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 U.S. DEPARTMENT OF LABOR 

 + + + + + 

 ADVISORY BOARD ON TOXIC SUBSTANCES 

 AND WORKER HEALTH 

 + + + + + 

 MEETING 

 + + + + + 

 THURSDAY 

 NOVEMBER 5, 2020 

 + + + + + 

The Board met telephonically at 11:00 

a.m. Eastern Standard Time, Steven Markowitz, 

Chair, presiding. 

MEMBERS 

SCIENTIFIC COMMUNITY 

AARON BOWMAN 

MARK CATLIN 

KENNETH Z. SILVER 

MIKE VAN DYKE 

MEDICAL COMMUNITY 

GEORGE FRIEDMAN-JIMENEZ 

ROSE GOLDMAN 

STEVEN MARKOWITZ 

MAREK MIKULSKI 
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CLAIMANT COMMUNITY 

JIM KEY 

DURONDA M. POPE 

CALIN TEBAY 

DIANNE WHITTEN 

DESIGNATED FEDERAL OFFICIAL 

MICHAEL CHANCE 
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 C-O-N-T-E-N-T-S 

Introductory Remarks 4 

Welcome by Julia Hearthway, OWCP Director 16 

Introductions 19 

Review of Agenda 28 

FACA Review 38 

Energy Statute/Creation of the Board 47 

Ethics Rules 57 

Overview of EEOICPA, Statutory Areas 

for the Board 90 

Program Updates, Last 12 Months 160 

Public Comment period 185 
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 P-R-O-C-E-E-D-I-N-G-S 

 11:12 a.m. 

MR. CHANCE: Good morning, everyone. 

My name is Michael Chance. Today is November 

5th, 2020, and I'd like to welcome you to today's 

teleconference meeting with the Department of 

Labor's Advisory Board on Toxic Substances and 

Worker Health. I am the Board's Designated 

Federal Officer or DFO. 

I would like to take this opportunity 

to welcome back returning members to the Board 

and give a greeting of welcome to those newly 

appointed members joining us today. I trust you 

will find the discussion over the next two days 

illuminating. As always, we appreciate the work 

of the Board members in preparing for today's 

meeting and for their forthcoming deliberations. 

Today, we are scheduled to meet from 

11:00 o'clock, and a little bit of a late start, 

11:00 o'clock to 5:00 Eastern Time. There will 

be a public comment period commencing at 3:30. 

There will be breaks interspersed in between 
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there. So for those of you who are new, 

generally, Dr. Markowitz calls those. But they 

will be -- they are on the schedule. 

This morning, we have a few guest 

speakers. Since we are empaneling a new Board 

and welcoming new members, we have special guests 

to provide additional information that new 

members will find helpful. OWCP Director Julia 

Hearthway will welcome the Board. SOL 

representatives Joseph Plick and Tom Giblin will 

provide essential information about the Energy 

statute and the creation of the Board. Please 

pay close attention as this is valuable 

information that will prove helpful as we move 

forward. There will also be other very important 

key members of the program addressing you as well 

today. 

Today, as you are aware, like recent 

meetings that we had in April and June, this 

meeting is completely virtual as a precaution 

against the COVID-19 pandemic. As always, I hope 

everyone is staying safe out there and taking 
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proper precautions. This format is designed to 

ensure everyone's safety. On the team as the 

DFO, I am joined virtually by Ms. Carrie Rhoads 

from the Department of Labor. And you'll also 

hear from Mr. Kevin Bird from SIDEM who is the 

contractor who supports our claims. 

A few things regarding meeting 

operations, the timing, as I mentioned, we'll 

break as needed throughout the proceedings. They 

are lengthy proceedings and go well into the 

afternoon. So there will be breaks for the 

members. 

Copies of all meeting materials and 

any written public comments are or will be 

available on the Board's website under the 

heading Meetings and the listing there for the 

subcommittee. The documents will also be up on 

the Webex screen so everyone can follow along 

with the discussion. You can also visit the 

Board web page for additional information where 

after clicking on today's meeting date, you'll 

see a few things. Just bear with me because 
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there's a couple things I have to get through. 

You'll see the page dedicated entirely 

to today's meeting. The web page contains 

publicly available material submitted to us in 

advance. We will publish any materials that are 

provided to the subcommittee. There you'll also 

find today's agenda which is helpful to plan your 

interest. And if you are having a problem, 

please email us at EnergyAdvisoryBoard@dol.gov. 

If you're joining by Webex, please 

note that the session is for viewing only and 

will not be interactive. The phones will also be 

muted for non-Advisory Board members up until the 

public comment period. Please note that this is 

a new way of conducting these meetings and we ask 

you be patient as we work through the unfolding 

technological issues. You may contact Ms. Rhoads 

or Mr. Bird at any time throughout this meeting 

for technical assistance as needed. 

A few notes about the meeting minutes 

and transcripts, a transcript and minutes will be 

prepared from today's meeting. During Board 
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discussions today, as we are on a teleconference 

line, and I do believe that this has already been 

-- it's already been addressed. I just want to 

reiterate for the court reporter's benefit, 

please speak clearly. 

Make sure when you are coming on for 

the first time to announce who you are and so 

that your name can be clearly recorded. And if 

you have any issue -- I'm sorry. And I'd also 

like to ask our transcriber to please let us know 

if you're having any issues with hearing anyone 

or having trouble recording today's proceeding 

because it is important that we get everything 

transcribed. 

As the DFO, I see that the meetings 

are prepared and ensure they're certified by the 

Board chair. Minutes of today's meeting will be 

available on the Board's website no later than 90 

days. And today, per FACA regulations, if it's 

available sooner, they will be published before 

that 90th day period. Also, although formal 

minutes will be prepared, we'll also be 
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publishing verbatim transcripts which are 

obviously more detailed in nature. Those 

transcripts should be available on the Board's 

website within 30 days. 

A few notes for those of you who have 

been on the Board for a while but also for folks 

that are new, I'd like to remind everybody, the 

Advisory Board members, that there are some 

materials that have been provided to you in your 

capacity as special government employees and 

members of the Board. And those are not for 

public disclosure and dissemination, cannot be 

shared or discussed publicly, including in this 

meeting. 

Please be aware of this as we continue 

with the meeting today. These materials can be 

discussed in a general way which does not include 

using any personally identifiable information 

such as names, addresses, specific facilities of 

the cases being discussed, or doctors. So please 

make sure that we are protecting everyone's 

privacy. 
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One other important reminder for all 

of the Board members regarding non-disclosure 

agreements or NDAs. Recently, Board members 

havebeen granted access to a redacted contract 

and other materials. The Energy program has 

contractors that provide expert opinions from 

industrial hygienists. Board members will soon 

have access to other contract information. 

Please be mindful that Board members 

signed a non-disclosure agreement to get access 

to these contracts and any other information that 

is shared. And so the terms of contracts and 

other private information cannot be disclosed or 

discussed in a public meeting. And these are 

better discussed in a working group. So please 

keep that in mind as we proceed through the day. 

One last note regarding the Q&A 

session, there will be an opportunity to ask 

questions at the end of the sessions as times 

permits for each individual speaker. I believe 

at this point, Dr. Markowitz has agreed to 

control the Q&A period. Due to the nature of 
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some subjects, questions might require tabling 

for further consideration. 

We certainly do not want to get into 

the situation of folks having to make policy 

determinations on the run. So please be 

respectful of each speaker's time and hold all 

questions until their session has ended. If we 

do not have enough time for remaining Q&A, Dr. 

Markowitz can gather the questions that you have 

and submit them for further consideration by the 

program. 

I appreciate your patience, as I had 

to get through all that to get us underway. With 

that, I will turn it over to Dr. Markowitz. And 

then I believe it's a little bit of a different 

today. I believe then after Dr. Markowitz, after 

you had an opportunity to give your opening 

address, we turn it back to Carrie so she can 

introduce Director Hearthway. 

MEMBER MARKOWITZ: Okay, meaning that 

you want us to delay introductions until after 

Ms. Hearthway? Or you want me to go to 
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introductions before? 

MR. CHANCE: Well, I think you can go 

on. She might already be on. 

MEMBER MARKOWITZ: Okay. 

MR. CHANCE: So yeah, just go ahead 

and do what you need to do, but I think she's 

going to join us at 11:20. 

MEMBER MARKOWITZ: Okay, okay. So 

good morning. This is Steven Markowitz, Chair of 

this Board. I want to add to Mr. Chance's 

welcome to everyone to the first meeting of the 

Board in this term. The Board previously had two 

terms. 

Just a couple of comments overall, and 

I'll explain who I am in the introductions. But 

I've spent four years on the Board. And I'd say 

the Energy Employees Occupational Illness 

Compensation Program is an excellent, very well 

developed program that reflects just an immense 

amount of work, hard work, dedication, and 

expertise of the professional staff and others 

who have stood up the program and maintained and 
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improved the program over the years. 

This program is extremely useful, 

extremely valuable to Department of Energy 

workers, former workers in that it has provided 

over 15 billion dollars in compensation and 

payment for medical care in relation to 

occupational illnesses covered under the Act. So 

it's a very important program. And I think the 

Board has and will continue to play a useful role 

in providing advice to the program. 

Just to put it into perspective for a 

moment, I'll just read a very brief section from 

the original 2000 Act, Energy Employees 

Occupational Illness Act, from the sense of 

Congress just to remind us -- I'm getting a 

little feedback here. Is anybody else getting an 

echo? 

MR. BIRD: Yes. 

(Simultaneous speaking.) 

MEMBER MARKOWITZ: Yeah, I think it 

just started up. 

MEMBER GOLDMAN: I'm getting a little 
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echo. 

MEMBER MARKOWITZ: Okay. I think it 

just disappeared. So the original Act says, 

quote, since the inception of the nuclear weapons 

program and for several decades afterwards, a 

large number of nuclear weapons workers at sites 

at the Department of Energy and at sites of 

vendors who supplied the Cold War effort were put 

at risk without their knowledge and consent for 

reasons that documents reveal were driven by 

fears of adverse publicity, liability, and 

employee demands for hazardous duty pay. And 

I'll leave it at that. That's the end of the 

quote there. 

But they were put at risk without 

their knowledge which is the rationale that 

Congress used to set up the program beginning in 

2000. It is a complicated, very ambitious 

program. I can't think of any other compensation 

program that really addresses pretty much the 

full spectrum of occupational illnesses, either 

at a federal level, if you think of Black Lung 
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which is really targeted to a certain exposure, 

certain set of workers, the Agent Orange program, 

the World Trade Center program. 

Again, these are very targeted 

programs in terms of who's covered and what they 

cover. Or at a state workers' comp level which, 

by and large, the states don't really do such a 

great job on occupational illness. This program, 

to me over the last number of years, feels like 

it's, they have to enforce, set up, know, and 

implement the encyclopedia of occupational 

health. And so it's a very complicated task. 

And I think that you'll see in our 

discussions, both in our previous recommendations 

and what we're going to discuss in the future, 

that we, I think, will have something to add to 

this process. Lastly, let me just say that I 

encourage the new Board members who may be a 

little confused or feel not quite part of the 

process yet that during the or after the 

presentations too, raise questions so that you 

understand this program as quickly as possible so 
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we can move forward. So let me leave it at that 

and turn it back to Ms. Rhoads, I think, for Ms. 

Hearthway. Thank you. 

MS. RHOADS: Julia, are you on? 

MS. HEARTHWAY: Yes. Yes, I am on. 

MS. RHOADS: Great, okay. This is 

Julia Hearthway. She's the director of the 

Office of Workers' Compensation Programs which is 

the agency that houses the EEOICPA program. So 

thank you for agreeing to speak to the Board 

today, Julia. 

MS. HEARTHWAY: Yes, good morning, 

everyone. I just wanted to take a few minutes 

and welcome the Board. Welcome back, those Board 

members that are returning and provide a very 

warm welcome and an introduction of myself to the 

new Board members. We, the entire division, and 

myself look forward to working with you on this 

really, as Dr. Markowitz indicated, very, very 

important endeavor for our energy workers. 

I know you have a full agenda today, 

part of which includes for particularly the new 
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Board members an overview of the law. There was 

one aspect I wanted to take just a moment and 

talk about, and that was the work of our claims 

examiners in adjudicating cases. The statute 

waswritten so that claims examiners would 

evaluate and weigh all the evidence, including 

the medical evidence. 

They are the adjudicators. And we, as 

well as all of them, work really hard to make 

sure that quality decisions are being rendered. 

And I wanted to just very briefly share with you 

some of the activities we've done, particularly 

in that regard. We have increased our focus on 

the individual employee performance. 

Our supervisors have been reviewing an 

average of 20,000 case action samples of claims 

examiners' work per year. This last year, that 

was increased from 20,000 to 51,000 case action 

samples per year. These case action samples 

represent all aspects of the actions taken in a 

given case. And they are in addition to the 

already 11,500 case action samples reviewed 
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through the accountability review process. 

What all that means is that there's 

now a total of 62,500 case action samples that 

are reviewed, almost three times what had 

previously been reviewed. We also recently hired 

a quality assurance analyst who will conduct 

quality reviews on a weekly basis, provide 

immediate feedback to the district office and 

management as well as the national office, and 

help guide policy and training management. The 

results of these quality reviews will 

beincorporated into performance assessments as 

supervisors validate and confirm the findings. 

And we will have at least 33 percent 

more case action sampling from it. The program 

will then work with the results to identify and 

develop targeted technical training. And our 

claims examiners have always been incredibly 

dedicated. And as Dr. Markowitz just indicated, 

this is a very complex area. 

But I wanted to take just a moment and 

let the Board know the kind of focus we've placed 
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on the quality of work of our claims examiners 

and how we've stepped up our review of that and 

training on that. And with that, a snapshot, I 

will bid you all good day. And again, my sincere 

welcome to each of you for doing this incredibly 

important work that the Board does. Thank you. 

MEMBER MARKOWITZ: Okay. 

MS. RHOADS: Thank you, Julia. Dr. 

Markowitz, do you want to just continue with what 

you were talking before? 

MEMBER MARKOWITZ: Sure, great. Thank 

you. So we're going to do introductions. It's 

probably -- well, let me just ask a question. On 

this Webex, is there a way in which the 

participants, meaning the Board members, can 

raise their hands or indicate that they want to 

speak? 

MR. BIRD: Sorry, Dr. Markowitz. This 

is Kevin Bird. I think on the fly here, I can 

try to figure something out. We were not 

initially set up for that. But let me see if I 

can -- 
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MEMBER MARKOWITZ: Okay, sure. Okay. 

 Well, if you figure it out, let us know that. 

That'd be pretty useful. So -- 

MEMBER GOLDMAN: Could you put in a 

chat box? 

MR. BIRD: We -- let's talk about that 

offline. No is the short answer. But let me 

figure that out. 

MEMBER MARKOWITZ: Okay, great. Thank 

you. So let's do introductions. Let me start, 

and then I guess I'll call people. That's 

probably the easiest way to do it. 

Steven Markowitz, I'm an occupational 

medicine physician, epidemiologist, professor of 

City University of New York. And I've been 

involved with Department of Energy issues since 

1995, helping to set up the Former Worker Program 

which is a medical screening program for mostly 

retired or former Department of Energy workers 

and have run that program at 14 DOE sites and 8 

different states. Pretty much since that time, 

we screen nuclear weapons workers for 
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occupational illnesses. 

In 2001, I served on a Workers 

Advisory Committee for the Department of Energy 

after they first passed the act, EEOICPA, in 2000 

to provide advice on the set up of that program 

and the past four years have served as chair of 

this Board. So let me just -- I'm going to just 

go down the list here. Ms. Whitten? 

MEMBER WHITTEN: Yes, I'm here. 

MEMBER MARKOWITZ: Yeah, hi. You want 

to just introduce yourself? 

MEMBER WHITTEN: Sure, Dianne Whitten. 

I am a health physics technician by trade. I've 

been in the field since 1988 working exclusively 

at Hanford. I'm also a member of the NWRCP. I'm 

currently a HAMTC officer which is the Metal 

Trades Council that controls the contract for 

Hanford for the affiliate. And I'm just very 

honored to be on the Board and looking forward to 

working with all of you. 

MEMBER MARKOWITZ: Thank you. Mr. 

Tebay? 
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MEMBER TEBAY: Yeah, Calin Tebay, a 

sheet metal worker by trade. At about 10, 12 

years ago, I switched to health and safety at 

Hanford. I'm currently the site-wide beryllium 

health advocate and I'm the representative at the 

Hanford Workforce Engagement Center as well. 

MEMBER MARKOWITZ: Okay, thanks. Mr. 

Pope? Oh, I'm sorry. Ms. Pope. Ms. Pope. 

MEMBER POPE: Thank you. Duronda 

Pope, I work for the United Steelworkers Union. 

I am a retired Rocky Flats worker, worked there 

for 25 years, a returning Board member. Been on 

the Board for four years. And I'm now director 

of my department which is the emergency response 

team. 

MEMBER MARKOWITZ: Okay. Welcome 

back. Mr. Key? 

MEMBER KEY: Good morning. My name is 

Jim Key. I am vice president of United 

Steelworkers Local 550 located in Paducah, 

Kentucky. I am president of the United 

Steelworkers Atomic Energy Workers Council in 
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Washington, D.C. which encompasses nine of the 

Department of Energy's EM sites across the 

nation. 

Provided congressional testimony to 

the House Oversight Investigation Committee 

hearing on September the 23rd of 1999 

specifically on the Paducah workers who had been 

unwittingly and unknowingly exposed to certain 

radioisotopes. I spent 9 of the next 12 weeks in 

D.C. lobbying the congressmen and senators for 

the passage of the EEOICPA on consent. 

MEMBER MARKOWITZ: Thank you and 

welcome. Dr. Mikulski? 

MEMBER MIKULSKI: Yes, hello. This is 

Marek Mikulski, and I'm an occupational 

epidemiologist with the University of Iowa, 

Occupational Environmental Health. I'm the PI on 

the former worker program providing screenings, 

medical screenings to former energy workers from 

the State of Iowa. This is going to be my second 

term on the Board, and I'm looking forward to 

working with everybody and with the Department of 
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Labor. Thank you. 

MEMBER MARKOWITZ: Thanks. Dr. 

Goldman? 

MEMBER GOLDMAN: Hi, this is Rose 

Goldman. I'm an occupational environmental 

medicine physician and an associate professor of 

medicine at Harvard Medical School, associate 

professor of environmental Health at Harvard 

School of Public Health. I've been doing 

occupational environmental medicine and clinical 

medicine since 1981 and also involved various 

teaching and clinical research-type programs. 

And I'm honored to be back on the Board this 

year. I have started last year in the middle of 

the session. And thank you very much. 

MEMBER MARKOWITZ: Thank you. Dr. 

Friedman-Jimenez? 

MEMBER FRIEDMAN-JIMENEZ: George 

Friedman-Jimenez. I'm an occupational medicine 

physician. I run the Occupational Environmental 

Medicine Clinic at Bellevue Hospital, NYU School 

of Medicine. And my interests are occupational 
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medicine, clinical, and occupational 

epidemiology, specifically causal inference at 

the individual level. 

MEMBER MARKOWITZ: Great. Dr. Van 

Dyke? 

MEMBER VAN DYKE: Good morning. This 

is Mike Van Dyke. I'm an industrial hygienist 

and associate professor at the University of 

Colorado Anschutz Medical Campus. My experience 

in the DOE complex goes back to about 1997. I've 

been involved off and on with research projects, 

medical surveillance at several different sites, 

mostly around beryllium. And I am honored to 

serve on this Board, and I'm looking forward to 

getting to know everyone. 

MEMBER MARKOWITZ: Happy to have you. 

Dr. Silver? 

MEMBER SILVER: Ken Silver. I'm an 

associate professor of environmental health in 

the College of Public Health at East Tennessee 

State University. My fascination with historical 

documentation of exposures and emissions at 
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Department of Energy sites began in my PhD 

program 25 years ago. I wound up moving to be 

close to the source of my research at Los Alamos 

National Laboratory and put aside the research to 

do evidence-based advocacy with former Los Alamos 

workers and their family members to get this law 

passed and implemented. 

And I provided Senate testimony in 

October 2007 when implementation wasn't going 

very well. We haven't had an in-person meeting 

for a year. I would've mentioned in the hotel 

lobby or in the elevator that shortly after that 

meeting, I got over some of my problems with the 

industrial hygiene field and became a CIH, so -- 

MEMBER MARKOWITZ: Great, thanks. Mr. 

Caitlin -- Catlin. I'm sorry. 

MEMBER CATLIN: Thank you. Thanks, 

Ken. My name is Mark Catlin. I'm an industrial 

hygienist. I began doing that work in 1981, and 

I retired about a year and a half ago until COVID 

hit. And now I'm back working in consulting. 

My industrial hygiene work has been 
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with labor unions including building trades and 

consulting firms and the University of Washington 

Occupational Medicine Clinic back in the early 

'90s. And that's where I first developed my 

interest in looking at historical exposures and 

reconstruction for mostly workers with a lot of 

asbestos exposure at that time. So my work with 

DOE over the years has taken me to Hanford, Oak 

Ridge, and to -- most recently to Los Alamos. So 

I'm really honored to be on the committee and 

look forward to working with everyone. 

MEMBER MARKOWITZ: Great. There's a 

silver lining to the pandemic is getting Mr. 

Catlin into the field. That's great. Dr. -- 

well, it's a small but important silver lining. 

Dr. Bowman? 

MEMBER BOWMAN: Yes, hi. My name is 

Aaron Bowman. I am a professor and head of the 

School of Health Sciences at Purdue University. 

My area of expertise is in toxicology, in 

particular, metal toxicology, mostly focused 

around neurological toxicology of metals. I am a 
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member of the Society of Toxicology and serve on 

several NIH grant review panels as well as 

academic journals in the area of toxicology. And 

again, this is my first meeting on the Board and 

it is a pleasure to have been invited to serve. 

Thank you. 

MEMBER MARKOWITZ: Thank you. So in 

just a couple minutes, we're going to hear from 

Mr. Plick. We're going to do FACA process and 

rules. So let me spend just a couple minutes on 

the agenda which is pretty transparent actually. 

But the next several presentations, 

actually the previous Board have also heard these 

same presentations that are important and 

required and informative. And then in the 

afternoon, Ms. Pond and Mr. Vance will provide 

overviews of the program. Obviously this is 

important for the new Board members but actually 

for the returning Board members since it is a 

complicated program. 

It is an opportunity to add to what we 

know. And I've asked them actually to covered 
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certain areas in particular which are either 

topical or a source of perhaps some confusion to 

us in the past. So I think those aspects will be 

built into their presentations. 

Mr. Chance, when you introduce folks, 

I think it'd be useful to ask them if they could 

save a couple minutes, particularly in the 

morning presentations, in case there are any 

questions and in the afternoon presentations, if 

they could say a good ten minutes or more for 

questions or more for questions because that'll 

help -- I think help the learning process. Later 

in the afternoon, we have a public comment period 

and it's required. But also, it's been extremely 

important to us in the past. 

Most of our meetings have been on site 

at various DOE communities, Oak Ridge, Paducah, 

Hanford, Los Alamos, I'm sure I'm forgetting some 

of the other places, in which we've had the 

opportunity to hear from former workers or 

current workers who are advocates who have come 

to the meetings. And unfortunately, this 
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telephone-based, web-based meeting format is not 

hugely conducive to a lot of -- certainly not 

interaction, but even necessarily hearing much 

from public commenters, although it is an open 

period and all people who wish to make public 

comment are welcome to do so. 

We are trying to squeeze an additional 

presentation. I'm not sure exactly where we're 

going to place it. We may place it -- if the 

public comment period ends early, we may place it 

then. If not, tomorrow. It'll be from Gregory 

Lewis who's from the Office of Health and Safety 

from the Department of Energy. And he's going to 

spend a few minutes talking to us about the 

Department of Energy role under the act and how 

it relates to the compensation program. 

So tomorrow, Mr. Vance will continue 

with the demonstration of the Site Exposure 

Matrices, and then we'll get into Board 

discussion. And I've listed some topics that are 

held over from previous Board discussions, areas 

that still need further discussion and 
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development is necessary of recommendations to 

the Department. And then we'll go on and discuss 

any new issues that have arisen or will arise for 

future meetings. And we will discuss public 

comments. 

And then finally, we'll develop a work 

plan for the time between now and our next 

meeting. We are required to meet twice per year 

which we have done. We've also had meetings in 

between those semiannual meetings. Sometimes 

when we want to make progress with work, address 

certain recommendations because six months is a 

long period of time to elapse between -- in terms 

of getting our work done. 

So we usually decide on that at the 

end of each meeting or soon thereafter. If we 

break into subgroups or working groups or 

subcommittees, then depending on the nature of 

that process, that is either an open process 

where the public is allowed and encouraged to sit 

in, those have to be scheduled pretty much a 

couple months in advance. Sometimes though if 
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it's a smaller subset of people on the Board, 

then we have a working group meeting which are a 

bit more flexible in terms of schedule. So let 

me turn it back over to Mr. Chance so we can 

proceed with Mr. Plick. 

MR. CHANCE: Thank you, Dr. Markowitz. 

 Kevin, is Mr. Plick on? 

MR. BIRD: I can recheck right now, 

but -- 

MR. PLICK: Yeah, I'm here. 

MR. BIRD: Oh, yeah. He is right 

there. 

MR. CHANCE: All right. I think that 

it looks like we're running on schedule. Please 

take it away, sir. 

MR. PLICK: Okay. Thank you for 

having me. Hello, everybody. It's kind of weird 

to be doing this by phone. But anyway, so my 

name is Joe Plick. My title at the Department is 

I'm the Counsel for FOIA and Information Law, and 

that includes providing advice on the Federal 

Advisory Committee Act among a whole bunch of 
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other laws that I oversee provided by FOIA. 

So I'm here today just to give you a 

little quick overview of the Federal Advisory 

Committee Act, talk a little bit about its 

purpose and background, about what it requires, 

and about our agency responsibilities, and sort 

of how it functions, how the committee functions, 

and what we do. So to start with, purpose and 

background of the statute, the government has 

utilized as committees almost since the founding 

of the republic. I recently came across the fact 

that the very first committee that the government 

established was established by George Washington 

in 1794 just to study what caused the Whiskey 

Rebellion. 

So committees have been around for a 

very long time and providing advice to the 

government. But there came to be a concern that 

it was kind of opaque that no one knew how many 

committees there were or what advice they were 

giving the government or whether they were 

getting balanced advice. And so Congress took up 
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the issue and in 1972, it created the Federal 

Advisory Committee Act which has been slightly 

amended a couple times but nothing substantive, 

although there are attempts currently to amend 

it. 

And basically, it recognizes that 

there's a need for agencies to get this outside 

advice but that the advice should be balanced and 

fair. So it governs the establishment, operation 

and termination of committees. It ensures that 

committees provide advice that's relevant to the 

topic for which they're formed. So in other 

words, it's within the agency's authorization and 

 they are things that the agency really has the 

ability or power to act on. 

It requires agencies to act relatively 

promptly. As I was coming out of a call, I heard 

mentioned they actually meet a couple times a 

year and they have additional meetings. So some 

committees may meet four times a year. Some may 

only meet one. 

So it's not that, but there had been 
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situations where committees have really 

languished and not done much work. So it tries 

to keep things moving and keep them moving. And 

related to that, it provides for accountability 

through cost controls and record keeping 

requirements. And we'll talk a little bit about 

some of those in a second. 

And then finally, it ensures that 

Congress and the public are informed about what 

committees are doing, their reporting 

requirements to Congress by the agency. And of 

course in general as we'll talk in a few minutes, 

meetings are open to the public. So the Act 

applies to committees that are either required by 

statute, authorized by statute, set up through an 

executive order, or an agency can determine that 

it needs a committee and set it up and follow the 

rules. 

Once it's determined that a committee 

is going to be established, the agency has to 

create a charter for the committee that has to be 

approved by the General Services Administration 
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which has oversight over Federal Advisory 

Committee Act matters throughout the government. 

It seems like kind of an odd choice because when 

you think of GSA, you generally think of running 

buildings and things like. But for whatever 

reason, it was decided that they would be the 

lead agency. OMB also has a role, particularly 

in the wake of an executive order that the 

president promulgated about a year ago. 

So the committee has to be balanced as 

I mentioned and balances both in terms of points 

of view and the functions to be performed. So 

it's kind of a -- from the statute's perspective, 

it's sort of a high level requirement for balance 

that you have to analyze for each committee very 

specifically. And statutory committees like this 

committee may have additional requirements of 

Congress in terms of how committees are set up. 

Meetings are generally public, as I 

mentioned before. Detailed minutes are required 

to be kept, and the requirement is specifically 

that minutes be kept. So if you're transcribing 
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or recording the meeting, that doesn't count as 

the minutes. 

Agencies -- GSA has let agencies 

satisfy the requirement through that for a while. 

But I think they got feedback from the public 

that if you've got a meeting that lasts two or 

three days, forcing somebody -- a member of the 

public to wade through that long of a transcript 

or watch that much video to find what is going on 

in the meeting, and maybe the particular part of 

the meeting that was of interest to them wasn't 

there. So they reasserted that there had to be 

actual minutes kept so the public can quickly 

sort of see what the committee worked on and did. 

And then if it was transcribed or recorded, then 

they can go and they find that part of the 

meeting. 

With respect to public comment, I 

understand this committee permits that. The 

statute doesn't require it. The statute requires 

that a member of the public be allowed to provide 

a written comment either before or shortly after 
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the meeting. But good practice, especially for a 

committee like this, I think is to allow public 

comment. 

So the minutes have to be certified by 

the Chair within 90 days of the meeting so the 

Chair has some time to review and make sure 

they're accurate. With respect to meetings, one 

thing I would note here is because the purpose of 

FACA is to ensure that the meetings are open to 

the public, we ask that while you're 

participating in the meeting -- and this may not 

be as big of an issue now that you're all kind of 

on the phone. But if it were an in-person 

meeting, we would ask people not to talk about 

substantive matters while they were in town for 

the meeting but not actually in the meeting. 

And also we ask that if any of the 

members get inquiries from the media that they 

really direct those inquiries to the Chair and a 

designated federal official for the committee. 

Finally, committees, technically, this committee 

does because it's statutory. But without a 
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statutory authorization, committees terminate 

every two years and have to be rechartered and 

reauthorized. Excuse me. 

Moving on to the agency's 

responsibilities under FACA, I'll just touch 

briefly. There are a couple of positions that an 

agency has to maintain with respect to 

committees. The first one is the committee 

management officer who is the person who oversees 

the FACA program in an agency. And as members of 

a committee, you really probably won't deal with 

that person at all. It's more your designated 

federal official. 

And so turning to the designated 

federal official, every committee has to have 

one. That individual has the authority to 

approve and call meetings, to approve the agenda, 

is required to attend, has the authority to 

adjourn a meeting if he or she determines that 

it's in the public interest. I don't know that's 

ever happened. 

I can't think of it ever happening for 
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a DOL committee. I think there may have one or 

two committees of other agencies over the years 

that kind of really got off track and they were 

doing things that had nothing to do with why they 

were being established and a DFO would shut it 

down. I don't anticipate that actually being an 

issue. 

The DFO could chair the committee but 

is not required to and in most cases doesn't. 

But then that person has the administrative 

functions of maintaining the records related to 

cost and membership, maintaining records for 

public availability, ensuring efficient 

operation, and providing reports and reporting 

database that GSA maintains on committees. And 

the DFO is responsible for making sure that the 

information on a committee is updated. 

There also, if there's a meeting is 

closed which we will talk about how to do that in 

a minute and why, then there has to be reporting 

done on that. Materials that are created by a 

committee, reports and background materials are 
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actually filed with the Library of Congress 

eventually. So those are the rules of the DFO. 

Occasionally, I would say in a few years, GAO 

will look at how the government is operating its 

federal advisory committees. So it may be that 

that'll happen soon because it's been a while 

since they've done that. 

So the last responsibility that the 

agency has is to sort of set the agenda for the 

committee. I don't want to overstate that. But 

it can set priorities and objectives and it 

should be a collaborative effort between the 

committee and the agency as to what they're going 

to be working on. But they also have to, at the 

same time, ensure that the committee's advice is 

independent. There's a strong requirement for 

that. 

So that requirement of setting 

priorities and objectives, like I said, is 

collaborative. I mean, you don't want to waste 

time in a committee doing things that the agency 

just isn't going to be able to act on because of 
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budgetary constraints or other things. So that 

should be in discussions sort of ongoing with the 

committee and of course within the constraints of 

what the committee is, in your case, statutorily 

required to do. 

So I'm going to move on now quickly 

and talk a little bit about closed meetings. 

Generally, as I mentioned, FACA committees are 

supposed to be open to the public. But there are 

reasons why a meeting could be closed. And they 

generally track exemptions in the Freedom of 

Information Act. 

So in order to close the meeting, it 

requires approval by the agency and it requires a 

review by the general counsel or in the 

Department of Labor's case, the solicitor. And 

it has to be noticed at least 30 days in advance. 

The reasons why you might close part of a meeting 

is if you're discussing national security 

matters, if you're discussing proprietary 

information or personal information. Those would 

be reasons why you might want to close part of a 
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meeting. 

So for example, if there was going to 

be a discussion that maybe you were going to have 

individuals come and talk about specific medical 

conditions or something like that, then you might 

want to consider closing part of the meeting if 

there's going to be sensitive medical 

information. But otherwise, the meetings are 

open. And like I said, there has to be a report 

of a meeting is closed. 

DOL doesn't generally close meetings. 

There's one exception for committee related to 

trade policy where they can talk about trade 

negotiation policy and things like that. But 

other than that, they're open. And that one has 

a separate statutory requirement for the meetings 

to be closed. 

I heard some mention of possible 

subcommittees. Subcommittees are permitted by 

FACA. It just makes sense that you would do a 

subcommittee to break up the work. They're not 

subject to FACA requirements, although I think 
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you guys hold you subcommittee meetings publicly. 

And so long as the subcommittee doesn't become 

another committee that bypasses the main 

committee, then you don't actually have to follow 

all those rules about advanced notice of meetings 

and things like that. But the agency has to 

approve the establishment of subcommittees. 

And others examples of things that 

don't have to occur at public meetings, 

preparatory work. So if you assign a couple of 

members to draft a recommendation, they can meet 

and get together and come up with a draft. It's 

sort of a variation of a subcommittee, and that 

doesn't have to be done publicly. Also, 

administrative matters, so to the extent of -- 

actually, this meeting, my presentation 

theoretically wouldn't have to be done publicly 

and things like that. 

Public availability of records, a key 

component of FACA is transparency. So the act 

generally states that all records, transcripts, 

minutes, appendixes, working papers, drafts, 
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studies, agenda, and other documents that are 

made available and prepared for by the committee 

shall be available for public inspection. There 

is a provision that's subject to FOIA, but it's 

mainly for information that the agency has if 

it's agency records that would otherwise be 

exempt under FOIA that is shared with the 

committee. Those can still be withheld. And 

again, as I mentioned, the work of subcommittees, 

it does not have to be public. 

Lastly, I'll just briefly touch on the 

fact, as I mentioned before, there is -- there 

has been an effort to amend the FACA. It's 

passed the House a number of times, never been 

anywhere in the Senate. Basically, the way it 

would impact members is it would actually 

probably require more information about members, 

about the agency's process for identifying 

members and selecting them. And there might be 

some additional reporting requirements in the 

ethics rules. 

But again, it hasn't gone anywhere. 
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But who knows. One of these years, it might 

suddenly pass and we'll be scrambling. It would 

also, I think, subject subcommittees to some of 

the same open meeting requirements as the main 

committee. So that's my quick run through of 

FACA. Does anyone have any questions? 

MEMBER MARKOWITZ: This is Steve 

Markowitz. If there are any Board members who 

have questions, now is the time. We don't really 

have any chat function on the Webex, so -- 

MR. BIRD: And this is Kevin. Just a 

reminder to the Board members to unmute yourself. 

You might be muted if you do have a question. 

MEMBER MARKOWITZ: Okay. Thank you 

very much. 

MR. PLICK: You're welcome. 

MEMBER MARKOWITZ: Mr. Chance, do you 

want to introduce the next speaker? 

MR. CHANCE: Yeah, Carrie, could you 

go ahead? 

MS. RHOADS: Yes, sorry. This is 

Carrie Rhoads from DOL. Tom, you're on the line? 
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MR. GIBLIN: Yeah, I'm here. 

MS. RHOADS: Great. This is Tom 

Giblin. He's from the Solicitor's Office, the 

division of the Solicitor's Office that supports 

the EEOICPA program. He's going to discuss the 

statute that covers the Energy program and a 

little bit of the history. Thanks, Tom. 

MR. GIBLIN: Thank you, Carrie. And 

good afternoon to the Board. I did this 

presentation two years ago, so it's nice to be 

back. And I can assure folks that I have not 

aged a single bit in the last two years. You 

have to take my word on it. I'm sure the folks 

who've been there two years ago are the same. 

As Carrie mentioned, I am the 

associate solicitor for the -- it's called the 

Federal Employees' and Energy Workers' 

Compensation division within SOL. Our acronym is 

FEEWC, and it's pronounced fee-wick which is no 

easier than EEOICPA. I guess we were bound to be 

together. 

The FEEWC division, as I said, is 
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within SOL and it's responsible for providing 

legal support for the administration of the 

Energy Employees Occupational Illness 

Compensation Program, the aforementioned EEOICPA. 

This legal support involves legal advice which 

includes statutory interpretation, formal and 

informal legal opinions, review of the agency 

policy and procedures, regulatory work, and any 

litigation associated with EEOICPA. 

We don't have what's called 

independent litigation authority for this 

program. So that means that anything that's 

appealed to the federal district court which is 

where an appeal would go, that is handled by the 

Department of Justice, DOJ. They represent us, 

although obviously we provide a significant 

amount of support since nobody is terribly 

familiar with the statute. It's a very niche 

law. 

Many of you know that EEOICPA was 

enacted in 2020 -- I'm sorry, 2000 to provide the 

medical benefits and compensation for those who 
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worked in the nuclear weapon industry. It has 

amended a number of times. But essentially, 

there are two parts under the act that set out 

the compensation available for covered employees 

and their survivors. 

Part B of the Act which is part of the 

original statute provides uniform lump-sum 

payments and medical benefits to cover the 

employees and their survivors. And they cover 

employees with the Department of Energy, its 

predecessor agencies, certain vendors and 

contractors and subcontractors. Part B also 

provides a smaller uniform lump-sum payment and 

medical benefits to individuals eligible -- found 

eligible by DOJ for benefits under Section 5 of 

the Radiation Exposure Compensation Act, also 

known as RECA and as well to their survivors as 

well. 

Part E of the act provides the 

variable lump-sum payments. That payment is 

based on the worker's permanent impairments of 

the whole body and for qualifying calendar years 
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of established wage loss. It also provides 

medical benefits, and it covers DOE contractor 

employees and also, of course, their survivors as 

long as the death was due to the covered illness. 

Part E of the act also provides these same 

benefits to the uranium miners, millers, and ore 

transporters covered by Section 5 of RECA and to 

their survivors as well. 

These two parts may seem similar. 

There are a number of differences and probably 

you noticed that Part B is fixed amount, Part E, 

it's a variable amount. They have differences 

between who is covered, what illnesses they 

cover, the amount of monetary compensation that 

is available, and how it's calculated. 

As a general rule, Part B is broader 

as to who is covered but is limited in the types 

of illnesses that are covered. And by contrast, 

Part E is quite extensive in the types of 

illnesses that are covered, but it is limited on 

who is covered. As I mentioned already, Part B, 

it's flat. It's a flat amount. And Part E, it's 
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a variable amount, though there is a statutory 

maximum. 

EEOICPA when it was originally passed, 

Congress assigned the responsibility of that act 

to the President of the United States. At that 

time, it was Bill Clinton. President Clinton, by 

executive order dated December 7th and Order No. 

13179, delegated the primary authority to 

administer EEOICPA to DOL and also designated 

certain specific responsibilities to the 

Department of Health and Human Services and 

Department of Energy, DOE, and DOJ. 

Part E didn't come into existence 

until 2004. When that was enacted, it actually 

had -- the Secretary of Labor was directed -- 

given direct authority to administer that part. 

As a general matter, OWCP adjudicates claims and 

pays benefits under EEOICPA, while HHS through 

the National Institute for Occupational Safety 

and Health, NIOSH, estimates the amount of 

radiation received by employees alleged to have 

sustained cancer as a result of exposure and 
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establishes the guidelines followed by OWCP when 

it determines that such cancer is likely related 

to employment. In addition, DOE and DOJ are 

responsible for notifying potential claimants and 

for submitting evidence necessary for OWCP's 

adjudication. 

With respect to the Board, the 

provision that created was enacted in 2014. 

That's part of the 2015 National Defense 

Authorization Act. It created this new section, 

7385s-16 which created the Board. 

That provision, as you know, has been 

amended twice, once in 2018, and that just 

extended the life of the Board from five -- it 

tacked on another five years. It now sunsets in 

2024. It was more recently amended in 2020. 

Those amendments were a little more extensive, 

and I'll get to the specifics in a little bit. 

But generally, they expanded the Board's duties 

and mandated certain actions by the Secretary. 

The responsibility to establish the 

Board and appoint members was given to the -- 
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originally given to the President. President 

Obama issued an executive order in June of 2015, 

13699. The President established the Board in 

the Department of Labor, and he delegated to the 

Secretary of Labor the authority to appoint the 

members which is to consist no more than 15 

members as well as the responsibility for the 

administration of the Board, including funding, 

staff, any of the administrative functions under 

the FACA that Joe just talked about as well as 

the designation of a senior official of the 

Department of the director and the staff to the 

advisory board. 

With respect to the duties of the 

Board, there are now five specific areas. No, 

let me step back. There are really two duties of 

the Board. One is to give advice, and there are 

five specific areas that they are to give advice 

on. They are one, the Site Exposure Matrices of 

DOL to the medical guidance for claims examiners, 

for claims under Part E with respect to weighing 

the medical evidence of claimants, the 
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evidentiary requirements for claims under Part B 

related to lung disease, the work of an 

industrial hygienist and staff positions and 

consulting physicians of the Department, and 

reports of such hygienists and physicians to 

ensure quality, objectivity, and consistency. 

And the newest provision is to provide 

advice on the claims adjudication process 

generally, including review of Procedure Manual 

changes prior to incorporation into the manual 

and claims for medical benefits. It also allows 

for other matters of the Secretary to consider as 

appropriate. And to the best of knowledge, the 

Secretary has not designated anything else to 

look at. 

Second, the Board is to coordinate 

exchange of data and findings with the Advisory 

Board on Radiation and Worker Health, which is 

HHS. That was established under Section 73840 of 

the act. As you know, there's conflict of 

interest provision for the Board members 

regarding any financial interest related to the 
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provision of medical benefits under this act. 

This was reviewed prior to your appointments. 

With respect to the amendments in 2020 

mandated for the Secretary to do, it's now the 

Secretary of Labor is to provide the Board with 

access to any information that the Board 

considers relevant to carry out its 

responsibilities. Obviously that was done 

before, but now it's in the statute and it's to 

make available to the Board the program's medical 

director, toxicologist, industrial hygienist, and 

program support contracts. 

The amendment also added provisions 

that require the Secretary to publicly state 

whether he accepts or rejects the Board's 

recommendations and provide either a timeline for 

when those recommendations will be implemented or 

the reasons the Secretary does not agree with the 

Board's recommendations. That, of course, has 

been done since the inception of the Board. The 

Secretary has always responded, and that's been 

posted. I guess really the only thing that's new 
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would be that we have to provide a timeline if we 

accept something. 

As Dr. Markowitz pointed out, EEOICPA 

is a complex statute. And it has a lot of unique 

challenges in providing those rather complex 

provisions to work that started over 70 years 

ago. The Department has worked very hard to 

apply these provisions in a fair and equitable 

manner. 

The program has obviously gained a 

tremendous amount of experience over the 20 years 

we've administered that program, and certainly 

understand the difficulties and challenges that 

are faced by claimants and the Department. And 

the scope of the Board's authority, although it 

is limited to the five areas that I described, it 

certainly assists us, more specifically OWCP in 

administration of that program. And that's sort 

of my general overview. I don't know if folks 

have any questions they want to ask. 

MEMBER MARKOWITZ: So if there are no 

questions -- I'm just waiting a moment in case 
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any members need to unmute. But if there's no 

questions, then I think I want to thank Mr. 

Giblin very much, and perhaps we should move on. 

We're a bit early. I'm hoping that Mr. Mancher 

is available. But I'll leave that up to you, Ms. 

Rhoads and Mr. Chance. 

MR. BIRD: He is with us on the line. 

MEMBER MARKOWITZ: Okay. 

MS. RHOADS: Okay. Zach, are you able 

to speak to us? 

MR. MANCHER: Yes, I am here. 

MS. RHOADS: Great, okay. The next 

person who's going to talk to you is Zach Mancher 

from the Solicitor's Office. He's from the 

Ethics Division. He's going to talk about 

ethical concerns regarding federal advisory 

committees and committee members, and especially 

special government employees which our Board 

members are. 

And this also relates to the document 

that was sent to all the Board members that is 

called Ethics for SGEs. So you all have that, 
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and it's been sent a few times to you all. So 

thank you very much for agreeing to talk to us 

today. 

MR. MANCHER: Thank you, Carrie. As 

Carrie mentioned, I am Zach Mancher. I'm a 

senior ethics attorney here at the Department of 

Labor. First, I just want to welcome you all to 

the Department as SGEs, special government 

employees. I think some of you are returning and 

have been in this role before, and some of you 

are new to this. So welcome. 

Here at the Department of Labor, we do 

strive to uphold the highest level of ethical 

standards. And so along with that, we train all 

of our employees including SGEs as required on 

the ethics rules. And we want to make sure that 

everybody is aware of what the rules are, how 

they affect them, and have the ability to ask 

questions to me either now or as questions arise 

as you undertake some of the work of the 

committee. And we want to make sure that you're 

all comfortable with what the rules are and know 
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what you can and cannot do. 

As Carrie mentioned, you've all been 

sent this document ahead of time and that I'm 

going to be going through. But it's a great 

resource. I will just mention Rob Sadler is 

listed in the most recent version of the document 

as the counsel for ethics. He has retired. And 

so Sabrina Gray is now the counsel for ethics. 

But you can reach our office either the phone 

numbers that are listed there or through Carrie 

or through your agency contact. They can get you 

in touch with us without a problem for any 

questions that you may have. 

(Simultaneous speaking.) 

MR. BIRD: And Mr. Mancher? 

MR. MANCHER: Yes. 

MR. BIRD: I'm sorry. I have a quick 

question for you. As a matter of mechanics, did 

you want to have control and be the presenter 

here, or did you want to prompt me where to move 

in this document? 

MR. MANCHER: Oh, so I can take 
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control of it if that's possible. 

MR. BIRD: Absolutely. Let's do that 

right now. 

MR. MANCHER: Okay. All right. Thank 

you. It looks like I now have the ability to 

slide down through the document or at least 

through the first -- oh, there we go. Can you 

all see page 2 now? 

MR. BIRD: Yes, I can. 

MR. MANCHER: Okay. All right. Just 

checking to make sure that that's how this one 

works. So here's the names that I was 

mentioning. So you can still contact me. You 

can still contact Vanessa Myers. 

As we move down, the two other names 

on this page are Kate O'Scannlain, the Solicitor 

of Labor, and Peter Constantine who is the 

Associate Solicitor for Legal Counsel. And they 

are what are known as the designated agency 

ethics official and alternate designated agency 

official, or DAEO and ADAEO, who are the people 

who are statutorily responsible for the ethics 
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program at the Department of Labor. And so they 

supervise the ethics staff and Kate O'Scannlain 

supervises the entire Office of the Solicitor 

here at the Labor Department. 

So moving into the rules now, 

financial conflicts of interest is the first 

rule. This is a criminal statute. So we want to 

be very clear on it and very clear about what 

your responsibilities are and in terms of what 

the prohibitions are. This is one of the main 

federal government ethics rules in that it 

essentially prevents employees of the federal 

government from taking advantage of their 

position in order to use the powers of their 

position to make money for themselves or for 

somebody else on the outside. 

As Tom Giblin mentioned, under this 

committee's statute, you essentially have an 

additional financial conflict of interest 

restriction. That essentially makes it so that 

we don't have to cover this as much as we would 

normally because it essentially prevented people 
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from having the types of conflict of interest 

that I would talk about here from even being on 

the committee at all. I am still going to cover 

it now as I move to page 3. But the general rule 

is that you may not participate as a government 

official on a particular matter if it would have 

a direct and predictable effect on your financial 

interests or those of your spouse, your minor 

children, your general partners, or with 

organizations that you are an officer, director, 

or trustee, partner, employee, things like that. 

So the general exceptions to the rule 

are that you are allowed to have broadly 

diversified mutual funds, sector mutual funds up 

to $50,000 within the sector. So broadly 

diversified mutual funds, so if you owned an S&P 

500 and you were doing work that affected one of 

the companies held in that fund, that would not 

create an issue no matter how much money you had 

in that fund. If it was a sector fund, so for 

instance, an energy sector fund, and the work you 

were doing affected one of the companies in that, 
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you could work on that as long as you held no 

more than $50,000 within that sector. And that 

includes both an aggregation of all of the funds 

that you have in the sector, as well as any funds 

in that sector held by your spouse and minor 

children. 

There's also an exception for 

stockholdings or bond holdings that are publicly 

traded of $15,000 or less. And again, this is 

aggregated between you and your spouse and 

children. So if you had $10,000 in stock and 

your spouse had $10,000, that would go above that 

$15,000. 

I do want to mention there's also one 

specific exception here for federal advisory 

committee members which is that disqualification 

is not necessary if the interest is an interest 

arising from your non-federal employment. Again, 

because you're special government employees, this 

is a little bit different than the way that most 

government employees are in terms of their 

outside job would create a conflict for them. 
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Here we understand that you have that outside job 

because this isn't your everyday full-time job. 

Again, if you have any questions on these, you 

should come contact our office. 

Next, I'm going to move into the 

appearance of bias rule. So this is another 

conflict of interest. It's a non-financial 

conflict of interest, and this is in the Code of 

Federal Regulations. This is not a criminal 

statute. However, it is still a government 

ethics rules. And so therefore, we do need to 

follow it as well. This rule essentially says 

that federal employees may not work on particular 

matters involving specific parties essentially if 

a reasonable person would assume that they could 

not stay unbiased in their actions and so here -- 

or where you have a covered relationship with 

somebody involved. 

So what do I mean by participate in a 

specific party matter? A specific party matter 

is something that is going to affect the 

individual rights of one particular person or 
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company or something like that. So it's 

generally contract, a grant, a lawsuit, an 

enforcement action, something like that. It's 

not a broad policy matter that affects a group of 

companies or individuals at one time. It's the 

type of thing that has an immediate impact on one 

particular entity or person. 

So like I said, the general rule is 

that if you have a covered relationship or if 

there would be the appearance, you would not be 

able to work on this. What do I mean by a 

covered relationship? This is somebody with whom 

you have a business or financial relationship or 

seeking such relationship other than consumer -- 

a routine consumer transaction, so somebody you 

consider a client as opposed to somebody you'd 

consider a customer, your household members, 

close relatives. 

And here, it goes beyond the close -- 

the close relative here goes beyond just your 

spouse and minor children. This would include, 

parents, grandparents, cousins, aunts, uncles, et 
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cetera. There's not a specific definition. It's 

not that it includes second cousins but not third 

cousins. 

It has to do with your actual 

relationship. Is this somebody that you see at 

holidays, that you have exchanged gifts with, 

that you see at life events, something like that, 

as opposed to somebody who you may biologically 

be related to but have no actual relationship 

with in terms of that. 

Employers, so something that would 

affect your employer or clients or prospective 

employers and clients of your parents, dependent 

children, or spouse would be covered by this as 

well. So for instance, your parents' company is 

involved in a matter. You should not be working 

on that. 

If you changed jobs recently, your 

former employer for one year after you did work 

for that former employer or client, essentially 

some people leave relationships, whether it's 

employment relationships, on good terms. Some 
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people leave it on bad terms. Either way, we 

don't want that to affect you and create this 

appearance of bias. 

And finally, organizations in which 

you are an active participant, so this is more 

than mere membership. So this would generally be 

if you are a board member of some organization or 

heavily involved, maybe you're on a subcommittee, 

maybe you run a particular event of that 

organization. Things where you're involved as 

more than a mere member, you would not be able to 

work on. Again, specific party matters that 

would affect that organization's finances. 

I'm now going to move on to nongovernment or outside activities. Essentially 

you may engage in non-government -- in outside 

activities even for pay as long as it doesn't 

create a conflict with your official duties. And 

here, that is going to be unlikely that it would. 

Generally, this is going to prevent 

you from being paid for outside speaking or 

writing activities that are related to your 
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official position. So SGEs are specifically 

prohibited from receiving compensation for some 

activities related to their government 

participation like I said. But it's only as to 

matters which you are currently or have been 

assigned during this current appointment. 

So if it's considered to be related to 

your official duties, if it is performed as part 

of your official services, it was extended to you 

-- the invitation was extended to you because of 

your government position or by somebody with 

interest before your committee and could be 

affected by your work, or if it draws 

substantially on non-public information that you 

are aware of because of your position. Or like I 

said, it is about a specific matter which you 

have been assigned during the previous one-year 

period. If you have served 60 days or less in a 

year -- which I am pretty sure should apply to 

everybody on this committee. I'm pretty sure the 

members of this committee do not work more than 

60 days in a calendar year. 
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Then these last three bullet points 

are -- with the dashes are interpreted even more 

narrowly. And so again, if you have any 

questions on this, if you're given an offer to 

speak or to write for pay on something related to 

the work of this committee, please run it by us 

first. You can reach out to Carrie. You can 

reach out to our office directly. That way, you 

can make sure that you're following this rule. 

But like I said, it will apply very 

narrowly because of that 60-day threshold to you. 

But you should be aware of that as well. 

Generally, the rule allows you to teach even for 

pay, even about things related to your official 

position as long as the teaching is part of the 

regularly established curriculum at an accredited 

institution or some accredited school. 

Next, I'm going to cover political 

activities. This will be, I will say, kind of 

less important right now than it would have been 

had we had this presentation last week or last 

month. But essentially the Hatch Act covers the 
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political activities of federal employees and 

that does even affect you as special government 

employees. 

However, as special government 

employees, it is very limited how much it affects 

you. Essentially it prevents you from 

participating in any partisan political activity 

while you are on duty or in a federal building or 

using any federal resources. And it prevents you 

from doing any fundraising, soliciting, 

accepting, or receiving political contributions 

on the days that you serve as a federal 

government employee. 

So on those particular days, you may 

not solicit, accept, or receive political 

contributions. However, you may do so on other 

days. It does not prevent you from giving 

contributions. It is just about soliciting, 

accepting, or receiving contributions on behalf 

of particular candidates or political parties or 

political organizations. 

Service as an expert witness is the 
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next topic here. You may not serve as an expert 

witness in cases involving your participation 

here unless that is approved. That is something 

that actually both my office and Joe Plick's 

office work on together. So if that is to arise, 

please reach out to us to make sure that that is 

approved and that it is -- the type of witness 

work that you are doing is allowed under the 

rules. 

The next topic here is lobbying the 

federal government. Because you are considered a 

federal employee and a federal official, 

generally, you may not contact other federal 

officials to influence government actions on 

behalf of others. However, because you are an 

SGE, these rules are somewhat limited as they 

apply to you. And this is a criminal statute as 

well. 

If you serve 60 days or less, which as 

I said I think is the case for most of you, you 

may not represent anyone before a federal agency 

or federal court in any matter -- or state court 
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actually in any matter involving specific parties 

if you personally and substantially participated 

in that matter. So if it is something that 

relates to work you have done on this committee, 

you may not contact them then. If it is -- if 

you serve 60 or more days, then as I mentioned -- 

then you would not be able to in those matters or 

in any matters pending before the Department of 

Labor on any topic. But like I said, I think for 

all of you it's just going to be the under 60-day 

restriction. 

Federal officials also may not serve 

as registered agents of foreign governments, and 

that is the rule across the Board. Quickly we're 

going to cover bribes, gifts, and salary 

supplementation. So this, the bribes and salary 

supplementation, bribery obviously is illegal. 

That would be accepting a bribe in order to -- 

that basically somebody promises to give you 

money or something else in exchange for taking or 

not taking some official act in your official 

capacity as an SGE. 
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In terms of salary supplementation, 

this is essentially anybody -- other than the 

federal government paying you to do something 

that you are doing in your federal official 

capacity. So essentially, the federal government 

is the only one who can pay you for the work that 

you're doing here. So if you are giving a speech 

in your official capacity, nobody else could pay 

you for that speech. That's essentially how that 

comes up. 

Gifts, you may not accept gifts from a 

person who has business before the Department of 

Labor or who's regulated by the Department unless 

an exception applies. Luckily, there are many, 

many exceptions and these will generally cover 

most gifts that you would receive. We do mention 

the optics concerns. 

Here, the appearance of favoritism or 

impropriety can cause embarrassment to both you 

and the Department. And therefore, you should 

turn away gifts that would create an optics 

issue, even if they would fall within one of the 
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exceptions. Again, I think that is unlikely to 

happen in your case, but I will cover all these 

exceptions as well just to be clear. 

So gifts of $20 or less on a single 

occasion and up to $50 during a calendar year 

from a single source may be accepted. So that 

would be if somebody takes you out for lunch once 

and it's $15, it would be fine. If they take you 

out again, $15 dollars, it would be fine. The 

third time, that would make it 45 dollars for the 

year, that would still be fine. But if they try 

to take you out a fourth time under this gift 

exception, that would not be allowed. 

But again, there are a lot of other 

gift exceptions that I'm going to go through now. 

And so there might be times when this would be 

allowed. So gifts based on a personal 

relationship, so gifts from a friend, gifts from 

a relative which are, to be honest, most of the 

gifts that people receive. Those types of things 

are going to be allowed under that exception and 

therefore they don't need to fit under that $20 
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rule or the $50 for the year. 

Free attendance and meals at an event 

where the employee is officially presenting. So 

if you are giving a speech on behalf of this 

organization -- on behalf of this committee, you 

could accept free attendance and any meals or 

other things that go along with free attendance 

on that day. You could accept that. 

Widely attended events, I think this 

is unlikely to come up here. This essentially 

allows free attendance at events when it is 

deemed to be in the government's interest for you 

to attend. I think that is unlikely to come up 

for members of this particular committee. 

Items of little intrinsic value such 

as cards, plaques, trophies, things like that, 

that are meant merely for display and not for 

use, those are allowed. Discounts that are 

available to you for some reason other than 

federal employment, so your AAA membership or 

other things like that, you are allowed. Also, 

gifts for -- oh, I think the main one here is 
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gifts based on your outside business 

relationship. 

So this is going to come in handy for 

all of you. If the gift is given to you because 

of your outside business relationship or outside 

employment or spouse's outside business 

relationship or employment and is not enhanced 

because of your federal position, that gift is 

okay for you to accept. These last two I think 

are unlikely to come up, business meals overseas, 

or gifts from a foreign government. I think 

those are unlikely to come up, but you could seek 

our guidance should something like that come up. 

I already covered salary 

supplementation as I mentioned here. Misuse of 

government resources, this rule is another key 

one. Essentially you are not allowed to use any 

government resources for personal use. 

So government resources are meant to 

be used for the purpose of this committee and the 

work of this committee. That includes your 

government time, government supplies, and also 
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the time of government employees. So you cannot 

use the staff of this committee for your own 

personal uses. They are here to help you with 

the work of the committee. They are not here to 

help you with personal errands or other things 

like that. 

And finally, your official title. So 

misuse of government resources covers your 

official title. So you may not use your title or 

any authority given to you by being on this 

committee for personal use. So essentially, you 

may not try and gain any benefit in outside 

business relationships or things like that 

because of your official title here. So 

essentially trying to get some benefit off of 

that. So you must avoid implying that the 

government endorses a particular private activity 

or company or product or anything like that with 

which you're associated by using your government 

title. 

Another one I mentioned was non-public 

information. So you may not use any non-public 
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data, economic analysis, private personnel 

information, or any other non-public information 

that you have access to because of your position 

here for your personal benefit or for the 

personal benefit of anybody else, whether that be 

a friend or family member, co-worker, a business 

associate, anything like that. So if you knew of 

a lawsuit that was going to happen against a 

particular company because of your work here, you 

could not use that to tell others to sell their 

stock in that particular company or something 

like that. Again, you may not use your 

government authority for non-personal activity. 

Post-federal employment restrictions, 

these likely will not affect you very much 

either. But essentially, if you work on 

particular matters involving specific parties 

here which I think is unlikely. However, it 

might be something that happens in this 

committee. I'm not completely sure of that. 

You essentially are not allowed to 

represent third parties back to the federal 
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government on those particular matters. So if 

you are involved in a particular lawsuit or 

something like that, you cannot then represent 

somebody back to the federal government on that, 

whether it's a federal agency or a federal court. 

Here I don't think there are going to be any 

matters that you wouldn't be working on. 

But under your official 

responsibility, that is essentially a rule for 

supervisors. And for all of you, I don't think 

there's any supervisory relationship. So that is 

not something that you need to worry about. Are 

there any questions here? I can stay on the line 

for a few more minutes. 

MEMBER MARKOWITZ: This is Steven 

Markowitz. I have a question. So there's a 

matter that's going to come up before the Board 

tomorrow that there's a member of the Board who 

has a particular matter that possibly/probably 

represents a conflict of interest. Can that 

person and I discuss this with you towards the 

end of today or at the beginning of tomorrow? 
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MR. MANCHER: Yes, yes. We can 

absolutely discuss that. And I will say one -- 

as a kind of remedy, generally when members of 

FACA committees have -- excuse me, have conflicts 

of interest, generally the remedy is to have that 

particular member recuse and not participate. 

Usually it's in the form of leaving the room. 

Here I assume it would be in the form of getting 

off of the call for that length of time while 

they were covering that, and then rejoin the room 

or -- reenter the room or rejoin the call after 

the committee is done discussing that particular 

matter. 

MEMBER MARKOWITZ: Okay. Thank you. 

We'll be in touch. 

MR. MANCHER: Okay. 

MEMBER MARKOWITZ: Any other questions 

for Mr. Mancher? 

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez. I have a question. 

Could you please define the word "bias," how 

you're using it in this context? 
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MR. MANCHER: This is under the 

appearance of bias rule. So it is essentially 

when any -- the rule is that you may not work on 

a particular matter involving specific parties 

when a reasonable person would question your 

impartiality in the matter. And so essentially 

it is a reasonable person standard where they 

essentially task the employee themselves with the 

advice of the ethics officials for the agency to 

make a determination as to whether a reasonable 

person would find you to be able to be impartial 

in the matter. 

So I don't know if there's a specific 

definition of bias. But essentially it's going 

to be -- or we're going to look at how closely 

it's related to -- kind of what the relationship 

is between you and the person who's affected. 

We're going to look at what your role is in the 

matter, whether you're kind of merely number 

crunching or whether it's kind of your opinion 

and it's something where there is some level of 

independence in the decision and advice you are 
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giving. 

We're going to look at the 

relationship between that matter and the 

individual. So if it's something that your 

decision directly leads to this person either 

gaining some right or gaining some money or 

something else like that. Or is it a decision 

that affects a regulation that could potentially 

affect an industry that could affect that person, 

which would obviously be many more steps down the 

line and would likely not be considered a direct 

effect on that person. So there's a number of 

different factors that we look at. But 

essentially under the rule, it's up to the 

individual with the advice of the ethics office 

to make that determination. 

MEMBER FRIEDMAN-JIMENEZ: Okay. Thank 

you. 

MEMBER BOWMAN: This is Aaron Bowman. 

I had a quick question relating to the use of our 

official title as special government employees in 

the context of non-government activity. In 
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academia, at least elsewhere too, it is common to 

list on your curriculum vitae or bio sketch 

various service activities that you're involved 

in. And those are used to evaluate an 

individual's expertise or evaluate their 

suitability for something. Would this mean I 

should not put that I'm a member of this Board on 

my CV? 

MR. MANCHER: No, you -- absolutely 

you may put that you're a member of this Board on 

your resume or CV. What this is really referring 

to is in terms of trying to essentially get an 

outside position because of your access to this 

Board as opposed to kind of listing this as a 

mark of something that you have done. 

It would be similar where somebody was 

trying to essentially get clients based on saying 

I have access to this private information. I 

have this authority as a federal government 

employee. And therefore, you should hire me in 

my outside position. The type of thing, a normal 

activity of putting it on your resume or CV does 
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not create that type of issue. 

MEMBER BOWMAN: Okay. Thank you. 

MEMBER GOLDMAN: This is Rose Goldman. 

I have another question, and it has to do with if 

you're signing something like a petition or 

something let's say related to energy, but you're 

signing it as an individual and you're not noting 

that you were on this committee. Is that in any 

way considered a problem? 

MR. MANCHER: I think I would need to 

have a lot more kind of specifics on that. Like 

I mentioned for SGEs, the rule is a lot narrower 

in that it would only be if it was about specific 

party matters that you had worked on in your 

official capacity, so things that the Board has 

talked about or that have been assigned to you. 

So it's not going to kind of cover all matters or 

all specific party matters or kind of more broad 

things like -- I'm not sure if you're talking 

about commenting on regulations or things like 

that. So I think I would need more specifics. 

But again, the rule is pretty narrow in what it 
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prevents you as a special government employee 

from doing. 

MEMBER GOLDMAN: Okay. Thanks. 

MR. MANCHER: So we can certainly talk 

about this more if you can give me more 

specifics. 

MEMBER MARKOWITZ: Are there other 

questions? 

(No response.) 

MEMBER MARKOWITZ: Okay. Mr. Mancher, 

thank you very much. I think if the Board 

members, if there are questions that come up 

regarding ethics, we can be in touch through I 

think Michael Chance, our DFO, who can decide 

where the issue goes. So -- 

MR. CHANCE: Yeah, Steven, I'd be 

happy to coordinate that, especially with some of 

the newer people who might have some questions. 

And it can get complicated. I don't want anyone 

to get in any trouble. 

MEMBER MARKOWITZ: Okay. So are there 

-- Ms. Rhoads, Mr. Chance, are there any 
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announcements or issues that have arisen? One 

thing while you're thinking about that, we have a 

break in a few minutes, is I realize that we 

can't avail ourselves of a chat function. But if 

there's a hand raising function, I'm thinking 

more frankly of tomorrow which is going to be 

more interactive. If there's a hand raising 

function that could be enabled, that would be 

helpful. We don't need an answer right away 

about that. Any other comments or questions from 

Board members? 

(No response.) 

MEMBER MARKOWITZ: Okay. We're 

running a little ahead. It's about eight of 

1:00. Why don't we take our lunch break. And 

then if we come back 1:20, Mr. Chance or Ms. 

Rhoads, can we give Ms. Pond -- or if she's on 

the line, can she start then? 

MS. POND: Yeah, I can start then. 

This is Rachel. 

MEMBER MARKOWITZ: Okay, great. Okay, 

perfect. 
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MR. BIRD: I think that works. So 

1:20? 

MEMBER MARKOWITZ: 1:20. So we'll 

just leave our lines open. 

MR. BIRD: Okay. 

MEMBER MARKOWITZ: Okay, great. 

(Whereupon, the above-entitled matter 

went off the record at 12:53 p.m. and resumed at 

1:25 p.m.) 

MS. POND: Good afternoon, everyone. 

I want to start by welcoming the Board, both new 

and existing members. I'm very excited to be 

working with you again this year. Just a little 

bit of information about me. I am currently the 

director of the energy program here in Department 

of Labor. I've been with the program since the 

very beginning. I was the first policy chief 

back in 2001. And then in 2008, I took over for 

Pete Turcic who was my predecessor and I've been 

the director here since then. 

There's been a lot of changes since 

the beginning of the program. We started with 
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just one part which is Part B. And then a few 

years later in 2004, the passed Part E of the 

statute. So there's a lot that's kind of 

complicated. I am going to walk you through the 

pieces of the program. Tom already talked to you 

in general about what the statute is, so I'm 

going to try not to repeat too much of what he 

said. 

But what I'll do is I will kind of 

give you an overview first of what the program is 

about, the benefits we provide, the items we have 

to look at. Then I am going to talk a little bit 

in more detail about the claims process. Dr. 

Markowitz has asked that I cover certain things 

that are most relevant to you as the Board and 

the types of things that you're looking at. 

Then I'm going to walk briefly through 

the statutory duties of the Board. I'm hoping by 

the time I get to that at the end of the 

presentation, you will have a context and 

understand what these various categories mean 

better because I will have gone through our 
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process and what we have to look at and do to 

adjudicate a claim. Then I'll talk briefly about 

another issue that has come up about impairments, 

and then I'll take questions. 

So I'm going to try to keep this to an 

hour so you'll have at least 15 minutes of 

questions. If you can hold those questions till 

the end or while you think of them, I believe 

that Dr. Markowitz is going to be able to sort 

through them and get to them at the end. So 

jumping right in. Okay. Sorry. Now I'm having 

trouble with the slides. Kevin? 

MR. BIRD: Yeah, did you want me to 

just take over and you say, next slide? 

MS. POND: I guess. I don't know why 

it's not -- it was working one minute ago, but I 

guess it's not anymore. 

MR. BIRD: Okay. Here, I will just 

take it. Then when you're ready to move on to 

the next slide, you just said, next slide. 

MS. POND: Okay. 

MR. BIRD: Give me one second. Okay. 
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 There we go. 

MS. POND: Thank you. So EEOICPA, as 

Tom indicated, this is a law that's administered 

by the Department of Labor's division, our 

division, Energy Occupational Illness 

Compensation. It's a mouthful. So I tend to 

call it the energy program. It gets a little 

confusing when we're referring to the Department 

of Energy. But hopefully, you'll understand what 

I mean. 

We provide lump-sum compensation and 

medical benefits to current and former nuclear 

weapons workers and certain of their survivors. 

The survivor definition, the definition of the 

different parts are different depending on what 

we're looking at. Next slide, please. 

So again, Tom mentioned that there are 

four different agencies involved EEOICPA. I'm 

going to cover most of what these duties are in 

this slide presentation. There's Department of 

Labor, Department of Energy who primarily does 

employment verification, Department of Health and 
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Human Services through NIOSH, the National 

Institute of Occupational Safety and Health. 

They do the cancer and radiation analysis for us. 

And the Department of Justice who primarily -- 

well, their only role is really with the 

Radiation Exposure Compensation Act which Tom 

touched on earlier. Next slide, please. 

So again, there are two parts. The 

first was enacted in 2000 and the second was 

enacted in 2004. There are similarities to both 

of them in terms of what we need to look for when 

we're evaluating claims. Basically, we need 

employment evidence. We need medical evidence. 

And when there are survivors, we need survivor 

evidence. What that looks like and how it is 

evaluated and adjudicated is very different 

depending on the two different parts. The 

majority of the statutory duties of the Board I 

will tell you right now is related to Part E. 

But there are items related to Part B which I 

will point out as I go. Next slide, please. 

So there is employee eligibility. As 
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I have indicated, there are three parts, medical, 

employment, and survivorship. For employee 

eligibility, there are different issues related 

to that. So for Part B, we cover DOE contractors 

and subcontractors as we do with Part E. Part B 

covers federal employees, but Part E does not. 

Atomic Weapons Employer, there's a very specific 

definition for that and that is only covered 

under Part B, not under Part E. These are all 

statutory definitions. And then beryllium 

vendors which are also only covered under Part B 

but not under Part E. RECA is covered under both 

parts in different ways. Next slide, please. 

This is where it gets the most tricky 

for us. We have under Part B there's only four 

conditions, really categories of conditions that 

are covered. That would be cancer, covered 

beryllium illness, chronic silicosis, and RECA 

Section 5 awardees, whereas under Part E, it can 

be any condition as long as we can determine -- 

and this is kind of important -- that the 

statutory definition says that there is a 
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significant -- that exposure is a significant 

factor in causing, contributing to, or 

aggravating the condition. 

So under Part B, these definitions for 

cancer are very specific, and I'll talk a little 

bit about that in a bit. But you have to meet 

certain definitions per the statute for any of 

these conditions. Under Part E, it's a lot more 

fluid shall I say. 

We rely on medical evidence to tell us 

about this positive factor and to provide us with 

evidence that we can then evaluate to determine 

whether the exposure was enough, whether the 

condition is really related to it, whether it was 

a significant factor in aggravation and 

contribution versus causation which is a very 

different standard. So these are the 

complicating factors that we really struggle with 

the most, I believe. And it's under Part E 

looking at this causative factor. Next slide, 

please. 

Survivor eligibility, I'm not going to 
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go into a lot of detail on this just because it's 

not something that you guys really have to worry 

about as it's not part of your charge. But for 

your information, the survivorship definition 

under Part B is first the spouse, then children, 

and that can include adult children, parents, 

grandchildren, and grandparents. Under Part E, 

there is a causative factor meaning that you have 

to show that the death was related to the 

condition that would be covered. That is not a 

criteria for survivors under Part B. 

So first, you have to determine that 

the death was related, then it would be the 

spouse. If there's no spouse, it would be 

children. But the children have to have been 

less than the age of 18, less than the age of 23 

and a full-time student, or medically incapable 

of self-support at the time of death. Next 

slide, please. 

The benefit structure is also very 

different depending on the part of the program 

we're looking at. Under Part B, if we determine 
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that an employer survivor is eligible, they will 

receive a 150,000-dollar lump sum plus medical 

benefits for that covered condition. If it's a 

RECA under Part B, they get 50,000 dollars. That 

is if they've already been approved for RECA 

benefits under Department of Energy. 

And RECA again is the Radiation 

Exposure Compensation Act. That's the program 

that's administered by the Department of Justice, 

and they will make a determination whether -- and 

it's primarily uranium miners, millers, and ore 

transporters. They'll make a determination as to 

whether or not an individual is eligible under 

that program. They get 100,000 dollars from the 

Department of Justice and then we will provide 

them with the other 50,000 dollars plus medical 

benefits. They do not get medical benefits under 

the Department of Justice program. That's all 

Part B. 

Under Part E, once a person is 

approved, so there's a couple of things I just 

want to mention. If you get an approval under 
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Part B, you're going to automatically be approved 

under Part E as long as you have the covered -- 

the employment is covered under Part E as an 

employee. But what we need to look at for this 

is whether or not a person has impairment. 

So they don't automatically get a 

compensation if they're an employee. They will 

get approved for medical benefits, whether it's 

because of a Part B condition or because they're 

accepted, like, for example, for asbestosis under 

Part E which is only covered under Part E. 

Either way, they're going to get an acceptance. 

Once they get that acceptance, we then 

will seek out whether or not they're entitled to 

additional compensation. And the way we 

determine that and the way that the law is 

written is that they can apply for impairment, 

meaning a whole body person impairment of -- 

based on their condition. They can get a certain 

percentage for each level of impairment that they 

have. 

The AMA Guide to the Evaluation of 
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Permanent Impairment talks about that. I don't 

belabor this in this presentation, but I'm happy 

to answer questions about it because it will come 

up later in terms of a particular issue we're 

having with this. But basically, we determine 

whether or not a person has impairment. They get 

2,500 dollars per percentage of impairment that 

they have. 

And then we also look at wage loss. 

And there's a wage loss calculation that provides 

them between 10,000 and 15,000 dollars for each 

year of wage loss. That varies. That 10,000 -- 

between 10,000 and 15,000 varies based on the 

level of wage loss that they have. And then for 

survivors, there is a lump sum compensation 

payable under Part E and that's 125,000 dollars 

plus any additional wage loss if they're 

eligible. There is a cap for benefits under both 

parts, and that's 400,000 dollars for B and E. 

But there is medical care for any accepted 

condition. Next slide, please. 

So under Part B, there are two 
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different ways that an individual can get 

accepted for cancer and that is through a dose 

reconstruction which is a calculation of the 

amount of dose that somebody might've been -- 

radiation dose somebody might've been exposed to 

in their employment. So the first thing that 

we're going to do, there's a Special Exposure 

Cohort or something that was designated by 

Congress. There are four statutory Special 

Exposure Cohorts. 

Those would be the gaseous diffusion 

plants and Amchitka Island. And what that means 

basically is if you're in a Special Exposure 

Cohort, you get a presumption of causation. 

There's -- you do not have to go through this 

dose reconstruction process which I'll talk about 

in a minute. But you also have to show that you 

worked in a specific location or a specific job 

within -- for 250 work days during a period that 

this facility is designated in the class. You 

also have to have 22 specified -- one of 22 

specified cancers that are named in the law. I 
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will go through that list of cancers next. Next 

slide, please. 

Obviously, you won't have to memorize 

them. They'll be on the slide. But to qualify 

for compensation, a covered employee must have at 

least one of these 22 specified cancers, leukemia 

other than chronic lymphocytic leukemia provided 

the onset was at least two years after first 

exposure, primary/secondary lung cancer, in situ 

lung cancer that is discovered during or after a 

post-mortem exam is excluded, primary or 

secondary bone cancer, and primary or secondary 

renal cancers. This continues on the next slide. 

The following cancers are included in 

SEC provided onset was at least five years after 

first exposure, multiple myeloma, lymphomas other 

than Hodgkin's disease, and primary cancer of -- 

you can see the list there. I'm not going to run 

through the entire list for you. Liver cancer, 

the exception is if it's cirrhosis or Hepatitis 

B, it's not covered under the SEC. 

Okay. Before we move on to the next 
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slide, I don't have a slide covering the NIOSH 

dose reconstruction process. So I'm just going 

to walk quickly through that for you again. This 

isn't something that particularly affects what 

you guys do when it comes to Part B. But the 

first thing we'll do with a Part B cancer claim 

is if they don't fit in one of these classes, the 

other thing I want to quickly go back and mention 

about the SEC classes is that an individual can 

petition NIOSH to add a class of employees to the 

Special Exposure Cohort. And if NIOSH determines 

that they cannot do a dose reconstruction at a 

particular site, they can add a Special Exposure 

Cohort. 

Since the four statutory SEC classes, 

NIOSH has added over 130 new classes and they can 

add more. It really depends on the 

circumstances. And they have sole responsibility 

for making that determination. They also have 

sole responsibility for undertaking this NIOSH 

dose reconstruction. We'll have a cancer claim 

that'll come in. We'll either look to see if 
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it's in the Special Exposure Cohort. 

If not, that claim will go over to 

NIOSH and they'll conduct a dose reconstruction 

which involves interview process, reviewing all 

the records that they have, that they've 

collected at the site -- the individual sites. 

And then they'll come out with a report that 

tells us their results of their process. We then 

feed that into a computer program that tells us 

basically whether it's 50 percent or higher 

likelihood that the individual had sufficient 

radiation exposure to be provided benefits under 

the program. So that's cancers under Part B. 

Under Part E -- next slide, please -- 

there's a pretty significant process that we need 

to go through. I'm going to walk through a 

little bit more about the process in just a few 

minutes. But one of the things that we created, 

so when we first got Part E, we realized that 

most people don't know what they were necessarily 

exposed to in the workplace. 

They have some medical information 
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oftentimes. But we realize that maybe we could 

help by creating some sort of reference point for 

our claims examiners to look at and to help the 

claimants in determining what they might have 

been exposed to. So we created the Site Exposure 

Matrices, and it's really just a repository of 

information on toxic substances that were present 

at Department of Energy and RECA sites covered 

under Part E. 

We did a roundtable at the very 

beginning when we started this. We went to all 

the different sites to talk to employees. We 

worked with the Department of Energy to gather 

information, and we're constantly still doing 

that. SEM information is gathered from a variety 

of sources. And we have not only, like, what 

particular toxic substances might've been at 

these sites but what buildings they might've been 

in. And then we have a separate section that 

provides information about whether or not there's 

a link, a scientific link between the toxic 

substances and certain illnesses. John Vance is 
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going to talk in more detail about that tomorrow, 

so I'm not going to belabor it. But I just 

wanted you to be aware of it since we're talking 

in general about what we go through. Next slide, 

please. 

So there are certain responsibilities 

of the claimant. First of all, the burden of 

proof does lie with the claimant. They file the 

claim and we will ask them for information that 

they will collect, copy and submit any relevant 

records they have. And any information requests 

that we ask them, they are to do their best to 

provide it to us. 

We do a lot of other things, however, 

to help with this process. Not only the creation 

of the SEM, but as I'll walk you through in a 

moment, there's a lot of other efforts that we 

make to help them with this burden because our 

intent throughout the claims adjudication process 

is to really help the claimant get their claim 

accepted if they're eligible. And so knowing how 

difficult this can be for employees and 
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particularly for survivors to gather this 

information, that's why we go to these extra 

efforts to make sure we're helping them get to an 

acceptance whenever we can. Next slide, please. 

To that end, we do have 11 Resource 

Centers nationwide. The Resource Centers provide 

us with a lot of assistance at the beginning of 

the process and throughout the process. We also 

have four District Offices located in Cleveland, 

Denver, Jacksonville, and Seattle. And then we 

have a lot of information on our website that 

will help sort through these things as we move 

through looking at cases. Next slide, please. 

Just a little bit about what the 

Resource Centers do. They manage the Resource 

Center operations. They can help claimants, 

guide them through the process. They intake 

claims. They work with us. They're our 

contractors. So they will work with us on any 

DOL procedures that need clarification. 

They conduct the occupational history 

interviews. They will provide medical bill 
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payment assistance. They take incoming calls, 

and we're in constant communication with them in 

term of anything that we really need them to be 

forward facing for claimants, they will help us 

with. Next slide. 

And I'm going to walk you through a 

little bit more about the actual claim intake 

process and the decision process. As I said, the 

claims normally oftentimes are taken by the 

Resource Centers. However, claimants can submit 

them directly to the District Office if they want 

to. 

The helpful part about the Resource 

Centers taking the claim is they can kind of walk 

claimants either face-to-face or even over the 

phone through the process. Research Centers are 

also responsible for the occupational history 

questionnaires. So I'm going to tell you a 

little bit about that because this is something 

that the Board has actually done a lot of work on 

to help us perfect the occupational history 

questionnaire. 
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This is used under Part E cases where 

we are trying to obtain information from 

claimants about what they might've been exposed 

to, where they worked, a little bit more detail 

about that. So it's a pretty lengthy 

questionnaire that the Resource Centers will 

either have an appointment with the claimant to 

talk to them in person or they'll talk to them 

over the phone. And we have made some changes to 

our process for this which John will probably get 

into when he comes up and talks. 

But in general, this is where we start 

when we try to get employment information in 

terms of exposures. So we'll ask a series of 

questions about what the employee remembers they 

might've been exposed to, what toxic substances 

they were involved with, what job categories they 

were in. This can be alternative -- there 

might've been other ways they -- one job category 

in one site might need something else than 

another site. 

So this is a place where we can 
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clarify some of those questions. And so it's 

really important piece that we do at the very 

beginning when we get a party claim. And then 

the District Office, once we get a claim, will 

immediately send the information that is obtained 

during the intake process in terms of the 

employment information we'll send that to the 

Department of Energy for their employment 

verification. 

So if somebody says they worked at 

Paducah, we'll send that to the correct Paducah 

DOE facility, Paducah site to verify that 

employment. Now unfortunately, it's not always 

that straightforward because not everybody -- 

there's not always records. Like, for the 

smaller sites, sometimes it's a contractor and 

the DOE doesn't have records. 

So we've developed a lot of other 

venues to try to obtain the information about 

where somebody worked. Sometimes an employee 

didn't work there recently. They worked there 

back in the '40s and '50s and the dates might not 
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be precise. 

So if we can't get it directly from 

the Department of Energy, we'll go to what 

they've established, POCs for various 

contractors. We also rely on other information 

in terms of union records. Sometimes we can get 

those. We have the building and construction 

union that's helped us with obtaining some 

information about what subcontractors might've 

been out there. 

So there's a lot of things that we do. 

We'll also go directly to the Social Security 

Administration where we can't get it from any 

other source in terms of where they may have 

worked during a certain period of time. That, of 

course, is important and when we do our analysis 

under Part E, particularly for causation or 

exposure. 

So once we've taken the claim in, it 

goes to the District Office and the District 

Office has to start claim development. There are 

some common items that we need to obtain for Part 
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B and Part E. But that is basically we need to 

get medical evidence. 

The first thing we need before we can 

do anything, we need a diagnosis. So the 

claimant needs to provide us with at least this 

is the claimed condition. Here's some medical 

evidence to support that. And then, of course, 

we'll move on to causation and exposure analysis. 

 The employment information, as I said, we get 

that from Department of Energy and other sources. 

 Next slide, please. 

So for the exposure causation piece 

under Part E, this is what I think the Board has 

spent a lot of time with helping us on looking at 

evaluating because it's so not straightforward. 

There are so many conditions and so many possible 

toxic substances out there that could be related 

to these conditions that this is the biggest 

challenge that we go through. Oftentimes, we'll 

get medical evidence from a treating document who 

has been treating this person for a long time, 

but they're not familiar with what caused it or 
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isn't always necessarily their objective. 

They're treating the patient for their 

condition, and so they're not trying to focus on 

how they got the condition. So acknowledging 

that, we'll first go to a treating physician and 

ask the question, this is what we believe this 

person was exposed to. Provide us with some 

evidence that there was a causal relationship. 

But when that fails and when treating 

physicians aren't able to do that or we may need 

more information to make that determination, we 

will prepare a statement of accepted facts. And 

what that SOAF is, is it is basically it's a 

compilation of what facts we've gathered in the 

case so far. So it will list the conditions that 

are being claimed. It'll list the employment 

information that we know of. 

In some cases, the SOAF can vary 

depending on what purpose the SOAF is going to be 

used for. So a SOAF might go to -- and I'm going 

to talk about the industrial hygienist and that 

whole process in a moment. But it can go to 
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different kinds of specialists, an industrial 

hygienist or a contract medical consultant. And 

so if it's going to an industrial hygienist, we 

oftentimes will not have as much exposure 

information yet. And so that SOAF will contain, 

here's where we know they worked, there's the job 

categories we knew they worked in. And then that 

SOAF will be used as a backbone to make a 

referral to one of these specialists. 

So now I'll talk a little bit about 

what I mean when I say one of these specialists. 

So when we get information, we'll check our Site 

Exposure Matrices once we're looking at a case 

for Part E to see if there is, first of all, we 

don't have any information from the claimant at 

all or we have very limited information. We'll 

check the Site Exposure Matrices to determine 

whether or not there's something that we can show 

in that system, okay, it looks like they might've 

been exposed to X, Y, and Z, particular toxic 

substances in this particular site, in this job 

category. 
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The Site Exposure Matrices does not go 

down to the years of employment. We don't have 

the information to do that. But it does give us 

an initial idea. And then we can say, okay, 

well, this person has chronic obstructive 

pulmonary disease. Let's look at the SEM to see 

if there's any connection between these toxic 

substances that somebody is exposed to and the 

disease. 

At that point, that gives us a pretty 

good basis for understanding what the exposures 

might have been. And again, this is in absence 

of anything else we might have from the claimant 

or the claimant's treatment physician. If we 

have that information, that will also be included 

in our analysis. 

We'll often go to an industrial 

hygienist at that point. Now we have two federal 

industrial hygienists. And then we have -- in 

the several -- couple of years, we've hired a 

contractor because we get so many referrals to 

the industrial hygienist. 
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So the contractor is made up of 

industrial hygienists who help us evaluate these 

claims for exposure analysis. We refer it to 

them so that we can get a sense of the extent of 

the exposure, how frequently somebody might've 

been exposed. Then an industrial hygienist will 

use records that we provide them. 

So one of the items that we collect 

from the Department of Energy is the DAR records. 

They're the document acquisition records that 

they have. Those records are beyond the 

employment verification, and they will tell us -- 

provide us with any other information that they 

might've gathered for this particular employee 

over the years, including any monitoring that 

they might've had, any industrial hygiene records 

that might be there already, medical documents 

from when they might've visited the clinics, 

things like that. Those will all come in a DAR 

request that we get from the Department of 

Energy. 

Once we have gathered that information 
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and we've reviewed the SEM, we will -- when we 

refer something to an industrial hygienist, that 

first goes to our policy branch where the federal 

industrial hygienists are housed. And they will 

then oftentimes refer that out to a contract 

medical consultant. The contract medical 

consultant will write their report that are 

pretty detailed, and then they will send back in 

to the federal industrial hygienist for review to 

evaluate consistency for making sure that the 

correct information is in there. 

These reports will vary. They rely 

heavily on literature in the absence of any data 

that we might have from a claimant or from 

Department of Energy. They will rely on their 

expertise. They'll rely on literature. They'll 

rely on whatever they can in making these 

assessments. Those are evaluated and reviewed by 

our federal industrial hygienist and then sent 

back to our claims examiner for review in the 

evaluation of each case. 

Once we've identified the extent of 
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exposure, oftentimes depending on the case, we 

will send it back to a treating physician and 

say, this is what we know about the person's 

exposure. Can you provide us with an assessment 

on whether or not these exposures where a 

significant factor in causing, contributing to, 

or aggravating a condition? Sometimes the 

claimants go to doctors that have a pretty good 

knowledge of this sort of thing. Other times, 

they don't. 

So in those cases, if we have enough 

information, we'll go to a contract medical 

consultant. Again, we developed this contract 

because we realized that many treating physicians 

cannot or don't have the expertise or the 

willingness to go and try to provide us with a 

causation analysis. And so we'll go to these 

doctors of various specialties, the occ docs and 

oncologists and pulmonologists, to ask them for a 

causation assessment. 

We'll say, here's our statement of 

accepted facts. Here's what we know about the 
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case in terms of exposure, the medical evidence 

that we have. When it comes to causation, we 

will typically send all of the medical 

documentation that we have related to the 

condition that we're looking toward. Oftentimes, 

that's all of it. 

And we go to contract medical 

consultants for other reasons. Sometimes we'll 

go to them to provide us with an opinion on 

impairment because that is one of the options. 

When somebody wants an impairment rating for 

their whole body impairment, they don't have a 

doctor to go to. So they will go to -- they will 

say that they want to go to one of our contract 

medical consultants. That CMC will then collect 

the information like a pulmonary function test or 

other testing necessary to conduct this 

evaluation for the claimant. And then they'll 

come back and provide us with their assessment. 

Sometimes we'll send something to a 

contract medical consultant for wage loss. And 

so that just means we don't have anything from 
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the claimant's doctor telling us that this wage 

loss period was related to the condition that 

we've accepted. So we'll ask that question. 

Other times, we just need clarification on 

medical diagnoses because the evidence in the 

case file is not exactly clear on what diagnosis 

is actually the proper one. 

As with the industrial hygienist, we 

do have a medical doctor here, a federal doctor 

who is the director for Office of Workers' 

Compensation. And we'll evaluate cases in some 

circumstances when there might be a question. 

Given that our claims examiners aren't medical 

doctors, they will evaluate cases sometimes and 

have a question about how this -- whether this 

diagnosis is correct, whether this impairment 

looks proper based on the AMA guidelines, things 

like that. And so we do have a federal doctor 

here. 

I want to go back, just looking at my 

notes from what Dr. Markowitz wanted me to cover 

here. When we send something to an industrial 
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hygienist, we will send them the occupational 

history questionnaire, any DAR records that we 

have the case file, and any other information we 

have in the case file plus the SOAF and the 

questions. The questions are often going to be, 

this is what we know that the person may have 

been exposed to according to SEM or other 

information we've gathered. Please provide us 

with an assessment of the extent of that 

exposure. 

The IH will then come back with 

information like this person typically would've 

been working, exposed to this substance, 

asbestos, for example, on a regular basis at a 

significant level or at low levels or biweekly, 

those sorts of things that the IH will come back 

with. For the medical consultant, as I said, 

that will vary. For causation, it's going to be 

a lot more medical evidence than for impairment 

because impairment, there are specific things 

they usually need to have in order to make that 

assessment. 
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So we do refer cases to them a certain 

way. If they have questions, there's a way that 

they can come back and ask for more information. 

If we then have questions of the contract medical 

consultants or the IHs, as claims examiners, they 

can do that. 

Now at the end of this whole process, 

it really is the claims examiner's determination 

based on the evidence of record whether the 

totality of that evidence, looking at everything 

that we have gathered before they'll make that 

decision. But it will ultimately be the claims 

examiner's determination. These medical 

consultants, the IHs, they are to provide 

information that is used by the claims examiners 

to make that determination rather than they're 

not there to make the decision for them. Next 

slide, please. 

So once we've gathered all of this 

information, the recommended decision is made by 

the District Office, meaning there's a two-part 

process for this determination. The District 
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Office will issue a very detailed and thorough 

recommended decision which outlines all the 

various factors they've looked at in the case 

file to come to a recommendation as to whether to 

accept the case or deny the case or do something 

in between, meaning accepted under B or accepted 

under Part E and not under Part B, things like 

that. Oftentimes, we get a lot of conditions 

claimed at the same time. 

We get a lot of pulmonary conditions, 

but we might get other sorts of conditions, the 

same cancers of different types, very serious 

conditions, majority of will be lung conditions. 

Once we've written the claims examiner and the 

District Office has written that determination, 

they will send that to the claimant who is 

provided with a right to object. And that is 

when it goes to our -- every case goes to the 

final adjudication branch. 

The final adjudication branch is made 

up of hearing representatives who review the 

case. They'll look at the recommended decision. 
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They'll look at the facts in the case and any 

objections. So at the point between the 

recommended and the final decision, if the 

claimant wants to object, they can have a 

hearing. And lately, it's been by phone. But 

there are Webex capabilities. We've done them in 

person where they'll meet with the hearing 

representative and talk about what their 

objection is. 

Maybe they have additional information 

they can share or they can ask for a review of 

the written record where they don't do a hearing 

but they can submit additional information. 

Either way, we allow a certain amount of time or 

60 days basically for a claimant to choose to do 

that. Now if it's an acceptance, they have the 

right to waive the right to object. And we can 

issue that decision sooner to go ahead and accept 

the claim. 

What the final adjudication branch 

will do after all of that is they will either 

affirm the recommended decision, whether it was a 
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recommended decision to accept or deny. Or they 

could remand it saying, okay, I have new 

information now. And therefore, please take a 

look at this information. Issue a new 

recommended decision based on it. 

They can reverse a case as well. So 

if we didn't have any medical information or we 

didn't have the right employment information, we 

got it at the final adjudication, they can go 

ahead and say, oh, this is enough to accept. I'm 

going to reverse to accept. That is something 

they can do as well. 

If after all of that, the claimant 

still wants to object or maybe they get more 

information, they can ask for a reconsideration 

within 30 days. At any time, they can ask for a 

reopening. So let's say they don't have medical 

evidence today or tomorrow or in the next six 

months. They weren't able to obtain the records 

they needed. But they get those records maybe a 

year later. 

They can always ask for a reopening of 
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a claim and we'll take a look at what evidence 

they might have. And some cases, we'll reopen 

the claim ourselves, meaning the typically way we 

would do that is to do some sort of a policy 

change or if there was a change to the Special 

Exposure Cohort. So oftentimes, NIOSH will add a 

new Special Exposure Cohort. We will then go 

back and evaluate every case to see whether the 

individual might fit into that class and get an 

acceptance where they might've been denied. Next 

slide, please. 

So I'm going to try to put this in the 

context -- all of this information that I've just 

thrown at you in the context of what the Board 

helps us with and what your statutory duties are. 

The Site Exposure Matrices, again, I'm not going 

to talk too much about that because I know that 

John is doing a whole presentation about it 

tomorrow. But as I indicated, this is constantly 

being improved and added to. The Site Exposure 

Matrices, we're constantly trying to do more 

research. 
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And so we've asked the Board in 

certain circumstances to assist us in the job 

categories and certain exposures that might be 

related to that you can research or know about, 

evaluating the Site Exposure Matrices, in and of 

itself, to provide us with any information that 

might be helpful, that we could add to it or 

improve it in some way. So that's what that 

first category is about. Medical guidance for 

claims examiners with respect to the weighing of 

medical evidence of claimants, this will often 

tie into the bullet -- the fourth bullet where it 

talks about the work of staff physicians and 

consulting physicians and their reports. 

So when we talk about medical 

evidence, as I indicated, claims examiners will 

get information from treating doctors. They'll 

get information from sometimes specialists that 

the claimant goes to. And then if there's a 

question or if we need clarification, we'll have 

information from a contract medical consultant. 

And so what the claims examiner's job is to do is 
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to evaluate that evidence and come to a 

conclusion. So one of the things the Board can 

look at in these areas is just -- and I know that 

the Board has sometimes looked at consistency and 

looked at the various CMC reports and things like 

that. So that's kind of where this falls in. 

And then the -- I'll come back to the 

Part B in a minute. But the work of the 

industrial hygienist is to ensure quality, 

objectivity, and consistency. And the Board has 

provided us with some thoughts about that. I 

will let John talk to you about the changes we've 

made as a result of those recommendations from 

the Board. But again, this is an ever evolving 

process in terms of what to look at, how much to 

look at, what we can assume, what we can't 

assume. So that's basically kind of what this 

bullet is about. I'm going to go back to the 

third bullet where it says evidentiary 

requirements for claims under subtitle B related 

to lung disease. 

And I think what this really refers to 
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is the beryllium diseases, whether it's beryllium 

sensitivity or chronic beryllium disease under 

Part B. There's very specific criteria for what 

we can accept under Part B and under Part E. And 

that's laid out in the statute. So there's a 

pre-1993 criteria and post-1993 criteria that's 

laid out in the statute. We could probably 

dedicate a whole session to talking about what 

that means and we are willing to, if necessary. 

I know that a lot of the Board has already looked 

at this issue to an extent. 

Part of the issue is there are certain 

tests that are required, certain assumptions that 

need to be made when you are evaluating a claim 

under Part B for chronic beryllium disease. The 

statute says you need certain tests if it's pre1993. And they say pre-1993 because people 

didn't necessarily diagnosis employees or 

claimants or patients with chronic beryllium 

disease at that time. Since they didn't 

necessarily know about it. 

So they used skin patch tests instead 
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of what is now beryllium lymphocyte proliferation 

test. And a lot of the doctors on this panel 

already know better than I what that actually 

means in terms of what information was available 

back then versus what information we have now. 

CAT scans can provide a lot of information, but 

they need to be interpreted to be consistent with 

chronic beryllium disease. Back in the day, they 

didn't have doctors that would do that. 

So again, I'm not going to go into a 

lot of detail about the various criteria. Those 

are laid out in our procedure manual. It's laid 

out in the regulations, in the statute itself. 

And we can dedicate some time to going over what 

chronic beryllium disease really looks like, what 

the difference between the two dates means. But 

the reason, I believe it's in the statute or in 

the duties for the Board is that trying to 

interpret these tests in the right way or to make 

sure we get the right information even though the 

statute is prescriptive. There's a certain level 

of interpretation of what that means when we're 
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gathering documentation under Part B for chronic 

beryllium disease. 

And then the next one is -- or the 

second to last bullet, basically the claims 

adjudication process generally, including review 

of procedure manual changes prior to 

incorporation into the manual and claims for 

medical benefits. That's precisely what the 

statute says the duty is. What that has meant in 

the past few years with the Board is that you've 

helped us look at procedure manual updates that 

we've made, look at the procedure manual related 

to these other various duties that you're 

supposed to be looking at to help us with certain 

causation presumptions, for example. 

We've gotten some presumptions from 

the Board that we can -- instead of having to 

rely on the SEM and the industrial hygienist and 

everybody else, we can make an assumption that if 

you have these certain circumstances, you can 

make a presumption that a person had asbestosis 

as a cause or related to their employment, the 
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same thing with various conditions. So we've got 

a whole appendix in our procedure manual that 

kind of walks through all these different 

presumptions that we have. And the Board has 

helped us clarify what those presumptions could 

look like, how we could add to them, how we could 

improve upon them. 

And so that's one area that's been 

helpful that you guys have been able to help us 

with and you continue to look at, I believe. But 

there are others. We've got chapters on just 

about everything. You want to know about 

something and how we process a claim, you look at 

our procedure manual. The procedural manual is 

really meant for our claims examiners. It's not 

guidance for the public or anything like that. 

It's just step-by-step procedures that our claims 

examiners follow when they're trying to 

adjudicate a claim. And it goes from every 

aspect of the claim, from claim intake to final 

decision. 

Now given the fact that it is used so 
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often and in everyday work and when a change 

happens to the procedural manual, it impacts how 

a claims examiner is adjudicating a claim. We 

need to make these changes in real time as 

quickly as possible. So while the statute 

requires that the Board review the procedural 

manual in advance of publication, we can really 

only allow a small amount of ten days or so for 

that to occur because we hold it up too long, the 

Board has to -- oftentimes, you have to vote on 

changes and things like that. 

And since the meetings are so 

infrequent, making that happen and being able to 

make changes to our procedure manual in real time 

would be more difficult if we allowed -- if we 

had to allow more time. That being said, the 

Board does look at the procedure manual all the 

time and we do make changes as a result of that. 

 So you can make recommendations to change the 

procedure manual at any time before or after 

we've publish new changed. 

And as Tom pointed out, there are 
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other matters the Secretary considers 

appropriate. That's not something that the 

Secretary himself has never defined. However, 

when we come across -- us being the DEEOIC, the 

energy program. When we come across topics that 

we think might be helpful for the Board to look 

at, like Parkinsonism is one of the recent ones, 

and as Dr. Markowitz I'm sure will walk through 

some of the challenges that we encounter, we will 

ask the Board for your advice on it. 

And so that will lead me into the next 

item that I want to discuss. I do have a slide 

on this. So you can leave it where it is. But 

we have -- and I'm sure that the Board has -- I 

know that the Board has been provided with some 

information from some of the advocates regarding 

some conflicts between different medical opinions 

regarding impairment. 

So we use the AMA guides for the 

evaluation of permanent impairment. That's in 

the statute and the regulations to make this 

determination about what percentage of whole body 
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a person -- an employee has based on their 

covered conditions. And so when we rely on those 

guidelines, there are very specific tables. And 

if you're looking at lung, there's a particular 

section you're supposed to go to. 

And we rely on either the treating 

doctor or a contract medical consultant for that 

evaluation. In some instances, we'll go to our 

medical director if there's a question about what 

the treating doctor is saying. Our claim 

examiners are trained in evaluating all the 

medical evidence. And in some case, they'll look 

at the AMA guidelines to determine, okay, if this 

person is referring to a particular table, where 

is it in that table? 

If there's a question, sometimes 

they'll go to our medical director for 

information guidance. And then we'll go back to 

a treating doctor with any questions that we 

might have. Or in the midst of that and in the 

midst of looking at varying different treating 

physician evaluations, we found that there are 
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some conflicts with regard to certain tests that 

are being used to make these determinations and 

put people in certain classes. The higher a 

class, obviously the more percentage of 

impairment they're going to get. 

And so what we found is that there is 

an issue between different opinions about which 

tests are viable and which tables should be used 

and how they should be used when you have a 

condition. So we sent a letter and it was just 

yesterday. Dr. Markowitz might not have even 

received it until today, but I think you 

should've received it yesterday from us to you 

that kind of covers this issue. It's pretty 

detailed. I don't want to walk through it all 

right now. I'd like the Board to have an 

opportunity to absorb the issues that we're 

seeing, and then I have a series of questions 

that perhaps members of the Board could assist us 

with in terms of resolving some of these 

conflicts in how to interpret the guide, what 

tests are appropriate to use or not use. That's 
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what that issue is really all about. 

And although it sounds kind of vague, 

it is something we're looking at and it's 

something we'd like you to help us look at. So 

that's that. And I think I left enough time for 

questions. 

MEMBER MARKOWITZ: Okay. This is 

Steve Markowitz. Great. Thank you very much, 

Ms. Pond. That was extremely clear which means 

that I understand it. But actually, this 

PowerPoint is on the Board's website for the 

meeting for today. And actually, if Ms. Rhoads 

could make it also on the resources for the Board 

in general because it is an extremely useful 

reference to go back to. So are there questions? 

I see that Dr. Bowman has a question. 

MEMBER BOWMAN: Hi, thank you. Just a 

quick question. You were going over sort of the 

process by which claims go through, and you 

talked about cases being referred to industrial 

hygienists or the CMC. Can you just give us a 

sense as to what fraction of cases are typically 
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referred to one or the other or both and how 

that's determined on a case-by-case basis? 

MS. POND: So I don't have a 

percentage of cases for you. What I can tell you 

is that it's only Part -- well, for industrial 

hygienists, it's only cases that are for Part E. 

So it's going to be anything that's not covered 

under Part B. That would only be covered under 

Part E typically, so things like COPD, chronic 

obstructive pulmonary disease, asbestosis. But 

also we can have kidney disease, any condition 

really. So sometimes -- and it does happen. It 

happens more often now, now that claimants and 

authorized reps are becoming more educated about 

what we're looking for. 

We are getting doctors that will come 

in with very accurate and thorough records for 

exposure. Or a claimant has been able to provide 

us with a lot of information about exposure. And 

then they'll have a doctor that looks at that and 

says, I believe that this was aggravating or 

contributing to it. And then we can go ahead and 
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accept the case. 

Now that's rare, but it's becoming 

less rare now as the program matures. So when we 

don't have that, when we get a case -- if we get 

a case where there's no diagnosis or there's no 

information at all, then we probably won't refer 

it because there's just nothing to go on. But if 

we have at least a prima facie case, we have at 

least enough information to say, yeah, it looks 

like -- so the doctors come in and say, I believe 

that exposure in the workplace is related to it. 

It's a paragraph. It doesn't provide 

us with a lot of information. But it gives us 

enough to say, okay, well, let's really dig into 

this. And so we'll look at a case and that's 

when we'll go to our Site Exposure Matrices 

first. Again, we're normally not going to just 

deny a case without doing the additional steps 

unless, again, there's just no rationale or no 

information that a person could've been exposed 

to something that would cause their heart 

condition or whatever condition it might be or we 
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don't have a lot of information about that 

condition. Those might be denied at the front. 

But before most cases -- most of the Part E 

cases, I would say the majority of them or maybe 

50 percent will go to an industrial hygienist for 

review on their exposure. 

And then again what we're trying to do 

-- what we always do is we'll go to a treating 

doctor or we'll go to a CMC just because we want 

to provide that treating doctor with the 

opportunity to come back with some sort of 

opinion on it, whether we look for medical 

rationale, supporting documentation behind their 

opinion. But if they come back and say, I 

believe this exposure is related to it, 

particularly when they come back and say it was a 

significant factor in aggravating or contributing 

to the condition. We can go ahead and accept 

those without a referral to a CMC. 

But in some cases, there's not a lot 

of information to go on from the treating and 

we'll go to a CMC. Again, I don't want to 
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provide you a percentage of how many go to the 

CMC. It's definitely not all of them. And as I 

indicated, it's becoming more and more common 

that treating doctors are able to provide that 

information. I hope that answers your question, 

but I'm happy to take follow-up. 

MEMBER BOWMAN: It does. Thank you so 

much. 

MEMBER MARKOWITZ: So this is Steven 

Markowitz. I'm just going to raise something 

that's related to the previous question. So in 

terms of -- one of the areas that the Board has 

looked at and tried to be helpful on is 

increasing the quality, quantity of exposure 

information available for decision making. And I 

know the Department or the programs made changes 

in the occupational health questionnaire and has 

used the new occupational health questionnaire. 

Is Mr. Vance going to talk about that experience? 

MS. POND: Yes. 

MEMBER MARKOWITZ: Okay, fine. So I 

won't ask about that. So really for the sake of 
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clarity for the new members, in the claims 

process what the claims examiner gets initially 

is a big application. That includes some limited 

information about the claimant's job. It might 

have their job title. It may have their -- well, 

it'll have what site they worked at. They have 

some limited history. I think that's on the EE-3 

form, but -- 

MS. POND: Yes. 

MEMBER MARKOWITZ: Okay. So that's 

the initial information the claims examiner gets, 

and then there's a request to the Department of 

Energy. And I don't have a claim. I'm not sure. 

MS. POND: Unless we know they don't 

have records, then we'll refer to another POC 

that we might have for employment verification. 

MEMBER MARKOWITZ: Okay, okay. But if 

there are any exposure records that the 

Department of Energy has, then those are 

requested. And then it moves to an occupational 

health questionnaire which is done by telephone, 

I think, by a resource center person. Is that 
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right? 

MS. POND: Yes. 

MEMBER MARKOWITZ: Okay. And so that 

information is collected on the occupational 

health questionnaire and at which point the 

claims examiner has the initial claim form, has 

whatever the documents might be obtained from 

DOE. They have the occupational health 

questionnaire, and then they would then turn 

towards the Site Exposure Matrices, the SEM, to 

do further investigation. 

A couple years ago, the Board 

recommended that the industrial -- and this is 

later in the process -- but that the industrial 

hygienist have the opportunity -- if they're 

brought into a case by the claims examiner, have 

the opportunity to actually interview the 

claimant to try to sort out things, get 

additional information. And the idea being that 

if the level of information wasn't sufficient 

really from the various items that I just 

mentioned that -- and ultimately, this is kind of 
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a critical point because in a decision about 

causation, you want to know dose, right? You 

want to know as much as you can about that 

exposure. 

And so we recommended that the program 

accepted the mechanism of occupational health 

interviews and although it seemed to be kind of 

slow in starting up. But my questions is, has 

that mechanism been used over the past 6 or 12 

months? If so, how many times? What's been the 

experience? If it hasn't been used, what are the 

obstacles? If you could just address that or if 

Mr. Vance is going to address that, then fine, 

but -- 

MS. POND: He's planning to address 

that. 

MEMBER MARKOWITZ: Okay, okay. 

MS. POND: I think he's got a little 

bit more information than I do. So I'll let him 

do that when he gets up. 

MEMBER MARKOWITZ: Okay, great. Thank 

you. I'm looking on the Board for if anybody 
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else has a question. Feel free to either chime 

in or raise your Webex hand. I have -- oh, here 

we go. Dr. Silver? 

MEMBER SILVER: Thank you. I seem to 

recall the time the Board's been up and running 

there's been at least one occasion where the 

Board's recommendations were accepted by the 

program. Changes to the procedure manual were 

initiated. And the program went back to pull 

claim files that were adjudicated under the old 

understandings before the Board's advice created 

a new understanding. I think the issue may have 

been asthma or COPD. And then the files 

previously rejected were given a fresh look. Has 

that happened on more than one occasion? 

MS. POND: Yeah, anytime that we make 

a determination that affects a -- like, for 

example, those two that you provided were good 

examples. But any -- we made some changes to the 

presumptions on asbestos, on asthma, on 

mesothelioma. There was a whole slew of them 

that we made -- that you guys have made some 
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recommendations to change and we made those 

changes. So in those cases, we would go back and 

look up any cases we might've denied for those 

conditions to see if they might meet the new 

criteria. So anytime that a significant change 

is made or presumption is made, anything like 

that that would really impact the end result, we 

will go back, pull those cases and look at them 

again. 

MEMBER SILVER: Thank you. 

MEMBER MARKOWITZ: Ken, you may need 

to lower your hand. This is Steve Markowitz. I 

have a question about industrial hygiene 

contractors. So these industrial hygiene 

evaluations or reports are produced by a 

contractor and then sent to the program office, 

then reviews them. Has the contractor changed in 

the past year? 

MS. POND: No, I believe it's the same 

contractor. 

MEMBER MARKOWITZ: Oh, okay, okay. 

MS. POND: Let me verify that. 
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MR. VANCE: Hey, Rachel, can everybody 

hear me? 

MS. POND: Yes. 

MEMBER MARKOWITZ: Yes. 

MR. VANCE: We actually did a 

transition to a new contractor in the past year. 

MS. POND: Sorry. You broke up a 

little bit, John. Could you repeat that? 

MR. VANCE: The answer is yes. We did 

transfer to a different contract. But it's the 

same basic operational process. 

MEMBER MARKOWITZ: Thanks. So this is 

Steve Markowitz again. The previous Boards 

understood that the previous industrial hygiene 

contractor consisted of many industrial 

hygienists, perhaps health physicists who had 

significant previous experience within the DOE 

complex. Is that true of the new contractor? 

MR. VANCE: Yes, it is. In fact, the 

prior (audio interference) new contract. So a 

lot of the same individuals are still working on 

that contract. 
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MEMBER MARKOWITZ: Okay, okay. Thank 

you. Other questions? 

(No response.) 

MEMBER MARKOWITZ: Okay. What I 

propose at this point, this is Steven Markowitz, 

is I want to show a table of data really just to 

break up the type of presentation we're getting. 

We have a couple minutes before -- 

MS. POND: Are you calling me 

monotonous? 

MEMBER MARKOWITZ: Oh, no. Oh, no. 

Not at all. 

MS. POND: I know it can get boring 

with the same stuff. 

MEMBER MARKOWITZ: No, no, no. I 

never called you monotonous. And there's a 

transcript to prove it. 

MS. POND: Oh, no. Sorry. Just 

joking. 

MEMBER MARKOWITZ: That's okay. So 

what I want to show is a table that the Board 

looked at a year ago of -- and Kevin, this is not 
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the sheet that I want to look at. 

MR. BIRD: Okay. Let me -- 

MEMBER MARKOWITZ: It's the Excel 

spreadsheet you got. It should have multiple -- 

MR. BIRD: I'll just share the 

application. Hold on one second. 

MEMBER MARKOWITZ: Okay. So let me 

explain what this is. We requested of the 

program that we get information on what claims 

are actually submitted, for what kind of -- for 

what conditions. Yeah, that's it, for what 

conditions. 

And then of those claims, how many are 

accepted, so we get a better sense of what the 

record of the program is. And so the program's 

data aren't so much organized to answer that kind 

of question. But we were given this data. And 

so I thought I'd show it to you. 

For the previous Board members, you 

probably remember this. But for new Board 

members, I think you'll find it interesting. So 

this is between 2016 and 2019. These are under 
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Part E. 

These are respiratory conditions, so 

these were the conditions for which claims were 

made. And you can see from column E the total 

number of claims in that three-year -- roughly 

three-year period, maybe closer to four years. 

So you can see -- and we list it by most common 

claims, right? And then you can see on column I 

the percentage that are improved. 

So the leading condition -- and by the 

way, if anybody has any questions if I'm not 

being clear, just raise your hand or jump in. 

That's fine. So if you look at column I, the 

percent approved, so the leading condition was 

called other chronic obstructive pulmonary 

disease. So this is COPD or emphysema. And you 

can see there were over 2,000 claims. 

So this is, by far, the most common 

respiratory condition for which a claim was 

submitted. And 52 percent of them were approved, 

so about half approved, half not approved. If 

you go down to the next one which is asthma, you 
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see about 62 percent, almost two-thirds of them 

were approved in that time period. 

And then you go down to the next one 

which is pneumoconiosis due to asbestos, 

otherwise known as asbestosis, and 83 percent 

were approved. So that's about six out of every 

seven claims were approved. And you can -- I'm 

not going to go through each row because you can 

inspect it for yourself. 

But you see that in every instance 

except for something called other respiratory 

disorders, over 50 percent were approved. Now 

the other thing that's on this table here is for 

those that weren't approved what the reason for 

denial was. And you see that in row -- excuse 

me, columns J through P, although they're really 

just a couple of columns that are most populated. 

So for instance, for the first one, 

COPD, it says 52 percent were approved. And for 

those that weren't approved, 69.8 or 70 percent 

were not approved because of the claims examining 

process did not find causation. And in 19 
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percent of cases, the medical information was 

insufficient, presumably meaning that there just 

wasn't enough medical data in the chart to 

confirm the presence of COPD. 

And then you can see the same for the 

other conditions. Most commonly on the vast 

majority of these, the reason they're denied is 

negative causation. And then in some instances, 

for instance, the pneumoconiosis due to asbestos, 

47 percent of the cases the medical information 

was insufficient. Presumably the case did not 

include sufficient information to confirm the 

diagnosis of asbestos. 

So just let me show you another one. 

Let's go to cancer. Well, let's go to Health 

Conditions Top 20, this Top 20 sheet. And so now 

these are all the conditions between 2016 and 

2019 that were approved or denied, the top 20 in 

descending order. 

And again, column E is the total 

number of claims for the various conditions which 

are in column D. Skin cancer is the top one and 
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then number two is chronic obstructive pulmonary 

disease which we just looked at. And then so you 

can look down at what conditions are in the top 

20, and you can see in column E how many claims 

in. 

And you see a number of those 

respiratory conditions in the top 20, and that's 

what Ms. Pond said before. And then you can look 

at column I for the percent approval and it's 

variable. So for instance, malignant neoplasm of 

the prostate which is prostate cancer which is 

row 3, 2.7 percent were approved, very low. 

But then you get to -- let me see 

where lung cancer is. Lung cancer is row 14, and 

malignant neoplasm of the prostate and lung, it's 

41 percent were approved. I think that's the 

highest percentage approval for cancer, at least 

under Part E. Part B is different. 

And then finally, let me show you -- 

actually, let's go to the neurologic tab, the 

neurologic top 10 since we have a new Board 

member who neurotoxins is a particular area of 
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interest. So again, these are the top conditions 

in the neurologic. The top one is sleep 

disorders actually. 

Now let me just say that some claims -

- and Ms. Pond or Mr. Vance can correct me. But 

some claims are put in for consequential 

conditions. I think they are included in this 

table. 

So these might be conditions that 

occur as a result or in consequence of or 

secondary to another condition for which a claim 

has been awarded. But I'm not sure actually 

whether those are included. The consequential 

conditions are included in these. Maybe Mr. 

Vance can clarify that later. But let me just 

finish the point here and then we can move on. 

So 38 percent of claims for -- roughly 

500 claims for sleep disorders were approved. 

Parkinson's disease, it's really a family of 

Parkinson disorders. Almost half of them were 

approved between 2016 and 2019. I'm sorry, 46.5 

percent. And again, I'm not going to go through 
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all of these. 

Neuropathy or nerve damage in the arms 

or legs is a relatively common claim. It appears 

in multiple forms in this top 10 and somewhere 

between -- it looks like about a third, almost 

half of them are compensated. So let me leave it 

at that. We have similar information on renal or 

kidney disease and then we have -- I think that's 

maybe a couple of other. 

So let me stop here because we're 

going to hear from Mr. Vance. But if there are 

any questions about -- and I can make this table 

available obviously. But if anybody has any 

questions about these tables, you can raise them 

now. 

(No response.) 

MEMBER MARKOWITZ: So I don't know 

whether Mr. Vance or Ms. Pond, whether you 

remember whether consequential conditions were 

included in this listing of claims. Or would 

this just be the primary diagnosis that the 

claimants submitted claims for that would be 
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included here. 

MS. POND: John? 

MR. VANCE: I cannot confirm. But 

just looking at that list, I would imagine it 

includes any condition that was claimed in that 

ICD-10 code range. So this would probably 

include the primary and secondary. And the 

reason I'm looking at that is because that sleep 

disorder is (audio interference) of other 

pulmonary conditions that have been approved in a 

case. So I'm suspecting that this does include 

consequential illnesses, but I can't confirm it. 

MS. POND: Same thing with Alzheimer's 

disease. I would imagine that's consequential, 

but -- 

MEMBER MARKOWITZ: Okay, okay. 

Thanks. Okay. Ms. Whitten, do you have a 

question or a comment? 

MEMBER WHITTEN: Yes, I was wondering 

if you also subtract the time it takes from the 

initial claim to the final decision. 

MS. POND: Yes, we have a very robust 
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metric system of measurements in terms of what we 

-- I mean, how long it takes to evaluate a claim. 

We have deadlines for our claims examiners but 

with flexibility. So I will tell you that if a 

case does not go to NIOSH which takes a little 

bit longer, they usually take about 60 days, 

sometimes longer than that. 

But if it doesn't go to NIOSH, our 

average is about six months to adjudicate initial 

claims or adjudicate claims or basic claims, 

meaning it didn't go to a hearing which also 

takes time. It shouldn't go to NIOSH. So if 

it's just a general claim, and the majority of 

them, it takes about six months from the 

beginning of claim intake to final decision. 

MEMBER WHITTEN: All right. Thank 

you. 

MEMBER MARKOWITZ: Okay. I'm sorry. 

Dr. Bowman? 

MEMBER BOWMAN: One other question 

about types of data available. Has there been a 

tracking over time about whether denied or 
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approved the frequency by which various orders 

are coming up so that there might be at some 

point a retroactive examination if there's 

anything out of the ordinary popping up in an 

unexpected way? 

MS. POND: Let me just try to make 

sure I understand your question. I'm not sure I 

understand your question. I'm sorry. Can you 

repeat that? 

MEMBER BOWMAN: Yeah. So these 

workers have potentially some fairly unique 

exposures, many of which -- obviously any sort of 

-- looking at causation will rely on best 

available scientific and medical data. But given 

that uniqueness, it seems like over time with 

this program, there would be just sort of 

information coming in that might represent things 

that might be outside of current scope of data 

and whether or not there is this keeping of data 

so that in the future, one can look back to see 

if there's an unusual fraction of claims from 

this population beyond what would be expected 
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from the normal U.S. population. 

MS. POND: Yeah, I understand. I 

think that if we had a research arm that could 

evaluate our databases and all of the things that 

we do, that would be ideal. But we are strictly 

adjudication, and our resources are all dedicated 

to reviewing cases as they come in. 

Again, as I said earlier, if we do 

determine that there's a presumption that we can 

make and then we can go back in time and readjudicate claims that are different. And I know 

that's a different question. But in terms of 

being able to evaluate this body of data that 

we've collected, we just don't have the resources 

to do it. 

MEMBER BOWMAN: Sure. Is that data 

made publicly available? 

MS. POND: Not in that format. Again, 

we collect the data just to adjudicate claims. 

So we track the things that we track. We don't 

necessarily -- we're not going to have in our 

database that we accepted this case based on this 
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particular chemical or exposure. So first, it's 

not publicly available in general because it's a 

database that we have of PII, of private 

information. 

But second, it's not gathered for that 

purpose. So it's not very easily manipulatable 

to get there at this point. Obviously, if we 

were gathering it for a different purpose, it 

would be available that way. But unfortunately, 

we use it as a case management system. 

MEMBER BOWMAN: Okay. Thank you. 

MEMBER MARKOWITZ: Okay. Are there 

any other questions, comments? 

MEMBER CATLIN: Yeah, this is Mark 

Catlin. 

MEMBER MARKOWITZ: Sure. 

MEMBER CATLIN: So thank you for the 

data. So under the reason for denial, the 

medical or the negative causation percentages or 

the numbers, is there -- can that data be teased 

out to separate out cases that just clearly 

weren't medically appropriate or the exposure was 
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shown to not be present or that -- and separating 

that out from the cases where it's just like a 

lack of information that's able to show 

something? So is there a way to divide out that 

data over time? 

MS. POND: Unfortunately, I think this 

is the best we can do on that. But I will say 

that negative causation -- John, please correct 

me if I'm wrong. But I believe that negative 

causation is going to usually include an 

assessment of exposure and causation where 

medical information insufficient is usually going 

to be we just didn't get medical. 

And it's pretty basic. We didn't get 

medical. I think that if there's a causation 

reason for it, it would not be in that initial 

category. So while that doesn't tell you whether 

or not they were -- it was because they didn't 

have any exposure information, it does tell you 

that it's just they came in and they didn't have 

enough medical for us to move forward. 

MR. VANCE: Yeah, and that's correct. 
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MEMBER CATLIN: Okay. Thank you. 

MEMBER MARKOWITZ: Dr. Van Dyke? 

MEMBER VAN DYKE: Yes, following up on 

Aaron's question, I mean, I'm curious. Is there 

anything in the statute or the rules that 

prohibit you from looking at the data from more 

of hypothesis generating maybe this exposure, 

maybe this disease kind of way? 

MS. POND: Well, our statute is very -

- the statute was created for us to adjudicate 

claims. And so all of our resources are towards 

that end. And so the statute says you can't do 

that. But the statute says you have to do this. 

And so all of the resources that we 

get and the money that we obtain from OMB is 

supposed to be dedicated towards actually 

adjudicating claims at the end of the day. So 

unfortunately, it's just not something that we're 

going to get resources for based on the way the 

wording of the text. If there was another piece 

of it or there was some other -- something else 

out there that said you need to have a research 
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arm, that would be a different story. 

But this is primarily, here's your 

mandate. Go adjudicate claims. And that's what 

we put our resource towards and are required to 

do. 

MEMBER VAN DYKE: Okay. Thank you. 

MEMBER MARKOWITZ: Okay. Well, thank 

you very much. Let's move on to Mr. Vance. 

MR. VANCE: Hi. Everybody can hear me 

all right, Kevin? 

MEMBER MARKOWITZ: So far. 

MR. VANCE: Okay, good. 

MR. BIRD: We can hear you. 

MR. VANCE: All right. I just wanted 

to confirm. All right. So good afternoon, 

everyone. My name is John Vance. I'm the Policy 

Branch Chief for the program. I'm going to be 

providing a little more in depth discussion about 

some of the interactions that we've had with the 

Board and just some general program updates. 

I know this forum is kind of 

entertaining with just listening to voices. But 
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I'll try to be as quick and as concise as I can 

with this stuff and just try to be mindful of the 

folks that are brand new to this process. So for 

the folks that are relatively new, I think both 

Steve and Rachel have both indicated that really 

the best resource that we have for explaining our 

process is our procedure manual. And that's 

where I'm going to spend a lot of time talking 

about that, that document. 

Again, like Rachel indicated, I mean, 

it's an employee handbook for all intents and 

purposes. But it's a public facing document that 

provides a lot of information about our process. 

At the end of the day, basically, we look at a 

compensation program. We're trying to figure out 

what toxins people came into contact with that 

could've made them sick. 

And so that 800-page document explains 

the process of answering that question. So it is 

a very valuable resource for our claims staff and 

meeting their obligations under the law and the 

regulation. And so it's very helpful for the 
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public to understand what we go through in 

evaluating those cases. 

So the procedure manual is a living 

document. It evolves with time. As our staff 

develops experiences with cases, as we have input 

from stakeholders, we will publish updates. And 

those updates are communicated and released 

periodically. 

All of this information is available 

on our website. So I would encourage the new 

folks. The place where I would start would 

probably be with some of our basic outreach 

material and then also then turning to our 

procedure manual just for getting some more in 

depth insights into the program. 

I think that from a contextual 

standpoint, the important thing that everybody on 

the Board who's been here knows and new folks 

which you need to appreciate is that we're trying 

to do a very difficult, challenging job in the 

absence of information. And I think that's where 

the Board has really lent itself to assisting the 
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program. We're talking about an industrial 

process that engaged with producing atomic 

weapons that goes back to 1942. 

So we're looking at cases that can go 

back in time to that date. And we're trying to 

recreate work histories, occupational exposure 

histories, characterizing the type of work that 

people did to try to ascertain whether or not an 

illness that's been claimed as related to those 

exposures. So as you can imagine, this is a very 

-- when everybody is talking about this is a 

challenging process, that's the number one 

challenge is trying to create factual information 

from essentially a lack of it in supporting these 

cases. 

So the procedure manual is a very 

important document. And this is where a lot of 

the efforts of the advisory board have been 

focused, and in particular, Chapter 15, which is 

our primary Part E causation analysis chapter 

talking about how we go about making and 

assessing cases between exposures to toxic 
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materials and claim disease. So if you start 

anywhere in the procedure manual, I'd recommend 

starting to look at Chapter 15. And one of the 

most important -- 

MR. BIRD: Hey, John. I'm sorry. 

This is Kevin. I don't mean interrupt. I just 

want to make sure you understand that we are not 

seeing your presentation at the moment. I just 

wanted to make sure -- 

MR. VANCE: Yeah, I don't have a 

specific presentation. I'm just running through 

some of the updates. And I did want to make 

mention of the fact that all that I'm talking 

about, a lot of it is already covered in all of 

the interactions between the Board and the 

Department of Labor on its website. 

So the advisory board has a link on 

our site, and we have a lot of information there 

about our back and forth. So I'm going to be 

probably covering a lot of stuff that we've 

already addressed in many of those interactions. 

But thank you, Kevin, for letting everyone know. 
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So just some of the most recent 

updates, and I'm just going to start going 

through these verbally. We publish, again, 

procedure manual updates. They're called 

versions. We're currently on Version 4.3. 

Our last edition was published on 

September 14th. And there were changes that we 

made, some that were borne out of interactions 

with the Board, other ones that are just 

organizational issues. So when you look at these 

versions that go out, there is something called a 

transmittal which is basically our formal 

notification of edits that are going into the 

procedure manual. 

So if you want to become familiar with 

what the edits and changes are of the transmittal 

is what we'll notify our staff of what's changing 

in the procedure manual. So some of the big 

changes that we have -- that we're incorporated 

into that last edition was just we've had an 

organizational change where we are no longer 

really doing cases on a jurisdictional basis. We 
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used to assign cases based on the last location 

of covered employment. That no longer exists. 

We are now working on a completely 

equitable rotational assignment process. So as 

cases come in, they're assigned on a rotational 

basis to our district office. So that was big 

organizational change. 

It did not affect any of the locations 

of our district offices. It's just how those 

cases are assigned. A change that did occur 

thanks to input from the Board and Dr. Mikulski, 

we -- I know he spent a lot of time working on 

this question with regard to Parkinsonism. 

So the Board had recommended as part 

of our exhibit on our presumptive standards in 

Exhibit 15-4 some clarification of the aliases 

for Parkinsonism. So we did make some and agreed 

to several changes. We now have Parkinsonism as 

aliases for Parkinson's disease, paralysis 

agitans, and hemiparkinsonism. I hope the court 

reporter is having a good time with that. 

We have incorporated those into the 
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procedure manual as aliases. Concurrently, we 

didn't include this in our procedure manual. But 

we have made a change to the Site Exposure 

Matrices which I'll walk through tomorrow morning 

where we added two different new toxins, carbon 

disulfide and trichloroethylene. Those now 

arebeing identified as toxins with a Parkinsonism 

health effect. So that is a direct change that 

occurred as a result of input by the Board. 

 We also updated our asthma language. This 

has been an area of focus before by the Board. 

We've changed the language to our asthma 

presumptive standard a few times given input on 

the Board. 

We just added the sentence talking 

about the requirement for a qualified physician 

to provide a well-rationalized explanation, 

identifying the mechanism for causing or 

contributing to a condition. So that was added 

in recently as a consequence of input from the 

Board. So I'm hoping that some of this is giving 

you a flavor of some of the work that's done by 
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the Board and with the Department of Labor. 

The next thing which Dr. Markowitz 

already mentioned is the reworking of our 

occupational history questionnaire. This is 

actually a really huge improvement, I think, over 

the past year with regard to how we go about 

collecting exposure data. So like I mentioned, 

the real problem that the program has to overcome 

is simply the lack of reliable data about what 

workers did at these sites and what kind of 

toxins they came into contact with. 

And so as part of our process, the 

important beginning here is getting good 

information from a claimant. Now that can be an 

employee themselves or a survivor of an employee, 

and that starts with this occupational history 

questionnaire interview that's conducted by our 

resource center. And so based on a lot of 

engagement with the Board, we completely reworked 

our occupational history questionnaire format. 

We have now updated that entire 

process. It's in the new edition of the 
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procedure manual under resource center chapter. 

We also have a very new version of the 

occupational history questionnaire on Exhibit 10-

1. 

That new occupational history 

questionnaire format is geared to a much more 

robust data collection effort when we engage with 

the claimant. So basically when we're taking a 

case in, we will set up a call with the claimant. 

We will try to give them pre-notice that, hey, 

this is coming. So start thinking about 

information regarding the type of work that you 

did or the type of work that you know the 

employee did and the type of toxic substances 

that that employee may have had encounters with 

in their job. 

So it is a much more free flowing kind 

of document. This is reflected in sort of a more 

broad-based, open-ended questions where we're 

trying to solicit individualized information from 

the claimant. And I think that the form itself, 

this new interview questionnaire, has been very 
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helpful in collecting more information. And I'll 

get into why that's so critical as we go along. 

But the program did implement this new 

process. We piloted it. We did make some 

changes based on just some of our experiences. 

We added some questions and some input based on 

the Board. 

We are now in full production using 

that, that new occupational history 

questionnaire. And since July, we have now 

completed over 16 -- I'm sorry, 612 occupational 

history questionnaire interviews based on that 

new format. And the feedback that I personally 

have gotten based on my interactions with our 

resource center is that they think that it is a 

much better tool in collecting data. And I think 

that this is a very good example of where the 

Department of Labor and the advisory board 

cooperated to really do something substantial 

with regard to improving the process. So that 

was a big accomplishment for this past year. 

We also had some other changes. This 
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was not something that came out of the Board. 

But it shows you sort of the issues that the 

Department runs into when we actually have on the 

ground claims examiners doing work when we 

identify a process issue that arises out of 

problems with the way people are interpreting 

information. 

And so this is what makes working in 

the policy branch so much fun is that you have to 

be very careful with your wording. And so we 

had, in our changes to the procedure manual, 

language that CEs and claims examiners and others 

were having confusion interpreting because it was 

language that would suggest that an employee 

needed to count a certain number of exposure 

days. And so the claims examiners were trying to 

add up the number of days a person would've had 

contact with a particular toxin. 

That's simply not tenable. It's not 

something that we can do to any degree of 

specificity. So we ended up revising in Exhibit 

15-4 language that spoke to exposure to toxins 
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for at least 250 aggregate work days. 

We subtly changed that to make it so 

that it read that the employee had to be employed 

for that aggregate of work days in a position 

that would've had significant toxic substance 

exposure. And so what we did was we changed that 

language so people could not confuse it and think 

that the person needed to have a documented case 

of exposure. They just needed to have the period 

of employment and then show that they had 

significant exposure to a particular toxin. 

And so we've created that as a change 

throughout all of that chapter with many 

standards in that particular exhibit. And I know 

Dr. Markowitz, this was one of your big things. 

We deleted this diagnostic matrix that existed in 

the procedure manual, Exhibit 18-1. It was a 

document that the Department of Labor had gotten 

from a contractor way at the beginning of the 

initiation of Part E talking about the common 

characteristics of diseases and the diagnostic 

criteria for those. 
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And I think it was creating a lot of 

confusion because folks were looking at that as 

sort of like a requirement document as far as 

what would be needed for a diagnosis to be 

established which it was really never intended to 

(audio interference) probably ended up agreeing 

with the Board. But that just needed to be 

deleted and eliminated. We now leave it pretty 

much to the judgment of a qualified physician in 

evaluating clinical and diagnostic evidence as to 

whether or not there is sufficient basis to 

diagnose a particular condition. 

And then in this last edition, we have 

also made some very major updates to how we go 

about assessing home and vehicle modifications. 

Right now with the population of folks that we 

have approved medical conditions for, we have 

vastly expanded the amount of medical benefit 

management that we do and this is an area where 

we just had experience with issues relating to 

about how we go about assessing requests for 

modifications to homes and vehicles. So we now 
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have a much more detailed outline for how the 

Department of Labor goes through assessing 

medical need and also the reasonableness of cost 

to accommodate that medical need. 

So that was the last edition. And 

then I was asked to also just sort of bring us up 

to date on some of the other changes that have 

occurred. I'm not going to go through 

everything, but I think that I'll just touch on 

some things that I think are kind of important 

from our prior work history with the Board. 

We did add this new IH interview 

process that Dr. Markowitz mentioned. I'm not 

aware of there being (audio interference) a 

number of those being done. Those are generally 

precipitated by a claims examiner needing to have 

some sort of need to have an industrial hygienist 

talk to a claimant. 

I know in the situations that I'm 

aware of that the issues generally revolved 

around some sort of dispute between a level of 

exposure on an appeal of some sort. So that's 
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something that is working with a great deal of 

frequency. I also think that a lot of the 

information that we're getting in the new 

industrial hygiene or the occupational history 

questionnaire is also helping quite a bit on 

characterizing the employees' understanding of 

their exposures. 

And then again for the Board members 

for Part E, a lot of the work is focused on 

Chapter 15 and this Exhibit 15-4 which is our 

presumptive standards which basically means that 

if you can meet these specific criteria that are 

listed in that exhibit, it sort of bypasses the 

need to have physicians provide causation 

opinions with regard to the extent of exposure to 

a toxin and a particular disease. So a lot of 

effort has been made to try to improve and expand 

upon those presumptions. And the Board has spent 

a lot of time doing that. 

We've looked at exposure definitions. 

We've looked at latency improvements to certain 

conditions (audio interference) some of the 
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listed criteria. We've defined things more 

carefully. For example, the definition of 

chronic respiratory disorder was a change that we 

made to improve our understanding of how to apply 

that in case adjudication. We've improved and 

added all kinds of standards that I think have 

helped with regard to adding new presumptive 

standards. 

A good example is non-Hodgkin's 

lymphoma. That was something that the Department 

sort of initiated on its own. But I think that 

the Board was in agreement of how we approached 

that. So it's been a very productive 

relationship with the Board on that particular 

chapter and that exhibit. And I think that's 

where a lot of focus is going to continue into 

the future. 

Some other -- one last thing that I 

think is an important update just to let everyone 

know. So the Board had requested some analysis 

by the Department with regard to one of the 

presumptive standards listed in Exhibit 15-4 and 
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has to do with labor categories with a 

significant level of asbestos exposure. And so 

we had been asked in the past with providing sort 

of analysis. 

And so what we had was our Site 

Exposure Matrices contractor went back (audio 

interference). The Department has received and 

we've shared that with the Board and I believe 

it's been shared with all the Board members an 

asbestos labor analysis that's been completed by 

Paragon. We have also looked at it. And based 

on some of the recommendation that have been 

made, it's more than likely that the Department 

is going to be proceeding by adding additional 

labor categories to that standard. 

The ones that I have identified are 

stationary engineers, precision instrument and 

equipment repairers, heating, ventilation, and 

air conditioning mechanics, installers, and 

repairers, and firefighters and supervisors of 

firefighters. That document again is (audio 

interference) and it will be something I'm sure 
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the Board will want to discuss. So those are the 

main updates. 

And again, I would encourage the Board 

to, especially the new members, take a look at 

the procedure manual. That is our really down 

where the rubber hits the road with regard to how 

we evaluate cases, and it contains a lot of very 

detailed information. And it has been borne out 

of our evolution in adjudicating these cases. So 

it does reflect how we actually go about trying 

to make that connect between an exposure and a 

disease in all of the different exceptions and 

other kinds of complications that we have run 

into as we administer this law. So that's a very 

(audio interference) questions? 

MEMBER MARKOWITZ: This is Steve 

Markowitz. I see two hands up, Ms. Whitten and 

Dr. Van Dyke. But I think that may be from the 

previous session. If it is, if you wouldn't mind 

lowering your hand. Otherwise, anybody have any 

questions? Or Ms. Whitten, do you have a 

question? 
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MEMBER WHITTEN: I was just curious. 

How do you keep that tribal knowledge or certain 

areas from 1942 if you're rotating cases around 

the country, like, say, at Hanford? Do you know 

what I mean? 

MR. VANCE: The way that we (audio 

interference) with our analysis of the different 

facilities, the Site Exposure Matrices is one of 

the primary resources available to our staff that 

provides a lot of information as far as how we go 

about assessing toxic substances that were 

utilized at different facilities. The training 

that I'll give you tomorrow are sort of the 

overview of the Site Exposure Matrices that 

that's the process that the claims examiners go 

through. And so when they're trying to establish 

the factual framework of a case, they need -- 

they're professionals at looking at evidence and 

they're going to look and do a comparative 

analysis based on what is the information they're 

getting at whatever facility (audio interference) 

site exposure matrices or input from subject 
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matter experts such as our industrial hygienist. 

And then they will build that factual 

framework for a physician to evaluate. If it's 

not meet under the presumptive standard, then the 

physician has to then determine whether or not 

based on the factual framework that's been 

established in the case whether or not that 

exposure that's been shown to exist in a case 

file is enough to aggravate and contribute to our 

cause of a particular illness. 

MS. POND: And this is Rachel. 

MR. VANCE: So -- 

(Simultaneous speaking.) 

MS. POND: -- build on that real 

quick. When we made the change, I think it 

sounds like what you're referring to is our 

change to the new case assignment process where 

they're shifted all over the country. There was 

some build up in certain district offices of 

knowledge of certain facilities like Hanford and 

what particularities to look out for when it 

comes to employment evidence and things like 
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that. 

We did very extensive training when we 

-- before we transferred the -- moved to this new 

case assignment process. We did a week-long 

training with all of the claims examiners and 

with the POCs. People who had expertise or had 

particular knowledge of the various facilities 

would talk about the differences and what they 

found and things like that. And we continued to 

have POCs available to help anybody at the 

district offices who might have questions. 

So we still have that. We also have a 

lot of information that we have contained online 

in terms of what references that they can use for 

the various sites. So we have that sort of 

information. And I think that the benefits to 

this new method, at the end of the day, outweigh 

the issue. 

MEMBER MARKOWITZ: Dr. Silver? 

MEMBER SILVER: Yes, question for John 

Vance on the theme of the question I asked Rachel 

a moment ago. Do-overs, were any of those 612 
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interviews of claimants who originally had the 

old OHQ, their claim was adjudicated, and it 

didn't go well for them? Or were these all fresh 

case interviews, the 612? 

MR. VANCE: Yeah. Dr. Silver, these 

would represent the initial occupational history 

questionnaire based on a new incoming case. We 

have not put in place any kind of redo of the 

occupational history questionnaire on existing 

cases. 

MEMBER SILVER: And I think the reason 

the Board was so passionate about taking that on 

is that claimants are a bit naive and unfamiliar 

with the program when they have that initial 

interview. And we didn't have smoking gun proof. 

But we all had the sense that if the OHQ was 

poorly done, it would affect the person 

downstream for months on end as they went through 

the claims process. I know we have about maybe a 

dozen claimant advocates who either speak during 

public comment period or are attending the 

meeting now. Would you be open to allowing 
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claimants to get a fresh bite at the apple and 

have an interview using the new OHQ? 

MS. POND: This is Rachel. I think 

it'll be, first of all, difficult to determine 

which ones had OHQs in those cases. I think we 

have -- I think our data, it would be difficult 

to find out which ones had the OHQs in the case 

files and trying to pull them out, get the 

resources to redo them all with the assumption 

that this one interview is going to make a 

significant difference in the case. It's a leap. 

And so at this point, I'd be open for 

people to ask for a reopening if they believe 

that their OHQ could be changed as a result of 

the new process. But going back and trying to 

re-adjudicate all of those, I'm not sure that it 

would really come out to we've got an 

overwhelming amount of acceptances as a result. 

But anybody can ask for a reopening at any time. 

MEMBER SILVER: That's what I wanted 

to know because you interpreted my question 

systematically. I was really just asking whether 
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well-informed advocates could have their claimant 

request -- the new OHQ be applied to them. Thank 

you. 

MS. POND: Absolutely they could. 

MEMBER MARKOWITZ: This is Steve 

Markowitz. What's the plan for evaluating the 

impact or effectiveness of the new OHQ? 

MS. POND: Well, we -- actually, our 

resource centers are -- they're the ones that are 

implementing this. They track just about 

everything that they do. So we have a meeting 

with them this coming -- I think in a couple of 

weeks. We have an annual meeting with all the 

managers at the resource centers. 

So we can ask them. And I believe 

they probably already have it in their plan to 

tell us what they found in terms of how they 

found that to be helpful. In terms of beyond 

that, I'll have to get back to you on what other 

kinds of analysis we can do. 

MEMBER MARKOWITZ: Sure. That's fine. 

 Thank you. I realize it wouldn't be so easy, 
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but at least initial feedback from the managers, 

from the people who administer the OHQ, and then 

also from the claims examiners who are going to 

be -- or already looking at those OHQs -- 

MS. POND: Absolutely. 

MEMBER MARKOWITZ: -- and seeing what 

difference it makes. 

MS. POND: Yes. 

MEMBER MARKOWITZ: Any other comments 

or questions? 

(No response.) 

MEMBER MARKOWITZ: Okay. So it's 

3:15. We're going to take a 15-minute break. 

We're going to resume promptly at 3:30 for our 

public comment session. So don't hang up. Just 

hold on and come back in 15 minutes. Thank you. 

(Whereupon, the above-entitled matter 

went off the record at 3:14 p.m. and resumed at 

3:31 p.m.) 

MEMBER MARKOWITZ: Hi, welcome. It's 

Steven Markowitz, Advisory Board on Toxic 

Substances and Worker Health. We now are into 
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our public session period, and we've had two 

public commenters who signed up. 

First will be Ms. Terrie Barrie and 

then we're going to hear from Faye Vlieger, 

though Ms. Vlieger is traveling and has asked Ms. 

Barrie to present her comment. So let's start 

first with Ms. Barrie. Ms. Barrie? 

MS. BARRIE: Hi, can you hear me? 

MEMBER MARKOWITZ: Sure. 

MS. BARRIE: Okay, good. Hello, Dr. 

Markowitz and members of the Board. My name is 

Terrie Barrie, and I'm a founding member of the 

Alliance of Nuclear Worker Advocacy Groups. 

I want to express my appreciation to 

the Board members who volunteered to serve again 

and to welcome the new Board members. The work 

you do is so important. The advice given to the 

Secretary of the Department of Labor has been 

invaluable and has improved the program. 

After reading the briefing materials, 

I would like to offer a few observations. First 

of all, the guards and the first responders seem 
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to have a very rough time with this program, both 

under Part B and Part E. It seems that the 

agencies do not have a firm grasp of the scope of 

their job responsibilities. The guards, for 

instance, did not just sit in the guard house 

checking ID badges. The patrolled all over the 

sites including inside production areas. 

I remember seeing a picture of two 

guards at Rocky Flats. They were fully armed and 

protecting the door to the vault which held 

special nuclear materials. I would like to 

suggest that the SEM administrator schedule 

teleconferences with these first responders so 

that the SEM administrators have a fully -- fully 

understand the exposures involved. Documentation 

is great, but it doesn't always adequately 

portray the actual work experience. 

I am not particularly happy that the 

process the Board needs to go through in order to 

get documents or other information from DEEOIC. 

Every member of this Board understands their 

responsibilities under the statute. The request 
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for the SEM documents is clearly defined in the 

act. The act also says that DOL is supposed to 

supply those documentation upon request. 

Making the Board submit not only a 

written request for the documents but also an 

explanation of why they want it is, in my 

opinion, insulting. It also delays their work. 

I believe they requested this information last 

spring, and here it is six months later. And not 

only do they have the requested documents from 

what I understand, but the Board still needs to 

wait to see if DEEOIC is going to decide they 

will comply with this request. 

A similar situation exists with the 

Board's request for a technical contractor. This 

request is years old. OWCP has resisted the 

Board's request for years before employing 

another delaying tactic to require the Board to 

put the request in writing last spring. 

Yes, I can understand that the Board 

needs to explain what they need from this 

contractor. But OWCP could have and should have 
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asked for this information when the Board first 

requested this assistance. I noticed -- and I 

find this ironic. I noticed that one of the 

requirements a technical contractor should 

provide is the ability to organize the claim 

files so that it is easier for the Board members 

to review the file. 

The Department of Labor could probably 

save a bit of money on the cost of the technical 

contractor if the claims examiners had the files 

organized in the first place. The Department of 

Labor and OWCP has been delaying the Board from 

fulfilling its statutory responsibilities since 

the inception of the Board. I commend the Board 

members for their service and their commitment to 

their duties despite the obstacles they face. 

I want to skip the next part and go to 

another section, and then I'll come back to that 

if that's okay. I want to say a few words about 

the work of the Ombudsman's Office and in 

particular the former ombudsman himself, Malcolm 

Nelson. Mr. Nelson recently retired or is soon 
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to retire from his position. 

He and his staff have helped so many 

people understand the complexities of the 

compensation program and the adjudication 

process. He chose a staff based not only on 

their knowledge of the program but for their 

compassion. He was a true leader. 

I applaud his work and those of his 

staff for the work he did not only on behalf of 

the claimants and their advocates but for the 

Department of Labor too. He served both groups 

well. I wish him my sincere best wishes for the 

next step in life's journey, and he certainly 

deserves it. 

Ms. Vlieger will be discussing, I 

believe, the problem with impairment ratings. 

And I'd like to add a few things of my own to add 

to her comments. So Ms. Vlieger detailed the 

problems she's -- will be detailing the problems 

she's experiencing with the impairment claims. 

I'd like to add that ANWAG also filed 

a FOIA request concerning this issue. We 
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requested a copy of any and all documents, 

including emails and telephone call summaries 

which discuss audits of the independent 

physicians who submit impairment rating reports, 

including the formation of a possible review 

board or committee at the national office. We 

also requested a copy of any and all policy and 

guidance documents which address the scope of the 

review of the independent physicians impairment 

rating reports. 

DEEOIC's response was to state, and I 

quote, DEEOIC has no documents, including emails 

and telephone call summaries which discuss audits 

of independent physicians. The letter referred 

to us -- end quote. The letter referred us to 

the procedure manual, Chapter 21, which provides 

instructions for a claims examiner to reach out 

to the medical director if they have a question 

about an impairment rating. 

But in light of the numerous 

impairment which have been reviewed by the 

medical director for just one independent 
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physician, it does not seem reasonable or logical 

that there has not been one memo, one directive, 

one recommendation made during the DEEOIC monthly 

telephone conferences with claims examiners which 

resulted in this one physician's report being 

scrutinized by the medical examiner. I'm glad 

that DEEOIC requested the Board to weigh in on 

this issue. And I hope that the letter that Ms. 

Pond sent to the Board will be posted to their 

website. And again, I applaud your work and I 

thank you for your service. And that is all I 

have. Thank you. 

MEMBER MARKOWITZ: Okay. Thank you. 

So Ms. Barrie, you're going to also transmit Ms. 

Vlieger's comments? 

MS. BARRIE: Pardon me? 

MEMBER MARKOWITZ: Are you also going 

to transmit Ms. Vlieger's comments? 

MS. BARRIE: I can if she's not on the 

phone. She was earlier. 

MEMBER MARKOWITZ: Oh, was she? Okay. 

 I was told -- Ms. Vlieger, are you on the phone? 
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And I was told that she -- 

MR. BIRD: She is listed as being 

here. I don't know if she's available, though. 

She's on the line, though. 

MEMBER MARKOWITZ: Okay. Well, let's 

give her a moment to respond. 

MS. VLIEGER: I'm currently driving 

through the mountains. And so if Terrie could 

please read my comments for me. 

MEMBER MARKOWITZ: Yeah, that sounds 

like a good health and safety move. Thank you. 

MS. BARRIE: Okay, okay. All right. 

This is from Ms. Vlieger. Dear Dr. Markowitz and 

advisory board members, I provide these comments 

today because of the need to make the Board aware 

of recent actions by the Division of Energy 

Employees Occupational Illness Compensation 

Program Director Rachel Pond and Medical Director 

Dr. Armstrong which are not defined to the 

procedure manual and represent significant undue 

influence and intrusion into the claims 

administration process. 
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I wrote a letter to EEOICPA, Ms. Pond, 

on September 23rd, 2020 with my concerns about 

the actions of Dr. Armstrong and received a 

nonreply dated October 1st, 2020. In her letter, 

Director Pond did not answer any of my questions 

or concerns. I sent a follow-up letter 

requesting that my questions be answered on 

November 4th, 2020 and I am awaiting a reply. A 

copy of the letters have been submitted to the 

Board's email address, and I believe they're 

posted there too. Excuse me. 

As the Board has the authority to 

oversee positions of the medical director, I 

request that you review his opinion and insertion 

of himself into the claims adjudication process 

and make recommendations to correct these 

situations. In approximately March of this year, 

I was made aware of that impairment rating 

reports from an independent physician were being 

sent to Dr. Armstrong per his request. 

Initially, it appears that Dr. Armstrong was 

focusing his attention on one physician. 
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But I have now been made aware that he 

has instructed the claims examiners and all the 

district and national offices to send any and all 

impairment rating reports to him that contain 

specific words and phrases that Dr. Armstrong 

contends makes the reports not done in accordance 

with the AMA guide, 5th Edition. I made a 

Freedom of Information Act request on June 26, 

2020 for emails between Dr. Armstrong, CEs, and 

Medical Benefits Unit for the period of March 12, 

2020 to 6-22-2020 in order to understand what was 

happening and determine if there was anything 

that could be done to correct the situation. 

I received a response to my FOIA dated 

July 9, 2020. In the response, DEEOIC stated 

that they could not release the documents even if 

redacted because they are part of the claimants' 

case files and are protected by the Privacy Act. 

DEEOIC made no effort to provide the requested 

documents for those claimants' files for which I 

am the authorized representative and have PA 

authority to view. 
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The issue is that Dr. Armstrong has 

been providing opinions and directly independent 

IR physicians on his interpretation of the AMA 

guide. He is also dictating what opinions he 

will allow and will not allow regardless of the 

medical evidence. He is doing this through 

direct letters, directives, emails, memos, and 

communications to independent IRs and CEs on IR 

claims. 

Dr. Armstrong is inserting himself 

into claims adjudication process by writing 

medical opinions that become part of the claims 

process. These written opinions by Dr. Armstrong 

are then part of the claim file and used in 

further adjudication processes. There is no 

mention of this authority to interpose the 

medical director's opinion in the procedure 

manual. 

As the Board knows, Dr. Armstrong 

conducts audits of the contract medical 

consultant reports. When a CMC or a referenced 

CMC are requested to provide an opinion for a 
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claim. And they received records that contained 

a differing opinion by DEEOIC medical director. 

They are improperly influenced to not 

disagree with the medical director. This 

influence is to the detriment of the claimant 

because it unfairly influences the outcome of a 

situation in favor of the medical director's 

opinion regardless of merit. The insertion of 

Dr. Armstrong's opinion into the claim file 

represents undue influence. 

The American Bar Association in the 

February 1st, 2014 paper defines undue influence 

as, and I quote, excessive persuasion that causes 

another person to act or refrain from acting by 

overcoming that person's free will and results in 

inequity. In DEEOIC's director's response to me 

on October 1st, 2020, she stated that, quote, the 

DEEOIC medical director does not have a 

relationship with any particular physicians that 

treat DEEOIC claimants, either inside or outside 

of DEEOIC, nor does he have the authority over 

CMCs. He simply provides his personal medical 
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opinion based on his experience, end quote. 

However, the medical director does 

have audit authority over the CMC reports for 

quality assurance and to changes in their job 

performance instructions under the CMC contract. 

As such, the medical director does have the 

authority over the CMCs and their opinions. It 

is mere hubris for the medical director or the 

DEEOIC director to state otherwise. 

Since Director Pond stated in the 

letter that these are the medical director's 

personal opinion, they should have no part of the 

claims adjudication process. Further, any of the 

medical director's opinions that have been 

inserted into the claim files should not be used 

for claims adjudication. The medical director is 

also significantly delaying claims with his 

insertion into the process. 

In discussions with various claims 

examiners, the IR reports that are sent to the 

medical director are done so with no timeline of 

when there will be a response. In fact, the 
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medical director does not have any timeliness 

criteria because he is not part of the claims 

process. In a number of instances, claims have 

been delayed in excess of five months because the 

medical director has created a difference of 

opinion even though his opinion is not part of 

the adjudication process. 

Because the medical director is 

operating outside the procedure manual, he is not 

accountable to the timeliness standards. The 

delays caused by the injection of the medical 

director's personal opinion into a claim come 

from the claims examiners using the medical 

director's opinion as a differing opinion which 

forces the claim into an additional adjudication. 

 If the medical director wants to institute 

changes to the DEEOIC claims process, he should 

go through the rulemaking process. 

DEEOIC director is allowing the 

medical director to operate outside the program 

parameters. The DEEOIC director should ensure 

that the medical director's personal opinions are 
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not used in the claim adjudication. I agree that 

the medical director should review and improve 

the claims adjudication process, but it is not in 

his purview to replace the program adjudication 

process in the procedure manual nor to supersede 

the equitable provisions of the claims process. 

While the medical director may have 

his personal opinions, they are not part of the 

DEEOIC claims process. I ask the Board to 

investigate the situation by reviewing Dr. 

Armstrong's directives, communications, and his 

personal opinions on specific impairment rating 

claims. If needed, the advocates can provide 

specific case identification information to 

ensure that when you query DEEOIC for applicable 

claims, you receive accurate information. I also 

ask the Board to offer recommendations to resolve 

this issue. Thank you, by Faye Vlieger. 

MEMBER MARKOWITZ: Thank you. I would 

just like to point -- this is Steven Markowitz -- 

point out to the Board members that what Ms. 

Barrie just read from Ms. Vlieger is actually on 
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our website under the public comments verbatim, 

that exact letter. So it's involved obviously, 

but you can take a closer look online. So Ms. 

Rhoads, are there any other public commenters? 

MS. RHOADS: Kevin, can you see 

anybody? 

MR. BIRD: I'm asking the moderator 

now. But if anyone would like to make a public 

comment who has not already done so, just 

remember to press star-1. 

MEMBER MARKOWITZ: Okay. So the plan 

now is a couple things. Department is making a 

request of the Board to assist in looking at some 

of the medical and/or scientific criteria for 

judging respiratory impairment. And I don't know 

-- that request came in yesterday. 

I'm not sure, Ms. Rhoads, whether it's 

been passed along to the Board members. It 

should be. It should also be posted on our 

website as soon as possible. But that request 

does not directly pertain to this particular 

conflictual issues that were just raised in the 
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public comment period. 

But I do think that tomorrow morning -

- and I would like to ask Ms. Pond or Mr. Vance. 

 What's the plan to present that request to the 

Board tomorrow? Of if I need to rephrase that, 

can you verbally raise that request with us 

tomorrow so there's some -- a little bit of 

opportunity for clarification if needed? 

MR. BIRD: Dr. Markowitz, this is 

Kevin. Just to jump in here, we do have some 

folks who have requested to make a public 

comment. So I'll let John or Rachel answer. But 

once we do that, we do have folks who want to 

jump in. 

MEMBER MARKOWITZ: Okay. Well, I need 

to know the number. I need to know what their 

names are. 

MR. BIRD: I'm sorry. I will have the 

moderator put them through if that's okay. Or do 

you want to -- do you want me to send you the -- 

MEMBER MARKOWITZ: No, I need to know 

how many and I need to know the names. 
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MR. BIRD: All right. We will get 

that in just one second. The first is Donna 

Hand. 

MEMBER MARKOWITZ: I'm sorry. What 

was that name? 

MR. BIRD: Donna Hand. 

MEMBER MARKOWITZ: Oh, Donna Hand? 

Okay. 

MR. BIRD: And as of now, that's the 

only one. 

MEMBER MARKOWITZ: Okay. I don't know 

whether Ms. Pond or Mr. Vance are still on and 

whether they can answer that question. But we 

can go ahead with Ms. Donna Hand and then come 

back to that. Do you want to patch her though? 

Ms. Hand, welcome. 

MS. HAND: Thank you very much. Can 

you hear me fine? 

MEMBER MARKOWITZ: Yes. 

MS. HAND: Okay. Discussing the 

impairment rating, we -- in the beginning of the 

program in 2005 when they had their interim 
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policies and stuff, they stated then that you 

cannot proportionate. And then again, they 

stated that you have to use the impairment the 

proper way with the fifth guide. Well, Dr. 

Brigham who wrote the majority of the fifth guide 

as well as the sixth guide had a seminar and I 

attended that seminar. 

And according to him, most doctors -- 

impairment doctors forget to use Chapter 1 and 2 

which means that they are to use in their 

professional judgment certain issues or concerns 

in that impairment. I just had an impairment 

done for a claimant that had chronic beryllium 

disease and asthma. Well, they wouldn't give any 

impairment for the asthma and they wouldn't 

combine the two. So they just gave it for the 

chronic beryllium disease. And I reminded them 

that you can also give up to 3 percent for pain. 

They did not do anything for pain. 

Back in 2006, Senator Kennedy as well 

as others wrote to the Department of OWCP and 

said that, you must assume all impairment, 
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specifically the depression and anxiety. And 

they're still stating that they can't use those 

because there's nothing in the guide about that 

which is not really true because there are 

several states, specifically California, uses the 

psychiatric impairment evaluated by the Global 

Assessment of Function Scale. So there's that 

issue there. 

Then the 3 percent of pain is not 

being used anymore. And back in April the 1st, 

2017, OWCP put up a memo. And this is regarding 

the FECA, but the FECA program is a nonadversarial system such as similar to our system. 

And it states in there that this clarifies that 

the disability rating must include all conditions 

affecting the affected body part as of the time 

of the rating examination. 

It also reads that effects of other 

non-industrial injuries have to be included in 

the rating as well. This is not -- by the 

definition of the impairment which is a loss of 

functioning, if the asthma and the COPD, both the 
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respiratory system, then you have to include all 

of that even though a decision for the asthma was 

not accepted. 

The other issue is that most people 

with chronic beryllium disease have asthma-like 

symptoms. And so the doctor -- the treating 

physician will put asthma. Well, then when the 

Department of Labor's energy program looks at it, 

well, we didn't accept asthma so then we're not 

going to -- you can't pay that. 

Well, but in your own policy procedure 

manual back when it was just Part D before it was 

unified, you admitted that the chronic beryllium 

disease has asthma-like symptoms. So there's 

been several times -- and this is when Ms. Pond 

was the policy chief was well aware of this 

policy and this division but now has now admitted 

all this information that has been going on for 

nine, ten years before she became the director 

and before she made the unified procedure manual. 

The other issues that I have big 

concerns with is that they are having nurses talk 
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to a physician -- a treating physician to 

understand how to make a well-rationalized 

report. There is a disconnect between the wellrationalized report because John Vance put out a 

memo saying that with COPD, they didn't have to 

have references. But yet they're making my 

physicians have references. 

And if the policy procedure manual is 

just that, just a thing for them to use, it's not 

guidance, then that well-rationalized report with 

references is not required. It's not mandated. 

It's not even part of the regulation. And the 

physician told the nurse, I do not have the time 

to commit to do the research, everything for what 

you're asking for. 

He did do a well-rationalized report 

before then when we had a hearing and that was 

submitted. And he was given the work history of 

the claimant. He was given the Site Exposure 

Matrices, toxic substances that that claimant 

would've been exposed to when performing his 

duties and was given the diagnosed condition. 
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For example, one of his conditions was 

neuropathy. Lead is connected to neuropathy. He 

was exposed in Hanford, and 1947 and 1948 is when 

he worked, to lead. He had kidney cancer, kidney 

disease, and the neuropathy. And it took well 

over 12 months for them to send it to a CMC, and 

the CMC agreed with his treating physician. 

So there's a big problem when I have 

to have a nurse talk to a physician and then 

about what a well-rationalized report is and 

requesting references whenever that is not 

required. Address and explain and put in a 

template what a well-rationalized report is. 

Thank you. 

MEMBER MARKOWITZ: Thank you very 

much. Unless I hear otherwise, I think that may 

be the end of our public commenters. And so what 

I'd like to do now since we have some time is to 

add a not long presentation of Department of 

Energy role in the EEOICP and supporting the 

EEOICP in claims evaluation process and introduce 

if he's -- I think he's probably on the line and 
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available, Greg Lewis, who is in the Office of 

Health and Safety of the Department of Energy and 

has been involved in this program for many, many 

years. So, Greg? 

MR. LEWIS: Hi. Good afternoon, 

everyone. Can you hear me okay, Dr. Markowitz? 

CHAIR MARKOWITZ: Yes. 

MR. LEWIS: Okay. Well, I know I 

stand between everyone and the end of the day, so 

I'll try not to go too long, but I -- you know, I 

do want to go into some detail about our role and 

what we do for the program. If you can go to the 

next slide? 

So, again, my office is the Office of 

Worker Screening and Compensation Support, which 

is within the Office of Health and Safety. The 

Office of Health and Safety primarily deals with 

current worker activities, health and safety 

policy, the voluntary protection program, some 

different epidemiological health studies, things 

of that nature. But my office within the Office 

of Health and Safety focuses on two programs 
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vital to former workers primarily, not 

exclusively but primarily former workers. One is 

the Former Worker Medical Screening program, 

which you heard about a little bit in the 

introduction. There are at least a couple of 

members of the Board who are very involved in the 

former worker program. And my office funds and 

supports the cooperative agreement holders or 

grantees that implement those programs. And I'll 

talk just a little bit about that at the end. 

And then the other role that my office 

performs, of course, is support to Department of 

Labor and NIOSH in implementing the compensation 

program, and we think that this is a, you know, 

really important role and a really important 

service that Department of Energy provides 

looking after our former workers and making sure 

that they get the compensation that they deserve. 

Next slide. And actually, if we can 

just skip passed this slide is fine. 

So primarily what my office does for 

the compensation program is provide records and 
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information, and we do this in three ways. 

First, we respond with records related to 

individual claims. So if someone files a claim 

with the Department of Labor, Department of Labor 

is going to DOE to ask for that worker's records. 

And so is NIOSH as well; if it's a cancer claim 

or a Part B claim, it goes over to NIOSH in their 

reconstructing dose, they're going to come to 

Department of Energy to ask for the records. So 

that's kind of the biggest role that we play, is 

providing those individual records packages that 

allow DOL and NIOSH to do their job. 

But we also provide support and 

assistance for sort of larger scale site 

characterization projects. I know you guys have 

heard about the Site Exposure Matrix today and 

are going to hear more about that tomorrow. We 

provided, you know, the -- many of the records 

used for most -- in fact, DOL does get some 

records from other sources, but I think we 

provide the bulk of the records used for that 

Site Exposure Matrix. And we also help NIOSH 
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with their special exposure cohort research 

project or safe profiles, things like that. 

And then the third thing we do which 

is much smaller but also very important is we do 

some research in coordination with Department of 

Labor and NIOSH into issues related to covered 

facility designations. For the most part, the 

facilities are already -- you know, they have 

been designated. It's published in the Federal 

Register and they're on our covered facilities 

website. But from time-to-time, we get 

information and we may add some years or take 

away some years or list a new site or delist a 

site as needed and as the research dictates. So 

those are the three main areas that my office 

works with the DOE. You can to the next slide, 

please? 

So with individual claims, we do three 

separate types of requests. We'll get the 

employment verification from the Department of 

Labor which is sort of the smallest and most 

straightforward request just looking for, you 
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know, did the person work at a DOE site or sites, 

how long, you know, what was their job title, 

that kind of thing. Then we'll get -- if it's a 

Part B claim, we'll get a request from NIOSH for 

the dose records, the radiological dose records. 

Sometimes that's medical records, too; wherever 

there might be information related to 

radiological exposure. 

And then the third type of request, we 

refer to it as a DAR, a document acquisition 

request but essentially, that's Department of 

Labor asking DOE for any information related to 

that worker's, you know, work and possible 

exposure. So next slide, please? Next slide. 

Can everyone hear me? 

MR. BIRD: Yes, we can. I didn't 

(audio interference) slide. 

MR. LEWIS: And actually, if could 

skip passed that to the next one, I'll keep 

talking. We have a site point of contact at each 

DOE site, and we rely on them to conduct these 

searches. And as you'll see, I'm going to talk a 
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little bit about it. You know, for the 

individual searches, it's not a situation where 

one worker has one file and we go to that file 

cabinet, you know, pull out the file, photocopy 

it and then send it back. There are records in 

many different locations, different offices on 

site. There are different databases or hard 

copies. There are microfilm, microfiche. It 

really depends on which worker was there, how 

long the worker was there, which contractors they 

worked for. So records can come in many 

different forms and are in many different places. 

So it's a bit of a detective project sometimes to 

find these records, and our site points of 

contact are the ones that spearhead these 

processes. 

They also work with DOL and NIOSH on 

the records research projects, so facilitating 

worker interviews when necessary, you know, 

trying to identify the types of records that DOL 

and NIOSH need and facilitating the review of 

those records, whether it's in person on site or 
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online via electronic collections. They may also 

facilitate tours before -- for DOL and NIOSH 

groups including the DOL Advisory Board. 

Obviously, with the pandemic and virtual medium, 

that's not happening but I know for the in-person 

meetings, we've facilitated tours in the past and 

if and when things return to normal, we're fully 

committed to doing so again. 

So with the individual claims, our 

EEOC POC is going to receive the claims through 

our SERT system, and SERT is the Secure 

Electronic Records Transfer system. So we set 

that up. You know, protection of PII and worker 

privacy is really important to us in these days 

of, you know, online hackers and, you know, 

everyone's heard about different companies, 

different agencies losing, you know, laptops or 

getting compromised from hackers and compromising 

people's sensitive information. We're very 

concerned about that, and we set up our Secure 

Electronic Records Transfer system to encrypt 

data and facilitate the secure transfer of 
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records to and from Department of Labor and 

NIOSH. 

So when we get a claim through that 

SERT system, typically our site staff, our POC 

will do some triage on that claim. So they may 

have the name and Social Security number or 

things like that, but they may need to crossreference that with, you know, site ID numbers. 

At Los Alamos, they call it a Z number. There's 

various things like that, and they may also need 

to look up -- you know, people may have gone 

under maiden names or different names when they 

worked at the site. So they'll take the 

information they receive from Department of Labor 

or NIOSH and, you know, triage that and try to 

find the different pieces of information that may 

help them conduct the search on their site. Next 

slide. 

And this is where they're going to 

send that request out to the different areas on 

the site. And this isn't true for all DOE sites. 

For closure sites, typically it's more of a 
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records library type situation. Like the 

Department of Energy Office of Legacy Management 

handles many of the closure sites, and then there 

are also some closure projects that are ongoing. 

 And when they're focused on the cleanup or when 

they've already cleaned it up, their records are 

typically located all in one records center, so 

it's more of a simple search. But when it's an 

active site, our POC is going to have to send 

that records request to different areas that may 

have responsive records including the HR 

Department, the Medical Department, Industrial 

Hygiene, Radiological Controls or Dosimetry. 

There may be a different group of data source to 

those incident and accident reports. And then 

they may have to go directly to the records 

archive or, you know, each of the different 

divisions that I talked about, HR, Medical, IH, 

et cetera, they may have to go to the records 

archives and then pull those records. Next 

slide. 
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So each of those groups is going to 

conduct a search of their holdings. And again, I 

sort of alluded to this before but, you know, 

what that search looks like and the depth and 

volume of records that, that search is going to 

find really depends a lot on the employee. You 

know, if it's a 30-year, you know, career 

employee who may have worked for multiple prime 

contracts as they changed out of the years and 

who may have had multiple, you know, job 

categories or, you know, moved up or moved around 

or got trained in different things, we could have 

to go to, honestly, 20 to 30 different sort of 

records locations, whether that's, again, 

microfilm, microfiche, multiple databases, 

certain hard copy collections. We might have to 

go to a number of locations to find records for 

an individual. But on the other hand, of it's a, 

you know, particularly a construction 

subcontractor, sometimes we'll really struggle to 

find anything at all that even puts the employee 

on site much less provides detailed information 
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about what they did or their exposure. So it can 

really depend on the type of employee. Next 

slide. 

So this is just -- you know, it's 

really hard to read this, and I didn't put this 

up here for the detail, but this is just an 

example. I pulled this from our search 

procedure. I think it may be the Nevada Test 

Site or now called the Nevada National Security 

Site, but it doesn't really matter. This is just 

to kind of give you an example. This is a chart 

that they put together, sort of mapped out where 

they might have to go, you know, to conduct a 

search for employee records. And actually, if 

you could go to the next slide, it's I think more 

of the same, and I'll talk about that one. 

Yes. So just, you know, for example, 

I'm going to the second box down under the 

industrial hygiene records. When you look at it, 

you know, there's a records source name is one 

column, and there's years covered and format. So 

you can see some of the different sources go from 
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1945 to 2014 are paper files. That's the first 

line. We have a source, ERS database that's '45 

to 2005. There's electronic files. We have an 

IH archive, S-drive that goes from 2005 to 

present, electronic files. And if you look down, 

you know, there is probably just for the IHfiles, it looks like there's about maybe 15 

different sources covering various years. Some 

of them are electronic. Some of them hard copy. 

I see a microfilm in there. And a lot of them 

overlap so, you know, it's not just one is from 

1970 to 1980, one is from 1980 to 1999, et 

cetera. There's overlap in those sources, and 

sometimes a worker might be in, you know, 

multiple sources. Or sometimes the site will 

understand why someone would be in one versus the 

other depending on what their job type is or who 

they were working for in terms of contractors. 

So it's not always a straightforward process, and 

it's no always a linear process, but we do try 

very hard to locate all of the responsive records 

for each individual. Next slide. 
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So just -- I'll give you some sort of 

general metrics about, you know, what we 

typically do each year. Each -- we do about 

16,000 records responses per year, although 

that's not 16,000 unique individuals. You know, 

we count the employment verification, the NIOSH 

request, and the DOL DAR all separately. So we 

could potentially do three different requests for 

an individual, although if they don't have a Part 

B, we might only do two. So it doesn't really 

match up exactly, but those are -- to us, they're 

distinct requests. So we do about 16,000 

responses per year from over 25 different DOE 

sites. Next slide. 

And these are averages. I always 

stress this. You know, like I said before, a 30-

year career employee who worked for multiple 

contractors, multiple job sites is going to be 

well over this. I've single responses up around 

3,000 pages and, you know, again, a construction 

sub, not always but sometimes will be, 

unfortunately, much lower than this, you know, 
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possibly nothing or a few pages. But just to 

give you an idea of the average number of pages 

for an employment verification, it's about 15. 

The average for our NIOSH response is about 50 

pages, and the average for a DAR is 150 pages, 

ball park. And again, those are averages. It 

really depends on the worker, but that gives you 

an idea of the size of the packages we're (audio 

interference.) Next slide. 

And then as far as timeliness, you 

know, way back in the beginning of the program, 

we agreed with DOL and NIOSH to a 60-day goal for 

us to turn these requests around and get them 

back to both DOL and NIOSH within 60 days. And 

FY19, we had a 98 percent on time response rate. 

Unfortunately, you know, FY20 is going to be much 

different due to the pandemic. We were 

significantly down for about three months, and it 

was a little more or less at certain sites 

depending on the situation in their area. 

But with maximum telework, some sites 

were able to continue to respond in realtime and 
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fully to all requests if they had more of their 

records accessible online and in electronic 

databases and with less classification issues. 

But other sites accumulated a significant backlog 

in the first two, three, or four months of the 

pandemic. But the good news is with the 

exception of about two or three of our sites, we 

are back fully current and with no backlog to the 

individuals who collect at most sites. So again, 

our timing and numbers are going to be off this 

year but, you know, I think we have a good 

excuse. Next slide. 

And then the Site Exposure Matrix, 

you're going to hear more about that tomorrow, I 

think, or you may have heard earlier today. I 

haven't been on the whole call. But it was 

initially created in the 2006-2008 time frame. 

Teams from DOL went to every DOE site, gathered 

records, did extensive research, conducted worker 

interviews, and focus groups, reviewed thousands 

of boxes of records and data and apps or copies 

of, you know, hundreds of documents, possibly 
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more at some of the sites. And we provided 

those, you know, reviewed them, et cetera, made 

sure that they were releasable and provided them 

over to DOL. 

And then we reviewed the -- some 

database for classification in 2009. Initially, 

it was only accessible to DOL claims examiners, 

but there was a push to make it public. And so 

we reviewed the whole database for 

classification, and it was released in 2009. Now 

we continue to review the new additions every six 

months, so people are able to submit information 

to the SEM and send it out there doing additional 

research to augment and improve the SEM. And so 

every six months, we review the additional data 

that they've added in there, and then it goes 

public. Next slide. 

And again, we continue to work with 

DOL. They have -- their contractor team is 

working their way site-by-site through the DOE 

sites, both going back and filling in gaps but 

also filling in the information from whenever 
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they initially did it, you know, 2006, '07, '08, 

up through the present day. 

And then we also, DOL, might get one 

off request where the public says, hey, you know, 

you don't have this in this particular site, or 

we think this chemical was there, or we think you 

missed the boat with such and such. So the 

Department of Labor will come to us or request 

additional information, and we are -- we do our 

best to respond to those. Next slide. 

Outreach, again, we coordinate with 

both Department of Labor and NIOSH as well as 

their ombudsman office and our Former Worker 

Medical Screening Programs to conduct joint 

outreach. We've been doing this for probably 

about 10 years now, because we figure that each 

of those groups is trying to reach if not exactly 

the same population, much the same population, 

for different purposes but certainly, we're 

trying to reach the same group. And we also 

found that there was quite a bit of confusion 

from claimants and workers about which office and 
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which group did what, so we oftentimes found 

ourselves, you know, referring people to the 

other agencies. We figured if we all got 

together, we could combine forces, it would be 

more efficient for us, and it would serve the 

claims better. So we've been working jointly on 

outreach activities for the past 10 years. And 

although the in person activity has stopped in 

the last seven or eight months, whatever it is, 

we've still been working with DOL and NIOSH to do 

virtual events and reach out to workers in 

different fashions. Next slide. 

And then I'll just mention I think -- 

I know a few of the people on this call are very 

familiar with the Former Worker Program but 

again, the Former Worker Medical Screening 

Program is funded by the Department of Energy, 

but it's administered through cooperative 

agreement holders so they have, you know, 

independence from DOE and create their own, you 

know, medical protocols, and they do their own 

outreach, and it's their own program. But we do 
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fund and support those cooperative agreement 

holders. Their mission is to identify and notify 

former workers at risk for occupational disease 

and offer them medical screening that can lead to 

early detection and treatment. The Former Worker 

Project program has been going on since 1996. 

Next slide. It is free. It, of 

course, serves all workers from all DOE sites. 

We try to get them a screening as close to their 

residence as possible, so we have some programs 

that are location-specific and serve specific 

sites and locations. We also have a few national 

programs that'll cover workers wherever they are, 

you know, within reason. I think we've done 

other countries from time-to-time. That's very 

rare, of course, but, you know, we do have 

contracts and providers in rural areas, pretty 

much wherever workers may end up. 

And I should probably update that last 

slide, but -- or that last bullet, but we've done 

well over 100,000 medical exams, and that was 

current as of 2015, which I need to update. But 
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that's only grown since then. So we've done well 

over that number. Next slide. 

And that's some information if folks 

are interested in more information about the 

Former Worker Program. 

And I think that's my last slide. 

Yes. And if anyone has questions, I'd be happy 

to answer them. 

CHAIR MARKOWITZ: Okay. This is Steve 

Markowitz. That was great, a great summary of a 

lot of information. Thank you. Anybody have 

questions? 

MEMBER GOLDMAN: This is Rose Goldman. 

I have a question. What you just talked about, 

the former working -- Formal Worker Medical 

Screen Program, what -- I mean not to go into a 

long thing, but what are you screening for, like 

are you going after workers who have had 

beryllium exposure or asbestos or radiation; are 

you going after screening workers for increased 

risks of certain cancers, because we're going to 

be talking about that tomorrow? So I'm just 
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interested how you approach this and what are 

your key screening programs. 

MR. LEWIS: Well, to be honest, I 

would -- I think either Dr. Markowitz or Dr. 

Mikulski might be able to answer that question in 

a lot more detail than I could, because they are 

intimately involved in the Former Worker 

Screening Program. Do either of you want to 

answer that, or do you want me to muddle through? 

CHAIR MARKOWITZ: No. Sure. Let me -

- this is Steve Markowitz. I'll take a crack. 

We can share the national medical protocol we use 

for the program, but we're looking mostly at 

chronic lung disease, hearing loss, at other 

chronic conditions, a beryllium sensitivity or 

disease, and to some extent, cancer. We have -- 

some of the programs have a very ample lung 

cancer screening program built in. The other 

cancer sites, we advise on but we don't do the 

screening except for some stool cards for 

colorectal cancer. So it's general occupational 

diseases with limited cancer screening. I can 
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send around the medical protocol which will 

explain it a lot better. 

MEMBER GOLDMAN: Okay. I was just 

curious also what exposures might trigger -- if 

this is too much to answer now, we can deal with 

it later -- for example, lung cancer screening or 

would that be triggered by a certain exposure 

like asbestos? 

CHAIR MARKOWITZ: Sure. You know, 

again, let me share the protocol because it's the 

-- it's in the protocol, the exposures and the 

screening maneuvers and the diseases we're 

looking for. But the short answer -- 

MEMBER GOLDMAN: Okay. 

CHAIR MARKOWITZ: -- is -- the usual 

suspects is the short answer. 

MEMBER GOLDMAN: Okay. I'll just take 

a look at that, because it might relate to a 

presentation I'm doing tomorrow. Thank you. 

MR. LEWIS: Yes, okay. Any other 

questions? Dr. Silver. 

MEMBER SILVER: Yes. Thank you, Greg. 
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Every time I hear you present, I feel a great 

weight lifted from my shoulders and probably a 

lot of the other advocates feel that way. You 

know my history. One of my claims to fame is 

that I had to sue the Department of Energy to 

finish part of my dissertation under the Freedom 

of Information Act. That's in risk analysis a 

few years back, the final result; and then at one 

point, for an EEOC POC claimant, we had to work 

through a congressman's constituent services to 

get information that the worker knew existed but 

had not come through in the first four document 

dumps from Los Alamos. 

How many times a year are you 

contacted by individuals or advocacy groups 

outside the DOL to DOE line of communication? 

Are there still people out there who are crazy, 

frustrated, or congressman's offices and not 

getting the documents that they know exist that 

have not come through? 

MR. LEWIS: So we get quite a few 

contacts regularly, probably weekly if not more. 
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Many of those -- you know, it really runs the 

gamut. I mean some of them are, you know, I know 

I have records and the site didn't find them. 

You know, some of them are I don't necessarily 

know if I have records, but I'm surprised; I 

thought I would have had more than what I 

received, that kind of thing. So, you know -- 

and with those, it's tough. I mean anytime we 

get a request, whether it's from an individual, 

an advocate, or a, you know, a congressman's 

office, we do everything we can to go back and 

see is there something we missed. 

And occasionally, you know, we will 

find additional information, whether it was 

something that was missed or some part of the 

process, you know, something went wrong. We do 

occasionally find examples of that, although 

that's pretty infrequent. We also sometimes are 

able to find more information because we get more 

information from the individual, maybe an 

additional employer or some additional years 

that, for whatever reason, either, you know, were 
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not down on the initial forms or somehow didn't 

translate over to us. So sometimes we can find 

additional information that way. 

But the vast majority of requests like 

that, that we do get, we're unable to find 

anything more, you know, and I think, 

unfortunately, part of the reason why this 

program was enacted, you know, close to 20 years 

ago is that the records within DOE were not 

always kept properly or were not always created 

at the time. You know, I've heard many workers 

talk about, you know, the -- you know, things 

like we left our dosimeters in the truck or, you 

know, supervisors didn't mark us down for the 

correct dose. And, you know, again, in any of 

those individual cases, I don't know whether -- 

you know, how accurate that is. But, you know, 

we've certainly heard quite a bit of, you know, 

comments and testimony to that effect. 

So oftentimes we're unable to find any 

records, you know, whether they should have been 

created or they existed and -- or were destroyed 
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way back when. What I always -- you know, what 

my office tries to do now is we do our best to 

find every record that we can. If it's out 

there, if it's still at the DOE site, we do 

everything we can to find it. And like I said, 

we do find quite a bit of records on individuals. 

You know, our average is, going back to that 

slide, it's somewhere around 200 pages. 

But again, you know, for a 

construction sub, you know, I have spoken with 

people who've said that they were on a DOE site 

off and on; you know, not on a consistent basis, 

but they would be there, you know, maybe every 

year for some period of time or every couple of 

years, they'd end up at a project on site if they 

were a union, you know, tradesman, and we might 

not be able to find any indication that they were 

there or only a few pieces of information. Like 

there was no formal record, but we might, if they 

ever got hurt while they were there, we might 

have that record. Or if they happen to have to 

go into a secure area, we might have a record. 
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But if the rest of their projects weren't in a 

secure area or, you know, again, the vast 

majority of people are not going to get hurt on 

the, you know, the job, so we may not be able to 

find a record on them. 

So, you know, it's kind of a long 

answer to a short question, but we do get 

inquiries. We do -- I talk to people all the 

time that are frustrated that we didn't find 

more, but all we can do is do everything we can 

to find the records that do exist. And I assure 

you my office really does everything we can to do 

that. 

MEMBER SILVER: Thank you. 

CHAIR MARKOWITZ: This is Steve 

Markowitz. Ms. Whitten, your hand's up, at least 

on the WebEx, but I think that might be old. Did 

you want to raise a question or a comment? 

MEMBER WHITTEN: No. That's an old 

hand. 

CHAIR MARKOWITZ: Okay. Well, it's 

5:30. If there are no other questions or 
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comments -- unless Mr. Chance has something to 

say or -- 

MR. CHANCE: No, Dr. Markowitz. Thank 

you. I just want to say hi to Greg. 

MR. LEWIS: Hi, Mike. Been a long 

time. 

MR. CHANCE: We used to do some work 

together back in the day, so I just want to say 

hi to Greg. But no, I don't have anything. I 

think that -- I don't know if Ms. Pond or John 

Vance stayed on for this, so I think that what we 

could do, if it's okay with everybody, you know, 

when we have the section of time set aside to 

review the public comments, I think we can share 

with them at that time tomorrow. I mean they're 

pretty similar to some of the things that I think 

the program has been -- has tried to respond in 

writing and is also seeking some guidance from 

the Board on. So -- 

MR. VANCE: Hey, Mike, I'm actually 

still on. I sat through and listened to 

everything. 
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MR. CHANCE: Oh, sorry, John. I 

didn't -- 

MR. VANCE: Yes. 

(Simultaneous speaking.) 

MR. CHANCE: -- so yes, so you can go 

ahead and take it. I don't know if you have 

anything to say. 

MR. VANCE: Well, yes, I do, and I 

will simply say that, you know, the Department of 

Labor has submitted a letter to the Board that 

explains our perspective and has asked for some 

input on -- and I think that's where we're going 

to leave it for right now -- but the letter 

explains our -- the situation and then it's 

seeking information about how to best address 

that particular issue. 

CHAIR MARKOWITZ: This is Steve 

Markowitz. That's fine. The -- just Ms. Rhoads, 

if you can just make sure that all the Board 

members get that letter, and if you could post 

it. And then tomorrow, if there's time, if any 

of the Board members want any clarification about 
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the request, the specific DOL request to us, we 

can perhaps have some discussion about that. 

Otherwise, if there's nothing else, I think we 

might be done for today, and we reconvene 

tomorrow at 11:00 a.m. And tomorrow we're going 

to have much more back and forth discussion, so I 

look forward to that. Any questions at all, 

Board members? 

(No response.) 

CHAIR MARKOWITZ: Okay. Good. Well, 

have a good evening then. 

MR. CHANCE: Let's adjourn. 

MR. LEWIS: All right. Have a good 

night everybody. 

(Whereupon, the above-entitled matter 

was adjourned at 4:31 p.m.)