procedure manual, 

which is our employee staff manual, it describes 

the functionality of the occupational history 

questionnaire, its purpose, its -- the whole 

structure of it is publicly available on our 
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website through that employee and procedure 

manual. So the answer is yes, it is something that 

is available for folks to review and understand how 

it's done. And I think we have a sample as an 

exhibit --

MS. POND: Exhibit 7.

MR. VANCE: -- in the procedure manual.

(Simultaneous speaking.)

MS. POND: And we might have even 

provided.

MR. VANCE: Yeah. And that was 

restructured based on conversations we had with the 

board two, three years ago. So, yes, that's in our 

procedure manual.

MEMBER CLOEREN: Okay. Thank you. 

That was the first one. The second is if somebody 

has a decline in their function overtime, and they 

have an accepted Part E claim, say their COPD 

worsens over ten years and they have an accepted 

claim for it, can they file for an adjustment?

MS. POND: So the adjustment that they 

would file for would probably be the impairment.
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MEMBER CLOEREN: That's my next --

MS. POND: So -- yeah. So they 

get -- and they can get a new impairment every two 

years. They have to wait two years.

MEMBER CLOEREN: Okay.

MS. POND: But they can come back and 

ask for more impairment up to the cap of what we 

can pay out.

MEMBER CLOEREN: Okay. I didn't 

realize that. Thank you. And then the third 

thing is I have tried to look before for like the 

special exposure cohort information. I find it a 

little bit tricky to find -- I don't know if I'm 

just not looking the right way.

Is there any -- like the site exposure 

matrix I think it's very easy to navigate, and I'm 

sure like a lot of work has going into that. I 

don't know if you have anything similar for special 

exposure cohorts that I just haven't found.

MS. POND: I would go to the NIOSH 

website. They have a lot of information. It 

might be easier to look at it from there because 
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they spell out all of the petitions and the results, 

and then they have the list of SEC classes.

(Simultaneous speaking.)

MEMBER CLOEREN: I guess I meant 

something more like -- that a participant might be 

able to look up, I have this cancer, worked at this 

place, I worked for this contractor during these 

years. I think that -- I have seen that and I'm 

not sure that they'd be able to find the 

information.

MS. POND: Yeah. We don't have it like 

that to look it up.

MEMBER CLOEREN: Okay.

MS. POND: That would be a great idea 

if we had the resources to do it.

MR. VANCE: Yeah. We --

MS. POND: Or NIOSH did, or somebody 

did.

MEMBER CLOEREN: Thank you.

MR. VANCE: We do have a lot of 

information on the criteria that are utilized for 

evaluating inclusion in the SEC in the procedure 
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manual again, and it's up to the claims examiner 

to be evaluating claims for the SEC to the determine 

whether or not they're included or whether they're 

why they have to route that case through the dose 

reconstruction process that Rachel discussed 

before.

MEMBER CLOEREN: A follow-up question. 

So is it part of the adjudication process for a 

cancer claim to look first for SEC?

MS. POND: Absolutely.

MR. VANCE: Yes.

MEMBER CLOEREN: All right. Thank 

you.

CHAIR MARKOWITZ: Ms. Whitten.

MEMBER WHITTEN: Dianne Whitten again. 

How do you assure, since you send claims to any 

office, any of the four offices, how do you assure 

that somebody say in Jacksonville understands the 

processes that happened at the other sites?

MS. POND: So when we decided to make 

that shift from a regional-based assignment 

process to a round robin, we got experts in the 
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various facilities from the various offices like, 

for example, somebody in Jacksonville may have been 

an expert about, you know, what happens at 

the -- with the processes in Paducah, people out 

in Washington would be more experts in Hanford.

So first and foremost, we have experts 

that a claims examiner can go to for more detailed 

information, but we've also conducted training. As 

soon as we did the switchover, we -- and we had 

experts or people that had the subject matter 

experts from each office go around and provide 

training to other claims examiners from other 

offices to try to get them more familiar with it.

And, yeah, I will say that there was 

some bumps at the beginning because the, you know, 

some people didn't know to go ask about, you know, 

something that might be particular to a site out 

in California or Washington if they were from 

Jacksonville.

But I think we're getting better at 

that. And we're continually updating that 

training, and we're trying to make sure that if you 
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have -- if they have any questions at all, they go 

to the experts or the SMEAS that more about those 

processes and facilities.

We just found that what was happening, 

and the reason we did that, was some of the claims 

intakes in Cleveland and Denver, we were getting 

fewer and fewer cases. And, you know, the only 

reason we were getting fewer cases was because they 

were located where they were. And so in order to 

even out the caseload, we've changed it over.

CHAIR MARKOWITZ: Yes. Dr. 

Vlahovich.

MEMBER VLAHOVICH: Kevin Vlahovich. 

When a claims examiner is looking at a case, are 

they following like a standard algorithm, or a 

checklist? So we have -- let's say a piece of 

information, we go to the next step, or we're 

missing something, so we need to look for that?

MS. POND: Yeah. That's what the 

procedure manual is for basically. It's pretty 

step-by-step every single piece. So if you have 

a -- here's what you do for employment, here's what 
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you look for in medical, here's what you look for, 

you know, or have -- when you get to this stage of 

the process, it is pretty much step-by-step, laid 

out in our procedure manual. And that guide is for 

the -- or is for claims examiners, like 800 pages.

We also have training modules. So when 

we have a new class or a group of people that come 

in as claims examiners, they go through a couple 

months series of training to go and explain it. They 

can retake modules, we're constantly updating 

training module so that if it claims examiner has 

been there a long time, but we have a new process, 

we can then provide that training.

Sometimes we do it hands on. 

Sometimes, you know oftentimes like for our 

industrial hygienist, we'll have virtual trainings 

with people to kind of give them more specifics 

about what to look for, what do you send in, that 

sort of thing. But, yeah, there's a lot of 

training and guides for our CEs.

CHAIR MARKOWITZ: Other comments, 

questions?
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MEMBER FRIEDMAN-JIMENEZ: Yeah. This 

is This is George Friedman-Jimenez. I have a 

comment and question about the skin cancer 

question. Skin cancer is one of the most common 

cancers, probably the most common cancer. Often 

the treatment is simple and not expensive. But 

many times, it is a very substantial medical 

treatment, and it sort of falls in between the two 

boards.

The typical cause of skin cancer in the 

great majority of cases is non-ionizing radiation, 

ultraviolet light from the sun, and this can be 

occupational in many cases. People that work 

outdoors are at increased risk, but yet, it's not 

a toxic substance, so our board doesn't have 

jurisdiction over it.

The radiation board, I don't think he 

has jurisdiction over it either. They deal with 

ionizing radiation. So my question is whether you 

see any pathway to covering this hole? I believe 

it's a hole in that there are a substantial 

number -- there have to be a substantial number of 
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occupational cases of skin cancer with significant 

medical costs, and sometimes, time lost from work, 

or even death in the case of Melanoma usually.

Is there a pathway to get that 

incorporated into the work of this compensation 

program. I know it would require a statutory 

change that somehow Congress would have to include 

it under the jurisdiction of one of the two boards, 

and we can talk about which one would be more 

appropriate. But, Rachel, thank you for this 

great overview, and I was wondering if you have an 

answer to that question.

MS. POND: I do not have an answer. 

There is a gap. I will agree with you that there 

is a gap when it comes to non-ionizing radiation. 

But these statute's pretty clear about it being 

occupational. And so that piece of it has not 

been, you know, we haven't been able to accept cases 

based on sun exposure thus far.

You know, how it's contributed to the 

other exposures, it's not a piece that's been real 

clear unless a doctor is telling us it was a 
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combination of their occupational exposure and the 

sun, or something like that. But right now we just 

rely on the physicians to provide us with those 

causation determinations based on the occupational 

aspect of it, and that's based on what the statute 

says.

MR. VANCE: Let me just add --

MEMBER FRIEDMAN-JIMENEZ: So, yeah. 

So I think that this points out a possible role for 

the board here because this is not the only disease. 

I think noise-induced hearing loss is similar. We 

can deal with cases that are substance-induced due 

to chemical toxicity, but not due to noise or the 

interaction of noise and the chemical.

So we've, you know, dealt with most of 

the major causes that are occupational, but there 

are a few that are not covered by the program. And 

I'm wondering if the board may somehow be able to 

put together a request to Congress to include these 

sort of orphaned conditions that frequently are 

occupational, that can because significant 

morbidity or even mortality, and that are not under 
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the jurisdiction of either of the boards.

MR. VANCE: And let me just clarify for 

everyone so that we're all working from the same 

page. All right? So there is a legal definition 

under the -- under our program with regard to what 

a toxic substance is, and basically any material 

that has the ability to cause harm based on its 

chemical, biological, or radiological properties. 

So within that meaning, the program has said that 

does not include ultraviolet waves or noise. So 

that's one point I wanted to clarify.

The next thing is, you know, this board 

is fully capable of interacting and discussing skin 

cancer with regard to its connection to chemical 

exposure. Now if you remember the one slide that 

Rachel showed, skin cancer is one of our top

accepted conditions.

More than likely that is arising from 

chemical exposure, and I can tell you it's probably 

mineral oil and arsenic that are the main drivers 

of that.

We do not have a presumptive standard 
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for skin cancer. That's something that the board 

could certainly consider looking at. But it is 

well within, I think, the scope of the board, and 

I'm pretty sure Rachel can agree to have you guys 

looking at and considering skin cancer and the 

methodology that the program utilizes in 

evaluating those cases.

Now this question on the ultraviolet 

light, that's going to be your question on 

influencing Congress on how they want to change the 

definition of a toxic substance. So I just wanted 

to make that point clear.

CHAIR MARKOWITZ: Thanks. And we're 

going to actually look at -- we're going to look 

at data later on the most common claim conditions, 

and a preview is 20 to 25 percent of the skin cancer 

claims have been approved in the past couple of 

years. So a lot of claims, a fair amount of 

approval, so. But we'll look more closely at that 

later.

I have a couple questions. Roughly 

what percentage of claims these days, meaning, you 
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know, the last year or two, go to the IH, and what 

percentage of claims go to the CMC? Just roughly, 

10 percent, 90 percent, 50 percent?

MR. VANCE: I would --

MS. POND: I would be hesitant to 

provide you that off the top of my head. I think 

more and more are going to an IH than they used to 

for sure. Of Part E claims, I mean you might be 

able to -- let's say, 50 percent are going -- you 

don't want to say it.

MR. VANCE: Yeah, I wouldn't --

MS. POND: We don't want to say it, so 

we don't know --

MR. VANCE: -- commit to --

(Simultaneous speaking.)

MS. POND: -- for sure.

CHAIR MARKOWITZ: Okay. No, that's 

fine. That's fine.

MS. POND: But I do know that there is 

more that go to an IH than there used to be. There 

might be less going to a CMC than there used to be 

because there are more and more physicians that are 
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becoming familiar, or more authorized reps who are, 

you know, familiar with doctors who can provide 

those sorts of causation opinions. At least 

that's kind of anecdotally what I see. I don't 

have specific percentages.

CHAIR MARKOWITZ: No, that's fine.

MS. POND: And wouldn't want to put 

them on the record.

CHAIR MARKOWITZ: That's fine. The 

board, a couple of years ago, used to look at the 

quarterly audits of the medical -- at that point, 

the medical director where the physician on staff 

used to look at claims over the past year and audit 

for various aspects of impairment, causation and 

the like. Do those still occur? I didn't check 

before the meeting, do those still occur or they've 

been suspended?

MS. POND: No. We restarted them, and 

we can provide you with those. They're being done 

by our policy staff to see if the referrals 

themselves are correct, and the responses are in 

line with our procedures, and the doctors are 
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following, you know, providing us with the 

rationale.

The reports are qualitative. They 

provide the history and that sort of thing. That's 

what we're looking at, and yes, we've restarted 

them, but recently so. We can probably get you 

2022 information.

MR. VANCE: Yes. Which after -- what 

we used to do is have our medical officer with the 

program evaluating the sufficiency of the medical 

opinions. What's changed is that we are now 

evaluating it from a programmatic standpoint as far 

as a contract surveillance to make sure that the 

CMCs operating within the structure and the 

requirements of the contract.

And so that's being conducted by the 

policy branch, and we are evaluating those 

components of the contract to ensure that the 

contractor is fulfilling their expectations on the 

work that they are doing for the program.

CHAIR MARKOWITZ: Well, so we would 

request if any information about that is 
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available -- results are available because that 

relates to one of our tasks, so.

MS. POND: Absolutely.

CHAIR MARKOWITZ: Carrie, if you can 

just make note of that. Another question I have 

is, you know, one of the attorneys when they talked 

about our charter and the list of things we're 

supposed to do and our requirements, one of them 

was that we're supposed to coordinate with the 

Radiation Advisory Board. And I personally have 

never initiated that, I've been remiss about that. 

So I want to officially request that we coordinate 

with the radiation Advisory Board.

I don't know what that means because I 

think we really deal with separate issues. I don't 

really see much overlap, which is the reason why 

it hasn't occurred yet. But I want to officially 

request that we fulfill that requirement.

MS. POND: Well, I think it's an 

option. I don't know that it's a requirement. 

But, yeah, if you --

CHAIR MARKOWITZ: Well, if it's 
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required. If it's required.

MS. POND: Okay.

CHAIR MARKOWITZ: Yeah.

MS. RHOADS: It's as necessary.

CHAIR MARKOWITZ: As necessary. 

Okay.

MS. POND: So I don't think you --

CHAIR MARKOWITZ: Well, if --

MS. POND: -- absolutely have to --

CHAIR MARKOWITZ: If the Department 

believes it's necessary, then we're more than happy 

to do that. So one of the -- and the final question 

I have is one of the things you pointed out in the 

ways in which the board has been helpful in the past 

number of years is development of -- assisting in 

development of presumptions.

And presumptions are very useful 

because they're expedited ways for people to get 

their claims accepted, particularly when there is 

insufficient information, usually about exposure. 

So are there possible presumptions you're 

considering, you're wondering about, or you're 
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working on that we can be helpful with?

MS. POND: We can like look into it. I 

mean I would -- I could collect maybe some more 

information. I wouldn't want to, again, talk 

right off the top of our heads. But there, you 

know, we have gotten some referrals to our 

toxicologists that we could pursue a little bit 

further and we'll ask. We'll do some polling and 

see if there is some specific conditions and 

relationships that you guys could look into for us.

MR. VANCE: Yeah. And the program 

itself has actually, you know, we continue to do 

work on our end. And one of the more recent 

presumptions that we've actually initiated on our 

own was a new Part E silicosis presumption which 

we should really realize it should have been done 

a while ago because it already exists under Part 

B, but we looked at the Part E side of that so that 

we could have an independent presumption applied 

under Part E that wasn't really dependent on the 

presumption that exists under Part B.

And so what Dr. Markowitz is talking 
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about is very useful because, remember, this is an 

administrative process where we have hundreds of 

cases coming in. The presumptive triggers that we 

have in our procedure manual allows us to bypass 

a lot of the developments time needed to have 

physicians and industrial hygienists sometimes, 

and all this other kind of work occur.

If a person meets specific conditions 

of that presumption, we can approve the case. And 

it is a very good process for sort of short 

circuiting the need to do a lot of this is very 

laborious causation development. So it is a very 

advantageous thing to have more presumptions that 

are based on whatever epidemiological research is 

available on particular topics.

Now, of course, we all know that that 

can be very challenging in this kind of 

occupational illness environment. But it is a 

very useful and productive tool for us as an 

organization to have presumptions applied. it's 

been very helpful, especially with COVID-19, has 

really helped a lot because you will know that 
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individuals suffering from occupational illness 

are very susceptible to getting COVID-19.

And we've had a lot of cases where that 

has been an accepted condition that has actually 

proven to be very beneficial simply because 

COVID-19 can contribute to, you know, serious 

medical problems and that has been a very helpful 

presumption that the board recommended that we 

implement.

CHAIR MARKOWITZ: And this is Steve 

Markowitz. Just a comment. And with COVID-19 and 

these state workers comp systems, the states which 

have had a presumption about essential workers, the 

public-facing workers who get COVID, that that 

would be considered occupation as a presumption 

have awarded a lot more claims than other states 

in which there has not been a presumption in which 

the worker has to demonstrate that they did have 

exposure at work. For instance, in New York State 

we have that problem.

So just a add on point. For board 

members, when a person doesn't meet the criteria 
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for presumption of a claim, then they still 

have -- there is still the option that they go the 

normal route of claims that a claims examination 

takes so that they're not discard -- their claim 

isn't discarded. They then get the normal 

evaluation. At least we've been reassured about 

that. Ms. Whitten?

MEMBER WHITTEN: Dianne Whitten. 

Since we're on the presumptive topic, we had a 

situation where a claimant had mesothelioma. It's 

under the presumption. But I mean it's terminal. 

He had a limited amount of time left. But the 

claims examiner sent the case to be dose 

reconstructed to see if he qualified for lung 

cancer. Is that a normal process?

MS. POND: No. No.

MR. VANCE: No. Okay. So with regard 

to any case, we are never certain what's going on 

with that case until we actually know what's going 

on with that case. There could be any number of 

reasons that that occurred. It's very difficult 

to speak to that.
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But the process would bear out 

hopefully that if there was a mistake that had been 

made at some point in the initial adjudication, 

that that is caught by -- that's why we have this 

two-stage adjudication process.

If the claims examiner, let's say they 

send a referral for lung cancer when they should 

be looking at mesothelioma, that's the role of the 

final adjudication branch to look at that and say, 

hey, wait a second, this does not seem to be in 

alignment with the case evidence or program 

procedure, and they return that back to the 

district office for correction.

Now that is not going to be very helpful 

for somebody that's in a terminal situation. But 

our objective here is to try to get an outcome that 

conforms with our policies and procedures.

MS. POND: And if you do see cases like 

that, I mean please bring it to somebody's 

attention. If you say, you know, I mean if a person 

has lung cancer and it's sent to NIOSH, that's 

great. But if they also have mesothelioma, then 
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they need to be adjudicating that case under Part 

E. And if they're not doing that, then we need 

to -- we need to know about that.

And, you know, if the claims 

examiner -- somebody needs to -- either the claims 

examiner, claim supervisor, resource center, make 

sure that somebody is aware that that is occurring 

so we can fix it.

MR. VANCE: Let me -- I'm going to add 

one real quick response going back to COVID-19 

because I looked around the room and I saw a couple 

confused faces. Okay?

COVID-19 is being approved as a 

consequential illness to some work-related 

illness. So in other words, under our program if 

you say develop COPD and then you happen to develop 

COVID-19, the mechanism of approval here is that 

COVID-19 is being made worse as a consequence of 

your COPD.

So the program can cover newly 

diagnosed conditions that are in some way impacted 

by an approved work-related condition. So that 
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relationship that -- that consequential 

relationship is what triggers that, and it's a 

presumption of a consequential relationship. I 

saw you. I was like, oh, she doesn't know.

CHAIR MARKOWITZ: Yes. Mr. Key.

MEMBER KEY: Yeah. Jim Key. Rachel, 

you said in those cases where we have terminal 

individuals, to elevate that up for the fast track, 

who do these people go to?

MS. POND: Well, they should start with 

their claims examiner, and they could submit that 

information either, you know, they can call and be 

put through to their claims examiner by the 

resource centers. But, you know, if they talk to 

an employee and say terminal, resource center 

employee will make sure that it's flagged, and make 

sure that the right people will know. Or they can 

submit something through the portal that says this 

is terminal. But I would start with recalling and 

getting a resource center person involved.

CHAIR MARKOWITZ: Ms. Whitten.

MEMBER WHITTEN: Just one more 
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question. I could have looked it up. So what is 

the difference between chronic silicosis under B 

and silicosis under E?

MS. POND: There is specific -- I think 

you have to have a 250-day requirement in a certain 

job for under Part B in the tunnels, right, and 

mining or milling in Nevada Test Site. It's a 

specific site, it's a specific period of time. And 

under Part E it's just medical and an exposure, and 

that sort of thing.

MR. VANCE: Yeah. So for chronic 

silicosis, there are statutory requirements under 

Part B, like Rachel just said, for the diagnosis 

and the establishment of chronic silicosis. 

There's also an employment requirement that the 

employee have worked during the period that there 

was underground testing occurring at sites in 

Nevada and Alaska. So that what allows us to 

accept a case under Part B.

What we recognized is that what is 

hampering everybody that doesn't meet those 

conditions under Part B that we've got to go and 
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look at under Part E. So what we did was we said 

under Part E, absent those criteria that exist 

under Part B, what would be a presumption that we 

could apply for chronic silicosis for anyone that 

was exposed to silicosis regardless of the location 

that they worked.

And, in fact, under that we don't even 

have the diagnostic criteria that is required under 

B. It is simply a doctor using their own judgment 

of clinical and diagnostic evidence that said this 

person has chronic silicosis.

So if they meet that -- if they meet that 

diagnostic criteria under Part E of the doctor's 

diagnosis, and the conditions that are in the 

presumption in which I think are 180 days of 

exposure to silica, significant exposure to 

silica, there's a latency component that we're 

approving the case.

So the standard is in the procedure 

manual, all our presumptions for everybody on the 

board is in our procedure manual for our staff, it's 

Exhibit 15-4. And it lays out all of our causation 
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presumptions, our consequential presumption for 

COVID-19, and any exposure presumptions that 

apply. And we have a very large one for asbestos 

exposure.

CHAIR MARKOWITZ: So just to follow up 

then. Steve Markowitz. What has changed under 

Part E for chronic silicosis? What's new?

MR. VANCE: The only thing that's 

changed is the presumption now bypasses the need. 

If an individual meets these conditions under Part 

E and we have not been able to approve it under Part 

B, and it goes to Part E and you meet these 

conditions of the presumption under Part E, we 

approve the case. Otherwise the case is going to 

get routed through the normal evaluation for 

causation under the Part E process.

CHAIR MARKOWITZ: So the presumptive 

criteria in Part E for silicosis, that set of 

criteria are new in Part E?

MR. VANCE: Yes.

CHAIR MARKOWITZ: Okay. I'm sorry. 

Yeah. Go ahead, Ms. Zaback.
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MEMBER ZABACK: Hi. Lorna Zaback. 

first, I wanted to have a comment regarding the 

terminal, and I, working directly with Department 

of Labor, there you have a great sense of urgency 

when it comes to terminal, and I believe all the 

sites who are responding have a great sense of 

urgency. And the community, as a whole, that deals 

with people in this case, they really go into 

overdrive.

That being said, it's sometimes 

difficult to get the communication. But I am 

working with Charles Elson on -- they're redoing 

the cert, and they're going to actually add a flag 

so that it'll directly go to somebody, and it won't 

just get lost because I know that is a problem.

But the question I have is about -- so 

the person -- you start them on the Part B and Part 

E track at the same time, but you wait until the 

outcome of the Part B before you go to the Part E. 

Is that true or not true?

MS. POND: So they're supposed to be 

developing them both at the same time. What 
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happens, and the only time they'll wait for Part 

B as if they're going to have to deny a Part E. So 

if they've done everything they can and they've got 

a cancer case, and they couldn't get any medical 

or any causative analysis that came to a positive 

outcome for Part E, then they'll say, well, we're 

not going to denied Part E until it comes back from 

NIOSH under Part B because that could be a positive, 

and then they get a positive under Part E. So the 

only time we're going to wait for that NIOSH is if 

we can't do anything else on the Part E and we would 

have to deny it otherwise.

If they can accept it under Part E, they 

will. And that's the instructions are supposed to 

go ahead with everything they can do, and if they 

can accept it, accept it. But if they can't, they 

have to wait.

CHAIR MARKOWITZ: Other comments or 

questions? Other comments or questions? Dr. 

Friedman-Jimenez, Mr. Catlin? So let me just 

remind the board. So I think Ms. Pond and Mr. Vance 

are going to be around the rest of today.
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MS. POND: Yes.

CHAIR MARKOWITZ: They may not -- one 

or both may not be here tomorrow. So --

MS. POND: Yeah. I mean we can play 

that by ear. It just depends on, you know, far you 

get today, if you think you're going to have a lot 

of questions tomorrow. I mean we can talk about 

that, but.

CHAIR MARKOWITZ: Okay. I was just 

going to say that they may not be here tomorrow, 

so if you have questions for them, by all means 

direct them their way.

MS. POND: Absolutely.

CHAIR MARKOWITZ: But they may be here 

tomorrow too, so. Okay. So it's close to 12:30. 

We're going to take a break now for lunch. Will 

resume at 1:30. Thank you.

(Whereupon, the above-entitled matter 

went off the record at 12:23 p.m. and resumed at 

1:31 p.m.)

CHAIR MARKOWITZ: Let's get started. 

Welcome back. Next up is Mr. John Vance.
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MR. VANCE: All right. Good 

afternoon. I'm the after lunch special, I guess. 

So my name is John Vance. I'm the policy branch 

chief. I oversee the work of our policy analyst 

group that does our publications for program 

procedures. We do a lot of case-support 

activities in compliance with program and 

procedures.

I also oversee the work of our Medical 

Health Science unit. These are the individuals 

that Rachel mentioned before, our industrial 

hygiene team, health physics, our nurse 

consultants, and our toxicologist. So I'm 

intermittently familiar with just about everything 

this board has been doing over the past few years.

I've also very heavily involved with 

preparing materials for the board, so I have a very 

intimate understanding of the data submissions and 

all of that as well as preparing a lot of the 

responses that we do for the work of the board or 

in response to board recommendations.

So my objective this afternoon is just 
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talk a little bit about the work of the Policy 

Branch, provide some background information on 

some of the things that the program has been doing 

with regard to program policies and procedures.

I will let you all know that I have two 

teenage sons, one who is 6'4", 220 pounds, so 

whatever you think you can do to me, have at it. 

So please ask questions. You know, we deal with 

a lot of folks that do engage with the program. This 

is a uniquely complicated process as you're 

probably gauging, especially for the new folks. For 

the folks who have been around for a while, I've 

been doing this forever and I'm still encountering 

things. And I'm like, I had no idea how to handle 

that.

So, you know, there is a lot of 

collaboration that is involved with case 

adjudication, claims examining and getting through 

this process. So please feel free to ask whatever 

questions, and don't think that you're going to 

hurt my feelings doing so no matter how foolish you 

may think the question is. Dumb questions need to 
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get answers too. So feel free to ask. Okay. So, 

Kevin, first slide.

So with regard to program policies and 

procedures, what you need to know is that the 

program operates with lots of background material 

about how we go about doing the day-to-day work of 

case adjudication. Were informed by the statute, 

by program regulations that provide further 

clarification of how the program is to operate with 

regard to administering the law, and then at a lower 

level, you have procedural guidance that is offered 

to employees with regard to how to do the day-to-day 

work of their job.

So think of it like the statute provides 

the overarching framework. Regulations provides 

further clarification on how to do things. And 

then the procedures and policies of the program are 

that granular kind of information that that staff 

needs to know about how to actually do the work on 

a day-to-day basis.

Our procedure manual and all of our 

policy publications are available on our website. 
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I would encourage you to take a look at that, 

especially for the new folks. My one 

recommendation is our procedure manual is probably 

the single best resource for what do claims 

examiners have to handle with regard to day-to-day 

work of case adjudication. What is the job of the 

claims examiner? How do they go about doing it?

So in the concept or the range of things 

that are going on to answer a very simple question, 

is this illness related an employee's work. Okay. 

That's where it starts with any worker compensation 

program. Our program, of course, deals with very 

complicated subject matter with regard to medical 

or employment causation, toxicology, 

epidemiology, all of these things which makes for 

a wonderful an entertaining process. So I 

encourage you to check out the procedure manual.

The procedure manual is updated 

generally twice a year. The genesis of most of the 

content changes originate from staff submitting 

questions, or issues, or things that we need to 

clarify.
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We also source changes to the procedure 

manual based on conversations that we have before 

the board, either formal recommendations that are 

being made, or things that we hear in discussions 

with the board that were like, well, we should 

probably anticipate that this is an issue and we're 

going to go ahead and make changes to the language 

of the procedure manual, or issue a directive that 

explains to staff how to do certain things.

So it is a constantly evolving process 

to develop program procedures, and it really is 

dependent on what we encounter on a day-to-day 

basis. So if we are changing something in the 

procedure manual, it's generally a direct 

consequence of something that's happened that we 

needed to address in the day-to-day work of a claims 

examiner. So be aware that that's the genesis of 

a lot of the work that we do then the procedure 

manual.

Rachel alluded to this before, and I 

will amplify it because I deal with it all the time, 

making edits and language changes to the procedure 
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manual is a very complex set of steps and stages 

that we go through for this kind of clearance to 

make sure that whatever we're issuing meets certain 

legal and programmatic requirements.

So when people offer wording changes or 

what have you to the procedure manual, it has to 

go through a very serious vetting process. I'm not 

going to explain it all, but there are many steps 

of involvement that we go through to pass any 

publication for issuance.

We have internal feedback mechanisms. 

That means that we have to going through our initial 

drafting. We go back to the field to make sure that 

they're comfortable with the material to allow them 

input. That includes our case adjudication field 

operations folks, are final appeals board, and also 

our medical benefit adjudication branch.

We then also allow opportunities for 

different entities to evaluate and provide 

feedback. That would be our federal employees' 

unions get an opportunity to look at this. We do 

provide the opportunity for the Advisory Board to 
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be made aware of changes that are going to be made 

to the procedure manual before the publication.

So there's a lot of steps that go into 

clearing our publications for clearance. That 

includes both our procedure manual, our bulletins, 

and our circulars. And as you can see from the 

slide, our bulletins -- each one of these have 

slightly different functions.

Bulletins are generally going to be 

interim updates to something in the procedure 

manual that we want to do as a time critical kind 

of update. Is not getting into a formal 

publication of the procedure manual, but it is 

something that we are altering with regard to how 

procedures are going to apply, and we'll talk a 

little -- I'll mention all the recent bulletins in 

a moment.

Circulars are mostly just 

informational kind of things that we want staff to 

be made aware of. It's not necessarily a 

procedural thing, but it's just informational kind 

of guidance that staff need to be made aware of. 
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And sometimes that stuff will be captured in a 

procedure at a later date. But for the most part, 

it's just informational.

So these things are what are designed 

to communicate to our staff to how to do their job, 

but we make them publicly available for 

transparency. So, Kevin, next slide.

So with regard to the procedure manual, 

we've had two additions that have been issued in 

the past year. Version 6.0, I asked my staff just 

to put together some of the high-level stuff that 

I thought was kind of interesting. Feel free to 

ask any questions about any of these updates.

So we have a large claimant population 

with a need for a lot of support. So we have a 

process where we allow individuals to have 

attorneys represent them, or lay individuals that 

can serve as sort of like support for getting their 

claims through this process.

Now as you can imagine, sometimes that 

can get dicey with family members and other people 

trying to intervene into the decision-making 
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process, and so we just clarify the procedures with 

regard to, you know, the claims examiner has to 

figure out who is the designated authorize 

representative and enforce that policy throughout 

the life cycle of a case. So if there are disputes 

about who's the authorized representative, the CE 

is responsible for resolving that issue.

Defined roles and responsibilities for 

identifying and responding to potential conflicts 

of interest, this arose mostly from issues with 

regard to home and residential healthcare. You 

know, who is responsible for asking for or 

requesting home and residential healthcare? It 

can't actually be a provider that's in the home 

asking for the same services that they're being 

paid for. So we have some very clear guidance to 

our staff about how they are to treat potential 

conflicts of interest, and how you resolve that.

Conflict of interest for our program 

generally involves an authorized representative 

serving in some capacity that's receiving money as 

a consequence of benefit provisions by the program. 
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We don't want an authorized representative also 

being paid as like an in-home personal attendant. 

So we have to sever that, that relationship when 

it is identified.

Usually it's not a problem when people 

are made aware of the potential conflict. They 

resolve it through either ending their role as an 

authorized representative, or ending their role as 

a paid service provider in the home.

Validation of the site exposure 

matrices results prior to the issuance of a 

recommended decision, that was a wording change 

where we just wanted to clarify that it wasn't an 

automatic requirement to do that when SEM didn't 

play a role in the decision.

So there was some feedback that we had 

gotten from field staff saying why are we being made 

to do something that has no consequence based on 

the history of the case. So we eliminated that and 

just changed the language to clarify that language.

And we have some updates that occurred 

with regard to how we deal with impairment for 
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emotional disorders. There's a regulatory 

limitation that we have to ensure that any 

emotional disorder that is being evaluated for 

impairment originate from the central nervous 

system. So it cannot be a purely emotional 

disorder that is being rated it. It has to 

originate from a disorder of the central nervous 

system, and that is a regulatory requirement.

Compensation for consequential 

illnesses is subject to coordination. I'm not 

going to scare anybody too much by talking about 

coordination, but what that basically means is that 

if you've received money from a tort lawsuit or a 

state worker comp process that's affiliated with 

something that you've claimed in your case, the 

government requires an offset to occur.

So we basically stipulated that if 

you're being approved for a condition that's 

consequential in your claim before our program, 

that is subject to coordination if you've also 

received money through a state worker comp or tort 

suit outside of the program. Next slide, Kevin.
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We had another release of the procedure 

manual. This is the most recent one, October 20th, 

2022. An entertaining publication simply because 

we had the greatest and most exciting deliberation 

over formatting rules of our decision making.

It required a lot of deliberative 

engagement with our field to try to get everybody 

to agree to a certain set of uniform formatting 

rules. You would have thought that we would have 

figured that out a long time ago, but as Rachel 

mentioned, we used to have jurisdictional 

boundaries.

So all of our district offices had a 

little bit different way of doing things, so we 

decided we were going to actually try to get 

everybody to agree. Doing that was quite an 

entertaining process. So a lot of deliberation 

there, and that's our you uniform formatting 

standard down at the bottom.

I should have started with that because 

I think I lost a few years of my life arguing with 

people about formatting rules. That had to do with 
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fonts, text size, how things needed to be looked, 

letterhead, what to underline, what not to 

underline, different kinds of phrasing and that 

sort of thing. You wouldn't believe how 

entertaining that was.

So when we issue bulletins or updates, 

we incorporate those eventually into the procedure 

manual so that COVID-19 is a compensable 

consequential illness presumption. That was 

added into the procedure manual officially in this 

version of the procedure manual. We continue to 

elaborate on how claims examiners are going to 

handle individuals that are serving as attorney in 

fact or operating with a power of attorney. That's 

a little bit different than our authorized 

representative the process.

So an authorized representative can 

serve to, you know, to provide support for 

individuals working through our claim process. 

But you can also have individuals that are serving 

with a power of attorney. That allows them to sign 

documents on behalf of a claimant, but that may not 
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actually mean that they're serving as the 

authorized representative.

So we've had to make some definitional 

clarifications to our staff about how do you 

interact with authorized representatives versus 

power of attorneys. So we added a very lengthy 

procedure about how to go about identifying the 

power of attorneys and documenting their 

functionality because different power of attorneys 

have different kinds of authorities that are 

granted to them. They may have a very broad set 

of authority to sign on behalf of the claimant, or 

they may have limited sets an authority such as the 

ability to sign for medical decisions and that sort 

of thing. So we clarified that.

We had some clarifications of our 

silicosis standard. This is not the addition of 

the presumption. This was a clarification about 

how we needed to handle the relationship between 

Part B acceptances and Part E. There was confusion 

by some of our staff, so we had to clarify the 

procedure for that. I've already talked about the 
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formatting thing.

And recovery of a debt from a deceased 

individual's estate. If you guys know anything 

about trying to recover debts from estates, it's 

a very painful process. So we have decided to say 

it's a very painful process in our procedure, and 

that if you need help trying to figure out if it 

is even possible, you're going to have to work with 

the policy branch and our solicitor to determine 

whether or not it's even a viable option for us to 

try to recover overpayments that are -- or debts 

to the government that are now part of a lien as 

part of an estate. So I'll say that that's just 

and then pleasant procedure, and that there it is, 

so.

But we needed to clarify that 

functionality, so we didn't have people trying too 

hard to get money from an estate that doesn't exist 

because that's what we generally find is that we 

have estates that have been resolved or never 

formed in the first place, and those debts are

generally never going to be recoverable. So next 
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slide, Kevin.

So our bulletins, again, this is just 

a different kind of policy notification to our 

staff. I just listed the ones that we've recently 

issued in the past year or so. We've extended a 

provision to allow for telemedicine for certain 

situations involving home and residential 

healthcare.

As Rachel mentioned earlier, home and 

residential healthcare is our biggest -- by far our 

largest medical benefits expenditure, and so we 

have a lot of people that are requesting it and are 

constantly having to undergo renewals of that 

process. That requires physician evaluation of 

the patient to determine medical need for whatever 

level of home and residential healthcare. So this 

facilitates those types of examinations.

We already talked about our new 

causation presumption for chronic silicosis, so I 

won't cover too much of that. That was actually 

issued as a bulletin. That will be incorporated 

into the procedure manual probably in the next 
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addition that'll be coming out in the early spring.

We did update based on our very 

laborious discussions about how we were going to 

change our evaluation of industrial hygiene 

reporting for exposure levels. I think this would 

be of particular interest to the board. This 

bulletin eliminated that reference to exposures 

within regulatory limits. There was a lot of 

deliberation about what would change with regard 

to how we would characterize that.

My best and simple way to explain it 

would be that, you know, categorizing exposure 

after the mid-1990s has been something that we have 

deliberated with regard to the board and the 

Department. And so what we have done is decided 

that when you're dealing with individuals that are 

in a situation where the industrial hygienists 

don't feel that there was a significant exposure, 

they're simply going to say that. That they don't 

see anything that would suggest that there was a 

significant exposure.

They'll acknowledge that an exposure 
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could have occurred. In other words, that we're 

not saying that someone who was working after the 

mid-1990s couldn't have had contact with a 

particular toxic substance. It's just that that 

exposure from the viewpoint of an industrial 

hygienist is not significant in the way that we 

define significant exposure. So I would encourage 

the board to definitely take a look at that.

We really had a challenge doing that, 

and I could go into a lot of the details about that. 

But it is a -- it was to eliminate that 

categorization of exposures within regulatory 

limits, which the board agreed was very vague and 

hard to define. So we have come up with 

alternative language about how the industrial 

hygienists are doing that, and we continue to try 

to refine that process now.

So we're working on improving the 

language, or at least making it more in alignment 

with the procedure that we have described in this 

bulletin. Yes, Steven.

CHAIR MARKOWITZ: Yes. Steve 
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Markowitz. Just a quick question. So this IH 

language in this bulletin, is that in 7.0 of the 

procedure manual?

MR. VANCE: No. So this is an interim 

update. This now updates guidance about how the 

industrial hygienists will do their work. So this 

is actually superseding to a certain extent what's 

in 7.0. So this guidance is now what is in force 

for industrial hygienists as they begin evaluating 

cases primarily for those individuals that are 

working after -- I would say the later years, 1990s 

up through the present.

It's a continual issue that I think the 

board has discussed with the Department, and we 

agreed to eliminate that within regulatory limits 

language that had been utilized. The question 

became what is the appropriate replacement 

language to utilize given the way at least our 

industrial hygiene team has looked at how you would 

evaluate exposures in the later years of the DOE 

complex, so.

And something I'm sure everyone's very 
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excited about, we did issue some billing 

authorization codes for home and residential 

healthcare. So that just is an update to some 

billing codes which I'm sure no one wants to take 

a look at with regard to that bulletin. But it's 

just one that we've issued. Kevin.

Circulars are basically informational 

blasts that go out just saying hey, here's 

something that you need to be aware of. There is 

a new debarment reporting functionality that we 

have. This is basically for individuals or 

providers that have been convicted of fraud or, you 

know, whatever, defrauding the United States 

government.

They're not allowed to receive payment 

under the law for any kind of worker compensation 

benefit. So we have instituted a process by which 

those providers or individuals that have been 

debarred or suspended from receiving compensation 

are, you know, put up on our website and just said 

these providers no longer may receive payment for 

services provided to the program.
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We have an internal process to make sure 

that if someone is debarred because of that action, 

that we will identify any individuals that are 

seeking care from that provider, and that they're 

alerted that they're going to have to find someone 

else because we will not be able to reimburse that 

provider

We added a new special exposure cohort 

class, the Savannah River site. Each time we have

a newly designated site, we will issue a 

corresponding policy circular that notifies our 

claims staff and the public of our process to make 

sure that they're aware that the claims are now 

going to fall under the auspices of a new class.

We will go back and revisit all the 

previously denied cases. But I think Savannah 

River, we've pretty much gotten through all of 

those cases. So each new SEC class gets its own 

circular.

Another exciting medical billing 

circular with regard to how we interact with 

carrier reimbursements. For anybody that's 
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interested, carrier reimbursements are basically 

when the government has to reimburse an insurance 

provider. So that could be someone that was paying 

for care and treatment under a private insurance 

plan.

When we assume control of the case and 

the medical responsibility for medical bill 

payment, we're liable to reimburse that insurance 

provider or prior government organizations that 

paid out benefits for the same thing that we're now 

covering as the principal payer.

And then telemedicine is permitted for 

routine care. That's a circular that was issued 

just to alert folks that given the reality that we 

see with regard to how well it's worked with 

COVID-19 and other types of engagements via 

telemedicine, the program made a practical 

decision that we would recognize that, where 

permitted by state law, we will allow telemedicine.

It really is up to the physician to 

decide whether that's an option he or she wants to 

pursue, and it has to be done within the scope of 
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whatever state or licensing requirements are 

required for that particular physician. Kevin, 

next slide.

Two Federal Register notices. For 

folks that don't know Federal Register, that's 

basically where the government puts a lot of 

notifications about different things that are 

relevant to the program or to the federal 

government. This is a just a registry of federal 

regulations and other things that the government 

wants everybody to be aware of.

And so we had a publication of all of 

the Department of Energy covered facilities, and 

it's just basically a listing of every known entity 

or facility that's associated with the production 

of atomic weapons.

This list gets periodically updated 

based on research that's being done by the program 

or the Department of Energy. It generally aligns 

with the information that's available on the 

Department of Energy's covered facility list, so 

we publish this periodically. And then we also 
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issued a notice, just recently in fact, about codes 

of conduct. I don't know whether codes of conduct 

is the right word. Basically expectations of 

interactions with the program.

As an organization, as a federal 

organization, we deal with a lot of stakeholders, 

a lot of lay representatives, and the history of

our program has been that we've generally been very 

receptive to all kinds of feedback. But some of 

that feedback has gotten or has been obnoxious I 

would basically say.

And so it was the prerogative of the 

Department to basically stipulate that there are 

some rules of the road with regard to playing nice 

with the Department. Don't forget, we are 

employees of the federal government. We are 

expected to perform our job well, and expected to 

be on the receiving ends of complaints. But there 

needs to be some degree of professional engagement.

And so it's just basically a 

stipulation to play nice. It really doesn't mean 

that people are going to say, oh, there's something 
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in the Federal Register saying I should play nice, 

so I will. But I think it's an obvious optics of 

saying, hey, we do want people to be respectful of 

this process and the people that work for the 

program. And this was a prerogative of the 

director of OWCP just from his engagements with 

some of these very aggressive kinds of lay 

representatives.

So it's letting our staff know that, you 

know, hey, we do you expect this kind of behavior 

to not be accepted, and that we are going to make 

sure that we have something in place that says this 

is what's appropriate and what's not, so.

CHAIR MARKOWITZ: Quick question. 

Sorry to interrupt. Steve Markowitz. You said 

labor representatives. Do you mean authorized 

representatives or --

MR. VANCE: Lay representatives can be 

anybody --

CHAIR MARKOWITZ: Lay.

MR. VANCE: Yeah, that's right.

CHAIR MARKOWITZ: L-A-Y.
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MR. VANCE: Lay representatives.

CHAIR MARKOWITZ: Okay. Thank you. 

I thought you said labor. Okay. Thanks.

MR. VANCE: No. Yeah, we did -- you 

know, authorized representatives do not need to be 

attorneys. They can be anyone that possesses any 

kind of experience or desire to be serving as a 

representative. And we have lots of different 

folks that work with the program. Many are very 

professional in their conduct, and some are a 

little bit more aggressive than others. So I think 

that would that was an important notification about 

what we expect regarding engagements, so. Kevin, 

next slide.

We've already touched on some of these 

things, but I wanted to put it out there so that 

just so you're aware of some of the capabilities 

that we have with regard to our technology 

infrastructure. We've really moved to try to 

promote electronic submission of documentation.

You know, mailing things around the 

country proves to be kind of a challenge these days. 
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So we really are trying to move to a digital 

environment. We now allow all of these things to 

occur electronically. You know, filing new claims 

with digital signatures, uploading documents 

directly into a case file. Status checking.

And also more recently, are allowance 

to allow digital signature on our payment process 

which has been fantastic because the faster we can 

get the payment processing documentation in place, 

the faster we can get the payment out the door.

So this is really helpful, and I think 

will be very helpful with regard to these expedited 

terminal situations that we do run into where we've 

got to turn around a lot of documentation very 

quickly to get a payment made. So this is a -- this 

is a relatively new update for the program.

Now again, as Rachel mentioned, you 

know, we do have a lot of individuals that are not 

going to be comfortable with this. We recognize 

that. But we have a lot of attorneys and 

representatives that know this process and can 

provide the support necessary to utilize these 
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resources very well.

So we're hoping that this will be 

something that will be of benefit to our claimant 

population. And, in fact, I've just been getting 

updates on our payments, and it does look like we've 

gotten a lot of people that have recognized the 

value of making that process work, and are 

submitting those on a weekly basis. So I'm very 

happy to see that that's being utilized.

Kevin, I'm not sure if I have another 

slide. I think that's it for my slides. So any 

questions about the work of the Policy Branch? Any 

questions about any of the slides? I could 

probably give you all kinds of horrible stories 

about formatting if you would like.

I kid you not. I was lying awake some 

nights worrying about grammar, and proofreading 

issues, and all that sort of stuff. So if anybody 

suggests any formatting changes for the procedure 

manual, you're going to make me very unhappy, so.

CHAIR MARKOWITZ: You would have made 

a good academic, John.
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MR. VANCE: Well --

CHAIR MARKOWITZ: Questions, 

comments?

MR. VANCE: I will -- just final one 

comment on this. You know, the work of the board, 

I would say, is very important because a lot of the 

things that we do is not only in response to 

recommendations of the board. It's also just me, 

or Rachel, or others that are sitting around 

hearing the conversation that are going on.

It leads us to look at different things 

that we've got in our procedures, and recognize 

that, hey, this is causing confusion, or this is 

something that we probably need to focus on. So 

please be aware that, you know, we do listen to all 

of the conversations that go on, and it does have 

an impact.

And the other thing that I'll say is 

that the recommendations of the board do get a lot 

of deliberation. This is not something that we put 

off to the last minute with just some, you know, 

minor thought about how we're going to deal with 
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certain things.

I can tell you that I know Rachel, and 

myself, and other senior leadership at the program, 

deliberate quite a bit on some of these things. So 

it is not something that we take for granted. And 

we appreciate all the input that you give. And I 

know that we've seen a lot of great things between 

the Department of Labor and our program as Rachel 

mentioned in the last presentation.

So I hear it. I hear what people have 

to say. And actually some things are changed 

simply because of public comments by the way. So 

we also listen to the public comments, and we do 

hear what the public have to say, and try to 

accommodate those as best we can.

CHAIR MARKOWITZ: Any comments or 

questions? So BEFORE we go on to the SEM, let's 

revisit something we mentioned earlier today which 

is one of the new tasks for the board in the last 

couple of years has been to - I'm looking at the 

language here, it's task five. Quote, "Claims 

adjudication process generally including review of 
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procedure manual changes prior to incorporation 

into the manual." End of quote.

And we heard from Ms. Pond an invitation 

even when things are finalized and they're in the 

procedure manual at any point that we can raise 

these topics for the attention of the Department.

But it does say that we're supposed 

to -- this is a new -- relatively new task that were 

supposed to review these things prior to 

incorporation. And it sounds from both of you what 

we heard that it's a prolonged, deliberative 

process get in things -- with many steps getting 

things changed.

So the last two or three times that 

we've been sent something in the works, I'm pretty 

sure it came with a message that we intend on 

adopting this within a couple of weeks, short 

period of time, your comments are welcome. So we 

had no mechanism for doing that, and that's what 

I raised earlier with I think Mr. Plick because in 

that time frame, we can't agree on comments to 

submit.
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So I'm looking for a solution here to 

this whether -- and we accept that the procedure 

manual's fair game for us at any moment anytime. 

But after changes are made, but -- and also, let 

me just be explicit. We don't make policy. We 

advise the department, right? Making policy is 

their job. We recognize that. Our job is to 

provide comment and suggestions, and the like, and 

advice that stems from that.

So the question that I have, I guess the 

most pointed question is can we be included earlier 

in the process in a way that would be helpful? And 

what that means for us is if we look at something 

in draft form, we would have to I guess schedule 

a meeting to discuss it. That's a minimum of 15 

days, although usually longer than that, right, 

Carrie? Realistically what's the -- six weeks.

MS. RHOADS: We sometimes can shorten 

the Department review process.

CHAIR MARKOWITZ: Yeah.

MS. RHOADS: But it has to be published 

15 days ahead of time.
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CHAIR MARKOWITZ: Yeah. Okay. So 

notice in the Federal Register, telephonic board 

meeting, come to agreement on any recommendations 

regarding comments I guess that were adopted at 

that board meeting. And so it can take a couple 

of months. Yeah. Dr. Cloeren.

MEMBER CLOEREN: Is there -- there may 

be a reason that why it couldn't be, because of 

confidentiality. Is there any way that it could 

be at a secure document-sharing site where people 

could, you know, asynchronously go in and mark it 

up and respond to each other?

CHAIR MARKOWITZ: Yeah, this is Steve 

Markowitz. Yeah, it's an interesting point. 

Actually, if this is in draft form, the public 

wouldn't have access to it, right?

MR. VANCE: Correct.

CHAIR MARKOWITZ: So we're talking 

about a board meeting that would not be -- if the 

public's not involved, Carrie, does the Federal 

Register notice have to be published about an 

upcoming board meeting? It's a closed meeting. 
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We've never had one, but --

MS. RHOADS: Closed meetings would 

require more paperwork than open meetings.

CHAIR MARKOWITZ: Okay. Thank you. 

But --

MS. RHOADS: And time.

CHAIR MARKOWITZ: I clearly I asked the 

wrong person. Yeah. Dr. Bowman.

MEMBER BOWMAN: That's right. Aaron 

Bowman. Give that a lot of these documents are 

confidential so we can't discuss them open, and the 

complication of its even harder to schedule a 

closed meeting, could we up front preschedule close 

meetings so that it's not as hard so that when these 

things come up, we have them on the books already, 

and if it's not needed, we cancel it?

CHAIR MARKOWITZ: And this is Steve 

Markowitz, and to go along with what you're saying. 

Since the process is a slow process of making 

changes, perhaps the Department could predict 

roughly when it is that we might be able to take 

a look, publish it, publish notice of that closed 
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meeting. And then we could weigh in at the 

appropriate time? Would that work? 

Choreography.

MR. VANCE: I'm not making any 

commitments on this one. I think that the board 

would need to sort of make a proposal, and I think 

then we'd have to deliberate on how to make it a 

reality or not.

MS. POND: It has to be a 

recommendation --

MR. VANCE: Yeah.

MS. POND: -- figure out how it'd work. 

Sorry. We would need that to be probably a 

recommendation from you guys just because we're 

going to have to talk to people in the Department. 

We're going to have to figure out, you know, exactly 

what kind of -- how that would work in terms of, 

you know, we have a lot of people editing. We have 

claims examiners input. We get input from a lot 

of people.

So to say, well, you guys are going to 

go and -- the deliberation process would increase 
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exponentially if you're going to do it that way, 

if it's going to take months for us to even get 

it -- because see, we have it in draft form, and 

then we want to move it forward once we finally got 

it in a draft form, we want to be able to publish 

it within the, you know, a couple of weeks.

And so to say, well once we've got it 

in a draft form that's good enough for you guys to 

look at, and then we have to wait another couple 

of months, it's just going to make it so the 

procedure manual will not get updated as often as 

we would like to get it updated.

So I'm not saying we can't do it. but 

I think we need to figure out exactly logistically 

how it could work between the ten days that we give 

you, and the months that you're talking about it 

would take to get that sort of input before the 

draft could be finalized.

It's the before the draft can be 

finalized part that's challenging because of the 

fact that you all have to vote on it, you all have 

to deliberate on it. It's just adding another 
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procedural layer that's going to delay getting 

these procedures to our claims examiners who need 

to adjudicate the claims, and they need to have 

those changes sooner, rather than later.

So if we need to do a change, and then 

we're updating the procedure manual and that change 

is kind of -- we can put a bulletin out there, or 

a circular, but if we've got a number of them, it's 

better for us to be able to put it out there and 

get it out there, and have them start making the 

changes in the work that they do instead of waiting 

for all of these procedural layers that it can take 

a lot longer than they already do.

So, again, I'm not saying we can't do 

it. I'm just saying we need to figure out where 

that middle ground is, if we can find a middle 

ground, and what that would look like in terms of 

between the ten days and the months, that there are 

some middle ground in there.

CHAIR MARKOWITZ: Okay. We hear you. 

Dr. Bowman.

MEMBER BOWMAN: Just a -- sorry, Aaron 
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Bowman. This is though on the list of our 

expectations prior to -- is there a reason why it's 

on given -- it sounds like you're saying it may not 

be as helpful. It may be more of a hindrance than 

a help. So why is it on our list if it's a 

hindrance?

MS. POND: Is that in the statute?

CHAIR MARKOWITZ: Yes.

MS. POND: Then Congress did that.

CHAIR MARKOWITZ: Yes.

MEMBER BOWMAN: I see.

CHAIR MARKOWITZ: That was the 

legislative branch. Dr. Cloeren.

MEMBER CLOEREN: If I understood 

correctly, before you change something in the 

procedure manual, usually there's a bulletin.

MS. POND: Sometimes.

MEMBER CLOEREN: So could we weigh in 

on kind of the spirit of the bulletin as a way to 

have input into what's going to later be translated 

into policy? Would that be helpful or not?

MS. POND: So --
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CHAIR MARKOWITZ: Just a friendly 

amendment to that question. You mean the spirit 

of the bulletin, or do you mean after the -- no, 

no, what I mean is after the bulletin comes out and 

before it makes it into the procedure manual, 

during that period of time --

MEMBER CLOEREN: Correct.

CHAIR MARKOWITZ: -- could we -- okay. 

Yeah.

MEMBER CLOEREN: And when I say spirit, 

I mean like the words are probably going to change 

in between the bulletin and the procedure manual.

CHAIR MARKOWITZ: Right.

MEMBER CLOEREN: But like the gist of 

it.

CHAIR MARKOWITZ: Right. Yeah.

MR. VANCE: Yeah. I mean the answer to 

that question is yes because the bulletin basically 

sets in motion something that we're updating before 

the next formal publication. So in other words 

like right now, we have our - the industrial 

hygiene language that's out there is actually part 
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of a bulletin. So now would be a good opportunity 

for the board to look at that.

And then, you know our anticipation 

would be the next publication, and I'm just giving 

you a very rough estimate, is generally in the 

springtime, we do one in the spring and then 

generally one in the fall. So between now and the 

next publication, that's the period that you'd have 

to work with with regard to the bulletin.

Now there are other updates to the 

procedure manual that are going to occur without 

any bulletin. It's just things that were changing 

with regard to wording and that sort of thing.

From my standpoint, it's much easier 

for me to get recommendations about what you're 

going to propose as wording changes, and then 

submit those. And then we deliberate on what we 

can do to facilitate those changes. And that's 

occurred already.

So you've given us language for 

defining work-related asthma. You've given us 

language on clarifying chronic respiratory 
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disease. There have been things that the board 

have given us. It's much easier for you to give 

me an affirmative kind of content change that we 

can deliberate.

What's much more challenging is where 

the board says we don't like something, but we don't 

know what to really tell you how to do it in the 

alternative. So that's where it gets to be a 

challenge.

MS. POND: And I think the other thing 

we can consider or talk about is, I mean the way 

we've been doing it is we give you the draft of the 

entire, you know, six-month update, and then say 

give us comments and you have ten days. And I 

realize that that's not realistic.

But at the same time, if we have -- and 

it's just -- I'm just thinking here. I'm not 

giving you any promises. But, you know, we do have 

things that come up. This is something that we're 

going to probably change in the PM. Maybe 

throughout the period of time that we're 

deliberating what to add, maybe then we could like 
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send that piece to you guys to review, or something 

like that.

But those are things that we could maybe 

think about in terms of instead of giving you a 

whole bulk document and saying go through all of 

this right now. Say, in pieces, these are the 

pieces we're thinking of changing. And 

maybe -- we'd have to figure out how to formalize 

that or whatever. But it's -- be more realistic 

I think to do it in pieces then to try to do it all 

at one time.

MEMBER BOWMAN: So just one point of 

clarification. Would those pieces be 

confidential pieces at that point? Or --

MS. POND: They would be because it's 

deliberative, so.

MEMBER BOWMAN: So we still have to 

solve the problem with the --

MS. POND: We still would have to solve 

that problem.

MEMBER BOWMAN: Okay.

CHAIR MARKOWITZ: But if it's earlier 
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in the process, then the time delay becomes less 

of a problem. Well, so I think the board needs to 

talk about this, and make a recommendation knowing 

that we're not fully aware of what's feasible in 

the process to achieve. That's, you know, up to 

the Department.

So I think we should continue with the 

SEM presentation, not to get off schedule. But we 

will revisit this before tomorrow at 11:30 a.m. and 

decide whether we're going to make a recommendation 

on this. Thank you very much.

MR. VANCE: All right. I get to change 

locations, so I'm going to go sit over where Kevin 

is because we're going to run through a very quick 

demo, and I'm going to try to keep us on schedule. 

That's why I decided to do this completely ad hoc.

So what we're going to be talking about 

is the site exposure matrices. It's one of our 

most important tools for evaluating health effects 

and exposure data for these claims that are being 

submitted. So I'm going to walk you through as 

soon as Kevin gets the internet up on there.
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CHAIR MARKOWITZ: Yeah. So while Mr. 

Vance is walking, or -- this is Steve Markowitz, 

I want to recognize and thank Greg Lewis, Mr. Greg 

Lewis from the Department of Energy who arranged 

for that fabulous tour that we had yesterday which 

I thanked you this morning in your absence, Greg. 

But I thought I should resay it here.

MR. LEWIS: Well, thank you.

CHAIR MARKOWITZ: Although, we found 

out that Mr. Vance on his tour last year got to go 

into the UA1 tunnels and see what was happening. 

So we may --

MR. LEWIS: You make me feel bad.

MR. VANCE: All right. Can everybody 

hear me? Let's skip to the website, so give me a 

second here. Of course, hold on a second.

So just a quick review of our website. 

So anything you want to know about this program is 

available publicly on our website. Huge amount of 

resources. With regard specifically to the site 

exposure matrices, we have resources and various 

other things that we have available for anybody 
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that wants to learn about the program.

Program resources and guidance right 

here, all kinds of different things. But our 

information on the site exposure matrices is right 

here. You can do a Google search for our program 

website, or you can do a search for the site 

exposure matrices.

A nice thing that we have available is 

an education program, so it'll run you through. 

You're basically going to get that today through 

a personalized lesson by me. But the site exposure 

matrices, we just have a -- it's a huge database 

basically.

And it's a relational database that 

basically puts together the information that a 

contractor with the Department of Labor has 

constructed based on data collection efforts at all 

of the covered DOE facilities that are covered 

under Part E.

The function of the site exposure 

matrices is focused on those Part E cases where 

we're trying to identify chemical or biological 
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agents that are known to be associated with work 

that was done in conjunction with atomic weapons.

So it's a tremendous resource that our 

staff utilize daily in their work. It is being 

managed, not only the website, but the data 

collection and dissemination is done by Paragon 

which is our main -- or is our contractor that 

manages the site exposure matrices.

So they are administering it. They are 

also the ones that run the website. They collect 

information that are submitted by public 

submissions for exposure data, and we'll talk a 

little bit about that. But the site itself is 

pretty straightforward, and I'm going to -- I'll 

run through it here in a second.

So, again, you know, we do have a lot 

of little disclaimers. We can't be the federal 

government without lots of disclaimers and other 

types of really descriptive kind of information. 

But all the background information that you need 

to know about the site exposure matrices is here 

in small text.
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We do encourage the public to submit 

information about exposures or toxic substances 

that were utilized at sites. We do have a lot of 

people that do submit information that has been 

very useful in adding value and information into 

these site exposure matrices. A lot of site input 

data that I'm surprised is in the possession of the 

public, but somehow it is, and it is submitted. 

Generally our contractor will evaluate and respond 

back to the submitters about the usefulness of the 

data.

The site exposure matrices is built off 

of hard paper documentation for the most part. 

This is material that was developed or produced 

during the industry of producing atomic weapons 

going back to 1942, and in some cases, earlier. The 

information that populates into the site exposure 

matrices is that information that relates to 

primarily the identification of specific toxic 

substances that are connected to either labor or 

work processes at a particular facility.

So we're always looking for 
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documentation that speaks to that. And, in fact, 

our claims staff is asked to constantly be 

submitting that information that they run across 

in case files that gives us inventories of toxic 

substances.

I did that recently myself for a case 

that I was reviewing for Los Alamos which just pages 

and pages of material that related to toxic 

substances at the site. And that was a later year 

kind of case, but, you know, so we are on the lookout 

for more data.

Site exposure matrices is an evolving 

resource, so it is not a static database. We are 

constantly inputting new data. Now that means 

that we are either improving the quality, or adding 

material to it, or we are refining it and changing 

it depending on how information is presented to us. 

So let's go ahead and enter into the site. Any 

questions at this point? Yes.

MEMBER CLOEREN: Marianne Cloeren. I 

just want a clarification. Somehow -- I've been 

using this for years, and I only just now heard you 
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say biological. What biologic --

MR. VANCE: There are 

biological -- there are biological things that are 

in here. Histoplasmosis.

MEMBER CLOEREN: I was wondering, like 

cryptococcal.

MR. VANCE: And bird --

MEMBER CLOEREN: And cryptorchidism --

(Simultaneous speaking.)

MR. VANCE: It is like bird dropping 

disease.

MEMBER CLOEREN: Yeah.

MR. VANCE: I figure -- there's all 

kinds of --

MEMBER CLOEREN: Coccidioido --

MR. VANCE: -- illnesses that can be 

borne out of biological exposures.

MEMBER CLOEREN: I didn't realize that 

was in there. Thank you.

MR. VANCE: Yeah. So 

toxicologically, you have -- or from a toxicology 

standpoint, remember what we said about a toxic 
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substance, anything that is -- has a radiological, 

chemical, or biological process for creating 

disease.

So we have accepted cases based on bird 

droppings. I know of one that we did. A power 

washer person who was washing vulture remnants off 

of radio towers, and he was out there without any 

kind of protective equipment using these big power 

washers and got I think it's histoplasmosis or some 

sort of infection from that.

So we've also done, you know, fungus, 

different kinds of fungus infections and that sort 

of thing. So, yeah, biological exposures, and 

they are listed in there, so.

So, again, this is a -- this is a very 

facility-specific kind of database. So you can 

see that we have information, I don't know you can 

see my cursor that well, but it will allow you to 

do searches based on different kinds of sites.

The principal one that our claims 

examiner utilize are this DOE sites. This is the 

principal resource for exposure data that our 
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claims examiners use. But we also have data on the 

uranium mines, mills, and ore-buying stations. 

But for the most part, most of our claims tend to 

involve the DOE sites.

And I should mention too, that our 

claims examiners utilize a slightly different 

version of the site exposure matrices. This is a 

publicly available version. Our employees 

utilize a more real-time updated version.

So this version that you're looking at 

right now is the public-facing version. This 

version captures or communicates information that 

has been captured and evaluated for clearance for 

public release. And that occurs on a six-month 

basis I think, right, Greg?

MR. LEWIS: Six months, yes.

MR. VANCE: So every six months our 

internal site exposure matrices is freeze framed, 

and it is sent for a review by the Department of 

Energy for an okay for us to release an updated 

version.

So what you're looking at is the data 
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that was available since the last -- or that was 

updated in the last freeze. And so then this will 

occur over and over again. So the claims examiner 

is using more up to date information just as real 

time updates are made by the contractor. Yes?

MEMBER BOWMAN: Is it meant to reflect 

chemicals that were ever present at the site, 

present over certain intervals?

MR. VANCE: Yeah. So the information, 

I want to -- when we start getting into it, there 

is not a lot of temporal data that is available in 

the site exposure matrices. There is some 

temporal data with regard to certain timeframes 

when, say, remediation was occurring.

But you're not going to get any specific 

temporal data about like when this particular toxin 

was at the site. All this is going to tell you is 

that at some point at Nevada Test Site, this 

chemical was found in some sort of inventory and 

documentation associated with a work process, a 

labor category, an incident, or something like 

that. So there's no temporal data that's 
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generally going to be reported in the site exposure 

matrices.

MEMBER BOWMAN: So then just to 

summarize, so it would be -- it would be a 

cumulative list. So --

MR. VANCE: Yeah.

MEMBER BOWMAN: -- the chemical would 

not be removed because it's no longer there. Is 

that correct?

MR. VANCE: Correct. Unless there is 

a reason why it would be removed because of updated 

information. So in other words, I know that in 

situations there have been inventory reports about 

like, yes, we shipped all this stuff too Los Alamos. 

But then we later find that they cancelled that 

order, so, therefore, that didn't actually go 

there. So, yeah, it's going to always be dependent 

on the documentation that we have.

But, yes, you can have certain things 

that are added and then taken out, or you can change 

things depending on how information is reported. 

So let's say there's a connection between a toxin 
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and a labor category, and a later document says, 

no, they changed that. This is the job that 

handled that material. So then they would change 

the profile.

And so let me get in here because I want 

to try to keep everybody on schedule. So I'm just 

going to do a quick demo, and we're going to, of 

course, go to the Nevada Test Site.

So each one of these facilities has a 

range of information that's available, the most 

important features. And I'm just going to stick 

with the DOE facilities, but you can understand how 

this works for any of the sites whether you're 

talking about a mill, or a mine, or what have you.

The first thing you would need to 

understand is that it does have different kinds of 

search criteria. All of these things are 

basically filtering criteria that can be utilized 

by a claims examiner. And the number one thing 

that you need to understand is that it's a 

responsibility of the claims examiner to utilize 

this based on information being presented to them 
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in a case file.

So in other words, if I'm an employee 

or a survivor who has filed a claim, what the claims 

examiner's role is to figure out, well, what are 

the priority toxins I need to worry about with 

regard to the claim being made by this individual?

So in other words, let's say I am an 

employee who worked at the Nevada Test Site, and 

I did a particular job and I'm describing those 

particular work activities that I did, the claims 

examiner is going to take that data and they're 

going to start doing connect the dots.

Okay? They're going to go and say, 

okay, what condition are we dealing with here. Is 

it COPD? Is it cancer? What is the condition that 

we're going to deal with? That would be a filter. 

What kind of work process was this person involved 

with? Were they a laborer? Were they a 

Carpenter? Were they a, you know, driller or 

somebody that did work underground? What was 

their labor category or what was their work 

process?
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Each one of those variables is going to 

be put into the site exposure matrices, and what 

it will do is return those values, or those targeted 

toxins that the claims examiner is going to want 

to look at with regard to whether or not they're 

going to have an industrial hygienist profile those 

toxins.

So what you do need to understand is 

that we do have health effect data. That's 

epidemiological data that is maintained in the 

system that basically communicates information 

that the program recognizes as an illness that has 

some sort of known scientific connection to a toxic 

substance.

So I generally use chronic obstructive 

pulmonary disease simply because that's the 

biggest one that we generally see. It's a very 

common kind of problem. So here are -- for the 

Nevada Test Site, here are all the toxic substances 

that are in the site exposure matrices for COPD. 

So these are ones that the program recognizes has 

some sort of affiliation with the development of 
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COPD.

So you can sort of see that the list is 

already sort of created for the claims examiner. 

Here are some direct work processes. That means 

that if you did arc weld aluminum or any of these 

kinds of activities, we just know that that work 

activity had a connection to COPD. Okay. So 

that's a direct disease work -- linked work 

process. But here are all your toxins that have 

a viable connection to obstructive pulmonary 

disease.

So then, you know, we can do all kinds 

of different search features. So this is -- I can 

only give you -- I've only got like five more 

minutes. But I can only give you a very cursory 

look. But there's all kinds of functionalities 

that you can do to look for different kinds of 

things.

So if a claims examiner's looking for 

something on a claim for emphysema for example. 

Well, you can go in there and say what's the alias 

for chronic obstructive pulmonary disease, and you 
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can see them right here. These are all the things 

claims examiners would be looking for in a claim 

to know, hey, if I've got a claim for emphysema, 

I'm going to use the COPD health effect list to 

determine what toxins I need to focus on.

CHAIR MARKOWITZ: Question.

MR. VANCE: Yes.

CHAIR MARKOWITZ: This is Steve 

Markowitz. You linked the disease to the work 

process before right at the end of the page, but 

you still have to identify a toxic substance, 

right?

MR. VANCE: Right. Well, and that's 

what I'm just trying to show here is -- if I can 

get this to work -- I'm just showing you that the 

health effects that are listed in these site 

exposure matrices are those conditions which we 

epidemiologically accept as a program is having a 

connection to a particular type of toxic substance.

So let's go back out, I want to do a 

quick search using a labor category. So keep in 

mind that a claims examiner is going to be looking 
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at -- let's say I've got a claim for COPD, and I've 

got a person that said they were a -- I don't know, 

let's say they were labor, that's always a good one.

I did some sort of laboring activity, 

so here's my filtered -- my filtering list. So I'm 

a claims examiner, I've got an employee who on their 

EE-3 or on their occupational history 

questionnaire is identifying they work as a 

laborer. That's how they are characterizing their 

job. So a claims examiner we'll go in and put 

laborer.

Now I also know that this person has 

diagnosed chronic obstructive pulmonary disease, 

so therefore, I'm going to add that as a filter. 

So I select that. Okay? What's going to happen 

is the site exposure matrices is going to start 

whittling down your list of those toxins that a 

laborer at Nevada Test Site would have had raising 

to be in contact with, and there's your list right 

there. Ammonia, asbestos, cement, silicon 

dioxide, and diesel exhaust welding fumes, and wood 

dust.
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Now here are additional filters that I 

could apply. So in other words, let's say I was 

a laborer at Nevada Test Site and I say that my job 

involved a lot of concrete mixing and cement work. 

Well, I could always select additional filters 

based on work process. So here's concrete mixing 

and pouring. You could also have someone that was 

doing demolition activities, that's a common one 

for laborers.

You know, so I could refine my search. 

And each one of these search refinements will 

identify toxins that are likely identified this 

being something you worked with. And that's where 

the claims examiner would utilize this to identify 

toxins with the highest probability of this 

employee having contact with.

But, again, as Dr. Bowman mentioned, 

we're not going to have any temporal data. All we 

know is that a laborer working at Nevada Test Site 

for the duration of time at whatever point in time 

could have been doing work with any of these toxins, 

or at least had the potential for that.
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So then when we create our list based 

on this filtered search, then what happens is our 

industrial hygienists are provided this data and 

they're going to be asked to provide a more

descriptive characterization of the exposure. So 

how often would an employee who was a laborer at 

Nevada Test Site Ben exposed to wood dust.

So then an industrial hygienist, 

without generally any monitoring data, is going to 

look at that and say, well, based on the fact that 

they were doing demolition work, and they were 

doing cement work, and there may have been some 

cutting of wood, then their level of exposure would 

be significant and then they would characterize it 

as low, moderate, or high, or what have you.

So that's the role of the industrial 

hygienist. They're taking what the claims 

examiner is able to do in a filtered search using 

the site exposure matrices, and then they're 

creating a more detailed and descriptive 

characterization of exposure that then can be 

utilized as an accurate formulation of the exposure 
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that a doctor can consider in determining that 

causal relationship.

Was the exposure that was encountered 

by this employee to wood dust, welding fumes, 

silicon dioxide, asbestos a significant factor in 

contributing to the disease that this is employee 

has claimed, COPD.

Doctor can look at it and say this 

person worked there for 20 years, they were 

moderately exposed to this material. We know that 

asbestos is something that is significantly 

damaging to the lung. In my opinion as the 

physician reviewing this data, there's a 

significant relationship that contributed to the 

development of COPD. The case is accepted.

Now you could have another doctor 

looking at this with a different set of 

circumstances. A doctor looking at it could say 

this laborer who only worked there intermittently 

for one year, you know, and has a long work history 

of dealing with this material in other work 

occupational circumstances, I'm looking at this 
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while there could have been some contributing 

factor there, I don't feel that the work that they 

did at Nevada Test Site, based on the information 

I'm looking at, was significant enough to be a 

contributing factor.

It's up to the doctor to determine the 

interpretation of what the evidence is telling him. 

Our job is to -- or her. Our job is to present the 

doctor with an accurate characterization of the 

exposure to the best extent that we can using the 

site exposure matrices, the information that's 

gleaned from the DAR, the occupational history 

questionnaire, any information the claimant 

submits with regard to affidavits, statements, 

colleague kinds of input. All of that information 

is what's critical for formulating out and framing 

out the exposure history. So I know that this has 

been a very cursory evaluation, but for those folks 

that play in here, you can quickly understand how 

it works.

But the critical thing for everyone to 

understand here is that the claims examiner's role 
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is this. This is what their job is, to identify 

the priority targets for toxic substance 

characterization by the industrial hygienist.

If they're not able to find any 

connections to the person's work at this site, then 

they're going to be dependent on looking at other 

information that might be available in the DAR. If 

that doesn't exist, then you might not have a case 

that can go much further because you don't have any 

contact with a toxin linked to a disease.

So I would highly encourage folks to get 

in here and take a look at it. You're familiar now 

with what's -- if you went out to the site visit, 

you kind of know what was going on out there. You 

kind of can see that, so you can think about like 

what kind of work would have been doing out there. 

Laborers would have been a major one at the Nevada 

Test Site as they were building and constructing 

these sites for the test, and you can just play 

around and add different criteria.

But the key thing is just making sure 

that you understand, it's a cross reference, it's 
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a comparative analysis the claims examiner is 

doing. What does the claimant or the employee tell 

us in the acclaimed documentation, and what can I 

build off of that in the site exposure matrices to 

identify the toxins that they potentially had 

contact with that's associated with their claim 

disease? Okay. Other questions really quickly 

because I do want to stay on the sched.

CHAIR MARKOWITZ: Sure. Thank you. 

Ms. Whitten.

MEMBER WHITTEN: This is Dianne 

Whitten. So there seems to have been a lot of 

changes in the SEM, at least on the Hanford Side 

over the years. So years ago I would look up where 

I worked, 105N for ten years as a rad con tech, and 

we have like thousands of chemicals listed.

And today I do a search for 105N and

there's 12. So I mean what -- there's no history 

there for the CEs to go and look and determine if 

I had exposure or not. Why is that?

MR. VANCE: Well, I don't know the 

specifics of that particular scenario. But like 
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I said before, the information is constantly be 

refined. And this would be what is available to 

the claims -- the best information that we have 

would be at the time that the claims examiner is 

accessing the site exposure matrices in the work 

that they're doing.

So it could very well be that at some 

point they had a very broad list of toxins that they 

knew were at Hanford, but they didn't know where 

they might have been located. So when they got 

improved information, they refined that data to the 

specific site, facility, building, what have you, 

and that could alter the way that the data is 

presented.

It also depends on what filters that 

you're applying because the broader your filters, 

the more information you're going to get. So in 

other words, if I want to see every toxins at 

Hanford, all they have to do is put in show me all 

the toxic substances at Hanford, and you're going 

to get thousands of them.

That's not going to be very helpful for 
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a claim. You've got to start applying those 

filters. And as you apply those filters, it's 

going to be dependent on what data we have that 

helps supply the information for that filter.

So it could very well be that what 

information we had ten years ago wasn't as, you 

know, didn't have as much efficacy in telling us 

what was going on. Or maybe it was based on 

something global, now we have better data, and we 

can refine that information.

So, yeah, it could very well change 

where we have more at one point in the past, now 

it's been refined down. But it's more than likely

that those exposures got broken up into different, 

more specific characterizations. In other words, 

yeah, we had 20 toxins in there based on this 

information, but then with time, we broke it up and 

put it into different kinds of filters or 

relational data points simply because we got better 

information.

CHAIR MARKOWITZ: Mr. Key. 

MEMBER KEY: I'm Jim Key. John, I'm 
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just going through it cursory over here of the three 

gaseous diffusions. Both the portion of the Oak 

Ridge site has trichloroethylene under the labor 

category.

All three plants did the very same as 

that work but yet Paducah labor category does not 

have trichloroethylene. I brought this up before, 

what is needed by Paragon to include that? 

Do I need to get 50 labor retirees and 

labors during the timeframes and right worker 

statements and sending them in to --

MR. VANCE: Jim, what they're 

generally going to be looking for is a document that 

was produced at the site that says this was the type 

of materials at the site being used by these 

individuals. 

MEMBER KEY: You know as well as I do 

that documentation is not available, John.

MR. VANCE: I recognize that reality, 

as does Paragon, but that's why we have the ability 

of people to submit documentation. And I'm not 

going to sit here and say the site exposure matrices 
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is a complete inventory and that it is 100 percent 

accurate. 

We're constantly looking to refine and 

improve the data that's available in the site 

exposure matrices. 

So, my recommendation for the Board or 

for anyone in fact is that if you do find there is 

information that you feel is inaccurate or that you 

have access to data that you think would be useful 

in informing the site exposure matrices, it is 

submitted for consideration.

Jim, whatever information we can get 

our hands on that helps us provide an accurate 

portrayal of what was going on with this material 

at the sites is always going to be very helpful. 

MEMBER KEY: There's no documentation 

again, apparently. I hired him as a laborer, I 

worked, I used trichloroethylene as a lycra. How 

do we get those individuals who have knowledge? 

There wasn't any IH people at the site 

in the early 1970s, none. So, how do we make that 

change that's needed to include that? 
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MR. VANCE: All I'm going to say is that 

if you have information that you want to submit, 

whether that information is going to actually 

facilitate a change in the site exposure matrices, 

I can't tell you that but you certainly can submit 

any information.

And we have received information 

attesting to particular types of material that can 

be informed by other data that we have. 

If you're going to submit anything, and 

like I've told everybody that I interact with with 

regards to site exposure matrices, if you've got 

to the information submitted, give us the best 

information that you can, provide as much 

specificity as you can so that that can hopefully 

inform the people that are evaluating it to 

determine whether or not there's sufficient 

information that would allow them to update the 

site exposure matrices. 

The people on the other end of the site 

exposure matrices are people with experience at 

these sites, they are people that have industrial 
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hygiene background, they will consider that 

information and they'll do their best to make sure 

they have something they can use that the exposure 

matrices is updated. 

But I can't tell you that whatever you 

submit is going to be automatically approved. So, 

what I would encourage everybody to do is if you've 

got to something that you think is of value, submit 

it, it will considered.

And if it warrants a change to the site 

exposure matrices, that will occur.

CHAIR MARKOWITZ: This is Steve 

Markowitz. 

We've learned in the past that 

something doesn't make it into the SEM unless 

there's affirmative evidence that that exposure or 

toxic substance occurred at that site in relation 

to a given job title or whatever.

In other words, there has to be some 

evidence based in data that allows Paragon to put

that in the SEM with some degree of specificity. 

And we've heard this complaint before 
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about things before omitted from the SEM, 

particularly toxic substances for job titles or 

buildings or the like.

So, I understand in principle why 

updated information might lead you to change the 

SEM, I'm trying to picture though what kind of 

updated data actually you can get that would allow 

you to reverse the previously held data that showed 

there was exposure to these substances at this 

particular building or in relation to this 

particular job category.

 I'm just trying to imagine what that 

evidence looks like. I understand in principle 

what you're saying, I just don't get what that 

evidence looks like. 

And I don't know, maybe we can consider 

this, maybe we should at another meeting ask 

someone from Paragon to come with examples so that 

we can better understand this process of omission. 

Dr. Vlahovich?

MEMBER VLAHOVICH: I'm Kevin 

Vlahovich. 
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I was wondering if some things included 

in site exposure matrices, does that take into 

account let's say we know something was being used 

but they're using proper protective equipment. 

Would that exclude it from being 

included? 

MR. VANCE: No, that would be something 

that could potentially be considered by the 

industrial hygienist when they're evaluating the 

extent of exposure. 

Generally speaking, from my 

interactions with the IH team, they're going to 

look at individuals and say how rigorous would they 

have been made to utilize protective equipment. 

Now, the farther back in time, the less likely 

that's occurring. 

More current, you're probably going to 

have more rigorous personal protective equipment, 

more rigorous monitoring. That's where we get 

into this whole discussion of within regulatory 

limits.

So, that's not something that would be 
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communicated in the site exposure matrices, that 

would be information gleaned from what the employee 

is telling us in the occupational history 

questionnaire, the DAR records.

The DAR records are basically 

employees' work records and then the industrial 

hygienist looking at it and providing some sort of 

feedback as to what their take on the use of 

personal protective equipment would be. 

MEMBER SPLETT: This is Gail Splett. I 

just looked up the reference that Diane Whitten had

referenced for 105N, which is end reactor. It now 

shows it's as a museum. It was an operating 

reactor for decades and we know there were multiple 

exposures.

So, the fact that they're taking a look 

at what it is today, they're ignoring all the 

exposures for decades and I think that's really 

troubling, I think it's something we should be 

talking about.

I just looked at that one example. It 

doesn't look like there's any timeframe 
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consideration of when the facilities were 

operational and when exposures potentially 

occurred. 

CHAIR MARKOWITZ: Other comments or 

questions? This is Steve Markowitz, I have a 

question. How do you keep the SEM up to date in 

terms of the exposure to disease links? 

Occasionally we make some progress in 

occupational health, it doesn't happen very 

rapidly but occasionally we demonstrate that toxic 

substances cause particular illnesses that we 

didn't know better. 

So, how do you keep the SEM up to date 

with regards to that? Not which chemicals were

used in which buildings but specifically, the 

exposure to disease links.

MR. VANCE: That's a good question, 

Steve, because one of the best resources we use to 

update the health data in the site exposure 

matrices is the Advisory Board. 

So, in the past two years, the Advisory 

Board made recommendations as to the addition of 
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new health effect data in the site exposure 

matrices based on IR2A exposure listings, which are 

those probable relationships that exist in the 

humanistic studies of disease.

And they're looking at the potential 

for particular toxins to cause disease. There was 

a list that was put together by the international --

CHAIR MARKOWITZ: Interagency for 

Researchers?

MR. VANCE: Yes, and they basically 

have monographs they utilize with saying we 

definitely know this is a high probable 

disease-causing exposure. 

Here are some probables and so what we 

ask the Board to do is to take a look at that and 

the Department of Labor asked for that to be done. 

And as a consequence of that, we've added multiple 

health effects based on that research. 

And I know that off the top of my head, we 

added breast cancer health effects, we added the 

prostate cancer, there was a lymphocytic kind of 

disease process. 
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So, we're looking constantly for input 

from the Board or other sources to inform changes 

to the site exposure matrices and the important 

thing to understand is that once it's in the site 

exposure matrices, our claim staff understand that 

those health effects are established in medical 

health science.

So, we're not going to need to do any 

additional research on that because it's already 

right there in front of them. So, these are things 

that certainly the Board can provide input on and 

has and we have accepted and made updates to the 

site exposure matrices. 

But it is something that we can also do 

on our own as the data becomes available. Updates 

have occurred as well based on I think updates to 

IARC and I can't think of an example but I do know 

they periodically will issue new publications that 

describe additional and updated research.

And then that would be absorbed into the 

site exposure matrices.

CHAIR MARKOWITZ: Steve Markowitz. 
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That's a good answer, but also, it's a question for 

the Board actually. It's not easy to update 

exposure disease links, to track the literature and 

keep a database that really wants to do that and 

apply it to help people.

It's not an easy task and maybe we 

should have some discussion about how that might 

be done. Dr. Cloeren?

MEMBER CLOEREN: Marianne Cloeren. 

I'm kind of a systems thinker and so I was thinking 

about what could a mechanism be when we notice just 

a gap that doesn't take a whole lot of work to 

propose a change. 

An example is I was looking at a case 

of somebody that was a plumber at a site and looking 

at the site, the plumber was not listed among the 

jobs that were there but there was a plumbing shop.

So, that would be the kind of thing that 

I think if there was just an online forum, this may 

be just kind of an omission, for someone to look 

at. 

Maybe there could be some sort of an 
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online forum if we notice in looking at things that 

there's a disease connection that's not showing up, 

there might be at least a way to collect the 

information in a way that we could look at later. 

Because I think sometimes we notice it while doing 

something, not at a meeting. So, that might be a 

way to gather the information. 

CHAIR MARKOWITZ: Other comments or 

questions for Mr. Vance? 

MEMBER ZABACK: Lorna Zaback. My 

observation of this, and what everybody is talking 

about, to me there's a disconnect between the 

people providing the information and Paragon. 

How NIOSH does their discovery is 

constant, they have a whole staff that is 

constantly doing discovery for different reasons, 

for the special cohorts, and for other things and 

to figure out cohort modeling and things like that. 

But Paragon came, what, 2010 and then maybe 2015 

and that was kind of it. So, I just feel like 

there's a pretty big gap of information that is 

there that we have, we just really don't have a 
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seamless way of actually providing it.

And what Jim had said, is it going into 

this black hole? How do you know your information 

has been vetted and that it's going to into the SEM? 

Who keeps track of all that? It just seems really 

disconnected. 

So, I would think my recommendation was 

to have somebody really assigned to coordinating 

the activities with DOE and with DOL together so 

we know what we're providing is important.

And especially when the claims 

examiners, I've heard this many times, if it's not 

in the SEM, forget about it. And that's really the 

tough part. 

CHAIR MARKOWITZ: Ms. Splett?

MEMBER SPLETT: I just looked up all 

the Hanford reactors and they're showing no 

exposures at any of our reactors. There's just a 

few but there's not much and that really surprises 

me. 

CHAIR MARKOWITZ: Other comments or 

questions? Okay, thank you Mr. Vance. 
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MR. VANCE: Thank you, everybody. 

CHAIR MARKOWITZ: We're going to talk 

about some things for the Board and if I could have 

the slides? I put some of these things on slides 

just so that we can see something at the same time 

that we're speaking.

First, we're just going to look at some 

of our recommendations that we've made and the 

response we've gotten from the Department on those 

recommendations. 

I put up the list of assigned tasks for 

the Board or areas that we're asked to provide 

advice on. The slide should be coming up soon. 

We've referred to some of them, it's Slide 2 when 

you open it up. 

We have domains that we're asked to look 

at and provide advice on and things that are outside 

those domains, it's not on the agenda of the Board. 

So, sometimes we might in our discussion refer to 

how this relates to our chartered mission.

Next slide. And so it's worth just 

looking at those for a moment. First, if you could 
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make that later, is the site exposure matrices. 

We've been talking about that and we'll continue 

to do so.

Secondly, medical guidance for the 

claims examiner and let me just interrupt myself, 

we're going to talk about reviewing some claims in 

the near future and then reviewing a larger number 

of claims in the medium future.

So, as we run through this, think about 

what kind of information we want to get when we look 

at these claims, what do we want to learn? 

So, the weigh-in on the medical 

guidance for claims examiners for claims with 

respect to how they look at medical evidence.

 And I'm not sure, actually, the Board 

has historical spent much time on this. 

I'm not sure I quite understood what the 

task was but mind you, these are claims examiners 

that don't necessarily have any training in health 

background, who are gathering medical information 

and with some assistance from contract medical 

physicians or the like, but deciding the SOAF, the 
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statement of accepted facts, that moves forward to 

the IH or moves forward to the CMC, to the 

physician. 

So, they're sifting through the medical 

information to see to the extent to which the 

diagnosis is justified and then what questions 

might derive from that. 

Number three is the evidentiary 

requirements regarding Title B in relation to lung 

disease, so that's chronic beryllium disease and 

that's chronic silicosis. 

And early on, 2016 through I think 2018, 

the Board spent a fair amount of time on that. I 

do think there is an interesting issue that I'd like 

to revisit today on a specific issue, revisit today 

or tomorrow morning on that task. 

And then Task 4, this is the one I think 

more than any others that the Board has not really 

fulfilled our assignment on, which is to examine 

the work of the industrial hygienist, the 

physicians both I guess at the federal level but 

at the contract level also. 
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And the extent to which their reporting 

represents quality, represents objectivity, and 

represents consistency. 

And when we look at claims, and for 

those of us who have looked at claims before, you'll 

see variation in some of these factors and the 

question was to find a solution to I think instances 

or perhaps the structures which don't reflect 

sufficient quality or objectivity or consistency. 

And then fifth is what we've just 

discussed actually, this review of proposed 

changes in the procedure manual, and then finally 

6, I love 6, such other matters as the Secretary 

considers appropriate.

And under that task I think we were 

asked by the Department to look at certain 

scientific issues. 

For instance, we were asked to look at 

Parkinson's Disease, look at the IARC carcinogens, 

and to advise them on how them should be categorized 

in the SEM.

And in fact, I think the Board can 
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remain useful as a scientific and technical 

resource to the Department in the future. And even 

more so when we get some contract support.

Next slide. 

Recent board recommendations, there 

were two that we recommended, I think both at the 

end of June, the last board, just before its 

expiration, which is summarized with the three 

Beryllium Lymphocyte Proliferation Tests, result 

challenge.

And basically, the Board had run into 

this problem early on, which is that the statute 

defines beryllium sensitivity as an abnormal 

beryllium lymphocyte proliferation test.

And the problem was that some of the 

beryllium testing programs, whether in the former 

work or programs or among the current workers, 

among Claimants or the like, would run into 

consecutive borderline results, which are not 

frankly abnormal, they're borderline.

And it represents a small percent but 

it's important to them in particular. 
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Some percent have multiple borderlines 

and never get and abnormal and yet through studies 

that have been demonstrated there are likely to 

develop abnormality in the future, and with some 

likelihood develop CBD, chronic beryllium disease 

in the future. 

So, this topic, this issue is being 

weighed on by the entities that I list here 

including OSHA. This is from our discussions, 

this is from our recommendation to the Department. 

So, OSHA, the Department of Energy, the 

Department of Energy agrees with considering 

three borderline BeLPT tests as equivalent to being 

abnormal, and then various professional 

organizations and the like. 

And so we recommended, next slide, that 

understanding this was a statutory limitation, the 

Department communicate to Congress the need for 

technical amendment in the Act that recognizes that 

covered individuals who have three consecutive 

borderline BeLPT tests be recognized as having 

beryllium sensitivity.
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Next slide. 

The response from OWCP was basically 

that they agreed and that they had discussion with 

Staff Members from the Senate, Health Education, 

Labor, and Pension Committee help.

And in fact, the Health Committee had 

provided the OWCP with similar amendatory language 

that the Board had recommended and this department, 

the Department of Labor, communicated

to Congress it wouldn't have a problem or 

difficulty implementing such an amendment if it 

were adopted.

And so what I understand, maybe someone 

has more up-to-date information that this is under 

consideration and Congress may be in the National 

Defense Authorization Act, which is supposedly to 

be voted on in December. 

And so this may in fact happen. Ms. 

Splett?

MEMBER SPLETT: Senator Murray from 

Washington D.C. has introduced a Senate Bill for 

928 called the Beryllium Testing Fairness Act 
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dealing with this very issue. 

CHAIR MARKOWITZ: And it specifies 

three borderline --

MEMBER SPLETT: Correct. 

CHAIR MARKOWITZ: Are there other 

elements of the act without going into details?

MEMBER SPLETT: It also extends this 

board for another five years, so that's your 

recommendation. 

CHAIR MARKOWITZ: Thank you. Dr. 

Cloeren?

MEMBER CLOEREN: I have a question. 

This may be a question for colleagues in the back. 

Would they have the latitude to make this change 

for Part E?

MS. POND: We've always said that if we 

were going to establish beryllium sensitivity for 

Part B, we would try to be consistent with Part 

E. I think it would be really complicated for us 

to start doing that in terms of having an 

inconsistent --

The inconsistent definition under CPD 
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is more understandable but with beryllium 

sensitivity I think it would be a lot more 

challenging for us.

I'm not saying it couldn't be done, I 

just think it would be a lot easier of Congress just 

passed this and we could use that test across both 

of them.

I'm not saying it's out of the question, 

I'm just saying it would be a little bit 

complicated. 

CHAIR MARKOWITZ: Thank you. Any 

other comments or questions on this topic? Remote 

Board Members, chime in whenever. 

Next slide. 

At our May board meeting we discussed 

what's been briefly mentioned today, which is that 

when we were revealing claims we saw some new 

language in the industrial hygiene reports that was 

highly repetitious and documented a certain 

approach to interpretation of exposures.

And I just summarized it here as the key 

phrase is there's no evidence that the claimant's 
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exposure exceeded regulatory standards. So, the 

board discussed this. 

Next slide. In June, at the end of 

June, we made a recommendation on this language. 

I don't think we need to discuss the 

history of the antecedent language that the 

industrial hygienists had used prior to this but 

there was a different version of that language 

which had essentially some of the same basic 

challenges.

But we recommended that actually such 

language should only be used if there is 

affirmative evidence supporting such a statement. 

And the fact is that most claims, there isn't much 

industrial hygiene data, that's just the fact of 

industrial life, the second half of the twentieth 

century. 

So, there isn't affirmative evidence 

that allows you, really, to say with confidence 

where those exposures occurred vis-a-vis the 

regulatory level. Next slide.

I'm just trying to breeze through this 
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language a little bit. 

We said that in the absence of specific 

industrial hygiene evidence, comparing Claimants' 

workplace exposures to regulatory standards, it 

lacks objective evidence and may in fact end up 

being prejudicial in terms of a claim.

Next slide. 

OWCP, I think Mr. Vance covered this, 

maybe Ms. Pond also agreed with this, with our 

recommendation essentially, and it's worth looking 

at their language: DOL agrees to modify the IH 

toxic substance exposure to eliminate reference to 

exposures that occurred within regulatory 

standards.

And for all cases that for referred to 

the DOL IH, they will assign, and we're going to 

discuss this so this is worth looking at, a 

characterization of exposure that must align to the 

levels that currently exist within program 

procedure. 

Toxic substance characterization will 

continue to be informed by the professional 
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judgment of the IH, including consideration of 

available employee-specific employment data. 

So, they agreed with our 

recommendation and affirmatively state that they 

will use the language from their procedure manual 

and that this involves professional judgment. 

And my own feeling is of course it 

involves professional judgment because that's the 

way we make these determinations. We assemble the 

facts but we have to bring professional judgment 

to that decision and ultimately, interpretation 

about what exposure means.

So, exposure can be significant or not 

significant. If it's significant, low, medium 

high, that involves some facts as you can assemble 

them, but also professional judgment.

And I want to talk about that a little 

further because I think when we look at claims, 

we're going to face this issue and actually, I think 

even when we looked at this language before around 

regulatory standards, there was concern and 

discussion about what does significant mean here? 
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So, let's begin that discussion. So, 

the next one is the Board reviewed, at the request 

of the Department, some quality assurance 

documents. This was done out of public view 

because those quality assurance documents were in 

draft form. 

We sent in our comments to the 

Department, they're not public documents so we're 

not going to discuss them, as we've not discussed 

before. 

But I want to point out that the second 

part of this, which is whether the CMC issues 

opinions that represent, actually, a faithful and 

accurate application of current medical literature 

to the particular facts of the case. 

 That was not part of this QA upgrade by 

the Department. 

In other words, how often the CMC is 

correct in their judgment in their decision about 

causation is not something that they're looking at, 

at least as far as we can tell from the QA document. 

And that is something I think is part 
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of our own task, to figure out are the CMCs -- how 

often are they wrong in their decision? Because 

it happens. Is it rare or is it less than rare? 

That's something we need to address. I 

now want to go back to a couple earlier 

recommendations, if you could go to the next slide? 

Here we go.

A couple times, actually, the Board 

took on this issue that there's certain job 

categories at DOE sites that represent -- not a 

large number of categories -- workers who likely 

work throughout the sites where they worked. 

Think about a firefighter, they're 

going to overtime at multiple places, security 

guards and the like. And they would have had 

potential exposure and we tried to develop a way 

to address this issue within the context of the SEM.

Actually, Mr. Key, did you want to chime 

in here? Because I know you've raised this issue 

before. 

MEMBER KEY: Yes, I have. Jim Key, 

Paducah Gaseous Diffusion Plant. 
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During the operating program where all 

process equipment was changed out, 24-7 around the 

clock you had probably 120 people up on the cell 

floor lifting converters.

They didn't shoot the converters and 

clear out the uranium prior to cutting them apart. 

A crane would lift to take it down to the bay area 

and just fire up the whole building because there 

was a reaction with the moisture created in the 

plume. 

Firefighters and security guards at 

that facility had first a written checklist that 

they had to check security doors, check fire 

extinguishers that were brought up there for each 

sale or change-out that was repeatedly, day after 

day after day.

They're breathing the same things and 

been exposed to all this welding cutting that's 

going on. 

They're having to make their rounds, 

they're walking the same floor space as the 

maintenance mechanics and electricians and ash 
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pump people up there doing this work.

And clearly, they had more than just 

minimal exposure, they had as much routine exposure 

as any worker up on that cell floor. 

And yet they're not included in the SEM, 

they're not given exposure limits whatsoever, and 

those are four huge process buildings that that 

change-out went through completely in a seven-year 

period.

They had a job responsibility to be up 

there just like any of the labor craft did. 

CHAIR MARKOWITZ: This is Steven 

Markowitz. And actually, we've heard this problem 

from public commenters in the past. Here's the 

history of this a little bit, because there's a 

puzzle here that we should be able to solve. 

What a couple of us did at one point is 

look at the SEM for I can't remember whether it was 

firefighters or security guards, it was one or the 

other and we looked at different DOE sites for how 

many toxic substances were associated with those 

sites using the SEM.
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And Hanford, whichever job title this 

was, it was literally over 1000 toxic substances. 

And that's in the SEM as being related to this job 

title. 

And we looked at three gaseous 

diffusion plants and we did that because they would 

be similar and we wanted this comparison with 

Hanford but we also wanted this comparison within 

the three GPTs.

I think it's coming through. Thank you 

for the fancy setup. When we looked at the three 

GDPs for this job title, the range was somewhere 

between 12 and about 40 toxic substances in the SEM 

for the same job title.

So, there was this clear difference 

between Hanford and the GDPs, which was most likely 

disproportionate to the actual exposures. GDP has 

had plenty of exposures, not as much as Hanford 

probably.

And then within the GDPs, there was very 

similar things. There was some variation between 

12 and 40, 3 or 4-fold variation. And so we said, 
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well, that means the SEM is probably not very 

complete and why should this job title suffer 

because the SEM isn't complete?

And we suggested essentially that you 

expand your use of the SEM, just state these very 

few job titles had broad exposures to many of the 

toxins at the sites.

And the answer to that from the 

Department of Labor made sense to me, which is that 

when we case study the SEM, we rely on data and when 

we have the data to say something, to connect 

exposures with job titles, buildings, and the like, 

we do it.

And when we don't have the data, we 

don't do it. And we came back and we said, well, 

the data are incomplete and everybody knows that 

because that was the nature of industry. 

And I think the Department's view of 

that was that's true but we rely on evidence and 

as long as we rely on evidence -- when we no longer 

rely on evidence --

I don't want to read into it because 
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they didn't say that, they didn't say the 

hypothetical, when we no longer rely on evidence. 

We rely on evidence and if it's there and if it's 

not, it's not. 

We don't make it up. 

I wonder whether the solution to this 

is not to change the SEM but to identify a few 

site-wide job titles and instruct the claims 

examiner through the procedure manual and say you 

can do a SEM search but on these job titles you 

should send them every time to the IH with the 

understanding, I'm not sure how you describe this, 

that there might be a broad set of exposures that 

this job title has.

Or at a minimum, that the IH is going 

to give a report for each of those job titles and 

the IHs will have a better understanding that these 

selected job titles have a much broader set of 

exposures that are going to be reflected in the SEM.

That leaves the SEM undisturbed. 

No one is suggesting you make up 

evidence or you use something other than evidence 
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in the SEM but it facilitates a more appropriate 

look at those job titles in relation to their likely 

set of exposures.

The floor is open, Dr. Bowman? 

MEMBER BOWMAN: Steven, thank you. 

Aaron Bowman. A couple comments on that one. 

I think what you're saying there is 

rather than sensible, to have the IHs consider that 

for particular job categories the actual exposures 

may be much broader than what the SEM would suggest. 

And it's difficult to make those 

corrections in the SEM because, as my colleague Jim 

had mentioned, there might be firefighters. 

There are lots of places that get exposure to 

certain things that other people do, but if we list 

everything in those rooms, maybe there's some 

things they wouldn't be exposed to and then 

suddenly we're creating all these red herrings of 

chemicals they weren't, which would just make the 

whole process more difficult. 

So, I like this approach that you're 

mentioning for that reason but is there a process 
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issue where the IHs only get the list of seven or 

so exposures and they're only looking at those? 

What we're talking about here is adding 

exposures that aren't coming out from the SEM. So, 

how does that happen in this context? 

CHAIR MARKOWITZ: The details of how 

you do claims evaluations we're going to need to 

leave to the Department. 

But I think in the statement of accepted 

facts they could say, look, this is what we found 

in the SEM and they could also say, but given this 

job title, we ask the IH to look at a broader set 

of toxic substance exposures relevant to that site.

Or some language that either appears in 

the procedure manual or in the statement of 

accepted facts, somewhere, that provides that 

instruction or asks for that consideration.

Again, that leaves the SEM undisturbed. 

Mr. Key?

MEMBER KEY: Jim Key again. I agree 

with my colleague, Dr. Bowman. 

When you look at the three gaseous 
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diffusion plants on our SEM database, which again, 

they clearly did the very same work, the only 

difference is the percent of assay that they were 

enriching the uranium to. 

When you have Oak Ridge, Tennessee, 

that under the SEM, these are arbitrary figures but 

when we get in there and look, it has 197 chemicals 

listed for the firefighters at Oak Ridge, and a 

portion of the firefighters have 93 chemicals. 

And the firefighters at Paducah have 12 

chemicals. Clearly, clearly something is amiss, 

is not complete. A claims agent cannot evaluate 

a Claimant from Paducah the same they do at Oak 

Ridge in the same job category. 

So, something has to occur here. 

CHAIR MARKOWITZ: Other comments? 

Dr. Van Dyke?

MEMBER VAN DYKE: Mike Van Dyke here. 

Dr. Markowitz, I agree with your assessment. My 

only question is firefighters' security, I hear it, 

but is it even broader than that? 

We talk about trades workers, craft 
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workers that are all over the plant, I don't think 

it's a unique situation to just security and fire. 

And as Jim pointed out, even laborers might be a 

category as well. 

It's hard, I don't know the right 

solution, but it is an issue for sure. 

CHAIR MARKOWITZ: Steve Markowitz. 

I thought of that, I do think that the 

construction trees that the maintenance crew that 

makes their way around the site, many different 

buildings, numerous different work processes, or 

are likely in the SEM to have a much broader set 

of exposures that are characterized as what they 

did.

But it still may be incomplete. And I 

think that is a challenge, well, what job titles 

should be included here? And with this I hadn't 

recommended a solution to that problem because it's 

uneasy.

But I don't think it's insuperable, I 

think you can make distinctions whereby you could 

still gain the benefit of that approach. 
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MEMBER ZABACK: Lorna Zaback. 

It makes me think about that person, 

that claims examiner that's sitting there and they 

have a firefighter and janitor and we've had a bunch 

of them that Gail put a list together to give to 

DOL, these are travelers on the site.

But what is the direction in the manual 

when they look at the SEM and there's nothing for 

the janitor? Do they just say, okay, we're going 

to recommend a denial? Is it an automatic we don't 

have information? 

That would be the thing I would like to 

know. Are they just going to say I can't make this 

decision, one tool I have to use doesn't work for 

my experience, I have to send this on, or do they 

say it's not in there so it goes back to?

So, that would be what I would want to 

know. 

CHAIR MARKOWITZ: Mr. Vance, could you 

answer that?

MR. VANCE: This is your classic energy 

compensation conundrum. You have no information 
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but you do have something. 

So, the way we've dealt with this is the 

way I've talked about it is that it's really going 

to be dependent on the type of information we do 

have. 

So, yes, you're a claims examiner and 

you're sitting there looking at the documentation 

that you have and you have someone that's saying 

they travel all over the plant and was exposed to 

everything.

What does the claims examiner have to 

go on to help refine that down to identify specific 

toxins? They've got the site exposure matrices 

and they may have whatever records are in the 

employees' records. 

If there's nothing in there describing 

any kind of contact with a toxic substance and SEM 

has nothing, there's very little this claims 

examiner can do with that. 

Generally, what I recommend is that,

and this is what's so nice about the occupational 

history questionnaire now, we get a lot more 
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freeform information. 

If we have data from an employee saying, 

hey, I was a fireman or fireperson working at 

Hanford and let me describe in detail some of these 

things that we did that identifies specific work 

processes that brought them into contact with 

something, you're building out that comparative 

analysis connection that you can use to get to an 

exposure in the site exposure matrices. 

Now, it's going to be dependent on the 

specificity of the information, the details that 

are provided, the type of connections that you can 

make between that employee's work and another work 

process. 

This is what makes it really 

challenging for the energy program because you're 

not dealing with definitive information, you're 

dealing with hearsay, you're dealing with very 

broad types of information.

So, what we are always going to be 

looking for is describe exactly what it was what 

you were doing, where you were going in the GDP, 
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what it was, and we can consider that.

But again, the claims examiner is 

looking at the information in front of them. 

If the employee isn't really clear what 

they were doing and not defining or describing a 

toxic material that they're concerned about and 

there's nothing in the case file, it could very well 

be there's not much the claims examiner can do with 

that. 

If the claims examiner could try to 

utilize, sure, they can work with an industrial 

hygienist to say this Claimant is saying this and 

they're offering a lot of details about this.

Is there something you can recommend as 

far as a particular toxic substance I should be 

worrying about? But even an industrial hygienist 

might not be able to provide that information.

All they would be able to do is say from 

their experience or understanding, there could 

have been something here of concern that we should 

probably profile from an industrial hygiene 

standpoint. 
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But if the Claimant is not providing any 

kind of real detail that would allow the industrial 

hygienist to say, oh, geez, that brought them into 

contact with asbestos or that would have been 

something that would have brought them into contact 

with cadmium more or mineral oil or whatever, then 

there's not going to be much to do.

This is the classic problem, the 

absence of information. So, yes, they're going to 

use whatever resources they have but if there's 

nowhere for them to go, there's nowhere for them 

to go and that's the biggest problem right now.

If you're dealing with a claim negative 

outcome and we have to make a recommendation to deny 

a case based on that profile, then hopefully the 

Claimant will object and provide additional 

information that helps amplify what they think 

would have been something that brought them into 

contact during an oral hearing or submission note 

of an appeal on the written record or something like 

that. 

This is the biggest challenge we've 
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gotten and we look for help in figuring these types 

of situations out. 

It's something that we do encounter but 

hopefully with some of the improvements we've 

mitigated that through the collection of better 

information through the occupational history 

questionnaire, hopefully through training our 

staff to make sure they're very careful with going 

through the employees' records. 

Because sometimes there's very 

critical information in the DAR that they should 

not overlook. 

So, in other words, for firefighters 

and security guards, often times medical records 

oddly enough will have a lot of information about 

work activities that brought them into contact with 

particular things. 

Discharging firearms, that's going to 

have a certain type of exposure. 

When firemen get injured fighting a 

fire, and they're like, oh, we were in this building 

and we were dealing with this toxic material as it 
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was burning up, that should trigger a claims 

examiner to say, wait a second, I've got something 

I've got to look at here. 

So, it's really dependent on the 

specificity of the information. It's a very tough 

problem. 

CHAIR MARKOWITZ: Thank you. 

For firefighters, security guards, the 

like, it's not the same as absent of exposures 

because they do have a limited number but it's not 

reflected of the broader site-wide exposures that 

they have.

So, somewhat different circumstances.

MEMBER ZABACK: The one comment that I 

always -- when you're looking at all those papers 

and all this information that we have on a Claimant 

and then the absence of all of that information on 

a Claimant kind of always makes me go back, well, 

that was kind of the reason for the law. 

And that's what makes me think about 

with Mr. Key is he's saying we don't have this 

information but these people have these illnesses. 
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So, I just always try to focus back on 

that, that you don't get beryllium from working at 

Walmart and those kinds of things, where sometimes 

I think it's like we need this, this, and this, and 

forget about the other part. Thank you. 

CHAIR MARKOWITZ: Ms. Whitten?

MEMBER WHITTEN: Diane Whitten. I 

agree with Jim that if we know these activities 

occurred and who did them at certain facilities, 

I think that needs to be captured somewhere for 

historical purposes. 

Because a lot of these claims are going 

to be survivor claims and their wives and kids, 

they're not going to know anything about what their 

dad did, where he worked, and what he was exposed 

to. 

So, if there's some way that we could 

capture that, either in the manual or the SEM or 

somehow, I think we should try to do that.

 CHAIR MARKOWITZ: Before I call Mr. 

Key, so there is a mechanism to submit to the SEM,

to submit new information that might be useful by 
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the site, is that what you're talking about? 

MEMBER WHITTEN: Some sort of written 

process for certain activities and certain 

facilities that specific people, firefighters, 

security, and whoever else were involved in that's 

not captured somewhere else. 

CHAIR MARKOWITZ: Thank you. Mr. Key?

MEMBER KEY: Jim Key again. I just 

thought about something. On September 23, 1999 I 

testified in front of Congress on the revelations 

of the exposure at Paducah, which was ground zero 

for this whole program.

It started the legislative process for 

EEOICPA. I remember during my testimony one of the 

Congressman on the House Oversight Investigations 

Committee, I had filed like 32 FOIA requests with 

DOE.

Once the ball had started rolling on 

August 12th the revelation was in the front page 

of the Sunday edition of the Washington Post that

workers at Paducah had unknowingly and unwittingly 

been exposed to plutonium, americium and 
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neptunium. 

So, one of the Congressmen asked me, he 

said, Mr. Key, we understand that you have 

requested FOIA information on use of beryllium at 

Paducah. I said that is correct. He said it's 

also our understanding that the Department has not 

provided you with that request of information.

I said that's correct and if you could 

get it I'd appreciate it if you'd share it with me. 

So, I remember after that I went back home and the 

next week I got a call from an Oak Ridge DOE 

operation manager.

And he said we are going to allow you 

to come down to the federal building, go into the 

vault, and review any of the documents on Paducah. 

So, I did, I went down there. 

I went in the vault every day with a 

guard, I couldn't take a pencil, piece of paper, 

not even a pager. And I started going through the 

file cabinets that was in the vault just on Paducah, 

I saw some things I wish I hadn't seen.

Some of those documents were, and 
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possibly still are to this day, top secret, secret, 

and confidential. 

So, I sit here and I think maybe I need 

or we as a board need to request under a FOIA to 

the Department of Energy any documents, especially 

under the Oak Ridge operational office at that time 

that are in the federal building, and request some 

of those documents be declassified where we give 

us more --

There were documents there on beryllium 

that had been in the vault and shipped to Paducah. 

So, maybe that's pathway also to get more 

information to help on rebuilding the SEM and help 

with Claimants.

And I'm sure there's several buildings 

at each of these locations, I'm sure Hampton's got 

one, all the facilities do, and make that request 

just nation-wide to DOE. 

CHAIR MARKOWITZ: Let me just make a 

comment on that. 

Actually, Department of Labor offered 

us documents, I don't know if Mr. Vance or Ms. Pond, 
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you remember this but he raised this issue of the 

site-wide job titles and the level of documentation 

at the various sites. 

And they offered us the documents I 

think the Paragon has that they used to create that 

information on the SEM or those sites. It was 

voluminous, there were a lot of documents. We 

refused them because we didn't really have the 

capacity to look at all those documents.

And that was already on, frankly, a very 

specific issue, a couple of job titles in very few 

sites. So, I understand your point but I doubt 

have the resources to look at original documents, 

particularly multiple sites, multiple exposures.

Did you want to respond to that before 

other people? 

MEMBER KEY: Yes, real quick. I do 

remember when the federal investigator DOE team was 

sent into Paducah, there was a key they put out to 

the contractor not to destroy any documents.

So, that in and of itself does not lend 

to our documentation to improve the SEM because 
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documents were being destroyed before the federal 

team got in there and documents had already been 

stuffed in 55 of the other rooms. 

CHAIR MARKOWITZ: Dr. Cloeren? 

 MEMBER CLOEREN: Just because the 

information isn't in the SEM doesn't mean the 

person didn't do the job and that the exposures 

weren't there and I don't know whether it's part 

of the procedure for the Department of Labor to use 

other resources that are available, like perhaps 

O*NET. 

I think O*NET might be a decent resource 

for the claims examiners to study information just 

to learn a little bit about what particular jobs 

do is there's not information. 

CHAIR MARKOWITZ: I think you should 

probably describe what O*NET is.

MEMBER CLOEREN: O*NET is an online 

database basically of jobs and it was built I think 

for job hunting, to describe jobs, but there is 

within it description of dangerous activities, 

usual work tasks, et cetera. 
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So, it would provide claims examiners 

some basic information about what particular jobs 

do. It's present, it may not accurately reflect 

what people did 30 years ago and there's a lot of 

variety in jobs, but it might be a nice starting 

point. 

Like what the heck is a pipe-fitter? 

They could look up what a pipe-fitter is. 

CHAIR MARKOWITZ: Other comments? 

Dr. Van Dyke? I'm sorry Ms. Zaback. 

MEMBER ZABACK: I just wanted 

to go back to the conversation when I brought up 

the fact about NIOSH and how they do this and how 

they manage and they capture the data and they 

manage constantly, constantly, constantly what 

their looking at and evaluating. 

When they're doing their dose 

reconstruction it's the same thing, it's just a 

different animal. I don't understand why that 

type of effort doesn't really exist. 

You've got the SEM people but there's 

no real concentration on managing the information, 
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communicating with the sites, getting more 

information.

Because it's not even that, oh, we give 

you all you have, you don't know what you have. 

Millions and millions of documents. So, maybe 

somebody else has something else, we're constantly 

finding things. 

So, I just feel like that's a big 

misstep in the SEM.

CHAIR MARKOWITZ: Ms. Pond, do you want 

to comment on that? 

MS. POND: Just briefly. I just want 

to clarify that the SEM team is constantly doing 

research. They do research and we get monthly 

reports, they're looking at various sites, they're 

going to DOE every month getting more information. 

But the amount of people that are 

working on it isn't as large. We don't have that 

many people that can do it like NIOSH does but it 

is something that is constantly being updated. 

That's why we say it's a living 

document. And so the work that they are doing is 
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that, it's going back and getting more information. 

We add toxic substances all the time because of the 

research that's being conducted.

So, from that aspect, on that piece of 

it, they are constantly working, they just don't 

have as many people and they don't have as many 

resources to do that. 

So, I just wanted to make sure that was 

understood.

CHAIR MARKOWITZ: Other comments or 

questions? Dr. Van Dyke?

MEMBER VAN DYKE: I was just sitting 

here pondering, if I'm the industrial hygienist 

that gets that report that says this person is a 

security guard or a firefighter at a particular 

site, if there's no information to go on, I think 

it's tough to put in writing that you're going to 

hang your hat on some particular exposure when you 

don't know otherwise.

You'd say something like incidental 

exposure to lots of stuff because you don't know 

otherwise. 
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So, I do think that level of detail that 

Mr. Vance was talking about in terms of other 

questions, you really need some more detail to get 

to what an exposure was.

CHAIR MARKOWITZ: I would say a couple 

things. 

One is there's the occupational health 

questionnaire which the IH would look at hopefully 

in any event, which is from the Claimant, in which 

some of that is detail is sought and documented. 

Secondly, the industrial hygienists, 

they have pretty good knowledge of these sites, I 

think many of them worked at these sites. And my 

guess is they've probably been doing this for the 

contractor for quite some time and seen many, many 

claims. 

So, there's a bank of knowledge, 

really, that they can fall back on. Thirdly, they 

have the option of actually doing a telephone 

interview with the Claimant.

That option was begun a few years ago, 

the Board actually recommended that, I don't think 
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it's used much and the claims examiner has to be 

involved, but that's not a problem.

So, it's not a vacuum of knowledge to 

look at that particular claim, there are other 

tools that complement the SEM, but I guess the 

solution is to make sure this gets to the IH. 

Because frankly, if the CE doesn't see 

much in the SEM for that particular job title 

anything that connects with that particular 

disease, the claim may end right there and not move 

onto the IH.

If there are no other comments or 

questions, we need to take a break. It's 25 of, 

we're going on break for 15 minutes so we'll be back 

at 10:04. 

(Whereupon, the above-entitled matter 

went off the record at 3:32 p.m. and resumed at 3:47 

p.m.) 

CHAIR MARKOWITZ: And Dr. Cloeren has 

come back, we can start now, you're right on time, 

thank you. Just to close out this topic because 

we need to move on, I suggest we rediscuss this 
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tomorrow morning, see if we can come up with a 

recommendation that makes sense to us or whether 

we want to put this off to a Work Group so we can 

look at it more thoroughly.

But let's do that tomorrow so we can 

move on to some other topics and sleep on it. 

Next slide. Another recommendation 

from the past had to do with asbestos and this was 

an interesting ongoing discussion and the 

Department accepted numerous aspects of our 

recommendation regarding asbestos presumptions.

But there was one particular issue that 

we've gone back and forth on, including a 

discussion not in June but in our May meeting 

earlier this year. So as not to lose this 

entirely, I thought we should revisit it.

So, if you go to the next slide, this 

is an excerpt from the procedure manual. 

This is 7.0 Procedure Manual Version, 

Exhibit 15-4, and these are a list of job titles 

that the claims examiners are to consider as having 

had significant exposure to asbestos on their job 
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desks prior to the end of 1995.

So, these are the people for whom a good 

presumption on asbestos exposure exists and I think 

there was a list, I think we helped expand the list 

by adding some job titles, and I won't walk through 

them but they're familiar job titles.

And if you go to the next slide, it's 

the remainder of the list and a lot of maintenance 

workers, construction workers, but others as well. 

And so the question is, if you go to the 

next slide, whether certain job titles, mechanical 

engineer, chemical engineer, and industrial safety 

engineer, should be added to this list.

And I'll give you briefly the history 

here. 

A couple of board terms ago, Dr. 

Friedman-Jimenez, Dr. Mikulski, correct me if I'm 

wrong on this, but a couple of us decided to look 

around and look for data that could be used to 

broadly characterize who had asbestos exposure in 

the letter half of the twentieth century, 

significant exposure. 
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And obviously, the job titles we just 

looked at, they had exposure and so John Dement and 

I, who was a Board Member, looked at what's called 

the national occupational mortality survey or 

system or something, NOMS, that's kept by the 

National Institute.

And we looked at specifically malignant 

mesothelioma because that's predominantly caused 

by asbestos so we thought that's a marker for 

asbestos exposure. 

If we can identify job titles that 

reliably had excess risk of mesothelioma, then we'd 

know those job titles had asbestos exposure. 

And the NOMS data was from the first two 

decades of the twentieth century so it really 

reflected exposure going back 30, 40, 50 years into 

the time period that we're concerned about in DOE.

And when we looked through the job 

titles, and many of them were actually the job 

titles that appear on the DOL list, but there were 

some job titles that weren't on the DOL list 

including mechanical engineers, chemical 
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engineers, and industrial safety engineers.

And there were others, there were 

layout planners and some other odd job titles that 

also showed excess risk of mesothelioma and we 

recommended that the DOL endorse and accept this 

list for use in the Exhibit 15-4. 

And DOL came back to us, it was really 

I think Paragon, and said some of these job titles 

really don't make sense for DOE layout planners and 

there's some other job titles. 

We don't have much in the complex so we 

shouldn't add them. Plus, some of them, their 

excess risk of mesothelioma wasn't that great or 

there were small numbers of cases because the job 

titles weren't that common.

And so we said fine, we accept that 

logic but there are some job titles in which there's 

a clear excess risk and there were a significant 

number of cases, and I think we used a threshold 

of 30 mesotheliomas in that time period with a 

relative risk that was substantial, whatever it was 

I don't remember.
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And that included these mechanical, 

chemical, and industrial safety engineers. So, 

they had appreciable numbers of mesothelioma. 

What that meant was that this is the 

national data on mesothelioma, it meant that 

asbestos was widespread enough for those job titles 

across the country that you could expect that they 

would have significant asbestos exposure. 

And so we cited that to DOL and Paragon 

and Paragon came back, this has been an ongoing 

discussion that's gone on for a while, and they said 

we're not confident that the spectrum of activities 

or tasks that chemical, mechanical, and industrial 

safety engineers did across the country is well 

reflected in what they did at DOE.

We're not confident that the DOE 

chemical engineers actually did the same kinds of 

things that the overall U.S. chemical engineers 

did, and therefore, we don't think they should be 

included. 

So, we've discussed this before, the 

previous board, and Paragon might be right about 
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this but the question is, is there some evidence 

that we could look at that would allow us to 

actually decide whether this made sense or not.

And I just jotted down a couple of the 

ideas that came up when we discussed this I think 

in our spring meeting, which was actually look at 

EOICP claims for mesothelioma or asbestosis 

claims, those are also specific for asbestos, and 

see if we find these engineers.

Are there cases of chemical engineers 

that appear, or mechanical engineers or the like? 

It wouldn't give us a definitive answer and I don't 

know how easy it would be to do that, to sort by 

condition and then within condition to sort by job 

title because most cases, most mesotheliomas, most 

asbestosis cases will not be engineers.

And the alternative approach, actually 

if it was possible, again I don't know you can sort 

cases or claims this way, is to look at claims of 

chemical engineers and see how many times asbestos 

comes up, whether asbestosis, mesotheliomas, 

even lung cancer or whatever.
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Same for mechanical engineers. 

So, those were ideas that we threw out 

there in the spring and I just wanted to continue 

this discussion for a bit, whether we should 

consider if it's feasible pursuing this or whether 

we should just say, look, there's evidence we 

really can't gather that would advance this 

conversation any further, we'll just let it be as 

it is. 

I open the floor for discussion. Dr. 

Cloeren? 

MEMBER CLOEREN: I guess the first 

question is, is the database set up in such a way 

to allow for this to be done in an automated 

fashion, in which case it would make a lot more 

sense than trying to do it manually. 

CHAIR MARKOWITZ: I guess this might be 

a question for Mr. Vance. Is it even possible to 

identify, say, claims from chemical engineers or 

mechanical engineers? They are separated out at 

some DOE sites in the SEM.

MR. VANCE: The answer is no. 
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Our case management system where we 

collect information about the adjudication of a 

case going through a process collects lots of 

data-points but what it does not collect is the 

claimed labor categories for that individual 

employee.

That would be maintained merely in the 

documentation of the case file. 

As the claims examiner begins 

developing out the case, they would create the 

statement of accepted facts that lists out the 

labor categorization. 

But that's not going to be recorded in 

some way that we can quickly do any kind of 

analytical extraction from that case management 

system to identify those cases. 

CHAIR MARKOWITZ: The second related 

question is can you identify cases of mesothelioma?

MR. VANCE: Yes, that we could do and 

I think we've done similar kinds of -- when you look 

at the information that you're going to be looking 

at with regards to the collection of the most 
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accepted conditions, we do capture the ICD10 and 

the ICD9 code for the conditions that are being 

claimed and adjudicated.

So, we've provided that kind of 

information in the past. My only word of caution 

is just mesothelioma is a very high acceptance rate 

condition, we accept most of those cases. 

So, you also want to think about the efficacy 

of looking at something we have a lot of acceptances 

already on versus other conditions where maybe 

there's something we need to look at with regards 

to other conditions that are not as favorable as 

far as outcomes are concerned. 

That's just my side comment on that but, 

yes, change identify any kind of conditions that 

are claimed in our energy composition system, which 

is are case adjudication system, but we don't 

capture labor category. 

CHAIR MARKOWITZ: And on claimed 

conditions, asbestosis affects the lung tissue 

itself and requires generally a higher level of 

exposure to asbestos than, say, scarring of the 
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lining of the lung, the pleura.

I should know this but I don't remember. 

Do you separate out cases of lung asbestos from 

cases of pleural scarring caused by asbestos?

MR. VANCE: Yes, it's going to be 

dependent on what is diagnosed and identified by 

a physician. So, in other words, if a physician is 

saying pleural thickening, pleural plaques, that's 

what the diagnosis is, that's what the case will 

evaluate.

And then if it's a full blown diagnosis 

of asbestosis, that's what we would look at and we 

have a presumption for asbestosis in the presence 

of exposure to asbestos.

I think we do for pleural plaques maybe 

too. 

So, it really does depend on how the 

doctor is characterizing the diagnosis and that's 

what drives our case adjudication process, would 

be what does the doctor identify as the diagnosis 

through his or her clinical and diagnostic 

evaluation?
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MEMBER CATLIN: This is Mark Catlin. 

Just regarding the lack of job titles as a troubled 

category, could that be something that we consider 

recommending be added in? 

That seems to me like a really important 

way to use the data from this huge data set that's 

being gathered by the Department of Energy.

It reminds me of what we've gone through 

with COVID-19 and the CDC was not routinely 

gathering job titles for people getting COVID-19, 

and that became a huge problem.

So, just something for us to consider 

maybe recommending. 

CHAIR MARKOWITZ: Just to play this 

out, we could request mesothelioma cases but the 

question is what would we learn? 

They're probably not large numbers 

because it's a rare disease, but if we find that 

a few chemical engineers who are recognized as 

having mesothelioma, asbestos-related, then for 

them they didn't need a presumption because they 

made it, their claim was accepted. 
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The system recognized their exposure, 

they were a success. 

We could look at mesothelioma denials, 

we've learned that there probably aren't that many 

and if there aren't that many denials and if we find 

a couple of engineers there, how are we going to 

interpret that? 

Because frankly, not all engineers, 

mechanical, chemical, et cetera, are exposed to 

asbestos so maybe that claim position was correct. 

Dr. Cloeren? 

MEMBER CLOEREN: How about pleural 

plaque denials? 

CHAIR MARKOWITZ: You're recommending 

that because it's a more common outcome?

MEMBER CLOEREN: Pretty common. 

CHAIR MARKOWITZ: Still 

asbestos-specific. 

Dr. Friedman-Jimenez, you care a lot 

about causation, I don't know if you're listening 

at the moment. Is it possible to search for a given 

time period and tell us how many asbestos pleural 
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disease denials were accepted for a certain time 

period? 

MR. VANCE: Dr. Markowitz, you know 

based on your interactions that data requests are 

very complicated. I think the answer would 

probably be yes, we could get that based on whatever 

parameters you're looking at as far as decisions 

are concerned.

So, in other words, we manage temporal 

data about decision-making so it would be based on 

the timeframe for a decision that had been made, 

how many denials. 

So, in other words, if you had from the 

inception date of the program to the present how 

many final decisions relate to the denial for 

pleural plaques. 

And then we have to do a lot of 

statistical analysis because don't forget, over 

the lifetime of a case, you could have multiple 

final decisions that are denying something and then 

turning it into an approval.

So, there's a lot of effort that goes 
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into data analysis for this program. 

So, the answer is probably but we'd have 

to look at the details and make sure we clearly 

understand what the requirements are for data 

extraction, and then making sure that we can 

fulfill that request. 

So, we're generally pretty adept at 

saying what we can and can't do, depending on what 

you ask for. 

So, I think the answer to that question 

is probably but we'd need to understand 

specifically what the timeframe is and temporal 

requirements for that. 

CHAIR MARKOWITZ: We need to move on, 

we can put this into a Work Group. Ultimately, for 

all the effort questions, we can actually learn 

what we need to learn here, that's the question. 

I'm a little skeptical I think. 

If there are any closing comments or 

questions on this topic? Otherwise, I'd like to 

move on. I think it's late so let's do something 

fun and look at the Excel spreadsheets on the most 
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common conditions. 

Doesn't everybody think that's fun? 

Kevin, if you could bring up that? The Board 

looked at 2016 through 2019 the same data and what 

we're going to look at is 2019 to 2020. 

We don't really have to refer back to 

the older data, which I looked at. It was 

distributed to Board Members, it's very similar to 

the more recent time period. 

Some of that is due to overlap in time 

periods but some of that is due to the fact that 

the program hasn't changed all that much. The 

question is whether people can see this? 

If anybody who has a laptop wants to 

look at it, at whatever size they want. But let 

me walk us through here. 

First of all, the second column with the 

ICD10 description, it's the first column actually, 

don't take that too literally because actually, 

there's a range of ICD codes of diseases that's 

covered by this on each row.

The text description, whoever put this 
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together just picked one of the codes within the 

range. So, the leading claim-getter, which is 

basal cell carcinoma of the lip, that's not just 

of the lip.

It is basal cell carcinoma of the skin 

but it's not just of the lip. So, look for the key 

words in the ICD code list and you'll learn more 

than if you look at everything specifically.

We're looking at the top 20 claims, 

party claims, I assume these are mixed consequently 

and original claims. That's important because it 

explains some of the entities.

The first thing I think to look at is 

the total number of claims that when you go from 

1, which is over 3000, to 20 which is 225, it's a 

big range in the number of claims.

And I don't know what percentage of all 

claims this represents. Mr. Vance, some of the 

numbers you presented this morning, it sounded like 

there was somewhere between 8000 and 10,000 claims 

per year.

MR. VANCE: All I can tell you is when 
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I looked this morning it was 226 claims last week. 

That sounds about right. The number I was 

reporting this morning for the 226 was for the last 

reporting period from the Resource Center.

So, 226 is your average over the number 

of weeks per year is going to get you the number 

of new claims. It's a pretty good rate. 

CHAIR MARKOWITZ: 8000 to 10,000. So, 

we're looking at numbers over a two-year period but 

it probably exceeds 50 percent of all the claims 

submitted is my hunch. And by far and away we have 

skin cancer actually as number one, and second is 

COPD.

COPD may appear elsewhere because 

sometimes there's a separate listing for 

emphysema. I don't see that here but I wouldn't 

rule it out. 

And then we have other alveolar and 

parialveolar conditions, which we should probably 

translate as interstitial lung disease, is 

probably the most likely what that is.

And then number four, we're back to 
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basal cell carcinoma of the skin, which is for some 

reason just categorized differently by ICD code. 

It may be that it's a carcinoma site too but for 

our purposes it's not important.

And then we get into prostate, insomnia 

presumably is the secondary condition of a 

consequently condition. A person has an accepted 

claim for something else and insomnia is either due 

to treatment of that other condition or the 

condition itself.

And then asbestosis, pneumoconiosis 

due to asbestos, that may include the pleural 

variety, not quite clear. It may be the next line 

and if I looked up the ICD codes, that would give 

us the answer. 

Anyway, you can run down the list, 

there's asthma, there's chronic kidney disease. I 

find chronic kidney disease really interesting 

because I wouldn't have expected to see it much 

here. Maybe in a significant number of claims but 

I wouldn't expect all those claims to be accepted. 

But it may be that's a consequently 
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condition because of another claim accepted 

condition or a treatment of that condition, 

Parkinson's Disease. 

Diabetes, I don't know any agents that

cause diabetes but if you're on steroids for 

another condition you can get diabetes. So, that 

may be a consequently condition. 

So, that's in the number of claims and 

then if you look at the number approved, we get to 

whatever column it is, which is the Column I, 

percent approved. 

And if you just eyeball all 20, the 

majority of them are above 50 percent, some of them 

as high as 80 percent, pneumoconiosis, 80 percent. 

Vasomotor rhinitis, 80 percent, 81 percent, many 

around the 50 or 60 percent.

That could be looked at two ways, those 

are high approval rates but then it raises the 

question of who's not getting approved for those 

conditions and what's the difference between those 

two populations?

Skin cancer we discussed earlier today. 
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In the first row it's 20 percent, in the fourth row 

it's 26 percent. So, clearly people are getting 

compensated for skin cancers, not for UV radiation 

in relation to skin cancer.

And COPD, which is something the Board 

has discussed a lot in the past, 55 percent are 

being compensated for COPD, which I find personally 

surprisingly high because the DOL uses a narrow 

view of what causes COPD.

They limit it to specific agents such 

as cement, such as welding, not all that many that 

cause COPD, rather than a more I think modern view 

of gases, vapors, dust, and fumes, which exacerbate 

or cause COPD but not permitted under the EOICP 

statute, which requires specification of a 

specific substance.

And heart disease, 64 percent, there 

aren't that many toxic substances that cause heart 

disease, chronic heart disease, and yet we get 65 

percent and that may be the issue of consequently 

conditions.

I'm not sure what the scenarios are. 
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If we look at this again at some point we might want 

to try to separate consequently versus other 

conditions. Now, the other thing to look at and 

I'm really just talking us through this a bit is 

the reasons for the denial.

And you can see for most denials they're 

for negative causation. Actually, Kevin, if you 

could just move it over to the right so people could 

see the full reasons for denial?

The choices are medical information is 

insufficient, negative causation, survivor not 

eligible, sometimes employee not covered and the 

like. But by far and away for almost all of them, 

negative causation.

So, causation is really the issue. A 

little surprising medical information 

insufficient doesn't occur more often. This means 

the claims examiner is in fact successfully 

documenting the disease that the person is 

claiming.

The medical information may be hard to 

get but the proper medical information is obtained 
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and sufficiently so that they're confident about 

the diagnosis.

But negative causation really stands 

out as the dominant reason. Dr. Cloeren?

MEMBER CLOEREN: I have a question 

about the medical information insufficient. Does 

this represent the eventual disposition, so at the 

end of some development? 

So, it may be that medical information 

was insufficient but they worked on it and got it 

and --

CHAIR MARKOWITZ: These were claims 

that were denied. If I understand this correctly, 

the reasons for denial, the final decision, the 

recommended and final FAB decision was denial. 

MEMBER CLOEREN: So, we don't know 

whether it represents somebody sending back more 

stuff and it was still insufficient? It doesn't 

really give you an idea of the development angle 

of it. 

It could have been the Claimant just 

never responded to the request for additional 
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information or it could be the additional 

information still wasn't sufficient, we can't 

really tell from this. 

CHAIR MARKOWITZ: It wasn't in hand. 

Comments?

MEMBER ZABACK: I just have one 

question. You said that this represents 

individual Claimants, not events, not a 

consequential or a second diagnoses. Is it 

individuals or events?

CHAIR MARKOWITZ: No, these are 

claims. 

MEMBER ZABACK: Claimants?

CHAIR MARKOWITZ: No, these are claims 

so there could be an individual with multiple 

claims, I assume DOL will correct me if I 

misrepresent this. They're claims during that 

time period. 

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman, Can you hear me? 

CHAIR MARKOWITZ: Yes. 

MEMBER FRIEDMAN-JIMENEZ: I'm just 
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wondering why pneumoconiosis are only being 

approved at about 50 percent? There aren't too 

many other causes of pneumoconiosis that are not 

work-related. 

It requires a high exposure to 

asbestos, silica, or coal dust. And I'm just 

wondering what was causing the denials there? 

Unspecified pneumoconiosis denied for medical 

information and negative causation are fairly 

small numbers.

I can't see what else is to the right 

there but the other pneumoconiosis, again -- oh, 

employee not covered. All right, I guess that's 

an administrative denial. That just seemed a 

little strange to me. 

CHAIR MARKOWITZ: I see there's a 

column called Claims Pending and the question is 

whether the percentage approved includes claims 

pending in the denominator. But to your point, Dr. 

Friedman-Jimenez, there are actually two rows on 

pneumoconiosis.

One is the unspecified. 
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MEMBER FRIEDMAN-JIMENEZ: Yes, I see 

them both. 

CHAIR MARKOWITZ: And the other is four 

rows down due to silica. And both are at about a 

50 percent approval rate. That same question 

actually applies to both. 

MEMBER FRIEDMAN-JIMENEZ: Yes, I was 

asking related to both, I just couldn't see it all 

together on one screen. 

The second one especially seems to be 

administrative denials because they weren't 

covered, their employer wasn't covered at that time 

or something, I don't know. 

All right, that makes sense.

CHAIR MARKOWITZ: Ms. Whitten? 

MEMBER WHITTEN: Is there ever a 

situation where somebody is denied one of these 

loan conditions because they were part of, say, a 

lawsuit settlement or something like that? 

MS. POND: This is Rachel Pond. 

Your question is would we have denied 

because of a lawsuit? We would offset due to 
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lawsuits. So, people may not claim because they 

don't want it to be offset, they might claim a 

different condition instead. 

But if they claim the condition and it's 

been accepted as a result the lawsuit or a tort or 

state worker's compensation, we would be 

coordinating those benefits for them, we wouldn't 

deny as a result of that. 

CHAIR MARKOWITZ: Other comments? 

Let's look at the other tab, cancer, top 10. I 

don't know if you can blow this up at all and again, 

most denials for negative causation, so very few 

prostate cancers that's expected.

And it makes you wonder, actually, who 

is getting compensated for prostate cancer? And 

a third of lung cancers. Let's look at respiratory 

top 10. 

The least percent approved is about 50 

percent and here we see actually the last row is 

pleural plaque with asbestos so it is a separate 

183 claims but there were 673 claims for Row 3 in 

pneumoconiosis due to asbestos.
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Normally, you have more asbestos 

pleural cases than you have asbestosis cases. 

There's something a little peculiar about that but 

it may be the way they're being classified. 

I don't quite understand vasimotor 

rhinitis but that's okay. And let's look at 

neurologic. 

MEMBER FRIEDMAN-JIMENEZ: Before we go 

to neurologic, COPD concerns me because of a 

discussion we've had at previous Board Meetings. 

The main exposures that have been 

reported to cause COPD are VGDF, vapors, dusts, 

gases, and fumes, which by the statute don't 

qualify as toxic substances because they're 

multiple substances and not single identifiable 

substances.

The fact that negative causation is the 

predominant reason for denial concerns me and 

Rafael de la Hoz just wrote a very nice book chapter 

on occupational COPD in a new text on occupational 

medicine edited by Ki Moon Bang from NIOSH. 

But they couldn't really find many 
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studies that studied more specific exposures than 

VGDF. That's the most commonly reported exposure 

that's been epidemiologically associated and 

probably causally associated with COPD.

So, I'm wondering if we can get past 

this impasse of vapors, fumes, gases, and dusts 

being a reason for exclusion because it's not 

specific enough when actually quite substantial is 

the OPD literature now really mainly is associating 

COPD with that non-specific combination or group 

of exposures. 

Not necessarily mixed exposures, just 

not specifically identified because of the nature 

of the exposures themselves that the dust is sort 

of sometimes not identifiable. 

Can you think of any way we can move past 

that and maybe get that reconsidered? I don't 

remember the exact language in the statute but the 

objection from the Department of Labor was that 

VGDF is not a specific toxin so it can't be 

considered a toxic cause of COPD. 

MS: Dr. Cloeren?
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MEMBER CLOEREN: I was just reacting 

that sometimes you can't characterize it but the 

literature does support the synergistic effect of 

combinations and that's not really reflected in the 

way the claims are adjudicated. 

CHAIR MARKOWITZ: What's so 

interesting is that the statutory standard 

includes aggravation, contribution, at least as 

likely as not. They're very lenient and 

Claimant-generous standards. 

Any dust, vapor, gas, or fume can 

exacerbate COPD if it's originally caused by 

smoking. 

So, that part of it, that statutory 

language, is very favorable, the problem is, as the 

Board learned earlier on when we raised this in a 

big way, was that the statute also says toxic 

substance and in many instances the particular 

toxic substance wasn't identified.

So, personally I think given the 

stalemate we arrived at before, this might fall 

into the takes an active Congress kind of category 
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and normally, we'll see how we do with the three 

borderline BeLPTS because that should be an easy 

thing.

It affects very few people relatively 

speaking, important to those people but relatively 

few. Whereas COPD and vapors, gas, dust fumes, 

VGDF affects a lot of people. 

So, as hard as it is, frankly, if the 

statute is off base and has clearly broad 

intentions of covering all kinds of occupational 

illnesses and all kinds of exposures, maybe there 

is some language that could at least be fashioned 

that would address the issue, whether it could go 

anywhere is something else but at least we could 

fashion some language that might be useful.

And by the way, the percentage 

approved, that's erroneous, it's including the 

pending claims. If you look at the first row of 

COPD, there were 900 approved and there were 400 

denied. 

So, if you exclude the pending claims, 

900 and 400, that means that over two-thirds of them 
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were accepted and approved and we're looking at 

only a 54 percent approval rate. 

So, these approval rates are 

underestimated because they're including the 

pending in the denominator and we don't know, some 

may be approved, some may not. 

In any case, do people want to look 

through a few other of these tables here? Dr. 

Cloeren? 

MEMBER CLOEREN: You were interested 

in the kidney disease?

CHAIR MARKOWITZ: Sure, let's go to 

renal here.

MR. VANCE: And Dr. Markowitz, really 

quick on the prostate cancer because this one has 

been a fascinating category, the reason you're 

seeing prostate cancer approvals is based on the 

provision that allows a physician of the Claimant's 

choosing to provide an opinion of causality based 

on that aggravation and contribution criteria. 

So, we're seeing a lot of cases right 

now coming in where you have a Claimant physician 
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looking at exposures to asbestos and cadmium. 

Now, those have been looked at and I 

don't think there's any definitive health effect 

that's established from a pure causative 

standpoint, but these physicians are saying they 

have epidemiological evidence in their mind 

suggesting that asbestos or cadmium could be 

contributing to the onset of prostate cancer. 

So, that's where you're getting your 

approvals on prostate cancer, and some of these 

conditions, like the rhinitis, are probably 

natural additions to pulmonary disease as a 

consequence.

So, in other words, if I've got COPD or 

some other type of respiratory disorder, it's very 

common for most people to come in with a complement 

of problems like chronic rhinitis or other types 

of sinus kind of problems. 

CHAIR MARKOWITZ: That's interesting. 

Kidney disease we're looking at. Yes, the 

negative causation is almost always the reason for 

denial. Dr. Cloeren?
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MEMBER CLOEREN: I know there are 

limitations with the database. Would it be 

possible in this kind of report to designate which 

ones are consequential or secondary versus the 

primary condition? 

MS. POND: I'm not sure we can separate 

those out. 

The way our decisions are categorized 

in the database just says denied or accepted 

sometimes. But there might be an indicator for 

consequential so we'll have to look into it but it 

might be possible. 

CHAIR MARKOWITZ: And we can look at 

CBD. I'm sorry, CBD is Part B I think. We're 

still on kidney disease. If you go down to the 

bottom, CBD, this is Part D claims. 

And so that percent approved of ones for 

which there's a decision should be 80 percent, 80 

percent are approved. And most of the ones that 

are denied are because the medical information is 

insufficient, it's not a causation issue. 

If we go to beryllium sensitivity, very 
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high rate of approval and then chronic silicosis, 

pneumoconiosis due to silica, CS, is that what you 

have up there? That's sensitivity. 

This is Part B. And actually, it 

should be an 85 percent approval rate if you exclude 

the claims pending for Part B. So, this is Divada 

and then Chitqa. These are Part B claims for 

silicosis.

Finally, let's just go back and look at 

neurologic just so we can look at everything. Dr. 

Mikulski did a lot of work on Parkinson's Disease 

earlier on. The number one cause of neurologic 

disease is insomnia. 

A very high rate of Parkinson's 

approvals actually, it's over three-quarters, over 

80 percent. Dr. Bowman?

MEMBER BOWMAN: Just to comment on the 

Parkinson approval, there's a lot of metal 

exposures broadly speaking and metals have been 

linked to Parkinson's Disease. So, I think it 

pretty easily reaches the standard of as likely as 

not. 
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CHAIR MARKOWITZ: When we looked at the 

SEM, I'm trying to remember, Merick, you may 

remember, aside from manganese and acute carbon 

monoxide poisoning and then whatever was made from 

manganese, so it would include steel and some 

others, there weren't that many toxic substances 

in the SEM.

I think we helped add a couple to the 

SEM but there wasn't a broad recognition of metals 

actually. 

I'm not talking about reality, I'm 

talking about what the SEM looked like actually. 

So, this is higher than I would have expected 

actually given what the SEM looked like for 

Parkinson's. 

Question then, it's a fair amount of 

work for the Department to come up with this kind 

of data for us, thank you very much because it's 

the end of the day to see what the presenters of 

people who have approved claims and what they're 

being approved for and what the problems are and 

where presumptions might help. 
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It's very helpful to look at these kind 

of data. Was there a next step on any of this that 

people thought would be worth pursuing aside from 

correcting the percentages approved?

Dr. Cloeren? 

MEMBER CLOEREN:: I think to make the 

most sense of it, we'd need things that the database 

can't do currently. 

So, I'm curious how hard an ask it would 

be to add occupation fields and the exposures that 

were accepted as connected to the claims for 

future, I don't mean next week, but as it builds.

MS. POND: The database is really used 

so that claims examiners can manage their case 

load. So, adding those sorts of items, it might 

be something we could do but that's more for 

research and that sort of thing. 

Right now it's kind of established and 

we couldn't go back in time, it would be really hard 

to go back and fill in all of those. And often 

times, especially when it comes to job categories, 

they're not real clear-cut.
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They could be really a drop-down or 

there's numerous pseudonyms and it especially when 

it gets to the exposure themselves, it can get 

really complicated or there could be numerous ones 

of them.

So, we are always looking to -- we might 

be modifying our system in the next year or so, 

we're going to be combining it or maybe changing 

it, looking at how it relates to other systems 

within OWCP. 

So, it's never out of the question. It 

would be a very large ask though probably. 

MEMBER BOWMAN: Just a related 

question, you had mentioned and were just 

describing the challenge for linking it to job 

category. What about just to site? 

Is that already in there?

MS. POND: The sites are captured, 

whether we can run reports on them, that's where 

it gets more challenging because people work at 

multiple sites and some were verified, some aren't 

verified. 
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So, we put in that they claimed they 

worked there, and then we have to put in whether 

they verify they worked there, and that's where 

those kinds of nuances get a little tricky to run 

a report based on. 

It is captured in there and we can run 

reports in general. 

Obviously, we have statistics on where 

persons filed a claim and that sort of thing but 

how detailed those reports become is where it may 

be a little bit challenging. 

MEMBER BOWMAN: Just to continue on 

from that, it seems like in terms of, Steven, you 

were asking about next steps from this data, it 

seems an important next step to take is by looking 

at the data to assess whether or not there's any 

of these, particularly the high-frequency, health 

conditions that seem to be either under or 

potentially over in terms of expectations in terms 

of identifying claims for which it would be helpful 

to the Department to get information from the Board 

about how to make those more accurate. 
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But to do that, we have to put 

expectations on what these health conditions we 

might expect to be elevated in this population and 

for which we have very little -- we have some 

information, we know sort of what some of the sites 

are doing and sort of what might be expected health 

conditions that could come up because of the nature 

of the work.

So, I think a next step is to look at 

this data and see if anything jumps out at least 

in a blatant way that is really low or really high. 

And maybe that's something we could look at it but 

I think that would take that sort of analysis. 

CHAIR MARKOWITZ: I'm not sure what you 

need to point out which percentage of acceptance 

claims are really high except out of curiosity, but 

the ones that might be unexpectedly low, Dr. 

Friedman-Jimenez, for instance, mentioned the 

pneumoconiosis at 50 percent.

So, yes, that might be something we can 

think about. 

MEMBER BOWMAN: And in that, you had 
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talked about potential future for additional 

examinations of cases, we might based upon the 

Board's looking over this data prioritize certain 

health conditions. 

CHAIR MARKOWITZ: It's 4:40 p.m., we 

have a public comment period in five minutes so 

we're going to take a five-minute break and then 

we're going to resume at 4:45 p.m.

Carrie, how many public commenters do 

we have? Okay, thanks. 

(Whereupon, the above-entitled matter 

went off the record at 4:38 p.m. and resumed at 4:45 

p.m.) 

CHAIR MARKOWITZ: Okay, we'll resume 

now. We have our public comment period for 45 

minutes. 

We have six presenters, it may be in the 

middle of the public comment period it's possible 

additional people will come forward so I want to 

save a couple minutes for them.

But if the people who are on the list 

could hold themselves to roughly five or six 
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minutes, that would be great. I apologize in 

advance but sometimes I may have to interrupt you 

in order to stick to that schedule. 

We'll start first with Sandra Thornton. 

MS. THORNTON: Hi, sir, thank you for 

letting me speak today to the Board. My name is 

Sandra Thornton, I'm the POA.

I thank everybody for their hard work 

but mostly I think Dr. Markowitz and the WIPP 

program because without him in that program, my 

brother-in-law would still sit with everything 

denied. 

He's had two lung disorders be approved 

already and so altogether, there have been 25 

claims, 2 approved, 21 sat unprocessed, wrongly, 

because instead of our claim forms they used the 

Paducah Resource Center's unsigned 

never-submitted form, and then 2 additional items 

after that.

His wage loss sits deferred at this 

point, his impairment hasn't been released yet even 

though it's just been decided. 
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So, what I found in dealing with this 

program since June of 2020 was as hard as you guys 

work and as hard as things have changed and improved 

over the last 20 years, you're still sitting with 

big problems.

Records aren't being read, personnel 

records, medical records, surgeries. The Paducah 

Phase 2 SEM isn't being used, the IH and the CMC 

reports that have been found in error have never 

been corrected. 

So, his 23 other claims that will go 

through that, we're going to have to fight the 2019 

and 2021 wrong IH and CMC conclusions, because I've 

been waiting on that office to correct them.

What boggles my mind with this program 

is the fact that this is a nuclear worker, Walmart 

worker and these case managers are not taking 

nuclear toxins which is proven that he worked in 

there picking things like they evaporate really 

quickly or things like cement, which have no 

long-term for his particular job.

And so plutonium, PCBs, uranium, 
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depleted uranium, none of those items are picked, 

that he was working in every day without a 

respirator for over two years. 

And so the IH and CMCs, they never get 

the clear picture because they don't have the 

personnel records, they don't have the testing, and 

then of course they're going to come out with the 

wrong conclusions.

So, the high beta and gamma radiation 

again was never told to these people that are 

clearly in his records. So, it's kind of 

confusing. 

The SEM Phase II at Paducah, you have 

these things that he was working in but when you 

jump over to what medical problems were caused by 

depleted uranium, you don't give any. Plutonium, 

you don't give any.

So, the case workers, event managers, 

even though they're trying really hard, how could 

they pick these items anyway when there's no 

medical consequences. 

And to be in research studies, military 
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research studies have shown there are consequences 

to these things. So, again, I'd like to know when 

the IH and the CMC have people that are going to 

correct his reports?

I'd like to know when the EEOIC is going 

to start doing what Congress mandated this program 

to do in 1989 and 1990 timeframe to say you have 

to flex with these because it's Cold War veterans 

because records were destroyed, not kept, et 

cetera, and so forth.

For instance, right now in 823 Fiscal 

Lane, he had all his teeth removed at age 20, we 

have lycoma that was surgically removed too. You 

have the WIPP program found this hard.

So, I have the personnel records, I have 

the medical records, I have his sick paid leave 

there and I have the research studies that will back 

all these things up yet the EEOIC program expects 

me to pull a rabbit out of our hat 41 to 49 years 

after the fact to say by the way, he had all his 

teeth removed and it was documented he was 20 years 

old at Paducah.
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You have to come up with a doctor that 

isn't dead already because we're not going to 

accept his lifelong doctor that knew his care, knew 

his medical problems, knew his job, knew Paducah, 

provided the research.

We're not going to accept that 120-page 

packet letter in September of 2020. You come up 

with new doctors on every single one of these. So, 

what I'm suggesting is strictly to do what Congress 

said.

You've got the personnel records, 

you've got to the medical records, you've got the 

test, you've got the sick leaves, you've got the 

research, you've got actually everything other 

than a brand-new doctor's letter on top of 

everything on one of those diagnoses in 2022 where 

you can flex award these, just like however it 

directed the program to do.

So, again, I've got to be quick because 

I'm time-limited. I'd like to know where the DOL 

DOE study is in the depository for all these kids 

with their ages, their diagnoses, their jobs, the 
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dates from Paducah. 

You collected them, I found the Freedom 

of Information Act on these things. 

I'd like to know when ORAU is going to 

unblock all the Paducah studies that they're not 

releasing that's online that you won't give them 

the researchers, you'll only give them the medical 

doctors, you don't give them to the employees that 

actually work there that these studies are about 

the red findings. 

So, still today those are blocked. 

I've always told you from day one of jump in into 

this program June of 2020 to help my brother-in-law 

that I'm trying to help every single one of you no 

matter where you work to make this program better.

But there's holes and when you give 

constructive feedback, the system doesn't correct 

itself. And so finally, I started calling myself 

a whistleblower, and unfortunately, by doing that 

and meeting with Congressional leaders, my 

brother-in-law's claims got on a wait of 13 months 

because now I'm a problem child.
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Well, that's not the case, I've said it 

from day one. I'm trying to connect all the dots. 

But right now you have Cold War veterans running 

around all across the United States, five different 

states I had to locate all these records.

And the evidence is there, over 3000 

pages have been where there's a good feeling. 

There's absolutely nothing that nobody would ever 

claim that wasn't valid. I wouldn't allow it and 

neither would my brother-in-law.

But these people are dying and at some 

point, and I'm sorry about my voice, I've got a lung 

problem from Iraq and Afghanistan so it's breaking 

up. 

But at some point, for these Cold War 

veterans who have already lived with this, suffered 

with this, never had the prevention, early 

intervention, knowledge, and they're sick and 

they're ill and they're old.

And we're jumping through hoops and I 

get that you have a process and there's a checklist 

you've got to check them off but it's not working. 
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You processed claims last year on an 

unsigned form that I had to go to a hearing for, 

had to say that all again and come out with an 

outcome when I'm saying all along you're doing the 

wrong thing. 

So, three years five months has been 

wasted on a lot of this stuff and we're tired. I 

did the VA system and the DoD system and up on 

Capitol Hill for all those different government 

things but let me tell you, some parts of this 

program is much worse than both of them combined. 

They shouldn't be that way and I think 

you guys have good intentions but there's got to 

be a correction and a listening. 

I'm sorry, I hate complaining, I hate 

bothering you all but there's got to be that 

common-sense piece for these Cold War veterans but 

it's not there. Again, I'm sorry. 

CHAIR MARKOWITZ: No problem, thank 

you very much. Our next presenter is Donna Hand. 

MS. HAND: Can you hear me? 

CHAIR MARKOWITZ: We hear you. 
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MS. HAND: Yes, thank you very much. 

A little bit about me, I've been 

involved in this program since 2002, I have been 

representing other Claimants since 2007 and I've 

been representing people from Rocky Flats, 

Hanford, the Cleveland District Office, Ohio, 

Savannah River, Oak Ridge, Pinellas Plant of course 

and everything.

So, I've been across the whole program 

in Paducah. I have sent two different emails to 

the Advisory Board, the first one in regard to 

beryllium LPT. 

The actual statute in the regulation 

only requires an abnormal beryllium LPT, which is 

just one.

Because at the time that this program 

was done, DOE had already established beryllium 

registry. 

They had required two abnormal and in 

2010 we went to the beryllium conference, that was 

brought up, that this program only requires one 

abnormal where the DOE registry requires two.
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But they never defined what was 

abnormal. So, out of the six cells that you get 

on a beryllium LPT report, we only require one of 

those six cells to be abnormal. 

Then, as you know, OSHA became a new 

regulation and DOE also put out a new handbook 

regarding the labs to do a different type of report 

on the beryllium LPT, and that's where you start

getting the borderline. 

So, therefore, you can put in the 

borderline without really changing the statute 

since the statute never discussed what an abnormal 

beryllium LPT was. 

So, I gave you a copy right out of the 

statute, right out of the regulation as well as the 

public comment by National Jewish which says the 

test is very specific, meaning that if your blood 

reacts to beryllium, nothing other than beryllium 

could have caused this reaction.

So, again if there's a reaction in any 

of the cell, then you're reacting to beryllium and 

it doesn't say it has to be a severe reaction, it 
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just has to be a reaction, just like a pulmonary 

function test.

It doesn't have to be as severe. It has 

to be an abnormal pulmonary function test. 

And I also have an issue whenever a 

Claimant has sarcoidosis diagnosed before 1993 by 

the plant physician and so we claim a pre-1993 

chronic beryllium disease.

But in his reg care he also has pleural 

infusion and the contract medical consultant says, 

oh, we're going to give him pleural infusion and 

exposure to asbestos and completely ignore the 

sarcoidosis. 

So, why is pleural infusion also a 

characteristic of chronic beryllium disease? 

And if you look at the SEM, they have 

nothing for beryllium and there's no symptoms for 

beryllium and cough and shortness of breath is also 

a symptom of beryllium. 

Also, in the policy procedure manual, 

they say you cannot use an upper respiratory 

infection to accommodate the pre-1993 criteria 
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even though it's tested for, treated for, or 

diagnosed with a chronic respiratory disorder. 

Well, an upper respiratory disorder can 

be an exposure, an acute exposure, to beryllium 

because even all the medical reports show that an 

acute exposure to beryllium is a two-immunization 

allergic reaction.

So, knowing that they're working at 

that type of facility and having exposure to 

beryllium, it could be viral or it could be exposure 

to beryllium or any other respiratory process. 

So, these are some issues that I have 

some questions at the end of those reports as well 

as represents to the DOE handbook that just came 

out in 2019, everything, and as you well know, the 

new OSHA regulation.

The other issue regards the significant 

factor. There is nowhere in the statute that says 

you must have a significant level or a specific 

toxin, it only requires significant factor.

And in 2006 OWCP defined that 

significant factor as the statute mandate in Part 
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E to interpret the significant factor as including 

any factor. And I even quoted the volume and it 

was December 29, 2006. 

So, I don't understand why you keep on 

using level and specific toxins when that is not 

required in the statute. Policy is not binding, 

policy cannot be binding, and so the statute is 

binding and it does require that. 

So, you have case examiners sending the 

files to the IHs for the significant level when the 

acts don't requires these levels. 

Why is the proof of exposure 

established in the regulation as saying the 

employee come in contact with it?

And that's not just labor category, 

it's also performing his work duties. So, while 

he was performing the work process, while he was 

working in that particular building, did he come 

in contact with that toxic substance?

Because you just cannot go by labor 

category and a lot of these sites, they would 

exchange work duties. 
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If their job duty was going slow, they 

would go over and help train work on another project 

at a different job. 

And in that same building, they may only 

have four air handles so they would recircle the 

same air and I know for a fact in Pinellas it was 

a continuous-flow production line and they didn't 

go all the way to the facility.

It was like a big warehouse. So, a lot 

of these buildings, it wasn't a confined air space 

type building. 

And then you go to the site exposure 

matrices, these were site profiles that were 

supposed to be exposure assessments of the facility 

that identified the toxic substances or processes. 

And that was in the statute itself. 

The definition of a toxic substance, as John Vance 

said, is any material that has the potential.

 So, it doesn't have to definitively 

cause or contribute or aggravate, does it have the 

potential to do that? 

So, you have a significant factor which
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means any factor and does that toxic substance have 

the potential?

That's the standard that the CMCs, the 

IHs, the case examiners, and the final adjudication 

branch is supposed to rely on. Again, the 

additional site exposure matrices can be used by 

the tiger team report or the environmental reports.

I know for a fact that the Pinellas 

Plant 1997 environmental close-out report lists 

over 5000 toxic substances, list their areas, lists 

their processes of what was done there.

The site exposure matrices refuses to 

add in radiation or cancer because they said that's 

NIOSH. However, we know the cancer is a 

combination of radiation and chemicals. 

Uranium can be soluble and insoluble 

and each one has a different health effect and the 

specified cancers, the definition of the specified 

cancer on Number 6 of that is specified diseases, 

that's in Paragraph D2, 3, and 4 of this Section 

B. 

The physiological condition or 
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conditions that are recognized by the National 

Cancer Institute under those names or nomenclature 

or under any previously accepted or commonly used 

names or nomenclature.

Rachel Pond issued a full attendance, 

these are not going to those, to the National Cancer 

Institute. 

However, by law, we can still do that 

and like CLL, it's a physiological nomenclature of 

a leukemia, so therefore, they should be designated 

as a special exposure cohort cancer. 

CHAIR MARKOWITZ: If you could wrap up that 

would be great. 

MS. HAND: I sent this earlier on and 

it is all sent to you along with questions. So, 

thank you very much for your time. 

CHAIR MARKOWITZ: Thank you. Ms. 

D'Lanie Blaze?

MS. BLAZE:: Thank you. I'm D'Lanie 

Blaze with CORE Advocacy. 

I provide authorized representation to 

Claimants who are affiliated with Santa Susanna 
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Field Laboratory and its associated work sites, 

Canoga and De Soto.

I want to talk a little bit about the 

idea of expediency in the claims process and how 

that relates to the value of institutional 

knowledge that solicitor Amy Leefer briefly 

touched on earlier today.

Institutional knowledge is vital to the 

claim adjudication process and to the ability to 

effectively use the site exposure matrix or the 

SEM. 

Now, up to 2018, institutional 

knowledge that had been acquired by regional 

district offices was pretty impressive and up to 

that point, the District offices had maintained 

jurisdictional purview of claims associated with 

specific work sites. 

So, for example, until 2018, the 

Seattle District Office had maintained 

jurisdictional exclusivity for claims associated 

with sites in the Western United States like 

Hanford, Santa Susanna, Nevada test site, et 
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cetera. 

So, the Seattle claims examiners had 

become quite familiar with unique challenges that 

face Claimants at these particular sites, almost 

like a mosaic effect. 

The claims examiners had been assigned 

cases associated with a limited number of specific 

sites and they could apply what they had learned 

from past claims with respect to understanding work 

site history, the interpretation of employment 

evidence, and recognizing the significance of 

certain records. 

They knew what to look for and they had 

gotten to know their respective work sites pretty 

well. 

The importance of this cannot be 

understated because across the nuclear complex and 

throughout its history, private contractors were 

not held to standardized record-keeping practices 

or even job classification schemes.

Moreover, the DOE programs routinely 

changed and so did the numbering schemes for 
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various buildings located at the sites along with 

corporate successorship and contracts. And so 

this is a labyrinth. 

Still using Seattle as the example, a 

claims examiner would typically approach a claim 

with usually some awareness of these important 

details that are relevant to how a site operated, 

inclusive of issues resulting in worker rotation 

between various areas of a work site or even between 

work sites that are related and that function 

jointly under the same contracts with the 

Department of Energy, and job titles or labor 

categories that could overlap to create specific 

exposure risk scenarios.

This knowledge enabled claims 

examiners to quickly assess the DAR and to 

recognize significant information. It provided 

them with a basis of understanding that was 

sufficient to conduct a comprehensive and thorough 

search of the SEM. 

With this institutional knowledge, 

they knew what search criteria to plug in, they knew 
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the questions to ask and how to cross-reference 

information in the SEM in order to get the most out 

of it. 

But in 2018 the round-robin approach 

was implemented. Work claims are now sent to any 

District office around the country, this is 

effectively compromised valuable institutional 

knowledge and it's increased the likelihood of 

errors in the claims adjudication process. 

Now a claims examiner is likely to be 

assigned a claim for a site they've never even heard 

of, they've never reviewed a DAR from that site, 

they don't know what unique challenges the workers 

may face at that site, what procedural guidance has 

been issued or what's applicable.

They don't know what filters to apply 

to the SEM because they're unfamiliar with the 

labor category aliases for that particular site, 

the shifts in the building nomenclature and 

function that have occurred over various eras of 

operation.

This is creating problems that result 
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in inappropriate recommended decisions and once 

those are issued, it initiates a whole new 

administrative process, the need for a final 

adjudication branch hearing to object to a 

recommended decision can add a year or more to the 

claims process. 

John Vance touched earlier on a need for 

more specific information from the Claimant but 

let's remember that Claimants often can't provide 

that kind of detail because sometimes they're 

survivors, they're not employees.

And historically, survivors know very 

little, they're relying on claims examiners who 

understand the site and the DAR and can effectively 

navigate the SEM.

So, adding to this issue is the fact 

that the SEM is now apparently being streamlined 

and refined. 

But we're seeing specific information 

vanish where job titles and labor categories with 

well documented exposure risks now appear to be 

rather safe jobs as related toxins and locations 
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where these jobs were performed appear to have been 

removed. 

In the interest of time, I'll follow up 

with the Board with some examples of SEM search 

results that are really concerning, and when 

they're combined with this lack of institutional 

knowledge resulting from this round-robin claim 

disbursement to District offices, there's some 

consideration for the Board.

Perhaps the Board can consider making 

a recommendation to reinstate the jurisdictional 

or regional purview of the District offices to 

their original condition. 

At this point, I'm not really sure what 

the answer is but we should keep in mind that in 

order for information to be added to the SEM,

extensive documentation is required. 

Therefore, in order to justify the 

removal of that information, there should be an 

equal or greater amount of documentation that 

contradicts the previous information that was used 

to add it. 
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I find the decline in specificity in the 

SEM to be quite troubling and I'll follow up with 

the Board on this issue with written comments. I 

appreciate your time, thank you. 

CHAIR MARKOWITZ: Our next speaker is 

Stephanie Carroll. Ms. Carroll? Next is Mr. 

Robert Rothe? Is Mr. Rothe or Ms. Carroll there? 

MS. CARROLL: Hello, this is Stephanie 

Carroll. I was actually told to hit star-six to 

unmute myself but I tried pound-six and that 

worked. 

Anyway, I'm Stephanie Carroll, I'm the 

authorized rep specializing in claims for chronic 

beryllium disease. The bulk of our success has 

been in the approval of chronic beryllium disease 

under RP with negative and borderline test results.

I am offering another perspective that 

you may want to consider regarding this borderline 

issue. 

I have concerns about supporting a 

change in the language of the act that could lead 

to unforeseen circumstances.
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I propose that a borderline test result 

is abnormal and meets the clear language of the act. 

The act reads, quote, beryllium sensitivity is 

established by an abnormal beryllium lymphocyte 

proliferation test performed by either lung or 

cells, end quote. 

Third, the act beryllium blood test 

findings by Dr. Lee Newman described one high 

simulating index on the results as abnormal. He 

found this as abnormal before our program was 

enacted.

This was qualify under the act. It was 

not borderline. Borderline was not used before 

this act was created. Later, the abnormal 

findings would be referenced findings would be 

referenced as borderline abnormal.

Now an abnormal stimulating index is 

referred borderline and no longer abnormal. This 

has resulted in the denial of countless claims. 

If a physician determines that one high 

stimulating index is abnormal, it would meet the 

criteria for beryllium sensitivity under the clear 
360

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language of the act. 

I believe this designation, the 

borderline designation, is the problem and fear and 

changes in the act because if anyone from the 

program has any input on the act, you never know 

what can happen once the language gets changed.

It could make it harder to get approved 

under this program. So, I'm very concerned about 

that change. And regarding the site exposure 

matrices, this study consists of a repository of 

Department of Energy documents supporting exposure 

on the site.

The EEOIC refers to their data in 

support of the sentence without reference to its 

origin, meaning that what supports the SEM are all 

of these documents that were turned over by the 

Department of Energy by mandate under this program.

The Department of Energy provided 

contemporaneous documents in support of toxic 

exposure on the site. It is confusing when toxins 

are removed from the SEM after they had made the 

cut and then used to approve claims over the years. 
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It makes it unfair because if you apply 

for compensation years ago when a certain toxin was 

in the SEM, you may have been approved but years

later, after whittling down the SEM, you may not 

get approved.

So, your entire approval is dependent 

on when you apply for the program and this is 

unfair, it's not consistent with. I respectfully 

suggest the document needs to remove toxins from 

the site exposure matrix be reviewed by the Board. 

Prior to this site exposure matrices 

being made public, it included references to the 

Department of Energy documents in the Department 

of Labor Library that supported data included in 

the SEM.

The NIH when they did their review of 

the site exposure matrix, they were never told

about all of this documentation, we never even knew 

the SEM completed those records.

Any questions you may have concerning 

source data in support of the SEM should include 

those documents. 
362

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Example, I'm going to give you an 

example, I've received record files that are 

sometimes 1000 pages long and they include site 

exposure matrices searches that were performed 

many years ago. 

So, I can receive some results that are 

from 2006. So, an example of one of those results 

is chemical operator at Rocky Flats. 

I'm reading this from 2006 and there are 

references named in this document and under the 

references it includes the names of the documents 

and an example would be Rocky Flats Process 

Descriptions, and it would include a DOL library 

number and the number just for that one document 

is DOL-060067. 

These references were removed 

arbitrarily from the sentence when the SEM became 

public, so no one in the public would know that 

there are all these documents that support each of 

the pieces of data that are found in the SEM.

Perhaps the Board can request an index 

of the library documents for the Hanford site. 
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Considering there are so many Hanford experts on 

the Board, they may be interested in seeing what 

those documents consist of. 

It would be of interest to see what new 

documents have been received by the Department of 

Labor that refute the inclusion of toxic exposure 

data used for years to approve claims. 

You can compare what documents are they 

using now to refuse the documents that have 

supported certain toxic exposures in the specific 

buildings, et cetera. What are they using to 

refute that? 

What is the scientific validity of this 

new data that they're saying they've got to whittle 

down? 

I believe the SEM library and its index 

can be invaluable for any review of the SEM and I 

respectfully just suggest that would be an area you 

could look to to determine if the removal of certain 

substances from the SEM is valid. 

And that library I'm sure was 

transferred over to Paragon when they took over, 
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but they are DOL documents and they have been 

cleared by the Department of Energy, because you 

can't let claims examiners without clearance 

review documents that could help security issues. 

 So, there shouldn't be a security issue 

with library and at least you should be able to get 

the index of all the documents in a library because 

the SEM references them in a very orderly manner.

It shows the DOL library number, it has 

the number and the name of the document that 

supports each part of the SEM. So, that's all I 

wanted to comment on today and I so appreciate the 

work you do. 

Thank you very much. 

CHAIR MARKOWITZ: Thank you. Do we 

have Mr. Rothe? No. 

Okay, unless there is anybody else who 

wants to speak, I think we'll close the public 

comment session. It's 5:25 p.m. so the Board will 

adjourn for today and we will resume tomorrow at 

8:30 a.m.

We're going to start off hearing from 
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Mr. Greg Lewis, Department of Energy, about how the 

Department of Energy provides documents, 

information, exposure information, employment 

verification and the like as part of the claims 

evaluation process.

And also I think a little bit probably 

about the former worker program. We'll start on 

time and we'll finish towards the end of the 

morning. Any questions? Have a good evening. 

(Whereupon, the above-entitled matter 

went off the record at 5:22 p.m.)
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