1

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

U.S. DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

WEDNESDAY

JUNE 29, 2022

+ + + + +

The Advisory Board met via 

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

Markowitz, Chair, presiding.

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN

KENNETH SILVER

MIKE VAN DYKE

MEDICAL COMMUNITY

GEORGE FRIEDMAN-JIMENEZ

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI 

CLAIMANT COMMUNITY

JIM KEY

DURONDA POPE

CALIN TEBAY

DESIGNATED FEDERAL OFFICIAL

RYAN JANSEN

ALSO PRESENT

KEVIN BIRD, SIDEM

CARRIE RHOADS, DOL

JOHN VANCE, DOL
2

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

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

Welcome and Introductions

Ryan Jansen.............................. 3

Board comments on EEOICP Quality

Dr. Steven Markowitz, Board Members..... 14

Industrial Hygiene Report Language

Dr. Steven Markowitz, Board Members..... 21

Follow-up on Asbestos Presumptions

Dr. Steven Markowitz, Board Members..... 53

Board Comments on claims review

Dr. Steven Markowitz, Board Members..... 63

Review of Public Comments

Dr. Steven Markowitz, Board Members..... 79

Agenda Suggestions for New Board

Dr. Steven Markowitz................... 87

Close of Meeting

Ryan Jansen............................. 97
3

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

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

2 1:04 p.m.

3 MR. JANSEN: Good afternoon, everyone. 

4 My name is Ryan Jansen, and I would like to 

5 welcome you to today's virtual meeting of the 

6 Department of Labor's Advisory Board on Toxic 

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

8 new Designated Federal Officer, or DFO, and I'm 

9 excited to begin my work with the Board at this 

10 meeting. Today is Wednesday, June 29th, 2022, 

11 and we are scheduled to meet from 1:00 p.m. to 

12 4:00 p.m. Eastern this afternoon.

13 Today's meeting will be a virtual 

14 video meeting. I have with me Carrie Rhoads from 

15 the Department of Labor, and Kevin Bird from 

16 SIDEM, he's our logistics contractor. Since we 

17 are using a virtual format today, please be 

18 patient with any technical issues, or extra time 

19 that we might take resolving those issues, or 

20 showing documents on the system.

21 Regarding meeting operations today, we 

22 will have just one break at about 2:30 p.m. 
4

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 Please do not disconnect from the call for the 

2 break, but Board members please just put your 

3 phone on mute for the break, and unmute when we 

4 resume. This will make it easier on Kevin. 

5 Copies of all the meeting materials 

6 will be available on the Board's website under 

7 the heading Meetings. The documents will also be 

8 up on the Webex screen so everybody can follow 

9 along with the discussion. The Board's website 

10 for all matters can be found at 

11 dol.gov/owcp/energy/regs/compliance/advisory 

12 board.htm. If you have not already visited the 

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

14 clicking on today's date, you will see a variety 

15 of information, including a page dedicated 

16 entirely to today's meeting.

17 The webpage contains any publicly 

18 available materials submitted to us in advance. 

19 In addition, we will publish any materials that 

20 are provided to the Board. You will also find 

21 today's agenda and instructions for participating 

22 remotely. If you experience any difficulties 
5

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 during this meeting, please email us at 

2 energyadvisoryboard@dol.gov. 

3 If you are joining by Webex, please 

4 note that this session is for viewing only, and 

5 microphones will be muted for non-Advisory Board 

6 members. The call in information has been posted 

7 on the Advisory Board's website. So, the public 

8 may listen in, but not participate in the Board's 

9 discussion during the meeting. 

10 Today there will be no public comment 

11 session, but written comments may be submitted to 

12 energyadvisoryboard@dol.gov. A transcript, and 

13 minutes will be prepared from today's meeting. 

14 During the discussions today, please speak 

15 clearly enough for the transcriber to understand. 

16 When you begin speaking, especially at the start 

17 of the meeting, make sure that you state your 

18 name, so that it's clear who is saying what.

19 Also, I would like to ask that our 

20 transcriber, please let us know if you have 

21 trouble hearing anyone, or any of the information 

22 that is being provided. As DFO, I see that the 
6

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 minutes are prepared, and ensure that they are 

2 certified by the chair. The minutes of today's 

3 meeting will be available on the Board's website 

4 no later than 90 calendar days from today, per 

5 FACA regulations.

6 They will of course be published 

7 earlier than the 90 day date if available. Also 

8 we will be publishing verbatim transcripts, which 

9 are obviously more detailed in nature. Those 

10 transcripts should be available on the Board's 

11 website within 30 days. As always, I would like 

12 to remind Advisory Board members that there are 

13 some materials that have been provided to you in 

14 your capacity as special government employees, 

15 and members of the Board which are not suitable 

16 for public disclosure.

17 And cannot be shared, or discussed 

18 publicly, including during this meeting. Please 

19 be aware of this as we continue the meeting 

20 today. The materials can be discussed in a 

21 general way, which does not include using any 

22 personally identification information, or PII, 
7

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 such as names, addresses, specific facilities if 

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

3 And with that, I convene this meeting 

4 of the Advisory Board on Toxic Substances and

5 Worker Health, and I will now turn it over to Dr. 

6 Markowitz for introductions.

7 CHAIR MARKOWITZ: Thank you. Welcome, 

8 everybody. Welcome to the Board members, and 

9 welcome to the public who are listening in, 

10 watching in. We're going to try to post what 

11 we're going to be talking about, so that in 

12 particular the public can see what we're talking 

13 about. But I'll try, for those of you who might 

14 be just on the phone, to read, or summarize what 

15 we're looking at so you can stay in the 

16 conversation.

17 We'll review the agenda in a moment, 

18 but let's start off with introductions. I think 

19 it's easiest if I just call out your name, and 

20 just briefly introduce yourself. 

21 I'm Steven Markowitz. I'm an 

22 occupational physician and epidemiologist at the 
8

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 City University of New York, and direct the 

2 largest former worker medical screening program 

3 in the Department of Energy complex. Dr. Bowman?

4 MEMBER BOWMAN: Yes, thank you. My 

5 name is Aaron Bowman. I'm a professor and head 

6 of the School of Health Sciences at Purdue 

7 University. I'm also a toxicologist.

8 CHAIR MARKOWITZ: Mr. Catlin, are you 

9 on the phone? I'm just going down the list here. 

10 Okay, not yet. Dr. Silver?

11 MEMBER SILVER: Ken Silver. Through 

12 August, Associate Professor of Environmental 

13 Health in the College of Public Health at East 

14 Tennessee State University. I have over two 

15 decades experience working on policy, and 

16 historical missions, and exposures at Department 

17 of Energy facilities.

18 CHAIR MARKOWITZ: Dr. Van Dyke?

19 MEMBER VAN DYKE: Good afternoon. 

20 Mike Van Dyke. I'm an industrial hygienist, and 

21 associate professor at the Colorado School of 

22 Public Health.
9

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 CHAIR MARKOWITZ: Dr. Friedman2 Jimenez?

3 MEMBER FRIEDMAN-JIMENEZ: Hi, I'm 

4 George Friedman-Jimenez. I'm an occupational 

5 medicine physician and epidemiologist at Bellevue 

6 NYU Occupational Medicine Clinic in New York 

7 City. We take care of workers who use the public 

8 hospital system in New York City for medical 

9 care, and who have work related toxic exposures, 

10 and diseases.

11 CHAIR MARKOWITZ: Dr. Mikulski?

12 MEMBER MIKULSKI: Good afternoon. 

13 Marek Mikulski, occupational epidemiologist with

14 the University of Iowa. I run the former worker 

15 program for the former DOE workers from the state 

16 of Iowa. 

17 CHAIR MARKOWITZ: Ms. Pope?

18 MEMBER POPE: Good afternoon. My name 

19 is Duronda Pope. I'm a retired Rocky Flats 

20 worker, worked there for 25 years. I am 

21 currently working for the United Steel Workers 

22 Union with the emergency response team program. 
10

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 CHAIR MARKOWITZ: Mr. Tebay?

2 MEMBER TEBAY: Good afternoon. Calin 

3 Tebay, sheet metal worker for 25 years. I am 

4 currently the beryllium health advocate for the 

5 site at Hanford, and I'm also the Hanford 

6 Workforce Engagement Center representative.

7 CHAIR MARKOWITZ: All right, and I 

8 have Mr. Key and Ms. Whitten listed, but unless 

9 they join, we're going to skip them for the 

10 moment. Okay, very briefly, just to review the 

11 agenda, because I want to get on to business 

12 today, we're going to mention that the Board has 

13 issued some comments and questions to the program 

14 about the quality assurance documents that have 

15 been provided to us.

16 We're then going to discuss a couple 

17 of recommendations, one on borderline beryllium 

18 lymphocyte proliferation test, and then we're 

19 going to move at 2:00 o'clock to the industrial 

20 hygiene report language, and discuss that after 

21 the borderline BeLPT issue, and whether we want 

22 to formulate, or issue a recommendation on the 
11

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 industrial hygiene report language.

2 Then we'll get back to asbestos 

3 presumptions, take a break, or we'll see where 

4 the break fits depending on how long things take. 

5 We're going to help in general, try to remember 

6 our comments about our claims review from before 

7 our May meeting. We're going to briefly review 

8 public comments, in particular those that are in 

9 writing on our website. And then finally kind of 

10 formulate a list of items that we think the next 

11 Board should address.

12 So, any questions, or additions to the 

13 agenda? Okay, so we're going to discuss, there 

14 were two documents that were provided by the 

15 program. One was called -- one related to the 

16 contract medical physician performance, and the 

17 other related to the quality assurance within the 

18 overall program.

19 And the working group of the Board 

20 met, four, or five of us, and reviewed these 

21 documents, and came up with a list of questions, 

22 comments for the program, and maybe even some 
12

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 suggestions, I'm not quite sure. But then that 

2 was sent around to the entire Board for review 

3 several weeks ago, and any additional comments 

4 were integrated.

5 So, we can't show these, but the Board 

6 members have these comments. What we need to do 

7 in order to transmit them to the Department, we 

8 have to take a vote on whether we agree with 

9 these comments, and questions of these quality 

10 assurance documents. So, we can't discuss the 

11 content of those documents here, or the content 

12 of our comments.

13 But if there are any questions about 

14 the procedure we're going through, now is the 

15 time to raise it. Okay, so fine, so I think we 

16 should just take a roll. All members of the 

17 Board, do you know the set of comments that I'm 

18 referring to? I sent them around earlier today 

19 so that you would have them in front of you, you 

20 should have gotten them by email.

21 In any case, Carrie, you want to do a 

22 roll call vote on this?
13

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MS. RHOADS: Sure. And this is just 

2 to indicate that you agree with sending the 

3 comments onto the program as a Board. We're 

4 doing this because the working group cannot talk 

5 directly to the program, they have to go through 

6 the full Board. So, I'll call the roll, and just 

7 indicate if you agree with sending the comments 

8 on. Dr. Bowman?

9 MEMBER BOWMAN: Yes, I agree.

10 MS. RHOADS: Okay, Dr. Silver? I see 

11 Dr. Silver with his --

12 MEMBER SILVER: Yes.

13 MS. RHOADS: Okay. Dr. Van Dyke?

14 MEMBER VAN DYKE: Yes, I agree.

15 MS. RHOADS: Dr. Friedman-Jimenez?

16 MEMBER FRIEDMAN-JIMENEZ: Yes, I 

17 agree.

18 MS. RHOADS: Dr. Markowitz?

19 CHAIR MARKOWITZ: Yes.

20 MS. RHOADS: Dr. Mikulski?

21 MEMBER MIKULSKI: Yes, I agree.

22 MS. RHOADS: Ms. Pope?
14

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MEMBER POPE: Yes, I agree.

2 MS. RHOADS: Mr. Tebay?

3 MEMBER TEBAY: I agree.

4 MS. RHOADS: Okay, Mr. Catlin, have 

5 you joined us? Okay, that is eight votes for, 

6 and then there are four people missing.

7 CHAIR MARKOWITZ: Okay, yeah, so that 

8 passes. I'll remind the Board: there are 12 

9 members of the Board, to pass any recommendation 

10 we need a majority, meaning seven votes. Not the 

11 majority of people present, but a majority of the 

12 total Board. So, there are eight people present. 

13 You can't vote by proxy, so in order to pass any 

14 recommendation, we would need at least seven 

15 people to agree with that recommendation.

16 So, let's move on to the issue of the 

17 borderline BeLPT. Actually, Kevin, if you could 

18 bring up that file. While he's doing that, we're 

19 going to be looking at some language, again, the 

20 Board has seen this draft language, we did not --

21 it's in draft form, so we did not post it on our 

22 website, so the public hasn't had access to this 
15

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 draft recommendation.

2 But we thoroughly discussed the issue 

3 last time, and we are going to discuss to the 

4 extent needed. If you could just make that 

5 larger, in particular the first paragraph, so we 

6 can read the recommendation. Okay, so thank you. 

7 I want to read it briefly, and in particular for 

8 members of the public who might be calling in, or 

9 for that matter, Board members who might be 

10 calling in. 

11 The Board recommends that the 

12 Department of Labor communicate to Congress the 

13 need for a technical amendment in the Energy 

14 Employees Occupational Illness Compensation 

15 Program Act that will recognize that covered 

16 individuals as defined in the act, and do have 

17 three borderline beryllium lymphocyte 

18 proliferation test results have beryllium 

19 sensitivity.

20 So, and then we go into the rationale, 

21 which we reviewed before. So, I don't think 

22 there is necessarily a need to do that. But if 
16

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 you could scroll down Kevin, I don't know if I 

2 have control over scrolling, to the next page. I 

3 just want to show there is some -- okay, yeah, 

4 just bring it up a little bit. Proposed act 

5 modification -- no, I'm sorry, the other way, so 

6 that we can see proposed act modification.

7 And then just make it a little bit 

8 larger if you could. So, in the rationale 

9 actually, we actually just propose some language, 

10 very simple language that redefines beryllium 

11 sensitivity as established, as present as an 

12 abnormal BeLPT test performed on blood, or lung 

13 lavage cells, or three borderline BeLPT tests 

14 performed on blood cells.

15 So, that's an example of language that 

16 could be added in, in order to allow the 

17 Department to recognize three borderline BeLPTs 

18 as the equivalent, or as beryllium sensitivity. 

19 Okay, thanks Kevin, I see I can move this around 

20 myself. So, I don't really think I need to go 

21 into the rationale. We provided references here, 

22 essentially a study that was done that looked at 
17

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 borderlines.

2 Indicated that multiple borderlines, 

3 three borderline proliferation tests were 

4 essentially equivalent to an abnormal beryllium 

5 BeLPT. And also pointed out that in fact, it's 

6 only important to the people who are effected by 

7 beryllium in this way, but in terms of overall 

8 numbers, it's a relatively small percentage of 

9 people who have these repeated borderline tests 

10 without ever having a frankly abnormal BeLPT.

11 So, let me open the floor to comments, 

12 questions, Board members? We can also revise the 

13 draft language of the recommendation as needed. 

14 We don't have to change -- comments on the draft 

15 suggested changes, and the rationale, we don't 

16 have to do it on the spot. I can make those 

17 changes over the next couple days, before we send 

18 in the recommendation. 

19 But the language of the recommendation 

20 itself, we need to agree upon. 

21 MEMBER BOWMAN: This is Aaron Bowman. 

22 I read through the recommendation in full, also 
18

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 I remember our conversation about this at the 

2 last Board meeting. I am in full agreement with 

3 this recommendation.

4 CHAIR MARKOWITZ: Okay, and just to 

5 remind maybe members of the public, actually this 

6 Board raised this issue, I think in 2017 

7 recommended essentially the same thing. That 

8 time we recommended the Department redefine 

9 abnormal beryllium, or beryllium sensitization as 

10 multiple borderline tests. That was rejected by 

11 the Department, referring to the language of the 

12 statute.

13 Which is very specific in defining 

14 beryllium sensitization as at least one abnormal 

15 BeLPT test. Any other comments, questions?

16 MEMBER FRIEDMAN-JIMENEZ: Yeah, this 

17 is George Friedman-Jimenez, you decided not to 

18 include the up to date reference that reference, 

19 which is an up to date textbook of medicine 

20 essentially, really goes a long way toward 

21 defining the standard of care nationally, and 

22 internationally, and it does recommend that two 
19

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 borderline tests be interpreted as a positive 

2 test. 

3 It's written by Lee Newman, and Lisa 

4 Maier, but I think it's a reference worth 

5 including. It's your choice, but I suggested it 

6 before, and it's not included.

7 CHAIR MARKOWITZ: Yeah, I'll add it, 

8 George, to the oversight, but I'll add it. Thank 

9 you.

10 MEMBER FRIEDMAN-JIMENEZ: Okay, great.

11 CHAIR MARKOWITZ: Okay, if there are 

12 no further comments, I don't see that we need to 

13 reread this recommendation, maybe we should just 

14 go to a vote in the interest of time, because I 

15 know at least one Board member is going to be 

16 leaving by 2:00 o'clock Eastern Standard Time. 

17 So, Carrie, you want to do a roll call?

18 MS. RHOADS: Sure. So, this is to 

19 approve the language that was on the screen for a 

20 recommendation on the beryllium lymphocyte 

21 proliferation test. Dr. Bowman?

22 CHAIR MARKOWITZ: Yes, I approve.
20

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MS. RHOADS: You approve, okay. Dr. 

2 Silver?

3 MEMBER SILVER: Yes.

4 MS. RHOADS: Dr. Van Dyke?

5 MEMBER VAN DYKE: Yes.

6 MS. RHOADS: Dr. Friedman-Jimenez?

7 MEMBER FRIEDMAN-JIMENEZ: Yes.

8 MS. RHOADS: Dr. Markowitz?

9 CHAIR MARKOWITZ: Yes.

10 MS. RHOADS: Dr. Mikulski?

11 MEMBER MIKULSKI: Yes, I approve.

12 MS. RHOADS: Ms. Pope?

13 MEMBER POPE: Yes, I approve.

14 MS. RHOADS: Mr. Tebay?

15 MEMBER TEBAY: I approve.

16 MS. RHOADS: Okay, and Mr. Catlin, Mr.

17 Key, or Ms. Whitten if you've joined us, please 

18 let us know. Otherwise that's eight for, and 

19 four people missing, so eight to zero.

20 CHAIR MARKOWITZ: Okay, thanks. You 

21 want to bring up the file that I sent you just 

22 before the meeting? So, the next topic of 
21

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 discussion is going to be the industrial hygiene 

2 report language regarding regulatory standards. 

3 So, we discussed this at the last meeting. We 

4 had noticed in reviewing claims, that there is 

5 some stereotypic language in many of the 

6 industrial hygiene reports that relates to 

7 regulatory standards.

8 Kevin, if you could just make that 

9 larger? I don't know that I can do that. Okay, 

10 and then bring it down a little bit. Okay, so we 

11 saw this ourselves in reviewing claims. Numerous 

12 public commenters also raised this issue, and it 

13 relates in part to some earlier language the 

14 Department had used, and then rescinded, 

15 centering sort of conclusions about likely levels 

16 of exposure around 1995.

17 Which was the date of issuance of a 

18 beryllium worker safety rule. The Department 

19 actually rescinded that language going back to 

20 2017, I think framing the interpretation of 

21 exposure levels around the post 1995 date, and 

22 period. But language similar to what we're 
22

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 looking at here, which actually includes -- this 

2 one happens to include 1995, but many of the 

3 other claims we looked at no longer refer to '95.

4 But have the key phrase that exposure 

5 to the agents -- this is just an excerpt from 

6 somebody's claim in 2021, but it occurs in other 

7 claims, and the agents that they refer to is the 

8 industrial hygiene report that lists what the 

9 person's exposures were, the frequency, the level 

10 of exposure, the significance, and then this 

11 conclusory sentence, or paragraph about exposure 

12 to these agents.

13 There's no evidence that it would have 

14 exceeded existing regulatory standards. Now, we 

15 had a very nice -- the last Board meeting, May 

16 10th, 11th, we had a very nice discussion with 

17 Mr. Jeffrey Kotsch, and Mr. John Vance about this 

18 issue, how it's seen etcetera, which I found very

19 useful. And we actually entertained a 

20 recommendation at that meeting, but really didn't 

21 have enough time to formulate our thoughts, and 

22 perhaps agree on this issue.
23

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 So, that's the language that we're 

2 looking at from reports. So, if you could bring 

3 up now Kevin, a draft recommendation on the 

4 industrial hygiene report language. And we're 

5 going to just use this as a starting point, I'm 

6 going to read it for anybody that's not looking 

7 at a screen, but this is language that I drafted, 

8 that I detected was sort of the sense of many 

9 members of the Board, subject to change.

10 That's what we're doing here, but it's 

11 certainly a starting point. Let me read it, the 

12 Board recommends that the Energy Employees 

13 Occupational Illness Compensation Program advises 

14 its staff, and industrial hygiene contractor that 

15 claim related industrial hygiene reports, and 

16 opinions restrict comparisons of claimant's 

17 exposures to toxins at Department of Energy 

18 Facilities to regulatory work place exposure 

19 standards only to cases where sufficient 

20 industrial hygiene data that are relevant to the 

21 claim exist to support such comparisons.

22 A better sense of claimant's workplace 
24

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 exposure to regulatory standards, in the absence 

2 of specific industrial hygiene evidence lack 

3 support, and maybe prejudicial to the appropriate 

4 resolution of the claim. So, that's a bit of a 

5 mouthful. But it says that -- it's suggesting 

6 that both the industrial hygiene evaluation, and 

7 whatever else opinion is brought to this in terms 

8 of the exposure.

9 But only make those comparisons to 

10 regulatory standards where actual data exists to 

11 be able to make a reasonable statement about 

12 whether those exposures exceed the regulatory 

13 standard. In the absence of data, industrial 

14 hygiene data, you don't know whether it's 

15 exceeded the standard, under the standard, meets 

16 the standard, or what. You're just kind of in 

17 the dark on that issue. 

18 And so then this is suggesting that 

19 only when there are actually industrial hygiene 

20 data should those comparisons, specifically with 

21 the regulatory standards, be used. That only 

22 then is it actually fact based, and informative 
25

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 to resolution of the claim. So, let me open the 

2 floor to people's opinions about this.

3 MEMBER VAN DYKE: So, this is Mike Van 

4 Dyke. I like the recommendation, I'm trying to 

5 read it from the perspective of somebody doing an 

6 industrial hygiene report, and trying to come up 

7 with a way to make it better, I don't know if I 

8 can. But I mean it feels like there needs to be 

9 examples of language that's unacceptable.

10 And I think what we're trying to get 

11 at is that these blanket statements that no 

12 evidence that exposures exceeded regulatory 

13 levels is never qualified to say well there's no 

14 evidence that they didn't exceed regulatory 

15 levels either. So, I get what we're saying, and 

16 I'm not sure I can make this better. I support 

17 this as is if we can't get better, but maybe some 

18 examples would be helpful.

19 CHAIR MARKOWITZ: Yeah, let me suggest 

20 that we kind of discuss, instead of wordsmithing 

21 the language, which I know that you weren't 

22 doing, but let's discuss the concept, and whether 
26

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 there's any modifications in the concept, or how 

2 people agree, or don't agree with the concept of 

3 this, and then we can get into youthful ways of 

4 saying it.

5 MEMBER VAN DYKE: I support the 

6 concept for sure.

7 MEMBER SILVER: Ken Silver here. I've 

8 never been comfortable with this idea of 

9 comparison to past regulatory standards. The IH, 

10 and the CMC work together to render causation 

11 determinations, and we all know that the trend in 

12 exposure limits, mandatory, or recommended has 

13 been to lower, and lower levels over time.

14 The only comparison that makes sense 

15 to me for the purposes of the IH, and the CMC 

16 rendering a causation determination is to the 

17 latest ACGIH TLVs, which are heavily informed by 

18 the most recent epidemiology, and risk 

19 assessments. This is a no fault program, and 

20 when comparisons are made to past regulatory 

21 standards with, or without data, it's implicitly 

22 suggesting that Uncle Sam will pay out only if 
27

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the DOE, and the AEC, and ERDA were negligent in 

2 exceeding those standards.

3 So, yeah, you shouldn't do things 

4 without data, but this is one of those things, I 

5 don't think you should do it with, or without 

6 data unless you're comparing it to the latest 

7 ACGIH TLVs.

8 CHAIR MARKOWITZ: Well, Mr. Kotsch did 

9 say that they used the most recent TLVs, because 

10 those would be the lowest, and therefore most 

11 generous to the claimants. So, on that point, I 

12 think the Department did address that. I think 

13 your larger point still stands, but yeah.

14 MEMBER SILVER: Well, maybe we need to 

15 figure out a way to get that into the rationale, 

16 or the language, because out there in the 

17 hinterlands where the claims examiners have 

18 gotten accustomed to old habits, it may take them 

19 awhile to get the memo that we're not talking 

20 about old regulatory standards. We're talking 

21 about one set of standards that evolve every 

22 year, ACGIH. Thank you.
28

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 CHAIR MARKOWITZ: Yeah. Other 

2 comments? While you're thinking, I had one 

3 additional thought, which is the ACGIH doesn't 

4 claim that its criteria, its thresholds, its 

5 standards are absolutely protective, right? It 

6 says that most workers would be protected well. 

7 So, that raises the issue of the DOE complex, 

8 where there were at a minimum half a million 

9 people who work there.

10 If those standards are mostly 

11 protective, that would mean that it would still 

12 leave room broadly for many people, perhaps 

13 thousands, to have been exposed under the 

14 standards, but still be harmed by the exposures. 

15 Because as ACGIH says, acknowledges that the 

16 standards aren't perfect, that there are some 

17 people who will, at lower levels, still be 

18 affected.

19 And if you make the population large 

20 enough, that's going to mean a significant 

21 minority of people are going to be affected. 

22 What do you think about that reasoning?
29

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MEMBER SILVER: Yeah, human 

2 susceptibility is characterized by sometimes log 

3 normal distributions, not to get all fancy, but 

4 just means there's a very wide distribution, and 

5 I think you're exactly right Dr. Markowitz, in a 

6 large enough population, there will still be some 

7 people who have the effect, even at the most 

8 current recommended limits. 

9 Is this comparison for sort of 

10 internal DOL efficiency purposes, where if at 

11 first blush, the claimant might have been exposed 

12 above the latest ACGIH standards, they can 

13 expedite the next few steps? Yet, if they 

14 weren't, still take a look at the claim in a more 

15 methodical, more eyes on the file manner?

16 CHAIR MARKOWITZ: I don't know the 

17 answer to that. If this language is not used, if 

18 you remember in our review of claims, what would 

19 the industrial hygiene report consist of? Well, 

20 aside from the review of the data. At the end of 

21 every IH report, it says whether the exposures 

22 were significant, meaning not incidental, and it 
30

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 provides information on calendar years, the 

2 toxins of interest, job titles, and then high, 

3 medium, low levels, and frequency of exposure.

4 So, the report absent the regulatory 

5 standards language would contain all those other 

6 items. Those factual issues, which would then go 

7 to the -- in most cases, many cases to the CMC 

8 for use in determination of causation. So, 

9 there's plenty left in the IH report that can be 

10 used in claims evaluation.

11 MEMBER SILVER: One thing I can say in 

12 favor of these sort of benchmarks to ACGIH TLVs, 

13 those kinds of statements, it's that on appeal, 

14 it would give the claimant, or authorized 

15 representative a target, a presumption that was 

16 in the determination to now refute on appeal, 

17 something to grab onto, and find evidence 

18 wherever, that they were over exposed compared to 

19 ACGIH TLVs. 

20 Whereas the other words regarding 

21 frequency, duration, intensity, and the bugaboos 

22 significant are kind of hard to grab onto. But 
31

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 at least there are numbers related to ACGIH TLVs 

2 being exceeded. 

3 CHAIR MARKOWITZ: Other comments? Go 

4 ahead.

5 MEMBER VAN DYKE: I was just going to 

6 say I think a lot of times these statements are 

7 given, and I mean an industrial hygienist 

8 interprets their statement as no evidence that 

9 regulatory limits were exceeded as we have no 

10 industrial hygiene measurements. And I think the 

11 problem with that is that you send this to an 

12 occupational medicine expert, and they interpret 

13 it as this was a judgment call that there was no 

14 -- that exposures were below the regulatory 

15 limit.

16 Maybe it's something simpler in terms 

17 of something like comparison of exposures to 

18 regulatory standards must specify the amount of 

19 industrial hygiene data available, and the 

20 specific regulatory limit referenced. That might 

21 make it just a little clearer to me.

22 CHAIR MARKOWITZ: Okay, so Mike, hold 
32

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 that thought, and we'll start to do some surgery 

2 on what we're looking at here in a moment. Other 

3 thoughts, other general thoughts on what we're 

4 looking at? Again, the question, which is one of 

5 the things we heard from Mr. Kotsch is when they 

6 are available from DOE, or the contractor, it's 

7 generally incidents, particular releases, or 

8 other circumstances which are momentary, acute, 

9 in which the exposure is maybe high, but it's of 

10 short duration.

11 And those can be very important 

12 exposures obviously, but much of the part of 

13 occupational disease that is the subject of many 

14 of the claims would not stem from acute very high 

15 level exposures, but from more chronic exposure. 

16 And does that need to be -- does that aspect of 

17 the industrial hygiene data, does that need to be 

18 included in this recommendation?

19 I can put it in the rationale, that's 

20 easy, but does it need to be specified here?

21 MEMBER VAN DYKE: I think that goes 

22 down the rabbit hole that we went down on our 
33

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 email chain, in terms of a lot more information 

2 about exposure. So, and I think if we want to 

3 stay focused on avoiding this prejudicial blanket 

4 statement, I don't think we want to go too far 

5 down that road.

6 MEMBER FRIEDMAN-JIMENEZ: This is 

7 George Friedman-Jimenez. The language that there 

8 is no evidence that exposures exceeded regulatory 

9 standards as Dr. Van Dyke said, could also be 

10 stated as there is no evidence that exposures did 

11 not exceed the standard. So, I think in many 

12 cases there is just no evidence, there are no 

13 data on the measurements haven't been done in a 

14 particular facility.

15 Where the person worked at the time 

16 based on latency period, when it would have been 

17 necessary for them to be exposed in order to 

18 cause the disease that they have. So, I think 

19 that statement should then be revised to there is 

20 no evidence available whether the exposures 

21 exceeded, or did not exceed the regulatory 

22 standard. 
34

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 And that way it will be clear, whether 

2 there is evidence or not. If there's evidence 

3 that there are two measurements done over 20 

4 years that showed results below the standard, 

5 then that could be stated. But in general, I 

6 think it's more common most likely, and I don't 

7 know how often measurements are actually done in 

8 these work places. But I think that the 

9 statement is just too pat and too cavalier.

10 And should either expose the lack of 

11 knowledge, that there's no evidence that it did, 

12 or did not exceed the standard, or say that there 

13 is evidence that it did not exceed the standard. 

14 Because otherwise, I think it is prejudicial.

15 CHAIR MARKOWITZ: Yeah. So, yes, and 

16 I think we can change this recommendation 

17 actually to reflect what you just said. But 

18 let's start with Dr. Van Dyke's suggestions, 

19 because I see where this piece can go that you're 

20 mentioning just now. So, let's go back, Dr. Van 

21 Dyke, if you can direct Kevin to specific lines 

22 and words.
35

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MEMBER VAN DYKE: I mean, my 

2 suggestion was -- hold on, I typed it up just to 

3 remember it. And I don't know where it goes in 

4 here, but the language was comparison of

5 exposures to regulatory standards must specify 

6 the amount of available industrial hygiene data 

7 available, and the specific regulatory limit 

8 referenced.

9 CHAIR MARKOWITZ: Okay, so that can be 

10 in the next --

11 MR. BIRD: Dr. Van Dyke, is it easier 

12 if I give you control and you can type it in?

13 CHAIR MARKOWITZ: You can add that as 

14 the next-to-last sentence right before -- on the 

15 third line from the bottom, right before 

16 comparisons. You can just put that whole 

17 sentence in there.

18 MEMBER VAN DYKE: Do you need me to 

19 say it again?

20 CHAIR MARKOWITZ: Well, so Kevin's 

21 asking is it easier for him to type it up or you?

22 MEMBER VAN DYKE: I can do it. I can 
36

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 paste it in there.

2 CHAIR MARKOWITZ: You can just cut and 

3 paste, or whatever.

4 MEMBER VAN DYKE: Yeah, maybe. All 

5 right, there you go.

6 CHAIR MARKOWITZ: So, I think Dr. 

7 Friedman-Jimenez is -- if we go to the fifth line 

8 down, where it says that are relevant to the 

9 claim exist to support such comparisons, I think 

10 if we say exist to support -- you can keep the 

11 relevant to the claim, exist to support that the 

12 exposures were in excess of the regulatory 

13 standards. And we need to take out such 

14 comparisons. It's very wordy, but let's just see 

15 if we -- so, what do we have now?

16 So, the Board recommends that the 

17 program advice IH as to claim related IH reports, 

18 and opinions restrict comparisons of claimants 

19 exposures to toxins at DOE facilities to 

20 regulatory workplace exposure standards only to 

21 cases where sufficient IH data that are relevant 

22 to the claim exist to support that the exposures 
37

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 were in excess of the regulatory standards.

2 So, comparisons of exposures to 

3 regulatory standards must specify the amount of 

4 available industrial hygiene data available, and 

5 the specific regulatory limit referenced. 

6 Comparisons of claimant's workplace exposures to 

7 regulatory -- so, in the absence of specific IH 

8 evidence lacks support, and may be prejudicial to 

9 the appropriate resolution of the claim.

10 Probably not the best piece of writing 

11 any of us have ever done, but the question is 

12 does it get the point across?

13 MEMBER BOWMAN: This is Aaron Bowman. 

14 I think it does. I also concur with the 

15 comments from Dr. Friedman-Jimenez, and I think 

16 this covers what he was saying. I was trying to 

17 think of just something to make this more clear, 

18 I thought the last sentence was a little bit hard 

19 to read. This is very minor, but I suggest if 

20 adding two commas could help that particular 

21 sentence.

22 Maybe comparisons of claimants' 
38

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 workplace exposure to regulatory standards, 

2 comma, in the absence of specific industrial 

3 hygiene evidence, comma, lacks support and may be 

4 prejudicial to appropriate resolution of the 

5 claim. That might make it a little bit more 

6 clear. 

7 CHAIR MARKOWITZ: Yeah. Friendly 

8 amendment accepted.

9 MEMBER FRIEDMAN-JIMENEZ: This is 

10 George Friedman-Jimenez. I like this language. 

11 I think it does communicate the points that we 

12 want to make. If we wanted to get more 

13 scientific about it, we do acknowledge that this 

14 will create more work for the industrial 

15 hygienist to track down the actual data, and the 

16 specific regulatory limits. But if we wanted to 

17 get more scientific about it, we would want to 

18 audit what industrial hygiene data do exist, and 

19 how thick or thin that is.

20 Is there enough data? I mean, could 

21 we put confidence intervals on levels of exposure 

22 in specific work places? Are there enough repeat 
39

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 measurements over years to do that? I would 

2 suspect there are not, but that would be a much 

3 larger yet amount of work. So, I think it will 

4 generate more work for the industrial hygienist, 

5 but if we were to really do it right, it would be 

6 even much more work.

7 So, I want to point out that this is 

8 actually a fairly efficient way of doing it. And 

9 also I think it's scientifically balanced, and 

10 fair.

11 CHAIR MARKOWITZ: I would just comment 

12 that there's supposed to be access in the IH data 

13 if they exist, in the overview of a claim anyway. 

14 So, the second to last line, I would, between 

15 lack support, I would add the word objective, 

16 lack of objective support. Support alone is too 

17 weak a word. Other comments, improvements, 

18 suggestions?

19 MEMBER SILVER: We probably want the 

20 word available used only once in the next to last 

21 sentence, minor point. Because there are so few 

22 industrial hygiene data available, it's 
40

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 interesting --

2 CHAIR MARKOWITZ: Good, take it out, I 

3 agree. Sorry Ken, go ahead.

4 MEMBER SILVER: My second point is 

5 that because there are so few industrial hygiene 

6 data available, I would say prior to the mid7 1990s, our provision only to cases where 

8 sufficient industrial hygiene data that are 

9 relevant to the claim exist means comparison to 

10 regulatory standards won't happen in a lot of 

11 these older claims, and that's good. 

12 One anecdote: I toured Los Alamos 

13 records facilities, where I developed expertise 

14 over the previous ten years with then Congressman 

15 Tom Udall, and a representative of the laboratory 

16 had a small cardboard box on the table, and said 

17 this is all our industrial hygiene data right 

18 here. It's changed since then, but very little 

19 for claims prior to the late 1990s. 

20 CHAIR MARKOWITZ: Looking at that same 

21 sentence, since you directed our attention there, 

22 do we want them to specify the amount of IH data, 
41

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 or do we actually want them to specify, cite the 

2 data that exists? Dr. Van Dyke, what did you 

3 have in mind?

4 MEMBER VAN DYKE: I mean honestly I 

5 was going down the same line of thinking that Ken 

6 was. That if you force them to do this, it's not 

7 -- I mean they can't say anything if they don't 

8 have any data. So, it wasn't that important to 

9 me, but citing the data I think is critical in 

10 this. And if I was going to run it to report, I 

11 would say we have five measurements.

12 And this is what these five 

13 measurements say, so we could add a little bit 

14 more detail. 

15 MEMBER BOWMAN: I would concur as 

16 well, it's not amount the amount of data, it's 

17 about sort of the nature of that data, and in 

18 fact, maybe that word can be substituted, the 

19 nature of the available hygiene data.

20 MEMBER VAN DYKE: How about must 

21 describe?

22 MEMBER BOWMAN: Describe, that's good 
42

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 too.

2 MEMBER VAN DYKE: The available 

3 industrial hygiene data.

4 MEMBER BOWMAN: Great. Even if you --

5 MEMBER VAN DYKE: I was thinking about 

6 this sentence, and going back to what Ken said, 

7 the specific regulatory limit, is that clear that 

8 I want the TLV from 1993 referenced? I want 

9 people to say when that -- is this a 1993 TLV, or 

10 is this a 2022 TLV? So, does that need to be 

11 change?

12 CHAIR MARKOWITZ: Well, when you say 

13 the specific regulatory limit referenced, that's 

14 what you mean, right? 

15 MEMBER VAN DYKE: Is that enough 

16 description to get that across?

17 CHAIR MARKOWITZ: I think so. It's 

18 whatever chemical, toxin, whatever source, 

19 whatever year. Okay, I'm cognizant of time, 

20 because I think one of the members of the Board 

21 may need to leave imminently. So, I don't want 

22 to rush the process, but are there other 
43

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 suggestions on the language of the 

2 recommendation?

3 MEMBER SILVER: Well, I think I'm 

4 still an outlier when it comes to looking at old 

5 standards. The example of 1993 versus 2020 was 

6 just given. I feel pretty strongly there's no 

7 reason to go back in time. If this were a tort 

8 case, where we were trying to show the government 

9 was negligent, sure. But since it's a no fault 

10 program, and all we're concerned about is 

11 causation, and dose response, they should always 

12 be using the latest TLVs. So, that's my --

13 CHAIR MARKOWITZ: But the program told 

14 us that's what they do.

15 MEMBER SILVER: Well, do we really 

16 believe it if we're still questioning '93, 2020? 

17 Could we be a little clearer?

18 MEMBER BOWMAN: On that sentence where 

19 we're currently at, that starts with comparisons, 

20 you could just add a comma at the end, the 

21 specific regulatory limit referenced, comma, with 

22 preference for the most current, or something 
44

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 like that. 

2 CHAIR MARKOWITZ: Okay.

3 MEMBER FRIEDMAN-JIMENEZ: I think we 

4 need to be a little careful here, because we're 

5 really interested in the exposure that the person 

6 had early on when they were working there. Say 

7 they started working in 1990, they could have had 

8 high exposures to asbestos before 1993, and then 

9 if we compared to current standards, we don't 

10 know when those measurements were made.

11 So, I think we need to specify when 

12 the industrial hygiene data were gathered, 

13 because it has to be relevant. The word relevant 

14 implicitly incorporates at the time that the 

15 person was exposed. But maybe we should be a 

16 little more explicit about that, that the 

17 industrial hygiene data needs to be from the time 

18 when the person would need to have been exposed 

19 in order to get the disease from that exposure.

20 CHAIR MARKOWITZ: I understand the 

21 point, but I don't really think it's necessary. 

22 Because they look at a claim, if they know the 
45

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 years that they worked, at what facility, what 

2 their job title was, they're looking at where 

3 their data exists. They don't find much, but 

4 they're going to use whatever they find, and 

5 that's going to be from whatever year the person 

6 worked.

7 And by what they do now, and what 

8 we're including in the recommendation, is that 

9 the comparison is going to be with the most 

10 recent standard, but the data are from whenever 

11 the person worked. So, I think that's already 

12 built in to the evaluation. I'm not sure if we 

13 need to spell that out.

14 MEMBER FRIEDMAN-JIMENEZ: I don't 

15 think the data are necessarily from when the 

16 person worked, they're from when the measurement 

17 was made. If they worked from 1990 to 2001, and 

18 the measurement was made in 1998, it might not be 

19 representative of the actual levels in 1991, or 

20 '92. So, I think we do want to specify when the 

21 industrial hygiene measurements were made, I 

22 think that's important part of the industrial 
46

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 hygiene data.

2 CHAIR MARKOWITZ: That may be an 

3 important point, I do think it's a separate 

4 point, and it gets into the other issues with the 

5 IH evaluation significance level, exposure, and 

6 all that. This is intended to -- the only direct 

7 it specifically to this comparison of the 

8 reference standard. So, I'm not sure including 

9 that point is necessary here, if that makes sense 

10 George.

11 MEMBER BOWMAN: It seems like it's 

12 embedded in the must describe the available data. 

13 In the description of the data, you would say 

14 when that data was collected. 

15 MEMBER VAN DYKE: That's exactly what 

16 I was going to say Aaron, is that --

17 MEMBER FRIEDMAN-JIMENEZ: Okay, so you 

18 think that's enough. I just think that by 

19 specifying the most current standard, that that 

20 may be used incorrectly to specify recent 

21 industrial hygiene data, which is not really 

22 relevant to the initial exposures of the person. 
47

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 Okay, I understand your point, I think you're 

2 probably right that describe implicitly includes 

3 the date of the industrial hygiene data. 

4 CHAIR MARKOWITZ: So, line four of 

5 five, it says, quote, sufficient industrial 

6 hygiene data that are relevant to the claim, end 

7 of quote.

8 MEMBER BOWMAN: There is a part with 

9 that thing I had with coverage for the most 

10 current, there could potentially be some 

11 confusion of someone who wasn't obviously a part 

12 of this conversation. We are specifically 

13 referring to the preference for the most current 

14 standards, right? You could add that, make that 

15 more clear. The most current data, the most 

16 current standards.

17 CHAIR MARKOWITZ: Okay, additional 

18 surgery? This is the closest, for the occup med

19 docs on the Board, this is the closest we get to 

20 surgery. Okay, so I guess we should -- let me 

21 read this aloud unless someone else wants to read 

22 it before we take a vote, so we're all looking at 
48

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the same thing.

2 The Board recommends that the Energy 

3 Employees Occupational Illness Compensation 

4 Program advise its staff, and industrial hygiene 

5 contractors that claim related industrial hygiene 

6 reports, and opinions restrict comparisons of 

7 claimants exposures to toxins in Department of 

8 Energy facilities to regulatory workplace 

9 exposure standards only to cases where sufficient 

10 industrial hygiene data that are relevant to the 

11 claim exist to support that the exposures were in 

12 excess of the regulatory standards.

13 Comparison of exposures to regulatory 

14 standards must describe the available industrial 

15 hygiene data, and the specific regulatory limit 

16 referenced with preference for the most current 

17 standards. Comparisons of claimant's work place 

18 exposures to regulatory standards in the absence 

19 of specific industrial hygiene evidence lack 

20 objective support, and may be prejudicial to the 

21 appropriate resolution of the claim.

22 Okay, final comments? Then I think 
49

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 Carrie, can we do a roll call?

2 MEMBER BOWMAN: Wait, one last thing, 

3 sorry, one last incision. So, that first 

4 statement, toxins at Department of Energy 

5 facilities to regulatory workplace standards only 

6 to cases where sufficient industrial hygiene data 

7 exist. So, maybe that are relevant to support 

8 the comparison. We don't want to restrict them -

9 - I mean if there were data to say that there 

10 were exposures below regulatory standards, then 

11 that's okay.

12 But the way this reads is the only 

13 time you should be doing this is when it's in 

14 excess of the regulatory standards, does that 

15 make sense?

16 CHAIR MARKOWITZ: Yeah, sure. 

17 MR. BIRD: Sorry, what needs to go 

18 here? All of it?

19 MEMBER VAN DYKE: Yes.

20 MEMBER BOWMAN: Sorry about that. 

21 That are relevant to the claim, right?

22 CHAIR MARKOWITZ: Yeah, relevant to 
50

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the claim, and that support the comparisons. Is 

2 that good? 

3 MEMBER VAN DYKE: I think that's good.

4 MEMBER BOWMAN: It's a partially 

5 incomplete sentence here, wait. Yeah, it's an 

6 incomplete sentence currently.

7 CHAIR MARKOWITZ: Is that right? The 

8 Board recommends that the program advice for the 

9 IH contractor restrict comparisons for claimant's 

10 exposures to toxins --

11 MEMBER FRIEDMAN-JIMENEZ: After 

12 hygiene data, put in the word exists, and I think 

13 that would make it a complete sentence.

14 CHAIR MARKOWITZ: And actually the 

15 third line, instead of toxins, it needs to say 

16 toxic substances. That's the language of the 

17 act. Okay, are we good now? Okay, so Carrie, 

18 are we ready to do a roll call?

19 MS. RHOADS: Sure. Okay, so we're 

20 voting on draft for recommendation on industrial 

21 hygiene report language, that's on the screen. 

22 I'll start with Dr. Bowman.
51

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MEMBER BOWMAN: Yes.

2 MS. RHOADS: Dr. Silver?

3 MEMBER SILVER: Yes.

4 MS. RHOADS: Dr. Van Dyke?

5 MEMBER VAN DYKE: Yes.

6 MS. RHOADS: Dr. Friedman-Jimenez?

7 MEMBER FRIEDMAN-JIMENEZ: Yes.

8 MS. RHOADS: Dr. Markowitz?

9 CHAIR MARKOWITZ: Yes.

10 MS. RHOADS: Dr. Mikulski?

11 MEMBER MIKULSKI: Yes.

12 MS. RHOADS: Ms. Pope?

13 MEMBER POPE: Yes.

14 MS. RHOADS: Mr. Tebay? I think Mr. 

15 Tebay had to leave. So, there's --

16 MR. BIRD: Carrie I also believe we 

17 have Mr. Key with us.

18 MS. RHOADS: Okay, hi Mr. Key, are you 

19 on? Okay, Kevin, how long has he been on for, do 

20 you know?

21 MR. BIRD: I'm not totally sure, just 

22 noticed him.
52

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MS. RHOADS: Just noticed him, okay, 

2 he may have missed the discussion. Anyway, 

3 that's seven votes for, and five missing, 

4 assuming Mr. Tebay had to drop off, and I'm not 

5 sure when Mr. Key joined.

6 CHAIR MARKOWITZ: Okay, well if Mr. 

7 Key comes back on, and wants to vote, then we'll 

8 ==

9 MS. RHOADS: Okay.

10 CHAIR MARKOWITZ: The recommendation 

11 passes regardless, but if he wants to come back 

12 on, and vote, then I think he should be able to.

13 MS. RHOADS: Sure.

14 CHAIR MARKOWITZ: Okay, I'll write up 

15 the rationale, I'll send it around. Time is 

16 short now because our term expires July 15, I 

17 think, and I'm going to be on an eight-day 

18 vacation pretty soon before that. So I'm going 

19 to be unusually timely in sending you the 

20 rationale. So, it will require a timely 

21 response. Thank you. 

22 Okay, next item on the agenda. 208, 
53

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 we've got an item on asbestos, and then we'll 

2 take a break. You can bring down this language, 

3 you can take it down now Kevin. We don't have a 

4 visual for this next agenda. So, let me refresh 

5 your memory about this asbestos presumption 

6 issue. There is a string of recommendations, and 

7 back, and forth around asbestos presumptions 

8 dating back a few years.

9 The program has accepted many of our 

10 suggestions, and a few of them, they have not 

11 accepted. But the issue at hand now is whether 

12 the list of job titles in the Procedure Manual 

13 that are presumed to have significant exposure to 

14 asbestos, I think before -- there's a certain 

15 date, I think it's 1990, I don't recall quite the 

16 details, but the question is should that list be 

17 expanded to include certain types of engineers? 

18 And the Board did some research on 

19 this issue to try to look at what we know about 

20 the regularity, or predictability of asbestos 

21 exposure in previous era for engineers, in terms 

22 of asbestos. And we did that indirectly by 
54

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 looking at mesothelioma risk. As you know, 

2 mesothelioma is almost always caused by asbestos. 

3 So, if you see mesothelioma in excess numbers, or 

4 frankly in any appreciable numbers at all.

5 It means that there has been asbestos 

6 exposure for those individuals, and if you do it 

7 by job title, and you have sufficient numbers, 

8 you can presume that asbestos exposure was 

9 reasonably widespread in that job title. And 

10 John Dement and I looked at the National 

11 Occupational Mortality Survey to look at which 

12 job titles showed excess mesothelioma, because 

13 it's an indicator of asbestos risk.

14 And we're talking about that NOMS has 

15 data from 1999 to 2014, so mesothelioma has a 

16 long latency, so really tracking that exposure 

17 going back to the 60s, 70s, perhaps into the 80s 

18 for job categories. And there are a sizeable 

19 number of job titles, ones we absolutely expect 

20 from construction maintenance trades, from ship 

21 building, ship repair, et cetera found in the 

22 NOMS database.
55

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 And those are included in the 

2 Procedure Manual, Exhibit No. 15-14. But 

3 included in those are certain types of engineers. 

4 So, included in the NOMS list of excess 

5 mesothelioma, and by excess, we mean a minimum 

6 two, and a half fold increase in risk, and also 

7 minimum of 30 mesotheliomas in the database. So, 

8 it was a stable statistical estimate, 

9 statistically significant, and appreciable 

10 number.

11 And we've gone back and forth with the 

12 Department's contractor on this issue. So, the 

13 Board members have received the PTS report on 

14 asbestos presumptions, and they make a couple of 

15 points. One is that the SEM includes information 

16 about bystander exposure. So, if engineers, or 

17 any job title had bystander exposure, the SEM 

18 recognizes that.

19 And the reason why bystander exposure 

20 becomes relevant, is because for engineers who 

21 don't -- they may not work directly with 

22 asbestos, they would certainly be in the vicinity 
56

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 of asbestos use going back in time, and would 

2 constitute bystanders. But in any case, so one 

3 point that PTS is making that the SEM includes 

4 bystander exposure.

5 I have an opinion about that, but I 

6 want to just summarize what the PTS response is. 

7 They also -- their basic point is that what 

8 chemical engineers, mechanical engineers, and 

9 industrial safety engineers did in a DOE complex 

10 is not sufficiently similar to what the broader 

11 national set of these very same types of 

12 engineers as reflected in the NOMS to enable us 

13 to presume that the DOE engineers had asbestos 

14 exposure.

15 In other words that the disease 

16 experience of engineers across the country, 

17 again, chemical, mechanical, industrial safety 

18 engineers, just those type of engineers, that 

19 their experience nationwide, which reflects 

20 increased risk of mesothelioma, and therefore 

21 asbestos exposure. Not for everyone, but fairly 

22 broadly.
57

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 It's not sufficiently similar to the 

2 DOE engineers to allow us to make that leap of 

3 faith about DOE engineers. And then they go on 

4 about something that I frankly don't quite 

5 understand, that labor categories in the SEM 

6 reflect functional aspects of the work in art, 

7 and these aren't the same as job titles from the 

8 NOMS.

9 And if anybody's read that and 

10 understands that point better than me, I'd like 

11 to understand it better. And therefore they 

12 don't agree that chemical, mechanical, industrial 

13 engineers should be added to the presumed 

14 asbestos list. 

15 Comments, questions, corrections? 

16 While you're thinking, take a look at the SEM for 

17 engineers. I looked at some of the bigger sites, 

18 I looked at Hanford, I looked at chemical 

19 engineers, industrial safety engineers, and I 

20 think mechanical engineers for Hanford. At least 

21 two out of three in the SEM. And asbestos, as 

22 well as many other exposures are listed in the 
58

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 SEM. And then I looked at Y-12, Savannah River, 

2 and Portsmouth, and in none of them did I find 

3 asbestos in the SEM for a chemical engineer, or 

4 an industrial safety engineer.

5 In one of the sites there wasn't a 

6 mechanical engineer, but in any case, as we've 

7 seen before, Hanford, they're an extensive 

8 documentation of potential exposures in the SEM 

9 far greater than many of the other major sites. 

10 So, just at the level of our chemical engineers, 

11 or industrial safety engineers recognized in the 

12 SEM as having potential exposure to asbestos, the 

13 SEM is quite variable in that respect.

14 And in some big sites, I couldn't find

15 it. What that means in a way is that for those 

16 engineers, it's not only that there's no 

17 presumption of exposure, but if the claims 

18 examiner goes to the SEM, and looks for a 

19 chemical engineer with mesothelioma, they look in 

20 the SEM, and they don't find asbestos, then 

21 they're not going to think that this person had 

22 asbestos exposure, at least from the SEM.
59

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 Maybe look at it somewhere else, maybe 

2 the IH will jump in, but at least it's not from 

3 the SEM. Anyway, other people's comments,

4 thoughts on this? 

5 MEMBER BOWMAN: This is Aaron. I read 

6 over the response as well, and with you, Dr. 

7 Markowitz, I don't fully understand the 

8 rationale. And I think the reason the rationale 

9 is hard to understand about they're saying that 

10 the occupational group from NOMS is not the same 

11 as the job categories, is they have one paragraph 

12 describing what they perceive as the differences 

13 in tasks.

14 But they don't relate that to how that 

15 reflects potential exposure to asbestos, and why 

16 that difference that they're pointing out is in 

17 any way related to asbestos. So, I think -- at 

18 least that's why I don't understand the 

19 relationship of the argument to the request. 

20 Maybe that's also partially why you're saying you 

21 don't fully understand it either.

22 And I think that's the issue, I agree 
60

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 with you, I do not fully understand -- I don't 

2 think this fully explains to us their position. 

3 CHAIR MARKOWITZ: Okay. So, I don't 

4 think we're going to get to the heart of this at 

5 this meeting, because I think this is a 

6 protracted dialogue, in which significant time 

7 periods pass between communications making it 

8 awkward at a minimum. But I think unless we're 

9 able to do something by July 15th, which is 

10 unlikely, I think we should turn this over to the 

11 next Board.

12 And put it on their list of things to 

13 look at, and clarify. I think that's what makes 

14 most sense.

15 MEMBER VAN DYKE: So, Steven, maybe we 

16 need to -- I mean, to understand this better, 

17 maybe it's looking at denied mesothelioma claims 

18 to see is this really affecting claim 

19 adjudication?

20 CHAIR MARKOWITZ: Yeah, or for that 

21 matter, I don't know that the system can do this, 

22 but frankly look at the experience of these kinds 
61

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 of engineers in their claims, in particular 

2 mesothelioma claims, or any asbestos disease 

3 claims actually. But I don't think they can sort 

4 claims by job title, job category. But they can 

5 sort by claim, by disease type. So, that might 

6 answer the question, yeah.

7 MEMBER SILVER: When the Board does 

8 get around to doing that, every time I've heard 

9 about industrial safety engineers, my mind has 

10 gone to the technicians who work under them. I 

11 don't know what Duronda's experience was at Rocky 

12 Flats, but I know at Los Alamos, if there was a 

13 messy situation to check out, the white collar 

14 guy with a college degree would send his 

15 community college, or trade school graduate, the 

16 technician to deal with it initially.

17 And often that involved sampling, so 

18 would have an industrial safety technician been 

19 captured under the job title industrial safety 

20 engineer?

21 CHAIR MARKOWITZ: No.

22 MEMBER SILVER: No, well that's --
62

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 CHAIR MARKOWITZ: No, if you look at 

2 the SEM there, it varies by DOE site, but there 

3 are various job titles, and numerous safety 

4 technician slots. 

5 MEMBER SILVER: So, I guess if the 

6 Board prevails, and gets these engineering job 

7 titles recognized, a reality check would be to 

8 make sure that the technicians whose descriptive 

9 chemical engineering technician, mechanical 

10 technician are also included.

11 CHAIR MARKOWITZ: Yeah, good idea. 

12 Other comments? Okay, so I guess we're agreeing 

13 to add this to the list for the next Board to 

14 continue this conversation. And after the break, 

15 when we get to items we think the next Board 

16 should deal with, when I write it up, I'll add a 

17 little bit of detail to this one so they 

18 understand the gist of this conversation today.

19 Okay, so 2:23, let's take a ten minute 

20 break, and reassemble at 3:30. And I think the 

21 desire to leave your phones, and computers on, 

22 don't disconnect, and then we'll just be back in 
63

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 ten minutes. Putting it on mute, that would 

2 help.

3 (Whereupon, the above-entitled matter 

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

5 2:43 p.m.) 

6 CHAIR MARKOWITZ: Okay, so jumping 

7 back onto this, our thoughts about the claims 

8 review that we did, and we're not leaning to make 

9 any conclusions, or recommendations, it's really 

10 just to pass along to the next Board some of our 

11 thoughts on claims review. Areas that we think 

12 should be looked at more closely.

13 And particularly thinking about the 

14 time when the Board would have a contractor look 

15 at a large -- systematically, a large number of 

16 claims. What questions do we have, what issues 

17 do we think should be examined? I think it would 

18 be most helpful to think about, since we've been 

19 talking about industrial hygiene, to talk a 

20 little bit about the industrial hygiene reports, 

21 and what questions we might have.

22 Reminder, our charter is that we are 
64

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 supposed to look at with reference to the 

2 industrial hygiene, and staff positions within 

3 the program at the consistency, quality, and 

4 accuracy of the industrial hygiene, and the 

5 medical reports. So, consistency, objectivity, 

6 and quality, or accuracy, and quality of those 

7 reports.

8 So, with that in mind, that's our 

9 task, what questions would we ask of the 

10 industrial hygiene reports that we've looked at? 

11 For instance I would like to know how consistent 

12 their assessment is of the level of exposure by 

13 job title. If they have any number of claims 

14 from given more of a kind job titles, and they're 

15 ranking it as low exposure, very low, high 

16 exposure, how consistent is that from one claim 

17 to the next for the same job title?

18 Probably not for the same DOE site, 

19 that's probably too much to ask. But some 

20 measure of the consistency across industrial 

21 hygienist. I'm sure there's some method where 

22 they sort of try to come to agreement about the 
65

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 work that they do. But the question is how 

2 successful is it, how consistent are their 

3 interpretations of what various claimants do in 

4 terms of dose, in terms of level, and exposure? 

5 Other thoughts?

6 MEMBER VAN DYKE: I mean given the 

7 limitations on really sorting claims by job 

8 title, or particular exposure, I think that'd be 

9 hard. I agree with what you're saying, I just 

10 don't know if it's possible. I think for me it's 

11 more -- I mean as we talked at our last meeting, 

12 more consistency, and more maybe improving 

13 guidance on frequency, intensity, and duration of 

14 exposure, and how that's described in the 

15 industrial hygiene reports.

16 CHAIR MARKOWITZ: Could you repeat 

17 your last thought there? I missed a key word.

18 MEMBER VAN DYKE: I think more 

19 guidance, maybe coming to some guidance in terms 

20 of frequency, intensity, and duration of exposure 

21 in the IH evaluations. 

22 CHAIR MARKOWITZ: Guidance to the 
66

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 industrial hygienists?

2 MEMBER VAN DYKE: Yes, I think that a 

3 lot of those terms aren't defined, and I think in 

4 the evaluations that we've done already, we've 

5 identified that we don't even quite understand 

6 what high, and low means. So, having some 

7 boundaries around those terms might improve 

8 consistency.

9 CHAIR MARKOWITZ: Yeah. Others, 

10 comments? I'd like to know how accurate, how 

11 correct they are about their judgments. When 

12 they say someone is low to very low, though 

13 depending on expert opinion, that's understood, 

14 that's in the Procedure Manual, that they're 

15 permitted to do that. And in fact, in the 

16 absence of data, that's acceptable. But what I 

17 want to know is are they right? Or how 

18 frequently are they wrong?

19 MEMBER VAN DYKE: That's a really hard 

20 question.

21 MEMBER SILVER: Well, I have some low22 hanging fruit. In the absence of hard industrial 
67

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 hygiene monitoring data, I think the claimants, 

2 and maybe even the IHs are really handicapped 

3 when other kinds of information that is contained 

4 in some of these voluminous claim files is not 

5 pulled out, and incorporated into the SEM.

6 The Parkinson's case that I think 

7 George and I had for the previous meeting 

8 included a hazard inventory developed in the mid9 1980s, in anticipation of Lawrence Berkeley 

10 having to comply with the community right-to-know 

11 law that was about to pass in Congress. And it 

12 goes on for several pages, and building by 

13 building lists qualitatively the major chemical 

14 hazards that are present.

15 And this claimant incurred a slight 

16 disadvantage because those reviewing his file, 

17 claims examiner, and the IH missed a couple of 

18 his exposures that they could have ascertained 

19 there. But the bigger picture is I checked the 

20 SEM for some of the room locations on that hazard 

21 inventory, and the SEM did not reflect the 

22 substances that the management of the laboratory, 
68

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 in their 1985 inventory said were there.

2 So, we heard previously, I think from 

3 John Vance, that sometimes they mine the claim 

4 files, and pull out information that then results 

5 in changes to the SEM. But this was a 

6 particularly grievous case where that did not 

7 happen. And then some other ancillary 

8 information, supposedly he didn't have exposure 

9 to manganese, but they acknowledged on the SEM 

10 that he worked with Monel Stainless Steel.

11 But check of a reference book shows 

12 that it contains up to two percent manganese. 

13 So, that reference book was not on the list of 

14 the standard six sources that the industrial 

15 hygienist always sites, but even if it had been, 

16 would he have nailed that fact, that there was 

17 potential manganese exposure?

18 CHAIR MARKOWITZ: Actually, Monel is 

19 cited in the Procedure Manual with the 

20 Parkinson's disease section.

21 MEMBER SILVER: Yeah, so a lot slipped 

22 through on that claim. I think the more 
69

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 systematic evaluations that you were previously 

2 discussing would be more powerful. But I think a 

3 lot of information contained in the files that 

4 would benefit other claimants, and improve the 

5 SEM is going to waste. 

6 CHAIR MARKOWITZ: I think it would be 

7 interesting to know how often the industrial 

8 hygienists use the occupational questionnaire 

9 information, and any other affidavits, and the 

10 like. And it's entirely possible that they use 

11 them all the time, and it may be part of a 

12 protocol. But at least in the claims we looked 

13 at, you can't tell what the impact of the non-SEM 

14 exposure sources are, how influential they are.

15 So, I think that would be an 

16 interesting question to look at. Let's move on 

17 to the physicians, the contract medical 

18 consultants. I'm looking at the claims we looked 

19 at, what more would you -- what would you want to 

20 look at more deeply, or on a broader number of 

21 claims? I'm personally interested in how 

22 frequently they're wrong.
70

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 I don't think it's the large 

2 percentage of the claims, but I have seen them, 

3 and it's not entirely just a normal variation, 

4 and opinion, because doctors do disagree, but 

5 there is some level of right, and wrong, and I'd 

6 be interested in knowing how frequently they're 

7 actually wrong in their opinions. Other thoughts?

8 I realize we're going back a couple 

9 months to our time when we were looking at the 

10 claims, and it may not be so easy to remember the 

11 questions that we had from that.

12 MEMBER SILVER: Well, I don't like 

13 stepping on the toes of medical decision makers, 

14 but --

15 CHAIR MARKOWITZ: Feel free.

16 MEMBER SILVER: Advocating for 

17 claimants, I've done a little in my time. To 

18 what extent doctors rely on rubrics, and round 

19 numbers, and things that are generally considered 

20 to be true do they get it wrong? So, the 

21 Parkinson's case I was discussing a moment ago, 

22 the industrial hygienist did an underwhelming job 
71

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 on exposures, and then it reaches the CMC.

2 And the CMC says well we don't usually 

3 see Parkinson's more than 20 years past the last 

4 exposure, and this one was 22 years. Seems to 

5 me, a rule of thumb, 20 years, should not have 

6 become a bright line in adjudicating a claim. I 

7 can't recall any other instances where I've seen 

8 a rule of thumb like that being used to 

9 disadvantage a claimant.

10 The asbestos presumptions go in the 

11 other direction, that place the claimant's

12 advantages. But might keep an eye out for 

13 whether doctors are abusing their round numbers, 

14 their rules of thumb. 

15 CHAIR MARKOWITZ: Other thoughts? 

16 Okay, so the other, I think part of it we 

17 wondered about a little bit when we looked at 

18 claims was the decision making of the claims 

19 examiner. They're the ones who are gathering the 

20 data, including SME. They're the ones that write 

21 out the statement of accepted facts, and they 

22 formulate the questions that go to the industrial 
72

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 hygienist, and the physicians.

2 So, are there comments, or thoughts 

3 about their role that we wondered about, that we 

4 thought we should take a closer look? I'm 

5 personally interested in how often they fail to 

6 include certain either important information on 

7 exposure, or disease, or don't include the right

8 information. So, that they're not necessarily 

9 forming the right questions to the consultants. 

10 I don't have a sense on how often that happens.

11 But I'm sure it happens sometimes, and 

12 I think that a closer look at claims should look 

13 at that question. 

14 MEMBER SILVER: I have some more low 

15 hanging fruit if you will.

16 CHAIR MARKOWITZ: Yeah.

17 MEMBER SILVER: One of the doctors, 

18 this is your last shot at me, explain to me how 

19 it's possible for a recognized case of 

20 pneumoconiosis sent over by the Justice 

21 Department would not qualify under Part E for 

22 medical benefits, and impairment rating relative 
73

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 to pulmonary fibrosis? Can you have 

2 pneumoconiosis without having pulmonary fibrosis?

3 CHAIR MARKOWITZ: Maybe Dr. Mikulski, 

4 or Dr. Friedman-Jimenez wants to have a first? I 

5 think George you tried to unmute yourself, but 

6 we're not hearing you if you're speaking.

7 MEMBER FRIEDMAN-JIMENEZ: Yeah, I 

8 generally consider a pneumoconiosis to be one 

9 form of pulmonary fibrosis. There are other 

10 causes of pulmonary fibrosis also that are not 

11 pneumoconiosis, but I can't offhand think of a 

12 pneumoconiosis where there is no pulmonary 

13 fibrosis. And I think we dealt with this, the 

14 lack of synonymity of pulmonary fibrosis, and 

15 pneumoconiosis in the SEM. Is this still a 

16 current problem?

17 MEMBER SILVER: Well, my understanding 

18 has always been what you stated, that 

19 pneumoconiosis is a particular type of pulmonary 

20 fibrosis. So, if the Justice Department 

21 recognizes that a person has pneumoconiosis, how 

22 could the Labor Department say yeah, but you 
74

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 don't have pulmonary fibrosis?

2 MEMBER FRIEDMAN-JIMENEZ: When was 

3 this case from? We had a comment on this, didn't 

4 we, Steve?

5 MEMBER SILVER: Yeah, we discussed it 

6 in terms of the powder coating technician where 

7 maybe there was hard metals disease. But I 

8 wasn't assigned that case, I was assigned 7716, 

9 which was a mechanic at a uranium mill. The 

10 Justice Department paid his pneumoconiosis claim, 

11 and as the law provides, it was then sent over to 

12 DOL for medical benefits, and impairment.

13 And we're talking about claims 

14 examiners, the claims examiner just denied the 

15 pulmonary fibrosis because a doctor had not 

16 penned that magic phrase.

17 CHAIR MARKOWITZ: Yeah, well in any 

18 one claim it's real hard to comment, plus we 

19 don't know the criteria under RECA versus EEOICPA 

20 for other diagnosis, or compensation, so we'd 

21 have to look at the details.

22 MEMBER SILVER: Well, my one last 
75

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 comment would be if it strains medical credulity, 

2 that you could have pneumoconiosis, but not of 

3 pulmonary fibrosis, maybe they need to create a 

4 presumption for the Procedure Manual where no one 

5 has to sweat over whether they also have 

6 pulmonary fibrosis. 

7 MEMBER FRIEDMAN-JIMENEZ: Yeah, I 

8 think that should be clear in the Procedure 

9 Manual. I'm just looking for the Procedure 

10 Manual now to see what the current language is. 

11 I thought we had fixed this problem, because I 

12 know Carrie worked a lot on this, and we came up 

13 with language, but I don't remember the details. 

14 CHAIR MARKOWITZ: Yeah, I don't 

15 remember either.

16 MEMBER SILVER: Yeah, so this denial 

17 took place in June of -- rather December 2020.

18 CHAIR MARKOWITZ: This is one of the 

19 cases we looked at?

20 MEMBER SILVER: 7716. On page 72 

21 you'll see the final decision. If Mr. Vance is 

22 still on the phone, I'm not sure, but I have a 
76

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 question.

2 MR. VANCE: Hey director, so what was 

3 it, it was 7166?

4 MEMBER SILVER: No, 7716.

5 MR. VANCE: All right.

6 MEMBER SILVER: Page 72 is the final 

7 decision. 

8 CHAIR MARKOWITZ: I have a different 

9 kind of question Mr. Vance. At some point I 

10 think we learned that when a claims examiner is 

11 looking through the exposures that they try to 

12 limit the number of toxic substances to no more 

13 than six, roughly that they target. And I 

14 couldn't remember why they do that.

15 Because for some job titles you see a 

16 lot of different exposures, a lot of relevant 

17 exposures. And the reason I raise this is 

18 because it is one of the things that we could 

19 look at, if we look at a larger number of claims, 

20 is the impact of this policy of limiting the 

21 number of toxic substances to six. So, what's 

22 the history, or what's the policy?
77

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 MR. VANCE: Yeah, it's actually seven, 

2 and remember, what you're talking about is 

3 basically an administrative process that we go 

4 through to sort of prioritize those toxins that 

5 are going to probably have the greatest impact on 

6 producing a positive outcome in the case. So, 

7 when you're doing a SEM search, when you're going 

8 through a DAR record, what would be an 

9 appropriate number of toxins for a physician to 

10 consider?

11 So, the Department of Labor said seven 

12 seems to be a reasonable number. If there is a 

13 basis for a claim argument being presented that 

14 allows us to go beyond seven, we will do that. 

15 The question becomes well how many is an 

16 appropriate number of toxins to identify, and 

17 profile for a physician to consider in answering 

18 a causation.

19 So it's really an administrative 

20 process to try to prioritize and refine the 

21 toxins that are going to be the focus of 

22 evaluation as we administer thousands of these 
78

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 claims.

2 CHAIR MARKOWITZ: Okay, thank you. 

3 MEMBER FRIEDMAN-JIMENEZ: Okay, I 

4 found it in the Procedure Manual, can I read the 

5 language here? On page 199 of the current 

6 Procedure Manual, it says under number two, 

7 synonymous fibrotic lung conditions. DEEOIC has 

8 determined that respiratory illnesses such as 

9 restrictive interstitial lung disease, pulmonary 

10 fibrosis, and, or pneumoconiosis generally refer 

11 to the same disease process.

12 And so, they're just saying that 

13 they're synonymous for the purpose of the 

14 Procedure Manual, and as I remember that's what 

15 we had recommended. I don't remember what date 

16 this went into effect, but I would imagine that 

17 that case that you saw Ken, predated this change 

18 in the Procedure Manual. But I think we all 

19 agree that pneumoconiosis is a form of pulmonary 

20 fibrosis, and this has been clarified in the 

21 Procedure Manual.

22 It's on page 199 out of 701, although 
79

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the page number is listed as 185, but if you look 

2 at the numbering on the top in the Acrobat 

3 Reader, it's 199.

4 CHAIR MARKOWITZ: Okay, thanks. Other 

5 comments? Okay, so let's move on on the agenda, 

6 review of public comments. So, this may be more 

7 in the line of advice for the next Board, but a 

8 number of the written comments after last meeting 

9 were very interesting, and presently quite 

10 relevant to the charter of the Board. And I

11 don't think that we need to go through them here.

12 I don't see the utility of going 

13 through them here, because I don't see that this 

14 Board with two weeks left was going to take any 

15 actions. But I went further down the list of 

16 agenda items for the next Board, and the question 

17 really is how should a Board structurally deal 

18 with public comments? We have not developed a 

19 systematic way of following up on comments that 

20 are relevant to our mission, and that touch on 

21 important issues.

22 And how should we do that? Because 
80

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the public comments are coming either from 

2 individuals who have their own experiences in the 

3 system, problems which may be illustrative of 

4 others problems, and they also seem to come from 

5 authorized representatives who have a lot of 

6 experience with claims. So, the question is what 

7 should we do?

8 Should we have a standing working 

9 group that between meetings reviews public 

10 comments, and then brings them to the Board 

11 meetings as issues for exploration? I'm looking 

12 for ideas. 

13 MEMBER FRIEDMAN-JIMENEZ: This is 

14 George. I have a quick question related to that. 

15 Has anyone expressed any satisfaction, or 

16 dissatisfaction with the way that we're doing it 

17 now? The people that make the public comments, 

18 are they satisfied that the Board is hearing them 

19 adequately, and that the Department of Labor is 

20 dealing with them appropriately?

21 CHAIR MARKOWITZ: We don't get any 

22 feedback, so I don't know. I don't know whether 
81

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 the program gets any feedback, or the ombudsman 

2 office gets any feedback about our attention, or

3 lack of attention to the public comments. I 

4 don't know.

5 MEMBER FRIEDMAN-JIMENEZ: Because I 

6 think we've listened pretty carefully to the 

7 comments, and I think we've responded 

8 appropriately to them. And many of them we get 

9 the changes that we request, and some we don't. 

10 But I'm just wondering if there's a problem here.

11 CHAIR MARKOWITZ: Actually I notice 

12 that Ms. Fallon from the ombudsman office is 

13 actually on the call, but if she wants to -- if 

14 that office has gotten any comments. But the 

15 problem I think is that the question in my mind 

16 is are there opportunities for things that we 

17 could fruitfully look at that arise in the public 

18 comments that we're not really following up on? 

19 And I mean again, the interaction with 

20 public comments, it's not really a discussion, 

21 but they are weighing in on problems, on their 

22 perceptions, and for us it can be a very valuable 
82

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 source. And I know that we've looked at them 

2 some, and we talk about some of them. But I'm 

3 not convinced that we do it thoroughly enough, or 

4 systematically enough.

5 So, I think actually having a working 

6 group to review public comments, a lot of the 

7 written comments come in after the meeting. So, 

8 there's always a time delay, and we can't review 

9 them at the meeting, but we can review them at 

10 the next meeting. I think that it could go on 

11 the list of things for a future Board to do. You 

12 think that would work?

13 MEMBER SILVER: If the Board is able 

14 to get back out on the road, and visit sites, 

15 it's not mutually exclusive with having a working 

16 group, but one strategy might be to tee up a 

17 couple of agenda items based on comments that 

18 been received at that particular site, or nearby 

19 sites. I think we were last planning to go to 

20 the Nevada test site.

21 And jelling in my mind was the idea 

22 for the Board to take up in a serious way, the 
83

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 many comments that we've gotten from D'Lanie 

2 Blaze out in Southern California, it's a one day 

3 drive from Las Vegas. So, I was going to propose 

4 to our chair and Board that we carve out a little 

5 time to discuss that with Ms. Blaze, and some of 

6 the effected workers there in the room. 

7 So, it all depends on being able to 

8 get back out on the road, but that might be a way 

9 to re-energize some of the comments we've 

10 received, or get additional refined input from 

11 the public.

12 CHAIR MARKOWITZ: Yeah, okay.

13 MEMBER POPE: This is Duronda Pope. I 

14 agree with Ken. Those public comments, and 

15 having those public comments reviewed is key, and 

16 important for a lot of reasons that are -- the 

17 folks that are making the comments are being 

18 heard, and the comments are being addressed. 

19 CHAIR MARKOWITZ: Yeah. Other 

20 thoughts? Okay, so the last agenda item is 

21 really just making a list of --

22 MEMBER FRIEDMAN-JIMENEZ: Before we go 
84

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 on, I do have one thought, one additional thing, 

2 a question that I think the next Board should 

3 take up. The question is how effectively are 

4 claimants who have some reasonable evidence for 

5 causation, but who don't make the Procedure 

6 Manual criteria for presumed exposure, or 

7 presumed causation, how effectively are they 

8 referred to the CMC, or the IH, and others to do 

9 at an individual level, analysis of exposure, and 

10 causation?

11 Are many people falling through the 

12 cracks there, or just a few, or none? How 

13 smooth, and seamless is that process? Because 

14 the entire setup for having presumptions is 

15 assuming that we're just -- we're making the 

16 presumptions strong enough, and setting the bar 

17 high enough that we won't have false positives. 

18 In other words we won't call people work related 

19 when they're not.

20 But the cost of that is having more 

21 false negatives, missing people, and I'm just 

22 concerned that the part of the system that is in 
85

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 place be effective, that catches people who don't 

2 make the presumed criteria, and do the individual 

3 level analysis, and look at their exposures on a 

4 case by case basis. Assuming that they have some 

5 reasonable evidence

6 CHAIR MARKOWITZ: I'm going to turn it 

7 over to Mr. Vance in a moment for a comment, but 

8 I think most people don't meet the presumptions. 

9 And so most claims are handled on an individual 

10 basis. But Mr. Vance, you want to weigh in here?

11 MR. VANCE: Well, I mean, the process 

12 is designed so that a claims examiner viewing it 

13 ideally wants to try to get folks to fit into a 

14 presumption, because that just makes it 

15 administratively easier to process a claim 

16 through the process. In the absence of either an 

17 exposure presumption, or causation presumption, 

18 that's going to get routed through the normal 

19 process.

20 Whereby we advise the claimant that 

21 they're going to need certain aspects of evidence 

22 from a physician of their choosing. Or, we're 
86

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 going to go to a CNC to try to establish that 

2 causal relationship. So, that's just the process 

3 as it's designed. Now, the outcome of that is 

4 going to be dependent on the physician reviewing 

5 the available exposure data and rendering a 

6 judgment as to whether or not he or she thinks 

7 it's a significant factor of this resulting 

8 whatever the claimed illness is.

9 MEMBER FRIEDMAN-JIMENEZ: So, in your 

10 view, it's working pretty well, then?

11 MR. VANCE: Well, I mean, the process, 

12 I think, works very well. And I think that our 

13 quality control standards, and our reviews of the 

14 cases show that. Again, but we're not looking at 

15 what is the outcome; it's does the process and 

16 procedure work? And I think that we're pretty 

17 confident in that process.

18 MEMBER FRIEDMAN-JIMENEZ: All right, 

19 good.

20 CHAIR MARKOWITZ: So, lastly I just 

21 want to run down a list of items that we think 

22 the next Board should deal with. And I had a 
87

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 list actually, I think I made up for our last 

2 meeting. Let me start to run down this, and then 

3 we can add to them. One is a follow-up on 

4 outstanding recommendations.

5 So, if we're going to make a couple of 

6 recommendations from this meeting, that the next 

7 Board should learn about what the outcome is. 

8 Secondly is to track progress on previous 

9 accepted Board recommendations. Some of them we 

10 don't really need any follow up, but others need 

11 some touching base about what's happened as a 

12 result of those recommendations. 

13 Third is to complete the contracting 

14 process, for the Board to have a contractor to 

15 evaluate claims and evaluate scientific and 

16 technical issues to improve the program. 

17 Fourth is to identify some, either 

18 from the Procedure Manual, from public comments, 

19 from the program itself to identify some 

20 scientific, and technical issues, whereby the 

21 Board can contribute to improvement of the 

22 program.
88

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 I'm thinking the person we were asked 

2 about Parkinson's, about the group 2A 

3 carcinogens, the question of the non-radioactive 

4 health effects of certain radiologic materials 

5 which we never got to. And then, once the 

6 contract is in place actually, to design and 

7 conduct an evaluation of a sizeable number of 

8 claims, so that we can look at, in particular, 

9 the issues around IH for the medical consultants, 

10 the claims examiners with regard to objectivity, 

11 consistency, and quality of the work. We can 

12 recommend that they follow up on public comments, 

13 and find a structural way of making sure that 

14 they review public comments. 

15 Another item on the list is, and I 

16 wonder whether actually we should do this now, 

17 which is, a couple of Board terms ago, the 

18 Department gave us data on the top ten conditions 

19 by overall, and then by either disease type, or 

20 organ site. So, we had the top ten cancer types, 

21 top ten meaning most numbers of claims. 

22 Respiratory, renal, neurologic, and it was eye 
89

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 opening I think, to members of the Board in 

2 multiple ways.

3 And I think that was done through 2018 

4 if I remember correctly. And one thing I think 

5 that would be useful to the Board, is actually to 

6 update that. To take the last whatever, the end 

7 date of the last analysis was through a 

8 reasonable current date, a recent date. Okay, in 

9 the last two, or three years, what are the 

10 overall top ten pulmonary conditions, et cetera, 

11 by organ system, that the program sees what's the 

12 resolution, how many accepted, how many denied. 

13 What's the most common cause for a 

14 denial, update that so we can get a sense of 

15 where the program is on issues of substance. And 

16 I wonder whether -- this is a question for the 

17 Board members, should we go ahead, and request 

18 that now? And submit a data request, so that --

19 because the next Board presumably won't meet 

20 until the fall.

21 That data request can begin, the 

22 Department can work on it, so that might be 
90

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 available for the next Board term? That's 

2 question to the current Board members. 

3 MEMBER POPE: This is Duronda Pope. I 

4 think we should. It's going to take some time to 

5 get that together, so I think we make sure that 

6 that's in place for the next Board, so they'll 

7 have a leg up so to speak.

8 MEMBER FRIEDMAN-JIMENEZ: This is 

9 George. I think that's a great idea, I think 

10 it's a concrete set of information that all the 

11 new Board members can look at that will give them 

12 some real information on what the program is. 

13 And it'll help them get up to speed, so I think 

14 it's a great idea to revisit that analysis, and 

15 update it.

16 CHAIR MARKOWITZ: Well, if we're going 

17 it now, I think the procedure is that we don't 

18 have to formulate any specific language. Frankly 

19 we have it from the last time we requested it. I 

20 do have to complete a form with what the request 

21 is, and the rationale for it, where it fits into 

22 our mission, etcetera. But again, we had it from 
91

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 last time.

2 And so, I think that's pretty easy to 

3 do, but I do think we'd have to vote on it as 

4 information requested if I understand the 

5 procedure correctly. Ryan, Carrie, is that 

6 right? Okay, well it's right. I'm sure they'd 

7 say It's right.

8 MS. RHOADS: Yeah, I don't think you 

9 need to vote on your information request if you 

10 can fill out one of those forms, and submit it to

11 the program. You don't need to vote on exactly 

12 what's on it, you can just fill it out, and do 

13 your panel on the form.

14 CHAIR MARKOWITZ: Thank you. For the 

15 record though, for the transcript, and for the 

16 minutes, I want to ask the Board members who are 

17 present, of which I think there are, if I'm 

18 counting them correctly, seven, or eight. 

19 Anybody who objects to an information request to 

20 the Department for an update on the top ten 

21 tables?

22 Okay, so I hear no objection to that, 
92

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 and let me welcome Mr. Key by the way, to the 

2 meeting. You may have been here for a while, Mr. 

3 Key. I've been looking at other parts of the 

4 screen, but welcome. 

5 Okay, go ahead -- so I'm just running 

6 down a list. I was just reading you a list of 

7 items for the next Board to deal with. What did 

8 I miss? What else do you want to add? What topic 

9 have we raised before, or should we raise that 

10 you think the next Board should work on? 

11 All right. Thank you, Kevin, maybe 

12 that's what we needed. Okay, so I'll write this 

13 up. What I'll do is I'll send it around, it's 

14 going to be pretty simple, it's just basically a 

15 list of items for the next Board.

16 And if anybody has any additional 

17 thoughts, they can send that back, and we'll 

18 submit it before July 15th. So, short turn 

19 around. I think that's all I have on the agenda. 

20 Any other topics, anything we need to come back 

21 to? I don't think anybody's opposed to ending 

22 early. I don't know whether Ms. Fallon wants to 
93

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 comment at all on whether the ombudsman's gotten 

2 any feedback about the public's interaction with 

3 the Board that she wants to share.

4 Not meaning to put you on the spot, 

5 but I know you're here, and if you have some 

6 useful information, we're happy to hear it. 

7 Okay. I think we're done then. 

8 MS. FALLON: I'm sorry, Dr. Markowitz, 

9 can you hear me?

10 CHAIR MARKOWITZ: Sure, go ahead.

11 MS. FALLON: My apologies, I was 

12 having some technical difficulties. Our office 

13 has received some comments by individuals, or 

14 requests for assistance I should say that 

15 overlap. We had some of the comments, and 

16 questions that have been provided to the Board. 

17 I would not characterize it as frequent, but it 

18 certainly has happened on a number of occasions. 

19 CHAIR MARKOWITZ: Okay.

20 MS. FALLON: We've done our best to 

21 assist those individuals to the extent that we 

22 can, understanding that we don't speak for the 
94

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 Board, or DEEOIC, but where we have the resources 

2 to conduct some research, or to point those 

3 individuals to relevant resources, we have done 

4 that. 

5 CHAIR MARKOWITZ: Okay, thank you. 

6 Yeah, I mean we don't help individuals, that's 

7 not the Board's task, so we occasionally get 

8 requests for help. That would go to the 

9 Department, or it would go to the ombudsman's 

10 office, and it's not something that we're really 

11 charged to do. Thank you. Okay, so a couple 

12 things I just want to say, and then I think Ryan, 

13 you get the last word, is that right?

14 MR. JANSEN: I think so.

15 CHAIR MARKOWITZ: Okay. I just want 

16 to thank the Board members, thank the Department 

17 of Labor staff, and members of the public, and 

18 other members of the government who have been 

19 part of the Board's work in the last couple of 

20 years. The Board members, of course we all have 

21 jobs, and other things we attend to, and it's not 

22 easy to understand, and assist a very complicated 
95

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 system, a system that evolves, improves.

2 And with frankly, very few resources 

3 for the Board. But setting that aside, it is a 

4 complicated system, and we try our best to 

5 understand it, and to provide advice to improve 

6 it. So, I want to thank the Board members. Of 

7 course the new Board has not been appointed, so 

8 we have no idea if there's any carry over. We do 

9 know that Ken silver is not returning.

10 So, I want to thank you Ken, for 

11 serving on the Board since 2016 for all of your 

12 input, and insights, so thank you very much Ken, 

13 and good luck with -- all the time that's freed 

14 up by not serving on the Board. And I want to 

15 thank Kevin, of course for his support for this 

16 meeting, and Carrie, and Ryan for assisting us in 

17 our work with the Department.

18 And Mr. Vance for always being willing 

19 to set us straight, and to provide information 

20 about the program, and how the program works. If 

21 we don't get it right all the time, it's because 

22 it's a complicated program that you've fashioned, 
96

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 so thank you. And I think that's -- if any other 

2 Board member wants to make a closing comment 

3 before we hand it over to Ryan, you're welcome to 

4 do so now.

5 MEMBER POPE: This is Duronda Pope. I 

6 also wanted to thank Dr. Silver. Thank you for 

7 being on the Board, I appreciate your comments, 

8 your experience with our sisters, and brothers 

9 that are sick, and the families that have had to 

10 struggle, and try to get compensation. I 

11 appreciate your insight, and your expertise, and 

12 good luck with your other assignments.

13 MR. VANCE: And let me just add for 

14 Ken, as a parting thank you, I went, and found 

15 that reference you mentioned earlier for the 

16 Lawrence Berkeley Lab, the IH data, I extracted 

17 that, and have just sent it to Paragon, so that 

18 is your parting accomplishment. So, thank you 

19 very much for bringing that to our attention.

20 CHAIR MARKOWITZ: And Ken, there is 

21 the public comment route if you want to weigh in 

22 in the future, you can send in written comments, 
97

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

1 or appear at meetings, and make oral comments, 

2 that'd be great.

3 MEMBER SILVER: Well, if you get up on 

4 the road to some nice places, particularly out 

5 west, I'll take you up on it.

6 CHAIR MARKOWITZ: Okay, well I have no 

7 idea when that might happen, but so it goes. 

8 Okay, any other comments from the Board? Okay, 

9 fine, then let me turn it over to Ryan.

10 MR. JANSEN: Thanks Dr. Markowitz. I 

11 would just like to echo your comments, and thank 

12 you, and the Board for all of your hard work, and 

13 participating in a robust discussion today. I'd 

14 also really like to thank Carrie, and Kevin for 

15 facilitating this meeting, and making sure 

16 everything goes smoothly, and also John for 

17 supporting the discussion, and the work of the 

18 Board.

19 So, without anything else, I believe 

20 that is it, and the meeting is adjourned.

21 (Whereupon, the above-entitled matter 

22 went off the record at 3:25 p.m.)