UNITED STATES DEPARTMENT OF LABOR 

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH 

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SUMMARY MINUTES 

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WEDNESDAY 

SEPTEMBER 4, 2019 

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 The Advisory Board met telephonically at 1:00 p.m. 

Eastern Time, Steven Markowitz, Chair, presiding. 

MEMBERS 

SCIENTIFIC COMMUNITY 

JOHN DEMENT 

GEORGE FRIEDMAN-JIMENEZ 

MAREK MIKULSKI 

KENNETH SILVER 

MEDICAL COMMUNITY 

MANIJEH BERENJI 

STEVEN MARKOWITZ, Chair 

CARRIE A. REDLICH 

CLAIMANT COMMUNITY 

KIRK DOMINA 

RON MAHS 

CALIN TEBAY 

DESIGNATED FEDERAL OFFICIAL 

DOUG FITZGERALD 
Call to order

Mr. Fitzgerald called the meeting to order at 1:11 p.m. Eastern 

Time. All members of the Board were present with the exception 

of Member Pope. 

Review of Public Comments 

Chairman Markowitz reviewed several public comments received by 

the Board. Ms. Vina Colley submitted comments regarding 

exposure to neptunium at the Paducah Gaseous Diffusion Plant. 

Chairman Markowitz requested that DOL acquire any new 

information on neptunium at Paducah from the Department of 

Energy, update the SEM if necessary, and advise Ms. Colley to 

submit any additional information to the SEM. 

Mr. Robert Rothe submitted comments about toxins missing from 

the SEM for Rocky Flats. Although there was some relevant 

information in the SEM, Chairman Markowitz requested that DOL 

obtain any new information from DOE or Mr. Rothe, update the SEM 

if necessary, and inform or remind Mr. Rothe of the standard 

procedure for submitting information to the SEM. 

Mr. Cody Wetir submitted a comment about removal of a 

presumption from the Procedure Manual. Dr. Markowitz noted that 

the he Board previously made the same observation and has 

requested an explanation on the background and impact of this 

change. 

Review and follow-up on Advisory Board Action Items from April 

2019 Meeting 

1. In previous versions of the Procedure Manual, it was 

assumed that, between 1957 and 1996, certain job titles had 

significant but low exposure to asbestos and that everyone 

else at the facility had some exposure during that time 

period. This section was removed from the most recent 

version of the Procedure Manual.

Rachel Leiton, Director, Division of Energy Employees 

Occupational Illness Compensation (DEEOIC), said a determination 

was made that an IH would review claims on a case-by-case basis. 

DOL recognizes the impact of the change and will clarify the 

issue in the next version of the Procedure Manual. 

2. The Board would like to be able to refer to DOL specific 

issues identified in their review of cases. 
Chairman Markowitz has some ideas for a process to make that 

happen, which he will share later in the meeting. 

3. Regarding EEOICPA claims that may have been reopened as a 

result of Board recommendations, can DOL provide a 

description by specific condition and principal diagnosis 

instead of using three broad categories?

The chart previously submitted to the Board has been updated. 

Originally the three groups were (1) mesothelioma, ovarian 

cancer, and pleural plaques; (2) hearing loss and bladder 

cancer; and (3) lung cancer. The Department has provided a list 

of these cases with specific conditions listed, but the 

information has not been summarized and includes personally 

identifiable information (PII) so it could not be posted on the 

Board’s website. The Department will provide the Board with 

details on the most recent updates. 

4. The Board requests information on how many cases are 

referred to an IH.

Ms. Leiton provided a report showing 26 percent of 2018 cases 

were referred to an IH but said recent training may drive that 

number up. Noting that similar percentages of accepted and 

denied cases had been referred to an IH, Chairman Markowitz said 

it would be more useful to look only at cases referred to an IH 

because of exposure or causation questions. Ms. Leiton said it 

isn’t always easy to break cases out that way since there may be 

multiple decisions for each case. 

5. The Board would like the IH to be able to speak to the CE 

or the claimant. 

The Department indicated that discussions between claimants and 

the IH are possible with CE involvement, and this will be 

incorporated into the next update of the Procedure Manual. 

There has never been a prohibition on an IH speaking to a 

claimant, but the Department has never received such a request. 

Chairman Markowitz asked if contractor IHs would also be allowed 

to speak to claimants. The Department will determine to what 

extent a Federal IH would need to be involved in order to 

maintain the Department’s contractual obligations. 

6. Dr. Markowitz requests clarification on the new CMC policy 

that was only given to DEEOIC CMCs and not to private 

practice specialists, as discussed in public comments from 
Terrie Barrie. 

The guidelines were sent to CMCs contracted by the Department to 

ensure procedural contract compliance. It would not be 

appropriate to send the same guidelines to claimants’ treating 

physicians as they are not DOL contractors, but the procedures 

and guidelines sent to CMCs are the same as what is found in the 

Procedure Manual. 

7. The Board would like to have a summary of its previous 

recommendations. 

Member Berenji helped assemble a summary of previous Board 

recommendations. Mr. Fitzgerald will review and follow up on 

them. Chairman Markowitz asked if the recommendation status 

could be posted on the Board’s website. 

8. The Board requests claims for four lung conditions. 

Chairman Markowitz said DOL has provided the Board with those 

claims, some of which will be reviewed later in the meeting. 

9. The Board requests that someone from DOL EEOICP attend all 

of the Board’s meetings. 

Chairman Markowitz said that DOL is complying with that request. 

Status of replacement of Dr. Cassano/Follow-up on previous Board 

recommendations 

Both of these issues remain pending following the departure of 

Secretary Acosta and are currently in the Office of the 

Secretary. The Department would like to give a new incoming 

Secretary the opportunity to make an appointment and to certify 

the Board’s recommendations. 

Review of Claims Data Provided by DOL 

Chairman Markowitz discussed various data tables provided by 

DOL. He requested a replication of some of the tables with only 

Part E claims. There was discussion around the change from ICD 

9 to ICD 10 and the associated text descriptions listed in the 

table. Ms. Leiton said they should rely on the code ranges, not 

the text descriptions. 

Chairman Markowitz proposed forming a working group to drill 

down on and request additional data the Board needs. Mr. 
Fitzgerald urged the Board to use the established process for 

submitting requests for data, with specificity and a rationale 

for each request. Ms. Leiton proposed having preliminary 

discussions prior to any formal request. 

Review of Claims 

Chairman Markowitz proposed that either one or two members 

review each claim before submitting comments to DOL. Board 

members agreed that a single-member review, keeping the Chair 

informed, was the best approach. Noting that an appeals process 

already exists, Ms. Leiton wanted to discuss the process and 

scope with the DFO. Mr. Fitzgerald said the review should focus 

on procedures or policies that may have led to concerns or 

trends with the decisions, not on individual case decisions. 

Member Dement reviewed an ILD claim, case number 6115. One 

issue is that the OHQ should have been used for the worker’s 

first claim. Neither the IH nor the CMC were as thorough as 

they should have been. Another issue is the lack of recognition 

of the well-known association between asbestos disease and sheet 

metal work. Chairman Markowitz thought it remarkable that 

neither the IH nor the CMC recognized pulmonary fibrosis in a 

sheet metal worker as possible asbestosis. 

Chairman Markowitz reviewed another ILD claim, case number 1504. 

The CMC relied entirely on the IH’s view that the exposures were 

insignificant and the claim was denied, but the worker’s 

exposures may not have been adequately understood. An IH 

interview with the claimant might have been very helpful. 

Member Dement said the IH should state the basis for 

determinations about exposures and demonstrate an understanding 

of the work that the individual actually did. 

Member Mahs discussed a case involving a mason who worked around 

asbestos and silica for years. There was discussion of the 

meaning of the phrase “significant exposure but at low levels,” 

and whether it was relative to current or historical OSHA 

standards. Low to moderate may be interpreted to mean de 

minimis, but that interpretation may not always be correct. 

Member Friedman-Jimenez said low to moderate could describe the 

duration rather than intensity of the exposure. 

Chairman Markowitz reviewed ILD case 0021, with ten years of 

exposure but only six months of covered employment. Two doctors 

determined that six months met the contributory standard. After 

one CMC disagreed, a referee CMC determined that six months 
wasn’t enough to cause the disease and did not address the issue 

of contribution. More guidance on the meaning of “contribution” 

from DOL may be needed. 

Member Redlich reviewed another ILD case for someone seeking an 

impairment rating after a prior RECA claim for pulmonary 

fibrosis/silicosis was accepted. Pulmonary function tests were 

on the low end of normal, and the physician said there was no 

respiratory impairment, but, compared to prior spirometry, there 

had been a substantial decline in lung function. 

Member Mikulski reviewed a sarcoidosis claim, case 3580, 

involving a Part B and Part E claim for prostate cancer and a 

Part E sarcoidosis claim. Both claims were denied for prostate 

cancer based on insufficient probability of causation, but the 

claims examiner asked the CMC to determine if medical evidence 

supported the pre-1993 diagnosis of CBD. The CMC said the 

claimant met two of the three criteria, but a borderline 

lymphocyte proliferation test was never confirmed by further 

testing. It’s unclear what records were shared with the CMC, 

but the reviewed files contain evidence of all three pre-1993 

criteria. 

Member Redlich raised the issue that the SEM does not list any 

exposures that cause sarcoidosis, but the same is not the case 

for CBD. Since the two diseases are indistinguishable, the SEM 

should be queried for CBD instead of sarcoidosis. 

Member Berenji discussed a sarcoid case she reviewed. Ten 

beryllium tests had been done, nine normal and the tenth 

uninterpretable. The Procedure Manual may need an addendum to 

deal with these cases as it is unclear what impact the 

claimant’s use of prescription steroids may have had on test 

results. 

Member Redlich discussed a claimant who had worked at Pantex in 

various administrative positions. The single negative BeLPT was 

performed only after the claimant had begun steroids. Chairman 

Markowitz asked whether post-1993 sarcoid cases are to be 

treated as beryllium cases until proven otherwise. Ms. Leiton 

said that is the case in certain circumstances, including when 

there is a positive beryllium test. John Vance, Department of 

Labor, said the Department has carved out an exception whereby 

if other criteria have been met, a pulmonary sarcoid claim can 

be accepted as CBD. Member Redlich noted that the Procedure 

Manual does recognize the possibility of false negative BeLPT 

tests following prescription steroid use.