U.S. Department of Labor Office of Workers’ Compensation Programs

Washington, DC 20210

August 31, 2023

Dr. Steven Markowitz, Chair 

Advisory Board on Toxic Substances 

and Worker Health

Queens College, Remsen Hall 

65-30 Kissena Boulevard

Flushing, NY 11367 

Dear Dr. Markowitz:

Thank you for your letters dated July 3 and July 7, 2023, transmitting recommendations adopted 

by the Advisory Board on Toxic Substances and Worker Health (Advisory Board or Board) 

during its meeting on May 17-18, 2023. On behalf of Acting Secretary of Labor Julie A. Su, to 

whom you addressed your letters, the Office of Workers’ Compensation Programs (OWCP) 

responds to the recommendations herein.

The Board adopted the following recommendation regarding Assessment of Validity of Contract 

Medical Consultant (CMC) Reports in the Examination for Claims:

The ABTSWH recommends that the EEOICP implement a mechanism to evaluate the

validity and accuracy of the opinions and rationales that are expressed in the reports of the 

Contract Medical Consultants (CMC) in the claims evaluation process, with particular 

attention paid to the issue of causation of disease. This process may most usefully be applied 

to denied claims but may also be applied prospectively to a number of claims under 

evaluation. This mechanism should have sufficient independence of the current method of 

developing and obtaining CMC opinions in order to avoid actual or perception of conflict of 

interest.

Supporting its request, the Board provided the following rationale:

The Board recognizes that the EEOICP has in the past assessed aspects of the quality of the 

Contract Medical Consultant (CMC) reports that are obtained in the evaluation of claims in 

EEOICP. These aspects include timeliness of report, selection of appropriate medical 

specialties, responsiveness to questions posed by claims examiners, inclusion of welldeveloped rationales in the reports, and others. These are important attributes of the 

contract medical consulting process and can be assessed by non-medical personnel.

However, the Board notes that the current evaluation process of the CMC reports does not 

directly assess whether the opinions expressed by physicians in these reports and the 

medical knowledge upon which they rely conform with generally accepted medical opinion. 

That is, the validity or accuracy of these reports is not assessed, either in the routine claims
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evaluation process or by way of a special audit of a sample of CMC reports on a periodic 

basis. As a general matter, physicians may face the same set of medical facts and may vary 

in their interpretation of those facts in making decisions, especially about disease causation. 

Such variation within a reasonable range of opinion is normal, expected, and tolerable.

However, in its review of claims, the Board has noted that a minority of CMC reports are in 

gross error, even as they appear to meet quality criteria of timeliness, selection of 

appropriate medical specialty, responsiveness to questions posed by claims examiners, and 

inclusion of well-developed rationales in the reports. This is not surprising given the volume 

of claims and the challenges inherent in decision-making about complex diseases and their 

causes. In addition, occupational medicine is a very broad medical discipline with many 

niches. Not all such physicians have the combined clinical and epidemiological skill sets 

required to weigh in accurately about disease causation.

The EEOICP program needs to develop an enhanced capability, strategy, and protocol to 

ensure that CMC reports are valid and accurate and that the current CMC contractor 

receives needed feedback and takes corrective actions to obtain a very high level of quality 

of CMC reports. The Board stands ready to provide additional advice to the program in this 

process.

Regarding the recommendation, OWCP fully agrees with the Board that the medical opinions 

from CMC physicians are an integral component of the claim development process and must be 

of the highest quality and reliability given the weight they are given in the claims adjudication 

process. However, DOL finds the recommendation that additional oversight mechanisms are 

needed to be problematic.

Current adjudication procedures provide claims examiners (CE) with the necessary guidance to 

assess the weight of medical evidence in determining the validity and accuracy of medical 

opinions submitted by a CMC.

Additionally, other programmatic safeguards also already exist. In those situations, in which a 

CMC opinion lacks proper foundation or medical rationalizations, CEs are required to demand 

additional opinion evidence from the physician. Further, the program has clearly defined 

mechanisms for evaluating the accuracy and quality of CMC opinions. Finally, DOL employs 

dedicated staff whose sole responsibility is to perform quality assurance reviews of actions taken 

to adjudicate cases.

As these actions are already defined within the program processes and are carried forth within 

the existing due process procedures afforded all claimants to perfect their claim under the Act, 

additional review runs a risk of duplication of effort and delay in the claim adjudication process. 

When a claim is denied by the program, the decision provides a clear explanation to the claimant 

why the medical evidence of record was insufficient to establish the claim and provides the 

pathway that can be followed to perfect the opinion evidence.
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Nevertheless, since the mandate of the Board speaks specifically to providing guidance about the 

weighing of evidence under the Energy Employees Occupational Illness Compensation Program 

Act (EEOICPA), the Department requests that the Board provide specific guidance or references 

to medical health science data that can be communicated to staff or CMCs about medical 

standards or epidemiological data that could serve to eliminate or reduce instances of “gross 

errors,” as is mentioned by the Board in its recommendation rationale. This would work to 

improve the qualitative and probative value of medical opinions relied on by DOL to adjudicate 

claims.

The Board adopted the following recommendation regarding Improvements in Industrial 

Hygiene (IH) Assessment of Exposures in EEOICPA Claims:

The ABTSWH recommends that exposure assessments made by Industrial Hygienists (IH) be 

enhanced to specifically refer to the basic metrics of exposure science: (1) exposure intensity, (2) 

exposure route, (3) exposure frequency, and (4) exposure duration. These elements can have 

distinct value in determining causation. These metrics may further be divided by the facility and 

job under which they occurred for a claimant as relevant. We recommend that DOL adopt an IH 

exposure assessment form that puts the work of the IH in the context of these four basic metrics 

of exposure. The toxicants to be included on the form would be those determined relevant to the 

claimed medical conditions. An example form is provided with this recommendation.

Supporting its request, the Board provided the following rationale:

Referral of a case for industrial hygiene review and evaluation of potential exposure is a 

critically important part of the claim adjudication process, with numerous stakeholders relying 

on this evaluation for their next decisions. These include the claims examiner, the treating 

physician, the contract medical consultant and the claimant. The importance of this report in 

subsequent decision-making, especially causation analysis, is fundamental. The basic metrics of 

an exposure assessment influence in distinct ways the different health effects associated with that 

exposure. These basic metrics are: 1. Type of exposure (direct, bystander, or area) 2. Route of 

exposure (inhalation, ingestion, skin absorption) 3. Intensity of exposure (concentration) 4.

Frequency of exposure 5. Duration of exposure 6. Calendar timing of exposure (appropriate 

latency) 7. Use of personal protective equipment (PPE), engineering controls or other mitigating 

factors. Information about each of these elements of an exposure can contribute to the 

determination of causation for one condition differently from how that same exposure may 

contribute to another condition. Their value to this process may range from very relevant, to 

vague, to unknown. The accuracy of causation determinations by medical professionals can be 

harmed when all the aspects are fused together as a single metric as an exposure that may be of 

low relevance for one condition, could be of high relevance for another. For this reason, a 

singular assessment of relevance can obscure rather than aid the causation decision-making 

process.

Therefore, the Board recommends that the IH report explicitly state the sources of information 

used to make the determinations. In many cases, there is no documentation available, and this 

would be important information for the end user of the industrial hygiene report to have. Our 

recommendation is to implement a substantive change in the reporting of exposure assessments 

to better inform the determination of causation. Specifically, the exposure assessment and
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referenced summary report should include the key metrics describing the exposure as distinct 

categories for each relevant exposure. The Board proposes a new IH exposure assessment form 

(attached) including these metrics to help inform and guide this recommended change in 

process.

Regarding the recommendation, DOL agrees that the metrics of exposure science referenced by 

the Board are important factors that must be used to accurately inform a physician’s opinion on 

the relationship between an employee’s occupational exposure to a toxic substance and a 

claimed, diagnosed illness. From DOL’s perspective, the current IH reporting methodology 

communicates much of the information the Board references. DOL has attached a recently 

completed report that was modified to reference fictious employee demographic information.

From this example, the narrative content and a summary table provide data from the professional 

judgment of the IH about the nature of the employee’s exposure to different toxic substances and 

refers to the basic components of exposure analysis. While IH reports are tailored to the unique 

circumstances of each claim, the example demonstrates the general approach that DOL takes 

profiling toxic substance exposures.

The report contains an accounting of the employee’s work history, including a description of the 

duration of employment for each job worked. The report goes on to provide a narrative 

discussion of temporal considerations employed by the IH to judge the extent of exposure before 

and after the mid-1990s. It provides a discussion of each targeted toxic substance under review, 

and likely routes of exposure. The discussion also describes the likely mechanisms of exposure. 

For each toxic substance, the IH then provides a professional judgment about the likely intensity 

and frequency of exposure. Within the Conclusion section of the report, the IH summarizes the 

assignment of frequency and level to each targeted toxic substance within a table. This is done 

for each position with a likely significant exposure. DOL considers the existing methodology of 

communicating exposure data to be sufficient for a qualified physician to possess a 

comprehensive understanding of the basic metrics of exposure referenced by the Board.

Nevertheless, DOL agrees that adjustments are warranted to the IH reporting methodology that 

will serve to enhance the quality of IH profiles. A summary table does provide an efficient 

manner of communicating information. Currently, DOL does not include a summary table for 

cases that involve a limited number of toxic substances or for employees with a non-complicated 

work history. IH’s also do not include a summary table for the assignment of exposure that is 

not deemed significant. DOL agrees to add a summary table for reports that involve the 

assignment of significant exposure to any toxic substance.

Regarding the table itself, DOL agrees to include the Board’s proposal about the addition of a 

data field relating to the type of exposure (direct/bystander/area). This information will provide 

added contextual information that a physician may find useful in informing an opinion about 

causation.

Regarding the other table fields that the Board proposes, DOL has concerns with the scientific 

value of reporting such information. Moreover, DOL is concerned that providing summary data 

about certain topics may not communicate nuances that can be better explained in a narrative 

format. For example, reliable data is very rarely available about the proper use of Personal
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Protective Equipment (PPE) by employees. Any reference to PPE use in current reports is 

generally discussed in general terms as having been available or potentially used by an 

employee. From DOL’s perspective, it is more critical to describe documented violations of 

established PPE protocols, including lack of or improper PPE use during hazardous working 

conditions, and the IH reports contain this information when it is available. DOL does not 

believe it can reliably or accurately categorize PPE use in the manner described by the Board. 

DOL does not believe that providing a table for the sources of data, listing file page numbers for 

IH monitoring data, or comments adds value to the existing reporting methodology. IH reports 

refer to the sources of information reviewed within the narrative content. Any important 

commentary about the referral will also be discussed by the IH in the narrative and its inclusion 

in a table would be redundant. Finally, DOL does not agree that providing page numbers about 

IH monitoring data, or the lack thereof, is a necessary reporting requirement. The reviewing 

physician is expected to use the interpretation of exposure data, as interpreted by an IH, to render 

an opinion of causation. DOL does not consider it necessary to provide the physician with 

specific IH monitoring data that is outside of their purview to consider.

Based on the context of the Board’s recommendation, DOL has undertaken action to engage with

our CMC contractor to solicit information regarding improvements to how information is 

communicated in IH assessments. This is an opportunity for CMCs to provide input on whether 

any additional metrics in an IH report will aid them in making their determinations. DOL will 

share any feedback it receives with the Board to further advance our shared interest in ensuring 

the publication of accurate and understandable characterizations of toxic substance exposures.

On behalf of the Department, OWCP, the Division of Energy Employees Occupational Illness 

Compensation, and the communities we serve, I look forward to the Board’s continued efforts.

Sincerely,

Christopher J. Godfrey

Digitally signed by CHRISTOPHER 

GODFREY

Date: 2023.08.31 08:36:11 -04'00'

Director, Office of Workers’ Compensation Programs 

Enclosure: Sample IH Memo