Recommendation #7 — We recommend that the Department of Labor re-organize its
occupational physicians into an office comparable in organizational structure to the Office of the
Solicitor of the Department of Labor, with physicians organized in groups to support OSHA,
MSHA, OWCP, and other units, as well as to provide overall support to the Department of
Labor.

The Board has recommended that a separate agency within the Department be established
to provide medical advice to OWCP on the basis that it would help ensure quality,
consistency and objectivity. While OWCP appreciates the Board’s recommendation
regarding the provision of medical advice specific to the EEOICPA program, OWCP
believes that further information needs to be provided to the Board for it to have a fuller
understanding of the current structure OWCP has in place to provide medical advice to
the EEOICPA program. In particular, OWCP will provide information on the role of
OWCP’s Branch of Medical Standards and Rehabilitation (BMSR) and the medical
staffing of that branch, as well as the use of contract medical consultants and the process
OWCP uses to review the reports of these medical consultants. OWCP believes that
following the exchange of this information, some of which has already occurred, the
Board will be in a better position to provide a recommendation that is tailored specifically
to the EEOICPA program.


that the new interface (portal) be programmed to assure that each claimant can only see
his or her own specific and targeted information from our claims and document
management systems. This activity will begin in FY 2018, if OWCP is able to obtain
additional resources. To access this new interface, DEEOIC would need to create tools
and implement methods to authenticate users accessing the portal, including creating and
maintaining two-factor authenticated username and password access and system
provisioning that assures case specific access to only what the user is authorized to see.
Additionally, DEEOIC’s systems are not currently able to be accessed outside of the
DOL firewall, so there would be additional security measures and costs to develop and
maintain the integrity of our claimants’ private data and to protect against the
vulnerabilities created by public access. Costs would include those for initial start-up and
annual maintenance. We would also need to modify our existing IT contract and procure
new contracts for identity proofing. DEEOIC will need to develop new procedures,
procure additional resources, issue contract modifications and develop training.

With regard to providing the industrial hygienists and contract medical consultants with
full access to the case file, we do not believe such access is appropriate for several
reasons. First, we believe there are potential challenges associated with industrial
hygienists and contract medical consultants (CMC) developing their own set of facts after
review of the file, thereby usurping the primary function of our claims examiners as
finders of fact, and in particular, those facts that need to be presented to these consultants.
In addition, claimants often submit voluminous amounts of medical documentation
(sometimes thousands of pages) regarding all medical treatment they’ve received during
their lifetimes. Many of these documents are unrelated to the medical condition being
claimed or the reason for a referral to a CMC.

While it is never the intent of a claims examiner to conceal information, it has been
OWCP’s experience that it is operationally inefficient, and often uneconomical, to supply
superfluous documents to the CMC when only parts of the medical information is
pertinent to the issue at hand (e.g. completion of an impairment rating for an accepted
lung condition). Finally, when cases are referred to industrial hygienists, the claims
examiners are seeking guidance on a particular set of circumstances. It would be
inappropriate for an industrial hygienist to be required to sift through all of the various
employment, exposure and medical documents in order to make his or her own
determination regarding which documents are to be reviewed. It is the claims examiner’s
responsibility to determine the questions that are being asked of the specialists and to
provide them with the documents that are relevant to the issue of concern. Finally, it has
been OWCP’s experience that the contractors performing this work do not want to be
required to sort through potentially thousands of pages of documents for each claim, most
of which are not relevant to the questions being asked of them.


U.S. Department of Labor Office of Workers’ Compensation Programs
Washington, DC 20210

File Number:
SEP 19 2017
Dr. Steven Markowitz
Chair
Advisory Board on Toxic Substances &
Worker Health

Queens College, Remsen Hall
65-30 Kissena Boulevard
Flushing, NY 11367

Dear Dr. Markowitz:

lam pleased to send you the response of the Department of Labor to the recommendations made
by the Advisory Board on Toxic Substances and Worker Health, at the Board’s October 2016
public meeting (enclosed). We provided you an interim response on March 24, 2017, and the
enclosed elaborates on the matters discussed therein.

I would also like to express the Department’s appreciation for the dedication and expertise that
the Advisory Board is providing to the Energy Employees Occupational IlIness Compensation
Program and its stakeholders. Your important work is making a difference.

On behalf of the Department, the Office of Workers’ Compensation Programs, the Energy
program, and the communities we serve, I look forward to the continued efforts of the Advisory
Board.

Sincerely,
es
julia K. Hearthway

Director
Office of Workers’ Compensation Programs

Enclosure


Department of Labor Responses to Recommendations from the October 2016 Public
Meeting of the Advisory Board on Toxic Substances and Worker Health

Recommendation #1 — We recommend that EEOICPA Circular No. 15-06 (issued December 17,
2014), Post 1995 Occupational Toxic Exposure Guidance, be rescinded.

As OWCP communicated to the Board in the interim response of March 24, 2017, we
agree with this recommendation and have rescinded this Circular, on February 2, 2017.
While OWCP believes that there is literature to support that there were greater safety
measures in place beginning in the late 1990s, the Circular was rescinded to avoid the
appearance that one cohort of claimants is being held to a higher burden of proof than
others. We have a plan in place to review cases that may be affected by this change.

Recommendation #2 — We recommend that the [Division of Energy Employees Occupational
Illness Compensation] DEEOIC ensure that the disease exposure links identified by the sources
listed in Table 3-1 of the Institute of Medicine (IOM) report, Review of the Department of
Labor’s Site Exposure Matrix Database (2013), are included in the Site Exposure Matrix
database (SEM).

OWCP agrees that a number of the references provided by the IOM may be useful. To
facilitate implementing this recommendation, it would be very helpful if the Board
reviewed the list of references and narrowed the list specifically to those sources the
Board believes are most relevant, with recommendations as to how they could be used in
the SEM. As we reviewed the list of 11 sources, we found that some of the information
is not relevant to occupational exposure, some sources are redundant, and some sources
contradict other sources listed in the Table. OWCP shared this information in the interim
response sent to the Board on March 24, 2017, and the Board has agreed to provide more
specific and relevant information.

Recommendation #3 — We recommend that former workers from the Department of Energy
(DOE) facilities be hired to administer the Occupational Health Questionnaire (OHQ).

OWCP agrees that it is beneficial for former DOE workers to administer the OHQ
interview. Currently, the Resource Centers, which conduct the OHQ interviews, are
operated by a contractor. The contractor employs 17 former DOE employees (14 staff
members and three managers) out of the approximately 60 total employees. Former DOE
employees work in nine of the 11 Resource Centers. When vacancies occur, the program
encourages the recruitment of former DOE employees, to take advantage of their
experience and familiarity with DOE work processes, labor categories and work
environments. DEEOIC helps to ensure that all Resource Center staff are adequately
trained and skilled in assisting EEOICPA claimants, including conducting OHQ
interviews.

Recommendation #4 — We recommend that DEEOIC establish a process whereby the industrial
hygienist (IH) may interview the claimant directly.


OWCP agrees that there are certain circumstances in which it may be beneficial for the
IH to speak directly with the claimant. The claims examiners have legal responsibility for
adjudication of claims. As the examiner’s role is the finder of fact and the liaison between
the IH and the claimant, OWCP believes that the claims examiner’s participation in any
discussion between the IH and the claimant would be necessary and beneficial.
Therefore, in these circumstances, the claims examiner would coordinate any discussion
between the IH and claimant. DEEOIC has begun to develop procedures for claims
examiners to use when such discussions are appropriate.

Recommendation #5 — We recommend DOL review policy teleconference notes, redact
confidential information, and post the information in a publically available database searchable
by topic area.

OWCP does not support this recommendation. In the past, DEEOIC management and
Policy Branch staff had conducted internal policy calls on a monthly basis to discuss
specific cases, often complex or unusual in nature, which may not align precisely with
broader policies. While we provided the Advisory Board with the policy call notes, the
notes nevertheless generally constitute case-specific, pre-decisional internal policy
deliberations which OWCP does not believe are appropriate for the general public. In this
regard, the policy calls are an informal discussion forum for open and candid
conversations about the details of individual cases. If the agency participants believed
the notes from these discussions were to be shared with the public, it could likely inhibit
the open exchange of ideas. Nevertheless, DEEOIC carefully evaluates each policy
question/determination, and where material is considered to have broad applicability, any
resulting policy is added to the Federal (EEOICPA) Procedure Manual, which is updated
regularly and is available to program staff and the public on the OWCP/DEEOIC
website. We recently converted the online Procedural Manual to a PDF format, and it is
now searchable by topic area.

Recommendations #6 and #8 —

#6: We recommend that the Department of Labor explore the feasibility of prospectively having
new case files made accessible to the claimant through a password protected electronic portal.

#8: We recommend that the entire case file should be made available to both the industrial
hygienists and the contract medical consultants when a referral is made to either, and not be
restricted to the information that the claims examiner believes is relevant. The claims examiner
should map the file to indicate where relevant information is believed to be.

Recommendations #6 and #8 are addressed together, as they are both regarding access to
case files and have common associated technological and policy issues.

OWCP supports the first of these two recommendations. We agree that claimants are
entitled to access to their own case files. To implement this recommendation, DEEOIC
plans to leverage technological solutions utilized by other divisions within OWCP.
While implementing this recommendation may seem simple on the surface, it requires